Water Log 19.1

False Statements Exact High Price
United States v. Royal Caribbean Cruises Ltd.,11 F. Supp.2d 1358 (S.D. Fla. 1998).

United States v. Tomeny,144 F.3d 749 (11th Cir. 1998).
Kristen M. Fletcher, J.D., LL.M. & Jonathan Huth, 2L
Most fishers are aware that the main U.S. fisheries statute, the Magnuson Act, prohibits obtaining licenses or permits through false reporting. Similarly, most mariners know that the U.S. Act to Prevent Pollution from Ships (APPS) also prohibits false representations.¹ Prosecutors, however, are using a broader statute, the False Statements Act (FSA), to charge violators with lying. The FSA criminalizes false statements made to the government, either directly or through a third party, and in 1998, two Federal courts found that this statute is properly used against fishers and vessel operators.²In United States v. Tomeny, the defendants had obtained an endorsement to participate in the red snapper fishery by falsely stating that their vessel met certain threshold requirements.³ The National Marine Fisheries Service determined that Theodore Tomeny and Steve Tomeny, of Tomeny and Tomeny, Inc., had submitted false information to obtain the endorsement. The Tomeny's were convicted of felony misrepresentation under the FSA.On appeal, the defendants claimed that prosecution under the FSA was improper; the statute under which to prosecute is the Magnuson Act which states "[i]t is unlawful for any person to knowingly and willfully submit . . . false information" regarding a fisheries issue that a Council may consider, including the issuance of endorsements.⁴ The Magnuson Act punishes a false statement as a misdemeanor with fines of $100,000 and six months imprisonment.⁵ By contrast, the False Statements Act is a general fraud statute, enacted more than 100 years ago, that includes false statements as felonies with higher fines and possible imprisonment of five years.⁶

Seeking to classify their actions as misdemeanors rather than felonies, the Tomenys argue that because it applies specifically to supplying false information in the fisheries context, the Magnuson Act preempts the FSA. The Eleventh Circuit denied their claim for several reasons. The court found that "when an act violates more than one criminal statute, the Government may prosecute under either" so long as there is no legislative intent to repeal a statute and replace it with a new one.⁷ Even though the Magnuson Act is more specific, it does not specifically repeal the FSA, nor does its legislative history indicate such an intent.

A Florida District Court made similar findings in United States v. Royal Caribbean Cruises finding the cruise liner guilty under the False Statements Act. In 1993, a Coast Guard officer observed the Nordic Empress discharging oil in Bahamian waters while en route to Miami. Under an international treaty, the cruise liner had to maintain an Oil Record Book listing all oil discharges. Once the Nordic Empress arrived in Miami, the United States Coast Guard boarded the vessel, conducted a document and safety inspection and found that there was not an entry of the oil discharge. Rather than prosecute under the more specific Act to Prevent Pollution from Ships, the United States charged Royal Caribbean with a violation of the FSA for presenting a false record to the Coast Guard official in Miami.

As with the Eleventh Circuit in Tomeny, the Royal Caribbean court found that prosecution under the more general FSA was appropriate because Congress intended to have the Act to Prevent Pollution from Ships supplement existing laws rather than amend them.⁸
 

ENDNOTES

1. 33 U.S.C. § 1908 (1998).

2. 18 U.S.C. § 1001 (1998).

3. To obtain an endorsement, a vessel must have landed >5,000 pounds of red snapper in at least two of the three years of 1990, 1991, and 1992. See Emergency Interim Rule of Reef Fish Fishery of the Gulf of Mexico, 57 Fed. Reg. 62, 237 (1992), codified at 50 C.F.R. § 64 1.4 (m) and (n). The Tomeny's claimed their vessel met the threshold in 1990 and 1992 even though it, in fact, had not reached that level in 1990.

4. 16 U.S.C. § 1857 (1)(I) (1998).

5. 16 U.S.C. § 1859 (b) (1998).

6. 18 U.S.C. § 1001 (1998).

7. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979).

8. Royal Caribbean also argued lack of jurisdiction because the dumping occurred in international waters and was preempted by MARPOL provisions (Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, codified at 33 U.S.C. § 1901 et seq.).
 

University of Mississippi