United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
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). 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.
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.
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).
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).
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).
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.
Motion to Dismiss Count One
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.
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
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.
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
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 ...