United States v. Nikolaos Vastardis

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2040
_____________
UNITED STATES OF AMERICA
v.
NIKOLAOS VASTARDIS,
Appellant
______________
On Appeal from the United States District Court
for the District of Delaware
(No. 1-19-cr-00066-001)
District Judge: Honorable Richard G. Andrews
______________
Argued on May 27, 2021
______________
Before: McKEE, RESTREPO, FUENTES, Circuit Judges.
(Opinion Filed: December 7, 2021)
Edward S. MacColl [Argued]
Marshall J. Tinkle
Thompson, MacColl & Bass LLC, P.A.
15 Monument Square
Portland, ME 04101
Bruce M. Merrill
Law Offices of Bruce Merrill, P.A.
225 Commercial St.
Suite 501
Portland, ME 04101
Counsel for Appellant
Varu Chilakamarri [Argued]
Amelia G. Yowell
Eric Grant
Jonathan D. Brightbill
Jennifer Scheller Neumann
Thekla Hansen-Young
Richard A. Udell
Environmental Natural Resources Division
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044
Counsel for Appellee
2
______________
OPINION OF THE COURT
______________
FUENTES, Circuit Judge.
This case requires us to determine whether the United
States lacks prosecutorial authority over the presentation of
falsified records to U.S. officials and other related deception
that occurred while a defendant was docked in the Delaware
Bay port because the crimes sought to be covered up were
committed on the high seas. We hold that, although Vastardis
cannot be convicted in a U.S. Court for crimes occurring in
international waters, the convictions here were based on the
presence of inaccurate records in U.S. waters. Accordingly,
the District Court had subject matter jurisdiction even though
the actual entries may have been made beyond the jurisdiction
of the United States while on the high seas.
Nikolaos Vastardis, a citizen and resident of the
Republic of Greece, appeals his conviction and sentence for
crimes that allegedly took place while he was Chief Engineer
onboard a Liberian-registered petroleum tanker named the
Evridiki. Vastardis was convicted of four offenses related to
maritime pollution: failing to maintain an accurate Oil Record
Book from December 8, 2018 to March 11, 2019 in violation
of 33 U.S.C. § 1908(a) (Count 1); falsifying high-seas Oil
Record Book entries in violation of the Sarbanes-Oxley Act,
18 U.S.C. § 1519 (Count 2); obstructing justice in the Coast
Guard’s investigation of the Evridiki in violation of 18 U.S.C.
§ 1505 (Count 3); and making false statements in violation of
18 U.S.C. § 1001 (Count 4). The District Court imposed a
3
$7,500 fine, a $400 special assessment, and three years’
probation. As a condition of probation, Vastardis was barred
from entering the United States or applying for any visas to
enter the United States.
For the following reasons, we will affirm the
convictions. However, we will vacate the portion of the
District Court’s sentence that precludes Vastardis from
entering the United States while under court supervision.
I. INTERNATIONAL TREATIES ON MARITIME
POLLUTION
The United States is a signatory to the 1973
International Convention for the Prevention of Pollution from
Ships1 and the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships.2 Both
treaties relate to pollution on the high seas. Together, these
treaties are referred to as “MARPOL” (short for “Maritime
Pollution”), and their collective aim is to “achieve the complete
elimination of international pollution of the marine
environment by oil and other harmful substances.”3
MARPOL is enforced by U.S. federal statute through
the Act to Prevent Pollution from Ships (“Act to Prevent
Pollution”), which criminalizes violations of MARPOL. The
Act to Prevent Pollution designates the country in which a ship
is registered as the “flag state,” and the country receiving the
1
Nov. 2, 1973, 1340 U.N.T.S. 184.
2
Feb. 17, 1978, 1340 U.N.T.S. 61.
3
1340 U.N.T.S. at 128.
4
ship as the “port state.”4 Under MARPOL and the Act to
Prevent Pollution, a ship’s flag state may prosecute a violation
“wherever the violation occurs.”5 By contrast, port states have
jurisdiction over foreign ships only for conduct that occurs in
their ports or waters and may only refer evidence of a foreign
ship’s high-seas misconduct to the flag state.6 The Act to
Prevent Pollution also authorizes the Coast Guard, an agency
of the United States Department of Homeland Security, to
“prescribe any necessary or desired regulations to carry out the
provisions of . . . MARPOL.”7
II. FACTUAL BACKGROUND
During ordinary operation, oceangoing petroleum
tankers accumulate large volumes of oily wastewater in their
bottoms (“bilges”), engine rooms, and mechanical spaces,
which can potentially pollute the ocean. Regulations
promulgated pursuant to the Act to Prevent Pollution
accordingly prohibit tank vessels of 150 gross tons or more
from discharging oily bilge water into the sea, unless (1) the
discharge contains less than 15 parts per million (“ppm”) of oil;
and (2) the vessel has in operation certain pollution control
equipment, including an Oily Water Separator that both filters
waste and has an Oil Content Meter for monitoring waste levels
in the discharge.8 The Oil Content Meter is part of the Oily
Water Separator and it monitors samples of wastewater about
to be discharged. It is designed to sound an alarm and
4
United States v. Abrogar, 459 F.3d 430, 432 (3d Cir. 2006).
5
MARPOL Art. 4(1)–(2), 1340 U.N.T.S. at 185.
6
Id. Art. 6(2), 1340 U.N.T.S. at 187; Abrogar, 459 F.3d at 432.
7
33 U.S.C. §§ 1903(c)(2), 1907.
8
33 C.F.R. § 151.10; MARPOL Annex I, Reg. 15.
5
automatically stop a discharge if the discharge contains more
than 15 ppm of oil. Any bilge water that exceeds that pollution
level must be retained by the vessel and taken to a “reception
facility.”9
To track a ship’s pollution, MARPOL and applicable
regulations require tank vessels to “maintain an Oil Record
Book.”10 The Oil Record Book is a running log that includes
detailed entries for every onboard oil transfer operation.
Regulations require the Oil Record Book to include entries for
each tank-to-tank transfer of oil; each discharge of oily bilge
water; each failure of oil filtering equipment; and any
accidental or emergency discharge of oily waste exceeding the
legal limit.11 Regulations also require that individual
line-by-line entries in the Oil Record Book be made without
delay “on each occasion” that an oil operation occurs.12 These
entries must be signed by the person in charge of that operation,
such as the supervising engineer, who is responsible for
“maintenance” of the Oil Record Book.13
Nikolaos Vastardis was the Chief Engineer responsible
for maintaining the Oil Record Book while onboard the
Evridiki, a Liberian-registered 84,796-gross ton petroleum
tanker. On March 11, 2019, the Coast Guard inspected the
Evridiki after it entered the Delaware Bay port. They soon
9
33 C.F.R. § 151.10; MARPOL Annex I, Reg. 14.
10
33 C.F.R. § 151.25(a).
11
33 C.F.R. § 151.25; MARPOL Annex I, Reg. 17.
12
33 C.F.R. § 151.25(h).
13
33 C.F.R. § 151.25(j).
6
became suspicious of the ship’s Oil Content Meter.14 After
docking and inspecting the ship’s international oil pollution
prevention certificate, Coast Guard Officer Aaron Studie asked
Vastardis to run the vessel’s Oily Water Separator as he would
at sea, to confirm its operability. The crew turned on the Oily
Water Separator, and the Oil Content Meter displayed a
reading of 0 ppm of oil. Vastardis responded by giving Studie
“two thumbs up.”15 Studie was skeptical. He noticed that the
valve supplying the discharge to the Oil Content Meter was
closed, preventing the Oil Content Meter from testing the
actual sample discharge. When that valve was opened, the
14
Vastardis Br. at 7–10. Vastardis argues that the United
States had no right to investigate the Evridiki because a valid
international oil pollution prevention certificate was presented
and no clear ground for further investigation was identified at
the time of inspection, citing 33 U.S.C. § 1904(d)
(investigation “is limited to verifying whether or not a valid
certificate is onboard, unless clear grounds exist, which
reasonably indicate that the condition of the ship or its
equipment does not substantially agree with the particulars of
the certificate.”). However, in addition to its authority to
confirm that a “valid [international oil pollution prevention]
Certificate is on board,” the Coast Guard also has the authority
to confirm that the “condition of the ship and its equipment
corresponds substantially with the particulars of the
[international oil pollution prevention] Certificate” to
determine whether the ship has discharged oil in violation of
MARPOL, and to examine “the Oil Record Book, the oil
content meter continuous records, and [conduct] a general
examination of the ship.” 33 C.F.R. § 151.23. Accordingly,
federal statute authorized the Coast Guard’s investigation.
15
Presentence Investigation Report (“PSR”) ¶ 34.
7
reading remained at 0 ppm. This surprised Studie because in
his experience, a flat 0–2 ppm reading indicated that the Oil
Content Meter was testing a sample of freshwater. If the Oil
Content Meter were testing filtered oily bilge water, one would
expect to see a fluctuating reading of 3–10 ppm. As Officer
Studie tried to understand the anomaly, he physically traced the
sample line until it reached behind the Oily Water Separator.
There, he discovered a hidden valve that was also closed,
blocking the Oily Water Separator sample from flowing
through the Oil Content Meter. Once this valve was opened,
the Oil Content Meter immediately jumped to a reading of 40
ppm or higher. This triggered an audible alarm and caused the
Oily Water Separator to go into recirculation mode.
After discovering the ship’s hidden valve, Officer
Studie reviewed the Oil Content Meter’s memory chip to
decipher the ship’s past actions. He observed that the memory
chip read a flat 0–2 ppm throughout the duration of all the
recent discharges. Vastardis had recorded those discharges in
the Oil Record Book as properly running through 15 ppm
equipment. Officer Studie then realized that, given the
configuration of the Evridiki’s Oily Water Separator, if the
sample line were closed, the Oil Content Meter could be made
to sample freshwater trapped in the device instead of the oily
bilge water being discharged overboard. This explained why
the Oil Content Meter displayed a reading of 0–2 ppm during
the inspection, as well as the history recorded on the memory
chip. Those recent discharges could not have been made
through the 15 ppm Oil Content Meter equipment. Officer
Studie suspected that during high seas operations, Vastardis
“was keeping the valve closed and preventing the [Oily Water
Separator’s] oil content meter [from] getting an adequate
8
sample.”16 When the other Coast Guard officer conducting the
inspection asked Vastardis what the position of the sample line
valve was during normal operations, Vastardis repeatedly
asserted that he always ran the Oily Water Separator with the
valve in the “open” position.17
Between March 11–13, 2019, Coast Guard officers
seized all of the ship’s Oil Record Books for investigation.
They duplicated all onboard computers and analyzed the Oil
Content Meter’s memory chip in greater depth. The analysis
revealed that since 2018, the ship’s Oily Water Separator
operated 16 times, for a total of 55.5 hours, including on March
8, 2019, just three days before the inspection.18 The Oil Record
Book showed that Vastardis ran at least ten of those operations,
discharging more than 62,000 gallons of oily bilge water into
the ocean.19 The Government claims that Vastardis falsified
the ship’s required Oil Record Book in order to indicate that
the ship’s oily waste discharges had been properly filtered and
monitored through required pollution control equipment when
the waste had actually bypassed the equipment on its way
overboard.20
After the expanded inspection, the Coast Guard brought
an in rem proceeding against the vessel under 33 U.S.C.
§ 1908(d) and (e). The Coast Guard sought criminal fines for
16
Vastardis Br. at 11 (citing Motion Tr. at 42:23; omitted from
App-II).
17
Supp. App’x. at 14-15.
18
PSR ¶ 38.
19
Gov’t’s Sent’g Memorandum and Opposition to Defendant’s
Motion for Variance, ECF 166 at 4; Supp. App. at 84.
20
Gov’t Br. at 1.
9
any violation of the Act to Prevent Pollution and claimed that
the Government was entitled to a bond or other surety,
including human surety, under § 1908(e).21 The ship and her
entire crew were detained while the Coast Guard negotiated an
Agreement on Security, insisting that the crewmembers
“remain within the jurisdiction of the U.S. District Court –
District of Delaware,” and attend “meetings with . . . [U.S.] law
enforcement personnel” until a Government lawyer “advises
that their presence is no longer necessary.”22 After being held
for the better part of a month without process, Vastardis and
his thirty-two fellow foreign crewmembers petitioned for
habeas relief in April 2019.23 Ten days later, the Government
filed a criminal complaint against Vastardis and secured ex
parte material witness arrest warrants for the other ten
crewmembers pledged as human surety.24 Over the
Government’s objection, these witnesses were eventually
allowed to give depositions and return to their homes overseas,
subject to their agreement to return for trial unless at sea.
Vastardis was later charged in a four-count indictment
with violations of the Act to Prevent Pollution and its
regulations and for obstruction in connection with the Coast
Guard inspection: (1) knowingly causing the failure to
maintain an accurate Oil Record Book, aiding and abetting, in
21
33 U.S.C. § 1908 (d) and (e) provide criminal and civil
penalties for certain persons who violate the MARPOL
Protocol and allow the violating vessel to be seized and held
“upon the filing of a bond or other surety satisfactory to the
Secretary [of the Treasury].”
22
App-II at 8–9.
23
App-I at 8.
24
Id. at 11.
10
violation of 33 U.S.C. § 1908(a), 33 C.F.R. § 151.25, and 18
U.S.C. § 2; (2) falsification of records, aiding and abetting, in
violation of 18 U.S.C. §§ 1519 and 2; (3) obstruction of justice,
in presenting false Oil Record Book entries and deceiving
inspectors, aiding and abetting, in violation of 18 U.S.C. §§
1505 and 2; and (4) false statements in connection with a
federal investigation, aiding and abetting, in violation of 18
U.S.C. §§ 1001 and 2.
Vastardis moved to dismiss the indictment and to
suppress evidence obtained during the inspection, but the
District Court denied both motions. After a seven-day trial, a
jury convicted him on all counts. Vastardis moved for
judgment of acquittal based on sufficiency of the evidence,
which the District Court denied. At sentencing, the District
Court imposed a $7,500 fine, a $400 special assessment, and
three years’ probation, a condition of which was banishment
from the United States and U.S. waters. This appeal followed.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject-matter jurisdiction over
Vastardis’s prosecution for federal crimes under 18 U.S.C. §
3231. We have appellate jurisdiction over the District Court’s
final judgment under 28 U.S.C. § 1291. We also have
jurisdiction in sentencing appeals under 18 U.S.C. § 3742(a).
The parties raise several issues on appeal, each of which
warrants a different level of review. We review the
Government’s various statutory and legal arguments on the
application of the Act to Prevent Pollution de novo.25
25
United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).
11
Regarding the sufficiency of the evidence at trial, we afford
“deference to a jury’s findings” and draw “all reasonable
inferences in favor of the jury verdict.”26 With regard to the
confiscation of Evridiki’s Oil Record Book, we review the
denial of Vastardis’s motion to suppress for clear error as to the
underlying factual findings and exercise plenary review over
the District Court’s application of the law to those facts.27
Finally, we review Vastardis’s challenge to the substantive
reasonableness of his sentence under an abuse-of-discretion
standard.28
IV. MOTION TO SUPPRESS
As an initial matter, Vastardis argues that the District
Court erred in denying his motion to suppress the Oil Record
Book entries because they were unlawfully obtained by the
U.S. Government.29 In denying Vastardis’s motion, the
District Court concluded that “[b]inding Third Circuit
precedent holds that the Coast Guard can conduct a
warrantless search of a vessel given reasonable suspicion of
criminal activity.”30 We analyze Vastardis’s argument in three
steps: (1) “we ask whether a Fourth Amendment event, such
as a search or seizure, has occurred”; (2) “we consider whether
26
United States v. Riley, 621 F.3d 312, 329 (3d Cir. 2010)
(internal citations omitted).
27
United States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014).
28
See United States v. Richards, 674 F.3d 215, 220 (3d Cir.
2012).
29
Vastardis Br. at 51–53; see also Defs.’ Joint Motion to
Suppress, App-II at 112.
30
App-I at 54 (citing United States v. Varlack Ventures, Inc.,
149 F.3d 212, 217 (3d Cir. 1998)).
12
that search or seizure was reasonable; and (3) if it was not, we
then determine whether the circumstances warrant suppression
of the evidence.”31 We conclude that, even assuming there
was a seizure, it was reasonable. And even if unreasonable,
the violation would not have warranted the suppression of the
Oil Record Book entries.
Under 14 U.S.C. § 522(a), the Coast Guard has broad
authority to inspect vessels and, in certain circumstances, to
make searches and seizures, “upon the high seas and waters of
which the United States has jurisdiction, for the prevention,
detection, and suppression of violations of laws of the United
States.” As noted by the District Court, we have held that
Section 522(a) authorizes “warrantless searches of vessels in
U.S. territorial waters based solely upon a reasonable
suspicion of criminal activity.”32 The Coast Guard also has
specific authority to inspect vessels, including Oil Record
Books, for compliance with MARPOL and the Act to Prevent
Pollution, and it may expand such an inspection if “clear
grounds exist which reasonably indicate that the condition of
the ship or its equipment does not substantially agree with the
particulars of” the ship’s MARPOL certificate.33
31
United States v. Dupree, 617 F.3d 724, 731 (3d Cir. 2010).
32
United States v. Varlack Ventures, Inc., 149 F.3d 212, 214
(3d Cir. 1998) (interpreting 14 U.S.C. § 89(a), now codified at
14 U.S.C. § 522(a)); see also United States v. Benoit, 730 F.3d
280, 284 (3d Cir. 2013) (“[A] reasonable suspicion
requirement for searches and seizures on the high seas survives
Fourth Amendment scrutiny.” (citation and quotation marks
omitted)).
33
33 U.S.C. § 1904(d); see also id. § 1907(c)(2)(A); 33 C.F.R.
§ 151.23(a)(1), (c); Abrogar, 459 F.3d at 432.
13
The Coast Guard’s preliminary examination of the Oil
Record Book and Oily Water Separator was within its
inspection authority under the Act to Prevent Pollution. When
the officers realized the Oily Water Separator was not filtering
oil and observed prior Oil Content Meter readings showing 0
–2 ppm, and when Vastardis appeared to conceal the fact that
the Oily Water Separator was not operable, the officers had
clear reason to suspect a criminal violation of the Act to
Prevent Pollution. Given that reasonable suspicion, the
warrantless seizure of the Oil Record Book was justified.
Vastardis argues that the Act to Prevent Pollution
regulations provide that the United States, like all port states,
is authorized only to copy foreign books—not to seize them.
Annex I of MARPOL states:
The competent authority of the Government of a
Party to the present Convention may inspect the
Oil Record Book Part I on board any ship to
which this Annex applies while the ship is in its
port or offshore terminals and may make a copy
of any entry in that book and may require the
master of the ship to certify that the copy is a true
copy of such entry. Any copy so made which has
been certified by the master of the ship as a true
copy of an entry in the ship’s Oil Record Book
Part I shall be made admissible in any judicial
proceedings as evidence of the facts stated in the
14
entry. The inspection of an Oil Record Book Part
I and the taking of a certified copy by the
competent authority under this paragraph shall
be performed as expeditiously as possible
without causing the ship to be unduly delayed.34
The Government argues that while the MARPOL Annex
authorizes certified copies, it does not preclude the Coast
Guard’s statutory authority to seize Oil Record Books.35
Meanwhile, the Act to Prevent Pollution slightly modifies the
language from the MARPOL Annex:
An inspection under this section may include an
examination of the Oil Record Book, the oil
content meter continuous records, and a general
examination of the ship. A copy of any entry in
the Oil Record Book may be made and the
Master of the ship may be required to certify that
the copy is a true copy of such entry.36
Even if Vastardis were correct and only copying the Oil
Record Book entries was permitted, that violation would not
have required the suppression of the Oil Record Book.
MARPOL allows a copy of the Oil Record Book to be made
and a properly certified copy can surely be admitted as
evidence in a judicial proceeding. Therefore, the
Government’s certified copy of the book would have put the
same evidence in front of the jury.37 Accordingly, the District
34
MARPOL, Annex I, Reg. 17 ¶ 7.
35
Gov’t Br. at 45.
36
33 C.F.R. § 151.23(c).
37
See United States v. Wright, 777 F.3d 635, 641 (3d Cir. 2015)
(affirming the denial of a motion to suppress because the
15
Court did not err in allowing the Oil Record Book entries into
evidence, despite the records having been obtained, rather than
copied, by the Government.
V. COUNT 1 – FAILURE TO MAINTAIN AN OIL
RECORD BOOK
Count 1 of the indictment charged that “[o]n or about
March 11, 2019, at the Big Stone Anchorage, Delaware Bay,
Delaware,” Vastardis “knowingly . . . cause[d] the failure to
maintain an accurate Oil Record Book for the M/T
EVRIDIKI,” in violation of 33 C.F.R. § 151.25, 33 U.S.C.
§ 1908(a), and 18 U.S.C. § 2.38 Sections 151.25 (d) and (j) of
the Code of Federal Regulations require that: “[E]ntries shall
be made in the Oil Record Book on each occasion . . .
whenever any of [certain specified] machinery space
operations take place . . . . The master . . . shall be responsible
for the maintenance of [the Oil Record Book].”
Fourth Amendment violation “had no impact on the evidence
that could be deployed against [the defendant] at trial” since
“the agents would have collected precisely the same evidence,
and [the defendant] would have been unable to stop them”);
United States v. Stabile, 633 F.3d 219, 245 (3d Cir. 2011)
(explaining that under the inevitable discovery doctrine,
information that would have been discovered by lawful means
should not be suppressed.).
38
App-I at 38–39. On each count, the Government charged
Vastardis with aiding and abetting under 18 U.S.C. § 2.
16
Section 1908(a) of the United States Code states:
A person who knowingly violates the MARPOL
Protocol, Annex IV to the Antarctic Protocol,
this chapter, or the regulations issued thereunder
commits a class D felony. In the discretion of the
Court, an amount equal to not more than ½ of
such fine may be paid to the person giving
information leading to conviction.
The Oil Record Book entries in question falsely documented
bilge water discharges that occurred when the Evridiki was on
the high seas. Vastardis argues that this divests the United
States of the authority to enforce the penalties prescribed under
MARPOL because the Act to Prevent Pollution is limited to
conduct while in the navigable waters of the United States. We
disagree. Instead, we—like some of our sister circuit courts—
find that the arrival of the Evridiki in the Delaware Bay
triggered the duty under Coast Guard regulations to “maintain
an Oil Record Book” while in U.S. waters,39 which brought
Vastardis’s conduct within U.S. jurisdiction under the Act to
Prevent Pollution.
The word “maintain” in this context requires that the
records be substantively accurate. Merriam-Webster’s
Dictionary defines “maintain” as, inter alia, “to keep in a state
of repair, efficiency, or validity.”40 The recordkeeping
39
33 C.F.R. § 151.25(a).
40
Maintain, Merriam-Webster’s Unabridged Dictionary,
https://www.merriam-
webster.com/dictionary/maintain#:~:text=English%20Langua
ge%20Learners%20Definition%20of%20maintain%20%3A
17
provision would make little sense if, as Vastardis proposes, it
required that ships only physically possess an Oil Record Book
in any state of completeness or accuracy. Because an Oil
Record Book must be accurately maintained under § 151.25,
and because § 151.25 applies to foreign ships while they are in
U.S. waters or in a U.S. port, the arrival in U.S. waters or a
U.S. port of a ship with an inaccurate Oil Record Book
constitutes a violation of that regulation. The Act to Prevent
Pollution makes it a felony to violate that regulation
knowingly.41
Two of our sister circuit courts—the Second and Fifth
Circuits—have adopted this plain reading in holding that “the
requirement that an oil record book be ‘maintained’ . . .
impos[es] a duty upon a foreign-flagged vessel to ensure that
its oil record book is accurate (or at least not knowingly
inaccurate) upon entering the ports of navigable waters of the
United States.”42 In both cases, the United States prosecuted
the defendants under § 1908(a) for knowingly maintaining Oil
Record Books in a U.S. port that falsely documented high-seas
discharges in violation of § 151.25.43 In reaching this
%20to,etc.%20%3A%20to%20continue%20having%20or%2
0doing%20%28something%29.
41
33 U.S.C. § 1908(a).
42
United States v. Jho, 534 F.3d 398, 403 (5th Cir. 2008); see
also United States v. Ionia Mgmt. S.A., 555 F.3d 303, 306 (2d
Cir. 2009) (per curiam) (“[W]e join the Fifth Circuit in holding
that [§ 151.25] imposes a duty on ships, upon entering the ports
or navigable waters of the United States, to ensure that its [Oil
Record Book] is accurate (or at least not knowingly
inaccurate).”).
43
Ionia, 555 F.3d at 305; Jho, 534 F.3d at 402–03.
18
conclusion, the Second and Fifth Circuits rejected the
argument that the obligation to “maintain” an Oil Record Book
in U.S. waters imposes no substantive accuracy requirement.44
In the recordkeeping context, “the duty to ‘maintain’ plainly
means a duty to maintain a reasonably complete and accurate
record,” and “[n]o reasonable reader of [§ 151.25] could
conclude, given the context, that the regulation merely imposes
an obligation to preserve the [Oil Record Book] in its existing
state.”45
One of our own cases similarly supports this plain
reading.46 In United States v. Abrogar, we articulated this
offense as the “knowing failure to maintain an accurate oil
record book within U.S. waters.”47 As here, the improper
discharges occurred outside U.S. waters, and Abrogar falsely
documented them while he was outside U.S. waters.48 After a
Coast Guard inspection uncovered the ship’s conduct, Abrogar
44
Ionia, 555 F.3d at 307–09; Jho, 534 F.3d at 403.
45
Ionia, 555 F.3d at 309.
46
Because we find the text of the Act to Prevent Pollution and
MARPOL to be unambiguous, Vastardis’s reliance on the rule
of lenity is unavailing. See United States v. Kouevi, 698 F.3d
126, 138 (3d Cir. 2012) (“The rule of lenity applies in those
situations in which a reasonable doubt persists about a statute’s
intended scope even after resort to the language and structure,
legislative history, and motivating policies of the statute.”)
(citation omitted).
47
459 F.3d at 435 (internal quotation marks omitted). We did
not have occasion to squarely address the Government’s
jurisdiction to prosecute the offense, as Abrogar pleaded
guilty.
48
Id. at 433, 436.
19
pleaded guilty to failing to maintain an accurate Oil Record
Book as required by § 151.25, in violation of § 1908(a).49
Although we vacated the District Court’s imposition of a six-
level sentencing enhancement for an offense that “resulted in
an ongoing, continuous, or repetitive discharge, release, or
emission of a pollutant into the environment,”50 this was
because the high-seas discharges did not constitute “relevant
conduct” for purposes of determining Abrogar’s offense level
under the U.S. Sentencing Guidelines.51 The crime was, as
here, the failure to maintain an accurate oil record book while
in a U.S. port. Accordingly, Abrogar’s offense did not “result[]
in” any pollution, as required for the enhancement.52
Contrary to Vastardis’s assertion, allowing the United
States to prosecute this recordkeeping violation does not flout
the division of authority set forth in MARPOL and the Act to
Prevent Pollution. Rather, it adheres to that careful division
and preserves the integrity of MARPOL. To be sure, Vastardis
is correct that MARPOL vests power in flag states to prosecute
high-seas misconduct “wherever the violation occurs.”53 But
MARPOL still vests concurrent jurisdiction to port states over
conduct in their ports or waters.54 Because the gravamen of
Vastardis’s crime occurred in the Delaware Bay port, it is
appropriate for U.S. prosecution under MARPOL. Port states
also play a key role in detecting (if not prosecuting) such
49
Id. at 433.
50
Id. (quoting U.S.S.G. § 2Q1.3(b)(1)(A)).
51
Id. at 437.
52
Id. at 436.
53
MARPOL Art. 4(1)–(2), 1340 U.N.T.S. at 185.
54
Id. Art. 6(2), 1340 U.N.T.S. at 187; Abrogar, 459 F.3d at
432.
20
misconduct. Indeed, the ability of port states to refer violations
to flag states hinges on the reliability of foreign ships’ Oil
Record Books, which port officers like the Coast Guard review
in conducting inspections.55 If foreign ships were free to
maintain falsified Oil Record Books in U.S. ports, then “the
Coast Guard’s ability to conduct investigations against foreign-
flagged vessels would be severely hindered,” allowing those
vessels “to avoid detection.”56 Ships could carry two Oil
Record Books: one accurate Oil Record Book for flag-state
inspection, and one falsified Oil Record Book for port-state
inspection. Under such a system, port states “would be
severely hampered in their ability to report violations to the
flag state for enforcement, and the international system of
reporting and accountability under MARPOL would
collapse.”57
The jury convicted Vastardis on Count 1 after receiving
an instruction that, to do so, it must find that the offense
occurred “while the . . . Evridiki was in the navigable waters
of, or at a port or terminal of the United States.”58 Because the
Government was within its jurisdiction to prosecute the ship’s
failure to maintain an accurate Oil Record Book in a U.S. port,
we will affirm that conviction.
55
See Abrogar, 459 F.3d at 432 (“In conducting inspections,
the Coast Guard typically relies on a ship’s oil record book and
statements of the crew.”); Jho, 534 F.3d at 403 (“Accurate oil
record books are necessary to carry out the goals of MARPOL
and the [Act to Prevent Pollution].”).
56
Jho, 534 F.3d at 403.
57
Ionia, 555 F.3d at 308.
58
App-II at 318–19.
21
VI. COUNT 2 – FALSIFYING RECORDS, SARBANES-
OXLEY
Count 2 of the indictment charged Vastardis with
violating 18 U.S.C. § 1519 based on the falsified Oil Record
Book. Section 1519 makes it a crime to knowingly “conceal[],
cover[] up, or make[] a false entry in any record . . . 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, . . . or in
relation to or contemplation of any such matter or case.”59
Vastardis argues that the Government failed to prove
that he acted with the requisite specific intent of impeding a
U.S. investigation because his falsification of the Oil Record
Book would have been done with the intent to impede only a
Liberian investigation, since only Liberia had jurisdiction to
prosecute a recordkeeping offense. This argument fails.
The Coast Guard had statutory authority to conduct a
compliance inspection and examine the ship’s Oil Record
Book while it was in the Delaware Bay. “While at a port or
terminal under the jurisdiction of the United States, a ship is
subject to inspection by the Coast Guard . . . [t]o determine
whether a ship has been operating in accordance with and has
not discharged any oil or oily mixtures in violation of the
provisions of MARPOL.”60 Such an inspection “may include
an examination of the Oil Record Book.”61 MARPOL itself
59
18 U.S.C. § 1519.
60
33 C.F.R. § 151.23(a); see also 33 U.S.C. § 1904(c)-(d);
MARPOL Art 6(2), 1340 U.N.T.S. at 187.
61
33 C.F.R. § 151.23(c); see also Abrogar, 459 F.3d at 432.
22
authorizes a port state to “inspect the Oil Record Book on
board any ship . . . while the ship is in its port or offshore
terminals.”62
Under § 1519, “[i]t is sufficient that the ‘matter’ [under
investigation] is within the jurisdiction of a federal agency as a
factual matter.”63 The Government must prove only that “(1)
[the defendant] intended to impede an investigation into ‘any
matter’ and (2) the matter at issue was ultimately proven to be
within the federal government’s jurisdiction.”64 The
Government is “not required to prove that [the defendant]
intended to obstruct or impede a specific federal
investigation.”65 An Oil Record Book inspection by the Coast
Guard is plainly a matter within its jurisdiction, and other
circuit courts have affirmed § 1519 convictions for falsified Oil
Record Books that were recorded on the high seas but
presented to U.S. officials in port.66
62
MARPOL Reg. 20(6), 1340 U.N.T.S. at 212.
63
United States v. Moyer, 674 F.3d 192, 210 (3d Cir. 2012)
(alterations in original) (quoting United States v. Yielding, 657
F.3d 688, 714 (8th Cir. 2011)).
64
Id.
65Id.
66See, e.g., United States v. Oceanic Illsabe Ltd., 889 F.3d 178,
185–86 (4th Cir. 2018); Ionia, 555 F.3d at 310; see also United
States v. Taohim, 817 F.3d 1215, 1222 (11th Cir. 2013) (per
curiam) (affirming § 1519 conviction in a similar context,
rejecting the ship captain’s argument that “he could not have
intended to impede . . . the Coast Guard’s investigation when
he allegedly ordered the omission of [a] discharge from the
garbage record book because at that time, the vessel was
outside the territory of the United States,” since § 1519 “does
23
Viewing the record in the light most favorable to the
Government, the evidence was sufficient to prove that
Vastardis acted with the requisite intent to impede “any
matter”—namely, an eventual inspection of the Oil Record
Book. Vastardis was an experienced chief engineer
responsible for signing Oil Record Book entries; he entered
and signed the false Oil Record Book entries, he brought the
Oil Record Book to the master for his signature before the
ship’s arrival in the Delaware Bay port, and the ship itself
requested the Coast Guard inspection so that it could offload
its cargo. Based on this evidence, a reasonable jury could
conclude that Vastardis “knowingly falsified documents in
‘contemplation of’ an investigation of a ‘matter,’ which was
proven to be within the jurisdiction of the federal
government.”67 We therefore will affirm the conviction on
Count 2.
not require that an investigation be pending or that the
defendant be aware of one when he falsifies the record”).
67
Moyer, 674 F.3d at 211. Other courts of appeals have
affirmed § 1519 convictions on similar records. See, e.g.,
Taohim, 817 F.3d at 1222 (explaining that a reasonable jury
could credit testimony that the defendant was an experienced
“old sea dog” and was “aware that the garbage record book
would be reviewed during any Port State Control Inspection”
as evidence that the book was “falsified ‘in contemplation of’
a future Port State Control Inspection”); Oceanic Illsabe, 889
F.3d at 190 (citing evidence that the Oil Record Book
“contained a plethora of inaccurate and false information, and
. . . a vast amount of inculpatory information had not been
properly recorded therein”).
24
VII. COUNT 3 – IMPEDING A GOVERNMENT
PROCEEDING
Count 3 charges Vastardis with obstructing justice
under 18 U.S.C. § 1505. Section 1505 imposes criminal
liability upon anyone who:
corruptly . . . obstructs, or impedes or endeavors
to influence, obstruct, or impede the due and
proper administration of the law under which any
pending proceeding is being had before any
department or agency.
To convict under this section, the Government must
establish: “(1) that there was an agency proceeding; (2) that
the defendant was aware of that proceeding; and (3) that the
defendant intentionally endeavored corruptly to influence,
obstruct or impede the pending proceeding.”68 The term
“proceeding” in the context of § 1505 is construed broadly and
encompasses agency investigative activities—including an
agency’s “search for the true facts.”69
Count 3 charged that, during the Coast Guard’s
inspection of the ship’s oil filtration equipment, Vastardis “ran
the Oil Content Meter with the sample line closed in order to
trick the system into reporting an oil content of less than 15
68
United States v. Smukler, 991 F.3d 472, 483 n.7 (3d Cir.
2021) (quoting United States v. Warshak, 631 F.3d 266, 325
(6th Cir. 2010)).
69
See United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991)
(quoting United States v. Browning, Inc., 572 F.2d 720, 724
(10th Cir. 1978)).
25
ppm” and, “when asked by [Coast Guard] inspectors to
describe the position [of] the [Oil Content Meter] sample line
valve during at-sea operations,” he “falsely stated that the
valve was ‘open.’”70 The Act to Prevent Pollution regulations
authorize Coast Guard inspections not only “[t]o determine
that a valid [international oil pollution prevention] Certificate
is on board,” but also “[t]o determine whether a ship has been
operating in accordance with and has not discharged any oil or
oily mixtures in violation of the provisions of MARPOL.”71
These regulations put ships on notice that inspections “may
include an examination of the Oil Record Book, the oil content
meter continuous records, and a general examination of the
ship.”72 A Coast Guard inspection in a U.S. port is a
“proceeding in the manner and form prescribed for conducting
business before” that agency, and § 1505 reaches “all steps and
stages in such an action from its inception to its conclusion.”73
Thus, contrary to Vastardis’s argument, the Coast Guard’s
authorized investigation, even as an administrative inspection,
is a “proceeding” within the meaning of § 1505.74 We
therefore will affirm Vastardis’s conviction on Count 3.
70
App-I at 40–41 (under seal).
71
33 C.F.R. § 151.23(a)(1), (a)(3).
72
Id. § 151.23(c).
73
Leo, 941 F.2d at 199 (quoting Rice v. United States, 356 F.2d
709, 712 (8th Cir. 1966)).
74
See United States v. Technic Services, Inc., 314 F.3d 1031,
1044 (9th Cir. 2002) (“An administrative investigation is a
‘proceeding’ within the meaning of 18 U.S.C. § 1505.”
(citation and quotation marks omitted)), overruled on other
grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir.
2010) (en banc); see also Taohim, 817 F.3d at 1221 (affirming
Section 1505 conviction where “the jury reasonably could have
26
VIII. COUNT 4 – FALSIFYING A MATERIAL FACT
Count 4 charged Vastardis with making false statements
in violation of 18 U.S.C. § 1001. Section 1001 imposes
criminal liability upon anyone who:
knowingly and willfully--falsifies, conceals, or
covers up by any trick, scheme, or device a
material fact; makes any materially false,
fictitious, or fraudulent statement or
representation; or makes or uses any false
writing or document knowing the same to
contain any materially false, fictitious, or
fraudulent statement or entry.
Count 4 charged that, while at the Big Stone Anchorage in
Delaware, Vastardis stated that when the ship’s Oily Water
Separator was run at sea during normal operations, the valve
on the sample line to the Oil Content Meter was “open” when
in fact it was closed.75
inferred that [the ship’s captain] knew that the garbage record
book did not include the discharge of plastic into the sea and
that he made that fraudulent book available to the Coast Guard
with the intent to interfere with its investigation”); Oceanic
Illsabe, 889 F.3d at 189 & n.18, 190 & n.19 (citing evidence
that ship’s crew lied to Coast Guard inspectors about the
functioning of the ship’s equipment as supporting § 1505
convictions).
75
App-I at 41–42.
27
Here again, Vastardis argues that § 1001 does not apply
because the matter being investigated was not within the
jurisdiction of the Coast Guard, and that his conduct was only
governed by Liberian law.76 He is wrong. As the Government
correctly notes, the actions relied upon for Count 4 were made
during the inspection of the Evridiki while Vastardis was in the
Delaware Bay port and thus were subject to the Coast Guard’s
jurisdiction. Moreover, the crew of the Evridiki requested the
inspection in order to receive a certification necessary to
operate in the United States. Accordingly, the Coast Guard’s
inspection, including its inquiries about the accuracy of the Oil
Record Book entries and the related operability of the ship’s
equipment, fell well within the Coast Guard’s jurisdiction.77
Although Vastardis insists that the valve was open, the
Government introduced evidence that it was closed.78
Vastardis’s representation that the valve was open was clearly
material to the Coast Guard’s inquiry, and it was false. If the
sample line had been even partially open—as Vastardis had
told the inspectors—the Oil Content Meter would have
detected oily wastewater. Yet the reading on the Oil Content
Meter was instead 0–2 ppm. At trial, the Government proved
that the Oil Content Meter had in fact been sampling trapped
fresh water and that Vastardis had run the Oily Water Separator
with the sample line closed. Given this evidence, which we
view “in the light most favorable to the Government,” we find
76
See Vastardis Br. at 2.
77
See United States v. Rodgers, 466 U.S. 475, 481 (1984)
(explaining that § 1001 reflects Congress’s interest in
protecting the integrity of official inquiries, wherever there is
a statutory basis for the inquiry).
78
App-II at 251, 257–59.
28
that Vastardis did violate 18 U.S.C. § 1001.79 The District
Court therefore did not err in denying Vastardis’s motion for
judgment of acquittal on Count 4.80
IX. BANISHMENT
Although we find no error among Vastardis’s
convictions, the District Court clearly abused its discretion in
applying banishment as a condition of Vastardis’s probation,
when it stated that he may “not enter the United States, the
waters of the United States, or apply for any [v]isas to enter
the United States.”81 We have previously discussed the
historical roots of banishment, summarizing it as a condition
that “orders the probationer . . . to leave a broad geographic
area.” 82 We have also held that a “condition of probation may
not circumvent another statutory scheme.”83 Through the
Immigration and Nationality Act (“INA”), Congress outlined
the sole and exclusive procedure through which foreigners
may be deported from the United States.84
While district courts generally have broad discretion to
impose conditions of probation, such discretion must be
viewed against the backdrop of the INA, which provides the
Attorney General with exclusive authority to admit, exclude,
79
United States v. Riley, 621 F.3d 312, 329 (3d Cir. 2010)
(internal quotation marks omitted).
80
App-II at 182.
81
App-II at 370.
82
United States v. Abushaar, 761 F.2d 954, 960 (3d Cir. 1985).
83
Id.
84See id. at 959.
29
and remove non-citizens.85 A district court abuses its
discretion, circumvents the authority of the Attorney General,
and oversteps the bounds of the judiciary when it imposes
banishment as a condition of probation.
Furthermore, the condition that Vastardis serve his
probation outside the United States is unrelated to his
rehabilitation or the protection of the public. This is another
reason why a sentence that imposes banishment is an abuse of
discretion.86 Moreover, Vastardis is a seafarer whose career
depends on travel in international waters, including U.S.
waters. Because the condition of banishment impinges upon
freedom of movement and has the potential to drastically
interfere with the livelihood of a foreign national, it should
be avoided. We will therefore vacate that condition of
Vastardis’s probation.
X. CONCLUSION
The United States had the authority to prosecute
Vastardis. Vastardis aided the ship’s presentation of a falsified
Oil Record Book to U.S. officials and deceived them during an
authorized inspection in an attempt to conceal the improper
discharges. Such behavior forms the basis of federal
recordkeeping and obstruction offenses because it harms the
United States and goes to the heart of its ability to uncover
85
8 U.S.C. § 1229a(a)(3) (“Unless otherwise specified in this
chapter, a proceeding under this section shall be the sole and
exclusive procedure for determining whether an alien may be
admitted to the United States or, if the alien has been so
admitted, removed from the United States.”).
86
Abushaar, 761 F.2d at 961.
30
wrongdoing. Vastardis’s light sentence—a $7,500 fine and
three years’ probation—reflects that his conviction reaches
only his U.S.-based dishonesty and not his role in the ship’s
discharges of oily bilge water into the ocean while on the high
seas.
With the exception of the condition of probation
prohibiting Vastardis from entering the United States, we will
affirm his conviction and sentence.
31