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United States v. Yang

United States District Court, N.D. California, San Jose Division

October 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JENNIFER YANG AND DANIEL WU, Defendants.

          ORDER DENYING DEFENDANT JENNIFER YANG'S MOTIONS IN LIMINE RE: DKT. NOS. 167, 168, 171

          Lucy H. Koh, United States District Judge.

         On October 12, 2017, a federal grand jury returned a Superseding Indictment charging Defendants Jennifer Yang and Daniel Wu with one count of conspiracy (“Count 1”), three counts of visa fraud (“Counts 2 through 4”), two counts of mail fraud (“Counts 5 and 6”), and two counts of aggravated identity theft (“Counts 7 and 8”). ECF No. 4 (“Superseding Indictment”). The Superseding Indictment also charges Defendant Jennifer Yang with two counts of money laundering (“Counts 9 and 10”). Id. Trial in this case is scheduled to begin on November 12, 2019. A pre-trial conference will take place on October 30, 2019.

         On October 15, 2019, in advance of the pre-trial conference, Defendant Yang filed four motions in limine: (1) Motion in Limine No. 1 to Exclude Certain Documents Located in the Bates Ranges Provided for Government Exhibits One Through Nine, ECF No. 167, which Defendant Wu joins, ECF No. 177; (2) Motion in Limine No. 2 Re: Christine Sarapu, ECF No. 168, which Defendant Wu joins, ECF No. 177; (3) Motion in Limine No. 3 to Exclude Government 404(b) Evidence, ECF No. 170; and (4) Motion in Limine No. 4 to Exclude Evidence Regarding Ms. Yang's Personal Expenses and Bank Accounts, ECF No. 171. The Government filed oppositions on October 22, 2019. ECF Nos. 190, 191, 193. The Court resolved Defendant Yang's Motion in Limine No. 3 in its October 25, 2019 order. ECF No. 200. Defendant Yang's three remaining motions in limine are now before the Court. Having considered the parties' submissions, the relevant law, and the record in this case, the Court DENIES all three remaining motions in limine.

         I. LEGAL STANDARD

         Motions in limine are a “procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Like other pretrial motions, motions in limine are “useful tools to resolve issues which would otherwise clutter up the trial.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017). Accordingly, “a ruling on a motion in limine is essentially a preliminary opinion that falls entirely within the discretion of the district court.” Id.; see Luce v. United States, 469 U.S. 38, 41 n. 4 (1984) (explaining that a court may rule in limine “pursuant to the district court's inherent authority to manage the course of trials”).

         In many instances, however, rulings “should be deferred until trial, so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context.” United States v. Pac. Gas & Elec. Co., 178 F.Supp.3d 927, 941 (N.D. Cal. 2016). For example, in order to exclude evidence on a motion in limine, “the evidence must be inadmissible on all potential grounds.” McConnell v. Wal-Mart Stores, Inc., 995 F.Supp.2d 1164, 1167 (D. Nev. 2014). Thus, denial of a motion in limine to exclude certain evidence does not mean that all evidence contemplated by the motion will be admitted, only that the court is unable to make a comprehensive ruling in advance of trial. Id. Moreover, even if a district court does rule in limine, the court may “change its ruling at trial because testimony may bring facts to the district court's attention that it did not anticipate at the time of its initial ruling.” City of Pomona, 866 F.3d at 1070; see also Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) (“[I]n limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial.”).

         II. DEFENDANT YANG'S MOTIONS IN LIMINE

         A. Motion in Limine No. 1 to Exclude Certain Documents Located in the Bates Ranges Provided for Government Exhibits One Through Nine

         In Motion in Limine No. 1, Defendant Yang asks the Court to exclude various immigration filings identified in the Government's Exhibit List that she believes are not relevant to the charged conduct. ECF No. 167 (“Yang Mot. No. 1”) at 2. As part of the charged scheme to defraud, Defendant Yang is accused of having “submit[ted] and cause[d] to be submitted I-526 and I-829 petitions . . . containing false representations and material omissions.” Superseding Indictment at ¶ 23. As relevant here, the Superseding Indictment identifies three specific I-526 or I-829 forms that form the basis of the charges: WZ's I-526 petition, identified as Government Exhibit 1; YZ's I-829 petition, identified as Government Exhibit 7; and SY's I-829 petition, identified as Government Exhibit 8. Id. ¶¶ 36, 38, 40; ECF No. 156; see also Yang Mot. No. 1 at 2. Defendant Yang objects that these exhibits, though they purport to contain only the aforementioned petitions, actually “include multiple unrelated immigration petitions or filings (the ‘Unrelated Filings') that are distinct from the I-526 and I-829 petitions at issue.” Yang Mot. No. 1 at 2. Defendant Yang therefore moves to exclude those “unrelated filings” as irrelevant under Federal Rule of Evidence 401 or likely to confuse the jury and cause undue prejudice under Federal Rule of Evidence 403. Id. at 3.

         The Government responds that its exhibits do not contain any “unrelated filings.” Rather, the exhibits at issue simply reflect the way that U.S. Citizenship and Immigration Services (“USCIS”) organizes and evaluates EB-5 visa applications. ECF No. 191 at 3. According to the Government, USCIS considers submissions other than the applicant's I-526 or I-829 forms, and its records of each application include the supporting submissions. Id. As a result, the Government's exhibits contain documents other than the applicant's I-526 or I-829 form because “those documents . . . constituted part of the overall applications that USCIS reviewed in adjudicating those petitions.” Id. The Government has not itself “shuffle[d] or rearrange[d]” the files it received from USCIS. Id. It is undisputed that WZ's visa application, YZ's visa application, and SY's visa application are relevant to the instant case, as they provide the factual predicate for various charges in the Superseding Indictment. As the Government represents that its exhibits contain only those filings that comprised each individual visa application, the objected-to documents are relevant as well.

         Furthermore, the Government contends that forms that require the preparer-when that is someone other than the petitioner-to identify himself or herself are evidence of Defendants' control over the foreign investors' visa application processes. Id. at 4. Similarly, the Government asserts that forms that record contact information used by USCIS to provide status updates on pending petitions are evidence of Defendants' control over information from USCIS to the foreign investors. Id. The Government also argues that USCIS's requests for evidence and responses to such requests are evidence of the deficiencies in the petitions, as well as Defendants' alleged attempts to bolster false representations in the original submissions. Id. These proposed uses of immigration forms other than the applicant's I-526 or I-829 form are entirely appropriate.

         Accordingly, Defendant Yang's motion is DENIED. Defendants may object on Rule 403 grounds when the Government seeks to introduce specific documents at trial.

         B. Motion in Limine No. 2 Re: Christine Sarapu

         In Motion in Limine No. 2, Defendants ask the Court to exclude portions of Government expert Christine Sarapu's report and to preclude Ms. Sarapu from testifying to the same. ECF No. 168 (“Yang Mot. No. 2”). Specifically, Defendants contend that Ms. Sarapu proposes to offer testimony “defining the applicable law and drawing legal conclusions as to what constitutes compliance with, or violations of, the law, in the following numbered paragraphs[:] 19, 23-29, 31-42, 45-50, 52-82, 84-86, and 100.” Id ...


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