United States v. Lam

          ORDER RE MOTIONS TO DISMISS AND MOTION FOR BILL OF PARTICULARS

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this 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 Denied.

         STATEMENT

         Genentech, 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).

         Defendant 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).

         Xanthe's 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).

         In 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).

         James 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).

         Based 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.

         1. Motions to Dismiss.

         Federal 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).

         A. Count 8.

         Defendant 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. ...