United States v. Chen

1

United States of America, Plaintiff, v. Jing Chen (1), Ying Chen (2), Li Yang (3), and Xinhua Xiong (4), Defendants.

No. 21-cr-250 (JRT/TNL)

United States District Court, D. Minnesota

March 9, 2023

Laura Provinzino and Ana H. Voss, Assistant United States Attorneys, United States Attorney's Office, (for the Government);

Lauren Campoli, The Law Office of Lauren Campoli, PLLC, (for Defendant Jing Chen);

Jean M. Brandl, Assistant Federal Defender, Office of the Federal Defender, (for Defendant Ying Chen);

Glenn P. Bruder, Mitchell, Bruder & Johnson, (for Defendant Li Yang); and

Piper Kenney Wold, Law Office of Piper L. Kenney, (for Defendant Xinhua Xiong).

REPORT & RECOMMENDATION

Tony N. Leung, United States Magistrate Judge District of Minnesota

I. INTRODUCTION

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on pretrial motions.

Defendant Jing Chen has filed the following motions:

1. Motion to Suppress Evidence Due to Non-Disclosure, ECF No 85;

2. Motion to Dismiss Indictment for Failure to State an Offense, ECF No. 89;

3. Motion to Dismiss First and Third Count of Defendant's Charge Due to Statute of Limits Expiration, ECF No. 91; and

4. Motion to Suppress Evidence Pursuant to Unlawful Search and Seizure, ECF No. 92.

Defendant Ying Chen has filed the following motions:

1. Motion to Suppress Evidence Obtained as a Result of Unlawful Search and Seizure, ECF No. 188; and

2. Motion to Suppress Statements as a Result of Unlawful Interrogation, ECF No. 191.

Defendant Li Yang has filed the following motions:

1. Motion to Dismiss Count 1 of the Indictment, ECF No. 178;

2. Motion to Suppress Statements, Admissions and Answers, ECF No. 179; and

3. Motion to Suppress Evidence Obtained as a Result of a Search and Seizure, ECF No. 181.

Defendant Xinhua Xiong has filed the following motion:

1. Pretrial Motion for Dismissal of Indictment, ECF No. 56.

These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable John R. Tunheim, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. Local Rule 72.1.

A hearing on the motions was held on December 9, 2022. ECF No 220. Laura Provinzino appeared on behalf of the Government. Lauren Campoli appeared on behalf of Defendant Jing Chen. Jean M. Brandl appeared on behalf of Defendant Ying Chen. Glenn P. Bruder appeared on behalf of Defendant Li Yang. Daniel S. Le appeared on behalf of Defendant Xinhua Xiong.^[1]

The Court heard testimony from one witness, Defendant Ying Chen. The Government offered and the Court received:

1. Government Exhibit 1, the search warrant for safe deposit box number 00041 at Wells Fargo Bank, located at 2414 Mercantile Drive in Eau Claire, Wisconsin, No. 18-mj-68 (SLC);

2. Government Exhibit 2, the return for the search warrant for safe deposit box number 00041 at Wells Fargo Bank;

3. Government Exhibit 3, the search warrant for safe deposit box number 2968 at U.S. Bank, located at 131 South Barstow Street in Eau Claire, Wisconsin, No. 18-mj-68 (SLC);

4. Government Exhibit 4, the return for the search warrant for safe deposit box number 2968 at U.S. Bank;

5. Government Exhibit 12, the search warrant and return for Defendant Jing Chen's residence, located on 31st Avenue North in Plymouth, Minnesota, No. 18-mj-396 (FLN);

6. Government Exhibit 13, the search warrant and return for Defendant Ying Chen's residence, located on Rockford Road in Plymouth Minnesota, No. 18-mj-402 (FLN);

7. Government Exhibit 14, the search warrant and return for Defendant Li Yang's residence, located on Stillwater Avenue East in Maplewood, Minnesota, No. 18-mj-400 (FLN); 8. Government Exhibit 15a, the first audio-recorded statement of Defendant Li Yang on May 10, 2018;

9. Government Exhibit 15b, the first transcribed statement of Defendant Li Yang on May 10, 2018;

10. Government Exhibit 16a, the second audio-recorded statement of Defendant Li Yang on May 10, 2018;

11. Government Exhibit 16b, the second transcribed statement of Defendant Li Yang on May 10, 2018;

12. Government Exhibit 17a, the audio-recorded statement of Defendant Ying Chen on May 10, 2018; and

13. Government Exhibit 17b, the transcribed statement of Defendant Ying Chen on May 10, 2018.

Post-hearing briefing is now complete, and these motions are ripe for a determination by the Court.

II. ANALYSIS

A. Motion to Suppress Evidence Due to Non-Disclosure

On February 4, 2022, Defendant Jing Chen filed a Motion to Suppress Evidence Due to Non-Disclosure, ECF No. 85. She moves “for an Order suppressing any undisclosed evidence that has yet to be made available to defense counsel” in violation of: (1) Federal Rule of Criminal Procedure 16(d)(2); (2) the Court's first discovery Order on December 22, 2021, ECF No. 42; and (3) and the Court's second discovery Order on January 11, 2022, ECF No. 69. ECF No. 85 at 1. According to Defendant Jing Chen, the Government failed to disclose 2 terabytes of data as of the February 4, 2022 motions filing deadline. Id. She argues that this undisclosed evidence should be suppressed in its entirety because it “violates the Court's unambiguous discovery Orders, prejudices [her] right to effective assistance of counsel, due process, speedy trial, and right to confrontation, and given a three year and seven-month history of the case, [the non-disclosure] is without good cause.” Id. at 1-2. She states that the pattern of non-disclosure has forced continuances and speedy trial waivers and warrants the sanction of suppression. Id. at 2; see also Def.'s Post Hearing Mem. in Supp. at 4, ECF No. 237.

The Government opposes the motion. It contends that it provided multiple rounds of discovery to Defendants, accommodated evidence reviews, and disclosed terabytes of data of the physical evidence in law enforcement custody. Gov't's Consolidated Resp. at 10, ECF No. 198; Gov't's Post Hearing Resp. at 19, ECF No. 243. The Government notes that it made much of the evidence available for inspection even prior to indictment, and has since produced additional discovery in December 2021, and January, February, August, and October 2022. Id. Further, the Government contends that all discovery has been provided to Defendant Jing Chen's counsel on a hard drive for counsel to review at her leisure, in addition to the grand jury transcripts and additional documents specific to the overt acts alleged in the Indictment. Id.

The Court is unpersuaded by Defendant Jing Chen's argument that all evidence allegedly produced after the deadline to do so should be suppressed under Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 requires the Government to allow a defendant to inspect and copy any item in its control that is “material to preparing the defense,” that the Government intends to use in its case-in-chief at trial, or that “was obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). If the Government fails to comply with that requirement, the Court has broad authority to sanction the Government, including prohibiting the introduction of the undisclosed evidence. Id. at 16(d)(2). In considering appropriate sanctions, the Court considers the reason for the delayed production of the evidence, the prejudice to the defendant, and whether a lesser sanction would ensure the Government's future compliance. United States v. Sims, 776 F.3d 583, 585-86 (8th Cir. 2015).

While the Court does not condone delays in discovery production, “suppression is too harsh a penalty here.” See United States v. Deleon-Bayardo, No. 07-cr-99 (JRT/SRN), 2008 WL 141761, at *24 (D. Minn. Jan. 14, 2008). In designating this case as complex in March 2022, the Court noted that the Government was working to produce “massive” amounts of discovery. See ECF No. 104 at 1, 4. At the time, the Government was “in the process of transferring two terabytes of data onto hard drives provided by defense counsel, including the native content of returns from numerous email search warrants and photocopies of the physical items and forensic evaluations of the digital devices seized pursuant to more than 40 search warrants.” Id. at 2 (citing ECF No. 101 at 2). In light of the complexity of the case and the volume of discovery, it is not unreasonable that the Government needed additional time to produce some of the materials, and the Court finds that the prosecution did not act in bad faith in making certain untimely disclosures. In fact, as the Government notes, the Government provided some discovery pre-indictment. Gov't's Post Hearing Resp. at 19. The Government also accommodated two evidence reviews of the physical evidence in law enforcement custody for Defendant Jing Chen, on January 19 and 25, 2022, and later provided terabytes of data of the physical evidence when flash drives were provided by defense counsel. Id.; see also ECF No. 216 at 6.

Moreover Defendant Jing Chen has not demonstrated any prejudice to her defense. To the extent the evidence that Defendant Jing Chen sought exists and is not immune from discovery, the Government has produced or will produce it. She received the discovery well in advance of the motions hearing. Trial is still months away, and she has ample time to review the evidence the Government intends to use. See Deleon-Bayardo, 2008 WL 141761, at *24 (citing United States v. White Horse, 316 F.3d 769, 774 (8th Cir. 2003)). While she complains of delays in her case, Defendant Jing Chen has not demonstrated that the late disclosure was material to her defense, in other words, that “the disposition of the suppression issues would have been different” had the evidence been disclosed on time. See id. (citing Patterson v. Black, 791 F.2d 107,...