## Facts

- MARPOL is an international treaty addressing marine pollution; Annex I regulates oil pollution and requires ships to use proper equipment (including an oily water separator) and limit certain discharges.
- The United States implements MARPOL through the Act to Prevent Pollution from Ships (APPS), which authorizes Coast Guard inspections and enforcement in U.S. ports.
- Hugo Pena acted as a “nominated surveyor” for Panama, responsible for surveying and certifying a Panamanian-flag vessel’s Annex I compliance.
- Pena conducted a MARPOL-related survey of the *Island Express I* while it was docked at Port Everglades, Florida.
- During a Coast Guard port state control examination, authorities determined Pena had not performed a proper survey and had issued a materially false certification indicating the vessel complied with Annex I requirements.
- Pena was charged, convicted by a jury of APPS/MARPOL-related offenses, sentenced to five years’ probation, and the district court denied his motion for judgment of acquittal.

## Issues

1. Whether the United States, as a port state, has jurisdiction under MARPOL and APPS to prosecute a foreign flag-state “nominated surveyor” for knowing MARPOL violations committed aboard a foreign-flag vessel in a U.S. port.
2. Whether the indictment sufficiently alleged an APPS offense and provided adequate notice of the charge.
3. Whether challenged jury instructions misstated the law or otherwise constituted reversible error.

## Decision

- The Eleventh Circuit affirmed the conviction and the denial of judgment of acquittal.
- The court held the United States had jurisdiction under APPS to prosecute Pena for knowing MARPOL violations committed while the vessel was in a U.S. port.
- The court found the indictment adequately charged an offense by identifying the statutory basis and alleging the essential elements with sufficient factual detail.
- The court found no reversible error in the jury instructions; to the extent arguments were raised for the first time on appeal, they did not satisfy the standard for reversal.

## Legal Principles

- MARPOL’s assignment of primary survey and certification responsibilities to the flag state does not, by itself, bar port-state enforcement within the port state’s territory.
- APPS may be applied in U.S. ports to “any person” who knowingly violates MARPOL or implementing regulations, including individuals who issue false compliance certifications during port-state control.
- An indictment is generally sufficient if it tracks the statutory elements, references the statute charged, and states enough facts to inform the defendant of the accusation and permit a double-jeopardy bar.
- Jury instructions are reviewed in context as a whole; unpreserved instructional challenges require a showing meeting the applicable plain-error/reversal standard.

## Conclusion

The Eleventh Circuit held that APPS authorizes the United States to prosecute a foreign-appointed MARPOL surveyor for knowingly issuing false MARPOL compliance certifications aboard a foreign-flag vessel while it is docked in a U.S. port, and it affirmed Pena’s conviction against challenges to jurisdiction, the indictment, and the jury instructions.


United States v. Pena, 684 F.3d 1137 (11th Cir. 2012)