United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO DISMISS THE INDICTMENT IN NO.
16-CR-00335-LHK AND MOTIONS TO DISMISS COUNTS TWO, FIVE, AND
SEVEN OF THE SUPERSEDING INDICTMENT IN NO. 16-CR-00334-LHK
RE: DKT. NOS. 169, 172, 173
LUCY
H. KOH UNITED STATES DISTRICT JUDGE.
Defendant
Daniel Wu (“Wu”) and Defendant Jennifer Yang
(“Yang”) moved to dismiss Counts Two, Five, and
Seven of the Superseding Indictment in No. 16-CR-00334-LHK.
ECF Nos. 169 and 172. Wu also moved to dismiss all three
counts of the Indictment in 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 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, 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 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, 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 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 filed on 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 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 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 Case No. 16-CR-00335-LHK. ECF No.
172. However, Yang is not a party to 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 No. 16-CR-00334-LHK and to adopt
the same arguments Wu proffered in the motion to dismiss the
Indictment in 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 ...