US v. Bryan Serafini

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 4:14-cr-00062-RGD-DEM-1. [999849467]. [15-4383]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4383

UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
BRYAN SERAFINI,
Defendant − Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:14-cr-00062-RGD-DEM-1)

Argued:

May 12, 2016

Decided:

June 10, 2016

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion.
Judge Wilkinson
opinion, in which Judge Motz and Judge Shedd joined.

wrote

the

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
Kevin Patrick
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender,
Keith
Loren
Kimball,
Assistant
Federal
Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant.
Dana J. Boente, United States
Attorney, Alexandria, Virginia, Eric M. Hurt, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport
News, Virginia, for Appellee.

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WILKINSON, Circuit Judge:
Appellant Brian Serafini pleaded guilty to one count of
communicating

a

false

distress

message

to

the

United

States

Coast Guard, in violation of 14 U.S.C. § 88(c). He was sentenced
to fourteen months imprisonment and required to pay restitution
for the costs incurred by the Coast Guard in responding to the
specious communication. His sole argument on appeal is that the
district

court

restitution

lacked

order.

the

For

statutory

the

reasons

authority
that

to

follow,

issue
we

a

reject

Serafini’s claim and affirm the judgment of the district court.
I.
A.
The facts giving rise to this case are not in dispute. On
May 11, 2014, Newport News Police Department and Virginia Marine
Resources

Commission

officers

responded

to

a

report

that

an

unauthorized boat had drifted into a restricted marine area at
the Newport News Shipbuilding Company (“the shipyard”). J.A. 39.
When they arrived at the shipyard, the officers discovered Brian
Serafini

intoxicated

in

a

twenty-four

foot

Shamrock

motor

vessel. Id.
The officers questioned Serafini about how the vessel came
to be in the restricted area of the shipyard. He explained that
he had provided assistance to a man who was casting off the
Shamrock from a pier located along the Pagan River. Serafini
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told the officers that once the boat left the pier he could not
safely return to shore and thus remained onboard. As they exited
the mouth of the river, the two men purportedly started fighting
and

eventually

Serafini

threw

the

other

man

overboard.

Upon

hearing Serafini’s “very detailed” version of events, the Coast
Guard and other local agencies immediately set out to find the
person Serafini allegedly tossed into the water. Id. at 39-40.
During

the

search,

law

enforcement

determined

that

the

Shamrock motor vessel had in fact been stolen. They also spoke
with a witness who saw Serafini alone on the pier prior to the
reported theft. Id. at 40. Police thereafter arrested Serafini
for public intoxication and took him to the Newport News jail
for booking. While he was in custody, Serafini disclosed that he
had taken some medication that may have caused him to imagine
that another man was on the boat. The search was eventually
called

off

--

the

Coast

Guard

could

not

find

any

evidence

indicating that someone had been thrown off the Shamrock. In
total, the rescue efforts cost the Coast Guard $117,913. Id. at
41.
B.
A grand jury in the Eastern District of Virginia returned a
one-count

indictment

against

Serafini

charging

him

with

knowingly and willfully communicating a false distress message,
in violation of 14 U.S.C. § 88(c). J.A. 6. With the advice of
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counsel, Serafini pleaded guilty on December 30, 2014. Id. at
38. Although Serafini and the government did not enter a formal
plea agreement, the parties agreed on a stipulated “Statement of
Facts,” wherein Serafini admitted that his “statements were a
false distress call which caused the United States Coast Guard
to attempt to save lives when no help was actually needed.” Id.
at 40. Following a sentencing hearing on June 15, 2015, the
district

court

imprisonment,

to

sentenced
be

Serafini

followed

by

to

three

fourteen

years

of

months

supervised

release. Id. at 120-23. The court also ordered Serafini to pay
the

Coast

Guard

$117,913

in

restitution

for

the

costs

it

incurred responding to the false distress call. Id. at 124. The
district

court

authorized.

reasoned

Serafini

now

that

the

appeals

the

award

was

district

statutorily

court’s

ruling

with respect to the order of restitution.
II.
In this appeal, Serafini contends that the cost provision
of Section 88(c) permits the Coast Guard to seek only civil
redress against those who communicate false distress messages.
We disagree. In our view, Section 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.” We shall first set forth Section 88(c)’s

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remedial

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scheme

and

then

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proceed

to

address

Serafini’s

particular arguments.
A.
At its core, 14 U.S.C. § 88(c) serves two purposes. First,
Congress sought to protect the Coast Guard’s limited budget by
imposing

punishment

on

those

who

intentionally

send

false

distress calls. 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. Second,
and equally important, Section 88(c) 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.
To that end, Section 88(c) provides:
An individual who knowingly and willfully communicates a
false distress message to the Coast Guard or causes the
Coast Guard to attempt to save lives and property when no
help is needed is (1) guilty of a class D felony;
(2) subject to a civil penalty of not more than
$10,000; and
(3) liable for all costs the Coast Guard incurs as a
result of the individual’s action.
14 U.S.C. § 88(c). Here, the parties dispute whether subsection
(3)

permits

an

order

of

restitution

sentence.

5

as

part

of

a

criminal

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B.
“A

restitution

statutory

source

order

is

exceeds

less

no

that

the

illegal

authority

than

a

of

the

sentence

of

imprisonment that exceeds the statutory maximum.” United States
v.

Davis,

714

F.3d

809,

812

(4th

Cir.

2013).

We

thus

must

examine closely the alleged authorizing provision. “We begin, as
always,

with

the

text

of

the

statute.”

Permanent

Mission

of

India to the U.N. v. City of N.Y., 551 U.S. 193, 197 (2007). The
statute before us does not define the phrase “liable for all
costs

the

Coast

Guard

incurs.”

Accordingly,

we

apply

the

“fundamental canon of statutory construction” that “words will
be interpreted as taking their ordinary, contemporary, common
meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). “To
determine a statute’s plain meaning, we not only look to the
language itself, but also the specific context in which that
language is used, and the broader context of the statute as a
whole.” Country Vintner of N.C., LLC v. E. & J. Gallo Winery,
Inc., 718 F.3d 249, 258 (4th Cir. 2013).
Serafini asserts that, when read “in context, the phrasing
‘liable for costs’ connote[s] civil liability, rather than a
criminal

sanction.”

Appellant’s

Br.

at

21.

According

to

Serafini, “[t]he text and structure of the statute . . . make
this [reading] clear.” Id. at 13.

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We fail to see why the phrase “liable for all costs the
Coast Guard incurs” would authorize only civil remedies. First
of all, Congress did not limit “liability” to a particular form
of proceeding. Moreover, the argument for a narrow reading of
Section 88(c)(3) is undermined by the language in the preceding
subsection (c)(2). Section 88(c)(3) speaks broadly of liability
“for all costs the Coast Guard incurs,” while (c)(2) subjects
violators solely to a “civil penalty.” As the Supreme Court has
reiterated: “Where Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and

purposely

in

the

disparate

inclusion

or

exclusion.”

See Russello v. United States, 464 U.S. 16, 23 (1983). Simply
put, if Congress wanted to limit subsection 88(c)(3) to civil
proceedings, it presumably would have done so explicitly, as it
did in subsection (c)(2).
Serafini responds by urging us to draw a negative inference
from the fact that Congress “could have specified, as it did
with the ‘civil penalty’ in § 88(c)(2), that it intended the
defendant

to

Appellant’s
feature

Br.

of

be
at
the

‘criminally
23.

But

liable’

that

statute

under

argument
itself.

§

ignores
Most

88(c)(3).”
a

critical

importantly,

14 U.S.C. § 88(c) is a criminal provision; it makes “knowingly
and willfully” communicating false distress messages a class D
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felony. Thus, 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)(3)

authorizes

criminal

liability.
Serafini also makes much of the fact that Section 88(c)(3)
does not use the word “restitution.” He maintains that “Congress
easily could have used language that clearly called for criminal
restitution

orders,

‘restitution.’

Or,

including,
it

could

most

have

obviously,

referred

the

expressly

to

word
the

[relevant] restitution statute.” Id. at 23. Absent an explicit
legislative authorization, the argument goes, the federal courts
are without authority to award restitution in criminal cases.
We also find this argument unpersuasive. Congress had no
need to use the particular word “restitution” when the statutory
text

made

its

restitutionary

intent

so

clear.

In

Section

88(c)(3), Congress subjected individuals to liability “for all
costs the Coast Guard incurs as a result of the individual’s
action.” 14 U.S.C. § 88(c)(3) (emphasis added). The import of
this language is not difficult to discern. “[T]he use of the
word ‘all’ [as a modifier] suggests an expansive meaning because
‘all’ is a term of great breadth.” Nat’l Coal. For Students with
Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290
(4th Cir. 1998). Congress’s decision to use the words “liable
for all costs” and omit “restitution” was thus anything but a
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bar to a restitutionary order in a criminal case. Rather, by
employing

the

broad

language

of

Section

88(c)(3),

Congress

intended to include “all” the different items and varieties of
expense

the

Coast

Guard

might

incur

“as

a

result

of

the

individual’s action,” not to limit the forum in which it might
recover

them.

We

note

that

our

reading

of

the

statute

is

consistent with decisional law from our sister circuits. See
United States v. Kumar, 750 F.3d 563, 566-68 (6th Cir. 2014)
(affirming the district court’s restitution order of $277,257.70
to the Coast Guard); United States v. James, 986 F.2d 441, 444
(11th Cir. 1993) (reversing the lower court’s decision because
it failed to award the Coast Guard “the costs of the operation
from beginning to completion”).
Serafini further attempts to bolster his interpretation of
Section 88(c) by relying on other provisions in the criminal
code.

“The

restitution]
suggests

fact

that

[Congress]

has

in

other

statutes,”

Serafini

that

it

did

not

intend

to

[explicitly

do

referred

contends,
so

in

to

“strongly

§ 88(c)(3).”

Appellant’s Reply Br. at 5-6 (citing 42 U.S.C. § 1383a(b); 38
U.S.C. § 6108(b); 21 U.S.C. § 853(q)).
This kind of exercise, however, leads us far afield. Our
task in interpreting the meaning of Section 88(c) “begins where
all such inquiries must begin: with the language of the statute
itself.” United States v. Ron Pair Enterprises, Inc., 489 U.S.
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235, 241 (1989). “In this case it is also where the inquiry
should end, for where, as here, the statute’s language is plain,
‘the sole function of the courts is to enforce it according to
its terms.’” Id. (quoting Caminetti v. United States, 242 U.S.
470, 485 (1917)). We recognize, of course, that there is no
strict rule against the use of other sections of the code as an
aid

to

statutory

Interest

Research

construction.
Grp.,

See

Inc.,

Train

426

v.

U.S.

Colorado

1,

10

Pub.

(1976).

Nevertheless we conclude that Section 88(c)’s language, which is
by far the most relevant for our purposes, is sufficiently clear
to obviate the need for transpositional interpretation.
Finally, Serafini invokes the rule of lenity. Appellant’s
Reply Br. at 9. He claims that because the statute does not
“‘plainly

and

unmistakably’

mandate[]

criminal

restitution,”

id., the rule of lenity requires that we vacate the district
court’s decision to impose such liability.
To

apply

the

rule

of

lenity

here

would

mark

a

sharp

departure from the rulings of the Supreme Court and our own. It
is not the case that a provision is “‘ambiguous’ for purposes of
lenity

merely

construction

because
more

it

narrow

[is] possible to
than

that

articulate

urged

by

a
the

Government.” Moskal v. United States, 498 U.S. 103, 108 (1990).
Rather, in order to invoke the rule there must be a “grievous
ambiguity or uncertainty in the language and structure of the
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Act, such that even after a court has seize[d] everything from
which aid can be derived, it is still left with an ambiguous
statute.”

Chapman

(1991); see

v.

United

also United

States

States, 500
v.

U.S.

463

F.3d

Kahoe, 134

453,
1230,

1234

(4th Cir. 1998). Given that the language and structure of Section
88(c) support the government’s position, see ante at 6-9, it is
no surprise that the statute’s use of the phrase “liable for all
costs the Coast Guard incurs” does not rise to the level of
grievousness

that

would

warrant

application

of

the

rule

of

inferences

from

it

lenity in this case.
In

sum,

the

text

and

all

reasonable

provide a clear rebuttal to Serafini’s proposed construction of
Section 88(c)(3). Our interpretation, to repeat, is in no way
meant to suggest that the Coast Guard cannot recover the costs
associated with a false distress call in a civil action. The
sole

question

restitution

may

before

us,

issue

however,

under

Section

is

whether

88(c)(3)

an
as

order
part

of

of

a

criminal sentence. We hold that it may. As described above, a
primary purpose of the statute was to preserve for legitimate
purposes the Coast Guard’s finite budget. It would defeat that
purpose

to

mandate

that

the

Coast

Guard

expend

even

more

resources in separate civil actions to recoup false distress
call costs. See Federal Trade Commission v. Fred Meyer, Inc., 390
U.S.

341,

349

(1968)

(“we

cannot,
11

in

the

absence

of

an

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unmistakable directive, construe the Act in a manner which runs
counter

to

the

broad

goals

which

Congress

intended

it

to

effectuate”).
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

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