U.S. v. Ong

• Decision Date: 22 December 2010
• Docket Number: Criminal Case No. 1:10–CR–352–01–JEC.
• Parties: UNITED STATES of America,v.JOHN DENNIS TAN ONG, Defendant.
• Court: U.S. District Court — Northern District of Georgia

762 F.Supp.2d 1353

UNITED STATES of America,

v.JOHN DENNIS TAN ONG, Defendant.

Criminal Case No. 1:10–CR–352–01–JEC.

United States District Court, N.D. Georgia, Atlanta Division.

Dec. 22, 2010.

Tracia M. King, James R. McHenry, III, U.S. Attorney's Office, Atlanta, GA, for United States of America.John Aspinwall Garland, Garland, Samuel & Loeb, P.C., Atlanta, GA, for John Dennis Tan Ong.

ORDER

JULIE E. CARNES, Chief Judge.

The above entitled action is presently before the Court on the Magistrate Judge's Report and Recommendation [31] recommending granting the Government's Motion to Revoke Order Granting Pretrial Release [11]. No Objections to the Report and Recommendation [31] have been filed.

IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate Judge's Report and Recommendation [31] GRANTING the Government's Motion to Revoke Order Granting Pretrial Release [11]. The defendant shall be detained pending the resolution of the charges against him.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation (“R & R”) of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. CrR. 58.1(A)(3)(a), (b). A copy of the R & R and this order shall be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections to the R & R within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. See United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir.1990). The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the R & R may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983).

Pursuant to 18 U.S.C. § 3161(h)(1)(H), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act (“the Act”), whether or not objections are actually filed. If objections to this R & R are filed, the Clerk is DIRECTED to EXCLUDE from the computation of time all time between the filing of the R & R and the submission of the R & R, along with any objections, responses and replies thereto, to the District Judge. 18 U.S.C. § 3161(h)(1)(D), (H); Henderson v. United States, 476 U.S. 321, 331, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Mers, 701 F.2d 1321, 1337 (11th Cir.1983). The Clerk is DIRECTED to submit the R & R with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 29th day of November, 2010.

UNITED STATES MAGISTRATE JUDGE'S NON–FINAL REPORT AND RECOMMENDATION

This matter is before the Court on the Government's motion to revoke the order granting Defendant Ong pretrial release. [Doc. 11]. For the following reasons, the undersigned RECOMMENDS that the motion be GRANTED.

Introduction

On August 17, 2010, a Grand Jury in this District indicted Ong and Ronnel Rivera ¹ for conspiring to violate the Arms Export Control Act, ( 22 U.S.C. § 2778 et seq.), in violation of 18 U.S.C. § 371, (Count One); violation of the Arms Control Export Act, ( 22 U.S.C. § 2778(b)(2), (c)), and its implementing regulations ( 22 C.F.R. §§ 121.1, 123.1, 127.1), (Count Two); and conspiring to violate the money laundering laws, in violation of 18 U.S.C. § 1956(h), (Count Three). [Doc. 1].

Ong was arrested in the District of Hawaii on September 17, 2010. [Doc. 10]. He appeared before United States Magistrate Judge Leslie E. Kobayashi in that District on September 20, 2010. ( See D. Hawaii Docket Sheet at Doc. 17–5 at 2, entry 2). The government moved to detain Ong, ( id. at entry 3). On September 23, 2010, Judge Kobayashi conducted a detention hearing, after which she ordered that Ong be released on a $25,000 cash bond and placed him into the custody of his wife, Pauline Ong, of Burnaby, British Columbia. Judge Kobayashi delayed Ong's release until an ICE detainer was withdrawn and/or Ong was released from ICE custody. ( Id., Doc. 17–5 at 3, entry 6).

On September 27, 2010, the government filed the instant motion. [Doc. 11]. Judge Kobayashi's order of release was stayed by order of United States District Judge William S. Duffey, Jr. [Doc. 12].² Ong was transferred to this District. The matter was referred to the undersigned for a hearing and preparation of a Report and Recommendation.³

Facts

The Pretrial Services Report (PTSR) reflects that Ong is 36 years old and was born in the Philippines. He moved to Canada at age 12 and became a Canadian citizen. He has lived in British Columbia for 24 years. He has resided since August 2010 at 801–6188 Wilson Avenue in Burnbary, British Columbia, with his wife, Pauline, whom he married in 2004. They are purchasing their home. PTSR at 1, 2. Ong's parents and brother reside in the Philippines, and a sister resides in both Canada and the Philippines. Id.

At the hearing before the undersigned, the government explained that on September 17, 2010, Ong left Vancouver, Canada, en route to Honolulu. At the Vancouver International Airport, U.S. Customs and Border Patrol (CBP) officers admitted him to the United States on a non-immigrant visa. The instant indictment was sealed, so these CBP officers were unaware of the pending charges. However, upon Ong's arrival at the Honolulu International Airport, he was arrested on the arrest warrant issued following the return of the indictment. ICE lodged a detainer with the U.S. Marshal. [ See also Doc. 24 at 2–3].

The PTSR states that Ong has no immigration status in the United States, and is the subject of an ICE detainer. ICE agents seized Ong's Canadian passport upon his attempted entry into the United States in Hawaii. PTSR at 2.

Ong told Pretrial Services that he has been employed as an automobile exporter since April 2007 and earns $2,500 per month. Id.⁴

At the hearing before the undersigned, the government described the acts underlying the charges in the indictment, including its contention that the items Ong was selling were various parts for machine guns, Govt. Exh. 1, which required appropriate export licenses and some of which were destined for Mindanao Island in the Philippines, a site as to which the U.S. Department of State had issued a travel warning due to “continuing threats due to terrorist and insurgent activities....” Govt. Exh. 2.⁵

However, the government's main argument at the evidentiary hearing was that Ong was a risk of nonappearance due to his extensive ties to the Philippines, his frequent travel to that nation and other countries (Thailand, the Netherlands, France, Turkey, Egypt and China (Hong Kong and Macao), his lack of lawful status in the United States, his likely removal from the United States because he was not admitted to this country, and the difficulties of insuring his successful extradition from Canada in the event that the release order was affirmed and Ong was allowed to reside in Canada.

In response, Ong offered to increase the amount of the bond required by Judge Kobayashi. He also presented the testimony of his brother-in-law, Daniel Ho, who resides in British Columbia and is employed as an importer of Chinese furniture, primarily as to Ong's decent character; Juanita Castenada, a medical doctor in Ohio who offered to post the equity in her home as further security for Ong's bond; and Pauline Ong, the defendant's wife, a registered nurse. Ong also presented a series of letters of relatives and friends attesting to his good character and trustworthiness. Deft. Exh. 2. He further agreed to waive extradition from Canada and sign any documents needed to accomplish a valid waiver.

In response, the government presented a legal opinion letter from the Canadian Department of Justice, opining that the Canadian Extradition Act does not recognize prospective waivers of extradition. Govt. Exh. 6.

The undersigned sought briefs from the parties as to whether there was a possibility that Ong could be granted a “conditional release.” Under this scenario, Ong would be released to ICE custody. If immigration authorities granted him a bond pending removal proceedings, then Ong would be required to reside in Atlanta under electronic monitoring. However, he would be returned to Marshal's custody if the immigration authorities attempted to remove him from the United States. The Court also sought additional support from Ong that prospective waivers of extradition executed in United States courts were enforceable in extradition proceedings in Canada.

Contentions of the parties

The government argues that the Court's suggestion of a conditional bond is not authorized under federal law.⁶ It contends that if Ong is subject to removal, immigration authorities must remove him from the United States, and he can re-enter the United States only subject to the parole authority exercised by the Attorney General or Secretary of the Department of Homeland Security (through CBP). Although conceding that it could find no authority one way or another, the government argues that any “conditional release” order would be akin to the Court asking the Attorney General or an administrative agency to take a specific action which is not allowed by law. [Doc. 24 at 9]. Moreover, the government argues that since Congress has legislated that no court can review alien parole decisions, the District Court lacks authority to review any denial of parole to Ong and, therefore, “it follows that the District Judge would also lack authority to order CBP to grant Ong parole in the first instance.” [ Id. at 14]. The government then...