United States v. Vo

• Decision Date: 17 October 2013
• Docket Number: Criminal Nos. 13–168–2 (JDB), 13–168–4(JDB).
• Citation: 978 F.Supp.2d 49
• Parties: UNITED STATES of America v. HONG VO and Binh Vo, Defendants.
• Court: U.S. District Court — District of Columbia

978 F.Supp.2d 49

UNITED STATES of America

v.HONG VO and Binh Vo, Defendants.

Criminal Nos. 13–168–2 (JDB), 13–168–4(JDB).

United States District Court, District of Columbia.

Oct. 17, 2013.

Brenda J. Johnson, Catherine K. Connelly, Mona N. Sahaf, U.S. Attorney's Office, Washington, DC, for United States of America.

Robert A. Feitel, Law Office of Robert Feitel, P.L.L.C., Sandi S. Rhee, Law Office of Sandi Rhee, Washington, DC, for Hong Vo.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Before the Court is [63] defendant Hong Vo's renewed motion to dismiss for lack of venue, which the government opposes. Defendant Binh Vo joins the motion. [ECF No. 91]. In June 2013, Hong Vo filed a motion to dismiss the initial indictment in this case for improper venue. [ECF No. 54]. Before the Court ruled on that motion, a federal grand jury returned a superseding indictment. [ECF No. 61]. Following this development, Hong Vo renewed her motion to dismiss. [ECF No. 63]. On September 13, 2013, this Court conducted a hearing on the motion. Twelve days later, Binh Vo, Hong Vo's brother and co-defendant, was arrested in the Eastern District of Virginia.¹ Pursuant to the Court's Order of September 25, 2013, Hong Vo and the government filed supplemental briefs regarding Hong Vo's motion on October 4, 2013. [ECF Nos. 85, 86]. A week later, Binh Vo filed his own motion to dismiss the indictment for improper venue, joining his sister's motion. [ECF No. 91]. Upon consideration of the various briefs, the hearing on September 13, applicable law, and the entire record herein, the Court will grant in part and deny in part defendants' motions to dismiss.

BACKGROUND

Hong Vo was arrested in Denver, Colorado on May 8, 2013, on a criminal complaint charging one count of conspiracy in violation of 18 U.S.C. § 371. Co-defendant Michael Sestak was arrested on May 13, 2013, in Los Angeles, California, also on one count of conspiracy. Codefendant Truc Huynh was arrested on a material witness warrant in Denver on May 8, 2013. Truc Huynh was held without bond and, after detention and identity hearings, she was removed to Washington, D.C. After cooperation negotiations broke down, she was arrested on a criminal complaint on June 3, 2013, which also charged one count of conspiracy. The government moved to dismiss the material witness warrant on June 4, 2013. Following a preliminary hearing and detention hearing, she was ordered held without bond. [ECF No. 52]. Co-defendant Binh Vo was apprehended in Vietnam, brought to the United States, and arraigned in this district on September 25, 2013.²

These four defendants, and one other co-defendant, were charged here in an indictment on June 11, 2013; that indictment charged one count of conspiracy. The indictment alleged that an overt act in furtherance of the conspiracy took place in this district when Mr. Sestak allegedly made false statements to Diplomatic Security Service (“DSS”) agents in D.C. on October 19, 2012, after Mr. Sestak left his Vietnam consular post in September 2012. On July 9, 2013, a federal grand jury returned a superseding indictment. In it, Truc Huynh, Hong Vo, Michael Sestak, Binh Vo, and the other co-defendant were jointly charged with one count of conspiracy to commit offenses against the United States and to defraud the United States, in violation of 18 U.S.C. § 371; thirteen counts of bribery and aiding and abetting, in violation of 18 U.S.C. § 201(b)(2) and § 2; and thirteen counts of visa fraud and aiding and abetting, in violation of 18 U.S.C. § 1546 and § 2. Mr. Sestak was also charged with one count of material false statements, in violation of 18 U.S.C. § 1001. As alleged in the superseding indictment, venue for the conspiracy count (Count 1) is established in D.C. under 18 U.S.C. §§ 3237 and 3238, while venue for the bribery and visa fraud counts (Counts 2 to 27) is established here under § 3238.

Hong Vo filed a motion to dismiss for improper venue on all counts against her, which Truc Huynh initially joined. See Minute Entry of June 26, 2013. Truc Huynh withdrew her support for the motion at the September 13 hearing, Hr'g Tr. [ECF No. 81] 4, and Mr. Sestak did not join the motion. Binh Vo later joined the motion. [ECF No. 91]. Defendants make two arguments: first, that venue is improper on the conspiracy count because no overt acts in furtherance of the conspiracy occurred in D.C.; and second, that venue is improper on the bribery and visa fraud counts because all of the alleged conduct relating to those offenses occurred abroad and no defendant was arrested as a joint offender in D.C. The Court addresses these arguments in turn.

DISCUSSION

Article III, section 2, clause 3 of the Constitution provides that the “[t]rial of all Crimes ... shall be held in the State where the said crimes shall have been committed.” The Sixth Amendment provides that criminal trials shall be held before an impartial jury “of the State and district wherein the crime shall have been committed.” And Federal Criminal Rule 18 provides that “the government must prosecute an offense in the district where the offense was committed.” The government bears the burden of proving by a preponderance of the evidence that venue is proper with respect to each count charged against the defendants. United States v. Kwong–Wah, 924 F.2d 298, 301 (D.C.Cir.1991). Venue may be proper in more than one district. Id.

I. VENUE FOR THE CONSPIRACY COUNT MAY BE PROPER IN THIS DISTRICT.

In the superseding indictment, the government alleges that venue is proper for the conspiracy count (Count 1) pursuant to section 3237(a). Under section 3237(a), “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” ³ Conspiracyis a continuing offense, so venue may lie in “any district in which some overt act in furtherance of the conspiracy was committed by any of the coconspirators.” Kwong–Wah, 924 F.2d at 301. Thus, venue on the conspiracy count is proper here if any defendant committed an overt act in furtherance of the conspiracy in D.C.

The only relevant overt acts occurring in D.C. that the government alleges were in furtherance of the conspiracy were acts of concealment: Mr. Sestak's allegedly false statements to the DSS agents in October 2012. The government contends that these acts were in furtherance of the conspiracy only because they were designed to throw off investigators and to conceal the ongoing conspiracy. Defendants correctly point out that acts of concealment of a completed conspiracy cannot be in furtherance of the conspiracy unless there was an express original agreement to conceal the conspiracy, but the parties dispute whether the conspiracy was completed when Mr. Sestak made the statements. Grunewald v. United States, 353 U.S. 391, 403–06, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). Because defendants contend (1) that the conspiracy was completed in September 2012 when Mr. Sestak left his consular post, before he made the alleged false statements, and (2) that there was no express original agreement between the defendants to conceal the conspiracy, they argue that Mr. Sestak's allegedly false statements in D.C. cannot support venue. The D.C. Circuit has noted that the question whether acts of concealment are in furtherance of the conspiracy “is not without difficulty.” United States v. Andrews, 532 F.3d 900, 910 (D.C.Cir.2008). Again, the government bears the burden of showing by a preponderance of the evidence that venue is proper.

In a line of cases exemplified by Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957),⁴ the Supreme Court addressed a vexing issue: when do acts of concealment qualify as overt acts in furtherance of a conspiracy? The answer to that question is important in several contexts, including calculation of the statute of limitations for conspiracy, admissibility under a hearsay exception for statements by coconspirators, and, as here, propriety of venue in a particular district. ⁵ The Court explained that whether acts of concealment qualify depends on when the acts occurred: before or after termination of the conspiracy. Id. at 400–09, 77 S.Ct. 963. To show that an act of concealment was in furtherance even though it occurred after the conspiracy ended, the government must prove the existence of an express original agreement to conceal the conspiracy. Id. at 405, 77 S.Ct. 963.

This rule exists for obvious reasons: otherwise, the “statute of limitations would never run until the conspirators' death, conviction, or confession.” United States v. Turner, 548 F.3d 1094, 1097 (D.C.Cir.2008). After all, rare are the conspirators who wish the detection of their criminal conspiracy. Grunewald, 353 U.S. at 406, 77 S.Ct. 963. But “[b]y no means does this mean that acts of concealment can never have significance in furthering a criminal conspiracy.” Id. at 405, 77 S.Ct. 963. Acts of concealment taken while the conspiracy is ongoing—when “the successful accomplishment of the crime necessitates concealment”—certainly may be in furtherance. Id.;United States v. Grant, 683 F.3d 639, 648–49 (5th Cir.2012) (“Efforts to conceal an ongoing conspiracy obviously can further the conspiracy by assuring that the conspirators will not be revealed and the conspiracy brought to an end.”) (distinguishing Grunewald, 353 U.S. at 403, 77 S.Ct. 963, and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949)). In Grunewald, the Court used the examples of kidnappers in hiding waiting for ransom and car thieves repainting a stolen car. Id. at 405, 77 S.Ct. 963. Without those acts of concealment, the kidnappers might not get any ransom and the car thieves might not keep the purloined car. Hence, such acts would be in furtherance of the conspiracy.

If, however, the government argues that acts of...