U.S. v. Hughson

• Decision Date: 17 May 2007
• Docket Number: Criminal No. 07-51 (DSD/RLE).
• Citation: 488 F.Supp.2d 835
• Parties: UNITED STATES of America, Plaintiff, v. Dean D. HUGHSON, Defendant.
• Court: U.S. District Court — District of Minnesota

488 F.Supp.2d 835

UNITED STATES of America, Plaintiff, v.Dean D. HUGHSON, Defendant.

Criminal No. 07-51 (DSD/RLE).

United States District Court, D. Minnesota.

May 17, 2007.

COPYRIGHT MATERIAL OMITTED

Robert M. Lewis, U.S. Attorney, Minneapolis, MN, for Plaintiff.

ORDER

DOTY, District Judge.

This matter is before the court upon defendant's objections to the report and recommendation of Magistrate Judge Raymond L. Erickson, dated April 26, 2007.In his report, the magistrate judge recommended that defendant's motion to dismiss the indictment be denied.Following a de novo review of the magistrate judge's findings and recommendations, 28 U.S.C. § 636(b)(1)(C), the court adopts the report and recommendation.

DISCUSSION

On March 7, 2005, defendantDean D. Hughson testified before a United States grand jury regarding allegations of potential bank fraud.Based on portions of his grand jury testimony, Hughson was indicted for obstruction of justice and perjury in violation of 18 U.S.C. §§ 1512(c)and1623.Defendant moved to dismiss the indictment based on the Supreme Court's holding in Bronston v. United States that problems "arising from the literally true but unresponsive answer are to be remedied through the `questioner's acuity' and not by a federal perjury prosecution."409 U.S. 352, 362, 93 S.Ct. 595, 34 L.Ed.2d 568(1973).The magistrate judge determined that the pretrial dismissal of the indictment based on the nature and context of the questioning at issue would be premature, the perjury count is not duplicitous and the government's alleged failure to follow internal guidelines regarding individuals targeted for perjury does not require dismissal of the indictment.

Defendant objects, arguing that the confusing, ambiguous and imprecise nature of the questions defendant answered require pretrial dismissal of the counts against him."Precise questioning is imperative as a predicate for the offense of perjury."Id.However, the "intended meaning of a question and answer are matters for the jury to decide."United States v. Williams,552 F.2d 226, 229(8th Cir.1977);see alsoUnited States v. Hirsch,360 F.3d 860, 863(8th Cir.2004).Upon a review of defendant's testimony before the grand jury, the question-and-answer segments for which defendant was charged with perjury and obstruction of justice and the elements of each offense, the court finds that the questioning and testimony are not so fundamentally vague or ambiguous to warrant pretrial dismissal of the charges as a matter of law.

Defendant further objects to the magistrate judge's determination that count one of the indictment is not duplicitous.An indictment is duplicitous if the government joins two distinct and separate offenses in a single count.SeeUnited States v. Sarihifard,155 F.3d 301, 310(4th Cir.1998)(distinguishing elements of offense of perjury with instances of conduct of perjury).In this case, the government has not joined distinct offenses in a single count.Rather, count one identifies six statements that constitute separate instances of conduct formulating the basis for a single count of perjury.Furthermore the magistrate judge correctly reasoned that the use of a special verdict form would ensure that a jury unanimously agrees as to which, if any, statements are determined to constitute perjury.¹

Lastly, defendant provides the court no legal authority to support his argument that the government's failure to follow internal policies warrants dismissal of the charges against him.

For these reasons, following a de novo review of the file and record, the court adopts the report and recommendation of the magistrate judge [DocketNo. 27].

CONCLUSION

Therefore, IT IS HEREBY ORDERED that defendant's motion to dismiss the indictment[DocketNo. 10] is denied.

REPORT AND RECOMMENDATION

ERICKSON, United States Chief Magistrate Judge.

I.Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Motion of the DefendantDean D. Hughson("Hughson") to Dismiss the Indictment.

A Hearing on the Motion was conducted on April 12, 2007, at which time, Hughson appeared personally, and by Paul C. Engh, Esq.; and the Government appeared by Robert M. Lewis, Assistant United States Attorney.

For reasons which follow, we recommend that Hughson's Motion be denied.

II.Factual Background

Hughson is charged with one Count of Perjury, in violation of Title 18 U.S.C. § 1623; and one Count of Obstruction of Justice, in violation of Title 18 U.S.C. § 1512(c).The events which gave rise to the charges are alleged to have occurred on or about March 7, 2005, and all of the events are alleged to have occurred in this State and District.As pertinent to those charges, and to the Motions now before us, the operative facts may be briefly summarized.¹

On March 7, 2005, Hughson testified before a United States Grand Jury, which was convened in St. Paul, Minnesota.[T. 2].Hughson was informed that the Grand Jury was conducting an investigation of possible violations of Federal criminal laws and, in particular, of bank fraud.[T. 3].Prior to his offer of testimony, Hughson was advised of his rights under the Fifth and Sixth Amendments to the United States Constitution.Id.Upon affirming that he understood those rights, Hughson advised that he had conferred with counsel, but had not retained a lawyer on his behalf.Id.

After some preliminary questions, Hughson was asked about his familiarity with the "egg business."[T. 4].He responded that he had been involved in the egg business since 1978, and testified as to his experiences within the industry.[T. 4-12]. .He was then asked about the creation of T.H. Transportation ("THT"), which is a business entity that Hughson, and Norm Thompson("Thompson"), had formed.[T. 12].Hughson testified that THT eventually experienced financial difficulties, as a result of Thompson's inability to "say no" to D.B. Foods ("DBF"), and that THT couldn't pay its bills because "the accountant couldn't figure out the problem."[T. 15-17].Hughson stated that DBF owed THT significant amounts of money, and detrimentally impacted upon THT's operative cash flow.[T. 17].Hughson was then asked about the amounts of money that DBF owed THT, and he responded as follows:

You know everything looked really good but it was — first off, they had the books apparently completely messed up, you, know, the bookkeeper.[Thompson] is not a bookkeeper, you know the bookkeeper is the one doing it.And I you know contacted the CPA which is the person that did the annual books and asked them.They looked at it only couldn't figure it out.

[T. 18-19].

Then, Hughson was asked whether he had spoken with Thompson concerning the problem with DBF.[T. 17-20].He confirmed that he had, which prompted a question as to what Thompson said was "the cause for that whole financial problem."[T. 20].In response, Hughson stated: "He didn't know, and I honestly believe that he didn't."Id.As a follow-up question, Hughson was asked if it was "fair to say that [he did] not know and can't talk about what happened to lead to the financial trouble with [DBF] besides what you've already said, the name changes and changes in ownership with [DBF] and [Thompson's] lack of business ability."Id.In response, Hughson testified that it would be "difficult to say [so] beyond a shadow of a doubt."Id.

Later, Hughson testified that he lacked any direct knowledge of Thompson's business operations after the collapse of THT in the fall of 2001, as he"wasn't involved in his business or with the peoplehe was involved with."[T. 25].Further, he stated that he was aware of rumors that Thompson was experiencing trouble paying his bills, and was continuing to work with DBF.[T. 25-29].The following exchange followed:

Q: Do you have any reason to think that Norm Thompson was going into business with D.B. Foods as an active investor in the company?

A: To be honest with you if I saw it with my own eyes at this point I'd disbelieve it because — well first off, it later turned out, which I verified for my own self, later turned out that the people running D.B. Foods didn't own D.B. Foods, and that's why that there was an overnight takeover.

[T. 29-30].

Hughson was subsequently asked about THT's corporate structure, and whether he had received any compensation for any work that he had performed "trying to work out these deals with D.B. Brown," or "working on the issue between [THT] and [DBF]."[T. 32-33].In response, Hughson stated that he had not, and "[t]here was no money paid to anyone."[T. 33].

Hughson then testified that the accountant, who had examined the finances of THT, could not find a problem, which would explain why THT was experiencing financial difficulties, without completely "redoing" the books.[T. 34].The following exchange then occurred:

Q: Is it possible that the problem that T.H., that drove T.H. under was not the debt owed by D.B. Foods but something else?

A: Well it wasn't just D.B. Foods, but that was symptomatic of the problem was that they couldn't explain that.They couldn't explain the billing system.You couldn't tell if — and then when, when they, when Norm Thompson was unable to make some of the payment, then immediately there were other people who quit paying their bills.

Q: Can you explain to me more what you mean you couldn't explain the billing system?How did that create financial difficulties for T.H.?

A: Well, you couldn't explain — if you could say well the problem is that your prices, you're 5 percent too cheap on your trucking costs, you know, you're charging 5 percent too little or whatever, well then you can immediately fix it.You would know that you're too cheap or whatever but you couldn't explain it because they couldn't understand the books.The books showed the company was...