U.S. v. Biao, 98-CR-2812.
| Decision Date | 18 May 1999 |
| Docket Number | No. 98-CR-2812.,98-CR-2812. |
| Citation | 51 F.Supp.2d 1042 |
| Parties | UNITED STATES of America, Plaintiff, v. Chen BIAO, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
Steven F. Hubachek (argued), Julie A. Blair, Federal Defenders of San Diego, Inc., San Diego, California, Robert L. Swain, San Diego, California, for defendants.
Charles G. LaBella, United States Attorney, John H. Gomez (argued), Jonah H. Goldstein (argued), Assistant United States Attorneys, Office of the United States Attorney, San Diego, California, for plaintiff.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF VENUE
The defendants move to dismiss the superseding indictment for lack of venue. The venue statute at issue, 18 U.S.C. § 3238, governs venue for federal offenses committed on the high seas. Two questions are presented: (1) whether the defendants waived their challenge by failing to raise it until the close of the Government's case; and (2) whether the filing of the original indictment before the defendants were brought to this district for prosecution precludes venue in this district under the circumstances of this case. For the reasons set forth below, the Court holds that the motion is timely, but fails on the merits. Accordingly, the motion is DENIED.
On or around August 27, 1998, the Coast Guard stopped and detained a fishing boat called the Chih Yung in international waters, approximately 100 miles off the coast of Baja California, Mexico and approximately 100-150 miles from San Diego. The Chih Yung was detained and searched with the consent of the captain. The Coast Guard officers discovered over 150 Chinese passengers, most of whom were hidden from view below deck in a fish hold, as well as other people above deck who appeared to be part of the crew. The Chih Yung was detained on the high seas for several weeks as federal authorities explored alternatives for resolving the situation short of bringing the Chih Yung to the United States.
Meanwhile, the Government quickly initiated a criminal investigation of the apparent smuggling enterprise. This culminated in the indictment of the defendants by a federal grand jury in this district on September 15, 1998. The defendants were charged with unlawfully bringing or attempting to bring aliens to the United States and aiding and abetting such offenses. 8 U.S.C. §§ 1324(a)(1)(A)(i) & (a)(1)(A)(v)(II). The Government alleges that the defendants, all of whom were on the ship when it was stopped on the high seas, were involved in the smuggling operation. The ship and the defendants were brought into San Diego on September 18, 1998, about 72 hours after the indictment was returned. On January 29, 1999, a superseding indictment was filed adding charges of attempting to bring aliens to the United States for commercial advantage and private financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and also adding charges of conspiracy. The original indictment was recently dismissed in its entirety.1 The case went to trial on March 9, 1999. Just before the close of the Government's evidence, the defendants filed this motion challenging the propriety of venue in this district.
The Government contends that the defendants waived any attack on venue by not raising it before trial. As a general matter, a motion to dismiss for lack of venue may be brought before the close of the Government's case, as occurred here. Hanson v. United States, 285 F.2d 27, 28 (9th Cir.1960). However, where the indictment is defective on its face, any objection is waived if not raised before trial. Id.; United States v. Marsh, 144 F.3d 1229, 1242 (9th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 428, 142 L.Ed.2d 348 (1998); United States v. Douglas, 996 F.Supp. 969, 974 (N.D.Cal.), appeal dismissed, 161 F.3d 15, 1998 WL 551985 (9th Cir.1998) (unpublished table decision). In the case of a pretrial objection to venue, the indictment's allegations must be taken as true and extrinsic evidence cannot be considered. United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996); United States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir.) (following Jensen), cert. denied, ___ U.S. ___, 118 S.Ct. 351, 139 L.Ed.2d 272 (1997).
Here, the indictment does not affirmatively allege a basis for venue in this district. Nor are there allegations that are inconsistent with venue in this district. For example, as to the conspiracy counts added in the superseding indictment, venue theoretically could be based on an overt act committed in this district by an unindicted coconspirator. This was not ascertainable from the face of the indictment. Therefore, the Court agrees with the defendants that this is a case in which venue was not pleaded at all. The question, then, is whether this omission is a defect on the face of the indictment for purposes of raising the issue pretrial under pain of waiver. The Court holds that the defendants have not waived their challenge. A pretrial motion to dismiss for lack of venue would have been denied, because an indictment does not have to plead a basis for venue. FED.R.CRIM.P. 7(c); Carbo v. United States, 314 F.2d 718, 733 (9th Cir.1963) ( Rule 7(c)).2
To be sure, there is something to the Government's position that the defendants knew from the outset of their ability to raise venue as a possible issue — due to, among other things, the detention of the Chih Yung on the high seas. Nonetheless, under Jensen, extrinsic evidence cannot be considered in resolving a pretrial motion challenging venue. The inquiry is limited to the adequacy of the pleading. Since there was no pleading flaw here, the defendants' motion is timely. Cf. Douglas, 996 F.Supp. at 974-75 ().3
The relevant venue statute provides as follows:
The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.
18 U.S.C. § 3238.4 The Southern District of California would appear undisputedly to meet the requirements of the first clause because the defendants were "first brought" to this district. The defendants contend that the issue is not so simple, however. Noting that the original indictment was filed before they were brought to this district, the defendants submit that (1) the "first brought" provision — the language before the semicolon — does not apply, and (2) they may therefore be tried only in the District of Columbia or the Central District of California, where former codefendant Ho Ming Hui last resided in 1988.
As a preliminary matter, the Court disagrees with the defendants that venue would lie in the Central District of California because of former codefendant Ho's distant connection to that district.
At oral argument, the parties debated the proper definition of "last known residence," as that phrase is used in the second clause of § 3238. As discussed further below, the "last known residence" basis for venue was enacted to enable the Government to preserve its ability to prosecute an offender who is outside the United States. The defendants maintain that "last known residence" refers to last place of residence in the United States, irrespective of when the offender last lived there. The problem with this interpretation is that some nexus beyond any connection to the particular district, at any time, is required. "Last known residence" is "predicated on consistent, albeit somewhat transient, contact with an American `home base.'"5 There is a point when the connection between the offender and the district of last known residence becomes too attenuated to support venue in that district. No one would contend, for example, that a 30-year-old offender who was born and lived briefly in the Southern District of California, but moved permanently to Canada at the age of three, would be subject to venue in this district under the "last known residence" provision. Accordingly, even if former codefendant Ho's last known American residence was in the Central District of California, ten years ago, this would not support venue in that district because he no longer was known to reside there and his last known residence, at this point, is Taiwan.
The defendants assert that a prior-filed indictment renders the "first brought" clause of § 3238 a nullity. For this proposition, the defendants rely on two Ninth Circuit decisions construing § 3238, United States v. Layton, 855 F.2d 1388 (9th Cir.1988) and United States v. Hilger, 867 F.2d 566 (9th Cir.1989). The defendants' challenge requires careful review of this decisional law.
In Layton, an indictment was filed in the district of the offender's last known residence (the Northern District of California) before the offender entered the United States. Subsequently, the offender was "first brought" to a different district (the Eastern District of New York). Layton, 855 F.2d at 1410. He was then taken to California and tried and convicted on the indictment that had been filed in the Northern District of California. The contention on appeal was that he should have been tried in the Eastern District of New York because he was "first brought" to that district. Id. Turning back that argument, the Ninth Circuit held that when an...
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