Petition for Writ of Certiorari — Rapanos v. United States
Supreme Court brief2001
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‘Wleoet
No.
In the
Supreme Court of the Anited States
JOHN A. RAPANOS,
Petitioner,
¥-
UNITED STATES OF AMERICA,
; Respondent.
On PETITION For Writ Or CERTIORARI
To THe UNITED STATES CourRT OF APPEALS
For THE SixtTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
THOMAS V. WILHELM.
Counsel of Record
2636 Dixie HIGHWAY
WATERFORD, MI 48328
(248) 618-7280
Counsel for Petitioner
BECKER GALLAGHER LEGAL PUBLISHING, INC.,
CINCINNATI, OHIO 800-890-5001
ew
QUESTIONS PRESENTED
I.
Whether Petitioner’s criminal convictions in Federal
District Court for filling isolated wetlands in violation of 33
U.S.C. § 1311 (a) and affirmed by the Sixth Circuit Court of
Appeals on December 15, 2000 violates the Due Process
Clause of the Fifth Amendment in light of this Court’s
decision in Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers,etal, US._,
es , L.Ed.2d , 2001 WL 15333 (U.S.)
(January 9,2001) and Fiore v. White, 531 U.S. ;
5.2. ; L.Ed.2d , 2001 WL 15674 (U.S.)
(January 9,2001).
II.
Does Section 404 of the Clean Water Act 33 U.S.C.
§ 1344(a) give the Army Corps of Engineers or the
Environmental Protection Agency jurisdiction over isolated
wetlands not adjacent to any navigable or open waters.
IIT.
Whether where the government states that they have
not proved an element of the crime can the conviction be
sustained under Fiore v. White 531 U.S. : S.Ct.
—__, L.Ed.2d _, 2001 WL 15674 (U.S.) (January 9,
2001).
PARTIES TO THE PROCEEDING
Petitioner
John A. Rapanos, an individual with no corporate affiliations.
Respondent
The United States of America.
il
TABLE OF CONTENTS
Questions Presetifed ...............
Parties to the Proceeding ............
MOE GD hn se sk ee ee
Table of Authorities Stata Gal Nea gee poke
Opinion OG NY oe eee ws
A a ne ere ee
pe: ar
The Constitutional Provisions
I es Sa yk dew
Reason For Granting the Writ of Certiorari
BT ACS Se ara eee eae
APPENDIX
Appendix A
Sixth Circuit Court of Appeals
2 ig | er ar
ill
Appendix B
Sixth Circuit Court of Appeals
EE: TUN ok a See
Appendix C
Excerpts from Government’s Response to
Defendant’s Motion for Judgment of
Acquittal and New Trial, 5/1/95 .......... 12a
Appendix D
Excerpts from Defendant’s Brief in Support
of Motion For Direct Verdict of Acquittal
en Fie TH, Wene o k oeea eee 24a
Appendix E
Excerpts from District Court Superseding
Indictment and Other Court Materials ...... 3la
1V
TABLE OF AUTHORITIES
Cases Page(s)
Bell v. United States,
349 U.S. 81, 75 S.Ct. 620,
Pr Sis ee AD wk ose os ee oe eee 10
Fiore v. White,
ie ee | = ae
___ L.Ed.2d__, 2001 WL.15674
(U.S.) (January 9, 2001) ......... i, 6, 7,9, 14
Jones v. United States,
__ US. _, £203.Cr. 1904,
ee. Cs oe kd ea 10, 13
Rewis v. United States,
401 U.S. 808, 91 S.Ct. 1056,
ae hk Be Be Ce io 8 i eee ee 11
Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers,
730 Ue. 5
—_ L.Ed.2d___, 2001 WL 15333 ~
(U.5.) (eameaty D, BA) no ke ees passim
United States v. Lopez,
514 U.S. 549, 115 S.Ct. 1624,
[34 L..20.20 GIO (1999) . 2k cas 12, 13
United States v. Morrison,
529 U.S. 598, 120 S.Ct. 1740,
- $46 LG. 2 GSR CD Cw iw ke ees 2, 3
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121, 106 S.Ct. 455,
88 L.Ed.2d 419 (1985) ............. 8,9, 13
United States v. Universal C.I.T. Credit Corp.,
344 U.S. 218, 73 S.Ct. 227,
oF &. es Ss Soa ee eee 11
United States v. Rapanos, }
HS F.36 367 a Ce. TO .k sk el 5-6
Constitutional Provisions
AM. 1 $06 os ck eee 4,12
Fifth Amendment to U. S. Constitution ....... i, 4, 14
Fourteenth Amendment to U. S. Constitution ..... 9, 14
Statutes and Other Authorities
i U.SS... 02 6 oa sc ete eee ert « ie
1S U.S.C. 6 U9 on cick eee 3
16 U.S.C. SS own Se ee eee ]
1S USA. S37 OY 633 oe eee ]
2p U.S. 2 0M... 6k 5S eee l
SOUS... OTE oink bein eee l
SO USC. EUS . ww vd cn eee 2
33 U.S.C. § 1314(a) .. 2.2... Aha Mit i, 1-2. 5.6.72
S39 USE O15 «wow cite eee 1,2
SOUS. STEM un os isvciicettiiiee eee l
33 UR BT kc sddvdéiaGhee ee 1,2
33 US. § 1906 so dadta ist eee 2
a2 U.S. § TIP GA Oe .. oe ke 2-3
33 U.S.C. 4 To. ae 2
vi
TES Fog > Rr ew ere me Gore Se ge 1.2
a Loi ft: Si rernane bare ee ees ec 1,2
33 U.S.C. § 13420) «0 ccc een snoens 2
EIR ie Gb ee ee ae 2
Eth ole f: | Shearer wee tee ee ier ce oe 2
ae fade 2) | arr are etree ieee oe os er i
2 yah Cy nares foro we eee ee 2
33 U.S.C. § 1362 (5)(6)(7)(12)(14)19) .. ee eee 3-4
SCG Oe 5 hak hoes ee 4d cee a ey EOE 10
33 CPR 6 323.202) « . 5 wo 5 re eee eee 10
33 CFR § 323.2(a)(3) ....-----> re ee rs ee 10
33 CFR § 323.2aMS) . ww ee eee reees 10
Supreme Court Rule 13.1 ...---- 0-2 eerie 1
—
vil
OPINIONS BELOW
The Opinion from which Petitioner seeks review was
filed on December 15, 2000 and was recommended for full
text publication. A copy of this Opinion is included in the
Appendix. (App. A at 1a-9a.)
The United States District Court had jurisdiction over
this case pursuant to 18 U.S.C. § 3231, because the
Government alleged in a superseding indictment upon which
Petitioner was tried violations of 33 U.S.C. § 1311(a); 18
U.S.C. § 2 and 18 U.S.C. § 1512 by the Petitioner. The
United States Court of Appeals for the Sixth Circuit had
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742 (a)(1).
JURISDICTION OF THE COURT
The Opinion affirming Petitioner’s conviction was
entered on December 15, 2000. This Court has jurisdiction to
grant this Petition for Certiorari under 28 U.S.C. § 1254 and
Supreme Court Rule 13.1.
THE STATUTES INVOLVED
33 U.S.C. § 1311(a) provides
§ 1311. Effluent limitations
Illegality of pollutant discharges except in
compliance with law.
Except as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and
1344 of this title, the discharge of any
pollutant by any person shall be unlawful.
33 U.S.C. § 1344 states in pertinent part:
Discharge into navigable waters at specific
disposal sites.
The Secretary may issue permits, after notice
and opportunity for public hearings for the
discharge of dredged or fill material into the
navigable waters at specific disposal sites. Not
later than the fifteenth day after the date an
applicant submits all the information required
to complete an application.
33 U.S.C. § 1319 provides in pertinent part:
(2) Knowing violations
Any person who—
(A) knowingly violates section 1311, 1312,
1316, 1317, 1318, 1321(b)(3), 1328 or 1345
of this ttle, or any permit condition or
limitation implementing any such sections ina
permit issued under section 1342 of this title
by the Administrator or by a State, or any
requirement imposed in a_ pretreatment
program issued 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; or. . .
shall be punished by a fine of not less than
$5,000 nor more than $50,000 per day of
violation, or by imprisonment of not more than
3 years, or by both... .
33 U.S.C. § 1362 provides in pertinent part:
(5) The term “person” means an individual,
corporation, partnership, association, State,
municipality, commission, or _ political
subdivision of a State, or any interstate body.
(6) The term “pollutant” means dredged spoil,
solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical
wastes, biological materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural
waste discharged into water... ..
(7) The term “navigable waters” means the
waters of the United States, including the
territorial seas.
* kK OK OK OK
(12) the term “discharge of a pollutant” and
the term “discharge of pollutants” each means
(A) any addition of any pollutant to navigable
waters from any point source, (B) any addition
of any pollutant to the waters of the contiguous
zone or the ocean from any point source other
than a vessel or other floating craft... .
* * KK *
(14) The term “point source” means any
discernible, confined and discrete conveyance,
including but not limited-to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal
feeding operation, or vessel or other floating
craft, from which pollutants are or may be
discharged. This term does not include
agricultural stormwater discharges and return
flows from irrigated agriculture. .
* * KK
(19) The term “pollution” means the man-
made or man-induced alteration of the
chemical, physical, biological, and
radiological integrity of water.
THE CONSTITUTIONAL PROVISIONS INVOLVED
Art. 1 § 8, cl. 3 of the United States Constitution provides in
pertinent part:
Section 8. The Congress shall have the power
to regulate Commerce with foreign Nations
and among the several States, and with the
Indian Tribes;
The Fifth Amendment to the United States Constitution
provides in pertinent part:
No person shall be . . . deprived of life,
Liberty, or property, without due process of
law.
STATEMENT OF THE CASE
On June 9, 1993, a two count indictment was returned
against Petitioner, charging him with illegally filling wetlands
on a portion of a 175 acre parcel of property he owned in Bay
County, Michigan (the Salzburg Road property) between
December 1988 and November 1989, in violation of 33
U.S.C. § 1311(a), and intimidating a witness, in violation of
18 U.S.C. §§ 2 and 1512. The case proceeded to trial on a
superseding indictment on July 1, 1994. On July 12, 1994,
trial Judge Zatkoff declared a mistrial. On July 27, 1994 the
grand jury returned a second superseding indictment
containing the original wetland filling violation, the two
witness tampering counts and added a fourth count charging
unlawful wetlands filling from December 1989 through
October of 1991.
The trial on this indictment began on February 1,
1995. After the government rested, the trial judge dismissed
the two witness tampering counts. On March 7, 1995, the
jury returned verdicts on both of the wetlands counts.
On March 28, 1995, Petitioner filed a Motion for
Judgment of Acquittal and for a New Trial. On August 3,
1995, Judge Zatkofff denied Petitioner’s Motion for Judgment
of Acquittal but granted his Motion for a New Trial.
The government appealed and the grant of a new trial
was reversed by the United States Court of Appeals for the
Sixth Circuit. United States v. Rapanos, 115 F.3d 367 (6"
Cir. 1997). The jury verdict was reinstated and the case
remanded for sentencing.
After the remand, Petitioner filed a Motion to Amend
the Motion for New Trial, which was denied on April 13, ©
1998. Subsequently, both sides filed sentencing memoranda
concerning sentencing factors and the sentencing guideline
calculations.
On December 2, 1998 the trial court sentenced the:
Petitioner to three (3) years probation on the wetlands counts,
imposed a fine of $185,000.00 and required that he do two
hundred (200) hours of community service work. Petitioner
filed a timely claim of appeal from his conviction and
sentence. The government filed a claim of appeal from his
sentence.
On December 15, 2000, the Sixth Circuit Court of
Appeals affirmed Petitioner’s conviction for violating 33
U.S.C. § 1311(a) and remanded the matter to the district
court for resentencing pursuant to the court’s opinion.
On January 9, 2001, this Court decided Solid Waste
Agency of Northern Cook County v. United States Army
Corps of Engineers, etal., 531 U.S. ; oF ;
L.Ed.2d (2001), and Fiore v. White, 531 U.S.
>.Ct. ; L.Ed.2d 2001 WL 15674
(US.) (2001).
REASONS FOR GRANTING THE_
WRIT OF CERTIORARI
I.
UNDER THE AUTHORITY OF SOLID WASTE
AGENCY OF NORTHERN COOK COUNTY V.
UNITED STATES ARMY CORPS OF ENGINEERS
ET AL. AND FIORE V. WHITE, MR. RAPANOS’
CONVICTION VIOLATES THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT.
Petitioner, John A. Rapanos, was convicted of two
counts of filling wetlands in violation of the Clean Water Act,
33 U.S.C. § 1311( a). The property involved consisted of one
hundred seventy-five (175) acres in Williams Township, Bay
County, Michigan. It contained no buildings and is bordered
by an interstate highway and a major state highway. The
parcel was at least twenty (20) miles from the nearest
navigable waterway, Saginaw Bay.
At trial it was the government’s theory that Petitioner
discharged pollutants, sand and other soils, onto twenty-nine
(29) of the one hundred seventy-five (175) acres, which it
alleged were regulated wetlands under the Clean Water Act.
At trial, the arguments focused on whether the
Petitioner discharged pollutants into an area subject to
regulation under the Clean Water Act. Petitioner argued that
the areas were not wetlands as defined by the Clean Water
Act, were not adjacent to any navigable waters and were not
even adjacent to each other. The government introduced a
map of what it considered to be the wetland areas. (App. E at
35a.) The map clearly shows that the wetland areas were not
adjacent to any navigable waterways or even adjacent to each
other.
One government witness testified that according to
U.S. Geological Survey Maps, any water flowing from Mr.
Rapanos’ property would flow into the Lobodzinski Drain,
then into the Hoppler Drain and from there into the
Kawkawlin River, ultimately reaching the Saginaw Bay, some
twenty (20) miles away. Petitioner’s witnesses testified that
the parcel contained no swamps, marshes, bogs or regulated
wetlands. At trial, Petitioner’s witnesses testified that none of
the subjected areas possessed the physical characteristics that
identified wetlands under the Clean Water Act. The
Petitioner’s witnesses testified that, even if the subjected areas
were wetlands, they must be classified as “isolated wetlands”
as they lacked a surface water connection to any other body
of water and were not even adjacent to each other.
In Solid Waste Agency of Northern Cook County, the
Court held that section 404 of the Clean Water Act did not
give the Army Corps of Engineers jurisdiction over “ponds
which were not adjacent to open waters.” (Slip op. 7)
(emphasis in original). The Court also made clear that its
holding in U.S. v. Riverside Bayview Homes, Inc., 474 U.S.
121, 106 S.Ct. 455, 88 L.Ed 2d 419 (1985), was limited to
conferring jurisdiction to the Corps over wetlands that
“actually abutted on a navigable waterway.” (Slip op. 6). The
Court stated:
It was the significant nexus between the
wetlands and navigable waters that informed
our reading of the CWA in Riverside Bayview
Homes. Indeed we did not ‘express any
opinion’ on the ‘question of the authority of
the Corps to regulate discharges of fill material
8
into wetlands that are not adjacent to bodies of
open water...’ Id. At 131-132 n.8. In order
to rule for respondents here, we would have
to hold that the jurisdiction of the Corps
extends to ponds that are not adjacent to open
water. But we conclude that the text of the
statute will not allow this.
Id. at 6,7 (emphasis in original).
By limiting Riverside the logical conclusion from Solid
Waste is that neither the Army Corps of Engineers nor the
Environmental Protection Agency (the federal regulatory
agency in this case) would have jurisdiction under the CWA
over wetlands that were not adjacent to navigable or open
waters, Or in other words were isolated from any navigable or
open waters. In the present case, the wetlands Petitioner was
convicted of filling were no where near open or navigable
waters. Trial testimony established that the nearest navigable
"waterway was Saginaw Bay, approximately twenty (20) miles
away. Under principles of Due Process, Petitioner’s federal
conviction can not stand.
On the same. day that the Court decided Solid Waste
Agency of Northern Cook County v. United States Army
Corps of Engineers, it decided Fiore v. White, 531 U.S.
S.Ct., L.Ed.2d __, 2001 WL 15674 (U.S.)
(January 9, 2001). Fiore was convicted of operating a
hazardous waste facility without a permit. After his conviction
became final, the Pennsylvania Supreme Court interpreted the
Statute he was accused of violating for the first time and made
clear that Fiore’s conduct was not within the scope of the
statute. This Court granted certiorari to determine if the
conviction was proper under the Fourteenth Amendment of
the U.S. Constitution. On review, the Court stated that the
9
question was “simply whether Pennsylvania can, consistently
with the Federal Due Process Clause, convict Fiore of
conduct that its criminal statute, as properly interpreted, does
not prohibit.” This Court answered the question in the
negative and held that Fiore’s conviction and continued
incarceration violated the Due Process Clause of the
Fourteenth Amendment. Solid Waste clarified the statute,
section 404 of the Clean Water Act, to limit the Army Corps
of Engineers jurisdiction to areas that are adjacent to bodies
of open water. This was the law -- properly interpreted -- at
the time of Mr. Rapanos’ conviction. Since the wetlands at
issue in this case were not adjacent to any bodies of open or
navigable waters, the Due Process Clause of the Fifth
Amendment forbids the federal government from convicting
him, and his conviction should be reversed and vacated.
A close reading of the opinion and dissent in Solid
Waste teaches that § 404 and regulation 33 CFR § 323.2
(a)(5) (1978) are ambiguous -- as it is unclear from the
Court’s decisions in both Solid Waste (“The exact meaning of
§ 404(g) is not before us and we express no opinion on it”)
and Riverside (“We are not called upon to address the
question of the authority of the Corps to regulate discharges
of fill material into wetlands that are not adjacent to bodies of
open water, see CFR §§ 323, 2(a)(2) and (3) and we do not
express any opinion on that question”) that the federal
government should assume jurisdiction over isolated non-
adjacent wetlands -- the rule of lenity requires that Petitioner’s
conviction be vacated. Bell v. United States, 349 U.S. 81, 75
S.Ct. 620, 99 L.Ed. 905 (1955), ambiguity concerning the
ambit of criminal statutes should be resolved in favor of
lenity.
What this Court stated in Jones v. United States, __
U.S. , 120 S.Ct. 1904, LL. Ed.2d , (2000) that
10
“Given the concerns brought to the fore in Lopez, it is
appropriate to avoid the constitutional question that would
arise were we to read § 844(I) to render the ‘traditionally
local criminal conduct’ in which petitioner Jones engaged ‘a
matter for federal enforcement.” (citation omitted). The Court
went on to state “We have instructed that ‘ambiguity
concerning the ambit of criminal statutes should be resolved
in favor of lenity,’ Rewis v. United States, 401 U.S. 808,
812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) and that ‘when
choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should
have spoken in language that is clear and definite,’ United
States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-
222, 73 S.Ct. 227, 97 L.Ed. 260 (1952). We have cautioned,
as well, that ‘unless Congress conveys its purpose clearly, it
will not be deemed to have significantly changed the federal
State balance in the prosecution of crimes. Bass, 494 U.S. at
349, 92 S.Ct. 515.”
In Solid Waste, this Court recognized that there were
serious constitutional and federalism questions raised by the
Army Corps of Engineers’ interpretation of § 404(a). (Slip
op. p.8). In light of this Court’s interpretive guides and
expressed state federalism/constitutional problems with the
reach of § 404(a), this Court should apply the rule of lenity to
vacate Petitioner’s conviction.
II.
THE COURT SHOULD GRANT CERTIORARI TO
ANSWER THE QUESTION OF THE AUTHORITY
OF THE FEDERAL GOVERNMENT TO REGULATE
DISCHARGES OF FILL MATERIAL INTO ISOLATED
WETLANDS THAT ARE NOT ADJACENT TO -
11 :
BODIES OF OPEN OR NAVIGABLE WATERS NOT
ADDRESSED IN SOLID WASTE AGENCY OF
NORTHERN COOK COUNTY V. UNITED STATES
ARMY CORPS OF ENGINEERS ET AL.
In Solid Waste, the Army Corps of Engineers
interpreted section 404 of the Clean Water Act to confer
federal authority over an abandoned sand and gravel pit which
contained some permanent and seasonal ponds. This Court
framed the issue as “whether the provisions of § 404(a) may
be fairly extended to these waters; and, if so, whether
Congress could exercise such authority consistent with the
Commerce Clause, U.S. Const., Art. I § 8 cl.3. The Court
“answered the first question in the negative” and “did not
reach the second.” (id. p.3).
This Court should grant certiorari of this case to
resolve the unanswered question of Congress’ authority to
regulate isolated wetlands that do not abut navigable or open
waters. The issue is ripe for review. As this Court stated in
Solid Waste, “The exact meaning of § 404 is not before us and
we express no opinion on it. . .” and “Twice in the past six
years we have reaffirmed the proposition that the grant of
authority to Congress under the Commerce Clause, though
broad, is not unlimited. See United States v. Morrison, 529
U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 ( 2000); United
States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d
626 (1995).”
The dissent in Solid Waste was more forthright. The
dissenters, interpreting the majority opinion and applying its
holding to future cases, stated: “In its decision today, the
Court draws a new jurisdictional line, one that invalidates the
1986 migratory bird regulation as well as the Corps’ assertion
12
of jurisdiction over all waters except for actually navigable
waters, their tributaries, and wetlands adjacent to each.”
( p.10). The dissenters went on to state:
If as I believe, actually navigable waters lie at
the very heart of Congress’ commerce power
and ‘isolated’ nonnavigable waters lie closer to
(but well within) the margin,” ‘isolated
wetlands’ which are themselves _ only
marginally ‘waters’ are the most marginal
category of ‘waters of the United States’
potentially covered by the statute. It was the
question of the extension of federal jurisdiction
to that category of ‘waters’ that the Riverside
Bayview Court reserved. The question is not
presented in this case. (Fn.13 p.15).
In Lopez, supra, this Court “identified three broad
categories of activity that Congress may regulate under its
commerce power.” 514 U.S. at 558 “First Congress may
regulate the use of the channels of interstate commerce.” Id.
(i.e. navigable and open waters). Second, Congress is
empowered to regulate and protect the instrumentalities of
interstate commerce, . . . even though the threat may only
come fronrintrastate activity (i.e. wetlands that abut navigable
Or open waters.) Finally, Congress’, commerce power
authority includes the power to regulate those activities having
a substantial relation to interstate commerce.” Morrison, 529
U.S. 598, 120 S.Ct. 1740, 1748 (2000) (However the activity
must be commercial in nature. Lopez, supra, and Jones v.
United States, U.S. __, 120S.Ct. 1904 (2000). Isolated
wetlands on personal property do not qualify as a proper
subject for regulation by the federal government under
Congress’ Commerce Clause power. This Court should grant
certiorari to resolve any uncertainty in Commerce Clause
13
jurisprudence and the delicate state federal balance in
enforcement of environmental protection laws.
If.
UNDER FIORE v. WHITE, PETITIONER’S
CONVICTION SHOULD BE VACATED AS
IT VIOLATES THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT
In Fiore, this Court reiterated a fundamental principle
of federal criminal law. This Court stated, “We have held that
the Due Process Clause of the Fourteenth Amendment forbids
a State to convict a person of a crime without proving the
elements of the crime beyond a reasonable doubt”. (citations
omitted). The Due Process Clause of the Fifth Amendment is
no less stringent.
In the present case, one of the elements the prosecutor
was required to prove beyond a reasonable doubt was that the
Petitioner knew that the areas into which he was placing fil!
were wetlands. And the jury was so instructed. (App. E at
36a-44a.) However, the prosecutor, after the proofs were
closed admitted that “the government never attempted to
gather any evidence to the effect that the defendant know that
he was putting fill into U.S. waters, never attempted to
present any evidence on that point either, not anything
thinking that was an element.” Since the jury returned a
general verdict we can not know if they found that the
Petitioner acted with knowledge and since the prosecutor
admitted that he did not attempt to prove knowledge,
Petitioner’s conviction violates the Due Process Clause of the
Fifth Amendment.
14
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted or the matter remanded to the
Sixth Circuit Court of Appeals for reconsideration in light of
Solid Waste.
Respectfully Submitted,
/s/
Thomas V. Wilhelm (P29436)
Counsel of Record
2636 Dixie Highway
Waterford, MI 48328
(248) 618-7280
Counsel for Petitioner
15
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 98-2424; 99-1074/1578
UNITED STATES OF AMERICA,
Plaintiff-Appellee/
Cross-Appellant (99-1074),
V.
JOHN A. RAPANOS,
Defendant-Appellant
(98-2424; 99-1578)/
Cross-Appellee. —
|
|
Appeal from the United States District Court
for the Eastern District of Michigan at Bay Cit
No. 93-20023—Lawrence P. Zatkoff, Chief District Judge.
Argued: October 24, 2000
Decided and Filed: December 15, 2000
la
Court of Appeals Opinion - 12/15/00 -
Before: MARTIN, Chief Judge; NORRIS, Circuit Judge;
FORESTER, District Judge.”
OPINION
BOYCE F. MARTIN, JR., Chief Judge. John A.
Rapanos appeals the district court's denial of his 1999 motion
for new trial as well as his 1995 conviction for filling
wetlands in violation of 33 U.S.C. § 1311(a). The United
States cross-appeals Rapanos's sentence of three years'
probation and a $185,100 fine and assessment. For the
following reasons, we AFFIRM the denial of Rapanos's 1999
motion for new trial, AFFIRM his conviction, and REMAND
with specific instructions for resentencing.
The facts of this case were set forth tn detail by this
Court in United States v. Rapanos, 115 F.3d 367 (6th Cir.
1997), and need not be restated here. On appeal, Rapanos
challenges his conviction, claiming errors in the jury
instructions, prosecutorial misconduct, and insufficiency of
the evidence. Rapanos also appeals the district court's denial
of his 1999 motion for new t 1al. We have reviewed each of
these claims and find that the district court did not err.
* The Honorable Karl S. Forester, United States District
Judge for the Eastern District of Kentucky, sitting by designation.
2a 4
Court of Appeals Opinion - 12/15/00
II.
The government appeals Rapanos's sentence on three
grounds: 1) that the district court improperly granted Rapanos
two one-level downward departures; 2) that the district court
improperly granted Rapanos a two-level decrease for
acceptance of responsibility; and 3) that the district court
erred in not enhancing Rapanos's sentence for obstruction of
justice. We conclude that the district court erred in granting
Rapanos two one-level downward departures and a two-level
decrease for acceptance of responsibility. The district court
did not err in not enhancing Rapanos's sentence for
obstruction of justice.
A.
The district court granted Rapanos a two-level
downward departure under § 2Q1.3(b)(1)(A) of the U.S.
Sentencing Guidelines Manual (1994), which addresses "an
ongoing, continuous, or repetitive discharge, release, or
emission of a pollutant into the environment." The district
court also granted a two-level downward departure under
§ 2Q1.3(b)(4), which involves discharges "without a permit
or in violation of a permit." The district court went beyond
these two two-level downward departures and added a
separate one-level downward departure under each provision,
reasoning,
[T]hese guidelines are geared toward
the discharge of harmful pollutants that result
in actual contamination. In this case, the
pollutant, in quotes, was sand that was moved
from one end of a piece of property owned by
3a
Court of Appeals Opinion - 12/15/00
the defendant to another end of the property
owned by the defendant. It was not any toxic
discharge, there were no pesticides, no nuclear
material, no sewage, no paint, lead or other
harmful things, just sand and soil that was
already on this private property.
In addition, the Court finds that there
was little harm or risk. It's not like you're
filling a flowing river or stream with
contaminants or poison.
We review a district court's decision to depart from
the Sentencing Guidelines for an abuse of discretion. See
Koon v. United States, 518 U.S. 81, 91 (1996). According to
18 U.S.C. § 3553(b) (2000), a sentencing court should
impose a sentence prescribed by the guidelines "unless the
court finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described." A district court abuses its
discretion when it takes into account a factor already
considered by the Commission in the guidelines. See Koon,
518 U.S. at 111. If a factor is not mentioned in the
guidelines, the district court should consider "whether it is
sufficient to take the case out of the guideline's heartland." /d.
at 96. The Commission has stated that "such cases will be
highly infrequent." U.S. Sentencing Guidelines Manual ch. 1,
pt. A, p. 6 (1994).
In the present case, the factors relied upon by the
district court in its downward departures were adequately
considered by the Commission in the guidelines. The
4a
Court of Appeals Opinion - 12/15/00
guidelines provide for different types of pollutants by
considering them under two different sections; Section 2Q1.2
deals with hazardous or toxic substances and pesticides and
provides a higher base offense level than does § 2Q1.3, which
addresses "other environmental pollutants" and under which
Rapanos was sentenced. Both of the district court's two-level
downward departures also considered the nature of the
pollutant and the risk involved. The district court granted a
two-level downward departure under Application Note 4,
which provides for a two-level departure in either direction
"[d]epending upon the harm resulting from the . . . discharge,
the quantity and nature of the substance or pollutant, the
duration of the offense and the risk associated with the
violation." The district court's second two-level downward
departure came from Application Note 7, which also grants
a two-level departure in either direction "depending upon the
nature and quantity of the substance involved and the risk
associated with the offense." The district court's stated
concerns about the type of pollutant and the risk involved
were thus considered in three different provisions of the
guidelines, all of which the district court applied before
granting the additional downward departures.
The district court provided no indication of any factors
that would carry this case outside the "heartland" of
environmental crimes not involving toxics, hazardous wastes,
or pesticides. In fact, the district court's downward departure
seemed based primarily on a fundamental disagreement w.ch
the sentencing guidelines pertaining to environmental
criminals, as the district court made clear in announcing its
final decision that Rapanos would receive no jail time:
5a
Court of Appeals Opinion - 12/15/00
I don't know if it's just a coincidence
that the case that I just sentenced prior to this
case has come into this court, that was the case
of Mr. Gonzalez, who was a person selling
dope on the streets of the United States. He is
an illegal person here. He's a citizen of Cuba,
not an American citizen. He has a prior
criminal record. . . .
So here we have a person who comes
to the United States and commits crimes of
selling dope and the government asks me to
put him in prison for ten months. And then we
have an American citizen who buys land, pays
for it with his own money, and he moves some
sand from one end to the other and
government wants me to give him sixty-three
months in prison. Now, if that isn't our system
gone crazy, I don't know what is. And I am
not going to do it.
A fundamental disagreement with the law and an
inappropriate comparison to a wholly unrelated case are not
permissible factors to consider in granting downward
departures not provided for by the guidelines. The
Commentary to § 5K2.0, which addresses grounds for
departure from the guidelines, states, "[D]issatisfaction with
the available sentencing range or a preference for a different
sentence than that authorized by the guidelines is not an
appropriate basis for a sentence outside the applicable
guideline range." While we affirm the two two-level
downward departures under Application Notes 4 and 7, the
district court's grant of two additional one-level downward
departures in this case was an abuse of discretion.
6a
Court of Appeals Opinion - 12/15/00
B.
The district court also granted Rapanos a two-level
acceptance of responsibility decrease pursuant to an exception
to § 3E1.1 found in Application Note 2 of the Commentary:
"In rare situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct even
though he exercises his constitutional right to a trial. This
may occur, for example, where a defendant goes to trial to
assert and preserve issues that do not relate to factual guilt."
The district court justified its decrease in its sentencing
memo: "Although the Defendant put the Government to its
burden of proof at trial, it was not because he denied the
factual element of his guilt, i.e. altering the land, but, rather,
he challenged whether the land qualifies as wetlands, i.e. the
applicability of the statute to his conduct." A district court's
determination of whether a defendant has accepted
responsibility is a factual matter, and we will not disturb it
unless it is clearly erroneous. United States v. Williams, 940
F.2d 176, 181 (6th Cir. 1991).
While Rapanos did primarily challenge the
applicability of the statute to his conduct, Application Note 2
goes on to state, "In each such instance, however, a
determination that a defendant has accepted responsibility will
be based primarily upon pre-trial statements and conduct."
Rapanos's statements and conduct before trial certainly did
not "clearly demonstrate[] acceptance of responsibility." For
example, Rapanos fired a consultant after the consultant found
nearly fifty acres of wetlands on the property, ignored cease
and desist orders from both the Michigan Department of
Natural Resources and the Environmental Protection Agency,
never completed a permit application, and refused to provide
Ta
Court of Appeals Opinion - 12/15/00
requested financial information to the probation officer
conducting the presentence report.
Furthermore, Application Note 1 of the Commentary
to § 3E1.1 (1994) lists eight appropriate considerations for
determining whether a defendant qualifies for an acceptance
of responsibility decrease. Rapanos has met none of these
eight factors. Simply because Rapanos put the government to
its burden of proof on the applicability of the statute to his
conduct rather than on the facts themselves does not mean he
automatically receives an acceptance of responsibility
reduction. "To qualify for this reduction, the defendant bears
the burden of showing by a preponderance of the evidence
that he . . . has accepted responsibility for the crime
committed." Williams, 940 F.2d at 181. Rapanos cites no
examples of his acceptance of responsibility, and neither does
the district court. Because of the lack of proof that Rapanos
"clearly demonstrated acceptance of responsibility," the
district court's grant of an acceptance of responsibility
sentence reduction constituted clear error.
..
On cross-appeal, the government argues that Rapanos
should have received a two-level enhancement for obstruction
of justice under § 3C1.1 of the guidelines. Our standard for
reviewing a district court's application of § 3C1.1 is set forth
in United States v. McDonald, 165 F.3d 1032 (6th Cir. 1999),
We apply the following three-step review: 1) we review a
district court's findings of fact under a clearly erroneous
standard; 2) because it is a mixed question of law and fact, we
review de novo a district court's determination of whether the
facts constitute an obstruction of justice; and 3) if obstruction
8a
Court of Appeals Opinion - 12/15/00
ss. eotaee |
of justice is*féund, the enhancement must be applied. /d. at
1034. We have reviewed the district court's findings of fact
and find no clear error. Because the record was unclear on
some relevant facts, we agree with the district court's
application. of law to fact and conclude that its refusal to
enhance Rapanos's sentence for obstruction of justice was not
an error.
If.
We therefore REMAND for resentencing with the
following specific instructions: the sentence calculation found
at pages 19-20 of the district court's April 13, 1998,
memorandum and order is correct except for the two-level
reduction for acceptance of responsibility. The two one-level
decreases granted orally that do not appear in the sentencing
memorandum were error and should not be included in
Rapanos's sentence on remand. We therefore affirm a total
offense level of 12. We also AFFIRM Rapanos's conviction
and AFFIRM the district court's denial of his 1999 motion for
new trial.
9a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
{December 15, 2000]
Nos. 98-2424; 99-1074; 99-1578
UNITED STATES OF AMERICA,
Plaintiff-Appellee/
Cross-Appellant (99-1074),
¥.
JOHN A. RAPANOS,
Defendant-Appellant
(98-2424; 99-1578)/
)
)
)
)
)
)
)
)
)
Cross-Appellee. )
)
Before: MARTIN, Chief Judge; NORRIS, Circuit Judge;
FORESTER, District Judge.
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
10a
IN CONSIDERATION WHEREOF, it is ORDERED
that the denial of defendant John Rapano’s 1999 Motion for
new trial and Rapano’s conviction are AFFIRMED. IT IS
FURTHER ORDERED that the case is REMANDED for
resentencing in accordance with the opinion of this court.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
lla
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
[Filed May 1, 1995]
CRIM NO. 93-20023-DT
UNITED STATES OF AMERICA,
Plaintiff,
ws
D-1 JOHN A. RAPANOS,
Defendant.
i i A A a
HON. LAWRENCE P. ZATKOFF
GOVERNMENT’S RESPONSE, AND BRIEF IN
SUPPORT TO DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL AND NEW TRIAL
NOW COMES the United States, by and through its
attorneys, Saul A. Green, United States Attorney, and Janet
L. Parker, and Terrence G. Berg, Assistant United States
Attorneys, and hereby submits this response to defendant's
motion for judgment of acquittal and for new trial, and, in
support there of, states the following.
12a
Government’s Response & Brief in Support - 5/1/95
I. Applicable Legal Standards
Defendant's motion for judgment of acquittal, pursuant
to Fed. R. Crim. P. 29(c), must be denied because, viewing
the proof in the light most favorable to the government, the
evidence submitted at trial in support of Counts 1 and 4 of the
indictment was sufficient to allow a rational jury to conclude
that the defendant was guilty beyond a reasonable doubt on
each count. See United States v. Gorman, 807 F.2d 1299 (6th
Cir. 1989), cert. denied, 484 U.S. 815 (1987). As the Sixth
Circuit recently indicated in United States v. Hernandez, 31
F.3d 354, 358 (6th Cir. 1994):
* * * OK *
[page 17]
. relevant by Counts 1 and 4. Therefore, when all the
evidence presented in this lengthy and arduous trial was
before the jury, that jury could and did reasonably conclude
that the charges in Counts | and 4 had been proven beyond a
reasonable doubt.
III. | Legal Issues: Response to Defendant's
Arguments IV, VI, VII, VIII, IX, and X
A. Interstate Commerce: Defendant's IV
and IX
Defendant makes several related arguments that arise
out of the federal definition of "waters of the United States,"
which includes waterways and wetlands the destruction of
13a
Government’s Response & Brief in Support - 5/1/95
which could affect interstate or foreign commerce, and
wetlands "adjacent" to such waterways. The term "waters of
the United States," is defined to include wetlands under the
relevant federal regulations issued by the U.S. Department of
the Army Corps of Engineers and the U.S. EPA. These
regulations are found at 33 CFR § 328.3 (Corps.of Engineers
regulations), and 40 CFR § 230.3(s) (U.S. EPA regulations),
and contain identical definitions of the terms "waters of the
United States," and "wetlands."
The term "waters of the United States" is defined as
follows:
(a) The term "waters of the United States" means. . .
(3) All other waters such as intrastate
lakes, rivers, streams, ... wetlands
, the use, degradation, or
destruction of which could affect
interstate or foreign commerce
including any such waters:
(ii) from which fish or shell
fish are or could be taken and
sold in interstate or foreign
commerce;
(7) Wetlands adjacent to waters (other
that waters that are themselves
wetlands) identified in paragraphs
(s) (1) through (6) of this section.
l4a
Government’s Response & Brief in Support - 5/1/95
40 C.F.R. § 230.3(s); 33 C.F.R. § 328.3(a).
Defendant argues that evidence was insufficient to
allow a rational juror to conclude that the wetlands located on
the defendant's property fell within the definition of "waters
of the United States," as defined above.-Defendant suggests
that the government failed to meet this definition because it
failed to prove that the wetlands filling activity® on
defendant's property had an effect on the commercial carp
harvest in Saginaw Bay, or some other quantifiable "effect"
on interstate commerce. Defendant's contention apparently
flows from a misunderstanding of the regulatory definition of
"waters of the United States."
Under the regulatory definition, there are three ways
that a wetland could qualify as a "water of the United States."
First, the wetland could be of such a character that its use,
degradation or destruction "could affect interstate or foreign
commerce." Both Dr. Glenn Goff and DNR official Steven
Sadewasser testified that the destruction of the wetlands on
defendant’s property would in fact affect the ecology of the
connected intrastate and interstate waterways, such as
Hoppler Creek, Lobodzinski Drain, the Kawkawlin River,
and Saginaw Bay. A rational juror could clearly credit this
testimony and conclude that the wetlands on defendant's
property were “waters of the United States.”
The second way a wetland could qualify as a “water
of the United States” is if it were "waters from which fish or
° Defendant refers to this filling activity as "the movement
of inert soils on the Salzburg parcel."
15a
Government’s Response & Brief in Support - 5/1/95
shell fish are or could be sold in interstate or foreign
commerce.” DNR official Hal Harrington testified to seeing
a carp spawning in the Hoppler drain bordering defendant’s
property. Commercial fisherman William Beardsley testified
that carp are known to swim as far inland as they can get in
order to spawn, and he further testified that he harvests carp
from the Saginaw Bay (part of Lake Huron) and sells them to
customers in New York state. A rational juror could well
conclude that carp which spawn in the Hoppler Creek
bordering defendant’s property were caught by commercial
fisherman in Saginaw Bay and sold in interstate commerce.
The jurors could also rationally conclude that the degradation
or destruction of the wetlands on the site could contribute to
an aggregate adverse effect on the waters of the United States
and the commerce occurring in relation to those waters. The
destruction of spawning grounds for fish destined for
interstate commerce is just one possible consequence of the
defendant’s activities.
The third way that a wetland meets the definition as a
"water of the United States" is if it is "adjacent" to another
"water of the United States," such as any lake, river, or
stream the destruction of which could affect interstate or
foreign commerce, or from which fish could be taken and
sold in interstate commerce. DNR official Hal Harrington
personally followed the flow of water from the Lobodzinski
drain and Hoppler drain, which intersect and border
defendant’s property and which carry water away from the
property, to the Hoppler Creek, to the Kawkawlin River, to
the Saginaw Bay (where Mr. Beardsley fishes for carp to sell
to New York). U.S. Geological Survey maps were also
admitted into evidence showing the direct, uninterrupted
water connection between defendant’s property and Saginaw
16a
Government’s Response & Brief in Support - 5/1/95
Bay. A rational juror could easily conclude that the wetlands
on defendant's property were “adjacent” to other waters the
destruction of which would or could affect interstate
commerce.
The term “adjacent” is defined under the federal
regulations as “bordering, contiguous, or neighboring.” The
definition further states that “Wetlands separated from other
waters of the United States by man-made dikes or barriers,
natural river berms, beach dunes and the like are adjacent
wetlands.” 40 C.F.R. § 230.3(b); 33 C.F.R. § 328.3(c).
Therefore, a wetland which does not itself directly affect
interstate commerce, still falls squarely within the definition
of “waters of the United States” if it is bordering, contiguous
or neighboring to another water, such as a creek or river,
which does affect interstate commerce.
Evidence was presented as to each of these three
definitional elements, although proof as to any one of the
three would have been sufficient to show that the definition
was met.
The Third Circuit recently has rejected arguments
similar to those advanced by defendant, in United States v.
Pozsgai, 999 F.2d 719, 730-31 (3d Cir. 1993). Where
evidence at trial had been submitted showing that the wetlands
on the defendant’s property were intersected by a stream
which was a tributary of the Pennsylvania Canal, which
flowed into the Delaware River, the district court's conclusion
that the wetland was adjacent to "waters of the United States"
was affirmed. Id. The Pozsgai court found that the evidence
was aS persuasive as that found to be adequate in similar
cases. E.g. Quivera Mining Co. v. United States EPA, 765
17a
Government's Response & Brief in Support - 5/1/95
F.2d 126, 130 (10th Cir. 1985) (non-navigable creeks and
"arroyos" affect interstate commerce because during times of
"intense rainfall" there could be a surface connection between
these waterways and navigable streams), cert. denied, 474
U.S. 1055, 106 S.Ct. 791 (1986); United States v. Ashland
Oil and Transportation Co., 504 F.2d 1317, 1329 (6th Cir.
1974) (Act constitutionally applies to discharge of oil into
non-navigable tributary three waterways removed from
navigable river).
In Pozsgai, the Third Circuit also considered and
firmly rejected arguments similar to the defendant's regarding
the constitutionality of the "waters of the United States"
definition under the Commerce Clause. The Third Circuit
Court of Appeals specifically rejected the notion, argued by
defendant, that the Commerce Clause requires some showing
that the defendant's activity had some individualized effect on
interstate commerce in order for the law to apply. The Court
explained:
Under the [Clean Water] Act, the Corps,
acting under its statutorily delegated authority
to establish the permit program, 33 U.S.C.
§ 1344, has determined that wetlands which
are adjacent to tributaries of waters usable or
formerly used in interstate commerce
themselves affect interstate commerce.
18a
Government's Response & Brief in Support - 5/1/95
Poszgai, 999 F.2d at 733 (citing cases upholding the
regulation against constitutional attack on Commerce Clause
grounds).’
’ The defendant may attempt to rely on the Supreme
Court's recent decision in United States v. Lopez, U.S. __,
1995 WL 238424 (April 26, 1995). That decision does not support
the defendant's commerce clause claim for numerous reasons. First,
congressional authority to legislate regarding matters affecting the
waters of the United States is at the very core of the commerce
Clause of Article 1, section 8, of the Constitution. The need for
uniform federal regulation of interstate commerce, including the
waters of the United States, rather than having each of the newly
independent states impose conflicting regulations over such matters,
was one of the primary motivations for the creation of the
Constitution itself. Congressional regulation of matters relating to
waters of the United States does not therefore give rise to the
federalism concerns relating to federal interference with state
regulation of local schools which prompted Justices Kennedy and
O'Connor to concur in the results in Lopez. The concurrence of
those two justices was essential to the decision in that case.
Secondly, the facts of this case satisfy all three "categories of
activity that Congress may regulate under its commerce power,"
Le. (a) the regulation of “the use of the channels of interstate
commerce,” (b) the “regulat{ion}] and protect{ion of] the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities,” and the regulation of “activities having a
substantial relation to interstate commerce.” Lopez, 1995 WL
238424, p. 6. (Emphasis added). Though regulation under any one
of the three categories is legitimate, Rapanos refers only to the third
of these three categories. However, the Wickard v. Fillmore
concept that the “regulation[] of activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce[,]” is
19a
Government’s Response & Brief in Support - 5/1/95
Defendant is incorrect in asserting the requirement of
a showing that the defendant’s activity had some
individualized effect on interstate commerce.* The jury was
constitutional was re-affirmed in Lopez, id., p. 8. (Emphasis
added). For reasons stated in the main text of this section the
government submits that the aggregate effect of the destruction of
wetlands, such as that caused by Rapanos, satisfies even the third
category of permissible regulation by Congress under the commerce
clause. Finally, the concern expressed in Lopez that there were no
congressional findings to substantiate that the regulation of firearms
in local school zones was connected to commerce, and no rational
connection could be inferred by the plurality, is absent in this case.
Extensive legislative history supporting the enactment of the Clean
Water Act of 1977, found in 1977 U.S.C.A.N. 4326, includes the
following, “There is no question that the systematic destruction of
the Nation's wetlands is causing serious, permanent ecological
damage. The wetlands and bays, estuaries and deltas are the
Nation's most biologically active areas. They represent a principal
source of food supply. They are the spawning grounds for much of
the fish and shellfish which populate the oceans, and they are
passages for numerous upland game fish. They also provide nesting
areas for a myriad of species of birds and wildlife.” 1977
U.S.C.A.N. at 4336. See also the findings regarding wetlands in 40
C.F.R. §§230.1, 230.20-230.54. The rational basis for the
protection of wetlands pursuant to the commerce clause could be
inferred by anyone with a rudimentary knowledge of ecology but,
in this case, such inferences need not be drawn for the pertinent
findings have been made and are a matter of law.
® Defendant's reliance on Wickard v. Fillmore, 317 U.S.
111; 63 S.Ct. 82 (1942) continues to be misplaced. The Wickard
Case actually supports the government’s position, because, in that
case, the Supreme Court held that even a farmer who grew wheat
only for his own consumption could be subjected to federal
20a
Government’s Response & Brief in Support - 5/1/95
correctly instructed of the definition of “waters of the United
States.” The evidence submitted was sufficient to show that
the wetlands at issue met that definition, and consequently the
jurisdictional interstate nexus was established.°
Finally, defendant's argument concerning the
definition of "adjacent," previously raised at the time of jury
instructions, remains unsupported. There is no requirement in
the law that a wetland be adjacent to an "open body of
water." This Court considered defendant's argument on this
point at the time jury instructions and rejected it. Defendant
persists in resting upon dicta in a concurring opinion by Judge
Merritt in United States v. Larkins, 852 F.2d 189, 193 (6th
Cir. 1988), in which Judge Merritt wrote only to indicate that
the majority opinion did not decide the issue of whether there
was a requirement that the land be adjacent to an open body
production quotas regulation because, in the aggregate, such home
consumption could compete with wheat grown for sale, and
therefore would affect interstate commerce. That is the type of
effect that the Wickard court found to be “substantial” enough to
permit regulation under the Commerce Clause. Similarly, the
“waters of the United States" definition has been drafted to
encompass waters, the pollution of which, taken in the aggregate,
ould affect interstate commerce.
” Defendant also continues to rely upon a vacated decision
of the Seventh Circuit, Hoffman Homes, Inc. v. Administrator,
EPA, 961 F.2d 1311 (7th Cir. 1992), vacated, reh'g granted, 999
F.2d 256, 261 (7th Cir. 1993) (holding that connection to interstate
commerce may be “potential rather than actual, minimal rather than
substantial,” but concluding that EPA's administrative finding that
wetland "Area A" was a resting place for migratory birds was not
supported by substantial evidence).
2la
Government’s Response & Brief in Support - 5/1/95
of water. Judge Merritt's singular view on this issue is not
authoritative. The United States Supreme Court, in United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106
S.Ct. 455, 461 (1985), held proof sufficient to show
adjacency when the evidence was that the wetlands on the
defendant's property extended to other wetlands,which were
themselves connected to the Black Creek, a navigable
waterway. Under that holding, the evidence presented in this
case meets the test. The evidence showed that the wetlands on
defendant's property were connected to the Lobodzinski
Drain, which was connected to the Hoppler Creek, which was
connected to the Kawkawlin River, a navigable waterway
which is itself connected to an open body of water, Saginaw
Bay.'°
Defendant's reliance on the testimony of defense
witness Bruce Jones is unavailing. Mr. Jones failed to
measure the level of the water in the drains before he did his
drainage calculations. This critical error rendered his
calculation inaccurate, and the jury was entitled to disregard
it. Moreover, even if Mr. Jones' calculations had been
accurate, his conclusions could rationally have been rejected
by the jury because the government submitted proof that the
wetlands had in fact existed in areas adjacent to the drains on
defendant's property. Consequently, the jury reasonably could
have chosen, and did in fact choose, to credit the
'0 Defendant's arguments regarding groundwater are
inapplicable, because the government did not allege that the
hydrological connection was by way of groundwater. The proof was
that the connection was by way of surface waterways.
22a
Government’s Response & Brief in Support - 5/1/95
government's eye-witnesses, who had seen hydrophytic
plants, hydric soils, and standing water, adjacent to the
drains, instead of crediting Mr. Jones, who worked out a
mathematical calculation without first inspecting the property,
in order to prove that the wetlands adjacent to the drains did
not exist.
Where the regulations are unambiguous in defining the
term "adjacency," as well as "waters of the United States,"
this Court did not err in adopting the regulations’ verbatim
language in its jury instruction, in lieu of the defendant's
preferred gloss on...
a ia ik alee aa dae ae
23a
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
[Filed March 28, 1995]
File No. 93-CR- 20023-DT
UNITED STATES OF AMERICA,
Plaintiff,
¥.
D-1 JOHN A. RAPANOS,
Defendant.
Nee eee eee ee ee”
The Hon. Lawrence P. Zatkoff
DEFENDANT’S BRIEF IN SUPPORT OF MOTION
FOR DIRECTED VERDICT OF ACQUITTAL
AND NEW TRIAL
KK KK OX
[page 11]
. . . Rapanos admitted digging in September of 1991, were
already in existence at least by February, 1990, the date of
the Government drawing which is Exhibit 37.
24a
Def.’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
Further, Gerald Winn had testified on February 13,
1995 in re-cross examination, between 10:25 a.m. and 10:45
a.m., that he did not know if any material allegedly side cast
from the ditch on the north border of the Pinnow property
was side cast into wetlands, and further testified that the ditch
on the east side of the property was side cast onto the top of
sand. An examination of Gerald Winn's photos of October 23,
1991 (Exhibit 51.1) demonstrate that these allegedly new or
newly deepened ditches are in areas which are now crop land,
and not wetlands. Whether these areas are converted
wetlands, or whether these areas had never been wetlands, the
fact of the matter is that any side casting from these ditches in
September of 1991, was into non-wetland crop land.
It must also be noted that the ditch to the north of the
Pinnow property and a substantial -portion of all other ditches
described by Winn are outside of the 29 acres delineated as
wetlands by the MDNR. Further, there were no soil samples
taken in the vicinity of any of Winn's ditches to demonstrate
that any side casting had actually occurred and the vicinity of
these ditches.
Winn testified on February 13, 1995, between 9:00
a.m. and 9:40 a.m. that there was no problem clearing a ditch
if there was no side casting into adjacent wetlands. The
Government's proofs have failed to establish that at the time
any work was done on these ditches that there existed any
adjacent wetlands in which side casting could be placed.
There is a complete failure of the Government's proofs with
respect to Count 4 of the indictment.
25a
Def.’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
IV. THE GOVERNMENT FAILED TO ESTABLISH
ANY EVIDENCE SHOWING THAT ANY ACTIVITY
BY DEFENDANT HAD AN EFFECT ON
INTERSTATE COMMERCE
No evidence was introduced from which the jury could
find that the movement of inert soils on the Salzburg parcel
had any effect on the commercial carp harvest in Saginaw
Bay, or on any other aspect of interstate commerce.
The jury was instructed that an element of the offense
was "that the discharge was into waters of the United States".
The instructions defined "waters of the United States" as
follows:
. or wetlands, the use, degradation, or
destruction of which could affect interstate or
foreign commerce, including any such waters
from which fish or shell fish are or could be
taken and sold in interstate or foreign
commerce.
The definition of waters of the United States
also include tributaries of waters which I have
identified, and wetlands adjacent to waters of
the United States.
There was absolutely no evidence introduced from
which the jury could find that the degradation or destruction
of the wetlands alleged on the Rapanos property "could effect
interstate or foreign commerce". The sole testimony relating
to interstate commerce is the testimony of Mr. Beardsley, a
commercial fisherman, who testified that he harvested carp
26a
at pia
Def. ’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
from the Saginaw Bay and sold to out of state vendors. There
is no testimony whatsoever that the destruction of the
wetlands either “did” or “could” affect the nature of the carp
harvest in Saginaw Bay. In fact, Hal Harrington from the
DNR testified that after "destruction" of the alleged wetlands,
he observed carp spawning in the Hoppler ditch south of
US10 spawning.
Further, the alleged “fin” of a fish identified by Hal
Harrington as belonging to a carp, was located in the Hoppler
creek, and not in the "waters" on the Rapanos property which
were allegedly wetlands. Therefore, the Rapanos property
cannot be classified under 33 CFR Section 328.3(a)(3)(ii) as
waters from which fish could be taken and sold in interstate
commerce.
The carp connection of the Rapanos property to
interstate commerce is extremely tenuous and required the
jury to engage in speculation to find a connection to interstate
commerce. Basing a connection to interstate commerce on the
fin of a fish identified in a roadside ditch more than 10 miles
from Saginaw Bay is so tenuous that it must be called
speculative, and is insufficient to support any jury verdict of
- guilt beyond a reasonable doubt.
To the extent that the instruction defining "waters of
the United States", as drawn from 33 CFR _ Section
328.3(a)(3)(ii), allows the jury to find a substantial impact on
interstate commerce simply from the presence of carp in the
Hoppler ditch, without the showing of the necessary nexus
between the filling of the wetlands and in impact on intestate
commerce, the instruction invaded the province of the jury,
and allowed the jury to find the existence of waters of the
27a
Def.’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
United States, without being required to make the necessary
factual finding of an actual impact on interstate commerce
from the filling activity. The actual impact on interstate
commerce by any particular activity is a factual matter which
must be resolved by the jury. To the extent that the
instructions took this factual issue away from the jury, the
Defendant was denied his Sixth Amendment right to trial by
jury.
The commerce clause, U.S. Constitution Article I,
Section § clause 3 authorizes congressional regulation of
activities which effect interstate commerce. US v Rightwood,
315 US 110; 62 S Ct 523; 86 L Ed 726 (1946). An activity
may be reached by Congress "if it exerts a substantial
economic effect on interstate commerce" (emphasis added)
irrespective of whether the effect is considered direct or
indirect. Wickard v Filmore, 317 US 111; 63 S Ct 82; 87 L
Ed 122 (1942).
In US v Byrd, 609 F2d 1204 (CA 7, 1979) the court
found “the potential for exerting a substantial economic effect
on interstate commerce by an easily traced change of
causation.” (609 F2d, p1210) In the present case no evidence
was submitted to the jury to suggest that the movement of
inert soils on the land had any impact of any nature on the
commercial carp harvest in Saginaw Bay. The Seventh Circuit
Court in Hoffman Homes, Inc. v EPA, 961 F2d 1310 (CA
7, 1972), vacated 975 F2d 1554 (CA 7, 1992) held that "area
a" was not within the reach of the commerce clause:
In this cause however, the EPA has not even
attempted to construct a theory as to how
filling area a affects interstate commerce. And,
28a
Def.’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
no evidence on the record would support any
such theory. For example there is no evidence
that filling area a would affect navigation,
there is no evidence that filling area a would
pollute another open body of water used for
irrigation, fishing or recreational activities.
There is no evidence that interstate travelers
visited area a (and it is hard to imagine any
purpose for their doing so). (Slip Opinion
pp19-20)
Although vacated, the above Hoffman Homes analysis
of the breach of the commerce clause was adopted in
Michigan Protection and Advocacy Service, Inc. v Babin,
799 F2d 695 (ED Mich, 1992). In Babin the court stated:
The court interprets the phrase "substantial
effect" as having two interrelated parts. First
the regulated activity alone or in the aggregate,
must result in a significant quantity of
interstate transactions. * * * a second, the
regulated activity, alone or in the aggregate,
must have a direct causal nexus to interstate
commerce. It is not sufficient that the
regulated activity affects another activity
which, in turn, has a substantial interstate
commerce affect. Rather, the interstate affect
must be brought about directly by the
regulated activity. (799 F Supp, p790) See also
Sarin v Samaritan Health Center, 813 F2d
755 (CA 6, 1987), holding that denial of staff
privileges at a local hospital cannot have more
than de minimis effect on interstate commerce.
29a
-
Def.’s Brief in Supp. of Mot. for Directed Verdict - 3/28/95
Local activity may be reached by a congress if
it exerts a “substantial economic effect on
interstate commerce.” Wickard v Filmore,
supra 317 US, p124; 63 S Ct, p9. (emphasis
added)
The movement of inert soils on the Rapanos property,
which resulted a net loss of soils in the 29 acre delineated area
according to the testimony of Gerald Schaefer, has not been
shown to have any, much less a de minimis effect, on the
speculative carp in the Hoppler Creek. The activity of the
carp in the Hoppler Creek has but a speculative, or less than
de minimis, effect on interstate commerce on the Saginaw
Bay...
30a
APPENDIX E
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
[Filed July 27, 1994]
Criminal No. 93-CR- 20023-BC
UNITED STATES OF AMERICA,
Plaintiff,
D-1 JOHN A. RAPANOS,
)
)
)
Vv. )
)
)
Defendant. )
)
SUPERSEDING INDICTMENT
THE GRAND JURY CHARGES:
COUNT 1
(33 USC §1311(a), and 18 USC §2)
From approximately December of 1988, to at least
November of 1989, the precise times unknown to the grand
jury, in the Eastern District of Michigan, Northern Division,
JOHN A. RAPANOS, defendant herein, did knowingly
31a
District Court Superseding Indictment - 7/27/94
cause the discharge of pollutants as defined in 33 U.S.C.
section 1362(6) into waters of the United States, that is into
wetlands located in Williams Township, Bay County,
Michigan, without a permit issued under 33 U.S.C. section
1344, in violation of 33 U.S.C. section 1311(a) and 18
U.S.C. section 2.
COUNT 2
(18 USC §1512)
On or about April 13, 1989, in the Eastern District of
Michigan, Northern Division, JOHN A. RAPANOS,
defendant herein, did knowingly use intimidation and threats,
and did corruptly attempt to persuade Frederick Glenn Goff,
with intent to cause and induce Mr. Goff to withhold a
record, document or other object from an official proceeding
before a judge and court of the United States relating to a
possible violation of federal wetland laws contrary to 33
U.S.C. section 1311(a), that is Mr. Goff's report prepared for
John A. Rapanos regarding the wetland status of land in
Williams Township, Bay County, Michigan, all in violation
of 18 U.S.C. section 1512(b) (2) (A).
COUNT 3
(18 USC §1512)
On or about April 13, 1989, in the Eastern District of
Michigan, Northern Division, JOHN A. RAPANOS,
defendant herein, did knowingly use intimidation and threats,
and did corruptly attempt to persuade Frederick Glenn Goff
with intent to hinder, delay and prevent the communication by
Mr. Golf to a law enforcement officer of the commission and
possible commission of a federal offense, that is a possible
32a
District Court Superseding Indictment - 7/27/94
filling of wetlands in Williams Township, Bay County,
Michigan in violation of 33 U.S.C. section 1311(a), all in
violation of 18 U.S.C. section 1512 (b) (3) .
COUNT 4
(33 USC §1311(a), and 18 USC §2)
From approximately December of 19839, to at least late
October of 1991, the precise times unknown to the grand
jury, in the Eastern District of Michigan, Northern Division,
JOHN A. RAPANOS, defendant herein, did knowingly
cause the discharge of pollutants as defined in 33 U.S.C.
section 1362(6) into waters of the United States, that is into
wetlands located in Williams Township, Bay County,
Michigan, without a permit issued under 33 U.S.C. section
1344, in violation of 33 U.S.C. section 1311(a) and 18
U.S.C. section 2.
Dated: July 21, 1994 THIS IS A TRUE BILL
SAUL A GREEN /s/
United States Attorney Foreperson
By: /s/
Janet L. Parker (P34931)
Assistant U.S. Attorney
P.O. Box 217
Bay City, Michigan 48707
(517) 895-5712
District Court Superseding Indictment - 7/27/94
[Fold out]
34a
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gan. Red colors indicate plants with chlorophyll in their leaves. Blue/black signatures are often interpreted as indicative of wet-
lands. Note that most of the bare ground in fields and areas that are sparsely vegetated have the blue/black signature as do the
steep, sideslopes of the M 47 embankment that can not have wetland hydrology. Note also that the photograph was taken about
mid-morning since there are black shadows on the west side of tall trees which add to the blue/black signatures in the wooded por-
tion of the Site.
District Court Superseding Indictment - 7/27/94
[Fold out]
35a
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District Court Superseding Indictmem - 7/27/94
[Excerpted Transcript,of Court Proceedings; page 22]
.. . Charge.
You are not to consider counts 2 or 3 of the
Indictment, or the fact that they are no longer a part of the
Indictment or this case.
Counts 1 and 4 of the Indictment charge a
violation of Title 33 of the Clean Water Act as it was written
in 1989. That's the time of the alleged violation.
Section 1311 (A) of the Clean Water Act
provides in part that except as in compliance with Section
1344 of this Title, the discharge of any pollutant by any
person shall be unlawful. Section 1344 of the statute
establishes a permit system which regulates or which requires
any person who discharges dredged or fill materials in
navigable waters of the United States, to have a permit or to
come within one of the specified exemptions which I'll
explain to you later in these instructions.
So Count | and 4 of the Indictment charge the
defendant with knowingly discharging pollutants into wetlands
which are waters of the United States, without a permit, in
violation of federal law.
For you to find the defendant guilty of this
crime or crimes, you must be convinced that the government
has proved each and every one of the following elements
beyond a reasonable doubt.
36a
District Court Superseding Indictment - 7/27/94
First, that the defendant caused a discharge.
Second, that the discharge material was a pollutant as
described in the federal statute. Third, that the discharge was
from a point source as defined in the federal statute. Fourth,
that the discharge was into waters of the United States. Fifth,
that the discharge occurred between the dates of December
1988 and November 1989 as to Count 1, and between the
dates of December '89 and October '91, as to Count 4. Sixth,
that the defendant's actions were without a required permit.
And 7th, that the defendant knew at the time, the discharge of
pollutants was into wetlands, which were waters of the United
States.
If you are convinced that the government has
proved all of these elements as to Count 1 or Count 4, you
should say so by returning a guilty verdict as to the Count or
Counts which you find have been proven.
If you have a reasonable doubt about any one
of these elements, you must find the defendant not guilty on
the Count or Counts on which you so find.
I'm now going to instruct you as to the legal
definitions which apply to some of these elements. You
should understand that for the government to prove these
elements beyond a reasonable doubt, the proof must meet the
definitions I'm going to give you.
Okay. First we have exemptions. There are
certain exemptions where you don't need a permit. The
following are exemptions from the 404 permit requirements.
Firstly, the masatenance, but not construction of drainage
ditches, provided that the purpose of such ditch maintenance
37a
District Court Superseding Indictment - 7/27/94
was not to convert an area of waters of the U.S. into a use to
which it was not previously subject.
Second, normal farming and silvaculture,
which is tree farming, activities such as plowing, seeding,
cultivating, minor drainage and harvesting for the production
of food, fiber and forest products, provided that such
activities are part of an established or ongoing operation, and
that the activities are limited to physical means of cultivation
and harvesting.
In addition, minor drainage of waters in the
U.S. is limited to drainage within areas that are part of an
established farming or silvaculture operation. It does not
include drainage associated with the completed or gradual
conversion of a wetland into a non-wetland. Minor drainage
does not include the construction of any ditch which drains or
otherwise significantly modifies a stream, lake, swamp, bog
or other wetland or aquatic area constituting waters of the
United States.
Any discharge of dredged or fill materials into
the waters of the United States incidental to the construction
of any such structure or waterway requires a permit.
If you find that the defendant's activities are
exempt activities, you should find the defendant not guilty.
Okay. The term waters of the United States
includes waters such as lakes, rivers, streams, including
intermittent streams or wetlands. The use degradation or
destruction of, which could affect interstate or foreign
commerce, including any such water from which fish or
38a
District Court Superseding Indictment - 7/27/94
shellfish are or could be taken and sold in interstate or foreign
commerce.
The definition of waters of the United States
also includes tributaries of the waters that I've just identified,
and wetlands adjacent to waters of the United States.
The term, discharge of a pollutant, and the
term, discharge of pollutants, each mean any addition of any
pollutant into waters of the United States from any point
source.
The term, pollutant, is defined as dredged soil,
biological materials, rock and sand, discharged into waters.
The government is not required to prove that a specific
amount of a pollutant has been discharged, or that the alleged
discharge of pollutants caused any damage or harm to the
environment in order to establish the offense charged under
the Federal Clean Water Act.
The term, discharge, includes the discharge of
a pollutant and a discharge of pollutants. The term dredged
material means materials that is excavated or dredged from
waters of the United States. The term discharge of dredged
materials means any addition of dredged materials, including
any redeposit of dredged materials into waters of the United
States. The term includes any addition, including any
redeposit of dredged material, including excavated material,
into waters of the United States which is incidental to any
activity, including mechanized land clearing, ditching,
channeling and other excavation.
39a
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District Court Superseding Indictment - 7/27/94
The term fill material means any material used
for the primary purpose of replacing an aquatic area with dry
land, or of changing the bottom elevation of any water body.
The term discharge of fill materials means the addition of fill
materials into waters of the United States.
The term point source means any discernible
confined and discreet conveyance, including but not limited
to any container or rolling stock. You're instructed that the
term point source may include equipment and machinery such
as bulldozers, earth graders, excavators and dump trucks.
The term wetlands means those areas that are
inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under
normal circumstances does support, a prevalence of
vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes,
bogs and similar areas.
The term prevalent vegetation refers to the
plant community or communities that occur in an area during
a given period. The prevalent vegetation is characterized by
the dominant species that comprise the plant community. The
term dominant species refers to a plant species that exerts a
controlling influence on or defines the character of a
community.
In order to establish the sixth element of the
offense, that is the absence of a required permit, the
government must show that the defendant did not have at the
time of the alleged filling, a written permit issued by the State
of Michigan, Department of Natural Resources, to discharge
40a
District Court Superseding Indictment - 7/27/94
pollutants, including dredged or fill material, into waters of
the United States.
The term adjacent means bordering, contiguous
or neighboring. Wetlands separated from other waters of the
United States by manmade dikes or barriers, natural river
berms, beach dunes and the like, are adjacent wetlands.
Actual knowledge must be proven beyond a
reasonable doubt. In determining whether the defendant acted
knowingly, you should consider all of the information that
was available to him. Knowledge involves a person's state of
mind. This requirement applies to all of the elements of
Counts | and 4.
Whether the defendant acted knowingly may be
proven by the defendant's conduct and by all the facts and
circumstances surrounding this case.
Interstate or foreign commerce means traffic
between states or countries. Interstate or foreign commerce
occurs when something of value crosses a state or country
line.
You've heard the defendant testify in this case.
Earlier I talked to you about the credibility or believability of
other witnesses, and | suggested some things for you to
consider in evaluating each witness’ testimony. You should
consider those same things in evaluating the defendant's
testimony.
The punishment provided by law for the
offenses charged in the Indictment is a matter exclusively
4la
District Court Superseding Indictment - 7/27/94
within the province of the Court, and should not be
considered by the jury in any way in arriving at an impartial
verdict as to the guilt or innocence of the accused. Upon
retiring to the jury room, you should select one of your
number to act as your foreperson. Your foreperson will
preside over your deliberations and be your spokesperson
here in Court.
Your verdict must represent the considered
judgment of each juror. In order to return a verdict in this
case, it's necessary that 12 out of 12 jurors agree, insother
words, your verdict must be unanimous.
It's your duty as jurors to consult with one
another and deliberate with the view to reaching an
agreement, if you can do so without doing violence to your
own individual .. .
kK K
[page 34]
THE COURT: Any objection to that?
MR. BERG: No objection.
MR. HAYWOOD: No objection.
THE COURT: Let's just change it in ink.
MR. WILDEBOER: May it please the Court, I think
you already are preserving -- we'd like to preserve our
objection and object again to certain re-instructions, 13 D.
42a
District Court Superseding Indictment - 7/27/94
concerning the permit, 14 D. concerning interstate commerce,
15 D. concerning adjacency, and we'd also like to renew our
objection to the definitions of the exemptions given, and not
federal exemptions, state exemptions.
MR. BERG: Just briefly for the record, as to the
exemptions given, I think the record should reflect that the
Court has been advised in the government's brief that
essentially state exemptions are narrower and not broader than
the federal exemptions. I've been advised by the Michigan
State Attorney Generals’ office to that effect.
In addition, I have a document I intend to file
with the Court, state -- side by side analysis of the federal and
the State Clean Water Act Provision, the Wetland Protection
Provision which includes an analysis of the exemptions itself,
which was submitted to the EPA and allowed the EPA to
approve Michigan.
It indicates in that side by side analysis, as
well, that the exemptions of Michigan law are the same or
Stricter than the federal law. So the defendant is not
prejudiced in any way, and the Court's ruling on that is
entirely correct.
THE COURT: I've already ruled on it, so I don't
think it's necessary to put anything on the record. The record
is preserved and perhaps some other Court will review that,
but I'm not reviewing it.
MR. HAYWOOD: Our purpose, Your Honor, was
only to, in effect to preserve that for further argument. We
obviously don't necessarily agree with counsel.
43a
Ren a
;
PE PRE ney
District Court Superseding Indictment - 7/27/94
THE COURT: Anything further anybody wishes to
place on the record with respect to the instructions that were
just given to the jury?
MR. HAYWOOD: Nothing further by defense, Your
Honor.
MR. BERG: The Court's aware of the government's
concern about that one instruction, Your Honor, and I think
the Court's ruling is clear. That was the seventh element.
THE COURT: All right. Then I'm going to order that
-- do we have a looseleaf for that, for the instructions?
THE CLERK: A binder.
THE COURT: We're going to put these instructions
into a looseleaf binder, take those into the jury, and I'm going
to have Mr. Delacort take in all these exhibits.
What we're going to do is stand in recess until we hear
from the jurors. It's my practice when I receive a note, . . .
44a
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.