Petition for Writ of Certiorari — United States v. Villegas
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Supreme Court, U.S,
FILBOD
— 2215172 APR 4
OFFICE OF THE CLERK
Jn the Supreme Court of the United States
OCTOBER TERM, 1993
UNITED STATES OF AMERICA, PETITIONER
Vv.
GERONIMO VILLEGAS
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Acting Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
MIGUEL A. ESTRADA
Assistant to the Solicitor General
JOHN A. BRYSON
ROBIN L. GREENWALD
VICKI L. PLAUT
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
QUESTION PRESENTED
Whether respondent was properly convicted under the
Clean Water Act, 33 U.S.C. 1811(a) and 1319(c), for
taking vials filled with human blood from his car and
discharging those vials into navigable waters.
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Cases:
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d
co ENTER ISEIRENA SEEDERS RESO aie
Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), aff’d
in part sub nom. Romero-Barcelo v. Brown, 643 F.2d
835 (1st Cir. 1981), rev’d, 456 U.S. 305 (1982) ...............
Chapman v. United States, 111 S. Ct. 1919 (19B1) ...cc0
Federal Land Bank of St. Paul v. Bismarck Lumber
I
Huddleston v. United States, 415 U.S. 814 (1974) ........
Moskal v. United States, 498 U.S. 103 (1990)...............
National Organization for Women, Inc. v. Scheidler,
5 s ___ RT oa
Pittston Coal Group v. Sebben, 488 U.S. 105 (1988) ......
Pope v. Illinois, 481 U.S. 497 (1987) ....ccccccccccccosecceceesees
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) .....
Sierra Club v. Abston Constr. Co., 620 F.2d 41 (5th Cir.
| Oe ESET RGREES SRE ANAS ie ROL nee Oe a
Smith v. United States, 113 S. Ct. 2050 (1993) .............
United States v. Bass, 404 U.S. 336 (1971) ..................
(IIT)
IV
Cases—Continued: Page
United States v. Earth Sciences, Inc., 599 F.2d 368 (10th
CU. EPS Ue cccsccvecbnscecioctnetnddensastienciaistiaadtibtaniaainidaiteaies 15
United States v. Fisher, 6 U.S. (2 Cranch) 358 (1805) ..... 14
United States v. Standard Oil Co., 384 U.S. 224 (1966) ... 6
United States v. Thompson/Center Arms Co., 112 S. Ct.
SITE CUE cccuiinsisncntetidbasabsbeaeedansudtinnidachtapubidinscdsbanianalaceaih 16
Statutes:
Clean Water Act, 33 U.S.C. 1251 et 80. .........ccccsssseereceeees 2
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United States Public Vessel Medical Waste Anti-Dumping
Act of 1988, Pub. L. No. 100-688, Tit. III, § 3202(b), 102
EE: ID Siiccctscissicctidscnentiesansecalisstosiabinccbiaieldeneneatestin 17
Miscellaneous:
S. Rep. No. 50, 99th Cong., Ist Sess. (1985) ..........ccceeeeeees 13
In the Supreme Court of the Gnited States
OCTOBER TERM, 1993
No.
UNITED STATES OF AMERICA, PETITIONER
Vv.
GERONIMO VILLEGAS
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The Solicitor General, on behalf of the United
States, petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Second Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, la-
33a) is reported at 3 F.3d 643. The opinion of the
district court (App., infra, 34a-53a) is reported at 784
F. Supp. 6.
JURISDICTION
The judgment of the court of appeals was entered on
September 1, 1993. A petition for rehearing was de-
nied on December 3, 1993. App., infra, 72a-73a. On
February 22, 1994, Justice Thomas extended the time
(1)
2
for filing a petition for a writ of certiorari to and
including April 4, 1994. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant portions of Sections 301, 309 and 502 of
the Clean Watér Act, 33 U.S.C. 1311, 1319 and 1362,
are set forth at App., infra, 74a-81a.
STATEMENT
Following a jury trial in the United States District
Court for the Eastern District of New York, respon-
dent was convicted of knowingly discharging pollu-
tants (vials filled with human blood) into navigable
waters, in violation of 33 U.S.C. 1311(a) and 1319(c)(2)
(Counts 2 and 4), and placing others in imminent
danger of death or serious bodily injury by knowingly
discharging pollutants into navigable waters, in
violation of 33 U.S.C. 1811(a) and 1319(c)(3) (Counts 1
and 3). The district court granted a judgment of
acquittal on the two knowing endangerment counts.
The court of appeals reversed the remaining counts.
1. The Clean Water Act, 33 U.S.C. 1251 et seq., isa
comprehensive statute designed “to restore and main-
tain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. 1251(a). To achieve
that goal, Section 301(a) of the Act, 33 U.S.C. 1311 (a),
prohibits the “discharge of any pollutant” into
navigable waters of the United States except in
accordance with a permit issued under Section 402 or
404 of the Act, 33 U.S.C. 1342, 1344. The term
“discharge of a pollutant” is defined to mean “any
addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. 1362(12).
3
The term “point source” is defined to mean
any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feed-
ing operation, or vessel or other floating craft,
from which pollutants are or may be discharged.
This term does not include agricultural stormwa-
ter discharges and return flows from irrigated
agriculture.
33 U.S.C. 1362(14). Any person who knowingly dis-
charges a pollutant into navigable waters of the
United States without authorization in a permit is
subject to criminal penalties under Section 309(c)(2)
of the Act, 33 U.S.C. 1319(c)(2). Additional penalties
attach under Section 309(c)(3) of the Act, 33 U.S.C.
1319(c)(3), if the discharge places others in imminent
danger of death or serious bodily injury.
2. Respondent was the vice-president and co-owner
of Plaza Health Laboratories, Inc. (Plaza), a blood
testing laboratory in Brooklyn, New York. On at
least two separate occasions, between April and
September 1988, respondent transported in the trunk
of his car hundreds of blood vials generated at Plaza
to the Admirals Walk Condominium complex, located
on the Hudson River in Edgewater, New Jersey. Once
there, respondent took the vials out of his trunk and
disposed of them in the Hudson River. App., infra, 2a,
30a.
In May 1988, school children on a Staten Island field
trip found numerous glass vials containing human
blood washed up on the beach. City workers later dis-
covered approximately 70 additional vials containing
human blood scattered along the shoreline and
4
floating in the incoming tide; the broken remains of
other vials were found ameng clusters of rocks in the
shallow waters. Some of the vials contained blood
infected with the hepatitis-B virus. App., infra, 2a,
34a-35a.
In September 1988, New Jersey authorities found at
least one hundred blood vials floating in the Hudson
River in front of the Admirals Walk Condominium
complex. A plastic bag containing additional vials was
found wedged into the rocks of the river bulkhead.
Once again, some of the vials were found to contain
blood infected with the hepatitis-B virus. Authorities
traced all of the vials from both incidents to Plaza.
When respondent was questioned, he admitted dump-
ing blood vials into the bulkhead that separated his
New Jersey condominium and the Hudson River.
App., infra, 2a-3a, 35a.
3. Respondent was subsequently indicted under
the Clean Water Act. He was charged in two counts
with knowingly discharging a pollutant—i.e., the
vials filled with human blood. Based on the fact that
some of the blood was contaminated with the
hepatitis-B virus, he was also charged in two counts
with placing others in imminent danger of death or
serious bodily injury by the knowing discharge of a
pollutant.
On the requirement that there be a “discharge from
a point source”—an element of each of the charges
against respondent—the district court instructed the
jury that “[rJemoving pollutants from a container, and
a vehicle is a container, parked next to a navigable
body of water and physically throwing the * * *
pollutant into the water constitutes a discharge from
a point source.” App., infra, 65a. The district court
further explained that
5
Congress chose to distinguish between “point
sources” and “non-point sources” with the spe-
cific purpose of excluding various kinds of pollu-
tion runoff, that is, runoff produced principally by
rainfall that cannot be traced to one polluter.
Congress did not intend to exempt from regula-
tion any activity that emits pollution from an
identifiable point. Congress did not intend by the
term “point source” to distinguish between a
person who drives a truck to the edge of the
Hudson River and dumps blood vials, ciearly a
point source, and a person who gets out of the
truck, takes the vials from the truck, walks to the
river’s edge and dumps them from his hand.
Ibid. Respondent was convicted on all counts.
Following the verdict, the district court entered a
judgment of acquittal on the two knowing endanger-
ment charges, holding that there was insufficient evi-
dence that respondent’s conduct created an imminent
danger of hepatitis contagion. App., infra, 52a-53a.
The court rejected, however, respondent’s broader
claim that he was entitled to acquittal on all charges,
because “neither [respondent] nor his vehicle was a
‘point source.’” Respondent’s Memorandum in Sup-
port of Motion for Post-Trial Judgment of Acquittal
19. Respondent’s contention was based on the theory
that the Act is concerned only with discharges that
arise from “fixed facilities” or “plants” that are
ongoing sources of pollution. Jd. at 20; see also App.,
infra, 42a n.2. The court explained that the statutory
definition of “point source” is “emphatically inclu-
sive, as reflected in the words ‘any,’ ‘discernible’ and
‘not limited to.’” Jd. at 38a-39a. In addition, the court
noted that the use of the word “conveyance” in the
6
statutory definition “establishes that Congress had
an expansive vision of what would constitute a point
source,” since “(t]he word conveyance is defined
simply as ‘a means or way of conveying.’” Jd. at 39a.
Finally, the court rejected respondent’s reliance on
the rule of lenity, holding that the rule should not be
invoked to defeat the obvious purpose of the Act. /d.
at 37a-38a, citing United States v. Standard Oil Co.,
384 U.S. 224, 225 (1966). Respondent was sentenced to
twelve months’ imprisonment, to be followed by one
year of supervised release. App., infra, 3a-4a.
4. A divided panel of the court of appeals reversed
respondent’s remaining convictions, holding that
there was no discharge from a “point source,” because
“thle] statute was never designed to address the
random, individual polluter like [respondent].” App.,
infra, 7a. The court explained that it “is evident from
a perusal of its many sections” that the Clean Water
Act “generally targets industrial and municipal
sources of pollutants,” since “the term ‘point source’
is used throughout the statute, but invariably in sen-
tences referencing industrial or municipal dis-
charges.” Jd. at 8a. The court also relied on the
legislative history of the Act, which it interpreted to
support its view that Congress adopted the “point
source” concept simply “as a means of identifying
industrial polluters.” Jd. at 10a.
While the court acknowledged that lower courts
have uniformly construed “point source” more
broadly, the court noted that those cases “have done
so in civil-penalty or licensing settings, where
greater flexibility of interpretation * * * is permitted,
and the rule of lenity does not protect a defendant
against statutory ambiguities.” App., infra, 13a.
Here, the court believed, “the term ‘point source’ as
7
applied to a human being is at best ambiguous,” id. at
15a, and the rule of lenity required that the ambiguity
be resolved in respondent’s favor. “Compelled by the
rule of lenity,” the court reversed the convictions and
remanded “with a direction to dismiss the indict-
ment.” Jd. at 17a.
Judge Oakes dissented. Judge Oakes concluded that
the Clean Water Act is not ambiguous “with respect
to an individual physically disposing of medical
wastes, in quantity, directly into navigable waters, by
means of a controllable, discrete conveyance and
course of action.” App., infra, 3la. Judge Oakes noted
that “the term ‘point source’ has been broadly con-
strued to apply to a wide range of polluting tech-
niques, so long as the pollutants involved are not just
humanmade, but reach the navigable waters by human
effort or by leaking from a clear point at which waste
water was collected by human effort.” Jd. at 21a.
Judge Oakes explained:
I doubt that Congress would have regarded an
army of men and women throwing industrial
waste from trucks into a stream as exempt from
the statute. Since the Act contains no exemption
for de minim[i]s violations * * * I cannot see that
one man throwing one day’s worth of medical
waste into the ocean differs * * *. A different
reading would encourage corporations perfectly
capable of abiding by the Clean Water Act’s
requirements to ask their employees to stand
between the company trucks and the sea, thereby
transforming point source pollution (dumping
from trucks) into nonpoint source pollution
(dumping by hand). Such a method is controllable,
easily identifiable, and inexcusable. To call it
8
nonpoint source pollution is to read a technical
exception into a statute which attempts to define
in broad terms an activity which may be conducted
in many different ways.
Id. at 27a-28a. Because “the discharge was directly
into water, and came from an identifiable point,” id. at
26a, and respondent had fair warning that his actions
were illegal, id. at 32a-33a, Judge Oakes concluded
that respondent’s conduct was proscribed by the
Clean Water Act. Jd. at 28a-31a, 33a.'
REASONS FOR GRANTING THE PETITION
The court of appeals’ conclusion that the Clean
Water Act incorporates an “industrial or municipal
pollution” requirement drastically erodes the protec-
tions of the Act. By mistaking the Act’s breadth for
ambiguity, the court of appeals has created a non-
textual requirement that is, at best, elusive and
incapable of principled administration by the courts
or the government. Because the court of appeals’
cramped reading of the Act conflicts with the Act’s
plain language and with the approach taken by other
circuits, and because the scope of the Act is an issue
' In view of its conclusion that respondent’s conduct in-
volved no “point source,” the majority found it unnecessary to
reach the government’s cross-appeal challenging the entry of a
judgment of acquittal on the two knowing endangerment
counts. App., infra, 16a-17a. Judge Oakes addressed the gov-
ernment’s cross-appeal, and he agreed with the district court.
Id. at 33a. Because the majority of the court of appeals has not
yet addressed whether the evidence was sufficient to support a
finding of “imminent danger,” and because the majority may
agree with the government’s position on that issue if this Court
decides the logically antecedent “point source” question in the
government’s favor, the question of the proper interpretation
of the “imminent danger” requirement is not before this Court.
9
of exceptional public importance, this Court’s review
is warranted.
1. The court of appeals correctly recognized that
respondent’s conduct in driving to the edge of the
Hudson River and depositing the vials in the river is
proscribed by the Clean Water Act if it is a “dis-
charge of a pollutant.” The court, however, largely
ignored the Act’s broad definition of that phrase. The
phrase “discharge of a pollutant” is defined to mean
“any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. 1362(12) (emphasis
added). A point source, in turn, is
any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.
This term does not include agricultural storm-
water discharges and return flows from irrigated
agriculture.
33 U.S.C. 1362(14) (emphasis added). By repeatedly
using the inclusive word “any,” the Act clearly mani-
fests an intent to embrace the totality of discharges
from “discernible, confined and discrete con-
veyance[s] * * * from which pollutants are or may be
discharged.” The breadth of the Act’s reach is
confirmed by the statutory list of point sources,
which Congress expressly made nonexhaustive. See
Federal Land Bank of St. Paul v. Bismarck Lumber
Co., 314 U.S. 95, 100 (1941). It is difficult to imagine a
statutory definition less susceptible to a narrow
interpretation, and it is clear that the automobile
used by respondent to transport the blood to the bank
10
of the Hudson River meets that definition as a
“conveyance.” Having been instructed that respon-
dent’s car, when parked next to the river bank, met
that definition, the jury properly found respondent
guilty as charged.
2. In narrowing the scope of the statutory
language, the court of appeals relied principally (App.,
infra, 8a-9a) on its conclusion that the phrase “point
source” is used throughout the Act in contexts that
evince Congress’s concern with “industrial” or
“municipal” pollution. The court believed that the
legislative history of the Act evidences the same
focus on “industrial” or “municipal” pollution, and
that the “ambiguity” created by Congress’s failure to
advert specifically to the conduct at issue here
warranted application of the rule of lenity. Each of
those conclusions is unsound.
a. Because the term “point source” is expressly
defined by the Act, the court of appeals erred in
seeking to narrow its meaning by reference to
various contexts in which the term is used in the Act,
rather than faithfully applying the broad definition \
enacted by Congress. Respondent unquestionably
took pollutants (vials filled with human blood) from a
conveyance (his car) and added those pollutants to
navigable waters (the Hudson River). No more is
required for liability under the statutory definitions
of “discharge of a pollutant” and “point source.”
* Indeed, even if the court of appeals were correct in its
view that the Act’s principal applications will arise in the con-
text of “industrial” or “municipal” pollution, that fact would
not serve to narrow the scope of the Act. That the statutory
language can be read to include certain evils does not indicate
that such language must be read to exclude other evils (such as
dumping from a truck by hand) that also fall within the broad
11
The court of appeals nonetheless believed that
Congress could not possibly have intended to include
a human being as a “point source” under the Act. We
believe that the district court correctly concluded
that the Act’s definition of “point source” is broad
enough to embrace a human “conveyance” (App.,
infra, 40a), but that issue is not pertinent to the
validity of respondent’s conviction. As the court of
appeals itself recognized (id. at 6a), the jury was
instructed that respondent’s vehicle was the
statutory “conveyance.” Only if the intervention of a
human being between that conveyance and the water
precludes conviction under the Clean Water Act as a
matter of law, could the Second Circuit’s decision be
justified. The Second Circuit, however, cited no
statutory language calling for that exception.®
terms of the language chosen by Congress. See Smith v.
United States, 113 S. Ct. 2050, 2055 (1993). Moreover, in this
case the vials of blood that respondent conveyed were wastes
generated by, and transported from, a commercial laboratory
— a type of “industrial” source.
* Because respondent’s jury was not instructed that a person
can be a point source, that issue is logically relevant to the
validity of his conviction only if the Act is read to require that
the last chain in the link of conveyances itself be a “point
source.” While the court of appeals’ entire analysis appears to
be based on that assumption, nothing in the Act requires it.
Whether or not respondent himself is a “point source,” he
clearly “added” a pollutant to the Hudson River “from” a
“discernible, confined and discrete conveyance”— viz. his car.
While the court of appeals noted that the government urged
in its briefing below that a human being can be a “point
source,” the court failed to appreciate that that argument was
merely responsive to respondent’s claim that he was entitled to
a judgment of acquittal. If the Act is read to require that the
last point in the chain that places pollutants in the water itself
12
b. As for legislative history, it is not the discus-
sion of anticipated applications in the legislative
history that delimits the scope of a statute, but rather
the language actually enacted by Congress. See, e.g.,
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 &
n.13 (1985). As this Court has repeatedly emphasized,
“ijt is not the law that a statute can have no effects
which are not explicitly mentioned in its legislative
history.” Pittston Coal Group v. Sebben, 488 U.S.
105, 115 (1988). See also Moskal v. United States, 498
U.S. 108, 111 (1990) (“This Court has never required
that every permissible application of a statute be
expressly referred to in its legislative history”).
”
must be a “point source,” it would follow that respondent’s jury
was not properly instructed, because the jury was told that
respondent’s vehicle (as opposed to respe*«!os himself) was the
statutory conveyance. But if the evidence *..roduced at trial
was sufficient for a jury to find guilt under proper instructions
(i.e., instructions identifying respondent as the “point source”),
that hypothetical error in the instructions would at most
entitle respondent to a new trial (not en acquittal), and then
only if the instruction error was not harmless, see Pope v. :
Illinois, 481 U.S. 497, 501-504 (1987). An outright acquittal
would be warranted only if (i) the Act requires that the point
source always be the last link in the chain of acts constituting
the discharge of a pollutant, and (ii) a human being can never
be a point source as a matter of law.
In sum, the court of appeals’ ruling dismissing the indict-
ment outright is based on two logically separate and indepen-
dent errors. First, the court erred in its implicit assumption
that there could be no discharge “from” the vehicle point
source unless respondent is himself a “point source”—i.e., it
was error to assume that the Act requires that the last link in
the chain of discharging a pollutant itself be a point source.
Second, the court also erred in concluding that a human being
cannot be a point source. Correction of either error is suffi-
cient to overturn the judgment below.
13
Because the statutory language does not encompass
the “industrial” or “municipal” pollution limitation
adopted by the court of appeals, the failure of the
legislative history specifically to advert to the
application of the Act urged by the government
cannot properly be used to create a non-textual
exception not otherwise found in the statute.
In any event, to the extent the legislative history
speaks to the issue at all, it undermines the
conclusion reached by the court of appeals. As Judge
Oakes noted in dissent, Congress recognized that
pollution of navigable waterways can often result
from diffuse precipitation, percolation, or runoff—
é.g., agricultural chemicals from farmlands and other
substances washed by unchanneled rain into naviga-
ble waters. App., infra, 23a-24a; see also S. Rep. No.
50, 99th Cong., 1st Sess. 7-8, 33-43 (1985), Congress
decided to leave regulation of such diffuse pollution
initially to the States, and adopted the “point source”
concept as a means of identifying pollution that may
readily be attributed to a particular source and which
is therefore subject to federal regulation. App., infra,
24a-25a. The source of respondent’s pollution is
easily identifiable and controllable, and that is all that
the legislative history contemplates as necessary for
its classification as a “point source.”
¢. As for the rule of lenity, this Court has empha-
sized repeatedly that that rule is not applicable unless
there is a “grievous ambiguity” in the statute,
Huddleston v. United States, 415 U.S. 814, 831 (1974),
such that even after a court has “ ‘seize[d] every
thing from which aid can be derived’ it is still ‘left
with an ambiguous statute.’ ” Chapman v. United
States, 111 S. Ct. 1919, 1926 (1991), quoting United
States v. Bass, 404 U.S. 336, 347 (1971), quoting
14
United States v. Fisher, 6 U.S. (2 Cranch) 358, 386
(1805). A statute is not “ ‘ambiguous’ for purposes of
lenity merely because it [is] possible to articulate a
construction more narrow than that urged by the
Government.” Moskal v. United States, 498 U.S. at
108; Smith v. United States, 113 S. Ct. at 2059. Nor is
a statute ambiguous for purposes of lenity merely
because a particular application of clear statutory
language was not contemplated by Congress; that a
statute “has been applied in situations not expressly
anticipated by Congress does not demonstrate am-
biguity. It demonstrates breadth.” National Organi-
zation for Women, Inc. v. Scheidler, 114 S. Ct. 798,
806 (1994), quoting Sedima, S.P.R.L. v. Imrex Co., 473
U.S. at 499.
The court of appeals plainly disregarded those
principles. The court’s rule that the Clean Water Act
ceases to apply when a human being is placed between
the water and the conveyance loaded with pollutants
is not even a possible interpretation of any statutory
language. It is unalloyed speculation about the likely
reach of legislative concerns—speculation that man-
ifestly conflicts with broad, clear, and unambiguous
statutory language. The comprehensiveness of the
Act’s definition of “point source” (see pages 3, 9,
supra) leaves no doubt that the Act encompasses the
conduct of which respondent was convicted—loading
his car with medical waste products, driving his car
to the water’s edge, and dumping the wastes into the
Hudson River.‘ The court of appeals therefore erred
4 Indeed, whether the vehicle’s contents were dumped
directly into the water from the vehicle or hand-carried for
that purpose is no more material to the Act’s obvious pro-
hibitory aims than would be the extent to which hand carriage
15
in invoking lenity to place that conduct beyond the
reach of the Act.
3. The court of appeals’ decision conflicts with
decisions from other circuits, which have recognized
that the plain language of the Act embraces a broad
array of polluting conduct that is logically indistin-
guishable from respondent’s activities. In Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 922
(5th Cir. 1983), for example, the court concluded that
bulldozers and backhoes used to effect a discharge
into navigable waters are statutory “point sources.”
The fact that human intervention manifestly is
necessary before a backhoe or a bulldozer can convey
pollutants to navigable waters did not prevent the
Fifth Circuit from applying the Clean Water Act as
written. Other courts of appeals have similarly
concluded that “it contravenes the intent of [the
Clean Water Act] and the structure of the statute to
exempt from regulation any activity that emits
pollution from an identifiable point.” United States v.
Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979)
(runoff collected by mining operation that escapes
through fissure in berm or overflow of a wall is a
discharge from a point source); see also Sierra Club
v. Abston Constr. Co., 620 F.2d 41, 47 (5th Cir. 1980)
(“surface runoff from rainfall, when collected or
channeled by coal miners in connection with mining
activities, constitutes point source pollution”); Bar-
celo v. Brown, 478 F. Supp. 646, 664 (D.P.R. 1979)
(release or firing of ordnance from aircraft is a
discharge from a point source), aff’d in relevant part
sub nom. Romero-Barcelo v. Brown, 643 F.2d 835,
was used in loading the wastes into the vehicle in the first
place.
16
861-862 (1st Cir. 1981), rev’d on other grounds, 456
U.S. 305 (1982).
The court of appeals recognized that its decision is
inconsistent with the principles announced in those
cases (App., infra, 13a-14a), but it believed that its
decision created no inter-circuit conflict, because
those cases were civil proceedings in which the rule
of lenity is inapplicable. This Court’s decisions,
however, do not support the court of appeals’ attempt
to interpret the same statutory language differently
depending on the civil or criminal nature of each
particular case. On the contrary, this Court has
repeatedly recognized that language that is capable of
civil and criminal applications must receive the same
construction in both contexts, and that the rule of
lenity does not change that principle of consistency.
See, e.g., National Organization for Women, Inc. v.
Scheidler, 114 S. Ct. at 806; United States v. Thomp-
son/Center Arms Co., 112 S. Ct. 2102, 2110 n.10 (1992)
(plurality opinion); id. at 2110 (Scalia, J., concurring
in judgment). By departing from the uniform course
of pertinent decisions on the meaning of the “point
source” requirement, the decision of the court of
appeals in this case, if allowed to stand, will cause
substantial confusion concerning an important
question under the Act.
4. The decision of the court of appeals poses a
serious threat to civil and criminal enforcement of
the Clean Water Act. Because the same statutory def-
initions apply equally to civil and criminal enforce-
ment actions under the Act, the Second Circuit’s
decision will be relied upon by defendants who will
claim that their polluting conduct, despite being
specifically identifiable and controllable, is not
covered by the Act.
17
In addition, the Second Circuit’s decision leaves
seriously unclear the nature of the “industrial” or
“municipal” connection that the court believes is
necessary to invoke the protections of the Act.
Respondent was convicted, after all, of polluting a
major waterway with medical wastes that originated
in his commercial blood testing laboratory. It is
accordingly difficult to see in what sense his conduct
can be deemed unconnected to the commercial
production of goods and services that is the hallmark
of “industry.” Yet the court of appeals concluded that
the intervention of a human hand between his
“conveyance” and the water constitutes a complete
defense to prosecution, warranting outright dismissal
of the indictment. That unwarranted emphasis on the
intervention of a human hand, which arguably could
even be applied to the hand that operates a dumptruck,
is an open invitation to circumvention of the compre-
hensive statutory scheme that Congress adopted.
Requiring civil and criminal enforcement under the
Act to depend on whether a human hand intervened
between a conveyance and the water would frustrate
the fundamental statutory purpose of prohibiting
pollution of the Nation’s waterways. Even the court
of appeals recognized (App., infra, 17a) that respon-
dent’s polluting activities were dangerous and repre-
hensible.’ But the court excused respondent’s con-
* Indeed, in the particular factual context of pollution
caused by medical wastes, Congress amended the Act, after the
events at issue in this case, to prohibit all “discharges” of medi-
cal wastes into navigable waters. See 33 U.S.C. 1311(f)
(effective November 19, 1988, see United States Public Vessel
Medical Waste Anti-Dumping Act of 1988, Pub. L. No. 100-688,
Tit. III, § 3202(b), 102 Stat. 4154). The question presented in
this case, under the Clean Water Act, is of course of broader
18
duct in a manner that invites other would-be polluters
to attempt to drive the army of laborers hypothesized
by Judge Oakes through the eye of the Second Cir-
cuit’s needle. Review by this Court is, accordingly,
warranted.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
Lots J. SCHIFFER
Acting Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
MIGUEL A. ESTRADA
Assistant to the Solicitor General
JOHN A. BRYSON
ROBIN L. GREENWALD
Vick! L. PLAUT
Attorneys
APRIL 1994
applicability because it affects discharges of many kinds of pol-
lutants, not just medical wastes.
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 61, 79, Dockets 92-1090, 92-1091
CROSS-APPELLANT
v.
PLAZA HEALTH LABORATORIES, INC., DEFENDANT
GERONIMO VILLEGAS, DEFENDANT.
APPELLANT-CROSS-APPELLEE
Argued Sept. 16, 1992
Decided Sept. 1, 1993
Before: OAKES, KEARSE, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
Defendant Geronimo Villegas appeals from a judg-
ment entered in the United States District Court for
the Eastern District of New York, Edward R.
Korman, Judge, convicting him of two counts of
knowingly discharging pollutants into the Hudson
River in violation of the Clean Water Act (“CWA”)
See 33 U.S.C. §§ 1311 and 1319(c)(2). The government
cross-appeals, claiming the district court erred in its
post-verdict grant of a judgment of acquittal on two
counts of violating the knowing-endangerment pro-
visions of the act. See 33 U.S.C. § 1319(c)(3).
la
2a
FACTS AND BACKGROUND
Villegas was co-owner and vice president of Plaza
Health Laboratories, Inc., a blood-testing laboratory
in Brooklyn, New York. On at least two occasions
between April and September 1988, Villegas loaded
containers of numerous vials of human blood gener-
ated from his business into his personal car, and
drove to his residence at the Admirals Walk Condo-
minium in Edgewater, New Jersey. Once at his con-
dominium complex, Villegas removed the containers
from his car and carried them to the edge of the Hud-
son River. On one occasion he carried two containers
of the vials to the bulkhead that separates his
condominium complex from the river, and placed them
at low tide within a crevice in the bulkhead that was
below the high-water line.
On May 26, 1988, a group of eighth graders on a
field trip at the Alice Austin House in Staten Island,
New York, discovered numerous glass vials contain-
ing human blood along the shore. Some of the vials
had washed up on the shore; many were still in the
water. Some were cracked, although most remained
sealed with stoppers in solid-plastic containers or
ziplock bags. Fortunately, no one was injured. That
afternoon, New York City workers recovered approx-
imately 70 vials from the area.
On September 25, 1988, a maintenance worker em-
ployed by the Admirals Walk Condominium discov-
ered a plastic container holding blood vials wedged
between rocks in the bulkhead. New Jersey authori-
ties retrieved numerous blood vials from the bulkhead
later that day.
Ten of the retrieved vials contained blood infected
with the hepatitis-B virus. All of the vials recovered
were eventually traced to Plaza Health Laboratories.
3a
Based upon the May 1988 discovery of vials, Plaza
Health Laboratories and Villegas were indicted on
May 16, 1989, on two counts each of violating
$§ 1319(c)(2) and (3) of the Clean Water Act. 33 U.S.C.
§ 1251 et seq. A superseding indictment charged both
defendants with two additional CWA counts based
upon the vials found in September 1988.
In December of 1990 the district court granted the
government’s motion to sever all claims against
Plaza Health Laboratories, apparently due to Plaza’s
participation in ongoing bankruptcy proceedings.
The government then proceeded to trial against
Villegas only.
Counts II and IV of the superseding indictment
charged Villegas with knowingly discharging pollu-
tants from a “point source” without a permit. See
33 U.S.C. §§ 1311(a), 1319(c)(2). Counts I and III
alleged that Villegas had discharged pollutants,
knowing that he placed others in “imminent danger of
death or serious bodily injury”. See 33 U.S.C.
§ 1319(c)(3). On January 31, 1991, following a trial
before Judge Korman, the jury found Villegas guilty
on all four counts.
Renewing a motion made at trial, Villegas moved
for a judgment of acquittal on all counts under rule 29
of the Federal Rules of Criminal Procedure. Judge
Korman granted the motion on counts I and III,
holding that he had incorrectly instructed the jury on
the act’s “knowing endangerment” provisions. This
ruling is reported at 784 F.Supp. 6, 13-14 (E.D.N.Y.
1991). The district judge denied the motion on counts
II and IV, rejecting arguments that the act did not
envision a human being as a “point source”. 784 F.
Supp. at 10-11.
Judge Korman sentenced Villegas on counts II and
IV to two concurrent terms of twelve months’ im-
Le
4a
prisonment, one year of supervised release, and a $100
special assessment. Execution of the sentence was
stayed pending this appeal.
Villegas contends that one element of the CWA
crime, knowingly discharging pollutants from a
“point source”, was not established in his case. He
argues that the definition of “point source”, 33 U.S.C.
§ 1362(14), does not include discharges that result
from the individual acts of human beings. Raising
primarily questions of legislative intent and statu-
tory construction, Villegas argues that at best, the
term “point source” is ambiguous as applied to him,
and that the rule of lenity should result in reversal of
his convictions. The government has cross-appealed
from the district court’s post-verdict order acquit-
ting Villegas on the two knowing-endangerment
counts.
DISCUSSION
Because “discharge from a point source” is an
essential element of a “knowing” violation as well as
a “knowing endangerment” violation, see 33 U.S.C.
§§ 1319(c)(2)-(3) and discussion infra, we need not
address the government’s contentions regarding the
CWA’s definition of “imminent danger” if we should
conclude that Villegas’s discharges were not “from a
point source”. We therefore consider the “point
source” issue first.
A. Navigating the Clean Water Act.
The basic prohibition on discharge of pollutants is
in 33 U.S.C. § 1311(a), which states:
Except as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of
this title, the discharge of any pollutant by any
person shall be unlawful.
aie
5a
Id. (emphasis added).
The largest exception to this seemingly absolute
rule is found in 33 U.S.C. § 1342, which establishes
the CWA’s national pollutant discharge elimination
system, or NPDES:
(a) Permits for discharge of pollutants
(1) Except as provided in sections 1328 [aqua-
culture] and 1344 of this title (dredge and fill
permits], the Administrator may, after oppor-
tunity for public hearing, issue a permit for the
discharge of any pollutant * * * notwithstanding
section 1311(a) of this title, upon condition that
such discharge will meet * * * all applicable
requirements under sections 1311, 1312, 1316,
1317, 1318, and 1343 of this title * * *.
33 U.S.C. § 1342(a) (emphasis added),
Reading § 1311(a), the basic prohibition, and
§ 1342(a)(1), the permit section, together, we can iden-
tify the basic rule, our rhumb line to clean waters,
that, absent a permit, “the discharge of any pollutant
by any person” is unlawful. 33 U.S.C. § 1311(a).
We must then adjust our rhumb line by reference to
two key definitions—“pollutant” and “discharge”.
“Pollutant” is defined, in part, as “biological mater-
ials * * * discharged into water.” 33 U.S.C. § 1362(6)
(emphasis added). “Discharge”, in turn, is “any addi-
tion of any pollutant to navigable waters from any
point source * * *.” (emphasis added). 33 U.S.C.
§ 1362(12).
As applied to the facts of this case, then, the
defendant “added” a “pollutant” (human blood in glass
vials) to “navigable waters” (the Hudson River), and
he did so without a permit. The issue, therefore, is
whether his conduct constituted a “discharge”, and
that in turn depends on whether the addition of the
6a
blood to the Hudson River waters was “from any
point source”.
For this final course adjustment in our navigation,
we look again to the statute.
(14) The term “point source” means any dis-
cernible, confined and discrete conveyance,
including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal
feeding operation, or vessel or other floating
craft, from which pollutants are or may be
discharged. This term does not include agricul-
tural stormwater discharges and return flows
from irrigated agriculture.
33 U.S.C. § 1362(14).
During and after Villegas’s trial, Judge Korman
labored over how to define “point source” in this case.
At one point he observed that the image of a human
being is not “conjured up” by congress’s definition of
“point source”. Ultimately, he never defined the
“point source” element but he did charge the jury:
Removing pollutants from a container, and a
vehicle is a container, parked next to a navigable
body of water and physically throwing the
pollutant into the water constitutes a discharge
from a point source.
In ruling on Villegas’s rule 29 motion, however,
Judge Korman held that the element “point source”
may reasonably be read
to include any discrete and identifiable conduit—
including a human being—designated to collect
or discharge pollutants produced in the course of
a waste-generating activity. (emphasis added).
Ta
As the parties have presented the issue to us in
their briefs and at oral argument, the question is
“whether a human being can be a point source”. Both
sides focus on the district court’s conclusion in its
rule 29 memorandum that, among other things, the
requisite “point source” here could be Villegas
himself.
Significantly, the jury was never clearly in-
structed on this legal theory, and the instruction
actually given bordered on an improper removal of the
determination of an essential element of the crime
from the jury’s consideration. Serious problems
might be presented by the government’s attempt to
justify Judge Korman’s post-verdict definitional
efforts as an alternate theory upon which to uphold
Villegas’s convictions. Chiarella v. United States,
445 U.S. 222, 236, 100 S.Ct. 1108, 1118, 63 L.Ed.2d 348
(1980) (court may not affirm criminal conviction on
basis of theory not presented to jury).
However, far more fundamental than any error in
jury instructions is the problem highlighted by the
district court’s analytical struggle to find somewhere
in the Villegas transaction a “discernible, confined
and discrete conveyance”. Simply put, that problem
is that this statute was never designed to address the
random, individual polluter like Villegas.
To determine the scope of the CWA’s “point
source” definition, we first consider the language and
structure of the act itself. If the language is not
plain, an excursion into legislative history and con-
text may prove fruitful. Judicial interpretations of
the term can be instructive as well, as may be
interpretive statements by the agency in charge of
implementing the statute. If we conclude after this
analysis that the statute is ambiguous as applied to
Villegas, then the rule of lenity may apply. Moskal v.
8a
United States, 498 U.S. 108, 107, 111 S.Ct. 461, 465,
112 L.Ed.2d 449 (1990); United States v. Concepcion,
983 F.2d 369, 380 (2d Cir.1992).
1. Language and Structure of Act.
Human beings are not among the enumerated items
that may be a “point source”. Although by its terms
the definition of “point source” is nonexclusive, the
words used to define the term and the examples given
(“pipe, ditch, channel, tunnel, conduit, well, discrete
fissure”, etc.) evoke images of physical structures
and instrumentalities that systematically act as a
means of conveying pollutants from an industrial
source to navigable waterways.
In addition, if every discharge involving humans
were to be considered a “discharge from a point
source”, the statute’s lengthy definition of “point
source” would have been unnecessary. It is elemental
that congress does not add unnecessary words to
statutes. Had congress intended to punish any human
being who polluted navigational waters, it could
readily have said: “any person who places pollutants
in navigable waters without a permit is guilty of a
crime.”
The Clean Water Act generally targets industrial
and municipal sources of pollutants, as is evident
from a perusal of its many sections. Consistent with
this focus, the term “point source” is used through-
out the statute, but invariably in sentences referen-
cing industrial or municipal discharges. See, e.g.,
33 U.S.C. § 1311 (referring to “owner or operator” of
point source); § 1311(e) (requiring that effluent limi-
tations established under the Act “be applied to all
point sources of discharge”); § 1311(g)(2) (allows an
“owner or operator of a point source” to apply to EPA
for modification of its limitations requirements);
§ 1342(f) (referring to classes, categories, types, and
9a
sizes of point sources); § 1314(b)(4)(B) (denoting “best
conventional pollutant control technology measures
and practices” applicable to any point source within
particular category or class); § 1316 (“any point
source * * * which is constructed as to meet all
applicable standards of performance”); § 1318(a)
(administrator shall require owner or operator of any
point source to install, use and maintain monitoring
equipment or methods); and § 1318(c) (states may
develop procedures for inspection, monitoring, and
entry with respect to point sources located in state).
This emphasis was sensible, as “{iJndustrial and
municipal point sources were the worst and most
obvious offenders of surface water quality. They
were also the easiest to address because their
loadings emerge from a discrete point such as the end
of a pipe.” David Letson, Point/Nonpoint Source
Pollution Reduction Trading: An Interpretive Sur-
vey, 32 Nat.Resources J. 219, 221 (1992),
Finally on this point, we assume that congress did
not intend the awkward meaning that would result if
we were to read “human being” into the definition of
“point source”. Section 1362(12)(A) defines “dis-
charge of a pollutant” as “any addition of any pollu-
tant to navigable waters from any point source”.
Enhanced by this definition, § 1311(a) reads in effect
“the addition of any pollutant to navigable waters
from any point source by any person shal! be
unlawful” (emphasis added). But were a human being
to be included within the definition of “point source”,
the prohibition would then read: “the addition of any
pollutant to navigable waters from any person by
any person shall be unlawful”, and this simply makes
no sense. As the statute stands today, the term
“point source” is comprehensible only if it is held to
the context of industrial and municipal discharges.
10a
2. Legislative History and Context.
The broad remedial purpose of the CWA is to “re-
store and maintain the chemical, physical, and bio-
logical integrity of the Nation’s waters”. 33 U.S.C.
§ 1251(a). The narrow questions posed by this case,
however, may not be resolved merely by simple
reference to this admirable goal. See National
Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C.
Cir. 1982) (“it is one thing for Congress to announce a
grand goal, and quite another for it to mandate full
implementation of that goal”). We agree with the
court in National Wildlife Fed’n that “even if we
accept the purposes section at face value, it is only
suggestive, not dispositive of [the issue before us].
Caution is always advisable in relying on a general
declaration of purpose to alter the apparent meaning
of a specific provision.” Jd.
The legislative history of the CWA, while providing
little insight into the meaning of “point source”,
confirms the act’s focus on industrial polluters.
Congress required NPDES permits of those who
discharge from a “point source”. The term “point
source”, introduced to the act in 1972, was intended to
function as a means of identifying industrial pol-
luters—generally a difficult task because pollutants
quickly disperse throughout the subject waters. The
senate report for the 1972 amendments explains:
In order to further clarify the scope of the regula-
tory procedures in the Act the Committee had
added a definition of point source to distinguish
between control requirements where there are
specific confined conveyances, such as pipes, and
control requirements which are imposed to
control runoff. The control of pollutants from
runoff is applied pursuant to section 209 and the
naan
lla
authority resides in the State or other local
agency.
S.Rep. No. 92-414, reprinted in 1972 U.S.C.C.A.N.
3668, 3744.
Senator Robert Dole added his comments to the
committee report:
Most of the problems of agricultural pollution deal
with non-point sources. Very simply, a non-point
source of pollution is one that does not confine its
polluting discharge to one fairly specific outlet,
such as a sewer pipe, a drainage ditch or a conduit;
thus, a feedlot would be considered to be a non-
point source as would pesticides and fertilizers.
Id. at 3760 (supplemental views). See also National
Wildlife Fed’n, 693 F.2d at 175 (congress’s focus was
on traditional industrial and municipal wastes); £.I.
du Pont de Nemours & Co. v. Train, 430 U.S. 112,
118-21, 97 S. Ct. 965, 970-71, 51 L.Ed.2d 204 (1977)
(outlines EPA scheme of effluent limitations for
subject industrial groups).
We find no suggestion either in the act itself or in
the history of its passage that congress intended the
CWA to impose criminal liability on an individual for
the myriad, random acts of human waste disposal, for
example, a passerby who flings a candy wrapper into
the Hudson River, or a urinating swimmer. Dis-
cussions during the passage of the 1972 amendments
indicate that congress had bigger fish to fry.
The 1972 congress modeled the NPDES, its ag-
gressive new permitting program, after the Rivers
and Harbors Act of 1899 (“RHA”; known also as the
Refuse Act), 33 U.S.C. § 401, et seq. See S.Rep. No.
92-414, reprinted in 1972 U.S.C.C.A.N. 3668, 3672 &
3738. The CWA’s focus on transporting pollutants to
navigable waters via the “point source” mechanism
12a
represented a departure from the RHA’s more
general approach:
It shall not be lawful to throw, discharge, or
deposit * * * any refuse matter of any kind or
description whatever other than that flowing from
streets and sewers and passing therefrom in a
liquid state, into any navigable water of the
United States * * *.
33 U.S.C. § 407.
Unlike §§ 1311 and 1319(c)(2) of the CWA, the
RHA’s relevant criminal provision, 33 U.S.C. § 411,
has been held to provide for strict liability, and the
most severe criminal penalty is a misdemeanor.
United States v. White Fuel Corp., 498 F.2d 619, 622
(1st Cir. 1974). Accordingly, we view with skepticism
the government’s contention that we should broadly
construe the greatly magnified penal provisions of
the CWA based upon RHA cases that did so in the
context of strict-liability and misdemeanor penalties.
See, e.g., United States v. Standard Oil Co., 384 U.S.
224, 229-30, 86 S.Ct. 1427, 1429-30, 16 L.Ed.2d 492
(1966) (holding “refuse matter” in § 407 includes
commercially valuable gasoline accidentally dis-
charged into navigable river); United States v. Amer-
ican Cyanamid Co., 354 F.Supp. 1202, 1205 (S.D.N.Y.
1973) (construing RHA broadly, court held that
refuse discharged into tributary satisfied “navigable
waters” requirement); see also United States v.
Republic Steel Corp., 362 U.S. 482, 489-91, 80 S.Ct.
884, 888-90, 4 L.Ed.2d 903 (1960) (RHA construed
broadly in injunction context; RHA “obstruction”
included liquid matter discharged from mills which
impaired navigation by settling in bottom of channel).
13a
3. Caselaw.
Our search for the meaning of “point source”
brings us next to judicial constructions of the term.
The “point source” element was clearly established
in the few CWA criminal decisions under § 1319(c)
that are reported. See United States v. Boldt, 929
F.2d 35, 37-38 (1st Cir.1991) (discharge of partially
untreated industrial wastewater from storage tank
directly into municipal sewer); United States v.
Frezzo Bros., Inc., 602 F.2d 1123, 1125 (8d Cir.1979)
(compost materials discharged from pipe into tribu-
tary of creek), cert. denied, 444 U.S. 1074, 100 S.Ct.
1020, 62 L.Ed.2d 756 (1980); United States v. Hamel,
551 F.2d 107, 108 (6th Cir.1977) (gasoline pumped into
lake from underground tank); cf. United States v.
Oxford Royal Mushroom Products, Inc., 487 F.Supp.
852, 854 (E.D. Pa. 1980) (overflow of spray-irrigation
system discharging waste water into nearby stream
is “point source” discharge).
With the exception of Oxford Royal Mushroom,
supra, the cases that have interpreted “point source”
have done so in civil-penalty or licensing settings,
where greater flexibility of interpretation to further
remedial legislative purposes is permitted, and the
rule of lenity does not protect a defendant against
statutory ambiguities. See, e.g., Avoyelles Sports-
men’s League, Inc. v. Marsh, 715 F.2d 897, 922 (5th
Cir.1983) (“point source” includes bulldozing equip-
ment that discharged dredged materials onto wet-
land).
For example, our circuit recently held in Dague v.
City of Burlington, a civil-penalty case, that a
discharge of pollutant-laden leachate into a culvert
leading to navigable waters was through a “point
source”. 935 F.2d 1343, 1354-55 (2d Cir.1991), rev’d in
l4a
part on other grounds, --- U.S. ----, 112 S.Ct. 2638, 120
L.Ed.2d 449 (1992). But in Dague, unlike in this case,
the city’s discharge involved a culvert, one of the
specifically enumerated examples of a “point source”
set forth in § 1362(14). Dague, 935 F.2d at 1354.
Dague thus presented a classic “point source”
discharge.
The government relies on broad dicta in another
civil case, United States v. Earth Sciences, Inc., 599
F.2d 368, 373 (10th Cir.1979), in which the court held
“(t]he concept of a point source was designed to
further this [permit regulatory] scheme by embrac-
ing the broadest possible definition of any identifiable
conveyance from which pollutants might enter the
waters of the United States.” We do not find this
Earth Sciences dicta persuasive here, however,
because that court found a “point source” in a ditch
used in the mining operation—certainly not a far leap
when “ditch” also is an expressly listed example of a
“point source”. We cannot, however, make the fur-
ther leap of writing “human being” into the statutory
language without doing violence to the language and
structure of the CWA.
4. Regulatory Structure.
Finally, not even the EPA’s regulations support
the government’s broad assertion that a human being
may be a “point source”. Cf. National Wildlife
Fed’n, 693 F.2d at 166-67 & 173 n. 54 (as EPA has
power to define point and nonpoint sources in CWA,
courts must give great deference to EPA's construc-
tion of “point source”). The EPA stresses that the
discharge be “through pipes, sewers, or other con-
veyances”:
l5a
Discharge of a pollutant means:
(a) Any addition of any “pollutant” or combination
of pollutants to “waters of the United States”
from any “point source”,
*K * * * * *
This definition includes additions of pollutants
into waters of the United States from: surface
runofr which is collected or channelled by man;
discharges through pipes, sewers, or other con-
veyances owned by a State, municipality, or other
person which do not lead to a treatment works;
and discharges through pipes, sewers, or other
conveyances, leading into privately owned treat-
ment works. This term does not include an addi-
tion of pollutants by any “indirect discharger.”
40 C.F.R. § 122.2 (1992) (emphasis supplied).
In sum, although congress had the ability to so
provide, § 1362(14) of the CWA does not expressly
recognize a human being as a “point source”; nor
does the act make structural sense when one in-
corporates a human being into that definition. The
legislative history of the act adds no light to the |
muddy depths of this issue, and cases urging a broad ;
interpretation of the definition in the civil-penalty
context do not persuade us to do so here, where
congress has imposed heavy criminal sanctions.
Adopting the government’s suggested flexibility for
the definition would effectively read the “point
source” element of the crime out of the statute, and
not even the EPA has extended the term “point
source” as far as is urged here.
We accordingly conclude that the term “point
source” as applied to a human being is at best
ambiguous.
16a
B. Rule of Lenity.
In criminal prosecutions the rule of lenity requires
that ambiguities in the statute be resolved in the
defendant’s favor. Crandon v. United States, 494
U.S. 152, 168, 110 S.Ct. 997, 1006, 108 L.Ed. 2d 132
(1990) (ambiguity in criminal statute resolved in
defendant’s favor “unless and until Congress plainly
states that we have misconstrued its intent”); Bifulco
v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247,
2252, 65 L.Ed.2d 205 (1980) (same); Huddleston v.
United States, 415 U.S. 814, 830-31, 94 S.Ct. 1262,
1271-72, 39 L.Ed.2d 782 (1974) (ambiguity concerning
ambit of criminal statutes should be resolved in favor
of lenity). In other words, we cannot add to the
statute what congress did not provide. “(BJefore a
man can be punished as a criminal under the Federal
law his case must be ‘plainly and unmistakably’
within the provisions of some statute.” United States
v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61
L.Ed. 857 (1917).
Since the government’s reading of the statute in
this case founders on our inability to discern the
“obvious intention of the legislature”, Huddleston,
415 U.S. at 831, 94 S.Ct. at 1272, to include a human
being as a “point source”, we conclude that the
criminal provisions of the CWA did not clearly
proscribe Villegas’s conduct and did not accord him
fair warning of the sanctions the law placed on that
conduct. Under the rule of lenity, therefore, the
prosecutions against him must be dismissed.
C. Knowing Endangerment.
As noted above, our ruling on “point source”
obviates the need for us to address the government’s
cross-appeal that the district court erred in acquit-
ting Villegas of two counts of “knowing endanger-
17a
ment” when it adopted post-trial a different definition
of “imminent danger” than what it had included in its
charge to the jury. We affirm the district court’s
acquittal on these two counts on the same ground
upon which we reverse the other two counts: defen-
dant’s discharges were not from a “point source” as
defined in the act.
CONCLUSION
The Clean Water Act targets industrial and munic-
ipal production of pollutants. Its criminal provisions
do not reach actions such as those done by Villegas,
despite their heinous character. While we might
think it desirable to punish such an obviously wrong
act, we must nevertheless ensure that we apply the
Statute as congress wrote it, giving Villegas the
benefit of the substantial ambiguity in its meaning.
Justice Douglas’s comments, made in reviewing a
1966 prosecution under the Rivers and Harbors Act,
are equally appropriate today:
This case comes to us at a time in the Nation’s
history when there is greater concern than ever
over pollution—one of the main threats to our
free-flowing rivers and to our lakes as well. The
crisis that we face in this respect would not, of
course, warrant us in manufacturing offenses
where Congress has not acted nor in stretching
statutory language in a criminal field to meet
strange conditions.
Standard Oil Co., 384 U.S. at 225, 86 S.Ct. at 1428.
Compelled by the rule of lenity, we reverse
Villegas’s judgment of conviction and remand with a
direction to dismiss the indictment.
Convictions reversed; cross-appeal affirmed.
18a
OAKES, Circuit Judge, dissenting:
I agree that this is not the typical Clean Water Act
prosecution—though, as criminal prosecutions under
the Act are infrequent, or at least result in few
published judicial opinions, what is “typical” is as yet
ill-defined. I also agree that the prosecutors in this
case may not have defined the theory of their case
before proceeding to trial as well as they might have,
thereby complicating the task of determining
whether the jury was asked to resolve the proper
factual questions. However, because I do not agree
that a person can never be a point source, and because
I believe that Mr. Villegas’ actions, as the jury found
them, fell well within the bounds of activity pro-
scribed by the Clean Water Act’s bar on discharge of
pollutants into navigable waters, I am required to
dissent.
Point source.
I begin with the proposition that the Clean Water
Act bars “the discharge of any pollutant by any
person,” except as authorized elsewhere in the Act.
33 U.S.C. § 1311(a) (1988). The only limiting factors
are definitional: the Act bars “discharges” from
“point sources” of “pollutants” to “navigable
waters.” It does not bar nonpoint source pollution,
pollution of dry land or nonnavigable waters, or the
movement of existing pollution within the navigable
waters.
The key in this case is the definition of a point
source. The term is introduced as part of the
definition of “discharge of a pollutant”: “any addition
of any pollutant to navigable waters from any point
! This list is not exclusive. The terms listed are defined at
33 U.S.C. § 1362(12), (14), (6) and (7) (1988), respectively.
19a
source.” 33 U.S.C. § 1362(12)(A) (1988). The term
“point source,” in turn, is defined as
any discernible, confined and discrete con-
veyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other
floating craft, from which pollutants are or may
be discharged. This term does not include agri-
cultural stormwater discharges and return flows
from irrigated agriculture.
33 U.S.C. § 1362(14) (1988) (emphasis added).
The language of this definition indicates that it
encompasses a wide range of means of placing
pollutants into navigable waters. The question before
us is what, in addition to the listed examples, is a
“discernible, confined and discrete conveyance.”
I begin with the obvious, in hopes that it will
illuminate the less obvious: the classic point source
is something like a pipe. This is, at least in part,
because pipes and similar conduits are needed to
carry large quantities of waste water, which repre-
sents a large proportion of the point source pollution
problem. Thus, devices designed to convey large
quantities of waste water from a factory or municipal
sewage treatment facility are readily classified as
point sources. Because not all pollutants are liquids,
however, the statute and the cases make clear that
means of conveying solid wastes to be dumped in
navigable waters are also point sources. See, e.g.,
33 U.S.C. § 1362(14) (“rolling stock,” or railroad cars,
listed as an example of a point source); Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 922
(5th Cir.1983) (backhoes and bulldozers used to gather
fill and deposit it on wetlands are point sources).
20a
What I take from this look at classic point sources
is that, at the least, an organized means of channeling
and conveying industrial waste in quantity to navi-
gable waters is a “discernible, confined and discrete
conveyance.” The case law is in accord: courts have
deemed a broad range of means of depositing
pollutants in the country’s navigable waters to be
point sources. See, e.g., Rybachek v. EPA, 904 F.2d
1276 (9th Cir.1990) (placer mining; sluice box from
which discharge water is redeposited in stream is
point source, despite provisions protecting some
mining activities); United States v. M.C.C. of Fla.,
Inc., 772 F.2d 1501, 1505-06 (11th Cir.1985) (tugs
redepositing dirt from bottom of water body onto beds
of water grass are point sources discharging the
dirt), vacated on other grounds, 481 U.S. 1034, 107
S.Ct. 1968, 95 L.Ed.2d 809 (1987) (defendants’ right to
jury trial); Sierra Club v. Abston Constr. Co., 620
F.2d 41, 46 (5th Cir.1980) (spill of contaminated runoff
from strip mine, if collected or channeled by the
operator, is point source discharge); United States v.
Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979)
(same); Appalachian Power Co. v. Train, 545 F.2d
1351, 1372 (4th Cir.1976) (same); O’Leary v. Moyer’s
Landfill, Inc., 523 F.Supp. 642, 655 (E.D.Pa.1981)
(same). Nor have courts been inclined to exclude
mining or agricultural point sources, despite the fact
that portions of the Clean Water Act protect these
industries to some extent. See Rybachek, 904 F.2d’
1276; Consolidation Coal Co. v. Costle, 604 F.2d 239,
251 (4th Cir.1979) (EPA has no discretion to exempt
mining point sources from regulation), rev'd in part
on other grounds sub nom. National Crushed Stone
Ass'n, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980);
United States v. Frezzo Bros., Inc., 546 F.Supp. 713,
718 (E.D.Pa.1982) (mushroom composting is not agri-
2la
culture, so exception for agricultural point sources
not applicable to pipe carrying stormwater runoff),
aff'd, 703 F.2d 62 (3d Cir.) (per curiam), cert. denied,
464 U.S. 829, 104 S.Ct. 106, 78 L.Ed.2d 109 (1983).
Further, the legislative history indicates that the
Act was meant to control periodic, as well as continu-
ous, discharges. S.Rep. No. 92-414, 92d Cong. Ist
Sess. (1971), reprinted at 1972 U.S.C.C.A.N. 3668,
3705.
In short, the term “point source” has been broadly
construed to apply to a wide range of polluting
techniques, so long as the pollutants involved are not
just humanmade, but reach the navigable waters by
human effort or by leaking from a clear point at which
waste water was collected by human effort. From
these cases, the writers of one respected treatise
have concluded that such a “man-induced gathering
mechanism plainly is the essential characteristic of a
point source” and that a point source, “[p]ut simply, ...
is an identifiable conveyance of pollutants.” 5 Robert
E. Beck, Waters & Water Rights § 53.01(b)(3) at
216-17 (1991), citing Sierra Club v. Abston Constr.
Co., 620 F.2d ai 45 (miners channeled waters into
sump pits which leaked after heavy rains); Earth
Sciences, 599 F.2d at 373; and Avoyelles Sportsmen’s
League, 473 F.Supp. 525. See also Dague v. City of
Burlington, 935 F.2d 1343, 1354-55 (2d Cir.1991) (term
“point source” should be defined broadly to include
culvert conveying landfill leachate, though the cul-
vert itself did not “add” pollutants to the navigable
waters, but conveyed them from one navigable body of
water, into which the pollutants had leaked, to
another), rev'd in part on other grounds, --- U.S. ----,
112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Kennecott
Copper Corp. v. EPA, 612 F.2d 1232, 1243 (10th
Cir.1979) (noting that Congress defined “point
22a
source” broadly so that it would be applicable to
thousands of contemplated point sources, not all of
' which could possibly be enumerated); Appalachian
Power Co. v. Train, 545 F.2d 1351, 1873 (EPA may
regulate channeled runoff, but not unchanneled
runoff). In explaining why a broad definition was
needed, the Kennecott Copper court, quoting Ameri-
can Petrolewm Inst. v. EPA, 540 F.2d 1023, 1032 (10th
Cir.1976), cert. denied, 480 U.S. 922, 97 S.Ct. 1340, 51
L.Ed.2d 601 (1977), noted that the statute sets as its
goal the “attainment of the no discharge objective,”
and that this objective could not be achieved if the
term “point source” were read narrowly. 612 F.2d at
1243.
This broad reading of the term “point source” is
essential to fulfill the mandate of the Clean Water
Act, in that
[t]he touchstone of the regulatory scheme is that
those needing to use the waters for waste
distribution must seek and obtain a permit to
discharge that waste, with the quantity and
quality of the discharge regulated. The concept of
a point source was designed to further this
scheme by embracing the broadest possible
definition of any identifiable conveyance from
which pollutants might enter the waters of the
United States.
We believe it contravenes the intent of FWPCA
and the structure of the statute to exempt from
regulation any activity that emits pollution from
an identifiable point.
Earth Sciences, 599 F.2d 368, 373.
23a
Nonetheless, the term “point source” sets sig-
nificant definitional limits on the reach of the Clean
Water Act. Fifty percent or more of all water
pollution is thought to come from nonpoint sources.
S.Rep. 99-50, 99th Cong., Ist Sess. 8 (1985); William F.
Pedersen, Jr., Turning the Tide on Water Quality,
15 Ecol.L.Q. 69, n. 10 (1988). So, to further refine the
definition of “point source,” I consider what it is that
the Act does not cover: nonpoint source discharges.”
Nonpoint source pollution is, generally, runoff:
salt from roads, agricultural chemicals from farm-
lands, oil from parking lots, and other substances
washed by rain, in diffuse patterns, over the land and
* The cases and commentators all seem to assume that all
water pollution is either point source pollution or nonpoint
source pollution. See, e.g., Oregon Natural Resources Council v.
United States Forest Service, 834 F.2d 842, 849 (9th Cir.1987);
Friends of the Sakonnet v. Dutra, 738 F.Supp. 623, 630 and
n. 11 (D.R.1.1990); Zygmunt J.B. Plater, et al., Environmental
Law and Policy: Nature, Law and Society 830 (1992); Freder-
ick R. Anderson, Daniel R. Mandelker, and A. Dan Tarlock,
Environmental Protection: Law and Policy 377 (2d ed. 1990);
2 William H. Rodgers, Jr., Environmental Law: Air and
Water § 4.9 at 125-26 and § 4.10 at 146 (but noting that distin-
guishing point sources from nonpoint sources can be difficult,
and listing as an example of a difficult question “the fellow in
the truck at the edge of the stream,” id. at 126) (1986); Frank
P. Grad, Treatise on Environmental Law 3.03[4][n] 3-215
n. 366.6 (7/92) (looseleaf); Esther Bartfeld, Point-Nonpoint
Source Trading: Looking Beyond Potential Cost Savings,
23 Envtl.Law 43, 45, 45 n. 6, 47 (1993); John H. Davidson, Com-
mentary: Using Special Water Districts to Control Nonpoint
Source of Water Pollution, 22 Land Use & Envtl.L.Rev. 515,
516 (1991); Robert D. Fentress, Comment: Nonpoint Source
Pollution, Groundwater, and the 1987 Water Quality Act:
Section 208 Revisited?, 19 Envtl.L. 807, 811 n. 16 (1989);
Richard J. Lazarus, Comment: Nonpoint Source Pollution,
2 Harv.Envtl.L.Rev. 176, 176-77, 177 n. 2 (1977).
ae
panini indict ih Jie com ee ae ee
24a
into navigable waters.’ The sources are many,
difficult to identify and difficult to control. Indeed, an
effort to greatly reduce nonpoint source pollution
could require radical changes in land use patterns
which Congress evidently was unwilling to mandate
without further study.‘ The structure of the
statute—which regulates point source pollution
closely, while leaving nonpoint source regulation to
the states under the Section 208 program—indicates
that the term “point source” was included in the
* According to the EPA, nonpoint source pollution
is caused by diffuse sources that are not regulated as point
sources and normally is associated with agricultural, sil-
vicultural and urban runoff, runoff from construction
activities, etc. Such pollution results in the human-made
or human-induced alteration of the chemical, physical,
biological, and radiological integrity of water. In practical
terms, nonpoint source pollution does not result from a
discharge at a specific, single location (such as a single
pipe) but generally results from land runoff, precipitation,
atmospheric deposition, or percolation.
EPA Office Of Water, Office of Water Regulations and
Standards, Nonpoint Source Guidance 3 (1987).
4 As Professors Anderson, Mandelker, and Tarlock have
observed,
Congress expressed great faith in the ability of engineers
to limit what came out of pipes but less faith in the ability
of engineers to fix non-point source pollution:
There is no effective way as yet, other than land use
control, by which you can intercept that runoff and
control it in the way that you do a point source. We have
not yet developed technology to deal with that kind of a
problem. ... [Senate Debate on S. 2770, Nov. 2, 1971,
reported in 1972 Legislative History, at 1315.]
Frederick R. Anderson, Daniel R. Mandelker, and A. Dan
Tarlock, Environmental Protection: Law and Policy 377 (2d
ed. 1990).
25a
definition of discharge so as to ensure that nonpoint
source pollution would not be covered. Instead,
Congress chose to regulate first that which could
easily be regulated: direct discharges by identifiable
parties, or point sources.
This rationale for regulating point and nonpoint
sources differently—that point sources may readily
be controlled and are easily attributable to a
particular source, while nonpoint sources are more
difficult to control without radical change, and less
easily attributable, once they reach water, to any
particular responsible party—helps define what fits
within each category. Thus, Professor Rodgers has
suggested, “[t]he statutory ‘discernible, confined and
discrete conveyance’ ... can be understood as singling
out those candidates suitable for control-at-the-
source.” 2 William H. Rodgers, Jr., Environmental
Law: Air and Water § 4.10 at 150 (1986). And, as
Professor Rodgers notes, “{[clase law confirms the
controllability theory, adding to it a responsibility
component, so that ‘point sources’ are understood
both as sources that can be cleaned up and as sources
where fairness suggests the named parties should do
the cleaning.” Jd. And see, e.g., National Resources
Defense Council, Inc. v. EPA, 915 F.2d 1314, 1316
(9th Cir.1990) (“The Act focused on point source
polluters presumably because they could be identified
and regulated more easily than nonpoint source
polluters.”); Earth Sciences, 599 F.2d at 371
(“[bJecause nonpoint sources of pollution ... are vir-
tually impossible to isolate to one polluter, no permit
or regulatory system was established as to them”);
National Water Commission, Water Policies for the
Future: Final Report to the President and to the
Congress of the United States 64 (1973).
26a
While Villegas’ activities were not prototypical
point source discharges—in part because he was
disposing of waste that could have been disposed of on
land, and so did not need a permit or a pipe—they
much more closely resembled a point source dis-
charge than a nonpoint source discharge. First,
Villegas and his lab were perfectly capable of avoiding
discharging their waste into water: they were, in
Professor Rodgers’ terms, a “controllable” source.
Furthermore, the discharge was directly into
water, and came from an identifiable point, Villegas.
Villegas did not dispose of the materials on land,
where they could be washed into water as nonpoint
source pollution. Rather, he carried them, from his
firm’s laboratory, in his car, to his apartment
complex, where he placed them in a bulkhead below
the high tide line. I do not think it is necessary to
determine whether it was Mr. Villegas himself who
was the point source, or whether it was his car, the
vials, or the bulkhead: in a sense, the entire stream of
Mr. Villegas’ activity functioned as a “discrete con-
veyance” or point source. The point is that the
source of the pollution was clear, and would have been
easy to control. Indeed, Villegas was well aware that
there were methods of controlling the discharge (and
that the materials were too dangerous for casual
disposal): his laboratory had hired a professional
medical waste handler. He simply chose not to use an
appropriate waste disposal mechanism.
Villegas’ method may have been an unusual one for
a corporate officer, but it would undermine the
statute—which, after all, sets as its goal the elim-
ination of discharges, 33 U.S.C. § 1311(a)—to regard
as “ambiguous” a Congressional failure to list an
:
27a
unusual method of disposing of waste. I doubt that
Congress would have regarded an army of men and
women throwing industrial waste from trucks into a
stream as exempt from the statute. Since the Act
contains no exemption for de minimus [sic] vio-
lations—since, indeed, many Clean Water Act prose-
cutions are for a series of small discharges, each of
which is treated as a single violation—I cannot see
that one man throwing one day’s worth of medical
waste into the ocean differs (and indeed, with this
type of pollution, it might be that only a few days’
violations could be proven even if the laboratory
regularly relied on Villegas to dispose of its waste by
throwing it into the ocean). A different reading would
encourage corporations perfectly capable of abiding
by the Clean Water Act’s requirements to ask their
employees to stand between the company trucks and
the sea, thereby transforming point source pollution
(dumping from trucks) into nonpoint source pollution
® I recognize the dangers of “pa{ying] too much attention to
the broad stated purposes of the [Clean Water] Act.” National
Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 171 (D.C.Cir.1982)
(reversing district court ruling that EPA decision not to
regulate dams as point sources was improper in light of these
broad goals, and holding that the EPA could reasonably
conclude that dams were not covered, at least where they do
not “add” ordinary “pollutants,” but either move already
polluted water from one side of the dam to the other or change
water “conditions” such as heat, dissolved oxygen content, and
saturation levels).
However, there are also dangers to paying too little atten-
tion to such broad stated goals. While the Clean Water Act
may not always live up to its grand ambitions, in particular by
setting definitional limits on what it covers (only pollution,
only point sources), its ambitious goals are nonetheless useful
interpretive guides: they indicate that, all other things being
equal, a generous rather than a cramped interpretation of the
statute is more likely to be what Congress intended.
28a
(dumping by hand). Such a method is controllable,
easily identifiable, and inexcusable. To call it non-
point source pollution is to read a technical exception
into a statute which attempts to define in broad terms
an activity which may be conducted in many different
ways.
Having explained my own view of what a “point
source” is, and why Villegas, or his activities in
carrying waste from his lab to the ocean, was a point
source, I will attempt to confront the majority’s
counterarguments. My colleagues suggest that a
person can never be a point source, relying heavily on
the supposed redundancy produced when the Act’s
language barring the “discharge of any pollutant by
any person” is read with the definitional terms placed
in terms of the linguistic variables, as follows: “any
addition of any pollutant to navigable waters from a
person by a person.” Granted, this sounds odd. But I
believe the oddity is an artifact of assuming that the
term “person” means the same thing in both parts of
the sentence, and that in both cases it means what it
means in everyday language.
The apparent oddness disappears when one grasps
that the first term “person” in the peculiar sentence
means “a person acting as a point source” and that
the second term “person” has been defined, typically
for statutes imposing responsibility on a variety of
parties, but not typically for ordinary speech, as a
6 In my view, persons can be both point and nonpoint
sources of pollution. They may be point sources when they de-
posit waste directly into water; they may be nonpoint sources
when they, for example, spread fertilizer on the ground or
deposit oil in a driveway, leaving it to be washed into nearby
rivers. Thus, to say that the Clean Water Act bars persons
polluting, rather than point sources polluting, would be too
broad.
29a
responsible party. As the linguistic hint “any” before
both “person” and “point source” suggests, the terms
are to be construed broadly. Thus, for example, one
could fill in the linguistic variables as follows: the
Act bars the addition of any pollutant to navigable
waters by an employee’s throwing them there (a
person acting as a point source) at the instruction of
his or her employer (a corporation, or person capable
of being held responsible) and in particular of his or
her supervisor (also a person capable of being held
responsible). More specifically, the sentence could
refer to an individual hired to convey, by hand, all of a
corporation’s toxic wastes from the company’s back
door to the Mississippi River, three feet away (the
point source), by that individual and by the cor-
poration which authorized the disposal (the potential
defendants). I do not think technical arguments about
whether the toxic substances were in discrete
containers are fruitful when the activity is discrete,
conveys pollutants, and is confined to a clear,
traceable single source. When a company chooses to
use the nation’s waters as a dumpsite for waste it has
created and gathered in a manageable place,’ it should
ask for a permit or face prosecution.
I am of course given pause, however, by the nature
of the criminal sanctions attached to point source
discharges under § 1319. Given the broad statutory
definitions of pollutant and point source, it would
appear that a knowing violation would include inten-
tionally throwing a candy wrapper into the ocean—
and that this is an activity which could subject the
thrower to a $25,000 fine and three years in jail. It
seems improbable to me that this could have been
7 I mean to distinguish a company whose agricultural or
other activity leaves pollutants dispersed on the land, which
may then find their way into the nation’s waters.
30a
Congress’ intent. Consequently, I would with the
majority read the statute as ambiguous as it pertains
to individual litterers, as opposed to disposers of
industrial and municipal waste.* The latter were the
principal targets of the authors of the CWA, and, as
professional creators of waste, charged with know-
ledge that disposal of waste into navigable waters is a
crime. Cf. United States v. Dotterweich, 320 U.S.
277, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (Federal Food,
Drug and Cosmetic Act requires corporate officers
standing in a responsible relationship to the public
interest to ensure that products are safe, subject to
criminal liability).
* An alternative—that the Act applies only to major dis-
charges—seems to me both administratively unworkable
(where does one draw the line?) and inconsistent with the
statute and case law. The statutory definition of “discharge”
refers to “any” addition of “any” pellutant from “any” point
source, indicating a congressional intent to bar all, even minor,
violations. Further, the D.C.Circuit has held that EPA has no
discretion to limit regulation of point sources to those it deems
most significant. National Resources Defense Council, Inc. v.
Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977). This, too, indicates
that small as well as large point sources are governed by the
Act. Finally, I would note that within the statute’s definitional
limits, it takes on an absolutist tone. The statute’s stated goals,
“restor[ing] and maintain[ing] the chemical, physical, and bio-
logical integrity of the Nation’s waters,” 33 U.S.C. § 1251(a)
(1988), suggest that eliminating, not reducing, pollution is the
aim. Thus, while the Act exempts certain types of pollution—
nonpoint source and agricultural return flows—for policy
reasons seen as trumping, at least temporarily, the goal of zero
pollution, it takes a categorical approach to point source
pollution. As the Costle case suggests, neither agencies nor
courts should rewrite the statute to be more “reasonable”—less
protective of our nation’s waters and more indulgent of pol-
luters—than Congress intended.
8la
Furthermore, no factual dispute essential to find-
ing Villegas’ activities to have been a point source
discharge remains. The jury concluded that Villegas
did in fact place pollutants—the materials he brought
from the laboratory—into navigable waters; the only
question for us is whether this activity is point
source pollution. Cf. United States v. Law, 979 F.2d
977, 979 (4th Cir. 1992) (misdefinition of point source
in criminal case harmless, where action, if it
occurred at all, was point source discharge), cert.
denied, --- U.S. ----, 113 S.Ct. 1844, 123 L.Ed.2d 468
(1993). Thus, I do not believe that the difficulty the
prosecutors had here in defining Villegas’ offense
resulted in their failing to prove that Villegas
violated the law.
Rule of Lenity.
My colleagues also suggest that the statute is
sufficiently ambiguous that the rule of lenity
requires resolving the ambiguity in Villegas’ favor.
However, as I have indicated, I do not think the Clean
Water Act is ambiguous with respect to an individual
physically disposing of medical wastes, in quantity,
directly into navigable waters, by means of a control-
lable, discrete conveyance and course of action. As
the Supreme Court has noted,
[b]ecause the meaning of language is inherently
contextual, we have declined to deem a statute
‘ambiguous’ for purposes of lenity merely because
it was possible to articulate a construction more
narrow than that urged by the Government. Nor
have we deemed a division of judicial authority
automatically sufficient to trigger lenity. If that
were sufficient, one court’s unduly narrow read-
ing of a criminal statute would become binding on
all other courts...
32a
Instead we have always reserved lenity for those
situations in which a reasonable doubt persists
about a statute’s intended scope even after resort
to “the language and structure, legislative
history, and motivating policies” of the statute.
Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct.
461, 465, 112 L.Ed.2d 449 (1990), quoting Bifulco v.
United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252,
65 L.Ed.2d 205 (1980) (citations omitted). See also
United States v. Concepcion, 983 F.2d 369, 379 (1993)
(rule of lenity applies only if statute is ambiguous,
“giving [the words of the statute] their fair meaning
in accordance with the intentions manifested by
Congress,”) (citing Bifulco, 447 U.S. at 387, 100 S.Ct.
at 2252) rather than “ ‘at the beginning as an over-
riding consideration of being lenient to wrongdoers’ ”
(quoting United States v. Turkette, 452 U.S. 576, 587
n. 10, 101 S.Ct. 2524, 2531 n. 10, 69 L.Ed.2d 246 in turn
quoting Callanan v. United States, 364 U.S. 587, 596,
81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961)).
Having resorted to the language and structure,
legislative history and motivating policies of the
Clean Water Act, I think it plain enough that
Congress intended the statute to bar corporate offi-
cers from disposing of corporate waste into navigable
waters by hand as well as by pipe. Further, I would
note that this is not the sort of activity that Villegas
could honestly have believed violated no statute,
whether promulgated by federal, state, or local
authorities. Thus, this is not a case in which the
defendant had no fair warning that his actions were
illegal. No compliance attorney here could have
struggled with the difficulty of deciding whether this
was activity for which a permit should be sought, as
might be the case in a factory dealing with runoff that
arguably was channeled and thereby transformed
ne I
38a
from nonpoint to point source pollution; rather, an
attorney asked to advise Villegas whether his
activity was permissible might say that there was as
yet no case law indicating that such activity was
point source pollution under the Clean Water Act, but
that such a view was certainly consistent with the
Act and that the behavior would almost certainly be
proscribed by that Act or some other.
Knowing Endangerment.
I concur in the majority’s ruling on the knowing
endangerment counts, though for a different reason.
I think the trial court was correct in concluding that
the government failed, as a matter of law, to establish
“imminent danger,” since its own experts agreed that
the risk that someone would be harmed by the
hepatitis-infected blood in some of the vials, while
serious, was quite low.
CONCLUSION
Accordingly, I would affirm the rulings of the
district court.
34a
APPENDIX B
UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF NEW YORK
No. 89 CR 338
UNITED STATES OF AMERICA, PLAINTIFF
v.
GERONIMO VILLEGAS, DEFENDANT
Dec. 13, 1991
MEMORANDUM AND ORDER
KORMAN, District Judge.
On May 26, 1988, a teacher at the Saint John’s
Lutheran School took her eighth grade class on a
field trip to the Alice Austin House, a museum on
Staten Island that overlooks Pebble Beach on the
Hudson River. While playing on the beach after tour-
ing the museum, the students came upon numerous
glass vials containing what appeared to be human
blood lying in the sand. The New York City Sanita-
tion Department later collected approximately sev-
enty of these vials scattered along the shoreline and
floating in the incoming tide. The broken remains of
others were found among clusters of rocks in the
shallow water. Tests later revealed that five of the
vials contained blood infected with hepatitis B, an
Dictirens one ott inde
Pere en at wer eS le tare fee ee eer fee
Nance Reed de. ee abe Samad es
35a
infectious virus that causes inflammation of the liver
and can lead to chronic illness, including cancer, or to
death.
Four months later, a maintenance employee at the
Admirals Walk Condominium Association (Admirals
Walk), an apartment complex bordering the Hudson
River in Edgewater, New Jersey, noticed a plastic
bag full of blood vials wedged into the rocks of the
river bulkhead. Edgewater Police Officers eventually
collected at least one hundred vials floating loosely in
the river or packed in containers wedged into the
bulkhead. Fifty-five of these vials were tested for
disease and at least five were found to be infected with
hepatitis B.
State investigators traced the vials by the identify-
ing information on their labels to Plaza Health
Laboratories, a facility that tests blood for disease
and other medical conditions in Brooklyn, New York.
The defendant, Geronimo Villegas, was co-owner of
Plaza and lived at the Admirals Walk complex when
the vials were found. When questioned by state
investigators, Mr. Villegas admitted to placing viais
in the bulkhead in June, 198% to make room in his
laboratory for incoming blood samples. Although he
did not admit to hiding vials there on an earlier
occasion, expert evidence on tides and currents
established that the vials found in Staten Island could
also have originated from the Admirals Walk bulk-
head.
On January 31, 1991, a jury found Mr. Villegas
guilty of four counts charging violations of the Clean
Water Act (33 U.S.C. § 1319). All four counts are
premised on the allegation that the defendant know-
ingly discharged pollutants into navigable waters
from a “point source,” a term of art established and
defined by the Clean Water Act. See 33 U.S.C.
eeeeteene at ee
36a
§ 1362(14). Two of the four convictions (Counts One
and Thre2) are premised on the so-called “knowing
endangerment” provision of this statute that imposes
substantially enhanced penalties on polluters who
knowingly place others “in imminent dangen of death
or serious bodily injury.” 33 U.S.C. § 1819(¢)(8).
In a post-trial motion pursuant to Fed.R.Crim.P.
29(c), Mr. Villegas challenges the sufficiency of the
evidence supporting all four convictions. The motion
for a judgment of acquittal is granted with respect to
Counts One and Three, but denied as to Counts Two
and Four.!
DISCUSSION
This case involves difficult questions of statutory
construction that arise primarily from the effort of
the United States Attorney to apply the Clean Water
Act to circumstances that Congress may not have
specifically contemplated when it enacted this
statute. Only recently, Judge Posner aptly described
the task of a judge faced with such a problem:
When a court can figure out what Congress
probably was driving at and how its goal can be
achieved, it is not usurpation—it is interpretation
in a sense that has been orthodox since Aristo-
tle—for the court to complete (not enlarge) the
statute by reading it to bring about the end that
the legislators would have specified had they
' The defendant also argues for the first time that the
proper venue for the trial of the indictment was the District of
New Jersey. A claim that evidence is insufficient to sustain
venue, if not raised in a pre-trial motion or as a specific basis
for a judgment of acquittal at the close of the case-in-chief, is
deemed waived. See United States v. Price, 447 F.2d 23, 27 (2d
Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186
(1971).
37a
thought about it more clearly or used a more
perspicuous form of words.
Friedrich v. City of Chicago, 888 F.2d 511, 514 (7th
Cir.1989), vacated, --- U.S. ----, 111 S.Ct. 1883, 113
L.Ed.2d 440 (1991). The interpretive task is the same
whether the statute is criminal or civil in nature.
While it is often said, and sometimes held, that
ambiguity in a criminal statute should be resolved in
favor of a defendant, the Supreme Court has cau-
tioned—even when construing an arguably ambig-
uous statute—that such statutes “ ‘ought not to be
construed so strictly as to defeat the obvious in-
tention of the legislature.” Huddleston v. United
States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39
L.Ed.2d 782 (1974) (quoting American Fur Co. v.
United States, 2 Pet. 358, 367, 7 L.Ed. 450 (1829)).
Indeed, in a criminal prosecution under the Rivers
and Harbors Act of 1899, the Supreme Court rejected
a persuasive argument by Justice Harlan to “[apply] a
seemingly straight-forward statute in a straight-
forward way”. United States v. Standard Oil Co., 384
U.S. 224, 236, 86 S.Ct. 1427, 1433, 16 L.Ed.2d 492 (1966)
(Harlan, J., dissenting). Instead, the Court broadly
construed the statute in a manner consistent with its
purpose. Justice Douglas, writing for the majority,
observed:
This case comes to us at a time in the Nation’s
history when there is greater concern than ever
over pollution—one of the main threats to our
free-flowing rivers and to our lakes as well. The
crisis that we face in this respect would not, of
course, warrant us in manufacturing offenses
where Congress has not acted nor in stretching
statutory language in a criminal field to meet
strange conditions. But whatever may be said of
the rule of strict construction, it cannot provide ¢
substitute for common sense, precedent, and
legislative history.
Id. at 225, 86. S.Ct. at 1428. See also United States v.
Republic Steel Corp., 862 U.S. 482, 491, 80 S.Ct. 884,
889, 4 L.Ed.2d 908 (1960). These words provide an
appropriate backdrop to the questions of statutory
interpretation at issue here.
The first of these relates to all four counts of the
indictment. The defendant’s argument is a simple
one. The Clean Water Act makes it an offense for any
“person” to “discharge” a “pollutant” into “navigable
waters” from a “point source.” 33 U.S.C. § 1311(a).
The phrase “point source” is defined in part as “any
discernible, confined and discrete conveyance ... from
which pollutants are or may be discharged.”
33 U.S.C. § 13862(14). This language, the defendant
argues, demonstrates that a “point source” is the
structure through which pollutants are discharged
into navigable waters by persons. In this case,
however, the defendant deposited the vials into the
Hudson River without using a conveyance of any
kind. Accordingly, he argues, he cannot be found
guilty of discharging pollutants from a “point
source.” While this argument is not without some
appeal, common sense, precedent and legislative
history, suggest that in certain circumstances, a
person can be a “point source.”
Congress has defined a “point source” as “any dis-
cernible, confined and discrete conveyance, including,
but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or
vessel or other floating craft, from which pollutants
are or may be discharged.” 33 U.S.C. § 1362(14). This
language is emphatically inclusive, as reflected in the
39a
words “any,” “discernible” and “not limited to.”
Moreover, use of such a highly general term as
“conveyance” establishes that Congress had an ex-
pansive vision of what would constitute a point
source, The word conveyance is defined simply as “a
means or way of conveying.” Webster’s New Interna-
tional Dictionary 499 (3d ed. 1981). Any conduit or
container of waste falls directly within this defini-
tion.
The intent of Congress in using the phrase “point
source” may be even more clearly ascertained from
the distinction made in the statute, and emphasized in
the legislative history and the case law, between
“point sources” and “non-point sources.” See
39 U.S.C. § 1314(f); S.Rep. No. 92-414, 92nd Cong., Ist
Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 3668,
3705-06, 3718-19, 3744. By non-point source pollution,
Congress was referring to “disparate runoff caused
primarily by rainfall around activities that employ or
cause pollutants.” United States v. Earth Sciences,
Inc., 599 F.2d 368, 373 (10th Cir. 1979). Indeed,
Congress specifically excluded from the definition of
point source “return flows from irrigated agricul-
ture.” 33 U.S.C. § 1362(14). Thus, “[t]he concept of
point source was developed to distinguish pollution
resulting from simple erosion over the surface of the
ground from pollution that has been collected or
comes from a confined system.” Friends of Sakonnet
vy. Dutra, 738 F.Supp. 623, 630 (D.R.1.1990).
If the purpose of Congress in specifically proscrib-
ing pollution from a “point source” was to ensure that
naturally-induced, random run-off of pollutants would
not result in criminal or civil liability under the
- Clean Water Act, then it is difficult to find a basis for
holding that a “point source” does not encompass the
deliberate discharge of pollutants produced in the
40a
course of a waste-generating activity merely because
a person directly deposits those pollutants into the
water. Indeed, the definition of “point source” in the
Clean Water Act, even if read literally, does not
exclude discharge by a person. While the words “any
discernible, confined and discrete conveyance” do not
conjure up the image of a human being, neither do
they specifically exclude one. It is true that the
examples included within the definition—“any pipe,
ditch, channel, tunnel, well, discrete fissure, con-
tainer, rolling stock, concentrated animal feeding
operation or vessel or other floating craft from which
pollutants may be discharged”—imply that the statu-
tory reference is to some kind of physical container
or conduit. Such an implication, however, is not
dispositive. As the Supreme Court observed in Gooch
v. United States:
The rule of eyusdem generis, while firmly estab-
lished, is only an instrumentality for ascertaining
the correct meaning of words when there is
uncertainty. Ordinarily, it limits general terms
which follow specific ones to matters similar to
those specified; but it may not be used to defeat
the obvious purpose of the legislation. And, while
penal statutes are narrowly construed, this does
not require rejection of that sense of the words
which best harmonizes with the context and the
end in view.
297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936);
United States v. Alpers, 338 U.S. 680, 682, 70 S.Ct.
3652, 354, 94 L.Ed. 457 (1950).
The application of the rule of ejusdem generis to
resolve the statutory questions presented here would
“defeat the obvious purpose” of the Clean Water Act
which is to prevent unregulated pollution of the
4la
navigable waters of the United States. See 33 U.S.C.
§§ 1251, 1341-45. As the Court of Appeals for the
Sixth Circuit has observed:
“The touchstone of the regulatory scheme is that
those needing to use the waters for waste distri-
bution must seek and obtain a permit to discharge
that waste, with the quantity and quality of the
discharge regulated. The concept of a point
source was designed to further this scheme by
embracing the broadest possible definition of any
identifiable conveyance from which pollutants
might enter waters of the United States.”
Earth Sciences, 599 F.2d at 3/3.
Congress was concerned with the precise manner
by which pollutants are discharged into navigable
waters because of its intent to exclude certain types
of pollution-generating activity from the ambit of the
Clean Water Act. Where, as here, that concern is not
implicated, there is no reason to limit the broad
definition of the words Congress employed. Cf.
Dague v. City of Burlington, 935 F.2d 1343, 1354 (2d
Cir.1991) (“The definition of a point source is to be
broadly interpreted.”), petition for cert. filed, (Nov.
18, 1991). Surely, it is absurd to argue that the
defendant should be relieved of responsibility merely
because he dumped vials of poison directly into the
Hudson River instead of discharging them from a pipe
or other physical conveyance.
Admittedly, there is an argument to be made that
use of the phrase “point source” serves the purpose of
limiting the coverage of the Clean Water Act to
activities that generate and dispose of pollutants on a
large-scale and continuous basis. Indeed, references
in the statute and the legislative history indicate that
the primary focus of the Act was industrial polluters.
42a
See 33 U.S.C. §§ 1341-45 (establishing a permit sys-
tem to regulate waste discharge); S.Rep. No. 92-414,
92nd Cong., Ist Sess. (1971), reprinted in 1972
U.S.C.C.A.N. 3668 (referring to “industry,” “indus-
trial sources,” “facilities” and “plants”). Congress,
however, did not exempt small-time, intermittent
polluters from the regulatory scheme prescribed by
the Clean Water Act. On the contrary, the statute
defines “the discharge of a pollutant” as “any ad-
dition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1362(12) (emphasis added).
See also United States v. St. Bernard Parish, 589
F.Supp. 617, 621 (E.D.La.1984) (Intermittent dis-
charges are not excluded from the Clean Water Act.).
Nevertheless, Congress did not intend the Clean
Water Act to apply anytime a person throws garbage
into the ocean merely because such litter may be
encompassed within the broad statutory definition of
a “pollutant.” The scope of the Act may be limited,
however, without creating arbitrary and irrational
distinctions of the kind suggested by the defendant.
Specifically, the phrase “point source” may reason-
ably be read to include any discrete and identifiable
conduit or container—including a human being—
designated to collect or discharge pollutants produced
in the course of a waste-generating activity. This
definition places the focus of the inquiry on whether a
defendant was deliberately engaged in threatening
the “chemical, physical and biological integrity of the
Nation’s waters,” 33 U.S.C. § 125l(a), which is the
object of the Clean Water Act, and not whether the
conduit for such activity was a human being or an
inanimate structure.”
2 During a post-trial argument, even the defendant’s attor-
ney appeared to adopt an analysis close to that suggested here:
43a
The parties have framed the essential issue in this
case as whether a person can be a “point source” and
the issue has been addressed as so framed. At least as
to Counts One and Two, however, there is an
independent basis for concluding that the defendant
discharged the blood vials from a “point source.”
Whether or not Mr. Villegas himself was a “point
source,” it is quite clear that the rocks forming the
bulkhead at Admirals Walk come within the definition
of that phrase. The crevices of the bulkhead literally
constitute “discrete fissure[s],” one of the definitions
of a point source specifically provided by the Clean
Water Act. 33 U.S.C. § 1362(14). Indeed, the cases
have consistently found that structures comprised of
natural materials with the physical capacity to hold
“pollutants” constitute point sources. See Dague,
935 F.2d at 1354-55 (a culvert is a point source);
United States v. Ottati & Goss, Inc., 680 F.Supp. 1361,
1401 (D.N.H.1985) (a ditch is a point source); Earth
Sciences, 599 F.2d at 374 (ditches form part of a point
source); National Wildlife Federation v. Gorsuch,
693 F.2d 156, 165 (D.C.Cir.1982) (a dam can be a point
source). The capacity and function of the structures
in these cases cannot be distinguished from the
crevices in the rocky facade of the bulkhead that held
The Court: [IJs it your argument that it’s not a point
source because he only did it twice?
Ms. Shevitz: It’s my argument that it’s not a point source
because the car, the defendant, was not a confined,
discrete source of pollution in terms of the ongoing nature
of that plant... In other words, if they regularly
discharged their waste through a car that regularly drove
from here to there, then I would say, okay, maybe that’s
an incident of the business, and that’s a point source of that
ongoing plant activity, ...
Post-trial Hearing Tr. at 85.
44a
the defendant’s blood vials. Finally, even if the
bulkhead does not constitute a “point source,” the
very containers holding the blood vials and hidden in
the rocky facade come directly within the definition
of that phrase. 33 U.S.C. § 1362(14) (point source is a
“container”).’
The defendant next argues that even if he is guilty
of discharging pollutants from a “point source,” the
evidence is insufficient to support his convictions on
Counts One and Three of the indictment. These
counts charge violations of the knowing endanger-
ment provision of the Clean Water Act that reads as
follows:
Any person who knowingly violates section 1311
... Of this title, .. . and who knows at that time
that he thereby places another person in im-
minent danger of death or serious bodily injury,
shall, upon conviction, be subject to a fine of not
* The defendant argues that the containers and vials found
at the Admirals Walk bulkhead in September, 1988, cannot
provide the basis for a conviction because the point in the
bulkhead at which they were found is above the normal high
tide line. There was sufficient evidence, however, for the jury
to conclude that the defendant knew that the vials would
ultimately be washed into the water. Moreover, even if valid,
this argument would affect only Counts One and Two. There
is no evidence as to precisely how the vials that washed ashore
on Staten Island in May, 1988 were discharged into the Hudson
River. Under these circumstances, the jury could infer that
the vials were either placed directly in the water or in the
bulkhead below the normal high tide line. Because the defen-
dant’s sentence will be the same whether or not the convictions
on Counts One and Two stand, there is no need to address the
validity of the defendant's argument on this point. See Barnes
v. United States, 412 U.S. 837, 848, 93 S.Ct. 2357, 2364, 37
L.Ed.2d 380 (1973); Benton v. Maryland, 395 U.S. 784, 791, 89
S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969).
45a
more than $250,000 or imprisonment of not more
than 15 years, or both.
33 U.S.C. § 1319(c)(3)(A). Under this section, the
United States Attorney must prove that the defen-
dant discharged pollutants from a point source, and
that in doing so, he knew he was placing another
person in imminent danger of death or bodily injury.
The defendant argues that there is insufficient
evidence to prove that when he placed the vials in the
Hudson River he knew that he was thereby placing
another person in “imminent danger of death or
serious bodily injury.”
Under the Clean Water Act’s knowing endanger-
ment provision, a person acts with the requisite
degree of knowledge if he possesses “actual aware-
ness” or an “actual belief” that he is placing another
person in imminent danger. 33 U.S.C. § 1319(c)(3)(B).
Circumstantial evidence may be used to prove either
mental state. Jd. Only one reported case refers to
the Clean Water Act’s knowing endangerment pro-
vision and it does not apply or further define the
knowledge element. See United States v. Rutana,
932 F.2d 1155 (6th Cir.), cert. denied, --- U.S. ----, 112
S.Ct. 300, 116 L.Ed.2d 243 (1991).
The legislative history of the section, however,
does address the issue. The Senate Environment and
Public Works Committee emphasized the deliberate
omission from § 1319(c)(3) of the definition of knowl-
edge found in an analogous provision in the Resource
Conservation and Recovery Act (RCRA). S.Rep. No.
99-50, 99th Cong., Ist Sess., at 30 (1985). Under the
RCRA, “a person’s state of mind is knowing with
respect to a result of his conduct, if he is aware or
believes that his conduct is substantially certain to
cause danger of death or serious bodily injury.”
42 U.S.C. § 6928(f)(1)(C) (emphasis added). According
46a
to the Senate Report, this language was left out of
the Clean Water Act because it tended to “discourage
prosecutions.” S.Rep. No. 99-50, 99th Cong., Ist
Sess., at 30 (1985). Instead, the Senate Committee
intended that knowledge in the knowing endanger-
ment provision of the Clean Water Act be “measured
against the standard established by prevailing case
law, as it is for any other Federal crime sharing the
same state of mind element.” /d.
The omission in the Clean Water Act of the
RCRA’s “substantial certainty” language, combined
with the reference in the legislative history to the
“standard established by prevailing case law,” leaves
unclear precisely what evidence is necessary to
sustain a conviction under 33 U.S.C. § 1319(c)(3).
There does not appear to be any “prevailing [federal]
ease law,” defining knowledge in this particular
context. The Model Penal Code, the culpability
standards of which have been adopted or used as a
guide in numerous jurisdictions, see 1 Charles E.
Torcia, Wharton’s Criminal Law 137-40 (1978),
provides that when knowledge of the result of one’s
conduct is an element of an offense, such knowledge is
established if a person “is aware that it is practically
certain that his conduct will cause such a result.”
Model Penal Code § 2.02(2)(b)(ii) (1962) (emphasis
added). Moreover, one year after Congress amended
the criminal provision of the Clean Water Act to
include the knowing endangerment section, it enacted
the Medical Waste Tracking Act. This Act also con-
tains a knowing endangerment section that imposes
enhanced penalties on violators who knowingly place
another person in imminent danger of death or
serious bodily injury. See 42 U.S.C. § 6992d(c). The
knowing endangerment section of the Medical Waste
Tracking Act, however expressly returns to the
47a
knowledge standard of the RCRA, requiring proof
that the defendant “is aware or believes that his
conduct is substantially certain to cause danger of
death or serious bodily injury.” Jd. (“The terms of
this paragraph shall be interpreted in accordance
with the rules provided under § 6928(f) of this title”)
(emphasis added).‘
The United States Sentencing Commission has
taken a similar approach in formulating the guide-
lines for the offense at issue here. The Commission
provided for an eleven level increase from the base
level offense of discharging or mishandling environ-
mental pollutants “[i]f the offense resulted in a sub-
stantial likelihood of death or serious bodily injury,”
United States Sentencing Commission, Guidelines
Manual, § 2Q1.3 (Nov. 1991), and if the defendant
knew that his discharge of pollutants would have this
effect. Id., at Comment. (n. 3).
Although the “substantially/practically certain”
standard appears to be the predominant definition of
knowledge with respect to the result of conduct, some
states have opted for a “high probability” standard.
In Montana, for example, the criminal code defines
knowledge with respect to the result of conduct as
being “aware that it is highly probable that such
result will be caused” by the conduct. Mont.Code
Ann. § 45-2-101(33) (1990) (emphasis added). A similar
definition was adopted in Armour v. State of Indiana,
479 N.E.2d 1294 (Ind.1985), which involved the applica-
tion of a child neglect statute that made it a crime to
4 Two federal statutes that impose sanctions for certain
foreign trade practices also define knowledge of the result of
conduct as being aware that “such result is substantially
certain to occur.” 15 U.S.C.S. § 78dd-1(f)(2)(A)(i) (Law Co-op
1991); 15 U.S.C.S. § 78dd-2(h)(3)(A)(i) (Law Co-op 1991) (em-
phasis added).
48a
knowingly put a “dependent in a situation that may
endanger his life or health.” Ind.Code Ann. § 35-46-1-4
(Burns 1990). The Supreme Court of Indiana held
that a defendant could be found guilty of violating the
statute only if he was “subjectively aware of a high
probability that he placed the dependent in a danger-
ous situation.” Armour, 479 N.E.2d at 1297 (emphasis
added). See also Caldwell v. State of Indiana, 497
N.E.2d 610 (Ind.Ct.App. 1986); Ware v. State of Indi-
ana, 441 N.E.2d 20 (Ind.Ct.App.1983).
Significantly, the “high probability” standard also
tracks the language of the Model Penal Code as it
defines knowledge of a fact inferred from a person’s
conscious avoidance of that fact. The Code states
that “when knowledge of the existence of a particular
fact is an element of an offense, such knowledge is
established if a person is aware of a high probability
of its existence, unless he actually believes it does
not exist.” Model Penal Code § 2.02(7) (1962) (em-
phasis added). The Supreme Court has expressly
approved this language, see Leary v. United States,
395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 1553 n. 93, 23
L.Ed.2d 57 (1969), and it has been consistently
accepted by the Court of Appeals for the Second
Circuit. See, e.g., United States v. Gurary, 860 F.2d
521 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct.
1931, 104 L.Ed.2d 403 (1989); United States v.
Gatzonis, 805 F.2d 72 (2d Cir.1986), cert. denied, 484
U.S. 932, 108 S.Ct. 303, 98 L.Ed.2d 262 (1987); United
States v. Reed, 790 F.2d 208 (2d Cir.), cert. denied, 479
U.S. 954, 107 S.Ct. 445, 93 L.Ed.2d 393 (1986).
The “high probability” standard provides a viable
alternative to the “substantial certainty” test that
Congress apparently rejected when enacting the
Clean Water Act’s knowing endangerment provision.
It allows for conviction on proof less than knowledge
49a
of a substantial certainty of imminent danger, while
also setting a sufficiently rigorous standard to jus-
tify the stiff criminal penalties that attach pursuant
to § 1319(c)(3). More significantly, it is consistent
with the language of 33 U.S.C. § 1319(c)(3) that pro-
vides for an enhanced sentence only where “at [the]
time” the defendant discharges a pollutant into
navigable waters he “knows . . . that he thereby places
another person in imminent danger of death or
serious bodily injury.”
These words imply that the discharge must
actually place another person in imminent danger of
death or serious bodily injury and not merely that
such result be a “potential” consequence of the
defendant’s act. See Govt.Br. at 40. Indeed, unless so
read, the word “imminent” has no meaning at all.
Cases have held that the phrase “imminent danger”
does not mean immediate danger. Dague, 935 F.2d at
1355-56. Because the word danger means risk or
peril, Webster’s New International Dictionary 573 (3d
ed. 1981), the phrase “imminent danger” must connote
something more than the mere possibility or risk
that death or serious bodily injury is a foreseeable
consequence of a discharge. Thus, at the very least,
“imminent danger” must mean danger that is a
highly probable consequence of a discharge. Cf.
United States Sentencing Commission, Guidelines
Manual, § 2Q1.3 (Nov. 1991). It is this particular
level of danger that the defendant must have known
existed when he discharged the blood vials into the
Hudson River.’ Jd. at Comment. (n. 3).
5 When this issue first arose at trial, at a point when there
was little opportunity for careful research and review, I held
that a lesser degree of probability would suffice. Upon recon-
sideration, I conclude otherwise. If I am now correct in
concluding that the defendant must have been aware that it
50a
The United States Attorney offered three sources
of testimony on the element of the defendant’s knowl-
edge. Elena Ramos, a former data entry employee at
Plaza, testified that Mr. Villegas had worked in two
laboratories that handled blood before becoming
co-owner and vice-president of marketing at Plaza.
She also testified that Mr. Villegas handled blood
samples regularly and took precautions when doing
so. Shahid Mustaquim, a former medical technologist
at Plaza, testified that between 35-50% of the blood
specimens brought there were tested for hepatitis.
He further stated that Plaza has set aside a geparate
area and a separate machine for hepatitis testing. Dr.
Sashikale Krishnan, former director of pathology at
Plaza, confirmed that Plaza conducted a great deal of
testing for diseases like hepatitis and leukemia. He
also stated that Mr. Villegas was one of two people in
charge of Plaza, that he co-authored the laboratory’s
safety manual, which included guidelines for handling
blood, and that these guidelines were followed by
Plaza employees.
This evidence is sufficient to support a jury finding
that the defendant acted with knowledge of the
dangers of hepatitis, and that some of the discharged
vials contained hepatitis-infected blood. The evi-
dence, however, does not support the conclusion that
when he placed the vials in the Hudson River, Mr.
Villegas knew there was a high probability that he
was thereby placing another person in imminent dan-
ger of death or serious bodily injury. Of particular
was highly probable that his conduct would cause serious bodily
injury or death, but wrong in my evaluation of whether the
evidence here is sufficient to meet that standard, I would
grant the defendant’s motion for a new trial pursuant to
Fed.R.Crim.P. 33 because my instructions to the jury were er-
roneous. See Fed.R.Crim.P. 29(d).
5la
significance is the testimony of Dr. Alfred M. Prince,
an expert in virology called by the United States
Attorney. Dr. Prince suggested that the principal
risk of hepatitis infection as a result of exposure to a
vial of contaminated blood would arise “[i]f that vial is
broken and if a piece of broken glass were to
penetrate the skin...” Trial Tr. at 362. While Dr.
Prince testified that the likelihood of contamination
in those circumstances was “very high,” id., he also
testified that the risk of this happening was “low”:
The Court: Doctor, if three or four or five vials
like—of the kinds we have been talking about
were dropped in the Hudson River, would you say
that that would place any person in imminent
danger of death or serious bodily injury?
Dr. Prince: If those vials were to land on the
shore and someone were to step on them and
puncture their skin, they would be in danger of
infection, hepatitis B, yes. Those vials that were
infected, of course. They all were not.
The Court: Of course, one would have to know
that that was going to happen. Or sooner or later
everything floats to shore?
Dr. Prince: The risk of this happening is low but
it is a risk.
Trial Tr. at 371.
This testimony was elicited outside the presence of
the jury, and the defendant’s trial counsel declined an
invitation to have it repeated to the jury. Never-
6 Wayne Pizzuti, another prosecution expert, testified in
the presence of the jury that it was also unlikely that a person
swimming in the area where a vial had broken would contract
hepatitis B. Trial Tr. at 356.
52a
theless, the testimony does suggest the need for
caution in inferring that the defendant must have
known that he was placing another person in
imminent danger of death or serious bodily injury
merely because he knew that the vials contained a
dangerous virus. Yet this is essentially the theory
underlying the prosecution’s case. The Assistant
United States Attorneys trying the case argued that
“from the evidence regarding the currents and tides
the jury could infer that the defendant knew or should
have known that the—anything thrown into [the]
waters would be swept out into the sea and eventually
be lodged on a beach,” and that the defendant “knew
that people walked on the rocks [at] Edgewater.”
Trial Tr. at 391. Consequently, they argued, the
defendant should have been aware of the risk to those
who walk along Hudson River beaches or climb on the
Admirals Walk bulkhead.
There was, however, no evidence introduced at trial
showing that the defendant knew “that people walked
on the rocks [at] Edgewater” where the vials were
hidden, or that such activity even occurs. Moreover,
there was no evidence introduced that showed the
defendant’s knowledge of the tides and, specifically,
that the vials would be swept out into the sea and
eventually wash ashore in an area where they could
cause the kind of injury Dr. Prince described. Indeed,
if Dr. Prince, an expert in virology who has a more
sophisticated understanding of these matters than
Mr. Villegas, viewed the danger of such serious
bodily injury or death as remote, it is hard to know
why Mr. Villegas should have known it to be highly
probable or even likely.
There is no doubt that the defendant’s conduct was
irresponsible and that it had the potential to cause
serious bodily injury. These factors may provide a
53a
basis for an upward adjustment of the guideline range
applicable to the offense of discharging pollutants
into the water. See United States Sentencing Com-
mission, Guidelines Manual, § 2Q1.3, comment. (n. 4)
(Nov. 1991). The evidence, however, is insufficient to
justify the enhanced penalties provided for cases
where a polluter knows that there is a high probabil-
ity that he is placing another person in imminent
danger of death or serious bodily injury.
CONCLUSION
Accordingly, the defendant’s motion pursuant to
Fed.R.Crim.P. 29(c) is granted with respect to
Counts One and Three and denied with respect to
Counts Two and Four.
So Ordered.
54a
APPENDIX C
UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF NEW YORK
No. 89 CR 338
UNITED STATES OF AMERICA, PLAINTIFF
v.
GERONIMO VILLEGAS, DEFENDANT
JURY CHARGE
(1/31/91 Tr. 456-477]
[456] THE COURT: Ladies and gentlemen, now
that the evidence in the case has been presented and
the attorneys for government and the defendant have
concluded their closing arguments, it is my respon-
sibility to instruct you as to the law that governs this
case. My instructions will be in three parts.
First, I will instruct you regarding the general
rules that define and govern the duties of a jury in a
criminal case.
Second, I will instruct you as to the legal elements
of the crimes charged in the indictment. That is, the
specific [457] elements that the government must
55a
prove beyond a reasonable doubt to warrant a finding
of guilt.
And third, some general rules regarding your
deliberations following these instructions.
To begin with, it is your duty to find the facts from
all the evidence in the case. You are the sole judges
of the facts and it is therefore for you and you alone to
pass upon the weight of the evidence, to resolve such
conflicts as may have appeared in the evidence and to
draw such inferences as you deem reasonable and
warranted from the evidence.
With respect to any question concerning the facts,
it is your recollection of the evidence that controls.
You must apply the law in accordance with my
instructions to the facts as you find them. While the
lawyers may have commented on some of these rules,
you must be guided only by what I instruct you about
them. You must follow all the rules as I explain them
to you. You may not follow some and ignore others.
Even if you disagree or don’t understand the reasons
for some of the rules, you are bound to follow them.
The fact that this prosecution is brought in the
name of the United States Government does not enti-
tle the United States to any greater consideration
than the defendant in this case. By the same token, it
is entitled to no less consideration. Both parties, the
United States Government and [458] the defendant,
are equal before this Court and they are entitled to
equal consideration. Neither the government nor the
defendant is entitled to sympathy or favor.
I instructed you earlier that the indictment filed
against the defendant is simply the means by which
the government gives notice to the defendant of the
charges against him and brings him before the court.
It is an accusation and nothing more. The indictment
56a
is not evitence and you are to give no weight to it in
arriving at your verdict.
The defendant in summons to the indictment has
pleaded not guilty. He’s presumed to be innocent
until his guilt has been proved beyond a reasonable
doubt and that presumption alone, unless overcome, is
sufficient to acquit him. The defendant is presumed
innocent until you, the jury, decide unanimously that
the government has proved him guilty beyond a
reasonable doubt.
Since the law presumes the defendant to be inno-
cent, the burden of proving him guilty beyond a
reasonable doubt is on the government throughout
the trial. A defendant never has the burden of proving
his guilt or innocence or of producing any evidence at
all.
Proof beyond a reasonable doubt does not mean
proof beyond all the doubt. It is not necessary for the
government to prove the guilt of a defendant beyond
all possible doubt. The test is one of reasonable doubt.
[459] A reasonable doubt is a doubt based on
reason and common sense, the kind of a doubt that
would make a reasonable person hesitate to act.
Proof beyond a reasonable doubt must, therefore, be
proof of such a convincing character that a reasonable
person would not hesitate to rely and act upon it in
the most important of his or her own affairs.
A reasonable doubt, however, is not a doubt that
arises out of whim or speculation. A reasonable doubt
is not an excuse to avoid the performance of an un-
pleasant duty.
If, after a fair and impartial consideration of all the
evidence in the case, or the lack of evidence, you can
honestly say that you have such a doubt as would
cause prudent persons to hesitate to act in matters of
importance in their lives, then you have a reasonable
57a
doubt and, and [sic] that event, it is your duty to
acquit.
If, on the other hand, after a fair and impartial con-
sideration of all the evidence, you can honestly say
that you have such an abiding belief in the guilt of the
defendant that you would be willing to act upon a
similar strong conviction in important matters in
your own lives, then you have no reasonable doubt,
and, in that circumstance, you should convict.
I wish to instruct you now as to what the evidence
is and how you should consider it.
The evidence upon which you are to decide what the
[460] facts are comes in several forms.
Sworn testimony of witnesses, both on direct and
on cross-examination, regardless of who called the
witness.
Exhibits that have been received into evidence.
Facts to which all the lawyers have agreed or
stipulated. You have heard a number of stipulations
read to you.
What is not evidence?
Certain things are not evidence and are to be
disregarded by you in deciding what the facts are.
Arguments or statements by lawyers are not
evidence.
Questions put to witnesses are not evidence.
Objections to questions or to offered exhibits are
not evidence.
In this case, attorneys have a duty to their clients
to object when they believe evidence should not be
received. You should not be influenced by the ob-
jection or my ruling on it. If the objection was
sustained, ignore the question and any answer that
that [sic] may have followed. If the objection was
overruled, you should treat the answer like any other
answer.
58a
Testimony that has been excluded, striken [sic] or
that you have been instructed to disregard is not
evidence and must be disregarded.
Obviously anything you may have seen or heard
outside the courtroom is not evidence.
[461] Nothing that I have said or done should be
used by you in inferring guilt or innocence. I have no
view of the guilt or innocence of this defendant and
even if I did convey any view to you, it would be your
obligation to disregard it.
Your verdict must be based solely upon the
evidence developed at trial or the lack of evidence. It
would be improper for you to consider, in reaching
your decision as to whether the government sus-
tained its burden of proof, any personal feelings you
may have about the defendant’s race, religion,
national origin, ethnic background, sex or age. All
persons are entitled to the presumption of innocence
and the government has the same burden of proof in
ail cases.
It would be equally improper for you to allow any
feelings you might have about the nature of the
crimes charged to interfere with your decision-
making process.
To repeat, your verdict must be based exclusively
upon the evidence or lack of evidence in the case.
You are the sole judges of the credibility of the
witnesses and the weight that their testimony
deserves. Any assumption that a witness will speak
the truth may be dispelled by the appearance and
conduct of the witness, by the manner in which the
witness testifies, by the character of the testimony
given, or by the evidence contrary to the testimony
given.
You should carefully scrutinize all the testimony
given, the circumstances under which each witness
59a
has [462] testified, and other matters in evidence
which tend to indicate whether a witness is worthy of
belief. Consider each witness’ intelligence, motive,
state of mind, partisanship in the prosecution or
defense of the case and his or her demeanor while on
the stand.
The testimony of a witness may be discredited or
impeached by showing that he or she previously made
statements which are inconsistent with their present
testimony. It is your province to determine the
credibility, if any, to be given the testimony of a
witness who has been so impeached.
If a witness is shown knowingly to have testified
falsely concerning any material fact, you have a right
to dismiss such witness’ testimony in other par-
ticulars and you may reject all the testimony of that
witness or you may accept whatever part of it you
think deserves to be believed.
You may consider any demonstrated bias, prejudice
or hostility of a witness in determining the weight to
be accorded his testimony.
You have heard the testimony of government
agents, both state and federal. The testimony of such
agents should be evaluated by you in the same manner
as you would evaluat [sic] the credibility of any other
witness.
The law does not require the government to call as
witnesses all persons who may have been present at
any time or place involved in this case, or who may
appear to have some [463] knowledge of the matters at
issue in this trial. The law does not require the
government to produce as evidence all matters and
things mentioned during the course of the trial. The
law further does not require that any particular
techniques be used by law enforcement authorities to
uncover or prosecute crime.
60a
Evidence has been introduced as to the involvement
of certain other individuals who have not been
indicted. That these individuals are not on trial
before you is not a matter of concern to you. You
should not speculate as to the reason—as to why
these individuals or corporations are not on trial
before you and you should not allow this to control or
influence your verdict.
You have heard the testimony of so-called expert
witnesses in this case. Ordinarily, opinions of
witnesses are not received in evidence. However,
opinions of expert witnesses, qualified by training
and experience in a particular field of specialized
learning, are received in evidence. The expert wit-
ness is permitted and expected to give you the
reasons for and the basis of his or her opinion. You
should weigh and evaluate the testimony of an expert
witness precisely as you weigh the testimony of any
other witness. The relationship between a party and
its expert witness is a factor you may consider in
judging the credibility and weight to be given to the
testimony of that witness. Such a relationship,
however, does not mean that the witness was un-
truthful. The [464] opinion stated by the experts who
testified before you are based on particular facts, as
the expert himself observed and testified to them
before you, or as the attorney who questioned him
asked him to assume. You may reject his opinion if,
after careful consideration of all the evidence in the
case, expert or other, you disagree with the opinion.
In other words, you are not required to accept an
expert’s opinion to the exclusion of the facts and
circumstances disclosed by the other testimony.
Such an opinion is subject to the same rules concern-
ing reliability as the testimony of any other witness.
It is given to you to assist you in reaching a proper
REPORT 8 eS
6la
verdict. It is entitled to such weight as you find the
expert’s qualifications in his field warrant and may be
considered by you, but is not controlling on your
judgment.
The defendant did not testify in this case. Under
our Constitution, he has no obligation to testify or to
present any evidence because it is the prosecution’s
burden to prove him guilty beyond a reasonable doubt.
That burden remains with the prosecution through-
out the entire trial and it never shifts to the defen-
dant. The defendant is never required to prove that
he is innocent.
You may not attach any significance to the fact
that the defendant did not testify. No adverse infer-
ence against him may be drawn by you because he did
not take the witness stand. You may not consider
this against the defendant in any [465] way in your
deliberations in the jury room.
Ladies and gentlemen, I will now turn to the second
part of this charge. I will, as I indicated at the outset,
instruct you as to the legal elements of the crimes
charged in the indictment. That is to say, I will now
instruct you as to the specific elements of the crimes
charged that the government must prove beyond a
reasonable doubt to warrant a finding of guilt in this
case.
The defendant is charged with four counts. Each
count must be considered separately by you. You may
find the defendant guilty of one count without
necessarily finding him guilty of any other count.
Whether you find the defendant guilty or not guilty of
any or all of the counts, your verdict must be
unanimous.
Counts Two and Four charge the defendant with
the crime of knowingly discharging pollutants from a
point source into the navigable waters of the United
62a
States without a permit in violation of the federal
Clean Water Act. Counts One and Three charge the
defendant with knowingly placing another person in
imminent danger of death or serious bodily injury by
such discharge of pollutants, including pollutants
infected with a contagious virus.
Before proceeding to define, separately, the
elements of each of these four counts, I wish to
discuss one element which is common to all four
counts of the indictment and which [466] the govern-
ment must establish beyond a reasonable doubt.
Before a defendant may be found guilty of knowingly
discharging pollutants from a point source into the
navigable waters of the United States without a
permit or of knowingly placing another person in
imminent danger of death or serious bodily injury by
discharging pollutants infected with a contagious
virus, the government must prove that the defendant
knew that he was discharging such pollutants into
the navigable waters of the United States.
In determining whether the government proved the
requisite element of knowledge, you may consider all
the facts and circumstances and the inferences which
could logically be drawn. An act is done knowingly if
done voluntarily and intentionally and not because of
ignorance, mistake or accident. Knowledge ordinar-
ily may be not be proved directly because there is no
way of fathoming or scrutinizing the operations of
the human mind. But you may infer the defendant’s
knowledge from the surrounding circumstances. In
determining the issues of knowledge, therefore, you
may consider any statement made to or by the
defendant or acts done by the defendant. You may
scrutinize the entire conduct of the defendant at or
near the time of the alleged offenses, if that helps you
to determine the defendant’s state of mind.
63a
It is not necessary for the government to prove
that the defendant knew that a particular act or
failure to act was [467] a violation of the law or that
the defendant had any specific knowledge of the
particular regulatory limits imposed by the Clean
Water Act.
I will now proceed to discuss the counts separately,
and the additional elements which must be proven
beyond a reasonable doubt.
Count one of the indictment reads as follows:
On or about and between April 1, 1988 and Septem-
ber 25, 1988, both dates being approximate and inclu-
sive, within the Eastern District of New York and
elsewhere, the defendant Geronimo Villegas, know-
ingly and without a permit, and knowing at the time
that he thereby placed another person in imminent
danger of death or serious bodily injury, did discharge
and cause to be discharged pollutants infected with a
contagious virus from a point source into the Hudson
River and the New York Bay, navigable waters of the
United States, to wit, on or about and between the
dates stated above, the defendant discharged and
caused to be discharged into the Hudson River and
the New York Bay two plastic containers containing
numerous blood vials, many of which were broken; one
plastic zip-lock bag containing approximately 18 blood
vials and one urine vial; one plastic bag containing 27
blood vials; and a container among 22 loose blood vials,
including five glass vials containing human blood
infected with hepatitis virus.
Count Three of the indictment—and for these [468]
purposes, I am going to skip Count Two, just for the
sake of clarity. Count three of the indictment reads
as follows:
On or about and between April 1, 1988 and May 26,
1988, both dates being approximate and inclusive,
64a
within the Eastern District of New York and else-
where, the defendant Ger. nimo Villegas, knowingly
and without a permit, and knowing at the time that he
thereby placed another person in imminent danger of
death or serious bodily injury, did discharge and
cause to be discharged pollutants infected with a
contagious virus from a point source into the Hudson
River and the New York Bay, navigable waters of the
United States, to wit, on or about the dates stated
above, the defendant discharged and caused to be
discharged into the Hudson River and the New York
Bay 51 glass vials containing human blood, including
five glass vials containing human blood infected with
the hepatitis virus and bearing labels with the fol-
lowing identification numbers:
16023, 18053, 18068, 25057, and 25067.
To find the defendant guilty of Counts One and
Three of the indictment, you must find the following
facts beyond a reasonable doubt:
First, that the defendant knew that he was dis-
charging pollutants into the navigable waters of the
United States without a permit.
Second, that the defendant discharged, or caused to
be discharged, a pollutant from a point source.
[469] The term “discharge of a pollutant” means
any addition of any pollutant to navigable waters from
any point source. The term “pollutant” means sub-
stances including solid waste, garbage, chemical
wastes, biological wastes, wrecked or discarded
equipment and industrial, municipal and agricultural
waste discharged into water. You are instructed as a
matter of law that a glass vial containing human blood
and a plastic container both are pollutants under the
Clean Water Act.
The term “navigable waters” means the waters of
the United States. The term “waters of the United
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65a
States” includes: All waters, such as intrastate lakes,
rivers, streams, mudflats, sandflats, wetlands, natu-
ral ponds, the use, degradation or destruction of
which would affect interstate or foreign commerce.
You are instructed as a matter of law that the Hudson
River and the New York Bay are navigable waters of
the United States.
The statute also specifies that only discharges
without a permit from so-called “point sources” are
prohibited. Congress chose to distinguish between
“point sources” and “non-point sources” with the
specific purpose of excluding various kinds of pollu-
tion runoff, that is, runoff produced principally by
rainfall that cannot be traced to one polluter. Con-
gress did not intend to exempt from regulation any
activity that emits pollution from an identifiable
point. Congress did not intend by the term “point
source” to [470] distinguish between a person who
drives a truck to the edge of the Hudson River and
dumps blood vials, clearly a point source, and a person
who gets out of the truck, takes the vials from the
truck, walks to the river’s edge and dumps them from
his hand. Removing pollutants from a container, and
a vehicle is a container, parked next to a navigable
body of water and physically throwing the the [sic]
pollutant into the water constitutes a discharge from
a point source.
In this respect, I ask to you [sic] forget and
disregard the testimony of Patrick Durack on this
issue.
Third, that the pollutant entered the navigable
waters of the United States.
The government is not required to prove that the
introduction of a pollutant caused any damage or
harm in order to establish the offense charged under
the federal Clean Water Act.
66a
And fourth, that the defendant had no permit to
discharge the pollutant.
It is a violation of the Clean Water Act to discharge
a pollutant into the navigable waters of the United
States without a permit. The United States alleges
that the defendant Geronimo Villegas did not have
such a permit at the times relevant to this case. In
order to satisfy this element of the crime, the gov-
ernment need only show that the defendant Geronimo
Villegas did not have, at the time of the discharge, a
[471] written permit issued by the United States
Environmental Protection Agency to discharge pol-
lutants into the waters of the United States.
The fifth element of this crime charged in Count
One and Three is that you must—the government
must prove, you must find, that by discharging the
pollutant, the defendant placed another person in
imminent danger of death or serious bodily injury.
The term “serious bodily injury” means bodily injury
which involves a substantial risk of death, un-
consciousness, extreme physical pain, protracted and
obvious disfigurement, or protracted loss or impair-
ment of the function of a bodily member, organ, or
mental faculty.
It is not necessary for the government to prove
that death or serious bodily injury actually occurred.
The government must prove, however, that the
defendant knew that he was placing someone in
imminent danger of serious bodily injury. Imminent
danger means the existence of a condition which
could reasonably be expected to cause death or
serious physical harm unless the condition is reme-
died. While the danger must be an immediate result
of the conduct, the existing danger may involve a
harm which may not ultimately ripen into death or
serious bodily injury.
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The sixth and final element of the offenses alleged
in Counts One and Three, which the government
must prove beyond a reasonable doubt, is that the
defendant actually knew or [472] believed that his
conduct placed another person in imminent danger of
death or bodily injury.
Specifically, the government must establish beyond
a reasonable doubt, one, that the defendant knew that
the substances in the blood vials contained viruses
that could cause death or serious bodily injury if they
entered the human body; and two, that he also knew or
believed that by placing the blood vials in the water, it
was more likely than not that the viruses contained
in the vials would infect another person and cause
that person death or serious injury.
In determining whether the defendant was aware or
believed that his conduct was more likely than not to
cause imminent danger of death or serious bodily
injury, you must find that the defendant was actually
aware or believed that the danger was more than
merely a possible result of the defendant’s conduct.
The defendant is responsible only for actual aware-
ness or actual belief that he possessed; and knowledge
possessed by a person other than the defendant but
not by the defendant himself may not be attributed to
the defendant; except that in proving the defendant’s
actual knowledge, as I have indicated at the outset,
circumstantial evidence may be considered.
While the government must prove that the defen-
dant knew that his conduct placed another person in
imminent danger of debt did [sic] or serious bodily
injury, the government does not [473] have to prove
that the defendant actually intended or desired that
harm. come to any person. In other words, the
government need not prove that he willed that harm
come to a person. Rather, the government must
68a
prove that he was willing to put a person in danger as
a consequence of his conduct.
I will now read Counts Two and Four of the indict-
ment.
As you will see, they mirror Counts One and
Three, with the exception that they do not charge the
defendants [sic] with knowingly placing the life of
another person in danger of death or serious injury.
Count Two of the indictment reads as follows:
On or about and between April 1, 1988 and Septem-
ber 25, 1988, both dates being approximate and
inclusive, within the Eastern District of New York
and elsewhere, the defendant Geronimo Villegas,
knowingly and without a permit, did discharge and
cause to be discharged pollutants from a point source
into the Hudson River and the New York Bay,
navigable waters of the United States, to wit, on or
about the dates stated above, the defendant discharged
and caused to be discharged into the Hudson River
and the New York Bay two plastic containers con-
taining numerous blood vials, many of which were
broken; one plastic zip-lock bag containing approxi-
mately 18 blood vials; and one urine vial, one plastic
bag containing 27 blood vials with an identification
number; [474] and a container among 22 loose blood
vials.
Count Four: On or about and between April 1, 1988
and May 26, 1988, both dates being approximate and
inclusive, within the Eastern District of New York
and elsewhere, the defendant Geronimo Villegas,
knowingly and without a permit, did discharge and
cause to be discharged pollutants from a source into
the Hudson River and the New York Bay, navigable
waters of the United States, to wit, on or about the
dates stated above, the defendant discharged and
caused to be discharged into the Hudson River and
69a
the New York Bay, 51 glass vials, each containing
human blood and bearing a label with an identification
number.
To find the defendant guilty of Counts Two and
Four of the indictment, you must find the following
facts or elements beyond a reasonable doubt.
Here I summarize because they are the same, these
four elements are the same first four elements for
Counts One and Three.
Counts One and Three have two additional ele-
ments that I have already defined for you relating to
the knowledge that the conduct caused, could put —
could place in imminent danger of death or serious
bodily injury another person.
First, that the defendant knew that he was dis-
charging pollutants into the navigable waters of the
United States without a permit.
[475] Second, that the defendant discharged, or
caused to be discharged, a pollutant from a point
source.
Third, that the pollutant entered the waters of the
United States.
Fourth, that the defendant had no permit to
discharge the pollutant.
Ladies and gentlemen, I have concluded that
portion of my charge dealing with the elements of the
crimes charged. I come to a few brief and final words
relating to instructions for your deliberations.
You are entitled to your own opinion but you should
exchange views with your fellow jurors and listen
carefully to each other. While you should not
hesitate to change your opinion if you are convinced
that another opinion is correct, your decision must be
your own.
Under your oath as jurors, you cannot allow a
consideration of the sentence which may be imposed
70a
upon a defendant to enter into your deliberations or to
influence your verdict in any way. In the event of a
conviction, the duty of imposing sentence rests solely
with me.
In your deliberations you are not to consider
whether you approve or disapprove of the satutues
[sic] which this defendant is charged with violating.
The only question for you to consider is whether
the government has proved beyond a reasonable doubt
the essential [476] elements of the crimes charged as
I have explained them.
The charges here are most serious. A just deter-
mination of this case is important to the public; it is
equally important to the defendant.
If it becomes necessary during your deliberations
to communicate with me, you may send a note by a
marshal who will be seated outside your door, signed
by your foreperson, or one or more members of the
jury. No member of the jury should ever attempt to
communicate with me by any means other than a
signed writing; and I will never communicate with
any member of the jury on any subject touching on
the merits of the case, otherwise than in writing, or
orally here in open court.
If you wish to have some portions of the testimony
or these instructions repeated, you may make the
request by a note to the marshal, and I will then call
you back into the courtroom and have them read to
you. I suggest, however, that you be specific with
respect to the testimony that you wish to have reread
so that we don’t spend time reading testimony to you
that you do not wish to hear.
Also, it-may take a few moments to locate the
testimony that you wish to hear, so if there is not an
immediate response you will know that we are
looking for the answer.
Rats } See pr
tees oicetainalimecibdads
Tla
Similarly, if you wish to see any of the exhibits in
the evidence, you may make the request by note to
the marshal [477] and I will send the exhibit to you.
You will note from the oath about to be taken by the
marshal that he too, as well as other persons, is
forbidden to communicate in any way or manner with
any member of the jury on any subject touching on
the merits of the case.
Bear in mind also that you should not reveal to any
person, not even to me, how you stand on the question
of guilt or innocence of the accused, until after you
have reached a unanimous verdict.
Any verdict you reach on any counts of the indict-
ment, whether that verdict is guilty or not guilty,
must be a unanimous verdict.
Your oath, ladies and gentlemen, that you took only
a few days ago, sums up your duty, and that, is,
without fear or favor you will well and truly try the
issues between these parties according to the
evidence given to you in court and the laws of the
United States.
Come up to the sides bar.
(Side bar follows.)
72a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No.: 92-1090(L)
92-1091
UNITED STATES OF AMERICA, APPELLEE-
CROSS-APPELLANT
Vv.
PLAZA HEALTH LABORATORIES, INC., DEFENDANT
GERONIMO VILLEGAS, DEFENDANT-
APPELLANT-CROSS-APPELLEE
[Dec. 3, 1993]
A petition for rehearing containing a suggestion
that the action be reheard in banc having been filed
herein by Appellee USA.
Upon consideration by the panel that decided the
appeal, it is
Ordered that said petition for rehearing is
DENIED.
It is further noted that the suggestion for rehear-
ing in banc has been transmitted to the judges of the
court in regular active service and to any other judge
that heard the appeal and that no such judge has
requested that a vote be taken thereon.
Ee
73a
For THE Court,
GEORGE LANGE III, Clerk
By:
/s/ Carolyn Clark Campbell
Carolyn Clark Campbell
Chief Deputy Clerk
74a
APPENDIX E
STATUTORY PROVISIONS
Section 301 of the Clean Water Act, 33 U.S.C. 1311,
provides in pertinent part:
§ 1311. Effluent limitations
(a) Illegality of pollutant discharges except
in compliance with law
Except as in compliance with this section and
sections 1812, 1316, 1817, 1328, 1342, and 1344 of
this title, the discharge of any pollutant by any
person shall be unlawful.
Section 309 of the Clean Water Act, 33 U.S.C. 1319,
provides in pertinent part:
§ 1319. Enforcement
(c) Criminal penalties
(1) Negligent violations
Any person who—
(A) negligently violates section 1311,
1312, 1316, 1317, 1318, 1328, or 1345 of
this title, or any permit condition or
limitation implementing any of such
sections in a permit issued under sec-
tion 1342 of this title by the Administra-
tor or by a State, or any requirement
imposed in a pretreatment program
approved under section 1342(a)(3) or
1342(b)(8) of this title or in a permit
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75a
issued under section 1344 of this title by
the Secretary of the Army or by a State;
or
(B) negligently introduces into a
sewer system or into a publicly owned
treatment works any pollutant or
hazardous substance which such person
knew or reasonably should have known
could cause personal injury or property
damage or, other than in compliance
with all applicable Federal, State, or
local requirements or permits, which
causes such treatment works to violate
any effluent limitation or condition in
any permit issued to the treatment
works under section 1342 of this title by
the Administrator or a State;
shall be punished by a fine of not less than
$2,500 nor more than $25,000 per day of
violation, or by imprisonment for not more
than 1 year, or by both. If a conviction of a
person is for a violation committed after a
first conviction of such person under this
paragraph, punishment shall be by a fine of
not more than $50,000 per day of violation, or
by imprisonment of not more than 2 years, or
by both.
(2) Knowing violations
Any person who—
(A) knowingly violates section 1311,
1312, 1316, 1317, 1318, 1328, or 1345 of
this title, or any permit condition or lim-
itation implementing any of such sec-
tions in a permit issued under section
eee
76a
1342 of this title by the Administrator or
by a State, or any requirement imposed
in a pretreatment program approved
under section 1342(a)(3) or 1342(b)(8) of
this title or in a permit issued under
section 13844 of this title by the Sec-
retary of the Army or by a State; or
(B) knowingly introduces into a
sewer system or into a publicly owned
treatment works any pollutant or haz-
ardous substance which such person
knew or reasonably should have known
could cause personal injury or property
damage or, other than in compliance
with all applicable Federal, State, or
local requirements or permits, which
causes such treatment works to violate
any effluent limitation or condition in a
permit issued to the treatment works
under section 1342 of this title by the
Administrator or a State;
shall be punished by a fine of not less than
$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
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