United States of America v. Bryan Serafini

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 wrote the
opinion, in which Judge Motz and Judge Shedd joined.
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 lacked the statutory authority to issue a
restitution order. For the reasons that follow, we 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 sentenced Serafini to fourteen months
imprisonment, to be followed by three years of 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 reasoned that the award was statutorily
authorized. Serafini now appeals the district 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 scheme and then 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 as part of a criminal
sentence.

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B.
“A restitution order that exceeds the authority of the
statutory source is no less illegal than a 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 be ‘criminally liable’ under § 88(c)(3).”
Appellant’s Br. at 23. But that argument ignores a critical
feature of the statute itself. Most 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, including, most obviously, the word
‘restitution.’ Or, it could have referred expressly to 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 fact that [Congress] has [explicitly referred to
restitution] in other statutes,” Serafini contends, “strongly
suggests that it did not intend to do so in § 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 construction. See Train v. Colorado Pub.
Interest Research Grp., Inc., 426 U.S. 1, 10 (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 because it [is] possible to articulate a
construction more narrow than that urged by 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 v. United States, 500 U.S. 453, 463
(1991); see also United States v. Kahoe, 134 F.3d 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
lenity in this case.
In sum, the text and all reasonable inferences from it
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 before us, however, is whether an order of
restitution may issue under Section 88(c)(3) as part 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, 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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