United States v. Hong Vo
2013 U.S. Dist. LEXIS 152607
D.D.C.2013Background
- Federal superseding indictment (July 9, 2013) charges conspiracy (18 U.S.C. § 371), 13 bribery counts (18 U.S.C. § 201(b)(2)), and 13 visa-fraud counts (18 U.S.C. § 1546) against Hong Vo, Binh Vo, Michael Sestak, Truc Huynh, and another co‑defendant.
- Government alleges venue for the conspiracy count in D.C. under 18 U.S.C. § 3237(a) based on alleged overt acts in D.C., including Sestak’s alleged false statements to DSS agents in October 2012; venue for Counts 2–27 (bribery/visa fraud) alleged under 18 U.S.C. § 3238.
- Defendants moved to dismiss for improper venue: (1) conspiracy count — no overt act in D.C. in furtherance of an ongoing conspiracy (acts in D.C. were merely concealment after conspiracy ended); (2) bribery/visa-fraud counts — all substantive conduct occurred abroad and no joint offender was arrested in D.C.
- Key factual disputes: whether the conspiracy continued past Sestak’s departure in September 2012 (so that October false statements were in furtherance), and whether any joint offender was arrested or first brought into custody in D.C. for purposes of § 3238.
- Procedural posture: Court held hearing, received supplemental briefing; denies venue dismissal for Count 1 (conspiracy) and grants dismissal for Counts 2–27 (bribery and visa fraud).
Issues
| Issue | Government's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether venue for the conspiracy count is proper in D.C. under § 3237(a) | Overt acts in D.C. (Sestak’s October statements) were in furtherance because they concealed and thereby continued the conspiracy; plus other overt acts (e.g., Nov. transfer to Binh Vo) show continuation | Conspiracy ended when Sestak left post in Sept. 2012; October statements were post‑termination concealment and cannot support venue absent an original agreement to conceal | Denied as to Count 1 — venue may be proper; duration and whether overt acts furthered the conspiracy are factual issues for the jury, and the indictment alleges an overt act (Nov. transfer) that could support continuation |
| Whether acts of concealment (Sestak’s false statements; transfer to real estate) can be overt acts in furtherance | Concealment can further an ongoing conspiracy; the indictment alleges conduct beyond mere post‑completion concealment (e.g., transfer of proceeds) | False statements and post‑departure transfers were mere cover‑ups after the conspiracy ended and require proof of an original agreement to conceal | Government must prove either that the conspiracy continued (jury question) or that there was an express original agreement to conceal; court did not resolve express‑agreement question but rejected real‑estate purchase as sufficient concealment evidence alone |
| Whether venue for bribery and visa‑fraud counts lies in D.C. under § 3238 (arrest/first‑brought rule) | Superseding indictment returned while some defendants were in D.C.; government reads § 3238 to allow venue where a defendant was in custody when new charges were filed (offense‑specific arrest rule) | § 3238 looks to where a defendant was first restrained in connection with the substantive offense; Hong Vo was first restrained in Colorado (arrest there) and Truc Huynh was arrested in Colorado as a joint offender | Granted dismissal for Counts 2–27 — no joint offender was arrested or first brought in D.C.; Hong Vo was arrested in Colorado in connection with the same course of conduct and Truc Huynh was a joint offender when arrested in Colorado |
| Whether a material‑witness arrest can make a person a “joint offender” under § 3238 | Government suggested Truc Huynh was not a joint offender at initial material‑witness arrest | Defendants: affidavit and investigation identified Truc as coconspirator/target, so she was arrested as a joint offender in Colorado | Court held Truc Huynh was arrested in Colorado as a joint offender (material‑witness warrant identified her as coconspirator/target), supporting dismissal of Counts 2–27 in D.C. |
Key Cases Cited
- Grunewald v. United States, 353 U.S. 391 (Sup. Ct.) (acts of post‑conspiracy concealment are not in furtherance absent an express original agreement to conceal)
- Kwong‑Wah v. United States, 924 F.2d 298 (D.C. Cir.) (government bears the burden to prove venue by preponderance; venue may lie where any coconspirator committed an overt act)
- Turner v. United States, 548 F.3d 1094 (D.C. Cir.) (post‑termination concealment alone cannot extend conspiracy without evidence of an original agreement to conceal)
- Provoo v. United States, 215 F.2d 531 (2d Cir.) (venue under venue‑in‑foreign‑conduct statute may be based on the district where defendant was first restrained in connection with the offense)
- Catino v. United States, 735 F.2d 718 (2d Cir.) ("arrested" means first restraint of liberty in connection with the offense charged)
- Wharton v. United States, 320 F.3d 526 (5th Cir.) (addressed whether arrest for one offense counts as arrest for later‑added foreign‑offense charges; outcome and reasoning discussed by court)
- Salmonese v. United States, 352 F.3d 608 (2d Cir.) (overt‑act element of conspiracy may be satisfied by acts not specified in indictment where no prejudice)