United States v. Qi Hanson ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA §
v. § Criminal No. 09-0071 (PLF)
YAMING NINA QI HANSON, §
Defendant. §
)
OPINION AND ORDER
This matter is before the Court on defendant Yaming Nina Qi Hanson’s motion
for bond review filed on March 9, 2009 and her second motion for bond review filed on March
20, 2009. The government filed an opposition on March 25, 2009, and the Court held hearings
on these motions on March 25, 2009 and April l, 2009. At the conclusion of the second hearing,
the Court took the matter under advisement and promised a written opinion shortly thereafter
On April 6, 2009, Mrs. Hanson’s attorney filed a motion to withdraw his appearance which the
Court subsequently granted. Awaiting the entry of an appearance by new counsel, the Court
issued an order on April 9, 2009, indicating that, in fairness to Mrs. Hanson and her new lawyer,
the Court would not make a decision until after new counsel had an opportunity to present any
additional arguments with respect to the bond review motions. New counsel entered his
appearance on April 23, 2009 and filed a supplemental memorandum of law in support of
defendant’s second motion for bond review on April 28, 2009. The Court heard further argument
on April 30, 2009. Defendant, through her new counsel, filed a further supplement in support of
her motion on May 8, 2009, and the government filed a response later that same day.
I. BACKGROUND
A three-count indictment was returned by a grand jury against defendant Yaming
Nina Qi Hanson; her husband, Harold Dewitt Hanson; and ARC lntemational LLC, a company
of which Mrs. Hanson allegedly was the co-owner and president. Mrs. Hanson and her husband
are charged in the first count of the indictment with conspiracy to violate the lnternational
Emergency Economic Powers Act and the Export Administration Regulations, in violation of
18 U.S.C. § 371. Mrs. Hanson is charged in the second count of the indictment with violations
of the lnternational Emergency Economic Powers Act, 50 U.S.C. § 1705, and the Export
Administration Regulations, l5 C.F.R. §§ 744 and 764.2. Her husband is charged in the third
count with making a false statement in violation of 18 U.S.C. § l00l.
The indictment alleges that the defendants illegally exported unmanned aerial
vehicle ("UAV") autopilot components to the People’s Republic of China. According to the
government, Mrs. Hanson carried these UAV components to Germany and handed them to an
acquaintance who took them to China. The government represents that these sophisticated
components enable UAVs to perform certain tasks without the aid of human pilots, including
autonomous take offs, bungee launches, and hand launches and landings, and that they have other
tactical military uses. Moreover, according to the government’s expert, UAVs equipped with
these components could be used to simulate stealth planes and cruise missiles to test air defense
detection systems, and potentially could be armed. Thus, the United States has made a foreign
policy and legal determination that these items should be controlled for national security reasons
through licensing. The govemment alleges that, at the time Mrs. Hanson smuggled these items
out of the United States, both defendants knew that a license was required for the export of such
items. The government represents that, by its calculation, the base offense level for the offenses
with which Mrs. Hanson is charged under the United States Sentencing Guidelines is 26.
Assuming a Criminal History Category of I, Mrs. Hanson is facing a guideline sentencing range
of between 63 and 78 months in prison.
All of these representations were made to Magistrate Judge Alan Kay at a
detention hearing on February 17, 2009. At the conclusion of the hearing, Magistrate Judge Kay
concluded that Mrs. Hanson should be held without bond under the Bail Reform Act of l984,
18 U.S.C. §§ 3141 et seq., finding that there were no conditions of release that would reasonably
assure her future presence in court. Among other things, he found that the charges against her
were serious and carried a potential for a significant period of incarceration; that the govemment
has strong evidence against Mrs. Hanson, including her own statements to investigators that she
smuggled the UAV autopilot components out of the United States and knew there were licensing
requirements for such items; and that she has strong ties to China (including the fact that she
owns property in China), despite the fact that she is a naturalized citizen of the United States. On
the basis of the information provided to it, this Court agrees with these factual findings.
H. THE BAlL REFORM ACT
Our system of criminal justice embraces a strong presumption against detention.
"‘In our society liberty is the norrn, and detention prior to trial or without trial is the carefully
limited exception."’ United States v. Gloster, 969 F. Supp. 92, 96-97 (D.D.C. 1997) (quoting
United States v. Salerno, 481 U.S. 739, 755 (1987)). The Bail Reform Act of 1984 sets forth the
limited circumstances in which a defendant may be detained before trial despite the presumption
in favor of liberty. The Act provides that if a judicial officer finds by clear and convincing
evidence that "no condition or combination of conditions will reasonably assure . . . the safety of
any other person and the community, such judicial officer shall order the detention of the
[defendant] before trial." 18 U.S.C. § 3142(e). The Act also provides for pretrial detention when
the Court finds by a preponderance of the evidence that no condition or combination of
conditions will reasonably assure the appearance of the defendant in court as required. §
18 U.S.C. § 3l42(e); United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987). As the D.C.
Circuit has said, "[t]hat preponderance must, of course, go to the ultimate issues that no
combination of conditions -- either those set out in the Bail Reform Act itself or any others that
the magistrate or judge might find useful -- can ‘reasonably’ assure that the defendant will appear
for trial." United States v. Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996).
The Act sets out a number of conditions that may be used to ensure appearance,
including third party custody; maintaining employment; abiding by restrictions on place of abode
or travel; reporting on a regular basis to a designated law enforcement agency; complying with a
curfew; executing a bail bond; and any other condition that the Court deems "reasonab1y
necessary" to assure appearance. 18 U.S.C. § 3 l42(c). In deciding whether available conditions
will reasonably assure the defendant’s appearance, a court is to consider the nature and
circumstances of the offense, including whether it is violent or nonviolent in nature; the weight
of the evidence; the history and characteristics of the person, including her character, family ties,
employment, length of residence in the community, community ties, past conduct, criminal
history, and record of court appearances; and the danger the defendant poses to the community if
released. § 18 U.S.C. § 3142(g).
The Court’s review of the magistrate judge’s bail determination is de novo. The
Court is free to use in its analysis any evidence or reasons relied on by the magistrate judge, but it
may also hear additional evidence and rely on its own reasons. § United States v. Anderson,
384 F. Supp. 2d 32, 33 (D.D.C. 2005); United States v. Karni, 298 F. Supp. 2d 129, 130 (D.D.C.
2004) (citing United States v. Hudspeth, 143 F. Supp. 2d 32, 35-36 (D.D.C. 2001)). ln a pretrial
detention hearing conducted under the Bail Reform Act, both the government and the defendant
may present evidence by way of proffer, rather than by presenting live testimony. United States
v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996); United States v. Karni, 298 F. Supp.2d at 131.
III. THE PART1ES’ ARGUMENTS
The government argues that while Mrs. Hanson is a naturalized citizen of the
United States, she has more significant ties to China and sufficient financial resources to make
her a serious flight risk. She currently has no job in the United States. As recently as February
2009, she indicated in her passport renewal application that she intended to leave the United
States and go to China for a six-month period. The govemment proffers that Mrs. Hanson has a
son, an ex-husband, siblings and other relatives in China, and that, by contrast, her marriage to
her co-defendant is troubled and that he may be seeking a divorce. Furthermore, Mrs. Hanson
owns two properties in China and maintains close business connections there with friends and
former classmates. The govemment further argues that, although Mrs. Hanson has now
surrendered or has had confiscated from her six passports -- some from China, some from the
United States, some current and some expired -- she would easily be able to obtain a new
passport through the Chinese Embassy. They also point out that she used her official U.S.
passport, rather than her tourist passport, on the day she allegedly departed the United States to
travel to China with the UAV components in her luggage.
Mrs. Hanson responds that she does have longstanding ties to the United States.
She came to the United States in 1989 on a student visa to attend graduate school and later
obtained a temporary green card, which became permanent in 1993. Between 1991 and l993,
Mrs. Hanson worked as a travel agent, serving mainly the Chinese immigrant community, in
New York City. In 1994, she moved to San Francisco where she met her co-defendant, whom
she married in 1998. Mr. and Mrs. Hanson jointly own a home in Salinas, California, valued at
between $250,000 and $350,000, and rent a home in the Washington Metropolitan area. Mrs.
Hanson became a naturalized United States citizen in 1999. Mrs. Hanson represents that she has
serious medical problems, and the D.C. Jail confirms that she currently takes six different
medications.
During their ten years of marriage, the Hansons have spent almost all of their time
living abroad, in Gerrnany, Italy and South Korea. Their stays abroad were because of Mr.
Hanson’s service as a health officer for the United States Army at various army hospitals around
the world. ln November 2007, Mr. Hanson left his post in South Korea to come to Washington,
D.C. to work at the Walter Reed Arrny Medical Center. Mr. and Mrs. Hanson are now renting a
house in Silver Spring, Maryland. Mrs. Hanson’s adopted 27-year-old son lives with them.
During 2008, Mrs. Hanson spent most of her time abroad, sometimes for personal reasons and
sometimes for business reasons; in fact, during calendar year 2008, she spent only 22 days in the
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United States. Mrs. Hanson has no criminal record in the United States and (so far as is known)
no criminal record abroad,
For the hearing on April 1, 2009, Mr. Alanis Binani traveled from New York City
to attest to Mrs. Hanson’s integrity, trustworthiness and reliability. Mr. Binani was Mrs.
Hanson’s employer from 1991 to 1993. He expressed his confidence that Mrs. Hanson will not
flee if released on bond and even offered his home as security for her appearance. Mrs. Hanson’s
lawyers argue that Mrs. Hanson had an opportunity to flee between January 29, 2009 (when her
home in Maryland was searched and she was interrogated) and February 12, 2009 (when she was
arrested), but did not flee. The government, they maintain, has proffered no evidence of Mrs.
Hanson’s intent to flee.
In sum, the government’s primary arguments for detention without bond are that:
(l) Mrs. Hanson, although a naturalized United States citizen, actually has closer ties and greater
affinity with China; (2) because her marital relationship is faltering, she has no family reasons to
remain in the United States; (3) because of the potential sentence she faces in a case where the
government has very strong evidence, she has an incentive to flee the country; (4) despite the fact
that Mrs. Hanson has surrendered her passports, it would be very easy for her to get a new
Chinese passport from the Embassy and depart for China; (5) because of her business interests,
family ties and property in China, Mrs. Hanson could relocate with ease. For her part, Mrs.
Hanson insists that none of these arguments, or the evidence offered in support of them, suffice
to support her pretrial detention. The Court finds that there are conditions of release that, in
combination, will reasonably assure her appearance in court as required.
IV. DISCUSSION
A similar situation was presented to Judge Hogan in United States v. Karni,
298 F. Supp. 2d 129 (D.D.C. 2004). The defendant in that case was an Israeli national who lived
in South Africa with his wife and one of his children; he had been a resident of South Africa for
eighteen years and owned a home there. Like Mrs. Hanson, Mr. Karni was charged with
violating the Export Administration Regulations and the lnternational Emergency Economic
Powers Act, As here, the weight of the evidence against Mr. Kami was "substantial." Moreover,
like Mrs. Hanson, he had no known criminal history in the United States or elsewhere. §
United States v. Kami, 298 F. Supp. 2d at 132. Unlike Mrs. Hanson, Mr. Kami was not a United
States national and had no ties to either the United States or to the Washington, D.C. area. He
owned no property in this country and had no family living here, l_cl.
Upon consideration of the relevant factors under the Bail Reform Act, Judge
Hogan determined that there was no evidence of an intent to flee and there was some
combination of conditions that would reasonably assure the defendant’s presence in court when
required. _S_g United States v. Karni, 298 F. Supp. 2d at 132-33. Cornpare United States v.
Anderson, 384 F. Supp. 2d at 36 (finding "strong circumstantial evidence of [Anderson’s] clear
interest in fleeing the jurisdiction and his intent to do so" by virtue of his use of aliases and false
identities and possession of literature on how to disguise identity and hide assets). ln this case,
like Kalrni and unlike Anderson, there is no strong circumstantial evidence indicating that Mrs.
Hanson intends to flee the United States. The conditions Judge Hogan found appropriate in
_lg_rii were home detention with electronic monitoring; a waiver of rights not to be extradited to
the United States should Mr. Kami return to Israel or South Africa; a $75,000 bond posted by a
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third party; the posting of $100,000 in cash by Mr. Karni from his own funds; and release into the
custody of a third party. §§ i_d. at 133.
In considering whether similar conditions might work in this case, the Court
requested the District of Columbia Pretrial Services Agency ("PSA") to screen Mrs. Hanson to
determine if she was eligible for the High Intensity Supervision Program ("HISP"). PSA reports
that Mrs. Hanson is eligible for placement in this program, and recommends that she be placed in
the Home Confinement Phase of the program with global positioning system ("GPS")
monitoring. Under HISP, Mrs. Hanson would wear a GPS bracelet on her ankle at all times and
could leave her home only after receiving authorization from PSA for specific purposes (i.e.,
verified appointments with her defense lawyers or doctor). Once the GPS monitoring device is
activated, Mrs. Hanson’s location is tracked by G4S, PSA’s electronic monitoring vendor. If
Mrs. Hanson were to remove or otherwise tamper with the GPS ankle bracelet, or were to enter
or leave a specific pre-defined area, the system would report automatically to the electronic
monitoring vendor, which in tum will provide notification to PSA. In order to ensure that Mrs.
Hanson would be monitored 24 hours a day, seven days a week, PSA has agreed to arrange with
G4S for it to simultaneously notify two special agents (one from the Department of Commerce
and the other from the FBI) of infractions by Mrs. Hanson.
The Court concludes that conditions similar to those imposed in @_nj will
reasonably assure that Mrs. Hanson will appear in court when required. The Court does not
believe, despite defense counsel’s arguments to the contrary, that reasonable conditions at this
time include permitting Mrs. Hanson to leave her home to seek employment or to attend religious
services. The Court will, however, release Mrs. Hanson on bond with the following conditions:
1. Mrs. Hanson will participate in the High Intensity Supervision Program
("HlSP") with global positioning system ("GPS") monitoring under the supervision of the
District of Columbia Pretrial Services Agency ("PSA").
2. Mrs. Hanson is being released into the Home Confinement Phase of the
program, meaning that she is to reside at
, with her husband.
3. Mrs. Hanson will keep the GPS equipment properly charged and to maintain it
in accordance with the directions she will be given.
4. Mrs. Hanson will wear a GPS ankle bracelet at all times to enable appropriate
monitoring by HISP and agrees not to tamper with or remove it for any reason without
authorization.
5. Mrs. Hanson may leave her home only after receiving authorization from PSA
for verified appointments with her defense lawyers or doctors as needed. She is not authorized to
leave her home to seek employment or to attend religious services.
6. Mrs. Hanson is expressly prohibited, as a condition of supervision, from
entering or being in the immediate vicinity of Union Station or any airport without specific
permission of this Court, including (but not limited to) Washington Reagan National Airport,
Washington Dulles lnternational Airport and Baltimore-Washington lnternational Airport.
7. Mrs. Hanson is expressly prohibited, as a condition of supervision, from
leaving the United States.
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8. PSA shall arrange for G4S, its electronic monitoring vendor, to directly notify
Special Agent Philip R. Kuhn or Special Agent Kristen B. Komer immediately upon receipt of an
infraction or possible infraction, whenever it may occur, seven days a week, 24 hours a day.
9. If PSA is alerted or notified during business hours of any infraction or possible
infraction by Mrs. Hanson, a representative of PSA shall immediately call the Chambers of the
undersigned and shall immediately coordinate with Special Agent Philip R. Kuhn and/or Special
Agent Kristen B. Komer.
10. Mrs. Hanson agrees not to seek to obtain any new passport during the
pendency of this matter and to surrender any additional passports she has not already
surrendered, whether current or expired.
ll. Mr. and Mrs. Hanson shall post their home in Salinas, California, as security
subject to immediate forfeiture should there be any infraction by Mrs. Hanson of the conditions
set forth in this Opinion and Order.
These requirements will be conditions precedent to Mrs. Hanson’s release on
bond. Once these preconditions are met, PSA shall present a formal release order to the Court.
Should any of these conditions be violated, the agents who will be notified are authorized to take
Mrs. Hanson into immediate custody.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
DATE: May 12, 2009 United States District Judge
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