1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

-v- ) No. 12 CR 109

)

HEON SEOK LEE, ) Hon. Sharon Johnson Coleman

)

Defendant. )

DEFENDANT’S RULE 33 MOTION

FOR A NEW TRIAL

NOW COMES the Defendant, HEON SEOK LEE, by and through his attorneys, 

MONICO & SPEVACK, and moves pursuant to Rule 33 of the Federal Rules of Criminal 

Procedure for a new trial.

IN SUPPORT of this Motion, Defendant states:

1. Defendant is entitled to a new trial because the Government impermissibly 

amended the Indictment when it tried the case. A defendant has the right to be tried upon the 

charges actually brought by the Grand Jury. Stirone v. United States, 361 U.S. 212, 217 (1960). 

Material amendments must be made by re-submission to the Grand Jury and it is reversible error 

for the trial court to allow it at trial. United States v. McNeese, 901 F.2d 585, 601 (7th Cir. 1990), 

overruled on other grounds, United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001). An 

indictment may be amended without resubmission to the Grand Jury only if the alteration makes 

no material change and there is no prejudice to the defendant. 

A constructive amendment occurs when the offense proven at trial differs from the one 

alleged in the indictment. See, e.g., United States v. Remsza, 77 F.3d 1039, 1043 (7th Cir. 1996). 

It also occurs where the evidence produced at trial broadens the possible bases for conviction 

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 1 of 7 PageID #:2983
2

beyond that which the original indictment alleged. See, e.g., United States v. Rosin, 892 F.3d 

649, 651 (7th Cir. 1990). 

With respect to the wire fraud counts the thrust of the Indictment was that Defendant (a) 

procured contracts for KTURBO and KTURBO USA to provide turbo blowers to municipal 

wastewater facilities, and (b) falsely represented to municipal wastewater treatment facilities that 

KTURBO and KTURBO USA complied with the Buy American requirement. The Indictment 

repeats these allegations that Defendant had contracts with municipalities and the United States 

government in several places in the Indictment. See, e.g., Ind., ¶¶ 4, 6. In other words, the 

Indictment charged basically that the Defendant had entered into contracts with municipalities or 

the United States to provide turbos.

No such evidence existed: Defendant had not entered into any contracts with 

municipalities or the United States. At trial Defendant pointed this out repeatedly. The 

Government responded by effectively repudiating those allegations and arguing that it did not 

matter whether Defendant had entered into any contracts with the municipalities or the United 

States. If the Government had not constructively amended the Indictment, the Court would have 

been obligated to enter a verdict of not guilty. Defendant defended and prevailed on the case that 

was brought by the Grand Jury. Thus, the amendment here was prejudicial per se not only 

because it denied defendant his right to a grand jury but it hampered his ability to prepare and 

meet the charges at trial. See, e.g., Rosin, 892 F.3d at 651. See also United States v. Field, 875 

F.3d 130, 133 (7th Cir. 1989).

In Stirone, the defendant was convicted of unlawful interference with interstate 

commerce in violation of the Hobbs Act, 18 USC §1951. To prove the interstate commerce 

element the indictment alleged the victim’s contract was to ship sand from various points in the 

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 2 of 7 PageID #:2984
3

United States to the victim’s ready-mix concrete plant. The trial court allowed the Government 

to offer evidence of the effect on interstate commerce not only of the sand brought into 

Pennsylvania but also the interstate shipment of steel to be constructed from the ready-mix 

cement. The Supreme Court reversed the conviction on the ground that defendant was convicted 

of a crime different from one he was charged.

The constructive broadening of the Indictment occurred here as well. The Grand Jury, 

based on representations of the Government witnesses, indicted Defendant based on the theory 

that Defendant had entered into contracts with the United States and certain municipalities to 

provide blowers for various waste water projects. Accordingly, the Indictment’s key charging 

paragraph, Ind. ¶3, alleges that Defendant procured contracts to provide turbo blowers to 

municipal wastewater treatment facilities receiving Recovery Act stimulus funds and falsely 

represented to municipal wastewater treatment facilities that KTURBO would manufacture and 

deliver to the municipalities turbo blowers that complied with the “Buy American” provision of 

the Recovery Act. If it didn’t outright say so the Indictment strongly implied that Defendant had 

actually entered contracts with the municipalities themselves. At trial the Government 

essentially abandoned that theory and did not claim Defendant had entered into contracts with 

these parties, but had in fact entered into contracts with third parties who themselves were 

involved in contracts contractually subject to ARRA. Similarly, the Government effectively 

amended the Indictment when it dismissed paragraph 10 which had alleged that Defendant had 

intended to fraudulently obtain Recovery Act stimulus funds in excess of $1,337,189. These 

were constructive amendments of the Indictment; it was error per se, see, e.g., United States v. 

Floresca, 38 F.3d 706 (4th Cir. 1994), and for that reason Defendant’s convictions must be 

reversed.

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 3 of 7 PageID #:2985
4

2. Defendant is entitled to a new trial because the Government introduced improper 

“flight” evidence to support its guilty verdict. The Seventh Circuit has long adhered to the 

Supreme Court’s language to be wary of the probative value of flight evidence. United States v.

Robinson, 161 F.3d 463, 469 (7th Cir. 1998), citing Wong Sun v. United States, 371 U.S. 471, 

483 n.10 (1963). Defendant here was impermissibly prejudiced when the Government 

introduced evidence suggesting that Defendant fled the country when he supposedly learned he 

had been indicted. 

3. Defendant is entitled to a new trial because the Court erred when it offered 

Defendant a binary choice between arguing that ARRA did not apply and arguing that KTURBO 

satisfied ARRA’s substantial transformation requirements. The Court’s position was 

encapsulated during the Jury Instruction conference, where the Court impermissibly rejected 

Defendant’s jury instruction on the issue and told Defendant he could not have it both ways: He 

could not argue substantial transformation on one hand but also claim Defendant was not subject 

to ARRA. The Court allowed Defendant to argue substantial transformation generally, but 

ordered that he could not “go through the factors and say he complied with two factors or that 

this company agreed that two of the things were done. Therefore, he is not guilty. ... That is not 

part of the instruction. You cannot make reference to that.” 

Defendant was entitled to make alternative arguments. Defendant’s principal theory at 

trial was that KTURBO did not fall under the auspice of the ARRA. But Defendant had plenty 

of evidence showing that substantial transformation had occurred, and therefore KTURBO met 

the requirements nonetheless. Not allowing Defendant to do so was error.

4. Defendant is entitled to a new trial because the Court erred when it granted the 

Government’s motion to admit co-conspirator hearsay statements of individuals who were not 

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 4 of 7 PageID #:2986
5

co-schemers of the Defendant. There was additional error when the Court declined to strike the 

charges under 18 USC § 2.

5. Defendant is entitled to a new trial because the Court overruled his objections to 

the Government’s misrepresentations to the jury that the Indictment was not based on Defendant 

allegedly having contracts with municipalities or the Government even though that had been a 

fair reading of the Indictment.

6. The Defendant is entitled to a new trial because the Court would not permit 

arguments that substantial transformation could constitute an ultimate issue in the case.

7. Defendant is entitled to a new trial because the Court instructed the jury that it did 

not have to find the Defendant guilty on all charges describing the scheme. This is especially so 

where several of the charging paragraphs were different and thus the court cannot be assured the 

jury agreed unanimously that Defendant was guilty beyond a reasonable doubt on any one of the 

charges. It was the Government’s choice to indict by laying out various charges. There was 

additional error when the Court rejected Defendant’s Jury Instruction, p. 5 (Doc. #151, PgID # 

1123), which requested a jury instruction requiring unanimity on a particular false statement in 

order to convict.

8. Defendant is entitled to a new trial because the Court erred when it declined to 

give Defendant’s Special Jury Instruction No. 1 (Doc. #151, PgID #1131), which explained the 

requirements of Substantial Transformation.

9. Defendant is entitled to a new trial because it was error to instruct the jury that 

“[a]lthough an item communicated interstate need not itself contain a fraudulent representation 

or a request for money, ...” in the circumstances of this case the Government alleged emails 

attaching specific communications. The Government was required to prove what is alleged.

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 5 of 7 PageID #:2987
6

10. Defendant is entitled to a new trial because the Court erred when it declined to 

give the jury Defendant’s Special Instruction No. 2 (Doc. #151, PgID # 1132), which directed 

the jury to find Defendant not guilty if the Government failed to prove substantial 

transformation. Part of the Government’s cause of action was that Defendant falsely claimed 

articles were “made in the United States,” but where substantial transformation exists that claim 

cannot be sustained. The subject of substantial transformation was a defense the Government 

either had to disprove once raised or that the Government had to prove in the first instance. 

Giving no instruction on the issue was error either way.

11. Defendant is entitled to a new trial because the Court erred when it declined to 

give Defendant’s Special Instruction No. 3 (Doc. # 151, PgID # 1133), which instructed the jury 

that in order to find the Defendant guilty on counts 6 through 8 the Government had to prove 

beyond a reasonable doubt that Defendant himself imported the blowers and not his company.

12. Defendant is entitled to a new trial because the Court erred when it gave the jury 

Government Instruction 25-A (false representation does not have to be made directly to victim).

13. Although the Defendant did not object, Defendant is entitled to a new trial 

because the Court erred when it gave the instruction that “Any person who knowingly aids ... 

offense may be found guilty ...” which did not instruct the jury that the substantive crime must 

be proved. See, e.g., United States v. Morris, 612 F.2d 483 (10th Cir. 1989).

14. Defendant is entitled to a new trial for the reasons stated in Defendant’s Motion 

for Judgment of Acquittal, including for the reasons stated in Defendant’s pretrial motions that 

were denied by the Court.

WHEREFORE, Defendant respectfully requests that the Court grant the Defendant’s

Motion for a New Trial.

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 6 of 7 PageID #:2988
7

Respectfully submitted,

HEON SEOK LEE

By: /s/ Michael D. Monico

One of his attorneys

Michael D. Monico

Barry A. Spevack

Carly A. Chocron

MONICO & SPEVACK

20 South Clark Street

Suite 700

Chicago, Illinois 60603

312-782-8500

Attorneys for Defendant

Case: 1:12-cr-00109 Document #: 180 Filed: 05/31/17 Page 7 of 7 PageID #:2989