UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Case No. 11-cr-352 (BAH)
Judge Beryl A. Howell
SANFORD, LTD., et al.,
Defendants.
MEMORANDUM OPINION
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 explained below, all of the
defendants’ motions are DENIED.
I. BACKGROUND 1
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
1
The factual circumstances of this case have been set forth in the Court’s previous Opinions addressing the
defendants’ motion for a bill of particulars and motion to depose witnesses. United States v. Sanford Ltd., No. 11-
cr-352, 2012 WL 256058 (D.D.C. Jan. 30, 2012); United States v. Sanford Ltd., No. 11-cr-352 (D.D.C filed Apr. 10,
2012) (Memorandum Opinion and Order granting in part the defendants’ motion to depose unavailable witnesses),
ECF Nos. 96-97.
Page 1 of 33
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), 2 18 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. 3 See
Minute Order dated Feb. 15, 2012. Following oral argument, for reasons stated on the record,
2
33 U.S.C. § 1908(a) makes it a Class D felony to knowingly violate the 1973 International Convention for the
Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the
Prevention of Pollution from Ships, collectively known as “MARPOL”; Annex IV to the Antarctic Protocol, and
associated regulations. MARPOL set out a detailed regulatory framework enforceable amongst the signatory states,
including the United States, to “specifically target the prevention of oil pollution in the sea.” United States v. Jho,
534 F.3d 398, 401 (5th Cir. 2008). Congress implemented the provisions of MARPOL through the Act to Prevent
Pollution from Ships (APPS), which is codified at 33 U.S.C. §§ 1901, et seq.
3
Prior to oral argument, on April 17, 2012, defendant Sanford and Pogue’s co-defendant, Rolando Vano, pled guilty
to Count Four of the Superseding Indictment, which charged him with knowing failure to maintain an accurate ORB
for the F/V San Nikunau in violation APPS, 33 U.S.C. § 1908(a).
Page 2 of 33
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
4
Defendant Sanford submitted its Motion to Dismiss Counts Two and Four or to Require Election of One of Them
in conjunction with the defendants’ Motion to Dismiss Counts Three and Five, and filed both motions in a single
docket entry at ECF No. 64. The Clerk of the Court, however, has designated defendant Sanford’s Motion to
Dismiss Counts Two and Four or to Require Election of One of Them as docket entry number 68 in the ECF system.
Page 3 of 33
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.
Bowdin, 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)); Bowdin, 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 (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
Page 4 of 33
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,
Page 5 of 33
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 waste that has accumulated in locations other
than “machinery spaces.” Id. at 6. Although the defendants are correct that paragraph two of
Counts Two and Four does not use the term “machinery spaces” in alleging that the defendants
“failed to disclose overboard discharges of oily bilge waste without the use of a properly
functioning Oil Water Separator . . . and falsely stated the Oil Water Separator was used when in
fact it was not.” Superseding Indictment, ECF No. 22, at 13, 15. The omission in this paragraph
of the term “machinery spaces” does not, however, render Counts Two and Four invalid.
An indictment is valid if it sets out all elements of the offense and sufficiently apprises
the defendants of the charges against them. Pickett, 353 F.3d at 67. As the government notes,
Counts Two and Four sufficiently allege the criminal charge for which the government seeks to
hold the defendants liable, namely, failure to maintain an accurate ORB in violation of 33 U.S.C.
§ 1908(a). Counts Two and Four charge that the defendants “(1) knowingly, (2) violated a
regulation promulgated pursuant to APPS and MARPOL, that is, they failed to (accurately)
maintain an Oil Record Book for the F/V San Nikunau, as required pursuant to 33 C.F.R.
Page 6 of 33
151.25.” Gov’t Opp’n Mot. Dismiss Counts Two and Four, ECF No. 95, at 5. On its face, the
Superseding Indictment contains the requisite elements of the charged offenses and is therefore
not deficient. Indeed, contrary to the defendants’ argument that Counts Two and Four are
lacking, these counts supplement the barebones of the requisite elements to inform the
defendants of additional details of the charges against them. The indictment describes the type
of waste that was the subject of the inaccurate reporting, i.e., ‘oily bilge waste,’ and the nature of
the misrepresentations that were made, including inaccuracies in the ORB involving the failure
to record discharges without the use of a working Oil Water Separator. Superseding Indictment,
ECF No. 22, at 12-13, 15.
Moreover, the information about the charges in Counts Two and Four is further
supplemented by incorporation of Part D of the Superseding Indictment, which sets forth the
legal and regulatory framework underlying the charged offenses. Both Counts Two and Four
expressly state in paragraph one that “Sections A through D of this Indictment are specifically
incorporated and re-alleged herein.” Id. at 12 (Count Two, ¶ 1), 15 (Count Four, ¶ 1). Section D
describes oily bilge waste in detail, id. Part D, ¶ 2, and states that “APPS regulations require that
[ships subject to the regulation] maintain a record known as an Oil Record Book in which all
disposals of oil residue and the discharge overboard or disposal otherwise of bilge water and
sludge that have accumulated in the machinery spaces must be recorded.” Id. Part D, ¶ 3
(emphasis added). Thus, these two challenged counts include a description of the conduct
required under the controlling regulation and sufficiently inform the defendants of the
regulation’s recordation requirement. The omission of the term “machinery spaces” from
paragraph two of Counts Two and Four is therefore of no consequence. See United States v.
Palumbo Bros., Inc., 145 F.3d 850, 860 (7th Cir. 1998) (“In reviewing the sufficiency of an
Page 7 of 33
indictment, a court should consider each challenged count as a whole and should refrain from
reading it in a hypertechnical manner.”) (internal quotation marks omitted).
The defendants rely on United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008), in
support of their argument that Counts Two and Four must be dismissed because the “failure to
disclose” allegation is not predicated upon a legal duty to disclose. Defs.’ Reply in Supp. Mot.
Dismiss Counts Two and Four, ECF No. 113, at 3. In Safavian, the defendant was charged, inter
alia, with violation of 18 U.S.C. § 1001(a)(1), which makes it a crime when one “knowingly and
willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact.” 528
F.3d at 963. The D.C. Circuit reversed the conviction after concluding that the defendant was
charged with concealing information from an agency ethics office regarding an overseas golfing
trip with a lobbyist that he had “no legal duty to disclose.” Id. at 965. This case is inapposite.
The government argued in Safavian that the defendant’s duty to disclose information was
imposed upon him not by statute or regulation, but by “standards of conduct for government
employees,” which provided fourteen “general principles” of behavior. Id. at 964. The Circuit
concluded that these standards were “vague” and that the “ethical principles” embodied in them
did not impose a clear duty on an executive employee to disclose information. Id. at 964-65.
Here, the defendants’ duty to record entries in the ORB is prescribed by specific Coast Guard
regulations. There is no question that the defendants were under a legal duty to record accurate
information in the ORB, and that this underlying duty is set forth specifically in Part D, which is
incorporated in Counts Two and Four.
The defendants additionally rely on United States v. Pickett, 353 F.3d 62 (D.C. Cir.
2004), United States v. San Diego Gas and Elec. Co., No. 06-cr-065, 2006 U.S. Dist. LEXIS
84856 (S.D. Cal. Nov. 21, 2006) and United States v. Sunia, 643 F. Supp. 2d 51 (D.D.C. 2009),
Page 8 of 33
in support of their argument that Counts Two and Four should be dismissed, but reliance on
these cases is also misplaced. In each of those cases, the government failed to allege an element
essential to the offense for which the defendants were charged. In Pickett, the defendant was a
Capitol Hill Police Officer who appealed from a jury verdict finding him guilty of making a false
statement in violation of 18 U.S.C. § 1001. The D.C. Circuit reversed his conviction, holding
that the indictment failed to allege that the defendant’s false statement was in connection with a
Congressional investigation or review, which was an essential element of the offense. Pickett,
353 F.3d at 67; 18 U.S.C. § 1001(c)(2). The Court concluded that, absent any allegation
regarding the defendant’s conduct falling within the category of conduct proscribed by the
statute, the indictment did not state an offense.
In the remaining cases, San Diego Gas and Sunia, relied upon by the defendants, the
government similarly failed to allege in the indictment a required element of the charged offense.
In San Diego Gas the government failed to allege that the material at issue contained more than
one percent of asbestos, as required by the statute. San Diego Gas and Elec. Co., 2006 U.S. Dist.
LEXIS 84856, at *30-39. In Sunia, the government failed to appropriately allege the mens rea
requirement of the offense and the court dismissed the charge because there were “no allegations
giving rise to an inference that the defendants knew they were obstructing [an agency]
proceeding as required to allege an offense under [18 U.S.C. ] § 1505.” Sunia, 643 F. Supp. 2d
at 80.
The situation before this Court is distinguishable from Pickett, San Diego Gas, and Sunia.
In this case, the Superseding Indictment alleges that the defendants falsified records relating to
the discharge of bilge waste, which, as described in Section D, accumulated in machinery spaces.
The Superseding Indictment includes all the elements of the charged offenses, namely that the
Page 9 of 33
defendants knowingly violated a regulation promulgated under APPS. As the government
appropriately notes, “[i]n the present case, by alleging that the defendants had knowingly failed
to maintain an accurate oil record book as required under the regulations, the government has
already provided information that is essential to the offense.” Gov’t Opp’n Mot. Dismiss Counts
Two and Four, ECF No. 95, at 9. The Superseding Indictment further provides a description of
oily bilge waste, and notes that the requirement to record under 33 C.F.R. § 151.25(d)(4) is
limited to waste that has “accumulated in the machinery spaces.” Superseding Indictment, ECF
No. 22, Part D, ¶¶ 2-3. Thus, the Superseding Indictment properly alleges violations of 33
U.S.C. § 1908(a) in Counts Two and Four, and provides the defendants with sufficient
information to understand the charges against them, prepare a defense, and be protected against
retrial on the same charges. 5
2. Counts Two and Four Do Not Fail To State an Offense Regarding “Internal
Transfers” of Bilge Waste
The defendants contend that Counts Two and Four should be dismissed because these
Counts allege, in part, that the defendants “failed to account for internal transfers of oily bilge
waste from machinery spaces to other areas of the ship,” but the controlling regulation, 33 C.F.R.
§ 151.25, imposes no requirement to account for such “internal transfers of oily bilge waste.”
Defs.’ Mot. Dismiss Counts Two and Four, ECF No. 71, at 9-10. According to the defendants,
the Superseding Indictment therefore “alleges a failure to do something that the charged
5
In their reply brief, the defendants raise for the first time the argument that Counts Two and Four do not provide
sufficient facts and notice to allege violations of certain subparts of 33 C.F.R. § 151.25, namely, § 151.25(d)(3),
which pertains to discharge of oil residue, and 33 C.F.R. § 151.25(g), which pertains to emergency or accidental
discharge of waste. Defs.’ Reply in Supp. Mot. Dismiss Counts Two and Four, ECF No. 113, at 12-18. The Court
provided the government an opportunity to supplement the arguments made in its opposition brief and respond to
this argument at oral argument, but the government relied only on its brief. The Court concludes that the
Superseding Indictment sufficiently alleges a failure to maintain an accurate ORB in violation of 33 U.S.C. §
1908(a). To the extent that the defendants are arguing that the government has been playing ‘hide-the-ball’
regarding which subpart of §151.25 are alleged to have been violated, the Court disagrees. Part D of the
Superseding Indictment specifically references § 151.25 (d), in its entirety, and subpart (g). Superseding Indictment,
ECF No. 22, Part D, ¶ 3.
Page 10 of 33
regulation does not require them to do, and for that reason, it fails to state an offense.” Id. at 10.
The Court concludes that this argument is erroneous.
Section 151.25(d)(4) requires entries “be made in the Oil Record Book on each occasion .
. . whenever . . . the following [takes] place . . .[d]ischarge overboard or disposal otherwise of
bilge water that has accumulated in machinery spaces.” 33 C.F.R. § 151.25(d)(4). The
government argues that the term “disposal otherwise” necessarily includes the internal transfer of
bilge waste from machinery spaces to other parts of the ship. Gov’t Opp’n Mot. Dismiss Counts
Two and Four, ECF No. 95, at 10. Although the term “disposal” is not defined in the regulation,
the government contends that “it is axiomatic that ‘disposal’ of ‘oily bilge waste’ necessarily
begins with its transfer from the bilge to a different part of the ship, either for discharge or for
storage, which, in the context of a ship at sea with no shore location to off-load the waste, would
constitute temporary disposal.” Id.
The defendants disagree. They argue that the term “internal transfer” is referenced only
in another subpart of the regulation, § 151.25(e)(2), which requires oil tankers to make ORB
entries for “internal transfer of oil cargo during voyage.” The defendants contend that omission
of the reference to “internal transfers” in subpart (d) “creates the presumption” that there is no
recordation requirement for internal transfers of bilge waste for ships subject to subpart (d).
Defs.’ Reply in Supp. Mot. Dismiss Counts Two and Four, ECF No. 113, at 5. The defendants
further argue that “in context it is clear that ‘disposal otherwise’ means transfer to a reception
facility” because “[d]isposal is clearly used by Coast Guard regulations to mean removing
material from the ship, and not, . . . moving it within the ship.” Id. at 5-6. These arguments are
not persuasive and the defendants’ hyper-technical parsing of the language of the regulation is
unhelpful.
Page 11 of 33
First, the defendants’ argument is essentially that directives to record an “internal
transfer” provided in one part of the regulation must be provided in identical language in other
parts of the regulation. Yet, this argument ignores that different parts of the regulation have
different scopes of coverage. Specifically, subpart (e) applies only to oil tankers and the
reference to “internal transfer” in subpart (e)(2) pertains to oil cargo, which, unlike bilge waste,
is a valuable commodity. Thus, the recordation requirement for movement of this valuable oil
cargo within a ship is appropriately described as an “internal transfer” since such cargo would
not be subject to “discharge overboard or disposal otherwise,” the term used to describe the
recordation requirement for “bilge water that has accumulated in machinery spaces.” While the
term “internal transfer” presumably could have been used to describe the recordation
requirement for movement of oil contaminated bilge water within a ship, use of the different
term of “disposal otherwise” is consistent with the fact that such bilge water is not valuable cargo
and certainly does not compel the conclusion urged by the defendants that no recordation
requirement applies to the movement of such bilge water within the ship. At the same time, use
of the term “internal transfer” in subpart (e)(2) does not preclude the government from using the
same phrase in a descriptive fashion in the Superseding Indictment to refer to “disposal
otherwise” of bilge waste.
Second, the logical reading of subpart (d) supports, rather than refutes, the government’s
contention that “disposal otherwise” references internal transfers of bilge waste from machinery
spaces to other parts of the ship. The regulation creates a recording requirement for “discharge
overboard or disposal otherwise” of such waste. “Disposal otherwise” must mean removal of
bilge waste from machinery spaces to other parts of the ship, before it is “discharged overboard”
and removed from the ship. If “disposal otherwise” did not mean internal transfers, the inclusion
Page 12 of 33
of this language would serve no purpose in the regulation. Consequently, when read in context,
“disposal otherwise” of bilge waste accumulated in machinery spaces can only be interpreted as
a reference to “internal transfers” of bilge waste from machinery spaces to other parts of the ship
for later discharge overboard. The defendants’ contention that there is no recording requirement
for internal transfers of bilge waste accumulated from machinery spaces under 33 C.F.R. §
151.25(d)(4) is therefore wrong.
The defendants assert that if Section 151.25(d)(4) does impose a recordation requirement
for internal transfers of bilge waste, Counts Two and Four must nonetheless be dismissed
because the regulation was unclear and did not provide the defendants with fair notice of the
required conduct. The Court is not persuaded. “Due process requires that laws give people of
ordinary intelligence fair notice of what is prohibited.” Brown v. Entm’t Merchants Ass’n, 131
S.Ct. 2729, 2743 (2011). “[I]n the absence of notice – for example, where the regulation is not
sufficiently clear to warn a party about what is expected of it – an agency may not deprive a
party of property by imposing civil or criminal liability.” Trinity Broad. of Florida, Inc. v. FCC,
211 F.3d 618, 628 (D.C. Cir. 2000) (quoting General Elec. Co. v. EPA, 53 F.3d 1324, 1328-29
(D.C. Cir. 1995)). As stated above, the natural, commonsense reading of the regulation implies
that all disposal of bilge waste from machinery spaces, whether the disposal is overboard or
“otherwise” to other parts of the ship, must be recorded in the ORB. Given that a person of
“ordinary intelligence” would have fair notice of the conduct proscribed and required under the
regulation through a straightforward reading of the regulation, the defendants’ argument that the
Fifth Amendment bars prosecution of such conduct is unavailing.
Page 13 of 33
3. The Absence of a Definition for “Machinery Spaces” Does Not Warrant
Dismissal of Counts Two and Four
The defendants next argue that Counts Two and Four should be dismissed because 33
C.F.R. § 151.25 requires the defendants to record in the ORB discharges of bilge waste from
machinery spaces, but the regulation does not define “machinery spaces.” According to the
defendants, “[t]he absence of a definition matters” because they differ with the government on
“what definition might be applied.” Defs.’ Reply in Supp. Mot. Dismiss Counts Two and Four,
ECF No. 113, at 10. As a result, according to the defendants, Counts Two and Four should be
dismissed for inadequate notice of the proscribed conduct. Ironically, the defendants’ argument
proves that the term “machinery spaces” may cover multiple spaces on a ship.
Although the defendants expend much ink attempting to parse and draw confusion about
the parts of a ship covered by the term “machinery spaces,” its ordinary, common sense meaning
is unambiguous. Indeed, the Court agrees with the government that the defendants’ contention
that they do not understand how “machinery spaces” is used in the regulation and the
Superseding Indictment is “curious” considering that “they are professional mariners and a
maritime oriented organization.” Gov’t Opp’n Mot. Dismiss Counts Two and Four, ECF No. 95,
at 11. The defendants cite to the term’s varying use in other Coast Guard regulations and
contend that ‘machinery spaces’ refers to different parts of a ship. For example, the defendants
point to a Coast Guard Commandant Instruction regarding “Machinery Space Fire-Fighting
Doctrine for Class Bravo Fires,” which defines machinery space as “A main machinery or
auxiliary machinery space which contains any of the following: installed firefighting systems, oil
fired boilers, internal combustion engines, gas turbines, or fuel transfer equipment.” U.S. Coast
Guard Commandant Instruction M9555.1B (Nov. 2009) available at http://www.uscg.mil
/directives/cim/9000-9999/CIM _9555_1B.pdf. The defendants contend this definition is “far
Page 14 of 33
more limited than the one proposed by the government.” Defs.’ Reply in Supp. Mot. Dismiss
Counts Two and Four, ECF No. 113, at 11. 6
While homogenization by the Coast Guard of the terminology used in their regulations
would be helpful, a common sense understanding of the term’s use in the context of the 33
C.F.R. § 151.25 and the Superseding Indictment is not confusing: ‘machinery spaces’ as used in
the regulation means spaces on a ship containing machines that use oil and are capable of
generating oil waste. Even if the term ‘machinery spaces’ is unclear to those not familiar with
maritime vessels, which it is not, “the crew of any commercial vessel is intimately familiar with
the operation of the vessel, including the location of any and all machinery spaces.” Gov’t
Opp’n Mot. Dismiss Counts Two and Four, ECF No. 95, at 12.
In an effort to re-direct the focus on the meaning of “machinery spaces” in the context of
the MARPOL and APPS, the defendants turn to “Webster’s Dictionary.” They state that
“Webster’s defines ‘machinery space’ as, ‘A room (as on a ship) in which the engine is
located.’” Defs.’ Mot. Dismiss Counts Two and Four, ECF No. 71, at 12. Relying on this
definition, the defendants argue that if the Court were to give the term its “‘plain meaning[,]’
[t]hat too should lead to dismissal, for of the compartments about which the grand jury heard,
only the engine room falls within the plain meaning of the term machinery space.” Id. This
argument falls flat on its face.
The defendants represent that Webster’s dictionary defines “machinery space,” but it
does not. There is no definition for “machinery space” in Webster’s dictionary, or in any other
commonly used dictionary. The definition that the defendants provide to the Court is actually
6
The defendants also reference a “design safety regulation,” 46 C.F.R. § 58-25.40, which states that the “steering-
gear compartment” must be separate from any “machinery space.” The defendants note, however, that the grand jury
was “told of discharges from a number of places [including] the steering gear compartment.” Defs.’ Reply in Supp.
Mot. Dismiss Counts Two and Four, ECF No. 113, at 11. The Court is unclear what to make of this argument or its
probative value.
Page 15 of 33
the definition for “engine room,” which, needless to say, is not the language used in the
regulation. Indeed, the defendants’ citation for the definition clearly references the term defined
as “engine room.” Id. (citing http://www.websters-dictionary-online.com/
definitions/engine%20room?cx=partner-pub-0939450753529744%3Av0qd01-tdlq&cof
=FORID%3A9&ie=UTF-8&q=engine%20room &sa=Search#906 (last visited 3-12-12)).
In interpreting “machinery spaces,” the Court must be cognizant of the context and
purpose of the overarching regulatory scheme in which the term is used. The Coast Guard
regulations at issue in this case implement two international treaties that aim “to achieve the
complete elimination of international pollution of the marine environment by oil and other
harmful substances, and consequently address how oceangoing vessels are to dispose of wastes
generated onboard.” United States v. Ionia Mgmt. S.A., 555 F.3d 303, 306 (2d Cir. 2009)
(internal quotation marks omitted). The purpose of 33 C.F.R. § 151.25 is to prevent vessels from
discharging into the ocean oil tainted waste generated from machinery aboard a ship. This belies
the conclusion that the regulation should be limited only to machinery found in a single, specific
area. As the government notes, “as a stark matter of reality[] commercial vessels have several
machinery spaces” which is why the regulation uses “the term ‘machinery spaces’ and not
‘machinery space’ or ‘engineroom.’” 7 Gov’t Opp’n Mot. Dismiss Counts Two and Four, ECF
No. 95, at 11; 33 C.F.R. § 151.25(d)(4).
7
In further support of this argument, the government states that MARPOL’s sister statute, the International
Convention for the Safety of Life at Sea, 1974, as amended, (SOLAS), defines ‘machinery spaces’ as:
Machinery spaces are machinery spaces of category A and other spaces containing propulsion
machinery, boilers, oil fuel units, steam and internal combustion engines, generators and major
electrical machinery, oil filling stations, refrigerating, stabilizing, ventilation and air conditioning
machinery, and similar spaces, and trunks to such spaces.
SOLAS, Regulation 3, CHAPTER II-2. This definition comports with the government’s position that ‘machinery
spaces’ is not limited only to the engine room of a vessel. Gov’t Opp’n Mot. Dismiss Counts Two and Four, ECF
No. 95, at 13.
Page 16 of 33
This interpretation is not only logical, but supported by other Coast Guard regulations
that similarly define “machinery space” more broadly than the “engine room.” For example, 46
C.F.R. § 30.10-42, provides:
The term machinery space means any space that contains machinery and related
equipment including Category A machinery spaces, propelling machinery,
boilers, oil fuel units, steam and internal combustion engines, generators and
centralized electrical machinery, oil filling stations, refrigeration, stabilizing,
ventilation, and air conditioning machinery, and similar spaces and trunks to such
spaces.
Additionally, 46 C.F.R. § 72.05-5 states that machinery spaces include:
(1) Main machinery spaces, including trunks and casings, alleyways,
gratings, and stairways, part of and for the exclusive use of these spaces, auxiliary
machinery spaces containing internal combustion machinery or other oil burning,
heating, or pumping units, and fuel oil filling stations. []
(2) Auxiliary machinery spaces containing only pumps, tanks, electrical
machinery, ventilation or air conditioning equipment, resistors, steering
machinery, stabilizer machinery, etc. []
46 C.F.R. § 72.05-5(d). Given the logical interpretation of “machinery spaces,” which is
supported by other maritime regulations, the defendants’ contention that there was an
error in the grand jury process because jurors heard evidence that was not limited to a
specific “engine room” is without merit.
The defendants further argue that “[t]he Coast Guard has the responsibility to define
terms, especially when criminal liability may turn on the definition. Where there are two or
more plausible definitions, the indictment must fail, for failure to provide fair notice of conduct
which is required, on pain of criminal punishment.” Defs.’ Reply in Supp. Mot. Dismiss Counts
Two and Four, ECF No. 113, at 12. As explained above, here there are not two or more
plausible definitions of ‘machinery spaces’ as used in the regulation and Superseding Indictment.
The term is clear on first reading when given its logical, commonsense interpretation, which the
Court will do. Counts Two and Four provide persons of ordinary intelligence a reasonable
Page 17 of 33
opportunity to understand the charges against them; and that is all that is required. See Brown v.
Entm’t Merchants Ass’n, 131 S.Ct. at 2743.
C. Count One Will Not be Dismissed
As explained above, the defendants’ request to dismiss Counts Two and Four for failure
to state a claim is denied. The defendants argue that Count One, charging the defendants with
conspiracy, should be dismissed because “the object of the conspiracy is stated in the same way
as the substantive charges in Counts Two and Four” and therefore “suffers from the same legal
deficiencies.” Defs.’ Mot. Dismiss Counts Two and Four, ECF No. 71, at 13. Counts Two and
Four are valid and sufficiently state offenses against the defendants. Accordingly, the
defendants’ request to dismiss Count One is denied.
III. DEFENDANTS’ MOTION TO DISMISS COUNTS THREE AND FIVE AS
DUPLICITOUS
The defendants have moved to dismiss Counts Three and Five, arguing that these counts
are defective for duplicity. ECF No. 64. They contend that Counts Three and Five are
duplicitous in two ways: first, because each count charges two units of prosecution under §
1519; and, second, because the “make a false entry” prong of those counts is duplicitous in itself.
The Court will address each of these arguments individually below.
A. Duplicitous Counts in an Indictment
“‘Duplicity’ is the joining in a single count of two or more distinct and separate
offenses.” United States v. Klat, 156 F.3d 1258, 1266 (D.C. Cir. 1998); United States v. Quinn,
401 F. Supp. 2d 80, 103 (D.D.C. 2005). The problem with a duplicitous count is that there is a
“danger that a conviction [may be] produced by a verdict that may not have been unanimous as
to any one of the crimes charged.” United States v. Sunia, 643 F. Supp. 2d 51, 71 (D.D.C. 2009).
The prohibition against duplicity additionally seeks to prevent double jeopardy, and ensure that
Page 18 of 33
the defendant has adequate notice of the charged crimes, and that the Court has a basis for
appropriate sentencing. Id. (“[T]he purposes of the prohibition against duplicity [] include (1)
the prevention of double jeopardy, (2) an assurance of adequate notice to the defendant, (3) the
provision of a basis for appropriate sentencing, and (4) the danger that a conviction was
produced by a verdict that may not have been unanimous as to any one of the crimes charged,”
quoting United States v. Bruce, 89 F.3d 886, 890 (D.C. Cir. 1996)). If these concerns are not
implicated, however, “separate acts united by a common scheme or pattern may be charged
together.” Id.; Klat, 156 F.3d at 1266 (“Several acts may be charged in a single count,” however,
“if the acts represent a single, continuing scheme that occurred within a short period of time and
that involved the same defendant.”).
While duplicity may render a particular count defective, the rule about duplicity is a
“pleading rule[], the violation of which is not fatal to an Indictment.” United States v. Robinson,
651 F.2d 1188, 1194 (6th Cir. 1981); United States v. Place, 757 F. Supp. 2d 60, 61 (D. Mass.
2010) (same); Quinn, 401 F. Supp. 2d at 104 n.24 (“[E]ven if the Court were to conclude that the
indictment was impermissibly duplicitous, such a conclusion would not compel dismissal of the
charges.”). When presented with a duplicitous count, the proper remedy is for the Court either to
give a unanimity instruction or to require the government to elect a theory of prosecution. See
Robinson, 651 F.2d at 1194 (“[A] duplicitous or multiplicitous indictment is remediable by the
court’s instruction to the jury particularizing the distinct offense charged in each count in the
indictment.”); Place, 757 F. Supp. 2d at 61.
B. Counts Three and Five Are Not Duplicitous Even If 18 U.S.C. § 1519 Contains
Two Units of Prosecution
Counts Three and Five of the Superseding Indictment each charge a violation of 18
U.S.C. § 1519. Count Three alleges, in pertinent part, that during a fishing voyage that ended on
Page 19 of 33
about July 9, 2010, the defendants Sanford and Pogue “did knowingly conceal, cover up, and
falsify, and make a false entry in . . . [the] Oil Record Book . . . that concealed the overboard
discharge of oil contaminated waste and contained entries falsely stating that required pollution
prevention equipment had been used when it had not.” Superseding Indictment, ECF No. 22, at
14. Count Five alleges that defendant Sanford committed the same violation in the same manner
during a fishing voyage that ended on about July 14, 2011. Id. at 16. Section 1519 states, in
relevant part:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or
makes a false entry in any record, document, or tangible object with the intent to
impede, obstruct, or influence the investigation or proper administration of any
matter within the jurisdiction of any department or agency of the United States . . .
shall be fined under this title, imprisoned not more than 20 years, or both.
The defendants argue that § 1519 contains two units of prosecution, “one proscribing the making
of a ‘false entry in a record and document,’ and one penalizing a person who ‘alters, destroys,
mutilates, conceals, covers up, [or] falsifies . . . any record, document, or tangible object.’”
Defs.’ Mot. Dismiss Counts Three and Five, ECF No. 64, at 6-7. According to the defendants,
Counts Three and Five in the Superseding Indictment combine both units of prosecution – false
entry and falsification – in each count and thus renders these counts duplicitous.
The defendants acknowledge that the D.C. Circuit has not addressed whether § 1519
contains two units of prosecution, but state that “[t]hree other Courts of Appeals have determined
that the statute has two sets of elements.” Id. at 6. In support of this statement, the defendants
rely on United States v. Moyer, 674 F.3d 192 (3d Cir. 2012), United States v. Schmeltz, 667 F.3d
685 (6th Cir. 2011), and United States v. Hunt, 526 F.3d 739 (11th Cir. 2008). None of these
cases, however, explicitly holds that § 1519 contains two units of prosecution, let alone
Page 20 of 33
addresses the defendants’ argument that false entry and falsification constitute separate offenses
under the same statute.
In Moyer and Schmeltz, the Third and Sixth Circuits, respectively, rejected the contention
that § 1519 requires the government to allege in a separate count each false entry that was made
in the same document. Moyer, 674 F.3d at 204; Schmeltz, 667 F.3d at 688. After reviewing the
statutory language and the congressional intent, the courts concluded that “[t]he ‘falsifies’ clause
of § 1519 was . . . intended to punish the falsification of a document, rather than specific
statements or omissions within a document. Accordingly, [the defendant] could violate §
1519 once—and no more than once—by falsifying [a single] . . . report with []
omissions.” Schmeltz, 667 F.3d at 688; see also Moyer, 674 F.3d at 204 (“We agree with
[Schmeltz] and conclude that the statute does not require the government to charge separate
counts for each false entry in a document.”). These courts did not address whether § 1519
contained another unit of prosecution for false entry.
In Hunt, the Eleventh Circuit rejected the defendant’s contention that his conviction for
violation of § 1519 should be overturned because he did not have fair notice that his conduct was
criminal. 526 F.3d at 744. Upon review of the statutory language, the court stated that
“[n]othing [] suggests the statute is, in the context before us, vague. This statute rather plainly
criminalizes the conduct of an individual who (1) knowingly (2) makes a false entry in a record
or document (3) with intent to impede or influence a federal investigation.” Id. at 743.
The defendants argue that Schmeltz, Moyer, and Hunt, “recognized that there are two
different clauses establishing violations of § 1519. Both require that the defendant act
knowingly, and with intent to impede. The difference is in the element defining the actus reus.
One requires proof of a false entry (Hunt) and the other of a falsified document (Schmeltz and
Page 21 of 33
Moyer).” Defs.’ Mot. Dismiss Counts Three and Five, ECF No. 64, at 10. Assuming, arguendo,
that this were true, the Court need not resolve whether there are in fact two units of prosecution
in § 1519 because even if there were and both were alleged in Counts Three and Five, the Counts
are nonetheless valid.
“[I]t is well established that two or more acts, each of which would constitute an offense
standing alone and which therefore could be charged as separate counts of an indictment, may
instead be charged in a single count if those acts could be characterized as part of a single,
continuing scheme.” United States v. Shorter, 809 F.2d 54, 56 (D.C. Cir. 1987), abrogated on
other grounds by Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); see also Klat, 156 F.3d
at 1266 (“[S]everal acts may be charged in a single count if the acts represent a single,
continuing scheme that occurred within a short period of time and that involved the same
defendant.”). As other courts have noted, “[o]bstruction of justice, in its various statutory forms,
may be charged by stating a continuous course of conduct or by stating in separate counts
specific identified events occurring over a period of time.” United States v. North, 708 F. Supp.
372, 374 (D.D.C. 1988).
In this case, the Court agrees with the government that Counts Three and Five charge
multiple ways of violating the statute by a number of means in an ongoing scheme, which is
permissible. The defendants are alleged to have engaged in routine and repetitive illegal
discharges of bilge waste during fishing voyages that ended in American Samoa. The
Superseding Indictment charges the defendants with making false entries in the ORB, which was
part of an ongoing scheme to conceal their illegal acts. Given this continuing course of conduct,
the government may properly charge repeated false entries in the same document in a single
count. Cf. United States v. Target Ship Mgmt. PTe, Ltd., No. 11-cv-368, 2012 WL 1392083, at
Page 22 of 33
*2-4 (S.D. Ala. Apr. 20, 2012) (concluding that a count charging violation of 18 U.S.C. § 1519
relating to violation of APPS and MARPOL was duplicitous because the count alleged three
different types of obstruction conduct, including that the defendant “created and used a false
[ORB],” “directed lower level crewmembers to conceal the smooth sounding log,” and “directed
an Oiler to make an entry to the smooth sounding log to cover up and conceal a discharge,” and
thus “charges three separate and distinct offenses requiring proof of dissimilar facts.”).
The defendants argue that if the government is allowed to proceed with allegedly
duplicitous counts, they will be prejudiced in four ways, it would (1) be difficult to determine
whether a conviction rests on only one set of elements or both; (2) deprive them of a right to a
unanimous jury; (3) deprive them of their Sixth Amendment right to knowledge of the charges
against them; and (4) compromise their Fifth Amendment right to be tried only upon charges
brought by the grand jury because it would be “impossible to tell whether the grand jury
understood that there were two units of prosecution alleged.” Defs.’ Mot. Dismiss Counts Three
and Five, ECF No. 64, at 11-12.
As to the first two of the defendants’ concerns, the government represents that “[a]t the
charge conference, the government will ask for an instruction requiring the jury to agree
unanimously on at least one of the charged means of obstruction, if it is to reach a guilty verdict
on Counts Three and Five.” Gov’t Opp’n Mot. Dismiss Counts Three and Five ECF No. 86, at 9
n.2. At trial the defendants may also proffer a proposed special verdict form delineating clearly
the required elements for conviction on Counts Three and Five. Any concerns regarding the
propriety of a future jury verdict are thus obviated.
The defendants further claim that potential inclusion of two units of prosecution in
Counts Three and Five will make it difficult for them to have knowledge of the charges against
Page 23 of 33
them. This contention strains credulity. Counts Three and Five of the Superseding Indictment
charge the defendants with making false entries in the ORB, thereby “falsify[ing]” the ORB by
“falsely stating that required pollution prevention equipment had been used when it had not” for
the purpose of concealing illegal discharges of oil contaminated waste. Superseding Indictment,
ECF No. 22, at 14, 16. The allegations in these two counts make clear when the false entries
were made (i.e., during voyages ending on July 9, 2010 and July 14, 2011), where the false
entries were made (i.e., in the ORB), why the false entries were made, and what made the entries
false. Thus, as the Court held in denying the defendants’ motion for a bill of particulars, the
Superseding Indictment provides sufficient information for the defendants to understand the
charges against them, prepare a defense, and guard against the prospect of double jeopardy.
Finally, with regard to the defendants’ final argument that Counts Three and Five should
be dismissed because they are unsure whether the grand jury charged both offenses, the
Superseding Indictment alleges that the defendants “did knowingly conceal, cover up, and
falsify, and make a false entry in a record and document.” Id. (emphasis added). The
Superseding Indictment is clear that the grand jury believed that the defendants both falsified and
concealed entries in the ORB.
Accordingly, even if Section 1519 contains two units of prosecution, both units can be
properly charged in a single count due to the allegation that the defendants’ criminal conduct was
part of an ongoing scheme of illegal conduct and because the defendants will face no prejudice
by inclusion of the allegedly duplicitous counts. The Court therefore rejects the defendants’
argument that Counts Three and Five must be dismissed due to the alleged inclusion of two units
of prosecution in these counts.
Page 24 of 33
C. Counts Three and Five Are Not Duplicitous Because They Allege Multiple False
Entries
The defendants contend that Counts Three and Five should be dismissed as duplicitous
because “there is no doubt that the indictment purports to charge multiple false entries, rather
than a single false entry, in each of Counts Three and Five.” Defs.’ Mot. Dismiss Counts Three
and Five, ECF No. 64, at 12. There is no merit to this argument.
As explained above, “several acts may be charged in a single count if the acts represent a
single, continuing scheme that occurred within a short period of time and that involved the same
defendant.” Klat, 156 F.3d at 1266. Indeed, Federal Rule of Criminal Procedure 7(c)(1)
provides that “[a] count may allege . . . that the defendant committed [the offense] by one or
more specified means.” With regard specifically to violations of § 1519, “the statute does not
require the government to charge separate counts for each false entry in a document.” Moyer,
674 F.3d at 204; see also Schmeltz, 667 F.3d at 688.
Although the defendants contend otherwise, the government has set forth a continuing
scheme of illegal conduct. Counts Three and Five of the Superseding Indictment allege that the
defendants falsified and concealed entries in the ORB, and that these violations continued to
occur during their voyages in 2010 and 2011. The defendants argue, however, that “[t]he vices
of duplicity are particularly apparent in this prong of the counts [because] [t]he indictment does
not identify any particular entry which is alleged to be false [and] [t]hat violates the
Constitutional requirement of adequate notice.” Defs.’ Mot. Dismiss Counts Three and Five,
ECF No. 64, at 13. This argument is erroneous. The Superseding Indictment provides adequate
notice of the illegal conduct in that it sets forth, specifically, on which voyages the alleged illegal
acts occurred. The defendants acknowledge that there are eighteen entries in the ORB for each
of the two voyages referenced in the Superseding Indictment. Id. The government asserts that it
Page 25 of 33
can prove Counts Three and Five on the theory that some, if not all, of the entries must be
falsified since the ship routinely and continuously discharged oily waste without using the Oil
Water Separator. Gov’t Suppl. Opp’n Defs.’ Mot. Bill of Particulars, ECF No. 36, at 6. Given
this allegation, the government need not, and may not even be able to, identify the universe of
allegedly false and omitted entries in the ORB.
As explained above, Counts Two and Four are not duplicitous because Section 1519
allegedly contains two units of prosecution or because the counts charge multiple false entries.
Consequently, the defendants’ motion to dismiss Counts Two and Four on grounds that these
counts are duplicitous is denied.
IV. COUNTS TWO, THREE, FOUR AND FIVE ARE NOT MULTIPLICITOUS
In addition to the duplicity arguments, the defendants contend that Counts Three and Five
are multiplicitous of Counts Two and Four. Defendant Sanford also argues that Count Two is
multiplicitous of Count Four, and Count Three is multiplicitous of Count Five. The Court
disagrees with all of these arguments.
A. Multiplicitous Counts in an Indictment
“An indictment is multiplicitous, and thereby defective, if a single offense is alleged in a
number of counts, unfairly increasing a defendant’s exposure to criminal sanctions.” United
States v. Brown, No. 07-cr-75, 2007 WL 2007513, at *6 (D.D.C. July 9, 2007) (quoting United
States v. Harris, 959 F.2d 246, 250 (D.C. Cir. 1992), abrogated on other grounds, United States
v. Stewart, 246 F.3d 728 (D.C. Cir. 2001)); see also United States v. Mahdi, 598 F.3d 883, 887
(D.C. Cir. 2010). “The danger of a multiplicitous indictment is that [a] defendant will be given
multiple sentences for the same offense, thus violating the Double Jeopardy Clause of the
Constitution.” United States v. Cook, No. 07-cr-192, 2007 WL 3020081, at *1 (D.D.C. 2007);
United States v. Weathers, 493 F.3d 229, 233 (D.C. Cir. 2007) (“The Fifth Amendment
Page 26 of 33
guarantee against double jeopardy protects not only against a second trial for the same offense,
but also against multiple punishments for the same offense,” quoting Whalen v. United States,
445 U.S 684, 688 (1980)). Moreover, a multiplicitous charge may “improperly prejudice a jury
by suggesting that a defendant has committed not one but several crimes.” Brown, 2007 WL
2007513, at *6. “To determine multiplicity vel non, courts generally apply the Blockburger test:
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not, i.e., whether either is a lesser
included offense of the other.” Mahdi, 598 F.3d at 888 (quoting United States v. Weathers, 186
F.3d 948, 951 (D.C. Cir. 1999) and Blockburger v. United States, 284 U.S. 299, 304 (1932))
(internal quotation marks omitted). While courts use the Blockburger test to assess whether a
count is multiplicitous, the test “provides only a canon of construction, not a ‘conclusive
presumption of law.’” Id. As the D.C. Circuit noted,
[t]here is nothing in the Constitution which prevents Congress from punishing
separately each step leading to the consummation of a transaction which it has
power to prohibit and punishing also the completed transaction. Thus, the
Blockburger presumption must of course yield to a plainly expressed contrary
view on the part of Congress, that is, when the legislative intent is clear from the
face of the statute or the legislative history.
Id. (internal citations and quotation marks omitted); see also United States v. White, 116 F.3d
903, 932 (D.C. Cir. 1997) (“Even if one crime is a lesser included offense of another,
punishments may be imposed for both if Congress intended that they be imposed.”).
Multiplicitous counts may be remedied after trial, during sentencing since the primary
evil of multiplicity is double punishment for the same offense. Cook, 2007 WL 3020081, at *1
(“[H]arm, if it exists in this case, can be remedied after trial should the jury return a verdict on all
counts. There is no prejudice to defendant in allowing all of the counts to go to the jury, as both
Page 27 of 33
sides agree that the pairs of counts are based on exactly the same facts.”); see also United States
v. Clark, 184 F.3d 858, 872 (D.C. Cir. 1999) (“detect[ing] no prejudice” in allowing
multiplicitous counts to be tried where the evidence “was identical”). Dismissal of a charge
based on multiplicity is premature because “if, upon the trial, the district judge is satisfied that
there is sufficient proof to go to the jury on both counts, . . . [and] the jury convicts on no more
than one of the multiplicitous counts, there has been no violation of the defendant’s right to be
free from double jeopardy, for he will suffer no more than one punishment.” United States v.
Josephberg, 459 F.3d 350, 355 (2d Cir. 2006). Thus, multiplicity claims are often “better sorted
out post-trial,” United States v. Hubbell, 177 F.3d 11, 14 (D.C. Cir. 1999), after the defendant
knows the counts on which he has been convicted.
B. Counts Three and Five Are Not Multiplicitous of Counts Two and Four
The defendants assert that the government should be barred from charging them with
“both ‘failure to maintain’ an ORB (Counts Two and Four) and ‘obstruction’ (Counts Three and
Five) [because] the same conduct charged in the latter is also conduct charged in the former,”
thus rendering Counts Two and Four multiplicitous of Counts Three and Five. Defs.’ Mot.
Dismiss Counts Three and Five, ECF No. 64, at 15. The Court should therefore require the
government to elect between the two pairs of charges, according to the defendants, lest the
defendants are inadvertently punished twice for the same offense in violation of the Double
Jeopardy Clause of the Fifth Amendment.
To determine whether counts are multiplicitous, the court must assess whether each
offense “requires proof of a fact which the other does not, i.e., whether either is a lesser included
offense of the other.” Mahdi, 598 F.3d at 888 (quoting Blockburger, 284 U.S. at 304). In this
case, Counts Two and Four allege that the defendants knowingly failed to maintain an accurate
Page 28 of 33
ORB in violation of APPS, 33 U.S.C. §1908(a), and 33 C.F.R. § 151.25. To obtain convictions
for these charges, the government must prove that: (1) the F/V San Nikunau was a ship of 400 or
more gross tons that was registered in a country other than the United States; (2) the defendants
were a person in charge of the operation of the Oily Water Separator, the overboard discharge
valve, or other F/V San Nikunau equipment involved in the overboard discharge of oil; (3) the
defendants knowingly failed to fully and accurately maintain an ORB; and (4) the failure to
maintain the ORB occurred while the F/V San Nikunau was in the navigable waters of, or at a
port or terminal of, the United States.
Counts Three and Five charge the defendants with obstruction of justice in violation of 18
U.S.C. § 1519. These counts require the government to prove that the defendants: (1) knowingly
altered, destroyed, mutilated, concealed, covered up, falsified, or made false entries in records,
documents, or tangible objects; and (2) acted with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the jurisdiction of a department or
agency of the United States, that is, the United States Coast Guard.
The government contends that the APPS charges in Counts Two and Four and the
obstruction charges in Counts Three and Five are not multiplicitous because the obstruction
counts require an added mens rea element, namely, that the defendants intended to impede the
investigation of the Coast Guard when they falsified and concealed records. Gov’t Opp’n Mot.
Dismiss Counts Three and Five, ECF No. 86, at 5-6. The addition of this mens rea element,
according to the government, is enough to distinguish the obstruction charges from the APPS
counts. Id. at 6. The government further contends that the APPS counts require the government
to prove that the F/V San Nikunau was a ship weighing over 400 tons, which is not a required
element of the obstruction charges. Id.
Page 29 of 33
The defendants counter that the addition of the mens rea element to the obstruction
charges is not enough to differentiate the APPS and obstruction charges because the alleged
actus reus for both counts is identical. They contend that because “the same alleged facts
underpin both sets of charges, it is multiplicitous to charge both a § 1519 and a § 1903(a) [sic]
violation.” Defs.’ Reply in Supp. Mot. Dismiss Counts Three and Five, ECF No. 110, at 7. The
Court disagrees. While the conduct underlying the falsification and obstruction counts may be
similar, the statutes were designed to prevent different evils, both of which are alleged to have
occurred. As the added mens rea element of the obstruction charges make clear, § 1519
criminalizes the defendants’ alleged attempt to impede the Coast Guard’s investigation of illegal
pollution. This is distinct from the defendants’ alleged failure to record entries in the ORB in
violation of 33 U.S.C. §1908(a) and 33 C.F.R. § 151.25. Given that the elements of the APPS
and obstruction counts are not identical, and each is intended to criminalize specific and distinct
conduct, Counts Two and Four are not multiplicitous of Counts Three and Five.
C. Count Two Is Not Multiplicitous of Count Four, and Count Three Is Not
Multiplicitous of Count Five
Defendant Sanford asserts two other arguments to support dismissal of counts Two
through Five in the Superseding Indictment. First, Sanford argues that “[t]he ‘falsified record’
prongs of Counts Three and Five are multiplicitous, for they have charged Sanford, Ltd. in two
counts for falsifying of the same document.” Def. Sanford’s Mot. Dismiss, ECF No. 64, at 17.
In Moyer and Schmeltz the Third and Sixth Circuits, respectively, held that 28 U.S.C. § 1519 was
“intended to punish the falsification of a document, rather than specific statements or omissions
within a document.” Schmeltz, 667 F.3d at 688; see also Moyer, 674 F.3d at 204. Relying on
these cases, Sanford contends that “there was only one Oil Record Book, which is the record
allegedly falsified” and, consequently, no more than one offense under § 1519 may be charged.
Page 30 of 33
Def. Sanford’s Mot. Dismiss, ECF No. 64, at 18. Sanford’s second argument is that Counts Two
and Four are multiplicitous because a “‘failure to maintain’ is a continuing offense [and] may not
be broken into multiple charges based on the number of times the vessel entered U.S. waters.”
Id. at 19.
The government asserts that all counts of the Superseding Indictment are proper, and not
multiplicitous, because Counts Two and Three charge defendants Sanford and Pogue with a
violation of APPS and obstruction of justice for a voyage ending in July 2010, and Counts Four
and Five charge defendants Sanford and Vano with the same offenses for a voyage ending in
2011. The Counts thus relate to conduct ascribed to different Chief Engineers, for different
voyages, and for separate instances of falsification of the ORB. In addition, the government
indicates that “[t]he Oil Record Book is not exactly the same book for each port call – in between
the two there were additional false entries and omissions.” Gov’t Opp’n Mot. Dismiss Counts
Three and Five, ECF No. 86, at 8-9. The Court agrees.
Defendant Sanford may be correct that the ORB is bound together in one book, but the
precise physical compilation of the documents is immaterial. The ORB contains documentation
for discharges that occurred on each voyage, and the government charges the defendants for false
entries made on two particular voyages ending in July 2010 and July 2011, which relate to
separate counts in the Superseding Indictment. More importantly, Counts Two and Three and
Counts Four and Five assert charges against different Chief Engineers of the F/V San Nikunau.
Given the mens rea requirement, which must be alleged separately for the Chief Engineers
allegedly responsible for falsification of the ORB, and defendant Sanford’s vicarious liability for
actions of each Chief Engineer, allegations against defendants Pogue and Vano must be asserted
Page 31 of 33
in separate counts. Count Two is therefore not multiplicitous of Count Four, and Count Three is
not multiplicitous of Count Five.
D. Even if Counts in the Indictment are Multiplicitous the Defendants Cannot
Show Any Prejudice
The Court concludes that the defendants’ multiplicity arguments are not persuasive.
Even if the Court were persuaded by their multiplicity arguments, however, dismissal of counts
in the Superseding Indictment would not be warranted at this time. While the defendants are
required to assert their argument that charges in the Superseding Indictment are multiplicitous
through pre-trial motion, see FED. R. CRIM. P. 12(b)(3)(B), “multiplicity claims are better sorted
out post-trial.” Hubbell, 177 F.3d at 14. The primary evil of multiplicitous charges is that a
defendant will be punished twice for the same offense. This harm, if it exists at all, may be
remedied during the sentencing phase if the jury returns a conviction on all counts of the
Superseding Indictment. As the Second Circuit explained in United States v. Josephberg:
If the jury convicts on no more than one of the multiplicitous counts, there has
been no violation of the defendant’s right to be free from double jeopardy, for he
will suffer no more than one punishment. If the jury convicts on more than one
multiplicitous count, the defendant’s right not to suffer multiple punishments for
the same offense will be protected by having the court enter judgment on only one
of the multiplicitous counts.
459 F.3d 350, 355 (2d Cir. 2006) (per curiam).
The defendants have not demonstrated that they would suffer any prejudice from
allowing the government to proceed on the allegedly multiplicitous counts, particularly since the
defendants assert that the charges encompass the same underlying facts and conduct. See Cook,
2007 WL 3020081, at *1 (denying without prejudice defendant’s motion to dismiss without
prejudice and stating that is “most appropriate” to resolve multiplicity arguments post-trial,
particularly because “[t]here is no prejudice to defendant in allowing all of the counts to go to the
Page 32 of 33
jury, as both sides agree that the pairs of counts are based on exactly the same facts.”); United
States v. Cisneros, 26 F. Supp. 2d 24, 44-45 (D.D.C. 1998) (denying without prejudice the
defendant’s pre-trial motion, stating that “[t]he Court can resolve any potential multiplicity
issues at or after trial.”); see also Josephberg, 459 F.3d at 355 (“Double Jeopardy Clause does
not protect against simultaneous prosecutions for the same offense, so long as no more than one
punishment is eventually imposed.”); United States v. Gupta, No. 11-cr-907, 2012 WL 1066804,
at *2 (S.D.N.Y. Mar. 27, 2012) (denying without prejudice the defendant’s motion to consolidate
or dismiss multiplicitous charges and stating that the issue can be “raised if and when it becomes
ripe.”); United States v. Jahedi, 681 F. Supp. 2d 430, 437 (S.D.N.Y. 2009) (declining to address
the defendant’s argument that the indictment was multiplicitous until after trial).
For the reasons explained above, the defendants’ arguments that Counts Two, Three,
Four, and Five are multiplicitous are unavailing. The defendants’ motion to dismiss these counts
on these grounds is consequently denied.
V. CONCLUSION
For the reasons explained above, the Court denies: the defendants’ Motion to Dismiss
Counts Two and Four of the Superseding Indictment and, for the same reasons, to dismiss Count
One, ECF No. 71; the defendants’ Motion 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. An Order consistent with this Memorandum
Opinion shall be entered.
DATE: MAY 14, 2012 /s/ Beryl A. Howell___
BERYL A. HOWELL
United States District Judge
Page 33 of 33