The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This case is before the Court on the supplemental briefs of
the parties on defendants' Motion No. 1, to dismiss Counts 5 and
6 (false statements), and the government's motion for
reconsideration of the Court's dismissal of Counts 4 and 9 (false
statements), as well as on defendants' Motion No. 2, to dismiss
Count 1 (conspiracy), or, in the alternative, to strike
prejudicial surplusage, and defendants' Motion No. 3, to dismiss
Counts 1-14 as preempted by FECA. The Court heard argument on
January 20 and January 25, 1999.
The Court concludes that the reasoning in its opinions in
United States v. Hsia, 24 F. Supp.2d 33 (D.D.C. 1998), and United
States v. Trie, 23 F. Supp.2d 55 (D.D.C. 1998), compels dismissal
of all of the false statements counts against defendant Pornpimol
"Pauline" Kanchanalak and Count 4 against defendant Duangnet
"Georgie" Kronenberg. The Court further concludes that Counts 5
and 9 against Ms. Kronenberg also must be dismissed. The
government's motion for reconsideration therefore will be denied,
and defendants' Motion No. 1 will be granted, except insofar as
it seeks dismissal of Count 6 against Ms. Kronenberg. For
essentially the reasons stated in the Court's opinions in Hsia
and Trie, defendants' Motion No. 2 and Motion No. 3 also will be
I. FALSE STATEMENTS COUNTS
The false statements counts charge Ms. Kanchanalak and Ms.
Kronenberg with "knowingly and willfully caus[ing] the submission
of material false statements to the FEC, in that defendants
caused the responsible officials of . . . political committees to
file reports with the FEC that listed . . . individuals as having
provided funds to such political committees . . . when, as
defendants then and there well knew, the named individuals were
not the actual sources of those funds," in violation
of 18 U.S.C. § 1001 and 2(b). See superseding Indictment at 24.
The Court already has concluded that "Counts 2-14 and 7-14 of the
Superseding Indictment in this case are virtually
indistinguishable from the allegations at issue in Hsia and
Trie." See Memorandum Opinion and Order of December 31, 1998 at
2. For the reasons stated at great length in Hsia, and in
abbreviated fashion in Trie, the Court therefore dismissed those
counts. With respect to Counts 5 and 6, however, the Court
reserved ruling because "[u]nder the reasoning articulated by the
Court in United States v. Hsia, 24 F. Supp.2d at 60 n. 30, it is
possible that Sections 1001 and 2(b) could constitutionally be
applied to the conduct alleged in Counts 5 and 6." Id. at 5. The
Court therefore directed the government to
provide a supplemental opposition setting forth any
reasons within the framework set forth in Hsia and
Trie that Counts 5 and 6 should not be dismissed.
The supplemental opposition may provide further
legal argument, particularly with respect to the
impact on each defendant of the factual allegations
described above in light of footnote 30 of Hsia
and/or it may provide additional factual
information in the nature of a limited bill of
The government has filed a supplemental opposition and a
limited bill of particulars in response to the Court's Order. It
concedes that in view of the evidence that it has available, Ms.
Kanchanalak "cannot be charged with causing the false statement
alleged in Count Six" under the Hsia framework. Govt's Supp. Opp.
at 3 n. 2. It maintains, however, that under Hsia, Count Five
"can constitutionally be applied to both defendants, and Count
Six can constitutionally be applied to defendant Kronenberg." Id.
at 5. In its motion for partial reconsideration, the government
also argues that Section 1001 and 2(b) can constitutionally be
applied to the conduct alleged in Counts 4 and 9 of the
A. Counts 4, 5 and 9; The Democratic National Committee
Counts 4, 5 and 9 of the Superseding Indictment all relate to
a series of donations or contributions allegedly made to the
Democratic National Committee ("DNC") between March 17, 1994 and
October 14, 1994 to fulfill Ms Pauline Kanchanalak's monetary
obligations to become first a trustee and later a managing
trustee of the Democratic Party. See Superseding Indictment at 6,
12, 15; Bill of Particulars at ¶¶ 2, 3, 14, 15. In each instance,
the Superseding Indictment alleges that a contribution or
donation was made to the DNC "by way of checks drawn of Praitun
Kanchanalak's account at First Virginia Bank . . . using BCI USA
[corporate] funds that had been deposited into Praitun
Kanchanalak's First Virginia account via Duangnet Kronenberg's
personal account at First Union National Bank." Superseding
Indictment at 12. Praitun Kanchanalak, an unindicted
co-conspirator, is Ms. Kronenberg's mother and Ms. Pauline
Kanchanalak's mother-in-law.*fn1 In each instance, the check was
imprinted "P. Kanchanalak," and Praitun Kanchanalak signed it "P.
Kanchanalak." Id. According to the Indictment, this was intended
to cause the recipient political committee to believe that the
funds were coming from an account held by Pauline Kanchanalak.
Id. Count 4 relates to a $15,000 check dated March 21, 1994,
Count 5 to a $15,000 check dated April 22, 1994, and Count 9 to
a $32,500 check dated October 20, 1994.*fn2 All the checks were
payable to the Democratic National Committee. Id. at 25. The
"Person Identified in [the DNC's] Report [to the FEC] as Having
Provided Funds" for each check was Pauline Kanchanalak. Id.
With respect to Counts 4 and 5, the government alleges that
Ms. Lauren Supina, a DNC fundraiser, sent a letter to Ms.
Kanchanalak on April 11, 1994 regarding the status of her
position as a DNC Trustee. See Bill of Particulars at ¶¶ 1, 12.
In the letter, Ms. Supina stated that she had "been under the
impression that you would become a full DNC Trustee through the
Women's Leadership Forum by contributing $15,000 in both March
and April. . . . This agreement was set up through Georgie
[Kronenberg] and I assumed you authorized it." Id.*fn3 Approximately
one week later, Ms. Kronenberg allegedly conveyed a $15,000 check
to the DNC drawn on Praitun Kanchanalak's account and signed "P.
Kanchanalak," with an accompanying memorandum in which Ms.
Enclosed please find a check for $15,000.00 payable
to DNC (non-federal) as part of Ms. Kanchanalak's
contribution to the DNC Trustee Program. As earlier
discussed with you, the remaining $20,000 will be
payable at the end of May 1994 which will conclude
the total contribution of $50,000.
Please also mail me the Federal Election Commission
Bill of Particulars at ¶ 2. Ms. Supina testified in the grand
jury pursuant to a subpoena that when she received the April
check, she understood "P. Kanchanalak" to be Pauline Kanchanalak.
Id. at ¶ 5.
The government contends that "it can be inferred from Lauren
Supina's letter . . . that defendant Kronenberg earlier had told
Ms. Supina that Pauline Kanchanalak would be donating $15,000 to
the DNC in April 1994" and that by sending the check and the
accompanying memorandum, Ms. Kronenberg affirmatively misled Ms.
Supina to believe that the source of the funds was Pauline
Kanchanalak and the money was from her account. Govt's Supp. Opp.
at 6. The government further contends that a jury "could
reasonably infer that defendant Kronenberg made this affirmative
misrepresentation to Ms. Supina at the behest of defendant
Kanchanalak, given the fact that Ms. Supina's April 11 letter was
addressed to defendant Kanchanalak and given other evidence
alleged in the Superseding Indictment and the Limited Bill of
Particulars that defendant Kanchanalak was the organizer of
Defendants' alleged unlawful scheme." Id.
With respect to Count 4, the government alleges in its
limited bill of particulars (although not in the Superseding
Indictment itself) that a check numbered 127 was drawn on Ms.
Praitun Kanchanalak's account and made payable to the "Democratic
National Committee-WLF." Bill of Particulars at ¶ 13. The check
was imprinted "P. Kanchanalak," but Praitun Kanchanalak allegedly
signed the check "Praitun Kanchanalak" rather than "P.
Kanchanalak," and the check was never sent. Id. Instead, check
number 128 imprinted "P. Kanchanalak" allegedly was drawn on Ms.
Praitun Kanchanalak's account, again made payable to the
Democratic National Committee-WLF, signed "P. Kanchanalak" by
Praitun Kanchanalak and mailed to the DNC. Id. at ¶ 14. The
government maintains that the circumstances under which check
number 127 was not sent and check number 128 instead was sent
support an inference that ...