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, LLP,
Counsel for Defendant Preston Ellard Forthun.
Zayed, Dorsey & Whitney LLP, Counsel for Defendant
Abdisalan Abdulahab Hussein.
Charles L. Hawkins, Charles Hawkins Law, Counsel for
Defendant Carlos Patricio Luna.
MEMORANDUM OF LAW & ORDER
Michael J. Davis, Judge
matter is before the Court on Defendant Forthun's Motion
for Judgment of Acquittal Pursuant to Rule 29(c) of the
Federal Rules of Criminal Procedure [Docket No. 421];
Defendant Luna's Post-trial Motion for Judgment of
Acquittal [Docket No. 423]; and Defendant Hussein's
Renewed Motion for Judgment of Acquittal Pursuant to Fed. R.
Crim. P. 29 [Docket No. 425]. Because the Court concludes
that the evidence is sufficient for a reasonable jury to find
Defendants guilty of all Counts beyond a reasonable doubt,
Defendants' motions are denied.
Second Superseding Indictment charged Defendants Preston
Ellard Forthun, Abdisalan Abdulahab Hussein, and Carlos
Patricio Luna with Count 1: Conspiracy to Commit Mail Fraud
and Wire Fraud in violation of 18 U.S.C. § 1349 (all
Defendants); Counts 2-7: Mail Fraud in violation of 18 U.S.C.
§§ 2, 1341 (Counts 2-4: Forthun; Counts 5-6:
Forthun, Hussein; Count 7: Forthun, Luna); and Counts 8-14,
Wire Fraud in violation of 18 U.S.C. §§ 2, 1343
(Counts 8-11: Forthun; Counts 12-13: Forthun, Hussein; Count
14: Forthun, Luna). [Docket No. 332]
October 16, 2017, a jury found each Defendant guilty of all
counts against him. [Docket Nos. 393-95] During trial,
Forthun's former partner, chiropractor Darryl Humenny,
testified as a cooperating witness for the Government.
[Docket Nos. 363-64] All three Defendants now move for
judgment of acquittal.
Standard for Judgment of Acquittal
Federal Rule of Criminal Procedure 29(a), “the court on
the defendant's motion must enter a judgment of acquittal
of any offense for which the evidence is insufficient to
sustain a conviction.” In deciding the motion, the
Court does “not weigh the evidence or assess the
credibility of witnesses; that is the province of the
jury.” United States v. White, 794 F.3d 913,
918 (8th Cir. 2015). The Court views the evidence and all
reasonable inferences from it in the light most favorable to
the verdict. Id. “[D]rawing all reasonable
inferences in favor of the verdict, there must be an
interpretation of the evidence that would allow a reasonable
minded jury to find the defendant[ ] guilty beyond a
reasonable doubt.” Id. (citation omitted).
“This strict standard permits overturning a jury's
guilty verdict only if no reasonable jury could find the
defendant guilty beyond a reasonable doubt.”
misrepresentation or omission can only sustain a mail or wire
fraud conviction if it is material. See, e.g.,
United States v. Heppner, 519 F.3d 744, 748-49 (8th
Cir. 2008). “In general a falsehood is material if it
has a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which
it was addressed.” Id. at 749 (citation
omitted). As this Court instructed the jury:
A representation or promise is “material” if it
has a natural tendency to influence, or is capable of
influencing, the decision of a reasonable person in deciding
whether to engage or not to engage in a particular
transaction. However, whether a representation or promise is
“material” does not depend on whether the person
was actually deceived. You may only find a defendant guilty
if a misrepresentation involved was “material.”
If you ...