UNITED STATES of America, v. Jeong Seon HAN, Defendant.
Criminal Action No. 16-cr-71 (TSC)
United States District Court, District of Columbia.
Signed August 3, 2016
TANYA S. CHUTKAN, United States District Judge
Stephen J. Darmody, Hollingsworth LLP, Washington, DC, for 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:
- 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 , and33 C.F.R. § 151.25 ; - 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 , and33 C.F.R. § 151.25 ; and - 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 , and33 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 considеration 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,
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
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 inspectiоn 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.3 (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.“). 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 conduct-
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 approximаtely 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 dеtermined 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
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 bеlieve 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 emplоyed 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. ¶ 12);
- 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. ¶ 13). 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 intо 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 therеafter, 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). The Government thus concludes that Han “was free to go where he chose to go” while in Hawaii, and that his “claim that he was not free to leave is not true.” (Id.).
Han responds that he was only “given his passport so he could travel to the United States,” and states that PBF “did not retrieve it in a timely way,” meaning that “the fact that he had it in his possession was contrary to the Security Agreement, and appears to have been the consequence of an administrative oversight on the part of” PBF. (Venue Reply at 5) (citation omitted). Han states that PBF‘s error in failing
d. Han‘s Time In The Washington, D.C. Area
Since their arrival in October 2015, Han and the other crewmembers identified in the Security Agreement (other than Sundquist)6 have been housed in Virginia pursuant to the terms of the Security Agreement. (Venue Mot. Ex. 1 ¶ 32). A Coast Guard investigator periodically contacts Han‘s attorney to ensure that he is in the Washington, D.C. area. (Id. ¶ 39; Venue Opp‘n at 5). Han states that, during this entire time, he has “not been allowed to return to Korea.” (Venue Mot. Ex. 1 ¶ 33).
On March 17, 2016, Han‘s attorney wrote an email to a Government attorney requesting, among other things, that the Government let him know “whether the United States is willing to approve Mr. Han‘s return to Korea.” (Venue Mot. Ex. 6). On March 29, 2016, the same Government attorney wrote an email to Han‘s attorney, under a separate subject linе, stating: “I understand Mr. Han has requested the return of his passport under the terms of the surety. We intend to file a Complaint and I anticipate that our position will be that bond will be inappropriate.” (Id.).
II. LEGAL STANDARD
a. 18 U.S.C. § 3238
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 . . . is arrested or first brought; but if such offender [is] 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 if no such residence is known the indictment or information may be filed in the District of Columbia.
Neither party disputes that
III. ANALYSIS
a. The Definition Of “First Brought” In Section 3238
If Han was, in fact, “first brought” to Hawaii, then venue is appropriate there under the first prong of the statute.
Han contends that “first brought” within the context of
The precise locution preferred by Han originates from United States v. Erdos, in which the
The term “first brought” in the statute has a meaning distinct from the term “arrested.” A defendant is “arrested” under
section 3238 where the defendant is first restrained of his liberty in connection with the offense charged. But the term “first brought” in the statute applies only in situations where the offender is returned to the United States already in custody. To be “first brought” into D.C. undersection 3238 , then, an offender must have been arrested somewhere other than the United States and brought in custody to this district. Erdos, 474 F.2d at 161 (“‘[f]irst brought’ within the context of the statute means first brought in custody with liberty restrained“).
Hong Vo, 978 F. Supp. 2d at 58 (emphasis removed) (citations and quotations omitted). Other cases outside of this district have also held custody to be the relevant touchstone in the “first brought” analysis.7
b. The Definition Of “Custody”
The parties and the case law are in agreement that, in order to answer the question of whether Han was “first brought” to Hawaii within the meaning of
Given the lack of directly applicable precedent, the court must determine whether the facts and circumstances of this case meet an appropriate definition of “custody.” Han contends that the operative question in determining whether he was in custody is whether a reasonable person in his position would have believed that he was free to go where he wanted while in Hawaii. He contends that, in answering that question, the court should look to what he terms “comparable Fourth Amendment jurisprudence,” which provides that “a person is ‘seized’ by the government ‘if, in view of all of the circumstances surrounding the incident, a reаsonable person would have believed that he
c. Under The Facts And Circumstances In This Case, Han Was In The Functional Equivalent Of “Custody” While In Hawaii
The court has assessed the custody question under each of the different definitions and frameworks that have been offered by the parties, keeping in mind Black‘s Law Dictionary‘s definition of “physical custody” as “[c]ustody of a person (such as an arrestee) whose freedom is directly controlled and limited.” Physical Custody, Black‘s Law Dictionary (10th ed. 2014). The court agrees with Han that, under all of these various definitions and frameworks, he was in the functional equivalent of custody while in Hawaii. The court‘s finding is based on its consideration of the following factors:
- Han is an alien seafarer who does not speak English. (Venue Mot. Ex. 1 ¶¶ 2-3).
- Han‘s passport was confiscated by the United States Coast Guard when its inspection of the Pacific Breeze first began on July 7, 2015. (Id. ¶ 16).
- It appears that the Coast Guard then gave Han‘s passport to American Samoa Immigration officials, who held it for the remainder of his time in American Samoa. (Venue Sur-Sur-Reply Ex. A).
- During the nearly month-long Coast Guard inspection, Han “was not allowed to leave the vessel.” (Venue Mot. Ex. 1 ¶¶ 21-22).
- Han‘s request, on or around July 8, 2015, to leave the Pacific Breeze and return to South Korea was denied by a Coast Guard official because the Coast Guard needed to question him. (Venue Sur-Sur-Reply Ex. A).
- The record contains a July 21, 2015 email—sender and recipients redacted—stating that “Chief Engineer [REDACTED] want to leave to Korea asap. Much appreciated your help.” (Venue Reply Ex. 1).
- 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).
- After the inspection was completed, the Coast Guard wrote a letter to the Attorney General of American Samoa asking him to prohibit Han and sever-
al of his shipmates 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“). - Shortly thereafter, “an immigration hold was placed on the crew by American Samoa Immigrations.” (Venue Sur-Sur-Reply Ex. A).
- On September 3, 2015, PBF and the Coast Guard entered into the Security Agreement, which required PBF to transport Han to a location within the jurisdiction of this court, to house him there during the pendency of any investigation and/or prosecution concerning violations of law onboard the Pacific Breeze, and to facilitate his cooperation with the Government. (Venue Mot. Ex. 5 ¶¶ 2-3).
- While the Security Agreement acknowledged that Han was not bound by its terms and that PBF could not force him to travel to the Washington, D.C. area and remain there, it nevertheless required PBF to request that he surrender his passport “for safekeeping.” (Id. ¶ 7). The Security Agreement also required that the Government be immediately notified if Han refused to surrender his passport, and that, in the event that he requested the return of his passport after surrendering it, his passport nоt be returned to him for at least 72 hours. (Id.).
- Han was not a party to the Security Agreement, and 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 was given such notice, or was provided with a copy of the Security Agreement, let alone a copy translated into Korean. (Id. ¶ 13).
- Han was paroled into the United States via an SPBP, which 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.” (Venue Reply Ex. 2) (capitalization in original).
- Pursuant to the terms of the Security Agreement, Han and several of his shipmates were flown to the United States by PBF on October 25, 2015, during which time they were under the constant supervision of a PBF employee. (Venue Mot. at 4).
- Han‘s passport—which had been held by American Samoa Immigration officials since it was confiscated by the Coast Guard on July 7, 2015—was returned to him prior to his departure from American Samoa so that he could travel to the United States. (Venue Sur-Sur-Reply Ex. A; Venue Mot. Ex. 1 ¶ 16; Venue Opp‘n at 5).
- Han has declared under oath that he believed that he was not free to go where he wanted to go while en route to the Washington, D.C. area, including while in Hawaii, and there is no evidence before the court that contradicts Han‘s assertion that he truly held this belief (such as, for example, a declaration from a PBF employee stating that Han was told that he was free to choose not to come to the United States). (Venue Mot. Ex. 1 ¶¶ 29, 31).
Having considered all of these factors, the court concludes that, while he was
The Government argues that Han was not “first brought” to the District of Hawaii because he had his passport, was not accompanied by any law enforcement personnel and was not under indictment or the subject of any criminal complaint while he was there. But this argument overlooks the fact that, shortly before travelling to the United States, Han had been detained by the Government onboard the Pacific Breeze for an entire month, during which time he was clearly in “custody” under any definition of the word. (Venue Mot. Ex. 1 ¶¶ 21-22). It also overlooks the fact that Han‘s multiple requests to return home to South Korea—both during and after the inspection—were refused by the Government, and that an immigration hold was placed on him by American Samoa Immigrations at the Government‘s request. (Id.; Venue Mot. Ex. 4; Venue Reply Ex. 1; Venue Sur-Sur-Reply Ex. A). It overlooks the fact that Han‘s passport was taken away from him by the Government in early July 2015, was held by American Samoa Immigrations at the Government‘s request, and was not returned to him until late October 2015, when he was about to board a plane bound for the United States pursuant to the terms of PBF‘s Security Agreement with the Government. (Venue Mot. Ex. 1 ¶ 16; Venue Mot. Ex. 5 ¶¶ 3, 7; Venue Opp‘n at 5; Venue Sur-Sur-Reply Ex. A). The Government‘s argument also overlooks the fact that, while Han was not under law enforcement escort during his trip to the United States, he was escorted by, and under the constant supervision of, a PBF employee who was essentially acting as an agent for the Government pursuant to the terms of the Security Agreement. (Venue Mot. at 4; Venue Mot. Ex. 5). And it overlooks the fact that Han was paroled into this country via an SPBP obtained by the Government, which required him to be closely and consistently supervised by the Government, which was required to act if he absconded. (Venue Reply Ex. 2).
Moreover, the court finds that all of these factors must be read against (i) the fact of Han‘s alienage and his inability to speak and understand the English language; (ii) the fact that the Security Agreement—which required that Han be notified of its provisions and explicitly stated that he was not bоund by them—was never provided to him; and (iii) Han‘s stated belief that he was not free to go where he wanted while en route to this country, which has not been controverted by any actual evidence. Taking all of the foregoing into consideration, it is clear to the court that Han reasonably believed that he had no choice but to board the plane and come to the United States, that he reasonably believed that he could not have simply walked away and booked a flight to South Korea while in Hawaii, and that the PBF employee escorting him to the United States was, to him, the functional equivalent of a law enforcement escort, meaning that his freedom of movement was restrained to the degree associated with a formal arrest while in transit to this country.
d. Han‘s Alienage And Inability To Speak And Understand English Are Relevant To Whether He Was In The Functional Equivalent Of “Custody” While In Hawaii
The Government contends that it is inappropriate for the court to consider Han‘s alienage and the fact that he cannot speak English in determining whether or not he was in custody. But the court disagrees, and finds that Han‘s alienage and lack of proficiency in English are permissible considerations under both the Mendenhall framework advocated by Han and the Miranda framework advocated by the Government, and are highly relevant here.
Mendenhall was the landmark case that provided a workable formula for the definition of seizure. The Supreme Court found that a person is seized when an officer has in some way restrained his liberty, 446 U.S. at 552 (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)); that seizure occurs “only when, by means оf physical force or
For example, in United States v. Moreno, the
Moreno‘s lack of familiarity with police proсedures in this country, his alienage and his limited ability to speak and understand the English language contributed significantly to the quantum of coercion present at the DEA office. The district court considered these additional factors and correctly found that under the totality of the evidence presented in this case Moreno was not free to leave[.]
In sum, . . . we find that by the time Moreno had been escorted to the DEA office he had been effectively arrested. Id. Here, the record indicates that, as far as Han was concerned as a non-English-speaking alien seafarer unfamiliar with American police procedures, his freedom of movement was restrained by PBF, which was acting on behalf of the Government. Given that he was never informed of the Security Agreement‘s terms, including the crucial fact that he was not bound by the agreement, the governmental imprimatur attached to PBF‘s actions represented the requisite governmental “show of authority” as far as Han could tell. Mendenhall, 446 U.S. at 553. Accordingly, the court finds that “in view of all of the circumstances surrounding” Han‘s transport from American Samoa to Virginia, “a reasonable person” in his position “would have believed that he was not free to leave” while in Hawaii. Mendenhall, 446 U.S. at 554. As in Moreno, then, the court concludes that Han “had been effectively arrested” while in Hawaii, 742 F.2d at 536, and that venue for this criminal proceeding is therefore appropriate in the District of Hawaii.
Contrary to the Government‘s claims, Han‘s alienage and inability to speak English are also relevant under Miranda and its progeny.10 As the Government acknowledges, the Supreme Court has held that whether or not a defendant is a child “is relevant to the custody inquiry” under Miranda because “a child‘s age differs from other personal characteristics that, even when known to police, have no objectively discernable relationship to a reasonable person‘s understanding of his freedom of action.” (Venue Sur-Reply at 4) (emphasis
In the court‘s view, this logic applies with equal force to aliens who cannot speak or understand English. The fact that a person does not speak or understand English clearly has an “objectively discernable relationship to [that] person‘s understanding of his freedom of action,” and leads to certain “commonsense conclusions about behavior and perception” that apply broadly to non-English-speaking aliens as a class. J.D.B., 564 U.S. at 272, 275. This includes the conclusion that, while in custody, a non-English-speaking alien cannot “recognize and avoid choices that could be detrimental to them” in the same manner that an English speaker could. Id. at 272. The inability to speak and understand English does not concern, as the Government appears to contend, “the psychology of the individual suspect“; rather, it concerns objective factors that bear on whether a suspect can understand a potentially custodial situation in much the same way that a child‘s age does. (Venue Sur-Reply at 4) (quoting J.D.B., 564 U.S. at 275). While an adult English-speaking citizen of the United States can reasonably be expected to understand whether or not they are in custody, the same cаnnot be said for an English-speaking child, as reflected in J.D.B., or for a non-English-speaking alien adult, as is evident from the facts and circumstances of this case, which indicate that Han did not understand that he was not under any legal compulsion to travel to the United States.
Moreover, just as they have in the Mendenhall context, courts have, in fact, held that a limited ability to speak and understand English is relevant to the custody analysis under Miranda. For example, while the
Thus, in the court‘s view, the fact that Han is an alien who does not speak or understand English is relevant to the question of whether, under Miranda, there was a “restraint on freedom of movement of the degree associated with a formal arrest.” Beheler, 463 U.S. at 1125 (citation and quotation omitted). Han was transported thousands of miles from American Samoa to Hawaii, and then thousands more miles from Hawaii to Virginia, and the evidence demonstrates that he reasonably believed—in part due to his alienage and inability to understand the English language—that he was compelled to undertake this journey by the United States Government, which was acting through an agreement with PBF that was never shared with him. While there may not have been any custodial interrogation in this case, these facts and circumstances amount to much more than some brief non-custodial seizure or detention. They amount, in the court‘s view, to the functional equivalent of custody or arrest.
e. Because Han Was In The Functional Equivalent Of “Custody” While In Hawaii, He Was “First Brought” To The District Of Hawaii Under Section 3238
Given the court‘s finding that Han was in the functional equivalent of “custody” while in Hawаii, the court finds that Han was “first brought” to the District of Hawaii within the meaning of
At the June 21, 2016 hearing on Han‘s motions for dismissal, counsel for the Government argued that if the court was inclined to grant the Venue Motion, the proper remedy would be transfer to the District of Hawaii, not dismissal of the Indictment. The Government did not provide any case law or statutory support for this contention either at the hearing or in its Venue Sur-Reply, which was filed shortly after the hearing. Counsel for Han stated at the hearing that, if the Venue Motion was granted, the appropriate remedy would be dismissal of the Indictment. Counsel for Han is correct—“[w]hen venue is improperly laid in a criminal case, dismissal is the appropriаte remedy because a district court has no power to transfer such a case to a proper venue.” Hong Vo, 978 F. Supp. 2d at 64 (citations and quotation omitted). Accordingly, because the court will grant Han‘s Venue Motion, it will dismiss without prejudice the Indictment now pending against him in this district.
The Government has also requested that the court hold in abeyance any order granting the Venue Motion in order to give it time to “file appropriate charging documents in the District of Hawaii.” (Venue Opp‘n at 6). The court will grant this re-
IV. CONCLUSION
For the foregoing reasons, 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.
An appropriate Order accompanies this Memorandum Opinion. The Order will be HELD IN ABEYANCE for a period of ten days from its issuance date in order to give the Government time to file the appropriate charging documents in the District of Hawaii.
TANYA S. CHUTKAN
United States District Judge