United States v. Alvarez
| Decision Date | 07 April 2020 |
| Docket Number | No. 18-15084,18-15084 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICIO ALVAREZ, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D.C. Docket No. 1:18-cr-20314-CMA-1
Appeal from the United States District Court for the Southern District of Florida
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
Mauricio Alvarez appeals his conviction for violation of the Seaman's Manslaughter Statute, 18 U.S.C. § 1115, on the premise that it unconstitutionally criminalizes simple negligence. He also appeals his 33-month sentence. He asserts the district court erred in applying the base offense level for "reckless operation of a means of transportation" under U.S.S.G. § 2A1.4(a)(2)(B) without an expert witness to opine on the duty of care. In further support of his sentence appeal, Alvarez argues the court erred in not considering the requirement under 18 U.S.C. § 3553(a)(6) to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." After careful consideration, we affirm.
Alvarez's conviction arises from a tragic accident that occurred on April 1, 2018, while he was the captain of the Miami Vice, a Florida-registered 91-foot performance yacht. Alvarez was hired by the yacht's owner to serve as a captain onboard the Miami Vice, which was offered for commercial charters for hire.
The United States Coast Guard imposes regulations on the charter-boat industry to protect the safety of individuals engaged in commercial charters and their passengers. For a commercial charter for hire to be lawful, the captain of the charter must have taken a USCG-approved captain's license course and must have an active USCG captain's license. USCG-licensed captains are taught essential safety information, including the necessity of conducting a pre-voyage safety briefing with passengers; prudent seamanship, such as safe methods of navigation and mooringor anchoring a vessel in varying conditions; and the critical steps that must be taken before starting the vessel's engines, like conducting a head-count of all passengers and establishing a 360-degree lookout to observe dangers in the water.
Alvarez never took the captain course, and he has never held a USCG license. Despite having no formal training in operating such a large vessel, Alvarez served as charter captain on the Miami Vice at least forty times between October 2017 and the date of the accident.
But before we get to the terrible incident on April 1, we pause to discuss three events leading up to that fateful day. First, in October 2017, a National Park Service ranger encountered Alvarez in the waters outside Biscayne National Park. Alvarez was on a jet ski, which was illegal to operate inside the park. Because Alvarez was wearing a shirt that had the word "charter" on it, the ranger asked him about his shirt; in response Alvarez explained that he was a captain for a chartered vessel that was about 45 to 50 yards away. The ranger followed Alvarez back to the yacht and requested his commercial-use authorization for the National Park Service, his contract for the chartered vessel, and his USCG captain's license. Having none of them, Alvarez responded that he did not know what a commercial-use authorization was and that the contract for the vessel and his captain's license were left behind—a false statement, since Alvarez did not in fact possess a USCG license. The ranger cited Alvarez for operating a personal watercraft and conducting a commercialbusiness within the National Park without a permit.
The second event of importance predating the accident occurred on March 18, 2018. That day, Alvarez was acting as a paid captain on board the Miami Vice in the vicinity of the Sea Isle Marina, on Biscayne Bay, in Miami-Dade County, Florida. Alvarez was again issued a citation for operating a commercial charter without an appropriate USCG captain's license, in violation of USCG regulations.
Finally, less than a week after the second event, on March 24, 2018, a USCG Marine Inspector met with Alvarez at the Sea Isle Marina. The inspector explained to Alvarez the USCG regulations governing the operation of commercial charters. He further told Alvarez that the manner in which the Miami Vice was being chartered was illegal because, among other reasons, Alvarez did not have a valid USCG captain's license.
With that background, we return to April 1, 2018. Non-party C.M. and victim R.M.P. arranged to charter the Miami Vice to celebrate C.M's birthday. Upon arriving at the Sea Isle Marina where the Miami Vice was docked, C.M. and R.M.P. paid for the charter. They met Alvarez, who identified himself as the captain of the Miami Vice, and Alvarez's son, who was acting as the first mate for their charter. TM Yachting Charter LLC—the owner of Miami Vice—provided Alvarez and his son to crew the charter. Four friends of C.M. and R.M.P. also joined them at the Sea Isle Marina, and the Miami Vice departed with Alvarez as its captain. After departing, Alvarez navigated the Miami Vice to Monument Island, in Biscayne Bay, in Miami-Dade County. Upon arriving at Monument Island, Alvarez did not anchor. Instead, he beached the Miami Vice—again, a 91-foot yacht—on Monument Island. The area around the island was crowded and full of other boaters.
After Alvarez beached the Miami Vice, C.M. and R.M.P. jumped into the bay and began swimming in the water behind the yacht. At some point, Alvarez also got into the water behind the Miami Vice and swam. C.M. and R.M.P. climbed out of the water back onto the rear swim platform of the yacht, where they had a conversation with Alvarez. Alvarez then raised the dive ladder and went to the helm in preparation to leave the island. C.M. and R.M.P. were not aware that Alvarez was preparing to start the engines and leave the island, so they jumped back into the water.
From the helm of the Miami Vice, it is impossible to see the rear swim platform of the vessel and the water immediately behind the vessel. Nevertheless, Alvarez did not return to the rear of the Miami Vice to ensure that everyone was onboard before he started the engines. Nor did he ask his first mate to go to the stern of the boat to ensure that the passengers were not on the rear swim platform or in the water behind the yacht during reversal.
Instead, Alvarez simply started the engines of the Miami Vice and immediately placed them into reverse to back off the island. C.M. and R.M.P. werestill in the water swimming behind the yacht. When the engines started up, R.M.P. was pulled underneath the yacht as it reversed, leaving a cloud of blood in the water. C.M. and the passengers still onboard the yacht yelled to Alvarez to turn off the engines, which he did. He then jumped into the water to look for R.M.P., but those attempts proved unsuccessful, as R.M.P. had been caught by the propellers and was killed.
After the incident, law enforcement spoke with all of the individuals who were present on the boat, including the five surviving passengers. Four of the passengers stated that, before Alvarez started the engines and placed the boat in reverse, they never heard Alvarez tell anyone the yacht would be leaving immediately and did not see him check the rear of the yacht to determine whether anybody was swimming behind the boat. A fifth passenger said he saw Alvarez standing on the rear of the yacht talking to C.M. and R.M.P. as they were swimming in the water, and he heard Alvarez state that the yacht would be moving from the island. But the same passenger recalled that Alvarez pulled up the boarding ladder while C.M. and R.M.P. were still swimming. C.M. acknowledged that he and Alvarez had a conversation about going to pick up other people, but C.M. said Alvarez did not indicate that he intended to leave imminently, nor did he tell C.M. and R.M.P. not to get back in the water.
In sum, all of the survivors onboard confirmed that Alvarez did not loudlyannounce that the boat was departing; did not perform any head count to ensure that all of the passengers were on the boat before he started the engines; did not check behind the yacht before he engaged the engines in reverse; and did not establish anyone as a lookout in the rear of the vessel before he reversed the yacht. Alvarez concedes that these are all basic steps that a reasonable person at the helm of the Miami Vice would have taken to ensure the safety of passengers and others in the water prior to reversing the yacht.
After the incident, a USCG inspector responded to Monument Island along with other law enforcement. There, the inspector wrote Alvarez yet another citation for operating a paid charter without a USCG captain's license. Law enforcement requested that Alvarez submit a urine sample, so they could determine whether he was under the influence of any alcohol or other drugs, but Alvarez refused. The next day, Alvarez submitted a urine sample for analysis, which tested positive for the presence of cocaine. Video later extracted from Alvarez's cell phone depicted him snorting cocaine on March 29, 2018, just three days before the incident.
After April 1, R.M.P.'s remains were recovered by scuba divers in the area of Monument Island. The Miami Dade Medical Examiner concluded that R.M.P. died as a result of injuries inflicted by the yacht propeller.
A federal grand jury returned a one-count indictment against Alvarez. Itcharged that, as the captain of the Miami Vice, Alvarez caused the death of R.M.P. through his "misconduct, negligence, and inattention to his duties on said vessel," in violation of 18 U.S.C. § 1115. Alvarez moved to dismiss the indictment, arguing in part that the statute unconstitutionally criminalized simple negligence, was vague and overbroad, and violated a defendant's right to remain silent by burden-shifting. The district court denied the motion.
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