US v. Rivera
Case Date: 05/01/1997
Court: United States Court of Appeals
Docket No: 96-2188
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United States Court of Appeals For the First Circuit ____________________ No. 96-2188 UNITED STATES OF AMERICA, Appellee, v. PEDRO RIVERA, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Hector M. Laffitte, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Coffin, Senior Circuit Judge, ____________________ Selya, Boudin, Stahl and Lynch, Circuit Judges. ______________ ____________________ Rafael Castro Lang and Rachel Brill for appellant. __________________ ____________ Andrew C. Mergen with whom Anne S. Almy, Charles A. De Monaco, ________________ ____________ ____________________ Michael J. Woods, David C. Shilton, Peter A. Appel, Lisa E. Jones, ________________ ________________ ______________ _____________ Lois J. Schiffer, Assistant Attorney General, Environment & Natural ________________ Resources Division, Guillermo Gil, United States Attorney, Jorge E. _____________ ________ Vega-Pacheco, Assistant United States Attorney, and Miguel A. Pereira, ____________ _________________ Assistant United States Attorney, were on brief for appellee. James F. Moseley, Patrick J. Bonner, and Robert B. Parrish on ________________ _________________ _________________ brief for Maritime Law Association, amicus curiae. ____________________ OPINION EN BANC ____________________ ____________________ December 2, 1997 ____________________ COFFIN, Senior Circuit Judge. Appellant Pedro Rivera COFFIN, Senior Circuit Judge ______________________ appeals his conviction under 46 U.S.C. 10908 for knowingly sending a vessel to sea in an unseaworthy condition likely to endanger the life of an individual. He alleges that his prosecution was invalid, that the evidence was insufficient, and various trial errors. After a divided panel of this court affirmed the conviction, we ordered en banc hearing on the __ ____ statutory and sufficiency issues. We now find the prosecution to be proper, but conclude that the evidence adduced was insufficient to establish that Rivera knew that the vessel's condition was "likely to endanger the life of an individual." The judgment of conviction therefore must be reversed.1 I. Background __________ This case arises out of a major oil spill that occurred during the night of January 6-7, 1994 off the coast of San Juan, Puerto Rico. The accident occurred after the tow wire connecting the tugboat Emily S. to the barge Morris J. Berman parted; the ________ ________________ barge subsequently ran aground, spilling its oily cargo. Appellant Rivera was the general manager of the Bunker Group, which managed the tugboat. On the night of the accident, Rivera had directed the crew of the Emily S. to transport the Morris J. Berman from San Juan ________ _________________ to Antigua. Although various crew members of the Emily S. _________ ____________________ 1 The asserted trial errors were not certified for en banc __ ____ review, and the panel's rejection of them therefore is not before us. Because our disposition renders those errors moot, we do not need to re-adopt that portion of the withdrawn opinion. -2- previously had told Rivera of the towing wire's seriously deteriorated condition, and although a new wire had been ordered and was available,2 the voyage proceeded with the old wire in place. Shortly after the vessel left San Juan Harbor, the wire parted. Captain Roy McMichael repaired the wire, but did not use a thimble, a device that prevents abrasion in a repaired section of wire. Several hours later, the wire parted again; the barge drifted off and went aground. Rivera was found guilty by a jury of violating 46 U.S.C. 10908 for knowingly sending the Emily S. to sea in an unseaworthy ________ condition likely to endanger life.3 We review his conviction on both statutory and evidentiary grounds. II. Interpretation of 46 U.S.C. 10908 ___________________________________ The first question certified for en banc consideration is __ ____ one of statutory interpretation: was Rivera's prosecution under section 10908 flawed because certain procedural prerequisites were not met? Section 10908 provides as follows: A person that knowingly sends or attempts to send, or that is a party to sending or attempting to send, a vessel of the United States to sea, in an unseaworthy state that is likely to endanger the life of an individual, shall be fined not more than $1,000, imprisoned for not more than 5 years, or both. ____________________ 2 The wire apparently was not installed before the trip because workers were unavailable as a result of the Three Kings' holiday. 3 The jury also convicted Rivera for knowingly violating a Coast Guard regulation, see 33 U.S.C. 1232(b)(1), but the ___ district court later granted Rivera's motion for acquittal on that count. -3- This is the final provision in Chapter 109 of Title 46. The chapter, entitled "Proceedings on Unseaworthiness," focuses primarily on procedures to be used by seamen to report unseaworthy vessels. Rivera maintains that these procedures must be instituted before a criminal prosecution may be brought under section 10908. The government argues that section 10908 is a freestanding statute that on its own provides a basis for criminal liability. To resolve this dispute, we must confront three major analytical issues: (1) to what extent should the context of section 10908 within Chapter 109 guide our interpretation of its language? (2) what role should be played by legislative history? (3) is our interpretation "palpably unreasonable"? We address each of these substantial issues in Section A below, and briefly note in Section B inconsistencies in this area of law that we believe deserve the attention of Congress. A. An Examination of Context, Legislative History, and ________________________________________________________ Reasonableness. _______________ We enter our analysis by noting that the interpretation of a statute presents a purely legal question, and thus our review is de novo. See Strickland v. Commissioner, 96 F.3d 542, 545 (1st __ ____ ___ __________ ____________ Cir. 1996). (1) Plain Language or Beyond? The well established approach _________________________ to statutory construction begins with the actual language of the provision, Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 ____________________ ________ (1985). When the "plain meaning" is clear on its face, "the sole -4- function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917); United _________ ______________ ______ States v. Bohai Trading Co., 45 F.3d 577, 581 (1st Cir. 1995). ______ __________________ From one vantage point, this is the beginning and the end of our analysis. On its face, there is nothing unclear about the meaning of section 10908. Its language does not limit its application to "a person" against whom Chapter 109 proceedings have been brought. Rather, it sets out three specific requirements for finding a person culpable: (1) knowingly sending a vessel to sea; (2) knowing that the vessel was in an unseaworthy condition; and (3) knowing that the unseaworthiness was such that it would likely endanger life. Straightforward application of the plain language rule leaves no place for the procedural prerequisites asserted by Rivera. There is, however, a respectable contrary view that reading Chapter 109 as a whole leads to a different understanding of section 10908. From this perspective, section 10908 is designed to enhance the complaint procedures outlined in the preceding sections by criminalizing a knowing attempt to take a dangerous vessel to sea after an official finding of unseaworthiness or the lodging of a complaint pursuant to those sections.4 ____________________ 4 Chapter 109 was enacted in 1983 as Public Law 98-89. It provides for the filing of a complaint with the master of a vessel by the "chief and second mates or a majority of the crew," before a voyage takes place, if the vessel appears unfit to the seaman, 46 U.S.C. 10902(a)(1). A master receiving such a complaint is then required to apply to a district court of the United States for the appointment of "3 experienced and skilled marine surveyors to examine the vessel for the defects or insufficiencies complained of." Id.; id. at 10903(a). After ___ ___ -5- Rivera maintains that this contextual interpretation of section 10908 is supported by a reading of the statutory provisions from which Chapter 109 is derived, 46 U.S.C. 653- 658. Those provisions, originally enacted in 1840, were amended in 1983 for the primary purpose of re-organizing the then- existing maritime legislation on the safety of vessels and protection of seamen into a more comprehensible and easily administered scheme. See H.R. Rep. No. 98-338, at 113 (1983), ___ reprinted in 1983 U.S.C.C.A.N. 924, 925. Former section 658 ____________ consisted of four sentences, the next-to-last of which, with minor revision, became new section 10908.5 ____________________ their investigation, the surveyors must make a report stating whether the vessel is fit and, if not, must make appropriate recommendations as to how to render the vessel seaworthy. Id. at ___ 10903(a). The district court then passes upon the report and renders its judgment, which must be complied with by the master and crew of the vessel. Id. at 10903(b). The remaining ___ sections of Chapter 109 detail further consequences: section 10905 provides for the filing of complaints in foreign ports; section 10906 provides for the discharge of the crew upon a finding of the vessel's unsuitability; section 10907 prohibits a master from interfering with a seaman's right to file a complaint under this chapter. Finally, section 10908, the provision at issue here, provides for criminal sanctions. 5 The opening two sentences of section 658 were linked in content to the preceding provisions on the appointment of vessel inspectors by consular officials in foreign ports, and specified when such an official should discharge a crew on account of unseaworthiness. The third sentence began as follows: If any person knowingly sends or attempts to send or is party to the sending or attempting to send an American ship to sea, in the foreign or coastwise trade, in such an unseaworthy state that the life of any person is likely to be thereby endangered, he shall, in respect of each offense, be guilty of a misdemeanor, and shall be punished by a fine not to exceed $1,000 or by imprisonment not to exceed five years, or both, . . . . -6- Rivera points particularly to the word "such" in the final portion of section 658 -- the reference to sending a ship to sea in "such an unseaworthy state" -- as evidence that criminal such liability was intended only when a finding of unseaworthiness as specified in the prior sections was made. Although that portion of section 658 was separately codified as section 10908 as part of the 1983 amendments, and the word "such" was deleted, Rivera maintains that the context makes clear that the focus on unseaworthiness remained the same: criminal liability under section 10908 is applicable only when unseaworthiness is found pursuant to the preceding procedural mechanisms. We have difficulty drawing so much from the context here. While cognizant of "the cardinal rule that a statute is to be read as a whole . . . , since the meaning of statutory language, plain or not, depends on context," Conroy v. Aniskoff, 507 U.S. ______ ________ 511, 515 (1993) (citations omitted), we gain no insight from the surrounding text in this instance. Indeed, the relevant "context" is subject to different interpretations. Rivera argues that the backdrop is a multi-part procedural scheme for making determinations of unseaworthiness based on claims brought primarily by seamen. The government takes a broader view, describing the context simply as a set of provisions concerning unseaworthiness, with the criminal prosecution serving as an ____________________ The next clause of the sentence provided a defense to the violation based on reasonableness. -7- appropriately harsh penalty for a limited category of individuals who knowingly put lives in jeopardy. Both of these frameworks are consistent with what we see as the overall purpose of the legislation -- to protect seamen -- and we therefore find no aid to construction in the provisions surrounding section 10908.6 Nor does a focus on the word "such," as Rivera urges, move us beyond the plain language. Although we believe the use of "such" in the old statute appears almost certainly to look forward to the extent of unseaworthiness necessary to trigger liability, rather than back to a preceding finding, there is no room for argument that the language in the recodified provision is ambiguous. Taking section 10908 at face value, without limitations, avoids any uncertainty.7 ____________________ 6 Context plays a larger role when a literal reading of the language at issue would do violence to the overall scheme. See ___ United States v. Falvey, 676 F.2d 871, 875 (1st Cir. 1982) _____________ ______ ("[C]ourts are not bound to read a statute literally in a manner entirely at odds with its history and apparent intent.") Construing section 10908 as a stand-alone provision not only supports Chapter 109's overall purpose of protecting seamen but also promotes Congress's apparent intent to increase responsibility for life-threatening accidents. See infra at 11. ___ _____ 7 This is not unlike the conflict between Justices Brennan and Powell in Maine v. Thiboutot, 448 U.S. 1 (1980). Justice _____ _________ Brennan's majority opinion held that the phrase "and laws" in 42 U.S.C. 1983 encompassed violations of all federal statutory as well as constitutional laws, while Justice Powell in dissent asserted that the context clearly confined coverage of the provision to, at most, statutes providing specifically for equality of rights. As did the majority there, we think the better approach, in the absence of clear guidance to the contrary, is to accept the provision as written, without reading in unstated limitations. -8- Our conviction that we should not look beyond the plain language of section 10908 is only strengthened when we examine both the limited legislative history of the provision and the rationality of this interpretation. (2) The Role of Legislative History. Keeping in mind that ________________________________ resort to legislative history typically is inappropriate when the meaning of a statute is plainly discernible from its words, see ___ Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 23 (1st Cir. __________ _____________________ 1989), we engage in this discussion solely to reinforce our conclusion that this case is best resolved through reliance on the plain language rule. In a case such as this, where the "statute's text is encompassing, clear on its face, and productive of a plausible result," State of Rhode Island v. _______________________ Narragansett Indian Tribe, 19 F.3d 685, 698 (1st Cir. 1994), our _________________________ inquiry, at most, should be aimed at determining "`whether there is a "clearly expressed legislative intention" contrary to [the statutory] language, which would require [the court] to question the strong presumption that Congress expresses its intent through the language it chooses.'" Id. (quoting INS v. Cardoza-Fonseca, ___ ___ _______________ 480 U.S. 421, 432 n.12 (1987)). The signals here are mixed. While the stated purpose of the legislation was simply to recodify in an organized fashion the then-existing law relating to the safety of vessels and protection of seamen8 -- suggesting that no changes were intended ____________________ 8 House Report No. 98-338 states: -9- -- the accompanying House Report anticipated questions about substantive revisions: [T]he bill . . . does in fact make a great many _______________________________________________________ substantive changes to the present law. Those changes _______________________________________ are all either minor changes, adjustments, or modifications, or they are more significant changes to _____________________________________ which the Committee received no objection and which the Committee believed would enhance the clarity and effectiveness of the law and the [sic] generally accepted by the industry. Thus, if a comparison of the language of this bill with the existing law shows that a substantive change has resulted, it should be ______________ understood that that change was intended by the _______________________________________________________ Committee. The Committee intends and hopes that the _________ interpretation of the maritime safety laws as codified and enacted by this bill will be based on the language of the bill itself. The bill, as reported, is based on that premise. There should, therefore, be little or no occasion to refer to the statutes being repealed in order to interpret the provisions of this bill. The Committee also feels, as the courts have held, that the literal language of the statute should control the disposition of the cases. There is no mandate in _______________________ logic or in case law for reliance on legislative _______________________________________________________ history to reach a result contrary to the plain meaning _______________________________________________________ of the statute, particularly where that plain meaning ______________ is in no way unreasonable. H.R. Rep. No. 98-338, at 120 (1983), reprinted in 1983 ______________ U.S.C.C.A.N. 924, 932 (emphasis added). Thus, the argument that Chapter 109 must be interpreted to contain exactly the same content as the provisions it replaced is met head-on by the report's statement to the contrary. ____________________ The ultimate aim of this legislation is three fold: to make maritime safety and seamen protection law easier for the Coast Guard to administer, to make it less cumbersome for the maritime community to use, and to make it more understandable for everyone involved. H.R. Rep. No. 98-338, at 113, reprinted in 1983 U.S.C.C.A.N. 924, ____________ 925. -10- Additionally, as the government asserts, it is by no means clear that former section 658 required a civil adjudication of unseaworthiness as a prerequisite to a criminal prosecution. Although it was included within the same section as instructions for the discharge or retention of a crew in a foreign port after a survey of vessel conditions, the criminal provision was phrased generally and did not reference a civil adjudication of unseaworthiness. As we noted earlier, see supra at 8, the use of ___ _____ the word "such" in section 658 in all likelihood did not refer back to "such" a prior civil adjudication. Whatever the intended meaning of section 658, it seems to us that the recodification's affirmative separation of section 10908 from other provisions, and deletion of the word "such," reflect a deliberate decision that liability under the section is to be distinct from, and not dependent upon, compliance with Chapter 109's civil provisions. See Cardoza-Fonesca, 480 U.S. at 442-43 ___ _______________ ("Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio ___ ________ to enact statutory language that it has earlier discarded in favor of other language.") (citation omitted). The suggestion that Congress was strengthening the sanction imposed is reinforced by yet another change. Section 658 included defenses to criminal liability based on reasonableness, specifying that guilt and punishment would not attach if the individual charged with sending off an unseaworthy vessel proves that either he used all reasonable means to insure her being sent to sea in a seaworthy state, or -11- that her going to sea in an unseaworthy state was, under the circumstances, reasonable and justifiable . . . . Elimination of these defenses strikes us as far from insignificant, contributing to our sense that Congress intended to clarify and to tighten the obligation of those in control of vessels to prevent life-threatening accidents. We thus find no unequivocal statement of legislative intent that would permit us to insert a limitation where none exists in the language of section 10908.9 ____________________ 9 We briefly note two other arguments made in support of Rivera's position. First, Rivera asserts that the competing interpretations of section 10908 warrant resort to the rule of lenity, which "commands that genuine ambiguities affecting a criminal statute's scope be resolved in the defendant's favor," United States v. Bowen, Nos. 96-2289, 90, slip op. at 15 (1st _____________ _____ Cir. Sept. 5, 1997). The rule is triggered only when, "`at the end of a thorough inquiry, the meaning of a criminal statute remains obscure,'" Id. (quoting United States v. O'Neil, 11 F.3d ___ _____________ ______ 292, 301 n.10 (1st Cir. 1993)). As we have discussed, this is not such a case. The plain language of section 10908 is not ambiguous, and the rule of lenity is therefore inapplicable. Second, the Maritime Law Association of the United States contends in its amicus brief that the government's interpretation of section 10908 must be wrong because it will adversely affect the long-standing right of vessel owners to utilize the Limitation of Vessel Owner's Liability Act, 46 U.S.C. 181-189. Under the Act, damages claims against a vessel owner following an accident may be limited to the value of the vessel and freight on board if the mishap occurred without the privity or knowledge of the owner. See generally Hercules Carriers, Inc. v. Claimant ___ _________ _______________________ ________ State of Florida, 768 F.2d 1558, 1563-64 (11th Cir. 1985). ________________ The MLA suggests that the prospect of criminal liability under section 10908 will chill the use of the Limitation Act out of fear that an adverse finding under that provision would be used as prima facie evidence of the crime. The two statutes, _____ _____ however, feature different standards of proof and different burdens of persuasion; the greater protections accorded criminal defendants guarantee that a decision against a vessel owner in a limitation proceeding will not establish a "prima facie" criminal case under section 10908. Moreover, at least one other criminal provision involving negligent conduct by ship officers and owners apparently has existed side-by-side with the Limitation Act for -12- (3) An absurd result? It is a common occurrence in the law _________________ that black-and-white principles have an associated set of grey areas. Such is the case with the plain language rule. Though a solid anchor of statutory construction, it is not without exceptions, even in the absence of explicitly contrary legislative history. We have recognized that a "provision's plain meaning must govern its application, unless a palpably ______ unreasonable outcome would result," Massachusetts v. Blackstone _____________ __________ Valley Elec. Co., 67 F.3d 981, 986 (1st Cir. 1995) (emphasis _________________ added); see also Sullivan v. CIA, 992 F.2d 1249, 1252 (1st Cir. ___ ____ ________ ___ 1993) ("Courts will only look behind statutory language in the rare case where a literal reading must be shunned because it would produce an absurd outcome, . . . or when the legislature has otherwise blown an uncertain trumpet.") (citations omitted). Rivera contends that this is such a rare case. He asserts that the imposition of criminal sanctions without the necessary prerequisites "will convert untold numbers of unsuspecting persons into prospective criminals," and offers the fact that the provision has never before been enforced to demonstrate the injustice of upholding a prosecution that was not preceded by an administrative finding of unseaworthiness. Our view, to the contrary, is that the provision is sufficiently limited in scope to eliminate the specter of thousands of prosecutions based on wide-ranging claims of unseaworthiness, and that irrational results will come not from ____________________ some time. See 18 U.S.C.A. 1115 (listing numerous cases). ___ -13- application of section 10908 in isolation but instead would come from requiring that the complaint procedure be completed before the filing of criminal charges. To focus on the many relatively minor forms of unseaworthiness, as Rivera does in projecting a flood of prosecutions, is to seize on only a part of the definition of the crime. The criminal provision requires knowledge not only that the vessel is unseaworthy but also that it is afflicted with a defect that is "likely to endanger" life. Our discussion in Section III, infra, demonstrates that run-of- _____ the-mill unseaworthiness cases will not fall within this embrace. On the other hand, if growing numbers of individuals are prosecuted and convicted under the required standard, we see nothing inconsistent with the apparent safety objective of Congress. As for the logic of a civil prerequisite, it seems that an uneven enforcement of law would result. If the crew and officers of a vessel were intimidated or unknowing, they might not bring to light egregious circumstances of unseaworthiness that others might have discovered and reported. We think it irrational to posit that a prosecution for the dangerous conduct proscribed by section 10908 could be barred simply because a ship owner or other potential defendant was able to prevent a civil proceeding through deception or strong-arm tactics. The Third Circuit, faced with a similar question under the Clean Water Act, aptly observed that "we see no reason why the Government should be hampered by prerequisites to seeking criminal sanctions under the -14- Act. . . . Although continued discharges after notification could be one way for the government to prove scienter, it is certainly not the only way to establish willful violations," United States _____________ v. Frezzo Bros., Inc., 602 F.2d 1123, 1126 (3d Cir. 1979).10 __________________ Nor does the novelty of this prosecution suggest to us that it is unfair or absurd. The prior lack of reported prosecutions under section 10908 or its predecessor may be a function of the fact that its coverage is narrow and that other provisions also reach aspects of the conduct that is actionable under it. Section 1115 of Title 18, for example, makes it a crime for any person employed on a vessel, or the owner or charterer of the vessel, to destroy "the life of any person" through misconduct, negligence, or inattention to duties. A person who operates a vessel in a grossly negligent manner "that endangers the life, limb, or property of a person" commits a misdemeanor under 46 U.S.C. 2302(b). Prosecutors often have a range of statutory choices in bringing charges, and the historical neglect of section 10908 and its predecessor, section 658, may reflect only that it was less obvious than other overlapping statutes because ____________________ 10 The defendants in Frezzo Bros. argued that the ____________ Environmental Protection Agency could seek criminal remedies only after first giving notice of the alleged violations of the act or instituting a civil action. 602 F.2d at 1124. They also contended that a "willful" violation of the Clean Water Act could be established only where a party given notice of its violations continued polluting. The Third Circuit rejected these contentions and held that the prosecutorial discretion of the government was not bound by civil proceedings where "nothing in the text . . . compels the conclusion that prior written notice, other administrative or civil remedies are prerequisite to criminal proceedings under the Act." Id. at 1126. ___ -15- of its placement at the end of a provision primarily concerned with administrative procedures. See United States v. Nippon ___ ______________ ______ Paper Indus. Co., 109 F.3d 1, 6 (1st Cir. 1997), petition for ________________ _____________ cert. filed, 65 U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987) ___________ (novel use of a statute is not alone a basis for reversing a conviction). In sum, we cannot say that punishing a responsible person for knowingly sending a vessel to sea in such a condition as to endanger life is so "palpably unreasonable," Blackstone Valley _________________ Elec. Co., 67 F.3d at 986, "difficult to fathom," United States _________ _____________ v. Indelicato, 97 F.3d 627, 629 (1st Cir. 1996) (citation __________ omitted), or "absurd," Sullivan, 992 F.2d at 1252, as to trump ________ the unvarnished language of section 10908.11 C. Matters for Congressional Attention. ___________________________________ Although we are confident that our conclusion is ordained by the applicable principles of statutory construction, we recognize that it has some puzzling ramifications. Section 10908 does not apply to fishing vessels or yachts, apparently exempts harbor craft and other vessels that operate only on inland waters (because they are not being sent "to sea"), and does not reach ____________________ 11 We find some support for our judgment that criminal liability in this context is rational in the court's reference to section 10908 in Seymore v. Lake Tahoe Cruises, Inc., 888 F. _______ ________________________ Supp. 1029, 1035 (E.D. Cal. 1995). The court there recognized a wrongful termination cause of action in favor of a captain terminated for refusing to pilot a vessel he believed was unseaworthy, posing an unreasonable risk to passengers and crew. In endorsing the pilot's claim, the court pointed to section 10908 as evidence of the strong public policy at issue. That court, at least, did not view criminal responsibility for such life-threatening conduct to be "absurd." -16- foreign vessels operating in United States waters. The scheme thus operates erratically in protecting seamen from dangerous conditions. Similar maritime safety statutes cover more territory, but do not fill in all of the gaps. Section 1115 of Title 18 punishes negligence and misconduct by any "person employed on any steamboat or vessel" that results in loss of life, and similarly imposes criminal responsibility on owners, charterers and inspectors if their fraud, misconduct or neglect leads to a death. Section 2302 of Title 46 specifies penalties for endangering life or property through negligent operation of any vessel in U.S. waters and of U.S.-owned vessels on the high seas. It would be of value, we think, for Congress to examine this area of law for the purpose of evaluating whether to make safety standards more consistent across categories of vessels and in all locations subject to United States jurisdiction. III. Sufficiency of the Evidence ___________________________ The second question certified for en banc review is whether __ ____ the government produced sufficient evidence to support the verdict that Rivera "knowingly" sent the Emily S. to sea in an ________ "unseaworthy" condition "likely to endanger the life of an individual."12 When assessing a challenge to the sufficiency of ____________________ 12 The term "unseaworthy" is not defined within the statute, and the question was raised at oral argument whether it should be given a more limited meaning within this criminal context than in the maritime setting, where it is "essentially a species of liability without fault," Seas Shipping Co. v. Sieracki, 328 U.S. _________________ ________ -17- the evidence, "`we review the record to determine whether the evidence and reasonable inferences therefrom, taken as a whole and in the light most favorable to the prosecution, would allow a rational jury to determine beyond a reasonable doubt that the defendant[] [was] guilty as charged.'" United States v. ______________ Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) (quoting United States ________ _____________ v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993)). ___________ The original panel opinion noted that a "painstaking review of the record" had taken place, and we again have read the trial transcript in its entirety. Although we remain convinced that the jury had ample evidence upon which to base its finding that Rivera knowingly sent an unseaworthy vessel to sea, we do not have the same conviction with respect to the final element of section 10908, knowledge that the unseaworthiness was such that it would likely endanger life. We therefore begin our analysis by repeating essentially verbatim the panel's discussion of unseaworthiness, and then proceed to explain why the evidence of likely to endanger was insufficient to support the conviction. A. Knowingly sending a vessel to sea in an unseaworthy ________________________________________________________ condition _________ ____________________ 85, 94 (1946). Because we believe the mens rea requirement ____ ___ ("knowingly") and the "likely to endanger the life of an individual" element serve to sharply limit prosecutions under the provision, we see no reason to depart from the common usage of the term. We therefore understand an "unseaworthy" vessel to be one not properly outfitted or safe for a voyage at sea. See The ___ ___ Random House Dictionary of the English Language 1728 (2d ed. _______________________________________________ unabridged 1987). -18- We note at the outset that Rivera had many years of experience in the tug and barge industry, having served with a major tug and barge company in Puerto Rico prior to his employment with the Bunker Group. In addition, the record is replete with instances indicating that Rivera was informed before the fateful voyage of the precarious condition of the tow wire: -- Roy McMichael, the captain of the tugboat, testified that before the vessel set out, he raised with Rivera the condition of the wire, the need for its replacement, and the difficulty of getting the repair performed due to the holiday. -- Victor Martinez, who served as a mate on the voyage, testified that he had discussed with Rivera that "the conditions [sic] of the wire were not too favorable." -- Yaacov Eisak, who served as the tugboat engineer on the Emily S., testified that in December 1993 or early January 1994, ________ he had "about two" conversations with Pedro Rivera, in which he joked with him that "we should get some bait and we can catch some fish with so many hooks what [sic] we were having on the wire."13 -- Leonard Furmanski, who had previously served as an engineer on the Emily S. when she experienced a prior separation ________ of the wire as the boat left Guayanilla in August 1993, testified that on his return to San Juan, he told Rivera that it was time to replace the wire. ____________________ 13 When tow wires deteriorate, short sections of wire split off and protrude in what are colloquially known as "fish hooks." -19- -- Danny Kehoe, who alternated with McMichael as the captain of the tugboat, and who was at the helm during the Guayanilla parting, testified that he told Rivera "at least six, seven times" that the towing wire needed to be replaced, and he made an entry in the boat's logbook on December 8, 1993 that the cable required replacing and that he had so informed Rivera. Kehoe testified that he had made this entry because he thought Rivera was not taking him seriously. The jury also heard expert evidence on the subject of the wire's condition. The government presented the testimony of Glenn Hargrave, a tugboat captain, who testified that it was his opinion, based on his review of the Coast Guard report, the FBI report and its accompanying photographs, and on his examination of the wire itself,14 that the wire was not fit for towing operations as of the date of the accident. FBI Special Agent Tobin characterized the "embrittled" and "deteriorated" wire as "a disaster waiting to happen." Faced with this evidence of the wire's condition and the multiple warnings about the need to replace it, as well as evidence of Rivera's extensive experience in this field, we cannot say that there was insufficient evidence presented to support the jury's conclusion that Rivera knowingly sent a vessel to sea in an unseaworthy condition. We recognize that there was ____________________ 14 Specifically, Hargrave pointed to the large number of "fish hooks" on the wire, the severe corrosion of the wire, and the lack of flexibility of the wire, as indicating its lack of fitness for towing service on January 6, 1994. -20- competing evidence. Rivera's expert, for example, a specialist in metallurgy, testified that the cable was strong enough to tow the load on the day of the accident. Some evidence also showed that Rivera consulted with Captain McMichael and another experienced captain, George Emanuel, about whether to make and continue the voyage without first replacing the tow wire. The jury, however, was entitled to discount Rivera's expert in light of the other testimony, and could have found on this record that Rivera decided to go ahead with the voyage not because he believed the vessel was seaworthy but because he thought he could get by with one more trip using the seriously deteriorated wire. Section 10908 seems designed for precisely this sort of situation, imposing liability when an individual deliberately fails to take remedial measures for pragmatic reasons, at the expense of safety. We therefore hold that the evidence was sufficient for the jury to find that Rivera knew that the Emily S. was unseaworthy. ________ B. "Likely to Endanger" ____________________ We now revisit the question of whether there was sufficient evidence for a jury to find that Rivera knew the tug's condition was "likely to endanger the life of an individual." In so doing, we face two conflicting constraints. The first is that, as in all criminal appeals by defendants, we must give a great deal of deference to the evidence adduced in favor of the government. The second is that we must be vigilant in preventing any slackening of a standard that Congress saw fit to require as -21- the necessary predicate of the ultimate sanction of criminal liability. In a prosecution of this nature, there is an inherent hazard in the necessity of two juxtaposed jury findings, one involving knowledge of unseaworthiness, and the other knowledge of likelihood of such unseaworthiness endangering life. Unless courts remain acutely aware that the prosecutor bears separate burdens on these two issues, there is a lively danger that, once a jury has found not only that an unseaworthy condition existed, but also that a defendant knew of that condition, it could quickly be impressed by the possibility of any number of life threatening events. A slippery deck, a malfunctioning winch, or poor stowage all can lend themselves to fatal scenarios. There is very little that can go wrong at sea without some risk to human life. But the test is not "possibility" or "some risk." It is of a significantly higher order, "likely to endanger life." Not only do logic and the need to avoid watering down the prerequisite to criminal liability support this statement, but also the common understanding of the word "likely." At times, dictionary definitions give mixed signals, or are opaque or otherwise less than compelling indicia of legal meaning. But the definitions of the adverb "likely" are consistent, clear and strong: in one dictionary the meaning is simply "probably," see ___ The Random House Dictionary of the English Language 1114 (2d ed. ____________________________________________________ unabridged 1987); in another, the meanings are "in all -22- probability" and "probably," see Webster's Collegiate Dictionary ___ _______________________________ 674 (10th ed. 1993). In the context of this statute imposing criminal liability, we think that there must be sufficient evidence of a (known) defect that poses a very substantial threat to life. This is not a mathematical formula. It is not a "more probable than not" test. The prosecution should not have to prove that the chances of surviving such a defect are less than fifty percent. But the threat should be one that, objectively viewed, poses an unacceptable risk to an individual. It seems to us that instances of loss of life beyond the rare or bizarre, or a condition so inherently life threatening that it needs no record of experience, must be shown. In this case, the evidence falls significantly below anything approaching these showings. The government's evidence of the danger posed by a broken tow wire was entirely speculative. The most dramatic testimony -- Captain Hargrave's assertion that an individual on deck could be cut in half by a wire snapping back like a rubber band after it breaks -- was unsupported by any evidence that such an accident ever had occurred. Captain Robert Ross of the Coast Guard described a series of dangers attributable to a barge breaking loose from a tugboat, but his testimony failed to establish that these were other than a worst case scenario. There was no evidence that such dire consequences could be expected more than infrequently when a wire parted. -23- In fact, witness after witness testified to experiences with cable partings, but none reported any resulting human injury. Captain McMichael's testimony that the wire hit him after he repaired it, "knock[ing] the wind out of me a little bit," obviously falls short of meeting a "likely to endanger life" standard. Similarly, Captain Ross's description of the dangers associated with the effort to contain this particular oil spill do not demonstrate that a deteriorated tow wire is a danger to human life. Indeed, the evidence indicated that the damage that did occur was the result of aberrant circumstances. The testimony was that a proper repair the first time probably would have prevented the second parting, and that the barge remained adrift and eventually went aground after the second break because crew members were not following prescribed procedures for operating the tugboat. Rivera can not be charged with anticipating such events. The government's evidence, in sum, showed only that the parting of a tow wire could pose a serious risk to human life. _____ This is inadequate to prove that Rivera violated section 10908 by sending a vessel to sea knowing that its unseaworthy condition was likely to endanger life. ______ IV. Conclusion __________ Having concluded that the plain language of section 10908 permitted this prosecution of appellant Rivera without a prior finding of unseaworthiness, but that the evidence presented at -24- trial failed to prove an essential element of the charged crime, we reverse the conviction. Concurrence follows. < |