Criminal Practice – Coast Guard Can Be Paid for False Distress Signal

U.S. v. Serafini (Lawyers Weekly No. 001-102-16, 12 pp.) (Wilkinson, J.) No. 15-4383, June 10, 2016; USDC at Newport News, Va. (Doumar, J.) 4th Cir.

Holding: The 4th Circuit says a defendant who was discovered intoxicated on a stolen 24-foot motor boat not authorized to be in a restricted marine area at the Newport News shipyard and who falsely told the Coast Guard he had fought with a companion and thrown him overboard, can be ordered to pay the Coast Guard $117,913 in restitution for the costs of the unnecessary search and rescue mission, as part of his sentence for communicating a false distress message in violation of 14 U.S.C. § 88(c).

On appeal, defendant contends that the cost provision of 14 U.S.C. § 88(c) permits the Coast Guard to seek only civil redress against those who communicate false distress messages. We disagree. In our view, § 88(c)(3) was designed to hold individuals “liable” in either criminal or civil proceedings for all costs the Coast Guard incurs as a result of the individual’s action.

Section 88(c) reflects the view that essential resources should not be squandered at the whim of pranksters or, even worse, by those who would deliberately divert the Coast Guard’s attention from their own nefarious activities. The statute also reflects Congress’s desire to avoid needlessly risking the lives of Coast Guard personnel, whose search and rescue operations can be highly dangerous and are too often accompanied by tragic consequences.

We fail to see why the phrase “liable for all costs the Coast Guard incurs” would authorize only civil remedies. Congress did not limit “liability” to a particular form of proceeding. If Congress wanted to limits subsection 88(c)(3) to civil proceedings, it presumably would have done so explicitly, as it did in subsection (c)(2).

The statute, 14 U.S.C. § 88(c), is a criminal provision; it makes “knowingly and willfully” communicating false distress messages a class D felony. Unlike the civil carve-out specified in subsection (c)(2), Congress had no need to state in what is generally a criminal statute that subsection (c)(30 authorizes criminal liability.

Further, Congress had no need to use the particular word “restitution” when the statutory text made its restitutionary intent so clear. In § 88(c)(3), Congress subjected individuals to liability for all costs the Coast Guard incurs as a result of the individual’s action. (Emphasis added by court). The import of this language is not difficult to discern. Congress’s decision to use the words “liable for all costs” and omit “restitution” was thus anything but a bar to a restitutionary order in a criminal case. Rather, by employing the broad language of § 88(c)(3), Congress intended to include “all” the different items and varieties of expenses the Coast Guard might incur as a result of the individual’s action, not to limit the forum in which it might recover them. Our reading of the statute is consistent with decisional law from our sister circuits.

In sum, the text and all reasonable inferences from it provide a clear rebuttal to defendant’s proposed construction of § 88(c)(3). Our interpretation is in no way meant to suggest the Coast Guard cannot recover the costs associated with a false distress call in a civil action.

Restitution order affirmed.