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United States v. Birzakovs

United States District Court, W.D. Louisiana, Lake Charles Division

May 17, 2019

UNITED STATES OF AMERICA
v.
VJACESLAVS BIRZAKOVS

          KAY MAG. JUDGE.

          REASONS AND RULING

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         The jury trial of this matter is currently set for May 20, 2019. In preparation for the trial, Defendant Vjaceslavs Birzkovs, through counsel, has filed objections and a Pretrial Memorandum (Rec. #55) to support the objections to the exhibits the Government intends to introduce at trial. At the Court's direction, the parties conferred and resolved a majority of the objections; the remaining objections (Rec. #61) to the Government's exhibits are before the Court. Photographs and/or Videos (exhibits 43, 48aa, 48bb, 48cc, 48dd, 49a- 49f)

         Relying on Federal Rule of Evidence 403, [1] Defendant argues that certain photographs and/or videos are unfairly prejudicial or are cumulative/duplicative which may create an "unfair suggestion that the discharge lasted much longer than it actually did."[2] The Government remarks that the videos that depict the discharge last from only a few seconds to a few minutes; it expects that the evidence and testimony at trial will establish that the duration of the discharge was several hours. The Court OVERRULES the objection and will permit the videos once the Government lays the proper foundation and authenticates each video after which if the videos become cumulative, the Court will entertain an objection through a side bar out of the hearing of the jury.

         Defendant also objects to multiple photographs of the alleged discharge as being duplicative and cumulative. The Government first maintains that it is premature to exclude the photographs as the trial has not yet begun. In addition, the Government remarks that it anticipates that the evidence will show that the photographs were taken from different angles at different times by different crew members, and that it does not intend to introduce an unnecessarily high number of photos. The Court agrees that this objection is premature but recognizes the potential for confusion. Accordingly, the Court OVERRULES the objection. Again, after the Government lays a proper foundation and authenticates the photographs, the Court will entertain an objection by Defendant out of the hearing of the jury to determine if the submission of the photographs is in violation of Federal Rule of Evidence 403. Oil Record Books and Diagrams (exhibits 3, 7, 14, 15, 17, 18, and 19)

         Relying on Federal Rule of Evidence 402, [3] Defendant objects to oil record books (ORB) and diagrams as irrelevant due to either the subject matter they cover, or because the timeframe they cover is outside of the timeframe of the charged conspiracy. The Government remarks that it has included on its preliminary exhibit list, various log books out of an abundance of caution because they may become relevant depending on how the testimony unfolds at trial, noting that it is aware of the Defendant's objections. As for the ORBs that predate the date of the alleged illegal discharge (April 24, 2017), the Government argues that the maintenance of the ORBs is highly regulated, [4] and thus there is probative value in allowing the jury to review both how Defendant Birzakovs maintained the ORBs and how the previous Masters maintained them.[5] Additionally, Defendant Birzakovs has indicated his intention to call an expert to testify as to the roles of various officers on ships such as the Ridgebury Alexandra Z, including the Master.

         The Court OVERRULES the objection and will admit the ORBs, conditionally, after the Government lays the proper foundation and authenticates same, if the legitimate reason for admitting the ORBs is to provide an example of following the regulations; in other words, to show the fact as to how the ORBs were to be recorded and maintained in compliance with the regulations. However, the Court will entertain an objection by Defendant if it is determined that the ORBs are being admitted as to the truth of the information contained therein, as opposed to the fact of the entry.

         Whistleblower Email (exhibit 10)

         The Government intends to introduce an email sent on August 8, 2017, from the whistle blower to the Coast Guard which describes and explains certain events occurring on board the vessel. This email led the Coast Guard to board and inspect the vessel which ultimately resulted in the charges presented in this case. Defendant objects pursuant for Federal Rule of Evidence Rules 401, 403, and 404 and argues that this email is hearsay because it is being presented for the truth of the assertions in the email and it includes "extraneous, uncharged issues."

         The Court is concerned that the email is being introduced for the truth of the matter asserted therein and recognizes that there are potential problems with the accuracy of what is being depicted or relayed in the email. The Court has not been informed as to whether the author of the email will be called as a witness at trial and thus will not be subject to cross-examination. Accordingly, the Court SUSTAINS Defendant's objection as to the email. However, the Court will allow the Government to reference the whistle blower complaint without going into the specific contents of the complaint.

         DNV Report (exhibit 37)

         Defendant objects to the DNV Report dated September 12, 2019, as being hearsay because it is being introduced for the truth of the matter asserted in the report. The Government argues that the DNV report is admissible as an exception to the rule against hearsay because it is both a present sense impression under the FRE 803(1) and it is a record of a regularly conducted business activity under FRE 803(6). The Government remarks that the report is digitally signed by the surveyor and contains the DNV seal, thus satisfying FRE 902(11) requirements. The Government further notes that the report was adopted by Defendant in his September 12, 2017 email to his employer. The report is a record of a regularly conducted business activity; however, a proper foundation must be made to show its relevancy and an appropriate person must explain the deficiencies contained therein. The Court admonishes the parties that in rendering his or her report, although an expert witness can refer to documents that are otherwise inadmissible, that does not in and of itself render the document admissible. The Court will defer ruling on the admissibility of the document itself after it hears the testimony of the witness through which the Government is trying to admit the documents.

         Audio Recording (exhibit 41)

         Defendant objects to an audio recording made by the whistle blower (the pump man). Defendant argues that the recording is hearsay, double hearsay, and virtually unintelligible. The Government presents a transcript of the recording which reveals a conversation between the whistle blower and the Chief Officer and argues that the audio recording is admissible under FRE 801(d)(2)(E)[6] and FRE 803(1). The Court SUSTAINS the objection finding that it is inadmissible hearsay and is not in furtherance of a conspiracy. However, the Court would ...


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