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Judge upholds appeal’s dismissal

The 3rd U.S. Circuit Court of Appeals has upheld a decision by U.S. District Judge Kim R. Gibson in Johnstown to dismiss an appeal filed by a South Korean businessman who was incarcerated at the Moshannon Valley Corrections Center near Philipsburg.

Heon Seok Lee, the CEO of Kturbo Inc., a South Korean company that produced equipment for the wastewater treatment industry, was initially sentenced by U.S. District Judge Sharon Johnson Coleman in the Northern District of Illinois for wire fraud and smuggling goods into the United States.

The sentence was for 20 months, but was later reduced to one year and one day. Lee served his sentence at the private prison in Philipsburg that is used by the federal government.

According to the charges, Lee falsely represented that Kturbo’s equipment was assembled in the United States, thus qualifying for contracts under the American Recovery and Reinvestment Act.

He was convicted after an eight-day trial on five counts of wire fraud and three counts of smuggling mismarked merchandise into the United States, according to U.S. Magistrate Lisa Pupo Lenihan, assigned by Gibson to review Lee’s petition challenging his conviction.

Lee asked the District Court in Johnstown to dismiss what he called a “frivolous indictment” and claimed the District Court in Illinois lacked jurisdiction.

The government challenged Lee’s petition, claiming that he had to be in custody to ask for the District Court to review his case, and, as Lenihan reported, Lee was released from custody on Jan. 15, 2019, and, she reported, he voluntarily departed from the United States on Jan. 16, 2019.

Lee’s petition in Johnstown was filed on June 19, 2019, when he was no longer in custody.

It was pointed out that Lee is still challenging his convictions on direct appeal and many of his arguments presented to the Johnstown court are being addressed in the 7th Circuit, according to Lenihan.

She reasoned, therefore, that any other challenge by Lee to his conviction and sentence is premature.

She recommended Gibson dismiss the Lee petition because the Johnstown Court lacks jurisdiction.

Gibson adopted the magistrate’s recommendation and last week a three-judge panel of the 3rd Circuit Court of Appeals in Philadelphia upheld the Gibson ruling.

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