United States v. Fafalios

• Citation: 817 F.3d 155
• Decision Date: 14 March 2016
• Docket Number: No. 15–30146.,15–30146.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Matthaios FAFALIOS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

817 F.3d 155

UNITED STATES of America, Plaintiff–Appellee

v.Matthaios FAFALIOS, Defendant–Appellant.

No. 15–30146.

United States Court of Appeals, Fifth Circuit.

March 14, 2016.

Nicholas Andrew DiMascio, Trial Attorney (argued), U.S. Department of Justice Environmental Defense Section, Denver, CO, for Plaintiff–Appellee.

George M. Chalos (argued), Chalos & Company, P.C., Oyster Bay, NY, George A. Gaitas, Chalos & Company, P.C., Houston, TX, for Defendant–Appellant.

Before JOLLY and JONES, Circuit Judges, and MILLS,^* District Judge.

E. GRADY JOLLY

, Circuit Judge:

Matthaios Fafalios appeals his conviction for failing to maintain an oil record book aboard a foreign-flagged merchant sea vessel, in violation of 33 U.S.C. § 1908(a)

and 33 C.F.R. § 151.25. Fafalios moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. For the following reasons, we reverse the district court's denial of Fafalios's Rule 29 motion. We vacate the judgment of conviction, and remand this action for entry of a judgment of acquittal.

I.

Fafalios is a 65–year–old Greek citizen who has been a merchant seafarer for over forty years. Most recently, Fafalios was the chief engineer on the M/V Trident Navigator, a merchant cargo ship registered under the flag of the Marshall Islands. Like many large cargo ships, the Trident Navigator gradually collects water in the base of the ship, which is referred to as the "bilge." Bilge water must be dumped periodically to prevent it from overtaking the engine rooms and other on-board machinery. Because bilge water often mixes with oil runoff from the ship's engine room, various international treaties require that the water be filtered before it is returned to the sea. Under the implementing federal statute, the Act to Prevent Pollution from Ships (APPS), and its accompanying regulations, all discharges of bilge water are to be documented in an "oil record book." See 33 U.S.C. § 1908(a)

; 33 C.F.R. § 151.25(a). As chief engineer, Fafalios was responsible for making record book entries regarding the dumping of bilge water.

In December 2013, while in international waters, Fafalios noticed that the Trident Navigator 's bilge tank was almost full. Fearing that the bilge water would damage engine components before it could be properly filtered for disposal, Fafalios ordered that the oily bilge water be pumped directly into the ocean without treatment. To conceal his actions, Fafalios did not record this bilge water dumping in the Trident Navigator 's oil record book. Several weeks later, the Trident Navigator arrived at port in New Orleans. Soon after the ship's arrival, a whistleblower contacted the U.S. Coast Guard and informed them that the untreated bilge water had been pumped overboard. The Coast Guard conducted an investigation, which uncovered Fafalios's actions.

The government indicted Fafalios for failing to maintain an oil record book, in violation of 33 U.S.C. § 1908(a)

; obstruction of justice under 18 U.S.C. § 1505 ; and witness tampering under 18 U.S.C. § 1512(b)(3). Fafalios's case went to trial in December 2014. Before the case was submitted to the jury, Fafalios moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Fafalios's Rule 29 motion concerned only the charge for failing to maintain an oil record book in violation of 33 U.S.C. § 1908(a). Fafalios urged that the government had failed to prove that he was the "master" of the ship, which, according to Fafalios, is an element of the offense. The district court reserved ruling on this motion until a later time.

The jury convicted on all three charges on December 16, 2014. Fafalios renewed his Rule 29

motion. The district court denied the motion. Fafalios appealed to this court, and challenges only his conviction under 33 U.S.C. § 1908(a) for failure to maintain an oil record book.

II. Fafalios's Rule 29

motion asserted that the government failed to offer evidence regarding an element of the statute of conviction.¹ This court reviews de novo a district court's denial of a motion for a judgment of acquittal, and views the evidence in the light most favorable to the government. United States v. Dickson, 632 F.3d 186, 188–89 (5th Cir.2011).

III.

As stated, Fafalios appeals only his conviction under 33 U.S.C. § 1908(a)

for "failure to maintain a record book." Section 1908(a) states that "[a] person who knowingly violates [international treaty provisions], this chapter, or the regulations issued thereunder commits a class D felony." Foreign-flagged ships may be prosecuted under 33 U.S.C. § 1908 only for violations that occur within the navigable waters of the United States, or while at a port or terminal under the jurisdiction of the United States. 33 U.S.C. § 1902(a) ; see also United States v. Jho, 534 F.3d 398, 403 (5th Cir.2008).

Because Fafalios dumped the dirty bilge water while the Trident Navigator was still in international waters, that action, although a violation of international law, did not allow for prosecution under APPS. Thus, the government relied on the statute's accompanying regulations to prosecute Fafalios for failure to maintain an accurate oil record book once the ship entered U.S. waters. See 33 U.S.C. § 1908(a)

(stating that an individual who "knowingly violates ... the regulations issued thereunder commits a class D felony"). The regulations, which are promulgated by the Coast Guard, state in relevant part that:

[e]ach ... ship of 400 gross tons and above ... shall maintain an Oil Record Book.... Entries shall be made in the Oil Record Book on each occasion [that bilge water is discharged].... Each operation ... shall be fully recorded without delay in the Oil Record Book so that all the entries in the book appropriate to that operation are completed. Each completed operation shall be signed by the person or persons in charge of the operations concerned and each completed page shall be signed by the master or other person having charge of the ship.... The master or other person having charge of a ship required to keep an Oil Record Book shall be responsible for the maintenance of such record.

33 C.F.R. §§ 151.25(a)

, (e), (h), (j).

Fafalios contends that, under the plain language of the regulations, only the "master or other person having charge of [the] ship" is responsible for the continued maintenance of the oil record book. According to Fafalios, the government's failure to offer any evidence showing that he was the "master" of the Trident Navigator means that the government failed to prove an element of the charged offense.

This court interprets regulations in the same manner as statutes, looking first to the regulation's plain language. Lara v. Cinemark USA, Inc., 207 F.3d 783, 787 (5th Cir.2000)

. "Where the language is unambiguous, we do not look beyond the plain wording of the regulation to determine meaning." Anthony v. United States, 520 F.3d 374, 380 (5th Cir.2008) (citing Copeland v. Comm'r, 290 F.3d 326, 332–33 (5th Cir.2002) ); see also S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 595 (5th Cir.2004) ("We have consistently held that a regulation should be construed to give effect to the natural and plain meaning of its words."). Furthermore, the court "consider[s] the regulation as a whole, with the assumption that the [agency at issue] intended each of the regulation's terms to convey meaning." Lara, 207 F.3d at 787 (citing Bailey v. United States, 516 U.S. 137, 143–45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ).

We agree with the appellant that, under the plain language of the regulations, only the "master or other person having charge of the ship" is responsible for maintenance of the oil record book. Section 151.25

asserts that each ship is required to maintain an oil record book, and then immediately thereafter explicitly and exclusively designates the "master" of the ship as the individual "responsible" for maintaining such a record book. See 33 C.F.R. §§ 151.25(a), (j). The regulations mention only the "master" when assigning responsibility for maintaining the oil record book, which plainly indicates that the responsibility does not extend to others on the vessel. See Thompson v. Goetzmann, 337 F.3d 489, 499 (5th Cir.2003) (invoking the "well-known interpretative canon, expressio unius est exclusio alterius —‘the expression of one thing implies the exclusion of another’ ").

Our conclusion is bolstered by the fact that, with respect to other record book obligations, the regulations explicitly contemplate liability for a crew member in Fafalios's position. The subsection addressing the logging and signature requirements extends criminal liability to the "person or persons in charge of the operations concerned." See 33 C.F.R. § 151.25(h)

; see also BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994)" ‘[I]t is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another’ " (quoting Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994)

).²

The government concedes that Fafalios was not the "master or other person having charge" of the Trident Navigator, but offers several reasons why, it its view, Fafalios nevertheless violated 33 C.F.R. § 151.25

. First, the government contends that Fafalios was the "person ... in charge of the operations concerned [i.e., the dumping of bilge water]," and thus had an obligation to record the dumping of dirty bilge water and sign the oil book entry. See 33 C.F.R. § 151.25(h) (Each operation [i.e., dumping of bilge water] ... shall be fully recorded without delay [and] shall be signed by the person or persons in charge of the operations concerned.). According to the government, the signing and recording obligations found in the regulations are continuing in nature, such that Fafalios's failure to record a bilge water dumping became a prosecutable offense once...