859 F. Supp. 2d 102
D.D.C.2012Background
- Superseding Indictment charges Sanford Ltd., James Pogue, and Rolando Vano with seven counts including conspiracy, falsification of Oil Record Books (ORBs), obstruction, and unlawful discharge of oil waste.
- Factory of charges stems from Coast Guard inspection of the F/V San Nikunau in American Samoa in July 2011.
- Defendants moved to dismiss Counts One, Two, Four for failure to state an offense and inadequate notice, and Counts Three and Five as duplicitous; Sanford separately moved to dismiss Counts Two and Four or require election.
- Counts Two and Four allege falsification of ORBs for voyages ending July 9, 2010 and July 14, 2011, alleging failure to record oily bilge waste and misstatement of Oil Water Separator use under APPS/MARPOL framework; Counts Three and Five charge obstruction and falsification in related voyages.
- Court denied all defendants’ pretrial dismissal motions at issue, including denial of the motion to dismiss Counts Two and Four and the related Count One, and denied the duplicity/multiplicity challenges to Counts Two–Five.
- The court held that Counts Two and Four sufficiently allege violation of 33 U.S.C. § 1908(a) and 33 C.F.R. § 151.25, that Counts Three and Five are not duplicative or multiplicitous, and that any potential multiplicity issues can be addressed post-trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Counts Two and Four properly alleging an APPS/ MARPOL violation? | Sanford argues counts lack duty reference to §151.25(d)(4). | Defendants contend omissions and internal transfers are not covered and machinery spaces undefined. | Counts Two and Four adequately allege the ORB violation and related duties. |
| Are Counts Three and Five duplicitous under §1519? | Counts combine false entry and concealment under one count. | Counts purport two units of prosecution from §1519; risk of ambiguity. | Counts not duplicitous; ongoing scheme rationale allows multiple entries in one count. |
| Are Counts Two–Five multiplicitous of each other? | Different voyages and different engineers justify separate counts. | Same conduct under APPS and obstruction could be duplicative. | Not multiplicitous; distinct voyages and distinct defendants and elements keep them separate. |
| Does the lack of a precise definition for ‘machinery spaces’ require dismissal? | Term ambiguous, potentially not fair notice. | Differences across Coast Guard regs create uncertainty. | Fair notice given by common sense understanding; term adequately defined in regulation context. |
Key Cases Cited
- United States v. Bowdoin, 770 F. Supp. 2d 142 (D.D.C. 2011) (indictment validity reviewed against whether they state an offense)
- United States v. Sunia, 643 F. Supp. 2d 51 (D.D.C. 2009) (indictment must state elements and provide fair notice)
- United States v. Pickett, 353 F.3d 62 (D.C. Cir. 2004) (indictment must allege essential elements and scope of statute)
- United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008) (duty to disclose not found where no legal duty exists)
- United States v. Schmeltz, 667 F.3d 685 (6th Cir. 2011) (§ 1519 falsification focuses on document, not every entry)
- United States v. Moyer, 674 F.3d 192 (3d Cir. 2012) (no requirement to charge separate counts for each false entry)
- United States v. Hunt, 526 F.3d 739 (11th Cir. 2008) (statute § 1519 plainly covers false entries with intent to impede)
- United States v. Josephberg, 459 F.3d 350 (2d Cir. 2006) (multiplicity issues judged post-trial where appropriate)