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United States v. Nguyen

United States District Court, N.D. Oklahoma

December 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CINDY NGUYEN, and VICTORIA TRUONG, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         Now 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. # 275).

         On June 7, 2016, a grand jury returned an indictment charging nine defendants[1] 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 $6.25.
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.

         On November 27, 2017, defendants filed a motion to dismiss count two of the indictment (Dkt. ## 272, 277) and a motion for severance (Dkt. # 275).

         I. Defendants' Motion to Dismiss Count Two of the Indictment

         Defendants 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.

         i.

         “An 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).

         “To 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 ...


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