[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 06, 2006
THOMAS K. KAHN
No. 05-12077
CLERK
________________________
D. C. Docket No. 04-20072-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICK DEAN STICKLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2006)
Before ANDERSON, FAY and SILER*, Circuit Judges.
FAY, Circuit Judge:
____________________
*Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
This case involves the deliberate pollution of international waters and
whether this defendant was properly charged and tried in this district court.
Appellant appeals his convictions for one count of conspiring to violate the laws
of the United States and one count of knowingly discharging an oily mixture into
the sea without an oil discharge monitoring system. Rick Dean Stickle was the
Chairman and Owner of Sabine Transportation Company, which managed and
operated oceangoing vessels engaged in transporting various cargoes. While
crossing the South China Sea on a return voyage to the United States, laborers of
the S.S. Juneau discharged contaminated wheat and diesel fuel into the sea without
the use of an oil monitoring and discharge control system. Stickle was tried by a
jury which adjudicated him guilty on both counts. He contends that the indictment
should have been dismissed because the Juneau was not a freight vessel as defined
in the charged statutes. He further asserts that the government was required to
prove venue beyond a reasonable doubt and that the evidence presented at trial
was insufficient to establish venue in the Southern District of Florida. Finding no
merit in these contentions, we affirm.
I. Factual Background
Sabine Transportation Company (“Sabine”) owned, managed and operated a
fleet of older tank ships used to transport cargo. Sabine is one of several
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corporations headquartered in Cedar Rapids, Iowa, collectively known as Stickle
Enterprises. Rick Dean Stickle was the Owner and Chairman of Stickle
Enterprises. Stickle was an intensely hands-on manager who regularly involved
himself in the business’ daily operations and decision making. Stickle and the
operation managers were in constant communication with their vessels either by
fax, email or telephone. In addition, Stickle met with operation managers on a
daily basis to discuss the daily reports from vessels at sea.
In 1998, Sabine purchased the S.S. Juneau, an aging, single-hulled vessel,
originally built as an oil tanker. The Juneau was immediately designated to carry a
cargo of wheat for CARE and World Food Programs from Portland, Oregon to
Bangladesh. Sabine purchased the Juneau with the intention of making a single
trip to transport wheat abroad. In order to accomplish this trip, Sabine had the
Coast Guard certify the Juneau to carry wheat (as opposed to oil), that is, certify
the Juneau as a freight vessel, rather than an oil tanker. The United States Coast
Guard conducted an inspection and issued a Certificate of Inspection (“COI”)
making it lawful for the Juneau to operate as a freight vessel for this single trip. In
addition to a COI, United States Vessels that travel overseas must comply with
international requirements. The Juneau needed an International Oil Pollution
Prevention Certificate (“IOPP”). There are two types of IOPP certificates: Form A,
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for ships other than oil tankers, and Form B, for oil tankers. Because Sabine
elected to operate the Juneau as a freight vessel, the Coast Guard issued it a Form
A.
On October 27, 1998, under the control of Captain Stuart Valentine, the S.S.
Juneau started its voyage from Portland, Oregon to Bangladesh. Consistent with
the COI, the Juneau’s cargo consisted of 113,000 metric tons of wheat. En route to
Bangladesh, the Juneau stopped in Singapore to load diesel fuel. This fuel was to
be used to run several evacuators which would be used to offload the ship’s cargo.
When the Juneau arrived in Bangladesh in December, 1998, crew members
discovered that diesel fuel had leaked into the cargo deck and contaminated the
grain. Approximately 9000 gallons of diesel fuel leaked from the starboard slop
tank into the bottom of the cargo tank, saturating about 440 metric tons of the
wheat cargo. Delivery of the contaminated wheat was refused by Bangladeshi
purchasers. At this point in time, the operators of the S.S. Juneau had to decide
what to do with the worthless, contaminated cargo. Bangladesh regulations require
contaminated portions of food cargoes to be discharged and destroyed while the
vessel is still in port. This requirement was established because too many vessels
were disposing of their waste in Bangladeshi waters. The operators of the Juneau,
concerned with the expense and delay in disposing of the contaminated cargo
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ashore, decided to leave Bangladesh with the contaminated portion of the wheat
still in the cargo tank.
Realizing that the fuel had been absorbed into the wheat, making it
impossible for crew members to drain the cargo tank and save the grain, the crew
contacted headquarters in Iowa. Captain Valentine revealed the problem and
advocated discharging the contaminated wheat directly overboard en route to
Singapore. Sabine managers discussed this option directly with Stickle; however
the S.S. Juneau was unable to secure the required laborers in Bangladesh to ride
with the ship and assist in the planned illegal dumping.
As the Juneau was sailing toward Singapore, Sabine headquarters instructed
Port Engineer, Michael Krider, to start negotiations and try to solicit a bid for
onshore disposal of the contaminated grain. Stickle spoke with Krider and told
him to report all information of prospective bids directly to him. The first initial
bid was in the amount of $139,000. Krider informed Stickle of this price. Strickle
responded by saying that the bid was too high and that the oil-contaminated grain
would be disposed of at sea. Throughout the next month Stickle, Michael Reeve
(“Reeve”), and John Karayannides (“Karayannides”), all directors of Sabine,
discussed other disposal options. One option discussed was an attempt to
introduce water in the cargo deck and create a “slurry” out of the water and
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contaminated wheat. However it was determined that this option was not feasible
because the oil discharge monitoring device (“ODM”) was not operational and had
not been inspected by the Coast Guard. During January, 1998, Krider informed
Stickle of several other bids for off-shore and on-shore disposal. Each time,
Stickle responded by saying that the bids were too high and that “they could stick
the bid.” Finally, after deciding that any legal disposal of the contaminated grain
would be too costly, at the instruction of Stickle, Karayannides made arrangements
for 15 Bulgarian laborers to join the ship in Singapore and assist in disposing of
the contaminated grain illegally into the sea.
Shortly thereafter, Krider and Karayannides started creating a false
explanation for the disposal of the contaminated grain. On January 25, 1998,
Karayannides called the Seattle Coast Guard and spoke with Lieutenant Jane
Wong (“Wong”). Karayannides explained that the fuel had somehow breached the
vessels fuel tank and leaked into the cargo tank. He then said that he was trying to
figure out how to remove the final “oil residues.” At no time did Karayannides
ever discuss the real problem, which was the 440 metric tons of contaminated
grain. Karayannides inquired about the use of an ODM under 33 C.F.R. § 157.37,
the regulation that applies to discharges from oil tankers. Wong responded by
saying that the Juneau was certified as a freight vessel and was not inspected as a
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oil tanker. Wong then explained all the additional steps that needed to be taken
before the Juneau could be utilized as an oil tanker under the regulations. Wong
further stated that the Juneau did not have a Form B IOPP certificate because it
was listed and inspected as a freight vessel. After discussing this information with
Wong, Karayannides sent Wong a letter that confirmed their conversation. Wong,
believing that Karayannides’ letter did not accurately portray their conversation,
sent a return letter to Karayannides. In her letter, Wong made clear that before the
S.S. Juneau could “return ... to operation as a tank vessel” and discharge any
residue pursuant to 33 C.F.R. § 157.37, it “must obtain a new COI authorizing
service as a tank vessel” and “must obtain a Form B supplement for the IOPP.” It
is undisputed that the S.S. Juneau never obtained a new COI or Form B
supplement for the IOPP.
On January 30, 1998, before the Juneau was to commence the discharge of
the contaminated wheat and fuel into the South China Sea, the Juneau acquired a
new Captain, George McKay (“McKay”). When McKay boarded the ship he soon
realized that the vessel carried tons of contaminated grain. After McKay spoke
with Philip Hitchens (the Juneau’s Chief Officer) he learned of the plan to dispose
of the contaminated wheat into the sea. The next day the Juneau set sail from
Singapore en route to Portland. For the next 6 days laborers used evacuators to
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suck up the contaminated grain from the cargo tank and discharge it overboard
into the South China Sea. When the grain was too dense to fit through the
evacuators the laborers hauled the contaminated grain up to the deck using a
manual bucket and pulley system. In daily correspondences with headquarters in
Iowa, McKay discussed the progress of the illegal dumping. It is undisputed that
the Juneau did not utilize a certified ODM when discharging this grain into the
sea. After all of the contaminated grain was dumped overboard, the cargo tank was
flushed and discharged into the ocean.
The Juneau arrived in Portland on March 5, 1999. Shortly thereafter,
Hitchens and other crew members learned that the Coast Guard was coming to
inspect the vessel. Over the next couple of months the Coast Guard interviewed
Juneau crew members. McKay, Hitchens and other crew members sought to
minimize the effect of the contamination by falsely stating that the grain was
contaminated by sea water rather than diesel fuel. Based upon these initial
interviews, the Coast Guard opened a criminal investigation. In April 1999, the
Federal Bureau of Investigation(“FBI”) joined the investigation. The FBI
interviewed Hitchens in West Palm Beach, which is located in the Southern
District of Florida. During that interview, Hitchens lied to the FBI agents by
stating that there “were only traces” of oil in the contaminated grain. Hitchens
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sought to minimize the extent of the contamination of the grain which was
discharged from the Juneau and to coverup the deliberate unlawful pollution.
Immediately following the interview, Hitchens called Sabine headquarters to
report the discussion.
Ultimately, on May 27, 1999, Sabine sent a letter to the Coast Guard
responding to the criminal investigation. The letter stated, “If the environmental
statutes were in fact violated, the violation occurred without the knowledge,
authorization, or consent of the shore based management of the company.” This
letter was sent even though Sabine management knew the statement was false.
II. Issues
Stickle raises four issues:
1. Whether the indictment properly charged him with violating 33
C.F.R. § 151.10(a), by knowingly discharging diesel-contaminated
wheat and fuel from the Juneau, a freight vessel, into the South China
Sea without any discharging monitoring prevention device.
2. Does the government need to prove venue by a preponderance of the
evidence or beyond a reasonable doubt?
3. Was the evidence that a co-conspirator made a false statement to an
9
FBI agent sufficient to establish venue in the Southern District of
Florida for count I of the indictment?
4. Whether the government established venue under 18 U.S.C. § 3238
for count II of the indictment in the Southern District of Florida, the
district of the last known residence of one of the joint offenders,
where the offense was committed upon the high seas.
III. Standard of Review
This court reviews the denial of a motion for a judgment of acquittal as well
as the sufficiency of the evidence to support a jury’s verdict de novo. See United
States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). When venue is challenged,
this court views the evidence in the light most favorable to the government and
makes all reasonable inferences and credibility choices in favor of the jury verdict.
United States v. Breitweiser, 357 F.3d 1249, 1253 (11th Cir. 2004). A district
court’s denial of a motion for improper venue is a question of law and subject to
de novo review. See United States v. Muench, 153 F.3d 1298, 1300 (11th Cir.
1998).
IV. Analysis
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Before we address the merits of this appeal, we turn our attention to the
difference between the regulatory provisions that address freight vessels and those
controlling oil tankers. According to Federal Regulations, the United States Coast
Guard has several provisions which deal with navigation and navigable waters.
Most of these provisions were created to protect the ocean environment from oil
tankers that were discharging considerable amounts of oil into the sea without the
use of a discharging monitoring system. Understanding that oil tankers travel for
months across the ocean with a significant amount of oil, the Coast Guard created
regulations which allowed certain amounts of oil to be legally discharged into the
sea through an oil discharging monitoring system. This device is termed an ODM.
In order to utilized these provisions, a vessel must comply with several
requirements: (1) a vessel must be certified by the Coast Guard as a oil tanker, (2)
the Coast Guard must inspect the vessels ODM to see if the device is functioning
properly, and (3) when traveling in foreign waters, a vessel must receive an
Intentional Oil Prevention Form B Certificate, which is specifically designed for
oil tankers.
However, if a vessel is to be used as a freight vessel, which includes any
vessel not an oil tanker, certification is different. A freight vessel must be
inspected and certified by the Coast Guard; however, a properly functioning ODM
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is not required. Freight vessels are not allowed to utilize oil tanker devices for
discharging substances into the sea. In addition, a freight vessel would receive a
Form A IOPP, which is for vessels other then oil tankers. There are totally
different requirements when utilizing a ship as a freight vessel compared to an oil
tanker. With this in mind, we address the merits of the case.
Taking the issues raised in sequence, Stickle first contends that the
indictment should be dismissed because one of the regulatory provisions cited in
count II, 33 C.F.R. § 151.10(a),1 applicable to “a ship other than an oil tanker” did
not clearly apply to the S.S. Juneau. Stickle asserts that the S.S. Juneau was
originally constructed as an oil tanker and therefore can utilize 33 C.F.R. § 157.37
when discharging oil into the sea. This assertion fails for several reasons. First, it
is undisputed that the S.S. Juneau was certified, inspected and approved for use as
a freight vessel. According to the record, the United States Coast Guard inspected
and certified the S.S. Juneau as a freight vessel for a single trip to deliver wheat.
Sabine received a COI from the Coast Guard making it clear that the Juneau could
only operate as a freight vessel, not an oil tanker. In addition, in order for the
1
§ 151.10 Control of oil discharges.
(a) When more than 12 nautical miles from the nearest land, any discharge of oil or oily mixtures
into the sea from a ship other than an oil tanker or from machinery space bilges of an oil tanker is
prohibited except when all of the following conditions are satisfied. 33 C.F.R. § 151.10(a)(2006).
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Juneau to travel in International waters, the vessel needed an IOPP certificate. As
mentioned earlier, there are two different types of IOPP certificates, Form A, for
ships other than oil tankers, and Form B for oil tankers. The S.S. Juneau received a
Form A certificate. During a Form A inspection there is no inspection of an ODM
because the vessel is not being certified as an oil tanker. If Stickle wanted to use
the Juneau as an oil tanker, the vessel was required to go through the process of
inspections and certifications that control the operations of a vessel as an oil
tanker, which includes a Form B certificate. A Form B certificate is only granted
after passing an inspection of a properly working oil discharging monitoring
system. In addition, regardless of whether a vessel is designed as a freight vessel
or as an oil tanker, it is clear that a ship cannot discharge any oily mixture or
residue into the sea without the use of a properly certified monitoring device. It is
clear from the testimony of several crew members that the S.S. Juneau did not use
any monitoring device when dumping 440 metric tons of contaminated grain into
the South China Sea. The government properly charged Stickle with violating 33
C.F.R. § 151.10(a) because the S.S. Juneau was being operated as a freight vessel
and discharged over 440 metric tons of contaminated wheat into the South China
Sea without the use of a properly certified monitoring device.
Next, Stickle contends that his convictions on counts I and II must be
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reversed because the district court violated his due process rights when it
instructed the jury that the government need only prove venue by a preponderance
of the evidence. This argument lacks merit. It has long been settled that when the
government is proving a non-essential element of a crime, like venue, the
prosecution is not required to meet the reasonable doubt standard. See United
States v. White, 611 F.2d 531, 534 (5th Cir. 1980) (quoting United States v.
Turner, 586 F.2d 395, 397 (5th Cir. 1978).2 Our precedent is well established and
clear as illustrated by this quote from a recent opinion:
The standard this court applies when venue is challenged is whether,
viewing the evidence in the light most favorable to the government
and making all reasonable inferences and credibility choices in favor
of the jury verdict . . . the Government proved by a preponderance of
the evidence that the crimes occurred in the district in the which the
defendant was prosecuted.
See United States v. Breitweiser, 357 F.3d 1249, 1253 (11th Cir. 2004). That
burden was properly described to the jury.
Third, Stickle argues that there was insufficient evidence to establish venue
in the Southern District of Florida for the conspiracy count of the indictment. He
contends that all of the overt acts of this conspiracy occurred on the high seas
2
This court adopted the former Fifth Circuit’s case law handed down as of September 30,
1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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and/or in Cedar Rapids Iowa.3 Although Stickle is correct that most of the overt
acts occurred on the high seas and in Iowa, it is also true that a false statement was
made by one of the co-conspirators in West Palm Beach. This false statement was
a deliberate attempt to hinder the criminal investigation and clearly made in
furtherance of the objectives of the conspiracy. In April 1999, the FBI interviewed
Philip Hitchens, the Juneau’s Chief Officer. In this interview, Hitchens lied to the
FBI agents by stating that there “were only traces” of oil in the contaminated
grain. Hitchens made this false statement in order to minimize the extent of
contamination of the grain which was discharged from the Juneau. Based on the
totality of the evidence, the jury reasonably concluded that the false statement
made by Hitchens impeded the investigation into whether the Juneau’s and
Sabine’s operations had violated the law. Sufficient evidence was presented that
an overt act occurred in the Southern District of Florida.
Finally, Stickle asserts that venue did not exist under 18 U.S.C. § 3238 in
the Southern District of Florida for count II, the illegal discharge of contaminated
grain. The indictment charged Stickle with knowingly discharging and causing to
be discharged from a ship more than 400 gross tons of oil and oil mixture of
3
However, despite the fact the charges could have been brought in Iowa, they were
properly filed in the Southern District of Florida since there was no existing case in Iowa. See
United States v. Williams, 589 F.2d 210 (5th Cir. 1979).
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diesel-contaminated wheat and diesel fuel, into the sea without the use of an oil
discharge monitoring and control system. Pursuant to 18 U.S.C. § 3238, Congress
has provided that venue lies:
[I]n the district in which the offender, or any one of two or more joint
offenders, is arrested or is first brought; but if such offender or
offenders are not so arrested or brought into any district, an
indictment or information may be filed in the district of the last
known residence of the offender or any one of two or more joint
offenders.
18 U.S.C. § 3238 (2006). The locus delicti, or the place where an offense was
committed, “must be determined from the nature of the crime alleged and the
location of the act or acts constituting it.” See United States v. Cabrales, 524 1, 6-7
(1998)(internal quotation marks and citation omitted). Here, it is evident that the
locus delicti of count II is the high seas. The evidence presented at trial clearly
established that the laborers of the S.S. Juneau illegally discharged more than 440
metric tons of contaminated grain in to the South China Sea. Since no offender
was arrested or brought into any other district, this court looks to the last known
residence of any offender. Here, the last known residence of one of the joint
offenders was Hitchens, who lived in the Southern District of Florida. The jury
was justified in finding that the government established venue in the Southern
District of Florida for count II.
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V. Conclusion
There is simply no merit in the contentions made in this appeal. The
government properly charged Stickle with violating 33 C.F.R. § 151.10(a),
because the S.S. Juneau was certified as a freight vessel and laborers of the vessel
illegally discharged more than 440 metric tons of contaminated grain into the sea.
This was done at the direction of Stickle. Next, when proving a non-essential
element of a crime, like venue, the government need only meet the preponderance
of evidence standard. Third, venue is appropriate in the Southern District of
Florida because a co-conspirator made a false statement in that district which was
determined by the jury to hinder the criminal investigation. Finally, the jury was
justified in finding that the government established venue in the Southern District
of Florida for count II, because under the provisions of 18 U.S.C. § 3238, the
criminal activity occurred on the high seas and the last known residence of
Hitchens, a co-conspirator, was in the Southern District of Florida.
AFFIRMED.
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