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United States v. Phan

May 21, 2009

UNITED STATES OF AMERICA
v.
LYNDA DIEU PHAN, JUSTIN PHAN, DUC CAO NGUYEN



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

JUDGE SYLVIA H. RAMBO

MEMORANDUM

Before the court is a motion by Defendants to suppress physical evidence seized pursuant to two search warrants. (Doc. 57.) For the reasons that follow, the motion will be granted in part and denied in part.

I. Background

A. Procedural History

On December 10, 2008, Defendants Lynda Dieu Phan, Justin Phan, and Duc Cao Nguyen were indicted on charges of (1) conspiracy to commit forced labor and marriage fraud in violation of 18 U.S.C. § 371; (2) forced labor in violation of 18 U.S.C. §§ 1589, 1594; (3) trafficking with respect to forced labor in violation of 18 U.S.C. § 1590, 1594; (4) two counts of marriage fraud in violation of 8 U.S.C. § 1325(c); and (5) forfeiture in violation of 21 U.S.C. § 853.

On April 6, 2009, Defendant Lynda Dieu Phan filed the instant motion to suppress the physical evidence seized pursuant to the warrants (Doc. 57) and a supporting brief (Doc. 58), in which the other Defendants join. On April 21, 2009, the government filed its response. (Doc. 65.) A suppression hearing was held on April 27, 2009. The suppression motion is ripe for disposition.

B. Factual Findings*fn1

On August 7, 2008, Immigration and Customs Enforcement ("ICE") Special Agent Stefanie Fritzges filed applications for two search warrants: one for Defendant Lynda Dieu Phan's home located at 565 Sandpiper Lane in New Cumberland, Pennsylvania (Doc. 58, Ex. 1), and the other for Phan's business, the Da Vi Nail Salon located in a Walmart at 1800 Loucks Road, York, Pennsylvania (Doc. 58, Ex. 4). Both applications were supported by identical affidavits by Agent Fritzges. In the affidavits, Fritzges describes her experience investigating human smuggling and trafficking, and her investigation of Defendants' suspected criminal activity to date. The investigation was primarily based on an August 4, 2008 interview with one of the alleged victims in this case, A.V., a Vietnamese national who was brought to the U.S. by Lynda Dieu Phan to work in her nail salon. Based on the interview with A.V., Agent Fritzges learned the following facts, as set forth in the affidavits:

In 2000, when A.V. was 20 years old, Lynda Dieu Phan made arrangements with A.V.'s aunt to bring A.V. to the United States. According to A.V., Phan promised to pay for the plane ticket and the immigration paperwork, which A.V. would then have to pay back by working in Lynda Dieu Phan's nail salon. In order to obtain a visa, Lynda Dieu Phan instructed A.V. to pretend that she was engaged to Lynda Dieu Phan's brother, Justin Phan, and in August 2004, A.V. entered the United States as Justin Phan's fiancee. Soon after, A.V. and Justin Phan were married, though he lived with his girlfriend and children in another house. Thereafter, Lynda Dieu Phan took A.V. to an immigration attorney who filed an immigration application on behalf of A.V. based on the marriage. Lynda Dieu Phan kept possession of all of A.V.'s immigration documents, and did not permit A.V. to hold any of them. Lynda Dieu Phan charged A.V. for the attorney's fees associated with the immigration paperwork.

Soon after A.V. arrived in the U.S., Lynda Dieu Phan took her to a bank, where Lynda Dieu Phan directed her to sign documents. A.V. was unable to read or write English, and could not understand the documents she signed. A.V. never received any bank statements. Thereafter, every year around January, Lynda Dieu Phan took A.V. back to the bank to sign more documents. Each time, Lynda Dieu Phan folded or concealed the documents so that A.V. could not see what she was signing.

A.V. worked at Lynda Dieu Phan's nail salons, first at Nail Palace, and later at the Da Vi Nail salon. She worked Monday through Saturday from 10:00 a.m. until 9:00 p.m., and five hours on Sundays, and was only permitted to take a break when there were no customers. For this work she received no payment from Lynda Dieu Phan, but she was permitted to keep some of the money given to her by customers as tips. A.V. lived in Lynda Dieu Phan's house, where A.V. also cooked and cleaned. Lynda Dieu Phan told A.V. that she would have to work without pay in the nail salons for three years to reimburse Lynda Dieu Phan for the costs associated with bringing her to the U.S., and for rent and food at Lynda Dieu Phan's house. Because A.V. could not drive, Lynda Dieu Phan drove her to and from work every day.

Six months after A.V. arrived in the United States, Lynda Dieu Phan arranged for a second Vietnamese female, T.V., to come to the U.S. under a similar arrangement. The affidavit alleges that T.V. was fraudulently married to Duc Cao Nguyen, Lynda Dieu Phan's boyfriend and the father of her children. T.V. shared a room with A.V. and worked at the Da Vi Nail Salon. T.V. and A.V. were required to pay Lynda Dieu Phan for bunkbeds, but the beds included no mattresses and the women slept on the floor of the room.

Lynda Dieu Phan instructed A.V. not to tell customers anything about herself or her situation. Lynda Dieu Phan also threatened to send A.V. back to Vietnam if she made mistakes at work, and to send her to jail if she told anyone what was happening to her. Despite these threats, both A.V. and T.V. spoke with customers when Lynda Dieu Phan was not present, and both received cards and gifts from customers, which they hid from Lynda Dieu Phan.

A.V. worked for Lynda Dieu Phan for three years without pay, yet Phan did not advise A.V. that she had fulfilled her agreement and A.V. continued to work without complaint. However, in November 2007, she confronted Lynda Dieu Phan and asked to be paid for the hours that she worked at the nail salon. In response, Lynda Dieu Phan began to charge A.V. $200 per month for rent, and about $300 per month for utilities. Lynda Dieu Phan also demanded payment for attorney fees and travel expenses, in varying and inconsistent amounts ranging from $5000 to $10,000. Lynda Dieu Phan continued to fail to pay A.V. for her work at the nail salon.

A.V.'s conditional residence status expired in April 2008, and at some point she realized that Lynda Dieu Phan had not filed immigration paperwork for her. Fearful that she was in the United States unlawfully, A.V. decided to leave Lynda Dieu Phan's house. With the assistance of a customer from the nail salon, on June 1, 2008, A.V. left Lynda Dieu Phan's house at 1:30 a.m. with her belongings wrapped in a sheet.

On August 4, 2008, A.V. was interviewed by ICE agents. She informed the agents that Lynda Dieu Phan's home was located at 565 Sandpiper Lane in New Cumberland, Pennsylvania, a fact the agents confirmed through a public access database query. Additionally, the query indicated that Tony Phan, Duc Phan, and Duc Cao Nguyen were also associated with the address. The agents conducted surveillance of the property and observed a gray Toyota Highlander parked in the driveway. The agents learned that the vehicle was registered at that address to Cao Duc Nguyen.

According to Agent Fritzges, these facts constituted probable cause to believe that evidence of forced labor, human trafficking, and marriage fraud would be found in the Da Vi Nail Salon and at Lynda Dieu Phan's home. On August 7, 2009, U.S. Magistrate Judge J. Andrew Smyser issued the search warrants for Lynda Dieu Phan's home (Doc. 58, Ex. 2) and the Da Vi Nail Salon (Doc. 58, Ex. 5). Both warrants included an identical description of the items to be seized:

Items to be Searched for and Seized

Identification documents of a Vietnamese national identified in the affidavit as A.V. and a Vietnamese national identified in the affidavit as T.V.; business documents relating to the payroll and employee records of the Nail Palace and Da Vi Nail Salon and to the employment of the Vietnamese nationals identified in the affidavit as A.V. and T.V.; documentary evidence relating to marriage fraud, forced labor, and involuntary servitude schemes involving Lynda Dieu Phan, Justin Phan, Duc Cao Nguyen and others and the individuals identified in the affidavit as A.V. and T.V.; bank records for the Nail Palace, Da Vi Nail Salon, Lynda Dieu Phan, Justin Phan, and Duc Cao Nguyen, and the individuals identified in the affidavit as A.V. and T.V.; tax records for the Nail Palace, Da Vi Nail Salon, Lynda Dieu Phan, Justin Phan, and Duc Cao Nguyen, and ...


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