The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
On April 5, 2011, defendant Michael Caruso ("Defendant") was convicted, after a bench trial before U.S. Magistrate Judge Viktor V. Pohorelsky, of conducting an unauthorized business operation on federal park land in violation of 36 C.F.R. § 5.3. Conducting an unauthorized business operation is a Class B Misdemeanor under18 U.S.C. § 3559(a)(7) and a petty offense as defined by 18 U.S.C. § 19. On the same date, the magistrate judge imposed a fine of $250.00 and a special assessment of $10.00. The case is now before this court on Defendant's timely appeal of the conviction pursuant to 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2)(B). For the reasons set forth below, Defendant's conviction is affirmed.
On the morning of June 4, 2010, by the waters of Jamaica Bay, in Kings County New York, a unit of the Gateway National Recreation Area, an off-duty U.S. Park Police Officer observed Defendant, a retired New York City Police Officer and a duly licensed New York State commercial fisherman, offloading 15 crates of bunker fish from a boat to a van parked on Floyd Bennett Field. A second U.S. Park Police Officer arrived and issued Defendant a violation notice charging him with unauthorized commercial fishing in violation of 36 C.F.R. § 2.3(d)(4). (App. at 1.) *fn2 The officer wrote the following probable cause statement in the violation notice:
I responded to investigate a report of commercial fishing in the area of the model airplane field located in Floyd Bennett Field. I observed 3 individuals offloading numerous large crates from a boat to a van. The crates contained hundreds of bait fish (bunker) in each container. I made contact with the def[endant] who did possess a valid commercial state fishing license and explained to him that he was conducting this operation on federal property.
On February 3, 2011, the magistrate judge conducted a pre-trial hearing during which the government confirmed that the violation notice would serve as the charging instrument for the trial.*fn3 (App. at 5.) At the same hearing, the government also notified the court and Defendant that it probably would amend the charges and planned to do so by informing the court and Defendant by letter. (App. at 11.) Defendant did not object to the government's proposed method of amending the charges. (Id.) Accordingly, the court set February 9, 2011 as the deadline for amending the charges and March 14, 2011 as the date for trial. (App. at 11-12.)
By letter dated February 9, 2011, but not received until February 15, 2011, the government informed Defendant that it was amending the violation notice to add three Class B Misdemeanor charges, including the business operation charge. (App. at 15.) The letter requested Defendant to "confirm in writing your acceptance of this letter as an amendment to the charging instrument." (Id.) On February 16, 2011, Defendant sent a reply letter to the government wherein Defendant: 1) confirmed receipt of the government's February 9, 2011 letter; 2) asked the government to redact certain personal information about him from the court's Electronic Case Filing System; 3) notified the government that it erred in its citation to the Code of Federal Regulations regarding one of the proposed amended charges; and 4) requested the government to comply with court deadlines. (App. at 18.) In his February 16, 2011 letter Defendant did not object to the government's proposed amended charges. (Id.) On February 17, 2011, the government sent Defendant a second letter wherein it again amended the violation notice by correcting the citation error made in the February 9, 2011 letter. (App. at 20.) For a third time, Defendant made no objections to the government's amendment procedure.
On March 14, 2011, immediately before the start of trial, the government amended the violation notice a fourth time by moving to dismiss two charges. (App. at 23.) Accordingly, the government stated it intended to proceed to trial only on the commercial fishing and business operation charges. (Id.) Because the government gave Defendant no prior notice of the proposed changes, Defendant objected to the timeliness of the government's dismissal of the charges; however, Defendant made no objection to the amendment itself. (App. at 31-32). Rather, the defense indicated that it might ask the court to provide it with some additional time prior to putting on its witnesses, in light of the dismissed charges. (App. at 31.) The court granted the request. (App. at 32.)
At the close of the government's case, Defendant moved for a judgment
of acquittal of all charges under Rule 29 of the Federal Rules of
Criminal Procedure ("Rule 29"). (App. at 126-27.) In addition to the
Rule 29 motion, Defendant also moved to dismiss the business operation
charge, pursuant to Federal Rule of Criminal Procedure
12(b)(3)(B) ("Rule 12(b)(3)(B)"),*fn4
on the ground that "the Court lacks jurisdiction to consider
the business operation charge because
the government has not filed any sort of valid charging document."
(App. at 134.) The magistrate judge granted the Rule 29 motion as to
the commercial fishing charge but denied it as to the business
operation charge. (App. at 148, 150.)
The magistrate judge reserved judgment on the Rule 12(b)(3)(B) motion, set a schedule for additional briefing on the motion and heard oral argument on April 5, 2011. (App. at 152, 205.) At the close of oral argument, the magistrate judge denied the Rule 12(b)(3)(B) motion, finding that the violation notice, as amended by the government's February 9, 2011 letter, constituted a sufficient charging instrument. (App. at 243-44.) Moreover, the magistrate judge rejected Defendant's argument that the court lacked jurisdiction over the business operations charge because "the violation noticed as it was filed originally provides the Court with jurisdiction." (App. at 244.) Immediately thereafter, the magistrate judge found Defendant guilty of violating 36 C.F.R. § 5.3 and imposed a fine of $250.00 and a special assessment of $10.00. (App. at 245, 251).
On appeal, Defendant argues the magistrate judge erred in finding the government's February 9, 2011 letter properly amended the violation notice, and, therefore, Defendant was never charged with violating 36 C.F.R. § 5.3. Consequently, pursuant to Rule 12(b)(3)(B), the magistrate judge was without jurisdiction to adjudicate Defendant's guilt on the business operation charge, and his conviction should be reversed. (See Def. Br.) This court heard oral argument on Defendant's appeal on April 5, 2012. (See Apr. 5, 2012 Hearing Transcript ("Hr'g Tr.").)