United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
Michael Han allegedly promised investors that his company
Envion would usher in a black gold rush by turning plastic
back into oil. According to the Government, although that
concept never materialized, it did not stop Han from
stringing along his financers, ultimately defrauding them out
of nearly $40 million. With trial a couple of months away,
Defendant now brings several Motions challenging the validity
of the Indictment. Specifically, he asks the Court to: (1)
require the Government to provide a bill of particulars; (2)
dismiss Counts 10 and 11 as lacking venue; (3) dismiss Count
12 for first-degree fraud as duplicative of the wire-fraud
charges (Counts 1 and 2); and (4) dismiss Count 3 for
securities fraud as failing to state an offense. Finding no
merit in any of these positions, the Court will deny all of
September 14, 2017, a grand jury returned a 12-count
superseding Indictment against Defendant. In considering
Han's Motions at this stage, the Court takes the facts as
alleged in the Indictment as true. See United States v.
Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). A very
brief synopsis follows here, while facts pertinent to
particular Motions are set forth in the corresponding
Analysis sections below.
in early 2004 and continuing until at least November 2011,
Han was Chairman, Chief Executive Officer, and President of
science and technology companies Envion Inc. and Envion
Industries, LLC. See Indictment, ¶ 1. During
this time, Defendant resided in, and Envion operated out of,
the District of Columbia, Virginia, and Florida.
Id., ¶¶ 1, 2. Claiming that Envion owned a
U.S. patent for a machine that could turn plastic into oil -
the “EZ Oil Generator” - Han solicited
investments for the company. Id., ¶ 2. Two
investors ponied up nearly $40 million to support
Envion's mission and growth. Id., ¶ 14.
Particularly relevant here is an October 2010 investment of
$20 million from Defendant's main backer. Id.,
¶ 39. After they agreed on the terms, Han instructed a
bank to send the $20 million to his personal bank account.
Id., ¶ 40. Approximately two months later,
Defendant emailed the investor a promissory note for that
sum. Id., ¶ 42.
the nearly $40 million in total investments, Envion never
actually owned the claimed patent nor had the capability to
create or deliver oil generators. Id., ¶ 12.
Instead, Han diverted the money for his personal benefit,
including purchasing two multi-million-dollar pieces of real
estate, using millions to pay off credit-card balances, and
withdrawing hundreds of thousands of dollars in cash.
Id., ¶¶ 29-30, 38, 41.
on this scheme, the Government charged Han with two counts of
wire fraud, 18 U.S.C. § 1343; one count of securities
fraud, 15 U.S.C. §§ 78j(b), 78ff; six counts of
engaging in unlawful monetary transactions, 18 U.S.C. §
1957; two counts of tax evasion, 26 U.S.C. § 7201; and
one count of first-degree fraud, D.C. Code § 22-3221(a).
A trial is set to take place in February 2018.
Federal Rule of Criminal Procedure 12, a defendant may,
before trial, allege that an indictment is facially defective
on the basis of duplicity, multiplicity, “lack of
specificity, improper joinder, [or] failure to state an
offense.” In reviewing such a motion, the court is
“limited to reviewing the face of the
indictment and, more specifically, the language used
to charge the crimes.” United States v. Sunia,
643 F.Supp.2d 51, 60 (D.D.C. 2009) (quoting Untied States
v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006))
(emphasis in original); see United States v. Hitt,
249 F.3d 1010, 1015 (D.C. Cir. 2001). “[A]n indictment
is sufficient if it, first, contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974). The court
presumes the allegations in the indictment are true and
“may not dismiss an indictment . . . on a determination
of facts that should have been developed at trial.”
United States v. Engle, 676 F.3d 405, 415 (4th Cir.
2012) (citation omitted).
argues in his multiple Motions that the Indictment here is
flawed for four reasons: (1) it does not contain sufficient
detail to allow him to mount a defense; (2) D.C. is not the
proper venue for the tax-evasion charges; (3) first-degree
fraud under the D.C. Code is duplicative of the federal
wire-fraud counts; and (4) Count 3 does not state an offense
because the promissory notes were not
“securities” under the Exchange Act. The Court
considers each in turn.
Bill of Particulars
Court can swiftly dispose of Defendant's Motion for a
Bill of Particulars. See ECF No. 39. While an
indictment need only allege “the essential facts
constituting the offense charged, ” Fed. R. Crim. P.
7(c)(1), a defendant may request additional information
through a bill of particulars “to ensure that the
charges brought against [him] are stated with enough
precision to allow [him] to understand the charges, to
prepare a defense, and perhaps also to be protected against
retrial on the same charges.” United States v.
Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). Unlike a
Rule 12 motion, the court may look beyond the indictment to
determine, in its discretion, whether to direct the
Government to file a bill of particulars. See id.;
Fed. R. Crim. P. 7(f). “[I]f the indictment is
sufficiently specific, or if the requested information is
available in some other form, then a bill of
particulars” is generally not justified.
Butler, 822 F.2d at 1193. A defendant may not use a
bill of particulars as a “discovery tool or a devise
[sic] for allowing the defense to preview the
government's theories or evidence.” United
States v. Ramirez, 54 F.Supp.2d 25, 29 (D.D.C. 1999).
here does not contend that the Indictment fails to set out
the required elements of each offense, but instead asserts
that the Government should “identify with particularity
the conduct underlying the aforementioned charges.”
Mot. at 8. Han asks for the “basis” for the fraud
allegations, details of his allegedly false statements, the
“precise representations that are the basis of the
securities fraud charge, ” and “the amount of
corporate and personal income tax allegedly due and owed
by” him. Id. at 7-10. The Government counters
that the parties have engaged in protracted and substantial
discovery, which included the production of all of the
information that Defendant now seeks. See ECF No. 52
(Opposition) at 7. Han also ...