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United States of America v. Sanford Ltd.

January 30, 2012

UNITED STATES OF AMERICA,
v.
SANFORD LTD., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

In this maritime case, three Defendants -- Sanford Ltd. ("Sanford"), a shipping company that owns and operates the fishing vessel San Nikunau; and two individuals, James Pogue and Rolando Ong Vano, who served at different times as the Chief Engineer of the ship -- are charged with violating federal criminal laws related to their alleged discharge of oil-contaminated sludge and bilge waste into the ocean and the alleged maintenance of false records regarding these discharges. The investigation that led to these charges arose from a United States Coast Guard inspection of the San Nikunau at Pago Pago, American Samoa in July 2011. The superseding indictment in this case charges the defendants with conspiracy, in violation of 18 U.S.C. § 371; failing to maintain an accurate oil record book, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2 and 33 C.F.R. 151.25; falsification of records, in violation of 18 U.S.C. § 1519; obstruction of justice, in violation of 18 U.S.C. §§ 1505 and 2; and unlawful discharge of oil waste, 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). The defendants have moved for a bill of particulars pursuant to Fed. R. Crim. P. 7(f) because they claim that the superseding indictment in this case fails to identify the charges against them with sufficient particularity. For the reasons discussed below, the Court denies the motion for a bill of particulars.

I. BACKGROUND

Defendant Sanford is a New Zealand corporation that allegedly owns and operates the fishing vessel San Nikunau. Superseding Indictment, ECF No. 22 ("SI") ¶ A.1. The other two defendants, Rolando Ong Vano and James Pogue, are individuals who allegedly served as the Chief Engineer of the San Nikunau during different periods of time from 2007 to 2011. Id. ¶¶ B.1-2. The superseding indictment alleges that the San Nikunau transported fish to ports in the United States, including Pago Pago, American Samoa and elsewhere. Id. ¶ C.1. The San Nikunau had an Engine Department, led by the Chief Engineer, with responsibility for the operation of various systems on the ship, including a device known as an Oil Water Separator. Id. ¶ C.2.

The government brought this case to enforce United States laws implementing an international treaty that regulates discharges of oil from vessels at sea -- The International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (the "MARPOL Protocol"). Id. ¶ D.1. The MARPOL Protocol was enacted into U.S. law by the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1901 et seq, which makes it a crime for any person knowingly to violate the MARPOL Protocol, APPS, or regulations promulgated under APPS. As relevant here, under the MARPOL Protocol and APPS, oil-contaminated waste from a ship may be discharged overboard into the sea only if it contains 15 parts per million or less concentration of oil. Id. ¶ D.2. An "Oil Water Separator" is a technical device used to lower the oil content of oil-contaminated waste so that the waste may legally be discharged overboard. Id. APPS regulations require ships of 400 gross tons or more, such as the San Nikunau, to maintain a log known as an Oil Record Book in which all disposals of certain types of waste must be recorded, including the disposal or discharge overboard of oil residue and bilge waste. Id. ¶ D.3. Bilge waste is water originating from spills and leaks from piping, tanks, and from rain and waves, which may be contaminated with oil and other engine fluids. Id. ¶ D.2. Such waste may be discharged overboard after processing through the Oil Water Separator. Id.

A. Procedural History

The grand jury returned the original indictment in this case against defendant Sanford on December 6, 2011. ECF No. 1. On December 16, 2011, the Court heard a motion from three Filipino crewmembers of the San Nikunau who are being held as material witnesses in connection with this criminal case. See No. 11-mc-580, Minute Entry dated December 16, 2011. The material witnesses sought to be released or for their depositions to be ordered pursuant to Fed. R. Crim. P. 15(a)(2). See No. 11-mc-580, ECF No. 27. The Court denied the motion of the material witnesses without prejudice at that time. See No. 11-mc-580, Minute Order dated December 16, 2011.

Three days later, on December 19, 2011, Sanford was arraigned on the indictment and Rule 15 depositions of the three material witnesses were scheduled for the week of January 9, 2012. See Minute Entry dated December 19, 2011. On December 22, 2011, the government filed criminal complaints against the two individual defendants, Pogue and Vano. ECF Nos. 10-11. The preceding day, upon learning that the United States intended to file complaints against the individual defendants, counsel for the material witnesses renewed the motion for the witnesses' release, anticipating that their scheduled depositions would need to be rescheduled due to the addition of new defendants. See No. 11-mc-580, ECF No. 29.

On December 29, 2011, defendant Sanford filed a motion for a bill of particulars containing 66 separately numbered requests for additional details concerning each count in the indictment. ECF No. 16 ("BOP Mot."). The motion also demanded that the responses to each particular request be provided by January 4, 2012 in order for the defendant to have adequate time to prepare for the depositions then scheduled for the following week.

On January 4, 2012, Vano and Pogue, the two new defendants added by the superseding indictment, made initial appearances before the Court. The Court also heard argument on the material witnesses' renewed motion for release, which had been filed on December 21, 2011. The Court again denied the material witnesses' motion without prejudice. See No. 11-mc-580, Minute Order dated Jan. 4, 2012.*fn1 Given the likelihood of a superseding indictment in the case, the Court directed counsel for all parties and for the material witnesses to confer regarding the scheduling of Rule 15 depositions and directed counsel for the government to "submit a motion, if necessary, for postponement of the [previously] scheduled depositions to a mutually agreed upon time that is as prompt as possible while affording all defendants approximately thirty days from the date of their indictment." Id.*fn2

On the following day, January 5, 2012, the grand jury returned a superseding indictment against defendants Sanford, Vano, and Pogue. See SI. On January 9, 2012, the parties jointly moved to reschedule the depositions of the material witnesses for February 6-8, 2012, and the Court granted that motion. See ECF No. 23; Minute Order dated January 9, 2012.

B. The Superseding Indictment

The superseding indictment alleges seven counts arising from the defendants' alleged violation of the oil waste disposal provisions of APPS during the voyages of the San Nikunau. Each count is briefly summarized below.

Count One alleges conspiracy against all defendants in violation of 18 U.S.C. § 371 for "knowingly and willingly" conspiring to "fail to maintain an Oil Record Book for the F/V San Nikunau in which all operations involving the transfer of oil and oily waste water, including all overboard discharges of oil-contaminated bilge waste, were fully recorded, and falsely recorded that the Oil Water Separator was used when it was not, in violation of" 33 U.S.C. § 1908(a) and 33 C.F.R. §§ 151.25(a) and 151.25(h). SI ¶ E.2.A. The superseding indictment alleges that Sanford, acting through its employees, operated the vessel knowing that it carried a false Oil Record Book and that the vessel routinely discharged oil wastes illegally from November 25, 2006 to July 15, 2011. Id. ¶ E.3. The superseding indictment enumerates 42 overt acts in furtherance of the conspiracy, including: (1) twelve dates in 2006 to 2010 on which the San Nikunau ended fishing voyages in Pago Pago, American Samoa, during which voyages defendants Sanford and James Pogue allegedly directed subordinates to discharge bilge waste overboard without using the Oil Water Separator and without recording the discharge in the Oil Record Book, id. ¶ E.4.A; (2) three dates in 2008 to 2011 on which the San Nikunau ended fishing voyages in Pago Pago, American Samoa, during which voyages defendants Sanford and Rolando Vano directed subordinates to discharge bilge waste overboard without using the Oil Water Separator and without recording the discharge in the Oil Record Book, id. ¶ E.4.B; and (3) five voyages with end dates from March 7, 2007 to August 17, 2010 that do not include allegations of the involvement of defendants Vano or Pogue, id. ¶ E.4.C. The superseding indictment further alleges that on these twenty dates, defendant Sanford and the other members of the conspiracy caused the San Nikunau to enter the navigable waters, internal waters, and ports of the United States in American Samoa with a knowingly falsified Oil Record Book. Id. ¶ E.4.D. Finally, the superseding indictment alleges that on July 15, 2011 two additional overt acts occurred when the First Mate (also known as the "Navigator") of the ship instructed a crewmember to lie to U.S. Coast Guard personnel about the overboard discharges on two separate occasions, once while in the galley of the vessel and once while during a ride to the Coast Guard office. Id.

Counts Two and Three against defendants Sanford and James Pogue allege knowing failure to maintain an accurate Oil Record Book in violation of 33 U.S.C. § 1908(a) and falsification of records in violation of 18 U.S.C. § 1519, respectively. Count Three further alleges that during a fishing voyage ending on or about July 9, 2010, Pogue, with the intent to impede and obstruct a Coast Guard investigation, "did knowingly conceal, cover up, falsify, and make a false entry in a record and document, that is, a false, fictitious and misleading Oil Record Book for the F/V San Nikunau 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." SI Count III at ¶ 2.*fn3

Counts Four, Five, and Six against defendants Sanford and Rolando Vano allege knowing failure to maintain an accurate Oil Record Book in violation of 33 U.S.C. § 1908(a), falsification of records in violation of 18 U.S.C. § 1519, and obstruction of justice in violation of 18 U.S.C. § 1505. The falsification of records charged in Count Five allegedly occurred during a fishing voyage ending on or about July 14, 2011, when Vano, with the intent to impede and obstruct a Coast Guard investigation, "did knowingly conceal, cover up, falsify, and make a false entry in a record and document, that is, a false, fictitious and misleading Oil Record Book for the F/V San Nikunau 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." SI Count V at ¶ 2. The obstruction charge in Count Six allegedly occurred the next day, on July ...


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