6 foreign sailors were witnesses to an alleged environmental crime. They have been detained in San Diego since May

On the last day of May, the cargo ship MV Donald sailed into port in San Diego and was greeted by Coast Guard officials who were boarded to investigate an alleged environmental crime involving dumping oil into the sea.

The ship was allowed to sail again. But five crew members from the Philippines and the ship’s Ukrainian captain – who are accused of no wrongdoing – had their passports taken and have been ordered by the federal government to remain in the San Diego area ever since.

More than six months into their forced stay, the prosecution of the suspect, the ship’s chief Russian engineer, has just begun, and as a potential witness their stopover may extend for several more months until the trial.

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

The men’s plight offers a glimpse into a rare piece of maritime law that allows the US government to detain foreign individuals here for months at a time – and sometimes longer – before criminal charges are ever filed. The witnesses did not speak on this agreement between the Coast Guard and the shipping company. The practice can separate witnesses from their families and homes for a year or more – although some men can also receive large bounties at the end of cases.

In the agreement that stranded men here, their ship was allowed to sail out to continue business after the parent company paid a guarantee of $1.1 million.

For months, the witnesses idled in San Diego, bouncing around hotel rooms, without any charges being filed. Some eventually settled on rented homes in Vista.

Then in mid-November the witnesses filed an emergency petition in US District Court. They asked the judge to allow them to participate in the deposition and return to their families. They called their continued presence in the San Diego area, which has now lasted six months, unjust and a form of de facto detention, as their passports were confiscated and they were not allowed to leave.

The petition worked, until 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 arraigned and the witness appeared in court for the first time.

One of the witnesses is an oilman who has been away from home since October 2021. His contract to work for Donald is supposed to expire in May or June, when he hopes to return to the Philippines for the first meeting. child, born in January.

“More than anything, I want to be home for Christmas this year,” he wrote in a declaration that was part of the petition. “This will be my first Christmas with my son and I hope to be there for Christmas and his first birthday.”

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

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

The 58-year-old ship captain had been away from his home in the front-line city of Kherson during Russia’s war in Ukraine. His wife and father-in-law fled to the country of Georgia and his daughter and grandson to Spain.

“I have not seen my family or my loved ones for a year,” he wrote in his declaration. “Even if I cannot be returned 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 opposed the request, arguing that the man was not in custody and therefore not entitled to the same deposition and release process as an arrested witness. That’s because as part of the agreement between the shipping company and the Coast Guard, the shipping company pays the full salary, lodging, health and daily food stipend.

A spokeswoman for the U.S. Attorney’s Office and the prosecutor assigned to the case declined to comment. Attorneys for the witnesses did not respond to multiple requests for comment.

Attorney Marc Greenberg represented Korotkiy, the defendant, and recently represented another defendant in a nearly identical case. He said the witness situation in such proceedings is “unfortunately quite common in maritime cases.”

Greenberg said he has been involved in or known of cases where witnesses, while in indefinite detention in the US or another foreign country awaiting criminal proceedings, committed suicide, attempted suicide or were detained for more than a year.

He said being held indefinitely – even outside of detention, when food and lodging are taken care of and wages are paid – leads to witnesses.

“Imagine you go to Greece on vacation, you see crime, and you’re ordered to stay in Greece for the next six months,” Greenberg said.

In court filings, Greenberg did not oppose deposing witnesses and allowing them to leave the US, or allowing them to leave with a promise to return for trial. But based on the amount of evidence that he had to review before taking the deposition, he told the court that it would be impossible to dispose of them before Christmas, as the witness had requested. He said he would make an exception for his new father.

When prosecutors asked the court to keep the witnesses in the US until the trial, promising that they would speed up the process, Greenberg stated in his filing that the witnesses had two very strong reasons to return for the trial: failure to appear would have a negative impact the opportunity. in obtaining a US visa, which will “effectively terminate” their ability to ever work in the shipping industry again, and at least some of the witnesses may be entitled to a portion of the various fines levied against the shipping company.

“Crew members will be available, one way or another, for the trial,” Greenberg wrote. “His continued detention in the United States is unnecessary.”

Assistant U.S. Attorneys Melanie Pierson and Stephen Da Ponte, senior trial attorneys from the Justice Department’s environmental crimes unit, said in the motion that live testimony would be more powerful than depositions if the case goes to trial.

“Requiring material witnesses to testify directly at the trial allows both the government and the accused the opportunity to fully develop their testimony, and allows the jury to evaluate their demeanor,” the prosecutor argued.

They also argue that cases like this are different from other, more common cases involving material witnesses. In San Diego, prosecutions of human traffickers often involve the detention of witnesses, people being smuggled across the border. Often, the witnesses were deposed and sent home.

And in court late last month, Pierson raised another issue he saw in the case: the shipping company, which he said authorities are investigating in relation to this incident, paid lawyers for the accused and witnesses.

As for the crimes themselves, Korotkiy was charged Thursday with three counts of obstruction of justice and one count of failing to maintain accurate oil records. Prosecutors use record-keeping violations as a backdoor way to prosecute, and hopefully discourage, environmental crimes that occur in international waters outside US jurisdiction.

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

According to a press release from the US Attorney’s Office in that case, the release of unfiltered and oily bilge water in cases like this accounts for about 37 percent of the world’s marine oil pollution.

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

Donald’s men may get an answer on Tuesday, when another hearing is scheduled where a judge can decide whether they can participate in the deposition and be allowed to return.