The opinion of the court was delivered by: Bartle, C.J.
Before the court are the motion of defendant Yevgen Dyachenko to suppress certain notepads and the motions of defendants Fleet Management, Ltd. ("Fleet") and Dyachenko for severance.
On May 15, 2007, a federal grand jury returned a six-count indictment against Fleet, a company headquartered in Hong Kong, and its employees, Parag Raj Grewal and Dyachenko. The essence of the charges is that defendants engaged in an illegal conspiracy to dump into the ocean oily wastes from onboard a large cargo ship, the Valparaiso Star. The indictment further alleges that defendants covered up that discharge by manipulating ship logs. Count One charges all defendants with conspiracy to present a false oil record book to the Coast Guard and to obstruct justice, in violation of 21 U.S.C. § 371. In Counts Two and Three, Fleet and Dyachenko are charged with failing to maintain an accurate oil record book, in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25, and false statements, in violation of 18 U.S.C. § 1001. Counts Four and Six charge Fleet and Grewal, respectively, each with one count of obstruction of justice, in violation of 18 U.S.C. §§ 1505, 1515(b), while Count Five charges Fleet and Grewal together with a second count of obstruction of justice.
We first address the motion of Dyachenko to suppress two pocket-size spiral notepads that were seized from him by Coast Guard personnel aboard the Valparaiso Star on January 24, 2007.
Dyachenko's initial argument is that the warrantless seizure of his notepads violated the Fourth Amendment to the United States Constitution. The government argues that the seizure was valid pursuant to 14 U.S.C. § 89(a), which permits the Coast Guard to make warrantless searches and seizures onboard a ship for "the prevention, detection, and suppression of violations of laws of the United States."*fn1 Searches conducted pursuant to that statutory authority require only a "reasonable suspicion of criminal activity" to survive Fourth Amendment scrutiny. United States v. Varlack Ventures, Inc., 149 F.3d 212, 216-17 (3d Cir. 1998).*fn2 The reasonable suspicion, however, "must be based on specific articulable facts, together with rational inferences drawn from those facts...." Id. at 217 (quoting United States v. Roy, 869 F.2d 1427, 1430 (11th Cir. 1989).
During a series of evidentiary hearings held in early 2008, Marine Science Technician Chief Matthew Jones, an experienced Coast Guard officer, testified that he led the investigation onboard the Valparaiso Star on January 24, 2007. He stated that the Coast Guard boarded the ship only after receiving information from a former crew member, Motorman Gopal Singh, that he had been fired recently for refusing to participate in the illegal dumping of large quantities of the ship's oily waste at open sea. He further testified that shortly after boarding, he and other Coast Guard personnel uncovered evidence which he believed corroborated the whistleblower's claim. This included the presence of an unusual hose beneath the deck plates in the engine room, discrepancies between the ship's "Oil Record Book"*fn3 and the daily tank sounding log,*fn4 and the presence of oil in atypical places aboard the vessel.
Armed with that knowledge and the information provided by the whistleblower, Jones and other Coast Guard personnel interviewed the engine room staff, including Dyachenko, regarding the questionable activity. Jones testified that during the interview, and in response to questions about illegal activity, Dyachenko displayed a notepad that had been on his person. According to the investigative report created that same day, Dyachenko stated that the notepad contained sounding logs "for his knowledge on what needs to be done in the engine room." Nonetheless, he refused to hand over the notepad to the investigators at that time. Dyachenko ended the interview by stating that he wished to disclose "the truth" but was concerned that the investigators would write it down.
Jones responded by seeking the aid of the Captain, defendant Grewal. He informed Grewal that he had authority to seize the notepad and asked for Grewal's help in obtaining it. Dyachenko produced both that notepad and another for Grewal, who immediately turned them over to the Coast Guard. Both notepads contain detailed technical information relating to maintenance of the engine room and little if any personal information.
We conclude that by the time Dyachenko displayed the notepad to the investigators and stated that it contained information related to maintenance of the engine room, the Coast Guard had a reasonable suspicion of criminal activity and was authorized to seize the notebook under § 89(a).*fn5 Consequently, we will deny the motion of Dyachenko insofar as it requests suppression of the notebooks under the Fourth Amendment.*fn6
In the alternative, Dyachenko moves to exclude the notepads, arguing that: (1) the highly technical contents of the notepads cannot be authenticated under Rule 901 in the absence of the government's expert, whose exclusion was recently upheld by the Court of Appeals; (2) the writings contained in the notepads constitute inadmissible hearsay under Rule 801; and (3) the notepads are unduly prejudicial to Dyachenko and will needlessly confuse the jury in violation of Rule 403.
Rule 901 of the Federal Rules of Evidence, which governs authentications, places only a "slight" burden on the proponent of evidence which is easily met in this case with respect to the notepads. Link v. Mercedes-Benz of N.A., Inc., 788 F.2d 918, 927 (3d Cir. 1986). Here, the government has adduced ample evidence that the notepads were indeed authored by Dyachenko and contained information related to maintenance of the engine room. Although the entries therein are not dated, the government has shown that in many circumstances the data can be linked to specific dates by simple cross-referencing with the contents of other ship logs. It currently appears that the necessary comparisons can be conducted and presented to the jury by a lay witness. We will not exclude the notepads under Rule 901 at this time.
We also conclude that the contents of the notepads are not inadmissible hearsay. The writings are being offered against Dyachenko by the government and are Dyachenko's own statements. Under Rule 801(d)(2) they constitute "statements by a party-opponent" and thus are not hearsay. Likewise, Dyachenko's arguments that the notepads should be excluded under Rule 403 because they present a danger of "unfair prejudice" or "confusion of issues" are without merit.
Finally, Dyachenko notes that the government conducted depositions of certain foreign witnesses, pursuant to Rule 15 of the Federal Rules of Criminal Procedure, to preserve their testimony in the event that they would not or could not appear for trial. The government did not question these witnesses about the notepads. Now that a final trial date has been set, however, the government has expressed an intent to present live testimony from at least one of these witnesses, Gopal Singh. Dyachenko contends that if Singh testifies, the government should be precluded from questioning him as to the notepads. He cites no authority for the proposition that the government may not question a witness at trial ...