# Amicus Curiae Brief — Hansen v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1117%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1111

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1117%3A4. Public record. Not legal advice.