U.S.A v. Jack
| Decision Date | 12 November 2010 |
| Docket Number | No. 2:07-cr-00266 FCD DAD,2:07-cr-00266 FCD DAD |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. HARRISON U. JACK, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
This matter is before the court on the motions of defendants Harrison Ulrich Jack, Lo Cha Thao, Lo Thao, Hue Vang, Chong Yang Thao, Seng Vue, Chue Lo, Nhia Kao Vang, David Vang, Jerry Yang, and Thomas Yang (collectively, "defendants") to dismiss counts from the Second Superseding Indictment. The United States of America (the "government") opposes the motions. The court heard oral argument on the motions on October 15, 2010. Based upon the submissions of the parties and the arguments made by counsel, and for the reasons set forth below, defendants' motions to dismiss are GRANTED in part and DENIED in part.
This investigation began on or about September 26, 2006, when defendant Harrison Ulrich Jack ("Harrison Jack") allegedly spoke with a third-party regarding the purchase of 500 AK-47 machine guns. (Second Superseding Indictment [Docket #578], filed June 24, 2010, 1 24a.) Subsequently, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") began an undercover investigation which lasted until June 2007. (Id. 1 24b-nn.)
On June 14, 2007, eleven defendants, Harrison Ulrich Jack, General Vang Pao, Lo Cha Thao, Lo Thao, Youa True Vang, Hue Vang, Chong Yang Thao, Seng Vue, Chue Lo, Nhia Kao Vang, and David Vang, were charged with counts arising from an alleged conspiracy to overthrow the government of Laos. (Second Superseding Indictment [Docket #37], filed June 14, 2007.) All defendants were charged with (1) Conspiracy to Violate the Neutrality Act in violation of 18 U.S.C. §§ 371 and 960; (2) Conspiracy to Kill, Kidnap, Maim and Injure People in a Foreign Country in violation of 18 U.S.C. § 956; (3) Conspiracy to Receive and Possess Firearms and Destructive Devices in violation of 18 U.S.C. § 371, 18 U.S.C § 922(o), and 26 U.S.C. § 5861; and (4) Conspiracy to Export Listed Defense Items Without a State Department License in violation of 18 U.S.C. § 371 and 22 U.S.C § 2778. Nine of the eleven defendants, Harrison Ulrich Jack, General Vang Pao, Lo Cha Thao, Lo Thao, Youa True Vang, Hue Vang, Chong Yang Thao, Nhia Kao Vang, and David Vang, were charged with a Conspiracy to Receive and Possess Missile Systems Designed to Destroy Aircraft in violation of 18 U.S.C. § 2332g.
On September 17, 2009, the grand jury returned the First Superseding Indictment. (First Superseding Indictment [Docket #460], filed Sept. 17, 2009.) The First Superseding Indictment combined Counts One, Four and Five from the original Indictment into Count One. It also added a new charge as Count Four: Conspiracy to Receive and Transport Explosives in Interstate and Foreign Commerce in violation of 18 U.S.C §§ 844 (d), (n), and as Count Five: Violation of the Neutrality Act, 18 U.S.C. § 960. The First Superseding Indictment also charged two new defendants, Jerry Yang and Thomas Yang.
The First Superseding Indictment did not charge General Vang Pao. Rather, on September 18, 2009, the government moved to dismiss the counts in the original Indictment against defendant General Vang Pao, asserting that "based on the totality of the evidence in the case and the circumstances regarding defendant Vang Pao,... the continued prosecution of defendant Vang Pao is no longer warranted." (Gov't Mot. to Dismiss [Docket #462], filed Sept. 18, 2009.) The court granted the motion on the same day.
On June 24, 2010 the Second Superseding Indictment charged the same twelve defendants from the First Superseding Indictment with the same five counts. However, just prior to the October 15, 2010 hearing on defendants' pretrial motions, defendant Colonel Youa True Vang agreed to a brief diversion program offered by the government, which will likely result in the dismissal of all charges against him.
The Second Superseding Indictment charges defendants Harrison Ulrich Jack, Lo Cha Thao, Lo Thao, Youa True Vang, 2 Hue Vang, Chong Yang Thao, Seng Vue, Chue Lo, Nhia Kao Vang David Vang, Jerry Yang, and Thomas Yang with (1) Count One: Conspiracy to Violate 18 U.S.C. § 960, 18 U.S.C. § 922(o), 26 U.S.C. § 5861, and 22 U.S.C. § 2778; (2) Count Two: Violation of 18 U.S.C. § 956; (3) Count Four: Violation of 18 U.S.C. §§ 844(d), (n); and (4) Count Five: Violation of 18 U.S.C. § 960. The Second Superseding Indictment also charges defendants Harrison Ulrich Jack, Lo Cha Thao, Lo Thao, Youa True Vang, Hue Vang, Chong Yang Thao, Chue Lo, Nhia Kao Vang, and Jerry Vang with Count Three: Violation of 18 U.S.C. § 2332g.
Count One of the Second Superseding Indictment alleges that no later than on or about September 29, 2006, and continuing until on or about June 4, 2007, defendants conspired, inter alia, to knowingly begin, provide a means for, prepare means for, furnish the money for, and take part in, a military expedition and enterprise to be carried on from the United States against the territory and dominion of the foreign nation of Laos, with which the United States was at peace. (Second Superseding Indictment 1 21a.) The Second Superseding Indictment further alleges that defendants knowingly received and possessed firearms, including AK-47 machine guns, M-16A1 and M-16A2 machine guns, LAW anti-tank rockets, AT-4 anti-tank projectiles, and Claymore anti-personnel mines. (Id. ¶¶ 21b-f.)
Under the "Manner and Means" section, the Second Superseding Indictment alleges that during formal and informal meetings and conversations between various defendants they "discussed the acquisition and transfer of military arms... from the United States to Insurgents in Laos to conduct armed operations against the government of Laos and to attempt to overthrow the government of Loas." (Second Superseding Indictment 1 23a.) It alleges that "sometimes" defendants used the established Hmong tribal clan structure and/or various Lao liberation movements in furtherance of the conspiracy. (Id. ¶ 23b.) It also alleges that defendants participated in fund-raising activities in furtherance of the conspiracy. (Second Superseding Indictment ¶ 23b-c). The Second Superseding Indictment further alleges that defendants communicated and coordinated with a military force of insurgent troops within Laos, (id. ¶ 23e), and that defendants engaged in the procurement of military arms and negotiated the purchase of military arms, ammunition, and material from the United States to be delivered to the insurgent military operation in Laos via Thailand. (Second Superseding Indictment ¶¶ 23f, 23h, 23k.)
Under the "Overt Acts" section, the Second Superseding Indictment recounts approximately 38 instances of communication by or among the various defendants regarding the alleged conspiracies. (Id. ¶ 24.) Approximately 18 of these communications included or were directed to the undercover agent.
(Id.) The Second Superseding Indictment alleges that various combinations of defendants were present at weapons "flashes," where firearms, explosives, and ammunition were shown by the undercover agent, on February 7, 2007, April 18, 2007, and April 24, 2007. (Id. ¶¶ 24d, 24p, 24q.) The Second Superseding Indictment also alleges that some defendants came up with an operations plan to fulfill the objectives of the conspiracies. (See id. ¶¶ 24f, 24r, 24jj, 24ll.) The Second Superseding Indictment also recounts various monetary contributions to Hmong organizations, (Id. ¶ 24m), and wire transfers from individual defendants to other known conspirators/defendants in Thailand, (Id. ¶¶ 24cc, 24ee, 24ii.)
Counts Two, Three, and Four of the Second Superseding Indictment incorporate the preliminary allegations, as well as the Manner and Means and Overt Act allegations set forth in Count One. Count Five, incorporates the preliminary allegations and the Overt Act allegations set forth in Count One.
At the outset, the court notes the extraordinary nature of this case, with respect to both the complexity of the charges against defendants and the proceedings before the court. At every hearing in this matter, there have been serious allegations made, not only by the government against defendants, but also by defense counsel against the government.
Co-lead counsel for defendants has been John Keker and James Brosnahan, two of the most notable criminal defense attorneys in the United States. Both attorneys practice in two major law firms, which have considerable resources.3
Mr. Keker represented General Vang Pao, who was portrayed by the government as the leader of the Hmong people and the leader of the alleged military enterprise. Mr. Keker is no longer co-lead counsel because the government dismissed the counts in the original Indictment against General Vang Pao.
After General Vang Pao was dismissed, Mr. Brosnahan assumed the role of lead counsel. Mr. Brosnahan represented Colonel Youa True Vang, who was the only senior Hmong military officer among the remaining defendants. However, Colonel Youa True Vang agreed to a diversion program, which will lead to the dismissal of the charges against him. As a result, Mr. Brosnahan no longer serves as lead counsel.
The remaining defendants are represented by court appointed local counsel with the exception of one, who has retained a local sole practitioner. Aside from the Federal Defender, virtually all defense counsel are sole practitioners with limited resources. (See Tr. of Hr'g, Oct. 15, 2010, at 26:20-24.)
The prosecutors involved in this case have continually changed. The prosecutors who directed the investigation and acted as the initial lead counsel are, for reasons unrelated to this case, no longer representing the government. Subsequently, Assistant United States Attorneys ("AUSA") Robert Tice-Raskin and Jill Thomas appeared as the lead prosecutors. More recently, in addition to the AUSAs, Robert Wallace and ...
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