United States v. Viau ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal No. 19-09 (CKK)
GLEN OMER VIAU,
Defendant.
MEMORANDUM OPINION
(July 29, 2019)
A federal indictment charges Defendant Glen Omer Viau with one count of making false
statements to the United States government, in violation of 18 U.S.C. § 1001(a)(1). These alleged
false statements concern the export of restricted United States Navy data to the People’s Republic
of China (“China”) during a business proposal to China’s naval force. Defendant has moved under
18 U.S.C. § 3142 to modify the conditions of his release so that he is permitted to travel to Vietnam,
Singapore, Thailand, and China for business reasons. Upon consideration of the briefing, 1 the
relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND
DENIES IN PART Defendant’s [33] Motion to Modify his Conditions of Release. The Court
will modify Defendant’s conditions of release so that he is permitted to travel to Vietnam,
Singapore, and Thailand for business purposes, providing that Defendant provide the Pretrial
Services Agency with an advance copy of his itinerary and that Defendant continue his weekly
check-ins with the Pretrial Services Agency. However, for the reasons explained below, the Court
will not permit Defendant to travel to China.
1
The Court’s consideration has focused on the following documents:
• Glen Viau’s Mot. to Modify his Conditions of Release and Incorp. Mem. in Support, ECF
No. 33 (“Def.’s Mem.”); and
• Gov.’s Mem. in Opp’n to Def.’s Mot. to Modify his Conditions of Release, ECF No. 35
(“Gov.’s Opp’n”).
1
I. BACKGROUND
The Court draws on the briefing and the docket for certain relevant proceedings in this
matter. On January 8, 2019, Defendant was indicted on one count of making false statements in
violation of 18 U.S.C. § 1001(a)(1). Gov.’s Opp’n, ECF No. 35, 2; Indictment, ECF No. 4. Initially,
Defendant was released from the District of Columbia jail on a $50,000 cash bond and ordered to
reside in the District of Columbia and to check-in with the Pretrial Services Agency in person on
a weekly basis. Def.’s Mot., ECF No. 33, 1. In February, the Court modified the conditions of
Defendant’s release and allowed him to return to his family in Vancouver, Canada and to conduct
weekly check-ins telephonically with the Pretrial Services Agency. Id. On June 7, 2019, the Court
further modified Defendant’s conditions of release, allowing him to travel to designated locations
within Canada and Europe for family and business purposes with advance notice to the Pretrial
Services Agency. Id. at 2; June 7, 2019 Order, ECF No. 29.
The Government did not object to any of the above modifications to the conditions of
Defendant’s release. Additionally, Defendant has been in compliance with the conditions of his
release, checking-in with the Pretrial Services Agency weekly by phone and attending scheduled
Status Hearings.
Defendant now moves for a further modification of his conditions of release. Defendant
requests that he be allowed to travel to Vietnam, Singapore, Thailand, and China for business
purposes. The Government does not oppose his travel to Vietnam, Singapore, or Thailand. As
travel to those countries is not opposed, and the Court concludes that it can still be reasonably
assured of Defendant’s appearance, the Court GRANTS IN PART Defendant’s Motion and
permits his travel to Vietnam, Singapore, and Thailand for business purposes. Defendant should
provide an advance copy of his travel itinerary to the Pretrial Services Agency prior to any travel
2
and should continue his weekly check-in with the Pretrial Services Agency. However, the
Government does oppose the modification of Defendant’s conditions of release to allow travel to
China. As such, the Court’s analysis focuses on Defendant’s request that he be allowed to travel
to China. The Court finds that the inclusion of a condition permitting Defendant’s travel to China
would not reasonably assure the appearance of Defendant as required.
II. LEGAL STANDARD
The touchstone of the pretrial detention inquiry is whether a defendant’s “release will not
reasonably assure the appearance of the person as required or will endanger the safety of any
other person or the community.” 18 U.S.C. § 3142(b). Imposition of a condition or combination
of conditions of release may be necessary to achieve such assurance. Id. § 3142(c). Failing that,
a defendant is detained until trial. See id. § 3142(a), (e); see also § 3142(d) (providing for
temporary detention in certain circumstances).
In determining appropriate conditions of release, the Court takes the following factors into
consideration:
(1) the nature and circumstances of the offense charged, including whether the
offense is a crime of violence, a violation of section 1591, a Federal crime of
terrorism, or involves a minor victim or a controlled substance, firearm, explosive,
or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties,
employment, financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or alcohol abuse,
criminal history, and record concerning appearance at court proceedings;
and
(B) whether, at the time of the current offense or arrest, the person was on
probation, on parole, or on other release pending trial, sentencing, appeal,
or completion of sentence for an offense under Federal, State, or local law;
and
3
(4) the nature and seriousness of the danger to any person or the community that
would be posed by the person’s release. . . .
Id. § 3142(g). The defendant should be “subject to the least restrictive … condition, or combination
of conditions, [] that [the Court] determines will reasonably assure the appearance of the person as
required. Id. § 3142(c)(1)(B).
III. DISCUSSION
Defendant requests that he be allowed to travel to China for business purposes. Defendant
insists that if his request to expand his international travel to China is granted, his release
conditions will still “reasonably assure his appearance, reasonably assure the safety of any other
person and the community, and will continue to be the least restrictive means of achieving his
appearance, as required by statute.” Def.’s Mot., ECF No. 33, 2.
Considering the Section 3142(g) factors, the Court concludes that Defendant should not
be permitted to travel to China pending his trial date.
1. Nature and Circumstances of the Offenses Charged, and Weight of the Evidence
Against the Defendant
Under Section 3142(g), the Court must specifically consider that Defendant has been
indicted for making false statements to the United States. The parties dispute whether the
sentencing guidelines range for Defendant would be 0-6 months or 6-12 months. Def.’s Mot., ECF
No. 33, 8 (0-6 months); Pl.’s Mot., ECF No. 35, 6 n.3 (6-12 months). While either sentencing
range is relatively low, the nature of the charge is serious and could have effects on Defendant’s
business, which involves providing atmospheric diving suits and support to international
purchasers. Additionally, Defendant’s alleged false statements concerned the export of restricted
United States Navy data to China. Accordingly, the offense with which Defendant was charged
directly relates to his business ties to China. Because the charges against Defendant directly relate
4
to his business ties to China, the Court is concerned about allowing Defendant to travel to China
to conduct business.
Moreover, while the Court is making no judgment about the merits of this case, the Court
notes that a grand jury has found probable cause to conclude that Defendant engaged in the
criminal activity of which he is accused. Moreover, the Government submits that there is
substantial evidence against Defendant including the specific data that Defendant allegedly sent or
caused to be sent to China, some of which contained the following distribution statement:
“Distribution authorized to U.S. government agencies only…” Pl.’s Opp’n, ECF No. 35, 7.
Accordingly, the Court finds that the nature and circumstances of the offenses charged, as
well as the weight of the evidence against Defendant, strongly suggest that a condition allowing
Defendant to travel to China would not reasonably assure the appearance of Defendant as required.
2. History and Characteristics of the Defendant, and the Nature and Seriousness of the
Danger to Any Person or the Community That Would Be Posed by the Defendant’s
Release
Defendant has no prior criminal record and has complied with the conditions of his release
thus far. Additionally, considering his family and his business, Defendant has personal and
financial incentives to return to the United States for court appearances. The government is
seeking, and the Court is ordering, conditions of release based solely on risk of flight, not danger
to the community. As such, the final Section 3142(g) factor—the nature and seriousness of the
danger to any person or the community—has minimal relevance. United States v. Bikundi, 47 F.
Supp. 3d 131, 137 (D.D.C. 2014).
However, the Court notes that Defendant is not a United States citizen and has no ties to
the District of Columbia. Moreover, Defendant has business ties to China and is alleged to have a
business relationship with the Chinese Navy. Defendant’s business ties to not only China
5
generally, but to the Chinese military specifically, raise concerns about Defendant’s risk of flight
if allowed to travel to China. Moreover, the United States does not have an extradition treaty with
China.
The Court is not convinced that any of the personal characteristics identified by Defendant
sufficiently mitigate the risk of flight posed by Defendant if allowed to travel to China, or the other
two factors weighing against him. At this time, Defendant is permitted to travel internationally to
a large number of countries in order to grow his business. But, Defendant’s business interests do
not outweigh the Court’s concerns about risk of flight as it relates to China.
IV. CONCLUSION
Upon consideration of all of the evidence and the factors set forth in 18 U.S.C. § 3142(g),
and the possible release conditions set forth in § 3142(c), the Court finds that Defendant’s
appearance is not reasonably assured if Defendant’s conditions of release are modified to allow
travel to China.
Accordingly, for the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
PART Defendant’s [33] Motion to Modify Conditions of Release. Defendant is permitted to travel
to Vietnam, Singapore, and Thailand for business purposes, provided that Defendant provide the
Pretrial Services Agency with an advance copy of his itinerary and continue his weekly check-ins
with the Pretrial Services Agency. However, Defendant is not permitted to travel to China.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
6