Amicus Curiae Brief — Hansen v. United States

3/

No. 01-1104

IN THE

Supreme Court, US

RJLED

OFFICE OF THE CLERK

ae ee

SUPREME CoOurT OF THE UNITED STATES

October Term. 2001

*

RANDALL W. HANSEN,

Petitioner.

V.

UNITED STATES OF AMERICA,

Respondent.

+

On a Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

¢

BRIEF AMICUS CURIAE OF

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

+

Of Counsel: MARTIN S. KAUFMAN

LISA B. KEMLER Counsel of Record

Co-Chair, NACDL ATLANTIC LEGAL FOUNDATION

Amicus Committee 150 East 42d Street

108 N. Alfred Street New York, New York 10017

Arlington, Va. 22314 (212) 573-1960

(703) 694-8000 Counsel for Amicus Curiae

sed

i

TABLE OF CONTENTS

Page

Ee OT Te PCT COO TT Pe EET eT er il

EE Se PCLTT Te OCP CET CT Tee ee l

TOU C IE i wet cuccce nude pe eeech en eees 2

Oe a rr rE er ee eee 4

Issues This Brief of Amicus Curiae Will Address .......... 5

I OE OE SUNN keine bccecdacepveetvinsevesss 5

RR ay ee Oe a eee ee ne re 7

I. THE COURT SHOULD DECIDE

WHETHER MENS REA IS A

DUE PROCESS REQUIREMENT ........ 8

Il. THE COURT OF APPEALS’ USE

OF THE “RESPONSIBLE

CORPORATE OFFICER” DOCTRINE

_ IN THIS CASE WAS AN UN-

WARRANTED AND DANGEROUS

EXPANSION OF THE CONCEPT OF

“PUBLIC WELFARE OFFENSE” ........ 10

Ill. THE JURY INSTRUCTION UPHELD

BY THE COURT OF APPEALS

INCORRECTLY PERMITTED

CONVICTION UNDER A DIMINISHED

MENS REA STANDARD ...............- 17

hh ee a oe wale ee eal aie ik 20

il

TABLE OF AUTHORITIES

Page

Cases

Bryan v. United States, 524 U.S. 184 (1998) .........5... 17

Hanousek v. United States, 528 U.S. 1102 (2000) ..... 16, 20

Liparota v. United States, 471 U.S. 419 (1985) ........... 9

Morissette v. United States, 342 U.S. 246 (1942) ...... passim

Posters ‘N” Things v. United States, 511 U.S. 513 (1993) ... 9

Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57 (1912) ... 8

Staples v. United States, 511 U.S. 600 (1994)) ........ passim

United States v. Ahmad, 101 F.3d 386 (Sth Cir. 1996) ..... 15

United States v. Balint, 258 U.S. 250 (1922) ............4.. 8

United States v. Bestfoods, 524 U.S. 51 (1998) ............ 9

United States v. Dotterweich, 320 U.S. 277 (1943) ..... passim

United States v. International Minerals &

Chemical Corp., 402 U.S. 558 (1971) ..............-8- 1]

United States v. Kelley Technical Coatings, Inc.,

157 0.30 4s GG. Wee 8 oh hee 15

United States v. MacDonald & Watson Waste Oil Co.,

O33 FOG FF CoC. TIE nb kore cena cece idennesies 15

United States v. Park, 421 U.S. 658 (1975) ...... 7, 16,11, 1S

———————EEEEE——E—— |

ill

TABLE OF AUTHORITIES (cont'd)

Page

Cases (cont’d)

United States v. United States Gypsum Co.,

ee eis ER CUDUED cc ccccevcocecevess ccawewians 12, 13

United States v. Weitzenhoff, 35 F.3d 1275 (9" Cir. 1994),

cert. denied, 513 U.S. 1128 (1995) ................... 16

United States v. Wilson, 133 F.2d 251 (4th Cir. 1997) ..... 15

United States v. X-Citement Video, 513 U.S. 64 (1994) ..9, 13,

14,15

Statutes ;

Clean Water Act, 33 U.S.C. § 1319(c)(2)(A) ......... passim

Comprehensive Environmental Response Compensation

and Liability Act, 42 U.S.C. § 9603(b)(3) ........... passim

Resource Conservation and Recovery Act, A

Oe Uw Se GU EIEAMAD 6 cc cc ccc ceccccceceves passim

Treatises, Articles and Other Authorities

F. Allen, The Morality of Means: Three Problems

in Criminal Sanctions,

42 U. PITTERURGH L. REV. 737 CISS1) .. wc ccc cece csenss 6

K. Feinberg, Toward a New Approach to Proving

Culpability: Mens Rea and the Proposed Federal

Criminal Code, 18 AM. CRIM. L. REV. 123, 129 (1980) ... 18

J. Hall, THEFT, LAW AND SOCIETY 62-70 (2d ed. 1952) ..... 6

iv

TABLE OF AUTHORITIES (cont’d)

Page

Treatises, Articles and Other Authorities (cont’d)

H. Hart, The Aims of the Criminal Law,

23 Law & Contemp. Prob. 401 (1958) ................. 9

Model Penal Code, sec. 2.05 and Comments

(American Law Institute 1985) ........... 9, 10, 12, 16, 18 |

H. Packer, Mens Rea and the Supreme Court,

1962 SUPREME COURT REVIEW 107............ 6,8, 11,12

R. Pound, CRIMINAL JUSTICE IN AMERICA 23 (1930) ....... 5

A. Saltzman, Strict Criminal Liability and the

United States Constitution: Substantive Criminal

Law Due Process, 24 WAYNE L. REV. 1572, 1580 (1978) . 14

F. Sayre, Public Welfare Offenses,

eG Ga TUTE bocce dsveebesaseanen 11,12

INTEREST OF AMICUS

The National Association of Criminal Defense Lawyers

(“NACDL”) is the preeminent bar organization advancing the

mission of the nation’s criminal defense lawyers to ensure justice

and due process for persons accused of crime. Founded in 1958,

NACDL has more than 10,000 lawyer members and 80 state and

local affiliate organizations with 28,000 lawyer members

committed to preserving the Bill of Rights. The American Bar

Association recognizes NACDL as an affiliate organization in its

House of Delegates. NACDL promotes study and research in the

field of criminal law. NACDL has a keen interest in ensuring that

legal proceedings are handled ina proper and fair manner. Among

NACDL’s objectives are to promote the proper administration of

justice. In furtherance of its objectives over the past decade,

NACDL frequently files amicus briefs with this Court on various

criminal justice issues. See NACDL’s website at www.nacdl.org.

This brief is submitted in support of the petitioner; amicus

urges the Court to grant certiorari.'”

Counsel for the parties have consented to the filing of this

amicus brief; the letters are on file with the Clerk of the Court.

2

Pursuant to Supreme Court Rule 37.6, amicus curiae states that

this brief was not prepared, written, funded or produced by any person or

entity other than amicus curiae or their counsel.

2

BACKGROUND OF THE CASE

LCP Chemicals-Georgia ("LCP"), a division of Hanlin

Group, Inc. ("Hanlin"), owned and operated an industrial plant in

Brunswick, Georgia (the “plant’”’) at which a mercury cell, chlor-

alkali process was used to manufacture chlorine gas, sodium

hydroxide, and bleach, principelly for the paper and wood pulp

industries. The plant generated contaminated wastewater and

waste sludges. The plant also utilized other chemicals and

produced hazardous substances that were subject to certain

environmental regulations, including wastewater discharge

limitations set forth in LCP's National Pollutant Discharge

- Elimination System ("NPDES") permit; the permit authorized the

plant to store wastewater while awaiting treatment in LCP's

wastewater treatment plant. LCP also generated hazardous wastes

subject to Resource Conservation and Recovery Act (“RCRA”)

regulation. The plant’s operations also were subject to ~-

Occupational Safety and Health Administration ("OSHA")

regulations designed to ensure for the protection and safety of

workers.

LCP's parent corporation, Hanlin, filed a voluntary

petition for bankruptcy under Chapter 11] in July, 1991. The

bankruptcy proceedings severely limited the funds available for

maintenance, repair and environmental compliance at the plant.

LCP had operational and compliance problems from 1993 until

the plant closed in 1994, which it duly reported to the Georgia

‘Environmental Protection Department (“EPD”) in LCP’s

Discharge Monitoring Reports.

The volume of wastewater exceeded LCP’s wastewater

treatme: { capacity, and LCP pumped the wastewater into empty

oil tanks for storage before treatment and final discharge from the

| | |

3

wastewater treatment plant. In 1993, LCP experienced other

operational problems which it promptly reported to Georgia EDP.

When the plant closed in 1994, GA EDP turned the

Brunswick plant over to the U.S. Environmental Protection

Agency (“EPA”). EPA listed the facility as a Superfund site and

commenced cleanup.

The United States criminally prosecuted individual

officers and employees of Hanlin, including petitioner herein, for

violations of federal environmental statutes: the Resource

Conservation and Recovery Act, 42 U.S.C. §§ 6928(d)(2)(A) and

(e), the Comprehensive Environmental Response Compensation

and Liability Act, 42 U.S.C. § 9603(b)(3) (“CERCLA”), and the

Clean Water Act, 33 U.S.C. § 1319(c)(2)(A) (“CWA”).

The criminal indictments charged the petitioner and his

co-defendants with exceeding the NPDES permit limits (Counts

2-21); for storing wastewater on the cellroom floors and

permitting some to escape into the environment (Counts 22-32);

for storing wastewater in oil tanks (Count 33); for knowingly

endangering employees by exposing them to impermissibly stored

wastes and wastewater (Count 34); for taking an endangered

species in violation of the Endangered Species Act (Count 42)

and for conspiring to commit those violations between July 1,

1985 and February 1, 1994 (Count 1). Unlike his father Christian

Hansen and the plant manager, Alfred R. Taylor, Randall was not

charged with failing to notify the U.S. Government of unpermitted

releases of chlorine or wastewater to the environment (Counts 35-

41).

Randall Hansen was charged and convicted, as were

Christian and Taylor, on all counts with which they were charged,

except for Count 42 — the Endangered Species Act violation. The

district court sentenced Randall Hansen to serve 46 months of

4

incarceration and to pay a fine of $20,000: it sentenced Christian

Hansen to serve 108 months of incarceration and to pay a $20,000

fine, and it sentenced Taylor to serve 78 months of incarceration

but without a fine. The district court denied the all defendants’

post-trial request for a judgment notwithstanding the verdict

and/or a new trial.

On August 24, 2001, the Eleventh Circuit Court of

Appeals issued a 74 page per curiam opinion, affirming the

convictions on all counts. The Eleventh Circuit improperly relied

on the responsible corporate officer doctrine as a basis for finding

liability under environmental criminal statutes. P

Questions Presented

l. Whether the “responsible corporate officer” doctrine can

be used to hold a person liable where that person no

longer had the authority or the capacity to prevent the

violations charged and was not in a decision-making role

for the corporation at the time the violations occurred.

2. Whether a criminal conviction based on the “responsible

corporate officer” doctrine for violations of the Resource

Conservation and Recovery Act, 42 U.S.C. §§ 6928(d) &

(e), the Clean Water Act, 33 U.S.C. § 1319(c), and the

Comprehensive Environmental Response Compensation

and Liability Act, 42 U.S.C. § 9603(b) requires the

defendant to have actual knowledge of each element

charged in the offense.

a nhs BAA RS ee He

5

a Whether the "responsible corporate officer" doctrine

permits felony conviction of individual corporate officers

for "failure to detect" violations under environmental

statutes for which Congress required proof of actual

knowledge.

4. Whether a jury instruction on the doctrine of "responsible

corporate officer" permits conviction for "knowing

endangerment" under 42 U.S.C. §§ 6928(e) and (f)

without a jury finding that the individual corporate officer

was actually aware or actually believed that his conduct

was substantially certain to place others in imminent

danger of death or serious injury.

Issues This Brief of Amicus Curiae Will Address

This brief amicus curiae will address the issue of the

erosion of the mens rea requirement by the expansion of the

concept of "public welfare offense," particularly as applied to

“environmental crimes,” and the unwarranted expansion of the

reach of “public welfare offense.”

Importance of the Issues

Substantive criminal law has expanded enormously, and

today expresses an extraordinary range of purposes including not

only that of minimizing violent behavior th>-atening to lives and

property, but also the regulation of economic enterprise,

protection of the environment, correction of relations among races

and genders, alteration in habits of consumption of liquor, drugs,

and sex. See, e.g., R. Pound, CRIMINAL JUSTICE IN AMERICA 23

(1930)). The rise of what is often referred to as the “regulatory

ne»

state” has imposed new functions and problems on the law. One

of the more troublesome of these is the cluster of problems

involving the relations of the criminal law to the conduct of

economic enterprise. These problems have a long history,(see J.

Hall, THEFT, LAW AND SOCIETY 62-70 (2d ed. 1952)), but the

complexity of commerce and economic activity has increased

immeasurably in the last century, as have the regulatory ambitions

and mandates of government. See F. Allen, The Morality of

Means: Three Problems in Criminal Sanctions, 42 U. PITTSBURGH

L. REV. 737, 742 (1981).

Although the courts, including this Court, have paid lip

service to the fundamental importance of the concept of mens rea

in our criminal law, the actual treatment of that concept has been

haphazard, undisciplined and poorly reasoned. This Court has

not, since the early part of the last century. addressed the issue

whether there are constitutional dimensions to that concept; and

its treatment of mens rea in that era was, in the words of one

noted scholar of criminal law, “flimsy. . .dictum” that became a

doctrine that “passed into our constitutional law that severe

criminal punishment may be inflicted at the legislature's will,

regardless of whether the defendant had any opportunity to

conform his conduct to the requirements of law.” H. Packer, Mens

Rea and the Supreme Court, 1962 SUPREME COURT REVIEW 107,

116.

In Hansen, the Eleventh Circuit dangerously broadened

the scope of liability in the environmental criminal! arena -- _

despite the heavy penalties that may result from convictions under

RCRA and the CWA.

7

ARGUMENT

Amicus curiae believes that certiorari is warranted in this

case because the decision of the Eleventh Circuit in this case is at

odds with this Court's interpretation of the requirements of the

“responsible corporate officer” doctrine and fundamental precepts

of criminal law with regard to mens rea, and that it improperly

expanded and misapplied the concept of "public welfare offense"

to a case involving environmental "crimes" that have severe

penalties.

The Eleventh Circuit upheld an unprecedented extension

of the "responsible corporate officer" doctrine, first articulated by

this Court in United States v. Dotterweich, 320 U.S. 277 ( 1943)

and United States v. Park, 421 U.S. 658 (1971) for strict liability

misdemeanor offenses, to serious felony environmental crimes.

The decision eroded the required standards for criminal liability

of individual corporate officers by sustaining an intra-corporate

“conspiracy” theory, predicated solely on standard business

discussions among corporate executives dealing with their

company’s bankruptcy. The resulting standard has serious legal

and policy implications; it not only will permit conviction of

innocent individuals, but also ultimately will deter participation

in responsible corporate behavior essential to environmental

compliance.

The Eleventh Circuit's decision is symptomatic of the

improper reduction of the Government's burden of proof through

the elimination of the mens rea requirement.

i ia

I.

THE COURT SHOULD DECIDE WHETHER

MENS REA IS A DUE PROCESS REQUIREMENT

Early in the last century, the concept of strict criminal

liability entered this Court’s jurisprudence through two cases that

are remarkable for their lack of clarity and peculiar procedural

contexts. See Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57

(1912) and United States v. Balint, 258 U.S. 250 (1922)°. As

Professor Packer observed, “The constitutional point, only

fleetingly referred to in the Government’s brief [in Balint], was

quickly dismissed by the Court. The only basis. . .was a reference

to. Shevlin-Carpenter, followed by the assertion that ‘Many

instances of this [dispensation with mens rea] are to be found in

regulatory measures in the exercise of what is called the police

power, where the emphasis of the statute is evidently upon

achievement of some social betterment rather than the punishment

of the crimes as in cases of mala in se.’ [Balint, 258 U.S. at 252]

The question was not one of constitutionality, but merely of

legislative intent.” Herbert L. Packer, Mens Rea and the Supreme

Court, 1962 SUPREME COURT REVIEW 107, 113-114.

Although this Court has narrowed the range of cases in

which mens rea is not required for conviction, it has done so on

a piecemeal basis, without confronting the constitutional due.

process issue head on. Indeed, one leading scholar has

characterized the Court’s jurisprudence on mens rea in harsh

terms: "From beginning to end, there is scarcely a single opinion

... of the Court which confronts the question in a fashion which

> Balint, the foundation upon which the Court dispensed with so

fundamental a protection as the requirement of mens rea, was decided ex

parte, and in an opinion that was only five pages long.

9

deserves intellectual respect." Henry M. Hart, The Aims of the

Criminal Law, 23 Law & Contemp. Prob. 401, 431(1958).

Instead of undertaking a fundamental review of its

somewhat disjointed and contradictory jurisprudence in this area.

the Court has resorted to a piecemeal approach: by finding mens

rea required when a statute arguably infringes First Amendment

rights (e.g. United States v. X-Citement Video, 513 U.S. 64

(1994)); by limiting the reach of the doctrine of “public welfare

offense” (e.g. Morissette v. United States, 342 U.S. 246 (1942),

Staples v. United States, 511 U.S. 600 (1994)); by statutory

construction and presumptions that in the absence of explicit

language, and in light of the “disfavored status” of criminal laws

that dispense with mens rea, the Court would read a Statute that

imposes criminal penalties as requiring proof of scienter.(e.g.,

Morissette, supra, Liparota v. United States, 471 U.S. 419 (1985),

Posters ‘N”’ Things v. United States, 511 U.S. 513 (1993)); or by

requiring proof of actual involvement or control by a parent

company (and, presumably, its officers) before liability (even

civil) attaches for violations of an environmental statute (United

States v. Bestfoods, 524 U.S. 5] (1998)).

An effort to articu‘ate the constitutional basis of the

concept of mens rea should be made, because what underlies that

concept is the recognition that criminal sanctions are distinctive

both in their severity and their moral Overtones, and that their

distinct character must be recognized, not only in the procedures

by which they are invoked and applied, but also in the substance

of what punishment is meted out. As the drafters of the Model

Penal Code note:

The liabilities involved [in criminal penalties] are

indefensible, unless reduced to terms that insulate

conviction from the type of moral condemnation

that is and ought to be implicit when a sentence of

10

probation or imprisonment may be imposed. It

has been argued, an? the argument undoubtedly

will be repeated, that strict liability is necessary

for enforceme1. a number of the areas where it

obtains. But if ;vactical enforcement precludes

litigation of the culpability of alleged deviation

from legal requirements, the enforcers cannot

rightly demand the use of penal sanctions for the

purpose. Crime does and should mean

condemnation and no court should have to pass

that judgment unless it can declare that the

defendant's act was culpable. This is too

fundamental to be compromised. The law goes

far enough if it permits the imposition of a

monetary penalty in cases where strict liability

has been imposed.

Model Penal Code, sec. 2.05 and Comments at 282-283

(American Law Institute 1985).

Il.

THE COURT OF APPEALS’ USE OF THE

“RESPONSIBLE CORPORATE OFFICER”

DOCTRINE IN THIS CASE WAS AN

UNWARRANTED AND DANGEROUS

EXPANSION OF THE CONCEPT OF

“PUBLIC WELFARE OFFENSE”

In United States v. Dotterweich, 320 U.S. 277 (1943) and

in United States v. Park, 421 U.S. 658 (1975) this Court adopted —

the "responsible corporate officer" doctrine for a very limited

category of strict liability "public welfare" or “regulatory”

offenses’, under which criminal liability may be imposed "upon

a person otherwise innocent but standing in responsible relation

* See Staples v. United States, 511 U.S. 600, 606 (1994).

sare

1]

to a public danger." Dotterweich, 320 U.S. at 281. The statute in

~ Dotterweich and Park — the Federal Food, Drug, and Cosmetic

Act—"dispense[d] with the conventional requirement for criminal

conduct awareness of some wrongdoing." /d. Justice

Frankfurter’s reasoning in Dotterweich is reminiscent of

totalitarian “ends justify the means” logic. He, and the Court,

rejected defendant's plea for the constitutio: al protection and

defendant's mens rea claim in only sixty-seven words:

The prosecution to which Dotterweich was

subjected is based on a now familiar type of

legislation whereby penalties serve as effective

means of regulation. Such legislation dispenses

with the conventional requirement for criminal

conduct--awareness of some wrongdoing. In the

interest of the larger good it puts the burden of

acting at hazard upon a person otherwise

innocent but standing in responsible relation to a

public danger. United States v. Balint, 258 U.S.

250.

320 U.S. 277, 280-281 (1943)(emphasis supplied). Professor

Packer characterized this passage as “offhand” and reflecting a

“primitive and rigid view of mens rea... .” H. Packer, op. cit. at

119.

So-called public welfare offenses (See generally Francis

B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55 (1933),

the classic article on public welfare offenses) usually are thought

of as being limited to mala prohibita crimes such as traffic

offenses and those involving the sale of intoxicating liquor,

narcotics, and impure food or drugs. (Id. at 72-73, 84-88)°. They

have come to comprise a catch-all category for "any crime

> See Staples v. United States 511 U.S. 600, 607 (1994); United

States v. International Minerals & Chemical Corp., 402 U.S. 558, 565

(1971).

]2?

construed to dispense with mens rea" (H. Packer, Mens Rea and

the Supreme Court, 1962 SUPREME COURT REVIEW 104, 146), one

that encompasses an ever-growing number and variety of strict

liability crimes. See Model Penal Code, sec. 2.05, Comment 2, at

284-291.

Ever since Sayre gave the term “public welfare offense”

currency, this category of offense has been treated as the main

“exception” to the principle of mens rea, but it has been used by

the courts as a convenient pigeon-hole for any crime construed as

not requiring mens rea. The concept of the public welfare offense

openly flouts the principle of of mens rea.°

Despite the large body of decisional law that affirms

dispensing with the mental element in violations of various

regulations, there is conspicuous lack of authority explicitly

considering and avowing the propriety of distinctively “criminal”

sanctions in statutes that are held to be public welfare offenses.

Indeed, these offenses have been treated as something different

from traditional criminal law, as a hybrid category to which the

odium and hence the safeguards of criminal process do not attach.

And despite the long recognition of strict and vicarious

° In Staples, the Court noted that it has “referred to public welfare

offenses as ‘dispensing with’ or ‘eliminating’ a mens rea requirement or

‘mental element,’ see, e.g., Morissette, 342 U.S., at 250, 263, 72 S.Ct. at

249-250; United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134,

136-137, 88 L.Ed. 48 (1943), and have described them as strict liability

crimes, United States v. United States Gypsum Co., 438 U.S. 422, 437, 98

S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978). While use of the term ‘strict

liability’ is really a misnomer, we have interpreted statutes defining public

welfare offenses to eliminate the requirement of mens rea; that is, the

requirement of a "guilty mind" with respect to an element of a crime.

Under sucli statutes we have not required that the defendant know the facts

that make his conduct fit the definition of the offense. Generally speaking,

such knowledge is necessary to establish mens rea, as is reflected in the

maxim ignorantia facti excusat.” Staples, 511 U.S. 600, 607 (1994).

i a a A ow ttle to oor

13

liability in American criminal law, virtually no reasoned literature

supports these doctrines. The arguments favoring liability without

culpability rarely go beyond the assertion of Justice Jackson in

Morissette:

While such offenses do not threaten the security

of the state in the manner of treason, they may be

regarded as offenses against its authority, for their

occurrence impairs the efficiency of controls

deemed essential to the social order as presently

constituted. In this respect whatever the intent of

the violator, the injury is the same, and the

consequences are injurious or not according to

fortuity. Hence, legislation applicable to such

offenses, as a matter of policy, does not specify

intent as a necessary element.

Morissette v. United States, 342 U.S. 246, 256 (1952).

This Court, however, has generally been reluctant to

"expand the doctrine of crimes without intent" beyond public

welfare offenses that carry light penalties. See Morissette v.

United States, 342 U.S. 246, 260 (1952); Staples, 511 U.S. 600,

616 (Historically, the penalty imposed under a statute has been

a significant consideration in determining whether the statute

should be construed as dispensing with mens rea. Certainly, the

cases that first defined the concept of the public welfare offense

almost uniformly involved statutes that provided for only light

penalties such as fines or short jail sentences, not imprisonment

in the state penitentiary.”) and United States v. X-Citement Video,

Inc., 513 U.S. 64, 72 (1994). See also United States v. United

States Gypsum, 438 U.S. 422, 442, n. 18 (1978) (noting that an

individual violation of the Sherman Antitrust Act is a felony

punishable by three years in prison or a fine not exceeding

$100,000 and stating that "[t]he severity of these sanctions

provides further support for our conclusion that the [Act] should

14

not be construed as creating strict-liability crimes"). In the case

at bar, Randall Hansen was sentenced to almost four years

imprisonment, his father to nine years imprisonment, and Taylor

to six and one-half years imprisonment. These are hardly “light

penalties” or “short jail sentences.”

The Eleventh Circuit’s decision conflicts with this Court's

prior application of the “responsible corporate officer” doctrine

because it imposes liability on persons who had no responsibility

or authority to prevent or correct the charged violations. The

Eleventh Circuit improperly eliminated the "actual knowledge"

standard by deeming the regulations at issue to be public welfare

statutes and allowing the jury to convict without the Government

proving that the Petitioners had the mens rea necessary to commit

the violation.

The "actual knowledge" issue has been addressed by the

Supreme Court in Staples v. United States, 511 U.S. 600, 616

(1994), and United States v. X-Citement Video, Inc., 513 U.S. 64,

70 (1994), but not in the context of environmental statutes.

The criminal provisions of the CWA and RCRA do not,

properly read, impose strict liability on a defendant and

converting them to "public welfare statutes" by removing the

The distinction between “light” and “heavy” punishment is

somewhat blurred in any event, for a person convicted of a strict liability

crime is convicted in the same court as other criminals, liable to imprison-

ment in the same prison, suffers the same loss of rights of citizenship, and

conviction does the same “grave damage to an offender's reputation."

Morissette v. United States, 342 U.S. 246, 256 (1952). Whatever the

ultimate goals of criminal punishment, it seems clear that our system of

criminal justice, by its labels and actions, intend to, and do, mark those

convicted as having committed a serious wrong. See A. Saltzman, Strict

Criminal Liability and the United States Constitution: Substantive Criminal

Law Due Process, 24 WAYNE L. REV. 1572, 1580 (1978).

]

Wh

mens rea element “‘iolates constitutional guarantees of due

process.

The confusion in the scienter requirements of the

“responsible corporate officer” doctrine results from the failure of

courts to distinguish the occasions when the “responsible

corporate officer” doctrine is applied to true public welfare

statutes from those where the “responsible corporate officer”

doctrine is applied to regulations that call for explicit knowledge

and impose severe criminal penalties, such as the CWA and

RCRA. Several courts have properly held the government to its

burden of proving a defendant's knowledge of each element of the

crime and have declined to apply the public welfare offense

doctrine to environmental statutes. See United States v. Ahmad,

101 F.3d 386 (Sth Cir. 1996) (holding that the CWA is not a

public welfare statute); United States v. MacDonald & Watson

Waste Oil Co., 933 F.2d 35, 51-52 (1st Cir. 1991) (distinguishing

RCRA, which requires specific intent, from the public welfare

statutes at issue in United States v. Dotterweich, 320 U.S. 277

(1943) and United States v. Park, 421 U.S. 658 (1975).

Other courts of appeals have applied the gloss of the

public welfare doctrine to “knowing” violations of RCRA and the

CWA and have held persons criminally liable as responsible

corporate officers without the requisite showing of specific intent.

See United States v. Kelley Technical Coatings, Inc., 157 F.3d

432, 438-39 (6th Cir. 1998); United States v. Wilson, 133 F.2d

251, 262-63 (4th Cir. 1997).

This Court has not explicitly addressed the mens rea

requirement of environmental criminal statutes such as CWA and

RCRA. This case presents the Court with an opportunity to

clarify the confusing and contradictory standards expressed by the

circuit courts of appeals and reaffirm the holdings of Staples and

X-Citement in the environmental law context.

16

In Hanousek v. United States, 528 U.S. 1102, 1103-05

(2000), Justices Thomas and O'Connor called into question the

application of the public welfare doctrine to the CWA in terms

that are also applicable to RCRA. Hanousek v. United States, 528

U.S. 1102, at 1103-05 (2000). They noted that". . . it is erroneous

to rely, even in small part, on the notion that the CWA is a public

welfare statute." They also noted that the circuits were split on

this issue, and urged the Court to "further delineate [the] limits"

of the public welfare doctrine. Jd. Justices Thomas and O'Connor

believe, as do most commentators and the drafters of the Model

Penal Code, that the seriousness of the penalties (felonies with

three to six years in prison) "counsels against concluding that the

CWA can accurately be classified as a public welfare statute." Jd.

at 1104. A broad application of the public welfare statute concept

is particularly pernicious because classifying criminal statutes,

such as the CWA and RCRA, as public welfare statutes merely

because they regulate conduct that is subject to extensive

regulation and may involve risk to the community “would extend

this narrow doctrine to virtually any criminal statute applicable to

industrial activities.” Jd. See also, United States v. Weitzenhoff, 35

F.3d 1275, 1295 (9" Cir. 1994)(Kleinfeld, J., dissenting), cert.

denied, 513 U.S. 1128 (1995).

The very substantial prison sentences imposed in Hansen

confirm Justice Thomas’ and O'Connor's concerns in Hanousek,

and weigh against classifying the CWA and RCRA as public

welfare statutes. We believe that the concerns of Justices Thomas

and O’Connor were well founded, and that the Court should grant

certiorari in this case to clarify the law, and to instruct the lower

courts that diminishing or eliminating the mens rea requirement

is unconstitutional. We respectfully submit that, because of the

serious penalties they impose, these statutes cannot be considered

public welfare statutes which do not require proof of mens rea.

17

iil.

THE JURY INSTRUCTION UPHELD

BY THE COURT OF APPEALS

INCORRECTLY PERMITTED CONVICTION

UNDER A DIMINISHED MENS REA STANDARD

In this case, the Eleventh Circuit upheld a diminished

mens rea requirement for corporate officers. Although the

Eleventh Circuit arguably stated the correct legal standard, the

"responsible corporate officer" instruction of the trial court which

it affirmed eliminated the statutory mens rea not only for knowing

endangerment (count 34), but also for lesser RCRA offenses

(counts 22-33).

A person violates RCRA if he "knowingly treats, stores,

or disposes of any hazardous waste identified or listed under this

subchapter" without a permit. 42 U.S.C. sec. 6928(d)(2)(A). This

Court has held that the use of the word "knowingly" in a federal

criminal statute requires "proof of knowledge of the facts that

constitute the offense." Bryan v. United States, 524 U.S. 184,

193(1998). See also Staples v. United States, 511 U.S. 600,

619(1994) (interpreting implied statutory knowledge element to

require proof "that petitioner knew of the features of his gun that

brought it within the scope of the Act"); Morissette, 342 U.S. at

271 (interpreting implied statutory knowledge element to require

proof that defendant "had knowledge of the facts . . that made the

taking a conversion").

The "responsible corporate officer" instruction in this case

required no knowledge of any particular facts constituting the

offenses; it permitted the jury to convict if petitioner merely

"acted knowingly in failing to . . . detect or correct the violation."

(R22-200). Thus the jury was permitted to convict for failure to

correct, even though the jury could find that petitioner first

18

acquired knowledge of the violation after its occurrence, as the

district count concluded he did.(See, e.g., R14-235-236 (Randall

"was notified of these violations after the fact"). Further, the

concept of “failure to detect” a violation authorized the jury to

convict even if the defendant did not have actual knowledge at

any time.

While.the district count used a mens rea concept in the

jury instruction (i.e., "acted knowingly"), it also instructed the jury

that the phrase "acted knowingly" meant only that a person "acts

intentionally and voluntarily, realizing what he is doing, and not

because of ignorance, mistake, accident, or carelessness." R2-188.

For a defendant merely to "realiz[e] what he is doing" (i.e., to be

generally aware of the nature of his conduct) falls far short of an

actual awareness of the circumstances and results of his conduct.

The error was even more palpable with respect to the

application of the "responsible corporate officer" instruction to the

“knowing endangerment” counts under RCRA. Knowing

endangerment occurs only if "a person who knowingly transports,

treats, stores, disposes of’ or exports any hazardous waste,” in

violation of 42 U.S.C. sec. 6928(d), also "knows at that time that

he thereby places another person in imminent danger of death or

serious bodily injury." 42 U.S.C. sec. 6928(e). Congress adopted

a version of the Model Penal Code's definition of knowledge

specifically for RCRA's knowing endangerment provision. See

42 U.S.C. sec. 6928(f)(I) and Model Penal Code sec. 2.02(2)(b).®

8 See also, Kenneth R. Feinberg, Toward a New Approach to

Proving Culpability: Mens Rea and the Proposed Federal Criminal Code, 18

AM. CRIM. L. REV. 123, 129 (1980) ("S. 1722 replaces the confusing and

inconsistent ad hoc approach to culpability that now characterizes federal

criminal law with a new system that has its genesis in the Mode! Penal

Code”).

|

:

% SS Rai WN A inl i Cl ne SE ly a A gin Wrest bata

19

The district count's "responsible corporate officer” instruc-

tion failed to require proof that petitioner had actual knowledge --

i.e., actual awareness or actual belief — of any existing

circumstances or expected results of his conduct, thus eviscerating

the statutory mens rea requirement. It permitted the jury to

zonvict Randall of knowing endangerment based only on a

finding, at most, that he had a general awareness of the nature of

his conduct within the meaning of section 6928(f)(1)(A).

The Eleventh Circuit did not recognize the significant

differences in these culpability requirements, upholding the

instruction merely because it included the phrase "acted

knowingly."

20

CONCLUSION |

As Justices Thomas and O'Connor stated in their recent

dissent to the denial of a petition for a writ of certiorari in

Hanousek v. United States, 528 U.S. 1102, 1103-05 (2000), the

Court should resolve the split in the circuits and decide whether

CWA and RCRA are public welfare statutes, should elucidate the

scope of the “public welfare offense” concept in federal law, and

should address, for the first time in a considered way, the

constitutional due process implications of dispensing with proof

of mens rea as an prerequisite for criminal conviction and

punishment.

May 1, 2002

Respectfully submitted,

MARTIN S. KAUFMAN

Counsel of Record

Atlantic Legal Foundation

150 East 42nd Street

New York, New York 10017

(212) 573-1960

Counsel for Amicus Curiae

National Association of Criminal

Defense Lawyers

Of Counsel:

LISA B. KEMLER, Co-Chair

NACDL Amicus Committee

108 N. Alfred Street

Alexandria, Va. 22314

(703) 694-8000

Certificate of Service

Martin S. Kaufman, an attorney admitted to practice before

the bar of this Court. hereby declares under penalty of perjury, that

three copies of the foregoing brief of amicus curiae National

Association of Defense Lawyers in support of the petitioner was

served on the following counsel of record for the parties on the 1*

day of May, 2002, by depositing same in a postal depository box

under the care of the United States Pos’ +I Service, in a properly

addressed, first class postage prepaid envelopes addressed to:

Theodore B. Olson, Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

(202) 514-2217

Counsel for Respondent United States of America

Deborah Brand Baum

Shaw Pittman LLP

2300 N Street NW

Washington, D.C. 20037

(202) 663-8000

Counsel for Petitioner Randall W. Hansen

David P. Hackett

Baker & McKenzie

130 E. Randolph Drive

Chicago, IL 60601

(312) 861-8000

Counsel for Petitioners Christian A. Hansen and Alfred R. Taylor

XQ, aS ie

aa, =>

Martin S. Kaufman