The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
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, ¶ 24a.) Subsequently, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") began an undercover investigation which lasted until June 2007. (Id. ¶ 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.
B. Allegations in the Second Superseding Indictment
The Second Superseding Indictment charges defendants Harrison Ulrich Jack, Lo Cha Thao, Lo Thao, Youa True Vang,*fn2 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 ¶ 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 ¶ 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.*fn3
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 also portrayed by the government as a leader of the alleged military enterprise and 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 Heather M. Schmidt, trial attorneys from the National Security Division of the Department of Justice in Washington, D.C., appeared on behalf of the government.
The original Indictment was filed more than three years ago, on June 14, 2007. The First Superseding Indictment, which added two new defendants, was filed more than two years later on September 17, 2009. And finally, after eleven pre-trial motions were filed by defendants, a Second Superseding Indictment was filed less than four months ago on June 24, 2010. Given these series of events and developments, this criminal prosecution can best be described as both uneven and evolving.*fn4 It is against this background that the court undertakes its analysis of the first pretrial motions to be resolved in this matter.
A. Sufficiency of the Allegations
All defendants move to dismiss Counts One, Four, and Five of the Second Superseding Indictment on the grounds that the government has not pled sufficient facts to set forth the elements of the crimes charged or to put each defendant on notice of the specific offense with which he is charged.
The Sixth Amendment to the Constitution requires that a defendant "be informed of the nature and cause of the accusation." "An indictment must provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense and plead double jeopardy at a later prosecution." United States v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); Russell v. United States, 369 U.S. 749, 763-64 (1962) (holding that the sufficiency of an indictment is measured by "first, whether the indictment contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extend he may plead a former acquittal or conviction.") (internal quotations omitted). The Ninth Circuit has also noted that "[t]wo corollary purposes of an indictment are to ensure that the defendant is being prosecuted on the basis of facts presented to the grand jury and to allow the court to determine the sufficiency of the indictment." Id.
In order to serve these purposes, an indictment must "allege the elements of the offense charged and the facts which inform the defendant of the specific offense with which he is charged." Id. (citing Russell v. United States, 369 U.S. 749, 763 (1962); United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir. 1980)). Accordingly, the Ninth Circuit has expressly held that in order to withstand a motion to dismiss, an indictment must allege each element of the charged offense with sufficient detail (1) to enable the defendant to prepare his defense; (2) to ensure him that he is being prosecuted on the basis of the facts presented to the grand jury; (3) to enable him to plead double jeopardy; and (4) to inform the court of the alleged facts so that it can determine the sufficiency of the charge.
United States v. Bernhardt, 840 F.2d 1441, 1445 (9th Cir. 1988) (citing United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986)).
"In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). The court must accept the allegations in the indictment as true in determining whether a cognizable offense has been charged. Id. "A motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence. . . . The [c]court should not consider evidence not appearing on the face of the indictment." United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (quoting United States v. Marra, 481 F.2d 1196, 1199-1200 (6th Cir. 1973)).
1. Count Five: 18 U.S.C. § 960 - Violation of the Neutrality Act*fn5
Defendants move to dismiss Count Five on the basis that the allegations fail to set forth a violation of the Neutrality Act (the "Act"), 18 U.S.C. § 960. The government asserts that the Second Superseding Indictment sufficiently alleges that a military expedition or enterprise was to be carried on from the United States.
The Neutrality Act provides:
Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both.
18 U.S.C. § 960. "Neutrality . . . consists in abstinence from any participation in a public, private, or civil war, and in impartiality of conduct towards both parties." United States v. The Three Friends, 166 U.S. 1, 52 (1897). The purpose of the Act is "to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of belligerency." Wiborg v. United States, 163 U.S. 632, 647 (1896). Indeed, "as mere matter of municipal administration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention." The Three Friends, 166 U.S. at 52.*fn6
"There are four acts declared to be unlawful, and which are prohibited by the statute: To begin an expedition, to set on foot an expedition, to provide the means of an enterprise, and, lastly, to procure those means." United States v. Lumsden, 26 F. Cas. 1013, 1015 (S.D. Ohio 1856) (internal quotations omitted). Accordingly, in order to set forth a violation of the Act, the Second Superseding Indictment must allege the existence of a military expedition or enterprise that is to be carried on from the United States.
The Supreme Court has held that the ordinary meaning to be accorded the term "military expedition" is "a journey or voyage by a company or body of persons, having the position or character of soldiers, for a specific warlike purpose; also the body and its outfit." Wiborg, 163 U.S. at 650. The term "soldier" is defined as "a person engaged in military service. . . as a member of an organized body of combatants." WEBSTER'S THIRD NEW INT'L DICTIONARY UNABRIDGED 2168 (1993). "The word expedition is used to signify a march or voyage with martial or hostile intentions." Lumsden, 26 F. Cas. at 1015.
The term "enterprise" gives a "slightly wider scope to the statute." Id. "[A] military enterprise is a martial undertaking involving the idea of a bold arduous, and hazardous attempt."
Id. Such an enterprise exists "where a number of men, whether few or many, combine and band themselves together, and thereby organize themselves into a body, within the limits of the United States, with a common intent or purpose on their part at the time to proceed in a body to foreign territory . . . ." United States v. Murphy, 84 F. 609, 614 (D. Del. 1898). At bottom, such individuals must demonstrate "concert of action" in order to constitute a military enterprise. Wiborg, 163 U.S. at 652; Murphy, 84 F. at 613.
The organization of a military enterprise need not be completed or perfected within the United States; rather, "[i]t is sufficient that the military enterprise shall be begun or set on foot within the United States" or that by previous arrangement or agreement, individuals "meet at a designated point either on the high seas or within the limits of the United States." Murphy, 84 F. at 614; see Wiborg, 163 U.S. at 653-54 ("It is sufficient that they shall have combined and organized here to go there and make war on a foreign government, and to have provided themselves with the means of doing so."). In Gandara v. United States, the Ninth Circuit held that there was sufficient evidence to support a conviction of violating the Neutrality Act where the defendant had furnished arms and ammunition to the Yaqui Indians in Arizona to be used in the operations against the Mexican government. 33 F.2d 394. The court concluded that it was "clear that the enterprise or expedition was to be carried on from Tucson, Ariz., against the Mexican ...