United States v. Michel
| Decision Date | 06 March 2023 |
| Docket Number | CRIMINAL ACTION 19-148-1 (CKK) |
| Parties | UNITED STATES OF AMERICA, v. PRAKAZREL MICHEL, Defendant. |
| Court | U.S. District Court — District of Columbia |
Defendant Prakazrel Michel (“Defendant” or “Michel”), with co-Defendant Low Taek Jho (“Low”), is charged by indictment with a variety of criminal offenses arising from three alleged conspiracies to unlawfully launder foreign money to influence American elections and foreign policy. Before the Court is the Government's [193] Motion to Exclude Witnesses (“Motion” or “Mot.”). The Government moves in limine to preclude Defendant from calling or otherwise eliciting testimony from: (1) former President Barack Obama, (2) former President Donald Trump, (3) former Secretary of Homeland Security Jeh Johnson (“Johnson”), and (4) former Secretary of Housing and Urban Development Benjamin Carson (“Carson”). Separately, Carson has moved to quash Defendant's subpoena for his testimony. Because testimony from the first three witnesses would either be irrelevant or otherwise run afoul of Federal Rule of Evidence 403, the Court shall GRANT the [193] Motion to Exclude Witnesses as to former President Obama, former President Trump, and Johnson. The remainder of the [193] Motion shall be HELD IN ABEYANCE and addressed concomitantly with Carson's [200] Motion to Quash.[1]
A. Superseding Indictment
In summary terms, this criminal case centers on three alleged conspiracies. First, according to the Government, Michel and Low allegedly “secretly funnel[ed] foreign money [from] straw donors” to two political action committees that supported then-President Barack Obama's reelection campaign in 2012, “while concealing from the candidate, the committees, the FEC, the public, and law enforcement the true source of the money.” Indictment at 4-5. Michel and Low purportedly intended to funnel approximately $1,000,000, to be contributed via a June 2012 fundraiser that then-President Obama would attend. Id. The emails suggest that Michel knowingly solicited contributions from foreign individuals via wires from offshore companies. See id. at 10. Michel allegedly organized several straw donors, providing them funds to themselves make individual contributions to political action committees supporting the then-President Obama. This scheme was so successful that it earned Michel and Low personal access to then-President Obama on two separate occasions. See id. Throughout the conspiracy, Michel and his straw donors concealed the true, foreign source of the contributions in violation of 52 U.S.C. §§ 30109 and 20122, 18 U.S.C. §§ 1001(a)(1) and 2, and 18 U.S.C. §§ 1519 and 2.
Second, the Indictment alleges a broad conspiracy beginning in March 2017 to assist the Malaysian Prime Minister in convincing then-President Donald Trump to order the Department of Justice to drop investigations into Low for graft related to a Malaysian sovereign wealth fund. See id. at 24, 30-33. Michel and Low worked with George Higginbotham, at that time an attorney at the United States Department of Justice, Elliott Broidy, a businessman and former Deputy Finance Chair of the Republican National Committee, and Nickie Lum Davis, a California businesswoman and a foreign agent operating at the behest of the People's Republic of China. Both Higginbotham and Broidy have pleaded guilty before this Court for their roles in this conspiracy, Broidy to “Conspiracy to Serve as an Unregistered Agent of a Foreign Principal, in violation of 18 U.S.C. § 371” and Higginbotham to “Conspiracy to Make False Statements to a Bank in violation of 18 U.S.C. § 371.” Plea Agreement at 1, ECF No. 8, United States v. Broidy, Crim A. No. 20-0210 (CKK) (Oct. 20, 2020); Plea Agreement at 1, ECF No. 14, United States v. Higginbotham, Crim. A. No. 18-343 (CKK) (Nov. 30, 2018). Lum Davis has also pleaded guilty, to failure to register under FARA and aiding and abetting, in violation of 18 U.S.C. § 2 and 22 U.S.C. §§ 612 and 618(a), for her role in the conspiracy. Mem. of Plea Agreement at 2, ECF No. 15, United States v. Lum Davis, CR. No. 20-00068 LEK (Aug. 31, 2020).
In this conspiracy, beginning in or around March 2017, Michel allegedly assisted Low in executing a retainer agreement with Higginbotham and funneling illicit wire transfers from Low to Higginbotham, Lum Davis, and Broidy. Indictment at 29. The Indictment identifies specific emails and wire transfers in March 2017 formalizing the agreement between Low and his coconspirators. id. at 30. Michel played a crucial role in facilitating and fraudulently concealing these wire transfers that funded the scheme. id. at 29-30. It also details a purported meeting on May 2, 2017, in which the parties strategized how to best exert influence on then-President Trump. id. at 31. It further describes Michel's role in drafting talking points for the Malaysian Prime Minister on the issue for an upcoming meeting between the Malaysian Prime Minister and the President. See id. at 33.
Third and finally, Michel allegedly conspired with Lum Davis, Higginbotham, Broidy, Low, and a government official of the People's Republic of China to lobby the President of the United States and his administration to extradite a Chinese national and dissident, Guo Wengui (“Guo”), back to the People's Republic of China. id. at 34. The conspiracy with the Chinese government began on May 18, 2017, when Michel traveled to Hong Kong to meet with his coconspirators and, upon his arrival, was shuttled from Hong Kong to Shenzhen, China. See Id. There, the Chinese minister allegedly told the co-conspirators that he “was having trouble scheduling meetings with certain high-ranking United States government officials.” id. at 34. The Indictment describes subsequent meetings and wire transfers in August and September 2017, including in Macau, China, in which the co-conspirators allegedly discussed the structure of additional payments from Low to further the backchannel lobbying campaign. id. at 36-37. It also claims Low told the co-conspirators that he was “concerned that United States banks would not allow him to transfer large sums of money in or through the United States financial system.” Id. at 36. Michel allegedly suggested that the money be mischaracterized as “funds for entertainment purposes” to conceal their true source. id.
Finally, the Indictment adds two counts for criminal conduct allegedly completed after the end of the three conspiracies. After the filing of the first indictment in this case, ECF No. 1, Michel purportedly threatened two witnesses to change their testimony before the Government. The Indictment identifies two texts by date that it alleges “intimidate[d], threaten[ed], and persuade[d]” potential witnesses after the inception of this case. First, the Indictment alleges that Michel “caused a text message to be sent” on July 14, 2019, “threatening [a] [s]traw [d]onor [] with potential legal and reputational harm, including threatening to refer [them] to the United States Department of Justice for criminal investigation” allegedly “in an effort to cause [them] to falsely characterize” a conduit payment from Michel “as a loan” and to stop them “from providing testimony.” id. at 22. Second, the Indictment claims Michel “caused a text message to be sent threatening to refer” a witness “to federal law enforcement . . . in an effort to cause him to withhold his testimony.” id. at 23.[2]
As a general matter, the Sixth Amendment mandates that a defendant receive “compulsory process for obtaining witnesses in his favor.” “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1972) (citations omitted). That said, a defendant must nevertheless demonstrate that a subpoenaed witness's testimony will be both “material” and “favorable” to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). To that end, in determining whether to exclude a witness's testimony in limine, a court necessarily looks to the probative value of the proffered testimony. United States v. North, 910 F.2d 843, 948-49 (D.C. Cir. 1990) (Silberman, J., concurring) withdrawn and superseded in irrelevant part on reh'g 920 F.2d 940 (D.C. Cir. 1990).
The parties spend the vast majority of their briefing contesting whether a higher standard should apply to trial subpoenas issued to former Presidents and Cabinet secretaries. Relying on United States v. Poindexter, 732 F.Supp. 142 (D.D.C. 1990), the Government argues that a court's review of the appropriateness of compulsory process on a former President should be “particularly meticulous” and “scrutinized with a sharper eye and held to a higher standard than one to an ordinary citizen.” id. at 147; see also United States v North, 713 F.Supp. 1448, 1449 (D.D.C. 1989) (requiring a “sufficient showing” that a “former President's testimony is essential to assure the defendant a fair trial”) aff'd 910 F.2d 843 (D.C. Cir. 1990) ().
For his part, Defendant argues that the Supreme Court implicitly abrogated such an approach in Trump v. Vance, 140 S.Ct. 2412 (2020). There, the Court held that a state grand-jury subpoena duces tucem for a sitting President's private papers is not subject to a standard higher than that normally applied to subpoenas issued to private citizens. id. at 2430. The Court need not decide whether Vance abrogates Poindexter or North, however, because Defendant has not shown that the proffered testimony would be sufficiently “relevant and material” to be admissible under Federal...
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