United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's motion for a
pretrial ruling on disputed jury instructions (Dkt. No. 249).
Having thoroughly considered the parties' briefing and
the relevant record, the Court DENIES the motion for the
reasons stated herein.
Randall Fox is charged by indictment with conspiracy to
violate the Clean Water Act, 33 U.S.C. §§
1319(c)(A)(2) and 1321(b)(3) (“CWA”), and the Act
to Prevent Pollution from Ships, 33 U.S.C. § 1901,
et seq. (“APPS”), as well as a violation
of APPS and its implementing regulations, 33 U.S.C. §
1908(a), 18 U.S.C. § 2, and 33 C.F.R. §§
151.10(a)-(b), 155.350. (Dkt. No. 4.) Defendant's case
was initially adjudicated by the Honorable Robert S. Lasnik,
but was reassigned to this Court on February 21, 2018. (Dkt.
No. 246.) A jury trial is set for this matter on April 2,
2018, and Defendant has filed this motion to obtain a ruling
on the CWA and APPS offense elements that the jury will be
instructed on at trial.
section draws on undisputed facts provided by the parties in
prior filings. In 2013, Defendant began working on the
F/V Native Sun (“Native Sun”),
a commercial fishing boat owned by his father, Bingham Fox.
(Dkt. Nos. 110 at 2, 141 at 1.) Defendant eventually became
the captain of the Native Sun in June 2013. (Dkt.
No. 110 at 2.) During this time, the boat was accumulating
enough water in the machinery-space bilges of its engine room
that the water needed to be drained while the boat was at
sea. (Dkt. Nos. 4 at 5, 141 at 1.) To drain the water,
Defendant operated a submersible pump in the Native
Sun's engine room that discharged the water through
a hose and over the side of the boat. (Dkt. No. 141 at 2.)
Defendant did not equip this mechanism with any kind of oil
separating equipment, bilge monitor, or bilge alarm.
August 2013, the Native Sun was on a fishing trip
off the coast of Washington. (Dkt. No. 110 at 2.) Anthony
Zavala, a crew member on that trip, recorded a video of the
hose discharging bilge water from the engine room into the
sea. (Dkt. No. 42 at 2.) A copy of the video was eventually
provided to the U.S. Coast Guard. (Dkt. No. 110 at 2.) On
September 8, 2013, several Coast Guard agents inspected the
Native Sun while it was docked in Blaine,
Washington. (Id.) The agents discovered the
submersible pump and hoses in the engine room bilges and
concluded that the hose had oil in it. (Dkt. Nos. 50 at 2,
110 at 2.)
April 4, 2016, Defendant and Bingham Fox were charged for
their conduct involving the alleged unlawful discharge of
oily mixtures from the Native Sun. (Dkt. No. 4.)
Both Defendants pled not guilty and the case was set for a
jury trial. (Dkt. No. 11.) The parties submitted jury
instructions that disputed the elements required to prove
both the APPS and CWA offenses. (Compare Dkt. Nos. 103
at 48, with 105-2 at 2.) For the APPS charge,
Defendant argued that the Government must prove that he knew
the discharged water contained oil, as defined by the
applicable regulations. (Dkt. No. 105-2 at 5.) The Government
argued that the Defendant merely had to know that he was
discharging “machinery-space bilge water” because
such water is an oily mixture, as a matter of law. (Dkt. No.
103 at 48.) As to the CWA charge, the parties disagreed about
what elements the Defendant had to have knowledge of to be
convicted. (Compare Dkt. Nos. 103 at 55,
with 105-2 at 1.)
pretrial conference, Judge Lasnik suggested that he would
instruct the jury on the APPS offense in line with the
Government's proposed instruction. (Dkt. No. 249 at 4.)
Defendant asserts that based on Judge Lasnik's comments,
he decided to change his plea and plead guilty as charged.
(Dkt. Nos. 137, 141.) Defendant provided a written factual
basis that he agreed was sufficient to make him guilty of
both crimes. (Dkt. No. 141.)
Fox proceeded to trial. (Dkt. No. 159.) At the close of
evidence, Judge Lasnik provided jury instructions on the APPS
and CWA offenses that were similar to those Defendant had
proposed prior to pleading guilty. (Dkt. No. 172 at 20, 23.)
Bingham Fox was convicted of violating the CWA and acquitted
of conspiracy to violate the CWA or APPS. (Dkt. No. 176.)
Following trial, Defendant filed a motion to withdraw his
guilty plea. (Dkt. No. 190.) He asserted that the factual
basis provided with his plea was not sufficient to find him
guilty based on the instructions used in his father's
trial. (Id. at 5-7.)
hearing argument from both parties, Judge Lasnik granted
Defendant's motion to withdraw his guilty plea. (Dkt.
Nos. 203, 205.) Judge Lasnik ruled that there were
“fair and just” reasons to allow Defendant to
withdraw his guilty plea. (Dkt. No. 205 at 6.) The Judge made
clear, however, that the jury instructions given in Bingham
Fox's trial were not necessarily reflective of the
instructions Defendant would receive during his trial.
(Id. at 4-5.) He also stated, in no uncertain terms,
that the Court would not be ruling on jury instructions until
trial. (Dkt. No. 252-2 at 21) (Judge Lasnik: “I did
want Mr. Fox to realize that he's not likely to get the
same instruction that Bingham Fox did. It is going to be
decided on a fact basis at the time of trial. So as long as
he goes into that with his eyes wide open.”)
this procedural history in the background, Defendant asks
this Court to issue a pretrial ruling regarding the offense
elements of the APPS and CWA charges that will be given to
the jury at trial. (Dkt. No. 249 at 2-3.) The Government
agrees that “a preliminary ruling on the jury
instructions . . . would be beneficial to the parties . . .
.” (Dkt. No. 252 at 1.)