he was convicted on three separate counts question and his only appeal and one of the convictions that's correct there is a i mean is there some reason that the entire conviction i mean the single as a matter of fact and black letter law and regulation in this case mr phallus you know as a matter of process well it's more than at odds it has this is an appeal by mr for failures on the basis that judge duval didn't properly grant his judgment motion for judgment of acquittal both at the end of the government's  evidentiary presentation and at the close of trial in this case i wouldn't spend too much time on the lack of evidence is lack of evidence but well it's a great in this case the government agrees they did not offer any evidence that mr fellowes was either the master or person in charge of the vessel why is that important because she here the regulations found at thirty three six c f r one to the one twenty five are the basis of the record keeping requirements that bring us to this courtroom now the law and the regulations say that the person whose opa locka just to maintain an ac record book while in us waters is the master or other person in charge of the ship now once or other person in charge of the ship what if the master consol has a heart attack while he's underway so he wouldn't be the captain necessarily he might be the chief he might be somebody else who takes over that role but here the legal obligation to maintain his record book while in us waters falls on the master or in his absence someone who takes his place was the chief engineer now this is a question of first impression for this court that's what i was going to it not covered by the case well it is your honor if you look to the footnote in footnote one of the fifth circuit opinion it recognizes judge hart fields commentary that she feigned jamir is not even the right person is not the right class of people to to be task under eighteen u s c two so when the government brought their indictment they knew about judge heart feel its decision they knew but the fifth circuits decision they knew about footnote number one and in the fifth circuit decision where they said that even though the decision in the district court in boma found that the chief engineer doesn't meet the regulation doesn't meet the requirement of regulation the fifth circuit didn't need to address it at asus and it only goes on to say that even though he might be right no need to address it at this point in time as the specific language now even though this is a question of first impression the court doesn't need to reinvent the wheel because again although a thin body of case law on on the apps and you're implementing regulations it's pretty clear i'll cite to the court three decisions and i'll walk through it very briefly to show why they're the third circuit in two thousand and six looked at the issue in u s v ab regard and the third circuit told us that there's substantive regulation requiring the proper maintenance of an oil record book is found in thirty three  f r one fifty one twenty five it talks about this section of the regulation generically doesn't go to the specific sections we say here one fifty one j is that is the section that requires the master or other person in charge of the ship to maintain the record book but it's important because the third circuit lays out the framework that says that not every more pole international treaty violation is a u s crime and it says that even say is that the crime of conviction the offense the conviction is the failure to maintain an accurate on record book while in u s waters and that's consistent with the statute in the regs because what they say is that the the government put on was that he knew about it or directed it you know we don't challenge that he discharged the water discharge the wreckage an international waters no he accepted the jury's ver here what we're challenging is very narrow he did not record it and he was obligated to record it not and the question is well that's a violation of united states law and well the government says that he made notations in the book in the government contends others may notations in the book and what we argue is well we agree that there was one entry made by mr  fatality but that wasn't made in u s waters and it wasn't his obligation to maintain the oil record book in u s waters and while there may be many other ways that the government could have charged them including but certainly not limited to eating and abetting they that was brought should have been dismissed by the district court because the government found to use any evidence and they can see it on appeal that they didn't even try to offer any evidence that mr fallows was the master or other person in charge of the ship so really you're saying there are two bases on which there's insufficient evidence one is his status not being master and the other is no obligation to significance of the implementing regulations thirty three c f r one fifty one point twenty five and they say that the app's provisions and regulations do not merely implicate jurisdiction they are worded in such a way as to define for purposes of u s law the scope within which marple violations constitute crimes at off so it's impossible for the court to overlook one fifty one j where it makes it clear that the master or other person having charge of the ship is the person required to keep an oil record book the actual languages the master other person have in charge of a ship required to keep it all record book shall be responsible for the maintenance of suc now as i started before this court doesn't need to reinvent the wheel the question here is maintain and maintenance aberg are looked at it judges are going up in the district court of connecticut looked at it and the second  court of appeals looked at it in the and in opinion they issued in in two thousand and nine u s v ionia and there it's been set out very clearly that the crime of conviction is the failure to maintain maintenance of course is the present perfect tense of maintaining maintain maintenance so you have to look to the regulations which i know it equally significant regulations only regulations that dictate who must prepare the oil record book when it must be maintained and who must maintain it and that's the master or other person in charge of the ship you were to look a little deeper and that same section one thousand zero eight we point out sections d n e starting with easy this is a very important section for the coast guard because the way they prosecute these cases they revoke the a ship in ram its owner operator or person in charge is liable for a fine a penalty it's a fate complete already been decided or if reasonable cause exists to believe that the ship its owner operator or person in charge may be subject to a fine or civil penalty doesn't go beyond the organizations that own and operate the ship or the person in charge turning back to section d that's the liability in ram that's the ship itself so if the companies go bust there's still the right to enforce the penalty or fine that may be imposed just arrest ship we take a judgment from this court need to go have it recognized somewhere else abroad now just a final point if i may the government says well but we really mean to honor our treaty obligations to our partners it's a policy argument but it's policy argument based on weakness of their argument under the law because in the royal caribbean case from the southern district of florida back in one nine hundred ninety eight the royal caribbean are us penalties that we could be subject to and that's just fine just as money nothing beyond that and the government stood up in art here you know mark pole treaty is not self executing and the defendant has no standing to rely on an international treaty instead you have to look to the implementing regulations of the act to prevent pollution from ships the act to prevent pollution from ships is the u of our version of the treaty and you have to look that's the skeleton but the meat and the flesh is found in the regs and if you were to look at the regs and give a plain meaning to one fifty one point twenty case in fact knew that is how the coast guard applies its relations and he went to great lengths to try to cover up his actions how often do they prosecute for falsifying records in a in for you know international waters well your honor that that is not the theory on which we proceed in this case well i excuse me sir but what the theory was that he failed to maintain  twenty five but you but that's what you alleged in the indictment but then you cited one twenty five age which is failing to sign the record of a completed operation discharge ok so it's the regulation requires be done contemporaneously with the discharge so thank you for clarifying that your honor let me clarify how the government  use the indictment to work in this case and that is what the government charged was a violation of subsections a d and age and so our position as we've laid out in our brief is that subsection a of the regulation has affirmed in joe that that mean in studio is not going obligation it doesn't and when when the ship comes into the united states these obligations to fully and accurately record each entry in the book follows  t the defendant into united states territory and so if the defendant likes not necessarily so i mean in other words it does the failure in the failure to maintain was correct but i mean  what we're saying is that when the defendant entered into united states waters with the book he's continued to have an obligation to completely and accurately record the discharges where you sit where you get that we get that from subsection eight of the other regulation which places the ongoing maintenance duty on the ship as a whole as joe and sam individually in some sex in subsection h then flushes out that duty by saying the person in charge of the operations concerned has a duty to sign each and every entry that's in that book and the reason for the signature when it occurs but the reason for the signature is that so that later when the coast guard actually inspects the book they know who is responsible for each entry so that obligation to sign an accurate entry can continue and so the question before us is ah see that's where the hate crime has been committed by this particular violation that he did have an obligation yet so if the ship had an obligation if the ship wasn't indicted he was indicted where is his responsibility in because he is the person who is on the ship no because he is the person who is required to sign each entry to certify its accuracy well that's not what joe's says why would you have had even a footnote in there about aiding and abetting but what joe said was that it didn't need to reach that question no it said we don't need to reach it because he was charged under eighteen us c section two for aiding and abetting and so the issue was subsumed by the words of the indictment whereas here you don't have as eight hundred section two it's right and so this court didn't reach the the question that's presented to this well maybe we'll answer it here i mean had you charged eighteen us c section two i would agree we would be controlled by joe so then but the language of the reg says the master of the vessel has to maintain it well and and joe is solely based on failure to maintain it is not based on failure to record as we as we there's a couple of points here one has to do with aiding and abetting that issue that you've raised and the other has to do with exactly what does the term maintenance mean and some kind separate those out for one second that if i made the government does not usually charge in aiding and abetting on the face of the of the indictment that that's not the way the government usually brings these cases this indictment is representative of the way the government has been bringing these cases for decades and the fact is that when we charged this this indictment the defendant's attorneys and the defendant knew that we were charging him as the person in charge of the operations that he had a duty to maintain the book in that circumstance and yet for some reason waited until after jeopardy had defendant at the outset of the case said wait a minute we don't think you've charged this correctly because i'm not the person with the legal duty to maintain this offense now a prosecutor might have at that point amended the indictment  in the bed and is there other people that are involved in the it's so so if the if if the legal theory that we were supposed to present here was that we disagree with this interpretation of our regulations but let me just say that if the legal theory is that he's that the master is the only person who has the duty to maintain accurately those entries once the book is brought into the united states our prosecutor could have amended the indictment to include that theory expressly on its face oh it was deprived that's really too bad because you know in criminal law always sort of reverse the presumption about these things and you're not guilty of something that you were an indicted for we do not think that there was a mistake made but there's usually an opportunity if there's a technical deficiency with the indictment of the of some sort there's an opportunity for that for the prosecutor to amend the indictment to to do that but national bank and then you know they've screwed up the conviction fails but just wait a second here rather than repeat yourself again i was party to a decision within the last year where we held that certain the language of the old ship negligence ship manslaughter act did not cover these people in this capacity because it only referred to the master the engineer and specific vessel related people so why shouldn't we apply the same approach here the master means master or person thank you thank you your honor because that's the next point i'd like to times i think that there's a misimpression that subsection j is a signing this exclusive maintenance duty to the master or other person in charge of the ship and that somehow that that the term maintenance in subsection j is suppose the inference that  the defendant is trying to create is that that exclusively assigns the accuracy of the entries to the to the master but we've pointed to multiple textual signals showing why that is not the case ok first the signatures required by subsection h ok the fact that the coast guard requires the person in charge of the operations to sign each and every entry signals that person's responsibility for the accuracy of those injuries and as we've pointed out subsection h is really punch the court can only guess what the meaning of of the regulation or statute means that's all the more true right out of the regulation is exactly clear and you're trying to give a distorted meaning  least that's my view of it here the master all of the person they have in charge of the ship required to keep an oil record shall be responsible for the mines of such records and it does not he's not the master and he's not the other person and you're charging him with that particular out one of the central reasons for the rule of lenity is notice and as we've we've made absolutely clear here the defendant knew that this is how the coast guard interprets in applies its regulations if if i may read from from the record the testimony that you i tried it we couldn't articulate what we nap but he knew what we meant if if i may read this is that record on appeal twenty three fifty three with your indulgence r r prosecutor asked the defendant so you know it's very very important for that book to be accurate and his answer was yes and we all know about that and make a special note about it and then the next question is you are also aware that chief engineers have been prosecuted for knowingly falsifying this book and his answer oil record book because they have a continuing obligation to ensure the accuracy of those act entries in united states waters through regulations he may have been one of you may have misunderstood his obligations i don't know  fan or vice versa h is failure to record and and j is mean whatever it is one is they are different terms and they signify different actions and the failure to record is clearly connected with the officer in charge of that operation which is this the pendant the failure to maintain is that of the master or person in charge of the vessel so that a pretty strong from textual signal from a criminal standpoint that the two are dead the term maintain on its face can have different meanings by the term maintain can mean to keep something in good repair and k and read those subsections as a whole it's clear that what the coast guard is doing it and i'm trying to state this in the plainest terms i can in order to try to make them the commonsense basis of subsection j apparently it what it's doing is it's saying the buck stops with the master right it's placing a response of the ultimate responsibility for keeping this book and ensuring its accuracy as well as keeping it physically safe it's in it's in it's making sure that the master is responsible but that doesn't exclude the person in charge of the operations continuing duty to ensure the ac you know that because the the person in charge of the operations the chief engineer is really the person who knows what's going on in the engine room this is the person who is usually to say i won his we giving the orders to discharge to bypass the oil because the evidence here showed that it was the chief engineer who took extensive actions to try to deal with the day if the discharge who ordered the discharge and took extensive telling me the master doesn't know about that i mean these giant cargo ships were well just i may be wrong but these giant cargo ships only have about thirty crew members nowadays the the master in fact did not know about it because of the extensive efforts for of this chief engineer a cover up his actions he lied to everybody up on deck or to the cockpit or whatever you call it before they enter us waters and say you know you're going to be dumped overboard unless you tell me right now that this threat than it's logs in  order you know your honors i could see you know i may not be able to convince you here this morning of the correctness of the government's position in this case we stand by the regulation and feel strongly that under the circumstances of correct in any case in many many cases where you say that they the engineer violated this provision the engineer would have also violated the obstruction of justice and you know the other to charge them with here you know it's it's possible i think that these charges do tippett i think it is correct to say that in many cases where we charge well record book violations there may also be obstruction of justice or witness tampering type charges like those that were upheld here and that is true but what is also true is that this is the consistent way that the coast guard has been prosecuting these offenses again for t i'm not sure exactly how long it would take but it certainly is correct that the coast guard could amend the regulations to state what your honour's if if your owners conclude that the regulation is not clear enough in order to uphold this conviction then it is possible for the coast guard to end it well the only thing here is that you you know you're you're costing the man is livelihood and i'm not saying that he didn't do what he was charged with doing but that's regulations require him to do this and that ship should have been indicted to you and you take him off the high seas altogether it's simply a fiction that was created by this defense lawyer after the fact that to say first attempt of persuading the panel that this is the way the coast guard does business and we should somehow sprinkle holy water on it because it's never been challenged before doesn't pass the red face test this issue has come up in one other case u s b millinocket from april two thousand and ten in the southern district of texas the case proceeded to trial before judge can hold and after about two weeks of jury presentation the jury deliberated for a day or so and acquitted the chief engineer of all five thousand the counts against him so this does this precise issue has never come up in a other cases and the government comes here and says well other chief engineers have put guilty really we're talking about foreign individuals that have been detained for twelve fifteen eighteen months with limited means and been away from their families not just for that pay but how many months before that there's serving on the high seas and the government offers them a slap on the wrist probationary sentences if you say i'm guilty you can go home that's not justice that's not what this court is here for we're here to look at what the law requires and hold the government to properly charge crimes and properly do their job not just say well it was good enough this is a bad man so let's convict him that's just not right you're honest this man is a