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United States v. Jones

United States District Court, W.D. Tennessee, Western Division

September 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES A. “CHUCK” JONES and MARK J. WHITAKER, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          MARK S. NORRIS UNITED STATES DISTRICT JUDGE

         Before the Court is the Magistrate Judge Tu M. Pham’s (ECF No. 64) Report and Recommendation (“Report”) on Defendant Charles Jones’s Motion to Dismiss the Indictment (ECF No. 30). Defendant Mark Whitaker joined Mr. Jones’s Motion to Dismiss on June 27, 2019. (ECF Nos. 58;62.) The Report recommends that the Court deny Defendants’ Motion. (ECF No. 64.) Mr. Jones filed an Objection to the Report on August 22, 2019 (“Objection”). (ECF No. 65.) The Government timely responded to Mr. Jones’s Objection on September 5, 2019. (ECF No. 66.) Mr. Jones filed a Reply to the Government’s Response on September 18, 2019. (ECF No. 67.) For the following reasons, Mr. Jones’s Objection is OVERRULED. The Report is ADOPTED and Defendants’ Motion to Dismiss (ECF No. 30) is DENIED.

         FACTUAL HISTORY

         For the purposes of this review, the Magistrate Judge accurately summarized the facts of this case. In pertinent part, this case concerns criminal charges against Defendants for conspiracy to commit wire fraud and charges against Mr. Jones for three counts of wire fraud following Defendants’ submission of inaccurate documentation to the Federal Communication Commission’s E-Rate Program. Mr. Jones filed an Objection to the Magistrate Judge’s Report; however, none of the claims or objections therein appear to relate specifically to the Magistrate Judge’s proposed factual findings.[1] Therefore, the Court adopts the factual findings of the Report.

         STANDARD OF REVIEW

         Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to magistrate judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70 (1989)); see also Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the evidence, the court is free to accept, reject, or modify the magistrate judge’s proposed findings or recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review-under a de novo or any other standard-those aspects of the report and recommendation to which no objection is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge’s findings and rulings to which no specific objection is filed. See Id . at 151.

         Objections to any part of a magistrate judge's disposition “must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is to “focus attention on those issues . . . that are at the heart of the parties' dispute.”). Each objection to the Magistrate Judge's recommendation should include how the analysis is wrong, why it was wrong, and how de novo review will obtain a different result on that particular issue. See Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         A general objection, or one that merely restates the arguments previously presented and addressed by the Magistrate Judge, does not sufficiently identify alleged errors in the Report and Recommendation. Id. When an objection reiterates the arguments presented to the Magistrate Judge, the Report and Recommendation should be reviewed for clear error. Verdone v. Comm'r of Soc. Sec., No. 16-CV-14178, 2018 WL 1516918, at *2 (E.D. Mich. Mar. 28, 2018) (citing Ramirez v. United States, 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012)); Equal Employment Opportunity Comm'n v. Dolgencorp, LLC, 277 F.Supp. 3d 932, 965 (E.D. Tenn. 2017).

         ANALYSIS

         The Indictment charges both Defendants with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count 1). (ECF No. 2 at PageID 18–19.) Mr. Jones is charged with three counts of wire fraud affecting a financial institution in violation of 18 U.S.C. § 1343 (Counts 2– 4). (Id. at PageID 19–21.) The elements of wire fraud are: 1) a scheme to defraud; 2) use of an interstate wire communication in furtherance of the scheme; and 3) intent to deprive a victim of money or property. See United States v. Prince, 214 F.3d 740, 747–48 (6th Cir. 2000).

         Mr. Jones objects to the Magistrate Judge’s finding that the Indictment sufficiently alleges the third element: Defendants’ intent to deprive an entity of money or property. (ECF No. 65 at PageID 378.) The gravamen of Mr. Jones’s Objection lies with the Magistrate Judge’s finding that the holding and reasoning in United States v. Sadler, 750 F.3d 585 (6th Cir. 2014) is inapplicable to the case at bar. (Id. at PageID 378–82.) In the Report, Magistrate Judge Pham opines Sadler is distinguishable to the present case for three reasons. First, Sadler procedurally differs from the present case because it involved a sufficiency-of-the-evidence review post-trial, whereas Jones’s motion seeks pre-trial dismissal of the indictment. (ECF No. 64 at PageID 359-60.) Second, the Report found the Sadler decision to be in tension with prior published Sixth Circuit case law citing to United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) and United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997). (Id. at PageID 360–61.) Third, case law from the Sixth Circuit and from other jurisdictions addressing challenges to wire fraud schemes similar to those alleged in the Indictment found said schemes to fall within the wire fraud statute. (Id. at PageID 361–66.)

         With respect to the first reason, Mr. Jones objects to the Magistrate Judge’s reading of United States v. Olive, 804 F.3d 747, 753 (6th Cir. 2015) and United States v. Galecki, 2018 WL 7018192, at *13 (D. Nev. June 15, 2018). (ECF No. 65 at PageID 383.) However, the Court reviewed both cases and finds the Report accurately cites to Olive and Galecki for the proposition that courts use different standards of review to analyze the sufficiency of language in an indictment on a motion to dismiss versus a sufficiency-of-the-evidence review post-trial. Accordingly, this objection is OVERRULED.

         Next, Mr. Jones objects to the Magistrate Judge’s reliance on two Sixth Circuit cases preceding Sadler: United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) and United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997). Mr. Jones avers:

In both [McAuliffe and Frost], the defendants engaged in a transaction which resulted in obtaining money and property they did not earn. . . . In Sadler, though, as in this case, the defendants received only the benefit of the bargain they struck. Frost and McAuliffe did not bar Sadler’s decision in favor of the ...

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