Prologue — Shaw v. United States (No. 05-1220)

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No. 05- sister: at ¢

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FICE OF TRE | & bx.

IN THE

Supreme Court of the United States

EDWARD A. SHAW,

Petitioner,

v:

UNITED STATES OF AMERICA,

4 Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COouRT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MELANIE S. MORGAN

ATTORNEY AT LAW

816 Ann Avenue

Kansas City, KS 66101

(913) 371-5559

Attorney for Petitioner

199599 ce

COUNSEL PRESS

(R00) 274-3321 © (KUO) ISO-OR59

i

QUESTIONS PRESENTED

|. Whether Congress, in limiting the scope of a federal

agency’s authority in criminal matters, nonetheless intended

for 18 U.S.C. § 1001 to be an alternate vehicle for criminal

prosecution, notwithstanding United States v. Rodgers.

2. Whether fair warning under the due process clause is

violated when a legal duty under 18 U.S.C. § 1001 is created

by virtue of completing a form rather than by statute or

regulation.

il

TABLE OF CONTENTS

Page

Questions Presented ...... See eee i

Tee OF IE ok 5 sh be oak ck il

Table of Cited Authorities ....... i eee er re! iil

_Table of Appendices ide Ee eas ae ee ee vi

Be POET eee Te Pee ee ee ee oe l

Statement OE Fe ik Gee I

Constitutional and Statutory Provisions Involved . l

Eg gk eR Tr ne Se ee ee 2

Reasons for Granting the Petition .............. 6

Conclusion

il

TABLE OF CITED AUTHORITIES

Page

Cases:

>

Buckley v. Valeo 424 U.S. 1, 96S. Ct. 612 (1976) ... 9

Chevron, U.S.A., Inc. v. National Resources Defense

Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81

Oe Ge gt | ee ee ee ree oe rere 2

Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855,

Fat Ba es a EE ck ben ras heen )

Train v. Natural Resources Defense Council, Inc.,

421 U.S. 60, 95 S. Ct. 1470, 43 L. Ed. 2d 731

See os ca Peer asa aeac ee aeeaiuree Chee 2,7

United States v. Anzalone, 76 F.2d 676 (1* Cir. 1985)

5 aca a dhe edie ak setae eect org eg Ge Roe ein ae 10

United States v. Harriss, 347 U.S. 612, 74S. Ct. 808,

Pe Rides Ne bok eweeneer deen wee oy)

United States v. Irwin, 654 F.2d 671 (10" Cir. 1981)

Ki dccura Sauk a eG Be ab a een oa ge eee 11

United States v. Kingston, 971 F.2d 481 (10" Cir.

SEE 5 eck Cha Ren ea a ee Ae nS 1]

10

Ss 42°20. 2 2 °S BO eh Oe ES O2°R SOO A SO Re OD RS ESE ASRS WO ES

iv

Cited Authorities

Page

United States v. Rodgers, 466 U.S. 475, 104 S. Ct.

1942, 80 L. Ed. 2d 492 (1984) ............... 6, 7,9

United States v. Tobon-Builes, 706 F.2d 1092 (C.A.

i SFR rere rer rn ro te 11

Constitutional Provisions:

Fifth Amendment ............ PARE pte ws Hs l

Statutes and Regulations:

NR ee a 1,5

ee BO a ee 5

Ce SE a KS A ba eee ORE Ea passim

SOC ER £61 100461.06 25 =

METS BHM ek a 5

MSG 4S oi SS 7

Mott te. 2

SOs os 2,3, 3,8

USS CME“ a. 2

ROA C06) i se 2

ON US.C. § 108401)... nd Nena ete

Cited Authorities

Page

Other Authority:

Note, Clean Air Act Amendments of 1970:

A Congressional Cosmetic, 61 Geo. L.J. 153

Ee ea away er ete u ie eo pale 8

vi

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Tenth Circuit Filed October

fe ee es re er rey ys oe me la

Appendix B — Order Of The United States Court

Of Appeals For The Tenth Circuit Denying

Petition For Rehearing Filed November 21, 2005

|

OPINION BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit, Case Numbers 01-3344 and 01-3310 is

unreported. It can be found online at 2005 WL 2563072

(10" Cir. (Kan.)). It is reproduced at App. la-44a..

STATEMENT OF JURISDIC1ION

The Tenth Circuit entered its Opinion affirming

Mr. Shaw’s conviction on October 13, 2005. A petition for

rehearing was denied on November 21, 2005 and is

reproduced at App. 46a-47a. An application extending the

deadline to file a petition for a writ of certiorari was granted

by Justice Breyer and the time period for filing a petition for

writ of certiorari extended to March 21, 2006. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part: “[N]Jor shall any person be .

deprived of life, liberty, or property, without due process of

law”.

18 U.S.C. § 1001 provides in relevant part

(a)...inany matter within the jurisdiction of the

executive, legislative, or judicial branch of the

Government of the United States, knowingly and

willfully — (1) falsifies, conceals, or covers up by

any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious,

2

or fraudulent statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially false,

fictitious, or fraudulent statement or entry; shall

be fined under this title or imprisoned not more

than 5 years, or both.

42 U.S.C. § 7413 is reproduced at App. 47a-68a.

STATEMENT OF THE CASE

1. The Clean Air Act is found at 42 U.S.C. § § 7401-7642.

These statutes were enacted to encourage and to assist the

States in curtailing air pollution. See generally Train v.

Natural Resources Defense Council, Inc., 421 U.S. 60, 63-

64, 95 S. Ct. 1470, 1474-75, 43 L. Ed. 2d 731 (1975). The

Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat.

1676, “sharply increased federal authority and responsibility

in the continuing effort to combat air pollution,” 421 U.S..,

at 64, 95 S. Ct. at 1474, but continued to assign “primary

responsibility for assuring air quality” to the several States.

Chevron, U.S.A., Inc. v. National Resources Defense Council,

Inc., 467 U.S. 837, 845, 104 S. Ct. 2778, 81 L. Ed. 2d 694

(1984). In Kansas, the Department of Health and

Environment (KDHE) has that responsibility under the

Kansas Air Quality Act. K.S.A. § 65-3001, et seq.

The Clean Air Act sets the parameters of Environmental .

Protection Agency authority regarding air pollutants such as

asbestos. It has the authority to promulgate regulations and

tandards conirolling the release of asbestos pursuant to

42 U.S C. § § 7412(b) and (e). Those regulations are found

in 40 C.F.R. Subpart M which establishes the National

Emission Standard for Asbestos. See 40 C.F.R. § 61.140-

3

61.156. Federal enforcement of those regulations and

standards is contained in 42 U.S.C. § 7413. Under 42 U.S.C.

§ 7413(a), Congress delineated when the EPA could enforce

the laws and regulations in administrative, civil or criminal

contexts. With respect to criminal enforcement, 42 U.S.C.

§ 7413(a)(3) authorizes prosecutions only in accordance with

subsection (c) of section 7413.

Under 18 U.S.C. § 1001, any person who

(a). ..in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the

Government of the United States, knowingly and

willfully — (1) falsifies, conceals, or covers up by

any trick,.scheme, or device a material fact;

(2) makes any materially false, fictitious, or

fraudulent statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially false,

fictitious, or fraudulent statement or entry; shall

be fined under this title or imprisoned not more

than 5 years, or both.

2. Petitioner Edward Shaw is a professional engineer who

owned and operated ESCM & Associates Inc. (ESCM), an

engineering and environmental consulting firm. App. 3a. In

1993, one of Petitioner’s clients, EZ Serve contacted him

about Shallow Water Refinery, an abandoned oil refinery

located near Scott City, Kansas which it wished to have

demolished. Shaw assisted with the bidding process. App.

3a. At EZ Serve’s request, Petitioner agreed to purchase the

property from EZ Serve and immediately turn around and

sell it to Southwest Wrecking, a metal salvage company

owned by Jean and Carl Stifler. App. 4a-5a. This occurred in

August 1993. App. 6a.

4

After purchasing the property, the Stiflers began

demolition and salvage work. App. 6a. In November 1993, a

representative from KDHE attempted to inspect the refinery

but was denied access by Jean Stifler. App. 6a-7a.

Subsequently KDHE discovered that no Notification of

Demolition and Renovation form had been filed for the

refinery. App. 7a. Petitioner had received training in asbestos

abatement a month prior. App. 8a. Jean Stifler requested that

Petitioner come to the property to do an asbestos inspection

and submit a Notification of Demolition and Renovation

form. App. 8a. The refinery was divided into three areas, A,

B, C. Petitioner inspected what he believed to be Area A and

in completing the form, indicated there was no insulation to

test but asserted if unexpected asbestos or suspected asbestos

was encountered, all work would stop. App. 9a. Petitioner

submitted the form to the EPA signed by Edward A. Shaw,

Agent for S.W. Wrecking. App. 9a.

In March 1993 Petitioner returned to the refinery to take

samples. Testing revealed the presence of asbestos in areas

B and C but not A. App. 12a. Based on these results,

Petitioner prepared a revised Notification of Demolition and

Renovation form which was signed by C.L. Stiffler. It was

submitted on June 17, 1994. App. 13a.

In December 1996, an agent with the EPA inspected the

property and issued a cease and desist order to the Stifflers,

requiring them to cease all demolition activity at Shallow

Water. App. 16a. In May 1997, a representative from KDHE

returned to the property and subsequently issued an order

citing the Stifflers with various violations of State law.

App. 17a. In August 1997, several representatives of KDHE

met with the Stifflers concerning these violations. Petitioner

was present and did much of the talking on behalf of the

Stifflers. App. 18a.

5

Ultimately, an indictment was filed June 15, 1999 against

Petitioner and the Stifflers. App. 18a. A Superseding

Indictment was filed on November 17, 1999. It charged Shaw

with (1) violating the NESHAP pertaining to asbestos in

violation of 42 U.S.C. § 7413(c)(1) and 18 U.S.C. § 2 (Count

1); (2) engaging in a scheme to falsify, conceal, or cover up

the presence of asbestos in violation of /8 U.S.C.

§ 1001 (a)(1) (Count II); (3) making a false statement in

violation of 7/8 U.S.C. § 1001 (a)(2) (Count II); and

(4) illegally disposing of asbestos in violation of the

Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA), 42 U.S.C. § 9603, and 18 U.S.C.

§ 2 (Count IV). App. 18a-19a. After proceeding to trial, Shaw

was ultimately convicted of Count 2 and acquitted on the

other charges. App. 20a.

3. Post-trial Petitioner filed a motion to set aside the verdict

based on lack of jurisdiction under 18 U.S.C. § 1001. The.

motion was denied. App. 20a. On appeal, Petitioner again

asserted lack of jurisdiction, arguing that 42 U.S.C. § 7413(c)

was tae exclusive means for criminal prosecution under the

Clean Air Act and thus he could not be convicted under

18 U.S.C. § 1001. App. 21a. Petitioner also claimed that he

had no legal duty as he was neither an owner nor operator of

the property as required under 40 C.F.R. § 61.145. App. 21a.

The Tenth Circuit Court of Appeals affirmed Petitioner’s

conviction. The Court concluded that the government had

discretion to proceed under either statute. The Court agreed

with Petitioner that conviction under 18 U.S.C. § 1001

required a legal duty but concluded that a legal duty could

arise by statute, regulation or form. App. 33a. The case was

remanded for resentencing. App. 44a. However, sentencing

issues are not part of this petition for writ of certiorari.