United States v. Yuen

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA D
) AUG 1 1 2009
UNITED STATES OF AMERICA, )
) NANCY r»iA‘rER WH\TT\NGTON, CLERK
plaintiff ) U.S. D£SlR|oT COURT
)
v. ) Criminal Action No. 07-225 (RBW)
)
AITOFELE T.F. SUNIA )
and TINI LAM YUEN, )
)
Defendants. )
)
MEMORANDUM OPINION
Aitofele T.F. Sunia and Tini Lam Yuen, the defendants in this criminal case, have filed a
motion to dismiss in whole or in part Counts One through Six of the indictment against them
pursuant to Federal Rule of Criminal Procedure l2(b)(3)(B). Joint Motion of Aitofele T.F. Sunia
and Tini Lam Yuen to Dismiss in Whole or in Part Counts One through Six at l. On September
8, 2008, the Court heard oral argument on the defendants’ motion and denied the motion insofar
as it sought to dismiss Counts Five and Six of the indictment in their entirety and Count One of
the indictment in part. Currently before the Court is the balance of the motion to dismiss and a
motion for partial reconsideration of the Court’s earlier oral rulings filed by the defendants.
After carefully considering the indictment, the defendants’ motions, all memoranda of law and
exhibits relating to those motions,’ and the parties’ oral representations at the September 8
l In addition to the indictment and the defendants’ m0tions, the Court considered the following documents in
reaching its decision: (l) the Memorandum of Law in Support of Joint Motion ofAitofele T.F. Sunia and Tini Lam
Yuen to Dismiss in Whole or in Part Counts One through Six (the "Defs.’ Dismissal Mem."), (2) the G0vernment’s
Opposition to Defendants’ Motion to Dismiss in Whole or in Part Counts One through Six of the indictment (the
"Gov’t’s Dismissal Opp’n"), (3) the Reply Memorandum in Support ofJ0int Motion of Aitofele T.F. Sunia and Tini
Lam Yuen to Dismiss in Whole or in Part Counts One through Six (the "Defs.’ Dismissal Reply"), (4) the
Government’s Submission of Supplemental Authority in Opposition to Defendants’ Motion to Dismiss in Whole or
(continued . . . )
hearing and the subsequent hearing regarding these motions held on August 4, 2009, the Court
concludes that it must grant the balance of the defendants’ motion, grant the defendants’ motion
for reconsideration, dismiss in part Counts Two through Four of the indictment, and dismiss
Counts Five and Six of the indictment in their entirety for the reasons that follow.
I. Background
The following facts are alleged in the indictment. Sunia, who "currently serves as
Lieutenant Govemor of American Samoa," indictment 11 8, and previously served as Treasurer of
the American Samoa government from July 9, 2001, to April ll, 2003, Acting Treasurer from
April ll, 2003, until June 6, 2003, § 11 10, and "Counsel to the Fono [the territory’s legislative
body] from February l6, l999[,] to July 9, 2001," § jl ll, along with Lam Yuen, who has
served as a member of the Fono since January 3, 2001, § 1 15, allegedly "conspire[d] . . . with
the [American Samoa] Chief Procurement Officer, [] Director of Education, and others . . . to
commit offenses against the United States," § 11 26, including fraudulent receipt of federal
"payments totaling $775,000 made to companies under their control, in exchange for supplying
furniture to the [American Samoa Department of Education] valued at more than $5,000," §
1 26(a), and bribery of "the Director of Education and the Chief Procurement Officer," §
jl26(b). The defendants allegedly engaged in this conspiracy "to personally enrich themselves,
their relatives, and their business associates" by "secur[ing] for companies under their control
lucrative payments totaling hundreds of thousands of dollars in exchange for manufacturing and
in Part Counts One through Six of the indictment, (5) Aitofele T.F. Sunia[’s] and Tini Lam Yuen’s Response to
Government’s Submission of Supplemental Authority, (6) Aitofele T.F. Sunia[’s] and Tini Lam Yuen’s Joint
Motion for Reconsideration of Motion to Dismiss Counts Five and Six of the indictment (the "Defs.’
Reconsideration Mot."), (7) the Government’s Opposition to Defendants’ Motion for Reconsideration of Motion to
Dismiss Counts Fix and Six (the "Gov’t’s Reconsideration Opp’n"), (8) Aitofele T.F. Sunia[’s] and Tini Lam
Yuen’s Reply to Government’s Opposition to Joint Motion for Reconsideration of Motion to Dismiss Counts Fix
and Six of the indictment (the "Defs.’ Reconsideration Reply"), and (9) the Submission of American Samoa Law in
Support of Joint Motion of Aitofele T.F. Sunia and Tini Lam Yuen to Dismiss Count Two As to the Periods When
They Were Legislative Branch Offlcials.
supplying classroom and library fumiture for the [American Samoa Department of Education] ."
§ 1 27.
Speciflcally, the defendants allegedly "obtain[ed] payments in connection with the
[American Samoa Department of Education’s] furniture projects" by "us[ing] false and
fraudulent means, including improperly structuring invoices and other procurement
documents . . . to circumvent the [American Samoa] procurement laws and avoid the competitive
bidding process." § 1 28(b). This alleged fraudulent process allowed the defendants to
"effectively eliminate[] price competition for the furniture" and "charge[] artificially high prices
for the fumiture," thereby "wast[ing] [American Samoa] and federal grant funds that could have
been used for other [American Samoa] Department of Education needs." § 1 28(0). Further,
the defendants allegedly gave the American Samoa Chief Procurement Offrcer "a share of the
fumiture projects for [the Chief Procurement Officer’s] company, [Samoa Wood Products, inc.],
in consideration for his agreement not to enforce procurement regulations and not to open the
jobs up for competitive bidding," § 1 28(d), and allegedly gave the American Samoa Director of
Education "cash payments and free contracting work on his house[] to reward him for dividing
up and awarding fumiture payments to companies under [the defendants’] control in violation of
the procurement regulations," § 1 28(e).
While acting as Treasurer for the American Samoa government, Sunia allegedly
"processed payment of the furniture invoices using both local and federal funds," in some
instances "plac[ing] his own signature on the checks." § 1 28(f). The defendants, "the Chief
Procurement Officer, their employees, or their family members [allegedly] picked up the
checks . . . in person at either the []Treasury or [Department of Education] offices." i_c_l_. 1 28(g).
in turn, the "the Director of Education and other [Department of Education] officials [allegedly]
awarded additional furniture jobs" to companies owned by the defendants using "the same
fraudulent and misleading manner to circumvent the procurement regulations." i_d. 1 28(h).
Sunia allegedly concealed his involvement by "incorporating [his] company under the names of
his daughter and two business associates." § 1 28(i).
"in or about August [of] 2003," the Offlce of inspector General of the United States
Department of Education "commenced an investigation into fraud, waste[,] and abuse involving
federal grant funds issued to the [American Samoan] government." § 1 55. This investigation
was conducted "jointly with agents from the Office of inspector General of the United States
Departments of the interior and Homeland Security and the Federal Bureau of investigation." i_d_.
As part of this investigation, Sunia "submitted to a voluntary interview with federal law
enforcement agents from the [United States] Department of Homeland Security’s Offlce of
inspector General and the Federal Bureau of investigation," § 1 57, at which time he allegedly
"[made] materially false and misleading statements to federal agents" to the effect that "his
daughter ran [Sunia’s company], that [his company] was doing work for the Library Services
Offrce of the [American Samoa Department of Education] on a ‘need basis’ only, and that
[Sunia] did not intentionally keep his name off [] the articles of incorporation of [his company],"
§ 1 58. Similarly, Lam Yuen "submitted to a voluntary interview with federal law enforcement
agents from the [United States] Department of the interior Office of inspector General and the
Federal Bureau of investigation," § 1 62, where he allegedly "[made] materially false and
misleading statements" to the effect that "he never gave any money to [the American Samoa
Director of Education] and that he never gave anything of value to [the American Samoa
Director of Education] for free," § 1 63.
The grand jury retumed its indictment against the defendants on September 6, 2007. The
indictment charges the defendant with six offenses. in Count One, the indictment alleges that the
defendants conspired with the Chief Procurement Officer and the Director of Education of
American Samoa as well as "others both known and unknown to the grand jury" to commit fraud
concerning programs receiving federal funds and bribery concerning programs receiving federal
funds. § 1 26. Counts Two and Three charge both defendants with these offenses directly
pursuant to 18 U.S.C. § 666(a)(l)(A) and 18 U.S.C. § 666(a)(2). § 11 48-5l. Count Four
charges Lam Yuen with a separate violation of § 666(a)(2). § 11 52~53. Finally, Counts Five
and Six charge Sunia and Lam Yuen, respectively, with obstruction of an agency proceeding in
violation of 18 U.S.C. § l505. § 11 54-63.
The defendants filed their motion to dismiss various counts of the indictment in whole or
in part on June 27, 2008. in support of their motion, the defendants argue that Count One of the
indictment requires dismissal "to the extent it is based on acts that purportedly occurred before
January 4, 2001," because "[b]y its ter1ns, the alleged conspiracy [could not] have existed until at
least two of the [e]xecutive [b]ranch officials" alleged to be a member of this conspiracy held
positions in the executive branch, which did not occur until that date. Defs.’ Dismissal Mem. at
l; _m§alsg § at 9~10 (making this argument). They also assert that Count Two requires
dismissal in its entirety with respect to Lam Yuen and in part with respect to Sunia because Lam
Yuen was never an "agent" within the meaning of § 666(a)(l)(A) and Sunia did not become an
"agent" within the meaning of the statute until he was appointed to the executive branch of the
America Samoan government. § at l, l()-l3. Further, the defendants contend that Counts Two
and Three of the indictment are time-barred to the extent they are based on acts that allegedly
occurred more than five years before the return of the indictment, § at l-Z, 13-20, and that
Count Four must be dismissed for the same reason insofar as it is based on alleged bribes that
occurred more than five years before the retum of the indictment, § at 2, 20-21. Finally, they
argue that Counts Five and Six of the indictment are defective because the government fails to
allege two necessary facts: (l) that the defendants’ alleged obstruction had the "natural and
probable effect" of obstructing the agency investigation leading to the defendants’ criminal
indictment, § at 2, 21-24; and (2) that the defendants knew or believed that an agency
investigation was pending when they made their allegedly obstructive statements, § at 2, 25-26.
The government challenges each of these arguments. it asserts that there is enough
ambiguity in the allegations set forth in the indictment to cover actions taken by the conspirators
prior to January 4, 200l, and that a conspiracy can begin before all of its elements are in place.
Gov’t’s Dismissal Opp’n at 4~6. it contests the defendants’ interpretation of the term "agent" in
§ 666(a)(l)(A), arguing that both defendants were "agents" of the America Samoan govemment,
if not the executive branch, when they were employed by the legislative branch of the
governrnent. § at 6-l l. And it disputes the application of the statute of limitations with respect
to Counts Two through Four, arguing that, with respect to all three counts, there was a
continuing course of conduct that prevented the statute of limitations from accruing, § at 12-17,
18-21, and that Count Two concems a "continuous offense" that did not end until the final
criminal act was committed, § at l7-l8. Finally, the government argues that 18 U.S.C. § 1505
does not require the government to allege a nexus between the defendants’ allegedly obstructive
statements and the proceeding allegedly obstructed, § at 24-25, and that the lies allegedly told
by the defendants obstructed justice, § at 25-26.
The parties argued these points in a hearing held on September 8, 2008. At that hearing,
the Court ruled from the bench that the defendants’ arguments with respect to Counts One, Five,
and Six were without merit, and therefore denied the defendants’ motion with respect to those
counts. The Court declined to rule with respect to the remainder of the defendants’ arguments.
The govemment has since filed a notice of supplemental authority in opposition to the
defendants’ motion, to which the defendants have responded.
The defendants filed their joint motion for partial reconsideration of the Court’s
September 8, 2008 oral ruling on July l0, 2009. in that motion, they revisit their argument that
Counts Five and Six of the indictment run afoul of the Grand Jury Clause of the Fif``th
Amendment because the government never alleges that the defendants knew of the agency
proceeding they allegedly obstructed, an element of the offenses charged in those counts. Defs.’
Reconsideration Mot. at l-Z, 6-12. The govemment counters that there is no need for the Court
to reconsider this previously rejected argument, Gov’t’s Reconsideration Opp’n at 2-3, 6-7, and
that the Court’s ruling was correct in any event, § at 3-6. Not surprisingly, the defendants find
these arguments wanting. _Sg Defs.’ Reconsideration Reply at l-5 (arguing that the Court
clearly erred in denying the defendants’ motion to dismiss Counts Five and Six and deriding the
"inordinate attention" devoted by the govemment "to the standard on a motion for
reconsideration").
At a hearing held on August 4, 2009, the Court heard oral argument from the parties
regarding the defendants’ motion for reconsideration. The Court also posed additional questions
to the parties regarding the applicability of § 666(a)(l)(A) to the defendants and heard additional
argument from the parties regarding that issue. At the conclusion of that hearing, the Court
indicated that it would endeavor to issue a memorandum opinion regarding the outstanding
portions of the defendants’ motion to dismiss and their motion for reconsideration within a
week’s time. 'l``his memorandum opinion fulfills the Court’s promise.
II. Standard of Review
As the Court previously noted, the defendants seek dismissal of portions of the
indictment against them pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) as well as
partial reconsideration of the Court’s oral rulings issued on September 8, 2008. As the
defendants’ motions entail distinct standards of review, the Court writes separately with respect
to each request.
A. Motion to Dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)
"[A]t any time while the case is pending, the court may hear a claim that the
indictment . . . fails to invoke the court’s jurisdiction or to state an offense." Fed. R. Crim. P.
12(b)(3)(B). "in ruling on a motion to dismiss for failure to state an offense, a district court is
limited to reviewing the fagg of the indictment and, more specifically, the language used to
charge the crimes." United States v. Sharpe, 438 F.3d 1257, 1263 (1 ith Cir. 2006) (emphasis in
original). "Adherence to the language of the indictment is essential because the Fifth
Amendment requires that criminal prosecutions be limited to the unique allegations of the
indictments returned by the grand jury." United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir.
2001). The district court must "presume the allegations of [the] indictment to be true," §§
States v. Fiander, 547 F.3d 1036, 1041 n.3 (9th Cir. 2008) (internal citation and quotation marks
omitted), and "may not dismiss an indictment on a determination of facts that should have been
developed at trial," _hgrp_e, 438 F.3d at 1263 (internal citation and quotation marks omitted).
B. Motion for Reconsideration of interlocutory Decisions
"Although the Federal Rules do not specifically provide for motions for reconsideration
in criminal cases, the Supreme Court has recognized, in digta, the utility of such motions."
United States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008); see also United States v.
§e_r, 429 U.S. 6, 8 (1976) (per curiam) (noting "the wisdom of giving district courts the
opportunity promptly to correct their own alleged errors"). Thus, this Court assumes, as it has in
the past, that it can consider such a motion in a criminal case. _S_e_e United States v. Booker, 613
F. Supp. 2d 32, 34 (D.D.C. 2009) (citing Dieter and United States v. Healv, 376 U.S. 75, 78
(1964), as support for the notion that the Court can consider motions for reconsideration in
criminal cases); Ferguson, 574 F. Supp. 2d at 113 (proceeding "on the assumption that it may
consider” a motion for reconsideration in ruling on government’s motion for reconsideration of
order dismissing indictment); United States v. Libby, 429 F. Supp. 2d 46, 46-47 (D.D.C. 2006)
(Walton, J.) (considering the merits of the govemment’s motion for reconsideration of
evidentiary ruling).
in Li_b§v, this member of the Court adopted without explanation the standard of review
for motions for reconsideration filed under Rule 59(e) of the Federal Rules of Civil Procedure as
the appropriate standard for motions for reconsideration in criminal cases. §, 429 F. Supp.
2d at 46-47. Other members of the Court have, in turn, relied upon §by as authority for
employing this standard of review in considering their own motions for reconsideration. §
Ferguson, 574 F. Supp. 2d at 113 (adopting the § standard without comment); l
i@gl_569 F. Supp. 2d 99, 108 (D.D.C. 2008). "In particular,
reconsideration of an interlocutory decision is available under the standard, ‘as justice requires."’
Judicial Watch v. Dep’t of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006). As the Court’s
decision to deny the defendant’s motion to dismiss with respect to Counts Five and Six is
interlocutory in nature, se_e United States v. Hollvwood Motor Car Co., Inc., 458 U.S. 263, 264~
65 (1982) (holding that order denying motion to dismiss the indictment was not a "final order"
within the meaning of 28 U.S.C. § 1291), and as the Court’s apparent intention in L_i_b§y was to
simply transplant into the criminal context the standard of review for an analogous motion for
reconsideration filed in a civil case, the Court will evaluate the merits of the defendants’ motion
for reconsideration under the "as justice requires" standard rather than the standard enunciated in
§.
"‘As justice requires’ indicates concrete considerations by the [C]ourt . . . ." AFL-CiO v.
§_QL, 605 F. Supp. 2d 251, 257 (D.D.C. 2009). These considerations "include whether the
Court ‘patently’ misunderstood the parties, made a decision beyond the adversarial issues
presented, made an error in failing to consider controlling decisions or data, or whether a
controlling or significant change in the law has occurred." Isse v. Am. Univ., 544 F. Supp. 2d
25, 29 (D.D.C. 2008). Further, "for justice to require reconsideration, logically, it must be the
case that[] some sort of ‘injustice’ will result if reconsideration is refused. That is, the movant
must demonstrate that some harm . . . would flow from a denial of reconsideration." Cobel1v.
l, 355 F. Supp. 2d 531, 540 (D.D.C. 2005).
"Even if the appropriate legal standard does not indicate that reconsideration is
warranted, the Court may nevertheless elect to grant a motion for reconsideration if there are
other good reasons for doing so." i_sg, 544 F. Supp. 2d at 29 (internal citation and quotation
marks omitted). However, "while the law of the case doctrine does not necessarily apply to
interlocutory orders, district courts generally consider the doctrine’s underlying rationale when
deciding whether to reconsider an earlier decision." Malewicz v. Citv of Amsterdam, 517 F.
Supp. 2d 322, 328 (D.D.C. 2007). The Court therefore considers the defendants’ motion for
10
reconsideration "subject to the caveat that, where litigants have once battled for the Court’s
decision, they should neither be required, nor without good reason permitted, to battle for it
again." Lemmons v. Georgetown Univ. Hosg, 241 F.R.D. 15, 22 (D.D.C. 2007) (Walton, J.)
(quoting Judicial Watch, 466 F. Supp. 2d at 123 (internal citation and quotation marks omitted)).
III. Legal Argument
in light of the Court’s oral rulings at the hearing on the merits of the defendants’ motion
held on September 8, 2008, the only issues arising from the defendants’ motion to dismiss that
have not yet been resolved are (l) whether Lam Yuen and, for the period of time that he was an
agent of the legislative rather than the executive branch, Sunia were "agents" as required to state
an offense under 18 U.S.C. § 666(a)(1)(A), and (2) whether Counts Two through Four are time-
barred to the extent that they cover conduct that allegedly occurred more than five years before
the indictment was returned due to the limitations period set forth in 18 U.S.C. § 3282. To these
the Court must add the sole issue raised in the defendants’ motion for reconsideration: namely,
whether the Court erred in concluding that Counts Five and Six should not be dismissed
notwithstanding the government’s conceded failure to explicitly allege that the defendants knew
about the agency proceedings they allegedly obstructed. The Court considers each of these
issues in turn.
A. Applicabilitv of 18 U.S.C. § 666(a)(1)(A)
Count Two of the indictment charges both defendants with violations of 18 U.S.C.
§ 666(a)(1)(A). indictment 11 48-49. Section 666 states in pertinent part:
(a) Whoever, if the circumstance described in subsection (b) of this
section exists-
(l) being an agent of an organization, or of a State,
local, or indian tribal government, or any agency thereof-
11
(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly converts to
the use of any person other than the rightful owner
or intentionally misapplies, property that-
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care,
custody, or control of such organization,
government, or agency; []
shall be fined under this title, imprisoned not more than 10 years,
or both.
18 U.S.C. § 666(a)(1)(A) (2006) (emphasis added). "[T]he tenn ‘agent,"’ as used in the statute,
"means a person authorized to act on behalf of another person or a govemment and, in the case
of an organization or government, includes a servant or employee, and a partner, director,
officer, manager, and representative." § § 666(d)(1).
The parties disagree as to whether the indictment properly alleges that the defendants
were agents of the "organization, government, or agency" in whose "care, custody, or control"
the property at issue here resided. § § 666(a)(1)(A)(ii). According to the defendants, they
"[could not] have violated § 666(a)(1)(A) unless each [of them] was an ‘agent’ of’ the executive
branch of the American Samoa govemment because it was that branch of the govemment that
"received the requisite federal funds" giving rise to the indictment, Defs.’ Dismissal Mem. at 10.
"As [c]ounsel to the [l]egislative [b]ranch[] [until] July 9, 2001," Sunia asserts that he could not
have been an agent of the executive branch prior to that time, while Lam Yuen, who served "[a]s
a [m]ember of the Senate, . . . [could] §e_r_ [have been] such an agent." § (emphasis in
original).
The govemment counters that the American Samoa govemment is "a tight-knit group of
political and social allies who work closely within the power structure of the territory," and that
12
the defendants "were part of this power structure." Gov’t’s Dismissal Opp’n at 7~8. it argues
that the defendants’ interpretation of § 666(a)(1)(A) "ignores [the fact] that the statute clearly
allows for application" to agents of a "government," in this case the American Samoa
government. § at 8. Alleging that "[the] defendants were agents of the [American Samoa
govemment] and [that] they defrauded the [American Samoa government]" is, according to the
government, "all that is required." § at 9. Alternatively, the govemment asserts that the
defendants can still be charged with aiding and abetting a violation of § 666 under Count ii of
the indictment, § at 10-11.
"The first step [in a statutory construction analysis] is to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular dispute in the case."
Barnhart v. Sigmon Coal Co., inc., 534 U.S. 438, 450 (2002) (intemal citation and quotation
marks omitted). "When [a] statute’s language is plain, the sole function of the courts-at least
where the disposition required by the text is not absurd_is to enforce it according to its tenns."
Dodd v. United States, 545 U.S. 353, 359 (2005) (intemal citation and quotation marks omitted).
"in ascertaining the plain meaning of the statute, the [C]ourt must look to the particular statutory
language at issue, as well as the language and design of the statute as a Whole." K Mart Corp. v.
Cartier inc., 486 U.S. 281, 291 (1988); see also Bailev v. United States, 516 U.S. 137, 145
(1995) ("We consider not only the bare meaning of the word[,] but also its placement and
purpose in the statutory scheme.").
"Unless otherwise defined, statutory terms are generally interpreted in accordance with
their ordinary meaning," BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006); however,
"[s]tatutory definitions control the meaning of statutory words," Burgess v. United States,
U.S. ___, _, 128 S. Ct. 1572, 1577 (2008) (intemal citation and quotation marks omitted).
13
Further, "[c]anons of construction ordinarily suggest that terms connected by a disjunctive be
given separate meanings." Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Finally, the
Court presumes that "each term in a criminal statute carries meaning," United States v. Wells,
519 U.S. 482, 493 n.14 (1997); see also Cooper indus., inc. v. Aviall Servs., inc., 543 U.S. 157,
167 (2004) (referencing the "settled rule" that courts "must, if possible, construe a statute to give
every word some operative effect"). Further, the Court’s "resistance" to treating statutory
language as surplusage "is heightened when the words describe an element of a criminal
offense." Ratzlafv. United States, 510 U.S. 135, 140-41 (1994).
The government’s proffered reading of § 666(a)(1)(A) does not conform to these canons
of statutory construction. Section 666(a) applies only to agents of
"organization[s], . . . govemment[s], Q_r any agency thereof," 18 U.S.C. § 666(a)(l) (emphasis
added), suggesting that the terms "organization," "govemment," and "agency" must be given
"separate meanings," R§eite_r_, 442 U.S. at 339. And the statute defines the term "government
agency" to mean "a subdivision of the executive, legislative, judicial, or other branch of
government." 18 U.S.C. § 666(d)(2). Thus, applying the canon against surplusage, the tenn
"govemment" cannot be read as encompassing the "subdivision[s]" of those entities; otherwise,
the tenn "agency" would be subsumed within that term and have no "operative effect," Qoc_)pe_r
iri_cl_i_i§, 543 U.S. at 167. instead, the term "government" must be interpreted to refer to such an
entity only insofar as that entity is holding federal funds at the "executive, legislative, [or]
judicial" level, 18 U.S.C. § 666(d)(2), and not insofar as the funds are being held by a
subdivision of those entities.
Because the term "government" for purposes of § 666(a)(1)(A) cannot be read to
encompass its own "agenc[ies]," and because § 666(a)(1)(A) criminalizes only the conversion of
14
funds that are "owned by" or are "under the care, custody, or control of" the same "organization,
govemment, or agency" for which the putative wrongdoer is an "agent," the only plausible
interpretation of § 666(a)(1)(A) that gives effect to every provision in the statute is one that
restricts criminal liability for the conversion of funds from an agency receiving federal funds to
agents of that particular agency. Any other interpretation of the statute would make the inclusion
of language in the statute regarding agencies subsidiary to and therefore redundant of the
language in the statute regarding organizations and govemments. Thus, the Court is compelled
by the canons of construction that guide its understanding of the statute’s plain language to
conclude that the defendants’ interpretation of § 666(a)(1)(A) is the correct one and that the
defendants must have been agents of the American Samoa agency that received the purportedly
converted federal funds to be subject to liability under that statute.
The govemment asserts that this construction of the statute contradicts the Supreme
Court’s decisions in Salinas v. United States, 522 U.S. 52 (1997), and Sabri v. United States, 541
U.S. 600 (2004), Gov’t’s Dismissal Opp’n at 7, but those decisions do not implicate
§ 666(a)(1)(A). in §§ the Supreme Court held that a bribe need not affect federal funds to
violate § 666 based upon the statute’s "expansive, unqualified language." Sa§liri_a_s, 522 U.S. at
56. The "bribery scheme" in _Sgl_iila_\§ involved the payment of bribes to the Sheriff of Hidalgo
County, Texas, and one of his deputies in exchange for preferential treatment of a federal
prisoner housed in a Hidalgo County jail pursuant to an agreement between the United States
Marshals Service and Hidalgo County. § at 54-55. The parties did not address, and the Court
did not consider, whether there was a sufficient nexus between the defendants’ conduct and the
agency receiving federal funds to satisfy the requirements of the statute. § at 54-61.
15
Similarly, the question before the Supreme Court in Sa§br_i was
"whether . . . § 666(a)(2) . . . is a valid exercise of congressional authority under Article i of the
Constitution" in light of the Court’s conclusion in §na§ that a bribe need not directly affect
federal funds to run afoul of § 666. §a_l;r_i, 541 U.S. at 602. The Supreme Court confined its
analysis in §§ to the constitutionality of § 666(a)(2). § at 604-10. it never so much as
mentioned § 666(a)(l)(A), let alone purported to define its meaning and scope.
if anything, §§ and S_ztb_r_i suggest that this Court’s interpretation of § 666(a)(1)(A) is
consistent with the purposes underlying the statute. As the Supreme Court explained in Sa§lings,
Congress intended for § 666 to apply where there is "a threat to the integrity and proper
operation of [a] federal program." P, 522 U.S. at 61; see also Fischer v. United States, 529
U.S. 667, 678 (2000) (noting Congress’ "unambiguous intent" in passing § 666 "to ensure the
integrity of organizations participating in federal assistance programs"). However, the
"integrity" of a federal program can only be "threat[ened]" from within; i.e., by an agent of the
program receiving federal funds. interpreting § 666(a)(1)(A) in the manner advocated by the
govemment would sweep under the statute’s rubric a broad range of conduct that in no way
implicates "the reliability of those who use public money," Sa§bri, 541 U.S. at 608, including the
alleged conduct of Lam Yuen and, for at least some period of time, Sunia.
it is therefore not surprising that in the sole case actually addressing the scope of the
agency requirement of § 666, United States v. Phillips, 219 F.3d 404 (5th Cir. 2000), the court
required that there be "some nexus between the criminal conduct [alleged] and the agency
receiving federal assistance" for § 666 to apply, § at 413-14 (emphasis removed). in that case,
Chaney Phillips, a tax assessor for St. Helena Parish, Louisiana, engaged in "several different
schemes" involving Emerson C. Newman, "a friend and political supporter" who eventually
16
became Phillips’s co-defendant. § at 407. One of these schemes involved placing Newman on
the tax assessor’s payroll for a ten-month period in 1995, during which time Newman received
paychecks "amounting to $8,000, or $4,758 after taxes." § at 408. Newman, in turn, "credited
this entire amount to Phillips’s account at Newman’s hardware store." §
Ultimately, the jury found that Phillips, i§ §, "wrongly converted funds of the
assessor’s office" by "placing Newman on the payroll in 1995, and . . . corruptly accepted
something of value from someone who expected to be rewarded in a transaction with the
assessor’s office" by “accept[ing] kickbacks from Newman." § at 410. Phillips was thus
convicted of one count of theft or bribery conceming programs receiving federal funds pursuant
to § 666. §2 Phillips appealed his conviction to the United States Court of Appeals for the Fifth
Circuit, arguing that he was not an agent of the St. Helena Parish for purposes of § 666. § at
410~11.
The Fifth Circuit found Phillips’s argument persuasive. While recognizing that the funds
converted by Phillips "need not [have been] federal" or even "have [had] a direct effect on
federal funds," the court rejected the govemment’s suggestion "that the statute [could] reach any
government employee who misappropriate[d] purely local funds[] without regard to how
organizationally removed the employee [was] from the particular agency that administer[ed] the
federal program." § at 41l. instead, the Fifth Circuit inquired as to "whether Phillips, as [a]
tax assessor, was authorized to act on behalf of the parish with respect to its funds." §
Ultimately, the court concluded that he was not because (l) "although Phillips was the tax
assessor for property in the parish, the parish ha[d] no power, authority, or control over the
assessor’s duties or job," (2) "the assessor’s salary [was] not set by the parish, the salary [was]
2 "The federal funds in question were food stamps provided to parish residents." Phillips, 219 F.3d at 410.
17
not paid for by the parish, and the assessor receive[d] no employee benefits from the parish," §
at 412, and (3) "[t]here [was] nothing in the record to indicate that Phillips had any ability to
control or administer employees or programs or funds of the parish" or "[the] legal authority to
bind the parish," § at 413. The Fifth Circuit therefore reversed Phillips’s conviction under
§ 666, observing that his "actions did not [threaten] and could not have threatened the integrity
of federal funds or programs." §
Many of the factors that led the Fifth Circuit to conclude that Phillips was not an agent of
the St. Helena Parish suggest that the defendants should not be viewed as agents of the American
Samoa Departments of Treasury or Education for the duration of their employment by the
legislative branch. For example, the govemment does not and, by all accounts, cannot allege that
the American Samoa Departments of Treasury or Education had any "power, authority, or
control over the [defendants’] duties" as employees of the Fono, or that the defendants’ salary or
benefits were detennined by those agencies. § at 412, Nor is there any indication in the
indictment or under American Samoa law that Sunia, as Counsel to the Fono from February of
1999 to July of 2001, "had any ability to control or administer employees or programs or funds
of the [Departments of Treasury or Education]" or "[the] legal authority to bind [those
departments]." § at 413.
Other factors are slightly more ambiguous. While not specified in the indictment, the
govemment represents that the Department of Treasury issues checks to members and employees
of the Fono, a different arrangement than was the case in § at 413. Moreover, as a
member of the Fono, Lam Yuen had the "ability to control or administer employees or programs
or funds," §, of the Departments of Treasury and Education through his role as a legislator.
Am. Samoa Const. art. ii § l(c) (vesting the American Samoa legislature with "authority to pass
18
legislation with respect to subject of local application," including “[m]oney bills"); Am. Samoa
Ann. Code § 10.0503 (providing that the American Samoa legislature, ij L, must "consider
the program and financial plan recommended by the Govemor, including . . . [the] recommended
budget" and "adopt legislation to authorize the implementation of a comprehensive program and
financial plan"); § § 10.0507 (providing that "[t]he [l]egislature shall consider the Governor’s
proposed . . . financial plan[,] evaluate alternatives [thereto,] and determine the . . . financial plan
to support the services to be provided the people of the territory").
Upon closer examination, however, these factors are not as important as they might first
appear. While the Department of Treasury may have written the checks that covered the
defendants’ salaries as governmental employees, it would have done so only in its capacity as an
agent of the legislative branch. And the funds allegedly converted from the Department of
Treasury by the defendants were likewise held on behalf of the Department of Education, which
has no role in issuing the defendants’ paychecks. By analogy, the Department of Treasury is
more akin to a bank at which one customer (allegedly) robs another than it is to an employer
whose integrity is corrupted by the malfeasance of one of its employees, the paradigmatic § 666
offense.
As for Lam Yuen’s role as a legislator, the Court agrees that this factor would weigh in
favor of finding liability under § 666 had the govemment alleged that the conversion of the funds
in question were caused by the exercise of his legislative authority in some way. The statute
defines the term "agent" broadly to mean "a person authorized to act on behalf of another person
or a government," including "representative[s]" of that entity, 18 U.S.C. § 666(d)(1), and it is at
least conceivable that legislators would be acting as representatives of the govemment as a whole
to the extent that they used their official authority to affect the allocation of govemmental funds
19
to specific agencies or legislated with respect to the agencies themselves. After all, the corrupt
practices of a legislator can endanger the "integrity and proper operation" of the government as a
whole as much as the corrupt practices of an employee can affect the integrity of a specific
government agency. @, 522 U.S. at 61.
An example of a case in which such circumstances were present (and upon which the
government relies, § Gov’t’s Dismissal Opp’n at 8 (citing various authorities in support of the
government’s proffered reading of § 666(a)(1)(A)))3 is United States v. Lipscomb, 299 F.3d 303(5th Cir. 2002). in that case, "Albert Lipscomb, a former member of the Dallas City Council,
appeal[ed] his convictions for conspiracy and program bribery in violation of . . . § 666," § at
305, on the grounds that, ing §, the statute could not be read to encompass the conduct for
which he was convicted, § at 308-09. As described by the Fifth Circuit, Lipscomb
"energetically used many of the tools at the disposal of a Council member_his vote, his
oversight authority, his agenda-setting power, and his other parliamentary privileges_to support
policies favorable" to a taxi cab company that supplied him with monthly payments "even
though those policies conflicted with his previous positions." § at 307. While recognizing the
nexus requirement imposed in l and an earlier case, United States v. Moeller, 987 F.2d
1134 (5th Cir. 1993), the Fifth Circuit found that "whatever nexus § 666 requires-if any-[was]
present" because "[i]n Dallas, federal money supports the City’s transportation and human
3 The two other cases cited by the government in support of its interpretation of § 666(a)(1)(A), United States v.
Edgar, 304 F.3d 1320 (11th Cir. 2002), and United States v. Delano, 55 F.3d 720 (2d Cir. 1995), are less apropos.
in Edgar, the defendants were hospital executives who used their positions to convert hospital funds (some of which
were obtained from the government’s Medicare, Part A program) for their own benefit. Edgar, 304 F.3d at 1322.
Similarly, the defendant in Delano was the former commissioner of the same department of the city government (the
Parks Department) from which he converted property, i.e., his employees’ labor. Delano, 55 F.3d at 722-23. There
was simply no question in these cases that the defendants were agents of the same government agencies that were
victims of the defendants’ corrupt acts.
20
services departments_the very agencies of city govemment that Lipscomb sought corruptly to
infiuence." § at 315.
The Court thus acknowledges that a legislator who misuses his legislative authority to
facilitate corrupt practices affecting agency programs that receive federal funds may well fall
within the ambit of § 666. Under those circumstances, the legislator would be engaging in
corrupt acts at the govemmental level, not with respect to funds that have been allocated to a
specific agency. Applying § 666 to such conduct would be consistent with "the broad
397
‘corruption focus that courts have taken with respect to the statute. Lipscomb, 299 F.3d at 315;
see also United States v. Sotomavor-Vasquez, 249 F.3d l, 8 (lst Cir. 2001) (reasoning that "an
expansive definition of [the term ‘]agent[’] is necessary to fulfill the purpose of § 666").
However, in this case the govemment does not allege that the defendants "used any
official authority conferred [upon them] by their [l]egislative [b]ranch positions to commit a
violation of § 666(a)(1)(A), or even that either had the ability to use any such authority." Defs.’
Dismissal Reply at 7. instead, the govemment merely alleges that Sunia was counsel to the Fono
from February of 1999 to July of 2001 , indictment 1 11, and that Lam Yuen, having been a
member of the Fono since January of 2001, has "served on the Government Operations, Legal
Affairs, Economic & Development, and Public Works committees," § 1 l5. Although the
govemment apparently finds these bare allegations of membership in the legislative branch
sufficient for purposes of § 666(a)(1)(A), ge Gov’t’s Dismissal Opp’n at 3 (asserting that the
Fono "oversees spending and regulations on the islands"), the reality is that they are a far cry
from the situation in Lipscomb, where the defendant "used . . . his vote, his oversight authority,
his agenda-setting power, and his other parliamentary privileges" to influence legislation in
exchange for bribes. Lipscomb, 299 F.3d at 307.
21
Similarly, at the August 4, 2009 hearing before this Court, the govemment suggested that
an allegation in the indictment that the defendants conspired "to personally enrich themselves,
their relatives, and their business associates by using their positions in the [American Samoa
govemment] and relationships with the Director of Education and Chief Procurement Officer to
secure for companies under their control lucrative payments totaling hundreds of thousands of
dollars," indictment 1 27, somehow qualifies as an allegation that the defendants misused their
official authority as agents of the legislative branch to convert funds from the executive branch.
But alleging that the defendants planned to "us[e] their positions" in the legislative branch to
their advantage in some unspecified way is not the same as alleging that they actually used the
authority conferred upon them by law to convert funds from the American Samoa Department of
Treasury. Exploiting the personal cachet appurtenant to one’s role in the legislature for personal
gain, for example, does not necessarily implicate the same concems raised by the use of a
legislator’s official authority because it may not undermine the integrity of any decision made at
the govemmental level or result in the conversion of funds from the govemment itself (as
opposed to one of its agencies) in the same way that the exercise of a legislator’s official
authority would.
The Court therefore finds that Eh_ill_ip_s is both persuasive and applicable to the case at
hand. While Lam Yuen, at least, might have been subject to the reach of § 666 had he in some
way used his role as a member of the Fono to procure the funds allegedly converted from the
executive branch based upon Lipscomb, those facts are not alleged here. Consequently, the
defendants cannot be considered "agents" within the meaning of § 666 for the duration of their
employment in the legislative branch under the reasoning of Phillips.
22
The government suggests that any reliance by this Court on §Li_l§p§ would be
"misplaced" because the Fifth Circuit’s analysis in that case occurred after Phillips had been
convicted and with the benefit of a record for review. Gov’t’s Dismissal Opp’n at 9. But as the
defendants correctly point out, "there is no basis for deferring resolution of the ‘agent’
issue . . . given the government’s failure to dispute that, as a matter of American Samoa law,
neither the Legal Counsel to the Fono nor a Member of the Senate may act on behalf of or
control any of the [e]xecutive [b]ranch [d]epartments at issue." Defs.’ Dismissal Reply at 8.
"An indictment must set forth each element of the crime that it charges," Almendarez-Torres v.
United States, 523 U.S. 224, 228 (1998), and a motion to dismiss the indictment is the
appropriate mechanism for determining whether this requirement has been met, §e_e United States
v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002) (holding that a motion to dismiss the indictment is
appropriate where "a charging document fails to state an offense if the specific facts alleged in
the charging document fall beyond the scope of the relevant criminal statute[] as a matter of
statutory interpretation"). As the indictment fails to state that Lam Yuen was ever an agent of
the executive branch and states that Sunia was an agent of that branch only for a specified period
of time, Count Two of the indictment must be dismissed in its entirety with respect to Lam Yuen
and dismissed with respect to Sunia insofar as it concems his conduct as an agent of the
legislative branch.
Finally, the government’s altemative position that the defendants can be charged for
aiding and abetting violations of § 666(a)(1)(A) under 18 U.S.C. § 2 is misguided. S_e§ Gov’t’s
Dismissal Opp’n at 10-11 ("[E]ven if [the] defendants weren’t in agent positions during the
entirety of the scheme, the jury could nonetheless find them guilty under an 18 U.S.C. § 2
theory."). For the reasons stated above, Lam Yuen was never an "agent" of the executive branch
23
for purposes of § 666(a)(1)(A); consequently, Sunia could never have aided and abetted his
violation of that statute. §=,_e in re Nofziger, 956 F.2d 287, 291 (D.C. Cir. 1992) ("it is well
established that there must be a guilty principal before a second party can be found to be an aider
or abettor."). And as the defendants correctly note, the government alleges only that Lam Yuen
and Sunia were part of a conspiracy to obtain property by fraud from the American Samoa
govemment in violation of § 666(a)(1)(A), Defs.’ Dismissal Reply at 8; s_ee_@ indictment 1 26
(alleging only that the defendants "knowingly conspire[d], confederate[d,] and agree[d] . . . to
commit offenses against the United States, including" fraud conceming programs receiving
federal funds)_it never alleges that Lam Yuen aided and abetted Sunia’s direct commission of
that offense. Accordingly, the govemment’s fallback argument in support of an aiding and
abetting charge fares no better than its arguments in favor of charges for direct violations of
§ 666(a)(1)(A), and must be rejected.
The government’s proposed interpretation of § 666(a)(1)(A) would both extend the scope
of the statute far beyond its purpose as explained by Supreme Court in _S_al§ia_s and _S_z§i and
contravene the canons of statutory construction that guide this Court’s reading of the statute’s
plain language. The Court therefore declines to adopt it. instead, it concludes that
§ 666(a)(1)(A) requires that a defendant be an agent of the state or local govemment agency
receiving federal funds where those funds are allocated to a specific agency rather than the
government in general. As there is no dispute that the federal funds at issue in this case were
received by the American Samoa Department of Treasury and allocated to the American Samoa
Department of Education, the defendants can be held liable for the conversion of funds from that
agency under § 666 only to the extent that they acted as agents of those branches of the
24
government at the time of the funds’ conversion. Count Two will be dismissed in its entirety
with respect to Lam Yuen and in part with respect to Sunia.
B. Statute of Limitations
The defendants also seek to dismiss portions of Counts Two through F our of the
indictment based upon the statute of limitations set forth in 18 U.S.C. § 3282. Subsection (a) of
this statute provides that "[e]xcept as otherwise expressly provided by law, no person shall be
prosecuted, tried, or punished for any offense, not capita1, unless the indictment is found or the
information is instituted within five years next after such offense shall have been committed."
According to the defendants, "[t]he five-year limitations period imposed by § 3282(a) requires
that Counts Two and Three be [partially] dismissed because they are based, in part, on conduct
that allegedly occurred more than five years before the [i]ndictment was retumed on September
6, 2007," Defs.’ Dismissal Mem. at 13-14, and Count Four should be dismissed in part as well
because "[t]wo of the three violations of § 666(a)(2) alleged [therein] purportedly occurred more
than five years before [the return of] the [i]ndictment," § at 20.
The govemment attempts to refute this argument in two ways. First, it argues that the
facts alleged in the indictment "charge a continuing course of criminal conduct," for which "it is
sufficient that any criminal act occur within the statute of limitations period," with respect to
Count Two, Gov’t’s Dismissal Opp’n at 11, as well as the bribery charges in Counts Three and
Four, § at 18-19. Second, it argues that fraud in violation of § 666(a)(1)(A) "is a continuing
offense," and that as a consequence "the statute of limitations [for Count Two] is tolled until the
final criminal act [is committed]." § at ll. The defendants dispute both of these assertions.
§§ Defs.’ Dismissal Reply at 10-15 ("it would be inappropriate to apply the ‘continuing course
of conduct’ standard to determine whether a prosecution is untimely."’); § at 15-19 (attempting
25
to distinguish the cases cited by the govemment in support of its position that § 666(a)(1)(A) is a
"continuing offense").
1. Applicabilitv of "continuing course of criminal conduct" doctrine
The govemment’s primary argument is that its fraud and bribery charges under § 666 are
insulated from dismissal on statute of limitations grounds by the "continuing course of criminal
conduct" doctrine. Gov’t’s Dismissal Opp’n at 12~17. This argument is firmly at odds with the
Seventh Circuit’s ruling in United States v. Yashar, 166 F.3d 873 (7th Cir. 1999), where the
defendant, who "was on the payroll of the Chicago City Council’s Committee on Finance from
June 1, 1989[,] until September 1, 1992," was charged under § 666 for allegedly "receiv[ing]
$9,223 in wage payments and health insurance coverage[] for which he did little or no work."
§ at 875. The grand jury did not return an indictment against the defendant until January 8,
1998, but the govemment received a limited waiver from the defendant on August 13, 1997,
tolling the statute of limitations from that point forward. § Nevertheless, the district court
dismissed the indictment, concluding that the benefits the defendant received "after August 13,
1992, [did] not meet the statutory minimum of $5,000," and that any fraudulent receipt of
benefits received before that time was "barred by the statute of limitation[s]." § On appeal to
the Seventh Circuit, the govemment argued, as it does here, that the offense committed by the
defendant "[was] a ‘continuing course of conduct’ that straddle[d] the limitations period." § at
876.
The Seventh Circuit rejected this argument. The court concluded that the approach
advocated by the govemment "would treat a continuing course of conduct or scheme the same as
a continuing offense under" the Supreme Court’s ruling in Toussie v. United States, 397 U.S.
112 (1970), where the Supreme Court held that limitations periods could be extended "only in
26
cases in which Congress explicitly defines an offense as continuing, or in which the crime by its
nature is such that Congress must have intended it to be considered continuing," Ya§lrar, 166
F.3d at 877. The government’s approach would, in the court’s view, have effectively "add[ed] to
those factors a third one” by disregarding the statute of limitations "whenever the Qgge_d
§§ [was] continuous in nature," thereby "largely swallow[ing] the second factor of T§ie"
and "eviscerat[ing] its narrow, selective approach." § (emphasis in original). The Seventh
Circuit therefore "reject[ed] this approach as inconsistent with T_ogs_si_e . . . and as contrary to the
purpose of the statute of limitations." §
This Court finds no basis to depart from the well-reasoned analysis of Ya§lmr. As the
Tenth Circuit noted in United States v. Jaynes, 75 F.3d 1493 (10th. Cir. 1996), "a continuing
offense is not the same as a scheme or pattern of illegal conduct," § at 1506. The purpose of
the continuing offense doctrine is to prevent the arbitrary application of the statute of limitations
to those few "fundamentally different" offenses where "an unlawful course of
conduct . . . perdure[s]" after the fulfillment of each element of the crime in question, such as in
a conspiracy or a kidnapping prosecution. United States v. McGoff, 831 F.2d 1071, 1078 (D.C.
Cir. 1987). in contrast, the presence of a common scheme uniting discrete acts has traditionally
been found to be relevant in determining whether an indictment should be dismissed for
duplicity, i.e., "the joining in a single count of two or more distinct and separate offenses."
United States v. Klat, 156 F.3d 1258, 1266 (D.C. Cir. 1998); see also United States v. Bruce, 89
F.3d 886, 889-90 (D.C. Cir. 1996) (holding that an act that could be viewed as an independent
execution of a common scheme need not be charged in a separate count to avoid duplicity).
The different contexts in which these doctrines have arisen explain the differences in the
scope of their application. The continuing offense doctrine can be "applied in only limited
27
circumstances" due to the inherent "tension" between the doctrine and the "purpose of a statute
of limitations," which is to "protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of time" and "minimize
the danger of official punishment because of acts in the far-distant past." T§ie, 397 U.S. at
114-15 (intemal citation and quotation marks omitted). But separate acts united by a common
scheme or pattern may be charged together without any concem of impermissible duplicity so
long as this practice does not implicate "the purposes of the prohibition against duplicity," which
include "(l) the prevention of double jeopardy, (2) an assurance of adequate notice to the
defendant, (3) the provision of a basis for appropriate sentencing, and (4) the danger that a
conviction was produced by a verdict that may not have been unanimous as to any one of the
crimes charged." §, 89 F.3d at 890 (intemal citation and quotation marks omitted). "l``o use
a doctrine whose outer boundaries are defined only by the need to provide sufficient notice to the
defendant and clarity to the jury of the nature of the offense charged as a basis for tolling the
statute of limitations would effectively replace the careful balancing performed in To§ussg_ with a
notice standard that in no way honors "the principle that criminal limitations statutes are to be
liberally interpreted in favor of repose," let alone Congress’s declaration "that the statute of
limitations should not be extended except as otherwise expressly provided by law." T§ssie, 397
U.S. at 115 (internal citation and quotation marks omitted).
There are also practical concems inherent in transplanting the common scheme or pattern
exception of the duplicity rule into the statute of limitations context. As the Seventh Circuit
observed in §§ "under the government’s position, a prosecutorial decision regarding the
scope of the charge would determine the running of the limitations period. in that manner, the
statute of limitations, designed as a control on governmental action, would instead be defined by
28
it." Xa_s@, 166 F.3d at 878. And while the govemment avers that "a conscientious application
of the rule against duplicity" will alleviate these concerns, Gov’t’s Dismissal Opp’n at 15, the
reality is that the govemment’s approach would essentially subsume the continuing offense
doctrine within a much broader notice standard. "With this approach, the limitations period
would be virtually unbounded." Y_a§, 166 F.3d at 879.
Despite these concems, the govemment suggests that no less than three circuit courts of
appeals have tolled the statute of limitations based upon the continuing course of criminal
conduct doctrine. Gov’t’s Dismissal Opp’n at 14. Specifically, it points to United States v.
l, 608 F.2d 1349 (l0th Cir. 1979), where the Tenth Circuit upheld the defendant’s
conviction for the fraudulent sale of securities notwithstanding the fact that some (but not all) of
the allegedly fraudulent transactions at issue occurred outside the statute of limitations period, §
at 1355-56, United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994), where the 'i``hird Circuit held
that the defendants’ extortion convictions were proper even though some (but not all) of the
defendants’ allegedly extortionate conduct occurred outside the five-year time frame set forth in
§ 3282, § at 1217-l8, and United States v. Bustamante, 45 F.3d 933 (5th Cir. l995), where the
Fifth Circuit upheld the defendant’s bribery conviction despite the fact that the defendant
received his first of an on-going series of gratuities outside the statutory time frame, § at 942, as
authority for the proposition that a charged offense "is timely so long as some part of the
criminal conduct occurred within the statute of limitations period," Gov’t’s Dismissal Opp’n at
14.
The Court agrees with the government that it cannot dismiss any of the counts in the
indictment in their entire§; so long as some part of the criminal conduct alleged occurred within
the timeframe of the applicable statute of limitations. But the defendants do not seek to dismiss
29
Counts Two through Four of the indictment in their entirety. Rather, they seek to dismiss those
portions of the charged offenses that could be construed as seeking a criminal conviction based
upon actions allegedly taken by the defendants more than five years prior to the return of the
indictment, § Defs.’ Dismissal Mem. at 26-27 (requesting that the Court "dismiss Counts
Two through Four as time-barred to the extent they are based on conduct that allegedly occurred
before September 6, 2002"); Defs.’ Dismissal Reply at 23 (same). Je_ns_e;i, l_)_i_S_z§, and
Bustamante have nothing to say on that score. §§ Jen§, 608 F.2d at 1355~56 (considering
whether evidence of transactions that occurred more than five years prior to the return of the
indictment should be admitted into evidence); Qi§al;o, 34 F.3d at 1217-18 (considering whether
"the indictment was handed down beyond the statute of limitations"); Bustamante, 45 F.3d at
942 (considering whether conviction for bribery should be overtumed where initial receipt of
unlawful gratuity in the fonn of loan guarantee took place more than five years before the retum
of the indictment, but guarantee continued into the five-year period preceding the indictment’s
return)."
The Court therefore rejects the govemment’s contention that offenses committed outside
the five-year statute of limitations should be deemed to have occurred within the permitted time
period so long as they are part of a larger pattern or scheme that straddles the statutory deadline.
A rule designed to provide adequate notice of the nature of a specific charge does not necessarily
"protect individuals from having to defend themselves against charges when the basic facts may
have become obscured by the passage of time" or "minimize the danger of official punishment
4 indeed, the court in Jensen concluded that the evidence at issue could be admitted "because it showed
representations that made the later [(timely-indicted)] omissions misleading." Jensen, 608 F.2d at 1356 (emphasis
added). This suggests that evidence of prior acts of fraudulent conversion by the defendants might be admissible
into evidence against the defendants, but that the alleged prior acts are not indictable offenses (or components of a
consolidated charge in an indictment) in their own right.
30
because of acts in the far-distant past." Toussie, 397 U.S. at 114~15. Rather, it is the continuing
offense doctrine, not the exception to the duplicity rule for common schemes charged in a single
count, which ensures that these principles are preserved in practice.
2. Section 666(a)(1)(A) as a continuing offense
The Court is also unreceptive to the notion that § 666(a)(1)(A) (the offense charged in
Count Two of the indictment) is a continuing offense within the meaning of Toussie. As the
Court noted above, an offense cannot be considered to be continuing in nature "unless the
explicit language of the substantive criminal statute compels such a conclusion[] or the nature of
the crime involved is such that Congress must assuredly have intended that it be treated as a
continuing one." Toussie, 397 U.S. at 115. in McGoff, the District of Columbia Circuit
explained the latter concept as follows:
The notion of "continuing offense" has traditionally identified a
type of offense fundamentally different from most known to the
common law. As first-year law students (presumably) learn, a
criminal offense is typically completed as soon as each element of
the crime has occurred. For example a larceny is completed as
soon as there has been an actual taking of the property of another
without consent, with the intent permanently to deprive the owner
of its use. The offense does not "continue" over time. The crime
is complete when the act is complete. A "continuing offense," in
contrast, is an unlawful course of conduct that does perdure.
McGoff, 831 F.2d at 1078.
The defendants argue that fraudulent conversion of property in violation of
§ 666(a)(1)(A) is akin to larceny, and as such should not be considered a continuing offense
under McGoff. Defs.’ Dismissal Mem. at 16-17. The govemment disagrees. it contends that
§ 666(a)(1)(A) is more like "other forms of fraud" that have been found to be continuing
offenses, such as bankruptcy fraud, bank fraud, or embezzlement. Gov’t’s Dismissal Opp’n at
17-18. Once again, the govemment cites a smattering of case law from outside this circuit to
31
support its position. _S_e§ § (citing United States v. Smith, 373 F.3d 561 (4th Cir. 2004), §
States v. Stein, 233 F.3d 6 (1stCir. 2000), and United States v. Nash, 115 F.3d 1431 (9th Cir.
1997)).
The comparison drawn between § 666(a)(1)(A) and the bankruptcy fraud statute at issue
in §_t_ei_n and the bank fraud statute at issue in § is inexact at best. The govemment correctly
states that in §§ the First Circuit concluded that bankruptcy fraud is a continuing offense;
however, that conclusion tumed in large part on the fact that Congress explicitly stated as much
in 18 U.S.C. § 3284. Stein, 233 F.3d at 18-19 & n.9; see also 18 U.S.C. § 3284 ("The
concealment of assets of a debtor in a case under title 11 shall be deemed to be a continuing
offense until the debtor shall have been finally discharged or a discharge denied . . . ."). And
while the Ninth Circuit held in §_a_sh that bank fraud in violation of 18 U.S.C. § 1344 is a
continuing offense, its holding was based entirely on the language of the statute, which, in the
Ninth Circuit’s vilew, "punishe[d] the execution of a scheme to defraud or obtain money." §,
115 F.3d at 1441; §§ 18 U.S.C. § 1344 (criminalizing the execution or attempt to execute "a
scheme or artifice . . . (l) to defraud a financial institution[] or (2) to obtain any . . . property
owned by[] or under the custody or control of[] a financial institution[] by means of false or
fraudulent pretenses, representations, or promises"). Language of this nature is nowhere to be
found in § 666(a)(1)(A),
That leaves l, where the Fourth Circuit concluded that embezzlement in violation of
18 U.S.C. § 641 a continuing offense. @, 373 F.3d at 567-68. Unlike the offenses at issue
in _S_t_@ and i§hl, there is a strong textual similarity between the offense at issue in §
(§ 641) and the statute at issue here (§ 666(a)(1)(A)). Section 641 provides in pertinent part that
"[w]hoever embezzles, steals, purloins, or knowingly converts . . . any . . . thing of value of the
32
United States or of any department or agency thereof . . . [s]hall be fined under this title or
imprisoned not more than ten years, or both." Section 666(a)(1)(A) similarly provides that any
agent "of a State, local, or indian tribal govemment, or any agency thereof" who "embezzles,
steals, obtains by fraud, or otherwise without authority knowingly converts . . . property
that . . . is valued at $5,000 or more[] and . . . is owned by . . . such organization, govemment, or
agency . . . shall be fined under this title, imprisoned not more than 10 years, or both." The
Court therefore agrees with the government that the embezzlement statute at issue in § is
analogous to § 666(a)(1)(A), and that if one of the two statutes is a continuing offense, the other
should be considered one as well.
Nevertheless, this equivalency between § 641 and § 666(a)(1)(A) does not inure to the
government’s benefit, for this Court cannot adopt the Fourth Circuit’s description of
embezzlement as a continuing offense. The Fourth Circuit found that embezzlement is a
continuing offense because, in its words, "[e]mbezzlement is the type of crime that, to avoid
detection, often occurs over some time and in relatively small, but recurring amounts," and
because, "[a]t least in those cases where the defendant [has] created a recurring, automatic
scheme of embezzlement . . . and maintained that scheme without need for affirmative acts
linked to any particular receipt of funds[,] . . . Congress must have intended that such be
considered a continuing offense for purposes of the statute of limitations." S§it_h, 373 F.3d at
567-68. The court clarified, however, that only "the particular kind of embezzlement that
occurred in [@] is correctly considered, under §§i_e_, to be a continuing offense," and that
"it may well be that different embezzlement conduct must be differently characterized in this
regard." § at 568
33
it is impossible to reconcile this analysis with the actual language of Toussie. There, the
Supreme Court held that, absent explicit language in the statute indicating Congress’s intent that
a crime be considered a continuing offense, a crime can only be considered to be continuing if
"the nature of the crime involved is such that Congress gi_i_s_t assuredly have intended that it be
treated as a continuing one." T§sie, 397 U.S. at 115 (emphasis added). in other words, the
salient inquiry is not whether an offense can be concealed for an extended period of time or
repeated g infinitum under a particular set of circumstances, but whether there is something
"inherent in the nature of [the offense] that makes it a continuing [one]." § at 122; §Lalsg
United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991) ("[T]he analysis turns on the nature of
the substantive offense, not on the specific characteristics of the conduct in the case at issue.");
overruled in part on other grounds by United States v. Scarano, 76 F.3d 1471, 1474-77 (9th Cir.
1996).
Yet, in § the Fourth Circuit focused exclusively "on the specific characteristics of the
conduct in the case at issue," §, 952 F.2d at 293, even going so far as to acknowledge that
embezzlement should be considered a continuing offense only under certain circumstances (but
might not under others), _S;_nit_h, 373 F.3d at 568. The mere fact that the Fourth Circuit could
conceive of "different embezzlement conduct" that "must be differently characterized in this
regard," §, dispels any notion that "Congress Qu_s; assuredly have intended that [the offense] be
treated as a continuing one," §i_s_s§c_, 397 U.S. at 115 (emphasis added). Simply put, _S_rr§ is
not consistent with the precepts of Tou§ssie.
"The federal courts spread across the country owe respect to each other’s efforts and
should strive to avoid confiicts, but each has an obligation to engage independently in reasoned
analysis." in re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir.
34
1987). This Court is only "obligated to follow controlling circuit precedent" and the precedent
of the Supreme Court in reaching its decision. United States v. Torres, 115 F.3d l033, 1036
(D.C. Cir. 1997). The govemment points to no authority in this circuit that supports the
conclusion reached by the Fourth Circuit in §r§, and the Court does not find the reasoning set
forth in that case persuasive in its own right. 'l``he Court therefore declines to follow it.$
instead, the Court agrees with the defendants that the fraudulent conversion of funds in
violation of § 666(a)(1)(A), like the embezzlement of government property in violation of § 641,
is closely analogous to larceny, which the District of Columbia Circuit has classified as an
example of a non-continuing offense. § , 831 F.2d at 1078 ("For example, a larceny is
completed as soon as there has been an actual taking of the property of another without consent,
with intent permanently to deprive the owner of its use. The offense does not ‘continue’ over
time. The crime is complete when the act is complete."). Such a comparison is especially apt in
light of the legislative history of § 666, which indicates that the statute is intended to "cover[]
both theft and bribery type offenses" by creating a "statute of general applicability in this area"
that criminalizes "thefts from other organizations or govemments receiving [f]ederal financial
assistance" even if "the property stolen" is not property of the United States. S. Rep. No. 98-
225, at 369 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3510. Moreover, the unlawful
conversion of property, whether it be through fraud or some other means, is, like larceny,
"completed as soon as there has been an actual taking of the property," McGoff, 831 F.2d at
5 Even if the Court were inclined to follow Smith, the qualifications placed by the Fourth Circuit on its conclusion
that embezzlement is a continuing offense render the decision inapposite. As the defendants correctly note, "the
[i]ndictment in this case does not allege that the timing or amounts of the purportedly fraudulent orders [at issue in
this case] followed any identifiable pattern, let alone one that was regular and automatic." Defs.’ Dismissal Reply at
17. Yet, it was the "i‘ecurring, automatic" nature of the "scheme of embezzlement" at issue in Smith that led the
Fourth Circuit to conclude that "the particular kind of embezzlement that occurred in [that] case is correctly
considered, under Tgussie, to be a continuing offense." Smith, 373 F.3d at 567-68. The Fourth Circuit’s ruling is
therefore not applicable to the conduct alleged to have occurred in this case.
35
1078, unlike the paradigmatic continuing offense of conspiracy, where "each day’s acts bring a
renewed threat of the substantive evil Congress sought to prevent" in criminalizing the conduct,
log§, 397 U.S. at 122.
The Court therefore concludes that the fraudulent conversion of property in violation of
§ 666(a)(1)(A) is not a continuing offense under §§§i_e. Therefore, the defendants cannot be
held criminally liable for any violations of that statute that predate the five-year period preceding
the retum of the indictment in this case. Accordingly, Count Two of the indictment must be
dismissed to the extent that it encompasses conduct allegedly committed beyond that five-year
statute of limitations period.
C. Sufficiencv of Allegations in Obstruction Charges
in their motion to dismiss, the defendants argued that Counts Five and Six of the
indictment, which charge the defendants with obstruction of an agency proceeding under 18
U.S.C. § 1505 , were "insufficient as a matter of law" because the govemment never alleges that
the defendants "l536 U.S. 545, 549 (2002) (quoting U.S. Const. amend. V). "The
right to have the grand jury make the charge on its own judgment is a substantial right which
cannot be taken avvay," Stirone v. United States, 361 U.S. 212, 218-19 (1960), the "very
purpose" of which "is to limit [the accused’s] jeopardy to offenses charged by a group of his
fellow citizens acting independently of either prosecuting attorney or judge," § at 218. Thus,
6 The parties also delvote considerable effort to debating whether the proposed jury instructions filed by the parties
justify reconsideration of this issue. §§ Defs.’ Reconsideration Mot. at 1 ("The proposed [jury] instructions state
that [the defendants] lcannot be convicted of violating § 1505 unless they knew that the specified proceeding was
pending before the United States Department of Education. . . . Thus, it is now undisputed that knowledge of the
allegedly obstructed proceeding is an essential element of [C]ounts [F]ive and [S]ix." (internal citation and quotation
marks omitted)); Go\l/’t’s Reconsideration Opp’n at 6-7 ("Nothing about the jury instructions can fairly be
characterized as newl evidence nor does it represent a change in the governing law since the Court’s ruling ten
months ago."); Defs.l’ Reconsideration Reply at 1 n.l (arguing that, whereas the Court had "at least question[ed]" the
notion that the goverhment had to allege the defendants’ knowledge of the agency proceeding in question at the
September 8, 2008 hlearing on the merits of the defendants’ motion to dismiss, "[u]nder the subsequently proposed
joint jury instructions . . . , it is clear that knowledge of agency proceedings must be expressly alleged in the
indictment to state an offense under 18 U.S.C. § l505"). However, in their reply memorandum in support of their
motion for reconsideration the defendants clarify that the basis for their motion is the Court’s purportedly manifest
error in refusing to dismiss Counts Five and Six of the indictment. Defs.’ Reconsideration Reply at 2. The parties’
dispute over the effects of the parties’ proposed jury instructions is therefore of no moment.
38
"[t]o allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds
of the grand jury at the time they retumed the indictment would deprive the defendant" of the
"protection which the guaranty of the intervention of a grand jury was designed to secure[,] [f]or
a defendant could then be convicted on the basis of facts not found by, and perhaps not even
presented to, the grand jury which indicted him." Russell v. United States, 369 U.S. 749, 770
(1962).
As the case law surveyed above makes plain, the Court erred in articulating only two
concerns-adequate notice to the defendants and sufficient specificity to prevent re-prosecution
for the same offense-that must be satisfied for a charge to survive a motion to dismiss. Rather,
as nearly every circuit court of appeals has expressly held, "[a] valid indictment must: (l) al§g§
the essential facts constituting the offense[,] (2) allege each element of the offense, so that fair
notice is provided[,] ar§ (3) be sufficiently distinctive that a verdict will bar a second
prosecution for the same offense." United States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003)
(emphasis added)i; accord United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003); j
States v. Hathaway, 318 F.3d 1001, 1009 (l0th Cir. 2003); United States v. Hernandez, 299 F.3d
984, 992 (8th Cirl 2002); United States v. Caldwell, 302 F.3d 399, 410 (5th Cir. 2002); U_nit§
States v. Woodruff, 296 F.3d 104l, 1046 (l1th Cir. 2002); United States v. Cor-Bon Custom
Bullet Co., 287 Fl3d 576, 579 (6th Cir. 2002); United States v. Eirby, 262 F.3d 31, 37 (lst Cir.
2001). The second and third requirements of an indictment, which derive from the notice
requirement of the Sixth Amendment and the Double Jeopardy clause of the Fifth Amendment,
respectively, United States v. Higgs, 353 F.3d 281, 296 (4th Cir. 2003), are adequately addressed
in the Court’s September 8, 2008 decision; the first requirement, which has its origins in the
Grand Jury Clause, see discussion supra, is not.
39
Accordingly, the Court agrees with the defendants that it must partially reconsider its
prior ruling on this issue to determine whether Counts Five and Six of the indictment satisfy the
Grand Jury Clause. Further, the question before the Court in considering the sufficiency of the
government’s allegations for purposes of this analysis is not whether the allegations place the
defendants on notice of the nature of the crimes for which they have been charged or are specific
enough to foreclose re-prosecution for the same offense, but whether "the indictment . . . omits
language essentiall to the definition of the offense which it purports to charge." United States v.
Pickett, 353 F.3dl62, 67 (D.C. Cir. 2004); see also United States v. Hooker, 841 F.2d 1225, 1230
(4th Cir. 1988) ("l[N]otice is only half the question. . . . [A] sufficient indictment must contain the
elements of the offense Lc_l apprise the defendant of the nature of the charge." (emphasis in
original)). if such language is missing, the Court must dismiss Counts Five and Six. § l,
353 F.3d at 68 (h¢l)lding that where "[t]he indictment against [the defendant] [did] not charge all
the elements of the offense[,] [h]is motion to dismiss was well taken"); l, 841 F.2d at 1232
(holding that the "‘complete absence" of an essential element "is a fatal defect").
The government acknowledges that "knowledge is an element of the offense" for
obstruction charges under § 1505, Gov’t’s Reconsideration Opp’n at 7, and the Court held as
much at the hearing on the merits of the defendants’ motion, §§ Hr’g Tr. 13:22-24, Sept. 8,
2008 (reflecting the Court’s observation that § 1505 "clearly" requires that the govemment
"prove that [the defendants] knew that there was an investigation being conducted by the
Department of Edlucation"). Further, the govemment does not dispute that it failed to explicitly
allege that the defendants knew of the agency proceeding that they allegedly obstructed when
they were interviewed by federal officials. _S_c@ Gov’t’s Reconsideration Opp’n at 5 (admitting
that the indictment does not contain "the ‘magic words’ that the [d]efendants claim should have
40
been used"). instead, the govemment’s position is that "knowledge of the pending proceeding is
easily and naturally inferred from the plain language of the [i]ndictment." §
The govemment’s position is understandable as a general legal proposition. "in
reviewing the sufficiency of an indictment, a court should consider each challenged count as a
whole and should refrain from reading it in a hypertechnical manner." United States v. Palumbo
Bros. inc., 145 F.3d 850, 860 (7th Cir. 1998) (intemal citation and quotation marks omitted).
"Similarly, if the facts alleged in the indictment warrant an inference that the jury found probable
cause to support all the necessary elements of the charge, the indictment is not fatally deficient
on Fifth Amendment grounds." United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998);
accord United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002); Palumbo Bros., 145 F.3d at
860. Thus, Counfs Five and Six of the indictment may pass constitutional muster so long as the
defendants’ knowledge of an investigation by the Department of Education, while perhaps not
explicitly alleged``in the indictment, is “necessarily implied by the specific allegations made."
United States v. Silverrnan, 430 F.2d 106, 111 (2d Cir. 1970).
But while lthe law in general may be on the government’s side, the facts of this case are
not. The government suggests that paragraphs 57 and 58 of the indictment, when read together,
give rise to a necessary inference that Sunia knew he was obstructing a Department of Education
proceeding when he allegedly obstructed that proceeding, and that paragraphs 62 and 63 of the
indictment do thelsame with regards to Lam Yuen. Paragraphs 57 and 58 of the indictment state:
On or about April 27, 2005, as part of the above-described joint
investigation into fraud, waste, and abuse in American Samoa,
SUNIA submitted to a voluntary interview with federal law
enforcement agents from the [United States] Department of
Homeland Security’s Office of inspector General and the Federal
Buireau of investigation. The interview took place at the Executive
Office Building in Pago Pago, American Samoa.
41
On or about April 27, 2005[,] in the territory of American Samoa,
AITOFELE T.F. SUNIA[,] defendant herein[,] did corruptly
endeavor to influence, obstruct[,] and impede the due and proper
administration of the law under which a proceeding, to wit[,] an
investigation of allegations of f``raud, waste[,] and abuse within an
entity receiving funds from the United States, was pending before
the [United States] Department of Education[] by making
materially false and misleading statements to federal agents
engaged in such proceeding . . . .
indictment 11 57~1-58; see also § 11 62~63 (substituting the name of Lam Yuen, the alleged date
of his interrogation, and the fact that he was interviewed by a Department of interior employee
rather than a Department of Homeland Security employee, but otherwise repeating these same
allegations).
Having carefully reviewed these paragraphs several times, the Court does not see how it
is "necessarily irnplied" in these allegations, Silverrnan, 430 F.2d at 111, that the defendants ever
knew they were obstructing a United States Department of Education proceeding. The
govemment alleges neither that the defendants were ever told that such a proceeding was in
existence, nor that they were interviewed by Department of Education officials. it simply alleges
that the defendants were interviewed by "federal law enforcement agents from the
[United States] Department of Homeland Security’s Officer of inspector General and the Federal
Bureau of investiigation," indictment 1 57; §_al§o § 1 62 (making the same allegations with
respect to agents from the United States Department of interior’s Office of inspector General and
the Federal Burealu of investigation), and that they "ma[de] materially false and misleading
statements to [thols,e] federal agents," § 1 58; s_eea§lso § 1 63 (same). These allegations would
certainly give risel to an inference that the defendants knew they were obstructing an
investigation of some sort, but nothing in the allegations would lead one to believe that the
42
defendants knowingly obstructed an agency proceeding initiated by the Department of Education
in particular.
At the hearing on the merits of the defendants’ motion for reconsideration held on August
4, 2009, the govelrnment argued that statements allegedly made by the defendants at their
interviews suggests knowledge of the pending agency investigation because those statements
concem business transactions relating to the American Samoa Department of Education. But
this establishes atl most that the defendants might have known the subject matter of the
investigation for which they were interviewed, not the existence of the agency proceeding (or
identity of the agfncy sponsoring the proceeding) giving rise to the investigation. Certainly, the
Department of Julstice would be just as interested in the defendants’ allegedly fraudulent
transactions with lthe American Samoa Department of Education as the United States Department
of Education, as tlhe defendants’ current predicament demonstrates. Ultimately, there are no
allegations in the indictment from which one could infer that the defendants ever knew of the
origin of the investigation for which they were interviewed, and thus no allegations giving rise to
an inference that lhe defendants knew they were obstructing a United States Department of
Education proceekling as required to allege an offense under § 1505.
The govellnment also argued at the hearing held on August 4 that one could infer
knowledge of a l§lepartment of Education proceeding by the defendants based upon the
allegations that tlley were interviewed by a United States Department of Homeland Security
representative bel:ause that representative was in fact a former Department of Education
employee assigned to the agency’s investigation of fraudulent business practices in the American
Samoa Departmelnt of Education and was actually completing her work on that investigation
when she interviewed the defendants. These facts, however, are not alleged in the indictment;
43
consequently, the Court cannot say with any degree of certainty that "a group of
[the defendants’] fellow citizens" found these allegations to be probably true, Stirone, 361 U.S.
at 218, but instead would have to "guess as to what was in the minds of the grand jury at the time
they retumed the indictment," §s_e§, 369 U.S. at 770. Such an exercise is not permitted by the
Fifth Amendment
Finally, the government argued in the altemative at the August 4 hearing that simply
tracking the statufory language of § 1505, as the govemment does in paragraphs 58 and 63 of the
indictment, sufficles to establish knowledge on the part of the defendants because the statute
requires that the defendants "corruptly endeavor[ed]" to obstruct an agency proceeding and the
defendants could lnot have done so without first knowing of the agency proceeding in question.
As with the govefnment’s principal argument that an element of an offense can be inferred from
the surrounding factual allegations, there is precedent to support this argument. For example, in
United States v. ll§onahue, 948 F.2d 438 (8th Cir. 1991), the Eighth Circuit concluded that an
indictment charging a defendant with armed bank robbery and the use of a firearm during a
robbery was not ‘l‘fatally defective" notwithstanding the absence of an allegation that the
defendant engageld in these acts with "criminal intent," an essential element of the crime, because
the court found itl "inconceivable that anyone lacking criminal intent could commit armed bank
robbery" given tile act’s "inherent[] and essential[] evil," § at 440-41 (intemal citation and
quotation marks 441 F.3d 153 (2d Cir. 2006):
prove obstruction of an agency proceeding, the government
m111st establish that (l) there was a proceeding before a department
or§ agency of the United States[,] (2) the defendant knew of or
believed that the proceeding was pending[,] Qr_c_l (3) the defendant
corruptly endeavored to influence, obstruct, or impede the due and
prbper administration of the law under which the proceeding was
pepding.
§ at 174 (internal citation and quotation marks omitted) (emphasis added); 1 United States
v. Bhagat, 436 1140, 1147 (9th Cir. 2006).
"Ordinarily, it is proper for an indictment to be drawn in the language of the
statute, . . . but fdllowing the generic wording of a statute is not necessarily sufficient." 1
States v. Nance, 533 F.2d 699, 701 (D.C. Cir. 1976) (per curiam). Section 1505 exemplifies this
rule. To adequatl:ly charge a defendant with obstruction of an agency proceeding, the
government mustl do more than simply recite the language of the statute without comment. it
must also allege facts supporting the threshold requirement that the defendant knew about the
agency proceeding arising under "the law" that he "corruptly endeavor[ed]" to obstruct. Nothing
in the indictmentlestablishes this element of the offense, whether by inference or otherwise.
Therefore, the must dismiss Counts Five and Six of the indictment as defectively charged
under § 1505.
"The oral ruling of a trial judge is not immutable, and is of course subject to further
reflection, reconsiideration[,] and change." United States v. Green, 414 F.2d 1174, 1175 (D.C.
Cir. 1969) (per curiam). Here, it is apparent that the Court erred in denying earlier the
defendants’ motibn to dismiss Counts Five and Six of the indictment. Because the government
45
does not allege in the indictment that the defendants knew of the agency proceeding they
allegedly obstructed, and because knowledge of that proceeding is an essential element of the
offense, the Court will grant the defendants’ motion for reconsideration, vacate its prior oral
ruling on this iss\ie, and dismiss Counts Five and Six of the indictment in their entirety.
l III. Conclusion
"[T]he indictment must contain an allegation of every fact which is legally essential to
the punishment to be inflicted." United States v. Reese, 92 U.S. 214, 232 (1875) (Clifford, J.,
dissenting). in thlis case, the govemment has failed to satisfy this standard in part by failing to
allege an agency felationship between Lam Yuen and (for a certain period of time) Sunia and the
applicable brancli of the American Samoa govemment for the purposes of 18 U.S.C.
§ 666(a)(1)(A) il/ioreover, the government has improperly charged the defendants with at least
some conduct that occurred outside the five-year statute of limitations set forth in 18 U.S.C.
§ 3282. Finally, lhe govemment has charged the defendants with obstruction of an agency
proceeding in violation of 18 U.S.C. § 1505 without alleging all of the elements necessary for
conviction underlthat statute. The Court will therefore grant the balance of the defendants’
motion to dismiss as well as their motion for partial reconsideration.
46
so oRDEREr)this [{)Eday <>£Augusr,zoos.? § §
REGۤPE B. WALTE)N "
United States District .iudge
7 An order will be entered contemporaneously with this memorandum opinion (l) granting in part and denying in
part the defendants’ :rnotion to dismiss, (2) dismissing Count Two of the indictment in its entirety with respect to
Lam Yuen, and disrnissing Count Two with respect to Sunia to the extent that it charges Sunia with violations of 18
U.S.C. § 666(a)(1)(A) while he was an agent of the legislative branch and to the extent that it charges Sunia with
violations of that same statute occurring prior to September 6, 2002, (3) dismissing Counts Three and Four to the
extent that these corfnts charge the defendants with violations of 18 U.S.C. § 666(a)(2) occurring prior to September
6, 2002, (4) granting the defendants’ motion for partial reconsideration, (5) vacating the Court’s oral ruling issued
on September 8, 2008, insofar as that ruling concerns the defendants’ argument that Counts Five and Six of the
indictment must be dismissed for failure to allege an essential element of the offense, and (6) dismissing Counts
Five and Six. 1
47