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United States v. Hernandez

United States District Court, N.D. Iowa, Western Division

March 4, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
INGMAR HERNANDEZ, Defendant

Order Filed: January 21, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For U.S. Probation, Interested Party: usp Notify, LEAD ATTORNEY.

For Levon Varne Dean, Sr., also known as Lee Dean, Defendant: Matthew Reed Metzgar, LEAD ATTORNEY, Rhinehart Law, P.C., Sioux City, IA.

For Steffen Dean, Defendant: Patrick Thomas Parry, LEAD ATTORNEY, Forker & Parry, Sioux City, IA.

For Kimberly Smith, Defendant: Rees Conrad Douglas, LEAD ATTORNEY, Sioux City, IA.

For Monica Rocha-Contreras, Defendant: Priscilla Elizabeth Forsyth, LEAD ATTORNEY, Attorney at Law, Sioux City, IA.

For Evette Morris-Hernandez, Defendant: Pamela A Wingert, LEAD ATTORNEY, Spirit Lake, IA.

For Esteban Hernandez, Defendant: Horacio J Wheelock, LEAD ATTORNEY, Horacio Wheelock Law Offices, PC, LLO, Omaha, NE.

For Anna Baker, Defendant: Bradley Ryan Hansen, LEAD ATTORNEY, Federal Public Defender's Office, Sioux City, IA.

For Ingmar Hernandez, Defendant: John ¶ Greer, LEAD ATTORNEY, Greer Law Office, Spencer, IA.

For USA, Plaintiff: Forde Fairchild, LEAD ATTORNEY, Assistant U.S. Attorney, Sioux City, IA.

Page 817

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING MOTION TO DISMISS

MARK W. BENNETT, UNITED STATES DISTRICT JUDGE.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND

II. LEGAL ANALYSIS

A. Standard Of Review

B. Objections To Report and Recommendation

1. Conspiring to defraud the United States

2. Target of conspiracy

III. CONCLUSION

I. INTRODUCTION AND BACKGROUND

In a seventeen-count Indictment returned on November 20, 2014, defendant Ingmar Hernandez is charged with conspiring to obstruct justice, in violation of 18 U.S.C. § 371.[1] Specifically, the Indictment alleges, in pertinent part, that:

10. On April, 29, 2013, LEVON VARNE DEAN SR., (A/K/A LEE DEAN), STEFFAN DEAN, KIMBERLY SMITH, MONICA ROCHA-CONTRERAS, EVETTE MORRIS-HERNANDEZ, ESTEBAN HERNANDEZ, ANNA BAKER, and INGMAR HERNADEZ [sic], all learned federal authorities were searching for Jamal Dean before they completed their interaction with Jamal Dean on or about April 29, 2013.[2]
. . . .

THE OBJECTS OF THE CONSPIRACY

13. From on or about April 29, 2013, and continuing until about September 1, 2013, within the Northern District of Iowa and elsewhere, Jamal Dean and defendants, LEVON DEAN SR., (A/K/A LEE DEAN), STEFFAN DEAN, KIMBERLY SMITH, MONICA ROCHA-CONTRERAS, EVETTE MORRIS-HERNANDEZ, ESTEBAN HERNANDEZ, ANNA BAKER, and INGMAR HERNADEZ, and others known and unknown to the grand jury, knowingly and willfully conspired and agreed together and with each other, (and with other persons both known and unknown to the grand jury), to defraud the United States of and concerning its governmental functions and rights, hereafter described, that is: they conspired to interfere with and obstruct legitimate governmental activities of the United States Department of Justice (e.g., the United States Marshals Service (" USMS" ) and the Bureau of Alcohol, Tobacco, Firearms,

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and Explosives (" ATF" )) by interfering with and obstructing the federal investigation into the events of April 29, 2013, and the federal effort to assist in the apprehension of Jamal Dean, by deceit, craft, trickery, and by means that were dishonest.

THE MANNER AND MEANS OF THE CONSPIRACY

14. It was a part of the conspiracy that the defendants would by deceit, craft, trickery and dishonest means, defraud the United States by interfering with and obstructing the lawful governmental functions of the United States Department of Justice (e.g., the USMS and ATF) in that the defendants would receive, relieve, comfort, assist, and conceal Jamal Dean in his attempt to avoid capture and questioning.
15. It was further a part of the conspiracy that the defendants would make materially false, fictitious, and fraudulent statements or representations to the United States Department of Justice (e.g., the United States Marshals Service and the Bureau of Alcohol, Tobacco, Firearms, and Explosives).
16. It was still further a part of the conspiracy that the defendants would alter, destroy, mutilate, conceal, cover up, falsify, or make false entry in any record, document, or tangible object.

OVERT ACTS

17. In furtherance of the conspiracy and to affect the objects of the conspiracy, the following overt acts, among others, were committed in the Northern District of Iowa and elsewhere:

Before Arrest of Jamal Dean

. . . .
H. On or about April 29, 2013, Jamal Dean used KIMBERLY SMITH'S and STEFFAN DEAN'S home phone to Call [sic] INGMAR HERNANDEZ and arranged for his (i.e., Jamal Dean's) transportation from KIMBERLY SMITH'S and STEFFAN DEAN'S home in Sioux City, Iowa to South Sioux City, Nebraska.
I. On or about April 29, 2013, MONICA ROCHACONTRERAS and INGMAR HERNADEZ picked-up Jamal Dean from KIMBERLY SMITH and STEFFAN DEAN'S home in a black 2003 Cadillac sedan.
J. On or about April 29, 2013, MONICA-ROCHA CONTRERAS and INGMAR HERNADEZ transported Jamal Dean from KIMBERLY SMITH'S and STEFFAN DEAN'S home to South Sioux City, Nebraska.
K. On or about April 29, 2013, MONICA ROCHACONTRERAS and INGMAR HERNADEZ transported Jamal Dean to a location near West 7th Street in South Sioux City, Nebraska.
L. On or about April 29, 2013, an unnamed conspirator known to the grand jury and Jamal Dean walked from a location near West 7th Street, South Sioux City, Nebraska to the home of an unnamed conspirator know to the grand jury near 5th Avenue in South Sioux City, Nebraska.
M. On or about April 30, 2013, one or more conspirators arranged for the transportation of Jamal Dean from the residence near 5th Avenue South Sioux City, Nebraska to ANNA BAKER'S home on the Winnebago Reservation in Winnebago, Nebraska.
N. On or about April 30, 2013, EVETTE MORRISHERNANDEZ and ESTEBAN HERNANDEZ picked-up Jamal Dean and INGMAR HERNADEZ at the residence near 5th Avenue South Sioux City, Nebraska in a 1999 Dodge Durango sports utility vehicle.
O. On or about April 30, 2013, EVETTE MORRISHERNANDEZ and

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ESTEBAN HERNANDEZ transported Jamal Dean from the residence near 5th Avenue, South Sioux City, Nebraska to ANNA BAKER'S home on the Winnebago Reservation, in Winnebago, Nebraska.
P. On or about April 30, 2013, ANNA BAKER welcomed EVETTE MORRIS-HERNANDEZ, ESTEBAN HERNANDEZ, INGMAR HERNADEZ, and Jamal Dean into her home on the Winnebago Reservation in Winnebago, Nebraska.
Q. On or about April 30, 2013, ANNA BAKER, EVETTE MORRIS-HERNANDEZ, ESTEBAN HERNANDEZ, INGMAR HERNADEZ, and Jamal Dean discussed the shooting and what JAMAL DEAN'S next step should be.

Indictment at 4-9.

Hernandez has filed a motion to dismiss. In his motion, Hernandez argues that, even if the allegations in the Indictment are assumed to be true, the Indictment fails to state a § 371 violation against him because his alleged actions did not target or defraud the United States. The prosecution filed a timely resistance to Hernandez's motion. The prosecution contends that the factual allegations in the Indictment state a viable § 371 violation against Hernandez.

Hernandez's motion to dismiss was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). Judge Strand has filed a Report and Recommendation in which he recommends that Hernandez's motion to dismiss be denied. Judge Strand concluded that, accepting all of the allegations in the Indictment as true, the Indictment sufficiently describes a conspiracy that targeted the United States and of which Hernandez was a co-conspirator. Judge Strand also concluded that the Indictment's allegations against Hernandez sufficiently describe how he conspired to defraud the United States. Therefore, Judge Strand recommended that Hernandez's motion to dismiss be denied.

Hernandez has filed objections to Judge Strand's Report and Recommendation. The prosecution has filed a timely response to Hernandez's objections. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Hernandez's motion to dismiss.

II. LEGAL ANALYSIS

A. Standard Of Review

I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1) (2006); see Fed.R.Civ.P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not ...

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