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United States v. Hui

United States District Court, E.D. Louisiana

February 7, 2018

UNITED STATES
v.
JETTY HUI

         SECTION: “G” (3)

          ORDER

          NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Jetty Hui's (“Hui”) “Motion to Dismiss Indictment.”[1]Having considered the motion, the memoranda in support and opposition, the record and the applicable law, the Court will deny the motion.

         I. Background

         On May 19, 2017, Hui was charged in a one-count Indictment with making a false statement to an FBI agent in violation of Title 18 United States Code, Sections 1001(a)(1) and 2.[2]The Indictment alleges that Hui owned and operated Cabinets and Countertops Direct in New Orleans, Louisiana.[3] According to the Indictment, Hui electronically filed a claim with the Gulf Coast Claims Facility (“GCCF”) on October 24, 2010, claiming losses of $432, 957.00.[4] The Indictment states that the claim included documentation of business losses by cancellation letters from two individuals indicating that orders to Hui's business were cancelled due to the oil spill.[5]

         The Indictment alleges that these letters were false and Hui lost no business because of the spill.[6]The Indictment further alleges that Hui received $72, 500 via an electronic transfer from the GCCF on December 2, 2010, and that on February 13, 2011, Hui filed an additional Interim Payment claim seeking $230, 000 from the GCCF.[7] The Indictment charges Hui with making a false, fictitious, and fraudulent material statement to the FBI on May 23, 2012, when he told FBI agents that the letters were actual order cancellations when in fact Hui had composed the letters himself, in violation of Title 18 United States Code, Sections 1001(a)(1) and 2.[8]

         On November 3, 2017, Hui filed the instant “Motion to Dismiss Indictment.”[9] On November 22, 2017, the Government filed an opposition to the motion.[10] On November 30, 2017, the Court heard oral argument on the motion.[11] At oral argument, the Court ordered supplemental briefing on the motion. On December 14, 2017, Hui filed a supplemental brief in further support of the motion, [12] and on December 27, 2017, the Government filed a supplemental brief in opposition to the motion.[13]

         II. Parties' Arguments

         A. Hui's Arguments in Support of the Motion to Dismiss Indictment

         Hui moves the Court to dismiss the Indictment pending against him.[14] Hui acknowledges that the statute of limitations for violations of 18 U.S.C. § 1001 is five years, and that the Indictment was brought within five years of his alleged statement to the FBI.[15] However, Hui argues that because the Indictment alleges that he made a false statement on the BP claim form on October 24, 2010, the statute of limitations ran on or about October 24, 2015.[16] Moreover, Hui asserts that “even if the Indictment is brought within the statute of limitations, there may be grounds for dismissal because preindictment delay that prejudices a defendant violates the Due Process Clause of the Fifth Amendment.”[17] Hui asserts that he has suffered prejudice from the delay sufficient to establish a due process violation because one potential witness has passed away and another may be difficult to find.[18]

         B. The Government's Arguments in Opposition to the Motion to Dismiss Indictment

          In its opposition, the Government contends that Hui has not cited any valid legal authority for the motion.[19] The Government notes that prosecutions for violations of 18 U.S.C. § 1001 must be brought within five years of the offense, and Hui was indicted within five years of the statements he made to the FBI.[20] Furthermore, the Government notes that when Hui was interviewed by the FBI the fraudulent submission to GCCF was still within the statute of limitations.[21]

         The Government cites United States v. Tantillo.[22] There, the Government asserts that the Fifth Circuit rejected the defendant's argument that the FBI lacked jurisdiction over a false statement the defendant made to the FBI because part of the offense she was questioned about was out of statute, and therefore not within purview of federal agency.[23] Because Hui's fraudulent behavior was within the statute of limitations at the time the FBI conducted the interview, the Government contends that Hui's motion to dismiss should be denied.[24]

         C. Hui's Arguments in Further Support of to the Motion to Dismiss Indictment

         In the supplemental memorandum, Hui contends that “dicta in Tantillo supports the defendant's position that the conduct for which the government is attempting to prosecute the defendant is clearly outside the statute of limitations.”[25] Hui notes that in Tantillo the Fifth Circuit considered false statements made by the defendant to the FBI in 2013 and 2014 about a pay raise, noting that although her statements had to do with a pay raise in 2004, that pay raise was part of a conspiracy that lasted until 2011.[26] Hui contends that “[t]he reasonable and logical inference in Tantillo is that had the original crime for which Tantillo made false statements only lasted until 2004, then her conduct would have fallen outside the statute of limitations.”[27]

         In this case, Hui asserts that the original alleged crime occurred more than seven years ago.[28] Hui submits “that dicta in Tantillo has provided guidance that in making false statement to the FBI cases, the focus should be on the date of the underlying offense.”[29] Therefore, Hui contends that the Indictment was not timely filed because the statute of limitations for the underlying offense ran on or about October 24, 2015.[30]

         Finally, Hui asserts that Section 1001 requires that a person must act willfully in making a false statement to federal investigators.[31] He asserts that courts have been divided on whether the willfulness element requires proof that the defendant knew his or her conduct was unlawful.[32]

         According to Hui, the Department of Justice has recently admitted in briefs before the Supreme Court “that for a 1001 conviction the government must prove that the person knew that the statement was false and knew that making a false statement was unlawful.”[33]

         D. The Government's Arguments in Further Opposition to the Motion to Dismiss Indictment

          In its supplemental memorandum, the Government contends that Hui misunderstands the Fifth Circuit's holding in United States v. Tantillo.[34] The Government asserts that in Tantillo the Fifth Circuit held that a prosecution for a violation of 18 U.S.C. §1001(a)(2) may be brought if the underlying offense was still within the statute of limitations when the interview took place.[35]According to the Government, this is clearly the situation here because Hui was interviewed by the FBI on May 23, 2012, about a claim he made with the GCCF on October 24, 2010, well within the five-year limitations period.[36]

         As for the second issue raised in Hui's supplemental brief, the Government points out that its proposed jury instructions define the term “willful” as an act “committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose and either to disobey or disregard the law.”[37] According to the Government, the evidence will show that Hui knowingly made a false statement FBI and knew it was unlawful to lie to federal agents at the time.[38]

         III. Legal Standard

         18 U.S.C. § 3282 provides that the prosecution of any federal offense not punishable by death must be commenced “within five years next after such offense shall have been committed.” The Supreme Court of the United States has explained that statutes of limitations “represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they are made for the repose of society and the protection of those who may (during the limitation) . . . have lost their means of defense.”[39] Statutes of limitations “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.”[40] Therefore, “[c]riminal limitations statutes are to be liberally interpreted in favor of repose, ” because “the purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions.”[41]

         When considering a motion to dismiss an indictment, the Court must accept the allegations in the indictment as true.[42] A defendant may not challenge an indictment that is valid on its face on the grounds that the allegations are not supported by adequate evidence, because weighing the evidence is the function of the jury.[43]

         IV. Analysis

         In the instant case, Hui was charged by an Indictment on May 19, 2017, with making a false statement to the FBI on May 23, 2012, in violation of 18 U.S.C. § 1001(a)(2). Therefore, the Indictment was brought within five years of Hui making the alleged false statement to the FBI. Nevertheless, Hui argues that the Indictment should be dismissed because his statement to the FBI involved his claim filed with the GCCF on October 24, 2010. Specifically, Hui contends that because the Indictment alleges that he made a false statement on the BP claim form on October 24, 2010, the statute of limitations ran on or about October 24, 2015. Moreover, Hui asserts that there may be grounds for dismissal because pre-indictment delay that prejudices a defendant violates the Due Process Clause of the Fifth Amendment. In response, the Government asserts ...


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