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United States v. Huynh

United States District Court, M.D. Pennsylvania

December 22, 2016

UNITED STATES OF AMERICA
v.
THUNG VAN HUYNH, Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Before the court are defendant Thung Van Huynh's counseled Motidrf to Dismiss Count One as Duplicitous, (Doc. 142), Motion to Change Venue, (Doc. 144), as well as his Motion in Limine, (Doc. 146).[1] Defendant Huynh claims that Count One of the Superseding Indictment should be dismissed because it joins two offenses as objects of the same conspiracy, that he is entitled to have the venue of his case transferred to the Central District of California, and that any reference to individuals or entities as victims in this case should be precluded at trial. For the reasons set forth below, the court will deny all three motions.

         By way of relevant background, on November 12, 2015, defendant Huynh along with three others were indicted and charged in a Superseding indictment with conspiracy to commit wire and bank fraud in violation of 18 U.S.C. §1349, (Count One), wire fraud in violation of 18 U.S.C. §1343, (Counts Two and Three), conspiracy to commit fraud in connection with identification documents in violation of 18 U.S.C. §1028(f), (Count Four), and aggravated identity theft in violation of 18 U.S.C. §1028A(a)(1), (Count Five). (Doc. 54)-[2]

         On March 23, 2016, defendant Huynh was arraigned and pled not guilty to all counts of the Superseding Indictment. (Doc. 88). The defendant was then detained. (Doc. 89).

         On October 21, 2016, defendant Huynh filed a Motion to Dismiss Count One of the Superseding Indictment as Duplicitous, (Doc. 142), and his brief in support of his motion, (Doc. 143). Also, on October 21, 2016, defendant Huynh filed a Motion to Change Venue, (Doc. 144), and his brief in support, (Doc. 145). as well as his Motion in Limine, (Doc. 146). and brief in support, (Doc. 147).

         After being granted an extension of time, the government filed its briefs in opposition to defendant Huynh's motions on December 1, 5 and 7, 2016. (Doc. 154, Doc. 155, Doc. 156).

         On December 15, 2016, Huynh filed a reply brief regarding his Motion to Change Venue. (Doc. 159). On December 19, 2016, Huynh filed a reply brief regarding his Motion to Dismiss Count One of the Superseding Indictment. (Doc. 160). The court has assumed that the defendant chose not to file a reply brief in relation to his Motion in Limine, since the deadline for doing so has passed pursuant to MDPA LR 7.7.

         I. Motion to Dismiss Count One

         The court will first address defendant Huynh's Motion to Dismiss Count One of the Superseding Indictment as Duplicitous. (Doc. 142). Defendant filed his motion under Fed.R.Crim.P. 8(a) and argues it should be dismissed because it joins two offenses, namely, wire fraud and bank fraud, as objects of the same conspiracy which was charged under 18 U.S.C. §1349. The objects alleged by the conspiracy count (Count One) included wire fraud which affected financial institutions in violation of 18 U.S.C. §1343 and bank fraud in violation of 18 U.S.C. §1344.

         Rule 8(a) provides that "[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged- [] - are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." In U.S. v. Rigas, 605 F.3d 194, 210 (3d Cir. 2010), the Third Circuit stated:

Duplicity is the improper joining of distinct and separate offenses in a single count. Duplicitous counts may conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial evidentiary rulings, or endanger fair sentencing. U.S. v. Haddy, 134 F.3d 542, 548 (3d Cir. 1998) (internal citations omitted). An impermissibly duplicitous indictment is subject to dismissal.

See also U.S. v. Sourlis, 953 F.Supp. 568, 572 (D.N.J. 1996)(quoting U.S. v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)) ("Duplicity is the joining in a single count of two or more distinct and separate offenses.").

         "An indictment is not duplicitous in cases where the indictment does not charge different offenses in the same count, but instead charges different methods of completing the same offense." Sourlis, 953 F.Supp. at 572. In fact, Fed.R.Crim.P. 7(c)(1) "authorize[s] charging two different methods of committing a crime in a single count." Id. Further, the court in Sourlis, 953 F.Supp. at 572, stated:

When considering whether duplicity exists within an indictment, a court's review is limited because "the task is not to review the evidence ... to determine whether it would support charging several crimes rather than just one, but rather solely to assess whether the indictment itself can be read to charge only one violation in each count." United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983). "The question for review is simply whether the indictment may be read to allege a single unified scheme in each count." Id.

         "In deciding a motion to dismiss, [the court] must accept factual allegations [in the Indictment as true] and disregard legal conclusions to determine whether the alleged facts constitute a crime." U.S. v. Harder, 168

         A

         F.Supp.3d 732, 737 (E.D.Pa. 2016)(citing U.S. v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988)). Also, the court "must dismiss counts based on a statutory misinterpretation." Id. at 738 (citing U.S. v. Enmons, 410 U.S. 396, 93 S.Ct. 1007 (1973) ("dismissing indictment when statute does not proscribe the conduct charged"); U.S. v. Ferriero, 2015 WL 225806, *5 (D.N.J. Jan. 15, 2015)("a district court must find that 'a charging document fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'")(citations omitted). "A motion to dismiss is 'not a permissible ...


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