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April 26, 2000


The opinion of the court was delivered by: Stanley S. Harris, District Judge.


Before the Court are eight motions filed by defendants, and one unopposed motion filed by the Government.*fn1 A hearing on these motions was held on April 19, 2000.*fn2 Upon 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 also United 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. See Alvarez-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) (quoting United 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) (quoting United 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.*fn3

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." Wright 2 Fed.Prac. & Proc.Crim.2d § 304 (West Supp. 1999) (citing United 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 also United 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.*fn4 Therefore, "[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 also United 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.*fn5 He moves to dismiss the indictment pursuant to the STA.*fn6 Based 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.*fn7

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 December December 27.*fn8 Because the Court agrees with the Government's calculations in its opposition regarding excluded time under § 3161(h)(1) of the STA, the Court determines that there was no violation of the STA's 30-day deadline.

The Court similarly finds no merit in defendants' third contention to dismiss Counts 1 and 2 of the first superseding indictment, filed on February 18, 2000. Section 3161(b) mandates that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." Defendants rely on United States v. Palomba, 31 F.3d 1456, 1462-65 (9th Cir. 1994), in arguing in essence that an "offense" is a charge arising out of a statute, and therefore, the STA requires dismissal when charges based on the same statute are not brought within 30 days. Here, the new charges indeed were brought more than 30 days after the December 27 arrest, and they are based on the same statute, 8 U.S.C. § 1324, as the original charges.*fn9 The Court, determines, however, charges are not necessarily the same offenses simply because they are based on the same statute; here, the new charges are distinct offenses from the original charges, as they are brought under different subsections of 8 U.S.C. § 1324, they have different elements, proscribe different forms of conduct, and carry different penalties. At least one Court of Appeals has made this same distinction in declining to apply Palomba blindly. United States v. Bailey, 111 F.3d 1229, 1236 n. 6 (5th Cir. 1997) ("unlike the situation in Palomba, each charge in the instant action is different despite the shared reference to § 662 because the information charges a misdemeanor and the indictment charges a felony"). Cf. United States v. Napolitano, 761 F.2d 135, 137-139 (2d Cir. 1985) (holding that charges that are added after 30 days of the arrest need not be dismissed simply because they arise out of the same facts alleged in the original complaint or were known or should have been known at the time of the complaint). The Court therefore denies defendants' motion to dismiss Counts 1 and 2 of the superseding indictment.

4. Motion To Dismiss Due to the Government's Release of Material Witnesses

Over two hundred witnesses to the events on board the WFL were Chinese nationals who were returned to China; these witnesses therefore cannot testify at trial. Defendants argue that the Government's actions to return these witnesses violated the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment.

The Court disagrees. The Supreme Court has held that "[t]he mere fact that the Government deports . . . witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. . . . Sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Furthermore, the Executive Branch may promptly deport witnesses upon its "good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution." Id. at 873, 102 S.Ct. 3440. Although prompt deportation may prevent a defendant from interviewing the witnesses to determine what favorable evidence they possess, and thus, defendants are not expected to render a detailed description of the lost testimony, "this does not relieve the defendant of the duty to make some showing of materiality." Id. at 874, 102 S.Ct. 3440. Defendants do not show any bad faith by the Government, nor do they make a "plausible showing" of material and favorable testimony by the returned witnesses. The Government maintains that INS agents interviewed all the returned persons, many of whom did not furnish any information; of those who did furnish information, the INS agents took notes, which were reviewed by two Assistant United States Attorneys and found to contain no information material or helpful to the defense. Because nothing shows material or favorable testimony, the Court denies the motion.

5. Motion To Suppress*fn10

Defendant Yeh moves to suppress statements that he made to Coast Guardsman Andrew Ha on the ground that they violated his Miranda rights.*fn11 Yeh made these statements over the course of five conversations with Ha while the Coast Guard was on board the WFL between December 9 and 11, 1999. The Government concedes that defendant Yeh was not read his Miranda rights before any of those conversations. Miranda warnings are required whenever a suspect is both in custody and subject to interrogation.*fn12 See Miranda v. Arizona, 384 ...

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