Petition for Writ of Certiorari — Hanousek v. United States

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Supreme Court, U.S.

FILLED

99 $28 AUG 2 3 1999

No.

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

EDWARD HANOUSEK, JR.., Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BRUCE E. GAGNON

Counsel of Record

BRIAN M. DOHERTY JEROME HAMILTON JUDAY

Gilmore & Doherty DANIEL F. FITZGERALD III

1029 W. 3rd Ave., Suite500 Atkinson, Conway & Gagnon

Anchorage, Alaska 99501 420 L Street, Suite 500

(907) 279-4506 Anchorage, Alaska 99501

(907) 276-1700

Attorneys for Petitioner

QUESTIONS PRESENTED

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?

Does the Due Process Clause restrict eliminating

mens rea for offenses punishable by significant terms

of imprisonment of one year or more?

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?

TABLE OF CONTENTS I. THE COURT SHOULD ADDRESS

THE DUE PROCESS LIMITATIONS

QUESTIONS PRESEN TED.......cccosscoscssesssescscossscsseess i ON DISPENSING WITH MENS REA

FOR OFFENSES THAT ARE

yy’ FB fe fee 5) |); il PUNISHABLE BY SIGNIFICANT

py Bite Fits: ¢ iy) ae Iv

Ill. THE COURT SHOULD ADDRESS

Oy) 0.) (fe, eee 1 THE IMPORTANT QUESTION OF

WHETHER THE UNDEFINED

JURISDICTION .nccsccccccssossrsecsssssesessunsnesseneinnnnnnenianile 1 WORD “NEGLIGENTLY” IN A

CRIMINAL STATUTE MEANS

CONSTITUTIONAL AND STATUTORY CIVIL OR CRIMINAL

PROVRIONS EIU VOL V iii cccecesestncccsssssastetentacstedanibons 1 | ES

STATEMENT OF THE CASE.)..........s:0cccsccssssscsssevees 2 iret arenes

1. Basis for Federal Jurisdiction...........ssseeesees 2 EEE EEE

2. FEactisal Backerosand..........cccccscoscossoscescosessesess 2 Appendix A

Ninth Circuit Opinion, 3/19/99 ..........ccccceee0

3. Prrpanadienes Batter 2..ccccccscsescscssssnesessessesenasontn 5

Appendix B

REASONS FOR GRANTING THE WRIT .............. 6 United States District Court for

the District of Alaska Partial Transcript

SUMMARY OF ARGUMENT.........sssssssssesseeesssen 6 of Proceedings, 12/11/96 .eccccccssssssssssessssssssesee

I. THE DECISIONS OF THE COURTS Appendix C

OF APPEALS CONFLICT ON THE Ninth Circuit Order Denying Petition

IMPORTANT ISSUE OF WHETHER | for Rehearing En Banc, 6/7/99 .......s0seseevevees

THE CLEAN WATER ACT ISA |

“PUBLIC WELFARE” STATUTE Appendix D

ELIMINATING MENS REA AS A : Title 33, United States Code ............ccssesesseseeeees

REQUIREMENT FOR CRIMINAL

O08, oy) 8 | En 7 Appendix E

Code of Federal Regulations

EE ae

ll iil

TABLE OF AUTHORITIES

Cases

Concrete Pipe and Products of California, Inc. v.

Construction Laborers Pension Trust for

Southern California,

508 U.S. 602 (1993) ..cccccccccccscssssssssssceeseseeeee

Griffin v. United States,

Holdridge v. United States,

282 F.2d 302 (8th Cir. 1960).....cccccssesssveeee

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) ..ccccccccccvcessesssseessessnseeeee

Lambert v. California,

355 U.S. 225 (1957) seccscccssscsssscscccscecssseeseeee

Liparota v. United States,

471 U.S. 419 (1985) ..cccccccccscssssssceesseeeesessesees

Montana v. Egelhoff,

518 US. 37 (1996) ooccccccccsscsscsscccsecsceosceeeseeee

Monissette v. United States,

Ce ii ciaiiteciiniencialtbin

O’Gilvie v. United States,

519 U.S. 79 (1996) soccsssssssssssssssssesosseneceeeees

Santillanes v. State,

849 P.2d 358 (N.M. 1993)...ccccccsccsscssssssssssee

Staples v. United States

511 U.S. 600 (1994) ....cccccccsseesessnesecssneeseesnees

State v. Grover,

437 N.W.2d 60 (Minn. 1989)..........-ceeeeeees

State v. Ritchie,

590 So.2d 1139 (La. 1991) .ccccccccccccccccsceseseee

United States v. Ahmad,

101 F.3d 386 (Sth Cir. 1996).......cccccccsvseseee

United States v. Cordoba-! lincapie ’

825 F. Supp. 485 (E.D.N.Y. 1993)...............

United States v. Engler,

806 F.2d 425 (3d Cir. 1986), cert. denied,

481 U.S. 1019 (1987)....ccccccccssscceccscscsssssssseee

United States v. Hopkins,

53 F.3d 533 (2d Cir. 1995), cert. denied,

516 U.S. 1072 (1996) .coccccccvvcescccsvvessecsssseceees

United States v. Sinskey,

119 F.3d 712 (8th Cir. 1997) ....cccccccsosssssssee

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) ..cccccccvcccssssseccsesccssssssssen

United States v. Weitzenhoff,

35 F.3d 1275 (9th Cir. 1994), cert. denied

sub nom., Mariani v. United States,

513 U.S. 1128 (1995)..ccccccccccscccssssssscescsesessee

United States v. Wilson,

133 F.3d 251 (4th Cir. 1997) ...0......ccccecseeees

United States v. Wulff,

758 F.2d 1121 (6th Cir. 1985) ...ccccccccosccscssee

United States v. X-Citement Video,

513 U.S. 64 (1994) ..cccccssscccccccsssssssssscseseeeeeees

Statutes

15 U.S.C. § 5402(5) (1994) ...cccccccccccccsssssssseevsnsenseee

15 U.S.C. § 5408(C)(3) (1994) ..ecccceccccsccssessssseseseessee

SD WE. © Se re tenesenepeenteimninen 2

ke 1

28 U.S.C. § 1319(c) (1994) coccscsee. -cessssssseesseseessseee 11, 18

MNO passim

33 U.S.C. § 1319(c)(1)(A) (1994) ........ceccecsceeeeseeeees 5

33 U.S.C. § 1319(d) (1994) cccccccccccsssssseeseseeessssseee 18

SD Ts, © SR ee cerenescccsssnsssessnnneesrenmenes 18

33 U.S.C. § 1321(a)(1) (1994) ..cccccccccecesccsssveeeecssseees 1, 12

33 U.S.C. § 1321 (b)(3) (1994) .ecccccccccceccsssssseveeesesnse 1, 5, 12

33 U.S.C. § 1321 (b)(4) (1994) ....ccccccccccscsssssceeseessnee 1

33 U.S.C. §§ 1321(b)(6)-(8) (1994) ....cccccccccvcccsecessee 18

33 U.S.C. § 1321(b)(7)(D) (1994)... eecceceeeeeeeees 19

33 U.S.C. § 1362(6) (1994) ..cccccccsccsssssecsseessessssneeeees 1, 12

ie ie ee ee iiccaritemceneninimnieniicmen 2

re Oe i ceternrenenteretenencesnenteninions 2, 13

re Oe ei ccteensanecenttmenmenniem 12

Clean Air Act, 42 U.S.C. § 7413(c) (1994).............. 11

National Firearms Act, 26 U.S.C. § 5861(d)........... 8

Resource Conservation and Recovery Act,

42 U.S.C. § 6928(d) (1994) ..ccccccccccecsscsssseessssssseceseen 11

ee ee RF ee 17

Books, Treatises, Periodical

John C. Coffee, Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing Tort/Crime

Distinction in American Law,

71 B. U. L. Rev. 193 (1991) ....cccccsssvcvesscsssesssssssssceees 20

Kevin A. Gaynor & Thomas R. Bartman,

Criminal Enforcement of Environmental Laws,

10 Colo. J. Int’l Envtl. L. & Pol’y 39 (1999)...........

Richard J. Lazarus, Meeting the Demands of

Integration in the Evolution of Environmental

Law: Reforming Environmental Criminal Law,

83 Geo. L. J. 2407 (1995)qnccccccssncccccsscccsccsssssseseeseee

Rollin M. Perkins & Ronald N. Boyce,

Criminal Law, 842 (3d ed. 1982) ...sc.....ccccccessssecssese

Sayre, Public Welfare Offenses,

ee ee

1 Model Penal Code § 2.02(2)(d) (1985) ..........csse-»

5, 19

PETITION FOR WRIT OF CERTIORARI

Edward Hanousek, Jr. respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Ninth Circuit

entered in this case.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 176 F.3d

1116 (9th Cir. 1999). The opinion is reproduced in

Appendix A. The oral ruling of the United States District

Court for the District of Alaska is unreported. It is

reproduced in Appendix B.

JURISDICTION

The Ninth Circuit issued its opinion on March 19,

1999. On April 1, 1999, Hanousek timely filed a Petition

for Rehearing En Banc, which the Ninth Circuit denied on

June 7, 1999. The order denying rehearing en banc is

reproduced in Appendix C. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1) (1994).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. V

Due Process Clause

No person shall . . . be deprived of life, liberty, or

property, without due process of law ....

Clean Water Act

33 U.S.C. § 1319(c)(1) (1994)

33 U.S.C. §§ 1321(a)(1), (b)(3) & (b)(4) (1994)

33 U.S.C. § 1362(6) (1994)

These statutes are reproduced in Appendix D.

Code of Federal Regulations

40 C.F.R. §§ 110.1 & 110.3 (1998)

These regulations are reproduced in Appendix E.

STATEMENT OF THE CASE

—es ee

This petition concerns a criminal prosecution under

federal law. The district court had jurisdiction because

offenses against the United States were charged. 18 U.S.C.

§ 3231 (1994).

2. Factual Background.

This case arises out of an accidental spill of stove oil

from a pipeline running alongside the White Pass & Yukon

Railroad. Petitioner Edward Hanousek Jr. did not spill the

stove oil, nor was he present when the spill occurred.

Nevertheless, Hanousek was charged with “negligently”

violating the Clean Water Act. He was convicted under a

civil tort standard of negligence and sentenced to one year

of confinement in correctional facilities.

The White Pass & Yukon Railroad conne-ts

Skagway, Alaska with Whitehorse, Yukon Territory and is

owned by the Pacific & Arctic Railway and Navigation

Company (“PARN”). In 1994, PARN began a realignment

project to straighten a curve in the railroad track in a

location known as “6-mile.” The 6-mile project involved

blasting rock outcroppings and using a backhoe to load the

fractured rock into train cars for disposal. PARN hired

Hunz & Hunz, an independent contractor, to do the job.

When the work started at the 6-mile site, Hunz &

Hunz covered the petroleum products pipeline’ adjacent to

the tracks with railroad ties, sand and ballast. Hunz &

Hunz also created a work platform of sand and gravel from

which its backhoe operated. The work platform protected

the pipeline from damage by providing between six and ten

feet of cover over the pipeline. (CR 306, RT at 3-10; CR

303, RT at 15-9) Hunz & Hunz’s backhoe operators were

experienced in working around pipelines. (CR 306, RT at

3-4; CR 303, RT at 15-4) They testified that they knew

where the pipeline was located and they knew they had to

be careful to avoid damaging it. (CR 300, RT at 2-7, 2-25;

CR 306, RT at 3-5, 3-6; CR 303, RT at 15-5, 15-8)

After Hunz & Hunz’s work was underway, PARN

hired Hanousek as roadmaster for the _ railroad.

Hanousek’s duties included overseeing the 6-mile project.

On the evening of October 1, 1994, Shane Thoe, a

Hunz & Hunz employee, used the backhoe on the work

platform to load rocks into a train. Once the train cars

were loaded, the train departed and Thoe was alone at the

site. Thoe noticed that some rocks had fallen and been

pushed down the track by the train. The rocks were

located outside the current work area, in a place where the

work had been completed weeks earlier. (CR 306, RT at 3-

21; CR 303, RT at 15-10) Because the work had been

finished in the location where the rocks were, the

protective cover over the pipeline there had been removed.

(CR 303, RT at 15-12) The backhoe had not operated in

the area for a couple of weeks. (CR 303, RT at 15-12)

; Pacific & Arctic Pipeline, Inc. (“PAPI”), a sister company to

PARN, owned and operated the pipeline. The United States Army

originally installed the pipeline in the 1940s. At the 6mile site, the

Army installed the pipeline just below the surface of the ground,

alongside the railroad tracks, and a stone’s throw from the Skagway

River.

Thoe decided to move the rocks with the backhoe

instead of by hand. Thoe drove the backhoe off the work

platform and into the unprotected area. He then began

using the backhoe bucket to “sweep” the rocks away from

the tracks. As Thoe did so, the backhoe bucket struck the

pipeline below the surface of the ground and caused a

crack. Stove oil (a light grade of diesel fuel) that the

pipeline company was pumping from Skagway to

Whitehorse that evening sprayed from the cracked

pipeline.

Thoe immediately reported the accident by radio

and the pipeline was shut down within a few minutes. (CR

300, RT at 2-13; CR 301, RT at 9-31; CR 257, RT at 2-21,

2-22, 2-47) Nonetheless, stove oil that escaped from the

pipeline eventually seeped through the rail bed and into the

nearby Skagway River over the course of the next few

days. Witnesses reported seeing sheens of oil in the

Skagway River after the accident.

Thoe and his employer, Dave Hunz, both admitted

at trial that the accident was caused by Thoe’s error. (CR

302, RT at 10-20, 10-21; CR 306, RT at 3-25) Hunz

testified that Thoe should not have taken the backhoe off

of the work platform. Hunz said: “Stay up on the work

pad; that’s where we’re — we’re supposed to be working off

of.” (CR 302, RT at 10-49) The other Hunz & Hunz

backhoe operator testified that he “hardly ever — never”

took the backhoe off the work platform. (CR 303, RT at

15-10)

Hanousek was not present at the 6-mile site at the

time of the accident and he had no involvement in Thoe’s

actions that night. Hanousek was off duty and at home

when Thoe’s accident occurred. (CR 350, RT at 12-18, 12-

19; CR 384, RT at 3-93, 3-94, 3-109)

ceca Ee

anes ~ -

3. Proceedings Below.

The government charged Hanousek with

negligently discharging a harmful quantity of oil into the

navigable waters of the United States in violation of 33

U.S.C. §§ 1319(c)(1)(A) & 1321(6)(3) (1994). At trial,

Hanousek asked the district court to instruct the jury that

mens rea in the form of criminal negligence was a necessary

element of the crime. Hanousek’s proposed instruction

defined criminal negligence as a “gross deviation from the

standard of care that a reasonable person would observe in

the situation.” Hanousek’s proposed instruction was taken

from the Model Penal Code’s definition of the mental state

of acting “negligently.” 1 Model Penal Code § 2.02(2)(d)

(1985).

The district court refused Hanousek’s request and

ruled that negligence in a civil tort sense was sufficient to

establish the crime. The district court instructed the jury

that negligence meant “the failure to use reasonable care.”

Applying the civil negligence instruction, the jury

convicted Hanousek of negligent discharge of oil. The

district court fined Hanousek $5,000 and sentenced him to

twelve months of confinement in correctional facilities (six

months in prison, six months in a halfway house), to be

followed by six months of supervised release.

Hanousek appealed to the Ninth Circuit, which

affirmed the conviction. The Ninth Circuit ignored

Hanousek’s argument that the word “negligently” in the

Clean Water Act had to be interpreted in light of the

criminal context of the statute in which it appeared. The

Ninth Circuit concluded that “negligently” in the statute

meant only negligence in a civil tort sense was needed to

impose criminal liability. 176 F.3d at 1120-21. The Ninth

Circuit also rejected Hanousek’s argument that the use of a

civil standard to impose criminal responsibility violated

due process. The court of appeals said the Clean Water Act

was a “public welfare” statute so that due process was no

impediment to a civil tort standard being used to establish

criminal responsibility. 176 F.3d at 1121-22.

REA N W

SUMMARY OF ARGUMENT

The circuits are divided on the question of whether

the Clean Water Act creates “public welfare” offenses. The

Second, Eighth and Ninth Circuits have ruled that the Act

is a “public welfare” statute under which the traditional

mens rea requirement of criminal law may be eliminated.

The Fifth Circuit has ruled to the contrary. The Fourth

Circuit has said that the Clean Water Act is a “public

welfare” statute in some applications, but it has

nevertheless required mens rea as to each essential element

of the substantive offense charged under the Act.

The question of whether the Clean Water Act is a

“public welfare” statute is one of national significance. The

number of criminal prosecutions under the Act, as well as

under similar federal environmental statutes, has increased

dramatically in recent years. Resolving the conflict in the

circuits is especially important because of the extraordinary

breadth of the Clean Water Act. The Act extends to the

general public and regulates a broad class of items,

including ones used in complete innocence by ordinary

citizens.

This Court has recognized that eliminating mens

rea as an essential element of a crime can violate due

process. The exact parameters of due process as it relates to

mens rea, however, are ill-defined. The lack of guidance on

the issue has lead to conflicting decisions in the lower

courts. The Court should provide the necessary guidance

and address the restrictions that due process places on

dispensing with criminal intent. In particular, this case

warrants consideration of the severity of the penalty that

due process permits to be imposed for a non-mens rea

offense.

Section 1319(c)(1) of the Clean Water Act makes it a

criminal offense punishable by both misdemeanor and

felony penalties to “negligently” violate the Act. The

Ninth Circuit’s interpretation of “negligently” conflicts

with decisions of state courts of the last resort as well as the

rules of statutory construction. The Ninth Circuit’s

interpretation will create difficulty in the proper

application of other federal criminal statutes that use the

undefined word “negligently.” Imposing misdemeanor and

felony penalties, including lengthy prison terms, based on

mere civil negligence also raises fundamental policy

questions about criminalizing morally innocent conduct.

THE DECISIONS OF THE COURTS OF APPEALS

CONFLICT ON THE IMPORTANT ISSUE OF

WHETHER THE CLEAN WATER ACT IS A

“PUBLIC WELFARE” STATUTE ELIMINATING

MENS REA AS A REQUIREMENT FOR CRIMINAL

CONVICTIONS.

This Court has long held that mens rea is ordinarily

an essential element to a crime. Morissette v. United States,

342 U.S. 246, 250 (1951). “The existence of a mens rea is

the rule of, rather than the exception to, the principles of

Anglo-American criminal jurisdiction.” United States v.

United States Gypsum Co., 438 U.S. 422, 436 (1978).

Underlying the Court’s insistence on mens rea is the

concern that its elimination would “criminalize a broad

range of apparently innocent conduct.” Liparota v. United

States, 471 U.S. 419, 426 (1985). Mens rea serves to avoid

subjecting “law abiding, well-intentioned citizens” to

possibly lengthy prison terms. Staples v. United States, 511

U.S. 600, 615 (1994). Accord United States v. X-Citement

Video, 513 U.S. 64, 68-73 (1994).

The Court has approved eliminating mens rea only

in cases involving so-called “public welfare” or “regulatory”

offenses. Staples v. United States, 511 U.S. 600, 606 (1994).

“Public welfare” or “regulatory” offenses are recognized in

“limited circumstances.” /d. at 607. Typically, the “cases

recognizing such offenses involve statutes that regulate

potentially harmful or injurious items.” /d. As this Court

explained in Staples, “as long as a defendant knows that he

is dealing with a dangerous device of a character that places

him ‘in responsible relation to a public danger,’ . . . he

should be alerted to the probability of strict regulation.”

Id. (citations omitted).

The mere fact that an item is “dangerous” in a

general sense, however, is not enough to support a “public

welfare” offense or to permit the elimination of mens rea.

“Even dangerous items can, in some cases, be so

commonplace and generally available that we would not

consider them to alert individuals to the likelihood of strict

regulation.” Jd. at 611. For instance, the Court in Staples

acknowledged that guns are dangerous, but it pointed out

that there “is a long tradition of widespread lawful gun

ownership by individuals in this country.” Jd. at 610. The

Court said that because guns have been accepted as lawful

possessions their “destructive potential ... cannot be said

to put gun owners sufficiently on notice of the likelihood

of regulation” so as to justify the elimination of mens rea as

a requirement for conviction under the National Firearms

Act, 26 U.S.C. § 5861(d). Jd. at 612. |

In this case, the Ninth Circuit relied on the doctrine

of “public welfare” offenses in ruling that mens rea was not

required to convict Hanousek under the Clean Water Act -

mere civil negligence was enough.’ The court based its

decision on the earlier Ninth Circuit case of United States

v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994), cert. denied sub

nom., Mariani v. United States, 513 U.S. 1128 (1995). In

Weitzenhoff, the Ninth Circuit dealt with a criminal

prosecution against sewage treatment plant workers who

had dumped sewage sludge into the ocean at night. The

Weitzenhoff court concluded, in very general terms, that

the “criminal provisions of the CWA are clearly designed

to protect the public at large from the potentially dire

consequences of water pollution . . . and as such fall within

the category of public welfare legislation.” 35 F.3d at 1286.

In Hanousek, the Ninth Circuit accepted

Weitzenhoff as settling the issue of whether the Clean

Water Act as a whole was a “public welfare” statute. The

Hanousek opinion simply cited Weitzenhoff and declared

that “[tjhe criminal provisions of the CWA constitute

public welfare legislation.” 176 F.3d at 1121.

Two other courts of appeals have similarly accepted

the broad conclusion that the Clean Water Act is a “public

welfare” statute. In United States v. Hopkins, 53 F.3d 533

(2d Cir. 1995), cert. denied, 516 U.S. 1072 (1996), the

Second Circuit said that since a majority of the substances

treated as pollutants under the Clean Water Act would

alert an ordinary user “to the likelihood of stringent

regniation” mens rea could be relaxed. 53 F.3d at 540.

Similarly, the Eighth Circuit in United States v. Sinskey, 119

: At common law mere civil negligence was not sufficient to

satisfy mens rea. An aggravated form of negligence was required.

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 842 (3d ed. 1982)

(“Common sense compels the conclusion that there may be a grade or

degree of fault sufficient to call for payment of damages in a civil suit,

but quite insufficient to authorize criminal punishment, and this is

exactly the result reached by the common law.”)

F.3d 712, 716 (8th Cir. 1997) said the Clean Water Act

established “public welfare” offenses because it covered

“obnoxious waste materials,” such as the byproducts of

slaughtered animals at issue in that case.

In contrast, the Fifth Circuit in United States v.

Ahmad, 101 F.3d 386 (5th Cir. 1996) refused to classify the

Clean Water Act as a “puoi welfare” statute for which

strict criminal liability may be imposed. The defendant in

Ahmad pumped gasoline from storage tanks on his

property into a city sewer system. He claimed that he

thought he was pumping water. The Fifth Circuit

carefully followed this Court's decision in Staples and noted

that “the key to the public welfare offense analysis is

whether ‘dispensing with mens rea would require the

defendant to have knowledge only of traditionally lawful

conduct.” 101 F.3d at 391. Since the defendant's conduct

was traditionally lawful, mens rea was required for a

conviction. /d. The fact that gasoline was involved made

no difference even though gasoline is obviously a

dangerous commodity. The Fifth Circuit noted that,

“[tJhough gasoline is a ‘potentially harmful or injurious

item,’ it is certainly no more so than are [the]

machineguns” at issue in Staples. Id.

See also United States v. Wilson, 133 F.3d 251, 263-65

(4th Cir. 1997) (referring to Clean Water Act as a public

welfare statute “in some applications,” but nevertheless

requiring mens rea as to “each essential element of the

substantive offense”).

This conflict between the courts of appeals needs to

be resolved. The issue of whether Clean Water Act can be

properly classified as establishing “public welfare” offenses

is one of national significance. Criminal prosecutions

under the Clean Water Act and the other federal

environmental laws have increased remarkably in recent

years. The Environmental Protection Agency’s referrals of

criminal cases to the Justice Department “have steadily and

dramatically increased from 20 in fiscal year 1982 to 107 in

1992 to a record 278 in 1997.” Kevin A. Gaynor &

Thomas R. Bartman, Criminal Enforcement of

Environmental Laws, 10 Colo. J. Int’l Envtl. L. & Pol’y 39,

40 (1999). “Criminal fines in fiscal year 1997 were a record

$169.3 million. In fiscal year 1996, 221 defendants were

criminally charged with environmental offenses, and

individuals were sentenced to 1,116 months in prison.” /d.

The Clean Water Act accounts for 25 percent of all the

prosecutions under the federal environmental laws. /d. at

42. Given the increasing number of criminal cases, the

need for a definitive ruling on whether the Clean Water

Act encompasses “public welfare” offenses is acute.

Moreover, addressing whether the Clean Water Act

embodies “public welfare” offenses will provide important

guidance to the lower courts in cases arising under other

federal environmental statutes. The criminal provisions of

the principal federal environmental laws share basic

similarities. See Clean Water Act, 33 U.S.C. § 1319%c)

(1994); Clean Air Act, 42 U.S.C. § 7413(c) (1994); Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C. §

6928(d) (1994). This Court’s decision on “public welfare”

offenses in the context of the Clean Water Act will

therefore clarify the law for cases arising under other

statutes. Guidance from this Court on the mens rea

requirements of the federal environmental laws is especially

important because Congress failed to provide any. “In

environmental law . . . Congress avoided addressing at all

what it meant by the mens rea requirements it enacted.”

Richard J. Lazarus, Meeting the Demands of Integration in

the Evolution of Environmental Law: Reforming

Environmental Criminal Law, 83 Geo. L. J. 2407, 2453-54

(1995).

A definitive ruling on the correct application of the

Clean Water Act is also needed because of the

extraordinary breadth of the Act. “This statute has

tremendous sweep. ... Much more ordinary, innocent,

productive activity is regulated by this law than people not

versed in environmental law might imagine.” Weitzenhoff,

35 F.3d at 1293 (Kleinfeld, J., dissenting on denial of

rehearing en banc). The Clean Water Act does not just

govern a limited class of potential defendants in regulated

industries who might be presumed to know the

requirements of the law. The Clean Water Act literally

extends to every member of the public. Nor is the Clean

Water Act restricted to obvious noxious pollutants such as

toxic waste materials that are generally understood as being

subject to governmental regulation. The Clean Water Act

regulates a wide variety of common items that ordinary

citizens handle in their everyday lives.”

Oil and petroleum products are covered by the Act.

33 U.S.C. § 1321(a)(1) (1994). Gasoline, kerosene, diesel

fuel, motor oil, grease, lubricants, and a myriad of other

petroleum products are all in everyday use by ordinary

citizens. Under the Ninth Circuit’s decision, if a simple

accident occurs and so much as a few drops of these

common products find their way into a waterway, criminal

penalties may be imposed. The negligent discharge of a

“harmful” quantity of oil into a waterway is a criminal

offense under the Act (33 U.S.C. § 1321(b)(3) (1994)), and

, The definition of “pollutant” in the Clean Water Act is

exceedingly broad and it includes “garbage, . . . biological materials, .

heat, .. . rock, sand... .” 33 U.S.C. § 1362(6). Under this definition

“shipping a stone into a lake” or “pouring hot, stale coffee down a

drain” is a violation of the Act. Weitzenhoff, 35 F.3d at 1298

(Kleinfeld, J., dissenting on denial of rehearing en banc). “Hazardous

substances” covered by the Act include items used by a wide cross-

section of the public, eg, chlorine, formaldehyde, sodium

hypochlorite (bleach). 40 C.F.R. § 116.4 (1998).

the accompanying regulations define a “harmful” quantity

of oil as including even just “a film or sheen upon or

discoloration of the surface of the water.” 40 C.F.R.

§ 110.3 (1998).

Thus, a recreational fisherman who inadvertently

spills a few ounces of fuel while filling the gas tank of his

boat will be a federal criminal and may be imprisoned. A

motorist on her way to work who negligently causes an

automobile accident that results in gasoline or motor oil

trickling into navigable waters abutting the highway will

be subject to federal prosecution. And pity the productive

citizens like Ed Hanousek whose jobs even temporarily

require working, or overseeing others who work, with

machines somewhere in the area of federal waters. If an

on-the-job accident occurs that results in just a “film or

sheen” of petroleum on the water, these productive citizens

will face imprisonment and the lifetime stigma of being

criminals.

Given the broad scope of the Clean Water Act, the

Ninth Circuit’s blanket pronouncement that the Act as a

whole is a “public welfare” statute was erroneous.’ Because

the Act covers “usually licit and blameless conduct” that

would not alert an individual “to the probability of strict

regulation” Staples, 511 U.S. at 613 & 616, mens rea cannot

be eliminated.

In view of the breadth of the Clean Water Act and

its application to ordinary citizens from every walk of life,

: Staples teaches that the “public welfare” offense analysis turns

on “the general class of items” regulated by the statute as a whole, not a

“fluid” case-by-case examination of the circumstances of the particular

defendant in each case. 511 U.S. at 612 n.6. The Ninth Circuit was

out of step with Staples on this point. The Ninth Circuit ruled that

the entire Clean Water Act constitutes a “public welfare” statute based

only on the particular conduct of the defendants in the Weitzenhoff

case. Weitzenhoff, 35 F.3d at 1285-86.

this Court should resolve the question of whether the Act

embodies “public welfare” offenses for which mens rea may

be eliminated. The issue is one of exceptional importance

because hanging in the balance is “a fundamental purpose

of criminal justice, sorting out the innocent from the guilty

before imposing punishment.” Weitzenhoff, 35 F.3d at 1293

(Kleinfeld, J., dissenting on denial of rehearing en banc).

II.

THE COURT SHOULD ADDRESS THE DUE

PROCESS LIMITATIONS ON DISPENSING WITH

MENS REA FOR OFFENSES THAT ARE

PUNISHABLE BY SIGNIFICANT PRISON TERMS.

The extent to which mens rea is a requirement of

due process is an important constitutional issue that this

Court has only rarely touched on and never fully

addressed. Accepting Hanousek’s petition will give the

Court the opportunity to speak to this fundamental

question of constitutional law.

The Court has previously recognized that there are

due process limitations on a legislature’s ability to

eliminate mens rea in defining a crime. In Lambert v.

California, 355 U.S. 225 (1957) the Court held that due

process was violated when California convicted a woman

of failing to register as a felon without proof of mens rea.

Furthermore, the Court has often looked to

historical practice under the common law to determine the

requirements of constitutional due process. E.g., Montana

v. Egelhoff, 518 U.S. 37, 44-48 (1996); Griffin v. United

States, 502 U.S. 46, 49-51 (1991). As noted previously, the

common law did not permit a defendant to be convicted

and imprisoned without proof of mens rea. Morissette, 342

U.S. at 250. This historical practice reaffirms the

conclusion that “the mens rea principle must be given

ee me

constitutional effect.” United States v. Cordoba-Hincapie,

825 F. Supp. 485, 515 (E.D.N.Y. 1993) (Weinstein, J.).

The exact parameters of due process as it relates to

mens rea are exceptionally ill-defined. The most-widely

cited decision that discusses mens rea in the context of due

process is an opinion authored by Justice Blackmun when

he was a judge of the Eighth Circuit. Judge Blackmun

wrote:

where a federal criminal statute omits

mention of intent and where it seems to

involve what is basically a matter of policy,

where the standard imposed is, under the

circumstances, reasonable and adherence

thereto properly expected of a person, where

the penalty is relatively small, where

conviction does not gravely besmirch, where

the statutory crime is not taken over from

the common law, and where congressional

purpose is supporting, the statute can be

construed as one not requiring criminal

intent. The elimination of this element is

then not violative of the due process clause.

Holdridge v. United States, 282 F.2d 302, 310 (8th Cir.

1960).

The generalized listing of vague factors in Holdridge

provides little practical guidance for the lower courts. The

lack of guidance has lead to conflicting decisions. United

States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985)

(Migratory Bird Treaty Act violates due process in defining

felony without requiring mens rea); United States v. Engler,

806 F.2d 425, 434-35 (3d Cir. 1986), cert. denied, 481 U.S.

1019 (1987) (felony provisions of Migratory Bird Treaty

Act do not violate due process despite lack of mens rea).

This petition presents the Court with the

opportunity to flesh out the constitutional scope of mens

rea and to thereby set at least some parameters for the

restrictions that due process places on dispensing with

criminal intent. Because Hanousek was engaged in a long-

standing legal activity and not alerted to the probability of

strict regulation, due process should not permit criminal

sanctions to be imposed upon him for conduct amounting

to no more than civil negligence. Doing so would be

recognizing “a rigorous form of strict liability” that this

Court has indicated is improper. Staples, 511 U.S. at 607

n.3.

Moreover, the constraints that due process places on

severe penalties being imposed for non-mens rea crimes is

directly implicated in this case. The Court has repeatedly

mentioned that the severity of the penalty has an important

correlation to mens rea, but it has never decided what that

correlation may be. In Staples the Court observed that “in

a system that generally requires a ‘vicious will’ to establish

a crime, . . . imposing severe punishments for offenses that

require no mens rea would seem incongruous.” Staples, 511

US. at 617. See also United States v. United States Gypsum

Co., 438 U.S. 422, 442 n.18 (1978) (citing Sayre, Public

Welfare Offenses, 33 Colum. L. Rev. 55 (1933) for the

proposition that “strict liability [is] generally inappropriate

when offense punishable by imprisonment”).

Hanousek was sentenced to one year of

confinement in correctional facilities, the maximum period

of time possible for a first offender, even though his

conduct was only blameworthy in a civil tort sense.”

Hanousek’s punishment is “incongruous” with our system

of criminal law, for which mens rea has always been a

polestar. The penalty imposed on Hanousek was not

“relatively small,” and it therefore begs the question of how

severe the penalties for non-mens rea offenses can be before

due process is violated. In the absence of a criminal mental

state, one year of confinement in correctional facilities for a

simple accident someone else caused conflicts with the

fundamental conceptions of fairness that due process

embodies.

ITI.

THE COURT SHOULD ADDRESS ’_ THE

IMPORTANT QUESTION OF WHETHER THE

UNDEFINED WORD “NEGLIGENTLY” IN A

CRIMINAL STATUTE MEANS CIVIL OR

CRIMINAL NEGLIGENCE.

Hanousek was convicted under § 1391(c)(1) of the

Clean Water Act, which subjects one who “negligently

violates” enumerated provisions of the Act to fines up to

$25,000 per day and imprisonment up to one year. 33

U.S.C. § 1319(c)(1) (1994). The same section of the statute

makes a second violation a felony that is punishable by

fines up to $50,000 per day and imprisonment up to two

years. Id.

The statute does not define what is meant by the

word “negligently.” In the courts below, Hanousek argued

that the word “negligently” had to be interpreted in light of

. The sentencing guideline the district court followed in

sentencing Hanousek assumed “knowing conduct.” U.S.S.G. § 2Q1.3,

appl. note 3. Although the sentencing guideline authorized a

downward departure for negligent conduct (id.), the district court

ignored Hanousek’s request for a downward departure on this basis.

the criminal context in which it appeared. “[T]he meaning

of statutory language, plain or not, depends on context.”

King v. St. Vincent’s Hospital, 502 U.S. 215, 221 (1991).

Hanousek also pointed to a number of aids to statutory

construction that supported his interpretation, including:

(1) the rule that statutes should be construed in light

| of the common law (Staples, 511 U.S. at 605);

(2) the overall structure of the Clean Water Act

with its hierarchy of administrative, civil and criminal

penalties (33 U.S.C. §§ 1319(c), (d), (g) & §§ 1321(b)(6)-(8)

(1994)), which suggests that civil standards should govern

civil penalties and more culpable conduct is necessary for

criminal penalties (United States v. United States Gypsum

Co., 438 U.S. 422, 442 (1978));

(3) the need to construe the statute to avoid

unreasonable results, including the result of criminalizing a

broad range of apparently innocent conduct (United States

v. X-Citement Video, 513 U.S. 64, 69-71 (1994));

(4) the rule of lenity, which requires an ambiguity

in a criminal statute to be construed in favor of the accused

(Liparota v. United States, 471 U.S. 419, 427 (1985)); and

(5) the rule that statutes should be construed,

whenever possible, to avoid raising substantial questions of

constitutionality (Concrete Pipe and Products of California,

Inc. v. Construction Laborers Pension Trust for Southern

California, 508 U.S. 602, 629 (1993).

The Ninth Circuit ignored the criminal context of

§ 1319(c)(1) and ignored or dismissed these aids to statutory

construction. Instead, the Ninth Circuit summarily

concluded that the plain meaning of the word “negligently”

was civil negligence. 176 F.3d at 1120. The Ninth Circuit

based its interpretation on a college dictionary and the

definition of “negligence” in Black’s Law Dictionary,

which is derived from civil cases. Id. at 1120-21.°

This Court has never previously considered the

meaning of “negligence” in the context of a criminal

statute. The Ninth Circuit’s decision, however, conflicts

with several state court decisions that use the traditional

men rea requirement to interpret the undefined word

“negligence” in a criminal statute. “We interpret the mens

rea element of negligence . . . to require a showing of

criminal negligence instead of ordinary civil negligence. . . .

We do not find the absence of definition of negligence in

the statute indicative of legislative intent.” Santillanes v.

State, 849 P.2d 358, 365 (N.M. 1993). Accord State v.

Ritchie, 590 So.2d 1139, 1149 (La. 1991); State v. Grover,

437 N.W.2d 60, 63 (Minn. 1989). The authoritative Model

Penal Code is in full agreement with this view. 1 Model

Penal Code § 2.02(2)(d) (1985). This Court has relied on

the Model Penal Code in interpreting the mens rea

requirements of federal statutes. E.g., United States v.

United States Gypsum Co., 438 U.S. 422, 438 (1978).

Allowing the Ninth Circuit’s decision to stand will

lead to difficulty with the proper interpretation and

application of other statutes. For instance, the Fastener

Quality Act of 1990 bases misdemeanor and felony crimes

on negligence, just like § 1319(c)(1) of the Clean Water Act.

The Fastener Quality Act governs “fasteners,” which are

screws, nuts, bolts, studs and washers. 15 U.S.C. § 5402(5)

. The Ninth Circuit also cited the phrase “gross negli ” in

33 U.S.C. § 1321(b)(7)(D) to support its interpretation. 176 F.3d at

1121. The phrase “gross negligence,” however, was not added to the

statute until 1990, three years after § 1319(c)(1) was enacted. The

Ninth Circuit therefore relied on a later act of Congress to discern

what an earlier Congress meant. “A later Congress cannot control the

interpretation of an earlier enacted statute.” O’Gilvie v. United States,

519 U.S. 79, 90 (1996).

(1994). The Act provides that one who “negligently fails to

maintain records relating to a fastener” in violation of the

Act is subject to fines and imprisonment of up to 2 years.

15 U.S.C. § 5408(c)(3) (1994).

If the Ninth Circuit’s decision is allowed to stand, it

will be persuasive authority for interpreting “negligently”

in the Fastener Quality Act to mean ordinary civil

negligence. The result will be that a person who is merely

neglectful about the paperwork on nuts and bolts may be

branded a felon and imprisoned for up to two years

without any proof of mens rea. Such a harsh result would

be shocking. Felony is “as bad a word as you can give to

man or thing.” Morissette, 342 U.S. at 250.

The extension of criminal liability to persons who

are negligent only in a civil tort sense also raises

fundamental policy questions about the overall direction of

criminal law. “[(BJlurring of the border between tort and

- crime predictably will result in injustice, and ultimately

weaken the efficacy of the criminal law as an instrument of

social control.” John C. Coffee, Does “Unlawful” Mean

“Criminal”?: Reflections on the Disappearing Tort/Crime

Distinction in American Law, 71 B. U. L. Rev. 193, 193

(1991). “We undermine the foundation of criminal law

when we so vitiate the requirement of a criminal state of

knowledge and intention as to make felons of the morally

innocent.” Weitzenhoff, 35 F.3d at 1299 (Kleinfeld, J.,

dissenting on denial of rehearing en banc).

To ensure the future direction of criminal law is

appropriate, this Court should grant Hanousek’s petition

and address the meaning of the word “negligently” in a

criminal statute such as § 1319(c)(1) of the Clean Water

Act.

CONCLUSION

For the reasons stated, Petitioner respectfully

requests that this petition be granted.

DATED this 20th day of August, 1999.

BRUCE E. GAGNON

Counsel of Record

BRIAN M. DOHERTY JEROME HAMILTON JUDAY

Gilmore & Doherty DANIEL F. FITZGERALD III

1029 W. 3rd Ave., Suite 500 Atkinson, Conway & Gagnon

Anchorage, Alaska 99501 420 L Street, Suite 500

(907) 279-4506 Anchorage, Alaska 99501

(907) 276-1700

Attorneys for Petitioner

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, | No. 97-30185

Plaintiff-Appellee,

DC No.

v. CR-96-0040-JMF

EDWARD HANOUSEK, JR.., OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, District Judge, Presiding

Argued and Submitted

May 4, 1998-Seattle, Washington

Filed March 19, 1999

Before: David R. Thompson and A. Wallace Tashima,

Circuit Judges, and Tom Stagg, District Judge.*

Opinion by Judge Thompson

*Honorable Tom Stagg, Senior United States District Judge for the

Western District of Louisiana, sitting by designation.

SUMMARY

Criminal Law and Procedure/Environmental Law

The court of appeals affirmed a judgment of conviction.

The court held that the Clean Water Act may impose

criminal liability for ordinary negligence.

In October 1994, thousands of gallons of oil were

discharged into the Skagway River when a backhoe operator

struck a pipeline adjacent to a rail line operated by the White

Pass and Yukon Railroad, causing a rupture. The backhoe

operator was an employee of Hunz and Hunz, a contractor

that had been hired by Pacific and Arctic Railway and

Navigation Company to work on a rock-quarrying project

along the rail line. Appellant Edward Hanousek, Jr. was

Pacific and Arctic's roadmaster, and the supervisor of the

quarrying project.

Hanousek was charged with negligently discharging a

harmful quantity of oil into a navigable water of the United

States in violation of §§ 1319(c)(1)(A) and 1321(b)(3) of the

Clean Water Act (CWA). The indictment also

Hanousek with conspiring to provide false information to

Coast Guard officials who investigated the accident. Also

charged with related offenses was M. Paul Taylor, a Pacific

and Arctic officer.

The government's evidence showed that Hanousek was

responsible for the rock-quarrying project; the project

involved the use of heavy equipment and machinery along

the worksite; Hanousek directed the daily activities of Hunz

and Hunz employees and equipment; and that it was

The government's evidence also established that when

the work began, Hunz and Hunz had applied protective

covering material to the pipeline, and that when Hanousek

took over supervision of the project, no further sections of

Other government evidence indicated that although the

quarrying work had been completed in the location of the

rupture, rocks would fall off loaded railcars; that no policy

prohibited the use of backhoes off the work platform for

other activities; that a backhoe operator ruptured the

pipeline while moving a rock with his machine; and that a

harmful quantity of oil spilled into the Skagway.

The district court rejected Hanousek's proposed jury

instruction that the government had to prove

negligence, as opposed to ordinary negligence, and rejected

his proposed instruction that he could not be found

vicariously liable for the negligence of the backhoe operator.

The jury convicted Hanousek on the substantive charge

and acquitted him on the conspiracy count. At sentencing,

the district court imposed an upward adjustment for

Hanousek's supervisory role in the offense.

On appeal, Hanousek contended that the district court

erred in rejecting his proposed jury instructions; the

ordinary negligence standard for criminal liability violated

due process; the prosecutor struck “foul blows" by inviting

the jury to convict him on a theory of vicarious liability; the

court's causation instruction failed sufficiently to inform the

jury that to support a conviction, the accident must have

been within the risk foreseeably created by Hanousek's

conduct; and the evidence was insufficient to support his

conviction. Hanousek also challenged the district court's

application of the Sentencing Guidelines.

[1] Sections 13 19(c)(1)(A) and 1321(b)(3) of the CWA

criminalize the conduct of which Hanousek was convicted.

[2] Neither section defines the term “negligently,” nor is it

defined elsewhere in the CWA. The ordinary meaning of

"negligently" is a failure to use such care as a reasonably

prudent and careful person would use under similar

circumstances. [3] If Congress intended to prescribe a

heightened negligence standard, it could have done so

explicitly. [4] Congress intended that a person who acts with

ordinary negligence in violating §1321(b)(3) may be subject

to criminal penalties.

[5] The criminal provisions of the CWA constitute

public welfare legislation designed io protect the public trom

potentially harmful or injurious items. Public welfare

legislation may render criminal a type of conduct that a

reasonable person should know is subject to stringent public

regulation and may seriously threaten the community's

health or safety. [6] A public welfare statute may subject a

person to criminal liability for his or her ordinary negligence

without violating due process.

[7] In the context of a public welfare statute, as long as a

defendant knows he is dealing with a dangerous device of a

character that places him in responsible relation to a public

danger, he should be alerted to the probability of strict

regulation. Hanousek did not dispute that he was aware that

a highpressure petroleum products pipeline ran close to the

surface next to the railroad tracks, and did not argue that he

was unaware of the dangers a puncture would pose.

Hanousek therefore should have been alerted to the

probability of strict regulation. [8] Section 1319(c)(1)(A) does

not violate due process by permitting criminal penalties for

ordinary negligent conduct.

[9] The district court's instructions adequately explained

to the jury that Hanousek could be convicted only on the

basis of his own negligent conduct and not on the basis of

the negligence of others. The district court's failure to

provide Hanousek's proposed instructions on vicarious

liability did not constitute reversible error. [10] The

prosecutor was appropriately arguing to the jury that

Hanousek and Taylor failed adequately to protect the

pipeline and that both should be held responsible for their

negligent conduct.

[11] To establish causation, the government must prove

beyond a reasonable doubt that the defendant's conduct was

both the cause in fact and the proximate cause of the harm.

To prove proximate cause, ihe government must establish

that the harm was a foreseeable result of the conduct. [12]

The causation instruction given by the district court was

adequate. It required the jury to find that Hanousek's

conduct had a direct and substantial connection to the

discharge of oil. That was sufficient.

[13] The totality of the evidence was sufficient to support

Hanousek's conviction for negligently discharging a harmful

quantity of oil into a navigable water of the United States.

[14] The district court may make an upward adjustment

if the defendant supervised one or more participants. A

participant is a person who is criminally responsible for the

commission of the offense, but need not have been

convicted. The district court did not clearly err by finding

that Hanousek was a supervisor because, although the

backhoe operator was not prosecuted, he was a participant in

the criminal activity, and Hanousek supervised the project.

COUNSEL

Bruce E. Gagnon, Atkinson, Conway & Gagnon,

Anchorage, Alaska, and Brian M. Doherty, Gilmore &

Doherty, Anchorage, Alaska, for the defendant-appellant.

Ellen J. Durkee, United States Department of Justice,

Washington, D.C.., for the plaintiff-appellee.

OPINION

THOMPSON, Circuit Judge:

Edward Hanousek, Jr., appeals his conviction and

sentence for negligently discharging a harmful quantity of oil

into a navigable water of the United States, in violation of

the Clean Water Act, 33 U.S.C. §§ 1319(c)(1)(A) &

1321(b)(3).

Hanousek contends that the district court erred: (1) by

failing to instruct the jury that the government must prove

that he acted with criminal negligence as opposed to

ordinary negligence, (2) by failing to instruct the jury that he

could not be found vicariously liable, (3) by failing to

instruct the jury properly on causation, and (4) by

incorrectly applying the United States Sentencing

Guidelines.

Hanousek also argues that section 1319(c)(1)(A) violates

due process if it permits a criminal conviction for ordinary

negligence and that, in any event, the evidence was

insufficient to support his conviction. We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

FACTS

Hanousek was employed by the Pacific & Arctic

Railway and Navigation Company (Pacific 8 Arctic) as

roadmaster of the White Pass & Yukon Railroad, which

runs between Skagway, Alaska, and Whitehorse, Yukon

Territory, Canada. As roadmaster, Hanousek was

responsible under his contract “for every detail of the safe

and efficient maintenance and construction of track,

structures and marine facilities of the entire railroad . . . and

[was to ] assume similar duties with special projects.”

One of the special projects under Hanousek's supervision

was a rock-quarrying project at a site alongside the railroad

referred to as "6-mile," located on an embankment 200 feet

above the Skagway River. The project was designed to

realign a sharp curve in the railroad and to obtain armor

rock for a ship dock in Skagway. The project involved

blasting rock outcroppings alongside the railroad, working

the fractured rock toward railroad cars, and loading the rock

onto railroad cars with a backhoe. Pacific & Arctic hired

Hunz & Hunz, a contracting company, to provide the

equipment and labor for the project.

At 6-mile, a high-pressure petroleum products pipeline

owned by Pacific & Arctic's sister company, Pacific &

Arctic Pipeline, Inc., runs parallel to the railroad at or above

ground level, within a few feet of the tracks. To protect the

pipeline during the project, a work platform of sand and

gravel was constructed on which the backhoe operated to

load rocks over the pipeline and into railroad cars. The

location of the work platform changed as the location of the

work progressed along the railroad tracks. In addition, when

work initially began in April, 1994, Hunz & Hunz covered

an approximately 300-foot section of the pipeline with

railroad ties, sand, and ballast material to protect the

pipeline, as was customary. After Hanousek took over

responsibility for the project in May, 1994, no further

sections of the pipeline along the 1000-foot work site were

protected, with the exception of the movable backhoe work

platform.

On the evening of October 1, 1994, Shane Thoe, a Hunz

& Hunz backhoe operator, used the backhoe on the work

platform to load a train with rocks. After the train departed,

Thoe noticed that some fallen rocks had caught the plow of

the train as it departed and were located just off the tracks in

the vicinity of the unprotected pipeline. At this location, the

site had been graded to finish grade and the pipeline was

covered with a few inches of soil. Thoe moved the backhoe

off the work platform and drove it down alongside the

tracks between 50 to 100 yards from the work platform.

While using the backhoe bucket to sweep the rocks from the

tracks, Thoe struck the pipeline causing a rupture. The

pipeline was carrying heating oil, and an estimated 1,000 to

5,000 gallons of oil were discharged over the course of many

days into the adjacent Skagway River, a navigable water of

the United States.

Following an investigation, Hanousek was charged with

one count of negligently discharging a harmful quantity of

oil into a navigable water of the United States, in violation

of the Clean Water Act, 33 U.S.C. §§ 1319(c)(1)(A) &

1321(b)(3). Hanousek was also charged with one count of

conspiring to provide false information to United States

Coast Guard officials who investigated the accident, in

violation of 18 U.S.C. §§ 371, 1001."

' The government also charged M. Paul Taylor, an officer of Arctic &

Pacific and Arctic & Pacific Pipeline, Inc., with one count of negligently

ing a harmful quantity of oil into a navigable water in violation

of 33 U.S.C. §§ 1319(c)(1)(A) & 1321(b)(3), one count of failing to report

a discharge in violation of 33 U.S.C. §1321(b)(5), one count of

conspiracy to make false statements in violation of 18 U.S.C. §§ 371,

1001, five counts of making false statements in violation of 18 U.S.C.

§1001, and one count of obstructing justice. In the joint trial with

Hanousek, the jury acquitted Taylor of all charges except two counts of

making false statements in violation of 18 U.S.C. §1001.

After a twenty-day trial, the jury convicted Hanousek of

negligently discharging a harmful quantity of oil into a

navigable water of the United States, but acquitted him on

the charge of conspiring to provide false information. The

district court imposed a sentence of six months of

imprisonment, six months in a halfway house and six

months of supervised release, as well as a fine of $5,000. This

appeal followed.

DISCUSSION

A. Negligence Jury Instruction

Hanousek contends the district court erred by failing to

instruct the jury that, to establish a violation under 33

U.S.C. § 1319(c)(1)(A), the government had to prove that

Hanousek acted with criminal negligence, as opposed to

ordinary negligence, in discharging a harmful quantity of oil

into the Skagway River. In his proposed jury instruction,

Hanousek defined criminal negligence as "a gross deviation

from the standard of care that a reasonable person would

observe in the situation." See American Law Institute, Model

Penal Code § 2.02(2)(d) (1985). Over Hanousek's objection,

the district court instructed the jury that the government

was required to prove only that Hanousek acted negligently,

which the district court deemed as "the failure to use

reasonable care."

Whether the jury instruction provided by the district

court misstated an element of 33 U.S.C. § 1319(c)(1)(A)

presents a question of statutory interpretation, which we

review de novo. See United States v. Weitzenhoff, 35 F.3d

1275, 1283 (9th Cir. 1993).

Statutory interpretation begins with the plain language of

the statute. See Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980). If the language of the

statute is clear, we need look no further than that language

in determining the statute's meaning. See United States v.

Lewis, 67 F.3d 225, 228 (9th Cir. 1995). "Particular phrases

must be construed in light of the overall purpose and

structure of the whole statutory scheme." /d. at 228-29.

"When we look to the plain language of a statute in order to

interpret its meaning, we do more than view words or sub-

sections in isolation. We derive meaning from context, and

this requires reading the relevant statutory provisions as a

whole." Carpenters Health & Welfare Trust Funds v. Robertson

(In re Rufener Constr.), 53 F.3d 1064, 1067 (9th Cir. 1995).

[1] Codified sections 1319(c)(1)(A) & 1321(b)(3) of the

Clean Water Act work in tandem to criminalize the conduct

of which Hanousek was convicted. Section 1319(c)(1)(A)

provides that any person who negligently violates 33 U.S.C.

§ 1321(b)(3) shall be punished by fine or imprisonment, or

both.’ Section 1321(b)(3) proscribes the actual discharge of

oil in harmful quantities into navigable waters of the United

States, adjoining shore lines or waters of a contiguous zone,

as well as other specified activity.

[2] Neither section defines the term "negligently," nor is

that term defined elsewhere in the CWA. In this

circumstance, we “start with the assumption that the

legislative purpose is expressed by the ordinary meaning of

the words used." Russello v. United States, 464 U.S. 16, 21

(1983) (quoting Richards v. United States, 369 U.S. 1, 9

(1962)). The ordinary meaning of "negligently" is a failure to

use such care as a reasonably prudent and careful person

would use under similar circumstances. See Black's Law

2 33 U.S.C. §1319(c)(1)(A) provides that first-time negligent violators

shall be punished by a fine of not less than $2,500 nor more than

$25,000 per day of violation, or by imprisonment for not more than

one year, or by both. The same statute provides that second-time

negligent violators shall be punished by a fine of not more than

$50,000 per day of violation, or by imprisonment of not more than

two years, or both.

10a

Dictionary 1032 (6th ed. 1990); The Random House College

Dictionary 891 (Rev. ed. 1980).

[3] If Congress intended to prescribe a heightened

negligence standard, it could have done so explicitly, as it did

in 33 U.S.C. § 1321(b)(7)(D). This section of the CWA

provides for increased civil penalties "[iJn any case in which

a violation of [33 U.S.C. § 1321(b)(3)] was the result of gross

negligence or willful misconduct." 33 U.S.C. § 1321(b)(7)(D).

This is significant. "[W]Jhere Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion." Russello, 464 U.S. at 23 (quoting

wa. States v. Wong Kim Bo, 472 U.S. 720, 722 (5th Cir.

1972)).

Hanousek argues that Congress could not have intended

to distinguish “negligently” in 33 U.S.C. § 1319(c)(1)(A)

from "gross negligence" in 33 U.S.C. § 1321(b)(7)(D) because

the phrase "gross negligence” was only recently added to the

statute in 1990. See Oil Pollution Control Act of 1990, Pub.

L. No. 101-380, 104 Stat. 484 (1990). We reject this argument

because Congress is presumed to have known of its former

legislation and to have passed new laws in view of the

provisions of the legislation already enacted. See United States

v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir. 1996),

cert. denied, 117 S. Ct. 944 (1997).

[4] We conclude from the plain language of 33 U.S.C.

§ 1319(c)(1)(A) that Congress intended that a person who

acts with ordinary negligence in violating 33 U.S.C.

§ 1321(b)(3) may be subject to criminal penalties.’ We next

consider Hanousek's argument that, by imposing an

*In light of our conclusion that 33 U.S.C. §1319(c)(1)(A) unambiguously

permits criminal penalties for ordinary negligence, the rule of lenity has

no application. See Staples v. United States, 511 U.S. 600, 619 n. 17 (1994).

lla

ordinary negligence standard for a criminal violation, section

1319(c)(1)(A) violates the due process clause of the

Constitution.

B. Due Process

We review de novo whether a statute violates a

defendant's right to due process. See United States v.

Savinovich, 845 F.2d 834, 838-39 (9th Cir. 1988).

[5] The criminal provisions of the CWA constitute

public welfare legislation. See Weitzenhoff, 35 F.3d at 1286

("The criminal provisions of the CWA are clearly designed

to protect the public at large from the potentially dire

consequences of water pollution, see S. Rep. No. 99-50, 99th

Cong., 1st Sess. 29 (1985), and as such fall within the

category of public welfare legislation."). Public welfare

legislation is designed to protect the public from potentially

harmful or injurious items, see Staples v. United States, 511

U.S. 600, 607 (1994), and may render criminal "a type of

conduct that a reasonable person should know is subject to

stringent public regulation and may seriously threaten the

community's health or safety," see Liparota v. United States,

471 U.S. 419, 433 (1985).

[6] It is well established that a public welfare statute may

subject a person to criminal liability for his or her ordinary

negligence without violating due process. See United States v.

Balint, 258 U.S. 250, 252-53 (1922) ("[W]here one deals with

others and his mere negligence may be dangerous to them, as

in selling diseased food or poison, the policy of the law may,

in order to stimulate proper care, require the punishment of

the negligent person though he be ignorant of the noxious

character of what he sells."); see also Morissette v. United

States, 342 U.S. 246, 256 (1952) ("The accused, if he does not

will the violation, usually is in a position to prevent it with

no more care than society might reasonably expect and no

more exertion than it might reasonably exact from one who

12a

assumed his responsibilities."); United States v. Dotterweich,

320 U.S. 277, 281 (1943) ("In the interest of the larger good it

puts the burden of acting at hazard upon a person otherwise

innocent but standing in responsible relation to a public

danger."); Staples, 511 U.S. at 607 n.3 (reiterating that public

welfare statutes may dispense with a “mental element”).

Recognizing that our holding in Weitzenhoff would

defeat his due process argument, Hanousek attempts to

distinguish Weitzenhoff. The attempt fails. In Weitzenhoff,

two managers of a sewage treatment plant operating under a

National Pollution Discharge Elimination System permit

were convicted of knowingly discharging pollutants into a

navigable water of the United States, in violation of 33

U.S.C. §§ 1311(a) & 1319(c)(2). See Weitzenhoff, 35 F.3d at

1282-83. In rejecting the defendants’ contention that the

district court erred by failing to instruct the jury that the

government had to prove that the defendants knew their acts

violated the permit or the CWA, we held that the criminal

provisions of the CWA constitute public welfare legislation

and that the government was not required to prove that the

defendants knew their conduct violated the law. See id. at

1286. We explained that, “[w]here. . . 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." See id. at 1284 (quoting United States v.

International Minerals & Chem. Corp., 402 U.S. 558, 565

(1971).

[7] Hanousek argues that, unlike the defendants in

Weitzenhoff who were permittees under the CWA, he was

simply the roadmaster of the White Pass & Yukon railroad

charged with overseeing a rock-quarrying project and was

not in a position to know what the law required under the

CWA. This is a distinction without a difference. In the

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context of a public welfare statute, "as long as a defendant

knows he is dealing with a dangerous device of a character

that places him ‘in responsible relation to a public danger,’

he should be alerted to the probability of strict regulation.”

Staples, 511 U.S. at 607 (quoting Dotterweich, 320 U.S. at

281). Although Hanousek was not a permittee under the

CWA, he does not dispute that he was aware that a high-

pressure petroleum products pipeline owned by Pacific &

Arctic's sister company ran close to the surface next to the

railroad tracks at 6-mile, and does not argue that he was

unaware of the dangers a break or puncture of the pipeline

by a piece of heavy machinery would pose. Therefore,

Hanousek should have been alerted to the probability of

strict regulation. See id."

[8] 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.

C. Vicarious Liability Jury Instruction

Hanousek next contends that the district court erred by

failing to instruct the jury that he could not be found

vicariously liable for the negligence of Shane Thoe, the

Hunz & Hunz backhoe operator.

We review de novo whether a district court's

instructions adequately cover a defense theory. See United

States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). We will

* Although Hanousek argues that "the harsh penalties that may be

imposed for violations of § 1319(c)(1) are another indication that the law

of ‘public welfare’ offenses should not be applicable,” this argument was

rejected in Weitzenhoff. See Weitzenhoff, 35 F.3d at 1286 n.7.

14a

affirm a district court's refusal to give an otherwise proper

theory-of-defense instruction if the instructions actually

given, in their entirety, adequately cover the defense theory.

See id.

_ The first of Hanousek's proposed instructions dealing

with vicarious liability reads as follows:

You are instructed that Defendant Edward

Hanousek is not responsible for and cannot be

held criminally liable for any negligent acts or

omissions by Shane Thoe or other Hunz &

Hunz personnel.

: Hanousek also requested a more general instruction that

a person is responsible under the criminal law only for acts

he performs or causes to be performed on behalf of a

corporation."

. The district court rejected Hanousek's proposed

instructions without explanation. However, the district

court did instruct the jury as follows:

_In order for the defendant Ed Hanousek to be found

guilty of negligent discharge of oil, the government must

prove the following elements beyond a reasonable doubt:

_ 1. The particular defendant caused the

discharge of oil;

2. The discharge of oil was into a navigable

waterway of the United States;

3. The amount of oil was of a quantity that

may be harmful; and

4. The discharge was caused by the

negligence of the particular defendant.

[9] We conclude that the district court's instructions

adequately explained to the jury that Hanousek could be

15a

convicted only on the basis of his own negligent conduct and

not on the basis of the negligence of others working at 6-

mile. See United States v. Chen, 933 F.2d 793, 796 (9th Cir.

1991) (stating that we consider the jury instructions as a

whole and consider how they will be reasonably understood

by the jury). Accordingly, the district court's failure to

provide Hanousek's proposed instructions on vicarious

liability does not constitute reversible error.

[10] In a related argument, Hanousek argues that the

district court erred by allowing the government to strike

"foul blows" during closing argument by inviting the jury to

convict Hanousek on a theory of vicarious liability. We

disagree. In the course of closing argument, the prosecutor

stated, “[w]Jhen Shane Thoe hit that unprotected pipeline and

that oil fired out of that pipeline, sprayed up into the air,

and got into that Skagway River, these two defendants are

guilty of negligent discharging [oil] into the Skagway River."

The prosecutor also told the jury that “the buck stops” with

Hanousek and M. Paul Taylor, an officer of both Arctic &

Pacific and Arctic & Pacific Pipeline, Inc. When read in

context, the prosecutor was appropriately arguing to the

jury that Hanousek and Taylor failed to adequately protect

the pipeline and that both should be held responsible for

their negligent conduct. See United States v. Prantil, 764 F.2d

548, 555 (9th Cir. 1985) (stating that the district court must

allow the prosecution the freedom to strike “hard blows”

based on the evidence and all fair inferences drawn

therefrom).

D. Causation Jury Instruction

[11] To establish the element of causation, the

government must prove beyond a reasonable doubt that the

defendant's conduct was both the cause in fact and the

proximate cause of the harm. See United States v. Spinney,

795 F.2d 1410, 1415 (9th Cir. 1986). To prove proximate

16a

cause, the government must establish that the harm was a

foreseeable result of the conduct. See United States v. Main,

113 F.3d 1046, 1049 (9th Cir. 1997). In the context of an

involuntary manslaughter prosecution, we recently stated:

All of the authorities agree that to be guilty

of involuntary manslaughter the harmful result

must be within the risk foreseeably created by

the accused's conduct; if the physical causation is

too remote, the law will not take cognizance of

it. "The sasne result has been achieved by requiring

that the accused's conduct be a substantial factor in

causing the harmful result or that it be the

proximate, primary, direct, efficient, or legal cause

of such harmful result.”

Id. (quoting Charles E. Torcia, Wharton's Criminal Law § 26

at 148-151 (1993) (emphasis added)).

Hanousek contends that the district court's causation

instruction failed to sufficiently inform the jury that, to find

Hanousek guilty under 33 U.S.C. §§ 1319(c)(1)(A) & 1321(b)

(3), the accident must have been within the risk foreseeably

created by Hanousek's conduct.

The district court gave the jury the following instruction

on causation:

In order to prove that a particular defendant

caused the negligent discharge of oil as alleged in

Count 1 of the indictment, the government must

prove beyond a reasonable doubt that:

1. The particular defendant's conduct had a direct

and substantial connection to the discharge; and

2. The discharge would not have occurred but for

the particular defendant's conduct.

17a

Hanousek did not object to this instruction, but asked

that the following instruction, taken directly from Model

Penal Code § 2.03(3), also be given:

The element of causation is not established if

the actual result is not within the risk of which

the particular defendant was aware or should

have been aware, unless:

(a) the actual result differs from the

probable result only in the respect that a

different person or different property is injured

or affected or that the probable injury or harm

would have been more serious or more extensive

than that caused; or

(b) the actual result involves the same kind

of injury or harm as the probable result and is

not too remote or accidental in its occurrence to

have a just bearing on the actor's liability or on

the gravity of his offense.

[12] The district court properly declined to provide the

jury with the additional instruction Hanousek requested.

The causation instruction given by the district court was

adequate under Main. It required the jury to find that

Hanousek's conduct had a “direct and substantial

connection" to the discharge of oil. That was sufficient. See

United States v. Warren, 25 F.3d 890, 895-96 (9th Cir. 1994)

("A court may reject portions of a proposed theory of

defense that merely rephrase explanations of the law

adequately covered elsewhere in the instructions.").

E. Sufficiency of the Evidence

Although Hanousek did not list sufficiency of the

evidence as one of the issues in his briefs, he nevertheless

included in his opening and reply briefs an extensive

discussion of the evidence and argued that the evidence was

18a

insufficient to support his conviction. The government

responded to this argument in its brief, and both sides at oral

argument argued the issue of whether the evidence was

sufficient to support Hanousek's conviction. Because the

issue has been presented in this way by the parties, and fully

argued, we consider it.

We review the evidence in the light most favorable to the

government to determine whether any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt. See United States v. Lennick, 18 F.3d 814,

818 (9th Cir. 1994).

The government presented evidence at trial that

Hanousek was responsible for the rock-quarrying project at

6-mile; that the project involved the use of heavy equipment

and machinery along the 1000-foot work site; that Hanousek

directed the daily activities of Hunz & Hunz employees and

equipment; and that it was customary to protect the pipeline

with railroad ties and fill when using heavy equipment in the

vicinity of the pipeline. The government also presented

evidence that when work initially began in April, 1994,

Hunz & Hunz covered an approximately 300-foot section of

the pipeline with railroad ties, sand, and ballast material to

protect the pipeline; that after Hanousek took over

responsibility for the project in May, 1994, no further

sections of the pipeline along the work site were protected;

and that the section of the pipeline where the rupture

occurred was not protected with railroad ties, sand or

ballast. Finally, the government presented evidence that

although the rock quarrying work had been completed in

the location of the rupture, rocks would sometimes fall off

the loaded railroad cars as they proceeded through the

completed sections of the work site; that no policy

prohibited the use of backhoes off the work platform for

other activities; that a backhoe operator ruptured the

unprotected pipeline while using a backhoe to remove a rock

19a

from the railroad tracks; and that a harmful quantity of oil

was discharged into the Skyway River.

[13] The totality of this evidence is sufficient to support

Hanousek's conviction for negligently discharging a harmful

quantity of oil into a navigable water of the United States, in

violation of 33 U.S.C. §§ 1319(c)(1)(A) & 1321(b)(3).

F. Sentencing

Based on an offense level of 12 and a criminal history

category of I, the district court sentenced Hanousek to 6

months in prison, 6 months in a halfway house, and 6

months of supervised release.

1. Upward Adjustment for Supervisory Role

Hanousek contends that the district court erred by

making a two-point upward adjustment under United States

Sentencing Guidelines § 3B1.1(c) based on his role as a

supervisor in a criminal activity. We disagree.

[14] Pursuant to U.S.S.G. § 3B1.1, the district court may

make an upward adjustment if the defendant supervised one

or more participants. See United States v. Cyphers, 130 F.3d

1361, 1363 (9th Cir. 1997). A participant is “a person who is

criminally responsible for the commission of the offense, but

need not have been convicted." /d. (quoting U.S.S.G. § 3B1.1

Application Note 1). Here, the district court did not clearly

err by finding that Hanousek was a supervisor because,

although the backhoe Operator was not prosecuted, he was

nonetheless a participant in the criminal activity, and

Hanousek supervised the project at 6-mile.

2. Sentencing Form

Hanousek correctly notes that the sentencing form

attached to the final judgment contains "mathematical

errors" because it erroneously indicates that the

imprisonment range for an offense level of 12 is up to 6

20a

months (the actual range is 10 to 16 months, see U.S.S.G.

Ch. 5 Pt. A) and that the supervised release range is up to 6

years (the maximum term of supervised release for a

misdemeanor (other than a petty offense) is 1 year, see 18

U.S.C. § 3583(b)(3)). However, these errors were clerical and

id not play « role in Hanousek's sentencing. At the

sentencing hearing, the district court correctly stated that the

guideline for an offense level of 12 was 10 to 16 months, and

the district court imposed only 6 months of supervised

release, well under the one-year maximum.

3. U.S.S.G. § 5CI.1(d)

United States Sentencing Guideline § 5Cl.1(d) provides:

If the applicable guideline range is Zone C of the

Sentencing Table, the minimum term may be

satisfied by-

(1) asentence of imprisonment; or

(2) a sentence of imprisonment that includes a

term of supervised release with a condition

that substitutes community confinement or

home detention according to the schedule

in subsection (e), provided that at least one-

half of the minimum term is satisfied by

imprisonment.

Hanousek contends that, in imposing sentence, the

district court relied on incorrect information from the

probation officer that, under U.S.S.G. § 5Cl.1(d), the entire

minimum sentence had to be served as a term of

imprisonment. We disagree. The probation officer did

originally advise the district court incorrectly that the entire

minimum sentence had to be served as a term of

imprisonment. However, after the district court questioned

the probation officer's reading of the guideline, the

probation officer corrected herself by saying, “One-half of

21a

the minimum term could be served in imprisonment. I'm

sorry." The district court did not rely on incorrect

information.

4. Departures

We lack jurisdictior to review the district court's refusal

to depart downward from the Sentencing Guidelines. See

United States v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997).

The district court recognized that it had the discretion to

make the departures requested by Hanousek, but chose not

to do so. See id.

CONCLUSION

In light of the plain language of 33 U-S.C.

§ 1319(c)(1)(A), we conclude Congress intended that a person

who acts with ordinary negligence in violating 33 U.S.C.

§ 1321(b)(3) may be subjected to criminal penalties. These

sections, as so construed, do not violate due process.

Accordingly, the district court properly instructed the jury

on ordinary negligence. We also conclude that the district

court properly instructed the jury on causation and did not

err by refusing to provide the jury with Hanousek's

proposed jury instructions on vicarious liability. Finally, the

evidence was sufficient to support Hanousek's conviction,

and the district court properly imposed its sentence under

the Sentencing Guidelines.

AFFIRMED.°

* Judge Stagg intends to file a separate dissenting opinion.

22a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF )

AMERICA, )

)

Plaintiff, ) Case No. A96-0040

) CR (MF)

vs. )

)

M.PAUL TAYLOR, JR.and ) Anchorage, Alaska

EDWARD HANOUSEK, JR., ) Wednesday,

) December 11, 1996

) 9:02 o’clock a.m.

Defendants. )

) TRIAL BY JURY -

) 16TH DAY

—s

VOLUME XVI

PARTIAL TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JAMES M. FITZGERALD

UNITED STATES DISTRICT JUDGE

THE COURT: I’m going - I came in prepared to

rule on the — both Mr. Paul Davis’ [sic] motion for judgment

of acquittal and the motion of Edward Hanousek for

judgment of appeal. and I'd also reviewed and undertake to -

23a

undertaken to make a — come up with an interpretation of

the term “negligently violates” as it’s contained in Title 33

U.S. Code Section 1391, subpart (c)(1).

I’m going to rule on that because it does play a part

in the decision relating to the Defendant Hanousek. On the

issue of Taylor’s motion for judgment of acquittal, I’m going

to take a better look at the authorities than I have at this

time, and I’ll rule on it probably later in the day.

Here are my rulings that I am prepared to make. I’ve

undertaken a review of whether the term “negligently

violate” as used in Title 33 U.S. Code Section 1391(c)(1)

refers to criminal negligence or simple negligence. The

pertinent language of Section 1319 [sic], subpart (c)(1) is

entitled Criminal Penalties and addresses negligent

violations. The pertinent language provides that any person

who negligently violates certain sections of the Clean Water

Act shall be punished by a fine of up to $25,000 per day and

imprisonment of up to one year.

The starting point for interpreting a statute and the

language that — is the language of the statute itself. See

Consumer _,Product Safety Commission versus GTE

Sylvania, Incorporated, 447 U.S. 102 at 108, 1980. Here the

plain language of the statute is:

“Negligently violates; there is no reference to

criminal negligence, or willful negligence. The

reference to negligently violates is unambiguous, and

where the language of the statute is unambiguous, the

plain meaning controls. U.S. versus Curtis, 988 F.2d

946, Ninth Circuit 1993.”

From the language of the statute (indiscernible) court,

I conclude that Congress intended to impose liability for

simple negligence. A review of the legislative history

supports that conclusion. Congress’ intent in passing the

24a

Water Pollution Control Act was to eliminate discharges of

pollution. Elimination of discharges of pollution could be

more readily achieved through a simple negligence rather

than a criminal negligence standard.

In the House debates, Congressman Vanek (ph)

offered an amendment to provide for criminal penalties for

anyone who negligently violated an administrative order.

Congressman Hosha (ph) opposed the amendment, argued

that, quote:

“In this legislation, we already can charge a man for

simple negligence. We can charge him with criminal

violation under this bill for simple negligence,” end

of quote.

Congressman Vanek’s amendment was rejected. See

Pollution Control Act Amendments of 1972, Volume I, at

pages 528 to 530. My review of the legislative history finds

repeated references to punishing negligent violations of the

Water Patrol — Pollution Control Act without mentioning

criminal negligence. Nothing in the legislative history

suggests that the Court should divert from the plain meaning

of the statute. See Conference Report on the 1987 Water

Pollution C | Act 7 ; in

Clean Water Desk Book at 14 - 147, 1991.

I find that the term “negligently violates” as used in

the statute means negligence, but not criminal negligence.

Then -

(Pause)

THE COURT: I have reviewed Bacchian versus

New Hampshire, 414 U.S. 478, Supreme Court 1974. That

case had to do with a sale of a button said to be obscene,

where a juvenile 14-year-old girl — the operator of the shop

where the sale was made was charged with willfully

25a

contributing to the delinquency of a minor, in violation of

the state statute. The state supreme court held that under

the statute, the state was required to prove that the willful -

that the — that a willful component was included in the

statute and required the state to prove that the operator

acted voluntarily, unintentionally, and. not because of

mistake or accident.

United States Supreme Court reviewed the evidence

and found that under the evidence the government had failed

- state had failed to prove that the store operator personally

sold the button to the girl, knowing her to be a minor, or

that he personally caused another to sell her the button,

although the operator conceded that he controlled the

premises on the date the sale was made. This concession,

however, failed to establish the willfulness requirement of

the state statute. Certainly under the New Hampshire

statute, the state failed to prove an essential element.

The reason I’ve undertaken to interpret the federal

statute in the present case is to determine whether more than

simple negligence is required. While Bacchian may be

instructive, since it held that an operator or manager could

not be held liable on a theory of strict liability under the

New Hampshire statute. However, I’m not prepared to say

Bacchian is controlling in the present case. I’ve interpreted

the statute -- federal statute to require the government prove

the defendant negligent. Subsequent cases citing to

hold that a case stands for the rule that every essential

element of a crime must be supported by relevant evidence.

Bacchian as I read it does not hold that a manager or

operator may not be held strictly liable under that statute.

So I’m going to take a look at the strict liability issue

in light of those cases. I have, however, reviewed the

evidence, and leaving aside the strict liability issue, I’m going

to rule on whether or not simple negligence or negligence

26a

has been established under the evidence insofar as both the

Defendant Taylor and the Defendant Edward Hanousek.

That is, whether leaving completely out of the decision the

responsibility that may be imposed on a corporate officer

under the doctrine of strict liability, I find that even

construing the evidence on negligence, leaving apart strict

liability, favorable to the government as I must at this time,

there’s not evidence upon which a reasonable juror might

find Taylor negligent.

I’m not prepared at this time in view of the evidence

that Edward Hanousek was in charge of day-to-day

operations during the period in which the oil spill occurred

at 6 Mile, that he may not be held contributory negligent in

causing the oil spill. At this time I deny his motion for

judgment of acquittal. However, if he should be found

guilty of Count I, then this issue will be again considered.

27a

APPENDIX C

FILED

JUN - 7 1999

Cathy A. Catterson, Clerk

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, | No. 97-30185

Plaintiff-Appellee, DC # CR-96-00040-

JMF

vs.

EDWARD HANOUSEK, ORDER

Defendant-Appellant.

Before: THOMPSON and TASHIMA, Circuit Judges, and

STAGG, District Judge.’

A majority of the judges on this panel have voted to

deny the petition for rehearing. Judge Tashima has voted to

deny the petition for rehearing en banc, and Judge

Thompson recommended denial of the petition.

The petition for en banc rehearing has been

circulated to the full court, and no judge of the court has

. The Honorable Tom Stagg, Senior United States District Judge

for the Western District of Louisiana, sitting by designation.

28a

requested a vote on the petition for rehearing en banc. Fed.

R. App. P. 35().

The petition for rehearing, and the petition for

rehearing en banc, are DENIED.

APPENDIX D

TITLE 33, UNITED STATES CODE

§ 1319. Enforcement

(1) Negligent violations

Any person who-

(A) negligently violates section 1311, 1312, 1316,

1317, 1318, 1321(6)(3), 1328, or 1345 of this title, or any

permit condition or limitation implementing any of such

sections in a permit issued under section 1342 of this title by

the Administrator or by a State, or any requirement imposed

in a pretreatment program approved under section 1342(a)(3)

or 1342(b)(8) of this title or in a permit issued under section

1344 of this title by the Secretary of the Army or by a State;

(B) negligently introduces into a sewer system or

into a publicly owned treatment works any pollutant or

hazardous substance which such person knew or reasonably

should have known could cause personal injury or property

damage or, other than in compliance with all applicable

Federal, State, or local requirements or permits, which

causes such treatment works to violate any effluent

limitation or condition in any permit issued to the treatment

works under section 1342 of this title by the Administrator

or a State;

shall be punished by a fine of not less than $2,500 nor more

than $25,000 per day of violation, or by imprisonment for

not more than 1 year, or by both. If a conviction of a

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person is for a violation committed after a first conviction of

such person under this paragraph, punishment shall be by a

fine of not more than $50,000 per day of violation, or by

imprisonment of not more than 2 years, or by both.

§ 1321. Oil and hazardous substance liability

(a) Definitions

For purpose of this section, the term —

(1) “oil” means oil of any kind or in any form,

including, but not limited to, petroleum, fuel oil, sludge, oil

refuse, and oil mixed with wastes other than dredged spoil;

(b) Congressional declaration of policy against discharges of

oil or hazardous substances; designation of hazardous

substances; study of higher standard of care incentives and

report to Congress; liability; penalties; civil actions; penalty

limitations, separate offenses, jurisdiction, mitigation of

damages and costs, recovery of removal costs; alternative

remedies and withholding clearance of vessels

(3) The discharge of oil or hazardous substances (i)

into or upon the navigable waters of the United States,

adjoining shorelines, or into or upon the waters of the

contiguous zone, or (ii) in connection with activities under

the Outer Continental Shelf Lands Act [43 U.S.C. § 1331 et

seq.] or the Deepwater Port Act of 1974 [33 U.S.C. § 1501 et

seq.], or which may affect natural resources belonging to,

appertaining to, or under the exclusive management

authority of the United States (including resources under the

Magnuson-Stevens Fishery Conservation and Management

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‘.

~~ ——

Act [16 U.S.C. § 1801 et seq.] ), in such quantities as may be

harmful as determined by the President under paragraph (4)

of this subsection, is prohibited, except (A) in the case of

such discharges into the waters of the contiguous zone or

which may affect natural resources belonging to,

appertaining to, or under the exclusive management

authority of the United States (including resources under the

Magnuson-Stevens Fishery Conservation and Management

Act), where permitted under the Protocol of 1978 Relating

to the International Convention for the Prevention of

Pollution from Ships, 1973, and (B) where permitted in

quantities and at times and locations or under such

circumstances or conditions as the President may, by

regulation, determine not to be harmful. Any regulations

issued under this subsection shall be consistent with

maritime safety and with marine and navigation laws and

regulations and applicable water quality standards.

(4) The President shall by regulation determine for

the purposes of this section those quantities of oil and any

hazardous substances the discharge of which may be harmful

to the public health or welfare or the environment of the

United States, including but not limited to fish, shellfish,

wildlife, and public and private property, shorelines, and

beaches.

§ 1362. Definitions

Except as otherwise specifically provided, when used

in this chapter:

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive

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materials, heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural waste

discharged into water. This term does not mean (A) “sewage

from vessels or a discharge incidental to the normal

operation of a vessel of the Armed Forces” within the

meaning of section 1322 of this title; or (B) water, gas, or

other material which is injected into a well to facilitate

production of oil or gas, or water derived in association with

oil or gas production and disposed of in a well, if the well

used either to facilitate production or for disposal purposes is

approved by authority of the State in which the well is

located, and if such State determines that such injection or

disposal will not result in the degradation of ground or

surface water resources.

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PS ee eS

TITLE 40

§ 110.1 Definitions.

Sheen means an iridescent appearance on the surface

of water.

§ 110.3 Discharge of oil in such quantities as “may be

harmful” pursuant to section 311(b)(4) of the Act.

For purposes of section 311(b)(4) of the Act,

dishcarges of oil in such quantities that the Administrator

has determined may be harmful to the public health or

welfare or the environment of the United States include

discharges of oil that:

(a) Violate applicable water quality standards; or

(b) Cause a film or sheen upon or discoloration of

the surface of the water or adjoining shorelines or cause a

sludge or emulsion to be deposited beneath the surface of the

water or upon adjoining shorelines.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.