UNITED STATES of America v. HONG VO, Defendant.
Criminal No. 13-168-4 (JDB).
United States District Court, District of Columbia.
Sept. 23, 2013.
Order Denying Reconsideration Oct. 11, 2013.
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Special Agent Vincent Lisi testified on different occasions throughout Carson‘s trial. Carson requests copies of Agent Lisi‘s grand jury testimony regarding the activities of the K Street network, presumably as Giglio or Jencks material. As trial counsel impeached Agent Lisi with his grand jury testimony repeatedly during cross examination at trial, it is clear that these transcripts were produced in discovery. See, e.g., Tr. of Trial, January 22, 2001, ECF No. 939. Habeas counsel avers that despite her best efforts to locate the transcripts, she has been unable to obtain copies of Agent Lisi‘s grand jury testimony. Accordingly, the Court will order, to the extent possible, that the government produce to defendant‘s habeas counsel any copies of Agent Lisi‘s grand jury transcripts that were previously produced in discovery.
The final category of discovery requested by Carson consists of the trial exhibits and the government‘s trial exhibit list. The government indicates that it does not object to this request and has indeed been working to make these items available to the defendant. The Court will therefore grant defendant‘s discovery request as to the trial exhibits and exhibit list.
A separate Order consistent with this Memorandum Opinion shall issue this date.
(D.C.Cir.2008) (“Because [habeas petitioner] did not raise his, claim on direct appeal, the procedural default rule bars its consideration unless [petitioner] demonstrates cause and prejudice.“). Carson does not identify specific material that was withheld by the government, which would provide sufficient cause to excuse his default, see, e.g., Strickler, 527 U.S. at 282-84, 119 S.Ct. 1936, but identifies only an article that fuels speculation that the government may have improperly withheld discoverable material. This article was published in the Washington Post 24 years ago, yet the defendant failed to raise his concerns either at trial or on direct appeal.
Robert A. Feitel, Law Office of Robert Feitel, P.L.L.C., Sandi S. Rhee, Law Office of Sandi Rhee, Washington, DC, for Defendant.
MEMORANDUM OPINION
JOHN D. BATES, District Judge.
Before the Court is defendant Hong Vo‘s renewed motion [64] for pretrial release, which the government opposes [66]. In June 2013, after conducting a detention hearing, Judge Royce C. Lamberth granted the government‘s motion for pretrial detention under
LEGAL STANDARD
The Bail Reform Act provides that, to detain a defendant before trial, the government must establish “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.”
DISCUSSION
After carefully considering the four factors set out in section 3142(g)1 in light of the new information contained in Ms. Vo‘s motion, the Court finds by a preponderance of the evidence that no condition or set of conditions will reasonably assure the defendant‘s appearance at trial.
I. BALANCING THE SECTION 3142(g) FACTORS
A. Nature and Circumstances of the Offenses Charged
First, the nature and circumstances of the offenses charged strongly favor detention. Previously, Judge Lamberth found that this factor favored detention because the serious nature of Ms. Vo‘s offenses and the punishments Congress has provided for those offenses give Ms. Vo a substantial incentive to flee the United States. [ECF No. 52 at 3]. Since Judge Lamberth‘s pretrial detention order, Ms. Vo has been charged with twenty-six additional offenses: thirteen counts each of bribery and visa fraud. Ms. Vo argues that under the United States Sentencing Guidelines (“Guidelines“), these counts may be grouped together for the purposes of sentencing because they are not based on additional criminal conduct. Put another way, Ms. Vo contends that the addition of these counts does not significantly increase the potential sentence she would face upon conviction. See
B. Weight of the Evidence Against Defendant
The weight of the evidence against the defendant also strongly favors detention. Previously, Judge Lamberth found that this factor heavily favored detention. [ECF No. 52 at 3]. Evidence supporting
Ms. Vo argues that recent Brady disclosures made by the government uncovered facts that diminish the weight of the evidence. Taken together, she contends, the newly disclosed facts support a “good faith or lack of intent” defense to the charges against her because she had reason to believe “that she was engaged in a legal business to help Vietnamese citizens obtain visas to the United States.” Def.‘s Renewed Mot. for Pretrial Release (“Def.‘s Mot.“) 1. Those newly disclosed facts, as proffered by Ms. Vo, are as follows:
- Ms. Vo registered the VPN for legitimate purposes. Def.‘s Mot. 4.
- The government was told that the website used to facilitate the scheme was not created or managed by Ms. Vo but by an unindicted co-conspirator (JN) who was her boyfriend—in fact, Ms. Vo states, “the prosecution knows that Hong Vo was not involved with the website” at all. Def.‘s Mot. 3.
- JN told prosecutors that Ms. Vo “really believed the visa business worked through a lawyer,” in part because she was “advised that a Vietnamese immigration lawyer named David worked helping people obtain U.S. visas.” Def.‘s Mot. 3.
- JN stated that Ms. Vo‘s brother told her that Michael Sestak was not involved with the visa business. Def.‘s Mot. 4.
- JN told prosecutors that Ms. Vo had no reason to suspect that looking for clients for what she purportedly thought was a legitimate visa business was illegal. Def.‘s Mot. 4.
In sum, Ms. Vo contends that the evidence shows that she had reason to believe she was engaged in a legal business, which worked through an immigration lawyer, unconnected to Michael Sestak, to help Vietnamese citizens obtain U.S. visas. Further, she contends that the evidence demonstrates that any involvement she had with the website and the VPN used in the scheme was unrelated to the scheme. The Court will address each piece of evidence in turn.
The VPN. Even if Ms. Vo registered for the VPN for entirely legitimate purposes, the government has proffered uncontroverted evidence showing that she used the VPN—and allowed her co-conspirators to use the VPN—to perpetrate the scheme by creating or submitting more than 400 visa applications through the network. Government‘s Mem. in Support of Detention (“Government‘s Mem.“) 7-9, May 22, 2013, ECF No. 28. Her motive for initially registering the VPN is thus irrelevant.
The website. Ms. Vo argues that even though the website may have been used by her coconspirators to solicit customers for the scheme, new evidence shows that she had nothing to do with it—undercutting evidence supporting her involvement in the
Whether Ms. Vo believed Sestak was involved or whether she believed the scheme worked legally through an immigration lawyer. The government‘s proffer supporting its first motion for pretrial detention indicated that Ms. Vo and her co-conspirators cultivated a relationship with an American Consular Officer to facilitate their scheme. Government‘s Mem. 9-13. JN‘s statements regarding Ms. Vo‘s beliefs about the scheme‘s legality and Sestak‘s involvement cut against this evidence somewhat, but ultimately those statements go to whether Ms. Vo knew the scheme was illegal. Indeed, Ms. Vo argues that JN‘s statements support her “good faith or lack of intent” defense. But the government has proffered quite a lot of evidence that suggests Ms. Vo knew her conduct was illegal. For example, Ms. Vo repeatedly urged others to conceal her involvement and to “keep it on the DL.” Government‘s Opp‘n Ex. 3 at 2. She also pressed others to conceal the scheme itself and not to use her real name. Government‘s Opp‘n 3. The government further proffered evidence that she had intimate knowledge of exactly how the fraudulent visa scheme worked. Government‘s Mem. 13. In short, against the substantial evidence proffered by the government, JN‘s statements do not significantly diminish the weight of the evidence against Ms. Vo on the intent issue.
Because the newly disclosed evidence does not significantly weaken the evidence against Ms. Vo, the Court finds that based on the government‘s multiple proffers, the weight of the evidence against Ms. Vo continues to be substantial.
C. History and Characteristics of the Defendant
The history and characteristics of the defendant favor pretrial detention. Judge Lamberth found that this factor favored detention because Ms. Vo‘s “access to substantial assets overseas, combined with her experience living in Vietnam for the past two years, her language skills, and her contacts in Vietnam—a country that maintains no extradition treaty with the United States—all demonstrate her ability ‘not only to flee ... the United States ... but also to live comfortably and evade capture in foreign jurisdictions.‘” [ECF No. 52 at 4] (quoting United States v. Anderson, 384 F.Supp.2d 32, 36 (D.D.C.2005)). Ms. Vo proffers no new facts2 bearing on this
D. The Nature and Seriousness of the Danger to Any Person or the Community That Would Be Posed by the Defendant‘s Release
The nature and seriousness of the danger to any person or the community is essentially a neutral factor as to pretrial release. The government continues to concede that Ms. Vo‘s pretrial release would not pose a danger to the community and seeks detention solely because of the risk of flight. This factor thus has little bearing here.
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Because of the nature and circumstances of the offenses Ms. Vo is charged with, the potential sentence she faces, and the weight of the evidence against her, Ms. Vo continues to have a substantial incentive to flee before trial. And because of her history and characteristics, she also has the ability to flee. On balance, the factors set out in section 3142(g) weigh in favor of pretrial detention because of the substantial risk that Ms. Vo will flee before trial.
II. NEWLY PROPOSED CONDITIONS OF RELEASE
Against all that, Ms. Vo proposes new conditions of release, and argues that they would reasonably assure her appearance at trial. Previously, she proposed that she be released to the third-party custody of her parents and that she reside at their home in Denver subject to GPS electronic monitoring and a curfew. Judge Lamberth rejected this proposal, in part because Ms. Vo‘s parents were not suitable third-party custodians, and noted that “even GPS monitoring suggested by Ms. Vo fails to ‘offer assurance against flight occurring before measures can be taken to prevent a detected departure from the jurisdiction.‘” United States v. Townsend, 897 F.2d 989, 995 (9th Cir.1990). [ECF No. 52 at 5]. Now, Ms. Vo proposes that she be released to the third-party custody of her cousin Steven Tran, a United States citizen who lives in Maryland, subject to GPS electronic monitoring, a curfew, daily reporting to Pretrial Services, and any additional geographic restrictions the Court deems proper. Ms. Vo further submits that her sister is prepared to post her condominium apartment in Colorado, in which her sister and niece live, and in which her sister has $50,000 in equity, as bond.
Her sister‘s proposal to post her condominium apartment, generous as it is, does not add much. The government‘s supplemental memorandum to its first pretrial detention motion, filed under seal with the Court, demonstrated that Ms. Vo‘s parents are not suitable third-party custodians. Ms. Vo does not propose her sister as a third-party custodian, but for the same reasons that Ms. Vo‘s parents are not suitable as custodians, her sister‘s offer to post bond worth $50,000 is insufficient to reasonably assure Ms. Vo‘s presence at trial. The Court simply has no basis to conclude that the possible loss to her sister on the bond would impact Ms. Vo sufficiently to ensure her presence at trial.
Similarly, Ms. Vo‘s proposal that Mr. Tran serve as a third-party custodian would not reasonably assure her presence at trial. Counsel admitted at the September 13 hearing that Ms. Vo was not close
CONCLUSION
For all these reasons, the Court will deny Ms. Vo‘s renewed motion for pretrial release. A separate order has been issued.
MEMORANDUM OPINION & ORDER
Before the Court is [70] defendant Hong Vo‘s motion for reconsideration of [68] this Court‘s Order denying pretrial release. In June 2013, Judge Royce C. Lamberth granted the government‘s motion for pretrial detention under
Neither the Federal Criminal Rules nor the Local Criminal Rules of this district explicitly provide for motions for reconsideration. Courts in this district, however, have entertained motions for reconsideration of interlocutory decisions, and “the Supreme Court has recognized ... the utility of such motions.” United States v. Coughlin, 821 F.Supp.2d 8, 17 (D.D.C. 2011) (quoting United States v. Ferguson, 574 F.Supp.2d 111, 113 (D.D.C.2008)). This Court thus assumes, as other judges in this district have, that it may consider a motion for reconsideration in a criminal case.
Judges in this district have applied the standard contained in Rule 59(e) of the Federal Rules of Civil Procedure to motions for reconsideration of final orders in criminal cases. United States v. Cabrera, 699 F.Supp.2d 35, 40 (D.D.C.2010); United States v. Libby, 429 F.Supp.2d 46, 47 (D.D.C.2006). To motions for reconsideration of interlocutory orders, however, they have applied the “as justice requires” standard normally applied to motions under Rule 54(b) of the Federal Rules of Civil Procedure. Coughlin, 821 F.Supp.2d at 18; United States v. Bloch, 794 F.Supp.2d 15, 19 (D.D.C.2011); United States v. Sunia, 643 F.Supp.2d 51, 61 (D.D.C.2009). Ms. Vo‘s motion addresses an interlocutory pretrial detention order rather than a final order. Accordingly, the parties agree that Ms. Vo‘s motion should be assessed under the “as justice requires” standard.1
“[A]sking ‘what justice requires’ amounts to determining, within the court‘s discretion, whether reconsideration is necessary under the relevant circumstances.” Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005). Those circumstances include when a court has ““patently misunderstood the parties, made a decision beyond the adversarial issues presented, [or] made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred.“” Arias v. DynCorp, 856 F.Supp.2d 46, 52 (D.D.C.2012) (quoting Negley v. FBI, 825 F.Supp.2d 58, 60 (D.D.C.2011)). But “where litigants have once battled for the court‘s decision, they should [not] be permitted[] to battle for it again.” Arias, 856 F.Supp.2d at 52 (internal quotation marks and citation omitted).
Ms. Vo does not contend that there has been a controlling or significant change in the law. She argues only that she has come into possession of new exculpatory evidence that undercuts the weight of the evidence against her. As an initial matter, to prevail on this motion for reconsideration, Ms. Vo would have to proffer some very compelling exculpatory evidence indeed. This Court previously found not only that the weight of the evidence against her strongly favors detention, but also that the nature and circumstances of the offenses charged and her history and characteristics favor detention. [ECF No. 68 at 3, 4, 7]; see
In support of her motion, Ms. Vo relies on an interview of her co-defendant, Michael Sestak, in which Mr. Sestak stated that he never spoke with Ms. Vo regarding the visa fraud scheme and that, to his knowledge, Ms. Vo was not involved in the scheme. But Ms. Vo concedes that she was in possession of this information well before the September 13, 2013 hearing: the government provided it to her on August 16, 2013. Def.‘s Mot. 1 n. 1. Ms. Vo offers no reason why this information was not presented to the Court at the September 13 hearing.
What is more, this information hardly qualifies as exculpatory. “A single conspiracy may be established when each conspirator knows of the existence of the larger conspiracy and the necessity for other participants, even if he is ignorant of their precise identities.” United States v. Tarantino, 846 F.2d 1384, 1392 (D.C.Cir.1988). And “[a] single conspiracy is proven if the evidence establishes that each conspirator had the specific intent to further the common unlawful objective.” Id. Ms. Vo argues that a single co-defendant‘s purported ignorance of her involvement in the conspiracy is dispositive, but the government has proffered substantial evidence that Mr. Sestak knew of “the necessity for other participants,” even if he was “ignorant of their precise identities.” Id. Several examples of evidence to that effect can be found in the sealed report submitted by Ms. Vo in support of her motion. [ECF
Ms. Vo also argues that the arrest of her brother Binh Vo (another co-defendant) demonstrates that she could not successfully evade capture if she was released. But as this Court previously found, Ms. Vo has access to substantial assets overseas, lengthy experience living abroad, foreign language skills, and contacts in Vietnam. Even if Vietnam extradited Binh Vo to the United States, the lack of an extradition treaty between Vietnam and the United States injects uncertainty into any future extraditions. Mr. Vo also evaded capture for several months. Thus, Binh Vo‘s arrest does not significantly affect this Court‘s previous finding that Ms. Vo‘s history and characteristics favor pretrial detention.
Because Ms. Vo has not presented any information—let alone any new information—altering the weight of the evidence against her, and because Binh Vo‘s arrest does not significantly alter the Court‘s previous finding that Ms. Vo‘s history and characteristics favor pretrial detention, the Court will deny her motion for reconsideration. Upon consideration of [70] the defendant‘s motion for reconsideration, the government‘s opposition, applicable law, and the entire record herein, it is hereby
ORDERED that [70] the defendant‘s motion is DENIED; and it is further
ORDERED that defendant Hong Vo shall continue to be detained pursuant to
SO ORDERED.
JOHN D. BATES
UNITED STATES DISTRICT JUDGE
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.