United States v. Michel

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 19-148-1 (CKK) PRAKAZREL MICHEL (1), Defendant.

OMNIBUS MEMORANDUM OPINION AND ORDER (September 13, 2022)

Defendant Prakazrel Michel (“Defendant” or “Michel”), with co-Defendant Low Taek Jho

(“Low”), is charged by indictment with a variety of criminal offenses arising from three alleged

conspiracies to unlawfully launder foreign money to influence American elections and foreign

policy. Before the Court are Defendant’s four 1 motions to dismiss the indictment in part or in

whole. For each motion, Defendant advances a different theory: (1) Counts 8-11 of the

Superseding Indictment should be dismissed because the Foreign Agents Registration Act

(“FARA”) is unconstitutionally vague and overbroad; (2) the entire Superseding Indictment should

be dismissed because Michel relied on advice of counsel in undertaking the allegedly criminal

actions; (3) the entire Superseding Indictment should be dismissed because the Government has

selectively prosecuted Michel in violation of the First, Fifth, and Fourteenth Amendments; and (4)

the entire Superseding Indictment should be dismissed because the Government has engaged in

“outrageous conduct” in violation of the Fifth Amendment.

At this stage of briefing, all but one theory fails. In an abundance of caution, the Court

1 The Court presumes that Defendant withdrew his substantively identical [116] and [117] motions to dismissing counts 9-11 of the Indictment by filing his later-in-time [130] Motion to Dismiss Counts 8-11 (“FARA Counts”) in the First Superseding Indictment. 1 shall set an evidentiary hearing on Defendant’s final argument, that the Government returned the

Superseding Indictment exclusively to punish Defendant for exercising his right to proceed to trial.

Accordingly, and upon consideration of the Superseding Indictment, briefing, relevant legal

authorities, and record as a whole, the Court DENIES Defendant’s [130] Motion to Dismiss

Counts 8-11 (“FARA Counts”) in the First Superseding Indictment, DENIES Defendant’s [131]

Motion for an Order Dismissing the Instant Indictment Due to Selective Prosecution, DENIES

Defendant’s [132] Motion to Dismiss Due to Advice of Counsel, and DENIES IN PART AND

HOLDS IN ABEYANCE IN PART Defendant’s [133] Motion for an Order Dismissing the

Indictment with Prejudice Due to Outrageous Government Conduct. 2

2 For the pending motions, the Court’s consideration has focused on the following documents:

• United States’ Response in Opposition to Defendant’s Motion to Dismiss Counts 8-11 (“FARA Counts”), ECF No. 128 (“FARA Opp.”); • Defendant’s Motion to Dismiss Counts 8-11 (“FARA Counts”) in the First Superseding Indictment, ECF No. 130 (“FARA Mot.”); • Defendant’s Motion for an Order Dismissing the Instant Indictment Due to Selective Prosecution, ECF No. 131 (“Selective Pros. Mot.”); and • Defendant’s Motion to Dismiss Due to Advice of Counsel, ECF No. 132 (“Advice of Counsel Mot.”); • Defendant’s Motion for an Order Dismissing the Indictment with Prejudice Due to Outrageous Government Conduct, ECF No. 133 (“Conduct Mot.”); • United States’ Response in Opposition to Defendant’s Motion to Dismiss Due to Advice of Counsel, ECF No. 139 (“Advice of Counsel Opp.”); • United States’ Response in Opposition to Defendant’s Motion to Dismiss for Outrageous Governmental Conduct, ECF No. 140 (“Conduct Opp.”); • United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment on the Basis of Selective Prosecution, ECF No. 141 (“Selective Pros. Opp.”); • Defendant’s Reply to Government’s Opposition to His Motion Regarding Selective Prosecution, ECF No. 148 (“Selective Pros. Repl.”); • Defendant’s Reply to Government’s Opposition to Dismiss Due to Outrageous Governmental Conduct, ECF No. 149 (“Conduct Opp.”); • Defendant’s Reply to Government’s Opposition to Mr. Michel’s Motion to Dismiss FARA Counts, ECF No. 150 (“FARA Repl.”). and • The Superseding Indictment, ECF No. 84 (“Indictment”).

In an exercise of its discretion, the Court finds that holding oral argument in this action 2 I. BACKGROUND

For a more detailed explanation of the material facts alleged in the operative Superseding

Indictment, the Court refers the reader to the latest memorandum opinion and order in this matter,

ECF No. 153.

A. Factual Background

For purposes of a motion to dismiss, the Court must accept the facts alleged in the

indictment as true. United States v. Craig, 401 F. Supp. 3d 49, 54 (D.D.C. 2019). Accordingly,

the facts recited here provide information pertinent to assessing Defendant’s legal challenges to

the Indictment, but should not be read to “signal the Court’s point of view about the accuracy of

the allegations or the defendant’s guilt or innocence in this case. The facts have yet to be proved,

and the defendant is presumed to be innocent unless and until the government proves his guilt

beyond a reasonable doubt.” Id.

In summary terms, this criminal case centers on three alleged conspiracies. First, Michel

and Low allegedly “secretly funnel[ed] foreign money . . . [from] other straw donors” to two

political action committees that supported a candidate for President of the United States

(“Candidate”) during the 2012 Presidential Election, “while concealing from the candidate, the

committees, the FEC, the public, and law enforcement the true source of the money.” Indictment

at 4-5. Michel and co-conspirators intended to funnel approximately $1,000,000, to be contributed

via a June 2012 fundraiser that the Candidate would attend. Id. The emails suggest that Michel

knowingly solicited contributions from foreign individuals via wires from offshore companies.

See id. at 10. Michel organized several straw donors, providing them funds to themselves make

individual contributions to political action committees supporting the Candidate. This scheme was

would not be of assistance in rendering a decision. See LCrR 47(f). 3 so successful that it earned Michel and Low personal access to the Candidate on two separate

occasions. See id. Throughout the conspiracy, Michel and his straw donors concealed the true,

foreign source of the contributions in violation of 52 U.S.C. §§ 30109 and 20122, 18 U.S.C. §§

1001(a)(1) and 2, and 18 U.S.C. §§ 1519 and 2.

Second, the Indictment alleges a broad conspiracy beginning in March 2017 to assist the

Malaysian Prime Minister in convincing the President of the United States to order the Department

of Justice to drop investigations into Low for graft related to a Malaysian sovereign wealth fund.

See id. at 24, 30-33. Michel and Low worked with George Higginbotham, at that time an attorney

at the United States Department of Justice, Elliott Broidy, a businessman and former Deputy

Finance Chair of the Republican National Committee, and Nickie Lum Davis, a California

businesswoman and a foreign agent operating at the behest of the People’s Republic of China.

Both Higginbotham and Broidy have pleaded guilty before this Court for their roles in this

conspiracy, Broidy to “Conspiracy to Serve as an Unregistered Agent of a Foreign Principal, in

violation of 18 U.S.C. § 371” and Higginbotham to “Conspiracy to Make False Statements to a

Bank in violation of 18 U.S.C. § 371.” Plea Agreement at 1, ECF No. 8, United States v. Broidy,

Crim A. No. 20-0210 (CKK) (Oct. 20, 2020); Plea Agreement at 1, ECF No. 14, United States v.

Higginbotham, Crim. A. No. 18-343 (CKK) (Nov. 30, 2018). Lum Davis has also pleaded guilty,

to failure to register under FARA and aiding and abetting, in violation of 18 U.S.C. § 2 and 22

U.S.C. §§ 612 and 618(a), for her role in the conspiracy. Mem. of Plea Agreement at 2, ECF No.

15, United States v. Lum Davis, CR. No. 20-00068 LEK (Aug. 31, 2020).

In this conspiracy, beginning in or around March 2017, Michel allegedly assisted Low in

executing a retainer agreement with Higginbotham and funneling illicit wire transfers from Low

to Higginbotham, Lum Davis, and Broidy. Indictment at 29. The Indictment identifies specific

4 emails and wire transfers in March 2017 formalizing the agreement between Low and his co-

conspirators. Id. at 30. Michel played a crucial role in facilitating and fraudulently concealing

these wire transfers that funded the scheme. Id. at 29-30. It also details a purported meeting on

May 2, 2017, in which the parties strategized how to best exert influence on the President of the

United States and his administration. Id. at 31. It further describes Michel’s role in drafting talking

points for the Malaysian Prime Minister on the issue for an upcoming meeting between the

Malaysian Prime Minister and the President of the United States. See id. at 33.

Third and finally, Michel conspired with Lum Davis, Higginbotham, Broidy, Low, and a

government official of the People’s Republic of China to lobby the President of the United States

and his administration to extradite a Chinese national and dissident back to the People’s Republic

of China. Id. at 34. The conspiracy with the Chinese government began on May 18, 2017, when

Michel traveled to Hong Kong to meet with his co-conspirators and, upon his arrival, was shuttled

from Hong Kong to Shenzhen, China. See id. There, the Chinese minister allegedly told the co-

conspirators that he “was having trouble scheduling meetings with certain high-ranking United

States government officials.” Id. at 34. The Indictment describes subsequent meetings and wire

transfers in August and September 2017, including in Macau, China, in which the co-conspirators

allegedly discussed the structure of additional payments from Low to further the backchannel

lobbying campaign. Id. at 36-37. It also claims Low told the co-conspirators that he was

“concerned that United States banks would not allow him to transfer large sums of money in or

through the United States financial system.” Id. at 36. Michel allegedly suggested that the money

be mischaracterized as “funds for entertainment purposes” to conceal their true source. Id.

Finally, the Indictment adds two counts for criminal conduct allegedly completed after the

end of the three conspiracies. After the filing of the first indictment in this case, ECF No. 1, Michel

5 purportedly threatened two witnesses to change their testimony before the Government. The

Indictment identifies two texts by date that it alleges “intimidate[d], threaten[ed], and persuade[d]”

potential witnesses after the inception of this case. First, the Indictment alleges that Michel

“caused a text message to be sent” on July 14, 2019, “threatening [a] [s]traw [d]onor [] with

potential legal and reputational harm, including threatening to refer [them] to the United States

Department of Justice for criminal investigation” allegedly “in an effort to cause [them] to falsely

characterize” a conduit payment from Michel “as a loan” and to stop them “from providing

testimony.” Id. at 22. Second, the Indictment claims Michel “caused a text message to be sent

threatening to refer” a witness “to federal law enforcement . . . in an effort to cause him to withhold

his testimony.” Id. at 23.

B. Procedural Background

The Government commenced this criminal matter with the filing of the first indictment on

July 14, 2019. At that time, the operative indictment included only the first, election-fraud

conspiracy. See United States v. Michel, Crim. A. No. 19-148 (CKK), 2019 WL 579669, at *1-2

(D.D.C. Nov. 6, 2019). On August 30, 2019, Defendant filed his first motion for a bill of

particulars, which the Court granted in part on November 6, 2019. Id. at *1. The Court ordered

the Government to identify all individuals in the indictment whom the Government intended to

characterize as co-conspirators at trial. Id. at *18. This case entered a lull for much of the early

stage of the COVID-19 pandemic, in part due to Defendant retaining new counsel. See Joint

Motion to Reschedule Status Conference, ECF No. 79 (June 4, 2021). On June 10, 2021, the

Government filed the operative Superseding Indictment. The parties informed the Court on April

4, 2022 that Defendant intended to resolve this case at trial, and the Court entered its [106] Pretrial

Scheduling Order on April 29, 2022.

6 Since then, the parties have engaged in a substantial amount of motions practice. The Court

has already resolved two discovery disputes, one of which proceeded under seal pursuant to the

Classified Information Procedures Act, 95 Stat. 2025 et seq. Additionally, the Court denied

Defendant’s [115] Motion for Bill of Particulars by memorandum opinion and order on September

9, 2022. Remaining before the Court are Defendant’s [130] Motion to Dismiss Counts 8-11

(“FARA Counts”) in the First Superseding Indictment, [131] Motion for an Order Dismissing the

Instant Indictment Due to Selective Prosecution, [132] Motion to Dismiss Due to Advice of

Counsel, and [133] Motion for an Order Dismissing the Indictment with Prejudice Due to

Outrageous Government Conduct. With these motions fully briefed, the Court turns to their

resolution.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Criminal Procedure 12(b)(3), a criminal defendant may,

before trial, move to dismiss a count of the indictment based on a “defect in the indictment.” As

relevant here, defects include “failure to state an offense.” Id. “Failure to state an offense” may

be due to a question of statutory interpretation or a constitutional issue. See United States v.

Stone, 394 F. Supp. 3d 1, 8 (D.D.C. 2019). When considering a challenge to the indictment, “a

district court is limited to reviewing the face of the indictment;” the Court must “presume the

allegations [in the] indictment to be true.” United States v. Sunia, 643 F. Supp. 2d 51, 60

(D.D.C. 2009) (internal quotation marks removed). “The operative question is whether [those]

allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were

committed.” United States v. Sanford Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

7 III. DISCUSSION

A. FARA Counts

Defendant first moves to dismiss the FARA and section 951 counts in the Superseding

Indictment on First and Fifth Amendment grounds. 3 As a practical matter, any constitutional

challenge to the FARA statute is foreclosed by binding Circuit precedent, precedent that Defendant

neither discusses nor even acknowledges. See Att’y Gen. of U.S. v. Irish People, Inc., 796 F.2d

520, 526 (D.C. Cir. 1986) (on First Amendment retaliation claim in civil suit to compel

registration, “the enforcement of [] FARA for the purposes expressed in the statute does not

infringe the exercise of constitutional rights”). In short, “it is well settled that FARA is

constitutional.” Att’y Gen. of U.S. v. Irish People, Inc., 684 F.2d 928, 935 & n.23 (D.C. Cir. 1982)

(collecting cases). Nevertheless, the Court shall exercise its discretion to respond to both of

Defendant’s arguments on the merits.

As to overbreadth, it is unclear whether Michel attempts to make a facial attack or merely

an as-applied challenge. In either case, the argument fails. To succeed on a facial challenge, the

movant must show “‘that no set of circumstances exists under which [the challenged law] would

be valid or that the statute lacks any plainly legitimate sweep.’” Edwards v. District of Columbia,

755 F.3d 996, 1001 (D.C. Cir. 2014) (brackets altered and footnote omitted) (quoting United States

v. Stevens, 559 U.S. 460, 472 (2010)). In the First Amendment context, the court may also

invalidate a law as overbroad if “‘a substantial number of its applications are unconstitutional,

judged in relationship to its plainly legitimate sweep.’” Id. (quoting Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 449 n.6 (2008)). This latter course, however, is “strong

3 Strictly speaking, this first motion requests dismissal of counts 8 to 11. This numbering appears to be a typo. Counts 9 and 11 relate only to Low, and Defendant lacks standing to challenge charges exclusive to his co-defendant. See Powers v. Ohio, 499 U.S. 400, 410 (1991). 8 medicine” to be prescribed “sparingly[,] only as a last resort,” and only upon a showing of

protected instances that would, in fact, violate the law at issue. See N.Y. State Club Ass’n, Inc. v.

City of New York, 487 U.S. 1, 14 (1988). For an as-applied challenge, a movant “must show that

the [law] is unconstitutional as applied to their particular speech activity.” Edwards, 755 F.3d at

1001. An as-applied challenge can prevail only if the movant’s “conduct is, in fact, expressive.”

United States v. Caputo, 201 F. Supp. 3d 65, 71 (D.D.C. 2016); see also Texas v. Johnson, 491

U.S. 397, 403 (1989).

As the Supreme Court has explained, FARA “itself neither prohibits nor censors the

dissemination of advocacy materials by agents of foreign principals.” Meese v. Keene, 481 U.S.

465, 478 (1987). Rather, FARA and section 951 regulate, and regulate only, notification to the

Attorney General upon being retained as an agent of a foreign principal. See United States v.

Peace Info. Ctr., 97 F. Supp. 255, 262 (D.D.C. 1951) (FARA “merely requires persons carrying

on certain activities to identify themselves by filing a registration statement”). The reach of FARA

and section 951 is not, as Defendant evidently believes, inclusive to artistic and musical endeavors.

Instead, the statutes “prevent[] covert influence over U.S. policy by foreign principals” by

requiring domestic agents to inform the Attorney General, and thereby the public, “of the true

source or sponsor behind the information being disseminated for its consideration.” See United

States v. Craig, 401 F. Supp. 3d 49, 54 (D.D.C. 2019). Because, strictly speaking, FARA and

section 951 do not penalize speech, but rather the lack of registration, any facial challenge under

the First Amendment fails. Furthermore, because the actus reus here is failure to notify the

Attorney General before undertaking an illicit scheme to change American prosecutorial policies

as to the investigation of foreign graft and the extradition of a Chinese national, an as-applied

challenge fails as well.

9 As to vagueness, the Court begins from the presumption that “statutes are not automatically

invalidated as vague simply because difficulty is found in determining whether certain marginal

offenses fall within their language.” United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32

(1963). A law is unconstitutionally vague when it “fails to give ordinary people fair notice of the

conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United

States, 576 U.S. 591, 595 (2015). This is a “‘stringent standard.’” United States v. Sandlin, 575

F. Supp. 3d 16, 30 (D.D.C. 2021) (quoting United States v. Harmon, No. 19-cr-395 (BAH), 2021

WL 1518344 at *4 (D.D.C. Apr. 16, 2021)). The vagueness determination “must be made on the

basis of the statute itself and other pertinent law, rather than on the basis of an ad hoc appraisal of

the subjective expectations of particular defendants.” Bouie v. City of Columbia, 378 U.S. 347,

355 n.5 (1964).

As an initial matter, the Court is at a loss in determining exactly what provision of FARA

Defendant thinks vague. Defendant’s briefing does not actually identify any particular statutory

text; indeed, Defendant devotes less than a page to the argument, going no further that explicating

Supreme Court precedent (and a nonbinding Seventh Circuit case) on the matter. Although it is

not the Court’s role to invent arguments on a party’s behalf, see EEOC v. Geo. Wash. Univ., Civ.

A. No. 17-1978, 2020 WL 3489478, at *17 (D.D.C. June 26, 2020), the Court will endeavor to

address Defendant’s challenge, such as it is.

In the Court’s review, it appears no defendant has ever challenged FARA’s registration

requirement on vagueness grounds. That is likely because it is, and has been since its inception,

straightforward and “sufficiently precise.” See Peace Info. Ctr., 97 F. Supp. at 264. It bars

“lobbying,” engaging in “political activities,” and collecting and disbursing money on behalf of a

foreign principal without providing notice to the Attorney General of the United States. 22 U.S.C.

10 § 611(c)(i)-(iv). In this regard, the key actus reus is not “engaging in political activities” but rather

the omission of failing to register. Defendant seems to imply that he is being prosecuted for his

musical talents. FARA Mot. at 3. He is not, and even if he were, FARA does not sweep so broadly.

Rather, FARA criminalizes, in clear terms, failure to register in advance of engaging in the

delineated political activities. The corollary foreign agent statute, 18 U.S.C. § 951, also “plainly

and concretely identifies the conduct which constitutes its violation, and the statute’s language is

clear and unambiguous.” United States v. Duran, 596 F.3d 1283, 1291 (11th Cir. 2010). It clearly

bars acting on behalf of a foreign principal without prior notification to the Attorney General, id.

951(a), and applicable regulations define each relevant term, 28 C.F.R. §§ 73.1 et seq. 4 Without

any further argument from Defendant, the Court cannot conclude that either statute fails to give

Defendant adequate notice of what is prohibited.

Defendant also appears to argue that both statutes are vague because the Government has

opted to pursue a civil enforcement action, rather than a criminal case, against another businessman

who allegedly lobbied the prior administration to extradite the same Chinese dissident without

notification to the Attorney General. FARA Mot. at 9-10. As this Court has recently explained,

the “[G]overnment’s charging decisions [generally] have no bearing on the vagueness analysis.”

United States v. Grider, --- F. Supp. 3d ---, 2022 WL 392907, at *7 (D.D.C. Feb. 9, 2022). 5 In

other words, “‘the presence of enforcement discretion alone does not render a statutory scheme

unconstitutionally vague.’” Id. (quoting United States v. Nordean, 579 F. Supp. 3d 28, 51 (D.D.C.

2021)). The key question is not whether the Government has decided to pursue different charges,

4 Defining, for example, “agent” as “an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official.” 28 C.F.R. § 73.1(a). 5 Accord, e.g., United States v. Robertson, --- F. Supp. 3d ---, 2022 WL 2438546, at *2 n.1 (D.D.C. July 5, 2022) (collecting cases). 11 or no charges, for the same or similar conduct, but rather whether the statute gives a Defendant

fair warning that his conduct is, in fact, unlawful. Because the two applicable statutes clearly

proscribe political advocacy at the behest of a foreign official, any vagueness challenge must fail.

B. Selective Prosecution

Defendant next argues that the Government has selectively prosecuted him in violation of

the Due Process Clause of the Fifth Amendment. The Court must attach a “presumption of

regularity” to the Government’s charging decisions. See United States v. Armstrong, 517 U.S.

456, 464 (1996). A prosecutor’s discretion, however, is subject to constitutional limits. Id. “In

order to dispel the presumption that a prosecutor has not violated [the Fifth Amendment’s

guarantee of] equal protection, a criminal defendant must present ‘clear evidence to the contrary.’”

Id. at 465 (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). In other words,

the defendant must “show both (1) that he was singled out for prosecution from others similarly

situated and (2) that his prosecution was motivated by a discriminatory purpose.” United States v.

Khanu, 664 F. Supp. 2d 28, 31 (D.D.C. 2009) (CKK). “[T]h[is] standard is a demanding one.”

Armstrong, 517 U.S. at 463.

Beginning first with the “discriminatory purpose” prong, Defendant has offered neither

direct evidence nor statistical disparity to permit any inference of discriminatory motivation. See

Khanu, 664 F. Supp. 2d at 33 (holding that failure to provide “any ‘evidence specific to [a

defendant’s] case that would support an inference” of racial animus is fatal to selective prosecution

claim (quoting McCleskey v. Kemp, 481 U.S. 279, 286-87 (1987)). In other words, because

Defendant fails to provide “any evidence, beyond his own speculation” of discriminatory purpose,

his selective prosecution claim must fail. See United States v. Barnes, 2019 WL 5538550, at *8

(D.D.C. Oct. 24, 2019) aff’d 481 F. Supp. 3d 15 (D.D.C. 2020).

12 Nor can Defendant demonstrate that a similarly situated defendant outside of a protected

class has been treated differently. Given the nature of the alleged offenses, the universe of

“similarly situated” defendants is quite small. A “similarly situated” defendant is “‘one outside

the protected class who has committed roughly the same crime under roughly the same

circumstances but against whom the law has not been enforced.’” Khanu, 664 F. Supp. 2d at 32

(quoting United States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008)). The Court must construe those

“similarly situated” narrowly. United States v. Stone, 394 F. Supp. 3d 1, 31 (D.D.C. 2019). Here,

a “similarly situated” defendant would be one who engaged in a conspiracy to illicitly affect

American policy without notification to the Attorney General of his foreign principal.

Defendant points to the following individuals: Elliott Broidy, Robin Rosenzweig (Broidy’s

wife), Frank White, George Higginbotham, former President Barack Obama, former President

Donald J. Trump, Paul Manafort, former Attorney General Jeff Sessions, Steve Wynn, and Guo

Wengui. As noted above, Broidy and Higginbotham were alleged co-conspirators in the latter two

schemes. According to Defendant, Frank White was a fundraiser for then President Barack Obama

who purportedly facilitated contact between then President Obama and Low at a fundraiser.

Selective Pros. Mot. at 5-6. Guo Wengui is allegedly the Chinese dissident whose extradition the

People’s Republic of China sought; Michel claims that Guo, with Paul Manafort’s assistance,

lobbied administration officials to remain in the United States. See id. at 8. Steve Wynn allegedly

engaged in a similar scheme to represent Chinese interests in securing Guo’s extradition, a scheme

for which Wynn is now subject to a civil enforcement action seeking an order mandating he

retroactively register as a foreign agent under FARA. Id. at 7-8. It is unclear what connection

Defendant thinks former Attorney General Sessions has with the charged conspiracies. See id. at

7.

13 Any reliance on Broidy, Higginbotham, and Manafort is inapt because the Government has

charged each of them with criminal violations arising from the same or similar schemes. Putting

aside whether the President, in whom the Executive power vests pursuant to Article II of the

Constitution, can function as an “agent” of a foreign principal within the meaning of FARA and

section 951, there is no factual basis at present to believe that former President Trump entered into

an illicit scheme with a foreign principal to shift American policy. Former President Obama and

White are both inapt comparisons because they are African-American and therefore members of

the same protected class as Michel. See Armstrong, 517 U.S. at 465; Richards v. Gelsomino, 814

F. App’x 607, 610 (D.C. Cir. 2020). Former Attorney General Sessions, Guo, and Rozensweig

are not similarly situated because they did not allegedly “engage[] in the same type of conduct” as

Michel; i.e., they did not engage in a scheme with a foreign official to furtively shift government

policy in exchange for tens of millions of dollars. See Stone, 394 F. Supp. 3d at 31; see also Khanu,

664 F. Supp. 2d at 32 (concluding that unindicted co-conspirators were not “similarly situated”

where they did not “t[a]k[e] a leadership role in the conspiracy”). Finally, Wynn is not similarly

situated insofar as the Government opted to maintain a civil enforcement action, as opposed to

criminally prosecuting Wynn, because, according to the Government, the Government may have

been concerned that it could not show that Wynn “willfully” violated FARA. See United States v.

Navarro, Crim A. No. 22-200 (APM) (Sept. 12, 2022) (slip op.), at 5 (delineating circumstances

defeating “similarly situated” inference).

Therefore, having failed to show disparate treatment or discriminatory purpose, Michel’s

selective prosecution challenge fails.

14 C. Advice of Counsel

Defendant next moves to dismiss the entire indictment based on a proffered advice-of-

counsel defense. An advice-of-counsel defense is, of course, an affirmative defense. United States

v. West, 392 F.3d 450, 457 (D.C. Cir. 2004). Even assuming arguendo that an advice-of-counsel

defense is of some legal import in this case, a “‘motion to dismiss [an indictment] is not the proper

way to raise a factual defense.’” United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 154

(D.D.C. 2015). This is so because, at the motion to dismiss stage, “[t]he district court must

presume the allegations of the indictment to be true . . . and may not dismiss an indictment on a

determination of facts that should have been developed at trial.” United States v. Sunia, 643 F.

Supp. 2d 51, 60 (D.D.C. 2009). Here, the Superseding Indictment is silent as to any purported

attorney-client relationship between Michel and any other member of the alleged conspiracies, and

the Court may not supplement an indictment with a defendant’s proffered facts. See id.

Accordingly, the Court may not dismiss the indictment based on Michel’s purported advice-of-

counsel defense. 6

D. Outrageous Conduct

Finally, Defendant levels a bevy of unsupported accusations and baseless innuendo in an

effort to dismiss the entire indictment. He first insists, in short order, that the Government coerced

Higginbotham and Lum Davis, his co-conspirators, into guilty pleas. To the extent these claims

merit a response from the Court, it need only be noted that Defendant lacks standing to contest

6 As an alternative to dismissal, Michel requests an evidentiary hearing. Counsel Mot. at 8. Should the Court determine that Defendant has offered a proper foundation for an advice-of- counsel defense, trial will serve as Defendant’s evidentiary hearing, for it is ultimately the province of the jury to determine whether Michel in fact relied on any attorney’s advice. See United States v. Howard, 245 F. Supp. 2d 24, 39 (D.D.C. 2003). If Defendant intends to pursue an advice-of- counsel defense at trial, he may raise it at an appropriate time, e.g., at the motion in limine stage. 15 alleged government misfeasance as to nonparties to this case. See Powers v. Ohio, 499 U.S. 400,

410 (1991). His further suggestion that the Government commenced this prosecution without

evidence is similarly baseless. Defendant seizes on the fact that the Government has issued a trial

subpoena after indictment. That the Government has continued its investigation into the alleged

conspiracies is wholly unremarkable, particularly given the national-security implications of the

alleged facts, and Defendant proffers no facts permitting the Court to reject the presumption of

regularity that otherwise attaches to a grand jury’s finding of probable cause. See United States v.

Akinyoyenu, 199 F. Supp. 3d 34, 36 (D.D.C. 2016) (JEB) (“The Court will only consider

dismissing an indictment if the defendant shows that the prosecutor instituted some error or

irregularity––more than a mere assertion that the prosecutor presented inadequate, unreliable[,] or

incompetent evidence.” (internal quotation marks removed)).

Defendant’s argument that the Government vindictively returned the operative

Superseding Indictment merits further discussion. To show that the Government returned a

superseding indictment vindictively, a defendant may rely, in certain rare situations, on “facts

[that] indicate ‘a realistic likelihood of vindictiveness,” at which point the Government must come

forth with “objective evidence justifying” the superseding indictment. See United States v. Meyer,

810 F.2d 1242, 1245 (D.C. Cir. 1987) (quoting Blackledge v. Perry, 417 U.S. 21, 27-29 (1974)).

However, merely returning a superseding indictment after a defendant refuses to plead, and even

threatening the defendant that the Government may return a superseding indictment should the

defendant refuse to plead, do not constitute vindictive prosecution. See Bordenkircher v. Hayes,

434 U.S. 357, 365 (1978) (“openly present[ing] [a] defendant with the unpleasant alternatives of

forgoing trial or facing charges on which he is plainly subject to prosecution, d[oes] not violate”

the Fifth Amendment).

16 “[I]n the run-of-the-mill pretrial situation, the prosecutor [does] not have any reason to

engage in vindictive behavior; . . . defendants routinely assert procedural rights prior to trial and

[] prosecutors are unlikely to respond vindictively to this everyday practice.” Meyer, 810 F.2d at

1247. For example, in a pretrial posture, “‘the prosecutor’s assessment of the proper extent of

prosecution may not have crystalized,’ so an increase in charges may [often] be the result of

additional information or further consideration of known information.” United States v. Slatten,

865 F.3d 767, 799 (D.C. Cir. 2017) (quoting United States v. Goodwin, 457 U.S. 368, 381 (1982)).

As such, to show vindictiveness here, Defendant must point to “‘something [more] than routine

invocations of procedural rights,’” such as declining a plea offer. See United States v. Meadows,

867 F.3d 1305, 1312 (D.C. Cir. 2017) (quoting Meyer, 810 F.2d at 1247)).

In an effort to suggest that there is “something more” here, Defendant relies on a variety

of cases. In United States v. Kore, 614 F. Supp. 2d 573 (W.D. Pa. 2009), for example, the

defendant had successfully appealed the initial charges, the initial charges were themselves entirely

baseless, and the defendant secured dismissal on remand. Id. at 584. Likewise, in United States

v. Wood, 36 F.3d 945 (10th Cir. 1994), a new indictment followed the successful dismissal of prior

charges. Id. at 946-47. Defendant’s reliance on United States v. Velsicol Chem. Corp., 498 F.

Supp. 1255 (D.D.C. 1980) is similarly misplaced. In that case, the Court was confronted with

actual evidence of vindictiveness and the Government offered no reason why it returned a

superseding indictment other than the corporate defendant’s insistence on a nolo contendere plea.

See id. at 1264-65. That said, had that court concluded that there was only a presumption of

vindictiveness, and no actual evidence, due to mere timing, such analysis would appear to be

foreclosed by the United States Court of Appeals for the District of Columbia Circuit’s subsequent

decisions in Meyer and Meadows.

17 Nevertheless, because the Government has not yet proffered an explanation for the

Superseding Indictment, the Court shall, in an abundance of caution, hold an evidentiary hearing

to determine whether the Government returned the Superseding Indictment exclusively to punish

Defendant for exercising his right to trial. The Court shall set that hearing by separate order.

III. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED, that Defendant’s [130] Motion to Dismiss Counts 8-11 (“FARA Counts”) in

the First Superseding Indictment is DENIED. It is further

ORDERED, that Defendant’s [131] Motion for an Order Dismissing the Instant

Indictment Due to Selective Prosecution is DENIED. It is further

ORDERED, that Defendant’s [132] Motion to Dismiss Due to Advice of Counsel is

DENIED. It is further

ORDERED, that Defendant’s [133] Motion for an Order Dismissing the Indictment with

Prejudice Due to Outrageous Government Conduct is DENIED IN PART AND HELD IN

ABEYANCE IN PART.

SO ORDERED.

Dated: September 13, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge