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United States v. Forthun

United States District Court, D. Minnesota

April 5, 2018

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, LLP, Counsel for Defendant Preston Ellard Forthun.

          R. J. 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

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         The 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]

         On 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.

         III. DISCUSSION

         A. Standard for Judgment of Acquittal

         Under 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.” Id.

         B. Materiality

         1. Materiality Standard

         A 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 ...

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