United States v. Han

• Decision Date: 03 August 2016
• Docket Number: Criminal Action No. 16–cr–71 (TSC)
• Citation: 199 F.Supp.3d 38
• Parties: UNITED STATES of America, v. Jeong Seon HAN, Defendant.
• Court: U.S. District Court — District of Columbia

199 F.Supp.3d 38

UNITED STATES of America,

v.Jeong Seon HAN, Defendant.

Criminal Action No. 16–cr–71 (TSC)

United States District Court, District of Columbia.

Signed August 3, 2016

Frederick Walton Yette, U.S. Attorney's Office, Kenneth E. Nelson, U.S. Department of Justice, Washington, DC, for United States of America.

Stephen J. Darmody, Hollingsworth LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Defendant Jeong Seon Han is a South Korean national who formerly served as the Chief Engineer aboard the Pacific Breeze , a U.S.-flagged commercial fishing vessel. Han was indicted in this district in April 2016 on the following three charges:

1) Knowing Failure to Maintain Accurate Oil Record Book—Act to Prevent Pollution from Ships on or about December 4, 2014, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25 ;

2) Knowing Failure to Maintain Accurate Oil Record Book—Act to Prevent Pollution from Ships on or about June 29, 2015, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25 ; and

3) Discharge Without Operating Oil Separating Equipment—Act to Prevent Pollution from Ships, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.10(b).

(Indictment at 6-8).

Before the court are Han's two motions for dismissal of the Indictment—one based on improper venue (the "Venue Motion"), and another based on failure to state an offense (the "FTSO Motion").¹

Upon consideration of Han's Venue Motion, the parties' briefs in support thereof and in opposition thereto, and the parties' arguments at the June 21, 2016 motions hearing, the Venue Motion is hereby GRANTED . Accordingly, the Indictment against Han is hereby DISMISSED WITHOUT PREJUDICE , and the FTSO Motion is hereby DENIED AS MOOT .

I. BACKGROUND

a. The Applicable Regulatory Regime

The United States is part of an international regime called the International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978, Feb. 17, 1978, 94 Stat. 2297, 1340 U.N.T.S. 61 ("MARPOL"), which regulates oil discharge from vessels at sea. MARPOL aims to reduce pollution of the marine environment by specifying how ships are to dispose of certain wastes, including oil. Among other things, MARPOL prohibits vessels from discharging oily wastewater into the sea unless it is first processed through filtration equipment, and requires that such discharges be recorded in an oil record book that is available for inspection upon entry into port. MARPOL was enacted into U.S. law in 1980 by the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901, et seq. ("APPS"), which makes it a crime for any person to knowingly violate MARPOL, APPS, or regulations promulgated thereunder by the U.S. Coast Guard.

b. The Coast Guard's Investigation In American Samoa

The Pacific Breeze is a U.S.-flagged commercial fishing vessel owned and operated by Pacific Breeze Fisheries, LLC ("PBF"), a U.S.-domiciled company based in Guam. (Venue Mot. Ex. 1 ¶ 7; Venue Mot. Ex. 5 ¶ A). At the time of the events in question, the Pacific Breeze 's captain was American citizen Michael Sundquist. (Venue Mot. at 4 n.2; Mot. to Amend Conditions of Release of Material Witnesses at 4 n.1, In re Detained Material Witness Seafarers , No. 1:16–mc–00961–TSC (D.D.C. May 4, 2016), ECF No. 1). On June 30, 2015, the Pacific Breeze arrived in Pago Pago, American Samoa, a U.S. territory, to unload its catch before undergoing maintenance. (Venue Mot. Ex. 1 ¶¶ 9-10). The ship was also scheduled for an annual inspection by the U.S. Coast Guard about a week later, on July 7, 2015. (Id. ¶ 11).

The parties agree that Han served as Chief Engineer of the Pacific Breeze from November 2014 until around the time it arrived in American Samoa.² Han declares that he was planning to fly back to South Korea from American Samoa on July 6, 2015, but was rebooked on a July 8, 2015 flight after his original flight was delayed. (Id. ¶ 14). Thus, he was originally scheduled to leave American Samoa the day before the Coast Guard inspection began, but was rescheduled to leave the day after the inspection began. After his flight was delayed, Han decided to remain onboard the Pacific Breeze to help his successor prepare for the inspection. (Id. ¶ 15).

During the inspection, a Coast Guard official confiscated the passports of everyone on board the ship, including Han. (Id. ¶ 16). It appears that the crewmembers' passports were then given to American Samoa Immigration officials, who held them for the remainder of the crew's stay in American Samoa. (Venue Sur-Sur-Reply Ex. A) ("[D]uring the inspection, and after the customs hold was in place, American Samoa Immigrations possessed the crew's passports. The passports were returned to the crew when they departed for the U.S.").³ Sometime prior to his rebooked July 8, 2015 flight, Han asked a Coast Guard official "if he could return to South Korea because he had a flight booked." (Id. ). Han's request was denied on the basis that the Coast Guard "was conducting an inspection, he was a part of the crew, and [the Coast Guard] may [have] need[ed] him to answer questions." (Id. ).

On the first day of the inspection, July 7, 2015, U.S. Coast Guard Sector Honolulu was notified that the inspection had "identified deficiencies related to oil/oil waste management and recordkeeping," as well as "an inoperable oil water separating system," on board the vessel. (Venue Mot. Ex. 2). One week later, on July 14, 2015, the Coast Guard's Captain of the Port for Honolulu issued an order exercising control over the vessel. (Id. ). The order stated that the Pacific Breeze was prohibited from leaving port until it could show "proof that the oily water separating equipment" met applicable standards and could "demonstrate proper oil & oil waste management, proper recordkeeping for oil & oil waste management, and proper operation of the oily water separating equipment." (Id. ).

The Coast Guard's inspection lasted until August 5, 2015. (Venue Mot. Ex. 1 ¶ 20). Han declares that he "was not allowed to leave the vessel" for the approximately one month that "the Coast Guard's inspection was in progress." (Id. ¶¶ 21-22).⁴ Moreover, during the pendency of the investigation, Han repeatedly asked to leave American Samoa and return to South Korea, but his requests were denied. In addition to his request to leave on his rebooked July 8, 2015 flight, as mentioned above, the record includes a July 21, 2015 email—sender and recipients redacted—which states as follows: "Chief Engineer [REDACTED] want to leave to Korea asap. Much appreciated your help." (Venue Reply Ex. 1). Additionally, the record shows that, even after the inspection was completed, "the Captain of the vessel ... asked if ... Han could depart," which request was again denied. (Venue Sur-Sur-Reply Ex. A).

On August 5, 2015, the Captain of the Port for Honolulu notified the Pacific Breeze via letter that the Coast Guard had "exercised its authority, in agreement with the local government in American Samoa, to withhold [the vessel's] American Samoa Customs departure clearance" because it had determined that reasonable cause existed "to believe the vessel, its owner, operator, or person in charge may be subject to criminal or civil penalties for violations of" MARPOL and APPS. (Venue Mot. Ex. 3). The letter also stated that the Coast Guard would "request American Samoa Customs departure clearance be granted upon execution of a security agreement including the filing of a surety bond or other satisfactory surety and other pledges and promises." (Id. ).

The next day, August 6, 2015, the Legal Officer for the Fourteenth Coast Guard District wrote a letter to the Attorney General of American Samoa asking him to prohibit six individuals, including Han, from leaving American Samoa until a security agreement was executed between the United States and PBF. (Venue Mot. Ex. 4) (names redacted, but listing "Chief Engineer; Nationality: Republic of Korea"). The letter stated that the Coast Guard had determined that "reasonable cause exists to believe the vessel, its owner, operator, or person in charge may be subject to criminal penalties for violations of the MARPOL Protocol and [APPS], and other relevant laws and regulations." (Id. ). Around this same time, "an immigration hold was placed on the crew [of the Pacific Breeze ] by American Samoa Immigrations," presumably as a result of the Coast Guard's request. (Venue Sur-Sur-Reply Ex. A).

c. Han's Transportation To The United States Pursuant To The Terms Of A Security Agreement Between The U.S. Government And His Employer

On September 3, 2015, a security agreement was signed between PBF and the United States, which allowed the Pacific Breeze to be released in exchange for PBF posting a surety bond of $400,000 (the "Security Agreement"). (Venue Mot. Ex. 5). The only parties to the Security Agreement were PBF and the U.S. Coast Guard. (Id. ). The Security Agreement states that "[n]othing in this Agreement is to be deemed as binding on non-parties" such as Han or the other crewmembers identified therein. (Id. ¶ 9).

The Security Agreement contains a number of provisions that are relevant here, including that:

• "At the request of the U.S. Coast Guard acting on behalf of the United States," Han and the other crewmembers identified therein "will remain within ... the jurisdiction of the U.S. District Court of the District of Columbia" (id. ¶ 3);

• The United States will secure the immigration status necessary to bring the crewmembers to the Washington, D.C. area, and PBF will provide transportation costs from American Samoa to the Washington, D.C. area, provide financial support to the crewmembers while they are in the Washington, D.C. area (including reasonable lodging, healthcare coverage, and a daily meal allowance), and inform the Government of where the crewmembers are housed in the Washington, D.C. area (id. );

• PBF "agrees to

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