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United States v. Ho

United States District Court, E.D. Tennessee, Knoxville

December 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
SZUHSIUNG HO a/k/a ALLEN HO, et al, Defendants.

          VARLAN/GUYTON

          MEMORANDUM AND ORDER

         All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case is before the Court on Defendant Allen Ho's Motion for Bill of Particulars [Doc. 71], filed on October 18, 2016, and Defendant Allen Ho's Motion to Compel Discovery [Doc. 76], filed on November 22, 2016. The Government responded to these motions on November 1, 2016 [Doc. 74');">74], and December 5, 2016 [Doc. 80] respectively. The Defendant filed reply briefs on November 9, 2016 [Doc. 75], and December 12, 2016 [Doc. 82]. The motions are now ripe for adjudication. For the reasons set out below, the Court ORDERS that the motion for a bill of particulars be GRANTED in part, in that the Government shall particularize any technology that it claims that Defendant Ho sold or assisted in or facilitated selling to the Chinese in violation of 42 U.S.C. §§ 2272(b) and 2272(a) of the Atomic Energy Act. The Court also ORDERS that the remainder of the motion for a bill of particulars and the motion to compel be DENIED.

         I. BACKGROUND

         Defendant Szuhsiung Ho [Doc. 3] is charged, along with codefendants China General Nuclear Power Company (“China General”) and Energy Technology International (“ETI”), with conspiring to develop special nuclear material illegally outside the United States (Count One) and with conspiring to act as an unregistered agent of a foreign government (Count Two). These crimes are alleged to have occurred from 1997 through April 5, 2016. Count One charges the Defendant with violating 42 U.S.C. §§ 2077(b) and 2272(a) of the Atomic Energy Act. Section 2077(b) provides in pertinent part that “[i]t shall be unlawful for any person to directly or indirectly engage or participate in the development or production of any special nuclear material outside of the United States, ” unless the person has authorization. Section 2272(a) makes it a crime punishable by a term of incarceration up to life imprisonment for willfully violating, attempting to violate, or conspiring to violate “any provision of section[] 2077 . . . with the intent to injure the United States or with intent to secure an advantage to any foreign nation[.]”

         Count Two charges the Defendant with conspiring to act in the United States as an agent of a foreign government, i.e, the People's Republic of China, without prior notification to the Attorney General in violation of 18 U.S.C. § 951. Section 951(a) provides that “[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.” The seventeen-page Indictment was filed on April 5, 2016. Defendant Ho made his initial appearance before the undersigned on April 26, 2016.

         II. BILL OF PARTICULARS

         The Defendant asks the Court to order the Government to provide a bill of particulars specifying all the overt acts that the Government will claim that he committed with regard to the conspiracies alleged in both counts of the Indictment. With regard to Count One, he requests that the Government identify every form of assistance that he obtained from experts in the United States related to the development and production of special nuclear material without authorization. With regard to Count Two, he asks the Government to identify the manner in which he and his alleged co-conspirators conspired with others to act as agents of the People's Republic of China. Finally, he asks that the Court require the Government to identify all trial exhibits that it intends to introduce in its case-in-chief seventy-five days before trial. In support of these requests, he argues that the alleged conspiracies occurred over twenty years and involve complex technology. He asserts that the requested particularization is necessary to allow him to prepare his defense, to avoid surprise at trial, and to protect against a future violation of his right to avoid facing trial for the same offense twice.

         The Government responds in opposition, arguing that the Indictment is detailed and that it has provided extensive and thorough discovery in this case, the majority of which the Defendant has had for more than six months. It also contends that it has responded to discovery requests by the Defendant by providing specific responses, including “electronic evidence of communications exchanged, consultations arranged, and proprietary information brokered between Defendant Ho and [a co-conspirator] U.S. Person 1[, ]” who has been identified to the Defendant. [Doc. 74');">74, p. 2] The Government argues that the Defendant is not entitled to use a bill of particulars to force the Government to reveal its theory of the case or to obtain a roadmap of its case-in-chief. It observes that if the Defendant needs additional time to consult with experts and to prepare for trial, given the complexity of this case, then he should move for a trial continuance.

         “The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]” Fed. R. Crim. P. 7(c)(1). As a general rule, an indictment passes constitutional muster if it “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974');">74); United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. 2001) (quoting Hamling). An indictment may allege the charges using the words of the statute itself as long as it gives all the elements of the offense “fully, directly, and expressly[.]” Hamling, 418 U.S. at 117 (quoting United States v. Carll, 105 U.S. 611, 612 (1882)); Landham, 251 F.3d at 1079. Moreover, the statutory language “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S. 483, 487(1888)); Landham, 251 F.3d at 1079.

         Federal Rule of Criminal Procedure 7(f) states that “[t]he court may direct the government to file a bill of particulars” and that “[t]he government may amend a bill of particulars subject to such conditions as justice requires.” “A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes. It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial.” United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993). The granting of a bill of particulars is within the court's discretion. See id. (holding that the appellate court reviews the denial of a bill of particulars for an abuse of discretion). The level of detail in the indictment can be a basis for denying the motion for a bill of particulars. Id. Additionally, “a defendant is not entitled to a bill of particulars with respect to information which is available through other sources.” United States v. Paulino, 935 F.2d 739, 750 (6th Cir. 1991), superseded on other gnds by stat., United States v. Caseslorente, 220 F.3d 727 (6th Cir. 2000) (on sentencing issue).

         In the instant case, the Court finds that the Indictment spans seventeen pages and provides specific dates, locations, documents, and persons (whom the Government states it has since identified in discovery) with regard to the Defendant's assistance to China General. The Indictment identifies four particular technologies, which the Government refers to as “aspects within the conspiracy” [Doc. 74');">74, p.1] and which the Defendant is alleged to have assisted in selling to the Chinese: (1) China General's Small Modular Reactor Program, [1] (2) China General's Advanced Fuel Assembly Program, (3) China General's Fixed In-Core Detector System, and (3) verification and validation of nuclear reactor-related computer codes. [Doc. 3, ¶20] However, the Indictment does not limit the technologies at issue to those listed in the Indictment. Instead, it states that the Defendant obtained assistance of experts, based in the United States, with respect to these four technologies “among other matters[.]” [Doc. 3, ¶20] The Defendant seeks particularization of the other matters with which he is alleged to have sought and obtained assistance. In this regard, he argues that the Indictment covers a twenty-year time period but the overt acts discussed in the Indictment allege actions occurring during eight of the twenty years. The Defendant also argues that the complexity of the technologies involved require particularization.

         The Court finds that the Indictment fails to inform the Defendant adequately of his alleged illegal assistance over a twenty-year period when it only alleges facts with regard to his actions over the last eight years. Accordingly, the Court finds that justice requires particularization of those overarching technologies or “aspects of the conspiracy” that the Government will allege that the Defendant assisted in providing to the Chinese without authorization in violation of 42 U.S.C. §§ 2077(b) and 2272(a) in order to permit the Defendant to prepare his defense and to avoid unfair surprise at trial. The Government is DIRECTED to provide a bill of particulars with this information on or before January 3, 2017.

         The Court finds that the Defendant's remaining requests, including his request that the Government designate all exhibits that it will use in its case-in-chief seventy-five days before trial, sweep too broadly. His request for the Government to specify the types of assistance he provided to China General, including pinpointing portions of the documents named in the Indictment; his request that the Government identify when and the specifics of how he acted as an agent for the Chinese government; and his request for the Government's exhibits are not so much related to clarifying the charges, as they are a wholesale request for the Government's evidence. As stated above, a bill of particulars is not a means for the defense to gain disclosure of all of the government's evidence. Salisbury, 983 F.2d at 1375. Disclosure of discovery is governed by Rule 16 of the Federal Rules of Criminal Procedure. Pretrial discovery of the government's exhibits is conspicuously absent from the required disclosures in Rule 16(a). Finally, the Court observes that in its standard pretrial order, which is typically entered in conjunction with the pretrial conference, counsel is asked to meet in advance of trial to review the trial exhibits with a view toward stipulating to their admissibility, if possible. In other words, the Court envisions that the parties will exchange their exhibits with each other within the two weeks preceding the trial.

         In summary, the Defendant's Motion for a Bill of Particulars [Doc. 71] is GRANTED in part, in that the Government is DIRECTED to file a bill of particulars specifying the technologies, in addition to the four listed in paragrap. 20 of the Indictment, related to the development and production of special nuclear material that the Defendant is alleged to have illegally sought and obtained the assistance of experts based in the United States, without the required authorization of the Secretary of Energy. The Government is ORDERED to ...


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