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United States v. Forthun

United States District Court, D. Minnesota

September 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
(1) PRESTON ELLARD FORTHUN, (5) ABDISALAN ABDULAHAB HUSSEIN, and (6) CARLOS PATRICIO LUNA, Defendants.

          John E. Kokkinen, Amber M. Brennan and David Michael Maria, Assistant United States Attorneys, Counsel for Plaintiff.

          Andrew S. Birrell and Ian S. Birrell, Gaskins Bennett Birrell Schupp, LLP, Counsel for Defendant Preston Ellard Forthun.

          R. J. 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.

          ORDER

          MICHAEL J. DAVIS UNITED STATES DISTRICT COURT.

         The 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.

         The 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).

         Pursuant 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.

         First, 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:

         In Section A of the Report and Recommendation, in the first paragraph, the Court replaces “1342” with “2.”

         In 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):

         “Defendants 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 conspiracy count.”

         In Section C(2) of the Report and Recommendation, the Court deletes the second paragraph and replaces it with the following two paragraphs:

         “Defendants 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 ...


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