# Petition for Writ of Certiorari — West Indies Transport Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1838%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 992 ## Text Supreme Court, U.S. FILED 001747 may 18 200r No. 00-__._-»« OP ICE. OF THE CLERK Z In The Supreme Court of the United States ¢ WEST INDIES TRANSPORT CO., INC., WIT EQUIPMENT CO., INC., and W. JAMES OELSNER, Petitioners, UNITED STATES OF AMERICA, Respondent. e On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit ¢ PETITION FOR WRIT OF CERTIORARI ¢ ALAN ELLIs PeteR GOLDBERGER Counsel of Record PaMetaA A. WILK Law Orrices OF ALAN ELLIS 50 Rittenhouse Place Ardmore, PA 19003-2276 (610) 658-2255 Attorneys for Petitioner May 2001 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 AE EE EE PN QUESTIONS PRESENTED 1. In proceedings for execution of a criminal restitu- tion judgment, does the “clear error and manifest injus- tice” exception to the law of the case doctrine permit a court to reconsider the legality of the restitution order itself? - 2. In an environmental criminal case brought under various provisions of title 33, U.S. Code: e Does the pleading and proof of an aiding and abetting theory under 18 U.S.C. § 2 make the case one involving “an offense under this title [i.e., title 18, U.S. Code],” within the meaning of 18 U.S.C. § 3663(a), the restitution provision of the Sentencing Reform Act? e Is the federal agency with responsibility to attempt remediation of the public harm resulting from the violations, to the extent that the perpetrators do not, a “victim” of the offense within the meaning of 18 U.S.C. § 3663(a), the restitution statute? ii LIST OF ALL PARTIES The caption of the case in this Court contains the names of all parties (West Indies Transport Co., Inc., WIT Equipment Co., Inc., W. James Oelsner and the United States). Witwater Corporation intervened in the action below and was subject to the final order of the district court, but its appeal was not consolidated with the peti- tioners’ and remains pending in the court of appeals. ili TABLE OF CONTENTS Page SUPE DIUU FMMEIUU LEED 6 ccc ccccccvccccassesecees i SE GE GURMle SURMENUED cece cbcciccnccccscveseeene ii ok be eeee gues nsanesaneeen iv I Te PP ERIR IEE oc cicctsesccevicccsances Vv | ACO LECT ESET ETE TELE CCTET ETE Cree rT 1 EE CIS bd cns 6 chsed sess eevecdvesssness 1 i ccs 66505646 064600405460550500000000 44 2 FEDERAL STATUTES INVOLVED....... hee k ears 2 STATEMENT OF THE CASE............-.0-.0200-- 6 Ss ccc cckbbcbtseeecevevsacs 7 EE WD vc Cabcanisceeciecebeccacs 9 c. Statement of Lower Court Jurisdiction........ 12 REASONS FOR GRANTING THE WRIT ........... 12 The court below departed from proper standards when it upheld the enforcement of a transparently illegal restitution order, even though that order was summarily upheld on direct appeal ......... 12 a. Notwithstanding a prior appellate affirmance, an illegal sentence should always be subject to re- examination when the government invokes the court’s authority to enforce the judgment....... 13 iv TABLE OF CONTENTS - Continued Page The requirement of the sentence that peti- tioners must pay “restitution” for the cost of remediating environmental damage caused by criminal violations of title 33, U.S. Code, is plainly illegal, and the indictment’s averment of aiding and abetting liability under 18 U.S.C. § 2 cannot bring the case within statutory lan- guage limiting restitution to offenses under UE OD csc osnhancuceacsccacvnchesedassuanseas 17 CORICL ISIN oc ccccceccnscgsedsccsasessiacsccces 21 INDEX TO APPENDIX Not-for-Publication Memorandum Opinion of the Court of Appeals (Dec. 19, 2000)....... App. 1 District Court Memorandum and Order (dated July 19, 1999, filed July 22, and entered July 23, 1999), published as United States v. West Indies Transport Co., 57 F.Supp.2d 198 (D.V.L. 1999)... ccccccccccsscccssecccessese App. 3 District Court unpublished opinion and order denying reconsideration (dated March 24, 2000, filed March 29, entered on the docket April 3, 2000) ............-eeeeeeeeeeceneee App. 16 District Court opinion and order (Dec. 16, 1998), published as United States v. West Indies Transport Co., 35 F.Supp.2d 450 (D.V.I. DO vk ncdececcdavecdatsaswennasenadadnans App. 38 Opinion on direct appeal (filed Oct. 15, 1997), published as United States v. West Indies Trans- port, Inc., 127 F.3d 299 (3d Cir. 1997) ........ App. 56 Vv TABLE OF AUTHORITIES Page Cases Arizona v. California, 460 U.S. 605 (1983)............. 15 Callanan v. United States, 364 U.S. 587 (1961) ........ 18 Christianson v. Colt Industries Operating Corp., GO UD CBO CRG oan sbcdssccecszatictouann 15, 16 Dobbs v. Zant, 506 U.S. 357 (1993) (per curiam)...... 15 Hughey v. United States, 495 U.S. 411 (1990) ......... 19 Nye & Nissen Corp. v. United States, Be SA. GES CRG oc ccdccvasnensineaehageeees 18 Pereira v. United States, 347 U.S. 1 (1954) la ee acre whe 18 Pinkerton v. United States, 328 U.S. 640 (1946)........ 18 Standefer v. United States, 447 U.S. 10 (1980)......... 18 United States v. Felix, 503 U.S. 378 (1992)............ 18 United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991) .... 19 United States v. Minneman, 143 F.3d 274 Cre Ga See a6 abacus onnacdescseseee 19 STATUTES AND RULES Se UE. OD bs vc cscccenabseeeass asian passim Se Ws Or head bcd keinecntesesssae oa 7, 18 Be UK & Ts caseccvsrissaneecevesasseenisheee 7 SO UA & Bee oh bce dale yeunnniedssee ee 16 UAC. 6M... cc ee 4, 6, 12 vi TABLE OF AUTHORITIES - Continued Page OD WBE, © SOUING oav cdc dicccicceuasi 3, 12, 14, 17; 19 OF CL: © HOMES cn. ocvccsccssccsstsdecsae 2 ODIGE: 6 WOE. oo on ccnsvedsivsacnsascnatesbeaetant 12 1 OK. 6 SNES i ois ck scicindcssseee 2 CURE 4... «io eee 16 33 U.S.C. §§ 403, 406, 1311, 1319(c)(1); 1319(c)(2)(A), 1411(a)(1), 1415(b)(1)..........0eeeee. 7 UR: 6 WINE, GB oisciacstceneieeedseseeen 12 Be WEE: 0 Esko doccccccasncstieeeec eee 7 Fed.R.Crim.P. 35(a) (former vers.) ..........s+e+e0:: 16 Re Bie FEF. SES. Be nc vccesscveckevescusseaetes 2 S.Ct. Rule 14.1(g)(ii) .........00ceeeceeeceeeeeeeeeees 12 PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT WEST INDIES TRANSPORT CO., INC., WIT EQUIP- MENT CO., INC., and W. JAMES OELSNER jointly peti- tion this Court for a writ of certiorari to review the judgment and memorandum opinion of the United States Court of Appeals for the Third Circuit filed and entered on December 19, 2000. OPINIONS BELOW The Third Circuit’s Memorandum Opinion (per Greenberg, J., with Mansmann & Alito, JJ.) was filed December 19, 2000. It is not yet noted in a table of the Federal Reporter. A copy is App. 1. The district court’s Memorandum and Order dated July 19, 1999 (filed July 22, and entered July 23, 1999) denying the petitioners’ motions, is App. 3. It is published as United States v. West Indies Transport Co., 57 F.Supp.2d 198 (D.V.I. 1999) (Brot- man, J.). This district court’s opinion and order denying reconsideration is dated March 24, 2000; it was filed March 29 and entered on the docket April 3, 2000. It is not published; a copy is App. 16. An earlier opinion of the district court deciding preliminary questions in this mat- ter is published at 35 FSupp.2d 450 (D.V.L., filed Dec. 16, 1998). A copy is App. 38. The Third Circuit’s published opinion on direct appeal is United States v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997). A copy is App. 56. JURISDICTION The judgment of the United States Court of Appeals for the Third Circuit affirming the denial of petitioners’ motions to quash a writ of execution against a certain vessel, in order to satisfy a joint and several order of restitution in a criminal case, was filed and entered on December 19, 2000. App. 1. On March 12, 2001, under No. 00A784, Justice Souter extended the time for filing this petition on joint application of the three petitioners to and including May 18, 2001. This petition is timely filed on or before that date. Rules 13.1, 13.3, 30.1; 28 U.S.C. § 2101(c). Petitioners invoke this Court’s jurisdiction under 28 U.S.C. § 1254(1). FEDERAL STATUTES INVOLVED The aiding and abetting provision of the federal criminal code, 18 U.S.C., provides: § 2. Principals (a) Whoever commits an offense against the United States or aids, abets, counsels, com- mands, induces or procures its commission, is" punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. The Sentencing Reform Act of 1984, incorporating in this respect the Victim Witness Protection Act of 1982, also part of title 18, U.S. Code, provided in part, at the time of the offenses involved, to wit, at the end of 1993: NEE RANE BN Rina) 0H on Se handle 3 § 3663. Order of restitution (a)(1) The court, when sentencing a defen- dant convicted of an offense under this title, or under subsection (h), (i), (j), or (n) of section 902 of the Federal Aviation Act of 1958 (49 U.S.C. 1472), may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make res- titution to any victim of such offense. ++ + § 3664. Procedure for issuance and enforcement of order of restitution + + + + (h) An order of restitution may be enforced — (1) by the United States - (A) in the manner provided for the collection and payment of fines in subchapter B of chapter 229 of this title; or (B) in the same manner as a judg- ment in a civil action; and (2) by a victim named in the order to receive the restitution, in the same man- ner as a judgment in a civil action. + + * * Subchapter B of chapter 229 of title 18, U.S. Code, pro- vided, in pertinent part: § 3613. Civil remedies for satisfaction of an unpaid fine (a) Lien. - A fine... is a lien in favor of the United States upon all property belonging to the person fined. The lien arises at the time of the entry of the judgment and continues until the liability is satisfied, remitted, or set aside, or until it becomes unenforceable pursuant to the provisions of subsection (b).. . . + + & * (c) Application of other lien provisions. - The provisions of sections 6323, 6331, 6332, 6334 through 6336, 6337(a), 6338 through 6343, . . . of the Internal Revenue Code of 1954 (26 U.S.C. . . .) and of section 513 of the Act of October 17, 1940, 54 Stat. 1190, apply to a fine and to the lien imposed by section (a) as if the liability of the person fined were for an internal revenue tax assessment... . + + + + (e) Alternative enforcement. — Notwith- standing any other provision of this section, a judgment imposing a fine may be enforced by execution against the property of the person fined in like manner as judgments in civil cases, but in no event shall liability for payment of a fine extend beyond the period specified in sub- section (b) [i.e., 20 years]. At the time execution proceedings commenced, to wit, in November 1998, the restitution enforcement provisions read, in pertinent part: § 3664. Procedure for issuance and enforcement of order of restitution + + + % (m)(1)(A)(i)_ An order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title; or (ii) by all other available and reason- able means. (B) At the request of a victim named in a restitution order, the clerk of the court shall issue an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in the restitution order. Upon registering, recording, docketing, or indexing such abstract in accordance with the rules and requirements relating to judgments of the court of the State where the district court is located, the abstract of judgment shall be a lien on the property of the defendant located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State. + + + Subchapter C of chapter 227 and subchapter B of chapter 229 of title 18, U.S. Code, provide, in pertinent part: § 3574. Implementation of a sentence of fine The implementation of a sentence to pay a fine is governed by the provisions of subchapter B of chapter 229. § 3613. Civil remedies for satisfaction of an unpaid fine (a) Enforcement. —- The United States may enforce a judgment imposing a fine in accor- __ dance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law. ... “ meyer + + + (c) Lien. —- A fine imposed pursuant to the provisions of subchapter C of chapter 27 of this title, or an order of restitution made pursuant to i section 2248, 2259, 2264, 2327, 3663, 3663A, or 3664 of this title, is a lien in favor of the United States on all property and rights to property of the person fined as if the liability of the person fined were a liability for a tax assessed under the Internal Revue Code of 1986. The lien arises on the entry of judgment and continues for 20 years or until the liability is satisfied, remitted, set aside, or is terminated under subsection (b). * 2 2 & (f) Applicability to order of restitution. — In accordance with section 3664(m)(1)(A) of this title, all provisions of this section are available to the United States for the enforcement of an order of restitution. STATEMENT OF THE CASE This petition presents a basic question of legality in the imposition and enforcement of a federal criminal sentence. The Third Circuit affirmed an order of restitu- tion that the governing statute forbids, and then affirmed UMAR Aiton sete ain ta eA NL erent. ne Pacem a dubious enforcement of that order against property not owned by the defendant-petitioners. a. Procedural History The petitioners were convicted after a jury trial in the District Court of the Virgin Islands for federal environ- mental and immigration offenses, 33 U.S.C. §§ 403, 406 (Rivers and Harbors Act); 1311, 1319(c)(1), and 1319(c)(2)(A) (Clean Water Act); 1411(a)(1) and 1415(b)(1) (Ocean Dumping Act). The indictment also alleged lia- bility under 18 U.S.C. § 2, the aiding and abetting statute. The petitioners were also convicted under 18 U.S.C. § 1546 (visa fraud) and 371 (conspiracy to defraud the United States with respect to employment taxes on for- eign workers and to commit visa fraud), and for “Corrupt Organizations” (a local Virgin Islands RICO offense) in violation of 14 V.I.C. § 604. On January 5, 1996, Judge Brotman sentenced peti- tioner Oelsner to serve concurrent terms aggregating 37 months’ imprisonment, to be followed by three years’ supervised release, and to pay special assessments, $95,500 in fines and up to $1,440,450 in restitution (sub- ject to rebate if the cost of pollution abatement proved to be less), although the payee of that restitution was not specified.1 The corporate petitioners were sentenced to 1 Neither the sentencing transcript nor the judgments say expressly to whom the restitution is payable, but the court later clarified that the United States is the recipient intended by the district court. App. 47-48, 55. It is the Coast Guard which undertook the salvage and clean-up operation, or at least the supervision of that operation, which resulted from the pay fines and restitution. As part of the judgment in the criminal case against each of the three petitioners, the district court declared that 16 enumerated vessels and properties were “associated with the defendant [Oelsner]” and were “subject to lien” for satisfaction of the judgment. Included among these was the vessel “Wit- tug.” Judgment was entered March 26, 1996. On direct appeal, the Third Circuit affirmed in a published opinion. App. 56. This Court denied certiorari. United States v. West Indies Transport Co., et al., 522 U.S. 1052 (Jan. 12, 1998) (No. 97-931). On April 16, 1996, the United States recorded a lien against the Wittug at the Recorder of Deeds, Division of St. Croix, to satisfy the $1.44 million judgment previously entered against petitioner Oelsner. On November 9, 1998, the government applied for a writ of execution on the vessel Wittug. The same day, Witwater Corp., which was not a criminal defendant and is not a petitioner herein, filed an emergency motion to intervene, claiming it was the owner of the Wittug. The district court issued the requested writ on November 12. Shortly thereafter, the defendants (petitioners herein) also opposed execution, petitioners’ alleged environmental violations. (In fact most of the work has been and is being done by the petitioners themselves.) As the district court stated at sentencing, “[T]he Coast Guard, after having given allowance to everything that this defendant has done in terms of clean-up, finds that it would . . . still take $1,440,450 to complete. I will accept that figure.” Tr. at 87. No loss to any victim was incurred from the visa fraud offenses, and no restitution was imposed on that account or on account of the conspiracy to defraud, nor was restitution part of the judgment of sentence on the one Virgin Islands Code offense. NIA ALAR Te PARE NRRL I di Daily ies rata filing a motion to quash the writ of execution on various grounds. Witwater also filed a civil action seeking the same relief. The district court granted the motion to inter- vene and scheduled a hearing. App. 38 (United States v. West Indies Transport Co., 35 F.Supp.2d 450, 455, 458 (D.V.I. 1998)). After hearing, by opinion and order filed July 19, 1999, the district court denied petitioners relief on the merits. App. 3 (United States v. West Indies Transport Co., 57 F.Supp.2d 198 (D.V.I. 1999)). Petitioners timely sought reconsideration, which was also denied. App. 16. On appeal by petitioners, the Third Circuit again affirmed, essentially adopting the decisions of the district court. App. 1. This petition followed. Witwater Corp.’s separate appeal was not consolidated; it remains pending before the Third Circuit. b. Statement of Facts The facts as related at trial are summarized in the light most favorable to the verdicts, in the Third Circuit’s decision on direct appeal, App. 56, as follows: West Indies Transport, Inc. and WIT Equipment Co. (collectively “West Indies Transport”) oper- ated several businesses in Krum Bay, St. Thomas, including a dry dock, ship repair facil- ity, and barge towing company. West Indies Transport’s chief operating officer was W. James Oelsner. In 1987, West Indies Transport obtained permits to use five barges as fixed docks for its other vessels. In 1989, Hurricane Hugo seriously damaged some of these barges, shifting them from their permitted positions. West Indies Transport did not attempt to repair, reposition, or salvage these barges after the storm. Instead, 10 it used these barges as docks, repair facilities, and housing for employees in their new unauthorized locations. In the process, West Indies Transport attached the barges perma- nently to shore, constructed walkways and ramps between the barges for use by vehicles and employees, and wired them for electricity. To staff its facilities, West Indies Transport hired an overseas agent to recruit Filipino workers. The Filipino workers were instructed to apply for D-1 visas intended for non-immi- grant foreign maritime crewmen, not the H-2 visas [allegedly] required by law. The “West Indies Transport crewmen” never put to sea. Instead, West Indies Transport housed them in a converted shipping container on a barge and used them as dock workers. The Filipino workers were paid approximately $400 per month for a 56-hour work week. By using underpaid[,] illegal[,] foreign employees, West Indies Transport was able to reduce significantly its expenses for wages and wage taxes. In the course of its repair operations, West Indies Transport [allowed] several different [objects and substances, which the indictment described as] pollutants into the navigable waters of the United States. Witconcrete Il, a ferro-concrete barge, was heavily damaged in Hurricane Hugo. The stern was partially severed from the remainder of the barge, attached only by metal reinforcing bars, known as rebar. West Indies Transport did not attempt to repair, break up, or salvage the damaged stern. Instead, it cut the rebar by which the stern was attached and dumped the stern into the bay. Later, when West Indies Transport decided to ——T 11 move the barge, it cut additional protruding pieces of rebar from the structure and dumped them in the water. West Indies Transport also sand-blasted the hull of a vessel moored in its facility, causing paint chips and sand to fall into Krum Bay near the main water intake for the St. Thomas desalinization plant. The toilet system on the Witrollon, the barge on which illegal Fili- pino workers were housed, discharged raw sew- age directly into the bay. West Indies Transport also collected steel scrap from its repair opera- tions and dumped it twelve miles out at sea under cover of darkness. West Indies Transport never obtained a permit for any of these pollu- tion discharges. App. 58-59 (127 F.3d at 303-04). With respect to the enforcement of restitution, the district court found, in part: On April 19, 1999, a hearing was held, during which the Court heard evidence concerning the cost of the remediation that had been done and that remained to be done. While the parties agreed to the amount that Oelsner had expended in performing part of the clean-up, they disputed the amount of the projected cost for the remaining remediation. In light of this dispute, the Court declined to reduce the amount of restitution due and Owing, stating that “once the clean-up is complete, Oelsner may move... to reduce the restitution amount indicated in the Oelsner judgment. Until that time, the amount will not be reduced.” United States v. West Indies Transport Co., Inc., 57 F.Supp.2d. 198, 202 (D. Virgin Islands 1998). App. 23. 12 c. Statement of Lower Court Jurisdiction Under Rule 14.1(g)(ii) The District Court of the Virgin Islands had subject matter jurisdiction of the underlying criminal case under 48 U.S.C. § 1612(a), (c); the indictment alleged federal offenses committed there. The court of appeals had juris- diction under 28 U.S.C. § 1291. + REASONS FOR GRANTING THE WRIT The court below departed from proper standards when it upheld the enforcement of a transparently illegal restitution order, even though that order was summarily upheld on direct appeal. The petitioners were sentenced, inter alia, to pay over $1.4 million (to whom, the order did not say) to complete the clean-up of environmental damage to Krum Bay, St. Thomas, Virgin Islands. The federal sentencing statute expressly disallows restitution as a penalty for title 33 offenses such as those for which petitioners were con- victed, permitting restitution as part of the sentence, with few and immaterial exceptions, only for title 18 offenses. 18 U.S.C. § 3663(a).2 The sentencing court declared that a “lien would attach, presumably under 18 U.S.C. § 3613,° to 2 See Statutes Involved, p. 3 ante. 3 See Statutes Involved, pp. 4-6 ante. Differences between the terms of this provision as framed at the time of the offense, at the time of sentencing, and at the time of enforcement are not material to the issues raised in this petition. } eel 13 each of 16 vessels with which petitioner Oelsner was “associated.” The Third Circuit affirmed on direct appeal on the unprecedented and indefensible basis that the charging of 18 U.S.C. § 2(a) as a theory of liability in each count made the title 33 convictions ones for offenses under title 18, for which restitution could be ordered. App. 88. While the individual petitioner was still completing his prison sentence, the government moved to enforce its statutory lien by attaching and executing on one of the listed vessels. The legal owner intervened, and the parties litigated the validity of the lien enforcement action. A hearing was held; petitioner Oelsner was able to partici- pate by videoconference. The district court ordered the lien enforced against the vessel. App. 3. After the district court declined reconsideration, App. 16, the Third Circuit summarily affirmed. App. 1. This Court should grant certiorari and reverse, because the law of the case doc- trine did not forbid the court below from reconsidering its appellate decision to uphold the invalid restitution order, and that illegal sentence should not be allowed to stand. a. Notwithstanding a prior appellate affirmance, an illegal sentence should always be subject to re-examination when the government invokes the court’s authority to enforce the judgment. At sentencing in 1996, the district court imposed sentences on the three petitioners which included a requirement to pay $1.4 million in “restitution.” Peti- tioners challenged this part of the sentence on appeal, 14 pointing out that their convictions were not for any- offense for which restitution is an authorized term of a sentence. Under 18 U.S.C. § 3663(a), the district court, “when sentencing a defendant convicted of an offense under this title, or under subsection (h), (i), (j), or (n) of section 902 of the Federal Aviation Act of 1958 (49 U.S.C. 1472), may order, in addition to . . . any other penalty authorized by law, ihat the defendant make restitution to any victim of such offense.” The offenses causing the damage which the petitioners were ordered to pay the cost of remediating were various violations of title 33, U.S. Code, not of title 18 (nor of the specified sections of title 49).4 The court of appeals nevertheless affirmed, holding (in full) that: Restitution is authorized only for violations of Title 18 and some Title 49 provisions. See 18 U.S.C. § 3663. Defendants contend the trial court erred by ordering restitution for title 33 offenses. Our review is plenary. [citation omit- ted] Defendants’ argument is meritless. Each Title 33 offense also charged a violation of 18 U.S.C. § 2. Restitution is authorized for violation of 18 U.S.C. § 2. App. 88 (127 F.3d at 315). 4 Section 3663(a) was amended in 1996 to add certain drug offenses to the list of crimes for which restitution could be ordered, in connection with the creation of a new sort of “community restitution” sentence, but those provisions cannot be retroactive and in any event would have no applicability to this case. Even under the current statute, there is no authority to impose restitution as a penalty for any criminal violation of title 33. 15 In the enforcement proceedings, the district court refused to reconsider the legality of the restitution order or any issues decided on direct appeal. Th[e] defendants’ present objections to the amount of the restitution award are barred by the mandate rule and the law of the case.[fn] Under these doctrines, a district court is pre- cluded from reconsidering issues that have been decided either expressly or by necessary impli- cation. [citations omitted] [fn] The mandate rule “bars a district court from ‘reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals,’ ” [citations omitted], while the law of the case doctrine precludes a district court from reconsidering its own decisions in the same case absent extraordinary circumstances. [citation omitted] App. 28; see also App. 44 (“a challenge to the validity of the judgment exceeds the scope of a hearing on a writ”). As noted, the court of appeals affirmed on this point. App. 2 (“the district court acted in full conformity with our prior opinion and thus we will affirm”). In deferring to the “law of the case,” the courts below overlooked this Court’s recognition that the rule must give way “where the initial decision was ‘clearly erro- neous and would work a manifest injustice.’ ” Christian- son v. Colt Industries Operating Corp., 486 U.S. 800, 817 (1988), quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983). See also Dobbs v. Zant, 506 U.S. 357 (1993) (per 16 curiam) (summarily reversing for failure to apply “mani- fest injustice” exception to law of the case rule). In any event, “A petition for writ of certiorari can expose the entire case to review.” Christianson, 486 U.S. at 817. Exercise of the power to reconsider the “law of the case” is particularly important where an illegal sentence is involved. Under the Federal Rules prior to 1987, an “illegal sentence” could be corrected “at any time.” Fed.R.Crim.P. 35(a) (former vers.). Under the Sentencing Reform Act, this judicial power is purportedly severely restricted. Cf. 18 U.S.C. § 3582(c) (sentences of imprison- ment). The remedy under 28 U.S.C. § 2255 has likewise been restricted, and may not in any event be available to grant relief which does not affect “custody.” Id. Accord- ingly where, as here, the government chooses to invoke the district court’s power to enforce and execute upon a sentence which the defendant claims is flatly illegal, the court should be encouraged to consider, not barred from hearing, arguments raised defensively which demon- strate the underlying unlawfulness of the term of the sentence sought to be implemented. The district court’s equitable power to issue and enforce a writ of execution must not be exercised to perpetuate a clear error or to perpetrate a manifest injustice, such as enforcement of an illegal sentence. For any of these reasons, this Court should grant the writ to correct the clear error and to prevent the manifest injustice in the court of appeals’ ruling on direct appeal allowing restitution for the title 33 offenses. Bedi. mp re 17 b. The requirement of the sentence that peti- tioners must pay “restitution” for the cost of remediating environmental damage caused by criminal violations of title 33, U.S. Code, is plainly illegal, and the indictment’s averment of aiding and abetting liability under 18 U.S.C. § 2 cannot bring the case within statutory lan- guage limiting restitution to offenses under title 18. The provision of the judgments in this case that each of the three petitioners must pay up to $1.44 million in restitution is patently illegal in at least two ways. First, it is unauthorized by statute, because the offenses peti- tioners committed did not fall under title 18 (or title 49). Second, as amended to specify the United States as payee, App. 47-48, 55, the judgment does not direct payment “to any victim of such offense.” 18 U.S.C. § 3663(a). This Court should grant certiorari to correct the court of appeals’ blatant and illogical deviation from legality in federal sentencing. The lower court’s two-sentence disposition of this claim completely misses the mark: “Each Title 33 offense also charged a violation of 18 U.S.C. § 2. Restitution is authorized for violation of 18 U.S.C. § 2.” App. 88. There is no such thing in federal criminal law as a “violation of 18 U.S.C. § 2.” Section 2 of title 18 does not define an offense that someone can commit; it is a general provision stating most of the principles of individual liability that federal law recognizes for the commission of other a 18 federal offenses,> each of which is and must be defined elsewhere in the U.S. Code: § 2. Principals (a) Whoever commits an offense against the United States or aids, abets, counsels, com- mands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. The main objective of this law, when enacted in 1909, was to abolish the technical, common law distinctions between accessories and principals, and between princi- pals of different degree. Standefer v. United States, 447 US. 10, 16-20 (1980). The offense of which the aider and abettor is guilty - in which he is a “principal,” in other words - is the underlying crime, which may or may not be found in title 18. Section 2 itself does not define a crime at all. See Nye & Nissen Corp. v. United States, 336 U.S. 613, 618-19 (1949) 5 The uncodified theory of substantive criminal liability is that recognized in Pinkerton v. United States, 328 U.S. 640 (1946). 6 This is one of the ways that aiding and abetting differs from conspiracy. To conspire to commit an offense is to commit an entirely separate crime - one which may be found in title 18 (see 18 U.S.C. § 371) even if the object crime is not. See generally United States v. Felix, 503 U.S. 378 (1992) (substantive crime and conspiracy to commit it are two different offenses); accord, Callanan v. United States, 364 U.S. 587, 593 (1961); Pereira v. United States, 347 U.S. 1, 11-12 (1954); Pinkerton v. United States, 328 U.S. 640, 643-44 (1946). 19 (explaining aiding and abetting under § 2 as a “valid theory” making the defendant “responsible” for another’s criminal act). The courts below thus flatly vio- lated the limitations of § 3663(a) when they imposed and then affirmed the imposition of restitution in this case. Other circuits do not allow the same deviation from the terms of the restitution statute. See United States v. Minne- man, 143 F.3d 274, 283-84 (7th Cir. 1998) (restitution not authorized for title 26 offense, but can be ordered for violation of 18 U.S.C. § 371 to commit that offense or related “conspiracy to defraud the United States”); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir. 1991) (same).7 The restitution statute, as a law defining criminal punishment, must be strictly construed and enforced, with restitution limited to those offenses, and only in those circumstances, allowed by Congress. Hughey v. United States, 495 U.S. 411 (1990). Every defendant in every federal criminal case is a “principal” of one sort or another under § 2. The court of appeals’ casual reliance on the reference to § 2 in each count of petitioners’ indictment thus eliminated the entire meaning of the limiting introductory phrase of § 3663 by allowing resti- tution for offenses not covered there, on a theory that would apply to any and all federal charges. The courts below also plainly erred by ordering and enforcing restitution to be paid to a federal agency which was not a “victim of such offense,” that is, the offense of conviction. A governmental agency charged by law with ” Although there was a conviction for a conspiracy to defraud the U.S. in an internal revenue matter in petitioners’ case (Count XII), no restitution was ordered in that regard. 20 remediating a public harm is not “victimized” by private, illegal conduct which causes that harm. The agency’s expenditures in fulfillment of its public duty are not “losses” of a crime victim. The Coast Guard, in particular, was not the “victim” of any criminal conduct which caused pollution to Krum Bay. Petitioners could, perhaps, have been fined with these costs in mind (in fact, very substantial fines were levied against the corporations), or have been required as a condition of supervised release or of probation to participate in the clean-up (as they have been actively doing in any event, as a way of reduc- ing their residual obligation to pay under the district court’s illegal order). They could not, however, have been properly ordered to make “restitution.” For these reasons, the Court should grant the requested writ of certiorari. The judgment of the court below upholding the seizure and sale of the Wittug must be reversed, and the case remanded with directions to strike the unlawful restitution requirements from the petitioners’ judgments of sentence. ¢ 21 CONCLUSION For the foregoing reasons, petitioners WEST INDIES TRANSPORT CO., INC., WIT EQUIPMENT CO., INC., and W. JAMES OELSNER pray that this Court grant their petition for a writ of certiorari to review the judgment and memorandum of the United States Court of Appeals for the Third Circuit upholding the district court's enforcement of the lien for restitution. Respectfully submitted, ALAN ELLIs Peter GOLDBERGER Counsel of Record Pameta A. WILK Law Orrices OF ALAN ELLIS 50 Rittenhouse Place Ardmore, PA 19003-2276 (610) 658-2255 Attorneys for Petitioner May 18, 2001 crt bell tet een App. 1 UNREPORTED - NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS 4 FOR THE THIRD CIRCUIT No. 00-3449 UNITED STATES OF AMERICA V. WEST INDIES TRANSPORT CO., INC.; WIT EQUIPMENT, CO., INC. and W. JAMES OELSNER, Appellants On Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John) (D.C. Crim. No. 93-00195) District Judge: Honorable Stanley S. Brotman Submitted under Third Circuit LAR 34.1(a) December 7, 2000 BEFORE: MANSMANN, ALITO, and GREENBERG, Circuit Judges (Filed: Dec. 19, 2000) MEMORANDUM OPINION OF THE COURT GREENBERG, Circuit Judge. West Indies Transport Co., Inc., Wit Equipment Co., Inc., and W. James Oelsner appeal from an order entered in the district court on April 3, 2000, denying Oelsner’s App. 2 motion to quash or stay the government's writ of execu- tion on the vessel Wittug and denying certain other relief. The district court set forth the background of the matter in its memorandum opinion accompanying the order. In addition, we set forth the background in our opinion on the direct appeal, see United States v. West Indies Transport Co., 127 F.3d 299 (3d Cir. 1997), and the district court described later proceedings in the case in its opinion in United States v. West Indies Transport Co., 57 F. Supp.2d 198 (D.V.I. 1999). We have carefully reviewed this matter and have concluded that the district court acted in full conformity with our prior opinion and thus we will affirm. In reach- ing our result we emphasize our understanding that while Oelsner is liable for the entire amount of restitution ordered, nevertheless a rebate will be allowed for the difference between the restitution amount and the ulti- mate amount of the cleanup costs. Thus, the order for restitution does not provide for payment of an excessive amount. The order of April 3, 2000, will be affirmed. TO THE CLERK: Please file the foregoing memorandum opinion. App. 3 DISTRICT COURT OF THE VIRGIN ISLANDS UNITED STATES of America and Government of the Virgin Islands, Plaintiffs, v. WEST INDIES TRANSPORT CO., INC., Wit Equipment Co., Inc., and W. James Oelsner, Defendants. WITWATER CORPORATION, Petitioner, v. MICHAEL E. MURPHY, in his capacity as Area Port Director for the United States Customs Service, Respondent. No. CRIM. A. 93-195(STX). No. CIV. A. 98-104(STT). July 19, 1999. James A. Hurd, Jr., United States Attorney, Curtis V. Gomez, Assistant U.S. Attorney, Federal Building & U.S. Courthouse, St. Thomas, VI, for U.S., Respondent Michael E. Murphy. Treston E. Moore, Moore & Dodson, St. Thomas, VI, for Defendant W. James Oelsner. Andrew C. Simpson, Bryant White & Barnes, P.C., St. Croix, VI, for Petitioner Witwater Corporation. OPINION ON DEFENDANTS’ MOTION TO QUASH AND OPPOSITION TO WRIT OF EXECUTION OPINION ON MOTION OF WITWATER CORPORATION TO STAY OR QUASH EXECUTION OF WRIT OPINION ON PETITION FOR ORDER OF MANDAMUS App. 4 BROTMAN, District Judge. Presently before the Court are the following motions: (1) a motion filed by W. James Oelsner (“Oelsner”) on behalf of all of the defendants to Criminal Action No. 93-195 to quash the writ of execution filed by the United States in that action; (2) a motion filed by Witwater Cor- poration (“Witwater”) to stay or quash the writ of execu- tion filed by the United States in Criminal Action No. 93-195; and (3) a petition for order of mandamus filed by Witwater in Civil Action No. 98-104. I. FACTS AND PROCEDURAL BACKGROUND On March 26, 1996, this Court entered a judgment against Oeisner (“Oelsner Judgment”)! which imposed a prison sentence and required Oelsner to pay $1,440,450.00 in restitution? and $95,500 in fines. See Opp’n of the ' The jury found Oelsner guilty of the following offenses: (1) violation of the Clean Water Act, 33 U.S.C. § 1311(a), 33 U.S.C. § 1319(c)(2)(A), 18 U.S.C. § 2; (2) violation of the Rivers and Harbor Act, 33 U.S.C. § 403, 33 U.S.C. § 406; (3) violation of the Ocean Dumping Act, 33 U.S.C. § 1411(a)(1), 33 U.S.C. § 1415(b)(1), 18 U.S.C. § 2; (4) conspiracy to defraud the United States, [18 U.S.C. § 371,] 26 U.S.C. §[§], 86[1](a)(3)[, 871(a)}(1)(A); and (5) fraud, misuse of visas, 18 U.S.C. § 2, 18 U.S.C. § 1546. See United States’ Opp’n, Attach. 2. * With regard to the amount of restitution Oelsner was required to pay, the judgment stated as follows: The defendant shall pay restitution within Sixty (60) days from today’s date provided, however, that if the costs of these cleanup efforts are less than the amount to which the Court made reference of $1,440,450.00, credit will be given to the defendants to that extent. App. 5 United States to the Emergency Mot. of Witwater Corpo- ration to Intervene and to Stay or Quash Execution (“United States’ Opposition”), Attach. 2. Also on March 26, 1996, this Court issued criminal judgments against West Indies Transport, Inc. (“West Indies”) and WIT Equipment Co., Inc. (“WIT Equipment”) in the same mat- ter.> All three judgments contained identical lists of ves- sels and real estate that the Court determined were subject to liens. See id. Included in the list was the vessel Wittug. See id. On April 16, 1996, the United States recorded a lien against the Wittug at the Recorder of Deeds, Division of St. Croix to satisfy the $1,440,450.00 judgment previously entered against Oelsner. See id., Attach. 3. On November 9, 1998, the United States applied for a writ of execution on the Oelsner Judgment against the Wittug, serving Oelsner with a copy of the application by mail on November 10, 1998. Also on November 9, 1998, Witwater filed an emergency motion to intervene and to stay or quash execution of the writ. On November 12, 1998, this Court issued the writ. On November 23, 1998, Oelsner Any restitution payments made by defendants West Indies Transport, Inc. and/or WIT Equipment Co., Inc. shall be applied to reduce this amount accordingly. United States’ Opp’n, Attach. 2. * The Court ordered West Indies to pay $3,520,500.00 in fines and $1,440,450.00 in restitution. The Court ordered WIT Equipment to pay $1,520,500.00 in fines and $1,440,450.00 in restitution. In both the West Indies and the WIT Equipment judgments, the Court stated that any restitution payments made either by the company not subject to the judgment or by Oelsner would be applied to reduce the amount of restitution owed by the company subject to the judgment. App. 6 filed a motion to quash the writ of execution and to obtain a hearing on the matter.* In addition to attempting to intervene in the United States’ case against Oelsner, Witwater filed its own action regarding the Wittug. On May 22, 1998, Witwater filed a petition for order of mandamus, alleging that it owns the Wittug and that the United States Customs Service has wrongfully denied the Wittug clearance to depart St. Thomas, USVI where it is currently docked. See Pet. for Order of Mandamus, § § 6, 7, 9, 17. On August 7, 1998, the United States filed a motion to dismiss the petition, arguing that the Court lacked jurisdiction to issue an order of mandamus in such an action and that Witwater failed to exhaust its administrative remedies before filing the petition. On November 10, 1998, the Court heard argument on this motion and ordered that the hearing transcript be made part of the criminal action pending against Oelsner as well as part of the mandamus action Witwater initiated. On December 16, 1998, the Court granted Oelsner’s motion for a hearing on the writ of execution, permitting Witwater to intervene in the hearing for the limited pur- pose of challenging the writ. See United States v. West Indies Transport Co., Inc., 35 F.Supp.2d 450, 455, 458 (D.V.I.1998). The Court stated that the hearing would be held for the purpose of determining the identity of the Wittug’s owner, the value of the Wittug, and the cost of the remediation that remains to be done. See id. at 454, + Oeisner alone brought the motion to quash and to obtain a hearing, stating that the other corporate defendants are defunct. See Defs.’ Mot. to Quash at 1, n.1. App. 7 458. At the same time, the Court denied the United States’ motion to dismiss the petition for order of mandamus filed by Witwater in Civil Action No. 98-104. See id. at 457-58. Finally, the Court consolidated Criminal Action No.93-195 and Civil Action No. 98-104 to the extent that the hearing on the writ would be a joint hearing on the question of the ownership of the Wittug. See id. at 458-59. The hearing was held on April 19, 1999 at the U.S. Attorney’s Office in St. Croix, USVI. Oelsner appeared at the hearing via satellite transmission. On May 10, 1999, Oelsner filed a memorandum in support of his motion to reduce restitution.* See April 19, 1999 Hr’g Tr. at 104, 148 (giving parties leave to file post-hearing briefs clarifying the issues addressed at the hearing). II. DISCUSSION A. REQUEST FOR RESTITUTION REDUCTION Oelsner has asked the Court to reduce the amount of restitution that is due and owing. See Defs.’ Mot. to Quash, § 5; Def. Oelsner’s Mem. in Supp. of his Mot. to Reduce Restitution. The Oelsner Judgment indicates that “if the costs of [the United States’] cleanup efforts are less than the [restitution] amount to which the Court made reference of $1,440,450.00, credit will be given to the defendants to that extent.” United States’ Opp’n, Attach. 2. The Act prohibits the use of a writ to execute judgment > Oelsner initially requested that the Court reduce the amount of restitution stated in the Oelsner Judgment in the motion to quash the writ of execution. App. 8 on property that exceeds in value the aggregate amount of the judgment. See 28 U.S.C.A. § 3203(c)(2)(B)(i) (West 1994). At the April 19, 1999 hearing, the Court permitted Oelsner to introduce evidence regarding the cost of the remediation that has been done and that remains to be done. The parties agreed that Oelsner has spent $50,000 to date removing six vessels, specifically the Witislander, the Witrollon, the Waterhaul, the Witbarge III, the Wit- barge II, and the Witbridge. See Def.’s Ex. 49; April 19, 1999 Hr’g Tr. at 24. Oelsner testified that he has spent an additional $20,000 to date preparing two additional ves- sels for removal, specifically the M/V Mar and the Wit- dock. See April 19, 1999 Hr’g Tr. at 47. Oelsner predicted that the remaining remediation will cost approximately $32,000. See Def. Oelsner’s Mem. in Supp. of his Mot. to Reduce Restitution at 9. The United States disputes this figure. See April 19, 1999 Hr’g Tr. at 90-91 (Commander Brian Salerno, Commanding Officer of the Coast Guard Marin Safety Office in San Juan, Puerto Rico, testifying that it would cost more than $40,000 to “accomplish the type of clean up contemplated by the site assessment for the motor vehicle Mar and the WIT Dock”). In addition, the United States points out that Oelsner has failed to account for two vessels which he was required to remove: the Witconcrete II and the Witcargo. See id. at 53-56; Def.’s Ex. 22. According to Oelsner, the Army Corps of Engi- neers removed the Witconcrete II; Oelsner has not reim- bursed the Army Corps of Engineers for the expense it incurred in removing the vessel. See April 19, 1999 Hr’g Tr. at 54-55. Oelsner also testified that the Witcargo has not been removed. See id. at 55. App. 9 Because there is uncertainty surrounding the cost of the remediation that remains to be done, the Court will presently decline to reduce the amount of restitution that is due and owing. Once the clean-up is complete, Oelsner may move the Court to reduce the restitution amount indicated in the Oelsner judgment. Until that time, the amount will not be reduced. B. MOTIONS TO QUASH THE WRIT OF EXECU- TION Both Oelsner and Witwater challenge the United States’ right to execute judgment on the Wittug. They argue that Witwater, not Oelsner, is the owner of the vessel. The United States filed an application for a writ of execution pursuant to the Federal Debt Collection Pro- cedures Act of 1990 (“FDCPA”) which permits the United States, as a judgment creditor, to levy pursuant to a writ of execution upon “[a]ll property in which the judgment debtor has a substantial nonexempt interest.” 28 U.S.C. § 3203(a) (West 1994). A writ of execution may be chal- lenged by an individual or entity claiming an ownership interest in the property. See United States v. Coluccio, 842 F.Supp. 663, 665 (E.D.N.Y. 1994) (resolving a challenge to a writ of execution issued pursuant to the FOCPA where ownership of the subject property was in dispute), vacated on other grounds, 51 F.3d 337 (2nd Cir.1995). In such a situation, the burden of proving ownership of the subject property is borne by the claimant, not the judgment cred- itor. See id. (analogizing to civil forfeiture laws). To prove ownership, the claimant must do more than demonstrate App. 10 that it is the record owner of the property; it must pro- vide some evidence of control. See United States v. One 1982 Porsche 928, 732 FSupp. 447, 451 (S.D.N.Y.1990) (“While ownership may be proven by actual possession, dominion, control, title and financial stake, ‘[t]he posses- sion of bare legal title to the res may be insufficient,’ absent other evidence of control or dominion over the property.”); see also United States v. One 1945 Douglas C-54 (DC-4) Aircraft, (Appeal 2), 647 F.2d 864, 866 (8th Cir.1981); United States v. One 1945 Douglas C-54 (DC-4) Aircraft, (Appeal 1), 604 F.2d 27, 28-29 (8th Cir.1979); United States v. One 1977 36 Foot Cigarette Ocean Racer, 624 F.Supp. 290, 294-95 (S.D.Fla.1985); United States v. One 1981 Datsun 280ZX, 563 F.Supp. 470, 474 (E.D.Pa.1983). Ultimately, the claimant must prove that its alleged title to the property is superior to the judgment creditor’s right to execute judgment on the property. See, e.g., Baars v. Creary, 23 Fla. 311, 314, 2 So. 662, 663 (stating that “[t]he purpose of the [Florida] claim statute is to provide a summary remedy for a stranger to an execution, who claims title to the property levied on, to have the question of the superiority of his alleged title, over the right to the plaintiff in execution to subject it to the satisfaction of his execution and judgment, settled.”). The Court finds that Witwater has failed to satisfy its burden of proof. Witwater presented sufficient evidence at the April 19, 1999 hearing for the Court to conclude that Witwater holds legal title to the Wittug. See Exs. B-1 (certified copy of the Wittug’s certificate of ownership), B-2 (certified translation of the ownership certificate), and B-3 (copy of the Wittug’s registry). Witwater, how- ever, failed to present any evidence indicating that the App. 11 Wittug is under its control. At the hearing, the United States called as an expert witness John O’Connor (“O’Connor”), who, in October of 1995, authored a report for Price Waterhouse LLP that was used in Oelsner’s sentencing. See April 19, 1999 Hr’g Tr. at 117. O’Connor testified that, as of October 31, 1995, Oelsner was the equitable owner of the Wittug. See id. at 129, 133 (Witwa- ter is “one of several corporations that . . . held vessels that rolled up to Challenger, which ultimately rolled up to Oceanic and Finance, which was directed by Mr. Oelsner.”). Thi¥” testimony is consistent with the Price Waterhouse Report (“Report”), which the Court admitted into evidence.® © Witwater objected to the admission of the Report, arguing that the proper foundation had not been laid and that the document contained inadmissible hearsay. See April 19, 1999 Hr’g Tr. at 119, 149. The Court admitted the document over Witwater’s objections. See id. at 149. The Court finds that Witwater’s hearsay objections are unfounded. O’Connor testified as to the information contained in the Report, and Witwater cross-examined O’Connor regarding his testimony. Witwater’s foundation objections are equally without merit. An expert’s testimony is admissible even where the facts or data on which he relies are not admitted into evidence. See Fed.R.Evid. 703. Where testimony or a piece of evidence may assist the trier of fact, the rules of evidence favor the admission of that testimony or evidence. See Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir.1997). This preference holds true for expert testimony and reports, the admissibility of which is governed by Fed.R.Evid. 702. See id. Expert testimony and reports are admissible if they are both reliable and relevant. See id. O’Connor’s explanation of the sources he consulted in order to prepare the Report are indicative of its reliability. See April 19, 1999 Hr’g Tr. at 121 (O’Connor reviewed “thousands of App. 12 At the hearing, Witwater challenged O’Connor’s con- clusion that Oelsner is the equitable owner of the Wittug on two grounds. First, Witwater asked whether O’Connor knew “whether or not Mr. Oelsner presently controls any of the assets [O’Connor] found that [Oelsner] controlled in October of ‘95.” Id. at 137-38. Where a judgment lien has attached to property equitably owned by the judg- ment debtor, a third party deriving its interest from the equitable owner takes subject to the lien. See 46 Am.Jur.2d Judgments § 401 (1994). Therefore, Witwater’s inquiry into the present equitable owner of the Wittug is irrele- vant. Second, Witwater asked whether O’Connor was familiar with time charters, bare boat charters, and mar- itime agency arrangements,” implying that Oelsner’s documents including banking documents, legal documents, appraisal documents, accounting documents, as well as, ... interviewing Mr. Oelsner.”); Ex. G- 5 at 8-9 (“To complete the work requested, I reviewed a significant number of documents related to business transactions, corporate structuring, corporate officers and statements made by W. James Oelsner under oath and during my interview with him. . .. The investigation/analysis conducted was clearly dominated by review of corporate records. These records have been received from Mr. Oelsner and third parties such as banks, accountants, corporate officers, and others familiar with Oelsner or his related companies. These corporate documents were reviewed for signs of ownership, control, interrelationships, and other attributes which may be meaningful in determining the ownership of certain assets and the validity of statements made by Mr. Oelsner with respect to his ownership of properties and vessels.”). 7 The difference between a time charter and a bare boat charter has been described as follows: A demise [or bare boat] charterer is “one who contracts for the vessel itself and assumes exclusive App. 13 interest in the Wittug was not an ownership interest but was the product of one of the foregoing. See April 19, 1999 Hr’g Tr. at 142-44. Despite the fact that the Court gave the parties leave to file post-hearing briefs, see April 19, 1999 Hr’g Tr. at 148, Witwater presented no evidence to the Court indicating that Oelsner and Witwater had entered into a time charter or a bare boat charter agree- ment with regard to the Wittug. The only evidence that supports Witwater’s claim that Oelsner served as its agent is O’Connor’s statement - confirmed by the Report - that Oelsner frequently signed as agent for Challenger Limited, the corporation that is the legal owner of Witwa- ter Corporation. See id. at 145. The Court therefore con- cludes that Oelsner is the equitable owner of the Wittug and that this interest in the vessel is superior to the interest claimed by Witwater Corporation as the vessel's record owner. The Court will order that judgment be executed on the Wittug.* Where a statute describes in broad terms the possession, control, command and navigation thereof for a specified period,” Stephenson v. Star-Kist Caribe, Inc., 598 F.2d 676, 679 (1st Cir.1979), in contrast to a time or voyage charterer who “contracts not for the vessel itself but for a specific service of the vessel, such as carriage of goods, which is rendered by the owner’s master and crew,” id. McAleer v. Smith, 57 F.3d 109, 112-13 (1st Cir.1995). An agency relationship exists among individuals or entities where there “is a mutual interdependence of the finapcial credit and stability of each of the parties, agent and owner.” Compagnia Maritima La Empresa, S.A. v. Pickard, 320 F.2d 829, 832 (5th Cir.1963). 8 The Court is aware that judgment cannot be executed on property that exceeds the amount of the judgment. See 28 U.S.C. App. 14 property which is subject to levy, the statute is inter- preted to include property in which the defendant’s own- ership interest is equitable in nature.? See 30 Am Jur.2d Executions and Enforcement of Judgments § 176 (1994). The FDCPA is broadly drawn to subject to levy “{alll property in which the judgment debtor has a substantial nonexempt interest.” 28 U.S.C. § 3203(a) (West 1994). The Court interprets this language to include that property in which the judgment debtor’s interest is equitable. § 3203(c)(3)(B) (West 1994). In its December 16, 1998 opinion and order, the Court instructed the parties that the April 19, 1999 hearing would be held for the purpose, among other-things, of determining the Wittug’s value. See United States v. West Indies Transport Co., Inc., 35 F.Supp.2d 450, 454, 458 (D.V.1.1998). Despite this instruction, none of the parties has presented the Court with any evidence regarding the Wittug’s value. Therefore, the Court will assume that the value of the Wittug does not exceed the amount of the judgment. 9 Equitable ownership has been described as follows: An equitable estate, in its very conception, and asa fact, requires the simultaneous existence of two estates or ownerships in the same subject- matter, whether that be real or personal, - the one legal, vested in one person, and recognized only by courts of law; the second equitable, vested in another person, and recognized by courts of equity. These two interests must be separate, and as a rule, must be held by different persons; for if the legal estate and the equitable estate both become vested in the same person by the same right, then, as a general rule, a merger takes place, and the legal estate alone remains. ... [T]he ownership of the equitable estate is regarded by equity as the real ownership, and the legal estate is . . . no more than the shadow always following the equitable estate. 1 Pomeroy’s Equity Jurisprudence § 147 (5th ed. 1941). App. 15 C. PETITION FOR ORDER OF MANDAMUS Witwater seeks an order of mandamus instructing Michael E. Murphy (“Murphy”), in his capacity as Area Port Director for the United States Customs Service, to grant clearance to the Wittug to depart St. Thomas. See Pet. for Order of Mandamus at 4. 28 U.S.C. § 1361 (West 1993) states that “district courts shall have original juris- diction of any action in the nature of mandamus to com- pel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” The Third Circuit has determined that this provision “provide[s] relief only where a clear duty is owed the plaintiff or there is an abuse of discretion.” Grant v. Hogan, 505 F.2d 1220, 1225 (3d Cir.1974). Murphy is under no obligation to release the Wittug to Witwater. in fact, Murphy is prohibited from doing so. A vessel that is subject to a lien in favor of the United States may not be granted clearance to depart its port. See 34 O. Att’y Gen. 244 (1923). Having found that the United States’ lien against the Wittug is valid and enforceable by way of levy, the Court must deny Witwater’s petition for order of mandamus. III. CONCLUSION For the foregoing reasons, the Court will deny Oelsner’s request to reduce restitution, deny both Oelsner’s and Witwater’s motions to quash the writ of execution, and deny Witwater’s petition for order of mandamus. The United States may proceed ‘to execute judgment by levying on the Wittug. App. 16 NOT FOR PUBLICATION IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX -and- DIVISION OF ST. THOMAS AND ST. JOHN UNITED STATES OF AMERICA and GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiffs, V. WEST INDIES TRANSPORT CO., INC., WIT EQUIPMENT CO., INC., and W. JAMES OELSNER, Defendants. WITWATER CORPORATION, Petitioner, V. MICHAEL E. MURPHY, in his capacity as Area Port Director for the United States Customs Service, Respondent. Criminal Action No. 93-195 (STX) OPINION ON DEFENDANTS’ MOTION TO QUASH WRIT OF EXECUTION OPINION ON MOTIONS OF WITWATER CORPORATION FOR NEW TRIAL AND TO SUPPLEMENT [sic] Civil Action No. 98-104 (STT) App. 17 APPEARANCES: James A. Hurd, Jr., Esq., United States Attorney Curtis V. Gomez, Esq., Assistant U.S. Attorney Federal Building & U.S. Courthouse 5500 Veteran’s Drive, Ste. 260 Charlotte Amalie St. Thomas, VI 00802-6424 Attorneys for Plaintiff United States of America Andrew L. Capdeville, Esq. ANDREW L. CAPDEVILLE, P.C. Nisky Center, Ste. 201 St. Thomas, VI 00804 Attorney for Defendant W. James Oelsner Andrew C. Simpson, Esq. BRYANT WHITE & BARNES, P.C. 47 King Street, 2nd Floor Christiansted St. Croix, VI 00820 Attorney for Petitioner Witwater Corporation Curtis Gomez, Esq., Assistant U.S. Attorney James S. Carroll, Esq., Assistant U.S. Attorney Federal Building & U.S. Courthouse 5500 Veteran’s Drive, Ste. 260 Charlotte Amalie St. Thomas, VI 00802-6424 Attorneys for Respondent Michael E. Murphy BROTMAN, DISTRICT JUDGE (sitting by designa- tion). Presently before the Court are the following motions: (1) a motion filed by W. James Oelsner (“Oelsner”) on behalf of all of the defendants to Criminal Action No. 93-195 to either quash or stay the writ of execution on the Wittug filed by the United States in that action; (2) a motion filed by Witwater Corporation (“Witwater”) for a App. 18 new trial or to alter the judgment rendered by this Court in Criminal Action No. 93-195; and (3) a motion filed by Witwater to supplement its above motion for new trial. For the reasons discussed herein, each of these motions will be denied. I. FACTS AND PROCEDURAL BACKGROUND On March 26, 1996, this Court entered a judgment against Oelsner (“Oelsner Judgment”)? which imposed a prison sentence and required Oelsner to pay $1,440,450.00 in restitution? and $95,500 in fines. Also on March 26, 1996, this Court issued criminal judgments against West 1 The jury found Oelsner guilty of the following offenses: (1) violation of the Clean Water Act, 33 U.S.C. § 1311(a), 33 U.S.C. § 1319(c)(2)(A), 18 U.S.C. § 2; (2) violation of the Rivers and Harbor Act, 33 U.S.C. § 403, 33 U.S.C. § 406; (3) violation of the Ocean Dumping Act, 33 U.S.C. § 1411(a)(1), 33 U.S.C. § 1415(b)(1), 18 U.S.C. § 2; (4) conspiracy to defraud the United States, [18 U.S.C. § 371,] 26 U.S.C. §[§] 86[(1](a)(3)L, 871(a)]}(1)(A); and (5) fraud, misuse of visas, 18 U.S.C. § 2, 18 U.S.C. § 1546. See United States’ Opp’n, Attach. 2. 2 With regard to the amount of restitution Oelsner was required to pay, the judgment stated as follows: The defendant shall pay restitution within Sixty (60) days from today’s date provided, however, that if the costs of these cleanup efforts are less than the amount to which the Court made reference of $1,440,450.00, credit will be given to the defendants to that extent. Any restitution payments made by defendants West Indies Transport, Inc. and/or WIT Equipment Co., Inc. shall be applied to reduce this amount accordingly. United States’ Opp’n, Attach. 2. App. 19 Indies Transport, Inc. (“West Indies”) and WIT Equip- ment Co., Inc. (“WIT Equipment”) in the same matter.3 All three judgments contained identical lists of vessels and real estate that the Court determined were subject to liens. See id. Included in the list was the vessel Wittug. On April 16, 1996, the United States recorded a lien against the Wittug at the Recorder of Deeds, Division of St. Croix to satisfy the $1,440,450.00 judgment previously entered against Oelsner. On November 9, 1998, the United States applied for a writ of execution on the Oelsner Judgment against the Wittug, serving Oelsner with a copy of the application by mail on November 10, 1998. Also on November 9, 1998, Witwater filed an emer- gency motion to intervene and to stay or quash execution of the writ. On November 12, 1998, this Court issued the writ. On November 23, 1998, Oelsner filed a motion to quash the writ of execution (“first motion to quash”) and to obtain a hearing on the matter. In addition to attempting to intervene in the United States’ case against Oelsner, Witwater filed its own action regarding the Wittug. On May 22, 1998, Witwater filed a petition for order of mandamus, alleging that it owns the Wittug and that the United States Customs Service has wrongfully denied the Wittug clearance to depart St. 3 The Court ordered West Indies to pay $3,520,500.00 in fines and $1,440,450.00 in restitution. The Court ordered WIT Equipment to pay $1,520,500.00 in fines and $1,440,450.00 in restitution. In both the West Indies and the WIT Equipment judgments, the Court stated that any restitution payments made either by the company not subject to the judgment or by Oelsner would be applied to reduce the amount of restitution owed by the company subject to the judgment. App. 20 Thomas, USVI where it is currently docked. On August YP 1998, the United States filed a motion to dismiss the petition, arguing that the Court lacked jurisdiction to issue an order of mandamus in such an action and that Witwater failed to exhaust its administrative remedies before filing the petition. On November 10, 1998, the Court heard argument on this motion and ordered that the hearing transcript be made part of the criminal action pending against Oelsner as well as part of the mandamus action Witwater initiated. On December 16, 1998, the Court granted Oelsner’s motion for a hearing on the writ of execution, permitting Witwater to intervene in the hearing for the limited pur- pose of challenging the writ. See United States v. West Indies Transport Co., Inc., 35 F.Supp.2d 450, 455, 458 (D.N_J. [sic] 1998). The Court stated that the hearing would be held for the purpose of determining the identity of the Wittug’s owner, the value of the Wittug, and the cost of the remediation that remains to be done. See id. at 454, 458. At the same time, the Court denied the United States’ motion to dismiss the petition for order of mandamus filed by Witwater in Civil Action No. 98-104. See id. at 457-58. Finally, the Court consolidated Criminal Action No. 93-195 and Civil Action No. 98-104 to the extent that the hearing on the writ would be a joint hearing on the question of the ownership of the Wittug. See id. at 458-59. The hearing was held on April 19, 1999 at the U.S. Attorney’s Office in St. Croix, USVI. Oelsner appeared at the hearing via satellite transmission. On May 10, 1999, Oelsner filed a memorandum in support of his motion to reduce restitution. See April 19, 1999 Hr’g Tr. at 104, 148 (giving parties leave to file post-hearing briefs clarifying the issues addressed at the hearing). App. 21 In an Opinion and Order dated July 19, 1999, the Court denied the following motions: (1) Oelsner’s motion to quash the writ of execution filed by the United States in Criminal Action No. 93-195; (2) Witwater’s motion to stay or quash the same writ of execution; and (3) Witwa- ter’s petition for order of mandamus in Civil Action No. 98-104. In addition, the Court denied without prejudice Oelsner’s motion to reduce the amount of restitution that he owes pursuant to the judgment entered in Criminal Action No. 93-195. Now before the Court is (1) a second motion by Oelsner to quash or stay the government's writ of execu- tion; (2) motion by Witwater for a new trial or amend- ment of the judgment rendered in Criminal Action No. 93-195; and (3) a second motion filed by Witwater to supplement its original motion for new trial. II. DISCUSSION A. Defendants’ Motion to Quash or Stay the Gov- ernment’s Writ of Execution on the Wittug* Oelsner, on behalf of all defendants, requests relief from the March 26, 1996 judgment ordering defendants to * Defendant Oelsner has also filed a motion to quash the Government's writ of execution on four additional vessels (“the second writ”) - WITSERVICE, WITSERVICE Il, WITPOWER, and WITPOWER II. In addition, Witservice Ltd. and Witpower Ltd., two British Virgin Islands corporations have filed motions for leave to intervene, claiming ownership of these vessels. Because execution of the second writ may involve matters separate and distinct from the instant motions concerning execution on the Wittug, the Court leaves for another day resolution of those motions. App. 22 pay to the Government $1,440,450 (one million four-hun- dred forty thousand four-hundred fifty dollars) in restitu- tion. Specifically, Oelsner requests a second time that the Court quash or stay the Government's writ of execution on the Wittug, alleging the judgment is defective as a matter of law. To support this relief, Oelsner argues that (1) the judgment is not final, and thus the writ of execu- tion against the Wittug is premature; (2) the judgment is defective for the Court's failure to make specific findings of fact with respect to the amount of restitution; (3) the restitution award is excessive as it includes amounts for Respecting the instant motion, on March 16, 2000, Oelsner filed a submission titled, “Clarification of Pleadings and Reply to Government’s Response to Defendants’ Motion to Quash or Stay Execution” (“reply”). Therein, Oelsner states two additional grounds, which were not raised in his original supporting memorandum, for quashing the writ for the Wittug. Specifically, Oelsner argues that (1) the Government is attempting to execute on property that far exceeds the amount of the restitution judgment and (2) the Government should be estopped from executing on the judgment for allegedly interfering with Oelsner’s remediation efforts. See Reply at 3-4. The Court, however, will not consider these arguments as they pertain to execution on the Wittug. First, these matters were not set forth in the supporting memorandum but were raised for the first time in defendants’ reply. See, eg., Gambino v. E.W. Morris, 134 F.3d 156, 161 n.10 (3d Cir. 1998); Schiffli Embroidery Workers Pension Fund, 869 F. Supp. 278, 281 n.1 (D.N.J. 1994). Second, Oelsner did not raise these challenges during his first motion to quash or stay execution on the Wittug, which the Court denied in an opinion dated July 22, 1999. These additional arguments, as they relate to the Wittug, are accordingly barred by the law of the case. See cases cited infra part II.A.3. Therefore, the Court addresses herein only those arguments expressly raised by Oelsner in his December 3, 1999 motion to quash the writ of execution on the Wittug. App. 23 losses unrelated to the offenses for which defendants were convicted; and (4) the offenses for which defendants were convicted constitute or are analogous to “no clear victim” crimes and thus, the amount of restitution is limited to the amount imposed by the Court for fines. 1. The Judgment is a Final Judgment On March 26, 1996, the Court ordered the defendants to pay $1,440,450 in restitution to offset the costs of cleaning up their environmental damage, “provided, however, that if the costs of these clean-up efforts are less than . . . $1,440,450, credit will be given to the defendants to that extent.” Tr. of Hearing, pp. 87-88. Pursuant to this order, Oelsner moved for reduction of the restitution amount on November 12 1998. On April 19, 1999, a hearing was held, during which the Court heard evidence concerning the cost of the remediation that had been done and that remained to be done. While the parties agreed to the amount that Oelsner had expended in per- forming part of the clean-up, they disputed the amount of the projected cost for the remaining remediation. In light of this dispute, the Court declined to reduce the amount of restitution due and owing, stating that “once the clean- up is complete, Oelsner may move . . . to reduce the restitution amount indicated in the Oelsner judgment. Until that time, the amount will not be reduced.” United States v. West Indies Transport Co., Inc., 57 F.Supp.2d. 198, 202 (D.Virgin Islands 1998).5 > To date, neither the Coast Guard nor defendant Oelsner has informed the Court that remediation has been completed. App. 24 Oelsner now challenges the finality of the Court's order of restitution, claiming, “The fact that the original Judgment issued at sentencing contained the contingency that the amount of $1,440,450.00 would be subject to setoff based on the actual cost of clean up, and the fact that the July 19, 1999 order made the restitution amount further contingent upon a setoff for the work performed by the Defendants, make it clear that the Judgment is not a “final judgment” for purposes of a civil collection.” Defs.’ Supp. Br. at 3. Thus, Oelsner claims that the restitu- tion order should be treated as a civil judgment governed by civil judgments finality rules. Id. at 2-3 (“The Writ of Execution filed in this proceeding effectively transformed the criminal order of restitution into a civil judgment.”). The Court of Appeals for the Third Circuit, however, has determined that the civil enforcement of a criminal resti- tution order does not “transform| ] that order into a civil judgment.” United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985) (holding that restitution order imposed under Victim Witness Protection Act, 18 U.S.C. §§ 3579, consti- tutes criminal penalty and therefore is “not subject to the jury trial guarantee of the Seventh Amendment”). More- over, in a published opinion, the Third Circuit upheld the instant restitution order, finding that this Court did not abuse its discretion. United States v. West Indies Transport, Inc., 127 F.3d 299, 315 (3d Cir. 1997). In doing so, the Third Circuit implicitly held that the order constituted a final judgment authorizing appellate review. Id. Moreover, in affirming the order of restitution, the Third Circuit acknowledged that the restitution amount was subject to reduction: App. 25 The district court calculated restitution based on Coast Guard estimates of the costs required to clean defendants’ environmental damage. The district court also ordered that if the ultimate cost of the clean up is lower than the Coast Guard estimate, any amount over the actual costs shall be returned to the defendants. Id. The Third Circuit concluded that “This sensible approach appears appropriate and does not constituie an abuse of discretion.” Id. Accordingly, this Court rejects Oelsner’s argument that the restitution order lacks final- ity, and therefore is defective as a matter of law. 2. Findings of Fact Respecting Restitution Order Oelsner also asserts that the Court failed tc make appropriate findings when it ordered restitution. In determining whether to order restitution, a court “shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and [other appropriate factors]. 18 U.S.C. § 3664, amended by 18 U.S.C. § 3664 (1996). Defendants did not include this challenge in its appeal to the Third Circuit, which affirmed the order of restitution. See West Indies Transport, Inc., 127 F.3d at 315. Nor did defendants raise this issue at the April 19, 1999 hearing on defendants’ first motion to quash the government's writ. Accordingly, this argument has been waived. Moreover, notwithstanding defendants’ assertions to the contrary, the Court, at sentencing, did issue findings App. 26 as to the need for and amount of restitution, stating, “IT]he Coast Guard, after having given allowance to everything that this defendant has done in terms of clean- up, finds that it would .. . still take $1,440,450 to com- plete. I will accept that figure.” Tr. at 87. In addition, the Court issued extensive findings respecting defendants’ ability to pay the restitution amount:® Defendant W. James Oelsner has directed and controlled all the assets held by all of the corporations listed in Exhibit 27 of the financial report of the Price, Waterhouse certified public accountant, and I find that he is the owner of the assets set forth below. These assets include commercial boats val- ued between $3 million and $5 million; real estate located in St. Thomas, USVI; an expecta- tion interest in insurance recoveries caused by Hurricanes Hugo and Marilyn, the real estate located in Oyster Bay, New York, valued between $4.5 and 26 million. [ ] 6 In his reply, Oelsner asserts that the Court’s findings concerning his ability to pay were erroneous, because the basis for these findings, the report of John J. O’Connor, is “biased and inaccurate.” Reply Br. at 5. Oelsner also challenges Mr. O’Connor’s competency in admiralty law and further alleges, “This] report even fails to comply with accounting standards that govern his profession.” Id. To bolster these assertions, Oelsner\attaches a report by Stanley I. Foodman, CPA, dated March 16, 2000, which purports to reveal errors in Mr. O’Connor’s report. See Reply Br., Ex. A. Oelsner’s reliance on Foodman’s report, however, is too little too late. This report was submitted for the first time with the reply on March 16, 2000, almost four years after the Court’s judgment and findings, and eleven months after the April 19, 1999 hearing on the first motion to quash. yea ea eS ee Eee ee! he oo App. 27 I find that the defendants have the ability to pay any restitution or fines which the Court may order. [ ]. The Court further finds that the defendants are able to earn substantial sums of money, sums that are far in excess of the stated incomes listed in the presentence report. W. James Oelsner lists his salary as $80,000 per annum. However, expert testimony estab- lished that the present costs of his lifestyle sig- nificantly exceeds that salary. Moreover, Exhibit 27 establishes that he reg- ularly organizes and completes multi-million dollar transactions in the shipping business. Defendant Oelsner is in good health, and has been actively engaged in his business. Barring an unforseen change in circumstances, he should be able to continue to work in his busi- ness. Finally, Defendant Oelsner has no financial debts, and I find that he does have, as I stated, had the earning capacity and the assets to pay for any restitution of fines ordered in this case. Tr. at 83-85. Therefore, defendants’ assertion that the Court’s findings were insufficient is without merit. 3. Calculation of the Restitution Amount As additional grounds for quashing the govern- ment’s writ of execution on the Wittug, Oelsner chal- lenges the Court’s method or process in calculating the amount of the restitution award. Specifically, Oelsner claims that the Court improperly included in the restitu- tion judgment amounts for losses which do not directly App. 28 relate to the conduct for which defendants were con- victed. Moreover, Oelsner argues that the offenses for which he was convicted constitute crimes having no clear victim within the meaning of 18 U.S.C. § 3663, and thus the restitution amount must be limited to the amount of fines imposed by the Court.” As previously mentioned, the Third Circuit has affirmed the instant restitution order against challenges by defendants concerning the restitution amount. See United States v. West Indies, 127 F.3d at 315. In that appeal, “Defendants . . . impl[ied], though they d[id] not clearly argue, that the amount of restitution was excessive given the amount of environmental damage caused by their criminal conduct.” Id. The Third Circuit rejected defen- dants’ argument, finding that the restitution award was “appropriate and [did] not constitute an abuse of discre- tion.” Id. Thus, defendants’ present objections to the amount of the restitution award are barred by the man- date rule and the law of the case.® Under these doctrines, a district court is precluded from reconsidering issues that have been decided either expressly or by necessary implication. See, e[.]g., Bolden v. Septa, 21 F.3d 29, 31 (3d 7 As the Court ordered Oelsner to pay $95,500 in fines, he argues that the restitution order is limited to.this amount. 8”’The ‘mandate rule’ bars a district court from ‘reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals,’ ” Robert Billet Promotions, Inc., 1998 WL 721081 at *5 (quotation omitted), while the law of the case doctrine precludes a district court from reconsidering its own decisions in the same case absent extraordinary circumstances. See, e.g., General Refractories Co., 1998 WL 961380 at *4. ee eee ee ae, eS App. 29 Cir. 1994); Pension Benefit Guaranty Corp. v. White Consoli- dated Industries, Inc., 1999 WL 680185 (W.D. Pa. July 21, 1999); General Refractories Co. v. Travelers Insur. Co., 1998 WL 961380 (E.D. Pa. Dec. 15, 1998); Robert Billet Promo- tions, Inc. v. IMI Cornelius, Inc., 1998 WL 721081 (E.D. Pa. Oct. 14, 1998). In concluding that the restitution award was not excessive “given the amount of environmental damage caused by [defendants’] criminal conduct,” the Third Circuit necessarily determined by implication that the restitution award properly related to losses caused by defendants’ criminal conduct to which the government was a victim eligible for recompense.? Furthermore, defendants have waived these argu- ments by failing to raise them during the April 19, 1999 hearing on their first motion to quash. While the law of the case doctrine permits review of issues under extraor- dinary circumstances, see Bolden v. Septa, 21 F.3d 29, 31 (3d Cir. 1994); Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc., 1999 WL 680185 (W.D. Pa. July 21, 1999); General Refractories Co. v. Travelers Insur. Co., 1998 WL 961380 (E.D. Pa. Dec. 15, 1998); Robert Billet Promotions, Inc. v. IMI Cornelius, Inc., 1998 WL 721081 (E.D. Pa. Oct. 14, 1998), the Court finds no such circum- stances here. ° Assuming arguendo that the ruling by the Third Circuit affirming the restitution order did not encompass defendants’ current challenges, defendants failed to expressly raise these challenges on direct appeal, thereby waiving them. See Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 802 (3d Cir. 1987); Pension Benefit Guaranty Corp., 1999 WL 680185 at *34. App. 30 Based on the reasons stated above, defendants’ motion to quash or stay the government's writ of execu- tion on the Wittug will be denied. B. Witwater’s Motion for New Trial Fed. R. Civ. P. 59(a) provides in pertinent part: A new trial may be granted to all or any of the parties and on all or part of the issues (2) in an action tried without a jury, for any of the rea- sons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open judgment if one has been entered, take addi- tional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judg- ment. A motion-for a new trial is not a proper vehicle for an “unsuccessful party to ‘rehash’ the same arguments and facts previously presented.” Keyes v. National Railroad Pas- senger Corp., 766 F.Supp. 277 (E.D. Pa. 1991); see also Ball v. Interoceanica Corp., 71 F.3d 73, 76 (2d. Cir. 1995) (“ ‘A trial court should not grant a new trial merely because the losing party can probably present a better case on another trial.’ ”) (quotation omitted). Instead, such motion ‘should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.” 11 Charles A. Wright et al., MOORE'S [sic] FEDERAL PRACTICE & PROCEDURE § 2804, at 53 (2d ed. 1995). In considering a motion for new trial, the trial judge is afforded wide discretion. yy eee Pt ae eee ee Tee ee App. 31 _ Keystone Floor Products Co. v. Beattle Mfg. Co., 432 F.Supp. 869, 877 (E.D. Pa. 1977). ‘Witwater asserts two separate bases in support of its motion for new trial: (1) that the Court erred as a matter of law in placing on Witwater the burden of proving actual ownership and control of the Wittug and (2) that the Court erred as a matter of fact in finding that Oelsner had asserted sufficient control over the Wittug to obtain equitable ownership thereof. These arguments are with- out merit. 1. Allocation of Burden of Proof In the July 19, 1999 Opinion, this Court stated as a matter of law that any person or entity claiming an own- ership interest in property in which the United States, as judgment creditor, seeks to levy bears the burden of proving such ownership. 57 F.Supp.2d 198 (citing to United States v. Coluccio, 842 F.Supp. 663, 665 (E.D.N.Y. 1994), vacated on other grounds, 51 F.3d 337 (2d Cir. 1995)). With regard to this burden, the Court explained that a demonstration of legal title to the property was insuffi- cient, as “the record owner of the property . . . [also] must provide some evidence of control.” Id. Acknowledging that Witwater did hold legal title to the Wittug, this Court nonetheless found that Witwater had not satisfied its burden of proof, as it presented no “evidence indicating that the Wittug [was] under its control.” Id. In its four- page brief in support of a new trial, Witwater asserts that the Court committed prejudicial error in requiring Wit- water “to disprove the Government's claim that Oelsner App. 32 controlled the [Wittug].” Witwater’s Supp. Br. at unnum- bered p. 2. Witwater argues that upon its proof of legal title to the Wittug, the Court should have shifted to the United States the ultimate burden of proving Oelsner’s control of the vessel and resulting equitable title thereto. Fatal to Witwater’s argument is its obvious failure to provide any legal authority to support this position. A motion for new trial carries with it a substantial burden. Clearly, an unsubstantiated allegation that the Court erred as a matter of law woefully fails to satisfy such burden. In light of Witwater’s neglect to cite to any authority to the contrary, this Court affirms its holding with respect to burden allocation as set forth in the July 19, 1999 Opinion. 2. Evidence [C]oncerning Agency/Control As alternative grounds for a new trial, Witwater argues that the Court’s finding that Oelsner obtained equitable ownership of the Wittug was inconsistent with the weight of the evidence. First, Witwater argues that certain exhibits submitted at the hearing demonstrate that Oelsner was not the equitable owner of the Wittug. Relying on Oelsner’s Exhibits 40, 41, 42, 46, 47 and 48,10 Witwater claims “[t]hese documents refute the Price- 10 Exhibit 40 is an affidavit of Carl Janson, whom Oelsner alleges and the affiant claims is the owner of Oceanic and Finance Corporation. This affidavit was taken in support of a motion to dismiss claims filed in a separate, unrelated civil action in the District of Puerto Rico. oe eae ee a ee er Pe Pere ee ee eee ee App. 33 Waterhouse report claiming that Oelsner controlled Chal- lenger Limited” and also establish that Oelsner acted as agent of “many companies.” Witwater Supp. Br. at 2. However, with the exception of exhibit 47, Witwater fails to provide any explanation as to how these documents “refute the Price-Waterhouse report” or establish Oelsner’s role as agent, and the Court finds no indica- tions of its own.!! Exhibit 41 is a copy of a share certificate for West Indies Transport Co., Inc. dated November 18, 1966, wherein Oceanic and Finance Corporation is named the owner of 10 (ten) shares of West Indies Transport capital stock. Exhibit 42 is a copy of a share certificate for WIT Equipment Co., Inc. dated August 10, 1992, wherein Americo Pagliughi is named the owner of 10 (ten) shares. Exhibit 46 is an addendum to an agreement entered into by Continental Shipping Corp, Compania Columbiana de Navegacion Maritima, and Oceanic Operations Corp. The signature representing the interests of Oceanic Operations Corp. reads, “W. James Oelsner.” The original agreement to which the addendum applies has not been provided to the Court. Exhibit 47 is an agency agreement dated October 1, 1980 appointing West Indies Transport Co., Inc. as agent for West Indies Transport LTDA., S.A. The signature, “W. James Oelsner” appears on the line representing the interests of West Indies Transport Co. Exhibit 48 is an agency agreement dated October 1, 1994 appointing Puerto Rico Operations Inc. as agent for West Indies Transport LTDA., S.A. Mr. Oelsner’s signature does not appear anywhere in the agreement. "It should be noted that it is hardly expeditious or appropriate for the Court to sift, post-trial, through various documents of record absent explication by the proponent concerning the document’s specific relevance and contribution App. 34 Exhibit 47, an agency agreement between West Indies Transport LTD. and West Indies Transport Co., Inc., is the only document for which Witwater provides any analysis, the extent of which is as follows: For example, Exhibit 47 establishes Oelsner’s appointment as agent for West Indies Transport LTD A.S.A., a company that “manages” Chal- lenger Limited, Charter Transport Line, and West Indies Transport, Co., Inc., among other companies. It is undisputed that West Indies Transport Company, Inc. acted as agent for the Wittug in St. Thomas. Id. at 3 (emphasis in original). From this, Witwater con- cludes, “Clearly, Witwater did establish evidence of agency relationship with Oelsner. This evidence also refutes the perception of control in the nature of owner- ship that is unsupported, but alluded to, in the Pricewa- ter House Report.” (emphasis in original). The Court, however, reviewed exhibit 47 before issu- ing its June 19, 1999 Opinion and Order wherein it found Oelsner to be the equitable owner of the Wittug. At that time, the Court determined that exhibit 47 did not sup- port a different conclusion, and the Court, now reviewing the document a second time, finds no error in its original determination. Finally, Witwater seeks to supplement the record with several exhibits which purport to demonstrate that Oelsner acted as agent for Witwater. At the conclusion of the April 19, 1999 hearing, the Court indicated that the to the proponent’s legal argument. This Witwater has failed to do. App. 35 parties could submit post-hearing briefs. See April 19, 1999 Hearing Tr. at 148. Despite this invitation, Witwater filed no post-hearing brief. Witwater now requests, some time after issuance of the Court’s opinion determining that Oelsner equitably owned the Wittug, that the Court consider these new exhibits and grant a new trial. This the Court declines to do. Witwater has provided no rea- sons for failing to proffer these documents at the April 19, 1999 hearing. Nor were these documents provided, as attachments to a post-hearing brief, to the Court for review.'? By failing to present this evidence both at the hearing and during the time allotted for the filing of post- hearing briefs, Witwater foreclosed any opportunity it may have had for the Court’s consideration of this evi- dence. As a result, the Court will not review the new exhibits. C. Witwater’s Motion to Supplement its Motion for New Trial On November 9, 1999 Witwater filed a motion to supplement its motion for new trial to include three additional exhibits, which purported to establish the exis- tence of an agency relationship between Oelsner and Witwater, that are not part of the record. For the reasons 2 As explanation for failing to file a post-trial brief containing these documents, Witwater states, “Witwater’s counsel did not understand that post-trial briefing included permission to supplement the record with additional evidence (a somewhat unusual procedure) and a review of the record does not indicate a specific invitation to add additional record to the evidence.” Witwater’s Supp. Br. at 3. App. 36 stated above, Witwater’s motion to include these docu- ments, which were neither proffered at the April 19, 1999 hearing nor submitted with a post-hearing brief, will be denied. As Witwater has failed to present to the Court com- pelling reasons justifying a new trial, its motion for a new trial will be denied. Moreover, Witwater’s request to amend the judgment also will be denied for failure to present any arguments supporting this relief. Ill. CONCLUSION For the reasons stated herein, Defendants’ motion to quash or stay the writ of execution on the Wittug will be denied, Witwater’s motion for a new trial will be denied, and Witwater’s motion to supplement its motion for a new trial also will be denied. The Court will enter an appropriate order. Dated: March 24, 2000 /s/ S. Brotman | HON. STANLEY S. BROTMAN UNITED STATES DISTRICT JUDGE (Sitting by Designation) ATTEST: ORINN F. ARNOLD Clerk of the Court By: Deputy Clerk cc: James A. Hurd, Jr., Esq., United States Attorney Curtis V. Gomez, Esq., Assistant U.S. Attorney Federal Building & U.S. Courthouse 5500 Veteran’s Drive, Ste. 260 ~ SABER PS He Fh “SPN gS aE SPS RS App. 37 Charlotte Amalie St. Thomas, VI 00802-6424 Andrew L. Capdeville, Esq. ANDREW L. CAPDEVILLE, P.C. Nisky Center, Ste. 201 St. Thomas, VI 00804 Andrew C. Simpson, Esq. BRYANT WHITE & BARNES, P.C. 47 King Street, 2nd Floor Christiansted St. Croix, VI 00820 Curtis Gomez, Esq., Assistant U.S. Attorney James S. Carroll, Esq., Assistant U.S. Attorney Federal Building & U.S. Courthouse 5500 Veteran’s Drive, Ste. 260 Charlotte Amalie St. Thomas, VI 00802-6424 App. 38 DISTRICT COURT OF THE VIRGIN ISLANDS, Division of St. Croix. UNITED STATES of America and Government of the Virgi. Islands, Plaintiffs, V. WEST INDIES TRANSPORT CO., INC., Wit Equipment Co., Inc., and W. James Oelsner, Defendants. WITWATER CORPORATION, Petitioner, Vv. MICHAEL E. MURPHY, in his capacity as Area Port Director for the United States Customs Service, Respondent. CRIM. A. No. 93-195. CIV. A. No. 98-104. Dec. 16, 1998. James A. Hurd, Jr., United States Attorney, Curtis V. Gomez, Assistant U.S. Attorney, Charlotte Amalie, St. Thomas, VI, for Plaintiff United States of America. Treston E. Moore, Moore & Dodson, St. Thomas, VI, for Defendant W. James Oelsner. Andrew C. Simpson, Bryant White & Barnes, P.C., St. Croix, VI, for Petitioner Witwater Corporation. Curtis Gomez, Assistant U.S. Attorney, James S. Car- roll, Assistant U.S. Attorney, Charlotte Amalie, St. Thomas, VI, for Respondent Michael E. Murphy. + App. 39 OPINION ON DEFENDANTS’ MOTION TO QUASH AND OPPOSITION TO WRIT OF EXECUTION AND. DEFENDANTS’ MOTION TO STAY AND CONSOLIDATE AND DEMAND FOR HEARING OPINION ON MOTION OF WITWATER CORPORATION TO INTERVENE AND TO STAY OR QUASH EXECUTION OF WRIT OPINION ON MOTION TO DISMISS BROTMAN, District Judge, Sitting by Designation. Presently before the Court are the following motions: (1) a motion filed by W. James Oelsner (“Oelsner”) on behalf of all of the defendants to Criminal Action No. 93-195 to quash the writ of execution filed by the United States in that action and to be granted a hearing on this matter; (2) a motion filed by Witwater Corporation (“Witwater”) to intervene and to stay or quash the writ of execution filed by the United States in Criminal Action No. 93-195; and (3) a motion to dismiss filed by the United States in Civil Action No. 98-104. I. FACTUAL AND PROCEDURAL BACKGROUND On March 26, 1996, this Court entered a judgment against Oelsner (“Oelsner Judgment”)! which imposed a } The jury found Oelsner guilty of the following offenses: (1) violation of the Clean Water Act, 33 U.S.C. § 1311(a), 33 U.S.C. § 1319(c)(2)(A), 18 U.S.C. § 2; (2) violation of the Rivers and Harbor Act, 33 U.S.C. § 403, 33 U.S.C. § 406; (3) violation of the Ocean Dumping Act, 33 U.S.C. § 1411(a)(1), 33 U.S.C. § 1415(b)(1), 18 U.S.C. § 2; (4) conspiracy to defraud the United States, [18 U.S.C. § 371,] 26 U.S.C. §[§] 86[1}(a)(3)[, 871(a)](1)(A); and (5) fraud, misuse of visas, 18 U.S.C. § 2, 18 U.S.C. § 1546. See United States’ Opposition, Attach. 2. App. 40 prison sentence and required Oelsner to pay $1,440,450.00 in restitution? and $95,500 in fines. See Opposition of the United States to the Emergency Motion of Witwater Cor- poration to Intervene and to Stay or Quash Execution (“United States’ Opposition”), Attach. 2. Also on March 26, 1996, this Court issued criminal judgments against West Indies Transport, Inc. (“West Indies”) and WIT Equipment Co., Inc. (“WIT Equipment”) in the same mat- ter. All three judgments contained identical lists of ves- sels and real estate associated with the defendants that the Court determined were subject to liens. See id. Included in the list was the vessel Wittug. See id. On April 16, 1996, the United States recorded a lien against the Wittug at the Recorder of Deeds, Division of 2 With regard to the amount of restitution Oelsner was required to pay, the judgment stated as follows: The defendant shall pay restitution within Sixty (60) days from today’s date provided, however, that if the costs of these cleanup efforts are less than the amount to which the Court made reference of $1,440,450.00, credit will be given to the defendants to that extent. Any restitution payments made by defendants West Indies Transport, Inc. and/or WIT Equipment Co., Inc. shall be applied to reduce this amount accordingly. United States’ Opposition, Attach. 2. 3 The Court ordered West Indies to pay $3,520,500.00 in fines and $1,440,450.00 in restitution. The Court ordered WIT Equipment to pay $1,520,500.00 in fines and $1,440,450.00 in restitution. In both the West Indies and the WIT Equipment judgments, the Court stated that any restitution payments made either by the company not subject to the judgment or by Oelsner would be applied to reduce the amount of restitution owed by the company subject to the judgment. a ae ee ee ne ee App. 41 St. Croix to satisfy the $1,440,450.00 judgment previously entered against Oelsner. See id., Attach. 3. On November 9, 1998, the United States applied for a writ of execution on the Oelsner Judgment against the Wittug, serving Oelsner with a copy of the application by mail on November 10, 1998. Also on November 9, 1998, Witwater Corporation (“Witwater”) filed an emergency motion to intervene and to stay or quash execution of the writ. On November 12, 1998, this Court issued the writ. On November 23, 1998, Oelsner filed a motion to quash the writ of execution and to obtain a hearing on the matter.4 In addition to attempting to intervene in the United States’ case against Oelsner, Witwater has filed its own action regarding the Wittug. On May 22, 1998, Witwater filed a petition for order of mandamus, alleging that it owns the Wittug and that the United States Customs Service has wrongfully denied the Wittug clearance to depart St. Thomas, USVI where it is currently docked. See Petition for-Order of Mandamus, §§ 6, 7, 9, 17. On August 7, 1998, the United States filed a motion to dismiss the petition, arguing that the Court lacked jurisdiction to issue an order of mandamus in such an action and that Witwater failed to exhaust its administrative remedies before filing the petition. On November 10, 1998, the Court heard argument on this motion (“hearing”) and ordered that the hearing transcript be made part of the criminal action pending against Oelsner as well as part of the mandamus action Wit vater initiated. * Oelsner alone brings the motion to quash and to obtain a hearing, stating that the other corporate defendants are defunct. See Defendants’ Motion at 1, n. 1. App. 42 II. DISCUSSION A. DEFENDANTS’ MOTION TO QUASH AND DEMAND FOR HEARING IN CRIMINAL ACTION NO. 93-195 The writ of execution in this matter was applied for and issued pursuant to the Federal Debt Collection Pro- cedures Act of 1990, 28 U.S.C.A. § 3001 et seq. (“Act”) which provides “the exclusive civil procedures for the United States . . . to recover a judgment on a debt.” See United States’ Opposition, Attach. 4, 5; 28 U.S.C.A. § 3001(a)(1) (West 1994). The Act permits the enforcement of a judgment by writ of execution but requires that the judgment debtor be notified of the writ and given 20 days to request a hearing. See 28 U.S.C.A. § 3202(a),(b) (West 1994). When requesting a hearing, the judgment debtor may also request that the Court quash the writ. See 28 U.S.C.A. § 3202(d) (West 1994). The issues that may be addressed at the hearing are limited by the Act and include “the probable validity of any claim of exemption by the judgment debtor” and “compliance with any statu- tory requirement for the issuance of the postjudgment remedy.” 28 U.S.C.A. § 3202(d) (West 1994). Oelsner filed his request for a hearing and to quash the writ within 20 days after receiving notification of the writ of execution. Oelsner makes several arguments in support of his request. First, Oelsner argues that neither he nor the other defendants to Criminal Action No. 93-195 owns the Wittug upon which the United States has executed judgment. See Defendants’ Motion, § 2. Accord- ing to both Oelsner and Witwater, the actual owner of the vessel is Witwater. See id., § 3; Witwater’s Emergency i oa tis es ee ee ee App. 43 Motion to Intervene and to Stay or Quash Execution (“Witwater’s Emergency Motion”) at 2; Witwater’s Reply at 1. The Act permits the United States to execute on “{a]ll property in which the judgment debtor has a sub- stantial nonexempt interest.” 28 U.S.C.A. § 3203(a) (West 1994). The Act defines “property” as “any present or future interest, whether legal or equitable, in real, per- sonal . . . , or mixed property, tangible or intangible, vested or contingent, wherever located and however held. ...” 28 U.S.C.A. § 3002(12) (West 1994). The United States claims that Oelsner has an equitable interest in the Wittug based on statements contained in a Price Water- house report that was made a part of Oelsner’s sentenc- ing hearing. See United States’ Opposition at 4. Oelsner claims that neither he nor his co-defendants is the equita- ble owner of the Wittug and disputes the present validity of the Price Waterhouse report. See Defendants’ Motion, § 4.° Whether Oelsner is the equitable owner of the Wit- tug is a question which must be resolved at a hearing on the writ. In his motion, Oelsner also requests that the hearing provide a forum for determining the amount of restitu- tion which is due and owing. Oelsner contends that the restitution amount in the judgment was to have been reduced to reflect his own remediation efforts. See id., 6 5. The Oelsner Judgment indicates that “if the costs of [the ° Black’s Law Dictionary defines an equitable owner as “{o]ne who is recognized in equity as owner of the property, because real and beneficial use and title belong to him, even though bare legal title is invested in another.” Deluxe Black’s Law Dictionary 539 (6th ed.1990). App. 44 United States’] cleanup efforts are less than the [restitu- tion] amount to which the Court made reference of $1,440,450.00, credit will be given to the defendants to that extent.” United States’ Opposition, Attach. 2. The Act prohibits the use of a writ to execute judgment on prop- erty that exceeds in value the aggregate amount of the judgment. See 28 U.S.C.A. § 3203(c)(2)(B)(i) (West 1994). The cost of the remediation that remains to be done as well as the value of the Wittug are issues which must be resolved at a hearing on the writ. In his motion, Oelsner also challenges the validity of the March 26, 1996 judgment itself, arguing the judgment violated Fed.R.Crim.P. 7(c)(2). See Defendants’ Motion, § 1. This rule prohibits a judgment of forfeiture in a criminal proceeding unless the indictment or information states the extent of the interest or property that is subject to forfeiture. See Fed.R.Crim.P. 7(c)(2). Pursuant to 28 U.S.C.A. § 3202 (West 1994), a challenge to the validity of a judgment exceeds the scope of a hearing on a writ. Therefore, the Court cannot entertain argument regarding this challenge when_it considers Oelsner’s other chal- lenges to the writ of execution.® 6 Even if the Act permitted challenges to a judgment’s validity to be made at a writ hearing, the Court would not entertain Oelsner’s forfeiture argument because it is completely devoid of merit. Forfeiture is a term of art used to refer to a criminal defendant’s divestiture of property as a penalty for violating certain statutes. See Deluxe Black’s Law Dictionary 650 (6th ed.1990). Criminal defendants who receive this penalty must forfeit the property used in the commission of the crime as well as property acquired from the proceeds of the crime. See id. Forfeiture may not be imposed unless a statute specifically provides for it. See United States v. Charles D. Kaier Co., 61 F.2d —————————— App. 45 B. WITWATER’S MOTION TO INTERVENE IN CRIMINAL ACTION NO. 93-195 AND TO STAY OR QUASH THE WRIT OF EXECUTION Even before this Court issued the writ of execution, Witwater had filed a motion requesting that it be permit- ted to intervene in the United States’ action against Oelsner with regard to the then-anticipated writ. See Witwater’s Emergency Motion at 1. In its motion, Witwa- ter alleges that it is the legal owner of the Wittug and that the writ therefore violates its due process rights. See id.; Witwater’s Reply at 1. At the November 10, 1998 hearing, the United States indicated that it had no objection to Witwater’s intervention for the limited purpose of object- ing to the writ of execution. See Hearing Transcript at 12-13. In the defendants’ motion, Oelsner indicates the same. See Defendants’ Motion at 2. The Court will there- fore grant Witwater’s motion to intervene for the limited purpose of challenging the writ of execution issued in Criminal Action No. 93-195. In its motion to intervene, Witwater also requests that the Court stay or quash the writ of execution it issued on November 12, arguing that procedural defects preclude execution pursuant to the writ. First, Witwater argues that a criminal restitution judgment may not be executed upon without the Court first conducting a sepa- rate civil action to determine the amount of restitution that is due and owing. See Witwater’s Emergency Motion 160, 162 (3d Cir.1932). The statutory provisions under which Oelsner was convicted did not contain forfeiture penalties, nor was the Court’s imposition of a fine and restitution in the nature of a forfeiture. App. 46 at 2-3. Second, Witwater argues that the United States may not collect restitution from Oelsner because the resti- tution order fails to identify the United States as the restitution payee. See id. at 3. Finally, Witwater argues that the United States failed to perfect its lien against the Wittug. See id. at 3-4. The Court finds that these argu- ments are without merit and will not permit them to be raised at the hearing on the writ in which Witwater has been given permission to participate. The Act provides a means for the United States to enforce either civil or criminal judgments pursuant to which it is owed a debt. See 28 U.S.C.A. § 3002(8) (West 1994). The Act permits both civil and criminal judgments to be enforced by any of the remedies described therein, including the issuance of a writ of execution. See 28 U.S.C.A. § 3202(a) (West 1994). Contrary to Witwater’s position, the Act does not contain any language indicat- ing that a writ may not be issued to enforce a criminal judgment until a civil judgment has been entered in the same case. In fact, at the time Oelsner was sentenced, the United States Code explicitly permitted criminal restitu- tion orders to be enforced in the same manner as criminal fines. See 18 U.S.C.A. § 3663(h) (West Supp.1996). The imposition of a fine created a lien in favor of the United States upon all property belonging to the person fined. See 18 U.S.C.A. § 3613(a) (West Supp.1996). The lien arose at the time the judgment was entered. See id. A fine, as well as an order of restitution, could “be enforced by execution against the property of the person fined in like manner as judgments in civil cases.” 18 U.S.C.A. § 3613(e) aaa EL Le App. 47 (West Supp.1996).”7 The Court therefore concludes that Witwater is mistaken in its assertion that a civil judgment must follow a criminal judgment in order for a writ of execution to issue pursuant to the Act. While Witwater accurately points out that the Court’s March 26, 1996 restitution order omits the payee’s name, it incorrectly asserts that this omission prevents the United States’ from executing on the judgment. Both the sentencing hearing transcript and subsequent correspon- dence indicate that the Court intended the payee to be the United States because the United States Coast Guard would be responsible for cleaning up the contaminated site. See United States’ Opposition, Attach. 8 at 82-83 (“The Court finds that the cost of removal as originally submitted to the Court by the Coast Guard was $2,543,684.51.”); id., Attach. 9 (May 26, 1998 letter from the Coast Guard to Richard Brown & Associates, Marine Surveyor, regarding approval of plan for salvage of the Marlago, one of the vessels listed in the Court’s March 26, 1996 judgment against Oelsner as subject to lien). Fed.R.Crim.P. 36 permits the Court to correct omissions like the one presently before the Court.§ Pursuant to this 7 Both 18 U.S.C.A. § 3663(h) and 18 U.S.C.A. § 3613(a), (e) were amended by Pub.L. 104-132 which became effective in cases in which the defendant was convicted on or after April 24, 1996. Because the Court entered Oelsner’s conviction on March 26, 1996, Oelsner was not affected by these amendments. 8 Fed.R.Civ.P. 36 states that “[c]lerical mistakes made in judgments, orders or other parts of the record and errors in the record arising from oversight oromission may be corrected by the court at any time and after such notice, if any, as the court orders.” App. 48 rule, the Court will amend the March 26, 1996 judgments against Oelsner, West Indies, and WIT Equipment to include the United States as the restitution payee. The Court will not quash the writ of execution based on its failure to include the name of the payee in its original restitution order. Nor will the Court quash the writ based on Witwa- ter’s argument that the United States’ lien against the Wittug was never perfected. Pursuant to 18 U.S.C.A. §§ 3663(h) and 3613(a), the entry of judgment against Oelsner created a lien on the Wittug. The United States perfected this lien by recording a notice of the lien on April 16, 1996 at the Recorder of Deeds, Division of St. Croix. See United States’ Opposition, Attach. 3. C. UNITED STATES’ MOTION TO DISMISS WITWATER’S PETITION FOR ORDER OF MANDAMUS IN CIVIL ACTION NO. 98-104 Even before Witwater attempted te intervene in Criminal Action No. 93-195, it filed a petition for order of mandamus, claiming that it owned the Wittug and that the United States Customs Service wrongfully denied the Wittug clearance to depart St. Thomas, USVI where it was - and still is - docked. The United States has moved to dismiss Witwater’s petition, making two arguments in support of its motion. First, the United States argues that this Court lacks jurisdiction to issue an order of man- damus in Witwater’s action.? The United States contends 9 Pursuant to Fed.R.Civ.P. 12(h)(3), a court must dismiss an action “[wJhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter.” App. 49 that a district court may only issue an order of man- damus to compel a federal officer or employee to perform a mandatory, rather than a discretionary, duty. See Mem- orandum in Support of Motion to Dismiss (“United States’ Dismissal Brief”) at 3. According to the United States, the decision of the Port Director for the United States Customs Service to grant or deny clearance to depart a port is discretionary, not mandatory. See id. For this reason, the United States argues that this Court lacks jurisdiction to issue an order of mandamus compelling the Port Director to grant the Wittug clearance to leave St. Thomas. See id. 28 U.S.C.A. § 1361 (West 1993) states that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” The Third Circuit has determined that this provision confers jurisdiction “where a clear duty is owed the plaintiff or there is an abuse of discre- tion.” Grant v. Hogan, 505 F.2d 1220, 1225 (3d Cir.1974). The law regarding the clearance of vessels bound for foreign ports is laid out at 46 U.S.C.A.App. § 91, in the federal regulations promulgated in accordance with this section, 19 C.FR. § 4.0 et seq, and in numerous other U.S.C.A. provisions. See, e.g., 8 U.S.C.A. § 1221 (West Supp.1998) (lists of alien and citizen passengers arriving and departing); 8 U.S.C.A. § 1253 (West Supp.1998) (fail- ure of aliens to depart); 16 U.S.C.A. § 1376 (West 1985) (unlawful taking of a marine mammal); 46 U.S.C.A. § 2110 (West Supp.1998) (failure to pay customs fee); 46 U.S.C.A. § 100 (West 1958) (failure to pay legal fee). Pursuant to 46 U.S.C.A. app. § 91 (West Supp.1998), any United States or foreign vessel “shall obtain clearance App. 50 from the Customs Service before proceeding from a port or place in the United States.” 19 C.F.R. § 4.61(a) (1998) describes the procedure for obtaining clearance from the Customs Service. 19 C.F.R. § 4.61(b) (1998) lists a number of requirements with regard to which a port director must verify compliance before granting clearance. As the other U.S.C.A. provisions regarding vessel clearance make clear, this list is not exhaustive. Contrary to the United States’ position, a port direc- tor’s duty to grant clearances is mandatory, not discre- tionary. See 34 Op. Att’y Gen. 244 (1923).19 A port director must comply with the statutes governing vessel clear- ance, granting clearances unless some statutory authority justifies his refusal to do so. See id.11 Whether Murphy complied with his mandatory duty to grant clearances when he denied clearance to the Wittug is the question presented by Witwater’s petition. It is a question that is within the jurisdiction of the Court to answer, pursuant to 28 U.S.C.A. § 1361. 10 The Attorney General predicated this holding on the 1923 language of 46 U.S.C.A.App. § 91, specifically the statement that the collector “shall grant a clearance for the vessel and cargo.” See 34 Op. Att’y Gen. 244 (1923). While this language is not [sic] longer part of the statute, the federal regulations promulgated pursuant to the current statute contain similar language, describing the procedure for obtaining clearance and stating that “[c]learance shall be granted.” 19 C.F.R. § 4.61(a). 11 The Attorney General opinion cited for this proposition also states that a customs official may deny a clearance if the papers presented to him are not regular and legal on their face or if the vessel is burdened with a lien in favor of the United States. See 34 Op. Att’y Gen. 244 (1923). App. 51 The second argument the United States makes in support of its motion to dismiss Witwater’s petition is that Witwater has failed to exhaust its administrative remedies. The Supreme Court has determined that man- damus relief is only available if “all other avenues of relief” have been exhausted. Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984). The United States argues that Witwater should have protested the port director’s decision to deny clearance to the United States Court of International Trade in accordance with 19 U.S.C.A. § 1514(a) (West Supp.1998). See United States’ Dismissal Brief at 5. As Witwater accurately asserts, however, 19 U.S.C.A. § 1514(a) does not apply to a port director’s decision to deny clearance. See Puget Sound Freight Lines v. U.S., 36 C.C.P.A. 70, 77-78, 173 F.2d 578, 583 (1949) (holding that the jurisdiction conferred upon the Customs Court, cur- rently known as the Court of International Trade, and the Court of Customs and Patent Appeals, currently the Fed- eral Circuit, by 19 U.S.C.A. § 1514(a) “is limited to fees and charges connected with the classification of merchan- dise and the rate of duty imposed thereon”). This Court is not aware of any administrative remedies which Witwa- ter is required to pursue before petitioning for a writ of mandamus. The Court find that it has jurisdiction over Witwa- ter’s petition pursuant to 28 U.S.C.A. § 1361 because the port director owes Witwater a nondiscretionary duty to grant the Wittug clearance and because Witwater was not required to exhaust any other avenues of relief before filing the current petition. The Court will therefore deny the United States’ motion to dismiss. App. 52 D. CONSOLIDATION OF CRIMINAL ACTION NO. 93-195 AND CIVIL ACTION NO. 98-104 Fed.R.Civ.P. 42(a) gives the Court discretion to order a joint hearing where two separate actions involving com- mon questions of law or fact are pending before the Court.!2 The purpose of this rule is to avoid unnecessary cost and delay. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 292, 12 S.Ct. 909, 911, 36 L.Ed. 706 (1892); Midwest Community Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491, 499 (N.D.I11.1983). The Court may order a joint hear- ing at the request of a party or upon its own initiative. See Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir.1964). The joint hearing does not have the effect of merging the two cases into a single case or changing the rights of the parties, “for the suits retain their separate identities and each requires the entry of a separate judgment.” Miller v. U.S. Postal Service, 729 F.2d 1033, 1036 (5th Cir.1984); see also McKenzie v. U.S., 678 F.2d 571, 574 (5th Cir.1982); Midwest Community, 98 F.R.D. at 499. Because one of the issues which must be resolved in both Criminal Action No. 93-195 and Civil Action No. 98-104 is the identity of the Wittug’s owner, the hearing 12 Fed.R.Civ.P. 42(a) states as follows: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning the proceedings therein as may tend to avoid unnecessary costs or delay. a eel os Ao hk br eee a App. 53 on the writ will serve as a joint hearing on both matters for ‘1e purpose of determining the owner of the Wittug. Witwater, Oelsner, and the United States will participate in this hearing, ensuring the presence of all parties hav- ing an interest in these actions. The joint hearing will avoid the unnecessary cost and delay of duplicative pro- ceedings on the issue of ownership. III. CONCLUSION For the foregoing reasons, the Court will grant Oelsner’s request for a hearing on the writ of execution in Criminal Action No. 93-195, grant Witwater’s motion to intervene in the hearing for the limited purpose of chal- lenging the writ, deny the United States’ motion to dis- miss [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1838%3A1. Public record. Not legal advice.