United States v. Hugo Pena
684 F.3d 1137
| 11th Cir. | 2012Background
- MARPOL is an international treaty implemented in the US via APPS, with flag states certifying ships and potentially delegating surveys to classification societies.
- Pena, a surveyor for a Panama-flagged Island Express, issued an IOPP Certificate asserting MARPOL compliance after a survey he conducted.
- Coast Guard later found the vessel’s oily water separator nonfunctional and improper bilge-water management not disclosed on the certificate.
- Pena admitted he did not test the oily water separator and allowed emergency pumps to be used without noting them on the certificate.
- Pena was charged with Count 27 (failure to conduct a complete MARPOL survey) and Count 28 (false certification), and the district court denied acquittal on Counts 27 and 28.
- The district court granted acquittal on Count 1 (oil record book conspiracy) but allowed Counts 27 and 28 to proceed to trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does US jurisdiction exist to prosecute a surveyor for MARPOL violations on a foreign ship in US ports? | Pena argues MARPOL confines enforcement to the flag state. | Pena argues the Flag State sole jurisdiction over MARPOL surveys and certificates. | Yes; US has concurrent jurisdiction in ports. |
| Is the indictment sufficient to charge a MARPOL survey violation by a nominated surveyor? | Indictment charged failure to conduct the required survey. | Indictment allegedly lacked explicit duty for a survey. | Indictment sufficient; duty implied and regulatory context supports charge. |
| Is there a federal crime for knowingly violating MARPOL by failing to conduct a MARPOL survey? | APPS criminalizes knowing MARPOL violations, including surveys. | Question whether failing to survey is a MARPOL crime under APPS. | Yes; knowing failure to conduct required MARPOL survey violates APPS. |
| Was the jury instructed in a manner that constitutes plain error on Count 27? | No fundamental error in jury instructions; any error would not be plain. | Instruction about duty to conduct survey could be error. | No plain error; instructions adequate under the circumstances. |
| Was there sufficient evidence to deny the defense’s motions for acquittal on Counts 27 and 28? | Evidence showed deliberate misrepresentation and failure to perform required survey. | Question whether evidence excludes reasonable hypotheses of innocence. | Yes; substantial evidence supports guilt beyond a reasonable doubt on both counts. |
Key Cases Cited
- Mali v. Keeper of the Common Jail, 120 U.S. 1 (1887) (foreign vessel in port subject to national jurisdiction)
- Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923) (port jurisdiction is territorial and exclusive unless consented otherwise)
- Wilson v. Girard, 354 U.S. 525 (1957) (sovereign may choose to forego or limit jurisdiction as policy)
- United States v. Jho, 534 F.3d 398 (5th Cir. 2008) (well-settled concurrent jurisdiction in port for MARPOL violations)
- United States v. De La Garza, 516 F.3d 1266 (11th Cir. 2008) (subject-matter jurisdiction in federal offenses without exclusive limits)