United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
S. NORRIS UNITED STATES DISTRICT JUDGE
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.
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. Therefore, the Court adopts the factual
findings of the Report.
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.
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).
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.
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
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.)
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
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 ...