United States v. Ji

662 F.Supp.3d 424

UNITED STATES of America, v. Hu JI, et al., Defendants.

21-CR-265 (S-1) (PKC) (RER)

United States District Court, E.D. New York

Signed March 21, 2023

Craig R. Heeren, Ellen Hanley Sise, Matthew Haggans, Government Attorneys, United States Attorney's Office, Brooklyn, NY, Meredith Ashley Arfa, Government Attorney, Irisa Chen, DOJ-USAO, Brooklyn, NY, Scott Andrew Claffee, Government Attorney, DOJ-Nsd, National Security Division, Counterintelligence & Export Control Section, Washington, DC, for United States of America.

Lawrence S. Lustberg, Genna Autumn Conti, Gibbons, P.C., Newark, NJ, Brian Joseph Neary, New York, NY, for Defendant Michael McMahon.

Kevin K. Tung, Kevin Kerveng Tung P.C., Flushing, NY, for Defendant Yong Zhu.

Paul A. Goldberger, Goldberger & Dubin PC, New York, NY, Renee Melinda Wong, New York, NY, for Defendant Congying Zheng.

Michael D. Walsh, Pro Hac Vice, Demidchik Law Firm, Chicago, IL, for Defendant Kuang Zebin.

MEMORANDUM & OPINION

PAMELA K. CHEN, United States District Judge:

Defendant Michael McMahon currently awaits trial on charges of interstate stalking in violation of 18 U.S.C. § 2261A(1)(B), acting as an agent of a foreign government without prior notification to the Attorney General in violation of 18 U.S.C. § 951(a), and conspiracy to commit these offenses in violation of 18 U.S.C. § 371—all in connection with a campaign allegedly directed by officials of the People's Republic of China ("China" or "PRC") to pressure certain Chinese nationals living in the United States to repatriate to China. (See Superseding ("S-1") Indictment, Dkt. 76.) Presently before the Court is McMahon's pretrial motion for discovery and an evidentiary hearing based on allegations of prosecutorial misconduct. (See Mot. for Disc. and Evidentiary Hr'g, Dkt. 146.) For the reasons stated below, the motion is denied in its entirety.

BACKGROUND

I. Government's Allegations¹

Defendant McMahon is a licensed private detective in New Jersey. (S-1 Indictment, Dkt. 76, ¶ 6.) Sometime around September 2016, Defendant McMahon was hired to investigate and surveil an individual, John Doe-1, a PRC citizen who resides in the United States. (Id. ¶¶ 12-13.) John Doe-1 is a target of a broader pressure campaign orchestrated by the PRC Government, called "Operation Fox Hunt," to locate and repatriate alleged Chinese "fugitives" who have fled to foreign countries, including the United States. (Id. ¶ 14.) The Government alleges that Defendant was tasked with "investigat[ing] John Doe[-]1 and his family, including by conducting surveillance of John Doe[-]1 and obtaining John Doe[-]1's banking, information." (See id. ¶ 19.) The Government further alleges that Defendant emailed his co-defendant in this case information about international travel by Jane Doe-1 (John Doe-1's wife), and the date of birth, Social Security number, and banking information for Jane Doe-2 (John Doe-1's adult daughter). (Id.)

A separate prong of the pressure campaign directed by PRC officials entailed surveillance and online harassment of Jane Doe-2, who resided in northern California. (See Compl., Dkt. 1, ¶¶ 81, 96-108.) As part of that effort, Defendant Zhai Yongqiang directed another individual (the "Co-Conspirator") to hire a different private investigator ("California PI") to surveil Jane Doe-2.² (Id. ¶¶ 81-83; see also Superseding Indictment, Dkt. 78, ¶ 41.) According to the Government, the California PI was a confidential human source for the FBI, and while "purport[ing] to investigate and surveil Jane Doe-2" at the direction of the Co-Conspirator, the California PI's activities were in fact being supervised by federal law enforcement. (See Compl., Dkt. 1, ¶ 96.) As part of the law enforcement operation, officials provided materials related to Jane Doe-2 that the PI could then provide to the Co-Conspirator. (Id.)

II. Defendant McMahon's Motion³

Sometime around March 2013, Defendant McMahon was retained by Paul Bergrin, a lawyer who previously was convicted of various crimes, including conspiracy to commit murder in connection with his representation of members of a drug trafficking organization in New Jersey. (Declaration Michael McMahon ("McMahon Decl."), Dkt. 146-7, ¶ 3.) Bergrin's defense team hired McMahon to conduct an investigation for Bergrin's post-conviction motion for a new trial. (Id.) Between 2013 and 2018, McMahon conducted over 100 interviews and background searches for Bergrin's case. (Id. ¶ 4.)⁴

On October 27, 2020, an arrest warrant was issued by the Honorable Peggy Kuo for McMahon in the present case. (See Arrest Warrant, Dkt. 3.) On October 28, 2020, McMahon was arrested at his home by five FBI agents. (McMahon Decl., Dkt. 146-7, ¶ 5.) During his arrest, McMahon asked the FBI agents: "Is this about Paul Bergrin?" (Id. ¶ 9.) In response, one of the FBI agents, Sean McCarthy, allegedly stated: "No, but I know you from the case. You've been on my board more than once." (Id.)⁵ After arresting McMahon, Agent McCarthy and another FBI agent drove him to conduct a post-arrest interview. (Id. ¶ 12.) In the vehicle, McMahon asked McCarthy "So you know me from Paul Bergrin?" (Id.) Agent McCarthy replied: "The case agent [on the Bergrin case] was my officemate." (Id.) Agent McCarthy was one of the agents who conducted McMahon's post-arrest interview. (Id. ¶ 14.)

III. Procedural History Following Arrest

On July 21, 2021, the Government filed a Superseding Indictment against McMahon and eight other individuals. (S-1 Indictment, Dkt. 76.) McMahon was charged with conspiracy to act as an illegal agent of a foreign government and the underlying substantive count (Counts One and Two), and conspiracy to engage in interstate stalking and the underlying substantive count (Counts Three and Four). (Id.) McMahon pled not guilty to all four counts on September 27, 2021. (9/27/21 Minute Entry.) On December 10, 2021, McMahon filed a motion to dismiss all counts of the Superseding Indictment, and to challenge venue as to Counts Two and Four, i.e., the substantive counts of acting as an illegal agent and engaging in interstate stalking. (Defendant McMahon's Mot. to Dismiss, Dkt. 114.) After the motion was fully briefed, the Court issued a Memorandum & Order denying the motion to dismiss. See United States v. Ji, No. 21-CR-265 (PKC) (S-1), 2022 WL 595259 (E.D.N.Y. Feb. 28, 2022).

On August 8, 2022, McMahon filed the present motion for discovery and for an evidentiary hearing. (See Dkt 146; see also Br. in Supp. of Def. Michael McMahon's Mot. to Dismiss ("McMahon Br."), Dkt. 146-1.) He submitted an additional letter in further support of his motion on September 26, 2022. (McMahon Suppl. Letter, Dkt. 147.) The Government filed its opposition on October 13, 2022 (see Government's Mem. of Law in Opp'n ("Gov. Br."), Dkt. 148), and McMahon filed a reply on November 14, 2022 (see Reply Br. in Further Supp. of Def. Michael McMahon's Mot. ("McMahon Rep."), Dkt. 152).

DISCUSSION

I. Legal Standards

McMahon's motion for discovery and an evidentiary hearing is premised on a claim of vindictive prosecution. However, at times, both McMahon and the Government refer to and apply the legal standards for selective prosecution. Although these theories are related, courts have applied distinct standards to vindictive and selective prosecution motions. See United States v. Miller, Nos. 92-CR-91, 99-CV-3346 (RJD), 2010 WL 1269796, at *9 (E.D.N.Y. Mar. 30, 2010); see also United States v. Donziger, No. 19-CR-561 (LAP), 2021 WL 1820190, at *4 (S.D.N.Y. May 6, 2021) ("Although [vindictive and selective prosecution] claims are related, the legal standards differ slightly."). The Court therefore discusses the standards for both theories.

A. Prosecutorial Discretion

It is well settled that within the federal criminal justice system, "the Attorney General and the United States Attorneys retain 'broad discretion' to enforce the Nation's criminal laws." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (citing Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 ("In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute.")). Because a "presumption of regularity" attaches to prosecutorial decisions, courts must presume "in the absence of clear evidence to the contrary" that prosecutors "have properly discharged their official duties." Armstrong, 517 U.S. at 464, 116 S.Ct. 1480. Accordingly, the Supreme Court has consistently observed that "the decision to prosecute is particularly illsuited to judicial review." See Wayte, 470 U.S. at 607, 105 S.Ct. 1524. "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor's] discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

B. Vindictive Prosecution

"[A] prosecution brought with vindictive motive, penalizing those who choose to exercise constitutional rights, would be patently unconstitutional." United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009) (quoting United States v. Sanders, 211 F.3d 711, 716 (2d Cir. 2000)). There are two ways to prove vindictive motive. First, a "vindictive motive for a prosecution 'will be found where there is direct evidence of actual vindictiveness[.]" United States v. Koh, 199 F.3d 632, 639 (2d Cir. 1999) (quoting United States v. White, 972 F.2d 16, 19 (2d Cir. 1992), cert. denied, 506 U.S. 1026, 113 S.Ct. 669, 121 L.Ed.2d 593 (1992)). Alternatively, courts have found that a "rebuttable presumption of a vindictive motive may arise under certain circumstances." Id. (quoting White, 972 F.2d at 19). Criminal charges must be dismissed "if actual vindictiveness has been demonstrated, or if . . . there is a presumption of vindictiveness that has not been rebutted by objective...