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United States v. Kaluza

United States District Court, E.D. Louisiana

May 30, 2013

UNITED STATES OF AMERICA
v.
ROBERT KALUZA and DONALD VIDRINE

         SECTION K

          David Gerger Shaun Clarke, TA. (La. Bar No. 24054) Dane Ball David Isaak, applying for admission pro hac vice Gerger & Clarke Attorneys for Defendant Robert Kaluza

          Of Counsel: John D. Cline Law Office of John D. Cline, applying for admission pro hac vice

          MEMORANDUM SUPPORTING MR. KALUZA'S MOTION TO DISMISS COUNTS 1-22 FOR FAILURE TO CHARGE AN OFFENSE AND LACK OF JURISDICTION (JOINED BY MR. VIDRINE)

          STANWOOD R. DUVAL, JR. JUDGE

         Table of Contents

         1. INTRODUCTION..................................................................................................1

         2. COUNTS 12-22 SHOULD BE DISMISSED: 18 U.S.C. § 1115 APPLIES ONLY WITHIN THE TERRITORIAL JURISDICTION OF THE UNITED STATES. IT DOES NOT APPLY TO A FOREIGN-FLAG VESSEL ON THE HIGH SEAS OUTSIDE U.S. WATERS THAT IS NOT ERECTED ON THE OUTER CONTINENTAL SHELF.....................................................................................................................2

         A. The Deepwater Horizon was Outside U.S. Territorial Jurisdiction........5

         B. Extraterritorial Jurisdiction.......................................................................6

i. Legislative History: 1838.................................................................6
ii. 1871....................................................................................................6
iii. 1909....................................................................................................7
iv. 1948....................................................................................................7

         C. The Outer Continental Shelf Lands Act Does Not Extend § 1115 to the Deepwater Horizon............................................................................8

i. Overview...........................................................................................8
ii. Fifth Circuit Precedent Establishes that OCSLA Jurisdiction Does Not Apply Here..................................................9
iii. The Deepwater Horizon Was Not Erected on the OCS and thus Was Not an OCSLA Situs.....................................................10

         D. Summary....................................................................................................15

         3. COUNTS 1-11 SHOULD BE DISMISSED: 18 U.S.C. § 1112 APPLIES ONLY WITHIN THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES. WHILE THIS JURISDICTION REACHES THE HIGH SEAS, IT DOES NOT APPLY TO FOREIGN-FLAG AND FOREIGN OWNED VESSELS...........16

         A. Special Maritime and Territorial Jurisdiction......................................16

         B. Counts 1-11 Should be Dismissed............................................................20

         4. CONCLUSION.....................................................................................................20

         1. INTRODUCTION

         At all times in this indictment, the Deepwater Horizon was a foreign owned, foreign-flag vessel located 48 miles offshore in the Gulf of Mexico-far outside U.S. territorial seas. In 5, 000 feet of water, the Horizon was not "erected on" the seabed: Rather it floated on giant pontoons, kept in place by thrusters and engines, not legs or even anchors. These undisputed facts have important legal consequences for Counts 1-22.

         Counts 12-22 charge "Seaman's Manslaughter" (better called "Ship Officer Manslaughter") under 18 U.S.C. § 1115. As explained below, § 1115 applies only within the territorial jurisdiction of the United States. It does not apply to a foreign-flag vessel outside U.S. territory that is not "erected on" the Outer Continental Shelf. Thus, Counts 12-22 should be dismissed.[1]

         Counts 1-11 charge "Involuntary Manslaughter" (better called "Gross Negligent Manslaughter") under 18 U.S.C. § 1112. Unlike § 1115, § 1112 does apply to vessels on the "high seas" 48 miles from shore-but only U.S. owned vessels. The Deepwater Horizon was foreign owned and foreign-flag. Thus, Counts 1-11 should be dismissed.

         Pretrial dismissal, although not common, is appropriate where the facts that would require dismissal are not reasonably in dispute. See, e.g., United States v. Radley, 632 F.3d 177, 184 (5th Cir. 2011) (affirming pretrial dismissal of indictment alleging commodities manipulation when the commodity trades fit within statutory exception); United States v. Flores, 404 F.3d 320, 324 n.6 (5th Cir. 2005) ("district court may make preliminary findings of fact necessary to decide the question of law presented by pre-trial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact" (citation omitted)). Judge Englehart recently cited Flores in dismissing a portion of the indictment in another case arising out of the Deepwater Horizon tragedy and its aftermath. United States v. Rainey, 2013 U.S. Dist. LEXIS 71117, at *13-*15, *30-*31 (E.D. La. May 20, 2013) (dismissing count). Here, the location and ownership of the Deepwater Horizon are facts that cannot reasonably be in dispute, and those facts require dismissal of Counts 1-22.[2] This motion starts with Counts 12-22.

         COUNTS 12-22 SHOULD BE DISMISSED: 18 U.S.C. § 1115 APPLIES ONLY WITHIN THE TERRITORIAL JURISDICTION OF THE UNITED STATES.

         IT DOES NOT APPLY TO A FOREIGN-FLAG VESSEL ON THE HIGH SEAS OUTSIDE U.S. WATERS THAT IS NOT ERECTED ON THE OUTER CONTINENTAL SHELF

         In 1838, Congress passed the predecessor to 18 U.S.C. § 1115 to punish ship captains and officers who negligently crash or mishandle vessels within the United States. Counts 12-22, however, charge manslaughter alleged to have occurred outside the U.S., on a foreign-flag and foreign owned vessel.[3] These counts should be dismissed for failure to charge an offense.

         There are two forms of criminal jurisdiction: territorial and extraterritorial. Territorial jurisdiction is the power of a sovereign state to punish criminal acts occurring within its territory. Extraterritorial jurisdiction is the ability of a nation, in certain circumstances, to punish criminal acts occurring outside its territory. As the Supreme Court has explained, federal statutes are presumptively limited to territorial application:

It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. . . . [U]nless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, we must presume it is primarily concerned with domestic conditions. The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law. When a statute gives no clear indication of an extraterritorial application, it has none.

Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869, 2877-78 (2010) (quotations and citations omitted, emphasis added); see also EEOC v. Aramco, 499 U.S. 244, 248 (1991).

         This year, the Supreme Court reaffirmed what it called the "presumption against extraterritoriality" in Kiobel v. Royal Dutch Petroleum Co., a case brought under the Alien Tort Statute alleging that U.S. companies aided the Nigerian military to rape, murder, and arrest protesters in Nigeria. 133 S.Ct. 1659 (2013). The Alien Tort Statute gives district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The Supreme Court noted that, although Congress can apply a federal law to overseas conduct, it must "evince a 'clear indication of extraterritoriality'" to do so. Kiobel, 133 S.Ct. at 1665 (quoting Morrison, 130 S.Ct. at 2883). And although the Alien Tort Statute applies to "any" civil action, "nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach." Id. Kiobel reviewed the history of Alien Tort litigation and noted-with particular relevance here-that: This Court has generally treated the high seas the same

as foreign soil for purposes of the presumption against extraterritorial application.

Id. at 1667 (citing Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989) (declining to apply the Foreign Sovereign Immunities Act to the high seas) and Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993) (declining to apply the Immigration & Nationality Act to the high seas)). Kiobel concluded:

[T]he presumption against extraterritoriality applies [and] nothing in the statute rebuts that presumption. "[T]here is no clear indication of ...

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