Environmental Law

A Response, Of Sorts (thanks for commenting DaisyGirl)

By Walter James

Below is a comment that I received on one of my blog posts.  I am re-posting it here, uncut and uneditted (except for correcting a few typos), as a part of the blog to give it some of the space it wants to take and to correct a few misconceptions about my blog. 

First, I do not provide ?due diligence on oversight? of any part of the Department of Justice.  It is a part of the federal government and I am but a mere taxpayer.  Second, I am a member of the Environmental Enforcement and Crimes Committee (and past chair) of the American Bar Association?s Section of Environment Energy and Resources (?EECC?); however, the EECC does not have any oversight function whatsoever over any part of the Department of Justice.  Finally, DaisyGirl refers to Michael Chalos? law firm and an attorney named

Greg Linson.  I do not know Mr. Linson; however, I am sure he is a fine attorney.  I do know Michael Chalos? firm by reputation and I do know George Chalos.  The firm and George are of the highest quality.  By the way, DaisyGirl, I have passed your post on to several friends in the defense bar and they are obtaining copies of the sentencing hearing.  Thanks . . . and enjoy the comments.

More later.

As always, feel free to contact me at walter.james@jamespllc.com

WDJiii

Mr. James, I realize this is your blog and your thoughts. You sure do not provide due diligence on oversight of the Environmental and Natural Resource division of the DOJ, do you? In your writing you state "conspiring to violate four different laws including making illegal discharges of bilge waste, in violation of the Act to Prevent Pollution from Ships". He was convicted on 3 of 4 laws. It appears you are taking the DOJ's writings as fact. You, Mr James should obtain the sentencing hearing transcripts. Specifically, you should read the twenty minutes by Judge Nickerson apologizing to Mr. Humphries and his attorney, Mr. Reginald McKamie, for even sending this case to the jury. The Judge stated the prosecution didn?t make their case and he thought the jury would ?Make the correct decision.? He then proceeded to chastise the ERN division attorneys, Richard Udell and Melinda Lawrence for bringing implied information into his court. ?If this type of case is brought before my bench ever again without absolute pollution charges instead of implied rubbish, there would be problems.? He stated since Mr. Udell and Ms. Lawrence did not meet sentencing guideline of CFR 18, he would not be accepting any of their recommendations for imprisonment or fines. The ENRD of the DOJ wanted 5 years imprisonment and a $50,000 fine of Mr. Humphries. Judge Nickerson chastised Mr. Udell for the document presented by the ENRD of the DOJ, at the sentencing hearing, stating how much oil contaminated bilge water was produced by the Tanabata in a one year period, by assumed methods, not by ?scientific? procedure. Judge Nickerson went further to state Mr Udell had emphatically dwelled on the ?unscientific? means of monitoring decanted bilge waters from the Tanabata during the trial and had the audacity to present the document that doesn?t even separate how much bilge water Mr. Humphries supposedly put over the side from the amount of water Mr. Karas, the other chief engineer put over the side. How come this isn?t in your review???

I know, this is your blog! If you?re looking for maritime companies to represent, forget it. Michael Chalos? firm won a ?whistleblowers case the summer of 2007 and Greg Linson, formerly of ENRD of DOJ (helped start the Environmental Division before the Natural Resources was added) has gone over to Blank Rome? (I see the rats jumping ship at the ENRD of the DOJ-several have left?Do they smell Congressional Hearings like the ALJ and Coast Guard concerns here??? Just a thought)   Judge Nickerson again apologized to Mr. Humphries for having to sentence him to prison time, but the law mandated this for a jury conviction. Judge Nickerson further apologized for adjudicating Pacific Gulf Marine January 2007. He should have looked closer into what the company did. The Judge implied PGM was very much at fault here and the DOJ was inappropriate in the plea agreement.

If you check in your oversight capacity, you?ll see Richard Udell was over in the fraud division of the DOJ in December, 2006 for some reason. My guess is learning all he could regarding the McNulty vs Thompson memo changes to make sure Pacific Gulf Marine?s plea agreement held up. Take a look back at the maritime company adjudications back in January 2007. There were 3, count them 3 of them. Looks suspicious to me? Another item I would like to see you look into in your capacity on the EECC oversight committee is ?How much taxpayer money was spent by the ENRD of DOJ to prosecute just Mr. Humphries?? As a matter of interest, look at MAROL Annex I, Reg 9(4). Mr. Udell and Ms. Lawrence stopped all their expert witnesses after USCG Captain Keyes read this particular MARPOL regulation into the record. Capt. Keyes had to agree the MARPOL regulation technically appeared to be what Mr. Humphries was doing was within APPS. What did the DOJ spend on experts witness preparation and not utilize to keep all the defense technical information precluded by a motion in limonene [limine] from coming in the backdoor??? How many times, on taxpayers dollars, were prosecution witnesses flown to Washington, DC, from all over the world for trial preparation??? It has been alleged for Mr. Humphries trial alone, to be $1.25 to $2 million. It was heard by one of the audience members that the second chair defense attorney, J. W. Gordon said, ?if this trial were about the truth, we wouldn?t need courts.? If you truly are on the oversight committee of the EECC, you would look further into the sentencing hearing for Mr. Humphries and what the follow up from Judge Nickerson is regarding the ENRD of the DOJ. What was Ms. Mitchell?s response to Judge Nickerson?s opinion of the way Richard Udell and Melinda Lawrence handled this case??? Do you think there will be another Maritime Captain or Chief Engineer brought up on charges without absolute proof of pollution??? Oh, where do you think the Chief Warrant Officer from the Hawaii case will go??? What was his motive??? There?s no pollution charge involved there either. Why did the DOJ bring the case against the Chief Warrant Officer anyway? Why not UCMJ??? Again, this gentleman was indicted by the DOJ for conspiracy and making false statements based on whistleblower testimony? Not a bit of evidence of ?Pollution?. What is wrong with this picture???

Why does the ENRD of the DOJ go after the working person with assumptions instead of facts??? Follow the money? You spoke in your blog?s 9/12 article ?Updates on ?Stuff? and DOJ Priorities? with Ms. Mitchell?s stating the DOJ hasn?t hit the desired deterrent effect yet regarding vessel initiative. Maybe, if APPS would catch up to the international community and correct the CFR?s, the DOJ would have their deterrent. Now a shipping company and a chief engineer has actually taken this to court and challenged the ?letter? of the law, instead of DOJ claiming the ?intent? of the law is good enough? (Doesn?t APPS fall under mens rea? Don?t you think if someone is going to be charged with a class D felony, it should be a strict liability crime???) Someone needs to see what Thomas Sansonetti started here? DOJ extortion of the marine industry under the political guise of ?Pollution? control for whatever reason? to get Reagan Democrats to vote republican? who cares? Where does most of (greater than 70%) the more than $300,000,000 collected in fines since 1999, go??? Yes, some money goes to environmental coffers, but the majority goes into the general fund of the USA. Does Ms. Mitchell have a deterrent yet?? No way? I wonder if The Environmental and Natural Resource Division of the DOJ continue to use Thompson Memo techniques. I?ll bet Richard Udell and Melinda Lawrence won?t be bringing cases like those against Mr. Humphries or Mr. Karas into a Baltimore court again? not without absolute proof. By the way Mr. James, I haven?t seen one arrest, let alone an indictment against a maritime company, captain or chief engineer since Mr. Humphries case went to trial on October, 2007. I wonder why that is??? I would like to see your opinion on this.

Full post as published by Environmental Crimes Blog on February 12, 2008 (boomark / email).