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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0614%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2005

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0614%3A0. Public record. Not legal advice.