United States v. Yang

          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 ...