United States District Court, D. Minnesota
J. MacLaughlin and Benjamin F. Langner, Assistant United
States Attorneys, United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
P. Gray, Esq., Earl Gray Defense, St. Paul, MN, and Paul C.
Engh, Esq., Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Scott Phillip Flynn's
(“Flynn”) Objections [Docket No. 74] to
Magistrate Judge Katherine Menendez's August 11, 2017
Report and Recommendation [Docket No. 62]
(“R&R”). In the R&R, Judge Menendez
recommends denying Flynn's Motion to Dismiss [Docket No.
22] and Motion to Suppress Statements [Docket No. 31]. For
the reasons set forth below, the Objections are overruled.
December 21, 2016, Flynn was charged in a multi-count
Indictment with conspiracy to defraud the United States, tax
evasion, and filing false tax returns. See generally
Indictment [Docket No. 1]. On April 14, 2017, Flynn filed a
Motion to Dismiss, arguing that several counts in the
Indictment are barred by the statute of limitations. Also on
April 14, Flynn filed a Motion to Suppress Statements made to
IRS agents while the agents were conducting a search of his
residence. Flynn has filed Objections to the R&R which
recommended that his Motions be denied.
Standard of Review
district judge may refer a defendant's motion to dismiss
an indictment or motion to suppress evidence to a magistrate
judge for recommendation. Fed. R. Crim. P. 59(b)(1). The
district judge must make an independent, de novo
determination of those portions of the report and
recommendation to which a party objects. Fed. R. Crim. P.
59(b)(3); 28 U.S.C. § 636(b)(1)(C); D. Minn. L.R.
72.2(b). A district judge “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
Motion to Dismiss Flynn argues that Counts 3 through
5 of the First Superseding Indictment [Docket No. 64], which
charge filing false tax returns for the years 2007, 2008, and
2009, must be dismissed as time-barred. The Court disagrees.
the statute of limitations for filing false tax returns is
six years. 26 U.S.C. § 6531. However, under 18 U.S.C.
§ 3292, the statute of limitations may be suspended for
up to three years in cases where there is an international
investigation in progress. Section 3292 provides in relevant
(a)(1) Upon application of the United States, filed before
return of an indictment, indicating that evidence of an
offense is in a foreign country, the district court before
which a grand jury is impaneled to investigate the offense
shall suspend the running of the statute of limitations for
the offense if the court finds by a preponderance of the
evidence that an official request has been made for such
evidence and that it reasonably appears, or reasonably
appeared at the time the request was made, that such evidence
is, or was, in such foreign country. . . .
(b) Except as provided in subsection (c) of this section, a
period of suspension under this section shall begin on the
date on which the official request is made and end on the
date on which the foreign court ...