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United States v. McMillin

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

February 24, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXANDER VLADIMIR MCMILLIN, et al., Defendants.

ORDER

BRIAN C. WIMES, District Judge.

Before the Court is Magistrate Judge Matt J. Whitworth's Report and Recommendation (Doc. #276) denying Defendants Charles S. Austin's and Puff N Snuff, LLC's motions to dismiss the indictment and superseding indictment (Docs. #110, #139, & #222), Defendants Alexander McMillin's, Patrick R. Hawkins's, Matthew A. Hawkins's, and Molly Jane Carmichael's motions to dismiss various counts of the indictment (Docs. #122, #123, #124, & #125), and Defendants Wesley Adam Upchurch's, Alexander McMillin's, Patrick R. Hawkins's, Matthew A. Hawkins's, and Molly Jane Carmichael's motions to dismiss various counts of the superseding indictment. (Docs. #217, #218, #221, #220, & #219).

Defendants Upchurch, McMillin, Patrick Hawkins, Carmichael, Austin, and Puff N Snuff, LLC filed objections to the Report and Recommendation. (Docs. #284, #285, #286, #287, #288, & #289). After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge Whitworth's findings of fact and conclusions of law and denies each Defendant's motion to dismiss various counts of the indictment and superseding indictment. Accordingly, it is hereby

ORDERED Defendants Austin's and Puff N Snuff, LLC's Motion to Dismiss Indictment (Doc. #110) is DENIED AS MOOT. It is further

ORDERED Defendants Austin's and Puff N Snuff, LLC's Amended Motion to Dismiss Indictment (Doc. #139) is DENIED AS MOOT. It is further

ORDERED Defendant McMillin's Motion to Dismiss Counts One, Two, Four, and Six of the Indictment (Doc. #122) is DENIED AS MOOT. It is further

ORDERED Defendant Patrick Hawkins's Motion to Dismiss Counts One and Two of the Indictment (Doc. #123) is DENIED AS MOOT. It is further

ORDERED Defendant Matthew Hawkins's Motion to Dismiss Counts One and Two of the Indictment (Doc. #124) is DENIED AS MOOT. It is further

ORDERED Defendant Carmichael's Motion to Dismiss Counts One and Two of the Indictment (Doc. #125) is DENIED AS MOOT. It is further

ORDERED Defendant Upchurch's Motion to Dismiss Counts One and Two of the Superseding Indictment (Doc. #217) is DENIED. It is further

ORDERED Defendant McMillian's Motion to Dismiss Counts One, Two, Three, Four, and Seven of the Superseding Indictment (Doc. #218) is DENIED. It is further

ORDERED Defendant Carmichael's Motion to Dismiss Counts One, Two, and Three of the Superseding Indictment (Doc. #219) is DENIED. It is further

ORDERED Defendant Matthew Hawkins's Motion to Dismiss Counts One, Two, and Three of the Superseding Indictment (Doc. #220) is DENIED. It is further

ORDERED Defendant Patrick Hawkins's Motion to Dismiss Counts One, Two, and Three of the Superseding Indictment (Doc. #221) is DENIED. It is further

ORDERED Defendants Austin's and Puff N Snuff, LLC's Motion to Dismiss Superseding Indictment (Doc. #222) is DENIED. It is further

ORDERED Magistrate Judge Whitworth's Report and Recommendation (Doc. #276) is ADOPTED shall be attached to and made part of this Order.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

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 ...


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