United States District Court, D. Minnesota
E. Kokkinen, Amber M. Brennan and David Michael Maria,
Assistant United States Attorneys, Counsel for Plaintiff.
S. Birrell and Ian S. Birrell, Gaskins Bennett Birrell
Schupp, LLP, Counsel for Defendant Preston Ellard Forthun.
Zayed, Dorsey & Whitney LLP, Counsel for Defendant
Abdisalan Abdulahab Hussein.
Charles L. Hawkins, Law Offices of Charles L. Hawkins,
Counsel for Defendant Carlos Patricio Luna.
MICHAEL J. DAVIS UNITED STATES DISTRICT COURT.
above-entitled matter comes before the Court on Defendant
Preston Forthun's appeal of Magistrate Judge Franklin L.
Noel's September 8, 2017 Order granting in part and
denying in part Forthun's Motion for a Bill of
Particulars. This Court will reverse a magistrate judge's
order on a nondispositive issue if it is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); D. Minn. L.R.
72.2(a). The Court has reviewed the submissions and the
record in this case and concludes that Magistrate Judge
Noel's September 8, 2017 Order is neither clearly
erroneous nor contrary to law. Furthermore, with regard to
the substantive mail and wire fraud counts, the First
Superseding Indictment sets forth the details for each count,
including the approximate date, the patient at issue, and the
relevant insurance company. Therefore, the September 8, 2017
Order is affirmed.
above-entitled matter also comes before the Court upon the
Report and Recommendation of United States Magistrate Judge
Franklin L. Noel dated September 8, 2017. Defendants Preston
Forthun, Carlos Luna, and Abdisalan Hussein filed objections
to the Report and Recommendation. A Second Superseding
Indictment was filed on September 19, 2017. However,
“as a general rule, the filing of a superseding
indictment does not have the effect of voiding previously
filed indictments in the same criminal case and that both an
original and a superseding indictment may co-exist prior to
the trial's commencement.” United States v.
White, No. 3:16-CR-00560-JMC-5, 2017 WL 1684860, at *3
(D.S.C. May 3, 2017) (citations omitted) (gathering cases);
see also United States v. Walker, 363 F.3d 711, 715
(8th Cir. 2004).
to statute, the Court has conducted a de novo review
upon the record. 28 U.S.C. § 636(b)(1); Local Rule
72.2(b). Based upon that review, the Court adopts in part and
modifies in part the Report and Recommendation of United
States Magistrate Judge Noel dated September 8, 2017.
the Court notes that the September 8 Report and
Recommendation repeatedly discusses the adequacy of a
conspiracy to commit health care fraud charge. However, the
First Superseding Indictment omits the conspiracy to commit
health care fraud count that was alleged in the original
Indictment. Additionally, the First Superseding Indictment
adds substantive mail and wire fraud counts that were not
alleged in the original Indictment. Thus, the Court amends
the Report and Recommendation as follows:
Section A of the Report and Recommendation, in the first
paragraph, the Court replaces “1342” with
Section C(1) of the Report and Recommendation, the Court
replaces all references to “conspiracy to commit health
care and mail fraud” with “conspiracy to commit
wire and mail fraud.” Furthermore, on page 7, the Court
notes that the citation to “ECF No. 1 ¶ 18”
corresponds to Docket No. 276 ¶ 13; the citation to
“ECF No. 1 ¶¶ 17, 18” corresponds to
Docket No. 276 ¶¶ 12, 13; and the citation to
“ECF No. 1 ¶ 22” corresponds to Docket No.
276 ¶ 17. The Court also adds the following paragraph to
the end of Section (C)(1):
are also charged with mail fraud and wire fraud. The Court
concludes that the First Superseding Indictment adequately
alleges that Defendants, with intent to defraud, used, or
caused to be used, interstate wire communications and the
mail or a commercial carrier, in furtherance of or in an
attempt to carry out the scheme described with regard to the
Section C(2) of the Report and Recommendation, the Court
deletes the second paragraph and replaces it with the
following two paragraphs:
are charged with engaging in a conspiracy to defraud
automobile insurance companies contemplating use of the mail
and wires. The Court concludes that the First Superseding
Indictment adequately alleges that Defendants knowingly and
willfully participated in a scheme to commit mail fraud or
wire fraud. The First Superseding Indictment accuses
Defendants of either paying patients directly or through
other co-Defendants to attend a certain number of treatment
sessions at Forthun's clinic. (First Superseding
Indictment ¶ 13.) Forthun is then accused of submitting
claims for these services to the ...