33 F.3d 1396 (3rd Cir. 1994), 93-7671, United States v. Reilly

• Citation: 33 F.3d 1396
• Party Name: UNITED STATES of America, v. William P. REILLY, Appellant. UNITED STATES of America, v. John Patrick DOWD, Appellant.
• Case Date: July 28, 1994
• Court: United States Courts of Appeals, U.S. Court of Appeals — Third Circuit

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33 F.3d 1396 (3rd Cir. 1994)

UNITED STATES of America,

v.

William P. REILLY, Appellant.

UNITED STATES of America,

v.

John Patrick DOWD, Appellant.

Nos. 93-7671 to 93-7673, 93-7684 to 93-7686 and 93-7694.

United States Court of Appeals, Third Circuit

July 28, 1994

Argued May 2, 1994.

Sur Petitions for Rehearing

Aug. 31, 1994.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Lois J. Schiffer, Acting Asst. Atty. Gen., Howard P. Stewart, Christina E. Steck,

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David C. Shilton (argued), and J. Carol Williams, U.S. Dept. of Justice, Washington, DC, for appellee.

Marc B. Tucker (argued), Randolph K. Herndon, Daniel V. Folt, and Andre G. Bouchard, Skadden, Arps, Slate, Meagher & Flom, Wilmington, DE, for appellant William P. Reilly.

Andrew L. Frey (argued), Lawrence S. Robbins, John J. Sullivan, and Dorrann E. Banks, Mayer, Brown & Platt, Washington, DC, for appellant John Patrick Dowd.

Before: GREENBERG and GARTH, Circuit Judges, and ROBRENO, District Judge ^[*].

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

This is an appeal from judgments of conviction and sentence entered following a jury trial in the United States District Court for the District of Delaware. ¹ The appellants are John Patrick Dowd, who was convicted of knowingly making a false declaration under oath, 18 U.S.C. Sec. 1623(a), and William P. Reilly, who was convicted of knowingly making false declarations under oath, 18 U.S.C. Sec. 1623(a), and of transporting incinerator ash from the United States for the purpose of dumping it into the ocean, 33 U.S.C. Sec. 1411(a). The charges against Dowd and Reilly arose from three sources: a Delaware indictment alleging that they knowingly made false material declarations before a grand jury; a Delaware information charging Reilly with the dumping violation; and a Pennsylvania indictment alleging that Reilly knowingly made false material declarations before a district court during a contempt hearing. The Pennsylvania indictment was transferred to the District of Delaware for consolidation and trial. The district court had subject matter jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a).

Dowd and Reilly were respectively the president and vice president of Coastal Carriers Corporation, which was based in Annapolis, Maryland. Coastal Carriers acted as an agent for the Amalgamated Shipping Corporation, a Bahamas corporation whose president and vice-president, respectively, were Robert Cordes and Henry Dowd, John Patrick Dowd's father. Cordes was also president of several other corporations including MASCO, Lily Navigation, and Romo Shipping Corporation. In early 1986, John Patrick Dowd and Reilly entered into negotiations with Joseph Paolino & Sons, Inc., a contractor with the City of Philadelphia, leading to Paolino and Amalgamated signing a contract on June 23, 1986, in which Amalgamated agreed to transport and dispose of incinerator ash residue produced by the city.

Subsequently, Amalgamated entered into a two-year time charter with Lily Navigation for one of Lily's ships, the Khian Sea. In August 1986, Paolino loaded approximately 13,500 tons of incinerator ash into the holds of the Khian Sea, while the ship was docked at Girard Point in Philadelphia. See U.S. app. at 249-251. Later that month, the Khian Sea left Philadelphia for the Bahamas where Amalgamated intended to dispose of the ash. However, before the Khian Sea reached the Bahamas, that country denied Amalgamated permission to dispose of the ash. Apparently, the Khian Sea then sailed around the Caribbean for more than a year while a disposal site was sought.

In November 1987, Amalgamated had not yet found a site for the ash, and the ship was anchored in Puerto Cortes, Honduras. At that point, the captain of the Khian Sea left the ship, and Reilly hired Arturo Fuentes, a captain who lived in Puerto Cortes, to replace him. Reilly directed Fuentes to take the ship to Haiti, where the ash would be off-loaded. After the Khian Sea arrived in Haiti,

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its crew began off-loading the ash but the Haitian military authorities interrupted the operation and required the ship to leave. At that time, more than half of the original ash remained on the ship.

Fuentes testified that Reilly then instructed him to take the ship to Ocean Cay in the Bahamas to pick up a small bulldozer called a "bobcat." See R. app. at 663-64. After picking up the bulldozer, the Khian Sea went to Ft. Pierce, Florida, where Reilly boarded the ship, and according to Fuentes, promised the ship's officers and crew additional compensation to begin dumping the ash into the ocean while en route to West Africa. Id. at 673-74. The Khian Sea left Ft. Pierce but before it began the dumping, "AMALGAMATED ANNAPOLIS" sent Fuentes a radiotelegram instructing him to "SUSPEND OPERATIONS" and proceed to Philadelphia. Id. at 679-80, 1189. Fuentes received another radiotelegram on February 27, 1988, signed "AMALGAMATED" instructing him to "CALL 301 544 2909 AT 1900 TODAY." Id. at 1192. The phone number was Reilly's home phone number, which Fuentes frequently called to contact Reilly. Id. at 686.

The Khian Sea entered Delaware Bay on March 1, 1988, and anchored at Big Stone Beach. See D. app. at 71. While the ship was anchored there, Paolino and Coastal Carriers engaged in negotiations regarding the disposal of the ash. However, they could not reach an agreement on the price for disposal. See U.S. app. at 3-4. During this period, Reilly boarded the Khian Sea several times, and according to Fuentes, he and Reilly discussed the execution of the dumping plan they had developed in Ft. Pierce. Subsequently, Reilly directed Fuentes to leave for the Atlantic, and the Khian Sea left the Delaware Bay on May 22, 1988, against the orders of the Coast Guard. See D. app. at 278; R. app. at 699-700, 854; U.S. app. at 5, 239-40.

A few days after the Khian Sea left the Delaware Bay, its crew began dumping the ash into the Atlantic Ocean. This dumping continued for about two weeks, but stopped when "all the equipment broke down." See R. app. at 855. During the two-week period of dumping, Fuentes and Reilly communicated frequently. See D. app. at 281-92. Subsequently, in July 1988, the Khian Sea docked in Bijela, Yugoslavia, for repairs. See R. app. at 856. ²

Reilly wrote to the American Bureau of Shipping to request that the ship be reclassified inasmuch as it had lost its classification after leaving the Delaware Bay without permission. ³ However, on August 17, 1988, the Bureau sent a letter to Reilly informing him that its surveyor could not examine the holds because "the vessel remains about half loaded with cargo," see U.S. app. at 259, and thus, the ship only was authorized to sail directly to Manila for completion of the reclassification surveys, id. at 63.

Reilly met with Fuentes in Yugoslavia, and told him that: (1) Kimon Berbillis, a representative of Romo Shipping, would give him instructions regarding the remainder of the trip; (2) if no country agreed to accept the remaining ash, it would be dumped in the ocean; and (3) they would refer to the ash as "ballast." See D. app. at 299, 304-05. The ship left Yugoslavia and transited the Suez Canal in September 1988. Id. at 300-01. Subsequently, Fuentes received a radiotelegram from Berbillis, stating that Fuentes should arrive in Colombo, Sri Lanka, with only "500 TONS" of ballast, and that Reilly would cable him information he had requested. See R. app. at 1214. The next day, Fuentes received confirmation from Annapolis that the ship should arrive in Colombo with only 500 tons on board. Id. at 1215. In accordance with these instructions, Fuentes

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dumped all but 500 tons of the remaining ash into the Indian Ocean. Id. at 719-20.

On October 9, 1988, Fuentes received a radiotelegram directing him to proceed to Singapore, instead of to Colombo, see id. at 1216, and on October 15, he received a radiotelegram directing him to dump the remaining 500 tons of ash, id. at 1218. Prior to the ship's arrival in Singapore, Reilly telefaxed a letter to the American Bureau of Shipping, stating that the Khian Sea would arrive in Singapore "for the completion of class work." See U.S. app. at 261. When the ship arrived in Singapore in November 1988, its cargo holds were empty. According to Fuentes, Dowd boarded the ship in Singapore, removed gear that had been used in the dumping operation, see R. app. at 729-30, and told Fuentes to replace the ship's logbook with a falsified logbook, see D. app. 322-25, and to tell any inquiring journalists that the ash had been dumped in a country which could not be revealed, id. at 320. The Khian Sea then proceeded to Shanghai, where it was reclassified. See U.S. app. at 64. Fuentes left the ship at this point, taking copies of radiotelegrams and communication logs with him. See R. app. at 665, 739.

B. Procedural History

Paolino filed suit against Coastal Carriers, Amalgamated, and others, and on June 2, 1988, the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction, enjoining the defendants, their officers, and their agents from off-loading or disposing of the ash without first providing Paolino with at least three days written notice of the proposed place, manner, and method of disposal. The district court held a contempt hearing on December 15, 1988, to determine if the defendants had violated the preliminary injunction. At the hearing, Reilly was asked, under oath, whether he had "any knowledge ... as to what happened to the incinerator residue" on board the Khian Sea, or "any knowledge as to the means by which it might be ascertained what happened to the residue." See U.S. app. at 275. Reilly responded "[n]o,...