985 F. Supp. 2d 719
E.D. Va.2013Background
- In 2012, Diana Shipping Services operated the M/V Thetis, a 40,000 GRT foreign-flag vessel engaged in international trade.
- Ioannis Prokakis and Antonios Boumpoutelos served as Chief Engineer and Second Engineer aboard during 2012.
- The superseding indictment charged failures to accurately document overboard discharges of machinery space bilge water, which should have been filtered through an Oily Water Separator under MARPOL.
- A whistleblower aboard Thetis led to U.S. Coast Guard boarding in Norfolk, Virginia on September 22, 2012; no Coast Guard action occurred at Newport News port calls on May 2 or July 8, 2012.
- Counts 5 and 6 relate to May 2 and July 8 ORB falsifications; Counts 8 and 9 relate to concealment of a bypass pipe used to discharge bilge water directly into the sea.
- The court denied the Defendants’ post-trial Rule 29 motions and addressed multiplicity, holding jurisdiction under APPS and §1519, with multiplicity argued as waived or merits-based.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there multiplicity in Counts 5-9 under §1519? | United States argues multiple distinct false entries and concealments justify separate counts. | The defendants contend unit-of-prosecution limits to one per document and one per investigation. | Denied; counts not multiplicitous. |
| Was the multiplicity defense waived pre-trial? | Waiver does not apply to the government’s asserted multiplicity interpretation. | Rule 12(b)(3) requires pre-trial challenge; failure to raise waives multiplicity defense. | Denied as waived. |
| What is the proper unit of prosecution under §1519's false entry clause? | Each separate false entry on a distinct occasion constitutes a separate offense. | Only one offense per falsified document should be charged. | Three distinct false entries on separate voyages support multiple counts; false-entry unit properly multiple. |
| Do §1519’s concealment/cover-up clauses support separate counts for concealment of the bypass pipe? | Each concealment of the bypass pipe constitutes a separate §1519 violation. | Concealment of the same pipe might be one offense. | Three distinct concealment acts justified three counts. |
Key Cases Cited
- United States v. Schmeltz, 667 F.3d 685 (6th Cir.2011) (distinguishes false-entry versus falsification clauses under §1519)
- United States v. Jameson, 972 F.2d 343 (4th Cir.1992) (false statements in separate entries can support separate counts)
- United States v. Mason, 611 F.2d 49 (4th Cir.1979) (transactional approach to multiple related entries)
- Sanabria v. United States, 437 U.S. 54 (Supreme Court 1978) (unit-of-prosecution framework under statutory interpretation)
- United States v. Shrader, 675 F.3d 300 (4th Cir.2012) (statutory unit of prosecution and interpretation guidance)
- Lawing, 703 F.3d 229 (4th Cir.2012) (multiplicity timing considerations in indictment challenges)
- Salad v. United States, 908 F. Supp. 2d 729 (E.D. Va.2012) (lenity considerations in statutory interpretation)