United States District Court, N.D. California
ORDER RE MOTIONS TO DISMISS AND MOTION FOR BILL OF
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
criminal action for theft of trade secrets, defendants move
to dismiss certain counts in the indictment. Defendants also
move for a bill of particulars. For the following reasons,
the motions to dismiss are Denied. The
motion for a bill of particulars is also
Inc. is a biotechnology corporation in San Francisco.
Genetech manufactures and commercializes biopharmaceuticals
for various medical conditions. Genentech has developed,
manufactured, and marketed biopharmacuticals such as
Pulmozyme (cystic fibrosis treatment), Rituxan
(non-Hodgkin's lymphoma and chronic lymphocytic leukemia
treatment), Herceptin (breast cancer and gastric cancer
treatment), and Avastin (cancer treatment). JHL Biotech, Inc.
is a biopharmaceutical company in Taiwan. It developed
biosimilars of Pulmozyme, Rituxan, Herceptin, and Avastin
(Indict. ¶¶ 1-4).
Xanthe Lam was a principal scientist at Genentech from 1986
until 2017. During this time, she allegedly, among other
things, facilitated the transfer of Genentech trade secrets
regarding the aforementioned drugs to JHL (id. at
¶¶ 5, 12).
husband, Allen Lam was also employed at Genentech in Quality
Control from 1989 to 1998. He allegedly also facilitated the
transfer of these trade secrets and served as a consultant to
JHL in 2013 in exchange for fees and founder stock options
(id. at ¶¶ 6, 13).
2014, Xanthe helped a family friend named John Chan get hired
at JHL. From 2014 to 2016, Xanthe allegedly provided
confidential Genentech documents to Chan (id. at
¶¶ 7, 15).
Quach was an engineer at Genentech. Xanthe referred him to
JHL for employment as an engineering manager. After he
received an employment offer from JHL, Xanthe allegedly
allowed him to access Genentech's secure database to
download documents with Genentech trade secrets (id.
at ¶¶ 8, 23).
on these allegations, defendants Xanthe, Allen, and Chan are
charged with violating 18 U.S.C. § 1832(a)(5) -
Conspiracy to Commit Theft of Trade Secrets (Count 1).
Defendants Xanthe, Allen, and Chan are also charged with
violating 18 U.S.C. §§ 1832(a)(1), (2), (3) & 2
- Theft of Trade Secrets; Aiding and Abetting (Counts 2 to
27). Defendants Xanthe and Quach are charged with violating
18 U.S.C. § 1832(a)(5) - Conspiracy to Commit Theft of
Trade Secrets (Count 28); 18 U.S.C. §§ 1832(a)(1),
(2), (3) & 2 - Theft of Trade Secrets; Aiding and
Abetting (Counts 29 to 32); 18 U.S.C. § 1030(b) -
Conspiracy to Commit Computer Fraud and Abuse (Count 33); and
with 18 U.S.C. §§ 1030(a)(2)(C), (c)(2)(B)(i),
(ii), (iii) & 2 - Computer Fraud and Abuse; Aiding and
Abetting (Counts 34 to 36). Chan now moves to dismiss Count 8
of the indictment. Xanthe and Quach move to dismiss Counts 33
to 36 of the indictment. In the event their motions are
denied, Xanthe and Quach also move for a bill of particulars
as to Counts 33 to 36.
Motions to Dismiss.
Rules of Criminal Procedure 12 allows a party “to raise
by pretrial motion any defense, objection, or request that
the court can determine without a trial on the merits.”
Such defenses, objections, or requests include, “(B) a
defect in the indictment or information; including; (i)
joining two or more offenses in the same count
(duplicity)” and “(v) failure to state an
offense.” FRCP 12(b)(3).
John Chan moves to dismiss Count 8 on the ground that it
suffers from duplicity. Charging two offenses in one count of
an indictment contravenes Rule 8(a) which provides that an
indictment contain a separate count for each offense.