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United States v. Han

United States District Court, District of Columbia

August 3, 2016

UNITED STATES OF AMERICA,
v.
JEONG SEON HAN, 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 facilitate interviews of any officer or crewmember employed by [PBF] at the time such a request is made by the United States, ” to “cooperate with the United States to arrange for testimony of such employed officer or crewmember, ” and to “encourage these officers and crewmembers to cooperate with the United States in carrying out its investigation and in appearing for their scheduled testimony” (id ¶ 2);
. Because PBF “cannot exercise complete control over the ship’s officers and crewmembers, ” its “obligations in respect to ensuring any ship’s officer or crewmember remains within or returns to the jurisdiction of the U.S. District Court of the District of Columbia shall be limited to . . . requesting such ship’s officers and crewmembers to surrender their passports to the Vessel’s agent . . . for safekeeping, ” “requesting such ship’s officers and crewmembers to remain within the jurisdiction of the U.S. District Court of the District of Columbia, ” and providing the lodging, meal allowance, healthcare coverage, and transportation set forth above (id ¶ 7);
. If any officer or crewmember “refuses to surrender his passport, ” PBF “shall immediately provide actual notice” to the Government (id); and . If any officer or crewmember “requests the return of his passport, ” PBF “shall provide actual notice to the United States . . . at least 72 hours before returning the passport to the ship’s officer or crewmember” (id).

         Additionally, while PBF was required to provide notice of the Security Agreement and its provisions “to all affected ship’s officers and crewmembers, ” there is no evidence that Han or any of his shipmates were given such notice, or that they were provided with a copy of the Security Agreement, let alone a copy translated into Korean. (Id. ¶ 3). Accordingly, there is no evidence that Han was actually made aware of the fact that “[n]othing in th[e] Agreement [was] to be deemed as binding on non-parties” such as himself. (Id. ¶ 9).

         On September 10, 2015, U.S. Immigration and Customs Enforcement granted the Coast Guard’s request for Significant Public Benefit Parole (“SPBP”) on Han’s behalf, allowing him to be paroled into the United States for a period of six months. (Venue Reply Ex. 2). The SPBP explicitly states that the “REQUESTING LAW ENFORCEMENT AGENCY WILL MAINTAIN CLOSE AND CONSISTENT SUPERVISION DURING THE AUTHORIZED PAROLE PERIOD AND WILL TAKE IMMEDIATE AND APPROPRIATE MEASURE IF THE SUBJECT ABSCONDS.” (Id.) (capitalization in original).

         On October 25, 2015, Han and the other crewmembers identified in the Security Agreement were flown from American Samoa to Dulles International Airport in Virginia, with a layover in Honolulu, Hawaii. (Venue Mot. Ex. 1 ¶¶ 27-28, 30). Han’s passport - which was being held by American Samoa Immigrations after being confiscated by the Coast Guard on July 7, 2015 - was returned to him before he left American Samoa. (Venue Sur-Sur-Reply Ex. A; Venue Mot. Ex. 1 ¶ 16; Venue Opp’n at 5).

         Han declares that he was not free to go where he wanted while en route to the Washington, D.C. area, including while in Hawaii (Venue Mot. Ex. 1 ¶¶ 29, 31), and that during this time he and the other crewmembers were under the constant supervision of a PBF employee. (Venue Mot. at 4). The Government points out, however, that Han was never formally arrested in American Samoa, that he had his passport with him while in transit to the United States (as well as for several months thereafter, until on or about March 21, 2016), and that he “was not accompanied by law enforcement agents, and therefore not in custody or under arrest, ” while in Hawaii. (Venue Opp’n at 5). ...


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