                Case: 12-14702       Date Filed: 01/15/2014       Page: 1 of 29


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-14702
                               ________________________

                         D.C. Docket No. 1:11-cr-20868-JEM-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

ALEJANDRO GONZALEZ,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (January 15, 2014)

Before HULL and MARTIN, Circuit Judges, and HINKLE, * District Judge.

MARTIN, Circuit Judge:

       Alejandro Gonzalez appeals his convictions for three counts of making false


*
  Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida,
sitting by designation.
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official statements, in violation of 18 U.S.C. § 1001(a)(2) (Counts 2, 3, and 5), and

one count of obstruction of an agency proceeding (Count 4), in violation of 18

U.S.C. § 1505. On appeal, Mr. Gonzalez argues that: (1) the government obtained

his convictions through a constructive amendment of the indictment; (2) the

charges were impermissibly vague as applied to the facts of his case; (3) the

District Court improperly refused to instruct the jury on his good faith defense; and

(4) there was insufficient evidence to support his convictions. After careful

review, and with the benefit of oral argument, we affirm.

                                     I.     BACKGROUND

         The International Convention for the Safety of Life at Sea (SOLAS) is a

maritime treaty that establishes uniform regulations and standards for vessels that

regularly travel in international waters. Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. 9700;

see Regs. 2–4, Annex to SOLAS, 1974.

         One of the core requirements of SOLAS is that each “Flag State”—the

nation in which each boat is registered and under whose flag the ships sail—

regularly inspect and survey the ships flying under the nation’s flag to ensure that

they are seaworthy and safe to operate. Reg. 6.1 Once the survey is complete, the

Flag State issues a Cargo Ship Safety Construction Certificate (Safety Certificate)

certifying that the ship has been inspected and meets all of the safety qualifications


1
    All citations to SOLAS Regulations are to the numbered regulations in the Annex.
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of SOLAS. Reg. 12(a)(ii). Flag States often entrust the authority to conduct these

surveys and to issue the Safety Certificates to classification surveyors who are

affiliated with organizations recognized by SOLAS. Reg. 6.

      SOLAS also streamlines the interactions between cargo ships and foreign

governments when the ships arrive at ports of call in other countries. Whenever

cargo ships come into foreign ports, the “Port States” have the authority to verify

that proper SOLAS certifications are on board each vessel. Reg. 19. The Port

States also have the authority to conduct port state control examinations to ensure

that the ships are in compliance with SOLAS safety regulations. Reg. 19. For

example, when foreign vessels come into ports in the United States, the United

States Coast Guard is authorized to board the ships to verify SOLAS certifications

and conduct port state control examinations. 33 C.F.R. § 96.380(a). If the Coast

Guard finds that the vessel is not in compliance with SOLAS, it must prevent the

ship from sailing until it can proceed to sea without danger to the passengers or the

crew. Reg. 19; 33 C.F.R. 96.380(b).

      Mr. Gonzalez was a registered marine surveyor authorized by the

governments of Panama and Bolivia to conduct surveys and issue Safety

Certificates for cargo ships sailing under each country’s flag. Apparently, his

safety inspections and certifications, as well as his conduct during U.S. Coast

Guard investigations, left something to be desired and ran afoul of U.S. law. A


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jury convicted Mr. Gonzalez of three counts of making false official statements

(Counts 2, 3, and 5 of the indictment) and one count of obstructing an agency

proceeding (Count 4). 2 Mr. Gonzalez now appeals his convictions. Counts 2 and

3 relate to Safety Certificates and statements made by Mr. Gonzalez relating to the

M/V Galdana, which was later rechristened the M/V New Wave. Counts 4 and 5

relate to a Safety Certificate issued by Mr. Gonzalez for another cargo ship named

the M/V Cosette.

                A. COUNT 2: FALSE STATEMENTS TO COAST GUARD
                   INVESTIGATIVE SERVICE AGENT DARREN BOYD

         The Galdana was a cargo ship managed and operated by a Miami-based

corporation that sailed, among other places, between Miami, Fort Lauderdale,

Puerto Rico, New York, Boston, and Haiti. The Galdana first came to the attention

of the U.S. Coast Guard when the cargo ship was docked in San Juan, Puerto Rico

in August 2008. After a port state control examination revealed that the ship was

in serious disrepair, the Coast Guard detained the Galdana until the deficiencies

could be remedied. The Coast Guard also requested that the ship provide

documentation of the last time that the Galdana had been examined in a dry dock,

as well as the date of the next scheduled dry-dock inspection.

         Because the Galdana was sailing under the flag of Panama at the time, Mr.

Gonzalez, who had been authorized by Panama’s government to survey the ship,

2
    The jury acquitted Mr. Gonzalez of a conspiracy count (Count 1).
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went to San Juan to work with the Coast Guard to address the deficiencies. On

August 13, 2008, Mr. Gonzalez sent a letter to the Coast Guard’s Prevention

Department in San Juan. Among other things, this letter claimed that the Galdana

had last undergone a dry-dock inspection in March 2006 in Cartagena, Colombia,

where Mr. Gonzalez also claimed that the ship had been extensively repaired.

      On April 22, 2009, Agent Darren Boyd of the Coast Guard Investigative

Service interviewed Mr. Gonzalez to determine whether the Galdana had in fact

been inspected in March 2006. When asked how he knew that the Galdana had

been inspected in 2006, Mr. Gonzalez told Agent Boyd that he got it “off a piece of

paper” in one of the common areas of the vessel. Mr. Gonzalez claimed that there

was no seal, stamp, signature, or country on the document. Nevertheless, Mr.

Gonzalez insisted that the March 2006 dry-dock inspection had taken place.

      Agent Boyd doubted Mr. Gonzalez’s representations. In Agent Boyd’s

experience, dry-dock inspection reports were much thicker than just one piece of

paper. After a thorough investigation, Agent Boyd was also unable to find any

evidence or any records to show that the Galdana had undergone a dry-dock

inspection in 2006. Nowhere in the Galdana’s deck log did it indicate that the ship

had traveled to Colombia in 2006 for a dry-dock inspection or for any other reason.

This corroborated the Coast Guard’s own records of the Galdana’s previous ports




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of call, which contained no indication that the Galdana had traveled to Colombia in

2006.

       B. COUNT 3: FALSE STATEMENTS IN SAFETY CERTIFICATE ISSUED
                                 IN HAITI

        The Galdana next came to the Coast Guard’s attention in September 2009

when the boat was docked in Boston, Massachusetts. After conducting a port state

control examination, the Coast Guard again discovered numerous deficiencies

aboard the vessel and detained the ship until they could be resolved. In November

2009, Mr. Gonzalez traveled to Boston to address the deficiencies and drafted a

report for the Coast Guard verifying that the deficiencies had been corrected.

        Before the Galdana could leave Boston, however, the Coast Guard learned

that the government of Panama had cancelled all of the ship’s safety certificates.

With the ship no longer in compliance with SOLAS, the Coast Guard expelled the

Galdana from US waters. Panama granted a permit for the Galdana to make a one-

time voyage to Sant Marc, Haiti, where statutory renewal surveys would be carried

out.

        Upon arrival in Haiti, the Galdana changed its flag from Panama to Bolivia

and was rechristened the M/V New Wave on December 15, 2009. That same day,

Mr. Gonzalez—now acting under the authority of Bolivia—issued a new set of

certificates, including an interim Safety Certificate, which allowed the New Wave

to resume its cargo operations. On this interim Safety Certificate, Mr. Gonzalez

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represented that the ship had undergone a dry-dock inspection in 2006. After

leaving Haiti, the New Wave traveled directly back to US waters, where the Coast

Guard conducted a port state control examination in Miami and reviewed the New

Wave’s interim Safety Certificate on December 24, 2009. Again, the Coast Guard

found no evidence suggesting that this 2006 dry-dock inspection had ever

occurred.

    C. COUNTS 4 AND 5: FALSE STATEMENTS IN SAFETY CERTIFICATE
                          ISSUED IN FLORIDA

      Counts 4 and 5 both relate to a different cargo ship named the M/V Cosette.

Mr. Gonzalez issued a Safety Certificate certifying that the Cosette was fit to sail

just weeks before the Cosette arrived in New York harbor in perilous condition.

      On November 3, 2009, the Coast Guard conducted a port state control

examination of the Cosette while it was docked in Fort Pierce, Florida. During the

examination, the Coast Guard could not tell whether the steering gear or the main

engine were operational. As a result, the Coast Guard informed the Cook Islands,

under whose flag the Cosette was registered, that it would detain the ship until it

received documentation that the steering gear and main engine were working

properly. Then in short order, the Coast Guard received notice from the Cook

Islands that the Cosette would no longer sail under its flag, but instead would be

re-registered under Bolivia.



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      Mr. Gonzalez was hired as Bolivia’s classification surveyor, and under

SOLAS, he was to conduct a full and thorough inspection of the ship and issue

new certificates. On November, 13, 2009, Mr. Gonzalez issued an interim Safety

Certificate for the Cosette so that the Coast Guard would allow the ship to depart

from Fort Pierce. This Certificate stated that based on his survey of the ship, “the

condition of the structure, machinery and equipment . . . was satisfactory and the

ship complied with the relevant requirements of Chapters II-1 and II-2 of

[SOLAS].” Mr. Gonzalez also prepared a written report, reassuring the Coast

Guard that after surveying the ship, he concluded that the steering systems and

main engines were working properly. Based on Mr. Gonzalez’s representations,

the Coast Guard cleared the deficiencies that it had previously noted and allowed

the Cosette to leave the port of Fort Pierce on November 21, 2009. The Cosette

sailed immediately to New York harbor and was inspected by the Coast Guard

again on December 4, 2009.

      Despite the fact that Mr. Gonzalez had certified the safety of the Cosette just

days before, the Coast Guard found that the ship was in hazardous condition.

Smoke was escaping from the engine and generator rooms. The hydraulic fuel

tank was hot enough to catch fire. Three of the five generators were leaking and

had exposed electrical wires, and a fourth generator was not operational at all. The

steering gear, which Mr. Gonzalez had stated was working properly, was also in


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poor condition and suffered from hydraulic leaks. The ship was in such poor

condition that crew members had to cover their faces with shirts and cloths when

working near the engine equipment. In light of the ship’s state of disrepair, the

Coast Guard immediately required the Cosette to shut down its engines so that tug

boats could take control of the vessel.

      At trial, the government called to the stand a marine consultant, who

testified as an expert in the field of engineering and classification surveying.

When asked whether the hazardous conditions on the Cosette could have arisen

between November 21, 2009 (when the ship left Fort Pierce) and December 4,

2009 (when the Coast Guard inspected the ship in New York Harbor), the expert

testified that it would be inconceivable for all of the problems to have arisen during

that 14-day period. The expert further testified that the problems that the Cosette

had when it arrived in New York were long term issues that should have been

discovered while Mr. Gonzalez tested the equipment prior to issuing the Cosette an

interim Safety Certificate.

                                  II.     DISCUSSION

                        A. CONSTRUCTIVE AMENDMENT

      We first address Mr. Gonzalez’s argument that his convictions on Counts 3

and 5 were obtained through a constructive amendment of the indictment. Because

Mr. Gonzalez did not raise his constructive amendment argument to the District


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Court, we review only for plain error. See United States v. Dennis, 237 F.3d 1295,

1299 (11th Cir. 2001); see also United States v. Cotton, 535 U.S. 625, 631, 122 S.

Ct. 1781, 1785 (2002) (applying plain error review to “forfeited” constructive

amendment claim). We will only reverse for plain error if (1) there is an error, (2)

the error is plain, (3) the error affects substantial rights, and (4) not correcting the

error would seriously affect the fairness, integrity, or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 732–37, 113 S. Ct. 1770,

1776–79 (1993).

      In Mr. Gonzalez’s view, the subsection under which he was charged, 18

U.S.C. § 1001(a)(2), applies only to oral statements, whereas written statements

are subject to prosecution only under subsection (a)(3). Because the statements

forming the basis of Counts 3 and 5 were the written certifications, Mr. Gonzalez

argues that the convictions could only have been obtained through a constructive

amendment of the indictment.

      Mr. Gonzalez’s effort to frame the issue as one of a constructive amendment

of the indictment misses the mark. A constructive amendment to an indictment

occurs when (1) the evidence presented at trial proves a crime different from the

conduct charged in the indictment or (2) the District Court’s instructions to the jury

broaden the possible bases for conviction beyond the basis set forth in the

indictment. See, e.g., Stirone v. United States, 361 U.S. 212, 217–18, 80 S. Ct.


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270, 273–74 (1960) (finding constructive amendment because indictment alleged

obstruction of sand importation, but evidence showed obstruction of steel

importation); United States v. Narog, 372 F.3d 1243, 1249–50 (11th Cir. 2004)

(finding constructive amendment when judge’s instructions in response to jury

query referred to general “controlled substances” rather than to

“methamphetamine,” as was charged in the indictment).

      Here, neither the evidence presented at trial nor the District Court’s

instructions to the jury broadened the bases for conviction beyond the conduct

charged in the indictment. Count 3 of the indictment charges that Mr. Gonzalez

falsely “stated” that the Galdana/New Wave had a dry-dock inspection in 2006.

Consistent with that allegation, the government established at trial that Mr.

Gonzalez falsely represented as much in a written safety certificate. The District

Court then properly instructed the jury that Count 3 charged that the defendant

made “false statements” about the dry-dock inspection. In the same way, Count 5

charged that Mr. Gonzalez made a false “statement” when he “certified” that he

surveyed the Cosette and that it complied with SOLAS requirements. Consistent

with that allegation, the government presented evidence regarding the 2009 Safety

Certificate. The District Court then instructed the jury that Count 5 charged Mr.

Gonzalez with making a “false statement” about the Cosette’s condition. As this

makes clear, the indictment for both charges corresponds directly to the evidence


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presented at trial and to the instructions given before the jury’s deliberations.

Thus, there was no constructive amendment of the indictment at all.

      Mr. Gonzalez’s argument would be more appropriately framed as an

argument that the indictments for the written statements do not state an offense

under 18 U.S.C. § 1001(a)(2). To the extent that this is Mr. Gonzalez’s argument,

we find it without merit.

      “When a defendant raises a claim that the indictment fails to state an offense

for the first time on appeal, this Court must find the indictment sufficient unless it

is so defective that it does not, by any reasonable construction, charge an offense

for which the defendant is convicted.” United States v. Pacchioli, 718 F.3d 1294,

1307 (11th Cir. 2013) (quotation marks omitted).

      We cannot agree that no “reasonable construction” of 18 U.S.C.

§ 1001(a)(2) covers the conduct upon which Mr. Gonzalez’s conviction was based.

“As in all cases involving statutory construction, our starting point must be the

language employed by Congress, and we assume that the legislative purpose is

expressed by the ordinary meaning of the words used.” Am. Tobacco Co. v.

Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982) (quotation marks and

internal citations omitted). Section 1001(a) subjects an individual to criminal

prosecution if, “in any matter within the jurisdiction of the executive, legislative, or




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judicial branch of the Government of the United States,” he knowingly and

willfully:

      (1) falsifies, conceals, or covers up by any trick, scheme, or device a
          material fact;
      (2) makes any materially false, fictitious, or fraudulent statement or
          representation; or
      (3) makes or uses any false writing or document knowing the same to
          contain any materially false, fictitious, or fraudulent statement or
          entry.

      Mr. Gonzalez argues that § 1001(a)(2) can only apply to oral

communications because a broader interpretation would render § 1001(a)(3)

superfluous. It is true that “a statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or word shall be superfluous, void,

or insignificant.” United States v. Julian, 633 F.3d 1250, 1255 (11th Cir. 2011)

(quotation marks omitted). But for two reasons, it is neither necessary nor

appropriate to limit the scope of § 1001(a)(2) to just oral communications.

      First, the plain language of § 1001(a)(2) clearly and unambiguously

encompasses all means of making a statement or representation, not just oral

communications. The rule disfavoring a superfluous interpretation of statutory

language “must always yield to plain and unambiguous statutory text,” even if that

plain language arguably renders some subsections superfluous. Polkey v.

Transtecs Corp., 404 F.3d 1264, 1268 (11th Cir. 2005). None of the terms in

§ 1001(a)(2) explicitly limit the applicability of that subsection based on the means


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of communication. Nor could we conclude that a limitation is implied, for words

communicated in writing make no less a statement or representation than those

same words communicated orally. 3

       Second, even if the language is ambiguous, we do not agree that

§ 1001(a)(3) is rendered completely superfluous by our broader reading of

§ 1001(a)(2). Under our interpretation of the statute, subsection (a)(3) is narrower

in that it only applies to written communications, while subsection (a)(2) applies to

both oral and written communications. On the other hand, subsection (a)(3) is in

some sense broader than subsection (a)(2) because it applies to using statements as

well as making them. The fact that our interpretation means the subsections cover

some overlapping conduct does not render either provision wholly superfluous in

the sense we are cautioned to avoid. See Conn. Nat’l Bank. v. Germain, 503 U.S.

249, 253, 112 S. Ct. 1146, 1149 (1992) (“Redundancies across statutes are not

unusual events in drafting, and so as long as there is no positive repugnancy

between two laws, a court must give effect to both.” (quotation marks and citation

omitted)); In re Piazza, 719 F.3d 1253, 1266 (11th Cir. 2013) (applying

Connecticut National Bank in interpreting two subsections in a single statute).




3
 Our reading is consistent with this Court’s precedent, as we have in the past upheld convictions
under § 1001(a)(2) premised on written statements. See United States v. Pena, 684 F.3d 1137,
1144, 1153 (11th Cir. 2012).
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      As a result, we conclude that neither a constructive amendment nor an

insufficient indictment tainted Mr. Gonzalez’s convictions under Counts 3 and 5,

and so affirm both convictions in this regard.

                        B. CONSTITUTIONAL VAGUENESS

      Next, Mr. Gonzalez argues that his convictions must be reversed for

vagueness. He first argues that his convictions for Counts 4 and 5 are

unconstitutionally vague because the SOLAS certification standards are unclear.

More generally, Mr. Gonzalez also argues, based on United States v. Izurieta, 710

F.3d 1176 (11th Cir. 2013), that any conviction based on a SOLAS violation is

unconstitutionally vague because it is not clear that a violation of SOLAS

standards could give rise to criminal liability.

      Because he did not object on this basis before the District Court, we review

only for plain error. United Sates v. Naranjo, 634 F.3d 1198, 1206–07 (11th Cir.

2011). “An error is not plain unless it is contrary to explicit statutory provisions or

to on-point precedent in this Court or the Supreme Court.” United States v.

Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009).

      In determining whether a statute is unconstitutionally vague, this Court

considers whether the law defines the criminal offense “with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory enforcement.” United States


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v. Duran, 596 F.3d 1283, 1290 (11th Cir. 2010) (quotation mark omitted). There is

a strong presumption in favor of constitutionality. Id.

       Regarding both his specific challenges to Counts 4 and 5 and his general

challenge to all counts based on Izurieta, Mr. Gonzalez cannot establish an error

that was plainly contrary to explicit statutory provisions or to on-point, binding

precedent. See Schultz, 565 F.3d at 1357. He could not cite to any precedent

establishing or suggesting that either § 1001(a) or § 1505, or SOLAS for that

matter, is unconstitutionally vague. And Izurieta addresses constitutional

vagueness in an entirely different regulatory context. See 710 F.3d at 1178–79

(noting that the defendant had been charged with violating 18 U.S.C. § 545 based

on his underlying breach of 19 C.F.R. § 141.113(c)). The statute forming the basis

of the conviction in Izurieta is not sufficiently similar to any of the violations with

which Mr. Gonzalez was charged, nor is the regulatory regime sufficiently similar

to SOLAS, for us to conclude that Izurieta is binding, on-point precedent. Thus,

there can be no plain error.4




4
  We also note that Mr. Gonzalez’s specific challenges to Counts 4 and 5 ultimately miss the
mark because the precise contours of the SOLAS certification requirements were irrelevant to
the jury’s resolution of the charges brought against him. All the jury was required to decide was
whether Mr. Gonzalez made a false statement and whether he obstructed the investigation.
These questions are governed by quite definite standards that certainly permit ordinary people to
understand the conduct that constitutes a violation and prevent arbitrary enforcement. See
Duran, 596 F.3d at 1290.
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                          C. GOOD FAITH JURY INSTRUCTION

       Mr. Gonzalez also argues that the District Court erred when it refused to

accept his proposed jury instruction on good faith. 5 Nevertheless, we find no

reversible error here.

       “The district court’s refusal to deliver a requested instruction constitutes

reversible error only if the instruction (1) is correct, (2) is not substantially covered

by other instructions which were delivered, and (3) deals with some point in the

trial so vital that the failure to give the requested instruction seriously impaired the

defendant’s ability to defend.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th

Cir. 1995) (quotation marks omitted).

        Even if Mr. Gonzalez were entitled to a good faith instruction, the District

Court’s other instructions substantially covered the good faith instruction he

requested. The Court admonished the jury that Mr. Gonzalez could be found guilty

of making false statements or representations only if the government proved that

he “acted willfully, knowing that the statement was false.” And in its instructions,

the Court clarified that “[a] statement is false when made, if it is untrue when made

and the person making it knows it is untrue.” As to the obstruction offense, the


5
  Our review of the record indicates that Mr. Gonzalez requested an instruction similar to the
“Good Faith Defense” instruction listed in the Eleventh Circuit Special Pattern Jury Instructions.
Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Special Instruction 17 (2010)
(“‘Good faith’ is a complete defense to a charge that requires intent to defraud. A defendant isn’t
required to prove good faith. The Government must prove intent to defraud beyond a reasonable
doubt.”).
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Court explained that “the defendant must have intentionally tried to corruptly

influence, impede, or obstruct the pending proceeding.” It explained that corruptly

“means performed voluntarily, deliberately and dishonestly.” Taken together,

these instructions are more than sufficient to substantially cover Mr. Gonzalez’s

requested good faith instruction. On this record, the jury’s findings that Mr.

Gonzalez acted “willfully” and “corruptly” necessarily required them to reject any

arguable good faith defense. See United States v. Martinelli, 454 F.3d 1300, 1316

(11th Cir. 2006) (finding no reversible error where the District Court failed to give

a good faith instruction because the instructions on the mens rea element of the

offense necessarily required the jury to reject the good faith defense).

                         D. SUFFICIENCY OF THE EVIDENCE

       Finally, Mr. Gonzalez argues that there was insufficient evidence for the jury

to convict him of Counts 2–5. Ordinarily we review de novo the District Court’s

denial of judgment of acquittal on sufficiency of evidence grounds, viewing the

evidence and making all reasonable inferences in favor of the jury’s verdict. See

United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011). However,

because Mr. Gonzalez did not move for acquittal or otherwise preserve any

argument regarding the sufficiency of the evidence in the District Court, 6 he “must


6
 Mr. Gonzalez never moved for a judgment of acquittal on Counts 2, 3, and 5. Although he
moved for judgment of acquittal as to Count 4 at the close of the government’s case, Mr.
Gonzalez failed to renew his motion at the close of his case.
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shoulder a somewhat heavier burden: we will reverse the conviction only where

doing so is necessary to prevent a manifest miscarriage of justice.” United States

v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). This standard requires us to find

either that the record is devoid of evidence of an essential element of the crime or

“that the evidence on a key element of the offense is so tenuous that a conviction

would be shocking.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir.

2006) (quoting United States v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985))

(quotation marks omitted). In making this determination, we must view the

evidence in the light most favorable to the government and accept all reasonable

inferences and credibility determinations that support the jury’s verdict. Id.

      Mr. Gonzalez argues (1) that there was insufficient evidence that the

statements regarding the Galdana (Counts 2 and 3) and the Cosette (Counts 4 and

5) were false and made with the intent to deceive; and (2) that the statements were

not made “in any matter within the jurisdiction” of the United States government

(Counts 2, 3, and 5). Both of these arguments fail.

1. Whether Statements Regarding the Galdana’s Dry-Dock Inspection in 2006
   Were False and Made with Intent to Deceive (Counts 2 and 3)

      Mr. Gonzalez disputes that there was sufficient evidence for the jury to

convict him of Counts 2 and 3. Both of these counts are based on Mr. Gonzalez’s

statements that the Galdana underwent a dry-dock inspection in 2006. To convict

Mr. Gonzalez of making a false statement to a government agency in violation of
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18 U.S.C. § 1001, the government was required to prove: “(1) that a statement was

made; (2) that it was false; (3) that it was material; (4) that it was made with

specific intent; and (5) that it was within the jurisdiction of an agency of the United

States.” United States v. House, 684 F.3d 1173, 1203 (11th Cir. 2012) (quotation

marks omitted). Mr. Gonzalez specifically argues that there was insufficient

evidence at trial showing (1) that his statements were false and (2) that he acted

with the specific intent to deceive. Both of these challenges ultimately miss the

mark.

        First, there was abundant evidence presented at trial that Mr. Gonzalez’s

statements about the 2006 dry-dock inspection were false. After a thorough search

through the Coast Guard’s records and the Galdana’s bridge logs, Agent Boyd

found no evidence that the Galdana ever went to Colombia in 2006 for a dry-dock

inspection or any other reason. Mr. Gonzalez was also unable to present a single

document supporting his statements about the 2006 inspection. Based on this

record, we cannot say that the jury had no evidence that the statements were false,

or that the evidence was so tenuous that a conviction would be shocking.

        Second, there was also sufficient evidence that Mr. Gonzalez made these

statements with the intent to deceive. Mr. Gonzalez argues that his statements

regarding the Galdana’s 2006 dry-dock inspection merely represented his opinions

and the extent of his knowledge. At most, Mr. Gonzalez argues that the


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government established that he negligently believed that a dry-dock inspection

occurred in 2006. We do not accept Mr. Gonzalez’s argument because it is not

supported by the record.

      During the trial, the government presented plenty of circumstantial evidence

suggesting that Mr. Gonzalez knew there had been no dry-dock examination in

2006. For example, Mr. Gonzalez was the classification surveyor who issued a

Safety Certificate for the Galdana in 2006. Thus, it would have been Mr.

Gonzalez’s responsibility at the time to find out whether or not the Galdana had

undergone a recent dry-dock inspection.

       In addition, although Mr. Gonzalez said that he learned the dry-dock

inspection occurred from a piece of paper found in the common area of the

Galdana, Agent Boyd testified that it is very unlikely that a report of a dry-dock

inspection would have been just a single page. More to the point, this piece of

paper was never produced by Mr. Gonzalez or found by the Coast Guard

Investigative Service.

      Finally, even after Agent Boyd confronted Mr. Gonzalez about his inability

to prove that a dry-dock examination had taken place in 2006, Mr. Gonzalez

certified again just months later on another Safety Certificate that this 2006 dry-

dock examination occurred. Based on this evidence, the jury could reasonably

conclude that Mr. Gonzalez knew that there had been no dry-dock inspection in


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2006 and was lying when he said he found a piece of paper on the Galdana

indicating that the ship had been inspected. See Friske, 640 F.3d at 1291 (“The

evidence need not be inconsistent with every reasonable hypothesis except guilt,

and the jury is free to choose between or among the reasonable conclusions to be

drawn from the evidence presented at trial.” (quotation marks omitted)).

2. Whether Statements Regarding the Cosette’s Condition Were False and Made
   with Intent to Deceive (Counts 4 and 5)

      Mr. Gonzalez next argues that his convictions for Counts 4 and 5 cannot

stand because there was insufficient evidence that his statements about the Cosette

in the interim Safety Certificate in December 2009 were false or made with the

intent to deceive. This argument misses the mark as well.

      Mr. Gonzalez primarily argues that a reasonable jury could not determine

the truth or falsity of his statements that the Cosette was “satisfactory,” “effective,”

and “fit to proceed without danger to the ship or those on board” without evidence

as to what SOLAS requires in order for a ship to be fit to sail. According to Mr.

Gonzalez, the government needed to present the specific provisions of SOLAS

which governed the Cosette at the time the statements were made so that the jury

could determine precisely which safety standards or protocols were breached.

      Although we agree that it may have been helpful for the jury to have

received more detail about SOLAS’s standards, we conclude that the

circumstances of this case required no such explanation. Under any definition of
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the words “satisfactory,” “effective,” or “fit to proceed without danger to the ship

or those on board,” there was persuasive evidence that the Cosette failed to meet

those standards when it arrived in New York Harbor in December 2009. The jury

heard extensive testimony about the ship’s many and significant malfunctions

when it arrived in New York harbor. The government also presented expert

testimony that it would be impossible for such hazardous conditions to have arisen

in the two weeks following Mr. Gonzalez’s certification in Fort Pierce. From this

evidence, the jury could reasonably infer that Mr. Gonzalez’s statements about the

Cosette were false, even if it did not have the precise SOLAS rules and regulations

which Mr. Gonzalez had allegedly breached.

      Beyond that, there was also enough evidence at trial for the jury to find that

Mr. Gonzalez’s statements were made with the intent to deceive. For example, the

government’s expert witness testified that if Mr. Gonzalez had in fact conducted a

complete survey of the vessel—as he was required to do—he would have observed

the smoke, leaks and other hazards before signing the Safety Certificates. Thus,

the jury could have inferred that Mr. Gonzalez signed the Safety Certificates

without conducting a proper safety inspection or any inspection at all.

      In addition, the jury also could have easily inferred intent to deceive based

on a financial motivation to make false statements. The jury heard testimony that

the Cosette would be detained at Fort Pierce until new Safety Certificates were


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issued and the Coast Guard was satisfied that the ship’s engines and steering

equipment were functioning properly. It was thus reasonable for the jury to infer

that Mr. Gonzalez intended to deceive the Coast Guard so that the Cosette could

get on its way and deliver its cargo to the next destination.

3. Whether the Statements Were Made “In Any Matter Within the Jurisdiction” of
   the Coast Guard (Counts 2, 3, and 5)

      Finally, Mr. Gonzalez argues that he cannot be convicted for statements

regarding his inspections of the Galdana and the Cosette—even if false—because

they were not made “in any matter within the jurisdiction” of the United States

government. In particular, Mr. Gonzalez argues that when he issued the Safety

Certificates for the Galdana and the Cosette, he made those statements to the

governments of Bolivia and Panama in his capacity as a nominated surveyor for

those countries. According to Mr. Gonzalez, the United States government had no

power over him as a nominated surveyor, and so his statements did not concern

“any matter within the jurisdiction” of the United States government.

      Before we turn to the merits, we must first determine the proper standard of

review to use for analyzing this issue. Mr. Gonzalez and the government both

frame the issue as one of subject matter jurisdiction. This suggests that whether

Mr. Gonzalez’s statements were made “in any matter within the jurisdiction” of the

United States is a legal issue that this Court should review de novo. See Pena, 684

F.3d at 1145 n.5.
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      This Court, however, has typically construed attacks on jurisdictional

elements as a challenge to the sufficiency of the evidence supporting that particular

jurisdictional element. See United States v. Blankenship, 382 F.3d 1110, 1131

(11th Cir. 2004) (construing defendant’s claim that the District Court lacked

jurisdiction under 18 U.S.C. § 1001 as an attack on the sufficiency of the

evidence); United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996) (“Whether the

government proved [a] jurisdictional element is measured as a challenge to the

sufficiency of the evidence.”); see also United States v. McQueen, 727 F.3d 1144,

1152 (11th Cir. 2013) (“But, as we see it, ‘any matter within the jurisdiction’ is

merely a jurisdictional element, for which no mens rea is required.”). Thus we

analyze this issue using the standard of review for sufficiency of the evidence

claims. Because Mr. Gonzalez failed to move for acquittal on Counts 2, 3, and 5,

Mr. Gonzalez’s convictions can only be reversed if doing so is “necessary to

prevent a manifest miscarriage of justice.” Greer, 440 F.3d at 1271.

      To be a crime under 18 U.S.C. § 1001, a false statement must be made “in

any matter within the jurisdiction” of the United States government. The Supreme

Court has stated that this jurisdictional element should “not be given a narrow or

technical meaning” and applies to “myriad governmental activities.” United States

v. Rodgers, 466 U.S. 475, 480, 104 S. Ct. 1942, 1946 (1984); Bryson v. United

States, 396 U.S. 64, 70, 90 S. Ct. 355, 359 (1969). To satisfy § 1001’s


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jurisdictional element, the false statement must concern the “authorized functions

of an agency or department” rather than “matters peripheral to the business of that

body.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946. “A department or agency has

jurisdiction, in this sense, when it has the power to exercise authority in a

particular situation.” Id. In determining whether or not a statement is made “in

any matter within the jurisdiction” of the United States government, an important

consideration is whether the federal government had any “power over the specific

transaction in which the false statements were made.” Blankenship, 382 F.3d at

1137. “[T]he key issue in determining whether a statement is within the

government’s jurisdiction is the authority of the agency to act.” Id.

      With these principles in mind, we conclude that Mr. Gonzalez’s statements

regarding the Galdana and the Cosette were made “in any matter within the

jurisdiction” of the Coast Guard. Mr. Gonzalez’s conviction for Count 2 is clearly

valid because the statements were made during an investigative interview of Mr.

Gonzalez with Agent Boyd of the Coast Guard Investigative Service. In this sense,

Count 2 is very similar to the facts of Rodgers, where the Supreme Court held that

§ 1001 clearly encompasses false statements made during criminal investigations

conducted by the FBI and the Secret Service. Id. at 476–77, 104 S. Ct. at 1944–45.

Like the FBI and the Secret Service, the Coast Guard Investigative Service also has

statutory authority to “make inquiries, examinations, inspections, searches,


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seizures, and arrests upon the high seas and waters over which the United States

has jurisdiction, for the prevention, detection, and suppression of violations of laws

of the United States.” 14 U.S.C. § 89. Because Mr. Gonzalez made false

statements directly to a Coast Guard official during the course of an investigative

interview, we find that his statements were made “in any matter within the

jurisdiction” of the United States government. 18 U.S.C. § 1001(a).

      In the same way, there was also sufficient evidence for a jury to find that Mr.

Gonzalez’s statements regarding the Cosette (Count 5) were “in any matter within

the jurisdiction” of the United States government. At the time that Mr. Gonzalez

made his statements, the Cosette was in United States waters and was thus subject

to the jurisdiction of the United States. See Pena, 684 F.3d at 1146 (“A foreign

commercial ship at a U.S. port is subject to the jurisdiction of the United States.”).

The Coast Guard also had authority to inspect the Cosette and detain it if necessary

to ensure the safety of the ship and other vessels in United States waters. 46

U.S.C. § 3303; 14 U.S.C. § 91; 33 C.F.R. 96.380(b) (authorizing detention of

vessels until “the vessel can go to sea without presenting an unreasonable threat of

harm to the port, the marine environment, the vessel or its crew”). Practically

speaking, when Mr. Gonzalez issued the Safety Certificate, he certified to the

Coast Guard that the Cosette was fit to leave Fort Pierce, Florida. As a result, we

also conclude that the false statements made by Mr. Gonzalez relating to the safety


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and seaworthiness of the Cosette were “in any matter within the jurisdiction” of the

United States government. See Pena, 684 F.3d at 1153 (upholding conviction

under § 1001(a)(2) for Safety Certificate falsely certifying to Coast Guard

examiners that ship was in compliance with international pollution regulations). 7

       Count 3 is admittedly quite a bit closer. The evidence at trial suggested that

Mr. Gonzalez issued an interim safety certificate in December 2009 falsely stating

that the New Wave underwent a dry dock inspection in 2006 in Cartagena,

Colombia. Neither the New Wave nor Mr. Gonzalez, however, were in the United

States or its waters at the time Mr. Gonzalez issued this certificate. Rather, both

Mr. Gonzalez and the New Wave were in St. Marc, Haiti, which was outside of the

jurisdiction of the United States government.

       Nevertheless, after carefully examining the record, we cannot conclude that

the evidence at trial on Count 3 was “so tenuous that a conviction would be

shocking,” Milkintas, 470 F.3d at 1343, or that reversing this conviction is

“necessary to prevent a manifest miscarriage of justice.” Greer, 440 F.3d at 1271.

The government presented evidence at trial that the Galdana was a cargo ship

managed and operated by a Miami-based corporation that regularly sailed to a

7
  Mr. Gonzalez also suggested at oral argument that, by ratifying SOLAS, Congress expressly or
implicitly provided immunity to nominated surveyors for Safety Certificates that they issue for
foreign vessels. We reject this argument. Mr. Gonzalez points to no provisions in SOLAS
suggesting that signatory countries sacrifice any of their power to enforce their criminal laws
against nominated surveyors. See Pena, 684 F.3d at 1145 (rejecting defendant’s argument that
United States has no jurisdiction to prosecute a surveyor issuing a Safety Certificate on behalf of
Panama under the International Convention for the Prevention of Pollution from Ships).
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number of US ports-of-call, including Miami (where Mr. Gonzalez also resided),

Fort Lauderdale, Puerto Rico, New York, and Boston. The government also

presented evidence that Mr. Gonzalez had traveled to US ports in the past to clear

up deficiencies with the ship, including Puerto Rico in August 2008, and Boston in

December 2009. In fact, the jury heard evidence that Mr. Gonzalez was with the

Galdana in Boston when the Coast Guard expelled the ship from US waters to

Haiti. Mr. Gonzalez then followed the ship to Haiti (where it was rechristened the

New Wave) and issued an interim safety certificate so that the ship could return to

US waters and dock in Miami. Based on this record, a jury could have reasonably

inferred that Mr. Gonzalez knew that the purpose of his false statements was to

deceive US Coast Guard officials and allow the New Wave to return to US waters.

As a result, there was sufficient evidence for a jury to conclude that the statements

underlying Count 3 were “made in any matter within the jurisdiction” of the United

States government.

                                  III.   CONCLUSION

         For these reasons, we affirm Mr. Gonzalez’s convictions for Counts 2, 3, 4,

and 5.

         AFFIRMED.




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