U.S. v. Ionia Management S.A., 3:07cr134 (JBA).

• Decision Date: 30 July 2007
• Docket Number: No. 3:07cr134 (JBA).,3:07cr134 (JBA).
• Citation: 498 F.Supp.2d 477
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. IONIA MANAGEMENT S.A., et al.

Page 477

498 F.Supp.2d 477

UNITED STATES of America v. IONIA MANAGEMENT S.A., et al.

No. 3:07cr134 (JBA).

United States District Court, D. Connecticut.

July 30, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Anthony E. Kaplan, John H. Durham, William M. Brown, Jr., U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON DEFENDANT IONIA MANAGEMENT S.A.'S PRE-TRIAL MOTIONS [DOCS. # # 15-16, 23-26]

ARTERTON, District Judge.

The Indictment in this case charges defendant Ionia Management S.A. ("Ionia"), the ship management company that operated the tanker vessel M/T Kriton, and its Second Assistant Engineer, defendant Edgardo Mercurio, with criminal violations involving the falsification of and failure to maintain an Oil Record Book for the M/T Kriton in which "all disposals of oil residue and discharges overboard and disposals otherwise of oil, oil sludge, oil residues, oily mixtures, bilge slops, and bilge water that had accumulated in machinery spaces and elsewhere aboard the M/T Kriton were fully recorded." Indictment [Doc. # 1] ¶ 2.

Specifically, Count Two charges that defendant Ionia, aided and abetted by defendant Mercurio, "knowingly fail[ed] and cause[d] the failure to maintain an Oil Record Book for the M/T Kriton in which all disposals of oil residue and discharges overboard and disposals otherwise of oil, oil sludge, oil residues, oily mixtures, bilge slops, and bilge water that had accumulated in machinery spaces and elsewhere aboard the M/T Kriton were fully recorded, during a U.S. Coast Guard inspection to determine the compliance of the M/T Kriton with United States law, by failing to disclose exceptional discharges of oil-contaminated waste made through a bypass hose and without the use of a properly functioning oily water separator and oil content monitor," in violation of the Act to Prevent Pollution from Ships (the "APPS"), 33 U.S.C. § 1908(a), and the regulations promulgated thereunder, specifically, 33 U.S.C. § 151.25. See Indictment, Count Two ¶ 2.

Count Three charges Ionia and Mercurio with falsification of records in a federal investigation in violation of 18 U.S.C. § 1519, by "knowingly alter[ing], conceal[ing], cover[ing] up, falsify[ing], and mak[ing] false entries in a record and document with the intent to impede, obstruct, and influence the investigation and proper administration of a matter within the jurisdiction of a department or agency of the United States," specifically, "an inspection by the U.S. Coast Guard and Department of Homeland Security," by presenting Oil Record Books on or about March 20, 2007 which "omitted entries required to be recorded of overboard discharges of oil, oil sludge, oil residue, oily mixtures, bilge slops, and bilge water that had accumulated in machinery spaces and elsewhere aboard the M/T Kriton, without processing through required pollution prevention equipment," and by "falsely represent[ing] that all discharges and disposals had been made using either an incinerator or properly-functioning Oily Water Separator and Oil Content Monitor, when the defendant well knew that oil, oil sludge, oil residues, oily mixtures, bilge slops, and bilge water that had accumulated in machinery spaces and elsewhere aboard the M/T Kriton had been discharged directly overboard through a bypass house." See Indictment, Count Three ¶ 2.

Counts Four and Five charge defendant Mercurio and defendant Ionia, respectively, with obstruction of justice in violation of 18 U.S.C. § 1505 in relation to the investigation by the U.S. Coast Guard and the Department of Homeland Security as to the M/T Kriton's compliance with the International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (the "MARPOL Protocol") and United States law.

Count One charges both defendants with conspiracy "to defraud the United States, that is to hamper, hinder, impede, impair and obstruct by craft, trickery, deceit, and dishonest means, the lawful and legitimate functions of the Department of Homeland Security and Department of Justice in enforcing MARPOL and United States law, and the terms of Ionia's probation and Environmental Compliance Program, and to commit offenses against the United States," including the violations charged in Counts Two through Five. See Indictment, Count One ¶ 11.

Ionia has now filed several pre-trial motions, including: (1) a Motion to Dismiss [Doc. # 15] Counts 2, 3, and those parts of Count 1 which speak to the alleged failure to maintain an Oil Record Book for lack of jurisdiction; (2) a Motion to Dismiss [Doc. # 16] Counts 2, 3, and those parts of Count 1 which speak to the alleged Oil Record Book omissions as crimes, on the basis that the Paperwork Reduction Act (44 U.S.C. § 3501 et seq.) bars criminal prosecution therefor; (3) a Motion for a Bill of Particulars [Doc. # 23]; (4) a Motion for Early Disclosure of Jencks Material and Prompt Disclosure of Brady/Giglio Material [Doc. # 24]; (5) a Motion for Leave [Doc. # 25] to file motions after July 11, 2007, on the basis of the Government's failure to produce complete disclosure; and (6) a Motion to Compel Election [Doc. # 26] between claimed multiplicitous Counts Two and Three of the Indictment, both concerning Ionia's presentation of an allegedly false Oil Record Book. For the reasons that follow, Ionia's Motions to Dismiss will be denied, as will be its other motions, except for its Motion for Leave, which will be granted in part and denied in part, as set out infra.

I. Motion to Dismiss — Jurisdiction

A. Introduction

Defendant Ionia moves to dismiss Counts Two, Three, and those parts of Count One of the Indictment that allege crimes arising out of the failure to maintain an Oil Record Book for lack of jurisdiction. Ionia contends that, as "there is no evidence, and the Government does not contend, that an act of pollution occurred in United States waters," and "[a]s the courts that have studied these issues have repeatedly and consistently concluded, the relevant international treaties; the U.S. statutes and implementing regulations upon which these charges rely; together with long-settled principles of international law, all make clear that the United States has no jurisdiction over these matters and that the alleged events do not constitute criminal violations of United States law." Def. Juris. Mot. at 2 (emphasis in original) (citing cases).

Specifically, Ionia claims that the crimes charged in these counts "do not charge an offense against the laws of the United States," id. at 11 (citing 18 U.S.C. § 3231), as they do not concern discharges occurring within the United States, and Ionia contends that the APPS cannot criminalize failure to maintain an accurate oil record book outside of the United States. Ionia also argues that the APPS's mandates, by its provision that "any action taken under this chapter shall be taken in accordance with international law," 33 U.S.C. § 1912, and the regulations promulgated thereunder, "integrate and are circumscribed by principles of customary international law,"¹ such as those Ionia claims were codified by the United Nations Convention of the Law of the Sea ("UNCLOS")² including that only monetary penalties are permitted "for violations of foreign-flagged vessels (such as the M/T Kriton) of national laws and regulations (such as the APPS) and applicable international rules and standards (such as MARPOL) that address the prevention, reduction, and control of pollution in the marine environment. The only exception to the rule is when a willful and serious act of pollution is committed within the territorial sea of the coastal state." Def. Juris. Mot. at 8 (emphasis added). Ionia cites an Eastern District of Texas decision in United States v. Kun Yun Jho, in support of its position, which decision will be discussed infra.

Ionia also argues that the Indictment fails to charge a crime, claiming that "the Government has alleged that it is a crime under U.S. law for a foreign flagged ship to sail into United States waters with an [o]il [r]ecord [b]ook which fails, by omission, to record discharges or other operations that may have occurred somewhere else in the world at some prior time," and that the APPS's implementing regulations confirm "that a record keeping omission under the APPS was not intended to be subject to criminal sanctions under Section 1908(a) ... except in the case of a willful and serious act of pollution in [the prosecuting country's] territorial sea." Def. Juris. Mot. at 17 (emphasis in original) (internal case and statute citations omitted). Ionia further argues that to the extent that the APPS statute or regulations are ambiguous in their application of penalties for record-keeping violations, the rule of lenity should be applied. Id. at 18-19.

The Government opposes Ionia's Motion by arguing that "international law is not relevant to the actual charges in this case, which focus on conduct occurring in a port of the United States, and because there is no ambiguity such that the rule of lenity demands dismissal." Gov't Opp. [Doc. # 42] at 1. Specifically, the Government observes that "[the] APPS makes it unlawful to knowingly violate MARPOL, [the] APPS, and federal regulations promulgated ed thereunder... [The] APPS provides criminal sanctions for knowing violations," and contends that "[b]ecause the APPS Oil Record Book regulations are a requirement of domestic law — and because the APPS related counts charged a violation while the ship was within the internal waters of the United States — international law does not apply." Id. at 5, 7 (citing cases for the proposition that international law does not limit the jurisdiction of the United States to bring a criminal prosecution under the APPS for the failure to maintain an oil record book while in port, even where the false entries concern discharges made inside the jurisdiction of the United States). The Government...