United States of America v. Nikolaos Vastardis

Philadelphia, PA - International Convention for the Prevention of Pollution lawyer represented defendant with appealing his conviction and sentence for crimes that allegedly took place while he was Chief Engineer onboard a Liberian-registered petroleum tanker charge.

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.

6

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).

7

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.

8

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

9

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.

10

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.

11

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).

12

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)).

13

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.

14

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

15

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

16

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.

17

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.merriamwebster.com/dictionary/maintain#:~:text=English%20Langua

ge%20Learners%20Definition%20of%20maintain%20%3A

18

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.

19

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.

20

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 sixlevel 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.

21

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 foreignflagged 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.

22

VI. COUNT 2 – FALSIFYING RECORDS, SARBANESOXLEY

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.

23

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.

65 Id.

66 See, 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

24

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”).

25

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)).

26

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

27

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.

28

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.

29

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.

84 See id. at 959.

30

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

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

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