United States District Court, D. Minnesota
Michael Maria and John E. Kokkinen, Assistant United States
Attorneys, Counsel for Plaintiff.
M. Scott, Kelley, Wolter & Scott, P.A., Counsel for
Defendant Huy Ngoc Nguyen.
W. Owens, Jr., Owens Law, L.L.C., Counsel for Defendant
Jerome Tarlve Doe.
Shannon R. Elkins, Office of the Federal Defender, Counsel
for Defendant Napoleon Tutex Deah.
William J. Mauzy and Kaitlin Ek, Mauzy Law PA, Counsel for
Defendant Mimi Huu Doan.
Patrick Garry, Ryan Garry, Attorney, LLC, Counsel for
Defendant Quincy Chettupally.
Michael J. Davis United States District Court
above-entitled matter comes before the Court upon the Report
and Recommendation of United States Magistrate Judge Franklin
L. Noel signed November 8, 2017. [Docket Nos. 195-199]
Defendants Huy Ngoc Nguyen, Jerome Tarlve Doe, Mimi Huu Doan,
and Quincy Chettupally filed objections to the Report and
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 the Report
and Recommendation of United States Magistrate Judge Noel
dated November 8, 2017, with the following modifications:
pages 2 and 3 of the Report and Recommendation, the citations
to 18 U.S.C. § “1342” are replaced with
citations to 18 U.S.C. § “2.” On pages 4 and
5 of the Report and Recommendation, the Court deletes the
dates listed for counts 9 through 12 and replaces them with
the following dates: for Count 9: “02/18/2015;”
for Count 10: “05/01/2015;” for Count 11:
“05/23/2016;” and for Count 12:
6 of the Report and Recommendation, the Court deletes the
following sentence: “The offense of conspiracy consists
of an agreement between the conspirators to commit an
offense, with at least one overt act to further the purposes
of the conspiracy. See 18 U.S.C § 371;
United States v. Pelton, 578 F.2d 701, 711 (8th Cir.
1978).” The Court replaces that sentence with the
following: “The Superseding Indictment charges a
conspiracy under 18 U.S.C. § 1349. “[A] conspiracy
conviction under § 1349 does not require proof of an
overt act.” United States v. Roy, 783 F.3d
418, 420 (2d Cir. 2015). See also Eighth Circuit
Manual of Model Jury Instructions (Criminal) (2014) §
5.06A-1 n.2. The elements of conspiracy are “that (1) a
conspiracy existed; (2) the defendant knew of it; and (3) the
defendant knowingly and voluntarily joined it.”
United States v. Bergman, 852 F.3d 1046, 1065 (11th
Cir. 2017) (citation omitted).”
before the Court are Defendants Huy Ngoc Nguyen's, Mimi
Huu Doan's, and Quincy Chettupally's appeals of
Magistrate Judge Noel's November 16, 2017 Order denying
the motions to strike surplusage, denying in part the motions
for a bill of particulars, and denying the motion to sever.
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 November
16, 2017 Order is neither clearly erroneous nor contrary to
law. Therefore, the November 16, 2017 Order is affirmed.
based upon the files, records, and proceedings
herein, IT IS HEREBY ORDERED:
Court ADOPTS the Report and Recommendation
of United States Magistrate Judge Franklin L. Noel signed
November 8, 2017 [Docket Nos. ...