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United States v. Atlantic States Cast Iron Pipe Co.

August 2, 2007

UNITED STATES OF AMERICA
v.
ATLANTIC STATES CAST IRON PIPE CO., JOHN PRISQUE, SCOTT FAUBERT, JEFFREY MAURY, AND CRAIG DAVIDSON, DEFENDANTS.



The opinion of the court was delivered by: Mary L. Cooper United States District Judge

MEMORANDUM OPINION

Outline of Opinion

PRELIMINARY STATEMENT 1 DISCUSSION

I. DEFENDANTS' POINT I: "THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY REGARDING CRIMINAL NEGLIGENCE AND RECKLESSNESS." 4

A. Legal standards for jury instructions

B. The jury instructions identifying the elements of each charged felony offense 7

C. The jury instructions defining the mens rea requirements of each charged felony offense 13

D. The jury instructions identifying the elements and defining the lesser-included Clean Water Act negligence offense 21

E. The government's objection to the last identified element of the Clean Water Act and Clean Air Act felony offenses 24

F. Defendants' objection to refusal of their proposed instructions on recklessness 30

G. Legal analysis for the last identified element of the Clean Water Act and Clean Air Act felony offenses 38

H. Legal analysis for refusal of defendants' proposed instructions on recklessness 75 II. DEFENDANTS' POINT II: "PROSECUTORIAL MISCONDUCT." 89

III. DEFENDANTS' POINT III: "THE COURT COMMITTED ERRORS WHICH REQUIRE A NEW TRIAL." 108

i.

IV. DEFENDANTS' POINT IV: "JUDGMENTS OF ACQUITTAL ON COUNT I MUST BE GRANTED BECAUSE OBSTRUCTION OF OSHA IS NOT A VALID OBJECTIVE OF THE CONSPIRACY." 112

V. DEFENDANTS' POINT V: "THE INCONSISTENT VERDICTS AGAINST DAVIDSON, PRISQUE AND ATLANTIC STATES CANNOT STAND." 119

VI. DEFENDANTS' POINT VI: "THE FATAL DUPLICITY OF THE CONSPIRACY COUNT WARRANTS JUDGMENT OF ACQUITTAL OR A NEW TRIAL." 127

VII. DEFENDANTS' POINT VII: "THE UNITED STATES FAILED TO PRODUCE SUFFICIENT EVIDENCE AND THE JURY'S VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE." 130

A. Legal standards -- motions for acquittal and new trial 130

B. Overview of manufacturing process and facilities 132

C. Substantive charges (Counts 2-34) 133

D. Conspiracy charge (Count 1) 257

E. Conclusion of Point VII 263

VIII. DEFENDANTS' POINT VIII: "RENEWAL OF MOTIONS FOR PURPOSES OF APPEAL." 265

CONCLUSION 267

ii.

PRELIMINARY STATEMENT

A jury convicted Atlantic States Cast Iron Pipe Company and four of its supervisory level employees under a superseding indictment charging them with a multi-object conspiracy and various substantive offenses. Those defendants move for judgment of acquittal or a new trial, asserting legal points and challenging the sufficiency of the evidence.*fn1

The indictment identifies the defendants and their positions during relevant times as follows. Atlantic States manufactured cast iron pipe at its facility in Phillipsburg, New Jersey.*fn2

John Prisque was plant manager. Scott Faubert held positions as human resource manager and safety director. Jeffrey Maury was maintenance superintendent. Craig Davidson was finishing department superintendent. A fifth individual was acquitted. (See n.6 infra.)

The indictment contained thirty-four counts, beginning with one conspiracy count.*fn3

Count 1 charged that during the period of approximately October 31, 1995 through August, 2003, the defendants entered into a conspiracy to: (1) knowingly discharge a pollutant into U.S. waters, without and in violation of a permit, in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A); (2) knowingly violate a requirement and prohibition of permits under the Clean Air Act, 42 U.S.C. § 7413(c); (3) defraud the United States by obstructing the lawful functions of the Occupational Safety & Health Administration ("OSHA") and the Environmental Protection Agency ("EPA") in enforcing federal workplace safety and environmental laws and regulations; (4) make false statements in matters within the jurisdiction of OSHA, EPA and the Federal Bureau of Investigation ("FBI"), in violation of 18 U.S.C. § 1001; and (5) corruptly influence and obstruct the administration of law under a pending proceeding before OSHA, in violation of 18 U.S.C. §§ 1505 and 1515(b); all in violation of 18 U.S.C. § 371. (Dkt. 711.)

The substantive counts charged Atlantic States, and specified individual defendants, with violations of 18 U.S.C. § 1001 (Counts 2-7); 18 U.S.C. § 1505 (Counts 8-10); 18 U.S.C. § 1519 (Count 11); 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A) (Counts 12-33); and 42 U.S.C. § 7413(c)(1) (Count 34). All substantive counts also charged aiding and abetting under 18 U.S.C. § 2. (Id.)

Defendants moved for judgment of acquittal at the close of the government's case and at the end of the evidence. This Court reserved judgment and submitted all counts to the jury. In addition, at the request of the defendants named in the Clean Water Act counts, we submitted to the jury the lesser-included offense (not charged in the indictment) of a negligent violation of the Clean Water Act, 18 U.S.C. § 1319(c)(1)(A).

The jury failed to reach a verdict on Count 2, which named only Atlantic States and Faubert. It found Atlantic States guilty on all counts except Count 2 (no verdict) and Count 6 (not guilty). It found the specified individual defendants guilty on Count 1, as to various of the alleged objectives of the conspiracy. See n.64, infra. It rendered mixed verdicts on the substantive charges against them. The verdicts as to those convicted are listed in the margin.*fn4

The full case record is filed on the docket.*fn5 As noted, one named defendant was acquitted of the charges against him, which were contained in Counts 1, 6 and 34.*fn6 The pending motions are listed in the margin.*fn7 This opinion follows the format of defendants' omnibus post-trial motion brief, quoting verbatim the section headings of that brief. (Dkt. 635.)*fn8 The rulings are set forth in the Conclusion, infra.

DISCUSSION

I. DEFENDANTS' POINT I: "THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY REGARDING CRIMINAL NEGLIGENCE AND RECKLESSNESS"

A. Legal Standards for Jury Instructions

Defendants first argue that the jury instructions used in the trial were erroneous. Specifically, they argue that in this case, "it was a constitutional error for the Court to refuse to give any instructions to the jury on criminal/gross negligence and recklessness as defenses to the felony charges." (Dkt. 635 at 14.) They argue that "the jury was presented with an improper choice only between knowledge and civil negligence, with no understanding that evidence of criminally/grossly negligent or reckless conduct that fell in between these two extremes supported acquittal." (Id. at 20.) That omission, they contend, impermissibly lowered the government's burden of proof on every count in the indictment and requires a new trial. (Id. at 18.) This is a novel argument, neither addressed in any of the case law cited by defendants nor revealed in our careful review of the relevant authorities.

"The Fifth and Sixth Amendments require the government to prove each element of a criminal charge beyond a reasonable doubt whether or not the defendant presents evidence contesting the element." United States v. Thayer, 201 F.3d 214, 222 (3d Cir. 1999) (citing United States v. Gaudin, 515 U.S. 506, 509-10 (1995); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993)). "When a jury instruction is ambiguous and open to an unconstitutional interpretation, the instruction is error if there is a reasonable likelihood the jury accepted the erroneous interpretation." Id.

When instructing the jury, the district court must provide "a clear articulation of the relevant legal criteria." United States v. Goldblatt, 813 F.2d 619, 623 (3d Cir. 1987). The jury instructions must, therefore, be structured so as to avoid confusing or misleading the jury. United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). "The charge to the jury, taken as a whole and in light of the evidence presented, must fairly and adequately submit the issues in the case to the jury." United States v. Schneider, 14 F.3d 876, 878 (3d Cir. 1994). It will be presumed that the jury followed the court's instructions. United States v. Restaino, 405 F.2d 628, 630 (3d Cir. 1968).

A defendant is entitled to an instruction on that defendant's theory of the case where the record contains evidentiary support for it. United States v. Davis, 183 F.3d 231, 250 (3d Cir. 1999). However, it is well settled that a trial judge has substantial discretion to select the language to be used in the jury instructions on the law, so long as the instructions are correct and do not omit essentials. United States v. Tiller, 302 F.3d 98, 105 (3d Cir. 2002). "Nor is a defendant entitled to a jury instruction of his own choosing." United States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998). A court errs in refusing a requested instruction "only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant." United States v. Leahy, 445 F.3d 634, 651 (3d Cir. 2006) (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992)).

Our Court of Appeals, in evaluating the adequacy of jury instructions, sometimes draws a distinction between an instruction identifying the elements of an offense, and an instruction defining those elements. See, e.g., Leahy, 445 F.3d at 643-44 & n.7 (distinguishing between identifying "intent to defraud" as an element of bank fraud offense, and defining what "intent to defraud" means). We find that distinction helpful here, because we must first point out that defendants do not object to the identification of any of the elements of the charged offenses, and then show how that informs our analysis of the objection they do raise.

This Court, from the outset of the trial, presented to the jury an identification of the essential elements of the charged Clean Water Act ("CWA") and Clean Air Act ("CAA") offenses that was as requested by defendants, over the objection of the government. We did that based upon a thorough reading of the unsettled case law in this area, and we embodied it consistently in both the preliminary jury instructions and the final jury instructions, as explained below. The parties had no disagreement on the identification of the essential elements of the other charged offenses, which we provided to the jury in both the preliminary and final jury instructions.

It was only in the detailed discussion of the definition of the mens rea requirements, late in the trial, that the issue now pressed by defendants was raised for the first time. We rejected their proffered points for instruction that would have defined the "knowing" or "willful" or "corrupt" mens rea for the charged felony offenses by explaining that "recklessness," as defined in Model Penal Code Section 2.02(2)(c), would not rise to the level of the required mental state for those offenses.

Although defendants now urge that we also should have defined the statutory mens rea requirements by further explaining that criminal gross negligence would not meet the statutory standard for the charged felony offenses, they submitted no such proposed jury instruction. See text accompanying n.56, infra. Therefore, we will confine this discussion to the fact that we rejected defendants' requested jury instructions on the topic of criminal recklessness.

B. The Jury Instructions Identifying the Elements of Each Charged Felony Offense

The final jury instructions were delivered to the jury orally on the record, and in a 70-page typed format. (Dkt. 717.)*fn9 The portions quoting the statutory language and listing the elements of each charged felony offense are reproduced here.*fn10

COUNT ONE: CONSPIRACY

The conspiracy statute charged in Count One is found in Title 18 U.S.C. § 371, which provides that:

[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall [be guilty of violating this law].

Conspiracy - Essential Elements

There are three essential elements of the crime of conspiracy charged in Count One, which must be proven by the government beyond a reasonable doubt:

First: that the described conspiracy was formed and existed at or about the time alleged in the Indictment;

Second: that the defendant knowingly and willfully became a member of the conspiracy; and

Third: that at some time during the existence of the conspiracy, one of the members of the conspiracy knowingly and willfully committed an overt act, and that overt act or acts were committed to further some goal of the conspiracy.

(Dkt. 717 at 28-29.)

COUNTS TWO THROUGH SEVEN: FALSE STATEMENTS

Counts Two through Seven charge the named defendants with knowingly and willfully making a false statement to OSHA, the EPA, and the FBI. The substantive crime charged in those counts is found in Title 18 U.S.C. § 1001, which provides that:

Whoever, in any matter within the jurisdiction of the executive . . . branch of the Government of the United States, knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation [shall be guilty of violating this law].

False Statement Counts -- Essential Elements

In order for a defendant to be found guilty of a false statement offense under this law, the government must prove beyond a reasonable doubt each of the following four elements:

First: that the defendant made a false statement or representation; Second: that the statement was "material;"

Third: that the defendant acted willfully, with knowledge of the statement's falsity; and Fourth: that the statement was made in a matter within the jurisdiction of the executive branch of the federal government.

(Id. at 42-43.)

COUNTS EIGHT THROUGH TEN: OBSTRUCTION OF JUSTICE UNDER § 1505

Counts Eight through Ten charge the named defendants with obstruction of justice violations for intentionally and corruptly endeavoring to obstruct or impede a proceeding of a United States agency. The substantive statute charged in those counts is found in Title 18 U.S.C. § 1505, which provides that:

Whoever corruptly ... endeavors to ... obstructor impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States [shall be guilty of violating this law]. § 1505 Obstruction Counts -- Essential Elements

In order for a defendant to be found guilty of an obstruction of justice offense under this law, the government must prove beyond a reasonable doubt each of the following three elements:

First: that there must be a proceeding pending before a department or agency of the United States;

Second: that the defendant must be aware of the pending proceeding; and

Third: that the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.

(Id. at 46.)

COUNT ELEVEN: OBSTRUCTION OF JUSTICE UNDER § 1519

Count Eleven charges the named defendants with an obstruction of justice violation under a different obstruction statute from that charged in Counts Eight through Ten. The substantive statute charged in Count Eleven is found in Title 18 U.S.C. § 1519, which provides that:

Whoever knowingly alters . . . conceals, covers up . . . any . . . tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department of agency of the United States [shall be guilty of violating this law]. § 1519 Obstruction Count -- Essential Elements

In order for a defendant to be found guilty of an obstruction of justice offense under this law, the government must prove beyond a reasonable doubt each of the following five elements:

First: that the defendant knowingly;

Second: altered, concealed, and covered up;

Third: a tangible object;

Fourth: with the intent to impede, obstruct, and influence the investigation and proper administration;

Fifth: of a matter within the jurisdiction of an agency of the United States, that is, the Occupational Safety and Health Administration.

(Id. at 49.)

COUNTS TWELVE THROUGH THIRTY-THREE: CLEAN WATER ACT

Counts Twelve through Thirty-three charge the named defendants with violation of the Clean Water Act. The substantive statute charged in those counts is found in Title 33 United States Code sections 1319(c)(2)(A) and 1311(a).

The first of those sections, section 1319(c)(2)(A), provides that:

Any person who . . . knowingly violates section 1311 [shall be guilty of violating this law].*fn11

The next section, section 1311(a), provides that:

Except as in compliance with this section . . . the discharge of any pollutant by any person shall be unlawful.

Clean Water Act Counts - Overview

The Clean Water Act creates a joint federal and state permitting program for those who discharge pollutants into the waters of the United States. Permits issued under this program are called National Pollutant Discharge Elimination System (NPDES) permits. By agreement with the EPA, that water permit program is administered in New Jersey by the New Jersey Department of Environmental Protection (NJDEP).

Pursuant to that authority, NJDEP issued water permits to Atlantic States that authorized discharges of storm water run-off and discharges of water from the cooling tower to a storm sewer. The permits imposed limitations on the type and amount of pollutants that could be discharged from the facility. We will call those NPDES permits issued to Atlantic States the "water permits."

Clean Water Act Counts-- Essential Elements

These counts charge the named defendants with knowingly violating the Clean Water Act by causing petroleum-contaminated wastewater to be pumped so as to enter storm drains that led to the Delaware River, without a permit authorizing such discharges. In order for a defendant to be found guilty of an offense under these sections of the Clean Water Act, the government must prove beyond a reasonable doubt each of the following sixelements:

First: that a discharge of a pollutant into a water of the United States occurred on or about the date alleged in the indictment;

Second: that the discharge was made by the defendant;

Third: that the defendant knew the nature of what he was discharging; that is, he knew that he was discharging petroleum-contaminated wastewater;

Fourth: that the discharge was from a point source;

Fifth: that the discharge was in violation of the authorized limits of the water permits; and Sixth: that the defendant knew the discharge was in violation of the authorized limits of the water permits.

(Id. at 50-52.)

COUNT THIRTY-FOUR: CLEAN AIR ACT

Count Thirty-four charges the named defendants with knowingly operating in violation of permit requirements under the federal Clean Air Act by causing more than 55 gallons per day of waste paint to be burned in the facility called the cupola.The substantive statute charged in Count Thirty-four is found in Title 42 U.S.C. § 7413(c)(1), which provides that:

Any person who knowingly violates any requirement . under . section 7661a(a) or 7661b(c) of this title (relating to permits) . shall [be guilty of violating this law].*fn12

Clean Air Act Count - Overview

NJDEP, acting under the federal Clean Air Act, issued Atlantic States a permit called a Title V operating permit, and a series of prior permits called preconstruction permits. We will call those permits the "air permits." During the relevant period allegedin this count, the air permits prohibited the burning of more than 55 gallons per day of waste paint at Atlantic States, in the facility called the cupola.

Clean Air Act Count -- Essential Elements

In order for a defendant to be found guilty of a violation of the Clean Air Act as charged in this count, the government must prove beyond a reasonable doubt each of the following three elements:

First: that the defendant was an owner or operator of a stationary facility or source subject to the air permit program;

Second: that during the time period charged in Count 34, the defendant knowingly caused more than 55 gallons per day of waste paint to be burned in the cupola; and

Third: that the defendant knew the activity was in violation of the authorized limits of the air permits.

(Id. at 57-58.)

C. The Jury Instructions Defining the Mens Rea Requirements of Each Charged Felony Offense

The final jury instructions defining the mens rea requirements of each charged felony offense are excerpted here, insofar as pertinent, as follows.*fn13

Count 1: Conspiracy, 18 U.S.C. § 371

First Element: Existence of Agreement [Instructions regarding formation of conspiracy and the multiple alleged objectives.]*fn14

Second Element: Membership in the Conspiracy .... If the evidence shows that the particular conspiracy charged in the Indictment existed, then you must decide whether the defendants were members of that conspiracy.

A person may become a member of a conspiracy without knowing all of the particular aspects, goals and participants of the conspiracy, as long as that person acts "knowingly and willfully" to advance an illegal goal of the conspiracy. However, if that person has no knowledge of the conspiracy, but happens to do something that advances an objective or purpose of the conspiracy, that person does not, by that action alone, become a conspirator. Rather, the evidence must show both the existence of the conspiracy and a defendant's willful participation in it -- that is, that the defendant intended to advance an objective of the conspiracy.

I will give you the legal definitions of the terms "knowingly and willfully" in the context of conspiracy before we leave the topic of Count One in these instructions, on pages 40-41 below.

You must base your conclusion as to whether a defendant was a member of the conspiracy upon the evidence that you have heard concerning that defendant's own actions, conduct, statements and declarations. You may also weigh that defendant's own statements, actions, and conduct in connection with the acts and conduct of the other alleged conspirators. You may also consider the acts or declarations of others proved to be conspirators in deciding whether a defendant was a member of the conspiracy. In short, whether a defendant was a member of a conspiracy may be based upon all of the evidence, including the reasonable conclusions which you may draw from the evidence.

A particular defendant's participation need not be shown by direct evidence. A defendant's connection may appear from such facts and circumstances in the evidence as legitimately tend to support that conclusion. Proof of a particular defendant's membership may be based upon "circumstantial evidence."

I want to caution you that a defendant's mere presence at the scene of an alleged crime, or merely working together at the same facility, or merely holding a particular job title, does not, by itself, make him a member of the conspiracy. Similarly, mere association with one or more members of the conspiracy does not automatically make the defendant a member. Mere similarity of conduct or the fact that they have assembled together and discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy, or membership in the conspiracy.

I also want to caution you that mere knowledge or acquiescence, without participation, in the unlawful plan is not sufficient. Moreover, the fact that the acts of a defendant, without knowledge, merely happen to further an objective of the conspiracy, does not make the defendant a member. More is required under the law. What is necessary is that the defendant must have participated with knowledge of at least one of the objectives of the conspiracy, and that the defendant did knowingly and willfully intend to aid in the accomplishment of those unlawful goals.

To determine the defendant's knowledge and intent you may draw reasonable inferences from all the facts in evidence. In that connection, I instruct you that to become a member of the conspiracy, the defendant need not have known the identities of each and every other member, nor need the defendant have been apprised of all of their activities. Moreover, the defendant need not have been fully informed as to all of the details, or the scope, of the conspiracy in order to justify an inference of knowledge on his part. Furthermore, the defendant need not have joined in all of the conspiracy's unlawful objectives, as long as the defendant joined in at least one of those objectives.

In sum, to establish the membership of a defendant in the conspiracy, the government must prove beyond a reasonable doubt that the defendant, with an understanding of the unlawful character of the conspiracy, must have intentionally engaged, advised or assisted in it for the purpose of furthering at least one of the illegal objectives. The defendant thereby becomes a knowing and willing participant in the unlawful agreement -- that is to say, a conspirator.

Third Element: Commission of Overt Act

The third element that the government must prove beyond a reasonable doubt to establish the offense of conspiracy is that one or more overt acts were committed in furtherance of the conspiracy by one or more persons you find to be members of the conspiracy.

An overt act is an act knowingly and willfully committed by one of the conspirators in an effort to effect, achieve, or accomplish some object or purpose of the conspiracy. The act itself need not be criminal in nature. It may be as innocent on its face as the act of attending a meeting, writing a letter, issuing or depositing a check, or talking on the telephone. However, it must be an act which tends toward the accomplishment of the plan or scheme and it must be done knowingly and willfully in furtherance of some object or purpose of the conspiracy charged in the Indictment. (Id. at 29-37.)

Conspiracy -- Knowingly and Willfully

Conspiracy requires that a defendant have acted knowingly and willfully. You will soon hear me describe other offenses, and I will instruct you as to the state of mind requirement under each of those offenses. As used in the conspiracy count, Count One, I will define the terms "knowingly and willfully" for you now.

Under the conspiracy law charged in this case, a person acts "knowingly" if that person acts voluntarily and intentionally and not because of mistake, or accident, or other innocent reason. The purpose of adding the word "knowingly" is to ensure that no one will be convicted for an act done because of mistake or accident, or other innocent reason.

It is also the law that a person cannot be convicted of conspiracy if the state of mind of the defendant was in the nature of negligence. One of the substantive laws charged in this case, which I will explain later in these instructions, may involve the concept of criminal negligence. But I repeat that a defendant cannot be convicted of conspiracy, the offense charged in Count One, based on a state of mind that does not rise to the level of knowing and willful participation in the conspiracy.

A person acts "willfully" if that person acts voluntarily and with the specific intent or purpose to do something the law forbids or with the specific intent to omit something the law requires that person do; that is to say, with bad purpose either to disobey or disregard the law.

In determining whether the defendant has acted knowingly and willfully, it is not necessary for the government to establish that the defendant knew that he was breaking any particular law. (Id. at 40-41.)

Knowledge and intent exist in the mind. Because it is not possible to look into a person's mind to see what went on, the only way you have to arrive at a decision on these questions is for you to consider all of the facts and circumstances shown by the evidence and to determine from all the evidence whether the requisite knowledge and intent were present at the time in question. You may consider any statement made by the defendant, and the defendant's actions, as well as all other facts and circumstances in evidence, and the reasonable inferences from that evidence, to determine the defendant's state of mind and intent. (Id. at 42.)

Counts 2-7: False Statements, 18 U.S.C. § 1001

False Statement Counts -- First Element

A false statement or representation is one that is untrue when made, and which the defendant knows at that time to be untrue. To find that the government has proved this element, you do not need to find that the defendant had the intent to deceive a federal agency.

False Statement Counts - Second Element [Instructions regarding materiality.]

False Statement Counts -- Third Element

To find that a defendant acted "knowingly" in the context of the false statements statute charged in Counts Two through Seven, you must find that the defendant acted deliberately and intentionally as opposed to acting innocently, unintentionally, or even negligently. I will define the term"negligently"when discussing the Clean Water Act counts at pages 55-57 in these instructions. But you are instructed that in order to find that the defendant acted knowingly under this statute, you must find that the defendant knew he was making a false statement.

To find that a defendant acted "willfully," in the context of the false statements statute, you must apply the same legal definition of the term "willfully" that I gave you on pages 40-41 of these instructions.

False Statement Counts -- Fourth Element

The fourth essential element under the false statements statute charged in Counts Two through Seven requires that the statement was made in a matter that was in fact within the jurisdiction of the executive branch of the federal government. You do not need to find that the defendant had actual knowledge that federal agencies were involved or that the matter was within federal jurisdiction. In addition, for Counts Five and Six, which involve allegedly false written statements or representations, you do not need to find that the defendant had actual knowledge that the written statement he was making would be sent to a federal agency.

False Statement Counts -- Good Faith Defense

A person who makes a statement or representation, or causes another person to make a statement or representation, on a belief, opinion, or interpretation honestly held is not punishable under the provisions of the statute charged in Counts Two through Seven merely because the belief, opinion, or interpretation eventually turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or an honest error in management does not rise to the level of criminal conduct under this statute. In other words, a statement made with "good faith" belief in its accuracy does not amount to a false statement and is not a crime. This is so even if the statement is, in fact, erroneous.

While the term "good faith" has no precise definition, it encompasses, among other things, a belief or opinion honestly held and an absence of malice or ill will. In determining whether or not the government has proven beyond a reasonable doubt that the defendants acted with the specific intent to make a statement that they knew to be false at the time it was made, the jury must consider all the evidence in the case bearing on the named defendant's state of mind.

The burden of proving good faith does not rest with the defendant because the defendant does not have any obligation to prove anything in this case. It is the government's burden to prove to you, beyond a reasonable doubt, that the defendant acted with the specific intent to make a statement or representation that he knew to be false at the time the statement was made. (Id. at 42-46.)

Counts-10: Obstruction of Justice, 18 U.S.C. § 1505 § 1505 Obstruction Counts -- First Element

The term "pending proceeding" includes an administrative or criminal investigation conducted by a department or agency that has rule-making or adjudicative authority. This term extends to an agency investigation of a particular incident or event or situation even if the investigation occurs before a formal administrative citation or criminal indictment has been issued. § 1505 Obstruction Counts -- Second Element

The requirement that the defendant must be aware that there is a pending proceeding means that the defendant must be aware that there is then pending an agency proceeding, such as an investigation of an incident or event that falls within the scope of responsibility of that agency.

§ 1505 Obstruction Counts -- Third Element

The term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information. In order to prove that a defendant acted "corruptly" under this statute, the government must establish that defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the integrity of the agency proceeding. This definition of the term corruptly, applicable to Counts Eight through Ten only, is found at 18 United States Code, Section 1515(b).

"Endeavor" means to knowingly and deliberately act or make any effort which has a reasonable tendency to bring about the desired result. You do not need to find that the endeavor was successful, or achieved the desired result; the government must merely show that the defendant endeavored to obstruct the proceeding.

There must be, however, a connection -- or what we call a nexus --between the defendant's act and the proceeding. That is, the act must have a relationship in time, causation, or logic with the proceeding. This nexus may include obstruction with regard to prospective witnesses. The endeavor must have the natural and probable effect of interfering with the administration of justice.

Here let me add a point that is applicable to Count One, the conspiracy count. As you know, the Indictment charges that one of the illegal objectives of that conspiracy was to obstruct justice in violation of this obstruction statute, 18 U.S.C. § 1505. You can see that in the Indictment, paragraph 39.E. The "nexus" requirement and the requirement of a "pending proceeding" under this obstruction statute impose special requirements as to conspiracy. In the case of a conspiracy, the agency proceeding does not need to be pending. You must find beyond a reasonable doubt, however, that at the time that they conspired, the members of the conspiracy must have expected that a proceeding would be instituted and must have intended that their actions would obstruct that anticipated proceeding. (Id. at 47-48.)

Count 11: Obstruction of Justice, 18 U.S.C. § 1519 § 1519 Obstruction Count -- First through Third Elements

The first through third essential elements of the obstruction of justice offense charged in Count Eleven require the government to prove beyond a reasonable doubt that the defendant knowingly altered, concealed or covered up a tangible object. Here you should use the definition of "knowingly" provided above on pages 40-41 of these instructions.

§ 1519 Obstruction Count -- Fourth Element

This element requires a finding beyond a reasonable doubt that the defendant intended to impede, obstruct or influence the investigation and proper administration of a matter within the jurisdiction of a federal agency, in this case OSHA. You do not need to find that the defendant was successful in impeding, obstructing or influencing the agency. (Id. at 50.)

Counts 12-33: Clean Water Act, 33 U.S.C. §§ 1319(c)(2)(A) and 1311(a)

CleanWater Act Counts -- Third and Fifth Elements

The third and fifth elements of these counts require the government to prove beyond a reasonable doubt that the defendant acted "knowingly"; that is, the defendant had knowledge of the facts of the offense.

This means that you must find that:

a. the defendant committed the discharge intentionally and not as the result of ignorance, mistake or accident; and

b. the defendant knew the nature of the material discharged, that is, the defendant knew the material being discharged included substances that were not pure water; and

c. the defendant knew the discharge was in violation of the authorized limits of the water permits.

Note that there are some matters that you do not need to decide. First, you do not need to find that the defendant knew that he was breaking the law. Second, you do not need to find that the defendant actually read the water permits or knew all the details contained in those permits. But you must find that the defendant had knowledge that the discharge was not permitted under the water permits. Third, you do not need to find that the defendant knew that the waters into which he was discharging pollutants happened to be waters of the United States; it is sufficient that he knew the discharge was into a storm drain or storm sewer leading to public waters.

I specifically instruct you that negligenceis not sufficient to satisfy the requirement of a knowing violation of the Clean Water Act, as alleged in these counts. (Id. at 54-55.)

Count 34: Clean Air Act, 42 U.S.C. § 7413(c)(1)

Clean Air Act Count -- Second Element

An act is done "knowingly," as used in this statute, if the defendant is aware of the nature of his acts and does not act or fail to act through ignorance, mistake or accident. This element requires the government to prove beyond a reasonable doubt that the named defendant "knowingly" caused more than 55 gallons per day of waste paint to be burned in the cupola. This means that you must find that he knew that an amount of waste paint in excess of 55 gallons per day was being burned in the cupola, and he knowingly participated in causing that amount to be burned.

Clean Air Act Count -- Third Element

This element requires the government to prove beyond a reasonable doubt that the defendant knew that the burning of more than 55 gallons of waste paint per day in the cupola was in violation of the authorized limits of the air permits. Note that there are some matters that you do not need to decide. First, you do not need to find that the defendant knew that he was breaking the law. Second, you do not need to find that the defendant actually read the air permits or knew all the details contained in those permits. But you must find that the defendant had knowledge that the burning of that quantity of waste paint was not permitted under the air permits.

I specifically instruct you that negligenceis not sufficient to satisfy the requirement of a knowing violation of the Clean Air Act, as alleged in this count. (Id. at 59-60.)*fn15

D. The Jury Instructions Identifying the Elements and Defining the Lesser-Included Clean Water Act Negligence Offense

There was only one potential lesser-included offense among all the statutes charged in this case, based on the conduct alleged. That offense is found in the Clean Water Act, 33 U.S.C. § 1319(c)(1)(A), quoted in the margin.*fn16 The indictment charged only felony offenses, and did not charge the lesser-included CWA negligence offense. We made no mention of it in the preliminary jury instructions, which did identify the essential elements of each offense charged in the indictment. (See dkt. 716.)

Defendants argued at trial that the evidence supported the submission to the jury of the lesser-included Clean Water Act offense. (Dkt. 533.) We agreed, and included that offense in the jury instructions and in the verdict sheets of the defendants named in the CWA counts. The portion of the jury instructions identifying the elements and defining the term "negligence" for a "negligent" violation under 33 U.S.C. § 1319(c)(1)(A) stated in full:

Clean Water Act Counts - Lesser Included Offense of Negligent Violation

If you do not find beyond a reasonable doubt that a defendant knowingly violated the Clean Water Act, however, you may still consider whether the government has proven beyond a reasonable doubt that defendant is guilty of the offense of negligently violating that Act.

The section of the Clean Water Act that makes a negligent act a criminal violation is found in Title 33 United States Code section 1319(c)(1)(A). That section provides:

Any person who ... negligently violates section 1311 ... or any permit condition or limitation [shall be guilty of violating this law]. "Negligence" may be defined as a failure to exercise, in the given circumstances, that degree of care for the safety of others which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.

Here I caution you: The Clean Water Act is the only offense in this Indictment that can be violated negligently. All of the other offenses require knowledge and/or willfulness as I have instructed you.

You will be given a verdict sheet in order for you to record the verdicts you may reach on each of the counts as to each of the defendants. For the Clean Water Act counts, Counts 12 through 33 of the Indictment, you will notice that there are separate categories for a knowing or negligent violation of the act. These are separate offenses; if you find that a defendant acted negligently, but not knowingly, you should check off only the "negligent" violation, and not the "knowing" violation.

I would like to say a few words about the concept of negligence specifically as it may apply to the Clean Water Act. A person negligently violates the Clean Water Act by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances, and, in so doing, discharges any pollutant into United States waters without or in violation of a water permit. In other words, for the government to prove a negligent violation of the Clean Water Act it must prove, beyond a reasonable doubt, (1) that a defendant acted negligently, and (2) that the defendant's negligence was a proximate cause of the illegal discharge.

An incident is "proximately caused" by an act or a failure to act whenever it appears from the evidence that the act or failure to act played a substantial part in bringing about or actually causing the incident, and that incident was either a direct result or a reasonably probable consequence of the act or omission. In order to prove that a defendant caused a negligent discharge in violation of the water permits, the government must prove beyond a reasonable doubt that the named defendant's conduct had a direct and substantial connection to the discharge, and that the discharge would not have occurred but for the defendant's conduct. For example, if a spill was a direct result or a reasonably probable consequence of a defendant's negligence, then that spill was proximately caused by such act or omission. Conversely, if you find that the spill would have occurred even in the absence of the defendant's negligence, then you must find that the defendant did not proximately cause the spill.

If you find that a defendant was negligent but that the actual dischargewas the result of a superseding cause, such as the act of a second person, and that a reasonably prudent person would not have foreseen an act of the kind committed by the second person as a probable consequence of defendant's negligence, then defendant is not responsible for the action and you must find defendant not guilty of a negligent violation of that law. The foreseeability of another's actions is viewed from a reasonable person's perspective at the time, and not in hindsight. (Dkt. 717 at 55-56 (emphasis added).)

We used the civil or ordinary negligence definition (also referred to as "simple" negligence) in this jury instruction, rather than a higher standard for negligence such as found in the Model Penal Code, Section 2.02(2)(d). This instruction was based on the Ninth Circuit's holding in United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000), discussed infra. The fact that the Supreme Court denied certiorari adds no precedential weight to that holding. We found no contrary federal appellate decision, however, and the parties did not object to using that definition here.*fn17

E. The Government's Objection to the Last Identified Element of the Clean Water Act and Clean Air Act Felony Offenses

The Clean Water Act and Clean Air Act offenses charged in this case were based upon allegations that defendants committed criminal violations of the permits issued to Atlantic States under the federal regulatory system established under those statutes. Atlantic States had water permits that allowed it to discharge into the municipal storm sewer system, which emptied directly into the Delaware River, the following liquids: (1) stormwater surface run-off, and (2) non-contact cooling water flowing from Atlantic States's cooling towers. Thus, petroleum-contaminated wastewater was not permitted to be discharged into the public storm sewer system, no matter where it came from within the plant. Likewise, Atlantic States had air permits that allowed it to burn up to 55 gallons per day of waste paint in the cupola, which had air emissions control processes and monitoring equipment. The alleged conduct of the defendants named in the substantive CWA and CAA counts related to those limitations of the water and air permits.

Proposed jury instructions were submitted by both sides prior to trial, as required in a Scheduling Order issued by this Court. (Dkt. 175.)*fn18 The government's version identified the essential elements of the CWA offense as follows:

First: that on or near the date [stated in] the indictment, the defendant discharged a pollutant into a water of the United States;

Second: that the discharge was from a discernible, confined, and discrete point source, such as a storm sewer/storm drain; and

Third: that the discharge occurred without a permit;

Fourth: that the defendant acted knowingly. (Dkt. 712 at 81.) The government's version explained those elements as follows:

You must decide that ... the defendant acted knowingly; that is, the defendant had knowledge of the facts of the offense. This means that you must find that:

a. The defendant committed the discharge intentionally and not as the result of ignorance, mistake, or accident;

b. The defendant knew the nature of the material discharged, i.e., he knew the material included substances that were not pure water.

Note that there are some matters that you do not need to decide. First, you do not need to find that the defendant knew that he was breaking the law. Second, you do not need to find that that defendant knew the legal requirement of having a permit, though you must find that the defendant did not have a permit allowing these types of discharges. Third, you do not need to find that the defendant knew that the waters into which he was discharging pollutants happened to be waters of the United States. Deciding who owns the waters in question merely allows courts to decide whether the offense belongs in a state or a federal court. (Id. at 85.)

The government's version similarly identified the essential elements of the CAA offense as follows:

First: the defendant is the owner or operator of a source subject to the operating permits program;

Second: the defendant operated the source;

Third: in violation of a permit requirement; and Fourth: the defendant acted knowingly. (Id. at 89.) The government's version explained those elements as follows:

It is not necessary for the government to prove that the defendant knew that he was acting in violation of the law or that he knew any of the regulatory requirements.

This crime is one of general intent, that is, the defendant does not need to know that he was violating the specific terms of the permit or of the law in order to be liable for the crime. You must, however, find that he knew the facts of what he was doing. This means that you must find that he knew how much waste paint was being burned in the cupola. Then, you must find that this amount of paint was in excess of that allowed under the permit. (Id. at 93.)

The defendants' version identified the essential elements of the CWA offense as follows:

First, that on or about the dates alleged ..., the Defendant knowingly, and not accidentally or by mistake or other innocent reason, caused a discharge;

Second, that the Defendant knew he was causing the discharge of a pollutant;

Third, that the Defendant knew the content of the discharge was petroleum-contaminated wastewater;

Fourth, that the Defendant knew the method or instrumentality used to discharge the pollutants;

Fifth, that the Defendant knew that the discharge was to navigable waters of the United States; and

Sixth, that the Defendant caused the discharge knowing that such discharge was not authorized by a permit issued under the Clean Water Act.

The Government must prove that the Defendant knew of the nature of his acts and performed them intentionally. Further, the Government must prove that the Defendant knew the nature of the material involved. Specifically, the Government must prove that the Defendant knew that he was causing the discharge of petroleum-contaminated wastewater. If the Defendant did not know that he was discharging petroleum-contaminated wastewater, then you must find the Defendant not guilty. The Government is not required to establish that a Defendant knew that his conduct was unlawful. (Dkt. 713 at 94-95.)

The defendants' version similarly identified the essential elements of the CAA offense as follows:

First, that the Defendant owned or operated a major stationary source;

Second, that the Defendant knew that Atlantic States' Title V permit prohibited the burning of more than 55 gallons per day of waste paint; and Three, that the Defendant knew that his actions would cause a violation of a requirement of the Title V permit; specifically that the Defendant knew his actions would result in the burning of more than 55 gallons per day of waste paint.

....

Defendant Atlantic States was issued a Title V permit that prohibited the burning in the cupola of more than 55 gallons of waste paint per day. In order to find a Defendant guilty, you must find ... that the Defendant knew that the Title V permit prohibited the burning of more than 55 gallons of waste paint per day in the cupola.

To secure a conviction under the Clean Air Act, the Government must prove beyond a reasonable doubt a Defendant's knowledge of the facts meeting each element of the offense.

For you to find a Defendant guilty, you must find ... that the Defendant knew that his actions would result in the burning of more than 55 gallons of waste paint in the cupola on a particular day. (Id. at 106-09.)

The key difference between the proposed instructions of the parties, to identify the essential elements of the CWA and CAA offenses charged in the indictment in the factual context of this case, was that the defendants' version would require knowledge that the discharge or emission was in violation of water and air permits that Atlantic States did possess. The government's version would require only knowledge of the nature of the discharge (i.e., polluted wastewater going into the storm sewer system or excess paint burned in the cupola). The parties sharply disagreed on that issue, and the Court was required to resolve it prior to trial in order to provide the jury with preliminary jury instructions listing the essential elements of each charged offense.*fn19

We ruled that where, as here, an industrial operator has a permit and its employees are charged with "knowing" criminal violations of the CWA and CAA, the defendant must know not just the nature of the discharge, but also the fact that the discharge is in violation of the authorized limits of the permits.*fn20 We therefore instructed the jury, in the preliminary jury instructions, that the essential elements of the Clean Water Act offenses charged in the indictment were:

1. That a discharge of a pollutant into a water of the United States occurred on or about the date alleged in the indictment;

2. That the discharge was made by the defendant;

3. That the defendant knew the nature of what he was discharging; that is, he knew that he was discharging petroleum-contaminated wastewater;

4. That the discharge was from a point source;

5. That the discharge was in violation of the authorized limits of the water permits; and

6. That the defendant knew the discharge was in violation of the authorized limits of the water permits.

(Dkt. 716 at 22-23; tr. 234 at 46-47.) We similarly instructed the jury, in the preliminary jury instructions, that the essential elements of the charged Clean Air Act offense were:

1. That the defendant was an owner or operator of a stationary facility or source subject to the air permit program;

2. That during the time period charged ..., the defendant knowingly caused more than 55 gallons per day of waste paint to be burned in the cupola; and

3. That the defendant knew the activity was in violation of the authorized limits of the air permit.

(Dkt. 716 at 24; tr. 234 at 48.) That identification of the essential elements was repeated consistently in the final jury instructions. (Dkt. 717 at 52, 58.) However, at the time we made that ruling in advance of the trial, we made it clear to the parties that we did not foreclose the possibility that a so-called "willful blindness" instruction could be included in the final jury instructions if appropriate. (Tr. 234 at 5-14.)

We find that it is necessary to set forth in this opinion the legal analysis that led us to that ruling. That legal background provides the framework for the decision that we made to reject defendants' proposed language on "recklessness" when the issue arose in drafting the final jury instructions.

F. Defendants' Objection to Refusal of Their Proposed Instructions on Recklessness

We have described above that proposed jury instructions were submitted by both sides prior to trial, as required in a Scheduling Order issued by this Court. (See n.18, supra and accompanying text.) The Defendants' Draft Requests, submitted at that time, contained proposed instructions defining the terms "knowingly" and "willfully," quoted here:

A person acts knowingly if he acts intentionally and voluntarily, and not because of ignorance, mistake, accident, carelessness or other innocent reason. The terms "accident" or "accidental" mean an event that takes place without foresight or expectation; that is, an unintended, sudden and unexpected event. Whether the Defendant acted knowingly may be proven by the Defendant's conduct and by all of the facts and circumstances surrounding the case. As I will instruct you later, the term "knowingly" has a specific meaning in connection with the Government's Clean Water Act and Clean Air Act allegations against the defendants. (Dkt. 713 at 43.)

A "willful" act is one undertaken with a "bad purpose." In other words, in order to establish a "willful" violation of a statute, the Government must prove ... that the defendant acted with knowledge that his conduct was unlawful and that the act was committed voluntarily and purposefully, with the specific intent to do something the law forbids. A willful act is done with bad purpose either to disobey or disregard the law. The defendant's conduct is not "willful" if it was due to negligence, inadvertence, mistake or without knowledge that his conduct was unlawful. (Id. at 44.)

Meaning of "Knowingly" Under the Clean Water Act

An act is done knowingly if (1) the Defendant was aware of the act, and (2) the Defendant's actions or failure to act were not the result of ignorance, mistake, accident, negligence or carelessness. In order for you to find a Defendant guilty of a knowing violation of the Clean Water Act, you must find ... that the Defendant acted knowingly with regard to each and every element of the offense that I described above. In other words, if you find ... that the Defendant knowingly caused a discharge but you are unable to find ... that he caused the discharge knowing that such discharge was not authorized by a permit issued under the Clean Water Act, then you must find him not guilty of a Clean Water Act violation. In determining whether a Defendant possessed the requisite knowledge, you should consider all of the information that you find was available to the Defendant, any information that you find was obtained by the Defendant, and any information that you find was communicated to the Defendant by any person, including public officials. Negligence on the part of a Defendant alone is not enough to establish knowing conduct.

To find the Defendants guilty of a knowing violation of the Clean Water Act, the Government has the burden to prove ... that the Defendants acted knowingly. If the Government proves only that the Defendant acted negligently, you must find that Defendant not guilty of a knowing violation of the Clean Water Act. (Id. at 103.) Definition of the "knowledge" requirements under the Clean Air Act, as proposed in Defendants' Draft Requests, are quoted supra. (Id. at 108-09.) Definitions of knowledge and intent pertaining to other charged offenses, as proposed in Defendants' Draft Requests, are quoted in the margin.*fn21

There was no mention in Defendants' Draft Requests of the concepts of gross negligence or recklessness. (See dkt. 713 at 1-115.) The preliminary jury instructions provided by the Court employed well-recognized definitions of the mental states found in the elements of the charged offenses, without objection by defendants, as follows:

Under the laws that are charged in this case, a person acts "knowingly" if that person acts voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word "knowingly" is to ensure that no one will be convicted for an act done because of mistake or accident, negligence, or other innocent reason.

A person acts "willfully" if that person acts voluntarily and with the specific intent or purpose to do something the law forbids or with the specific intent to omit something the law requires that person to do; that is to say, with bad purpose either to disobey or disregard the law.

In determining whether the defendant has acted knowingly and intentionally, or willfully, it is not necessary for the government to establish that the defendant knew that he was breaking any particular law. Ignorance of the law is no excuse and is not a defense in this case. (Dkt. 716 at 24.)

Obstruction Charges - Elements of § 1519

In order to find a defendant guilty of Count 11 ..., you must ... find ... that defendants Atlantic States and John Prisque knowingly altered the condition of a cement mixer by bypassing a safety device ... and that the defendants knowingly concealed that alteration from OSHA inspectors. The term "knowingly," ... means only that one is conscious of what he or she is doing -- not that the defendant knew that the conduct in question is a violation of the law....

Second, the Government must prove that the defendant intended to impede, obstruct, or influence an investigation being conducted by a department or agency of the United States. Thus, ... you must also ... find ... that the defendants altered the cement mixer and concealed that alteration with the intent to impede, obstruct or influence an investigation being conducted by OSHA. Intent to impede, obstruct or influence implies a consciousness of wrongdoing.... (Id. at 89.)

This Court purposely defined the word "knowingly," in the preliminary jury instructions, by excluding "an act done because of mistake or accident, negligence, or other innocent reason." (Id.; tr. 234 at 49.) We did that precisely because we were aware of the possibility that the final jury instructions would submit to the jury the lesser-included offense of a negligent violation of the Clean Water Act. We therefore believed it prudent to pave the way for such an instruction by making it clear at the outset that "negligence" would not satisfy the definition of "knowingly." (See tr. 704 at 47-48.)

The trial was nearing completion when, on March 23, 2006, defendants submitted a letter brief requesting that the Court instruct the jury on the lesser-included offense under the Clean Water Act, on the grounds that the evidence supported submitting the lesser-included offense for the jury to consider. (Dkt. 533.) That brief also requested that the jury "be instructed very clearly that negligence is not a valid theory of liability (and indeed is a defense) to each of the other counts." (Id. at 1.) This was an argument that defendants had expressed during the pretrial motion arguments as well. (See dkt. 157 at 4-10; dkt. 174 at 3-5; tr. 211 at 20-26.) That letter brief was accompanied by a new document, entitled Defendants' Proposed Instructions to the Jury ("Defendants' Proposed Instructions"). (Dkt. 532.) In the letter brief, defendants stated that they had submitted a proposed instruction using a simple negligence definition for the lesser-included CWA count, and "negligence instructions [that] are required in order to clarify for the jury that the various offenses other than the CWA have distinct mental-state requirements that cannot be satisfied by negligence." (Dkt. 533 at 1.) That brief summarized the mental state requirements for each of the charged felony offenses other than the CWA offense, pointing out that negligence would be a defense to each and commenting, "[t]hen the jury must sort out that acting with mere negligence -- an element of liability under CWA -- is a defense to liability under CAA." (Id. at 5-6.)

The Court at that point had over 300 pages of proposed jury instructions to review: the original sets from each side that had been submitted pre-trial pursuant to the Scheduling Order (103 and 115 pages, respectively) and the 108-page new submission from the defendants. In reviewing the new set from the defendants, we noticed that in virtually every location where the term "knowingly" was addressed, the word "recklessly" had been added to the list of what that term does not include. Defendants' Proposed Instructions contained the following theme, repeated frequently in its pages:

Under the laws that are charged in this case, a person acts "knowingly" if that person acts voluntarily and intentionally and not because of mistake, or accident, or negligence, or recklessness or other innocent reason. The purpose of adding the word "knowingly" is to ensure that no one will be convicted for an act done because of mistake, accident, negligence, recklessness or other innocent reason. (Dkt. 532 at 38; see also id. at 66-67, 83, 95.)

A negligent or reckless act is ordinarily committed unintentionally. Therefore, as a matter of both law and logic, a defendant cannot conspire or agree to commit a negligent or reckless act. Accordingly, if you believe that a defendant negligently or recklessly violated the law, you cannot find that the defendant conspired to violate that law. For example, if you find ... that a defendant negligently or recklessly (but not knowingly) violated the Clean Water Act, then you cannot find that defendant guilty of conspiring to violate that act. (Id. at 50.)

A false statement is one that is untrue when made, and which the defendant knows at that time to be untrue.... [A] person acts "knowingly" if that person acts voluntarily and intentionally and not because of mistake or negligence or recklessness or accident or other innocent reason. (Id. at 66-67.)

The false statement at issue must have been a knowing and willful false statement instead of a mere negligent or reckless one.

"Negligence" in this context means a failure to exercise "reasonable care," that is, the care reasonably prudent persons would exercise....

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that materially exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.*fn22

Accordingly, if you find that defendant was acting negligently or recklessly, as I have defined those terms, but not knowingly and wilfully, as I have defined those terms, when he made a false statement, you must acquit the defendant of that count. (Id. at 70-71.)

To find a "knowing" violation of the Clean Water Act, you must find ... that a defendant knew that he was discharging petroleum-contaminated wastewater and knew that the discharge was in violation of the authorized limits of the water permits. Negligence or recklessness is not sufficient to satisfy the requirement of a knowing violation. (Id. at 86.)

This Court prepared a 62-page Draft One of its final jury instructions, and commenced the jury charge conference. (Dkt. 714; tr. 556 at 3-76.) That draft did feature the lesser-included CWA offense, and did import some of the "recklessness" language that defendants had recently proposed. (Id. at 39-40, 42, 52-55, 57.)*fn23 That draft, however, also mis-stated the elements of the CWA and CAA offenses that we had previously ruled upon, due to simple oversight by the Court. (Id. at 49-50, 56; tr. 555 at 130-31.) During that charge conference session, we stated that we would likely correct that oversight in the next draft to be prepared. (Tr. 556 at 48-52.) We also indicated no difficulty with the "recklessness" language that we had used as proposed by defendants, to which the government had raised no objection. (Id. at 35-40.)

The second draft of the final jury instructions was discussed in the jury charge session the next day. (Dkt. 715; tr. 555 at 95-152.)*fn24 That draft contained the corrected listing of the elements of the CWA and CAA felony offenses, and retained the lesser-included negligent CWA offense. (Dkt. 715 at 52-64.) It also contained repeated admonitions that only the CWA could be violated negligently, and negligence was not sufficient to satisfy the requirement of "knowing" for any of the felony offenses. However, it deleted the references to recklessness. It also included a proposed instruction on willful blindness, to be added to the section defining the term "knowingly." (Id. at 70.) Defendants objected to addition of the willful blindness instruction, which the government strongly urged should be employed. (Tr. 555 at 128-147.)

This Court ultimately exercised its discretion not to include a willful blindness instruction in the final jury instructions. (Tr. 555 at 150-51; tr. 577 at 51-60.) However, we rejected defendants' proffered language that would have defined the term "knowingly," for each felony offense in the indictment, by explaining that "recklessness" (as defined in the Model Penal Code as a subjective rather than an objective state of mind) is not included in the definition of "knowing." (Tr. 555 at 124-28.) After two more drafts addressing minor points, those rulings were embodied in the final jury instructions. Defendants preserved their objection, which they raise as Point 1 in their post-trial motions. See n.50, infra.

The next section will set the framework for this issue by addressing the body of environmental criminal jurisprudence that informed our drafting of the jury instructions identifying the elements of the Clean Water Act and Clean Air Act offenses here. The following section will then address the issue of "recklessness" in the context of this case.

G. Legal Analysis for the Last Identified Element of the Clean Water Act and Clean Air Act Felony Offenses

This Court identified the last essential element for both the CWA and the CAA felony offenses, as charged in this case, to be that the government must prove that the defendant knew that the discharge or activity violated the authorized limits of the water or air permits held by Atlantic States. (Dkt. 717 at 50-52, 57-58, quoted supra, Sec. I.B.) This ruling agreed with the position of defendants on the point, over strong objections by the government. (See dkt. 133-2 at 1-14; dkt. 146-1 at 26-30; dkt. 148 at 10-16; dkt. 157 at 1-4; dkt. 167-1 at 1-7; dkt. 174 at 1-3; tr. 211 at 15-24, 28-58; tr. 213 at 61; tr. 704 at 21-30, 48-49; tr. 234 at 5-14.) It was based upon our analysis of the evolving state of the circuit appellate case law interpreting these and similar environmental criminal statutes. Those decisions in turn refer to pertinent Supreme Court decisions, although very few of those involve environmental statutes.

None of the defendants advanced a theory of defense that they were unaware of the relevant water and air permit limitations. (See, e.g., tr. 211 at 24-25; tr. 577 at 58-60.)

Nevertheless, they were entitled to jury instructions that correctly identified the mens rea requirements of each charged offense. See United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007) (citations omitted); Thayer, 201 F.3d at 222.

The task of interpreting federal criminal statutes to determine the statutorily-imposed mens rea requirement is a judicial function, applying familiar principles of statutory construction. While the principles of statutory interpretation are well established, the process can be difficult. "Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." United States v. Bailey, 444 U.S. 394, 403 (1980).

The felony violations of the Clean Water Act and the Clean Air Act charged in this case each require that the defendant have acted "knowingly." Other counts of the indictment require a mens rea of "willfully." The Supreme Court has provided this basic summary for interpreting those terms. "'[T]he knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.'.... Thus, unless the text of the statute dictates a different result, the term 'knowingly' merely requires proof of knowledge of the facts that constitute the offense." Bryan v. United States, 524 U.S. 184, 193 (1998) (internal citation omitted). An offense requiring a "willful" state of mind will generally require proof "that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful." Id. Generally, however, even a requirement of willfulness does not "carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required." Id. at 196.

The frequently vexing question, when interpreting a statutory provision requiring that defendant acted "knowingly," is "'how far down the sentence the word 'knowingly' is intended to travel.'" Liparota v. United States, 471 U.S. 419, 425 n.7 (1985) (quoting W. LaFave & A. Scott, Criminal Law § 27 (1972)). Jurisdictional elements do not generally carry a "knowing" requirement. See United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n.3 (1994) (citing United States v. Feola, 420 U.S. 671 (1975)). All other elements may, but do not necessarily, have a "knowing" requirement. These questions are resolved by the courts in the process of performing the necessary statutory interpretation.

Here we lay out an overview for the discussion of appellate precedent that follows. Some courts have invoked the so-called "public welfare doctrine" to aid in determining how far down the elements of an environmental felony offense the knowledge requirement must travel.*fn25

However, this approach has been criticized both as to the origin of such "doctrine," and its effect when sought to be applied to complex statutory and regulatory schemes carrying serious felony consequences. Other courts have developed the view that determining a statutory mens rea requirement depends not only upon the statutory provision charged, but also upon the type of conduct charged, even when interpreting regulatory schemes aimed at protecting the public health and welfare. Under this approach, courts have applied a canon of statutory interpretation demanding the mens rea requirement to include knowledge of enough facts to distinguish conduct that is likely culpable from conduct that is entirely innocent. We believe that Third Circuit precedent, as well as most of the appellate precedent in other circuits, is consistent with that approach in interpreting mens rea requirements under environmental felony provisions, even while recognizing a legislative goal of protecting the public health and welfare.

The choice of statutory interpretation framework is not merely an academic exercise. It can produce different jury instructions when the court performs its constitutional duty to determine the essential elements of an offense, including the mens rea requirements, in a given factual setting. In our view, this District Court was confronted with just such a challenge as it drafted the jury instructions defining the essential elements of the felony violations of the Clean Water Act and the Clean Air Act charged in this case. We can best explain the reasoning that we employed in drafting those instructions by describing the array of relevant precedent.

The key features of each of the decisions to be discussed here were: (1) who was charged; (2) precisely what statutory provision was charged; and (3) what conduct was charged. We have grouped the decisions by statutory provision, to show the lines of cases that have developed interpreting portions of those environmental statutes.

The only modern Supreme Court decision interpreting the mens rea requirement under a federal law aimed at protecting the environment was United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971). There, a company was charged with a misdemeanor violation of a provision of the Interstate Commerce Act by shipping (i.e., delivering to a common carrier for shipment) chemicals including sulfuric acid and knowingly failing to show on the shipping papers the required classification of the substance as corrosive liquid, in violation of an ICC regulation. The statute gave the ICC the power to "formulate regulations for the safe transportation" of "corrosive liquids," and stated that whoever "knowingly violates any such regulation" would be subject to fine or imprisonment of up to one year. Id. at 559 (statutory citations omitted). A divided Supreme Court held that the "knowing" requirement in that situation was limited to knowledge of shipment of the dangerous materials; knowledge of the regulation was not also required. Id. at 563-64.

Reviewing the statutory language in light of the legislative history, and prior Supreme Court precedent on issues bearing on criminal mens rea, the International Minerals Court observed that a requirement of mens rea was present in the offense language:

The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of [the legislative history of this provision] we decline to attribute to Congress the inaccurate view that the Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word 'knowingly.'....

So far as possession, say, of sulfuric acid is concerned the requirement of 'mens rea' has been made a requirement of the Act as evidenced by the use of the word 'knowingly.' A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered.

Id. at 564 (quoting Morissette v. United States, 342 U.S. 246, 250 (1952)).

The Court interpreted the statutory language "knowingly violates any such regulation" as follows:

We ... see no reason why the word 'regulations' should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse and is wholly consistent with the legislative history.

Id. at 561.

The International Minerals decision ended with the following statement:

In Balint the Court was dealing with drugs, in Freed with hand grenades, in this case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in Murdock [interpreting "willfully" requirement in criminal tax offense statute], 'mens rea' as to each ingredient of the offense. But where, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.

Id. at 564-65 (citations omitted; bracketed material added).

We begin this survey of circuit court environmental jurisprudence with a group of consistent rulings demonstrating that even when the word "knowingly" is found only at the beginning of a statutory phrase containing multiple elements, courts will apply the "knowingly" requirement to several of those elements. The stated basis for such a ruling, where appropriate in light of the text, structure and legislative history of the statute, is that to hold otherwise could foreclose defenses based on ignorance of facts rather than ignorance of the law, and thus criminalize otherwise innocent conduct.

The federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6987, creates a regulatory scheme to ensure that hazardous wastes are disposed of properly. One of its provisions creates a felony offense for:

[a]ny person who (1) knowingly transports, or causes to be transported, any hazardous waste identified or listed under this subchapter to a facility which does not have a permit ....

42 U.S.C. § ("Section") 6928(d)(1).

Courts have had no difficulty applying the "knowingly" requirement in Section 6928(d)(1) to extend all the way to the last factual element stated in that text, namely that defendant (who is the transporter) knows that the facility to which the hazardous waste is transported (the receiving facility) does not have a permit. See United States v. Speach, 968 F.2d 795, 796-98 (9th Cir. 1992); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503-05 (11th Cir. 1986); accord, United States v. Hansen, 262 F.3d 1217, 1253 (11th Cir. 2001), cert. denied, 535 U.S. 1111 (2002); see also United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 46-48 (1st Cir. 1991) (noting same with approval); United States v. Goldsmith, 978 F.2d 643, 644-46 (11th Cir. 1992) (referencing jury instructions on same with apparent approval); United States v. Overholt, 307 F.3d 1231, 1250-51 (10th Cir. 2002) (assuming without deciding same in view of Hayes Int'l and Speach); United States v. Wasserson, 418 F.3d 225, 231 & n.2 (3d Cir. 2005) (noting, as explained by reference to district court opinion 2004 WL 433824, at *1-2 (E.D. Pa.), that district court properly granted new trial when correct jury instruction under Section 6928(d)(1) would have required transporter's knowledge that receiving facility lacked a permit).

The rationale for those rulings, as expressed in Hayes Int'l, was that "[r]emoving the knowing requirement from this element would criminalize innocent conduct; for example, if the defendant reasonably believed that the [disposal] site had a permit, but in fact had been misled by the people at the site." Hayes Int'l, 786 F.2d at 1504 (citing Liparota, 471 U.S. at 425-26; United States v. Freed, 401 U.S. 601 (1971)). Those courts have, however, cautioned that under Section 6928(d)(1), ignorance of the legal requirement that the receiving facility have a permit would be no defense. The Hayes Int'l court explained this point as follows:

In this case, the congressional purpose indicates knowledge of the permit status is required. The precise wrong Congress intended to combat through section 6928(d) was transportation to an unlicensed facility.... [FN6]

Fn. 6: It may seem anomalous to hold that the government need not show that the defendant had actual knowledge that the law requires a permit, but that it must show knowledge of the permit status of the disposal site at issue. As Justice White stated, however, in discussing the hypothetical [found in Liparota, 104 S.Ct. at 2088 n.7] a seller need not know a license is required to sell a security as long as the seller knows he does not have a permit. 105 S.Ct. at 2094 (White, J., dissenting). Here, if the transporter does not know a permit is required, but knows the facility does not have one, or knows he has not inquired, then sufficient knowledge is shown.

The government does not face an unacceptable burden of proof in proving that the defendant acted with knowledge of the permit status. Knowledge does not require certainty; a defendant acts knowingly if he is aware "'that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.'" .... Moreover, in this regulatory context a defendant acts knowingly if he willfully fails to determine the permit status of the facility....

Moreover, the government may prove guilty knowledge with circumstantial evidence.... In the context of the hazardous waste statutes, proving knowledge should not be difficult.... .... Knowledge does not require certainty, and the jurors may draw inferences from all of the circumstances, including the existence of the regulatory scheme. Hayes Int'l, 786 F.2d at 1504-05 (citations omitted).*fn26

As this discussion reveals, the courts have agreed that even when a provision of the RCRA statute is interpreted as not requiring knowledge on the part of defendant that the law requires a third party to have a permit, it may require knowledge of the fact that the third party does not have a permit for the regulated activity. This rationale was further explained in Speach as follows:

[S]section 6928(d)(1) deals not with the violator's lack of a permit, but with the lack of a permit on the part of the person to whom the violator delivers hazardous waste. The statute accordingly does not limit liability to the person in the best position to know the facility's permit status. Instead, it requires transporters like [defendant] to ensure that other parties have storage permits. We decline to impose liability on these defendants absent proof that they knew the recipient's permit status.

Speach, 968 F.2d at 797.

RCRA also contains a provision that appears to make an express distinction between the knowledge requirement for a felony offense by a permit holder as distinguished from a non-permit holder, where the facts do not involve a third party permittee. That provision creates a felony offense for:

[a]ny person who -...

(2) knowingly treats, stores or disposes of any hazardous waste ... --(A) without a permit ... or

(B) in knowing violation of any material condition or requirement of such permit; or

(C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards....

42 U.S.C. § 6928(d)(2) (emphasis added).

The courts of appeals that have interpreted this provision in the context of a RCRA prosecution under Section 6928(d)(2)(A) have, with the exception of the Third Circuit, held that this section, dealing with the situation where a permit is required but has not been obtained, does not require knowledge that the law requires defendant's activity to have a permit, or knowledge that defendant lacks a permit. See United States v. Kelley Technical Coatings, Inc., 157 F.3d 432, 436-40 (6th Cir. 1998); United States v. Wagner, 29 F.3d 264, 265-66 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 964-66 (2d Cir. 1993), cert. denied, 511 U.S. 1071 (1994); United States v. Dean, 969 F.2d 187, 190-92 (6th Cir. 1992), cert. denied, 507 U.S. 1033 (1993); United States v. Hoflin, 880 F.2d 1033, 1036--40 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990); accord United States v. Dee, 912 F.2d 741, 745-46 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); see also United States v. Greer, 850 F.2d 1447, 1450-51 (11th Cir. 1988) (referencing jury instructions on same with apparent approval); United States v. Goldsmith, 978 F.2d 643, 644-46 (11th Cir. 1992) (same); but see United States v. Johnson & Towers, 741 F.2d 662 (3d Cir. 1984), cert. denied, 469 U.S. 1208 (1985) (discussed infra, nn. 29 & 52 and accompanying text).

The Court of Appeals for the Ninth Circuit first articulated this statutory interpretation in Hoflin. There, a municipal director of public works was convicted, inter alia, of violating Section 6928(d)(2)(A) on a felony charge of aiding and abetting disposal of hazardous paint waste without a permit. The appeals court held that the quoted language of the RCRA statute makes a clear distinction between non-permit holders and permit holders, requiring knowledge of violation of an existing permit under subsection (B) but requiring no knowledge of lack of a permit in subsection (A). Finding no ambiguity in the statutory language, the court held that as to a non-permit holder under Section 6928(d)(2)(A), knowledge of the absence of a permit is not an element of that offense. Hoflin, 880 F.2d at 1036-40. However, the court noted that under its interpretation, Section 6928(d)(2)(B), dealing with a permit holder, does require that the defendant "knowingly violate a material condition or requirement of the permit." Id. at 1037.

This theme was repeated and amplified by the Court of Appeals for the Sixth Circuit in Dean, which agreed with the holding under Section 6928(d)(2)(A) in Hoflin, and added that this section does not require that the defendant have knowledge that a permit was required for defendant's activity. Dean, 969 F.2d at 190-91.*fn27 The Dean court then emphasized that "[a]s to subsections (B) and (C), the requirements are different. Here, the statute clearly requires in addition that if one is to be charged under [those provisions], then one must be aware of the additional requirements of the permit or regulation." Id. at 191.

As this discussion reveals, the courts interpreting RCRA Section 6928(d)(2)(B), in the context of a Section 6928(d)(2)(A) prosecution, have stated that knowledge of material conditions and requirements of a permit is a required element of an offense under Section 6928(d)(2)(B) where the defendant is charged with violating an existing permit under RCRA. The Court of Appeals for the Tenth Circuit has indicated agreement with this view in a prosecution arising directly under Section 6928(d)(2)(B). In United States v. Self, 2 F.3d 1071, 1085-88, 1091 (10th Cir. 1993), the court and the parties acknowledged that the language of Section 6928(d)(2)(B) requires proof of defendant's knowledge that the storage violates the permit. There, the court stated that "the second 'knowing' requirement of § 6928(d)(2)(B) ensures that a good faith belief that a permit allows a particular manner of treatment, storage or disposal of hazardous waste, when in fact it does not, is a defense to a criminal charge." Id. at 1091. Nor have any courts opined that imposing such a knowledge requirement under Section 6928(d)(2)(B) is in derogation of the rule that ignorance of the law is no defense.*fn28

This brings us to the 1984 decision of the Court of Appeals for the Third Circuit in Johnson & Towers. There, the government appealed from dismissal of substantive RCRA charges under Section 6928(d)(2)(A) against individual supervisory employees of a corporate facility that disposed of hazardous waste chemicals without a permit.*fn29 The facility had no permit. The issue on appeal was whether the term "any person" in Section 6928(d)(2)(A) could apply to individual employees rather than being confined to owners and operators, i.e., those obligated under the RCRA statute to obtain a permit. Johnson & Towers, 741 F.2d at 663-65.

The Johnson & Towers decision held "that section 6928(d)(2)(A) covers employees as well as owners and operators of the facility who knowingly treat, store, or dispose of any hazardous waste, but that the employees can be subject to criminal prosecution only if they knew or should have known that there had been no compliance with the permit requirement of section 6925." Id. at 664-65. The court first reviewed the statutory text and structure, then consulted the pertinent legislative history. It "reject[ed] the district court's construction limiting the substantive criminal provision by confining 'any person' in section 6928(d)(2)(A) to owners and operators of facilities that store, treat or dispose of hazardous waste, as an unduly narrow view of both the statutory language and the congressional intent." Id. at 667.

Since it had ruled that the case must be remanded because the individual employees were covered by Section 6928(d)(2)(A), and not just as potential aiders and abettors, the court in Johnson & Towers then said "it is incumbent on us to reach the question of the requisite proof as to individual defendants under that section." Id. The court construed the "knowingly" requirement under (d)(2)(A), as applied to the employees, to require knowledge that each of them knew that the employer (1) was required to have a permit, and (2) did not have a permit. Id. at 669. The court concluded "that the individual [employee] defendants are 'persons' within Section 6928(d)(2)(A), [and] that all the elements of that offense must be shown to have been knowing, but that such knowledge, including that of the permit requirement, may be inferred by the jury as to those individuals who hold the requisite responsible positions with the corporate defendant." Id. at 670. In so holding, the court referred to International Minerals for several guiding principles, including as it observed, "that under certain regulatory statutes requiring 'knowing' conduct the government need prove only knowledge of the actions taken and not of the statute forbidding them;" in other words that the statute does not require knowledge of the law, and the principle that ignorance of the law is no defense does apply in this context. Id. at 669.

There has been no criticism in other circuits of the aspects of the Johnson & Towers decision holding that employees can be liable as principals under Section 6928(d)(2)(A); that defendants must know that the materials are hazardous; that knowledge of illegality is not required; and that proof of knowledge can be established by inference. See Kelley Technical Coatings, 157 F.3d at 436-37; Wagner, 29 F.3d at 266, n.2; Self, 2 F.3d at 1087-88, 1090-93; Dean, 969 F.2d at 190-93; MacDonald & Watson, 933 F.2d at 46-55; Dee, 912 F.2d at 745-46.

However, no appeals court has expressed agreement with the Third Circuit's statutory construction of the "knowing" requirement under that section as requiring proof of the employees' knowledge of the permit requirement and the lack of a permit. Some have characterized it as dicta and others have expressly declined to follow it. See Wagner, 29 F.3d at 266; Laughlin, 10 F.3d at 964-66; Dean, 969 F.2d at 190-92; Baytank, 934 F.2d at 612-13; Dee, 912 F.2d at 745; Hoflin, 880 F.2d at 1036-39.

We turn next to appellate precedent under the felony provisions of the Clean Water Act, 33 U.S.C. § 1251, et seq. This is a comprehensive statute first enacted in 1972, then amended through the years to modify some provisions and incorporate several added enactments. The stated objective of the Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). Our discussion of the CWA is focused on those provisions that have relevance in the present case, and in the cited reported appellate decisions. It is not directed to the many other provisions of the CWA that can be enforced through criminal sanctions.

Section 1311(a) of the CWA provides:

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.*fn30

Id. § 1311(a). The felony CWA counts charged in this case alleged violation of Section 1311(a) and Section 1319(c)(2)(A). (See indictment, dkt. 711, Counts 12-33.) The latter provision is quoted in the margin.*fn31

The CWA creates a joint federal and state permitting program for those who discharge pollutants into the waters of the United States. 33 U.S.C. § 1342. Permits issued under this program are called National Pollutant Discharge Elimination System ("NPDES") permits. The CWA prohibits, inter alia, the discharge of any pollutant into those waters except in compliance with an NPDES permit. 33 U.S.C. §§ 1311(a) & 1342. By agreement with the EPA, the NPDES water permit program is administered in New Jersey by the New Jersey Department of Environmental Protection ("NJDEP"). Pursuant to that authority, NJDEP issued water permits to Atlantic States that authorized discharges of surface stormwater run-off, and discharges of water from a specified cooling tower, into municipal storm sewers located on the Atlantic States property. The permits imposed limitations on the type and amount of pollutants that could be discharged from the facility.*fn32 The CWA counts in the indictment charged the named defendants with knowingly violating the CWA by causing petroleum-contaminated wastewater to be pumped so as to enter storm drains that led to the Delaware River during specified time periods, without a permit authorizing such discharges. (See indictment, dkt. 711, Counts 12-33.)

Section 1319(c)(2)(A) creates a felony offense for a knowing violation of Section 1311(a), or of any conditions or limitations of an NPDES permit issued under Section 1342. However, as with the case law under analogous provisions of RCRA and other environmental statutes, the courts have struggled to determine how far down the statutory language the "knowingly" requirement travels in various factual settings. This body of case law must be presented chronologically because it represents an evolving dialogue among the circuits, as they reflect upon emerging Supreme Court pronouncements.

The Fourth Circuit decided one of the first reported appellate cases under the felony provisions of CWA introduced by the 1987 amendments.*fn33 In United States v. Ellen, 961 F.2d 462 (4th Cir.), cert. denied, 506 U.S. 875 (1992), an individual environmental consultant, who had no permit, was convicted under CWA Sections 1311(a) and 1319(c)(2)(A), for filling in wetlands without a permit.*fn34 The Ellen court approved, albeit in a footnote, a jury instruction stating that the "knowingly" requirement "applies to all four elements of the offense," adding:

We also reject [defendant's] argument that the court failed to instruct the jury that an element of the offense was that he knew a permit was required by CWA. The court instructed that the absence of a permit was an element ..., and unambiguously stated that the government had to prove that he acted knowingly with respect to each element.

Id. at 467, n.2. Arguably this statement could be interpreted to require proof of knowledge that the law required a permit for the activity, as well as knowledge that defendant did not have a permit. At a minimum, it expressed that this court believed the "knowingly" requirement to extend to knowledge that the defendant himself did not have a permit for his conduct. The Fourth Circuit confirmed that it is of the latter view in United States v. Wilson, 133 F.3d 251, 264 (4th Cir. 1997), discussed infra.

A 1994 decision of the Ninth Circuit under the felony provisions of the CWA has set the parameters of a debate that continues to this day. In U.S. v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995), defendants who were managers at a municipal water treatment plant in Oahu instructed employees to dispose of sewage sludge directly into the outfall leading to the ocean (mostly at night), thus bypassing the plant's NPDES monitoring devices and fouling Honolulu's beaches. The appellate panel held that the "knowingly" requirement under Section 1319(c)(2)(A) was knowledge that the defendants were discharging the pollutants in question, not that they knew they were violating either the law or the terms of the facility's NPDES permit. Id. at 1283-86. In so ruling, the court rejected defendants' proffered "mistake of fact" defense that they mistakenly believed their conduct was authorized by the permit. Id. at 1283 & n.3. The court based its holding upon International Minerals and the "public welfare offense" doctrine, as well as its reading of the legislative history of the 1987 CWA amendments and its own precedent under RCRA.*fn35

The Ninth Circuit rejected a request for rehearing en banc in Weitzenhoff. Id. at 1279-81. Circuit Judge A.J. Kleinfeld, joined by several others, assailed the reasoning of the panel decision in a powerful dissent. In their view, where the discharger does have an NPDES permit, the portion of Section 1319(c)(2)(A) that makes it a felony to "knowingly violate ... any permit condition or limitation" should be read to require knowledge that the defendants were violating the terms of the permit. Id. at 1293-95. The dissenters interpreted the text and structure of the CWA, contrasting the "knowing" and "negligent" mens rea provisions; discussed recent Supreme Court precedents, particularly Staples v. United States, 511 U.S. 600 (1994); and pointed out the weakness of invoking the "public welfare offense" justification for the court's ruling. They urged that their interpretation would avoid making "felons of a large number of innocent people doing socially valuable work." Id. at 1293.*fn36 They concluded:

All dischargers acting lawfully pursuant to a permit know that they are discharging pollutants. The presence or absence of that knowledge, which is the only mental element determining guilt under the panel's decision, has no bearing on any conduct Congress could have meant to turn into a felony. The only knowledge which could have mattered to Congress, the only knowledge which distinguishes good conduct from bad [in this context], is knowledge that the discharge violates the permit. That is what the statute says, "knowingly violates [terms of a permit]," not "knowingly discharges." There is no sensible reason to doubt that Congress meant what it said and said what it meant.

Id. at 1295 (bracketed material added).

Congress made it a serious felony "knowingly" to violate permit limitations on discharge of pollutants. The harsh penalty for this serious crime must be reserved for whose who know they are, in fact, violating permit limitations.

Id. at 1299.*fn37

The author of the Weitzenhoff dissenting opinion was on the panel in a later Ninth Circuit case involving a sewage sludge disposal contractor convicted under 33 U.S.C. § 1319(c)(2)(A) for aiding and abetting in the violation of an NPDES permit held by defendant's customer, a municipality. See United States v. Cooper, 173 F.3d 1192 (9th Cir. 1999). There, the district court held the government to a higher mens rea standard than in Weitzenhoff, instructing the jury that in that situation the defendant must know that his conduct violates the permit. The appeals court held that a non-permittee could be criminally liable for violation of a CWA permit. It added that because of the higher mens rea standard applied by the district court, it did not reach the question whether under Section 1319(c)(2)(A), a non-permittee contractor must know that his conduct violates a permit held by his customer. Id. at 1201.

The Second Circuit reached a similar result as the Weitzenhoff panel in U.S. v. Hopkins, 53 F.3d 533 (2d Cir. 1995). There, a corporate officer who signed a Connecticut DEP consent order imposing a fine for past toxic zinc-related wastewater violations, and who had corporate responsibility for ensuring compliance with that order and with a DEP-issued water discharge permit, was convicted of felony violations under CWA Sections 1319(c)(2)(A) and (c)(4) for his conduct relating to tampering with test results and submitting false DEP monthly discharge monitoring reports. On the issue of defining the elements of the offense under the cited CWA sections, the court ruled that the term "knowingly" in those sections did not require proof that the defendant knew his conduct violated the law or a regulatory permit. Id. at 537-41. Relying on the "presumption of awareness" of regulation expressed in International Minerals, as well as its reading of the legislative history of the 1987 amendments to the CWA, the Hopkins court summed up its holding as follows:

[W]e conclude ... that in a prosecution under § 1319(c)(2)(A), the government was required to prove that Hopkins knew the nature of his acts and performed them intentionally, but was not required to prove that he knew that those acts violated the CWA, or any particular provision of that law, or the regulatory permit issued to [the company].

Id. at 541 (emphasis added).

The Fifth Circuit took a different view from the Weitzenhoff approach to mens rea in U.S. v. Ahmad, 101 F.3d 386 (5th Cir. 1996). There, a gasoline station owner-operator was convicted of violating CWA Section 1319(c)(2)(A) for knowingly discharging a pollutant into navigable water without a permit in violation of Section 1311(a) (count one), and knowingly operating a source in violation of a pretreatment standard in violation of Section 1317(d) (count two), when he discharged gasoline from a tank and it flowed into both the city storm sewer system (count one) and its sewage treatment plant (count two). One of his asserted grounds of defense was that he thought the substance being discharged was water rather than gasoline. The district court instructed the jury that the "knowing" requirement applied to the fact of discharging. It refused to instruct that the "knowing" requirement also applied to the other elements of the offense, including that the substance being discharged was a pollutant. The court of appeals reversed, holding that with the exception of purely jurisdictional elements, the mens rea of knowledge was a requirement in each element of the crime, including the facts that the defendant knew he was discharging a pollutant and that he lacked a permit. Id. at 389-91.*fn38

The Ahmad court's analysis expressly rejected reliance upon the "public welfare offense exception" in determining the mens rea for the charged offenses, which under Section 1319(c)(2)(A) are "felonies punishable by years in federal prison." Id. at 391. Instead, the court harked back to "the long-held view that 'the presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct.'" Id. at 390 (quoting X-Citement Video, 513 U.S. at 72). It relied heavily on the analysis of the Supreme Court in Staples, observing that there the Court "made plain that statutory crimes carrying severe penalties are presumed to require that a defendant know the facts that make his conduct illegal." Id. (citing Staples, 511 U.S. at 619-20). It attempted to distinguish Weitzenhoff and Hopkins on the basis that those courts were "concerned almost exclusively with whether the language of the CWA creates a mistake-of-law defense," and agreed with those decisions that knowledge of the illegality of the defendant's actions is not an element of the charged offenses. Id. at 390-91.

Ahmad did not involve a prosecution of employees of a company that did have an NPDES permit, as was the case in Weitzenhoff and Hopkins. Therefore, the Ahmad court did not have to decide whether, in its view, knowledge that one's conduct violates permit limitations is part of the required mens rea where there is a permit. Nonetheless, the analytical approach of Ahmad does deviate from that employed in those decisions in this respect: Ahmad echoes the reasoning of the dissent in Weitzenhoff, in the sense that both of those opinions were grounded in the principle that the mens rea requirement for a felony offense will generally be applied to reach at least enough elements of the offense so as to avoid criminalizing otherwise innocent conduct.*fn39

The next significant appellate decision in this line of CWA cases came from the Fourth Circuit in 1997. In U.S. v. Wilson, 133 F.3d 251 (4th Cir. 1997), several companies and a CEO were convicted of felony violations of CWA Sections 1311(a) and 1319(c)(2)(A) for discharging fill and excavated material into wetlands without a permit. There, as in Ahmad, no permit had been applied for or issued, and therefore the court was concerned with the first disjunctive phrase of Section 1319(c)(2)(A): "Any person who knowingly violates ... section 1311 ... shall be punished."*fn40

The jury instructions in Wilson had required knowledge only that defendant discharged a pollutant. All other elements had been listed in the jury instructions without a scienter requirement. The court of appeals reversed, holding that "the instructions did not adequately impose on the government the burden of proving each statutory element." Id. at 264 (emphasis in original). Specifically, after performing an extremely thorough statutory interpretation, the Wilson court held that "the Clean Water Act, 33 U.S.C. § 1319(c)(2)(A), requires the government to prove the defendant's knowledge of facts meeting each essential element of the substantive offense, ... but need not prove that the defendant knew his conduct to be illegal...." Id. at 262 (emphasis in original; citations omitted).

The Wilson court concluded that the elements of the charged offense that the government must prove were as follows:

(1) that the defendant knew that he was discharging a substance, eliminating a prosecution for accidental discharges; (2) that the defendant correctly identified the substance he was discharging, not mistaking it for a different, unprohibited substance; (3) that the defendant knew the method or instrumentality used to discharge the pollutants; (4) that the defendant knew the physical characteristics of the property into which the pollutant was discharged that identify it as a wetland, such as the presence of water and water-loving vegetation; (5) that the defendant was aware of the facts establishing the required link between the wetland and waters of the U.S.;*fn41 and (6) that the defendant knew he did not have a permit. This last requirement does not require the government to show that the defendant knew that permits were available or required. Rather, it, like the other requirements, preserves the availability of a mistake of fact defense if the defendant has something he mistakenly believed to be a permit to make the discharges for which he is being prosecuted.

Id. at 264. In so holding, the Wilson court conducted a lengthy review of the "public welfare" discussion in Supreme Court and appellate case law, neither rejecting nor endorsing it as a basis for its decision.*fn42 Instead, it concluded with the following observation:

While a statute which in some applications is a public welfare statute may in other applications be held to require a different mens rea, see Staples, 511 U.S. at 605, 114 S.Ct. at 1796-97, even in the latter situation, the government need prove only that the defendant knew the operative facts which make his conduct illegal. The government need not prove that the defendants understood the legal consequences of those facts or were even aware of the existence of the law granting them significance.

The Cooper court distinguished Wilson on this point by saying that in Wilson the government did have to prove that defendant was aware of the facts establishing the required link between the wetland in question and waters of the United States, because both the Army Corps of Engineers and Maryland law were unclear on whether those lands were within the purview of the CWA. Id. at 667-68. See generally Rapanos, 126 S.Ct. 2208 (2006) (plurality opinion) (holding that contrary to EPA interpretation, "waters of the United States" includes "only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.' .... The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.")

I.

Id. at 264 (citations omitted). See also United States v. Hartsell, 127 F.3d 343, 350-51 (4th Cir. 1997) (felony provision of 33 U.S.C. § 1319(c)(2)(A) not unconstitutionally vague as applied to permit-holder).

The Eighth Circuit aligned itself with the holdings in Weitzenhoff (Ninth Circuit) and Hopkins (Second Circuit) in United States v. Sinskey, 119 F.3d 712 (8th Cir. 1997), which was also a situation involving an employee of a permit-holder. Defendant in Sinskey was the plant manager at a meat-packing plant ("Morrell") that did have an NPDES water permit. He was convicted under Section 1319(c)(2)(A) for discharging pollutants in amounts exceeding the permit limitations. The appeals court affirmed, ruling that the government was not required to prove that defendant knew his acts violated either the CWA or permits issued under that act. Id. at 715-16. The Sinskey court reviewed precedent, including International Minerals, and the legislative history of the pertinent provisions. The Sinskey court expressed its conclusion on this point as follows:

In construing other statutes with similar language and structure, that is, statutes in which one provision punishes the "knowing violation" of another provision that defines the illegal conduct, we have repeatedly held that the word "knowingly" modifies the acts constituting the underlying conduct....

We see no reason to depart from that commonly accepted construction in this case, and we therefore believe that in 33 U.S.C. § 1319(c)(2)(A), the word "knowingly" applies to the underlying conduct prohibited by the statute. Untangling the statutory provisions ... in order to define precisely the relevant underlying conduct, however, is not a little difficult. At first glance, the conduct in question might appear to be violating a permit limitation, which would imply that § 1319(c)(2)(A) requires proof that the defendant knew of the permit limitation and knew that he or she was violating it. To violate a permit limitation, however, one must engage in the conduct prohibited by that limitation. The permit is, in essence, another layer of regulation in the nature of a law, in this case, a law that applies only to Morrell. We therefore believe that the underlying conduct of which Sinskey must have had knowledge is the conduct that is prohibited by the permit, for example, that Morrell's discharges of ammonia nitrates were higher than one part per million in the summer of 1992. Given this interpretation of the statute, the government was not required to prove that Sinskey knew that his acts violated either the CWA or the NPDES permit, but merely that he was aware of the conduct that resulted in the permit's violation.

Sinskey, 119 F.3d at 715-16 (citations omitted).*fn43 Accord United States v. Snook, 366 F.3d 439, 441-43 (7th Cir. 2004).

This completes our review of the appellate case law interpreting the mens rea requirements under pertinent "knowing" felony provisions of the Clean Water Act. There is an important case under the Clean Water Act's negligence provisions, United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000). Before adding Hanousek to this discussion, we will summarize the limited body of appellate precedent on similar issues under the felony provisions of the Clean Air Act, 42 U.S.C. § 7413(c). As we have noted, only the Clean Water Act contains both misdemeanor and felony criminal penalties; neither RCRA nor the CAA impose criminal penalties for negligent violations.

We are currently aware of four published appellate decisions interpreting the criminal mens rea requirements under the Clean Air Act. Those are United States v. Rubenstein, 403 F.3d 93 (2d Cir. 2005); United States v. Ho, 311 F.3d 589 (5th Cir. 2002); United States v. Weintraub, 273 F.3d 139 (2d Cir. 2001); and United States v. Buckley, 934 F.2d 84 (6th Cir. 1991). All involved convictions under various subsections of 42 U.S.C. § 7413(c), inter alia, relating to improper handling and disposal of asbestos during renovation/demolition activities, which were upheld over objections to jury instructions on the required mens rea for the charged offenses. We will concentrate our summary on the Weintraub decision because it is the most thorough on that issue, and the holdings in the other three cases are in accord.

The federal regulation of asbestos activity is different from that involved in this case. See Weintraub, 273 F.3d at 144-45 (describing CAA regulatory framework for handling asbestos in building demolition and renovation). We have located no appellate decisions under the Clean Air Act involving the mens rea requirement in a situation where, as here, an emissions control permit has been issued under the CAA for industrial manufacturing activities.

Defendant Weintraub was the owner/operator of real estate development companies that purchased an abandoned office building from a city for renovation. The city provided him with a consultant's report and an appraisal stating that the building had extensive asbestos in floor tiles and insulation, but defendant proceeded with demolition without complying with proper asbestos abatement and disposal procedures. He appealed his conviction on conspiracy and various substantive CAA violations under 42 U.S.C. § 7413, arguing chiefly that the jury instructions were insufficient because they did require knowledge that the material was asbestos, but did not require knowledge that the material met the threshold regulatory requirements of friability and minimum quantities. Id. at 141-44.*fn44

The Weintraub court affirmed in a carefully reasoned opinion, holding that in the charged Clean Air Act provisions, "the phrase 'knowingly violates' requires knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one's conduct is illegal." Id. at 147. Applying that ruling in the context of the case, it concluded that "in a criminal prosecution under Section 7413 for a violation of the asbestos work-practice standard, the government need only prove that defendant knew that the substance involved in the alleged violations was asbestos; it need not establish the defendant's knowledge that the conduct proscribed by the statute involved the kind and quantity of asbestos sufficient to trigger the asbestos work-practice standard." Id. at 151. However, the court added the following caveat:

Our holding that the scienter component of a criminal violation of the asbestos work-practice standard is satisfied by knowledge of the presence of asbestos and not the particular type of asbestos to which the standard applies is limited to such violations. The application of the scienter requirement to criminal violations involving other hazardous air pollutants or violations of other provisions of the CAA must await future cases.

Id.

The stated basis of the Weintraub decision was neither the "public welfare" doctrine, nor the principle that a "knowing" requirement should generally be applied to all elements of an offense other than purely jurisdictional elements. Rather, the court developed in considerable detail its rationale based on "a canon of statutory interpretation to read criminal statutes that are silent or ambiguous as to the required standard of mens rea, to demand knowledge of enough facts to distinguish conduct that is likely culpable from conduct that is entirely innocent." Id. at 147 (citations omitted).

The Weintraub court highlighted its reasoning by comparing the Supreme Court rulings in United States v. Freed, 401 U.S. 601 (1971), and Staples v. United States, 511 U.S. 600 (1994). Those decisions applied the scienter requirement of one felony statute, 26 U.S.C. § 5861(d),*fn45 to two different sets of facts. Freed held, where defendant allegedly possessed hand grenades, that he could be convicted without proof that he knew the grenades were unregistered, because knowingly possessing the grenades was sufficient to distinguish his conduct from an innocent act. Freed, 401 U.S. at 609. In contrast, as the Weintraub court observed:

Twenty-three years later, in Staples, the Court applied the same analysis to the possession of a machine gun, but reached a nearly opposite result based on the different expectations of regulation associated with guns. The Court found that the long history of substantially unregulated possession of guns in the United States meant that a possessor would not reasonably expect that possession to be closely regulated. The Court consequently decided that the government was obligated to prove that the defendant knew that his gun was, in fact, capable of being fired automatically and thus was a machine gun, unregistered possession of which violated the Act. Simple knowledge that it was a gun was inadequate to create an expectation that its possession could be criminal.

Weintraub, 273 F.3d at 148 (citing Staples, 511 U.S. at 610-12).

Applying that approach in its case, the Weintraub court stated that knowledge of the presence of asbestos would satisfy the required statutory scienter under each of various charged CAA subsections, because "[b]ut for the presence of asbestos, each count describes conduct that is basically innocuous and largely unregulated.... Asbestos is thus 'the crucial element separating legal innocence from wrongful conduct.'" Id. at 149 (quoting X-Citement Video, 513 U.S. at 73). The court added, however, that where the charged offense was knowing disposal of asbestos at sites that could not legally accept it for disposal, the district court also properly held the government to proof of defendant's knowledge that the sites were not legal asbestos disposal sites. Id. at 151-52.*fn46

We return now to the Clean Water Act, to address the mens rea issue under its criminal negligence provision, which provides in pertinent part:

Any person who --

(A) negligently violates section 1311, ... of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title ... shall be punished ....

33 U.S.C. § 1319(c)(1)(A) (quoted in full supra, n.16).*fn47

The appellate case law interpreting the definition of negligence under Section 1319(c)(1)(A) is currently controlled by United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000) (with Thomas, J., joined by O'Connor, J., dissenting from denial of certiorari). We are aware of no contrary federal appellate rulings. The Hanousek decisions are instructive not just on the statutory definition of negligence under the CWA as expressed by the Ninth Circuit, but perhaps more importantly for the perspective on "public welfare legislation" expressed by Justice Thomas in his dissent from the denial of certiorari.

Hanousek was employed by a railroad company as roadmaster of a stretch of railroad in Alaska. Under his employment contract he was responsible for safe maintenance of the railroad, including special projects. One night while Hanousek was at home and off-duty, a contractor's employee operating a backhoe in a special project on the railroad line struck a petroleum pipeline adjacent to the tracks, causing the pipeline to rupture and spill large quantities of heating oil into the river below. The appeals court observed that the district court properly instructed that defendant could be convicted only on the basis of his own negligent conduct, and not on the basis of the negligence of others working at the site. However, the facts supported personal liability for his conduct even though he was not present at the time of the spill. See id. at 1119, 1123. Hanousek was convicted of negligently discharging a harmful quantity of oil into navigable waters, under 33 U.S.C. §§ 1319(c)(1)(A) (quoted above), and 1321(b)(3). Id. at 1118-20.

The Hanousek jury instructions defined negligence as "the failure to use due care" -- a definition commonly used for ordinary or civil negligence -- over defendant's objection that the district court should have used the Model Penal Code definition: "a gross deviation from that standard of care that a reasonable person would observe in the situation." Id. at 1120. The Ninth Circuit affirmed, holding that the jury instruction reflected a correct statutory interpretation and that the provision as thus interpreted did not violate defendant's right to due process. Id. at 1120-22. On the due process issue the court concluded: In light of our holding in Weitzenhoff that the criminal provisions of the CWA constitute public welfare legislation, and the fact that a public welfare statute may impose criminal penalties for ordinary negligent conduct without offending due process, we conclude that section 1319(c)(1)(A) does not violate due process by permitting criminal penalties for ordinary negligent conduct.

Id. at 1122.

Hanousek petitioned for certiorari, stating the following issues:

1. Is the Clean Water Act a "public welfare" statute (as the Ninth, Eighth and Second Circuits have ruled, but contrary to the rulings of the Fifth Circuit and arguably the Fourth Circuit) so as to justify criminal conviction and imprisonment, without proof of mens rea, for otherwise innocent conduct?

2. Does the Due Process Clause restrict eliminating mens rea for offenses punishable by significant terms of imprisonment of one year or more?

3. Does the unmodified word "negligently" in § 1319(c)(1)(A) of the Clean Water Act, a criminal statute that provides for both misdemeanor and felony penalties, mean negligence in an ordinary civil tort sense or negligence in an aggravated criminal sense?

Hanousek, Petition for Writ of Certiorari, 1999 WL 33633013, at *i.

The Supreme Court denied certiorari. Hanousek, 528 U.S. 1102 (2000). However, Justice Thomas, joined by Justice O'Connor, filed a dissenting opinion stating that "[w]hatever the merits of petitioner's underlying due process claim, I think that it is erroneous to rely, even in small part, on the notion that the CWA is a public welfare statute." Id. at 1103. Reviewing the criminal penalties for negligent and knowing violations of the CWA, ranging up to six years of imprisonment, Justice Thomas said, "[t]he seriousness of these penalties counsels against concluding that the CWA can accurately be classified as a public welfare statute." Id. at 1104. He explained:

Although provisions of the CWA regulate certain dangerous substances, this case illustrates that the CWA also imposes criminal liability for persons using standard equipment to engage in a broad range of ordinary industrial and commercial activities. This fact strongly militates against concluding that the public welfare doctrine applies.... I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations.

Id. at 1103.

Justice Thomas expressly criticized the basis of the Ninth Circuit's decision in Weitzenhoff regarding the elements of a "knowing" violation under Section 1319(c)(2)(A), stating:

Some courts interpreting the felony provisions of the CWA have used the public welfare doctrine to determine that a person may "knowingly" violate the statute even if he is not aware that he is violating the law." See, e.g., United States v. Weitzenhoff, 35 F.3d 1275, 1284-1286 (C.A.9 1993).

Id. at 1104, n.2. His dissent in Hanousek concluded:

[W]e have never held that any statute can be described as creating a public welfare offense so long as the statute regulates conduct that is known to be subject to extensive regulation and that may involve a risk to the community. Indeed, such a suggestion would extend this narrow doctrine to virtually any criminal statute applicable to industrial activities. I presume that in today's heavily regulated society, any person engaged in industry is aware that his activities are the object of sweeping regulation and that an industrial accident could threaten health or safety.

To the extent that any of our prior opinions have contributed to the Courts of Appeals' overly broad interpretation of this doctrine, I would reconsider those cases. Because I believe the Courts of Appeals invoke this narrow doctrine too ...


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