United States v. Diana Shipping Servs.

• Decision Date: 02 December 2013
• Docket Number: Criminal No. 2:13cr40.
• Citation: 985 F.Supp.2d 719
• Parties: UNITED STATES of America, v. DIANA SHIPPING SERVICES, S.A., Ioannis Prokakis, and Antonios Boumpoutelos, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

985 F.Supp.2d 719

UNITED STATES of America,

v.DIANA SHIPPING SERVICES, S.A., Ioannis Prokakis, and Antonios Boumpoutelos, Defendants.

Criminal No. 2:13cr40.

United States District Court,

E.D. Virginia,

Norfolk Division.

Dec. 2, 2013.

Joseph L. Kosky, United States Attorney's Office, Norfolk, VA, for Plaintiff.

Lawrence Hunter Woodward, Jr., Shuttleworth Ruloff Swain Haddad & Morecock PC, Virginia Beach, VA, Patrick Hugh O'Donnell, Kaufman & Canoles PC, Norfolk, VA, for Defendants.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on Defendants' consolidated post-trial motion for judgment of acquittal on Counts 5, 6, 8 and 9. ECF No. 113. The primary focus of Defendants' motion is the assertion that the above referenced counts are multiplicitous. For the reasons set forth below, Defendants' motion is DENIED.

I. Factual and Procedural Background

During calendar year 2012, defendant Diana Shipping Services, S.A. (“Diana Shipping”), operated the Motor Vessel Thetis (“M/V Thetis”), a 40,000 gross ton foreign-flagged vessel engaged in international commercial maritime operations. During relevant portions of 2012, defendant Ioannis Prokakis and defendant Antonios Boumpoutelos served, respectively, as the Chief Engineer and the Second Engineer on board the M/V Thetis (the three defendants are collectively referred to herein as “Defendants”). The charges in the superseding indictment stem from Defendants' alleged involvement in failing to accurately document their overboard discharges of machinery space bilge water from the M/V Thetis. Pursuant to international law, such discharges, which occurred in waters outside the United States, should have been filtered through a pollution control device known as an “Oily Water Separator.” See Benedict S. Gullo, The Illegal Discharge of Oil on the High Seas: The U.S. Coast Guard's Ongoing Battle Against Vessel Polluters and a New Approach Toward Establishing Environmental Compliance, 209 Mil. L.Rev. 122, 137–42 (2011) (discussing the International Convention for the Prevention of Pollution from Ships (MARPOL) and the implementation of such international agreement in the United States). Defendants' offenses were reported to the United States Coast Guard through a “whistleblower” engine room crewmember that was on board the M/V Thetis in 2012. As a result of such tip, the M/V Thetis was boarded by the United States Coast Guard in Norfolk, Virginia, on September 22, 2012. In the months preceding the September 22 boarding, the M/V Thetis entered the port of Newport News, Virginia, on May 2, 2012, and again on July 8, 2012. However, no Coast Guard boarding or investigation took place during such earlier port calls.

On July 24, 2013, this Court began a two-week criminal bench trial in this matter. At the conclusion of the government's case, Defendants filed a written Rule 29 motion challenging the government's evidence with respect to Counts 5, 6, 8 and 9 of the superseding indictment, claiming that such evidence failed to demonstrate that the actus reus and mens rea for the alleged offenses occurred within the jurisdiction of the United States.¹ ECF No. 94. Count 5 (May 2, 2012 port call) and Count 6 (July 8, 2012 port call) allege that Defendants “did knowingly conceal, cover up, and falsify and make a false entry in a record and document, that is, a false, fictitious and misleading Oil Record Book for the M/V Thetis,” in violation of 18 U.S.C. § 1519. ECF No. 30, at 15–16. Count 8 (May 2, 2012 port call) and Count 9 (July 8, 2012 port call) allege that Defendants “did knowingly conceal and cover up a tangible object, that is, bypass piping used on the M/V Thetis that was used to discharge ... machinery space bilge water directly into the sea by circumventing required pollution prevention devices,” in violation of 18 U.S.C. § 1519. ECF No. 30, at 17–19. Additionally, at trial, Defendants made an oral Rule 29 motion for judgment of acquittal as to all counts of the superseding indictment based on a general sufficiency of the evidence argument. At the conclusion of the trial, the Court orally denied both Rule 29 motions and found all three Defendants guilty of all charged counts.

Subsequent to trial, Defendants jointly filed the instant Rule 29 motion, again challenging Counts 5, 6, 8 and 9 of the superseding indictment. As discussed below, while the focus of Defendant's prior Rule 29 motion was jurisdictional, the focus of the instant motion is the assertion that the disputed counts are multiplicitous. Defendants' joint motion has been fully briefed and is now ripe for review.

II. Standard of Review and Jurisdictional Note

Federal Rule of Criminal Procedure 29 allows a district court to enter a judgment of acquittal for “any offense on which the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). The court must deny such a motion and sustain a guilty verdict in a criminal case tried by a jury “ ‘if there is substantial evidence, taking the view most favorable to the Government, to support it.’ ” United States v. Cameron, 573 F.3d 179, 183 (4th Cir.2009) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc)). “ ‘[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.’ ” Id. (quoting Burgos, 94 F.3d at 862).

Although it is undisputed that this Court lacks jurisdiction over improper discharges of oil made by a foreign flagged vessel in international waters, it is likewise undisputed that the Court has jurisdiction over associated record keeping violations that occur within U.S. waters. Pursuant to the international MARPOL treaty of which the United States is a signatory, Congress enacted the Act to Prevent Pollution from Ships (“APPS”). See Angelex Ltd. v. United States, 723 F.3d 500, 502 (4th Cir.2013) (citing 33 U.S.C. §§ 1901–15). Pursuant to APPS, while in U.S. territorial waters, a vessel must “maintain” an Oil Record Book (“ORB”). Id. (citing 33 C.F.R. § 151.25). The regulatory requirement that an ORB be “maintained” has been interpreted to require that a ship entering U.S. waters possess and “maintain” an accurate ORB. See id. (“ ‘[W]e read the requirement that an oil record book be “maintained” as imposing a duty upon a foreign-flagged vessel to ensure that its oil record book is accurate (or at least not knowingly inaccurate) upon entering the ports [or] navigable waters of the United States.’ ” (quoting United States v. Jho, 534 F.3d 398, 403 (5th Cir.2008))).

Here, Defendants were charged with a § 1908 APPS violation for each 2012 port call in this jurisdiction during which they failed to maintain an accurate ORB. Additionally, for each such port call, Defendants were charged with one § 1519 violation for having falsified/covered up the ORB and a second § 1519 violation for having concealed the physical bypass pipe that was used to bypass the onboard pollution control equipment and discharge overboard the M/V Thetis' machinery space bilge water.

III. Discussion

A. Renewed Argument

Defendants' written Rule 29 motion that was submitted during trial argued that the government's evidence with respect to Counts 5, 6, 8 and 9, was insufficient to demonstrate that the actus reus and mens rea for the alleged offenses occurred within the jurisdiction of the United States. ² Defendants also made an oral motion generally challenging the sufficiency of the evidence as to all counts. To the extent that Defendants' instant motion again raises a jurisdictional challenge, or again challenges generally the sufficiency of the evidence, such motion is denied for the same reasons the Court stated on the record on August 8, 2013. See United States v. Taohim, 529 Fed.Appx. 969, 974 (11th Cir.2013) (rejecting the defendant's argument that he “could not have intended to impede, obstruct, or influence the Coast Guard's investigation [in violation of § 1519] when he allegedly ordered the omission ... from the garbage record book because at that time, the vessel was outside the territory of the United States and no investigation was pending,” because the jury rationally could have concluded that the defendant “anticipated that the garbage record book would be reviewed in a future [Coast Guard] proceeding and that he ordered it falsified for that reason”); see also United States v. Royal Caribbean Cruises, Ltd., 11 F.Supp.2d 1358, 1364 (S.D.Fla.1998) (noting that the “extraterritoriality doctrine” provides an alternative basis for jurisdiction over false statements made in international waters if the defendant intends the extraterritorial acts to have an effect within the United States (citing United States v. Padilla–Martinez, 762 F.2d 942, 950 (11th Cir.1985), United States v. Stuart–Caballero, 686 F.2d 890, 891 (11th Cir.1982), and United States v. Williams, 617 F.2d 1063, 1076 (5th Cir.1980) (en banc))); Gullo, supra, at 144–45 (noting that the False Statements Act and other general criminal laws, to include § 1519, “allow for enforcement of environmental laws beyond the [territorial seas] jurisdictional limitation contained in the APPS”).³

B. Newly Asserted Multiplicity Argument

To the extent that Defendants advance a new post-trial “multiplicity” theory seeking dismissal of Counts 5, 6, 8 and 9, such newly advanced theory is denied as untimely because challenges to an indictment are deemed waived if not advanced prior to trial. Alternatively, even if this Court reached the merits of Defendants' waived claim, such claim would be denied.

1. Multiplicity Must be Raised Pre-trial

Rule 12(b)(3) of the Federal Rules of Criminal Procedure states that a motion “alleging a defect in the indictment” must be filed prior to the commencement of trial. Fed.R.Crim.P. 12(b)(3)(B). Such pre-trial filing requirement applies to the assertion that an indictment is multiplicitous. See United States v. Lawing,...