United States v. DSD Shipping
| Decision Date | 02 September 2015 |
| Docket Number | CRIMINAL NO. 15-00102-CG-B |
| Court | U.S. District Court — Southern District of Alabama |
| Parties | UNITED STATES OF AMERICA v. DSD SHIPPING, A.S., DANIEL PAUL DANCU, BO GAO, XIAOBING CHEN, and XIN DHONG Defendant |
This matter is before the Court on the motion to suppress filed by Defendant DSD Shipping, AS ("DSD Shipping") (Doc. 63) and the response filed by the United States (Doc. 104). DSD Shipping requests suppression of two categories of seized evidence: (1) evidence obtained during the warrantless inspection of the M/T Stavanger Blossom, and (2) materials from mirror images of three hard drives seized pursuant to a warrant. Three other Defendants, Daniel Paul Dancu (Doc. 85), Xiaobing Chen (Doc. 66) and Xin Dhong (Doc. 70), filed motions to adopt the motion to suppress. The Court granted the motions to adopt as to Dancu (Doc. 88), Chen (Doc. 79), and Dhong (Doc. 80). For the reasons stated herein, Defendants' motion to suppress is due to be DENIED.
On April 30, 2015, a grand jury returned a seven-count indictment(Doc. 1) against DSD Shipping Co., AS; Daniel Paul Dancu; Bo Gao; Xiaobing Chen; and Xin Zhong.1 The indictment charges defendants with various offenses relating to the alleged failure to maintain, or intentional falsification of, the required Oil Record Book (the "ORB") on the Vessel, and obstruction of the Coast Guard's investigation of unlawful discharges of oily mixtures.
On November 8, 2014, the U.S. Coast Guard received an email from a crewmember onboard the M/T Stavanger Blossom alleging that the crew installed a bypass pipe on the vessel. (Doc. 63, Exh. 1). The bypass pipe, known as a "magic pipe," allegedly allowed oily-water from the vessel's bilge tank to bypass the Oily-Water Separator (OWS) and discharge overboard.2 Id. The crewmember, identified as Rolando Babon, wrote that the Second Engineer ordered the crew to clean the sludge tank and place the oily waste in plastic bags. Babon stated the crew collected at least 90 bags and subsequently threw the bags overboard. Id.
On or about November 12, 2014, the M/T Stavanger Blossom docked at the Plains Terminal in Mobile, Alabama, a port within the jurisdiction of the Southern District of Alabama. (Doc. 63, Exh. 2, p. 1). Around 7:30 am, theU.S. Coast Guard boarded the vessel without a warrant and went to the ship's office.3 Id. At the ship's office, the Coast Guard met the ship's master Laurentiu Florea and Chief Engineer, Defendant Daniel Paul Dancu ("Dancu"). Id. The Coast Guard informed the two men of the reason for the visit and stated that the Coast Guard would need to access the vessel's log equipment and the crew during the exam. Id.
Coast Guard officers met with Dancu and reviewed the ship's Oil Record Book (ORB). (Doc. 63, Exh. 2) In the initial inspection of the ORB, officers found no entries recording any direct discharges of oily-water or waste oil overboard without first being processed through the OWS. Id. As officers reviewed the records, Dancu explained that Defendant Xin Zhong, the ship's fourth engineer, obtained soundings of the vessel's tanks and entered them into an electronic "Daily Sounding Log" on the vessel's computer.4 Id. Dancu printed the vessel's Daily Sounding Log for August 2014 through November 2014 and provided it to the officers. Dancu further explained that he reviewed the electronic logs and then recorded tank measurements in the ORB. Id.
While the Coast Guard officers reviewed the ORB, a second team of Coast Guard officers examined the vessel's machinery in the Engine Room.(Doc. 63, Exh. 2, p. 1). Those officers began their engine room inspection at the ship's incinerator. Coast Guard Investigating Officer Shane Hunt reported that the area around the incinerator appeared clean and in good working order. (Doc. 63, Exh. 2, p.1). The ship's Fourth Assistant Engineer made several unsuccessful attempts to burn sludge, but the incinerator was not at the proper operating temperature of 800 degrees Fahrenheit. Id. While waiting for the incinerator to warm, the Coast Guard investigators turned to the ship's OWS system. Id. Investigator Hunt noticed that the discharge piping from the OWS had recently been painted, despite all other sections of the OWS piping being dirty and untouched. Id.
Shortly after their arrival on the vessel, the whistleblower, Babon, passed the Coast Guard investigators a flash drive containing photographs and video of the alleged oil dumping. (Doc. 63, Exh. 2, p. 2). Officers immediately reviewed the flash drive and found photos of the bypass pipe reported by Babon.5 Id. The photos also showed the crew cleaning the vessel's Fuel Oil Sludge Tank, and numerous full plastic bags sitting outside the tank. Id. The flash drive also contained a video of the tank's cleaning process and the ship's radar showing latitude and longitude. Id. After viewing the video, Investigator Hunt ordered LTJG Langston and CWO Rushton to return to the engine room to attempt to locate the "magic pipe." Id.
As other officers searched for the removed pipe, Coast Guard officersinterviewed crewmembers regarding the "magic pipe" and discharges of oil. Id. Beginning alphabetically, the Coast Guard first interviewed the whistleblower, Rolando Babon. Id.
Babon confirmed that he emailed the Coast Guard prior to the vessel's arrival in Mobile. Babon explained that the crew previously installed a bypass pipe on the OWS piping and connected the pipe to the vessel's overboard discharge valve. Id. According to Babon, Defendant Xiaobing Chen ordered him to fabricate a new discharge pipe and replace the bypass pipe before the vessel came to the United States. Id. Babon stated that he removed and replaced the bypass pipe as ordered, and placed the pipe in the vessel's Central Stores. Id. Babon further explained that Engine Room crewmembers cleaned out the Fuel Oil Sludge Tank before arriving in the Port of Mobile. Babon stated that the crew filled plastic bags with sludge and threw the bags overboard in the Gulf of Mexico. Id. The Coast Guard also interviewed crewmember Keith Enong, who confirmed that he observed crewmembers throwing plastic bags of sludge overboard. (Doc. 63, Exh. 2, p.3).
With information from Babon, Coast Guard officers returned to the engine room and found the bypass pipe in a storage closet. Id. Officers observed that the pipe appeared to have oil residue inside. Id. The officers dry fit the bypass pipe to the OWS piping and found it fit. Id. Coast Guard officers also obtained oil samples from the Engine Room storage tanks, including a sample from inside the bypass pipe and a sample from inside theoverboard discharge valve.6 Id. The officers sampled this valve and found a black liquid substance inside. Id.
After securing evidence in their vehicle, the Coast Guard re-boarded the M/T Stavanger Blossom. (Doc. 63, Exh. 2, p.5). With assistance from the vessel's crewmembers, the Coast Guard removed the overboard discharge valve, disassembled it, and took samples from inside the valve. Id. Subsequent testing of the samples confirmed that the substance observed in the bypass pipe and overboard discharge valve was oil. Id.
Officers also compared the vessel's ORB to the rough sounding logs found in the engine room and the Daily Sounding Logs provided by Dancu. Id. An initial inspection of the records found the rough logs and Daily Sounding Logs to be consistent. Id. However, both logs were inconsistent with the ORB. Coast Guard officers also stated they found incorrect entries for the Bilge Tank, a tank that stores waste oil generated during vessel operations and water that collects in the bilge of the vessel. Id.
Prior to leaving the vessel, Coast Guard officers issued the vessel two detainable deficiencies for the inaccurate ORB and the bypass pipe. Officers also seized evidence of the violations, including: the computer from the chief engineer's office; the engine room control computer; the vessel's computer server; the ORB, Garbage Record Book, Engine Room alarm logs, and other log books and engine room documents; vessel and piping diagrams; thebypass pipe; and the pipe installed to replace the bypass pipe. (Doc. 63, Exh. 6).
On November 13, 2014, Coast Guard officers returned to the vessel and installed the alleged bypass pipe between the three-way valve and the overboard discharge valve. (Doc. 63, Exh. 2, p. 5). The alleged bypass pipe fit into place. Id.
On November 14, 2014, agents from the Coast Guard and the Criminal Investigations Division for the United States Environmental Protection Agency ("EPA CID") retrieved materials collected by Investigator Hunt and Kira Moody during their boarding of the vessel. (Doc. 63, Exh. 7, p. 1).
On November 15, 2014, the Coast Guard forensically imaged the M/T Stavanger Blossom's Vessel Bridge server, an HP Prolant with serial number CZ114500FD; a Compaq computer, with serial number CZC1970JZN from the Chief Engineer's stateroom; and an HP Compaq computer with serial number CZC1470JZN from the vessel's Engine Control Room. (Doc. 63, Exh. 8). The government then returned the computers to Defendant DSD Shipping. (Doc. 104, p. 7).
On November 25, 2014, United States Magistrate Judge Sonja F. Bivins issued a search warrant authorizing the search of the imaged hard drives. (case number MJ 14-00105-B; Doc. 63, Exh. 5). Under the heading of "identify the person or describe the property to be seized," the front of the warrant stated "see attached affidavit." Id. The warrant included an affidavitwith two attachments, Attachment A described the three hard drives that the government requested to search and Attachment B included a description of the information sought in the search. Id. Law enforcement officers subsequently searched the imaged hard drives for specific items of evidence as identified in the warrant. Id.
In its motion to suppress, Defendants' arguments center on Attachment B, which states:
To continue reading
Request your trial