United States v. Sanford, Ltd.

• Decision Date: 14 May 2012
• Docket Number: Criminal Case No. 11–cr–352 (BAH).
• Citation: 859 F.Supp.2d 102
• Parties: UNITED STATES of America, v. SANFORD, LTD., et al., Defendants.
• Court: U.S. District Court — District of Columbia

859 F.Supp.2d 102

UNITED STATES of America,

v.SANFORD, LTD., et al., Defendants.

Criminal Case No. 11–cr–352 (BAH).

United States District Court,

District of Columbia.

May 14, 2012.

Frederick Walton Yette, Kenneth E. Nelson, U.S. Attorney's Office, Washington, DC, for United States of America.

Michael G. Chalos, Chalos, O'Connor & Duffy, Port Washington, NY, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Pending before the Court are motions to dismiss Counts One through Five of the Superseding Indictment filed by defendants Sanford, Ltd. and James Pogue. The defendants are charged in seven counts with violating federal laws when they allegedly discharged oil-contaminated sludge and bilge waste into the ocean. They now move to dismiss Counts One, Two and Four of the Superseding Indictment for failure to state a claim and inadequate notice, ECF No. 71; and to dismiss Counts Three and Five on grounds that these counts are duplicitous. ECF No. 64. The defendants, and Sanford individually, have further moved to dismiss Counts Two, Three, Four, and Five, or to require election of them, arguing, for various reasons, that the Counts are multiplicitous. ECF Nos. 64, 68. For the reasons explainedbelow, all of the defendants' motions are DENIED.

I. BACKGROUND¹

On January 5, 2012, a grand jury returned a Superseding Indictment charging three Defendants—Sanford Ltd. (“Sanford”), a shipping company that owns and operates the fishing vessel F/V San Nikunau; and two individuals, James Pogue and Rolando Ong Vano, who served at different times as the Chief Engineer of the ship—with violating federal criminal laws when they allegedly discharged oil-contaminated sludge and bilge waste into the ocean and falsified records relating to these discharges. Superseding Indictment, ECF No. 22. The investigation that led to these charges arose from a United States Coast Guard inspection of the F/V San Nikunau at Pago Pago, American Samoa in July 2011. The government has charged the defendants in seven counts with: (1) conspiracy, in violation of 18 U.S.C. § 371; (2) failure to maintain an accurate oil record book (“ORB”) on or about July 9, 2010, in violation of 33 U.S.C. § 1908(a),²18 U.S.C. § 2, and 33 C.F.R. § 151.25; (3) falsification of records relating to a fishing voyage ending on or about July 9, 2010, in violation of 18 U.S.C. § 1519; (4) failure to maintain an accurate ORB on or about July 14, 2011, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25; (5) falsification of records relating to a fishing voyage ending on or about July 14, 2011, in violation of 18 U.S.C. § 1519; (6) obstruction of justice, in violation of 18 U.S.C. §§ 1505 and 2; and (7) unlawful discharge of oil waste on or about July 15, 2011, in violation of 33 U.S.C. §§ 1907(a) and 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.10(b).

Pursuant to the Court's Scheduling Order, the defendants filed a number of pretrial motions on March 22, 2012, on which the Court heard oral argument on April 20, 2012.³See Minute Order dated Feb. 15, 2012. Following oral argument, for reasons stated on the record, the Court denied six of the defendants' pretrial motions: defendant Sanford's Motion to Obtain Information Regarding the Identity of the Unnamed Co–Conspirators, ECF No. 61; Motion to Dismiss or in the Alternative to Strike as Surplusage the Forfeiture Claim, ECF No. 69; and Motion to Dismiss the Superseding Indictment for Prosecutorial Misconduct, ECF No. 72; defendant Pogue's Motion for Severance, ECF No. 66; and the defendants' Motion to Produce the Legal Instructions Provided to the Grand Jury, ECF No. 62; and Motion to Dismiss APPS Counts, ECF No. 63.

Still pending before the Court are three motions: the defendants' motions to dismiss Counts One, Two and Four, ECF No. 71, and to dismiss Counts Three and Five of the Superseding Indictment, ECF No. 64; and defendant Sanford's Motion to Dismiss Counts Two and Four or to Require Election of One of Them, ECF No. 68.⁴ Each of these motions is addressed below.

II. DEFENDANTS' MOTION TO DISMISS COUNTS ONE, TWO AND FOUR FOR FAILURE TO STATE AN OFFENSE

The defendants have moved to dismiss Counts Two and Four of the Superseding Indictment, arguing that these Counts fail to state an offense, or, in the alternative, that the defendants had inadequate notice of the controlling regulations. ECF No. 71. The defendants further contend that Count One, charging conspiracy, should also be dismissed for the same reasons. Id. As explained below, the Court disagrees and the defendants' motion is denied.

A. Legal Standard

Pursuant to Federal Rule of Criminal Procedure 12(b)(3), “at any time while the case is pending, the court may hear a claim that the indictment ... fails to invoke the court's jurisdiction or to state an offense.” The operative question is whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed. United States v. Bowdoin, 770 F.Supp.2d 142, 146 (D.D.C.2011). When considering a motion to dismiss for failure to state an offense, the court “is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.” United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) (emphasis in original)); Bowdoin, 770 F.Supp.2d at 145–46 (“A motion to dismiss an indictment challenges the adequacy of an Indictment on its face. Thus, the indictment must be viewed as a whole and the allegations must be accepted as true at this stage of the proceedings.”). “Adherence to the language of the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury.” Sunia, 643 F.Supp.2d at 60 (quoting United States v. Hitt, 249 F.3d 1010, 1016 (D.C.Cir.2001)). The court must “presume the allegations of the indictment to be true, and may not dismiss an indictment on a determination of facts that should have been developed at trial.” Id. (internal citations and quotation marks omitted).

Federal Rule of Criminal Procedure 7(c)(1) provides that “[t]he indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged....” The indictment must set forth “the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet.” United States v. Pickett, 353 F.3d 62, 67 (D.C.Cir.2004) (quoting Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). A valid indictment must therefore: “(1) allege the essential facts constituting the offense, (2) allege each element of the offense, so that fair notice is provided, and (3) be sufficiently distinctive that a verdict will bar a second prosecution for the same offense.” United States v. Martinez, 764 F.Supp.2d 166, 170 (D.D.C.2011) (quotations and citations omitted).

B. The Defendants' Motion to Dismiss Counts Two and Four of the Superseding Indictment for Failure to State a Claim is Denied

Count Two of the Superseding Indictment charges defendants Sanford and Pogue with falsification of records, in violation of 33 U.S.C. § 1908(a), relating to a fishing voyage ending on July 9, 2010; and Count Four charges defendants Sanford and Vano with a violation of the same law relating to a fishing voyage ending on July 14, 2011. Both of these counts allege, in relevant part, that the defendants:

maintained an Oil Record Book that (1) failed to disclose overboard discharges of oily bilge waste without the use of a properly functioning Oil Water Separator and oil monitoring equipment and falsely stated the Oil Water Separator was used when in fact it was not; and (2) failed to account for internal transfers of oily bilge waste from machinery spaces to other areas of the ship [in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25].

Superseding Indictment, ECF No. 22, at 13, 15.

The defendants contend that Counts Two and Four should be dismissed for three reasons. First, the defendants contend that Counts Two and Four fail to allege that the controlling regulation, 33 C.F.R. § 151.25, “impose[s] a recordmaking duty which the defendants failed to carry out.” Defs.' Mot. Dismiss Counts Two and Four, ECF No. 71, at 5. According to the defendants, § 151.25 imposes “the duty to make an ORB entry [ ] only [for] waste accumulated in machinery spaces ” and “[t]he omission of the limiting language of the regulation [from Counts Two and Four] is a fatal defect.” Id. at 6 (emphasis added); id. at 9 (“Counts Two and Four do not allege that the discharges fell within the limiting element of the regulation, and as a result, Counts Two and Four should be dismissed.”). Second, the defendants contend that the Superseding Indictment charges them with failing to account for “internal transfers” of oily bilge waste, for which the regulation does not impose a recordation requirement. Id. at 9–10. Finally, the defendants contend that the term “machinery spaces” in the controlling regulation, 33 C.F.R. § 151.25(d)(4), is undefined and ambiguous, which warrants dismissal of Counts Two and Four because the defendants did not have constitutionally sufficient notice of the conduct proscribed or required under the regulation. Id. at 10–11. These challenges to the Superseding Indictment are addressed seriatim below.

1. Failure to Reference “Machinery Spaces” in Paragraph Two of Counts Two and Four Does Not Render the Counts Defective

The defendants contend that Counts Two and Four must be dismissed for failure to state an offense because they do not contain the requisite allegation that the defendants failed to record discharge of bilge waste accumulated in “machinery spaces.” The defendants argue that they are under no duty to record discharges of bilge...