# Appendix — Dee v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3201%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 919 ## Text IN THE Supreme Court of the United States October Term, 1990 No. WILLIAM DEE, ROBERT LENTZ, and CARL GEPP Petitioners, Vv. UNITED STATES OF AMERICA, Respondent Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit APPENDIX TO PETITION Richard Karceski White & Karceski 305 West Chesapeake Avenue Towson, Maryland 21204 (301) 583-1325 Attorney for William Dee een Brief Printing Specialist, 1001 E. Main Street, Suite 210 Richmond, Virginia 23219, (804) 644-0700 4/2, II. iil. APPENDIX TABLE OF CONTENTS Opinion of the Fourth Circuit. i Statutes Involved............xxxiii 42 U.S.C. Sec. 6903....xxxiii 42 U.S.C. Sec. 6928.....xxxiv 42 U.S.C. Sec. 6961......xXxXXV Proposed RCRA Amendment [H.R. LOSS Jeo ccccccccccccccecs xxxvi So 6k BA A rrr. 1. OPINION OF THE FOURTH CIRCUIT UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 89-5606 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM DEE; ROBERT LENTZ; CARL GEPP, Defendants-Appellants Appeal from the United States District Court for the District of Maryland, at Baltimore. John R. Hargrove, District Judge. (CR-88-211-HAR) Argued: February 8, 1990 Decided: September 4, 1990 Before SPROUSE and CHAPMAN, Circuit Judges, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation. Affirmed by published opinion. Judge Sprouse wrote the opinion, in which Judge Chapman and Senior Judge Ward joined. SPROUSE, Circuit Judge: William Dee, Robert Lentz, and Carl Gepp (hereafter collectively "defendants") appeal the judgment of the district court entered after a jury trial finding them guilty of multiple violations of the criminal provisions of the Resource Conservation and Recovery Act ("RCRA® or “the Act"), 42 U.S.C. Secs. 6901 et seg. I. RCRA provides a comprehensive scheme for regulating storage, transport and disposal of hazardous’ waste, requiring that it be managed to prevent 1 The district court suspended each defendant’s sentence and placed each on probation for three years with a condition of 1,000 hours of community service work. ii 7 i. + = = : es . 4. m \ ; : a” 7 , ¥ . ; » = . bs " >. . j 1: se \ Lal i, ; F a i — . _ “ } : j ‘ ° N. 1 7. } ! * im . 3 as? r : a i i = ‘Zi | ' Ca | ; “2 a0 Sik, Si 2 are egeds Pits * 7 nat 4 . ’ on , ' — be be ° : > ™ 4 7 a t g - ° . 5 ich ay G , yy ‘ ft ql %. x) $4 , 4 tin 4\ oe om “ * a J oH hi ™ . ft +4/ é 4) “s . ! ial by ‘ + 4 : ‘ i ‘ j | a ie ve ' me Pee _ , } 3 a 7" ly has o - VW ” re - ~ ss , . ' Pat 3 2 . 7 5 ‘ A an a, i i we = a. ‘ ‘a ' by i ' ' = HS prt) ea ie y J “ . ; gern Sa ewe : ——— =m a = easeen bres ogee aneeeerpee i : Sieunes ieaeeramnteoeeet Se aT aA cimmehoes = : a Ty = Re x Rare errs CE OR ES ore ei itm Me Fe Rd eer eee So ee: Sie en Ns Wit ete = Na A ee knowledge of APG 200-2, CRDCR 710-1, and RCRA. II. The defendants first contend that they are immune from the criminal provisions of RCRA because of their status as federal employees working at a federal facility. Because 42 U.S.C. SEc. 6928(d) defines those liable as "any person who" knowingly violates the Act, and because neither the United States nor an agency of the United States is defined as a person, defendants maintain they cannot be "perscns" in the sense contemplated by Sec. 6928(d). They assert that by reason of their employment by the federal government they are entitled to sovereign immunity, meaning they are immune from this criminal prosecution. viii There simply is no merit to this suggestion. The Act defines "person" as an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body. 42 U.S.C. Sec. 6903(15). The definition begins with an inclusion of "an individual" as a person. The defendants, of course, were indicted, tried, and convicted as individuals, not as agents of the government. Suffice it to say that sovereign immunity does not attach to individual government employees so as to immunize them from prosecution for their criminal acts. ‘Ss a Littleton, 414 U.S. 488, 503 (1974); cf. Butz v. Economou, 438 U.S. 478, 506 (1978) ("all individuals, whatever their ix position in government, are subject to federal law"). Even where certain federal officers enjoy a degree of immunity for a particular sphere of official actions, there is no general immunity from criminal prosecution for actions taken while serving their office. United States v. Hastings, 681 F.2d 706, 710-12 (11th Cir. 1982) ("A judge no less than any other man is subject to the process of the criminal law"), cert.denied, 459 U.S. 1203 (1983); United States v. Diggs, 613 F.2d 988, 1001 (D.C. Cir. 1979) ("Article I, Sec. 5 does not immunize a member of Congress from the operations of the criminal law"), cert. denied, 446 U.S. 982 (1980). See generally United States Vv. Isaacs, 493 F.2d 1124, 1142-44 (7th Cir.) ("Criminal conduct is not part of x , fAwerrrwe Tos the necessary functions performed by public cofficials") cert. denied, 417 U.S. 976 (1974).? IItt Defendants next contend that they did not "knowingly" commit the crimes proscribed by RCRA. See 42 U.S.C. Sec. 6928(d). They claim that there was insufficient evidence to show that they knew violation of RCRA was a crime; also, that they were unaware that the chemicals they managed were hazardous wastes. 7 Because defendants were prosecuted as individuals, their argument as to the scope of Congresses’ waiver of immunity under 42 U.S.C. Sec. 6961 is inapposite. The same may be said of their reliance on California v. Walters, 751 F.2d 977 (9th Cir. 1984), which involved an attempt by the City of Los Angeles to prosecute a federal agency and its administrator under xi * . ° saat ahaha tls i 5 anti itcaciaeey : = * a oa _———— -—— The Supreme Court has repeatedly rejected similar arguments in cases involving recognition of dangerous materials, applying the familiar principle that “ignorance of the law is no defense." United States v. International Minerals & Chem. Corp.,, 402 U.S. 558, 563 (1971); United States v. Freed, 401 U.S. 601, 607-610 (1971); United States Dotterweich, 320 U.S. 277, 280-81 (1943), and United States v. Balint, 258 U.S. 250 (1922). We agree with the Eleventh Circuit that this time-honored rule applies to [continuation of footnote 7} California hazardous waste law. The Ninth Circuit held that, although 42 U.S.C. Sec. 6961 directs federal agencies to comply with state hazardous waste laws, Congress did not intend to waive the United States’ sovereign immunity to criminal sanctions. Walters does not apply here for two reasons. First, unlike the case sub xii pet ey a = i? naa d 7 - a, ou =H VP Sa ‘ ace, ‘=. bys = o ee c - * “= 7 = wy ‘ P - prosecutions under RCRA. United States v. Hayes Int’] Corp., 786 F.2d 1499, 1502-03 (1ith Cir. 1986); see also United States v. Hoflin, 880 F.2d 1033, 1036-39 (9th Cir. 1989), cert. denied, 110 S.Ct. 1143 (1990); cf. United States vy. Johnson & Towers, Inc., 741 F.2d 662, 669 (1984), cert. denied, 469 U.S. 1208 (1985). "(Wjhere, as here. ° o* dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of {continuation of footnote 7] judice, Walters involved an action against a federal agency and its administrator in his official capacity. The Walters court expressly warned: "Our decision is compelled by the parties’ agreement that the action is essentially one against the United Stats. Our holding in this case does not necessarily apply in all cases to prosecutions against federal officers or federal agencies." Jd. at 979. xiii ; “ 4 - ‘of ‘ c; ' y vee : ¢ js ADP SH. BT SIoeeo ig a a ; bt El, } \ wT? whey at x i. Ri leks ial OR ee ied) | ee % fis Lk rier Oe f — - . oe . ¢ - : Me ely » cpa ‘ ~- \ ‘ ~~ - o ' rs ‘ 2 * PS l . - . t re er ENE a SNE § Fernm e » - — them or dealing with them must _ be presumed to be aware of the regulation." International Minerals, 402 U.S. at 565. Therefore, the government did not need to prove defendants knew violation of RCRA was a crime, nor that regulations existed listing and identifying the chemical wastes as RCRA hazardous wastes. However, we agree with defendants that the knowledge element of Sec. 6928(d) does extend to knowledge of the general hazardous character of the wastes. Among its jury instructions, the district court included one that [continuation of footnote 7] Second, Walters involved an attempt by a state to enforce state law against a federal agency: and its officer. In certain circumstances, federal officers may avoid criminal prosecution by a state when the alleged crime arose from performance of federal duties. Cunningham v. Neagle, 135 U.S. 1, 75-76 (1890); Morgan v. California, 742 F.2d 728, 731 (9th Cir. 1984). The supremacy xiv += a, he a 4 a an iy4 4 va oa 1 + . — ‘ } Sy 7’ A 62 yt 2 > 4d . * ’ : a; i. . , at J : « “ 7 ' ‘ ‘ A. : o +] Sb. : é , — ' f ; a, y F - re eile ance ; ee 5 ¥ ’ ; ‘ 1 > eee 7 mite ie . Ll efi mz “é OT es 2 etal E ee ee ee ee 1 (11th Cir. 1988) (jury instructed that defendant had to know the chemical waste had potential to harm others or the environment). However, we think the error was harmless. The record reflects overwhelming evidence that defendants were aware they were dealing with hazardous chemicals. See Pope _v. Illinois, 481 U.S. 497, 501-03 (1987); Rose _v. Clark, 478 U.S. 570, 576-79 (1986) (conviction should stand if the reviewing court can confidently say that no rational juror, if properly instructed, could have found for defendant) .8 Contrary to defendants’ 8 We find no merit to the other contentions raised by the defendants in connection with the district court’s instruction. As a whole, the instructions "fairly and adequately state[d] the pertinent legal principles involved." See Hogg’s Oyster Co. v. United States, 676 F.2d 1015, 1019 (4th Cir. 1982). xvi ta ed 0 rn ER Pte 2. sete oe assertions, the evidence also cleariy established that the materials they handled were "wastes" as that term is used in the statute. ? IV In addition to the preceding general challenges to their convictions, defendants raise issues specific to each count. Count One charged defendants with unpermitted storage and cisposal of a hazardous waste--dimethyl polysulfide- -at the Pilot Plant from June i983 to 9 Defendants’ self-serving argument that materials were not wastes until they declared them wastes is without merit. Furthermore, the evidence demonstrates that defendants considered some if not all of the chemicals listed under each count to be wastes because they ordered their disposal. xvid ct ARN at it ate August 1984. Gepp and Lentz were found guilty of this count. Dimethyl polysulifide is a chemical the Center had considered as a component for a binary chemical weapon.1° puring the 1970s, the Center produced dimethyl polysulfide at the Pilot Plant and also purchased some from chemical companies. In 1980, 200 canisters of dimethyl polysulfide were brought to the Pilot Plant from Fort Sill, Oklahoma, because they were leaking. All the dimethyl polysulfide was stored on the fourth floor of the Pilot Plant. Included were batches that 10 Binary weapons make use of two chemicals, neither of which is lethal by itself, but which combine to form a lethal agent. xviii oa mane - 7 : = a _——-s :| a LL a — — = —— et ———— - - 7 > - ? eter attaninate not consider cleanup of the building a priority. Lentz and Dee contest their convictions under Count Four claiming that they could not “inherit an RE eA aah SNe A eh cial . ek winter Oe environmental crime." This argument borders on the frivolous. The indictment charged defendants with unpermitted [continuation of footnote 17] in the sumps. We note, however, that RCRA flatly prohibits unpermitted disposal eof hazardous wastes. The concentration of the wastes after disposal has no bearing on whether the disposal was illegal, xxxi storage of hazardous wastes at the Old Pilot plant from June 1983 to August 1986. There is substantial evidence in the record that during this time period defendants were responsible for maintenance of the Old Pilot Plant, that they were aware of the hazardous condition of chemical storage there, and that they failed to ensure that the hazardous wastes were managed in accordance with RCRA. Defendants may have inherited an environmental problen, but their criminal culpability arises solely from their own ongoing failure to comply with RCRA during the period they were responsible for the Old Pilot Plant. IX In view of the above, the judgment of the district court is xxxii AFFIRMED. il. STATUTES OR REGULATIONS INVOLVED (pertinent parts only, emphases retained) 42 U.S.C. Sec. 6903. Definitions. -_ x (4) The term "Federal agency" means any department, agency, or other instrumentality of the Federal Government, any independent agency or establishment of the Federal Government including any Government corporation, and the Government Printing Office. zee (15) The term "person" means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body. xxxiii 42 U.S.C. Sec. 6928. Penalties. (d) Criminal penalties. {It shall be a criminal violation when any person]... (2) knowingly treets, stores, or disposes of any hazardous waste identified or listed under this subtitle. * * * / (A) without a permit under this subtitle or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act [33 U.S.C. Secs. 1411 et seq.) xk shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both. If the conviction is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment under the respective paragraph shall be doubled with respect to both fine and imprisonment. XxXXiV ~ a pve etpalecan ta y4.eu yon TO eseggeii ae on a a=W fo G3 talilLideps: sae oe D, . * * gla thioe aise boron : yg L AoW o Sumiziv’ tA: — tr Ta bere lt) ais feta : i it Aa TCLIYhiel ire iC Jee ) | , te bsipier eo Ce. oe qo . ae Te) = 5 ge 7. pole 6 le eda ore, nour a (aie : vd Id rey eso pried i a ’ ~ 1 fake sh 2 ae > 9 | iieleer » ae ag Bas f Shey” out : ; jtepetey TS nersnloly ete. ~isorvens efg AT viet 9a | . $e7ohdeed dedtenety ; | hare ou ‘ve ‘wanlasiVvead 4 rig Aol aa aT Ee eile ? A PTAG av) s6qP? ae : . yori a “te are tm Lite: fi . tea ronriaaa : * 7 Lean ——ot | 42 U.S.C. Sec. 6961. Application of Federal, State, and local law to Federal facilities. Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions or injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to tne enforcement of any such injunctive relief. * * %* [One-year renewable exemptions from requirements if in the paramount interest of United States, requirement of annual report to Congress on exemptions]. xxXXV TII. PROPOSED RCRA AMENDMENT _ H.R. 1056 {pertinent part only] 101ist Congress lst Session IN THE SENATE OF THE UNITED STATES July 20 (legislative day, January 3), 1989 Received; read twice and referred to the Committee on Environment and Public Works AN ACT To amend the Solid Waste Disposal Act to Clarify provisions concerning the application of certain requirements and sanctions to Federal facilities. 1 Be it enacted by the Senate and House of Representa — . the United stat 7 ’ __in Congress assembled, 3 Section 1. Short Title. xxxVi This Act may be cited as the "Federal Facilities Com- pliance Act of 1989". Sec.2. Application of Certain Provisions to Federal Facilities. (a) IN GENERAL.--Section 6001 of the Solid Waste Disposal Act (42 U.S.C. 6961) is amended-- (1) by inserting "(a) IN GENERAL. --" after "6001."; (2) in the first sentence, by inserting "and man- agement" before "in the same manner"; (3) by inserting after the first sentence the follow- ing: "The Federal, State, xxxvii 10 11 12 13 14 15 16 interstate, and local substan- tive and procedural requirements referred to in this ‘ subsection include, but are not limited to, all adminis- trative orders and all civil and administrative penalties and fines."; and (4) by inserting after the second sentence the fol- lowing: "For purposes of enforcing any such substan- tive or procedural requirement (including, but not limit- ed to, any injunctive relief, administrative order, or civil or administrative penalty or fine) against any such department, agency, or instrumentality, the United xXxXxxViii OE a CMRI: i ne ee bl rae te ee ec 17 18 19 20 21 22 23 24 25 States hereby expressly waives any immunity other- wise applicable to the United States. No agent, em- ployee, or officer of the United States shall be person- ally liable for any civil penalty under any Federal or State solid or hazardous waste law with respect to any act or omission within the scope of his official duties. An agent, employee, or officer of the United States shall be subject to any criminal sanction (including, but not limited to, any fine or imprisonment) under any Federal or State solid or hazardous waste law, but no xxxix ee ee ee ee a oa oo ee = ee eres - 2 department, agency, or instrumentality of the execu- 3 tive, legislative, or judicial branch of the Federal Gov- 4 ernment shall be subject to any such sanction.". - * ” 7 SEC. 3. DEFINITION. 8 (a) PERSON.--Subtitle F of the Solid Waste Disposal 9 Act is amended by adding at the end the following: 10 "SEC. 6005. DEFINITION OF PERSON. 11 "For purposes of this Act, the term ‘person’ wherever 12 used in this Act, shall be treated as including each depart- 13 ment, agency, and instrumentality of the United States." 14 (b) TABLE OF CONTENTS.--The table x1 of contents for 15 such subtitle F is amended by adding the following new item 16 at the end: "Sec. 6005. Definition of person.". * * i xli --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3201%3A2. Public record. Not legal advice.