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United States v. Austin

United States District Court, W.D. Missouri, Central Division

January 21, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES STERLING AUSTIN, JR., PUFF N SNUFF, LLC., ALEXANDER V. MCMILLIN, PATRICK R. HAWKINS, MATTHEW A. HAWKINS, MOLLY JANE CARMICHAEL, WESLEY ADAM UPCHURCH, Defendants

For Alexander Vladimir McMillin, Matthew Ashby Hawkins, Patrick Ross Hawkins, Molly Jane Carmichael, also known as Molly Hawkins, Wesley Adam Upchurch, Defendants: Dan Viets, LEAD ATTORNEY, Dan Viets Law Office, Columbia, MO.

For Kent Allen Holtz, Defendant: William J. Ekiss, LEAD ATTORNEY, PRO HAC VICE, Wolff & D'Agrosa, LLC, Clayton, MO.

For Chadwick James Schlicht, Defendant: Benjamin J. Gray, LEAD ATTORNEY, Kirksville, MO.

For Charles Sterling Austin, Jr., Puff N Snuff, LLC, Defendants: Joel J. Schwartz, N. Scott Rosenblum, LEAD ATTORNEYS, Rosenblum, Schwartz, Rogers & Glass, PC, Clayton, MO.

For Scott Wesley Hanson, also known as Brian Henson, Defendant: David Harold Johnson, LEAD ATTORNEY, Kansas City, MO.

For Thomas Lee McCormack, Defendant: Scott Allen Hamblin, LEAD ATTORNEY, Brydon, Swearengen & England, PC, Jefferson City, MO.

For Mozark Products, LLC, Defendant: Samuel E. Trapp, LEAD ATTORNEY, Trapp Law Firm-Osage Beach, Osage Beach, Mo.

For Sharon Elizabeth Harrington, Defendant: Jeffrey R. Kays, LEAD ATTORNEY, Ashland, MO.

For Tina Irene Moore, Defendant: Steven C. Reed, LEAD ATTORNEY, Holts Summit, MO.

For Jimmy Dean Moore, Defendant: John Thomas Murray, LEAD ATTORNEY, Columbia, MO.

For Travis Scott Lovett, Defendant: Kevin O'Brien, LEAD ATTORNEY, The Law Office of Kevin O'Brien, Columbia, MO.

For Jessica Lynn Lovett, also known as Jessica Doss, Defendant: Shane Lee Farrow, LEAD ATTORNEY, Brown, Cornell & Farrow, Jefferson City, MO.

For Michael A. Sosnowski, Defendant: Angela Silvey, LEAD ATTORNEY, Trapp Law Firm - JCMO, Jefferson City, MO; Samuel E. Trapp, LEAD ATTORNEY, Trapp Law Firm-Osage Beach, Osage Beach, Mo.

For USA, Plaintiff: Stuart Zander, LEAD ATTORNEY, Lawrence Miller, United States Attorney's Office-JCMO, Jefferson City, MO.

REPORT AND RECOMMENDATION

MATT J. WHITWORTH, United States Magistrate Judge.

Defendants Charles Sterling Austin, Jr., and Puff N Snuff, LLC. (collectively, the " PNS defendants") (doc. 222); Alexander V. McMillin (doc. 218); Patrick R. Hawkins (doc. 221); Matthew A. Hawkins (doc. 220); Molly Jane Carmichael (doc. 219); and Wesley Adam Upchurch (doc. 217) have filed motions to dismiss various counts of the Superseding Indictment.[1] The Government has filed suggestions in opposition to each of the defendant's motions to dismiss. (Docs. 235 and 236). Defendants McMillin, Patrick Hawkins, Matthew Hawkins, and Carmichael filed reply suggestions in support of their motions (docs. 267-271), in response to which, the Government filed a sur-reply (doc. 272).[2]

A. Background

The above defendants and others are charged in a thirteen count Superseding Indictment alleging a conspiracy to distribute analogue drugs in mid-Missouri during the time period from March 1, 2011, to October 2, 2014. (Doc. 146). The Superseding Indictment charges various defendants with conspiracy to commit mail fraud, conspiracy to distribute controlled substances, conspiracy to commit money laundering, distribution of controlled substances, maintaining a place for the purpose of storing and distributing controlled substances, and criminal forfeiture.

Specifically, Count One of the Superseding Indictment charges defendants Upchurch McMillin, Matthew Hawkins, Patrick Hawkins, Carmichael, the PNS defendants, and others with conspiracy to commit mail fraud in violation of Title 18, United States Code, Sections 1341 and 1349.

Count Two of the Superseding Indictment charges all defendants with conspiracy to distribute a controlled substance, specifically (1) 1-Pentyl-3-(2, 2, 3, 3-tetramethylcyclopropyl) indole (hereafter UR-144); and (2) 1-(5-Fluoropentyl)-3-(2, 2, 3, 3-tetramethylcyclopropyl) indole (hereafter XLR-11), each a controlled substance analogue as defined in 21 U.S.C. § 802(32)(A), knowing that each substance was intended for human consumption as provided in 21 U.S.C. § 813, all in violation of Title 21, United States Code, Sections 841(a)(1) and 846.

Count Three of the Superseding Indictment charges defendants McMillin, Matthew Hawkins, Patrick Hawkins, Carmichael, Austin, and others with conspiracy to commit money laundering, in violation of Title 18, United States Code, Sections 1957(a) and 1956(h).

Count Four of the Superseding Indictment charges defendant McMillin with possession with intent to distribute a controlled substance in violation Title 21, United States Code, Sections 802(32), 813, and 841(a)(1) and (b)(1)(C).

Count Seven of the Superseding Indictment charges defendant McMillin with distribution of a controlled substance in violation of Title 21, United States Code, ...


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