Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 1 of 19. -v.- : S5 15 Cr. 706 (VSB) Defendants. :

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1 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : -v.- : S5 15 Cr. 706 (VSB) NG LAP SENG, : a/k/a David Ng, a/k/a Wu Liseng, : a/k/a Boss Wu, and JEFF C. YIN, : a/k/a Jeff Chuan, a/k/a Yin Chuan, : Defendants. : x MEMORANDUM OF LAW OF THE UNITED STATES OF AMERICA IN OPPOSITION TO DEFENDANT NG LAP SENG S MOTION TO STRIKE THE SECOND SUPERSEDING INDICTMENT PREET BHARARA United States Attorney Southern District of New York Attorney for the United States of America Daniel C. Richenthal Janis M. Echenberg Douglas S. Zolkind Assistant United States Attorneys ANDREW WEISSMANN Chief, Fraud Section Criminal Division David A. Last Trial Attorney - Of Counsel -

2 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 2 of 19 TABLE OF CONTENTS PRELIMINARY STATEMENT 2 BACKGROUND 3 A. Pertinent Chronology... 3 B. The Indictment, the Bill of Particulars Motion, and the Superseding Indictment... 4 ARGUMENT 6 I. THE DEFENDANT S MOTION TO STRIKE THE SUPERSEDING INDICTMENT IS MERITLESS... 6 A. Applicable Law... 6 B. Discussion The Superseding Indictment Did Not Radically Reconfigure The Charges The Superseding Indictment Was Not Filed On The Eve Of Trial The Defendant Has Made No Showing Of Prosecutorial Misconduct II. THE DEFENDANT S MOTION TO STRIKE THE SUPERSEDING INDICTMENT S REFERENCES TO BOSS WU IS MERITLESS CONCLUSION 17 i

3 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 3 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : -v.- : S5 15 Cr. 706 (VSB) NG LAP SENG, : a/k/a David Ng, a/k/a Wu Liseng, : a/k/a Boss Wu, and JEFF C. YIN, : a/k/a Jeff Chuan, a/k/a Yin Chuan, : Defendants. : x MEMORANDUM OF LAW OF THE UNITED STATES OF AMERICA IN OPPOSITION TO DEFENDANT NG LAP SENG S MOTION TO STRIKE THE SECOND SUPERSEDING INDICTMENT The Government respectfully submits this memorandum of law in opposition to the motion of Ng Lap Seng, a/k/a David Ng, a/k/a Wu Liseng, a/k/a Boss Wu (the defendant ) to strike Superseding Indictment S5 15 Cr. 706 (VSB) (the Superseding Indictment ) or, in the alternative, to strike all references to Boss Wu in that indictment. 1 1 In the same motion, the defendant moved to sever his trial from that of his co-defendant, Jeff C. Yin. The Government filed an opposition to the severance part of the motion on December 7, 2016, and the Court denied the defendant s motion for severance on the record at a conference held on December 8, 2016.

4 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 4 of 19 PRELIMINARY STATEMENT In a memorandum of law filed on December 2, 2016 ( Def. Mem. ), the defendant requests extraordinary and unprecedented relief: an order striking the entire Superseding Indictment, excusing the defendant from facing charges under the Foreign Corrupt Practices Act ( FCPA ) and excising important allegations from the other charges against him. The defendant claims this is warranted because the Government s attempt[] to radically reconfigure the charges in this case is unjustifiable and prejudicial in light of the [G]overnment s delay in returning the Superseding Indictment. (Def. Mem. 1.) This claim fails under both the facts and the law. The Superseding Indictment did not radically reconfigure this case. Rather, it clarified and expanded upon certain facts and legal theories based on the Government s ongoing investigation and review of evidence, and added the type of detail that the defendant demanded in his motion for a bill of particulars. It also added FCPA charges based on the same facts underlying the pre-existing bribery and money laundering charges, supported by evidence that had already been produced in discovery. The defendant is not entitled to have these charges dismissed because they were not brought sooner. Nor is there a shred of support for the defendant s accusation that the Government delayed obtaining the Superseding Indictment in an intentional and calculated effort to obtain a tactical advantage. (Def. Mem. 10.) As the Court is aware, the Government routinely seeks superseding indictments in the months prior to trial. Here, the Superseding Indictment was returned on November 22, 2016 two months before the January 23, 2017 trial date (which had already been canceled by the time the Superseding Indictment was returned), and nearly six months before the May 15, 2017 trial date that has now been scheduled. The defendant has suffered no conceivable prejudice. But even if 2

5 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 5 of 19 the timing of the Superseding Indictment caused some theoretical prejudice, under settled law, the remedy would not be a dismissal of the charges. The defendant does not cite a single case in which a court granted such relief under similar circumstances, the Government is unaware of any court doing so, and such a drastic sanction is plainly unwarranted here. Finally, the defendant s request to strike the Boss Wu alias from the Superseding Indictment is meritless. At trial, the Government expects to introduce witness testimony and documents in which the defendant is referred to as Boss Wu and Boss. Because this alias is based directly on the anticipated evidence at trial, there is no basis to strike it from the Superseding Indictment. BACKGROUND A. Pertinent Chronology The original indictment in this case was filed on October 20, The first superseding indictment, S4 15 Cr. 706 (VSB) (the Indictment ), was filed on June 30, On July 11, 2016, the Court scheduled trial to commence on January 23, On September 19, 2016, the defendant moved to dismiss the Indictment or, in the alternative, for a bill of particulars. 2 (Docket Entry No. 274.) On November 17, 2016, the Court canceled the January 23, 2017 trial date due to Yin s counsel s conflicting trial schedule. On November 22, 2016, the Superseding Indictment was filed. On December 2, 2016, the defendant moved for severance and to strike the Superseding Indictment. (Docket Entry No. 332.) On December 8, 2016, the Court denied the motion for severance and ordered that the trial will commence in May The parties 2 The portion of the motion that seeks a bill of particulars is referred to herein as the Bill of Particulars Motion or BOP Mot. 3

6 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 6 of 19 thereafter conferred and proposed to the Court a start date of May 15, 2017, which the Court soordered. (Docket Entry Nos. 345, 347.) B. The Indictment, the Bill of Particulars Motion, and the Superseding Indictment The Indictment charged the defendant and Yin, in four counts, with engag[ing] in an international bribery and money laundering scheme, in which, among other things, [the defendant] paid hundreds of thousands of dollars to the [Antiguan] Ambassador in exchange for official action to benefit [the defendant]. (Indictment 4.) Specifically, the Indictment charged the defendant and Yin with agreeing to pay and paying the [Antiguan] Ambassador and others, in exchange for, to influence, and to reward the taking of official action as opportunities arose to benefit [the defendant], including advancing [the defendant s] interest in developing the Macau Conference Center, in violation of 18 U.S.C. 371, 666(a)(2), and 2, and with conspiring to commit money laundering, and committing money laundering, in violation of 18 U.S.C. 1956(h), 1956(a)(2)(A), and 2. (Id. 11, 14, 17, 19 (emphasis added).) In the Bill of Particulars Motion, the defendant raised various arguments, including: The Indictment purportedly fails to specify the substance and extent of the official acts alleged by the Government. (BOP Mot. 40 (capitalization omitted).) The Indictment purportedly fails to identify Mr. Ng s alleged co-conspirators, including the identity of the non-governmental organization ( NGO ) used to convey bribe payments and who from such NGO conspired with the defendant. (Id. 41, 43 (capitalization omitted).) The Indictment purportedly fails to disclose what payments the [G]overnment contends were part of the alleged conspiracy, and to whom [such payments were] made. (Id. 44.) Although the defendant was not (and still is not) entitled to a bill of particulars (for the reasons set forth in the Government s opposition to the Bill of Particulars Motion (Docket Entry No. 327)), the Government nonetheless sought to amend the Indictment, in part, to respond to the 4

7 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 7 of 19 defendant s demand for additional detail. For instance, with respect to the defendant s demand for further specificity regarding official acts, the Superseding Indictment alleges that the defendant sought formal [United Nations ( UN )] support for the Macau Conference Center, including establishing the Macau Conference Center as the permanent site of the annual [UN Office for South-South Cooperation ( UNOSSC )] Expo and as a location for other meetings, forums, and events associated with the UN. (Superseding Indictment 11; see also id. 13.) With respect to the defendant s demand for further specificity regarding his co-conspirators and the NGO at issue, the Superseding Indictment alleges that the defendant helped to found NGO- 1 in or about late 2009, in New York, New York; that the defendant has served as the principal source of funding for NGO-1; and that he appointed the Dominican Ambassador Honorary President of NGO-1. (Id. 7.) And with respect to the defendant s demand for further specificity regarding the individuals whom he allegedly bribed, the Superseding Indictment alleges that the defendant and Yin paid bribes and illegal gratuities to both the Antiguan Ambassador and the Dominican Ambassador. (See, e.g., id. 9, 10, 12, 13.) In addition to adding significant detail, the Superseding Indictment made certain other changes. It added a second object to the conspiracy charged in Count One, which now alleges that the defendant and Yin conspired both to violate Section 666 and the FCPA; added two substantive counts of violating the FCPA under 15 U.S.C. 78dd-2 and 18 U.S.C. 2 (Count Three) and 15 U.S.C. 78dd-3 and 18 U.S.C. 2 (Count Four); and added two tax-related charges against Yin, under 18 U.S.C. 371 (Count Seven) and 26 U.S.C. 7212(a) and 18 U.S.C. 2 (Count Eight). Both defendants remain charged with a substantive violation of Section 666 (Count Two) and with conspiring to commit money laundering (Count Five) and money laundering (Count Six). The money laundering charges are now predicated not only on 5

8 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 8 of 19 the violation of Section 666 and violations of foreign bribery law, but also on the FCPA violations. Finally, the Superseding Indictment deleted one alias for the defendant, David Ng Lap Seng, and added another alias, Boss Wu. ARGUMENT I. THE DEFENDANT S MOTION TO STRIKE THE SUPERSEDING INDICTMENT IS MERITLESS A. Applicable Law There is no authority for the proposition that new substantive charges should be stricken when they are added less than a month before trial. United States v. Guang Ju Lin, 505 F. App x 10, 12 (2d Cir. 2012) (upholding denial of motion to strike superseding indictment returned 27 days before trial). In the absence of a serious claim... of bad faith or dilatory motive on the part of the Government, the Second Circuit has never held that an indictment should be dismissed in such a situation. Id. (emphasis added); see also United States v. Skinner, 946 F.2d 176, 178 (2d Cir. 1991) (defendant cites no legal authority for the proposition that the district court should have dismissed the super[s]eding indictment which was returned 19 days before trial). Indeed, as Judge Kaplan explained in denying a motion to strike a superseding indictment returned only 26 days before trial, the [G]overnment has the right to determine what charges to seek from the grand jury and when to seek them. Such decisions may be influenced by a host of factors, not least of them the prosecutor s estimate of whether the evidence at hand at any given time warrants presentation to the grand jury and is likely to result in an indictment and a conviction. United States v. Montoya-Echeverria, 896 F. Supp. 148, 150 (S.D.N.Y. 1995); see also United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009) ( [T]he decision as to whether to 6

9 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 9 of 19 prosecute generally rests within the broad discretion of the prosecutor, and a prosecutor s pretrial charging decision is presumed legitimate. (internal quotation marks omitted)). Dismissal of an indictment is justified only in extreme cases involving serious prosecutorial misconduct, such as when a prosecutor knowingly withholds from the grand jury substantial evidence negating guilt... when the grand jury is misled or misinformed[] by the government... or when the history of prosecutorial misconduct is so systematic and pervasive as to raise a substantial doubt and serious question about the fundamental fairness of the process. Montoya-Echeverria, 896 F. Supp. at (internal quotation marks and citations omitted). Rather, if a defendant is prejudiced by the filing of a superseding indictment in close proximity to trial, the settled remedy is to grant a continuance or, depending on the circumstances, to sever the newly added counts for a separate trial. See, e.g., United States v. Rojas-Contreras, 474 U.S. 231, 236 (1985) ( The authority of the District Court to grant an ends of justice continuance should take care of any case in which the Government seeks a superseding indictment which operates to prejudice a defendant. ); United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001) ( Because the court offered defendants additional time to prepare, which they declined, they cannot establish prejudice from the timing of the super[s]eding indictment filed about three weeks before trial. ); Skinner, 946 F.2d at

10 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 10 of 19 B. Discussion There is no merit to the defendant s claim that the Superseding Indictment should be stricken. First, the Superseding Indictment did not radically reconfigure the charges in this case (Def. Mem. 1). Second, the Superseding Indictment was not returned on the eleventh[] hour before trial (id. 8); rather, it was returned two months before the (already canceled) trial date. And third, the defendant does not come close to satisfying the standard for dismissal based on prosecutorial misconduct. 1. The Superseding Indictment Did Not Radically Reconfigure The Charges The defendant s motion is premised on the contention that the Superseding Indictment completely reformulate[s] the charges under [Section 666]. (Def. Mem. 4; see also id. ( These new charges mark a radical shift in the government s theory of the case. ).) This is not correct. (But even if it were correct, it would not provide a basis for dismissal, as discussed below.) According to the defendant, the charges have been radically reconfigure[d] (id. 1) because the defendant was previously under the impression that the government would seek to prove that [the Dominican Ambassador] conspired with Mr. Ng to bribe [the Antiguan Ambassador], but the Superseding Indictment treats [the Dominican Ambassador] not only as a co-conspirator but also as a public official who allegedly received bribes from Mr. Ng. (Id. 4, 10.) As discussed above, the Indictment expressly alleged that the defendant bribed unidentified others beyond the Antiguan Ambassador. (Indictment 11, 14, 17, 19.) In the Bill of Particulars Motion, the defendant demanded further details about, inter alia, what payments the [G]overnment contends were part of the alleged conspiracy, and to whom [such payments were] made. (BOP Mot. 44.) The Superseding Indictment answers this question: the defendant is charged with bribing both the Antiguan Ambassador and the Dominican 8

11 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 11 of 19 Ambassador through a variety of specified means. The Superseding Indictment also adds various other details, in part, to respond to the defendant s assertion that the Indictment was maddeningly vague. (Id. 43.) Moreover, since October 2015, when the Government filed Complaint 15 Mag (the Complaint or Compl. ), the defendant has been on notice that the Dominican Ambassador was the Deputy Permanent Representative to the UN for the Dominican Republic (Compl. 16), and that the Government viewed the defendant s payments to the Dominican Ambassador as part of the unlawful bribery and money laundering scheme in this case (see id. 17, 39(b) & n.5). The Complaint also made clear that the Dominican Ambassador played a key role in submitting, and subsequently revising, a document to the UN Secretary-General in support of the Macau Conference Center (see id ) a document which figured prominently in the Indictment (see Indictment 6, 12(b), 12(d)). Furthermore, since early in the case, the defendant has been in possession of numerous financial records, s, and other documents produced in discovery, which make clear that the Dominican Ambassador took various actions on behalf of the defendant in exchange for payments. Thus, the key facts underlying the new Section 666 theory have been clear to the defendant since the outset of this case. Indeed, this theory was encompassed in the prior Indictment. But even assuming arguendo that it was not, the Section 666 theory in the Superseding Indictment is, at most, a modest evolution of the theory in the Indictment, based on the Government s ongoing investigation, including its review of s and other documents and its discussions with witnesses. The key players remain the same (the defendant as the bribepayer and Yin as his primary co-conspirator and deputy, the Antiguan Ambassador as the recipient of bribes, and the Dominican Ambassador as a party who was paid by the defendant 9

12 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 12 of 19 and served his interests); the defendant s alleged goals remain the same (namely, the obtaining of formal UN support for the Macau Conference Center); and the means and methods allegedly used by the defendant remain the same (including the defendant s use of NGO-1 to funnel bribe payments). Nor does the inclusion of FCPA charges materially alter the factual underpinning of the case. The FCPA charges are simply new legal theories applied to the same set of facts. 2. The Superseding Indictment Was Not Filed On The Eve Of Trial The defendant also accuses the Government of strategically delaying the filing of the Superseding Indictment until the eleventh[] hour before trial. (Def. Mem. 8.) This claim is factually and legally baseless. It ignores the fact that by the time the Superseding Indictment was returned, the January 23, 2017 trial date had already been canceled by the Court. (Transcript of November 17, 2016 Conference ) And even assuming, contrary to fact, that January 23, 2017 were the applicable trial date, there was nothing remotely unusual about the Superseding Indictment being filed two months beforehand, on November 22, Indeed, the Government routinely supersedes in the months preceding trial and where the proximity to trial may prejudice the defendant, courts simply grant a continuance (or offer to do so). See, e.g., United States v. Stringer, 730 F.3d 120, 121 (2d Cir. 2013) (superseding indictment filed 25 days before trial; upholding denial of continuance); United States v. Carneglia, 403 F. App x 581, 587 (2d Cir. 2010) (superseding indictment filed one month before trial; holding district court properly granted a two-week continuance); United States v. McGee, 564 F.3d 136, 138 (2d Cir. 2009) (superseding indictment filed four days before trial; upholding denial of continuance); United States v. Gloss, No. 08 Cr. 823, 2009 WL , at *1 (S.D.N.Y. Jan. 21, 2009) 10

13 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 13 of 19 (superseding indictment filed two weeks before trial; continuance granted). 3 Thus, in obtaining the Superseding Indictment two months before January 23, 2017 a trial date which had already been canceled in any event the Government acted in accord with the normal and accepted practice in this circuit. 3. The Defendant Has Made No Showing Of Prosecutorial Misconduct As discussed above, dismissal of an indictment is justified only in extreme cases involving serious prosecutorial misconduct, such as when a prosecutor knowingly withholds from the grand jury substantial evidence negating guilt... when the grand jury is misled or misinformed[] by the [G]overnment... or when the history of prosecutorial misconduct is so systematic and pervasive as to raise a substantial doubt and serious question about the fundamental fairness of the process. Montoya-Echeverria, 896 F. Supp. at (internal quotation marks and citations omitted); see Guang Ju Lin, 505 F. App x at 12 (In the absence of a serious claim... of bad faith or dilatory motive on the part of the Government, the Second Circuit has never held that an indictment should be dismissed merely because it was returned shortly before trial. (emphasis added)). The defendant does not come close to meeting this stringent standard for dismissal. He merely asserts that [t]he [G]overnment s conduct is... egregious because it has known about 3 See also, e.g., United States v. Jason Galanis, No. 15 Cr. 643 (superseding indictment filed one month before trial); United States v. Lasher, No. 12 Cr. 868 (superseding indictment filed one month before trial); United States v. Huff, et al., No. 12 Cr. 750 (superseding indictment filed approximately three months before scheduled trial, while pretrial motions were pending); United States v. Rana Khandakar et al., No. 12 Cr. 584 (superseding indictment filed 30 days before trial; trial adjourned three months as a result); United States v. Cibik, et al., No. 11 Cr. 424 (superseding indictment filed one month before trial); United States v. Patrick Nayyar, No. 09 Cr (superseding indictment filed one month before trial; defense adjournment request denied because additional charge relied on same evidence as existing charges). 11

14 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 14 of 19 the facts underlying its reformulated 666 and new FCPA charges for over a year, and there is nothing in the... Superseding Indictment that the government could not have alleged in July, The [G]overnment s decision to hold back these charges until after Mr. Ng filed his motion to dismiss had to have been intentional and calculated to obtain a tactical advantage. (Def. Mem. 10.) This sort of conclusory speculation provides no basis for dismissing an indictment. As an initial matter, the defendant ignores the fact that in his Bill of Particulars Motion, he expressly demanded much of the additional detail that the Government included in the Superseding Indictment. (See supra p. 4.) Moreover, although many of the facts set forth in the Superseding Indictment were known to both parties since early in the case, the Government s understanding of the facts has grown as it has reviewed documents and met with witnesses. 4 Furthermore, the decision of whether to bring FCPA charges and tax charges, which were brought in the Superseding Indictment against Yin involves an array of legal, factual, and policy considerations, requiring consultation with other components of the Department of Justice, as well as other federal agencies. Ultimately, the [G]overnment has the right to determine what charges to seek from the grand jury and when to seek them. Montoya-Echeverria, 896 F. Supp. at 150 (emphasis added). Where, as here, the defendant cannot demonstrate any prosecutorial misconduct, courts consistently refuse to dismiss an indictment merely because it was returned shortly before trial. See, e.g., United States v. Grossman, 843 F.2d 78, 84 (2d Cir. 1988) (upholding denial of motion to strike superseding indictment filed two days before trial); United States v. Hanna, 198 F. 4 The defendant asserts that that the Government has readily concede[d] that the Superseding Indictment is not based on any new evidence. (Def. Mem. 4 (citing Transcript of November 23, 2016 Conference ( 11/23/16 Tr. ) 4).) In fact, the Government stated only that there is no[] additional discovery that needs to be made with respect to those charges. (11/23/16 Tr. 4.) 12

15 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 15 of 19 Supp. 2d 236, 245 (E.D.N.Y. 2002) (denying motion to strike superseding indictment that add[ed] twenty-three mail fraud counts, an allegation of perjury as an additional overt act in the conspiracy and new allegations of kickbacks just two months before the... scheduled trial date ); United States v. Gardell, No. 00 Cr. 632, 2001 WL , at *2 (S.D.N.Y. Sept. 25, 2001) (denying defendant s claim that he should [not] be required to stand trial on the fourth super[s]eder given the proximity of its filing to the scheduled trial [35 days beforehand] ); Montoya-Echeverria, 896 F. Supp. at 150 (denying motion to strike superseding indictment returned 26 days before trial). Notably, the defendant does not cite a single case where a court has dismissed an indictment under circumstances remotely similar to those here. He cites United States v. Gigante, 982 F. Supp. 140, 155 (E.D.N.Y. 1997), aff d, 166 F.3d 75 (2d Cir. 1999) (Def. Mem. 9), but the issue there involved the impact of a superseding indictment on a statute of limitations. Gigante has no relevance to this case. The defendant next cites United States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003), for the proposition that [p]re-indictment delay can constitute a violation of the Due Process Clause of the Fifth Amendment (Def. Mem. 9), but there, the court explicitly rejected such claim, finding that the defendant had failed to show that the Government engaged in intentional delay. Also, Alameh did not involve a superseding indictment; it involved a claim that the Government waited too long before bringing a prosecution in the first place. Id. Alameh too has no relevance to this case. Finally, the defendant cites a 1975 case which commented on district courts inherent power, derived from the common law, to dismiss a case for want of prosecution. United States v. Furey, 514 F.2d 1098, 1103 (2d Cir. 1975) (Def. Mem. 9.) But Furey lends no support to the proposition that a court should exercise its discretion to dismiss an indictment under these circumstances. 13

16 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 16 of 19 In sum, even if the Superseding Indictment had radically reconfigured the charges (which it did not) and had been returned on the eve of trial (which it was not), there would be no basis for striking it. Rather, the appropriate remedy for any alleged prejudice would be a continuance of the trial date. Here, the trial date has already been adjourned to May 15, 2017 more than five months after the return of the Superseding Indictment so the defendant indisputably has more than enough time to prepare his defense. II. THE DEFENDANT S MOTION TO STRIKE THE SUPERSEDING INDICTMENT S REFERENCES TO BOSS WU IS MERITLESS The defendant s request, in the alternative, to strike all references in the Superseding Indictment to the Boss Wu alias fails under settled precedent. This alias is directly relevant to the Government s expected proof at trial and is neither inflammatory nor prejudicial. Furthermore, to the extent that the defendant seeks to limit the Government s evidence at trial (as opposed to striking language from the Superseding Indictment), he should move in limine at the appropriate time. Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial.... [I]f evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken. United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (upholding denial of motion to strike Colombo Organized Crime Family from indictment (internal quotation marks and citation omitted)); see also United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996). Thus, aliases and nicknames should not be stricken from an Indictment when evidence regarding those aliases or nicknames will be presented to the jury at trial. United States v. Machado, 986 F. Supp. 2d 288, 295 (S.D.N.Y. 2013) (internal quotation marks omitted); see United States v. Persico, 621 F. Supp. 842,

17 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 17 of 19 (S.D.N.Y. 1985) (denying motion to strike aliases Frankie the Beast and The Snake, noting that, [e]ven if prejudicial,... aliases and nicknames are proper in an indictment where they will be part of the government s proof at trial ). The Government expects to offer evidence at trial that the defendant was referred to as Boss Wu or Boss by others involved in the conduct at issue, including his co-defendant, Yin. This evidence is expected to come, in part, from documents that use the phrase 吴老板 which the parties agree translates to Boss Wu in Mandarin (see Docket Entry No. 349) as well as from witnesses who are expected to testify that they and others referred to the defendant as Boss Wu or Boss. Accordingly, the allegations in the Superseding Indictment regarding this alias are directly tied to the expected evidence at trial. Because the alias is expected to be part of the [G]overnment s proof at trial, it should not be stricken from the Superseding Indictment [e]ven if prejudicial. Persico, 621 F. Supp. at 861 (emphasis added). In any event, the defendant s contention that the Boss Wu alias is unfairly prejudicial is baseless. The Government s understanding, based on its discussions with a Federal Bureau of Investigation linguist and potential witnesses, is that 老板 i.e., boss carries essentially the same meaning in Chinese as it does in English. The defendant agrees. (Docket Entry No. 349.) And even assuming arguendo that the term boss may carry a potentially prejudicial connotation in an organized crime case, as the defendant himself points out, this is not such a case. (Def. Mem. 13.) Indeed, from the context of the documents in which 吴老板 appears, it is clear that the term is being used out of deference to or respect for the defendant s authority not to suggest that the defendant is involved in organized crime. It is far-fetched and speculative to assert that jurors would assume an organized-crime connection merely because certain of the defendant s subordinates and/or co-conspirators referred to him as boss. And to the extent that 15

18 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 18 of 19 jurors might otherwise make such an assumption, the proper remedy lies in voir dire and jury instructions, not in striking an alias from an indictment. Ultimately, to the extent that the defendant is seeking to limit the Government s ability to introduce certain evidence at trial, he should move in limine at the appropriate time. Based on the fact that the Boss Wu alias comes directly from the expected documentary and testimonial evidence at trial and especially since this is not an organized crime case in which such an alias might carry a prejudicial connotation the motion to strike should be denied. See, e.g., United States v. Kolesova, 208 F.3d 204 (2d Cir. 2000) (upholding denial of motion to strike aliases because the use of each name was explained[,] and properly admitted evidence contained each of the names ); United States v. Mason, No. 06 Cr. 80, 2007 WL , at *5 (S.D.N.Y. Feb. 16, 2007) (denying motion to strike aliases based on government s proffer that it will introduce witness testimony that the individuals charged here were known by co-conspirators and others by the aliases found in the Indictment ); United States v. Greenfield, No. 01 Cr. 401, 2001 WL , at *3 (S.D.N.Y. Aug. 28, 2001) (denying motion to strike Hebrew and Yiddish aliases that the defendant claimed would arouse anti-semitic prejudice, because Government proffered that at trial the Government will offer evidence in which the defendants are referred to by these nicknames ). 16

19 Case 1:15-cr VSB Document 359 Filed 12/30/16 Page 19 of 19 CONCLUSION For the foregoing reasons, the defendant s motion should be denied. Dated: New York, New York December 30, 2016 Respectfully submitted, PREET BHARARA United States Attorney By: s/ Douglas S. Zolkind Daniel C. Richenthal Janis M. Echenberg Douglas S. Zolkind Assistant United States Attorneys (212) /2597/