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United States v. Transportadora Maritima DE Baja California NA DE CV

November 19, 2009

UNITED STATES OF AMERICA
v.
TRANSPORTADORA MARITIMA DE BAJA CALIFORNIA NA DE CV DEFENDANT



The opinion of the court was delivered by: Manuel L. Real District Judge

S.Sec.# N/A

Residence: N/A

Mailing: SAME

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government, the defendant appeared in person, on:

NOVEMBER 18, 2009

Month / Day / Year

COUNSEL:

However, the court advised defendant of right to counsel and asked if defendant desired to have counsel appointed by the Court and the defendant thereupon waived assistance of counsel.

XX WITH COUNSEL Marc Greenberg, retained _

X_PLEA:

XX GUILTY, and the Court being satisfied that there is a factual basis for the plea.

NOLO CONTENDERE NOT GUILTY FINDING:

There being a finding of GUILTY, defendant has been convicted as charged of the offense(s) of: Knowing discharge of oil into waters of the United States in violation of Title 33 USC 1321(b)(3) and 1319(c)(2) as charged in count one; Making a false statement in violation of Title 18 USC 1001(a)(2) as charged in count two; and Failing to maintain an accurate Oil Record Book in violation of Title 33 USC 1908(a), 33 CFR 151.25(a),(d) and (h) as charged in count three, of the information.

JUDGMENT AND PROBATION/COMMITMENT ORDER:

The Court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that: Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court that

IT IS ADJUDGED that defendant is placed on a term of organizational probation for five (5) years under the following terms and conditions: the corporate defendant 1) shall pay a total criminal fine of $500,000.00 as to counts 1, 2, and 3 of the information based on the statutory penalties set forth in the plea agreement, with $250,000.00 of that fine to be suspended for use in community service projects and restitution as set forth below in this judgment. Defendant shall pay both the fine and community service portion of the suspended fine as directed by the Court or the U.S. Probation Office during the period of probation. After three (3) years of probation have expired, and the total criminal fine of $500,000.00 has been paid as directed herein, probation may be terminated in this matter by way of a report by the Probation Officer and Request for Early Termination, and Order of the Court granting early termination of probation. The $500,000.00 to be paid pursuant to this judgment (and any additional criminal fine, if any, imposed for any violation of these terms of probation) constitutes the maximum penalty which shall be imposed, regardless of whether or in what manner the Court, through the Probation Office, decides to allocate any portion of that sum towards community service projects; 2) defendant shall commit no further violations of federal, state, or local law and shall conduct all its operations in accordance with the MARPOL Protocol; 3) in the event that the defendant, at any time during the period of probation, owns or operates vessels in the Waters of the United States, defendant agrees to develop and implement an Environmental Compliance Program (ECP) that consists of the following requirements: defendant shall hire an independent surveyor/auditor who will audit any vessel owned and operated by defendant that calls within the United States for compliance with MARPOL at least once per year during each of the years of probation. The surveyor/auditor's report for each qualifying, MARPOL-regulated vessel will be sent to the company, and within 15 days of such receipt the company will forward it to the United States Attorneys Office for review, along with an explanation of how any observed deficiencies were addressed by defendant. The first survey shall be conducted with 90 days of the date of sentencing; 4) defendant agrees that during the period of probation, and at all reasonable times and with as reasonable prior notice to the United States Coast Guard and United States Environmental Protection Agency (US EPA) as practicable, it will provide the Coast Guard and US EPA with full access to its vessels, as well as all facilities, employees, and records that are relevant to monitoring compliance with the terms and conditions of the ECP; 5) if defendant changes its name, the renamed company shall be obliged to meet all obligations of defendant as enumerated in this judgment. If defendant merges with another company through a stock or asset purchase, the newly-created or merged company shall be obliged to meet all the obligations of defendant under this judgment with regard to those vessels managed by defendant at the date of the merger; 6) as during the period of probation the number and identity of vessels managed by defendant may increase or decrease, any vessel the management of which is assumed by defendant and which calls in the United States shall be included within the scope of its ECP; any vessel removed from management by defendant or which stops calling in the United States shall be excluded from the scope of its ECP annual survey requirement; 7) defendant agrees to pay the special assessment, fine and restitution in accordance with the dictates ordered in this judgment.

IT IS FURTHER ORDERED that defendant pay a special assessment of $1,200.00, which is due immediately.

IT IS FURTHER ORDERED that $242,097.14 of that total fine of $500,000.00 to the United States is suspended for use in performing community service pursuant to USSG 8B1.3 and in furtherance of the sentencing principles provided for under 18 USC 3553(a); the explicit goal of defendant's community service shall be to fund environmental and public safety projects and initiatives designed for the benefit, preservation, and restoration of the environment and marine ecosystems in the Central District of California, including those dependent on or impacting the waters along the counties of Los Angeles, Orange, Ventura, Santa Barbara, and San Luis Obispo, as well as those along the Channel Islands National Park; these projects and initiatives include, but are not limited to, monitoring, study, restoration and preservation of fish, wildlife and plant resources; monitoring, study, clean up, remediation, sampling and analysis of pollution and other threats to the environment and ecosystem; research, study, planning, repair, maintenance, education, and public outreach relating to the environmental and wildlife protection laws. Accordingly, Defendant shall pay a total of $242,097.14, as directed by the Probation Officer, by depositing said sum with the National Park Foundation to be placed in the Channel Islands Law Enforcement Fund (RCISG) for the Channel Islands National Park headquartered in Ventura, California, to be used for the acquisition, operation and/or maintenance of patrol boats or other law enforcement equipment and personnel dedicated to the enforcement of public safety regulations, environmental protection regulations, and living marine resource conservation regulations within park waters and Marine Protected Areas; further, because the payments to the agencies are community service by an organization, defendant shall not seek any reduction in its tax obligations as a result of such community service payment, and defendant shall not characterize, publicize, or refer to the payment as anything other than a community service payment made as a condition of probation incidental to a criminal conviction.

IT IS FURTHER ORDERED that defendant shall pay restitution, to be paid within seven (7) days of sentencing, to the victims of the offense, The United States Coast Guard, for costs incurred in responding to, sampling for, analyzing, and investigating the violations at issue in this matter, in the amount of $7,902.86. The restitution payment shall be made payable to 'U.S. Coast Guard' with 'FPN A07014-001-09' written in the memo/note portion of the check. The payment shall be ...


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