News : \'Upward departure:\' Federal prosecutors seek more jail time for Duong, Long

A two-word legal phrase in federal court documents filed recently has an ominous meaning for Phung Ca (Polly) Long and Chan Duong, the owners of the Peony restaurants in Vinton and Toledo.

That phrase is "upward departure." In short, it means that something has happened in a criminal case that has prompted a prosecutor to seek (or a judge to order) a prison sentence longer than the sentence previously recommended.

Just a few days before she and her husband were to face sentencing in their federal illegal immigration case, Phung Ca (Polly) Long opened her door on May 3, to see a group of ICE Agents. The federal search warrant executed that day at the couple's home and restaurants led to a longer court journey for the couple, as well as their arrest later that week. See that story HERE.

Sentencing had been scheduled for May 9; but that hearing was replaced with a detention hearing. The couple, who had been freed pending sentencing, now will remain in custody until sentencing. A tentative sentencing hearing had been re-set for today (July 7), but Chief Judge Linda Reade canceled that hearing in an order signed July 1. A new sentencing date has not yet been set.

The phrase "upward departure" appears several times in a Supplemental Sentencing Memorandum signed by Assistant U.S. Attorney Patrick Reinert.

"The defendants' continuation of their criminal conduct is also properly the basis for an upward departure," wrote Reinert. "In this case the evidence will show that the defendants continued their fraud-related activities unabated by the criminal prosecution or the fact that they were on pre-sentence release after their guilty pleas were entered."

Reinert wrote that the defendants committed "a potpourri of felony offenses" after being freed. He summarized in a few paragraphs what federal agents allege that Duong and Long had done and also continued to do after their guilty pleas late in 2010.

"In the initial investigation the facts establish that the defendants committed money laundering by conducting financial transactions using the proceeds of alien harboring and other frauds (mail and wire) to promote the carrying on of alien harboring and to conceal the proceeds of harboring and various frauds committed by the defendants. The defendants mailed payments of the "employment fee" charged by Good Again Job Service by withholding the fee from the illegal alien's first pay check. The defendants also conducted financial transactions by placing proceeds of harboring, mail fraud and wire fraud into safety deposit boxes and conducing other financial transactions related to the purchase of real and personal property with the proceeds of criminal activity. There are numerous substantive money laundering violations not yet prosecuted." he wrote.

Reinert also alleges that the evidence shows the couple failed to collect and pay state sales tax as well as filed false income tax returns. They are also accused of paying some employees partially in cash without reporting the true wages, thus failing to properly withhold income and payroll taxes.

Also, wrote Reinert, the defendants agreed to not break federal or state laws as a condition of their pre-trial release, but broke several laws anyway. That, he said, could result in a contempt of court prosecution that could result in additional terms of imprisonment.

Duong and Long have remained in federal custody since their May 9 hearing. Sentencing will be set at a later date. While the final sentences for Long and Duong will be set by Judge Reade, the new evidence and the filing of the request for upward departure are a strong indication that the couple may now face longer prison terms.

Meanwhile, in Vinton, the sign on the window at The Peony Family Restaurant in downtown Vinton advises that the friends and relatives of Chan Duong and Phung Ca (Polly) Long who are operating the restaurant are taking a few days of vacation.

For a history of the case, click HERE.