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6 foreign sailors witnessed an alleged environmental crime. They’ve been stuck in San Diego since May

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On the last day of May, the freighter MV Donald pulled into San Diego Harbor and was greeted by Coast Guard officials who boarded to investigate a suspected environmental crime involving the spill of oil into the sea.

The vessel was cleared to depart. But five crew members from the Philippines and the ship’s Ukrainian captain — who are not charged with any wrongdoing — had their passports taken away and have since been ordered by the federal government to remain in the San Diego area.

More than six months into their enforced stay, the prosecution of the suspect, the ship’s Russian chief engineer, has only just begun and, as potential witnesses, their layover could stretch for several months until At the trial.

The group are now asking a judge to let them return home, including a 30-year-old first-time father who has never met his nearly 11-month-old son, or in the captain’s case, to be reunited with his family . members who fled to Europe due to the Russian war. It seems unlikely that they will be allowed to leave the United States before Christmas.

The plight of the men offers insight into a rare part of maritime law that allows the U.S. government to detain aliens here for months — and sometimes longer — before criminal charges are brought. The witnesses have nothing to say about this agreement between the Coast Guard and the shipping companies. The practice could separate the witnesses from their families and homes for a year or more – although some of the men could also receive a large bonus at the end of the case.

Under the deal that stranded the men here, their ship was allowed to leave to continue operations after its parent company posted a $1.1million bond.

For months, witnesses have been idling in San Diego, bouncing around hotel rooms, with no charges filed. Some eventually settled into a shared rental home in Vista.

Then, in mid-November, the witnesses filed an urgent motion in US District Court. They asked a judge to allow them to participate in depositions and return home to their families. They called their continued presence in the San Diego area, which has now passed six months, as unfair and a de facto form of detention, since their passports have been confiscated and they are not allowed to leave.

The petition worked, in that it forced the government’s hand to speed up the process. Two days after the petition, prosecutors filed a criminal complaint against Russian citizen Denys Korotkiy, the ship’s chief engineer. A few days later, he was arrested and the witnesses appeared in court for the first time.

One of the witnesses is an oil tanker who has been away from home since October 2021. His contract to work on the Donald was due to end in May or June, when he expected to return to the Philippines to meet his first child, born in January.

“More than anything, I want to be home for Christmas this year,” he wrote in a statement that was part of the petition. “This will be my first Christmas with my son and I can’t wait to be there for his first Christmas and birthday.”

Another of the Filipino witnesses is a 48-year-old father of three who was planning to return home around October, based on his six-month contract. “As a human being and a father, I am increasingly anxious and sad to be away from my family and my home for so long,” he wrote.

Two others, also both fathers, joined the Donald’s crew in November 2021 on six-month contracts, but more than a year later cannot return home. The fifth Filipino witness had a heart attack in early June and wrote that he was “very worried about continuing my health care alone in the United States” rather than with his wife and teenage daughter.

The 58-year-old ship’s captain was absent from his home in the frontline town of Kherson for the duration of Russia’s war in Ukraine. His wife and father-in-law fled to the nation of Georgia, and his daughter and grandson to Spain.

“I haven’t seen my family or loved ones in over a year,” he wrote in his statement. “Although I cannot be repatriated to my hometown, I must be released from detention in the United States so that I can finally be reunited with my family.”

The U.S. Attorney’s Office opposes their request, arguing that the men are not being detained and therefore are not entitled to the same process of testimony and release as detained witnesses. Indeed, as part of the agreement between the shipping company and the coastguard, the shipping company pays all of their salaries, accommodation, health care and a daily food allowance.

A spokesperson for the U.S. Attorney’s Office and the prosecutors handling the case declined to comment. Lawyers for the witnesses did not respond to multiple requests for comment.

Attorney Marc Greenberg is representing Korotkiy, the defendant, and recently represented another defendant in a nearly identical case. He said the plight of witnesses in such proceedings is “unfortunately quite common in maritime affairs”.

Greenberg said he had been involved in or was aware of cases in which witnesses, while detained indefinitely in the United States or other foreign countries awaiting criminal prosecution, committed suicide, attempted to commit suicide or have been detained for more than a year.

He said being detained indefinitely — even outside of detention, when food and housing are taken care of and wages are paid — weighs heavily on witnesses.

“Imagine you went to Greece on vacation, saw a crime, and were ordered to stay in Greece for the next six months,” Greenberg said.

In a court filing, Greenberg did not object to testifying witnesses and allowing them to leave the United States, or allowing them to leave with a promise to return for trial. But based on the amount of evidence he has to review before taking the statements, he told the court it would be impossible to file them before Christmas, as witnesses had requested. He said he would make an exception for the new father.

While prosecutors asked the court to keep the witnesses in the United States until trial, promising they would expedite proceedings, Greenberg noted in his filing that the witnesses had two extremely compelling reasons to return for trial: not showing up would negatively impact their chances of getting a U.S. visa, which would “effectively end” their ability to work in the shipping industry again, and at least some of the witnesses might be entitled to a share any fines imposed on the shipping company.

“Crew members will be available, one way or the other, for trial,” Greenberg wrote. “Their continued detention in the United States is not necessary.

Assistant U.S. Attorney Melanie Pierson and Stephen Da Ponte, a senior prosecutor with a Justice Department environmental crimes unit, argued in a motion that live testimony would be stronger than depositions if the case were to go ahead. judged.

“Requiring material witnesses to testify live at trial allows both the government and the defendant to fully develop their testimony and allows the jury to assess their conduct,” prosecutors argued.

They also argued that cases like this differ from other more common cases involving material witnesses. In San Diego, prosecutions of smugglers often involve the detention of witnesses, the people who were smuggled across the border. Often these witnesses are dropped off and sent home.

And in court late last month, Pierson raised another issue she sees in the case: The shipping company, which she says authorities are investigating the incident, is paying the defendant’s lawyers and witnesses.

As for the crime itself, Korotkiy was charged on Thursday with three counts of obstruction of justice and one count of failing to keep an accurate oil log. Prosecutors are using the record-keeping violation as a backdoor way to prosecute and hopefully deter environmental crimes that occur in international waters outside US jurisdiction.

In an almost identical case earlier this year, a ship’s chief engineer was sentenced to a year in detention, and the ship’s operating company was ordered to pay a $1.1 million fine and hire an independent monitor to verify environmental compliance for a four-year probationary period. .

According to a press release from the U.S. Attorney’s Office in the case, the discharge of unfiltered, oily bilge water in cases like this accounts for about 37 percent of the world’s oil pollution in the oceans.

In that case, four witnesses from the ship, along with the defendant, were detained in San Diego under the same type of arrangement as those from the Donald, according to court records. It’s unclear exactly how long the witnesses were detained, but that case was resolved with a plea deal about six to seven months after they were removed from their ship.

The Donald’s men could get an answer on Tuesday, when another hearing is scheduled at which a judge could decide whether they can take part in depositions and be allowed to go home.

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