good morning the judges of the seventh circuit council my name is rex andrei and i represent the defendant appellant you can marine corp in this case and i'm be happy that corporation i'd like to thank you for the opportunity  us this morning probably come as no surprise to anyone that i wish to take advantage of this opportunity to further address the issue of collateral estoppel because i believe it effectively move all of the other issues in this case and i'd like to focus on a few things that trouble me about how this doctrine was applied in this case first off the issue of the issue preclusion at least as it sets up in this case it's a doctrine that has deep common law roots and is also in bed in the constitution which is what our position is grounded on and against the rather general and open ended public policy argument which is what the does that weaken your arguments about the fairness of being subjected to two trials do you think i don't think so judge because it's true that they  the civil case was brought first the government had the opportunity to decide what case they wanted to bring and what case they wanted to bring first and they brought the civil case first and they were litigating heavily against egan marine and i think and of course i wasn't involved in that case but i think they were already deep in the thick of that case at the time that the government brought that motion and to getting back to what i was conceding here i am eldar i'm i'm interested in how this has been understood in other circuits you have a a full account of where the circuits stand on this and there's not many cases in this particular area where you're trying to would you've got the application of collateral estoppel in a criminal case based on a prior civil case there very very few cases in fact we've got the united states stream for decision and yates we've got the application in stand half for all that really what that was a criminal criminal case and we've got whether it's discretionary and in the circumstances judges say consent he would not apply it even even if it was discretionary but he really gave no good reason for that that i could find can you help with that at all in terms of what judge say goes reason was for not applying it yes i think he think he found that he would extend this court's decision in the alexander case so that case and maybe read this court's decision in that case more broadly than it should have  because i mean that case was a different case and kind it was very it was an administrative proceeding and it was only a hearing it wasn't a fellow district court judge who had made the determination it wasn't a decision  spend too much time on alexander this short its rules require a panel to circulate any opinion creating a conflict and the nights in tents circuit cases long preceded alexander which therefore did not think it was how i think in this case the financial impact on the government the application of the of this doctrine seems to have been elevated above the financial impact on the defendant s reference how the government is able to wear defendants down it's kind of a core principle but in this case it seems as if judge zagel came up with were at least the government is advancing sort of the new paradigm where the primary concern is the government's resources and how they allocate it with a new primary objective which is no longer protecting defendants from civil syria litigation primary objective seems to be to remove any restraint on how the government chooses to spend its resources in prosecuting defendants and i'm concerned about how that is sort of a notion that's a bit violent to the foundational principles  constitution and it's closely related to double jeopardy you should any part of your arguments that if congress by statute modified the rules of issue preclusion that would be unconstitutional  well i find that inconceivable well i don't have that argument in front of me and it's a good question your honor and i confess i didn't prepare to answer that question but i know you don't want to rely on the constitution good tour sleeper you get questions like mine because if you think your client success in this case depends on the answer to that question you have lost ok your honor the final thing that bothers me i guess here about the application of the how the concept of how the criminal court sort of turned the doctor not its head when it's one of the things when explained why it hadn't applied the doctrine in this case it said that the government had done a better job the sharper their answers will be more polished on cross examination the presentation will be more refined and successful theories that were advanced will be dropped in this case we had in the first trial that maybe  they had lit a cigarette that was dropped for the second criminal case and in other words the united states supreme court in ash has recognized the impropriety of allowing the government a dry run chance to plug holes in its case and legal scholars have warned that the availability of a second chance could encourage slipshod performance the first time or use of the first proceeding as a discovery tool and i think we see embodied in this case i mean not true what's wrong with it since discovery is entirely permissible why is using something else of discovery to old problematic well that's problematic in a criminal case if you if the end objective is a criminal case the prosecutor defendant where you used the first case sort of flush out all of the defense side and i just don't see why that problematic i think in the criminal in the criminal context to give the government that chance to sort of dig in and make a defendant expose everything that he or she would present in a criminal defense and then be able to serve retool their case for that purpose i find to be sort of contrary to the principles of our of our system the i could i take you somewhere else sure because i officers or employees well i guess if you're talking about this that the issue about the manslaughter seaman's manslaughter statute and the question of whether a corporation would be properly held liable under that statute and i understand what you're saying in terms of the imputation of a employee's act or perhaps state of mind to a corporation i guess what troubles me about that particular statute in this particular context is that the the statute itself doesn't seem  but we've got a statute that basically said owner right from the beginning back in the well actually back in eight hundred sixty four i think is when the word owner first appeared in that statute in the ideas that a corporation can be an owner at least that's what the government's position has been and it's true that that statute at that time only provided as punishment for in imprisonment and so if to the extent that a corporation was contemplated to be an owner it doesn't seem to make a lot of sense because you can't put a corporation into prison in terms of the mens rea article or issue i guess one of one of the things that concerned me in this particular case is that the judge in the civil court in the criminal case used the ordinary standard of care and use ordinary negligence and in this particular context with the manslaughter statute which you tend to see in manslaughter cases is something more than that a sort of a gross negligence standard and the other thing that happened in this particular case is when the sentencing hearing began and the criminal court judge to took a look at the sentencing guidelines and wanted to apply them in this case it ran into a problem because in that cont the sentencing guidelines discussed gross negligence and it seemed to me that the sentencing judge such sakal was running into some second thoughts about this case he was troubled by the fact that the sentencing guidelines referenced criminal recklessness as a gross deviation from the ordinary standard of care and there were no cases that defined ordinary standard of  care which i think in his mind was in my mind to reveal that a criminal prosecution under the facts of this case is pretty unprecedented and the second thing i think sat right in only one out there psyche yeah one e one prior case in one thousand nine hundred four and then the second thing that bothered the judge was that he was looking at the government's restitution arguments and they seemed to him to be arguments for civil damages in a civil case and then in the next hearing he begins talking about this case as a black swan which is a reference to the sheer improbability and on proceed ability of this explosion followed by sort of the after the fact rationalization where the benefit of hindsight that well the event was somehow predictable or foreseeable judge sakal then talked about how scientific lines had been crossed in this case and given that the due process clause of the constitution requires proof beyond a reasonable doubt of every element necessary to constitute a crime it i think raise the specter of a hole in the criminal negligence case as to the element of reasonable for see ability and then you see these kinds of things being played out during the sentencing hearing but never really resolved seems to me that judge siegel sort of decided that he would let th on good morning my name is julia christiansen and i represent dennis michael you can be appellant in this case i'll be talking about two of the issues that we raised primarily the miranda issue and the da better issue both of these issues suffer from clearly and hearing have resolved for the moran to claim he did not write an affidavit but they did allege facts that would have shown that he was in custody and interrogators that point i think that a hearing definitely would have brought out what exactly the circumstances were from both parties point of view we have police reports and and coast guard her forth but there are some a conflicting about who interviewed who when where what questions were asked what the answers were or the order of the interviews i think that there are several factual questions that remained and regarding the miranda argument that were brought before the district court several times and the court just flat out failed to rule on them and then relied on those statements in his ruling and got a lot of different agencies arrived shortly after his call for almost every agency and is this the interview process or the time of the interview that your disk you're talking about yes he was essentially pulled over in his tug as the captain of the tug by i chicago p d police boat so there was and the government likens that to a traffic stop well perhaps at the initiation it was a traffic stop of boats instead but it quickly turned into he was taken off the bar he was asked to get off of his tug they were going to tell him and at some point not just pull him over they were going to tow he him in and then when they do get on shore one of the fire investigator the fire supervisor a fire marshal starts asking them questions about their the cause of the explosion  a small shack yeah it's a little unclear when that happened in the process if it was very cold it was january of course and i believe there was some precipitation so they did at some point move into a shack at the and then asked multiple questions with the twelve people press and the army from different agencies from different agencies the people who were the main interviewers were someone from the chicago fire department the fire marshal although he soon gave over jurisdiction to the coast guard the a t f was there and then the coast guard and how long a period of time do you allege that this interview was occurring it varies in the record around half an hour forty five minutes i think the time period is about when you know everybody converges on the scene they're trying to figure out personally how to fight the fire because they need to know what was on the boat or on the barge that but the what's in the record that we know is about half an hour forty five minutes that he was  questioned he was questioned at least twice once just by the fire marshal the very initial and then there were more questions later on by this group of people and when you're looking at a reasonable person what would have made reasonable man think in this situation you know i don't think there's any man this room that would say that he didn't think that he was in custody not under arrest i don't think he thought that but that he was in custody and that he could not simply walk away the nature of the situation was that he was looking for his crewmates and he could not simply just leave the scene because they were investigating him it's also clear that they were investigating either terrorism or they had drug sniffing dogs some sort of act of obvious criminality in that case we have to remember when it was it was two thousand and five january we all were under higher alert because of september eleventh and certainly we are now although i think we see that these kind of incidents bring every law enforcement agency possible and the people who are involved do not feel free to leave and he certainly was when i was going to refuse to answer the questions i think that it's possible you could have refused but only in the most basic sense that we all can refuse to answer questions of law enforcement officers i don't think reasonably in this situation he could have refused without destruction of property and it's not a provision that is used very often it's very similar to the seaman's manslaughter you don't see this provision used very often there are only two cases that either party really cited there and there opposite of each other the most just are court cases but in this case when he immediately calls to say this happened and then immediately is talking to investigators about what could have happened possible ignition sources preparation could be needed can you help me with that i can try this gets into a little bit more of a scientific background than i have but what i understand there is is that that occasionally the clutch on the pump froze up not necessarily to bump the pump or bump the clutch on the pump so there was a series that they had to prepare to offload and even if everything was hooked up appropriately because of the cold temperatures they would have to make sure that it was all going to work when they got there so that's the explanation from the record but there was testimony that mr egan told authorities that olivia was on the barge in order to warm up and start the pump why did the pump need to be warmed up if the thermo trace line was attached and what means other than a tour could have been used to warm up and start the pump just the record answer these questions really are as far as we get in the record about those questions is that steam would have been used more likely then a blowtorch  there would have been scar marks burnt torch marks on the pump and there were not the other thing i would add about that is that this process they had done to other runs of c s o immediately before this third line and they all went smoothly so  standard process and they were using to start the time it would have gone wrong much sooner than this if it was a standard practice and it wasn't a standard practice i think that part of this goes back to the miranda issue because when dennis michael said you know it's possible there's a torch and propane tank on board people don't understand and i certainly don't understand before i took this case that there are two different vessels the barge is a possible that it was on board it becomes he and then he also says that believe it went out to bump the pump to get the pump started those two were converged by people who perhaps didn't understand the way these things work that proof is based on the testimony of top cow ski and his testing frankly was very is very difficult to agree with for me how on earth you simulink the forces of an explosion of that magnitude with a man wielding a three pound ammar other than speculation how do that was opened your honor several things first of all the pipe was the steam pipe was recovered from the canal in the open position there was no handle on it nor was there a cover on the clear the goal of that testing was not to simulate the explosion it was to address a specific assertion that the owner of a good reincorporation had made namely whether if there had been a handle attached to it or if there had been a cap on the end the ball failed whether the explosive forces could have removed those items during the explosion and with the resulting lack of damage that was on the ball valve handle and on the threads hoskins an important point was not attempting to recreate the explosion he was simply trying to do with the a t f player research laboratory always does which is do scenario based testing and then i waiting afterwards to see if what's found matches the damage that arises from the testing itself well you know what in the briefs you he can rein asserts that the government's trace line hitting from the carcano home occurred before the explosion i mean what should we make of that is there any reason that a crew member went disconnect a working thermal system system you're out of there were several pieces of evidence which all are very powerful the first and most powerful piece of evidence for the admissions of dennis michael egan on the evening of the explosion that his crew utilized a propane torch to heat the cargo pump under cold weather conditions if the thermal fluid line had been attached to the cargo there would be absolutely no need to use a propane tank second if you had the testimony of mr cozy and respectfully we believe that e m c grossly mischaracterizes the import of mr kirk o z s testimony when the cargo part was pulled out of the canal and there are photos of it being pulled out of the canal at the time it was taken out of the can there was a piece of metal attached fitting directly onto it so a perfect half of a switch like fitting came out of the canal attached at the pump that would suggest that the thing was not attached at the time of the explosion did he can actually said that they had a propane torch that they use for the purpose of heating the cargo problem under cold weather but they did saying he didn't say he did it to they tell me he did not s hearings it was clean with cancer lean and all turned up and there is not even much certainty with how it was collected from the water and how it was manipulated during collection i mean if you look at photos which i have of the pieces of the barge being lifted from the water it's attached to chains it's being pulled up through the water and through debris i write it i'm not suggesting book please i'm not suggesting deliberate interference with the condition of the evidence but i am suggesting that it was handled in a matter that does not possibly talked about how how carefully they move through the water how they chain the pieces to prevent injury to themselves and to prevent damage how they're carefully lifted out and then placed with the crane because they're so heavy and in place on the citgo property once they're placed on the sick o property they are under coast guard control throughout the entire time the commander hamilton testified to the fact of how he came across the stand he first observed the standpipe still attached the cargo pump and how as he attempted to position it it broke free after betty took possession of it and maintained it at trial he testified that the standpipe as presented to him was in substantially the same photographed it before and after and at the trial we presented photographs of how the ball valve appeared at when it was recovered and located at citgo as well as before and after the cleaning and so that the district court concluded we think properly that these issues the things that you can complains about really go to weight rather than admissibility those are certainly limiting factors that they think they can level an attack against which is exactly what they did but they go to way not admissible the evidence was still highly probative especially the fact that the threads inside the ball valve and on the ball stem were relatively undamaged and this goes back to the the purpose of the whole cities testimony because his testing his scenario based testing was designed to see to evaluate damage that would have occurred if the explosive forces had greatly damaged the threads on the ball that the ball fell candle and i do you know tour because there is no other open flame and that seems speculative and it doesn't take into account that the cause of the explosion might never be explained it would seem that most explosions you know are missed mysteries what is the best objective evidence that a live hand was using a tour of the time of the explosion and where in the record would a disconnect in trace line would have would have spilled thermal fluid on the deck and there was no evidence of such a spill and they argued that the blowtorch would have left scorch marks but there were no scorch marks and i saw no response from the government on these points i mean i might have missed it but i don't think so would you like to respond now i would judge we did respond a lot of these facts are addressed in our very lengthy closing argument brief it does contain record cites to the evidence on those particular points one of the important things to remember is that about the thermal coal system is that you can  that system that runs the there are lines that run to the cargo tanks but there's also lines that run across other piping and to the cargo pump but those pieces can be felt off jeffrey brown barrack you can bring to an employee very clearly explained at trial under cross examination you could valve off certain portions of the part so if the cargo part was disconnected from that system there was a way to do that while still using the rest of the using the thermal to the system for the rest of the barge you could absolutely do that without shooting oil all over the deck of the barge again we just think that say a miscarriage or sation of the evidence now it can we talk about miranda for a minute certainly the government has that janice egan was not in custody when he was question does the government dispute his characterization of the circumstances of without it answering at least some of these questions these are these are all assertions for which there is no citation in the record when judge say that was given the motion to suppress she was confronted with a motion to suppress that was only two pages long and it a district court correctly concluded made out nothing more than an assertion that authorities were doing every gruesome thing they could do in response to a massive explosion obviously when they went up there they were of what the what it caused the explosion and they were interviewing him as the master of the vessel to get more information to determine what the possible cause of the explosion might have been no where in the motion the motion is press to dennis michael you can ever say that he was handcuffed or physically placed into custody told he was under arrest told he was not free to leave now but it's taken by police and joint tiny little ten and twelve different people are asking questions and the man of course must have been beyond devastated his skin his friend this is missing he was and i believe some of the interviews talked about the fact that he seemed saddened and he seemed upset but it's an objective test and any reasonable person certainly any reasonable innocent person egan's situation that night would have believed that the reason he was being questioned by all these responders was not because they had decided to focus on him as a target of a crime the best occasion they were trying to understand what in the world had just happened and maybe not you know what what's going through people's minds when twelve different you know people some law enforcement some not or shooting questions that you eat you know that that that's not that's not taher well i mean i don't know what they were thinking but importantly even with the admissions that he made that night he was allowed to leave one of the other crew members the brother of the deceased remember was allowed to leave the scene so he could not his christianson but he told the district court counsel that he should allege more facts because the the bare bones motions simply didn't rise to the level of demonstrating custody for miranda purposes and instead of doing that immunity motion is not as counsel suggests to give the government more information to foster the recovery the initial notification is there and the required notification under the oil pollution act is the it's mandatory so that the government can be aware of an oil spill so that it can react appropriately at the time the use immunity provision eliminates the fifth amendment problem that comes with compelling a master vote of  report their own oil spill knowing that that compelled notification could later then be used against them as an incriminating statement so the use immunity provision eliminates that problem at the time dennis michael egan was being interviewed by these responders out of the scene there was no need for any notification that's why they were all there everyone knew the explosion happened everyone knew the oil spill had happened this was hours maybe maybe hours after the explosion itself in these interviews took place and most of the discussion was not about was there an oil spill it was about what happened what was going out on the barge at the time how could this possibly have happened that's what the question was and it's important to know i mean even if even to an argument said he was not trying to be interviewed he was trying to stay on the canal looking for his crew members he was not seeking out the interviewer so he could report an oil spill he was pulled over and that they sought him out so they could obtain more information the use immunity provision clearly is limited to notifications to the national response senate or coast guard and e p a regulations in effect at the time that specifically designated the national response center as the sole agency to which the notification required under the oil pollution act must go you know i don't want you to leave without answering this for me on the section requires and the restitution being accordance with sections dury six six three or three six six three and how did the restitution here meet that condition do you b which sets forth the discretionary conditions of restitution that a district court is allowed to impose they only cited thirty five sixty three which relates to the mandatory conditions that the district court must impose but as this court concluded it ha s broke the probation and supervised release statutes provide a completely independent basis upon which to impose restitution in a case like this and that authority exists without respect to the mandatory victim evidence of corporate knowledge and and intent his his knowledge is the it is equivalent to corporate now he is the master of the vessel he is operating festive within the scope employment as master of the vessel and the evidence consists of his admissions and also the admissions of a crew member bill rogers of similar import which is that they used a torch to heat the pump under cold weather conditions you get the testimony of a fire marshal pigs off than or if it was at their ia usual circumstance or i believe the test when was the effect that he made some comment that it would not be the regular practice of the accepted practice or something along those lines but that the testimony was very clear that they were asking him about heating the cargo pump and that he was specific to the fact they would occasionally years for exxon what was different about this load that assuming they used the torch before what was different about this load at the torch would somehow ignite this load that it never did before we don't think there's anything different about the slow this was an ordinary clarified story oil but wasn't the slowed didn't this come from some other place in the in the loading process from exxon wasn't there are there were two previously one previous ones and wasn't just third one for some reason from a different tank so to speak it was from a different tank your honor but i don't accept friend i need to drop back and ok if you're a little more background in order for this to make sense when exxon  only get clarified story about what happened on the evening of the explosion was that when the they lost steam heat to one of their balance they couldn't discharge the c s so it's a good example of how the sea it so does heat up under cold weather conditions tank and moved moved some of the c s o from the other tank into the other tank and then loaded the barge that way so there was a movement of the tank from which they were loading the barge under but there was never explosion indicates it was ordinary c s o radio cargo which is exactly what they were contracted to carry and the only evidence to suggest otherwise frankly was an expert that they call sensing that a trial a guy who was completely unqualified who and i'm not making this up all he did was look at a photo of the orange fireball explosion and say that based on his knowledge of marine safety he was a marine chemist c s o the testing company employee who who took the tests and analyzed the the c s o realized that it was just ordinary c s i and even if it wasn't the reality is the use of an open flame on a barge is still legal negligence even if there had been some other light hypercard it doesn't make the use of an open flame and eat less dangerous unlawful or negligent that would have always been the case like you know debris ross those sorts of things might retard the inability of the pump to receive scorch marks so he didn't think it was it certainly not an absolute thing that would be required and i think to the extent you know of the district court clearly i think applied the alexander policy principles in a straightforward way i would sander does not speak in terms of administrative versus civil district court proceedings it speaks of not criminal proceedings and using the not criminal to criminal collateral stuff the policy concerns are very real if you impose non criminal to criminal collateral estoppel there will in most cases certainly in cases where there's parallel civil and criminal proceedings there will be immense burdens that get pushed upon the government the government may be forced to delay proceedings until the very last minute so as not to potentially trip up the criminal case where they might have to forego civil proceedings altogether and all that we submit would be contrary to the intent of congress congress has passed these laws to allow the regulatory government to function in both the civil and criminal cont as opposed to a corporate officer was held criminally liable for her nanse what i mean for a statute that has been in existence so long as this one has i'm troubled that no one else has been reading the law the way the government urges us to read it now if you're reading is correct why do you think there are so few instances some phone law being used in this manner judge  every case turns on its own facts and i certainly don't have an awareness of whether they were conscious to visions by prosecutors elsewhere to only prosecute a master of a vessel or an individual as opposed to the corporate look to the second paragraph of eleven fifteen the first clause of that paragraph clearly contemplates the prosecution of an owner it's when the owner of any steamboat or bustle is a corporation so the statute clearly contemplate the prosecution of a corporate entity and the second paragraph does that reform of time and curves out of additional liability for executive offices but that corporation under a different c enter requirement they have to unlike the first program for individuals and corporations can be prosecuted for their negligence in the second paragraph they have to be prosecuted they can only be prosecuted on a showing that they knowingly and willfully cause they're allowed have a very difficult situation here i don't think so your honor the rule of law to be a longstanding doctrine of course but it's in a political and the reason it's in a political because you only rely on that after recourse to plain language and legislative history leaves the statute ambiguous and the legislative history so very well summarized in colusa case that we rely on for the legislative history shows that congress intent in the section has always been to expand the extent of liability accident after accident happened throughout the eighteen hundreds and they've only gone further and further in expanding liability so as to include corporations as well as individuals and we think that in light of its legislative history in the plain language of the term owner and certainly the reference to the owner being a corporation that the statute allows the prosecution of corporate owners without reliance on  government took two bites at the apple the criminal case was indicted before the civil thank you mr traveler thank you anything further ms christians similarly by the government and yet though should be admitted without  question i'll talk a little bit about restitution because we didn't really talk about that at all the government's correct the court can order restitution as a condition of probation in the case of the company and commissioners supervisor reason the case my client that's not what the mandatory which would be under a thirty five to thirty six fifty three a that or i'll talk a little bit i'm jumping around i want to trust the issues the motions to suppress there were investigator lamont testified on page sixty eight of the trial i asked him what the kook crewmember was doing he said he went down to the barge to check to see if it was ready to be offloaded if the valve if you could open the valve or for whatever reason if the stuff was ready to be offloaded he said he was then asked if there was any propane on board and mr reagan said that maybe there was maybe there was a torch connected to that propane it's the captain the investigator said i didn't know what a rose bud was but i later learned that it was a torch that's the first statement that comes into this game of telephone that get then gets interpreted to being on board the barge rather than onboard the t