United States v. Abrogar: did the Third Circuit miss the boat?

• Author: Kehoe, David P.

1. INTRODUCTION II. VESSEL PROSECUTIONS PURSUANT TO APPS A. The Generation and Disposal of Oily Wastes on Board Oceangoing Vessels B. Overview of MARPOL and APPS C. The Elements of a Vessel Prosecution Under MARPOL and APPS III. THE SENTENCING GUIDELINES AND THEIR APPLICATION TO VIOLATIONS OF APPS A. Overview of the Sentencing Guideline System B. Offense Conduct and Adjustment Guidelines Applicable to Violations of APPS C. Why the Environmental Discharge Enhancement is Necessary to Authorize Jail Time for an APPS Violation IV. UNITED STATES V. ABROGAR, EXTRATERRITORIAL DISCHARGES, AND RELEVANT CONDUCT A. The United States v. Abrogar Decision B. What the Third Circuit Got Right C. How the Third Circuit Missed the Boat D. Can the Boat Be Fixed? V. OTHER STATUTORY CHARGING AND SENTENCING OPTIONS A. The False Statements Act B. Obstruction of Justice 1. Obstruction of Agency Proceedings, 18 U.S.C. [section] 1505 2. Falsification of Agency Records in Federal Investigations, 18 U.S.C. [section] 1519 VI. CONCLUSION I. INTRODUCTION

   Arguably the worst ecological disaster in U.S. history, the grounding of the Exxon Valdez oil tanker spilled approximately 37,000 tons of crude oil into Prince William Sound, Alaska on March 24, 1989. (1) This amount is dwarfed by estimates of up to 810,000 tons of fuel oil sludge and oily bilge waste that is illegally dumped to the oceans worldwide every year from the operations of large tanker and nontanker container vessels. (2) The lethal, cumulative impacts of these illegal discharges on marine life cannot be ignored and should not be tolerated. (3) The overwhelming majority of large oceangoing vessels are registered in countries other than the United States. To date, many of these countries, which are often derogatorily called the "flags of convenience," have failed to take appropriate enforcement action against the operators of vessels that dump oily wastes in violation of MARPOL, (4) an international treaty designed to protect the world's oceans from intentional oil pollution from vessels. (5)

   The United States Justice Department has responded by prosecuting the corporations that own or operate these vessels and the chief engineers and other supervisory engine room crew members in charge of them. Since the oil discharges are to ocean waters beyond the legal jurisdiction of the United States, prosecutions of these cases are based upon the illegal methods that crew members use to conceal these oily discharges from the United States Coast Guard (Coast Guard) when the vessels arrive into U.S. port. One of the concealment methods used by crew members is to falsify and then use or maintain a document known as an Oil Record Book (ORB) while in U.S. port in violation of the Act to Prevent Pollution from Ships (APPS) (6) and other applicable federal laws. The U.S. Sentencing Guidelines (Guidelines) contain a provision applicable to APPS violations that can enhance a defendant's base offense level by six" levels, if the sentencing court finds that the offense "resulted in" an "ongoing, continuous or repetitive" discharge of a pollutant to the environment. (7) Another provision can increase a defendant's base offense by four levels if the offense "otherwise involved" a discharge of a pollutant. (8) The application of these provisions can make the difference between jail time and probation for crew members who are convicted of violating APPS. (9) Since the term "environment" is not defined in the Guidelines, a contested issue at sentencing can be whether the Guidelines apply to extraterritorial discharges.

   In 2006, the Third Circuit had the opportunity to interpret this Guideline term in United States v. Abrogar. (10) In Abrogar, the defendant was the chief engineer of the Motor Vessel Magellan Phoenix, a Panamanian-flagged cargo vessel that came into port in the District of New Jersey and was inspected by the Coast Guard. (11) During the course of the inspection, the Coast Guard learned that Noel Abrogar had repeatedly discharged oily sludge and bilge wastes into the ocean prior to arriving into port in New Jersey and had falsified the vessel's ORB to conceal these discharges. (12) Mr. Abrogar later pied guilty to a violation of APPS for maintaining a false ORB. At sentencing, the district court applied the six-level enhancement for repetitive discharges into the environment and sentenced Mr. Abrogar to a prison term of one year and a day. (13) The defendant appealed, and the Third Circuit Court of Appeals, finding that the six-level enhancement did not apply, vacated the sentence and remanded to the district court for resentencing. By reaching that conclusion, the Third Circuit virtually guaranteed that the defendant would not serve out his original prison sentence. (14) In its holding, the Third Circuit did not address the issue of whether the term "environment" under the Guidelines applied to discharges of pollutants to waters outside the jurisdiction of the United States. Instead, the Third Circuit found that the defendant's offense of maintaining a false ORB in the United States did not "result in" the repetitive discharges of oil to the environment and that the act of discharging oily wastes to international waters was not offense conduct under the Guidelines. (15)

   This Article examines the legal and sentencing issues that arise in the prosecution of chief engineers and other supervisory crew members on board foreign-flagged vessels who discharge oily wastes to international waters and then arrive into U.S. ports with false ORBs in violation of APPS and other applicable federal laws. (16) Part II of this Article describes the generation and disposal of oily wastes on board large oceangoing vessels, provides an overview of APPS, and sets out the basic elements of a vessel prosecution. Part III summarizes the Guidelines and details the sections pertinent to a vessel prosecution. Part IV analyzes the Abrogar decision and argues that the discharges were offense conduct under the Guidelines, because they were an element of the offense under APPS. Therefore, the offense "otherwise involved" a discharge of a pollutant and merits a four-level enhancement under the Guidelines. Finally, Part V explores additional charging mechanisms and Guideline options available to authorize prison time in these types of cases.

2. VESSEL PROSECUTIONS PURSUANT TO APPS

   A. The Generation and Disposal of Oily Wastes on Board Oceangoing Vessels

   The world's economy depends on the use of large, oceangoing vessels that vary in size and type depending on what they carry. These ships include cruise ships essential for the world's tourist industry, tanker vessels that carry fuel and chemicals, vehicle carrier ships that transport cars and other machines, and container and general dry cargo vessels that carry every type of material and good imaginable. (17) Regardless of what they carry, all of these vessels generate large quantities of oily wastes. The oily wastes fall into two general categories, oily sludge wastes and oily bilge wastes.

   There are two general types of oily sludge: fuel oil sludge and lube oil sludge. (18) Fuel oil sludge is generated during the process of purifying heavy fuel oil so that it can be used to power vessel engines. Typically, 1.5%-2.0% of heavy fuel oil contains sludge that cannot be used in the engines. (19) The second type is lube oil sludge which must also be purified so that it can be used in the various engines and machinery on board the vessel. The oily sludge generated as a result of these processes is stored on board the vessel in sludge tanks. Consistent with the law, the sludge can be burned on board the vessel through the use of an incinerator or auxiliary boiler or offloaded onto barges or shore side facilities for disposal. (20)

   Engine department operations also generate large quantities of waste oil due to leaks and drips from the engine's lubrication and fuel systems. This waste oil combines with seawater, detergents, solvents, and other wastes that accumulate in the bottom or the "bilges" of the vessel to form an oily wastewater. (21) The equipment used to process this bilge waste is called an oil water separator (OWS). (22) If proper procedures are followed, the bilge waste is pumped to the OWS from a bilge tank where it is processed to remove the oil from the water. (23) The "clean" water with less than fifteen parts per million (ppm) of oil is then pumped overboard out of the ship through an overboard discharge valve. (24) If the bilge waste has oil with a concentration greater than fifteen ppm, a device called an oil content monitor (OCM) attached to the OWS detects the excess and diverts the waste back to a waste storage tank. (25)

   The defendants in these cases, who are typically chief engineers or other supervisory engineers, pollute the oceans with oily bilge and sludge wastes using a number of methods. These methods include, most commonly, attaching one end of a flexible hose to the outlet of a bilge pump that bypasses the vessel's OWS. Engineering crew then attach the other end of the bypass hose to one of several overboard discharge valves on board the vessel and pump the untreated oily bilge waste overboard. (26) Defendants also utilize methods designed to trick the OCM on the OWS, thereby allowing bilge waste with more than fifteen ppm of oil to pass through the OWS and be discharged overboard. (27) Crew members dump fuel and lube oil sludge in a similar manner. Instead of incinerating fuel and lube sludge or offloading the sludge at port, crew members attach hoses to the sludge pumps and pump the sludge tanks directly overboard. (28)

   The reasons why defendants choose to illegally dispose of the oily bilge and sludge wastes varies, but usually there are two common factors: money and time. (29) It costs money to upgrade, repair, and maintain the OWS, incinerators, waste tanks, and other pieces of onboard equipment used to store, treat, and dispose of...