The opinion of the court was delivered by: Mcmahon, District Judge.
DECISION AND ORDER DENYING DEFENDANT MITLOF'S PRETRIAL MOTIONS
The charges in this case arise from the ill fated voyage of a boat named the "Conservator," which was owned by defendant Joseph Mitlof and captained by defendant Daniel Sheehan. On August 23, 1998, the Conservator—a tri hull, three open pontoon flat deck vessel—capsized on the Hudson River while ferrying passengers from Nyack to Tarrytown. One passenger, an eighty-six year-old man, died in the water.
In indictment 01 Cr. 466, filed with the Court on May 11, 2001, Mitlof and Sheehan are charged with violating the manslaughter statute applicable to owners, charters, and captains of vessels, in violation of Title 18, United States Code section 1115, and with conspiring to violate the so-called "Seaman's Manslaughter Act" in violation of the federal general conspiracy statute, 18 U.S.C. § 371. Mitlof is separately charged, in the same indictment, with wire fraud in connection with false advertisement over the Internet. On September 17, 2001, the Government filed a superseding indictment; it made no changes in the charges material to the pending motions.
Defendant Mitlof has filed a motion seeking dismissal of counts one and three, the conspiracy and manslaughter counts in which he is named. Defendant also asks that the Court issue an order directing the Government to provide defendant with a bill of particulars and additional discovery.
Factual Allegations of the Government
The Government sets forth the following factual allegations in the indictment in support of the manslaughter and conspiracy counts:
Joseph Mitlof was the owner of Hudson Valley Waterways, a business that provided water taxi service and tour service in 1998 on the Hudson River operating out of Tarrytown, Piedmont, Nyack, Ossining and Haverstraw, New York. Daniel Sheehan was a licensed U.S. Merchant Marine Officer employed by Hudson River Waterways to captain vessels on the Hudson River.
Federal regulations mandate that any vessel carrying more than six passengers, including at least one for hire, may only be operated if it has on board a valid United States Coast Guard ("Coast Guard") certificate of inspection ("COI"). The COI must include, among other things, the routes the vessel is permitted to travel and the maximum number of passengers it is permitted to carry. If there is any change in the character of the vessel or in its route, equipment, ownership or operation, the owner is required to request an amended COI from the Coast Guard. See 46 Code of Federal Regulations §§ 176.100, 176.103, 175.110 & 176.120.
Mitlof purchased the Conservator in July 1998 from the Norwalk Aquarium, which had used the vessel for short educational trips on the Norwalk River. On August 22, 1998, while being piloted by Sheehan, the Conservator took on water while carrying 12 passengers on the Hudson River. On August 23, 1998, the Conservator embarked on another voyage along the Hudson River, this time carrying 29 passengers, more than were permitted under the Norwalk COI. A few minutes into the voyage, the Conservator once again began to take on water. It then capsized, resulting in the drowning death of one of its passengers, Dr. Milton Salkind.
At the time of its purchase, the Conservator was certified by the Coast Guard (i) for limited use in the Norwalk, Connecticut Harbor area, (ii) to carry no more than 20 passengers and (iii) to be used not more than one mile from shore, on voyages not to exceed 30 minutes in duration. Unlike the Norwalk Connecticut Harbor area, which is a placid body of water, the Hudson River is subject to tidal conditions, high winds and strong currents. In the vicinity of the Tappan Zee Bridge, where the Hudson Valley Waterways operated, the river is over two miles wide as compared to the Norwalk River, which is less than a mile across.
The Government alleges that Mitlof knew he was required to obtain an amended COI from the Coast Guard before he could operate the Conservator as part of a water taxi service in the Hudson River. As evidence it cites defendant's unsuccessful attempt to have another of his vessels, the "Aaron Burr," re-certified by the Coast Guard for use in the Tappan Zee Bridge area of the Hudson.
Aside from lacking a valid COI to operate as a water taxi on the Hudson River, the Government contends that the Conservator was physically unfit to carry passengers on the Hudson. According to the indictment, the Conservator had numerous mechanical and structural deficiencies, such as: improper electrical wiring; faulty pumps and valves (which permitted the build-up of water in the vessel); pontoons that were not watertight; and life preservers in poor condition (some of them with straps knotted together). Post accident reports by the Coast Guard and the New York State Police detail the vessel's poor condition.
Defendant Mitlof's Challenge to the Indictment
Mitlof moves for dismissal of all charges except Count IV, which charges him with wire fraud. He seeks dismissal of count III by challenging the constitutionality of § 1115, arguing that it is both vague and over broad. He contends that count I, conspiring to violate § 1115, must be dismissed because it is not possible to conspire to commit manslaughter.
1. The Motion to Dismiss Count III of the Indictment is Denied.
Defendant's challenge to the constitutionality of the "Seamans Manslaughter Statute" is without merit. Title 18, United States Code, section 1115 provides that:
Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
Defendant contends that this statute is unconstitutionally vague. He relies primarily on City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Morales involved a city ordinance that allowed a police officer to order any person whom the officer reasonably believed to be a "gang member loitering in any public place" to disperse. Id. at 47, 119 S.Ct. 1849 If that person failed to obey the order to leave, he was guilty of a crime. Id. The Court found the ordinance to be unconstitutional in that it contained no mens rea requirement and infringed on constitutionally protected rights. Id. at 55, 119 S.Ct. 1849. The Court held that the ordinance reached a "substantial amount of innocent conduct," and conferred "vast discretion on police." Id. at 60–61, 119 S.Ct. 1849.
Section 1115 is nothing like the anti-loitering ordinance challenged in Morales. Because Section 1115 implicates no constitutionally protected conduct, such as the right to assemble, defendant's vagueness challenge must be examined in light of the facts of the particular case. See United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993). Such a statute can be struck down "only if the enactment is impermissibly vague in all of its applications." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 489, 495, 102 S.Ct. 1186. I cannot say that of Section 1115.
The Court asks two questions to determine whether a statute is impermissibly vague in all its applications. First, does the statute give the person of ordinary intelligence a reasonable opportunity to know what is prohibited? Second, does it provide explicit standards for those who apply it? Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Whittaker, 999 F.2d at 42; Nadi, 996 F.2d. at 550. A statute is not unconstitutionally vague if the criminal offense is defined "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender, 461 U.S. at 357, 103 S.Ct. 1855.
The statute, as applied to defendant Mitlof, requires that a loss of life result from "an owner's fraud, neglect, connivance, misconduct, or violation of law." 18, U.S.C. § 1115. The indictment alleges that defendant's conduct with respect to his operation of the Conservator as a water ferry caused the death of passenger Dr. Salkind. Among the allegations are that: defendant operated the Conservator as a water taxi even though he knew the vessel did not have a valid COI from the Coast Guard; defendant was aware that the vessel was not suited for commercial use on the Hudson River; defendant was aware that the Conservator had serious mechanical and structural problems ...