U.S. v. Kanchanalak

Citation41 F.Supp.2d 1
Decision Date03 February 1999
Docket NumberNo. CR. 98-0241(PLF).,CR. 98-0241(PLF).
PartiesUNITED STATES of America, v. Pornpimol KANCHANALAK and Duangnet Kronenberg, Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Reid Weingarten, Steptoe & Johnson, Washington, DC, James Hamilton, Swidler & Berlin, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This case is before the Court on the supplemental briefs of the parties on defendants' Motion No. 1, to dismiss Counts 5 and 6 (false statements), and the government's motion for reconsideration of the Court's dismissal of Counts 4 and 9 (false statements), as well as on defendants' Motion No. 2, to dismiss Count 1 (conspiracy), or, in the alternative, to strike prejudicial surplusage, and defendants' Motion No. 3, to dismiss Counts 1-14 as preempted by FECA. The Court heard argument on January 20 and January 25, 1999.

The Court concludes that the reasoning in its opinions in United States v. Hsia, 24 F.Supp.2d 33 (D.D.C.1998), and United States v. Trie, 23 F.Supp.2d 55 (D.D.C. 1998), compels dismissal of all of the false statements counts against defendant Pornpimol "Pauline" Kanchanalak and Count 4 against defendant Duangnet "Georgie" Kronenberg. The Court further concludes that Counts 5 and 9 against Ms. Kronenberg also must be dismissed. The government's motion for reconsideration therefore will be denied, and defendants' Motion No. 1 will be granted, except insofar as it seeks dismissal of Count 6 against Ms. Kronenberg. For essentially the reasons stated in the Court's opinions in Hsia and Trie, defendants' Motion No. 2 and Motion No. 3 also will be denied.

I. FALSE STATEMENTS COUNTS

The false statements counts charge Ms. Kanchanalak and Ms. Kronenberg with "knowingly and willfully caus[ing] the submission of material false statements to the FEC, in that defendants caused the responsible officials of ... political committees to file reports with the FEC that listed ... individuals as having provided funds to such political committees ... when, as defendants then and there well knew, the named individuals were not the actual sources of those funds," in violation of 18 U.S.C. §§ 1001 and 2(b). See Superseding Indictment at 24. The Court already has concluded that "Counts 2-4 and 7-14 of the Superseding Indictment in this case are virtually indistinguishable from the allegations at issue in Hsia and Trie." See Memorandum Opinion and Order of December 31, 1998 at 2. For the reasons stated at great length in Hsia, and in abbreviated fashion in Trie, the Court therefore dismissed those counts. With respect to Counts 5 and 6, however, the Court reserved ruling because "[u]nder the reasoning articulated by the Court in United States v. Hsia, 24 F.Supp.2d at 60 n. 30, it is possible that Sections 1001 and 2(b) could constitutionally be applied to the conduct alleged in Counts 5 and 6." Id. at 5. The Court therefore directed the government to

provide a supplemental opposition setting forth any reasons within the framework set forth in Hsia and Trie that Counts 5 and 6 should not be dismissed. The supplemental opposition may provide further legal argument, particularly with respect to the impact on each defendant of the factual allegations described above in light of footnote 30 of Hsia and/or it may provide additional factual information in the nature of a limited bill of particulars.

Id. at 6.

The government has filed a supplemental opposition and a limited bill of particulars in response to the Court's Order. It concedes that in view of the evidence that it has available, Ms. Kanchanalak "cannot be charged with causing the false statement alleged in Count Six" under the Hsia framework. Govt's Supp. Opp. at 3 n. 2. It maintains, however, that under Hsia, Count Five "can constitutionally be applied to both defendants, and Count Six can constitutionally be applied to defendant Kronenberg." Id. at 5. In its motion for partial reconsideration, the government also argues that Sections 1001 and 2(b) can constitutionally be applied to the conduct alleged in Counts 4 and 9 of the Superseding Indictment.

A. Counts 4, 5 and 9; The Democratic National Committee

Counts 4, 5 and 9 of the Superseding Indictment all relate to a series of donations or contributions allegedly made to the Democratic National Committee ("DNC") between March 17, 1994 and October 14, 1994 to fulfill Ms. Pauline Kanchanalak's monetary obligations to become first a trustee and later a managing trustee of the Democratic Party. See Superseding Indictment at 6, 12, 15; Bill of Particulars at ¶¶ 2, 3, 14, 15. In each instance, the Superseding Indictment alleges that a contribution or donation was made to the DNC "by way of checks drawn on Praitun Kanchanalak's account at First Virginia Bank ... using BCI USA [corporate] funds that had been deposited into Praitun Kanchanalak's First Virginia account via Duangnet Kronenberg's personal account at First Union National Bank." Superseding Indictment at 12. Praitun Kanchanalak, an unindicted co-conspirator, is Ms. Kronenberg's mother and Ms. Pauline Kanchanalak's mother-in-law.1 In each instance, the check was imprinted "P. Kanchanalak," and Praitun Kanchanalak signed it "P. Kanchanalak." Id. According to the Indictment, this was intended to cause the recipient political committee to believe that the funds were coming from an account held by Pauline Kanchanalak. Id. Count 4 relates to a $15,000 check dated March 21, 1994, Count 5 to a $15,000 check dated April 22, 1994, and Count 9 to a $32,500 check dated October 20, 1994.2 All the checks were payable to the Democratic National Committee. Id. at 25. The "Person Identified in [the DNC's] Report [to the FEC] as Having Provided Funds" for each check was Pauline Kanchanalak. Id.

With respect to Counts 4 and 5, the government alleges that Ms. Lauren Supina, a DNC fundraiser, sent a letter to Ms. Kanchanalak on April 11, 1994 regarding the status of her position as a DNC Trustee. See Bill of Particulars at ¶¶ 1, 12. In the letter, Ms. Supina stated that she had "been under the impression that you would become a full DNC Trustee through the Women's Leadership Forum by contributing $15,000 in both March and April.... This agreement was set up through Georgie [Kronenberg] and I assumed you authorized it." Id.3 Approximately one week later, Ms. Kronenberg allegedly conveyed a $15,000 check to the DNC drawn on Praitun Kanchanalak's account and signed "P. Kanchanalak," with an accompanying memorandum in which Ms. Kronenberg stated:

Enclosed please find a check for $15,000.00 payable to DNC (non-federal) as part of Ms. Kanchanalak's contribution to the DNC Trustee Program. As earlier discussed with you, the remaining $20,000 will be payable at the end of May 1994 which will conclude the total contribution of $50,000.

Please also mail me the Federal Election Commission Report Form.

Bill of Particulars at ¶ 2. Ms. Supina testified in the grand jury pursuant to a subpoena that when she received the April check, she understood "P. Kanchanalak" to be Pauline Kanchanalak. Id. at ¶ 5.

The government contends that "it can be inferred from Lauren Supina's letter ... that defendant Kronenberg earlier had told Ms. Supina that Pauline Kanchanalak would be donating $15,000 to the DNC in April 1994" and that by sending the check and the accompanying memorandum, Ms. Kronenberg affirmatively misled Ms. Supina to believe that the source of the funds was Pauline Kanchanalak and the money was from her account. Govt's Supp. Opp. at 6. The government further contends that a jury "could reasonably infer that defendant Kronenberg made this affirmative misrepresentation to Ms. Supina at the behest of defendant Kanchanalak, given the fact that Ms. Supina's April 11 letter was addressed to defendant Kanchanalak and given other evidence alleged in the Superseding Indictment and the Limited Bill of Particulars that defendant Kanchanalak was the organizer of Defendants' alleged unlawful scheme." Id.

With respect to Count 4, the government alleges in its limited bill of particulars (although not in the Superseding Indictment itself) that a check numbered 127 was drawn on Ms. Praitun Kanchanalak's account and made payable to the "Democratic National Committee-WLF." Bill of Particulars at ¶ 13. The check was imprinted "P. Kanchanalak," but Praitun Kanchanalak allegedly signed the check "Praitun Kanchanalak" rather than "P. Kanchanalak," and the check was never sent. Id. Instead, check number 128 imprinted "P. Kanchanalak" allegedly was drawn on Ms. Praitun Kanchanalak's account, again made payable to the Democratic National Committee-WLF, signed "P. Kanchanalak" by Praitun Kanchanalak and mailed to the DNC. Id. at ¶ 14. The government maintains that the circumstances under which check number 127 was not sent and check number 128 instead was sent support an inference that the checks deliberately were imprinted and signed "P. Kanchanalak" in order to mislead the DNC into believing that the check sent to the DNC was drawn on Pauline Kanchanalak's account and was signed by Pauline Kanchanalak.

As to Count 9, the government alleges that on or about October 5, 1994, Ms. Supina faxed Ms. Kanchanalak a memorandum regarding Ms. Kanchanalak's "WLF Managing Trustee Dues." Bill of Particulars at ¶ 19. The memorandum instructed Ms. Kanchanalak to fulfill her dues obligation of $50,000 by sending checks payable to certain state democratic parties in specified amounts and a check made payable to the Democratic National Committee in the amount of $32,500. Id.4 On October 13, 1994, Ms. Kronenberg allegedly sent a check imprinted "P. Kanchanalak" that had been signed "P. Kanchanalak" by Ms. Praitun Kanchanalak to the DNC. The check was accompanied by a transmittal letter from Ms. Kronenberg stating that the check "`represent[ed] the last payment for the 1994...

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