SAN DIEGO —
On the last day of May, the cargo ship MV Donald sailed into port in San Diego and was welcomed by Coast Guard officials who boarded it to investigate an alleged environmental crime involving the dumping of oil into the sea.
The ship was allowed to set 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 away 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 Russian chief engineer, has only just begun, and as potential witnesses their stopover could stretch for several more months until trial.
The group is now asking a judge to let them go home, including a 30-year-old first-time father who has never met his nearly 11-month-old son, or in the case of the captain, to reunite with his family members who have fled to Europe due to Russia’s war. It appears unlikely they’ll be allowed to leave the U.S. before Christmas.
The plight of the men offers a glimpse at a rare portion of maritime law that allows the U.S. government to hold foreign individuals here for months at a time — and sometimes longer — before criminal charges are ever filed. The witnesses have no say in this agreement between the Coast Guard and shipping companies. The practice could separate the witnesses from their families and homes for a year or longer — though some of the men could also receive a large bounty at the end of the case.
Under the agreement that stranded the men here their ship was allowed to sail off to continue business after its parent company paid a $1.1 million surety bond.
For months, the witnesses idled in San Diego, bouncing around hotel rooms, with no word of charges being filed. Some eventually settled in a shared rented home in Vista.
Then in mid-November the witnesses filed an emergency petition in U.S. District Court. They asked a judge to allow them to participate in depositions and go home to their families. They called their continued presence in the San Diego area, which has now passed six months, unjust and a de facto form of detention, since their passports have been confiscated and they’re not allowed to leave.
The petition worked, insofar as 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 witnesses appeared in court for the first time.
One of the witnesses is an oiler who has been away from home since October 2021. His contract to work on the Donald was supposed to have ended in May or June, at which time he was expecting to go back 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 declaration that was part of the petition. “This will be my first Christmas with my son and I am desperate to be there for his first Christmas and birthday.”
Another of the Filipino witnesses is a 48-year-old father of three who expected 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 are unable to return home. The fifth Filipino witness had a heart attack in early June and wrote that he is “very worried about continuing my healthcare alone in the United States” instead of with his wife and teenage daughter.
The ship’s 58-year-old captain has been away from his home in the frontline city of Kherson during the entirety of Russia’s war in Ukraine. His wife and father-in-law have fled to the nation of Georgia and his daughter and grandchild to Spain.
“I have not seen my family or loved ones in over year,” he wrote in his declaration. “While I am unable to be repatriated to my hometown, I need to be released from detention in the United States so I can finally reunite with my family.”
The U.S. Attorney’s Office is opposing their request, arguing the men are not detained and thus not entitled to the same deposition and release process as witnesses who are held in custody. That’s because as part of the agreement between the shipping company and the Coast Guard, the shipping company is paying their full salaries, lodging, healthcare and a daily food stipend.
A spokesperson for the U.S. Attorney’s Office and the prosecutors assigned to the case declined to comment. Attorneys 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 the witnesses in such proceedings is “unfortunately rather common in maritime cases.”
Greenberg said he’s been involved in or knows of cases in which witnesses, while being held indefinitely in the U.S. or other foreign countries awaiting criminal proceedings, have committed suicide, attempted to commit suicide or been held for more than a year.
He said being held indefinitely — even outside of detention, when food and lodging is taken care of and wages are being paid — takes a toll on witnesses.
“Imagine you went to Greece on vacation, you saw a crime, and you were ordered to stay in Greece the next six months,” Greenberg said.
In a court filing, Greenberg did not oppose deposing the witnesses and allowing them to leave the U.S., or allowing them to leave with a promise to return for trial. But based on the amount of evidence that he needs to review before taking the depositions, he told the court it would be impossible to depose them before Christmas, as the 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 U.S. until trial, promising that they would expedite the proceedings, Greenberg noted in his filing that the witnesses have two overwhelmingly compelling reasons to return for the trial: failing to attend would negatively impact their chances at getting a U.S. visa, which would “effectively terminate” their ability to ever work in the shipping industry again, and at least some of the witnesses could be entitled to a share of any fine levied against the shipping company.
“The crewmembers will be available, one-way or the other, for trial,” Greenberg wrote. “Their continued detention in the United States is unnecessary.”
Assistant U.S. Attorney Melanie Pierson and Stephen Da Ponte, a senior trial attorney from a Department of Justice environmental crimes unit, argued in a motion that live testimony would be stronger than depositions if the case were to go to trial.
“Requiring the material witnesses to testify live at trial allows both the government and the defendant the opportunity to fully develop their testimony, and allows the jury to evaluate their demeanor,” the prosecutors argued.
They also argued that cases like this one differ from other, more common cases involving material witnesses. In San Diego, prosecutions of human smugglers often involve the detention of witnesses, the people who were being smuggled across the border. Often, those witnesses are deposed and sent back home.
And in court late last month, Pierson brought up another issue she sees with the case: the shipping company, which she said authorities are investigating in connection with this incident, is paying for the attorneys for both the defendant and the witnesses.
As for the crime itself, Korotkiy was indicted Thursday on three counts of obstructing justice and one count of failing to maintain an accurate oil record book. Prosecutors use the record keeping violation as a backdoor way to prosecute, and hopefully discourage, environmental crimes that occur in international waters outside of U.S. jurisdiction.
In a nearly identical case earlier this year, a ship’s chief engineer was sentenced to a year in custody, and the vessel’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 probation period.
According to a press release from the U.S. Attorney’s Office in that case, the discharge of unfiltered, oily bilge water in cases like this accounts for about 37 percent of worldwide ocean oil pollution.
In that case, four witnesses from the ship, as well as the defendant, were held in San Diego under the same type of deal as those from the Donald, according to court records. It’s unclear exactly how long the witnesses were held, but that case was resolved with a plea agreement some six to seven months after they were removed from their ship.
The men from the Donald may get an answer on Tuesday, when another hearing is scheduled at which a judge could decide whether they can participate in depositions and be allowed to return home.