Foreign Surveyor Subject to Criminal Liability for Making False Representations in Connection with Coast Guard Safety Inspections

In an unpublished opinion issued January 15th, the Eleventh Circuit affirmed the conviction of a marine surveyor for making false representations and obstructing an agency proceeding. See U.S. v. Gonzalez ----F.Appx.---- (2014).The International Convention for the Safety of Life at Sea (SOLAS) is a maritime treaty that establishes procedures for inspecting and certifying vessels engaged in international commerce. Each member state authorizes marine surveyors to inspect vessels to ensure they comply with SOLAS safety regulations. If a vessel complies with the regulations then the marine surveyor issues a Safety Certificate to the vessel. When a foreign vessel enters a U.S. port, the United States Coast Guard has the authority to inspect the vessel and make sure a valid Safety Certificate has been issued.On two separate occasions, Alejandro Gonzalez issued Safety Certificates to the U.S. Coast Guard certifying the vessel’s compliance with SOLAS regulations. The Coast Guard discovered that the vessel in question was grossly out of line with SOLAS safety standards. Mr. Gonzalez was indicted under 18 U.S.C. § 1001(a), which subjects a person to criminal prosecution if, during any governmental proceeding he knowingly and willfully:“2. makes any materially false, fictitious, or fraudulent statement or representation; or”“3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;”Although Mr. Gonzalez appealed his conviction on multiple grounds, the bulk of the court’s decision focused on two issues: constructive amendment and sufficiency of the evidence.Constructive AmendmentBecause Mr. Gonzalez was convicted for issuing a false Safety Certificate, he argued that his indictment under sub-section (2) was inapposite because sub-section (3) specifically contemplates “false writing[s].” The court rejected this argument for two main reasons. First, a reasonable construction of sub-section (2) encompasses both written and oral representations. Second, the fact that two sections of a statute cover overlapping conduct does not render either of

them superfluous.Sufficiency of the EvidenceIn order to convict someone under § 1001(a), the government must prove that the statements in question were actually false, and, that they were made within the jurisdiction of a U.S. agency. Because Mr. Gonzalez failed to produce any evidence at trial that corroborated his certified evaluation of the vessel, the court found the statements to be false. On jurisdiction, the court found that Mr. Gonzalez made all of the representations at issue in connection with routine Coast Guard inspections. Since Congress has authorized the Coast Guard to inspect and, if necessary, detain vessels posing a risk to themselves or other vessels in U.S. waters, the evidence supported the conclusion that the statements fell within the jurisdiction of a U.S. agency.