Petition for Writ of Certiorari — Pozsgai v. United States

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Supreme Court of the United States

October Term, 1989

No.

JOHN POZSGAI,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DANIEL J. POPEO

PAUL D. KAMENAR

(Counsel of Record)

Washington Legal Foundation

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

May 9, 1990

ASILLAS PRESS INC 1717 K STREET NW WASHINGTON DC 20036 223-1221

QUESTIONS PRESENTED

In 1988, Petitioner was indicted and convicted on

40 counts for violating the Clean Water Act, 33 U.S.C.

§§ 1311, 1319(c)(2)(A) for placing topsoil and clean fill

on 5 acres of his own property which the government

claimed was a “water of the United States."

Despite the fact that Petitioner had no criminal

history and there was no finding of any harm to water

quality or wildlife, he was sentenced to prison for three

years for the pre-Guideline counts, 27 months for the

post-Guideline counts and fined $200,000. This was the

longest sentence and the largest fine in the history of

the United States imposed on an individual for any

environmental crime. The fine represents over 1,000

percent of Petitioner’s gross annual income. The

questions presented are:

1. Whether petitioner’s Fifth Amendment right to due

process was violated when no evidence was

introduced to prove beyond a reasonable doubt that

his property was a “water of the United States" as

defined by 33 C.F.R. § 328.3(a).

2. Whether placing “earth” on other earth constitutes a

discharge of a "pollutant" “into water" under the

Clean Water Act.

3. Whether Section 2Q1.2 of the U.S. Sentencing

Guidelines is invalid because it was promulgated in

violation of the Sentencing Reform Act, or

otherwise was applied to Petitioner in violation of

law.

4. Whether the sentence imposed violates the Exces-

sive Fines Clause of the Eighth Amendment.

TABLE OF CONTENTS

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED .....

pimemmervs OF THE CASE .............

REASONS FOR GRANTING THE PETITION

I. THE PETITIONER’S RIGHT TO DUE

PROCESS WAS VIOLATED WHEN THE

GOVERNMENT FAILED TO INTRODUCE

EVIDENCE AND PROVE THAT PETITION-

ER’S PROPERTY CONSTITUTED "WATERS

OF THE UNITED STATES," AS DEFINED

oe ee Gea PO 2. 2. we ee eee

Il. THE GOVERNMENT DID NOT PROVE

THAT PETITIONER DISCHARGED

"POLLUTANTS" "INTO WATER" AS

DEFINED IN 33 U'S.C. § 1362(6) ........

Il. SECTION 2Q1.3 OF THE SENTENCING

GUIDELINES IS UNLAWFUL AS PROMUL-

GATED OR AS APPLIED IN THIS

I ee iid of ks eK 6 5 «ioe ee 8

IV. THE SENTENCE VIOLATES THE

EXCESSIVE FINES CLAUSE OF THE

Eigretes AMENDMENT .............-.-

TABLE OF AUTHORITIES

Page

Cases:

American Tobacco Co. v. Patterson, 456 U.S.

Sy I Sa oh 4a oa eee ea 19

Amoco Production Co. v. Village of Gambell, Alaska,

our D0. SO CIMT) www ec tee 20

Browning-Ferris Industries v. Kelco Disposal, Inc.,

IGP Ble SPCR CIPRF) . ww ce ee ee 29

Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984) ... 27

Dunn yv. United States, 442 U.S. 100 (1979) ..... 20

Environmental Defense Fund, Inc. v. EPA,

No. 88-1882, 1990 U.S. App. LEXIS 2796

(Ene, Ge eee OD, PUD sn cece ek eee. 27

FEC v. Democratic Senatorial Campaign Committee,

PP Was Oe WUE ss oc se bees ven 27

Glasser v. United States, 315 U.S. 60 (1942) .... 12

Government of Virgin Islands v. Williams, 739

ae Wee Oe es Dg vc we wk oe iw 17

In Re Winship, 397 U.S. 358, 364 (1970) ....... 12

Jackson v. Virginia, 443 U.S. 307 (1979) ..... 12, 15

Mistretta v. United States, 109 S.Ct. 649 (1989)... 10

Public Employees Retirement System of Ohio v. Betts,

ee RS ee are 21

Riverside Irrigation District v. Andrews, 758 F.2d 508

SPI arth. or ig bic cus ae obs 4

Tabb Lakes, Ltd. v. United States, No. 89-2905

(4th Ce. Sept. 19, 1909)... ... 1. we 21

TVA v. Hill, 437 U.S. 153 (1978) ......000... 19

United States v. Bogas, CR88-282 (N.D. Ohio,

Feb. 13, 1990), appeal by gov't dism'd,

No. 90-3228 (6th Cir. Apri! 13, 1990) ...... 22

United States v. Braverman, 373 U.S. 405 (1963) .. 20

iii

United States v. Busher, 817 F.2d 1409 (9th

ee ED os Sa see ance ataratetel ee Ga es 30

United States v. Commodore Club, Inc., 418

F, Supp. 311 (E.D. Mich. 1976) .......... 17

United States v. Enmons, 410 U.S. 396 (1973) .. i9, 20

United States v. Fisher, CR 89-234 (D. Ore.

I wig Gs Sy rg nae ca aig 24

United States v. GAF Corporation, 389 F. Supp.

ky, eo ee. yee eee a ae ay a ee 19

United States v. Jannotti, 673 F.2d 578

eG SD kb co oe eee te ee 17

United States v. Kelly, 888 F.2d 732

4) fe Pere ee re ee 15

United States v. Lee, 887 F.2d 888 (8th

Ce. Ss diss 6 44 2 he we ee ee 26

United States v. Locke, 471 U.S. 84 (1985) ...... 20

United States v. Marathon Development Corp.,

ge eg i oe en re 26

United States v. Marolda, 648 F.2d 623

Co Ce, TU ov 5 oe ee ee te 15

United States v. Mills, No. 88-03100-01/WEA

(N.D. Fla. 1989), appeal pending

oto Ye Be f+.) Seer a ee 22

United States v. Moore, 613 F.2d 1029

(D.C. Cir. 1979), cert. denied,

446 US. G54 (ISSO) 2. bc ce eee 20, 21

United States v. Standard Brewery, 251 U.S.

See Ce ss ea a eee eee eee ee eee 20

United States v. Van Fossan, 1990 U.S. App.

LEXIS 5247 (7th Cir. Apr. 9, 1990) ....... 25

Statutes:

Alternative Fines Act

Bk Cod Bs errr err ert are 29

Clean Water Act

GP Tie Bt) ee” passim

Sentencing Reform Act

a eee OOO: i aS ee ee ee 25

(gO A Fre ere ear a 2

i EE cs ss 6 eo 4 he eS 2

EEE yc 5 bs ww 5 eo a Ore ols oe Ole es 5

I MS 6 alga gaa Gg ya ea erate ae 5

PE TEE gg yg os Sig bb ace GOK pe ole ee 5

EE OTR 70 0a sa g"9 ccs oe are ew ee 2

Code of Federal Regulations:

POOR 6 Mie)... 5... eee wes 4,5

ee eS ns 19

SS eee ee passim

BS OPM. § 5905006)... ww. ee es 4

U.S. Sentencing Guidelines:

EN a5 Ws ko 4. he we 09: SE ee 28

65-5. & te eo OS © & & OE 28

ENS 5: 26-5. 4's v4 4. <4 ay % 0 eG RR 28

ES ay ee 0 4 A Se ee 4 oR EO 28

6 6 ee 4 4 6 eee OE RE 28

Sa eee passim

EE Ga paw 4 4 eH a sD ee passim

Miscellaneous:

Blackstone, Commentaries ................ 21

Breyer, The Federal Sentencing Guidelines

and the Key Compromises Upon Which

They Rest, 17 Hofstra L. Rev. 1, 50

ee os a ler Ver eae ee eee 26

EPA, Summary of Criminal Prosecutions

SE Se eke wie eine arate eee a ee 22

Federal Judicial Center Punishments Imposed

Gm Fem GAME cos i se ee es 25

2 Oxford English Dictionary (Compact Ed.

SEE 06'S Sova kb: eae ple es ee ree 18

8 rae he Pie ie rayne ayo 22, 26

U.S. Code Cong. & Admin. News 1984 at

A ee eee ene 22

U.S. Sentencing Commission Annual Report (1988) . 8

Webster's Seventh New Collegiate Dictionary .... . 16

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1989

No.

JOHN POZSGAI,

Petitioner

Vv.

THE UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, John Pozsgai, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit in this

case.

OPINIONS BELOW

The Judgment Order of the court of appeals

affirming Petitioner’s conviction and sentence was

issued on January 12, 1990 without any accompanying

opinion. and is listed at 897 F.2d 524 (3rd Cir.

1990)(App. la). The Judgment Including Sentence

Under the Sentencing Reform Act was entered on July

19, 1989 (App. 4a). The order of the district court

denying the Motion to Set Aside Verdict and to Enter

Judgment of Acquittal, entered on January 27, 1989,

was issued without any opinion (App. 14a).

JURISDICTION

The judgment of the court of appeals was entered

on January 12, 1990. A timely petition for rehearing

was denied on February 8, 1990 (App. 15a). The juris-

diction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. The Due Process Clause of the Fifth

Amendment provides: "No person shall be .. .

deprived of life, liberty, or property, without due

process of law... "

The Eighth Amendment provides: "Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted."

2. The Clean Water Act provisions, 33 U.S.C. §§

1311(a), 1319(c)(2), 1344(a),(e), 1362, and 33 C.F.R. §

328.3(a) are reproduced, infra, App. 17a-20a. The

Sentencing Reform Act provisions 28 U.S.C. §§ 991,

994(b)(1), (c), (f), Gj), (m), and 3553(a) are reproduced,

infra, App. 20a-23a.

3. United States Sentencing Guidelines §§ 2Q1.2

and 2Q1.3 are reproduced, infra, App. 25a.

STATEMENT OF THE CASE

Petitioner, a 57-year-old Hungarian emigre, is a

self-employed truck mechanic who works seven days a

week in a small garage behind his house in Morrisville,

Pennsylvania. Across the street from his home in

Morrisville (near Trenton, New Jersey) is a 14-acre lot,

which had been used for some 20 years as a dump site

for various types of old fill and junk, including auto

body parts, and thousands of old tires (R-84, 87, 139,

141).'. The property is zoned light industrial, and is

bordered on the north by Bridge Street, on the south by

a four-lane superhighway (U.S. Route 1), an auto

salvage yard on the west, and a tire dealership on the

east. (Appended are Govt. Exhibits 1 and 7, aerial

photographs of the property taken in 1985 and 1987,

App. 40a.) Petitioner saw the property not as a dump

site, but as an opportunity. By cleaning it up, removing

the old tires, and filling a portion of the property, he

could fulfill his dream of building a larger garage so

that he could expand his truck repair business from its

cramped quarters (R-85-86). The government saw the

matter differently.

The U.S. Army Corps of Engineers inspected the

property beginning in April 1987 and claimed that

because of the presence of such vegetation as "skunk

cabbage," a common weed, and "sweet gum trees," a

common tree endemic to the eastem third of the United

States, portions of the property contained "wetlands."”

' "R" refers to the Record Appendix below.

* The Corps determined that the petitioner's property was "above

the headwaters," meaning that he was eligible to fill up to 10-acres

of essentially isolated wetlands under the Corps’ Nationwide Permit

No. 26 because of the minimal impact such fill has on the environ-

(continued...)

The site is not a marsh, swamp, or bog, nor is it listed

on the National Wetland Inventory Map.

Petitioner believed that tires dumped in a tiny

stream that trickled along the edge of the property

caused part of the site to occasionally flood during

heavy rains, and that by removing the tires, the property

would drain properly.

Petitioner completed the purchase of the property in

June 1987 and continued the laborious process of clean-

ing up the property by removing the thousands of tires

and junk parts, and allowing top soil, earth, and clean

fill materials to be placed on a few acres of the upland

and "wetland" portion of the property along Bridge

Street. In the meantime, with the help of his daughter,

he sought the assistance of several engineers, who were

unable to complete the various permit forms. He did,

however, obtain a Bucks County soil erosion permit in

May 1988 and maintained a protective silt skirt fence

along the small stream (R-Add. H.)

On August 17, 1988, special agents of the

Environmental Protection Agency installed video surveil-

lance cameras across the street from the property. On

August 24, the government filed a civil suit and obtain-

ed an ex parte Temporary Restraining Order which they

served that evening on Petitioner. Although Petitioner

*(...continued )

ment. 33 U.S.C. § 1344e); 33 C.F.R. § 330.5¢a)(26) (R-159): see

Riverside Irrigation District v. Andrews, 758 F.2d 508, 511 (10th

Cir. 1985). If a person wants to take advantage of this 10-acre

exemption, “an application for a DA [Department of Army] permit

does not have to be made.") 33 C.F.R. § 320.1(c) (emphasis add-

ed). However, the Corps insisted that he fill one out and that a

Water Quality Certificate from Pennsylvania under 33 U.S.C. §

1341 was needed.

’

placed blockades around the property and traveled to

the Pennsylvania Department of Natural Resources in

Harrisburg, Pennsylvania to try to resolve the problem,

several trucks were in the next few days filmed entering

the property and discharging clean fill. No toxic or

hazardous waste was involved.

Before the completion of any civil contempt pro-

ceeding, Federal Agents came to Petitioner’s house on

September 12, 1988, placed him in handcuffs, and

booked him. On September 29, 1988, he was indicted

on 41 Counts of violating the Clean Water Act, 33

U.S.C. §§ 1311(a), 1319(c)(2)(A), by allowing topsoil,

earth, and similar clean, non-toxic fill to be placed onto

approximately 5 acres of his property without first ob-

taining an individual permit under 33 U.S.C. § 1344(a).’

This case was tried in the United States District

Court for the Eastern District of Pennsylvania, before a

jury, presided over by the Honorable Marvin Katz. The

jurisdiction of the district court was based on 28 U.S.C.

§§ 1331, 1345 and 1355. The prosecution presented

evidence that portions of the property technically consti-

tuted wetlands. There was no evidence that any wild-

life or fishery habitat was harmed, or that water quality

was impaired.

The defense expert contended that the property was

not a wetland, and that whatever wetland characteristics

that the property may have exhibited were attributable

to the damming effect of the tires in the stream, and

that once the tires were removed, the hydrology would

change and the property would drain properly and revert

The Corps never issued a formal cease and desist "order’’

under their own regulations, which would have specified what the

penaities could have been. See 33 C.F.R. § 326.3(c)1), (3).

to its upland condition. The trial took place from

December 27 through December 30, 1988.

At the close of the government’s case, the defense

moved for a directed verdict since the government fail-

ed to introduce any evidence that the stream was a

tributary of the Pennsylvania Canal or that the Canal

was or is used in interstate commerce. These key

jurisdictional elements of the offense were cited by the

prosecutor in his opening statement as “important in the

case." The court denied the motion from the bench

without stating any _ reasons. The jury convicted

Petitioner on all Counts.

On January 5, 1989, the defendant filed a Motion

to Set Aside the Verdict and Enter Judgment of Acquit-

tal, pursuant to Rule 29(c) of the Federal Rules of

Criminal Procedure. Petitioner renewed his jurisdic-

tional argument. The trial court denied the motion to

set aside the verdict by Order dated January 27, 1989

without stating any reasons (App. 14a).

Despite the fact that: 1) Petitioner had no criminal

history; 2) that the former dumpsite/'wetland" supported

no wildlife nor fishery habitat; 3) that nothing was

dumped or placed into the water of the adjacent stream

(indeed, at the sentencing, Petitioner submitted an

environmental assessment of the property prepared by

soil scientist Dr. Wendell Kirkham and not disputed by

the government that the tiny stream on Petitioner's

property runs clearer than it did before Petitioner bought

the property because of his removing the junk from the

stream); 4) that there was no showing that the topsoil

and clean fill placed on the adjacent property

contaminated or affected the quality of the water in the

nearby stream; and 5) that this was not a serious crime

according to the Presentence Report prepared by the

Probation Office, the Court, at the urging of the govern-

ment to make an example out of Petitioner in order to

"send a message to all property owners" and to

implement President Bush’s "no net-loss of wetlands"

goal, sentenced Petitioner on July 13, 1989 under 33

U.S.C. § 1319(c)(2)(A) to the unprecedented statutory

maximum sentence of three years imprisonment on

Counts One through Fourteen which occurred before the

Sentencing Guidelines took affect, and to 27 months

imprisonment on Counts Sixteen through Forty-one for

the post-Guideline conduct.

The staggering 27-month sentence -- equivalent to

81 months, or approximately 7 years if it had been

imposed before the Guidelines due to the availability of

parole after serving one-third of the sentence -- was the

maximum sentence the Court could impose pursuant to

its interpretation of Section 2Q1.3, the Sentencing

Guidelines appiicable for environmental offenses involv-

ing non-toxic, non-hazardous substances. Sentence of

imprisonment on Count Fifteen was suspended and Peti-

tioner was placed on probation for 5 years, the maxi-

mum term available for any federal offense, to be

served after he is released from prison, and to restore

the property unless he received an after-the-fact permit.

For the Guidelines counts, petitioner received 6

points (the base offense level) for discharging a pol-

lutant without a permit. § 2Q1.3(a). He also received

six additional points for discharging a pollutant (§

2Q1.3(b)(1)(A)), and four more for not having the per-

mit (§ 2Q1.3(b)(4)). This "double counting" for the

same conduct led to a total score of 16, which trans-

lates to a sentence of between 21 and 27 months. Peti-

toner requested that he be placed on probation because

of his wife’s heart condition and their strong community

ties. Judge Katz refused his request.

This draconian sentence, for what was essentially a

regulatory offense, was the longest unsuspended jail

term imposed in the history of the United States for any

environmental crime, including the dumping of

extremely toxic and hazardous wastes and where people

were even injured and killed.

The Court was not yet finished with the Petitioner.

Despite the fact that Mr. Pozsgai has a gross income of

approximately $20,000 a year, no savings, and a

negative net worth, information in the probation report

and acknowledged by the Court, the Court nevertheless

fined Petitioner $200,000, ($5,000 for each of the 40

counts), and imposed a mandatory assessment of $2,000

for the Crime Victims Fund ($50 for each of the 40

counts). The Probation Report (erroneously concluding

that such fines were mandatory) stated that such a fine

would "financially devastate" Petitioner and his family.

This fine, approximately 1,000 percent of Petitioner’s

gross income, was the /argest fine ever imposed in the

history of the United States by severalfold on an

individual for an environmental crime, or, for that

matter, for most other crimes.‘

Contrary to the request by the government, how-

ever, the trial court did not order that the defendant be

taken immediately into custody. Instead, bail was

continued pending appeal because the court found that

the "alleged failure by the government to prove: (1)

that the streams to which the wetlands at issue were

adjacent are tributaries of the Pennsylvania Canal; and

* Fines are not imposed in over 68 percent of all federal crimes.

In the 30 percent of the cases that fines are imposed, the average

fine levied (including restitution) is approximately $8,000, with the

median being only $525. U.S. Sentencing Commission, Annual Re-

port 34 (1988).

(2) that the Pennsylvania Canal is a “water of the

United States" raises a substantial question of law or

fact likely to result in reversal,” an issue which neither

the district court nor the court of appeals has given any

inkling as to why it lacks merit (App. 12a).

On appeal, Petitioner made a number of substantial

arguments as to why the conviction should be over-

turned or, in the aiternative, why the case should be

remanded for resentencing, including 1) the total failure

of the government to offer any evidence, let alone

prove beyond a reasonable doubt, the jurisdictional

element of the offense, 2) that Petitioner’s activity was

authorized by the Corps’ Nationwide Permit No. 26, 3)

that Petitioner did not discharge "pollutants" as defined

in the Clean Water Act, 4) that the district court mis-

applied the Sentencing Guidelines or that § 2Q1.3 of

the Guidelines was unlawfully promulgated, 5) that the

sentence and fine were otherwise excessive.

~ On January 12, 1990, a panel of the United States

Court of Appeals for the Third Circuit, without holding

any oral argument and without stating any reasons for

its decision, issued a Judgment Order summarily affirm-

ing the judgment of conviction and the sentence (App.

la). On January 26, 1990, a timely petition for rehear-

ing and suggestion for rehearing en banc was filed,

which was denied on February 8, 1990 (App. 15a).

REASONS FOR GRANTING THE PETITION

Because this case and numerous other "wetland"

cases around the country deal with the authority of the

federal government to regulate, and in some cases take,

private property protected under the Constitution, it is

especially important that this Court, as protector of such

freedoms, ensure that the federal government not over-

flow the channels of its jurisdictional boundaries. This

is especially so where, as here, substantial liberty

interests are also at stake. Unfortunately, the courts

below abandoned their role in this respect, and did so

without leaving a clue as to why. For that key reason,

this Court should take particular care to review this

case.

As for the Sentencing Guideline Issue, this Court,

having ruled in Mistretta v. United States, 109 S.Ct. 649

(1989), that Congress could delegate power to the U.S.

Sentencing Commission to set Sentencing Guidelines

should now decide whether the U.S. Sentencing Com-

mission followed the mandate of Congress in promulgat-

ing a category of those Guidelines, i.e., Section 2Q1.3.

I. THE PETITIONER’S RIGHT TO DUE

PROCESS WAS VIOLATED WHEN THE

GOVERNMENT FAILED TO INTRODUCE

EVIDENCE AND PROVE THAT PETITION-

ER’S PROPERTY CONSTITUTED "WATERS

OF THE UNITED STATES," AS DEFINED BY

33 C.F.R. § 328.3(a)(1).

Petitioner was charged with and convicted for “dis-

charg[ing]" certain "pollutants" into certain "navigable

waters” of the United States. 33 U.S.C. § 1319%(c)(1); §

1362(12). “Navigable waters" is defined in the statute

without further explanation as simply "waters of the

United States, including the territorial seas." 33 U.S.C.

§ 1362(7). The U.S. Army Corps of Engineers regula-

tion, 33 C.F.R. § 328.3(a), defines "waters of the United

States", in pertinent part, as "(a)(1) All warers which are

currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce,. . .

[and] (5) [tributaries of waters identified in paragraphs

(a)(1) through (4) of this section . . . [and] (7) [wler-

lands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs (a)(1)

through (6) of this section. Jd. (emphasis added).

Accordingly, the indictment charged Petitioner with

placing fill onto "wetlands" "adjacent" to an "unnamed

tributary of the Pennsylvania Canal" which is alleged to

be a "water of the United States as defined . . . 33

C.F.R. § 328.3(a)(1)." See Indictment, Count One,

q§ 2-4 (emphasis added) (R-134). Consequently, in

order for the Corps to have jurisdiction, the Government

was required to prove beyond a resonable doubt: (1)

that the Pennsylvania Canal is a "water of the United

States" which is or was used in "interstate commerce"

under § 328.3(a)(1), and that (2) the small stream which

runs through and along the eastem edge of the site and

thus adjacent to Petitioner’s property is a "tributary" of

that waterbody.

In his opening statement to the jury, the prosecutor

recognized that these were "important" elements of the

crime:

SETH WEBER: You will hear that on _ that

property that Mr. Pozsgai finally bought m Jume of

1987, there is a small stream which is also going to

be referred to in testimony, I believe as a tributary.

A tributary is a small body of water that

leads into a larger body of water.

This small stream on Mr. Pozsgai’s

property led into what is called the

Pennsylvania canal.

You will hear about the Pennsylvania canal.

A little bit of the history of the

Pennsylvania canal, how it was used for the

boats to go up and down the canal to transport

things in interstate commerce and things of that

nature.

That becomes important in the case.

(App. 134-35) (emphasis added).

Petitioner agrees with the government that these are

"important" elements of the offense. Failure to prove

them beyond a reasonable doubt is fatal. Yet the

prosecutor’s opening statement was the first and last

time the jury heard anything about the stream leading

into the Pennsylvania Canal, or the canal being used in

interstate commerce. Opening statements, of course, are

not evidence in a case.

As required by this Court’s teachings, the

government was required as a matter of due process to

introduce evidence and prove beyond a reasonable doubt

each of these jurisdictional elements of the offense.

Jackson v. Virginia, 443 U.S. 307 (1979); Glasser v.

United States, 315 U.S. 60 (1942); In Re Winship, 397

U.S. 358, 364 (1970) ("Due Process Clause protects the

accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime with which he is charged").

1. The government points to no testimony where

any of its witnesses were asked whether the tiny stream

on Petitioner’s property led into the Pennsylvania Canal.

The Canal is located a good distance from the site and

separated from it by, inter alia, a four-lane major

highway and a lumber yard.

On appeal, the government tried to plug this fatal

gap in its case by arguing that "On the issue of

adjacency, the government introduced exhibits showing

the relationship between the Pozsgai site and the

unnamed tributary flowing through the site. Govern-

ment Exhs. 1 and 7 (aerial photographs). Govt. Br. 27

(emphasis added).

However, “adjacency” was not an issue in this case.

The question is not whether the stream flows through

the site, but rather where does it flow to. Does it flow

into the Pennsylvania Canal? Does it flow into another

stream that is not a "water of the United States"? Does

it simply seep into the greund and therefore is not a

tributary of anything? Where was the testimony on this

issue that the prosecutor promised the jury in his

opening statement?

a. Realizing the complete absence of any

testimony on this key jurisdictional element of the

offense, the government desparately tried to use

demonstrative evidence to shore up its case by

unequivocally asserting "These Exhibits [Govt. Exhs. 1

and 7 (aerial photographs)] also show that the stream

flows into the Pennsylvania Canal." Govt. Br. 27.

(emphasis added). The panel below, assuming it

examined these two aerial photographs, likely

misapprehended this evidence since the photographs do

not show any stream, let alone the one on petitioner's

property, flowing into the canal.

* When counsel for Petitioner, who was not his trial counsel,

first went to examine these photographs on the day after being

served with the govemment’s appellate brief, he discovered that

these two aerial photographs were inexplicably missing from the

custody of the deputy clerk. They were finally returned to the

clerk by the government after all the appellate briefs were filed in

(continued...)

At least without the assistance of an expert in aerial

photography to decipher the maps, or testimony by

someone on the ground who traced the stream, a jury

would be merely speculating about which of the many

fuzzy dark lines on the photograph is the stream in

question, and whether that stream flows from Petition-

er’s property into the Pennsylvania Canal.

Even the government’s witness who was merely

describing the stream on the property for the purposes

of showing adjacency, pointed to the aerial photograph

(Govt. Exh. 7] and told the jury, "You can't see it [the

stream] exactly on this." (Testimony of Mr. Claffey)

Govt. Br. 27. Surely, if the jury cannot see the stream

on Petitioner’s property on this aerial photograph, it

would be entirely speculative for the jury to determine

if, how, and where that stream flows into the Pennsyl-

vania Canal. While we admit that the Pennsylvania

Canal is depicted on the photographs as a government

witness stated by a "dark line," there is no other “dark

line" connected to it from any discernible point, and

*(...continued )

this case.

The Justice Department attorney who authored the appellate

brief admitted to petitioner's counsel that he did not examine the

aerial photographs when he made the unequivocal statement, in the

government’s brief to the court of appeals that the photographs

show the stream on Mr. Pozsgai’s property "flow[ing] into’ the

Pennsylvania Canal. Rather, he claimed to rely on the prosecutor's

recollectiion of what the photographs depicted from the tnal a year

ago. This sudden recollection on the part of the prosecutor is

surprising, since he made no such claim shortly after the tral in

response to the defendant's assertion in his Motion for Judgment of

Acquittal, when, presumably, his recollection was fresher.

certainly no dark line from Petitioner’s property, located

some distance away.°

To sustain the conviction, the court below had to

conclude that a lay jury, by simply looking at the

photographs without the aid of testimony, could find

beyond a reasonable doubt that the stream on Petition-

er’s property flows into the Pennsylvania Canal. Clear-

ly, no reasonable jury could do so. This issue is not

one of witness credibility on which the trier of fact is

given substantial deference.

On the contrary, "sufficiency of the evidence is a

question of law subject to de novo review. .. . We owe

no special deference to the district court on this issue."

See United States v. Kelly, 888 F.2d 732 (11th Cir.

1989). At best, the government might argue that these

two aerial photographs constitute a modicum of evi-

dence (which they are not) to prove that the stream is a

tributary of the Pennsylvania Canal. However, a "’mere

modicum’ of evidence, making the existence of an ele-

ment of the crime slightly more probable than it would

be without the evidence, by itself is not sufficient."

United States v. Marolda, 648 F.2d 623, 624 (9th Cir.

1981), citing Jackson vy. Virginia, 443 U.S. 307, 320

(1979). As the Jackson Court stated, "it could not

seriously be argued that such a ’modicum’ of evidence

* Lest there be any question about this point, appended are

reproductions of Government Exhibits | and_7 (taken in March

1985 and April 1987, respectively) (App. 40a). Each of the two

aerial photographs are approximately 24 by 35 inches in size and

were taken by the government at different elevations. In order to

reproduce them in this brief, they are first reduced to show the

entire exhibit. The revelant portion of each photograph showing

Petitioner’s property and the Pennsylvania Canal are then repro-

duced in the same dimension as the jury saw them. Dark ink lines

outlining part of the tract are the delineations of the "wetland"

made by the government's witness.

could by uself rationally support a conviction beyond a

reasonable doubt." 443 U.S. at 320. Surely, it is not

asking too much of the government that before it sends

Petitioner to prison for three years for placing topsoil

and fill on his own property and exacts fines of over

$200,000, the prosecutor make good on his promise

(and legal duty) to present testimony on a "important"

element of the offense, especially where the fact at

issue is one that is objectively determinable.

2. Clearly, the government also failed to prove

that the Pennsylvania Canal was or is used in interstate

commerce. 33 C.F.R. § 328.3(a)(1). While the prose-

cutor promised the jury they would hear testimony

about the history of the Pennsylvania Canal and its

alleged prior use in interstate commerce, none was

forthcoming.

On appeal, the government tried to shore up this

fatal gap in its case by cavalierly concluding in a

footnote: "It cannot be seriously disputed that the

Pennsylvania Canal is a navigable waterway within the

meaning of 33 C.F.R. § 328.3(a)(i). A canal is defined

as ‘an artificial waterway for navigation or for draining

or irrigating land.’ Webster's Seventh New Collegiate

Dictionary." Govt. Br. 27, n.19 (emphasis added).

This dictionary definition is not merely insufficient

evidence, it is no evidence at all. In the first place, the

definition relied upon by the government is phrased in

the double disjunctive, so that the word "canal" could

mean an artificial waterway used for draining purposes

but be incapable of supporting any actual navigation.

In any event, 33 C.F.R. § 328.3(a)(1) requires proof

that the canal is or has been used in “interstate or for-

eign commerce.” Thus, the Pennsylvania Canal, even if

used for navigation, could reasonably be understood as

having been so used in intrastate, rather than interstate

commerce. The trial court did not take judicial notice

that the Pennsylvania Canal was used in interstate com-

merce, nor did the government make any request that it

should. The prosecutor simply reneged on his promise

to the jury that they would hear historical testimony to

prove this “important” element of the offense.’

The court below was required to reverse the

conviction unless it found that "there is substantial evi-

dence... to support a jury’s finding of guilt beyond a

reasonable doubt..." Government of Virgin Islands y.

Williams, 739 F.2d 936, 940 (3d Cir. 1984). Clearly,

the evidence in this case to prove the government’s

jurisdiction over Petitioner’s property, a crucial element

of the crime is, as a matter of law, insufficient under

the Due Process Clause to support a verdict of guilty

beyond a reasonable doubt.

If the government must prove impacts on interstate

commerce when prosecuting racketeers and other such

criminals (see United States v. Jannotti, 673 F.2d 578

(3d Cir. 1982)), surely it must do so when prosecuting

its citizens for placing clean fill on their own property.

' In United States v. Commodore Club, Inc., 418 F. Supp. 311

(E.D. Mich. 1976), the defendants were criminally prosecuted for

violating the Rivers and Harbor Act for failing to have permit for

filling in "a navigable water." The court found that while the

evidence to prove this essential element may be sufficient if it were

a civil case, it noted that "this case is presented to the Court in the

criminal context,"; accordingly, “this Court will not entertain such a

presumption in a criminal prosecution. The Government was

required to prove beyond a reasonable doubt that the filled area

[was a navigable water] and this it failed to do." 418 F. Supp. at

318, 322.

li. THE GOVERNMENT DID NOT PROVE THAT

PETITIONER DISCHARGED "POLLUTANTS"

"INTO WATER" AS DEFINED IN 33 U.S.C.

§ 1362(6).

This is an important issue of statutory construction

which goes to the heart of the case as to whether

"pollutants" were discharged, assuming the property in

question was a “water of the United States." Even if

the Court does not grant review of this issue, the dis-

cussion presented here nevertheless relates to Questions

3 and 4 by underscoring how far afield from the core

offense conduct prohibited by the Clean Water Act were

Petitioner’s so-called water pollution activities.

The quintessential element of each of the 40 counts

that the government had to prove beyond a reasonable

doubt was that the Petitioner discharged certain "pol-

lutants" defined in 33 U.S.C. § 1362(6) as follows:

(6) The term "pollutant" means dredged spoil,

solid waste, incinerator residue, . . . discharged

into water (emphasis added).

The term "pollutant" is thus defined in terms of

specific substances being discharged "into water" The

law is clear and unambiguous. It does not say into

"waters of the United States" or "navigable waters" or

"wetlands" or "moist soil" or "dry land that the Corps

determines to be water," but "water" as that term is

commonly understood to mean the liquid state of H,O."

The definition also uses the prepositional phrase "into

* "Water" is defined as “the liquid of which seas, lakes, and

rivers are composed and which falls as rain and issues from

springs. When pure it is transparent, colourless (except as seen in

large quantity, when it has a blue tint), tasteless and odourless." 2

Oxford English Dictionary 3701 (Compact Ed. 1971).

water,” not "near water" or "onto wetlands." Cf. United

States v. GAF Corporation, 389 F. Supp. 1379, 1383

(S.D. Tex. 1975) ("discharge of a pollutant" does not

include discharge into subsurface wells).’

The government dismissed this argument in its brief

below as an “innovative reading of the Act" contrary to

the intent of Congress and case authority. Govt. Br.

32. Petitioner sees nothing “innovative” about inter-

preting the word "water" to mean "water". What is

"innovative" is the government’s strained reading of the

Statute, namely, that placing “earth” on other earth

constitutes a discharge of "pollutants into water."'°

Petitioner’s reading of the law is entirely consistent with

the intent of the Congress that enacted the Clean Water

Act. That intent can best be discemed from the lan-

guage Congress employed.

It is a cardinal principal of statutory construction

that the language chosen by the Congress be given its

plain meaning. American Tobacco Co. v. Patterson, 456

U.S. 63, 68 (1982); TVA v. Hill, 437 U.S. 153 (1978).

This rule is particularly adhered to in criminal cases.

United States v. Enmons, 410 U.S. 396, 411 (1973)

("This being a criminal statute, it must be strictly

construed, and any ambiguity resolved in favor of

* The trial court erroneously instructed the jury on this key

element of the offense by stating, "The third element [of the

offense] is that the defendant discharged pollutants. The term,

pollutant, means spoils, solid waste, rocks, sand. cellar dirt and

industrial waste discharged into wetlands." Tr. 12/30/88 Judge Katz

79-80 (emphasis added).

tinction by defining "fill material" as "not includ[ing] any pollutant

discharged into the water primarily to dispose of waste, as that

activity is regulated [by the EPA] under section 402 of the Clean

Water Act." 33 C.F.R. § 323.2(e) (emphasis added).

lenity.") See also United States v. Standard Brewery,

251 U.S. 210 (1920) (Administrative rulings cannot add

to an Act of Congress and make conduct criminal

which that law leaves untouched). Neither the Corps of

Engineers nor the EPA has any other regulatory defini-

tion of the term "pollutants" or "water." Accordingly,

interpreting the word "into water" to mean exactly that,

is the only permissible judicial construction of the word.

in Amoco Production Co. vy. Village of Gambell, Alaska,

107 S. Ct. 1396, 1405 (1987), this Court unanimously

rejected the Ninth Circuit’s opinion that the term “in

Alaska" should be construed "in a general, ‘nontechni-

cal’ sense to mean the geographic region of Alaska,

including the Outer Continental Shelf." There is

nothing ambiguous about the phrase “into water" and

therefore the phrase should be given its plain and

ordinary meaning. See United States v. Locke, 471 U.S.

84 (1985) (statutory phrase requiring mining claims to

be file "prior to December 31" required rejection of

claims filed on December 31). Neither the EPA nor the

Corps has any regulatory definition of "pollutant"

different from the one enacted by Congress; accord-

ingly, the plain meaning of the statute controls.

Interpreting "water" as liquid water is certainly in

keeping with Congress’ intent to regulate the discharge

of pollutants into our nation’s territorial seas, bays,

lakes, ponds, reservoirs, rivers, and streams, and even

familiar wetlands such as swamps, bayous, everglades,

and marshes which usually contain surface water."

'' When interpreting a statute for criminal purposes, there is a

"long established practice of resolving questions conceming the

ambit of a criminal statute in favor of lenity." Dunn v. United

States, 442 U.S. 100, 112 (1979), and this the lower court failed to

do. Enmons, supra; United States vy. Braverman, 373 U.S. 405, 408

(1963); United States v. Moore, 613 F.2d 1029, 1043 (D.C. Cir.

(continued...)

Pal

In any event, the Corps is free to promulgate a

regulation interpreting the phrase “into water." See

Tabb Lakes, Ltd. v. United States, No. 89-2905 (4th Cir.

Sept. 19, 1989) (attempt by Corps to regulate certain

wetlands because they are used by migratory birds such

as robins is struck down since such _ jurisdictional

coverage must be specified in regulations promulgated

under the Administrative Procedures Act). Of course,

the Congress can, and should, address this issue as well.

In the meantime, "no deference is due to agency inter-

pretations at odds with the plain language of the statute

itself. Even contemporaneous and longstanding agency

interpretations must fall to the extent they conflict with

Statutory language.” Public Employees Retirement

System of Ohio v. Betts, 109 S.Ct 2854, 2863 (1989).

fl. SECTION 2Q1.3 OF THE SENTENCING

GUIDELINES IS UNLAWFUL AS PROMUL-

GATED OR AS APPLIED IN THIS CASE.

The Sentencing Reform Act of 1984, generally, 18

U.S.C. §§ 3551 through 3742, and 28 U.S.C. §§ 991

through 998, was enacted as a part of the Comprehen-

sive Crime Control Act of 1984, Pub. L. No. 98-473,

Title If (Oct 12, 1984), to reform the federal sentencing

system. The essential premise behind the Sentencing

Reform Act was that sentencing under past law, which

granted judges broad discretion, resulted in a fragmented

sentencing system characterized by unwarranted dis-

parity and a lack of fairness. The issue of unwarranted

disparity in sentencing was of paramount importance in

''(...continued)

1979), cert. denied 446 U.S. 954 (1980). See also Blackstone

Commentaries 88 (1765) (citing 1 Edw VI, c. 12(1547) (law mak-

ing it a crime to steal “horses” will not support conviction of a

person who stole only one horse).

the passage of the Sentencing Reform Act, as revealed

in the report of the Senate Judiciary Committee on the

Crime Control Act of 1983, S. Rep. No. 225, 98th

Cong., Ist Sess. 37-190 (1983), reprinted in 1984 US.

Code Cong. and Ad. News 3182, 3220-3373.

It is undisputed that the 27-month prison sentence

imposed on Petitioner, if upheld, will be the longest

prison term served by anyone for any environmental

violation, including those involving the deliberate

dumping of toxic and hazardous wastes. Close behind

him is 58-year-old Ocie Mills and his son, now serving

21 months for placing 19 loads of clean sand on his

half-acre lot in Florida. United States v. Mills, No. 88-

03100-01/WEA (N.D. Fla. 1989), appeal pending (11th

Cir. no. 89-3325). The criminal disposition of each

individual environmental pollution case in fiscal years

1983-1989 show that the usual sentence for real pollut-

ers was a modest fine and probation. Actual incarcera-

tion was reserved for the most serious offenders, and

even then involved only a short stay of a few days to

several months. No person went to jail for the

discharge of a non-toxic pollutant.’

Even now, the application of the guidelines is

producing gross disparities. See United States v. Bogas,

CR88-282 (N.D. Ohio, Feb. 13, 1990), appeal by gov't

dism’d, No. 90-3228 (6th Cir. April 13, 1990) (hazard-

ous waste polluter who lied to EPA, given 180 days

home detention) Clearly, Petitioner should not have

received a greater sentence than Mr. Bogas. How did

the Guidelines, which were intended to reduce dispari-

See U.S. Environmental Protection Agency, Office of

Enforcement and Compliance Activity: Summary of Cnminal

Prosecution Resulting from Environmental Investigations (Apmil

1989). The summary for Fiscal Year 1985 is reproduced, infra,

App. 30a.

ties, not create them, produce such unjust results? The

basic flaw is in the drafting of § 2Q1.3 and its hazard-

ous companion § 2Q1.2.

Petitioner was charged with discharging earth and

clean fill without a permit. Under § 2Q1.3, that offense

constitutes both the base offense, as well as the two

specific offense characteristics of discharging a pollutant

(§ 2Q1.3(b)(1))* and not having a permit under §

2Q1.3(4). This causes an increase of the base offense

level for this regulatory offense from a score of 6

(which permits a court to impose probation) to 16,

requiring imprisonment from 21 to 27 months. If this

“double counting" is a correct application of the guide-

lines, then every discharge of clean non-toxic fill dirt

without a permit will automatically result in a score of

at least 14, and more likely 16, thereby requiring a

mandatory minimum jail term of at least 15 months, and

more likely, 21 months. This surely cannot be correct

when the maximum jail term for the worst water pol-

luter in the country could not by law, until 1987, have

exceeded one year. Indeed, the Guidelines were already

drafted (although not in effect) before the Clean Water

Act was amended in early 1987--which, inter alia,

increased the maximum penalty from 1 year to 3 years

for water polluters. In fact, there are a number of

environmental statutes covered under both §§ 2Q1.2 and

2Q1.3 which are misdemeanors, violation of which can-

not result in more than one year in jail, yet the

The district court apparently rejected Petitioner's argument at

sentencing that since § 2Q1.3(b)(1) presupposes "actual environ-

mental contamination" according to Application Note 4, and should

not be applied to Petitioner, there was no contamination. The plain

meaning of § 2Q1.3(b)(1) apparently was accepted by the court.

Petitioner seeks review of the possible misapplication of the Guide-

lines to his case.

Guidelines virtually dictate a mandatory minimum sen-

tence of the statutory maximum for a first offender."

As Petitioner argued below, § 2Q1.3 is invalid on

its face and as applied in this case because 1) the

Commission did not follow 28 U.S.C. § 994(m) which

mandates that the Commission “ascertain the average

sentences imposed" for the category of environmental

offenses before devising a sentencing guideline for that

category; 2) § 2Q1.3 clearly contravenes 28 U.S.C. §

994(f) which requires that the Guidelines "provid[{e]

- certainty and fairness in sentencing and reducing sen-

tencing disparities" (emphasis added); 3) § 2Q1.3 con-

travenes 28 U.S.C. § 994(j) which requires that the

guidelines "reflect the general appropriateness of

imposing a sentence other than imprisonment in cases in

which the defendant is a first offender who has not

been convicted of a crime of violence or an otherwise

serious offense" (emphasis added); and 4) the Guide-

lines are inconsistent with the purposes of sentencing

described in 18 U.S.C. § 3553. While courts can

depart from the Guidelines, they can do so only if it is

clear that the Commission did not consider unusual

mitigating or aggravating circumstances. § 5K2.0. On

their face, the Guidelines do appear to account for

various offense factors; however, the Commission did

not exercise its independent judgment in establishing

them. The fundamental flaw with these Guidelines is

that the Sentencing Commission did not follow Con-

gress’ mandate by reviewing past sentencing practices in

order to determine "average sentences imposed in

[each] category of cases" [28 U.S.C. § 1994(m)] as

‘4 See United States v. Fisher, CR 89-234 (D. Ore. Feb. 12,

1990) (Guidelines called for a 21-month sentence when statutory

maximum for negligent discharge under 33 U.S.C. § 131% c)(1)(A)

was one year).

their starting point before the Commission was’ to

exercise its independent judgment about whether to

depart from such past practice. In short, the Com-

mission failed to do its homework.

The source material used by the Commission in

determining past sentencing practices was a 1,279 page

report of some 40,000 sentences imposed from January

1, 1984 to February 28, 1985 prepared by The Federal

Judicial Center in 1986. Punishments Imposed on Fed-

eral Offenders (Federal Judicial Center 1986) The

categories covered are Crimes of Violence, Property

Offenses, Drug Offenses, Offenses Involving The Justice

System, Firearms and Explosives Offenses, Immigration

and Citizenship Offenses, Miscellaneous Offenses, and

Corporate Crime. Jd. Conspicuously absent from this

report is any historical information on sentences and

fines imposed for criminal violations of the Clean Water

Act or the host of other environmental laws on the

books.'* In short, the Commission did not exercise its

considered judgment in passing on these guidelines. If

the Commission had examined and analyzed the disposi-

tions of the environmental pollution cases from fiscal

years 1983-1989 (which was submitted to the court of

appeals), it would have concluded that the usual

sentence was a modest fine, probation, and in some

cases, restoration, even for persistent violators who

ignored agency warnings. /d.

'* The only environmentally related category of sentences in the

Miscellaneous Offense area is the killing or smuggling of endang-

ered or protected animals or plants. There were 208 offenders in

this category. and § 2Q2.1 fairly tracks the average sentences that

were imposed in this category. /d. at 8-85. But see United States

v. Van Fossan, 1990 U.S. App. LEXIS 5247 (7th Cir. Apr. 9,

1990).

The gross disparities between these typical

sentences and the instant case are striking enough, but

when one considers that before the Guidelines, a person

was eligible for parole after serving one-third of his

sentence, the Guideline sentence of 27 months imposed

here is equivalent to a staggering sentence of &/

months, almost 7 years, a plainly unreasonable sentence

where the maximum statutory sentence was only | year.

See, e.g, United States v. Marathon Development Corp.,

867 F.2d 96 (ist Cir. 1989)(experienced developer given

6-month suspended sentence and fined $10,000 for fill-

ing in 5 acres of wetlands after being wamed). The

Marathon case was the first criminal prosecution of a

wetlands case.

Indeed, it was Congress’ clear intent that "for the

most part the average time served should be similar to

that served today in like cases." S. Rep. No. 225,

supra at 116. That intent was clearly disregarded by

the Commission in promulgating § 2Q1.3.

The Commission neither has identified in any of its

literature what historical data it had used in developing

these particular Guidelines nor given any reasons why it

substantially departed from past sentencing practice in

this area."®

In United States v. Lee, 887 F.2d 888 (8th Cir.

1989), the court mvalidated the application of section

‘© Commission Policy is that "when departures [from pre-Guide-

line sentencing practice] are substantial, the reasons for departure

will be specified." Paragraph 6, Pnnciples Governing the Redraft-

ing of the Preliminary Guidelines, adopted December 16, 1986.

reprinted in S. Breyer, The Federal Sentencing Guidelines and the

Kev Compromises Upon Which They Rest. 17 Hofstra L. Rev. 1, 50

(1988). See also, id. at 17 (Guidelines primarily to be based on

“typical, or average, actual past practice”).

2J1.6 of the Guidelines because it is "not sufficiently

reasonable and violates the statutory mandate given to

the Sentencing Commission" by producing overly harsh

and unreasonable results. Jd. at 892. Analogizing the

Commission to a regulatory agency, the standard of

review is whether the Guidelines are "sufficiently

reasonable" in light of the congressional directive given

to the Sentencing Commission. /d. at 890, citing FEC

v. Democratic Senatorial Campaign Comm., 454 U.S.

27, 39 (1981). See also Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 843-44 (1984).

However, when the statute, as here, clearly

commands the agency to undertake certain studies

before promulgating regulations, and the agency’s own

policy requires it to articulate reasons for departing

from the data in establishing the regulation, the courts

are required to set aside the regulations when the

agency has done neither. Recently, the U.S. Court of

Appeals for the District of Columbia Circuit reviewed

whether the EPA had properly followed Congressional

directives in setting certain emission levels and

determining whether they were stringent enough. When

it found the record to be barren, the court said, "We

cannot sustain [agency] action merely on the basis of

interpretive theories that the agency might have adopted

and findings that (perhaps) it might have made."

Environmental Defense Fund, Inc. v. EPA, No. 88-1882,

1990 U.S. App. LEXIS 3796 (D.C. Cir. March 13,

1990) (emphasis added). Accordingly, the § 2Q1.3

must be invalidated either on its face or as applied as

not following the dictates of Congress.

Not only does § 2Q1.3 produce wide sentencing

disparities among environmental offenses, it also pro-

duces dramatic departure from the sentences that are

currently being imposed under the Guidelines for plainly

more serious offenses as drug dealing, arson, and other

major crimes."’

Clearly, § 2Q1.3 was promulgated and applied in

violation of 28 U.S.C. § 994(f), which requires that the

guidelines particularly provide for “certainty and fairness

in sentencing and reducing unwarranted sentence dis-

parities.” In addition, § 994(j) requires that the

guidelines are to "reflect the general appropriateness of

imposing a sentence other than imprisonment in cases in

which the defendant is a first offender who has not

been convicted of a crime of violence or an otherwise

serious offense" (emphasis added). The presentence

report indicated that this was not a serious offense, and

indeed, the judge did not even focus on the seriousness

of the offense. Rather, the court and the prosecutor

focused on the offender, indicating that Petitioner, who

'’ Compare Petitioner’s Crime: Placing Topsoil and Fill on His

Own Property: Prison Sentence: 27 months, no probation (§ 2Q1.2,

level 16, range 21-27 mos.) with Arsonist who endangered the

safety of another person (§ 2K1.4:level 10 = 6-12 months with

probation possible); defrauding the public up to $2 million (§

2F1.1:level 15 = 18-24 months); drug trafficking, up to 50 grams

of cocaine (about 500 pieces of crack)(§ 2D1.1:level 14 = 15-21

months); managing a crack house (§ 2D1.8: level 16 = 21-27

mos.); reckiess involuntary manslaughter-driving while drugged/

drunk, knowing of the nisk (§ 2A1.4: level 14 = 15-21 mos.); if

this were his second such homicide, Offender Category II would

raise the sentence to only 24 mos. maximum.

Petitioner realizes that he msks inviting criticism from the

government when he notes that an arsonist can receive probation

whereas Petitioner receives 27 months, for as the Justice Depart-

ment said in its brief below, these are mixing ‘apples and oranges’

because “arson...generally is directed at a limited number of

victims, whereas the victuns of [Petitioner’s] environmental cnmes

include the public at large." Govt Br. at 38. It is truly a sad

commentary that the Justice Department is of this opinion and that

the only way to sentence an arsonist to a comparable pnson term

to Petitioner’s is to charge the arsonist with violating some

emission standard under the Clean Aur Act.

has no prior criminal history, was a "stubborn" violator

of the law. Under that theory, a stubborn jay waiker

might be treated more harshly than a casual mugger.

Since the Justice Department has announced its

intention to use this case and others like it to bring a

"reign of terror” upon environmental violators, however

minor the offense, this Court should ensure that the

rules they play by are lawful ones.

IV. THE SENTENCE VIOLATES THE EXCESSIVE

FINES CLAUSE OF THE EIGHTH AMEND-

MENT.

This Court has never issued a decision on the

Excessive Fines Clause. It is important that this issue

be settled as the government has made it a practice of

seeking astronomical civil penalties and fines in many

regulatory contexts, as well as creatively using the

Alternative Fines Act, 18 U.S.C. 3571(b). Indeed, the

government below argued that Petitioner could have

been fined $2,000,000 under the Act. Govt. Br. 39,

n.22.

The $200,000 fine here is plainly excessive, and

amounts to economic capital punishment. It is the

largest fine imposed on an individual for an environ-

mental offense and is greater by 400 fold the median

fine for all federal criminals ($525.00). For all the

same reasons why the punishment is cruel and unusual,

the fines are excessive. See Browning-Ferris Industries

v. Kelco Disposal, Inc., 109 S.Ct. 2909, 2933-34 (1989)

(O’Connor and Stevens, JJ., concurring in part and

dissenting in part). Considering that Mr. Pozsgai’s gross

income is approximately $20,000 per year, that his net

income after paying the mortgage on the dumpsite he

purchased, and living and business expenses leave him

with no savings, and that he has a negative net worth,

the fine imposed is approximately 1,000 percent of his

gross annual eamings, and an infinite amount times his

net worth. By comparison, the issue in Browning-

Ferris involved a punitive damage award, which al-

though large, amounted to only about .50 percent of

gross earnings ($6 milllion dollar award compared to

total annual revenues of $1.3 billion). /d. at 2913.

Even if the fines were mandatory, that is no

defense to the claim that the fine is nevertheless ex-

cessive as imposed. See United States v. Busher, 817

F.2d 1409, 1415 (9th Cir. 1987) ("Even though the sta-

tute provides no discretion, the district court must avoid

unconstitutional results by fashioning forfeiture orders

that stay within constitutional bounds"). The Busher

court held that the excessiveness of the fine or for-

feiture can be judged by applying the proportionality

principles of Solem v. Helm, 463 U.S. 277 (1983).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL J. POPEO

PAUL D. KAMENAR

(Counsel of Record)

Washington Legal Foundation

1705 N Street, N.W.

Washington, DC 20036

(202) 857-0240

Attorneys for Petitioner

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-1640

UNITED STATES OF AMERICA

JOHN POZSGAI

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Crim. No. 88-00450-01

(Honorable Marvin Katz)

Submitted January 12, 1990

Before: GIBBONS, Chief Judge, SCIRICA, Circuit Judge

and BLOCH, District Judge’

* The Honorable Alan N. Bloch, United States Distnct Judge for

the Western District of Pennsylvania, sitting by designation.

JUDGMENT ORDER

After considering the contentions raised by

appellant, to wit, that: :

1. The court erroneously denied defendant’s

motion to set aside the verdict and enter judgment of

acquittal since the government failed to prove an essen-

tial element of the offense, namely, that the site in

question was a “water of the United States;" ©

2. Defendant’s activity was authorized by a

general permit issued by the Corps on a nationwide

basis which does not require an individual permit;

3. The ineffective assistance of defendant’s

counsel at trail requires that the sentence be vacated or

the judgment reversed;

4. Even assuming that the evidence was sufficient

to prove that the w tlands were waters of the United

States, and that the discharge was not allowable under

the nationwide permit, the evidence was insufficient to

prove that defendant discharged "pollutants" in violation

of 33 U.S.C. § 1311;

5. The sentence imposed under the sentencing

guidelines was illegal;

6. The sentence imposed for the pre-guideline

counts was an abuse of discretion; and

7. The sentence and fine imposed violate the

Eighth Amendment, it is

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby AFFIRMED.

BY THE COURT,

/s/ Anthony J. Scirica

Circuit Judge

Attest:

[s/Sally Mrvos

Sally Mrvos, Clerk

January 12, 1990

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES JUDGMENT INCLUDING SENTENCE

OF AMERICA UNpDER THE SENTENCING RepormM AcT

Case Number 88-00450

Vv.

David Sauerbutts

JOHN POZSGAI Defendant’s Attorney

THE DEFENDANT:

|_| pleaded guilty to counts(s)

xl was found guilty on count(s) one through forty-one

after a plead of not guilty. For purposes of this

Judgment, counts thirty-three and thirty-four are

treated as a single court.

Accordingly, the defendant is adjudged guilty of

such count(s), which involve the following offenses:

Count

Title & Section Nature of Offense Number(s)

33 U.S.C. §§ 1311(a); Illegal discharge 1-41

1319(cy(2)(A) of pollutants

The defendant is sentenced as provided in pages 2

through 6 of this Judgment. The sentence on counts

16-41 of the Indictment is imposed pursuant to the

Sentencing Reform Act of 1984. The sentence on

counts 1-15 of the Indictment is imposed pursuant to 33

U.S.C. Section 1319(c)(2)(A).

The defendant has been found not guilty on

count(s) , and is discharged

as to such count(s).

Count(s) (is)(are) dismissed

on the motion of the United States.

The mandatory special assessment is included in the

portion of this Judgment that imposes a fine.

It is ordered that the defendant shall pay to the

United States a special assessment of $ ;

which shall be due immediately.

It is further ordered that the defendant shall notify

the United States Attorney for this district within 30

days of any change of residence or mailing address

until all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Defendant’s Soc. Sec. Number:

135-32-7859 July 13, 1989

Date of Imposition of Sentence

Defendant’s mailing address:

536 West Bridge Street /s/ Marvin Katz

Mornsville, PA 19067 Signature of Judicial Officer

Marvin Katz, Judge

Defendant’s residence address: Name and Title of

Judicial Officer

July 13, 1989

Date

Defendant: John Pozsgai Judgment-

Case Number: 88-00450 Page 2 of 6

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be imprisoned

for a term of three (3) years on each of courts one

through fourteen and twenty-seven (27) months on each

of counts sixteen through forty-one, all to be served

concurrently. Sentence of imprisonment on Count

Fifteen shall be suspended.

|| The Court makes the following recommendations to

the Bureau of Prisons:

|| The defendant is remanded to the custody of the

United States Marshal.

|| The defendant shall surrender to the United States

Marshal for this district,

a.m.

at p.m. on

as notified by the Marshal.

\_|

|_|

|| The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons

|_| before 2 p.m. on ;

|| as notified by the United States Marshal.

|| as notified by the Probation Office.

[OMITTED }

Defendant: John Pozsgai Judgment-

Case Number: 88-00450 Page 3 of 6

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

Shall be on supervised release for a term of one (1)

year on each of counts sixteen through forty-one

concurrently.

While on supervised release, the defendant shall not

commit another Federal, state, or local crime and shall

comply with the standard conditions that have been

adopted by this court (set forth on the following page).

If this judgment imposes a restitution obligation, it shall

be a condition of supervised release that the defendant

pay any such restitution that remains unpaid at the

commencement of the term of supervised release. The

defendant shall comply with the following additional

conditions:

|| The defendant shall pay any fines that remain

unpaid at the commencement of the term of super-

vised release.

Defendant: John Pozsgai Judgment-

Case Number: 88-00450 Page 4 of 6

PROBATION

The defendant is hereby placed on probation for a term

of five (5) years on Count Fifteen. The term of

probation shall commence when the defendant has

completed his term of imprisonment.

While on probation, the defendant shall not commit

another Federal, state, or local crime and shall comply

with the standard conditions that have been adopted by

this court (set forth on the following page). If this

judgment imposes a fine or a restitution obligation, it

shall be a cc dition of probation that the defendant pay

any such fine or restitution. The defendant shall

comply with the following additional conditions.

The defendant shall comply with a restoration plan

consistent with the Army Corps of Engineers Wetland

Restoration Guidelines on such terms as the probation

department determimes that he is able.

Defendant: John Pozsgai Judgment-

Case Number: 88-00450 Page 5 of 6

STANDARD CONDITIONS OF SUPERVISION

[OMITTED]

Defendant: John Pozsgai Judgment-

Case Number: 88-00450 Page 6 of 6

FINE WITH SPECIAL ASSESSMENT

The defendant shall pay to the United States the

sum of $202,000, consisting of a fine of $200,000 and

a special assessment of $2,000.

Ixl These amounts are the totals of the fines and

assessments imposed on _ individual counts, as

follows:

A fine of $55,000 on each of counts one

through forty-one and a special assessment of

$50 on each of counts one through forty-one.

This sum shall be paid |_| immediately.

xl as follows: as the probation

department determines that

he is able.

|_| The Court has determined that the defendant does

not have the ability to pay interest. It is ordered

that:

|_| The interest requirement is waived.

|_| The interest requirement is modified as follows:

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES

OF AMERICA

Criminal Action

No. 88-450-1

JOHN POZSGAI

i i ed

TRANSCRIPT OF PROCEEDINGS

of sentence in the above-entitled action on Thursday,

July 13, 1989 before the Honorable Marvin Katz, Dis-

trict Judge.

[p. 66]

THE DEFENDANT: Your Honor, I’m sorry what

happened and I could not do better. I could not live

with that and I hope you understand I did some wrong

and I regret that and I’d like to have an understanding,

a break so I don’t have to serve time because of my

family, my family who will starve if I do time and we

lose everything.

MR. SOWERBUTTS: I have nothing further, Your

Honor.

THE COURT: Okay. It’s hard to visualize a more

stubborn violator of the laws that were designed to

protect the environment. I think the sentence has to

take into account not only punishment for that high

degree of willfulness but also serve as a deterrent to

others who will doubtless be tempted by economic pres-

lla

sure which many people, I suppose most people share

to violate those laws and the deterrence has to be that

if they play the lottery of the criminal justice system

and are caught that the costs will be high.

The defendant is committed to the custody of the

Attorney General, Bureau of Prisons to be imprisoned

for a term of three years on each Courts 1 through 14

and 27 months on each of Counts 16 through 41 all to

be served concurrently. Sentence of imprisonment on

Count 15 is suspended. Upon release from imprison-

ment, the defendant shall be on supervised release for a

term of one year on each of Counts 16 through 41 con-

currently. On Count 15 on which I suspended sentence,

defendant is placed on probation for a term of five

years. The term of probation shall commence when

defendant has completed his term of imprisonment. It

is a condition of probatior that the defendant comply

with the restoration plan consistent with the Army

Corps of Engineers Wetlands Restoration Guidelines on

such terms as the Probation Department determines he

is able. The defendant shall pay to the United States

the sum of $202,000.00 consisting of a fine of

$200,000.00 and a special assessment of $2,000.00.

What I’m doing by way of fine is imposing a fine

of $5,000.00 on each of Counts 1 through 41 and spec-

ial assessment of $50.00 on each of Counts | through

4}. -

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES

OF AMERICA

CRIMINAL ACTION

NO. 88-450 ~

JOHN POZSGAI

ORDER

AND NOW, this 13th day of July, 1989, it is

hereby ORDERED that bail for defendant Pozsgai is

continued on its same conditions pexding appeal. The

court makes the following findings pursuant to 18

U.S.C. § 3143(b):

1. Defendant has proven by clear and convincing

evidence that he is not likely to flee or pose a danger

to the safety of any other person or the community if

he is released.

2. The appeal is not for the purpose of delay.

3. The alleged failure by the government to prove:

(1) that the streams to which the wetlands at issue

were adjacent are tributaries of the Pennsylvania Canal;

and (2) that the Pennsylvania Canal is a "water of the

United States" raises a substantial question of law or

fact likely to result in reversal. See Defendant John

13a

Pozsgai’s Memorandum of Law in Support of His

Motion to Set Aside Verdict and to Enter Judgment of

: Acquittal.

BY THE COURT:

/s/ Marvin Katz

MARVIN KATZ, J.

7-19-89 Copy To:

S. Weber, Esq., AUSA

D. Sowerbutts, Esq.

U.S. Probation

l4a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES

OF AMERICA

CRIMINAL ACTION

NO. 88-450

JOHN POZSGAI

ORDER

AND NOW, this 27th day of January, 1989, upon

consideration of Defendant John Pozsgai’s Motion To

Set Aside Verdict And To Enter Judgment Of Acquittal

and the Government’s Memorandum of Law In Opposi-

tion To Defendant’s Motion To Set Aside The Verdict

And To Enter Judgment of Acquittal, it is hereby

ORDERED that the Motion is DENIED.

BY THE COURT:

/s/ Marvin Katz

MARVIN KATZ, J.

Dated: January 27, 1989

15a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-1640

UNITED STATES OF AMERICA

JOHN POZSGAI

Appellant

(D.C. Crim. No. 88-00450-01)

SUR PETITION FOR REHEARING

Present: HIGGINBOTHAM, Chief Judge,

SLOVITER, BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN

and NYGAARD, Circuit Judges, BLOCH,* District Judge

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all

the other available circuit judges of the circuit in

*As to panel rehearing only

16a

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular service not

having voted for rehearing, the petition for rehearing by

the panel and the Court in banc, is denied.

BY THE COURT,

/s/ Anthony J. Scirica

Circuit Judge

Dated: February 8, 1990

17a

33 USC § 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law. Except as in compliance with

this section and sections 302, 306, 307, 318, 402, and

404 of this act [33 USCS §§ 1312, 1316, 1317, 1328,

1342, 1344], the discharge of any pollutant by any

person shall be unlawful.

33 USC § 1319

(A) knowingly violates section 301, 302,

306, 307, 308, 318, or 405 of this Act [33

USCS § 1311, 1312, 1316, 1318, 1328, or

1345], or any permit condition or limitation

implementing any of such sections in a permit

issued under section 402 of this Act [33 USCS

§ 1342] by the Administrator or by a State, or

any requirement imposed in a pretreatment pro-

gram approved under section 402(a)(3) or 402

(b)(8) of this Act [33 USCS § 1342(a)(3) or

(b)(8)] or in a permit issued under section 404

of this Act [33 USCS § 1344] by the Secretary

of the Army or by a State; or

*x* * *

shall be punished by a fine of not less than $5,000

nor more than $50,000 per day of violation, or by

imprisonment for not more than 3 years. or by

both. If a conviction of a 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 $100,000 per day of violation, or

by imprisonment of not more than 6 years, or by

both.

18a

33 USC § 1344. Permits for dredged or fill

material

(a) Discharge into navigable waters at specified

disposal sites. The Secretary may issue permits, after

notice and opportunity for public hearings for we dis-

charge of dredged or fill material into the navigable

waters at specified disposal sites. Not later than the

fifteenth day after the date an applicant submits all the

information required to complete an application for a

permit under this subsection, the Secretary shall publish

the notice required by this subsection.

*x* %* *

(e) General permits on State, regional, or

nationwide basis. (1) In carrying out his functions

relating to the discharge of dredged or fill material

under this section, the Secretary may, after notice and

opportunity for public hearing, issue general permits on

a State, regional, or nationwide basis for any category

of activities involving discharges of dredged or fill

material if the Secretary determines that the activities in

such category are similar in nature, will cause only

minimal adverse environmental effects when performed

separately, and will have only minimal cumulative ad-

verse effect on the environment. Any general permit

issued under this subsection shall (A) be based on the

guidelines described in subsection (b)(1) of this section,

and (B) set forth the requirements and standards which

shall apply to any activity authorized by such general

permit.

, «ill

19a

33 USC § 1362. Definitions.

(6) The term "pollutant" means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equip-

ment, rock, sand, cellar direct and industrial, municipal,

and agricultural waste discharged into water.

33 CFR § 328.3. Definitions.

For the purpose of this regulation these terms are

defined as follows:

(a) The term "waters of the United States" means

(1) All waters which are currently used, or

were used in the past, or may be susceptible to use in

interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate

wetlands;

(3) All other waters such as intrastate lakes,

rivers, streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet mea-

dows, playa lakes, or natural ponds, the use, degradation

or destruction of which could affect interstate or foreign

commerce including any such waters:

(i) Which are or could be used by

interstate or foreign travelers for recreational or other

purposes; or

(ii) From which fish or shellfish are or

could be taken and sold in interstate or foreign

commerce; or

(iii) Which are used or could be used for

industrial purpose by industries in interstate commerce:

20a

(4) All impoundments of waters otherwise

defined as waters of the United States under the defini-

tion;

(5) Tributaries of waters identified in para-

graphs (a)(1) through (4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than

waters that are themselves wetlands) identified in para-

graphs (a)(1) through (6) of this section.

x * *

(b) 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 do support, a prevalence of

vegetation typically adapted for life in saturated soil

conditions. Wetlands generally include swamps, marshes,

bogs, and similar areas.

28 USC § 991

(b) The purposes of the United States Sentencing

Commission are to--

(1) establish sentencing policies and practices

for the Federal criminal justice system that--

(A) assure the meeting of the purposes of

sentencing as set forth in section 3553(a)(2) of

title 18, United States Code;

(B) provide certainty and fairness. in

meeting the purposes of sentencing, avoiding

unwarranted sentencing disparities among defen-

dants with similar records who have been found

guilt of similar criminal conduct while main-

taining sufficient flexibility to permit individ-

ualized sentences when warranted by mitigating

Or aggravating factors not taken into account in

the establishment of general sentencing prac-

tices; and

2la

advancement in knowledge of human behavior

as it relates to the criminal justice process; and

(2) develop means of measure the degree to

which the sentencing, penal, and correctional prac-

tices are effective in meeting the purposes of sen-

tencing as set forth in section 3553(a)(2) of title 18,

United States Code.

(b) (1) The Commission, in the guidelines promul-

gated pursuant to subsection (a)(1), shall, for each cate-

gory of offense involving each category of defendant,

establish a sentencing range that is consistent with all

pertinent provisions of title 18, United States Code.

offenses for use in the guidelines and policy statements

governing the imposition of sentences of probation, a

fine or imprisonment, governing the imposition of other

authorized sanctions, governing the size of a fine or the

length of a term of probation, imprisonment, or super-

vised release, and governing the conditions of probation,

supervised release, or imprisonment, shall consider

whether the following matters, among others, have any

relevance to the nature, extent, place of service, or other

incidents of an appropriate sentence, and shall take them

into account only to the extent that they do have rele-

vance--

(1) the grade of the offense;

(2) the circumstances under which the offense

was committed which mitigate or aggravate the

seriousness of the offense;

22a

(3) the nature and degree of the harm caused

by the offense, including whether it involved prop-

erty, irreplaceable property, a person, a number of

persons, or a breach of public trust;

(4) the community view of the gravity of the

offense;

(5) the public concem generated by the of-

fense;

(6) the deterrent effect a particular sentence

may have on the commission of the offense by

others; and

(7) the current incidence of the offense in the

community and in the Nation as a whole.

(f) The Commission, in promulgating guidelines

pursuant to subsection (a)(1), shall promote the purposes

set forth in section 991(b)(1), with particular attention

to the requirements of subsection 991(b)(1)(B) for pro-

viding certainty and fairness in sentencing and reducing

unwarranted sentence disparities.

* * *

(j) The Commission shall insure that the guidelines

reflect the general appropriateness of imposing a sen-

tence other than imprisonment in cases in which the

defendant is a first offender who has not been convicted

of a crime of violence or an otherwise serious offense,

and the general appropriateness of imposing a term of

imprisonment on a person convicted of a crime of vio-

lence that results in serious bodily injury.

(m) The Commission shall insure that the guidelines

reflect the fact that, in many cases, current sentences do

not accurately reflect the seriousness of the offense.

This will require that, as a starting point in its develop-

ment of the initial sets of guidelines for particular cate-

gories of cases, the Commission ascertain the average

sentences imposed in such categories of cases prior to

the creation of the Commission, and in cases involving

sentences to terms of imprisonment, the length of such

terms actually served. The Commission shall not be

bound by such average sentences, and shall indepen-

dently develop a sentencing range that is consistent with

the purposes of sentencing described in_ section

3553(aX(2) of title 18, United States Code.

28 USC § 3553. Imposition of a sentence

(a) Factors to be considered in imposing a sen-

tence.--The court shall impose a sentence sufficient, but

not greater than necessary, to comply with the purposes

set forth in paragraph (2) of this subsection. The court,

in determining the particular sentence to be imposed,

shall consider--

(1) the nature and circumstances of the offense

and the history and characteristics of the defendant:

(2) the need for the sentence imposed--

(A) to. reflect the seriousness of the

offense, to promote respect for the law, and to

provide just punishment for the offense:

(B) to afford adequate deterrence to

criminal conduct;

crimes of the defendant: and

(D) to provide the defendant with needed

educational or vocationa! training, medical care,

24a

or other correctional treatment in the most ef-

fective manner.

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for the applicable category of

offense committed by the applicable category of

defendant as set forth in the guidelines that are

issued by the Sentencing Commission pursuant to

28 U.S.C. 994(a)(1) and that are in effect on the

date the defendant is sentenced;

(5) any pertinent policy statement issued by the

Sentencing Commission pursuant to 28 U.S.C.

994(a)(2) that is in effect on the date the defendant

is sentenced;

(6) the need to avoid unwarranted sentence

disparities among defendants with similiar records

who have been found guilt of similar conduct; and

(7) the need to provide restitution to any

victims of the offense.

25a

PART Q - OFFENSES INVOLVING

THE ENVIRONMENT

* * *

§2Q1.2. Mishandling of Hazardous or Toxic Substances

or Pesticides; Recordkeeping, Tampering, and

Falsification

(a) Base Offense Level: 8

(b) Specific Offense Characteristics

(1) (A) If the offense resulted in an ongoing,

continuous, or _ repetitive discharge,

release, or emission of a hazardous or

toxic substance or pesticide, increase

by 6 levels; or

(B) if the offense otherwise involved a dis-

charge release, or emission of a haz-

ardous or toxic substance or pesticide,

increase by 4 levels.

(2) If the offense resulted in a substantial like-

lihood of death or serious bodily injury, in-

crease by 9 levels.

(3) If the offense resulted in disruption of

public utilities or evacuation of a commun-

ity, or if cleanup required a_ substantial

expenditure, increase by 4 levels.

(4) If the offense involved transportation,

treatment, storage, or disposal without a

permit or in violation of a permit, increase

by 4 levels.

26a

(5) If a recordkeeping offense reflected an

effort to conceal a substantive environ-

mental offense, use the offense level for

the substantive offense.

(6) If the offense involved a simple record-

keeping or reporting violation only,

decrease by 2 levels.

Commentary

[OMITTED]

* * *

§2Q1.3. Mishandling of Other Environmental Pollutants;

Recordkeeping, Tampering, and Falsification

(a) Base Offense Level. 6

(b) Specific Offense Characteristics

(1) (A) If the offense resulted in an ongoing,

continuous, or repetitive discharge,

release, or emission of a pollutant into

the environment, increase by 6 levels;

(B) if the offense otherwise involved a dis-

charge release, or emission of a pollut-

ant, increase by 4 levels.

(2) If the offense resulted in a substantial like-

lihood of death or serious bodily injury, in-

crease by 11 levels.

27a

(3) If the offense resulted in disruption of

public utilities or evacuation of a commun-

ity, or if cleanup required a_ substantial

expenditure, increase by 4 levels.

(4) If the offense involved a discharge without

a permit or in violation of a permit, in-

crease by 4 levels.

(5) If a recordkeeping offense reflected an

effort to conceal a _ substantive environ-

mental offense, use the offense level for

the substantive offense.

Commentary

Statutory Provisions: 33 U.S.C. §§ 403, 406, 407, 411,

1319(c)(1), (c)(2), 1415(b), 1907, 1908; 42 U.S.C. §

7413. ;

Application Notes:

"Recordkeeping offense" includes both record-

keeping and reporting offenses. The term is to be

broadly construed as including failure to report

discharges, releases, or emissions where required;

the giving of false information; failure to file other

required reports or provide necessary information;

and failure to prepare, maintain, or provide records

as prescribed.

If the offense involved mishandling of nuclear

material, apply §2M6.2 (Violation of Other Federal

Atomic Energy Statutes, Rules, and Regulations)

rather than this guideline.

The specific offense characteristics in this section

assume knowing conduct. In cases involving negli-

28a

gent conduct, a downward departure may be war-

ranted.

4. -Subsection (b)(1) assumes a discharge or emission

into the environment resulting in actual environ-

mental contamination. A wide range of conduct,

involving the handling of different quantities of

materials with widely differing propensities,

potentially is covered. Depending upon the harm

resulting from the emission, release or discharge,

the quantity and nature of the substance or pollut-

ant, the duration of the offense and the risk

associated with the violation a departure of up to

two levels in either direction from that prescribed in

these specific offense characteristics may be appro-

priate.

5. Subsection (b)(2) applies to offense where the

public health is seriously endangered. Depending

upon the nature of the risk created and the number

of people placed at risk, a departure of up to three

levels upward or downward may be warranted. If

death or serious bodily injury results, a departure

would be called for. See Chapter Five, Park K

(Departures).

6. Subsection (b)(3) provides an enhancement where a

public disruption, evacuation or cleanup at substan-

tial expense has been required. Depending upon

the nature of the contamination involved, a depar-

ture of up to two levels in either direction could be

warranted.

7. Subsection (b)(4) applies where the offense involved

violation of a permit, or where there was a failure

to obtain a permit when one was required. De-

pending upon the nature and quantity of the sub-

stance involved and the risk associated with the

29a

offense, a departure of up to two levels in either

direction may be warranted.

8. Where a defendant has previously engaged in simi-

lar misconduct established by a civil adjudication or

has failed to comply with an administrative order,

an upward departure may be warranted. See

§4A1.3 (Adequacy of Criminal History Category).

Background: This section parallels §2Q1.2 but applies

to offenses involving substances which are not pesti-

cides and are not designated as hazardous or toxic.

Historical Note: Effective November |, 1987. Amend-

ed effective November 1, 1989 (see Appendix C,

amendment 205).

Defendant(s)/

Docket No./Court

30a

Facts and Status

Dale L. Knoedler

Jim D. Newman

Roger Swenson

84-00059

(D. Neb.)

Facts: Routine EPA inspection discovered

facility lacked technical capability to analyze

samples for fecal coliform (FC) parameters.

Discharge Monitoring Reports stated "0" FC

discharge; lab denied testing. Knoedler is

sewage treatment technician. Newman is

controller and Swenson is plant manager of

Dugdale of Nebraska, Inc.

11/19/84: Five-count information filed charg-

ing Knoedler and Newman with four counts

submitting false statements under Clean Water

Act, Sec. 309(c)(2) [33 U.S.C. § 1319(c)(2)].

Swenson charged with one count violation of

permit conditions under Clean Water Act,

Secs. 301 and 309(c){1) [33 U.S.C. §§ 1311

and 131%c){1)].

12/4/84: Knoedler pled guilty to two counts

violation of Clean Water Act, Sec. 30%c)(2)

and sentenced to one year probation and $300

fine on each count plus court costs.

3/26/85: Five-count superseding information

filed against Newman and Swenson charging

Newman with four counts violating NPDES

permit conditions and Swenson with one count

of same violation, all under Clean Water Act,

Secs. 301 and 309(c\(1) [33 U.S.C. §§ 1311

and 131%c)(1)].

6/3/85: On scheduled trial date, all charges

against Swenson and Newman dismissed on

motion by Office of United States Attorney.

George Henry

Garson

85-00001

(E.D. Pa.)

Facts: Waste solvents introduced into POTW

causing potential fire and explosion hazard.

Garson was 71-year-old former president of

Barrett Chemical Company.

3la

1/3/85: One-count information filed charging

defendant with violation of pretreatment

standards under Clean Water Act. Secs. 307

(b\1) and 309(c)(1) [33 U.S.C. §§ 1317(b)(i)

and 1319(c)(1)].

1/5/85: Defendant pled guilty.

1/10/85: Defendant sentenced to $2,500 fine

and three years probation, including two hours

per week community service during first year.

Ross L. Talbott

Ross M. Talbott

85-00012

(D. Colo.)

Facts: Azinphos methyl 50W, a restricted use

pesticide, applied inconsistent with labeling to

apple orchard and trail park in New Castile.

Failure to notify tenants and prevent re-entry

for 48 hours, as required. Defendants were

corporate principals of Talbott Enterprises, Inc.

1/11/85: One-count information filed charging

both defendants with violation of FIFRA,

Secs. 12 and 47 [7 U.S.C. §§ 1361(b)(2) and

136j(a(2)(G)].

2/25/85: Both defendants pled guilty to petty

offense.

3/25/85: Ross L. Talbott sentenced to $100

fine and Ross M. Talbott fined $50.

K.W. Thompson

Tool Co., Inc.

(aka Thompson

Center Arms)

Robert Gustafson

Joseph Behre

Emmett Ronayne

85-08

Facts: Dumping of hazardous waste, includ-

ing cyanide, banum, potassium nitrate and

sodium hydroxide, into ditch emptying into

Cocheco River and into ground for percola-

tion. Casting wax containing PCBs improp-

erly stored and no_ records maintained.

Company is metal casting and firearms manu-

facturer in Rochester. Gustafson is president

and Ronayne and Behre were vice presidents.

32a

3/18/85: 50-count indictment filed charging:

Company and Ronayne - 41 counts dis-

charge of pollutants without permit in

violation of Clean Water Act, Secs. 301]

and 30%c)\1) [33 U.S.C. §§ 1311 and

1319(c){()1)], three counts violating storage,

marking and _ recordkeeping standards

relating to PCBs under TSCA, Sec. 15 [15

U.S.C. § 2614], one count treatment,

Storage and disposal of hazardous waste

without permit under RCRA, _ Sec

3008(d)(2) [42 U.S.C. § 6928(d)(2)], one

count failure to notify of release of

hazardous waste disposal facility in

violation of CERCLA, Sec. 103(c) [42

U.S.C. § 9603 (b)], ome count failure to

notify of existence of hazardous waste dis-

posal facility in violation of CERCLA, Sec.

103(c) [42 U.S.C. § 9603 (c)], one count

false statements in response to industrial

waste questionnaire [18 U.S.C. § 1001] and

two counts conspiracy to violate Clean

water Act (misdemeanor) and RCRA

(felony).

Behre - Charged on all same counts except

false statements.

Gustafson - 41 counts violation of Clean

Water Act, Secs. 301 and 309%(c)\(1), and

three counts violation of TSCA standards.

6/24/85: Jury viewing of site conducted by

Court; 6/25/85: Trial began.

7/1/85: Company entered guilty plea to 15

counts in violation of Clean Water Act, Secs.

301 and 309(c)\(1), one count under CERCLA,

103(b) and one count under CERCLA, 103(c).

7/2/85: Company sentenced to $4,000 fine on

each Clean Water Act count plus $7,500 of

each CERCLA count for total of $75,000.

Charges against individuals dismissed.

Doe a

33a

> ee te ene

Robert Clements, Facts: Failure to notify EPA of release of

Inc. hazardous substance in excess of one pound

85-00069 from facility in Alexandria.

(E.D. Va.)

4/3/85: Company entered guilty plea to one-

count information filed same day charging

failure to report release of hazardous substance

in violation of CERCLA, Sec. 103(b) [42

U.S.C. § 9603(b)].

4/26/85: Company sentenced to and paid

$4,000 fine.

Venus Labora- Facts: Liquid chemical wastes, including

tories, Inc. cleansers, drain cleaners and other cleaning

85-00238 agents discharged into tributary of Des Plaines

(N.D. Ill.) River without permit. Company allowed con-

taminated runoff to drain into river via ditch

and was believed to have hidden pipe connect-

ing plant drains to city’s storm sewers. EPA

personnel observed highly contaminated water

entering river.

4/17/85: 22-count indictment filed charging

Company with negligent discharge of liquid

chemical wastes into river without permit in

violation of Clean Water Act, Secs. 301 and

30%c)(1) [33 U.S.C. §§ 1311 and 1319(c)(1)).

8/1/85: Company entered guilty plea to four

counts violation of Clean Water Act.

9/17/85: Company sentenced to $2.500 fine

on each count for $10,000 total.

CSI Technologies, Facts: Importation and distribution of

Inc. specialized high voltage, high frequency

85-0325 Capacitors containing PCBs from partner in

(S.D. Cal.) Columbia under technical assistance contract.

EEE

34a

4/16/85: Seal, four-count information filed

charging two felony smuggling counts [18

U.S.C. § 545] and two misdemeanor counts

under TSCA, Sec. 15, for illegal distribution

in commerce of capacitors containing PCBs

[15 U.S.C. § 2614].

4/18/85: Company waived indictment and

pled guilty to information unsealed on this

date. Company sentenced to $30,000 fine and

ordered to destroy all seized capacitors.

Richard Allen

Taggert

Keith Egan

85-60016

(D. Or.)

Facts: False statements made to State of

Oregon inspector concerning accumulation of

hazardous wastes. Egan was plant manager

and Taggert was plant superintendent of Evans

Transportation Company.

4/24/85: One-count information charging both

defendants with one count false statements

under RCRA, Sec. 3008(d\3) [42 U.S.C. §

6928(4d3)].

4/30/85: Egan pled guilty to aiding and

abetting making false statements under RCRA.

5/7/85: Taggert pled guilty to making false

Statements under RCRA.

6/4/85: Egan and Taggert each sentenced to

$2,500 fine.

Albert Mardikian

Garo Mardikian

85-00509

(C.D. Cal.)

Facts: Automobile import and emission test-

ing facility in Orange County used mail fraud

scheme to defraud EPA and Customs Service

regarding importation of motor vehicles not

conforming to Clean Air Act emissions stan-

dards and submittal of false test data to EPA

from mid-1981 until 1984. Albert Mardikian

was chief operations officer and Garo is

Albert’s nephew and plant manager. Agob

was an employee of Albert Mardikian Engi-

neering, Inc.

Sembat Agob

85-00782

(C.D. Cal.)

35a

5/22/85: 35-count felony indictment charging

Albert Mardikian with 17 counts mail fraud

[18 U.S.C. § 1341] and 18 counts false state-

ments [18 U.S.C. § 1001]. Garo Mardikian

was charged with 10 counts of mail fraud.

8/7/85: Trail began.

8/8/85: During presentation of government’s

case, Albert Mardikian entered guilty plea to

nine counts false statements and one count

mail fraud. Garo Mardikian entered guilty

plea on same date to three counts mail fraud.

8/12/85: One-count information filed charging

Agob with one count false statements [18

U.S.C. § 1001]. Agob was an employee of

Mardikian Engineering.

8/13/85: Agob waived indictment and pled

guilty.

11/4/85: Agob sentenced to five years

imprisonment (all but 20 days suspended and

served on weekends), five years probation plus

2,500 hours community service.

11/25/85: Albert Mardikian sentenced to five

years imprisonment (all but six months sus-

pended), five years probation plus 2,080 hours

community service consisting of at least eight

hours per week over five-year period teaching

under-privileged individuals how to improve

job seeking skills; Albert also required to

place no fewer than 20 individuals each year

into jobs plus restitution to mjured partes.

Garo Mardikian sentenced to five years im-

prisonment (all but 30 days suspended and

served on weekends), five years probation plus

community service over five-year period.

Eric Donald

Roth Sr.

85-00119

(E.D. Mo.)

36a

Facts: Five cities paid chemical laboratory in

Festus, Missouri to perform tests required by

Clean Water Act permiis. Laboratory owner

submitted false Discharge Monitoring Reports

to Missouri Department of Natural Resources.

Statements of business associates indicated

knowing violations.

5/23/85: 10-count indictment filed charging

Roth (d/b/a Analyst Consulting Laboratories,

Inc.) with three counts false statements [18

U.S.C. § 1001], two counts mail fraud [18

U.S.C. § 1342] and five misdemeanor counts

of false statements under Clean Water Act,

Sec. 309(c)(2) [33 U.S.C. § 1319(c)(2)].

8/1/85: Roth pled guilty to one felony count

of false statements and two misdemeanor

counts of false statements.

9/6/85: Roth sentenced to four months im-

prisonment on each Clean Water Act count

(terms to run concurrentty). Sentencing on

felony count suspended pending completion of

five years probation and 200 hours community

service.

Layton Brothers

Drum Company,

Inc.

Willie Frank

Hines

85-00174

(D. Colo.)

Facts: Storage and disposal of hazardous

waste without permit, and transportation of

hazardous waste via interstate highway I-70

through Eisenhower Tunnel without manifests.

Oils and other liquid refuse matter channeled

via earth trench into Ralston Creek without

permit. Hines was Company manager.

5/23/85: 11-count indictment filed charging

Company with three counts disposal of haz-

ardous waste without permit and four counts

storage of hazardous waste without permit, all

in violation of RCRA, Sec. 3008(d)(2) {42

U.S.C. § 6928(d)(2)], one count false state-

ments [18 U.S.C. § 1001], one count violation

of the Rivers and Harbors Appropriation Act

of 1899 (Refuse Materials Transportation Act

37a

(HMTA) [49 U.S.C. § 1809]. Hines charged

with one count false statements.

7/12/85: Superseding information filed against

same defendants charging same counts.

9/12/85: Company entered guilty plea to one

count violation of Refuse Act and one count

violation of HMTA. Charges against Hines

dismissed.

10/24/85: Company sentenced to $10,000

fines on HMTA count and $2,000 fine for

Refuse Act violation.

Frankel Manufac- Facts: Storage of hazardous waste without

turing Company permit in excess of 1,000 kilograms.

85-224

(D. Colo.) 7/17/85: Company waived indictment and

entered plea of guilty to information filed on

same date charging one count violation of

RCRA, Sec. 3008(d2) [42 U.S.C. § 6928

(d)(2)].

8/30/85: Company sentenced to $200,000 fine

and three years probation. First $100,000

payable in two annual installments beginning

8/30/86. Remaining $100,000 suspended if

terms of probation, including cleanup and

$100 assessment to Crime Victims Fund are

met.

Fried Industries, Facts: Manufacturer of cleaning agents and

Inc. detergents stored and disposed of industnal

85-58 chemicals containing methylene chlonde, tn-

(D. N.J.) chloromethane, phenanthrene and_ bisphthalate

without permit and without notification to

EPA.

7/31/85: Company waived indictment and

pled guilty to two-count information filed

same date charging one count storage of

hazardous waste without permit in violation of

Dicctnscihaintitteaiteeeettaatiaaliaineiiemaeniiateenilie

38a

RCRA, Sec. 3008(d)(2) [42 U.S.C. § 6928(d)

(2)} and one count failure to notify of release

of hazardous substance under CERCLA, Sec.

103(b) [42 U.S.C. § 9603(b)]. Company sen-

tenced on same date to $40,000 fine.

Peter J. Vileisis, Facts: Building demolition of Old Pin Shop

Jr. in Oakville without notice to EPA, without

Maurice Fabiani removing asbestos prior to demolition and

Waterbury House without wetting asbestos material exposed

Wrecking Co., during operation. Vileisis is president of

Inc. Company and Fabiani is owner of Old Pin

N-85-46 Shop.

(D. Conn.)

8/1/85: Five-count indictment filed charging

Company and Vileisis with three counts caus-

ing asbestos emissions in violation of Clean

Air Act, Secs. 113(c)(1(C), 112(c)1)(B) and

112(eS) [42 U.S.C. §§ 7413(c)1XC), 7412

(ch 1)(B) and 7412(e)(5)) and of 40 CFR §

61.146, and Fabiani with two counts of same

Clean Air Act violations.

11/4/85: Vileisis pled guilty to one count

superseding information filed same date charg-

ing failure to remove asbestos prior to com-

mencement of demolition in violation of Clean

Air Act, Secs. 113(c)1)(C), 112(c)1)(B) and

112(e(5) [42 U.S.C. §§ 7413(c\1KC), 112(c)

(1XC) and 112(e)(5)} and 40 CFR § 61.147.

11/5/85: Fabiani pled guilty in same charge

in one-count superseding information filed this

date.

12/19/85: Vileisis sentenced to one year sus-

pended sentence, five years probation, $25,000

fine plus $25 penalty assessment, 1,000 hours

community service and must attend, at own

expense, seminars on disposal of asbestos.

Fabiani sentenced to one year imprisonment

(all but 30 days suspended), five years proba-

tion, $25,000 fine plus $25 penalty assessment

and 1,000 hours community service.

39a

12/23/85: Charges dismissed against Com-

pany.

5/5/86: Old Pin Shop and Waterbury House

Wrecking each placed on EPA’s List of Vio-

lation Facilities under 40 CFR Part 15 result-

ing in ineligibility for EPA contracts, grants

and loans.

Richard M. Mims

85-252

(N.D. Tex.)

Facts: Mims was former president of Brass

Mill Co., a brass plating company, whuach

directed employees to dump a dozen 55-gallon

drums of toluene at L.B. Houston Nature

Area.

8/20/85: One-count indictment filed charging

defendant with disposal cf hazardous waste

without permit 3008(d)(2) [42 U.S. § 6928(d)(2)).

8/28/85: Defendant pled guilty.

9/25/85: Defendant sentenced to two years

probation and $2,500 fine payable either in

lump sum or monthly installments.

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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.