U.S. v. Hsin-Yung

• Decision Date: 26 April 2000
• Docket Number: No. Crim.No.99-425(SSH).,Crim.No.99-425(SSH).
• Citation: U.S. v. Hsin-Yung, 97 F.Supp.2d 24 (D. D.C. 2000)
• Parties: UNITED STATES of America v. Yeh HSIN-YUNG, et al., Defendants.
• Court: U.S. District Court — District of Columbia

97 F.Supp.2d 24

UNITED STATES of America v.Yeh HSIN-YUNG, et al., Defendants.

No. Crim.No.99-425(SSH).

United States District Court, District of Columbia.

April 26, 2000.

COPYRIGHT MATERIAL OMITTED

Kenneth W. Cowgill, Joseph Valder, Asst. U.S. Atty.'s, U.S. Attorney's Office, for District of Columbia, Washington, DC, for plaintiffs.

W. Gregory Spencer, Federal Public Defender, Washington, DC, Allen Orenberg, Storch & Brenner, Washington, DC, Joanne Maria Vasco, Hyattsville, MD, Michael McCarthy, McCarthy & Sullivan, Bowie, MD, for defendants.

OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

Before the Court are eight motions filed by defendants, and one unopposed motion filed by the Government.¹A hearing on these motions was held on April 19, 2000.²Upon consideration of the motions, the oppositions thereto, and the record, the Court denies defendants' motions with the exception of defendants' motion to suppress, which the Court denies in part and grants in part; the Court also grants the Government's unopposed motion.The Court addresses briefly each motion in turn.As the parties are familiar with the facts alleged, the Court will not discuss them at the beginning, although it will discuss relevant facts as necessary for each motion.

1.Motion To Dismiss for Lack of Subject Matter Jurisdiction

Defendants move to dismiss the indictment for lack of subject matter jurisdiction.In support of their motion, defendants argue that applicable principles of international and constitutional law bar the United States ("U.S.") from asserting jurisdiction over a foreign vessel traveling on the high seas.The Court disagrees with defendants' characterization of the Wing Fung Lung("WFL") as a "foreign" vessel because the evidence indicates that it was a "stateless" vessel; no flag or other indicium of nationality was apparent on the outside of the WFL, the Coast Guard found flags from five different countries on board the WFL, and the WFL's claim of Taiwanese registry could not be confirmed or denied by Taiwan, which reported that a vessel with the same name was once registered with it but had been destroyed four years ago.See, e.g., United States v. Alvarez-Mena,765 F.2d 1259, 1264 n. 8(5th Cir.1985)(vessel that falsely claims a nationality is deemed to be stateless);see alsoUnited States v. Rosero,42 F.3d 166, 171-72 & n. 12(3d Cir.1994)(discussing criteria on statelessness and collecting cases).Indeed, based on this information, the U.S. Government assimilated the ship to stateless status shortly after the Coast Guard boarded the vessel.It is well-settled that international law permits any state to subject stateless vessels on the high seas to its jurisdiction, and the majority of courts hold that this exercise of jurisdiction is valid even in the absence of a nexus between the stateless vessel and the country asserting jurisdiction.SeeAlvarez-Mena,765 F.2d at 1265;United States v. Marino-Garcia,679 F.2d 1373, 1383(11th Cir.1982).Because the U.S. "has authority to treat stateless vessels as if they were its own,"United States v. Smith,680 F.2d 255, 258(1st Cir.1982), the Court's exercise of jurisdiction is proper under international law.

The Court's exercise of jurisdiction over defendants is also constitutional.It is well-settled that the criminal immigration laws of the U.S. apply extraterritorially.See, e.g., United States v. Chen,2 F.3d 330, 333(9th Cir.1993)(quotingUnited States v. Aguilar,883 F.2d 662, 692(9th Cir.1989)).And, where a defendant's "attempted transaction is aimed at causing criminal acts within the United States," the exercise of extraterritorial jurisdiction over the defendant is consistent with the dictates of due process.United States v. Davis,905 F.2d 245, 249(9th Cir.1990)(quotingUnited States v. Peterson,812 F.2d 486, 493(9th Cir.1987)).In this case, the indictment alleges that defendants attempted to violate U.S. immigration laws by smuggling aliens into the U.S., and the record supports a finding that the WFL's intended destination was the U.S.Because defendants' alleged criminal transaction would have had a direct effect in the U.S., the Court's exercise of jurisdiction over them is constitutional.Accordingly, defendants' motion to dismiss for lack of jurisdiction is denied.³

2.Motion To Dismiss Indictment For Improper Venue

Defendants move to dismiss the indictment for improper venue.Defendants do not dispute that 18 U.S.C. § 3238 governs venue for offenses not committed in any district:

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 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.

Defendants construe the statute as allowing venue to lie in the District of Columbia only if defendants were not first arrested or brought into another district and if none of the defendants is known to have resided in another district.Because defendants were first brought into Houston, Texas, defendants contend that the Southern District of Texas is the only proper venue.Alternatively, defendants assert that venue was not established in the District of Columbia when the Government filed informations here on December 20 and 27, 1999, before defendants were brought into any district, because those informations are null documents;Federal Rule of Criminal Procedure 7(a) and (b) provides that a felony may be prosecuted by information only upon waiver by the defendant, but the Government did not obtain the requisite waivers before filing the informations.

First, the Court declines to adopt defendants' construction of the statute.Although the D.C. Circuit has not addressed the construction of § 3238, the Court is persuaded by other circuits which have concluded that "[t]he two clauses of the statute must be read in the disjunctive."Wright2 Fed.Prac. & Proc.Crim.2d § 304(West Supp.1999)(citingUnited States v. Hilger,867 F.2d 566, 568(9th Cir.1989);United States v. Layton,855 F.2d 1388, 1410-11(9th Cir.1988), rev'd on other grounds).See alsoUnited States v. Fraser,709 F.2d 1556(6th Cir.1983);United States v. McRary,616 F.2d 181, 185(5th Cir.1980);United States v. Hay,376 F.Supp. 264, 268 n. 2(D.Colo.1974).The two clauses provide alternative proper venues.⁴Therefore, "[i]f the latter provision is relied on, and defendant is indicted before he is brought into the United States, he may be tried in the district in which he was indicted regardless of whether it is the district in which he is first brought into the United States."Charles A. Wright & Arthur R. Miller, 2 Fed.Prac. & Proc.Crim.2d § 304(West 1982).Defendants therefore may be tried in the District of Columbia, even though they were subsequently brought into a different district, if the informations filed against them here are valid.

The Court concludes that the informations are valid and therefore establish venue in the District of Columbia.Defendants misconstrue Fed.R.Crim.P. 7."Rule 7(b) does not prohibit the filing of an information in the absence of waiver of indictment by the defendant.Instead, the rule proscribes prosecution without waiver."United States v. Cooper,956 F.2d 960, 962(10th Cir.1992)(emphasis in original).See alsoUnited States v. Burdix-Dana,149 F.3d 741, 742(7th Cir.1998)("Rule 7(b) does not forbid filing an information without a waiver; it simply establishes that prosecution may not proceed without a valid waiver.");Charles A. Wright & Arthur R. Miller, 1 Fed.Prac. & Proc.Crim.3d § 122(West 1999).The Court therefore "do[es] not believe that the absence of ... waiver makes the filing of an information a nullity."Burdix-Dana,149 F.3d at 742.This case is not being prosecuted by information, but rather by indictment which subsequently was returned.The Court finds that the informations are legitimate charging documents that satisfy § 3238, and that venue is proper in the District of Columbia.

3.Motion To Dismiss Indictment Pursuant to the Speedy Trial Act

Although all the defendants waived the Speedy Trial Act ("STA"), in court either on February 22 or 23, defendant Li now seeks to retract his waiver.⁵He moves to dismiss the indictment pursuant to the STA.⁶Based on the arguments presented in the pleadings and at the April 19 hearing, Li makes three allegations: (1) the Government is in continuing violation of the STA because the information, as well as the arrest warrants based on the information, were invalid; (2)he was not indicted within 30 days after his arrest because he claims he was "arrested" on December 9, 1999, when the Coast Guard boarded the WFL, not the date of his formal arrest on December 27, 1999; and (3) if the Court finds that Li was not arrested until December 27, 1999, Counts 1 and 2 of the superseding indictment must be dismissed because they are based on the same statute which formed the basis of the original indictment but were not contained therein.⁷

First, as just discussed, the informations filed were not null documents and thus, the arrest warrants are valid as well.Second, Li was not "arrested" when the Coast Guard boarded the WFL for purposes of the STA.The D.C. Circuit has established that "only an arrest in connection with federal charges triggers § 3161(b) of the Speedy Trial Act."United States v. Mills,964 F.2d 1186, 1193(D.C.Cir.)(1992)(en banc);United States v. Rezaq,899 F.Supp. 697, 705(D.D.C.1995).Li was not arrested pursuant to a warrant in connection with federal charges until...