UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v.

HEON SEOK LEE,

Defendant.

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Case No. 12-CR-109

Judge Sharon Johnson Coleman

ORDER

The defendant’s motion for leave to file a supplement to his motion to dismiss the 

indictment instanter [137] is granted. The defendant’s motion to dismiss the indictment for lack of 

jurisdiction [131], as supplemented, is denied because it fails to establish a defect in this Court’s 

jurisdiction. 

STATEMENT

The final pretrial deadline in this case was November 18, 2016. The present motion to 

dismiss the indictment for lack of jurisdiction [131] was filed on February 23, 2017, just over a week 

before trial.1

 A supplement to that motion [137] was filed on February 27, 2017, three days before 

trial. Although this Court has repeatedly cautioned the defendant that such supplemental filings are 

strongly disfavored, the government did not object and was prepared to address that filing at the 

pretrial conference two days later. Accordingly, this Court will consider that supplement [137] 

alongside the underlying motion [131]. 

Subject matter jurisdiction is straightforward in the criminal context. Title 18 U.S.C. § 3231 

grants original jurisdiction over “all offenses against the laws of the United States.” As the Seventh 

 1 The Court notes that, as evidenced in the docket, the defendant has filed a total of five motions to dismiss the 

indictment.

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Circuit has repeatedly held, “district judges always have subject-matter jurisdiction based on any 

indictment purporting to charge a violation of criminal law.” United States v. Bjorkman, 270 F.3d 482, 

490 (7th Cir. 2001) (emphasis in original). The question of whether a particular indictment is proper 

is a question that a judge may decide under the jurisdiction conferred by section 3231, just as a court 

retains jurisdiction over a civil case while resolving a motion to dismiss the complaint for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6). Id. Put another way, errors in a nonfrivolous indictment are incapable of depriving the Court of jurisdiction over that indictment. Id. 

Lee first contends that this Court lacks subject matter jurisdiction to determine whether a 

“substantial transformation” has occurred. This Court has subject matter jurisdiction over this case 

under 18 U.S.C. § 3231; Lee fails to identify any authority requiring a further grant of jurisdiction to 

consider specific legal questions that may arise in the course of this action. Lee’s arguments, 

moreover, are unavailing. Although it is true that the Court of International Trade is granted 

exclusive civil jurisdiction over certain matters, the Court of International Trade cannot exercise 

jurisdiction over actions not addressed by a specific jurisdictional grant. Trayco, Inc. v. United States, 

994 F.2d 832, 836 (Fed. Cir. 1993) (“We . . . conclude that if Congress had intended all importrelated matters to come within the exclusive jurisdiction of the Court of International Trade it would 

have specifically said so.”). Congress has only granted the Court of International Trade exclusive 

jurisdiction over certain civil actions. Lee points to, and this Court is aware of, no legislation 

providing the Court of International Trade with criminal jurisdiction or, for that matter, jurisdiction 

to issue advisory opinions to criminal courts. The jurisdiction of the Court of International Trade 

therefore poses no bar to this Court’s exercise of jurisdiction pursuant to section 3231 in this case. 

Lee’s remaining substantive arguments raise various legal challenges to the sufficiency of the 

charges against him. Summarizing loosely, Lee argues that the Buy America provision did not apply 

to him as a result of language contained in ARRA’s interpreting regulations and the World Trade 

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Organization on Government Procurement, that the government failed to establish Lee’s 

contemporaneous intent to defraud at the time of contract formation, that the government failed to 

charge Lee with aiding and abetting, that it was impossible for Lee to personally obtain ARRA 

funds, and that the indictment failed to sufficiently allege fraud against municipalities and the United 

States due to an absence of privity of contract. These arguments, however, amount to claims that 

the indictment is defective because it fails to state an offense. Although they may call into question 

the sufficiency or viability of the charges against Lee, none of them raise the only question that this 

Court may timely consider: whether the indictment, on its face, charges a violation of federal law. It 

unquestionably does. This Court therefore has jurisdiction under 18 U.S.C. § 3231. Bjorkman, 270 

F.3d at 490. Because the time for pretrial motions has long since passed, this Court declines to 

consider Lee’s arguments to the extent that they argue that the indictment should be dismissed on 

non-jurisdictional grounds. 

As a final matter, this Court notes that Lee raises a perfunctory argument that this matter 

must be dismissed because the government has improperly amended the indictment. Lee, however, 

fails to offer any authority calling this Court’s prior determinations on this issue into question. To 

the contrary, the sole authority that he cites further supports this Court’s holdings. See United States 

v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014) (“[T]he determination of whether a constructive 

amendment has been effected requires sensitivity to both the jury instructions as a reflection of the 

indictment, and to the nature of the proof offered at trial.”). This Court therefore declines to 

reconsider its prior rulings. 

SO ORDERED.

SHARON JOHNSON COLEMAN

United States District Court Judge 

DATED: March 2, 2017

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