UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA

v. Criminal No. 19-148-1 (CKK)

PRAKAZREL MICHEL (1),
Defendant.

 

 

MEMORANDUM OPINION
(November 6, 2019)

In this criminal action, Defendant Prakazrel Michel has brought three pending motions.
First, he has moved under Federal Rule of Criminal Procedure 12 to dismiss Counts Two and
Three of the Indictment on the basis that they are barred by the statute of limitations. Second, he
has moved to sever Count Four of the Indictment. Lastly, he has moved for a bill of particulars
listing unindicted co-conspirators known or unknown to the grand jury under Count One of the
Indictment. Upon consideration of the Indictment, briefing, relevant legal authorities, and record
as a whole, the Court DENIES Mr. Michel’s Motion to Dismiss Counts Two and Three,'! DENIES

WITHOUT PREJUDICE his Motion to Sever Count Four,’ and GRANTS IN PART his Motion

 

' For this Motion, the Court’s consideration has focused on the following documents:
e Defendant’s Motion to Dismiss Counts Two and Three (“Def.’s Mot. to Dismiss”), ECF
No. 17;
e United States’ Opposition to Defendant Prakazrel Michel’s Motion to Dismiss (“Gov't
Opp’n to Mot. to Dismiss”), ECF No. 23; and
e Mr. Michel’s Reply to the Government’s Opposition to the Motion to Dismiss Counts Two
and Three (“Def.’s Reply in Supp. of Mot. to Dismiss”), ECF No. 26.

* For this Motion, the Court’s consideration has focused on the following documents:
e Defendant’s Motion to Sever Count Four (“Def.’s Mot. to Sever”), ECF No. 18;
e United States’ Opposition to Defendant’s Motion to Sever Count Four (“Gov't Opp’n to
Mot. to Sever’), ECF No. 25; and
e Mr. Michel’s Reply to the Government’s Opposition to the Motion to Sever Count Four
(“Def.’s Reply in Supp. of Mot. to Sever”), ECF No. 27.

1
for a Bill of Particulars.’
I. BACKGROUND
A. Indictment

A grand jury returned an Indictment charging Mr. Michel and his co-Defendant, Malaysian
national Low Taek Jho, on May 2, 2019. Indictment (“Indict.”), ECF No. 1. The Indictment
contained four charges against Mr. Michel arising from an alleged scheme to funnel money from
a foreign donor, Mr. Low, into the 2012 Presidential Election and to conceal the true source of
those contributions from the Federal Election Commission (“FEC”). Jd. {J 1-2. Mr. Michel and
Mr. Low “concealed the scheme from the candidate, the candidate’s campaign and administration,
federal regulators, and the public.” /d. { 2.

Count One of the Indictment charges Mr. Michel with conspiracy to defraud an agency of
the United States in violation of 18 U.S.C. § 371. Jd. §§ 23-70. It alleges that from about June
2012 to June 2015, Mr. Michel and Mr. Low conspired with each other and with others “known
and unknown to the grand jury” to do three things: (1) “[k]nowingly defraud the United States by
impairing, obstructing, and defeating the lawful functions of a department or agency of the United
States,” which was “the FEC’s ability to administer federal regulations concerning source and

dollar restrictions in federal elections”; (2) “[k]nowingly and willfully make foreign contributions

 

3 For this Motion, the Court’s consideration has focused on the following documents:
e Defendant’s Motion for a Bill of Particulars (“Def.’s Mot. for Bill of Particulars”), ECF
No. 19;
e United States’ Opposition to Defendant’s Motion for a Bill of Particulars (“Gov’t Opp’n
to Mot. for Bill of Particulars”), ECF No. 24; and
e Mr. Michel’s Reply to the Government’s Opposition to the Motion for a Bill of Particulars
(“Def.’s Reply in Supp. of Mot. for Bill of Particulars”), ECF No. 28.

In an exercise of its discretion, the Court finds that holding oral argument in this action
would not be of assistance in rendering a decision. See LCrR 47(f).

2
and independent expenditures” that aggregated to more than $25,000 in a calendar year in violation
of 52 U.S.C. § 30121 and 52 U.S.C. § 30109(a)(1)(A); and (3) “[k]nowingly and willfully make
contributions to a candidate for federal office in the names of other persons” that aggregated to
more than $25,000 in a calendar year in violation of 52U.S.C. §30121 and 52 U.S.C.
§ 30109(a)(1)(A). Jd. § 24. The Indictment provided a similarly broad object of the conspiracy,
which in full reads:

The object of the conspiracy was for MICHEL and JHO LOW to gain access to,

and potential influence with, Candidate A and his administration, by secretly

funneling foreign money from JHO LOW through MICHEL and other straw donors

to Political Committees A and B, all while concealing from the committees, the
FEC, the public, and law enforcement the true source of the money.

Id. § 25.

According to the Indictment, the manner and means by which Mr. Michel and Mr. Low
carried out the conspiracy were numerous and included using shell entities and bank accounts,
using conduits or straw donors, attending certain fundraising events and White House events,
providing false statements to the FEC, and using false tax records. /d. {{ 26-35. The Indictment
further alleges that Mr. Michel and Mr. Low committed numerous overt acts in furtherance of the
conspiracy. Jd. {§ 36-70. These acts spanned from 2012 through 2015. /d.

One set of overt acts concerns alleged use of straw donors to Political Committee A at
various fundraisers beginning in June 2012.4 Jd. 4§ 37-60. Mr. Michel allegedly received a large
sum of at least $1,000,000 from Mr. Low and funneled that money through straw donors to make

contributions to Political Candidate A in June through September 2012. Jd. { 37-43. He also.

 

* Pursuant to the Court’s contemporaneous Order and Memorandum Opinion allowing the
briefing for Mr. Michel’s pretrial motions to be filed on the public docket with the Government’s
proposed redactions, the Court does not include here the names of certain individuals and entities.
Rather than redacting these names, however, the Court uses the names and terms used by the
Government—such as Political Committee A or Associate B—in the Indictment and pretrial
briefing for ease of reading and clarity purposes.

3
according to the Indictment, made efforts to secure permissions for Mr. Low and Mr. Low’s father
to attend a fundraising event in Washington, D.C. in September 2012 and then attended the event
with Mr. Low’s father. Jd. ¥§ 55-56. Another set of overt acts concerns Mr. Michel contributing
money obtained from Mr. Low directly to Political Committee B in his own name and in the name
of a certain company, Company E. /d. 7 61-63.

The last set of acts deal with false reports and statements to the FEC. /d. §§ 64-70. This
includes the following reports and statements, which Mr. Michel allegedly caused or made:

e On or about July 20, 2012: Political Committee A submitted an FEC form that attributed
contributions to straw donors when they were allegedly not the true source of those
contributions. Jd. ¥ 64.

e On or about September 20, 2012: Political Committee A submitted an FEC form that
attributed contributions to straw donors who were allegedly not the true source of the
contributions. Jd. 4 65.

e Onor about October 15, 2012: Political Committee B submitted an FEC form that claimed
Mr. Miche] was the true source of a contribution when Mr. Low was allegedly the true
source. ld. ¥ 66.

e Onor about October 25, 2012: Political Committee B submitted an FEC form that claimed
that Company E was the true source of contributions when Mr. Low was allegedly the true
source. Id. 4 67.

e Onor about December 6, 2012: Political Committee B submitted an FEC form that claimed
that Mr. Michel’s company was the true source of a contribution when Mr. Low was

allegedly the true source. /d. § 68.
e On or about January 30, 2013: Political Committee B submitted an amended report
containing the same false statements as in the report submitted on December 6, 2012. Id.
¢ On or about February 6, 2013: Political Committee A submitted an amended report
containing the same false statements as they made on September 20, 2012. Jd. ¥ 65.
¢ On or about June 3, 2013: Political Committee A submitted an amended report containing
the same false statements submitted in the report on July 20, 2012. Id. ¥ 64.
¢ Onor about June 15,2015: In response to a complaint filed with the SEC alleging that Mr.
Michel had illegally made contributions to Political Committee B, Mr. Michel caused to
be submitted to the FEC an allegedly “false declaration” stating that he had made four
contributions to Political Committee B and that he had no reason to hide the true source of
his donations to Political Committee B. /d. 4 69-70.
Second, the Indictment charges Mr. Michel with concealment of material facts under
18 U.S.C. § 1001(a\1}-(2). Id. §§ 71-72. In particular, the Indictment framed Mr. Michel as
having “knowingly and willfully falsified, concealed, and covered up, by a trick, scheme, and
device,” a material fact and “made or caused to be made false, fictitious, and fraudulent statements
or representations in a matter within the jurisdiction of the executive branch.” Jd. 972. He
allegedly did this through many of the same acts underlying the conspiracy in Count One, which
fall into three categories: (1) he caused Political Committee A to make false statements regarding
the source of certain contributions on or about July 20, 2012, September 20, 2012, February 6,
2013, and June 3, 2013; (2) he caused Political Committee B to submit false statements regarding
the source of certain contributions on or about October 15, 2012, October 25, 2012, December 6,
2012, and January 30, 2013; and (3) he submitted a declaration to FEC with the false statement

that Mr. Michel was the source of the contributions made to Political Committee B. Jad.
Count Three of the Indictment charges Mr. Michel with making a false entry in a record in
violation of 18 U.S.C. § 1519 on the basis that Mr. Michel allegedly caused Political Committee
A to make false statements in an FEC form on or about June 3, 2013 that listed the straw donors
as the true sources of certain contributions. /d. {§ 73-74. Similarly, Count Four of the Indictment
charges Mr. Michel with making a false entry in a record under the same statute based on his
allegedly false declaration submitted to the FEC on June 15, 2015. Jd. 99] 75-76.

B. Requests for Foreign Evidence

In 2018, the Government submitted two ex parte applications to suspend the statute of
limitations under 18 U.S.C. § 3292. It submitted its first application on February 16, 2018, based
on a February 2, 2018 official request from the Office of International Affairs of the Department
of Justice to the British Virgin Islands (“BVI”) for evidence, specifically seeking “records
confirming that the source of the contribution money was a foreign entity in the British Virgin
Islands, and banking and communications records concerning the relevant fund transfers.” Def.’s
Mot. to Dismiss Ex. | at 1, 3; see id. at Ex. 1, Attach. B (official request to BVI). The application
explained that a grand jury was investigating Mr. Michel, Mr. Low, and others for “the following
offenses: 18 U.S.C. §§ 371 (conspiracy) and 1001 (false statements), and 52 U.S.C. §§ 30116
(contributions in excess of legal limits) and 30121 (contributions and donations by foreign
nationals).” Jd. Ex. | at 1; see id. Ex. | Attach. A at 1 (declaration in support of application
explaining same).

Chief Judge Beryl A. Howell granted the Government’s ex parte application on March 7,
2018, suspending the statute of limitations as of February 2, 2018, when the request was sent to
the BVI. Jd. Ex. 2 at 1-2. She reiterated the offenses that the grand jury was considering and

found that it “reasonably appear[ed], based on a preponderance of evidence presented to the Court,
that evidence of the offenses under investigation [wa]s located in the British Virgin Islands.” Jd.
Ex. 2 at 1. The BVI responded to the official request on June 11, 2018. /d. Ex. 3; Gov’t Opp’n to
Mot. to Dismiss at 5.

Then, on September 28, 2018, the Government submitted an ex parte application based on
a September 27, 2018 official request from the Office of International Affairs of the Department
of Justice to the United Arab Emirates (“UAE”). Def.’s Mot. to Dismiss Ex. 5 at 1; see id. Ex. 4
(redacted request to UAE). In its application, the Government explained that a grand jury was
conducting an investigation of Mr. Michel, Mr. Low, and others “for the following offenses:
18 U.S.C. §§ 371 (conspiracy), 1001 (scheme to conceal and false statements), and 1519
(falsification of records); and 52 U.S.C. §§ 30116 (contributions in excess of legal limits) and
30121 (contributions and donations by foreign nationals). /d. Ex. 5 at 1.

In its second application, the Government specifically requested information pertaining to
Associate B, who purportedly owned a company suspected to be involved in funneling the alleged
funds as part of the conduit scheme. Jd. Ex. 5 at 4. Associate B was a United States citizen who
was believed to be residing in the UAE. Jd It further described the evidence requested as
including “evidence showing the source of the funds transferred to Michel by Low [and various
corporate entities potentially connected with Associate B]; [Associate B]’s knowledge of the
control, if any, that Low exercised over the funds paid to Michel and subsequently donated to the
United States Presidential election in 2012; [Associate B]’s knowledge of Low’s intentions
regarding the United States Presidential election in 2012, and what, if any, influence Low intended
to exercise during the campaigns; and [Associate B]’s knowledge of the relationship and dealings

. between Michel and Low.” Jd. Ex. 5 at 4.
Chief Judge Howell granted the Government’s second ex parte application on September
28, 2018. Jd. Ex. 6 at 1. The Order granting the application suspended the statute of limitations
commencing on September 27, 2018. /d. Ex. 6 at 2. Like with the first Order, this one repeated
the offenses under investigation according to the ex parte application and found that, under the
preponderance of evidence standard, it appeared that “evidence of the offenses under investigation
[wa]s located in the United Arab Emirates.” Jd. Ex. 6 at 1. According to the Government, the
UAE has not yet responded to its request. Gov’t Opp’n to Mot. to Dismiss at 6.

II. DISCUSSION

Mr. Michel has made three pretrial Motions: a Motion to Dismiss Counts Two and Three,
a Motion to Sever Count Four, and a Motion for a Bill of Particulars. The Court considers each
Motion in turn.
A. Motion to Dismiss Counts Two and Three

Mr. Michel first moves to dismiss Counts Two and Three of the Indictment on the grounds
that they are barred by the applicable five-year statutes of limitations. See 18 U.S.C. § 3282(a)
(providing five-year statute of limitations for non-capital criminal offenses, unless otherwise
specified). He also challenges Count Two on duplicity grounds. Federal Rule of Criminal
Procedure 12 provides that a “party may raise by pretrial motion any defense, objection, or request
that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(2).. When
considering a motion to dismiss an indictment, a court must assume the truth of the factual
allegations in the indictment. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). The
Court first addresses Mr. Michel’s arguments regarding Count Two before turning to his

arguments related to Count Three.
1. Count Two is not barred by the statute of limitations or duplicitous.

Count Two charges Mr. Michel with concealment of material facts in violation of
18 U.S.C. § 1001(a), a statute that can be violated in three ways. The Indictment alleges that Mr.
Michel violated it in the ways outlined by subsections 1001(a)(1) and 1001(a)(2). Subsection
1001(a)(1) proscribes “knowingly and willfully” falsifying, concealing, or covering up “by any
trick, scheme or device a material fact” in “any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United States.” 18 U.S.C. § 1001 (a)(1).
Subsection 100I(a)(2) proscribes “knowingly and willfully” making “any materially false,
fictitious, or fraudulent statement or representation” in the jurisdiction of the same. Jd.
§ 1001(a)(2). The penalties for violating this provision include a fine and imprisonment of up to
five to eight years. Jd. § 1001(a). In particular, the Indictment alleges that Mr. Michel violated
subsection 1001(a)(2) through a scheme, trick, and device, and that the acts constituting that
scheme ranged from July 20, 2012, when Political Committee A made its first false report, to June
15, 2015, when Mr. Michel submitted his own declaration the FEC. Indict. §§ 71-72.

Mr. Michel argues that this count is barred by the statute of limitations for two reasons.
First, he claims that Section 1001 is not a continuing offense for statute of limitations purposes.
And because it is not a continuing offense, each of the allegedly false statements must be its own
charge, and he therefore challenges it on duplicity grounds. Second, he contends that the
Government’s application to suspend the statute of limitations under Section 3292 did not suspend

the statute specifically for Count Two. Neither of his arguments prevail here.
a. Scheme offenses under Section 1001 are continuing offenses for statute of
limitations purposes.

Statutes of limitations “normally begin to run when the crime is complete.” Toussie v.
United States, 397 U.S. 112, 115 (1970) (quoting Pendergast v. United States, 317 U.S. 412, 418
(1943)). This means that “a criminal offense is typically completed,” and the statute of limitations
begins to run, “as soon as each element of the crime has occurred.” United States v. McGoff,
831 F.2d 1071, 1078 (D.C. Cir. 1987). A five-year statute of limitations applies to Section 1001
offenses. See 18 U.S.C. § 3282(a). The Indictment was returned on May 2, 2019, and thus any
criminal offenses committed before May 2, 2014 would generally be time-barred. The
Government contends that Count Two alleges a scheme offense, and as the last act was completed
in 2015, the charge is timely.

Mr. Michel, however, argues that “Section 1001 does not criminalize schemes to commit
false statements” and that it only prohibits discrete false statements, not falsifications by scheme.
Def.’s Mot. to Dismiss at 15. According to him, Count Two consequently improperly alleges eight
individual violations and engages in duplicity. Jd. at 15-16. Furthermore, he contends that an
offense under Section 1001 is not a “continuing offense,” and thus the statute of limitations began
to run as soon as each of the allegedly false statements was made; as a result, eight individual
statements in Count Two are time-barred. /d. The crux of this last argument is his contention that
the holding in Supreme Court case Toussie v. United States, 397 U.S. 112, is inconsistent with and
called into question the earlier D.C. Circuit case Bramblett v. United States, 231 F.2d 489 (D.C.
Cir. 1956), which found that the date of the last act in a scheme under Section 1001 is when the
crime is complete. But Toussie did not disturb Bramblett’s holding.

The D.C. Circuit considered in Bramblett when a falsification by scheme under Section

1001 is complete. The defendant in Bramblett was charged with “knowingly and wilfully

10
falsify[ing] by a scheme a material fact” in violation of Section 1001. 231 F.2d at 490. The
indictment had alleged that in 1949, he submitted a form designating an individual as his clerk,
but that he in fact intended to divert the compensation authorized by the form to himself. Jd. This
was framed as a scheme, as the clerk designation remained on file and the defendant had continued
to receive money based on this designation until at least December1950. /d. The defendant argued
that because more than three years had passed since he submitted the form on August 27, 1949,
and the indictment, which was returned on June 17, 1953, the case was barred by the then-
applicable three-year statute of limitations. Jd. at 490-91. The D.C. Circuit found that the
indictment alleged a scheme offense; that the statute allowed the charging of scheme offenses,
which it likened to conspiracy offenses in that both “continued over a period of time”; and
explained that the statute “revealed a Congressional intent to reach a pattern of conduct.” Jd. at
491. Because he left the designation on file, represented that the designated individual was his
clerk every subsequent month, and continued to benefit from the false designation through
December 1950, the scheme continued through that December. /d. Consequently, because “the
period of limitations did not begin to run until the scheme ended” in December 1950, the Section
1001 charge was timely. Jd.

Decided fourteen years later, Toussie concerned a conviction under the Universal Military
Training and Service Act, which required male citizens to register for the draft within a certain
number of days after turning eighteen. 397 U.S. at 113. Toussie was required to register in June
1959 and was not indicted for violating the statute until eight years later in 1967. /d. at 113-14.
He argued that the charge was barred by the applicable five-year statute of limitations, while the
Government contended that failing to register for the draft was a continuing offense that

“continued to be committed each day that Toussie did not register.” Jd. at 114. The Supreme
Court disagreed with the Government. Jd. at 116. In doing so, the Court established a two-part
test for determining whether offenses are continuing ones: either (1) “the explicit language of the
substantive criminal statute compels such a conclusion” or (2) “the nature of the crime involved is
such that Congress must assuredly have intended that it be treated as a continuing one.” /d. at 115.

Mr. Michel argues that Toussie is “squarely in conflict” with Bramblett. Def.’s Mot. to
Dismiss at 20. Toussie, according to Mr. Michel, held that the nature of the offense in the abstract
determines whether an offense is a continuing one, whereas Bramblett found that it was a
continuing offense solely on the specific facts alleged. /d. at 20,22. Not so. This is a misreading
of Bramblett. The D.C. Circuit in Bramblett focused on the intent behind Section 1001 itself, and
on the statute’s explicit inclusion of the word “scheme,” which is in accordance with the second
prong of the Toussie test. As a result, the Bramblett court concluded that the statute “support[ed]
an indictment of defendant for a single offense which continued until the scheme ended in
December, 1950.” 231 F.2d at 491; see Hubbell v. United States, 177 F.3d 11, 13 (D.C. Cir. 1999)
(discussing how Bramblett court interpreted statute to allow charging of falsifications by scheme).
While the Bramblett court discussed the specific indictment at issue, it did so to determine whether
a scheme had been alleged, as the statute proscribes multiple means of violating it. See Bramblett,
231 F.2d at 491-92. And though the court also focused on the specific facts of the case, it did so
to consider at what point the scheme ended. See id. at 490-91. In any event, it is not as clear as
Mr. Michel claims that if Toussie’s framework had been applied, the D.C. Circuit would have
decided Bramblett differently. Toussie itself did not even touch on Section 1001, or conspiracy or
scheme offenses more generally, and the D.C. Circuit’s focus on the language of Section 1001 in
Bramblett is consistent with the second prong of Toussie. It is true that because Bramblett pre-

dated Toussie, the opinion did not frame its analysis in exactly the terms expressed by the Supreme

12
Court in Toussie. But that does not necessarily invalidate Bramblett’s analysis or ultimate
conclusion.

Indeed, the D.C. Circuit has more recently reaffirmed the principles underlying Bramblett
and demonstrated its viability. In Hubbell v. United States, 177 F.3d at 13, Hubbell argued, similar
to Mr. Michel here, that “§ 1001 does not define a separate offense of committing a scheme; it
merely limits the type of concealments that violate the statute.” /d. But the D.C. Circuit rejected
that argument on the basis that Bramblett found that Section 1001 encompassed falsifications by
scheme, stating in relevant part that “[b]y falsifying a material fact, and in leaving it on file, thereby
continuing the falsification in order repeatedly to partake of the fruits of the scheme, the defendant
[in Bramblett] committed a continuing crime of falsification by scheme that fairly falls within
the terms of section 1001.” /d. (emphasis added) (internal quotation marks omitted) (quoting
Bramblett, 231 F.2d at 491). So, to the extent that Mr. Michel argues that Section 1001 prohibits
individual false statements and not falsifications by scheme, he is incorrect. See, e.g., Def.’s Mot.
to Dismiss at 22 (“Section 1001(a)(1) does not criminalize the scheme; it criminalizes the discrete
act of lying to the Government ‘by scheme.’”).

What is more, Hubbell squarely demonstrates that Bramblett was not overturned by Toussie
and that its reasoning survived. While Hubbell did not directly deal with the statute of limitations,
it clarified that the D.C. Circuit continues to interpret Section 1001 as encompassing “continuing
crime[s] of falsification by scheme,” as alleged here. Hubbell, 177 F.3d at 13. While a scheme
offense is not the same as a continuing offense, see United States v. Jaynes, 75 F.3d 1493, 1506
(10th Cir. 1996), Hubbell’s discussion and affirmation of Bramblett demonstrates that the case is
still binding on this Court even after Toussie. In fact, Judge Amy Berman Jackson recently

recognized this under similar circumstances. See United States v. Craig, No. 19-cr-0215 (ABJ),

13
2019 WL 3604630, at *22 (D.D.C. Aug. 6, 2019) (similarly finding that Section 1001 is continuing
offense for statute of limitations purposes under Bramblett and Hubbell). At bottom, Hubbell cited
approvingly to Bramblett with no mention of its supposed abrogation or implicit overturning and,
in doing so, reaffirmed that it is binding on this Court.

In addition to overlooking the importance of Hubbell, Mr. Michel cites to non-binding
cases from other circuits that have found that Section 1001 is not a continuing offense under
Toussie. These cases are not persuasive here. Not only do these cases come from circuits that do
not follow Bramblett, but not all of them even address the specific use of the word “scheme” in
Section 1001 at issue here and in Bramblett. In United States v. Dunne, 324 F.3d 1158, 1164 (10th
Cir, 2003), for instance, the Tenth Circuit rejected the argument that Section 1001 was a continuing
offense under Toussie. It quoted the relevant statutory language and found that the nature of the
crime did not “indicate that Congress intended that it be a continuing offense,” as the acts in the
statute did not “‘clearly contemplate[] a prolonged course of conduct.’” Jd. at 1164-65 (quoting
Toussie, 397 U.S. at 120). The parties apparently did not raise, and the court did not address, the
language in Section 1001 relating to schemes, which the D.C. Circuit recognized in Bramblett and
in Hubbell as allowing for “a continuing crime of falsification by scheme.” Hubbell, 177 F.3d at

13. This Court accordingly does not find this reasoning persuasive.°

 

> Two of the cases cited by Mr. Michel do address the scheme argument. In United States
v. Mubayyid, 567 F. Supp. 2d 223, 239-42 (D. Mass. 2008), aff'd in part, rev'd in part, 658 F.3d
35 (1st Cir. 2011), the district court considered whether Section 1001 was a continuing offense in
light of the word “scheme” in the statute. It decided that it was not. /d. at 240-41. It offered
several rationales for its decision. First, it noted that “there is nothing about the nature of the crime
itself to indicate that Congress ‘assuredly intended’ to make the ‘scheme’ component of § [001 a
continuing offense.” /d. at 241 (quoting Dunne, 324 F.3d at 1164-65). But the D.C. Circuit did,
in fact, recognize that intent in both Bramblett and Hubbell, as discussed above, and thus this
reasoning is not persuasive here. Second, the district court explained that at least two other courts
had found that Section 1001 was not a continuing offense. /d. But so too have other courts found
that it is a continuing offense. See, e.g., United States v. Heacock, 3\ F.3d 249, 256 (Sth Cir.

14
For the same reasons as discussed above, Mr. Michel’s duplicity challenge as to Count
Two cannot succeed. “Duplicity is the joining in a single count of two or more distinct and separate
offenses.” Hubbell, 177 F.3d at 14. Mr. Michel argues that because Section 1001 criminalizes
discrete false statements, Count Two in fact charges at least eight separate offenses. See Def.’s
Mot. to Dismiss at 15-16. “But this construction of the indictment makes sense only if § 1001
does not state an offense for a scheme crime—which it clearly does.” Hubbell, 177 F.3d at 14; see
also Menendez, 137 F. Supp. 3d at 700 (rejecting duplicity argument because it found that scheme
offense under Section 1001 was continuing offense for statute of limitations purposes). Count
Two is therefore not duplicitous.

Mr. Michel further contends that the June 15, 2015 declaration that he allegedly made to
the FEC cannot constitute part of the scheme because it is after-the-fact concealment.° Def.’s Mot.

to Dismiss at 15. The Court addresses a similar argument regarding the June 15, 2015 declaration

 

1994); United States v. Menendez, 137 F. Supp. 3d 688, 699 (D.N.J. 2015), aff'd, 831 F.3d 155
(3d Cir. 2016). And one of the cases cited as support in Mubayyid explicitly distinguished the
facts of that case from cases in which “scheme” offenses are charged, as is the case here. See
United States v. Gremillion-Stovall, 397 F. Supp. 2d 798, 801-02 (M.D. La. 2005) (‘The case
before this court does not involve the type of ‘scheme crime’ that was at issue in Heacock.”).
Lastly, the Mubayyid court rejected the Government’s argument that the scheme continued to run
“as long as the defendant continued to reap the benefits of his crime” in part because it suggested
that the limitations period would never start to run. Mubayyid, 567 F. Supp. 2d at 241. That is not
at issue here, as the Government has alleged distinct acts within the limitations period rather than
claiming just that there were continuing benefits. For these reasons, the Court does not find the
reasoning in Mubayyid or the cases it cites to be persuasive. The same is true of United States v.
Tracy, No. 5:13-cr-00018, 2014 WL 12698499, at *2—*3 (W.D. Va. Jan. 28, 2014), in which the
court relied on Mubayyid and employed similar reasoning.

° He also argues that it is not part of the charge in Count Two at all because the Indictment
does not provide the exact date and the same act is separately alleged in Count Four. Def.’s Mot.
to Dismiss at 15 n.10. This overlooks, however, that Count Two specifically included this act
along with the other alleged acts as part of the alleged scheme and that the Indictment elsewhere
provides a specific date for the alleged declaration. Indict. {§ 71-72. Accordingly, there is little
basis to read Count Two in the way that Mr. Michel proposes.

15
in the context of the conspiracy charge in Count One when discussing Defendant’s Motion to
Sever. See infra Section II.B. He relies on the same authorities here, all of which deal with
conspiracy charges and not scheme offenses under Section 1001. See, e.g., Grunewald v. United
States, 353 U.S. 391, 394 (1957). Although conspiracy and scheme offenses are similar, these
cases hinged on circumstances specific to conspiracies and it is far from clear that these cases
apply to scheme offenses. Even assuming that the same principles apply, though, Mr. Michel is
incorrect that the June 15, 2015 declaration is a distinct act of concealment not properly alleged
within the scheme for the same reasons as discussed below with respect to Count One’s conspiracy
charge. See infra Section II.B.

Because binding precedent establishes that Section 1001 is a continuing offense for statute
of limitations purposes, the offense was complete when the last act was allegedly committed. That
was June 15, 2015. Indict. {§ 72, 76. The Indictment was returned on May 2, 2019, which was
within the five-year limitations period. Accordingly, Count Two was timely.

b. The Government’s official requests to the BVI and UAE, and the two
subsequent court orders, suspended the statutes of limitations for Count Two.

Alternatively, and in addition to his first argument, Mr. Michel argues that the
Government’s two ex parte applications to suspend the statute of limitations, and the court’s
subsequent orders suspending the statute of limitations, did not extend to the offenses in Count
Two. Def.’s Mot. to Dismiss at 28-35; Def.’s Reply in Supp. of Mot. to Dismiss at 20-23. Even
if it did, he claims, the only statement with a limitation period that had not lapsed was the June 3,
2013 report, and therefore that can be the only offense for which the statute of limitations was
suspended. Jd. at Def.’s Mot. to Dismiss at 31-32. This latter argument overlooks the June 15,
2015 declaration, which was included as part of the falsification by scheme in Count Two, and

only makes sense if Count Two is read as duplicitous, an argument which this Court rejected above.

16
Regardless, even if Count Two’s falsification by scheme did not include the June 15, 2015
declaration and ended on June 13, 2013, the statute of limitations was still suspended. The Court
agrees with the Government that Mr. Michel construes Section 3292 too narrowly.
Section 3292 allows the United States to suspend the statute of limitations in certain
circumstances:
Upon application of the United States, filed before return of an indictment,
indicating that evidence of an offense is in a foreign country, the district court
before which a grand jury is impaneled to investigate the offense shall suspend the
running of the statute of limitations for the offense if the court finds by a
preponderance of the evidence that an official request has been made for such

evidence and that it reasonably appears, or reasonably appeared at the time the
request was made, that such evidence is, or was, in such foreign country.

18 U.S.C. § 3292(a)(1). The plain language of the statute establishes that Section 3292 is offense-
specific—it repeatedly refers to “an offense” or “the offense.” Jd.; see United States v. Trainor,
277 F. Supp. 2d 1278, 1283 (S.D. Fla. 2003), aff'd, 376 F.3d 1325 (11th Cir. 2004); United States
v. Neill, 952 F. Supp. 831, 833 (D.D.C. 1996). When suspended, the period of suspension
generally begins ‘“‘on the date on which the official request is made and ends on the date on which
the foreign court or authority takes final action on the request.” 18 U.S.C. § 3292(b).

A case illustrating the specificity required under Section 3292, and “the central authority
on point,” United States v. Ratti, 365 F. Supp. 2d 649, 656 (D. Md. 2005), is United States v. Neill.
Neill argued that the official request in his case to the foreign government was insufficiently
specific. 952 F. Supp. at 832-33. On reconsideration of its prior order dismissing certain counts,
however, the Nei/l/ court agreed with the Government that Section 3292 does not “impose any
specific requirements regarding the precise content of foreign evidence requests.” 952 F. Supp. at
832. While the statute is “offense-specific,” the court explained, “such specificity does not require
that a foreign evidence request expressly list by citation the alleged statutory violations in order

for a foreign evidence request to pass muster.” Jd. Instead, the requirements are that an “an offense

17
be under investigation by a grand jury” and that “the request for evidence must nevertheless be
reasonably specific in order to elicit evidence of the alleged violations under investigation by the
grand jury.” Jd. at 832-33. In Neill, the evidence sought included “foreign evidence related to
money laundering, conflicts of interest, bribery or gratuity and foreign financial transactions,”
including “bank records.” Jd. at 833. That evidence was “reasonably specific to elicit evidence
probative of the tax violations then under investigation by the grand jury, and it was, therefore,
effective to toll the statutes of limitations for those offenses.” Jd; see also United States v. Wilson,
249 F.3d 366, 374 (Sth Cir. 2001) (agreeing with and quoting Neill), abrogated on other grounds
by Whitfield v. United States, 543 U.S. 209 (2005).

Here, though, Mr. Michel does not contest the validity of the official requests or the ex
parte applications that the Government submitted to the Court. He instead questions whether both
applications extended to Count Two. First, as for the application to the BVI, he appears to argue
that it did not encompass Count Two because “the evidence sought from the BVI did not pertain
to the Section 1001 offense charged in Count Two.” Def.’s Mot. to Dismiss at 32. The
Government, he claims, already had evidence that the funds did not originate from the straw donors
and that Mr. Michel had submitted a false declaration. /d. at 32-33. The evidence requested about
the identities of who owned the BVI entities involved were therefore irrelevant to Count Two. Id.
at 33.

He imposes on the statute a rigidity that it does not require. Mr. Michel’s argument hinges
on his mistaken reading of Count Two as alleging eight individual charges rather than one charge
of falsification by scheme and his belief that Count Two only includes the June 3, 2013 statement.
Moreover, he cites no authority for the proposition that whether the statute of limitations can be

suspended depends on what evidence the Government already has or whether it has sufficient
evidence to bring a charge. The statute’s language presents no such requirement: it only refers to
“evidence of an offense.” 18 U.S.C. § 3292. Other courts have persuasively rejected this
argument. See, e.g., United States v. Broughton, 689 F.3d 1260, 1275 (11th Cir. 2012) (“It is
neither here nor there that the Government knew of the conspiracy before sending its official
requests to Costa Rica and Panama; that the conspiracy had terminated before the Government
requested the statute of limitations be tolled; or that ‘none of the evidence requested or obtained
by the Government’ was needed at trial.”). Neill does not counsel differently: it referred to the
evidence as “evidence of the alleged violations under investigation by the grand jury” and
“evidence probative of the tax violations” at issue. Neill, 952 F. Supp. at 833. Mr. Michel appears
to concede that the statute includes evidence probative of an offense. Def.’s Mot. to Dismiss at 32
(using term “pertinent to”); Def.’s Reply in Supp. of Mot. to Dismiss at 22 (using term
probative”).

This is exactly the type of evidence that the request to the BVI sought with respect to the
falsification by scheme charge in Count Two. The request included business and official records
from several companies involved in transferring the funds at issue, including the identity of their
shareholders and owners as well as their banking activities. Def.’s Mot. to Dismiss Ex. 1, Attach.
B at 9-10. Evidence concerning the actual source of the funds—and whether the funds originated
from someone other than Mr. Michel, such as a foreign national—was still relevant to and evidence
of the Section 1001 offense alleging a large-scale falsification by scheme, regardless of what
evidence the Government already had. Whether the funds did in fact come from a foreign national,
for instance, would be probative not only of whether the statements were false but also of Mr.
Michel’s mental state for Section 1001—whether he “knowingly and willfully” carried out the

scheme to conceal the true source of the contributions. Cf Neill, 952 F. Supp. at 833 (finding that
financial evidence sought, including bank records, was probative of tax violations). Accordingly,
the March 7, 2018 order suspended the statute of limitations for the offense in Count Two.

The statute of limitations was therefore suspended between February 2, 2018, when the
official request was made, to June 11, 2018, when the BVI took final action on the request, which
totaled 129 days. See 18 U.S.C. § 3292(b). IfMr. Michel were correct that the falsification scheme
did not include the June 5, 2015 statement, and instead ended with the June 3, 2013 statement, this
suspension would push back the end of the limitation period from June 3, 2018 to October 10,
2018.’ Before that date, on September 26, 2018, the Government submitted an official request to
the UAE.

Mr. Michel challenges the September 28, 2018 order suspending the statute of limitations
based on the Government’s September 26, 2018 request to the UAE.® See Def.’s Reply in Supp.
of Mot. to Dismiss at 22. He argues that the information requested is not probative of the specific
false statement that he believes constitutes the entirety of Count Two, which is the June 3, 2013
false statement listing straw donors as the true sources of certain donations. See id. (“The request
for an interview with and documents pertaining to [Associate B] is not probative of whether Mr.
Michel caused [Political Committee A] to file a report with the FEC on June 3, 2013 that falsely

listed straw donors as the true sources of certain donations, as charged in Count Two.”). But as

 

7Mr. Michel agreed in his Reply that this would have been the end of the limitation period
for the June 3, 2013 statement if the official request to BVI suspended the statute of limitations in
the context of Count Three. See Def.’s Reply in Supp. of Mot. to Dismiss at 2.

8 He notes in his Reply, which principally advances this argument, that the Government
did not argue that the official request to the UAE did suspend the statute of limitations. Def.’s
Reply in Supp. of Mot. to Dismiss at 22. This ignores that the Government was responding to Mr.
Michel’s arguments and his opening brief did not make this extended argument as to Count Two.
See Def.’s Mot. to Dismiss at 34-35.

20
the Court has found, Count Two encompassed an entire falsification by scheme, and not just the
June 3, 2013 statement. The evidence requested was relevant to that falsification by scheme.

The official request to the UAE sought to interview Associate B, who purportedly owned
one of the companies involved in transferring the funds ultimately donated to one of the political
committees about which Mr. Michel made allegedly false statements. Def.’s Mot. to Dismiss Ex.
4 at 2,4, 7. It also requested that Associate B produce records to determine the source of the funds
transferred, his knowledge of the control that Mr. Low exercised over the funds paid, his
knowledge or Mr. Low’s intentions regarding the 2012 Presidential election, and his knowledge
regarding the dealings and relationship between Mr. Michel and Mr. Low. /d. Ex. 4 at 10. Those
records included records revealing the identity of one of the company’s shareholders, directors and
officers, owners as well as its banking activities and communications related to specific
transactions. Jd. Ex. 4 at 10-11. Like with the evidence requested from the BVI, the evidence
sought from the UAE is relevant to the falsification by scheme. The original source of the funds
would likely be probative of whether Mr. Michel knew of the original source, which would speak
to his mental state in making the statements alleged. And, for instance, evidence of the dealings
and relationship between Mr. Michel and Mr. Low would speak to the same.

Accordingly, as the UAE had not yet responded to the Government’s official request as of
May 2, 2019 when the indictment was returned, Gov’t Opp’n to Mot. to Dismiss at 6, Count Two

was timely.°

 

” The parties also present the possibility that even if the evidence sought was not relevant
to Count Two, it was evidence of an intimately related offense, which some courts have found is
encompassed by Section 3292. See, e.g., Ratti, 365 F. Supp. 2d at 656. As the Court decides that
the evidence sought is relevant to Count Two for both official requests, and that the request and
order encompassed Count Two, it does not examine this issue.

21
2. Count Three is not barred by the statute of limitations.

Mr. Michel contends that Count Three is barred by the statute of limitations on similar
grounds. Count Three charges Mr. Michel with making a single false entry under 18 U.S.C. § 1519
by causing Political Committee A to make false statements in an FEC form on June 3, 2013. Indict.
q§ 73-74. The statement was allegedly false because it listed the straw donors as the true source
of the contributions. See id. Like Section 1001, Section 1519 has a five-year statute of limitations,
and the limitations period ordinarily would have ended on June 3, 2018 for this false statement.
See 18 U.S.C. 3282(a). The Government contends, however, that the official requests for foreign
evidence and subsequent orders had the effect of suspending the statute of limitations for Count
Three as well.

Mr. Michel argues that both sets of requests and orders failed to suspend the statute of
limitations. First, as to the official request to the BVI, Mr. Michel contends that the statute of
limitations was not tolled because the request, application, and order did not list Section 1519 as
one of the offenses. He cites no authority for this provision. While it is true that Section 3292 is
offense-specific, there is no requirement that the Government list each and every offense that is
being investigated. The statute simply explains that the statute of limitations shall be suspended
“for the offense.” 18 U.S.C. § 3292.

In fact, numerous courts have recognized that “it would be unreasonably formalistic as well
as unnecessary to impose a requirement that the Government list by citation the statutes that may
have been violated” in the official request. Nei//, 952 F. Supp. at 833 (“Listing those offenses by
statutory citation would do nothing to facilitate the foreign evidence request, and, most
importantly, it is not required by 18 U.S.C. § 3292.”); see Wilson, 249 F.3d at 374 (finding that

reference to “money laundering” in request was sufficient to toll limitations for statute that had

22
been described in opinions as money laundering); United States v. Arrington, No. 8:13CR146,
2013 WL 5963140, at *5 (D. Neb. Nov. 7, 2013) (“To require the United States to be omniscient
of every possible crime before records are requested and the investigation is complete would be
an overly formalistic reading of the statute.”); United States v. Swartzendruber, No. 3:06-CR-136,
2009 WL 485144, at *5 (D.N.D. Feb. 25, 2009) (“Section 3292, of Title 18, does not require that
the offenses sought to be tolled be listed by statutory citation.”); Ratti, 365 F. Supp. 2d at 656
(finding that wire fraud counts were “reasonably specific” under Nei// because they were tied to,
and intertwined with, general scheme to defraud that was specifically referenced in suspension
application). The request need only be “reasonably specific in order to elicit evidence of the
alleged violations.” Neill, 952 F. Supp. at 833.

That standard was met here. While the request and application did not explicitly list
Section 1519, they comprehensively explained that the Government was investigating a conduit
contribution scheme involving contributions to Political Committee A and whether Mr. Michel
caused Political Committee A to consequently make false statements regarding the true source of
those contributions. See Def.’s Mot. to Dismiss Ex. 2, Attach. B at 1-8. In other words, it
described the offenses under investigation with reasonable specificity. And, as previously noted
above, the evidence sought included financial records of companies allegedly involved in
transferring the funds that ultimately became contributions to Political Committee A. /d. Ex. 4,
Attach. B at 2, 9-11. The origination of the funds ultimately contributed to Political Committee
A is relevant to whether they originated from the straw donors or Mr. Michel, and therefore
whether Mr. Michel caused Political Committee A to make a false statement in the June 3, 2013
report at issue in Count Three. The ensuing order therefore had the effect of suspending the statute

of limitations and extended the end of the limitation period to October 10, 2018. See Def.’s Reply

23
in Supp. of Mot. to Dismiss at 2 (conceding this date would be end of limitation period if BVI -
related application suspended statute).

Second, Mr. Michel contends that the request to the UAE and subsequent order also did
not suspend the statute of limitations because the evidence requested was not related to Count
Three.'° Def.’s Mot. to Dismiss at 37-38. But it was. The requested evidence included an
interview with Associate B about the source of the funds, his knowledge of the control that Mr.
Low exercised over the funds, his knowledge of Mr. Low’s intentions regarding the election, and
his knowledge of the relationship between Mr. Michel and Mr. Low. Def.’s Mot. to Dismiss Ex.
4 at 10-11. As with Count Two, this evidence would be probative of Mr. Michel’s state of mind
and whether he “knowingly” caused Political Committee A to make the allegedly false statement
in its report. See 18 U.S.C. § 1519 (imposing “knowingly” mental state requirement). Moreover,
the request also encompassed financial records that could shed light on the original source of the
funds, which would be probative of whether the statement was actually false. See Def.’s Mot. to
Dismiss Ex. 4 at 10-11. The Government’s application and the court’s subsequent order therefore
suspended the statute of limitations as of September 26, 2018 for Count Three, rendering the
charge timely when the Indictment was returned on May 2, 2019.

Mr. Michel suggests at one point that this case is like the example given in Neil, where the
court explained that the Government “could not reasonably request foreign evidence related to tax
violations to toll the statute of limitations regarding conspiracy to import a controlled substance”
because the two were insufficiently connected. Neill, 952 F. Supp. at 833 n.2; see Def.’s Mot. to

Dismiss at 30. However, this case is not like the example given. Each of the charges in the

 

'° He does not contend that the request or order did not encompass the Section 1519 charge
on their face, as both list it as one of the offenses under investigation. See Def.’s Mot. to Dismiss
Ex. 4 at 8; id. Ex. 6 at |.

24
Indictment are part of a conduit contribution scheme and all the charges are closely related to each
other. For instance, the substantive offense in Count Three is included as part of the conspiracy in
Count One and the scheme in Count Two. Mr. Michel appears to argue that making false
statements to the Government is not in any way related to the allegations regarding the actual
contributions. But when the statements are about the contributions, and about the true source of
the contributions, that is not the case. Accordingly, neither Count Two nor Count Three are barred
by the statute of limitations and the Court denies Mr. Michel’s Motion to Dismiss Counts Two and
Three.
B. Motion to Sever Count Four

Mr. Michel further moves to sever Count Four of the Indictment. Count Four charges him
with violating 18 U.S.C. § 1519 for submitting the allegedly false June 2015 declaration to the
FEC claiming that he was the true source of the funds contributed to Political Committee B. Indict.
q§ 75-76. Mr. Michel himself made contributions to Political Committee B; the Indictment does
not allege that he used straw donors to donate to Political Committee B as it does for Political
Committee A. /d. at § 61-63. Mr. Michel argues that he will be prejudiced without severance
because he has important testimony to offer for Count Four and convincing reasons not to testify
on Counts One, Two, and Three. In response, the Government argues that severance is not
warranted because Count Four is “fundamentally intertwined” with the other counts and because
Mr. Michel has not met his burden to show prejudice. Gov't Opp’n to Mot. to Sever at 4. On the
present record, the Court agrees with the Government.

Under Federal Rule of Criminal Procedure 14, the Court “may order separate trials of
counts” or “provide any other relief that justice requires” if joining offenses “appears to prejudice

a defendant or the government.” Fed. R. Crim. P. 14(a). “The defendant carries the burden of

25
demonstrating prejudice resulting from a failure to sever, but such a showing does not result in an
automatic grant of the motion.” United States v. Gooch, 665 F.3d 1318, 1326 (D.C. Cir. 2012)
(citations omitted). “[T]he Supreme Court has cautioned that ‘a district court should grant a
severance motion under Rule 14 only if there is a serious risk that a joint trial would... prevent
the jury from making a reliable judgment about guilt or innocence.’” United States v. Bikundi,
926 F.3d 761, 780 (D.C. Cir. 2019) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
The D.C. Circuit has recognized that “[t]hree kinds of prejudice warrant relief under Rule 14”:
first, “the jury may cumulate evidence of the separate crimes”; second, “the jury may improperly
infer a criminal disposition and treat the inference as evidence of guilt”; or, third, “the defendant
may become ‘embarrassed or confounded’ in presenting different defenses to the different
charges.” Blunt v. United States, 404 F.2d 1283, 1288 (D.C. Cir. 1968) (quoting Drew v. United
States, 331 F.2d 85, 88 (D.C. Cir. 1964)). The third variety of prejudice is at issue here.

This type of “[p]rejudice may develop when an accused wishes to testify on one but not
the other of two joined offenses which are clearly distinct in time, place and evidence.” Baker
v. United States, 401 F.2d 958, 976 (D.C. Cir. 1968) (emphasis added). In general, a defendant
must balance numerous factors to determine whether to testify, and when counts are jointed
together for trial, “it is not possible for him to weigh these factors separately as to each count”
because if he testifies on one, “he runs the risk that any adverse effects” from either speaking or
staying silent on one count “will influence the jury’s consideration of the other count.” Jd. To
meet his burden, the defendant must “make[{] a convincing showing that he has both important
testimony to give concerning one count and strong need to refrain from testifying on the other.”
Id. at 977. The defendant must present sufficient information “regarding the nature of the

testimony he wishes to give on one count and his reasons for not wishing to testify on the other”

26
to “satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh
the considerations of ‘economy and expedition in judicial administration’ against the defendant’s
interest in having a free choice with respect to testifying.” Jd. But “the accused’s election to testify
on some but not all of the charges on trial does not automatically require a severance”—that would
“divest the court of all control over the matter of severance and entrust it to the defendant.” Bradley
v. United States, 433 F.2d 1113, 1122 (D.C. Cir. 1969) (internal quotation marks omitted) (quoting
Baker, 401 F.2d at 976).

Mr. Michel argues that he meets this standard. To begin with, Mr. Michel proposes that
Count Four is completely distinct from the other Counts. Def.’s Mot. to Sever at 3-4, 5-6. In
general, he claims that Count Four alleges “a single false declaration” while the other counts
feature “allegations concerning a complex international conduit contribution scheme” involving
numerous other persons and conduit mechanisms. Jd. at 5-6. So, he claims, none of the
information underlying Counts One through Three is relevant to his statements two years later in
2015. Jd. But Baker recognized that this type of prejudice is present specifically when offenses
are joined that are “clearly distinct in time, place and evidence.” Baker, 401 F.2d at 976. While
Mr. Michel argues that Count Four is distinct in time, place, and evidence, he has failed to show
that Count Four is sufficiently distinct to prompt severance under Baker. See Bradley, 433 F.2d
at 1122-23 (finding that joined offenses were not clearly distinct and “bore such a relationship that
evidence as to each was mutually admissible upon trial of the other,” which weighed against need
for severance).

Indeed, Count Four is intertwined with the first three counts. Count Four charges Mr.
Michel with submitting a false declaration in June 2015 about contributions to Political Committee

B claiming that the funds were his and that he had no reason to hide their true source. Indict.

27
{§| 69-70, 75-76; see also id. {| 61-63 (allegations regarding contributions to Political Committee
B). Mr. Michel frames this as a distinct charge-—‘‘a single false declaration’ —unconnected with
the other three counts. Def.’s Mot. to Sever at 5-6. But this count is related to, and builds upon,
the earlier counts. The June 2015 declaration involves contributions to Political Committee B,
events that also underlie Counts One and Two. Indict. {| 61-63, 71-72. Mr. Michel submits that
the evidence does not substantially overlap because no straw donors were allegedly used to
contribute to Political Committee B, but that overlooks the other existing evidentiary overlap. On
the present record, to show both that Mr. Michel’s had the requisite mental state and that the
declaration was false for Count Four, the Government will have to present much of the same
evidence underlying Counts One and Two. For instance, to show that Mr. Michel “knowingly”
made the false declaration in June 2015, the Government must demonstrate that he was not the
original source of the funds contributed to Political Committee B in 2012 and that he was aware
of that fact in June 2015 when he made his declaration. See 18 U.S.C. § 1519 (requiring mental
state of “knowingly”). In fact, if Mr. Michel were to testify as to Count Four and not to the other
counts, he would likely open himself up to cross-examination about the original contributions in
2013 alleged in Counts One and Two. In light of these considerations, it is unclear how Count
Four is “clearly distinct” from the other three counts. See Bradley, 433 F.2d at 1122-23; see also
Holmes v. Gray, 526 F.2d 622, 626 (7th Cir. 1975) (finding that causally connected crimes with
significantly “overlapping evidence” were not “clearly distinct” for severance purposes).
Moreover, he contends that although Count One includes the June 2015 declaration, that
act is not properly pled as part of that count because the June 2015 declaration is after-the-fact
concealment and not in furtherance of the conspiracy. Def.’s Mot. to Sever at 3 n.2. But

Grunewald v. United States, upon which Mr. Michel relies, does not mandate that result. The

28
Supreme Court in Grunewald found that “an agreement to conceal a conspiracy” could not, on the
facts of that case, “be deemed part of the conspiracy” to “extend its duration for the purposes of
the statute of limitations.” 353 U.S. at 399. There the indictment charged not only conspiracy to
defraud the United States, but also “charged that a part of the conspiracy was an agreement to
conceal the acts of the conspirators.” Jd. at 394. To support its decision, the Grunewald Court
quoted Krulewitch v. United States, id. at 399-400, in which it had rejected the argument that
“even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit
subsidiary phase of the conspiracy” with concealment “as its sole objective” survives. 336 U.S.
440, 443 (1949).

The concurrence in Grunewald clarified that “a vital distinction must be made between acts
of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of
concealment done after these central objectives have been attained, for the purpose only of
covering up after the crime.” 353 U.S. at 405 (Jackson, J., concurring). The D.C. Circuit has
referred to this as “an exception to the Grunewald rule.” United States v. Andrews, 532 F.3d 900,
909 (D.C. Cir. 2008); accord United States v. Stinson, 647 F.3d 1196, 1215-16 (9th Cir. 2011)
(explaining, based on same language in Grunewald, that concealment may be in furtherance of
conspiracy depending on scope of alleged conspiracy and finding that it was when conspiracy
charged attempting to conceal certain information from government). In sum, “[w]hen ‘[t]he
successful accomplishment of the crime necessitates concealment, acts of concealment are
properly considered to be within the scope of the original conspiracy.’” Andrews, 532 F.3d at
909-10 (quoting United States v. Gleason, 766 F.2d 1239, 1242 (8th Cir. 1985)); see United States
v. Hitt, 249 F.3d 1010, 1015 (D.C. Cir. 2001) (explaining that court must determine “the scope of

the conspiratorial agreement, for it is that which determines both the duration of the conspiracy,

29
and whether the act relied on as an overt act may properly be regarded as in furtherance of the
conspiracy”).

This case falls into the Grunewald exception. Count One of the Indictment frames the
object of the conspiracy as for Mr. Michel and Mr. Low “to gain access to and potential influence
with Candidate A and his administration by secretly funneling foreign money” from Mr. Low
through Mr. Michel “and other straw donors to Political Committees A and B, all while concealing
from the committees, the FEC, the public, and law enforcement the true source of the money.”
Indict. § 25. As framed in the Indictment, it was an object of the conspiracy to conceal from the
FEC and others the true source of the contributions. The concealment was not just to cover up the
prior alleged crimes, but in furtherance of the main objectives of the conspiracy: to keep the FEC
and others from knowing that anyone but Mr. Michel was the source of the contributions. Count
One can therefore include the June 2015 declaration, in which Mr. Michel allegedly continued to
conceal the true source of the contributions, as an act in furtherance of the conspiracy. See Forman
v. United States, 361 U.S. 416, 424 (1960) (applying Grunewald exception and finding that tax
evasion conspiracy extended to concealment because “concealment of the ‘holdout’ income must
continue if the evasion is to succeed”), overruled on other grounds by Burks v. United States,
437 U.S. 1 (1978); Gleason, 766 F.2d at 1242 (finding that concealment evidence in fraud case
was properly admitted because concealment of fraud alleged was in furtherance of main aims of
conspiracy and collecting other cases finding same). Consequently, Count Four is closely
connected to and intertwined with the other three counts and not “clearly distinct” under Baker.

Furthermore, Mr. Michel has not met his burden under Baker to provide a convincing
showing and compelling reasons for why he wants to testify on Count Four but not the other three

counts. He explains that he “has important testimony to give concerning Count Four that could

30
not come from any other source”—his personal knowledge and mental state in 2015 when
submitting the declaration. Def.’s Mot. to Sever at 6. Mr. Michel also “has a strong interest in
refraining from testifying” on the other Counts because he “will have to weigh his ability to recall
and describe events from six or seven years ago” and potentially rebut testimony from numerous
witnesses, including “individuals with whom Mr. Michel has a close relationship.” Jd. at 7.

But Mr. Michel’s knowledge and mental state is at issue not in just Count Four, but in each
count, all of which have some knowledge or mental state requirement. See 18 U.S.C. §§ 371
(conspiracy for Count One), 1001(a)(1)-(2) (concealment of material facts for Count Two), 1519
(making false entry in record for Counts Three and Four). That his mental state is also at issue in
the other three counts makes his argument that he has a compelling need to testify on only Count
Four less convincing. This is especially the case because, as discussed above, Count Four builds
on the facts underlying Counts One and Two.

The same is true of his reasons for not wanting to testify on the other three counts. To the
extent that Mr. Michel would potentially have to remember past events, it is not as if there is a ten-
year gap between the first three counts and Count Four—they are about events two to three years
apart, and the June 2015 declaration directly builds on and harkens back to the past events. For
instance, if Mr. Michel were to testify that he did not knowingly make a false statement in 2015,
he would necessarily be drawing on not only his recollections from 2015, but also what he
remembered in 2015 about the acts that occurred years before in 2012 and 2013, and would open
himself up to cross-examination on those facts that also underlie Counts One and Two. And
because the Government will likely have to present a substantial amount of evidence relating to
the other counts to show that the declaration at issue in Count Four was false, it is unclear that Mr.

Michel will have any different decision to make with respect to the witnesses called. On this

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record, his reasons are therefore not sufficiently convincing to demonstrate that his claim of
prejudice is genuine under Baker.

Regardless, the Court recognizes that a criminal defendant’s testimony in his own trial is
“unique and inherently significant,” United States v. Best, 235 F. Supp. 2d 923, 929 (N.D. Ind.
2002) (internal quotation marks omitted) (quoting Rodriguez v. United States, 286 F.3d 972, 985
(7th Cir. 2002)), and that Mr. Michel has presented some reasons for why he wants to testify on
Count Four and not on the other three counts. Even if those reasons were convincing, they must
be weighed against “economy and expedition in judicial administration.” Baker, 401 F.2d at 977.
There are important considerations of judicial economy here. As previously noted, to show that
the June 2015 declaration was false and to show Mr. Michel’s mental state, the Government will
likely present much of the same evidence as it did for Counts One and Two, especially because
both of those counts include the June 2015 declaration as an act in furtherance of the alleged
conspiracy and scheme. Indict. 969-72. Because severance would result in presenting a
significant amount of overlapping evidence in a second trial, judicial economy strongly weighs
against granting Mr. Michel’s motion for severance.

To demonstrate why severance is warranted, Mr. Michel likens his case to United States v.
Oaks, 285 F. Supp. 3d 876, 881-83 (D. Md. 2018), in which the district court granted a motion for
severance due to potential prejudice. There, the grand jury originally returned a nine-count
indictment charging the defendant with various bribery-related charges, including wire fraud and
Travel Act violations. Jd. at 877. Then, almost six months later and after the case had been
scheduled for trial, the grand jury returned a superseding indictment adding a tenth count charging
the defendant with obstruction of justice. Jd. Apparently, the defendant had been confronted with

evidence of his original crimes and agreed to cooperate with the FBI, but he subsequently warned

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another individual that he was under investigation. Jd. The government alleged that he confessed
to tipping off that other individual, but the confession was not recorded. Jd. at 882. The court
granted the defendant’s motion to sever the count in the superseding indictment because the
defendant had a compelling reason to testify on that count “to refute, explain, or qualify either the
alleged obstructive comments or his own alleged confession, neither of which was recorded on
tape.” Jd. In doing so, it distinguished a Fourth Circuit case on the basis of “[t]he disparity in
recorded conversations between the bribery counts and the obstruction count.” Jd.

Oaks is inapposite here. First, the two sets of counts at issue were not as intertwined as
those in this case. While the Oaks court did not address this issue at length, the second charge
came six months later and was based on conduct separate from that in the other counts. /d. at 877.
Nor would the Government have needed to show much of the same evidence to show the
obstruction of justice charge, unlike here where there is substantial evidentiary overlap. Second,
Oaks presented more compelling reasons than given here: there was no recording of the statements
or his alleged confession, and the court there emphasized this in finding that he “made a strong
and genuine showing” of potential prejudice. /d. at 882. Lastly, the superseding indictment came
after trial had already been scheduled for the first nine counts, which would present separate
concerns about judicial economy. The Court therefore does not find the decision in Oaks on point

or persuasive. !!

 

' Mr. Michel’s reliance on United States v. Best is similarly misplaced. The charges in
Best differed in substance and the reasons the defendant provided were more compelling as a result.
Best wanted to testify as to his alibi for a murder charge and remain silent on drug and firearm
possession charges. 235 F. Supp. 2d at 929. The court emphasized that the defendant faced the
death penalty if convicted on the murder charge and that the defendant’s acquittal on one charge
would “likely eliminate the need for a second trial,” considerations that weighed heavily in favor
of severance. Jd. at 929-30. The same considerations are not present here.

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Mr. Michel also relies on United States v. Sampson, 385 F.3d 183, 193-94 (2d. Cir. 2004),
in which the Second Circuit partially reversed the district court’s denial of severance. Sampson is
also distinguishable from this case. In Sampson, there was little overlap between the two sets of
charges, one of which involved acts in 1998 and the other unrelated acts in 2000. /d. at 185. The
Second Circuit emphasized that evidence of one set of counts would not have been admissible at
a trial for the other counts due to the distinct nature of the charges. See id. at 192-93. That is not
the case here. Even if the charges involve acts a couple of years apart, Count Four is intertwined
with the other counts, and a significant amount of the evidence underlying Counts One and Two
will also likely be admissible as to Count Four. Reliance on Sampson is therefore unpersuasive.

While the Court finds that Mr. Michel’s provided reasons are not convincing in light of the
highly connected nature of Count Four with the other counts, it recognizes that circumstances may
change and that severance may, at some point, be warranted. Accordingly, the Court denies Mr.
Michel’s Motion to Sever Count Four without prejudice.

C. Motion for Bill of Particulars

Lastly, Mr. Michel has moved for a bill of particulars “identifying all individuals or
corporations that the Government contends are unindicted co-conspirators, whether they were
known or unknown to the grand jury, so that he may adequately investigate the case, prepare his
defense, and avoid unfair surprise at trial.” Def.’s Mot. for Bill of Particulars at 4. A court may
“direct the government to file a bill of particulars” under Federal Rule of Criminal Procedure Rule
7, and ‘“[t]he government may amend a bill of particulars subject to such conditions as justice
requires.” Fed. R. Crim. P. 7(f). A bill of particulars helps to “ensure that the charges brought
against a defendant are stated with enough precision to allow the defendant to understand the

charges” and “to prepare a defense.” United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir.

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1987). Moreover, a bill of particulars clarifies an indictment rather than requiring the government
to hand over proof of its case, United States v. Savoy, 889 F. Supp. 2d 78, 114 (D.D.C. 2012), and
“is not a discovery tool or a device for allowing the defense to preview the government’s
evidence,” United States v. Brodie, 326 F. Supp. 2d 83, 91 (D.D.C. 2004). Consequently, if an
“indictment is sufficiently specific, or if the requested information is available in some other form,
then a bill of particulars is not required.” Butler, 822 F.2d at 1193.

The D.C. Circuit has not yet resolved when a defendant is entitled to a bill of particulars
listing the identities of unindicted co-conspirators, and other courts are divided in how they
approach this issue. See United States v. Concord Mgmt. & Consulting LLC, 385 F. Supp. 3d 69,
74-75 (D.D.C. 2019) (explaining same and collecting cases from other circuits and courts). But
courts in this circuit have granted such motions based on the circumstances of particular cases.
See, e.g., id. at 74-76 (granting motion for bill of particulars due to scope of case, international
nature, number of potential co-conspirators, amount of discovery produced, and restrictions on
discovery); United States v. Bazezew, 783 F. Supp. 2d 160, 168-69 (D.D.C. 2011) (granting
motion for bill of particulars listing, among other things, unindicted co-conspirators due to lack of
helpful detail in indictment as to co-conspirator’s alleged actions); United States v. Trie, 21 F.
Supp. 2d 7, 22 (D.D.C. 1998) (granting motion for bill of particulars listing unindicted co-
conspirators because some co-conspirators may have dealt only with co-conspirator other than
defendant, conspiracy lasted three and a half years, and there was large number of potential co-
conspirators). The trial court has broad discretion in this regard. See United States v. Mejia,
448 F.3d 436, 445 (D.C. Cir. 2006) (“The determination of whether a bill of particulars is
necessary ‘rests within the sound discretion of the trial court’ and will not be disturbed absent an

abuse of that discretion.” (quoting Butler, 822 F.2d at 1194)).

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Ultimately, in determining whether a bill of particulars is warranted, “‘[t]he Court must
strike a ‘prudent balance’ between the legitimate interests of the government and those of the
defendants.” United States v. Ramirez, 54 F. Supp. 2d 25, 29 (D.D.C. 1999) (quoting United States
v. MacFarlane, 759 F. Supp. 1163, 1169 (W.D. Pa. 1991)). Those legitimate interests include “the
defendant’s need to know evidentiary-type facts in order to adequately prepare a defense” and “the
government’s need to avoid prematurely disclosing evidentiary matters to the extent that it will be
unduly confined in presenting its evidence at trial.” United States v. Sanford Ltd., 841 F. Supp. 2d
309, 316 (D.D.C. 2012) (internal quotation marks omitted) (quoting United States v. Baker, No.
08-CR-00075, 2010 WL 936537, at *2 (M.D. Pa. Mar. 15, 2010)).

Balancing those interests here leads to the conclusion that a bill of particulars listing
persons or entities that the Government plans to identify as co-conspirators at trial is appropriate.
First, the scope of the conspiracy charged in the Indictment demonstrates the difficulty that Mr.
Michel will encounter in investigating the charges, building his defense, and avoiding unfair
surprise at trial without this information. Count One of the Indictment alleges a vast conduit
contribution scheme involving numerous persons and corporate entities. Indict. (23-70. The
conspiracy allegedly lasted from early 2012 to mid-2015, a three-year period in which numerous
persons could have become co-conspirators. Jd. Yet the detailed conspiracy allegations in the
Indictment as to the actions of Mr. Michel do not necessarily reveal which of numerous other
persons the Government will claim are co-conspirators at trial. The Indictment specifies that Mr.
Michel and Mr. Low “knowingly conspired with each other and others known and unknown to the
Grand Jury” to do these acts and also mentions some other persons such as corporate entities and
straw donors; however, while this sheds light on a small number of potential co-conspirators, it

does not allow Mr. Michel to easily determine the universe of possible co-conspirators. See, ¢.g.,

36
id. §§ 24 (“others known and unknown to the Grand Jury”), 37 (Mr. Michel’s financial advisor),
43-44 (straw donors), 46 (Associate A and Associate B).

This case therefore differs from other cases relied upon by the Government in which the
scope of the conspiracy and the persons involved were more easily identifiable. See, e.g., Sanford,
841 F. Supp. 2d at 316-18 (denying motion for bill of particulars in part because conspiracy
involved crew members of defendant’s vessel when it was out at sea because there were “a finite
number of people on board and a finite list of crew members”). Considering the long three-year
timeframe of the alleged conspiracy, the significant gaps between overt acts (such as between June
2013 and June 2015), the vast scope of the conspiracy, and the large number of possible co-
conspirators, Mr. Michel cannot easily discern exactly who the Government might contend are co-
conspirators at trial, rendering it difficult for him to investigate the charges or build a defense. See
Trie, 21 F. Supp. 2d at 22 (granting motion for bill of particulars in case involving false statements
to FEC due in part to length of conspiracy and large number of potential co-conspirators); Bazezew,
783 F. Supp. 2d at 168-69 (emphasizing gaps between overt acts of co-conspirators, and how
defendants would consequently “not be able to adequately prepare for trial or avoid surprise at
trial,” in granting motion for bill of particulars).

The Government also suggests that it has provided sufficient information regarding
potential co-conspirators in the discovery that it has produced. But “it is not sufficient for the
government to respond to a motion for a bill of particulars by pointing to the voluminous discovery
already provided or by relying on a governmental open file policy.” Bazezew, 783 F. Supp. 2d at
168. Regardless, while the Government has produced significant discovery, the amount and
contents of that discovery weigh against denying Mr. Michel’s motion. The Government has

produced over 35,000 documents, more than 26,000 of which are emails with at least 4,700 unique

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email addresses. Def.’s Reply in Supp. of Mot. for Bill of Particulars at 11. While this is not
necessarily a prohibitive amount of discovery on its own, it demonstrates the large number of
people who could potentially be considered unindicted co-conspirators by the government. See
Concord Mgmt., 385 F. Supp. 3d at 75 (noting that similar discovery concerns in case with
voluminous discovery weighed in favor of granting motion for bill of particulars).

Moreover, the Government has provided less information identifying likely co-
conspirators than in the cases upon which it relies. In United States v. Mosquera-Murillo, 153 F.
Supp. 3d 130, 150-51 (D.D.C. 2015), for example, the government had provided extensive
discovery of phone records, which was accompanied by a detailed index identifying a limited
universe of participants who could be co-conspirators, plus “judicial and investigative documents”
that identified some of the same co-conspirators. The court concluded that the government had
disclosed “the identities of alleged co-conspirators who participated in or were discussed on
intercepted communications,” and as a result denied the defendant’s motion. /d. at 151. Here,
however, the Government has provided more limited information to Mr. Michel: the names of the
alleged straw donors, grand jury transcripts and FBI-302s, and a list of three potential unindicted
co-conspirators. Gov’t Opp’n to Mot. for Bill of Particulars at 6-8. But the Government appears
to concede that this information is not exhaustive and that it may claim at trial that other persons
were co-conspirators at trial. See id. at 8 (describing list as “non-exhaustive”). That fact, plus the
sheer scope of the conspiracy, distinguishes this case from cases like Mosquera-Murillo.

What is more, Mr. Michel’s concerns are tied to concrete risks: Mr. Michel might be
potentially held liable for the actions of any co-conspirators under Pinkerton v. United States,
328 U.S. 640 (1946), and the identity of co-conspirators may impact what evidence can be

admitted at trial as statements of co-conspirators under Federal Rule of Evidence 801(d)(2)(E).

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Mr. Michel may even be potentially held liable for acts of co-conspirators who dealt only with Mr.
Low, his alleged co-conspirator. See Trie, 21 F. Supp. 2d at 22 (finding that one factor in favor of
granting motion was that “some of the alleged co-conspirators may have dealt only with Mr. Pan,”
another co-conspirator). In fact, because of such risks, courts in this district have frequently
granted motions for bills of particulars listing unindicted co-conspirators. See United States v.
Palfrey, 499 F. Supp. 2d 34, 52 (D.D.C. 2007) (‘As Defendant correctly points out, however,
disclosure of the names of alleged co-conspirators is not uncommon in conspiracy cases, and
particularly in cases alleging nonviolent offenses, brought in this jurisdiction.”).

Accordingly, for all the above reasons, the Court agrees with Mr. Michel that a bill of
particulars is warranted here. However, in recognition of the Government’s legitimate interests to
not produce its evidence or be unduly limited in its positions at trial, the Court shall require the
Government to produce a bill of particulars listing only the unindicted persons or entities who the
Government plans to identify as co-conspirators at trial, rather than a list of all possible unindicted
co-conspirators. See Concord Mgmt., 385 F. Supp. 3d at 76; United States v. Ramirez, 54 F. Supp.

2d 25, 30 (D.D.C. 1999).

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Ill. CONCLUSION

For the foregoing reasons, the Court shall DENY Mr. Michel’s Motion to Dismiss Counts
One and Two, DENY WITHOUT PREJUDICE Mr. Michel’s Motion to Sever Count Four, and
GRANT IN PART Mr. Michel’s Motion for a Bill of Particulars. In particular, the Court shall
require the Government to produce a bill of particulars listing the unindicted persons or entities
that the Government plans to identify as co-conspirators at trial. An appropriate Order
accompanies this Memorandum Opinion.
Dated: November 6, 2019

/s/

COLLEEN KOLLAR-KOTELLY
United States District Judge

 

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