Proceedings Of The Marine

WIN 2015

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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33 Winter 2015–2016 Proceedings example, if an IO located at Sector Northern New England subpoenas records of a company located in New Orleans, Louisiana, he or she (through the servicing legal office) would likely need to engage with the U.S. Attorney's Offce for the Eastern District of Louisiana. Under 46 USC §6304(b), a federal court has jurisdiction to judicially enforce a marine casualty subpoena. The IO must request that the court issue an order compelling the party to comply with the subpoena. A party's refusal to comply with the court order may subject him or her to various sanctions, including contempt. If the appropriate U.S. attorney's offce agrees to support subpoena enforcement, the next step involves drafting and fling a petition for enforcement. The petition should be accompanied by a written declaration from the Coast Guard describing in detail: • the casualty, • the Coast Guard's role in the investigation, • the Coast Guard's authority to conduct marine casualty investigations and issue subpoenas, and • details of the contested subpoena, including the manner of service and a description of the evidence or appear- ance being sought as well as the relevance to the inves- tigation. The investigating offcer is the appropriate party to sub- mit this declaration, and therefore should be prepared to provide all the above information. The IO's servicing legal offce and the INV-NCOE attorney can assist the offcer with drafting this declaration. Additionally, the Investigations National Center of Expertise maintains previously filed petitions and declarations, which the IO and servicing legal offce may review to prepare similar documents for their case. The assistant U.S. attorney working on the case will then fle the petition with the court and arrange for the petition to be served on the party. The party then must respond within 21 days of service; however, a party may waive formal ser- vice to extend the response deadline to 60 days. 4 The party will then fle his or her answer within the specifed time period, admitting or denying any allegations asserted in the petition and also stating any applicable defenses or objec- tions to the subpoena. 5 Following the answer, the government and party may engage in discovery, motions, preliminary hearings, or vari- ous other procedural matters to bring all necessary informa- tion before the court for consideration. Local federal court rules, which supplement the Federal Rules of Civil Proce- dure, may also affect this process. During enforcement proceedings, the IO should be prepared to testify in support of the petition, providing information to supplement that provided in the declaration. This testi- mony may also include cross-examination by the opposing party. The servicing legal offce and assistant U.S. attorney will help prepare the investigating offcer before testifying. It is diffcult to estimate how long the judicial enforcement process will last. The schedule will depend in part on the district court's previously docketed cases, the judge's avail- ability, and the party's and assistant U.S. attorney's avail- ability. While there may be an expedited process available, the applicability of that process will depend largely on the specifc facts of each case. One recent successful judi- cial enforcement proceeding, using an expedited process, lasted approximately fve months from the date the case was referred to the U.S. attorney until the date the judge issued an order requiring compliance with the subpoena. 6 In Sum Judicial enforcement of a subpoena can be a lengthy process requiring signifcant attention from the investigating off- cer and supporting Coast Guard and Department of Justice attorneys. However, if an item of evidence or an individu- al's appearance is important enough to subpoena, then it is important enough to follow through with on the enforce- ment process. Therefore, IOs must ensure their subpoenas are enforceable before they are served, and they must be prepared to take the necessary steps to enforce every sub- poena they issue. Coast Guard investigating offcers may contact the attorney advisor at the INV-NCOE if they have any questions about subpoenas, enforcement, or other legal matters related to marine casualty investigations. About the author: LCDR Damian Yemma is the attorney at the Investigations National Center of Expertise. He has served in the Coast Guard for 14 years, and his prior assignments include USCGC Sanibel, Sector Guam, the District Seven prevention staff, and the District Eight legal staff. He is a graduate of the University of Florida (B.S. in environmental science, 2000) as well as the College of William & Mary's Marshall-Wythe School of Law (J.D., 2010). Endnotes: 1. Note that the authority listed on the fgure is specifc to a marine casualty inves- tigation. The authority for a suspension and revocation subpoena will read: "46 United States Code §7705 and 46 Code of Federal Regulations 5.301(b)." 2. The general rules governing those federal subpoenas are stated in Rule 45 of the Federal Rules of Civil Procedure (Fed. R. Civ. P.). 3. See for a breakdown of the federal judicial districts and corresponding U.S. Attorney's Offces. 4. Fed. R. Civ. P. 12. 5. Fed. R. Civ. P. 8(b). 6. United States v. Pizzitola, 4:14-cv-02335 (S.D. Tx. Dec. 4, 2014) (order on motion for order to show cause).

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