United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court are defendants Cindy Nguyen and Victoria
Truong's (defendants) motion to dismiss count two of the
indictment (Dkt. ## 272, 277) and motion for severance (Dkt.
7, 2016, a grand jury returned an indictment charging nine
defendants with money laundering conspiracy (count
one), in violation of 18 U.S.C. §§ 1956(h) and
1956(a)(1), and drug conspiracy (count two), in violation of
21 U.S.C. §§ 846, 841(b)(1)(B)(vii). Dkt. # 2. With
respect to these two defendants, the government alleges that
they participated in the conspiracies to launder money and
distribute drugs in that they permitted defendant Do, the
alleged leader of the conspiracies, to “deposit
proceeds derived from the distribution of marijuana”
into their checking accounts and subsequently made
withdrawals of these monies. Id. at 9, 10, 19, 20.
Specifically, the government alleges that defendant
Truong's bank account, between April 4 and June 10, 2013,
received eight deposits derived from the distribution of
marijuana, totaling approximately $64, 000, and showed seven
withdrawals, totaling $55, 900; and defendant Cindy
Nguyen's bank account, between February 12 and October
31, 2013, received nineteen deposits derived from the
distribution of marijuana, totaling $161, 000, and showed
fourteen withdrawals, totaling $106, 095. Id.; Dkt.
# 295, at 2. In addition, the government alleges,
Defendant Victoria Truong has admitted that she opened the
account at the direction of Defendant Phong Do. She also
explained that she would give Phong Do the deposited money
and there were instances when Truong and Phong Do would go to
the bank together to withdraw the deposited money.
Prior to Cindy Nguyen joining the Money Laundering Conspiracy
from December 2011 through February 2013, one of her Bank of
America accounts used to launder money only had a balance of
In March 2013, Cindy Nguyen started receiving money
laundering deposits. Aside from the laundered money, the only
deposits she made to the account were some small (less then
$100) ATM deposits. Cindy Nguyen's accounts also reflect
deposits for approximately $500 from what appears to be her
employer at the time . . . . Since the money laundering
deposits stopped, Cindy Nguyen's account has maintained
about $1, 000 of activity in and out each month.
Throughout their participation in the conspiracies, Victoria
Truong and Cindy Nguyen were room-mates [sic].
Id. at 2-3.
November 27, 2017, defendants filed a motion to dismiss count
two of the indictment (Dkt. ## 272, 277) and a motion for
severance (Dkt. # 275).
Defendants' Motion to Dismiss Count Two of the
argue that count two of the indictment should be dismissed as
to them because “[t[here is no evidence which connects
[them] to the possession or distribution of marijuana.”
Dkt. ## 272, 277, at 6. The government responds that the
money laundering and marijuana conspiracies are interrelated,
and that it will present evidence that defendants
“participat[ed] in both.” Dkt. # 295, at 4-5.
indictment is sufficient if it sets forth the elements of the
offense charged, puts the defendant on fair notice of the
charges against which he must defend, and enables the
defendant to assert a double jeopardy defense.”
United States v. Todd, 446 F.3d 1062, 1067 (10th
Cir. 2006) (quoting United States v. Dashney, 117
F.3d 1197, 1205 (10th Cir. 1997)). An indictment may not be
challenged based on the strength or weakness of the
government's case, but only on whether the allegations,
if taken as true, support an indictment. Id. A very
narrow exception to the rule against assessing the factual
underpinnings of an indictment exists when undisputed facts
establish that, “as a matter of law, the government is
incapable of proving its case beyond a reasonable
doubt.” Id. (quoting United States v.
Hall, 20 F.3d 1084, 1088 (10th Cir. 1994)).
“Dismissals under this exception are not made on
account of a lack of evidence to support the government's
case, but because undisputed evidence shows that, as a matter
of law, the Defendant could not have committed the offense
for which he was charged.” Todd, 446 F.3d at
1068. See e.g., Hall, 20 F.3d at 1085-86
(indictment dismissed where defendant was charged with
knowingly using a pistol during a drug trafficking offense
but offered undisputed evidence that he was not present when
drugs were found in his home); United States v.
Brown, 925 F.2d 1301, 1305 (10th Cir. 1991) (indictment
dismissed where government admitted that it could not provide
evidence demonstrating that stolen intellectual property
involved stolen physical goods and statute at issue required
such a showing).
prove a conspiracy, the government must show that ‘(1)
two or more persons agreed to violate the law; (2) the
defendant knew the essential objectives of the conspiracy;
(3) the defendant knowingly and voluntarily participated in
the conspiracy; and (4) the alleged coconspirators were
interdependent.'” United States v.
Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011)
(quoting United States v. Yehling, 456 F.3d 1236,
1240 (10th Cir. 2006)). “An agreement constituting a
conspiracy may be inferred from the acts of the parties and
other circumstantial evidence ...