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In re Application for Material Witness Summons

United States District Court, N.D. California

September 5, 2019

IN RE APPLICATION FOR MATERIAL WITNESS SUMMONS IN RE MOTOR TANKER ZAO GALAXY

          ORDER GRANTING RENEWED PETITION FOR RELEASE BY MATERIAL WITNESS RE: DKT. NO. 8

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE

         On July 3, 2019, Petitioner Sonny Maralit Macasaet filed a petition for release. (No. 19-mc-80172-TSH, Dkt. No. 1.) The petition was subsequently denied without prejudice by Judge Hixson on July 30, 2019. (No. 19-mc-80172-TSH, Dkt. No. 8 (“Hixson Ord.”).)

         Pending before the Court is Petitioner's renewed petition. (Renewed Petition, Dkt. No. 8.) Having considered the parties' filings, the relevant legal authorities, and the arguments made at the September 4, 2019 hearing, the Court GRANTS Petitioner's petition for release.

         I. BACKGROUND

         A. Factual Background

         Petitioner is a citizen of the Philippines, and was the Chief Engineer of the M/T Zao Galaxy (“Zao Galaxy”), an oceangoing motor tanker. (Renewed Petition, Exh. A (“Petition”) at 2, Dkt. No. 8-1.) On February 10, 2019, the Zao Galaxy arrived at the Port of Richmond. (Id.) On February 11, 2019, the U.S. Coast Guard boarded the Zao Galaxy to conduct a safety inspection. While on board, a crewmember allegedly told the inspectors that oily water had been illegally discharged into international waters. (Id.; Renewed Petition, Exh. C (“Gov.'s Opp'n”) at 2.) The Coast Guard initiated an inspection into potential violations of the Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901, and the International Convention for the Prevention of the Pollution from Ships (“MARPOL”). (Id.)

         During the investigation, the Coast Guard obtained videos of drum containers, flexible pipes, and flanges (“hose-and-barrel system”) set up in the vessel's engine room, designed to discharge untreated oily waste directly into the ocean. (Gov.'s Opp'n at 2-3.) Two crew members confirmed the purpose of the hose-and-barrel system was to discharge oily waste directly into the ocean, and that they had been ordered by the vessel's First Engineer to perform the illegal discharge. (Id. at 3.) Petitioner also confirmed that he saw the hose-and-barrel system. (Id.) The Coast Guard reviewed the “Oil Record Book” (“ORB”), which are records of the equipment used to clean oily waste water before being dumped into the ocean. (Id.) The ORB entries, which had been approved by the vessel's captain and Petitioner, showed discrepancies, including unaccounted for oily waste and no entries to document the use of the hose-and-barrel system. (Id.)

         On February 20, 2019, the Coast Guard and the Zao Galaxy's owner entered into a Security Agreement, allowing the vessel to leave while the investigation proceeded. (Petition at 2; Gov.'s Opp'n at 3.) As a condition, Petitioner and nine other crew members were required to surrender their passports and remain in the Northern District of California. (Petition at 2-3; Gov.'s Opp'n at 3-4.) The Security Agreement required that the Zao Galaxy's owner provide the crew members: (1) their full salaries, (2) a daily $50 per diem, (3) health care coverage, and (4) lodging. (Gov.'s Opp'n at 4.)

         The Government's investigation is ongoing. On May 3, 2019, the Government interviewed Petitioner pursuant to a letter immunity agreement. (Petition at 4; Schwartz Decl. ¶ 5, Dkt. No. 8-1.) Petitioner's counsel was informed that Petitioner was the last crew member to be interviewed, aside from the First Engineer (the target of the investigation, and who will not be interviewed). (Schwartz Decl. ¶ 5.) Petitioner's counsel further believes no interviews of any crew members have been conducted since. (Id.)

         On July 10, 2019, the Government requested information and/or materials pertinent to the investigation. (Gov.'s Opp'n at 4-5.) This information is in addition to the eight computers and one portable hard drive seized from the Zao Galaxy, which contains eight terabytes of vessel data. (Id. at 4.) The Government states that once it does not require the crew members to remain in the Northern District of California, it repatriates the crew member; five of the crew members have been returned to their countries or origin. (Id. at 5.) The remaining crew members are: (1) the Captain, (2) Petitioner, the Chief Engineer, (3) the First Engineer, (4) the crew member who recorded the illegal dumping, and (5) the crew member who was directed to set up the hose-and-drum system. (Id.) The Government is currently engaged in negotiations for a pre-indictment resolution. (Id.)

         In the meantime, Petitioner currently resides in a hotel in Emeryville. (Petition at 3; Gov.'s Opp'n at 4.) Petitioner's contract with the Zao Galaxy expired on May 26, 2019, after which he was to return to the Philippines.[1] (Petition at 3.) Petitioner's family remains in the Philippines. (Id.)

         B. Procedural Background

         On July 3, 2019, Petitioner filed his original petition for release before Judge Hixson. (No. 19-mc-80172-TSH, Dkt. No. 1.) On July 17, 2019, the Government filed its opposition. On July 18, 2019, the Government filed an application for the Court to issue a material witness summons to Petitioner. (Material Witness App., Dkt. No. 1.) The Court granted the petition that same day. (Dkt. No. 4.) On July 24, 2019, Petitioner filed his reply in support of his petition for release. (No. 19-mc-80172-TSH, Dkt. No. 7; Renewed Petition, Exh. D (“Petitioner's Reply”).) On July 30, 2019, Judge Hixson denied the petition for release without prejudice. (Hixson Ord. at 1.) Judge Hixson explained that because a material witness summons has been issued, “any relief sought by [Petitioner] is properly raised in the action now pending before Judge Westmore.” (Id.)

         On August 5, 2019, Petitioner filed his renewed petition for release in the instant case. Petitioner attached the original petition, the Government's opposition, and his reply. Petitioner requests that the Court compel the return of his passport and his immediate release, or the ...


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