United States v. Vastardis

19 F.4th 573

UNITED STATES of America

v.Nikolaos VASTARDIS, Appellant

No. 20-2040

United States Court of Appeals, Third Circuit.

Argued on May 27, 2021

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

Before: McKEE, RESTREPO, FUENTES, Circuit Judges.

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 $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 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 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 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 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 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...