United States District Court, D. Minnesota
William J. Otteson, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.
Daniel M. Scott, Esq., Kelley, Wolter & Scott, PA, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on the Government's Objection [Docket No. 25] ("Obj.") to Magistrate Judge Jeffrey J. Keyes' July 22, 2014 Report and Recommendation [Docket No. 24] ("R&R"). In the R&R, Judge Keyes recommends granting Defendant Bartolomea Joseph Montanari's ("Montanari") Motion to Sever Counts [Docket No. 17]. For the reasons stated below, the Government's Objection is sustained, Judge Keyes' R&R is rejected, and Montanari's motion to sever is denied.
In May 2014, the Government charged Montanari in a three-count indictment [Docket No. 1]. Count 1 alleges that Montanari evaded payment of employment and excise taxes due from businesses he controlled between 2009 to 2012. Specifically, Montanari is alleged to have misrepresented his place of residence, employment, bank account information, and other assets. To prove Count 1, the Government must establish: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax. See 26 U.S.C. § 7201; see also United States v. Schoppert , 362 F.3d 451, 454 (8th Cir. 2004).
Counts 2 and 3 charge mail and wire fraud arising from an alleged kickback scheme involving the purchase of a Caterpillar bulldozer. Between October 2008 and January 2009, Montanari allegedly misrepresented the price of the bulldozer to his business partner and the financing company involved in the purchase, which allowed Montanari to fraudulently secure $100, 000 for his personal use. Montanari allegedly used this money as part of a down payment for his $1.4 million home in Tennessee. To prove Count 2 (mail fraud), the Government must prove: (1) a scheme to defraud by means of material false representations or promises; (2) intent to defraud; (3) reasonable forseeability that the mail would be used; and (4) that the mail was used in furtherance of some essential step in the scheme. See 18 U.S.C. § 1341; see also United States v. Louper-Morris , 672 F.3d 539, 555 (8th Cir. 2012). The elements of Count 3 (wire fraud) are the same as the elements necessary to prove mail fraud, except that the Government must prove that it was reasonably foreseeable that interstate wire communications would be used and were in fact used. See 18 U.S.C. § 1343; see also Louper-Morris at 672 F.3d at 555.
The business through which Montanari is alleged to have committed the bulldozer scheme is the primary business for which Montanari is alleged to have willfully evaded the payment of taxes.
A. Standard of Review
A district court must make an independent, de novo evaluation of objections made to an R&R. The district court may accept, reject, or modify-in whole or in part-the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636 (b)(1)(c); D. Minn. LR 72.2(b).
B. Government's Objection
The Government objects to the R&R on the basis that (1) federal law strongly favors joinder; (2) the alleged crimes are of a similar character; (3) the measure of proof will necessarily share numerous common facts and witnesses; and (4) little or no ...