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January 22, 1993


The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.


 Pei-Fu Chaing, Chinn-Lai Lin, Mao-Keng Chang and Jiann-Tzong Tsay (collectively, the "material witnesses"), four of the five crew members of the Chin Wing #18, are detained by the government as material witnesses pursuant to 18 U.S.C. § 3144. On December 14, 1992, they and their fellow crew member, Jeng-Shinn Jang, moved pursuant to section 3144 and Rule 15(a) of the Federal Rules of Civil Procedure to have their depositions taken and to be released from detention in order to return home, to Taiwan. *fn1" The government supported the motions of the material witnesses, while Defendants George Huang, William Chen and Ho-Hsin Fan opposed them. After ensuring that the government provided the Defendants with pretrial discovery, the Court permitted the videotaped depositions of the material witnesses. After the material witnesses were deposed by videotape, Defendants moved for an order that conditioned the release of the material witnesses and prevented the government's deportation of the witnesses on the ground that the deportation of the material witnesses would violate the defendants' Sixth Amendment rights to confront the witnesses against them and to compulsory process. For the reasons set forth below, Defendants' motion to prevent the unconditioned release of the material witnesses and secure their presence at trial is granted.


 The material witnesses were crew members of a fishing trawler, the Chin Wing #18, which left Taiwan on April 26, 1992. The government alleges that the Defendants used the Chin Wing to transport 150 nationals of the People's Republic of China in a voyage having New York City as its ultimate destination. On September 27, 1992, the Chin Wing, while off the coast of North Carolina, was intercepted by the United States Coast Guard, which detained the ship's captain, Ho-Hsin Fan, five crew members and 150 passengers.

 On October 13, 1992, the government filed a complaint in the United States District Court for the Eastern District of North Carolina charging Fan and the two owners of the Chin Wing with conspiracy to smuggle illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A). In connection with the filing of the complaint, a magistrate judge for the Eastern District of North Carolina issued material witness warrants for each of the five crew members. Pursuant to the warrants, the five crew members were arrested and further detained without bail. The United States Attorney for the Eastern District of North Carolina thereafter dismissed its complaint against Fan to permit the United States Attorney's office in the Southern District of New York to proceed with the case in this district.

 On November 4, 1992, in Atlanta, Georgia, Fan was served with an arrest warrant, and the material witnesses were arrested on material witness warrants, each of which had been issued by a magistrate judge of the Southern District of New York. In December 1992, Defendants Huang, Chen and Fan were indicted on charges of conspiracy to smuggle illegal aliens into the Southern District of New York. To date, the material witnesses have not been charged with any crime.

 The depositions of the material witnesses took place from December 21, 1992, to December 28, 1992, and lasted four days. Prior to the depositions, the government made available to the defendants the prior statements made by the material witnesses. The deposition of each witness, with the Court presiding, was taken under oath and videotaped in its entirety. The government conducted direct examination of three of the witnesses, Chang, Chaing, and Lin, who were then cross-examined at length by counsel for the Defendants. Defendants then called a fourth material witness, Tsay, whom the government cross-examined.

 During the depositions of December 22 and 28, 1992, Chang made statements which the Defendants assert are favorable with respect to their defense, especially their defense of coercion. For example, Chang testified that on September 1, 1992, the passengers and crew members aboard the Chin Wing were forced out of Haiti by Haitian soldiers with guns. Dec. 22, 1992 Tr. at 35, 106. Chang also testified that, after the Chin Wing was forced out of Haiti, the passengers stated to him and another crew member, Tsay, that, if they had to sail away from Haiti, they "wanted to go to the U.S., and that if" the crew members refused, the passengers would tie them up and "go by themselves." Id. at 25-26, 106-07. He further testified that (1) he did not know of any purpose to bring the passengers to the United States, and (2) he did not know that, upon leaving Haiti and heading for the United States, there was any proposal by Defendant Fan, the captain, to land the Chin Wing at an undesignated port of entry in the United States. Id. at 149. *fn2"

 Defendants also assert that Tsay's testimony is favorable to the defense because it corroborates Chang's testimony that the passengers threatened that, if they had to leave Haiti, they would have to sail to the United States, and the crew members would be killed if they refused. Dec. 28, 1992 Tr. at 13-14. Tsay testified that the destination of the Chin Wing had been Haiti, that Fan told him that the ship owners hired the passengers "to go to Haiti to work," that the ship would thereafter be used for business purposes to transport goods into Haiti, and that upon reaching Haiti the crew and Fan would be returned to Taiwan. Id. at 6-8.

 Witnesses Chaing and Lin provided cumulative testimony that Fan informed them during the trip from Taiwan to Haiti that the passengers were travelling to Haiti to work.

 After the depositions were concluded, Defendants, to ensure the "live" testimony of the material witnesses at trial in lieu of the videotaped depositions, moved for an order preventing the government from deporting the material witnesses or taking any other action that would materially interfere with Defendants' Sixth Amendment right to obtain the testimony of the four material witnesses at trial.



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