Case 2:11-cr-00922-DDP Document 803 Filed 10/13/14 Page 1of4 Page ID #:7181

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STEPHANIE YONEKURA
Acting United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
LANA MORTON-OWENS (Cal. SBN: 233831)
GRANT B. GELBERG (Cal. SBN: 229454)
Assistant United States Attorneys
Major Frauds Section
1100 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-3547/2872
Facsimile: (213) 894-6269
E-mail:
lana.morton-owens@usdoj.gov
grant.gelberg@usdoj.gov

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Attorneys for Plaintiff

UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Plaintiff,
v.

No. CR 11-922(8)-DDP
GOVERNMENT'S REQUEST FOR DISMISSAL
AS TO DEFENDANTS THEODORE YOON AND
PHIC LIM ONLY

MIKE MIKAELIAN et al.,

Defendant.

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Pursuant to Fed. R. Crim. P. 48(a), and in the interest of

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justice, the government hereby requests that the Second Superseding

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Indictment, as well as the underlying indictments, in the above-

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entitled case be dismissed with prejudice as to defendant Theodore

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Yoon ("defendant Yoon") and defendant Phic Lim ("defendant Lim").

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The government makes this request in consideration of the following:

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On the evening of October 6, 2014, counsel for defendant Matthew

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Cho ("defendant Cho"), emailed a letter to counsel for defendants

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Yoon and Lim and to government counsel of record, AUSAs Lana Morton-

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Owens and Grant Gelberg (the "October 6 letter").

The October 6

Case 2:11-cr-00922-DDP Document 803 Filed 10/13/14 Page 2 of 4 Page ID #:7182

letter disclosed information potentially covered by a pre-existing

joint defense agreement between defendants Yoon, Lim, and Cho and

their respective counsel.

request the October 6 letter from defendant Cho's counsel and were

unaware before reviewing the October 6 letter that it would reference

any joint defense agreement information.

Government counsel did not solicit or

After receiving the October 6 letter, government counsel

reviewed prior communications from defendant Cho's counsel to

identify any potential disclosure of other joint defense agreement

Communications from defendant Cho's counsel did not

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information.

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consistently identify the sources for the information she provided,

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and therefore government counsel are not able to determine the extent

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to which joint defense agreement information may have been a source

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for the information communicated to government counsel, if at all.

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Government counsel have no meaningful way to separate the information

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possibly learned through a breach of the joint defense agreement from

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other information independently provided by defendant Cho and his

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counsel.

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Although government counsel played no role in the creation or

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distribution of the October 6 letter, nor did they at any time

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solicit joint defense agreement information, the government accepts

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the representation made by counsel for defendants Yoon and Lim that

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the disclosures made by defendant Cho's counsel to government counsel

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could adversely impact the ability of defendants Yoon and Lim to

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testify in their own defense in this case.

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The government also acknowledges that plea negotiation

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communications with cooperating government witnesses, including

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exchanged draft plea agreement materials, were required to be

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Case 2:11-cr-00922-DDP Document 803 Filed 10/13/14 Page 3 of 4 Page ID #:7183

disclosed to defendants Yoon and Lim, pursuant to Brady v. Maryland,

373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and

United States v. Sudikoff, 36 F.Supp. 2d 1196 (C.D.C.A. 1999), and

were not timely provided.

timely disclosure was a serious oversight, and the government

recognizes and agrees that the information and materials should have

been disclosed well in advance of trial to these defendants.

Government counsel's failure to make

The government also acknowledges that it failed to timely

correct and notify defendants Yoon and Lim of material omissions in

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the Form DEA-6 dated April 14, 2014, prepared with respect to

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government witness Julie Shishalovsky.

Accordingly, in view of the cumulative seriousness of the

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matters described above, the government moves to dismiss this case

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against defendants Yoon and Lim in the interest of justice.

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trial is ongoing, defendants Yoon and Lim must consent to the

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dismissal.

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Because

Fed. R. Crim. P. 48(a).

Defendant Lim will continue to face charges in United States v.

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Lim, Case No. CR 11-1075-SJO.

To avoid tainting the prosecution of

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defendant Lim in CR 11-1075-SJO arising as a result of any disclosure

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of joint defense agreement information in this case, AUSAs Lana

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Morton-Owens and Grant Gelberg, together with AUSA Mark Childs (who

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in his capacity as the taint AUSA in this case read the October 6

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letter), have been directed not to share with any other AUSAs the

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III

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Ill

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Ill

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Case 2:11-cr-00922-DDP Document 803 Filed 10/13/14 Page 4 of 4 Page ID #:7184

substance

counsel relating to this case.

Dated: October 13, 2014

of

any

corrununication

between

them

and

defendant

Cho's

Respectfully submitted,
STEPHANIE YONEKURA
Acting United States Attorney

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ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division

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/s/
LANA MORTON-OWENS
GRANT B. GELBERG
Assistant United States Attorneys

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Attorneys for Plaintiff

UNITED STATES OF AMERICA

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Case 2:11-cr-00922-DDP Document 805 Filed 10/14/14 Page 1of1 Page ID #:7191

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STEPHANIE YONEKURA
Acting United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
LANA MORTON-OWENS (Cal. SBN: 233831)
GRANT B. GELBERG (Cal. SBN: 229454)
Assistant United States Attorneys
Major Frauds Section
1100 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-3547/2872
Facsimile: (213) 894-6269
E-mail:
lana.morton-owens@usdoj.gov
grant.gelberg@usdoj.gov

JS-3

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Attorneys for Plaintiff

UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

No. CR 11-00922(B)DDP (9, 16)

ORDER ON GOVERNMENT'S REQUEST FOR
DISMISSAL AS TO DEFENDANTS
THEODORE YOON AND PHIC LIM

MIKE MIKAELIAN et al.,

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Defendant.

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Based upon the government's request for dismissal of defendant

Theodore Yoon (defendant 9) and Phic Lim (defendant 16),

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IT IS HEREBY ORDERED that the Second Superseding Indictment and

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all related underlying indictments be dismissed with prejudice as to

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defendant Yoon and Lim only; and that all applicable bonds as to each

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of said defendants be exonerated.

IT IS SO ORDERED.

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October 14, 2014

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DATE

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HONORABLE DEAN D. PREGERSON

UNITED STATES DISTRICT JUDGE