U.S. v. Sunia, Criminal Action No. 07-225 (RBW).

CourtU.S. District Court — District of Columbia
Writing for the CourtReggie B. Walton
Citation643 F.Supp.2d 51
PartiesUNITED STATES of America, Plaintiff, v. Aitofele T.F. SUNIA and Tini Lam Yuen, Defendants.
Decision Date11 August 2009
Docket NumberCriminal Action No. 07-225 (RBW).
643 F.Supp.2d 51
UNITED STATES of America, Plaintiff,
v.
Aitofele T.F. SUNIA and Tini Lam Yuen, Defendants.
Criminal Action No. 07-225 (RBW).
United States District Court, District of Columbia.
August 11, 2009.

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Kathryn Albrecht, Timothy Kelly, Matthew L. Stennes, U.S. Department of Justice, Washington, DC, for Plaintiff.

Stephen Anthony, Emily Johnson Henn, Joshua D. Greenberg, Covington & Burling, Washington, DC, for Defendant.

Michelle Peterson, Jonathan Jeffress, Federal Public Defender's Office, Washington, DC, for Co-Defendant.

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MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.


Aitofele T.F. Sunia and Tini Lam Yuen, the defendants in this criminal case, have filed a motion to dismiss in whole or in part Counts One through Six of the indictment against them pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Joint Motion of Aitofele T.F. Sunia and Tini Lam Yuen to Dismiss in Whole or in Part Counts One through Six at 1. On September 8, 2008, the Court heard oral argument on the defendants' motion and denied the motion insofar as it sought to dismiss Counts Five and Six of the indictment in their entirety and Count One of the indictment in part. Currently before the Court is the balance of the motion to dismiss and a motion for partial reconsideration of the Court's earlier oral rulings filed by the defendants. After carefully considering the indictment, the defendants' motions, all memoranda of law and exhibits relating to those motions,1 and the parties' oral representations at the September 8 hearing and the subsequent hearing regarding these motions held on August 4, 2009, the Court concludes that it must grant the balance of the defendants' motion, grant the defendants' motion for reconsideration, dismiss in part Counts Two through Four of the indictment, and dismiss Counts Five and Six of the indictment in their entirety for the reasons that follow.

I. Background

The following facts are alleged in the indictment. Sunia, who "currently serves as Lieutenant Governor of American Samoa," Indictment ¶ 8, and previously served as Treasurer of the American Samoa government from July 9, 2001, to April 11, 2003, Acting Treasurer from April 11, 2003, until June 6, 2003, id. ¶ 10, and "Counsel to the Fono [the territory's legislative body] from February 16, 1999[,] to July 9, 2001," id. ¶ 11, along with Lam Yuen, who has served as a member of the Fono since January 3, 2001, id. ¶ 15, allegedly "conspire[d] ... with the [American Samoa] Chief Procurement Officer, [ ] Director of Education, and others ... to commit offenses against the United States," id. ¶ 26, including fraudulent receipt of federal "payments totaling $775,000 made to companies under their control, in exchange for supplying furniture to the [American Samoa Department of Education] valued at more than $5,000,"

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id. ¶ 26(a), and bribery of "the Director of Education and the Chief Procurement Officer," id. ¶ 26(b). The defendants allegedly engaged in this conspiracy "to personally enrich themselves, their relatives, and their business associates" by "secur[ing] for companies under their control lucrative payments totaling hundreds of thousands of dollars in exchange for manufacturing and supplying classroom and library furniture for the [American Samoa Department of Education]." Id. ¶ 27.

Specifically, the defendants allegedly "obtain[ed] payments in connection with the [American Samoa Department of Education's] furniture projects" by "us[ing] false and fraudulent means, including improperly structuring invoices and other procurement documents ... to circumvent the [American Samoa] procurement laws and avoid the competitive bidding process." Id. ¶ 28(b). This alleged fraudulent process allowed the defendants to "effectively eliminate[] price competition for the furniture" and "charge[ ] artificially high prices for the furniture," thereby "wast[ing] [American Samoa] and federal grant funds that could have been used for other [American Samoa] Department of Education needs." Id. ¶ 28(c). Further, the defendants allegedly gave the American Samoa Chief Procurement Officer "a share of the furniture projects for [the Chief Procurement Officer's] company, [Samoa Wood Products, Inc.], in consideration for his agreement not to enforce procurement regulations and not to open the jobs up for competitive bidding," id. ¶ 28(d), and allegedly gave the American Samoa Director of Education "cash payments and free contracting work on his house[ ] to reward him for dividing up and awarding furniture payments to companies under [the defendants'] control in violation of the procurement regulations," id. ¶ 28(e).

While acting as Treasurer for the American Samoa government, Sunia allegedly "processed payment of the furniture invoices using both local and federal funds," in some instances "plac[ing] his own signature on the checks." Id. ¶ 28(f). The defendants, "the Chief Procurement Officer, their employees, or their family members [allegedly] picked up the checks ... in person at either the []Treasury or [Department of Education] offices." Id. ¶ 28(g). In turn, the "the Director of Education and other [Department of Education] officials [allegedly] awarded additional furniture jobs" to companies owned by the defendants using "the same fraudulent and misleading manner to circumvent the procurement regulations." Id. ¶ 28(h). Sunia allegedly concealed his involvement by "incorporating [his] company under the names of his daughter and two business associates." Id. ¶ 28(i).

"In or about August [of] 2003," the Office of Inspector General of the United States Department of Education "commenced an investigation into fraud, waste[,] and abuse involving federal grant funds issued to the [American Samoan] government." Id. ¶ 55. This investigation was conducted "jointly with agents from the Office of Inspector General of the United States Departments of the Interior and Homeland Security and the Federal Bureau of Investigation." Id. As part of this investigation, Sunia "submitted to a voluntary interview with federal law enforcement agents from the [United States] Department of Homeland Security's Office of Inspector General and the Federal Bureau of Investigation," id. ¶ 57, at which time he allegedly "[made] materially false and misleading statements to federal agents" to the effect that "his daughter ran [Sunia's company], that [his company] was doing work for the Library Services Office of the [American Samoa Department of Education] on a `need basis' only,

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and that [Sunia] did not intentionally keep his name off [] the articles of incorporation of [his company]," id. ¶ 58. Similarly, Lam Yuen "submitted to a voluntary interview with federal law enforcement agents from the [United States] Department of the Interior Office of Inspector General and the Federal Bureau of Investigation," id. ¶ 62, where he allegedly "[made] materially false and misleading statements" to the effect that "he never gave any money to [the American Samoa Director of Education] and that he never gave anything of value to [the American Samoa Director of Education] for free," id. ¶ 63.

The grand jury returned its indictment against the defendants on September 6, 2007. The indictment charges the defendant with six offenses. In Count One, the indictment alleges that the defendants conspired with the Chief Procurement Officer and the Director of Education of American Samoa as well as "others both known and unknown to the grand jury" to commit fraud concerning programs receiving federal funds and bribery concerning programs receiving federal funds. Id. ¶ 26. Counts Two and Three charge both defendants with these offenses directly pursuant to 18 U.S.C. § 666(a)(1)(A) and 18 U.S.C. § 666(a)(2). Id. ¶¶ 48-51. Count Four charges Lam Yuen with a separate violation of § 666(a)(2). Id. ¶¶ 52-53. Finally, Counts Five and Six charge Sunia and Lam Yuen, respectively, with obstruction of an agency proceeding in violation of 18 U.S.C. § 1505. Id. ¶¶ 54-63.

The defendants filed their motion to dismiss various counts of the indictment in whole or in part on June 27, 2008. In support of their motion, the defendants argue that Count One of the indictment requires dismissal "to the extent it is based on acts that purportedly occurred before January 4, 2001," because "[b]y its terms, the alleged conspiracy [could not] have existed until at least two of the [e]xecutive [b]ranch officials" alleged to be a member of this conspiracy held positions in the executive branch, which did not occur until that date. Defs.' Dismissal Mem. at 1; see also id. at 9-10 (making this argument). They also assert that Count Two requires dismissal in its entirety with respect to Lam Yuen and in part with respect to Sunia because Lam Yuen was never an "agent" within the meaning of § 666(a)(1)(A) and Sunia did not become an "agent" within the meaning of the statute until he was appointed to the executive branch of the America Samoan government. Id. at 1, 10-13. Further, the defendants contend that Counts Two and Three of the indictment are time-barred to the extent they are based on acts that allegedly occurred more than five years before the return of the indictment, id. at 1-2, 13-20, and that Count Four must be dismissed for the same reason insofar as it is based on alleged bribes that occurred more than five years before the return of the indictment, id. at 2, 20-21. Finally, they argue that Counts Five and Six of the indictment are defective because the government fails to allege two necessary facts: (1) that the defendants' alleged obstruction had the "natural and probable effect" of obstructing the agency investigation leading to the defendants' criminal indictment, id. at 2, 21-24; and (2) that the defendants knew or believed that an agency investigation was pending when...

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  • United States v. Akinyoyenu, Criminal Action No. 15-42 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • 4 Agosto 2016
    ...to "the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009) (emphases omitted) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) ).III. Analysis As is customary, the C......
  • United States v. Sampson, No. 15-2869-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Agosto 2018
    ...[he] appropriated the funds and completed the embezzlement." (internal quotation marks omitted) (quoting United States v. Sunia , 643 F.Supp.2d 51, 75 (D.D.C. 2009) ) ). We therefore read the district court as having made a determination that if Sampson committed the crime at all, he n......
  • United States v. Saffarinia, Crim. Action No. 19-216 (EGS)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 15 Enero 2020
    ...to reviewing the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (citation omitted)."[A]n indictment is sufficient if it, first, contains the elements of the offense charged and f......
  • State v. Tipton, No. 15-1515
    • United States
    • United States State Supreme Court of Iowa
    • 23 Junio 2017
    ...Iowa Code section 99G.36(1) based upon the January 17, 2012 redemption effort by Shaw is not time barred. See United States v. Sunia , 643 F.Supp.2d 51, 72 (D.D.C. 2009) (holding dismissal not required "so long as some part of the criminal conduct alleged occurred within the timeframe ......
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82 cases
  • United States v. Akinyoyenu, Criminal Action No. 15-42 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • 4 Agosto 2016
    ...to "the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009) (emphases omitted) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) ).III. Analysis As is customary, the C......
  • United States v. Sampson, No. 15-2869-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Agosto 2018
    ...[he] appropriated the funds and completed the embezzlement." (internal quotation marks omitted) (quoting United States v. Sunia , 643 F.Supp.2d 51, 75 (D.D.C. 2009) ) ). We therefore read the district court as having made a determination that if Sampson committed the crime at all, he n......
  • United States v. Saffarinia, Crim. Action No. 19-216 (EGS)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 15 Enero 2020
    ...to reviewing the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (citation omitted)."[A]n indictment is sufficient if it, first, contains the elements of the offense charged and f......
  • State v. Tipton, No. 15-1515
    • United States
    • United States State Supreme Court of Iowa
    • 23 Junio 2017
    ...Iowa Code section 99G.36(1) based upon the January 17, 2012 redemption effort by Shaw is not time barred. See United States v. Sunia , 643 F.Supp.2d 51, 72 (D.D.C. 2009) (holding dismissal not required "so long as some part of the criminal conduct alleged occurred within the timeframe ......
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