United States v. Yang

Decision Date07 November 2019
Docket NumberCase No. 16-CR-00334-LHK
PartiesUNITED STATES OF AMERICA, Plaintiff, v. JENNIFER YANG and DANIEL WU, Defendants.
CourtU.S. District Court — Northern District of California

ORDER DENYING MOTION TO DISMISS THE INDICTMENT IN CASE NO. 16-CR-00335-LHK AND MOTIONS TO DISMISS COUNTS TWO, FIVE, AND SEVEN OF THE SUPERSEDING INDICTMENT IN CASE NO. 16-CR-00334-LHK

Re: Dkt. Nos. 169, 172, 173

Defendant Daniel Wu ("Wu") and Defendant Jennifer Yang ("Yang") moved to dismiss Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK. ECF Nos. 169 and 172. Wu also moved to dismiss all three counts of the Indictment in Case No. 16-CR-00335-LHK. ECF No. 173. Having considered the filings and oral arguments of the parties, the relevant law, and the record in this case, the Court DENIES Wu's and Yang's motions to dismiss.

I. BACKGROUND
A. Original Indictments

On July 28, 2016, in Case No. 16-CR-00335-LHK, a grand jury in the Northern District of California returned an indictment that charged Defendant Daniel Wu with three counts: (1) visa fraud, 18 U.S.C. § 1546, (2) mail fraud, 18 U.S.C. § 1341, and (3) aggravated identity theft, 18 U.S.C. § 1028A. United States v. Wu, Case No. 16-CR-00335-LHK, ECF No. 1 (N.D. Cal. July 28, 2016) (the "335 Indictment"). The 335 Indictment concerned an I-829 petition and supporting documents filed in August 2011 for Investor S.Y. Id. ¶¶ 1-3.

Also on July 28, 2016, a grand jury in the Northern District of California returned an indictment against Defendant Jennifer Yang in Case No. 16-CR-00334-LHK with the same three counts: (1) visa fraud, 18 U.S.C. § 1546, (2) mail fraud, 18 U.S.C. § 1341, and (3) aggravated identity theft, 18 U.S.C. § 1028A. United States v. Yang, Case No. 16-CR-00334-LHK, ECF No. 1 (N.D. Cal. July 28, 2016) (the "334 Indictment"). The 334 Indictment also related to the I-829 petition and supporting documents filed in August 2011 for Investor S.Y. Id. ¶¶ 1-3.

B. Superseding Indictment

On October 12, 2017, a grand jury in the Northern District of California returned a Superseding Indictment in Case No. 16-CR-00334-LHK (the "Superseding Indictment") that charges Wu and Yang with one count of conspiracy to commit visa fraud, mail fraud, aggravated identity theft, and to defraud the United States; three counts of visa fraud; two counts of mail fraud; and two counts of aggravated identity theft. ECF No. 4 ¶¶ 32-40. The Superseding Indictment also charges Yang with two counts of money laundering, 18 U.S.C. § 1957. Id. ¶¶ 41-42.

Specifically, the Superseding Indictment alleges the following against both Wu and Yang. Count One alleges a conspiracy to commit visa fraud, mail fraud, aggravated identity theft, and to defraud the United States. Id. ¶¶ 32-34.

Counts Two, Three, and Four allege visa fraud, 18 U.S.C. § 1546(a). Id. ¶¶ 35-36. Count Two pertains to an I-829 petition and supporting documents filed on August 15, 2011 for Investor S.Y. Id. ¶ 36. Counts Three and Four pertain to I-829 petitions and supporting documents filedon March 11, 2013 for Investor W.Z. and on July 3, 2014 for Investor Y.Z., respectively. Id.

Counts Five and Six allege mail fraud, 18 U.S.C. § 1341. Id. ¶¶ 37-38. Count Five relates to an I-829 petition and supporting documents filed on August 11, 2011 for Investor S.Y., and Count Six relates to an I-526 petition and supporting documents filed on March 11, 2013 for Investor W.Z. Id. ¶ 38.

Counts Seven and Eight allege aggravated identity theft, 18 U.S.C. § 1028A. Id. ¶¶ 39-40. Count Seven concerns an I-829 petition and supporting documents filed on August 11, 2011 for Investor S.Y. Id. ¶ 40. Count Eight concerns an I-526 petition and supporting documents filed on March 11, 2013 for Investor W.Z. Id.

Counts Nine and Ten of the Superseding Indictment allege money laundering against Yang, 18 U.S.C.§ 1957. Id. ¶¶ 41-42.

The Superseding Indictment was unsealed on October 16, 2017. ECF No. 6. The 335 Indictment was unsealed on October 19, 2017.

C. Motions to Dismiss

On October 15, 2019, Wu moved to dismiss the 335 Indictment on the basis that the five-year statute of limitations expired. ECF No. 169.

On October 15, 2019, Wu also moved to dismiss Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK ("Superseding Indictment") on the basis that the five-year statute of limitations for those counts had also expired. ECF No. 173. Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK are the exact same charges as the counts in the 335 Indictment.

The Government opposed both motions, ECF Nos. 201 and 202, and filed a supporting declaration from Richard Lin, a Special Agent of the Diplomatic Security Service of the United States State Department. ECF No. 201-1 ("Lin Decl."). Wu filed replies for both motions. ECF Nos. 210 and 213.

On October 15, 2019, Yang moved to join Wu's motion to dismiss the Indictment in CaseNo. 16-CR-00335-LHK. ECF No. 172. However, Yang is not a party to Case No. 16-CR-00335-LHK. The Court construes Yang's motion for joinder (ECF No. 172) as a motion to dismiss Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK and to adopt the same arguments Wu proffered in the motion to dismiss the Indictment in Case No. 16-CR-00335-LHK. At the November 6, 2019 hearing on the motions to dismiss, Yang's counsel confirmed that the motion for joinder should be construed as a motion to dismiss Counts Two, Five, and Seven of the Superseding Indictment.

On November 1, 2019, the Court ordered the Government to file additional declaration(s) regarding the Government's objectives in sealing the 334 Indictment, 335 Indictment, and Superseding Indictment (collectively, the "Indictments") from July 28, 2016 to October 16, 2017. ECF No. 220.

On November 5, 2019, Special Agent Lin filed an additional declaration. ECF No. 226 ("Supplemental Lin Decl."). On November 6, 2019, the Court held a hearing on the motions to dismiss.

II. DISCUSSION

Wu moves to dismiss the Indictment in Case No. 16-CR-00335-LHK (the "335 Indictment") on the basis that all three counts are time-barred. ECF No. 169. Wu also moves to dismiss Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK (the "Superseding Indictment") on the same basis. ECF No. 173. Yang also moves to dismiss Counts Two, Five, and Seven of the Superseding Indictment. ECF No. 172.

A. Legal Standard for Statute of Limitations for Sealed Indictments

"Generally speaking, the return of an indictment tolls the statute of limitations with respect to the charges contained in the indictment." United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990). "[T]his rule also applies to sealed indictments, as long as the indictments were properly sealed for legitimate prosecutorial objectives. In such cases, the indictment is deemed found for the purposes of the statute of limitations when it is returned, rather than when it is unsealed."United States v. Bracy, 67 F.3d 1421, 1426 (9th Cir. 1995). However, "[a]n improperly sealed indictment is deemed found on the date of unsealing, and if the date of unsealing is outside the limitations period, a violation of the statute of limitations will result." United States v. Benavides, 2009 WL 10679152, at *3 (D. Mont. Dec. 15, 2009). The parties agree that the statute of limitations as to all relevant counts is five years. 18 U.S.C. § 3282(a) ("Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.").

B. Counts Two, Five, and Seven of the Superseding Indictment are Timely as to Wu and Yang

Wu first contends that Counts Two, Five, and Seven of the Superseding Indictment in Case No. 16-CR-00334-LHK (the "Superseding Indictment") must be dismissed as time barred. Specifically, Wu argues that because the Indictment in Case No. 16-CR-00334-LHK (the "334 Indictment") charged only Yang and not Wu, the 334 Indictment cannot toll the statute of limitations as to Wu. However, as the Court explains further below, this argument fails because Counts Two, Five, and Seven of the Superseding Indictment are the same three counts in the original July 28, 2016 indictment in Case No. 16-CR-00335 (the "335 Indictment").

Additionally, Wu and Yang contend that Counts Two, Five, and Seven of the Superseding Indictment must be dismissed in any event because the 334 Indictment, the 335 Indictment, and the Superseding Indictment (collectively, the "Indictments") were not properly sealed. As a result, Wu and Yang contend that the "found" date for statute of limitations purposes should be the October 16, 2017 unsealing date of the Superseding Indictment. Because Counts Two, Five, and Seven of the Superseding Indictment allege conduct from August 2011 and the October 16, 2017 date the Superseding Indictment was unsealed lies outside the five-year statute of limitations period, Wu and Yang contend that these counts are time barred and must be dismissed. The Court disagrees.

The Court first addresses Wu's argument that there is no original indictment that timely charges him with the August 2011 conduct in Counts Two, Five, and Seven of the Superseding Indictment. The Court then turns to Wu's and Yang's argument that even if there is a timely original indictment, Counts Two, Five, and Seven of the Superseding Indictment are still time-barred because legitimate prosecutorial objectives did not justify sealing from the July 28, 2016 original indictments to the October 16, 2017 unsealing of the Superseding Indictment.

1. The 335 Indictment Timely Charges Wu With the August 2011 Conduct Alleged in Counts Two, Five, and Seven of the Superseding Indictment

The 334 Indictment was returned on July 28, 2016 and timely charged Yang with visa fraud, mail fraud,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT