Amicus Curiae Brief — Hansen v. United States

[Supreme Court, U.S.

FILED

)

No. 01-1104 MAY 1 OR

IN THE

Surpreme Court of the Anited States

RANDALL W. HANSEN,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE

WASHINGTON LEGAL FOUNDATION AND

MANUFACTURERS ALLIANCE/MAPI, INC.

IN SUPPORT OF PETITIONER

DANIEL J. POPEO PETER L. GRAY *

PAUL D. KAMENAR THOMAS B. JOHNSTON

WASHINGTION LEGAL MARGARET JOHNSON

FOUNDATION MCKENNA & CUNEO, L.L.P.

2009 Massachusetts Avenue, N.W. 1900 K Street, N.W.

Washingtion, D.C. 20036 Washington,D.C. 20006

(202) 588-0302 (202) 496-7500

* Counsel of Record

May 1, 2002

A IE NRA ISN SITS: EASES IT ISIE OTE ET LIS IE TET ENT EAI OEE AISNE IED BRS SENG AIOE A

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE

TABLE OF CONTENTS

INTRODUCTION AND STATEMENT

SUMMARY OF ARGUMENT

REASONS FOR GRANTING THE PETITION

I.

OF THE CASE

Peewee eeeesereeeeeeeeeeee

COOP HHHHHEHO HHH HEHEHE HEHE HEHE EEE

THE COURT OF APPEALS MISAPPLIED

THE RESPONSIBLE CORPORATE

OFFICER DOCTRINE

A.

The Responsible Corporate

Officer Doctrine Only

Applies to Misdemeanor

Violations of Public Welfare

Legislation Where

Punishment Is Light ..................

The Mens Rea Language of

the RCRA “Knowing

Endangerment” Felony

Provision and its Fifteen-

Year Maximum Sentence are

Incompatible with the

Responsible’ Corporate

Officer Doctrine ........................

SOC HEEHHEEHEHEHEHEEEH HEHEHE EEE HEHEHE

eee eee reereree

il

I. | IF ALLOWED TO STAND, THE COURT

OF APPEALS DECISION WILL IMPOSE |

UNJUSTIFIED RISKS ON CORPORATE

MANAGERS TO THE DETRIMENT OF

THE PUBLIC INTEREST ....::0ncsssessccassiccssasess 16

CEFR A AIGIIE secsctenrssenennnacannan en Laser 18

iil

TABLE OF AUTHORITIES

Cases: Page

Hanousek v. United States, 176 F.3d 1116

(9th Cir. 1999), cert. denied,

EE Re 6 CUD eeeenervecrceseseeessercececensoneveeens 15

Hansen v. United States, 70 U.S.L.W. 3497

(U.S. Jan. 24, 2002) (No. 01-1112) wc. 7

Morissette v. United States,

oo capuaeumaiands 9

Staples v. United States,

Be I ED ciicscnccenescsdovnnunesinsundevaswevnsnss 12

United States v. Dotterweich,

BE EM BEE CIEE cottoccccenesenevessrecses 2, 3, 40, 11

United States v. Park,

BIR | Te > | en 2, 3, 6, 10, 11

United States v. Weitzenhoff, 35 F.3d 1275

(9th Cir. 1994), cert. denied, 513 U.S. 1128

a deueianeiasie 17

United States v. White, 766 F. Supp. 873,

ESR Bee 16

Statutes:

Ds OF MECN DOTY ocenccsevcevecsesvesverevarcccerseneceess 12

Federal Food, Drug & Cosmetic Act,

I alas 10, 12

Sentencing Reform Act of 1984, Pub. L. 98-473,

tit. IT, § 218(a)(S), 98 Stat. 2027 (1984) 0000... 12

Occupational Safety and Health Act,

a asesmsenbenans 6

Clean Water Act,

RE 8 ol 2 i FS enn 3

iV

Resource Conservation and Recovery Act,

42 U.S.C. §§ 6901-6992k (1994) oo... eee 13

PE. ot 7 eRe n nen nae DE CEN nn 13

Oe Fs ee eesresenitccnsinteceniceninseecatinmnvnate 14

BE UI, 6 GD eetiteiitcescscsnerrintinenrenes 3

ETL. © Ge tatters a 32

ET, Be ib rdeinesictadentncerescctiintinnnctets 14

42 U.S.C. §§ 6928(f)(2)(A)-(B) .......... eee eeeeeeeeees 14

Miscellaneous:

Brenda S. Hustis & John Y. Gotanda,

The Responsible Corporate Officer

Doctrine: Designated Felon or Legal

Fiction?, 25 Loy. U. CHI. L. J. 169 (1994) ...... 17

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation (“WLF’”) is a

national non-profit public interest law and policy center

based in Washington, D.C., with supporters nationwide.

WLF devotes substantial resources to litigating cases and

filing amicus curiae briefs in this and other federal courts

promoting a limited and accountable government and

opposing overreaching by those administrative agencies

and courts which act contrary to the plain méaning of the

language chosen by Congress in the substantive statutes at

issue. '

WLF participated as amicus curiae in this case

below as well as in numerous other cases which, like the

present case, raise the important issue of whether proof of

mens rea in the criminal application of environmental

statutes is required. See, e.g., United States v. Weitzenhoff,

35 F.3d 1275 (9th Cir. 1994), cert. denied, 513 U.S. 1128

(1995); United States v. Ahmad, 101 F.3d 386 (Sth Cir.

1996); United States v. Hanousek, 176 F.3d 1116 (9th Cir.

1999), cert. denied, 528 U.S. 1102 (2000).

The Manufacturers Alliance/MAPI, Inc. is a non-

profit policy research organization supported by more than

500 manufacturing companies from a broad range of

industries. Its members range in size from relatively small,

single-product manufacturers to very large, highly

diversified manufacturers with annual sales revenues

' This brief is being filed with the consent of all parties. Letters of

consent are on file wita the Clerk of this Court. Pursuant to Sup. Ct.

R. 37.6, amici hereby affirm that no counsel for either party authored

any part of this brief, and that no person or entity other than WLF and

its counsel provided financial support for preparation or submission of

this brief.

2

exceeding one billion dollars. Its mission is to assist its

Members in improving productivity by stimulating

investment in technology and by encouraging innovations,

thereby enhancing its members worldwide competitiveness.

Of particular relevance to this case, the

Manufacturers Alliance’s Environmental Management

Council promotes the exchange of practical and timely

information concerning the executive management of

Manufacturers’ environmental, health, and safety programs,

and encourages "best practices" in complying with

applicable regulatory requirements.

Amici will provide the Court with a broader

Perspective to this case than that provided by the parties

and will present additional reasons why this Court should

grant the petition, namely, (1) the unwarranted and

Unlawful expansion of the “responsible corporate officer”

doctrine to obtain felony convictions for specific intent

Crimes under environmental statutes, and (2) the

Counterproductive and undesirable effects that such

€xpansion likely will have on the governanceof firms with

industrial operations.

INTRODUCTION

AND STATEMENT OF THE CASE

This case pushes the envelope of the “responsible

Corporate officer” doctrine far beyond any case decided

Since this Court articulated the doctrine in United States v.

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

Park, 421 U.S. 658 (1975). In Park and Dotterweich, the

Court affirmed misdemeanor convictions of company

officers under criminal provisions of the food safety law

oO

3

from which Congress intentionally omitted any mens rea

requirement and under which only light jail terms are

possible. In the present case, the petitioner was convicted

of felonies under criminal provisions of the Clean Water

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

Resource Conservation and Recovery Act (“RCRA”), 42

U.S.C. §§ 6928(d)(2)(A) and (e), both of which require

“knowing” conduct on the part of the defendant, and for

which substantial prison terms of several years are not only

possible, but, as this case demonstrates, likely to be

imposed.

This case thus presents the question of whether the

court of appeals so misconstrued and misapplied this

Court’s Park/Dotterweich responsible corporate officer

doctrine by greatly expanding it to allow its use to support

felony convictions under statutes requiring actual

knowledge of the offense and for which substantial prison

terms are provided.

Christian Hansen, father of the petitioner, was the

founder and president of Hanlin Group, Inc. (Hanlin). In

1991, the financially troubled company was forced into

bankruptcy under Chapter 11. A year later, the father

convinced his son, petitioner Randall W. Hansen, who

lived with his family in New Jersey, to temporarily serve

as Executive Vice President of LCP Chemicals, a division

of Hanlin, because the post had become vacant. Pet. App.

2a. Randall Hansen’s mission was to develop “the

business and financial plans necessary to turn around the

financial condition of the chemicals business.” Pet. App.

6a. One of LCP’s assets was its Brunswick, Georgia

facility, which produced a variety of commercially vital

chemical compounds.

4

The Brunswick facility had experienced several

environmental problems that predated Randall Hansen’s

hiring. The environmental problems revolved around the

facility’s wastewater treatment system. The facility was

authorized to discharge wastewater to a nearby creek after

treatment in the facility's wastewater treatment system.

Pet. App. 3a. The capacity of the wastewater treatment

system, however, was not always sufficient to keep up with

the volume of wastewater generated by the facility’s

operations. Accordingly, LCP’s discharge permit

authorized the facility to temporarily hold wastewater on

the floors of two large “cellrooms,” pending treatment.

Pet. App. 4a.

With the onset of Hanlin’s bankruptcy in 1991,

“funds for maintenance, repair, and environmental

compliance were restricted.” Pet. App. 6a. With almost

no funds for maintenance or repair, the wastewater

treatment system broke down frequently. When this

occurred, the facility accumulated excessive levels of

wastewater in the cellrooms and occasionally had to

discharge untreated wastewater to the environment, in

violation of the facility’s CWA permit. LCP reported such

unpermitted discharges to the Georgia Environmental

Protection Division (“EPD”), which administered the

permit. Pet. App. 10a.

After being told of the unpermitted discharges by

the plant manager, Randall Hansen “attempted to find

funds [for plant repairs] by selling excess equipment and

reducing the payroll but the funds remained limited.” Pet.

App. 6a. He also requested the Hanlin Board of Directors,

the bankruptcy creditor’s committee and the court for

funds to address the wastewater problem, but those

5

requests were denied. /d. Randall Hansen made efforts to

sell the plant to a company with resources to correct the

problems, but those efforts eventually failed and the plant

closed in February 1994.

Over four years later, Randall Hansen was indicted

along with his father and two other plant managers and

charged with: (1) knowingly discharging pollutants in

violation of the CWA permit; (2) knowingly storing,

treating or disposing of hazardous waste without a RCRA

permit; (3) through the RCRA violations, knowingly

endangering employees at the plant, such that they were

placed in imminent danger of death or substantial harm:

and (4) conspiring with other officers of Hanlin to violate

these environmental laws.

At trial, the defense vigorously contested the

prosecution’s claim that Randall Hansen had sufficient

actual knowledge to be charged with “knowing

endangerment.” Only one employee testified about an

actual injury relating to exposure to wastewater. The

employee claimed that sometime between 1986 and 1993

(he could not even remember what year in that seven-year

period of time), he had fallen into a sump of the

wastewater and suffered minor chemical burns. The

witness testified that he simply showered off, never sought

medical attention, and never reported the incident to

Hanlin or LCP management.

By adding a "knowing endangerment" count under RCRA, the

prosecution was taking what was akin to a worker safety violation

under the Occupational Safety and Health Act (OSHA), for which

the maximum sentence is six months imprisonment in the case of a

fatality resulting from a wilful violation of an OSHA regulation (29

Ee

i

6

At the close of evidence, the trial judge instructed

the jury regarding the various elements of the CWA and

RCRA violations charged. Over the objections of

petitioner’s counsel, the trial judge added to his

instructions on the RCRA charges a summary proposed by

the prosecution. The summary stated that the jury could

convict the individual defendants, including Randall

Hansen, if the jury found:

First: that the Defendant under consideration had

a responsible relationship to the violation — that is,

that it occurred under his area of authority and

supervisory responsibilty;

Second: that the Defendant had the power or the

capacity to prevent the violation; and

Third: that the Defendant acted knowingly in

failing to prevent, detect or correct the violation.

Pet. App. 95a.

The prosecution cited United States v. Park as its

principal authority for giving this instruction. Pet. App.

100a. The trial judge, over the renewed objection of the

petitioner’s counsel, instructed the jury that this summary

could be used to convict the petitioner of Count 34,

“knowing endangerment.” Pet. App. 53a. Randall Hansen

was convicted on all counts, including knowing

endangerment. As a first offender, model citizen, and

father of two young children, he was sentenced to the

draconian sentence of 46 months of incarceration.

U.S.C. § 666(e)), and turning it into a knowing endangerment

RCRA violation, where no fatality or serious injury resulted, for

which the maximum sentence is 15 years

7

Amici shall focus their brief on the “knowing

endangerment” count because it dramatically illustrates the

fatal flaw of applying the responsible corporate officer

doctrine to a specific intent felony offense under RCRA.”

SUMMARY OF ARGUMENT

Our system of criminal law is founded on the

fundamental principle that to convict a defendant of a

crime and deprive him of his liberty, the government must

establish, beyond a reasonable doubt, that the defendant

possessed a criminal state of mind, or mens rea, and that

there is sufficient evidence to prove such knowledge

beyond a reasonable doubt. The responsible corporate

officer doctrine, articulated by this Court in Dotterweich

and Park, is, and must remain, a very narrow exception to

this rule. The rule essentially relieves prosecutors of the

mens rea element of proof for violations of what are

referred to as "public welfare legislation." Under this

doctrine, a person may be held criminally liable for

wrongful conduct of others within the corporate

infrastructure by virtue of having held a responsible

position within the corporation. Both Dotterweich and

Park involved misdemeanor violations of the federal food

safety law for which the defendants were not imprisoned.

Neither case, however, affords federal prosecutors a short

cut to felony convictions for environmental crimes carrying

Amici note that a separate joint petition has been filed by

Christian Hansen and Alfred Taylor in this case. Hansen v. United

States, 70 U.S.L.W. 3497 (U.S. Jan. 24, 2002) (No. 01-1112).

Amici submit that if Randall Hansen’s petition is granted, then the

companion joint petition should also be granted because it raises

similar issues.

lengthy prison terms.

In the present case, the Eleventh Circuit affirmed

the Petitioner’s felony conviction for “knowing

endangerment” under RCRA, endorsing the government’s

use of the responsiblecorporate officer doctrine to supplant

an express mens rea requirement. To be convicted of

knowing endangerment, RCRA requires proof that the

defendant had “actual awareness” that his conduct could

cause death or severe injury to employees and expressly

prohibits attribution of knowledge to satisfy this mens rea

requirement.

Nevertheless, the Eleventh Circuit affirmed Randall

Hansen’s conviction for knowing endangerment simply

because he had the authority to prevent the violation and

failed to do so. Neither Dotterweich and Park contemplate

use of the responsible corporate officer doctrine to obtain

a felony conviction of a specific intent offense such as

“knowing endangerment.”

If allowed to stand, the Eleventh Circuit’s decision

would work a manifest injustice and violate due process by

permitting the incarceration of individuals for several years

without having to show sufficient evidence to prove mens

rea. The decision would also undermine environmental

protection by setting the threshold for criminal conduct so

low that it will chill or discourage educated and capable

‘people from serving in a corporate environmental capacity.

REASONS FOR GRANTING THE WRIT

The Petition presents an important question of

federal law — whether prosecutors may use the responsible

corporate officer doctrine in felony prosecutions of

environmental crimes, which effectively would eliminate

the government’s burden of proof as to the required mens

rea element of these violations, and subject corporate

officers to strict liability for felony offenses simply by

virtue of their corporate positions. -This issue has never

been specifically addressed by this Court and, as the

Petitioner notes, the Circuit Courts of Appeal are in

conflict. Pet. 24. Accordingly, guidance from this Court

is needed to settle this important question.

I. THE COURT OF APPEALS MISAPPLIED

THE RESPONSIBLE CORPORATE OFFICER

DOCTRINE

A. The Responsible Corporate Officer

Doctrine Only Applies to Misdemeanor

Violations of Public Welfare Legislation

Where Punishment Is Light

Traditionally, our laws have required a showing that

a defendant charged with a crime has performed a

wrongful act with a wrongful intent: “an evil-meaning

mind” and “an evil-doing hand.” See Morissette v. United

States, 342 U.S. 246, 251 (1952). The responsible

corporate officer doctrine is an exception to the rule.

Under this doctrine, a corporate officer may be held

criminally liable even if the officer did not personally

participate in a wrongful act, if his position and authority

empowered him to prevent or correct the conduct which

10

gave rise to the violation. Dotterweich, 320 U.S. at 281.

In Dotterweich, the president of a pharmaceutical

company was prosecuted for shipping adulterated and

misbranded drugs in violation of the Federal Food, Drug

and Cosmetic Act (FFDCA). 21 U.S.C. § 331. Although

the adulteration of the drugs was found to have been

accidental, the defendant’s conviction was affirmed.

Balancing the relative interests and burdens, this Court

stated:

Hardship there doubtless may be under a statute

which thus penalizes the transaction though

consciousness of wrongdoing be totally wanting.

Balancing relative hardships, Congress has

preferred to place it upon those who have at least

the opportunity of informing themselves of the

existence of conditions imposed for the protection

of consumers before sharing in illicit commerce,

rather than to throw the hazard on the innocent

public who are wholly helpless.

320 US. at 284-85.

Thirty years later, in United States v. Park, this

Court once again reviewed a CEO’s conviction for

adulteration under the FFDCA. The CEO of a retail

grocery chain admitted to having received notice from the

Food and Drug Administration of unsanitary conditions at

one of the company’s food warehouses after officials

inspected the building. There also was evidence that two

later inspections revealed that the unsanitary warehouse

conditions had not been corrected. 421 U.S. at 661-62,

664. Because the CEO was in a position to have

11

prevented the violation, this Court affirmed the CEO’s

conviction, stating:

[T]he Act imposes not only a positive duty to seek

out and remedy violations when they occur, but

also, and primarily, a duty to implement measures

that will insure that violations will not occur. The

requirements of foresight and vigilance impose on

responsible corporate agents are beyond question

demanding, and perhaps onerous, but they are no

more stringent than the public has a right to expect

of those who voluntarily assume positions of

authority in business enterprises whose services and

products affect the health and well-being of the

public that supports them.

421 US. at 672.

Central to the Court’s decision to affirm the

convictions in Dotterweich and Park was its finding that

the FFDCA violations at issue were “public welfare”

offenses. The hallmarks of a public welfare offense are

unmistakable under FFDCA: Congress eliminated the

government’s requirement to prove that the defendant acted

with criminal intent.* But, so as not to offend notions of

due process, Congress denominated the offenses as

misdemeanors with only light jail terms possible. The

* As the Court noted in Park, in 1948 the Senate passed an

amendment to the FFDCA, which would impose criminal liability only

for violations committed “willfully or as a result of gross negligence.”

The amendment, however, was stricken in conference, confirming

Congress’ intent to eliminate any mens rea requirement. 421 U.S. at

672, n.15.

12

Court has repeatedly identified these same two hallmarks

— no mens rea requirement and light jail time — in

upholding public welfare offense convictions. See, e.g.,

Morissette, 342 U.S. at 256 (“[P]Jenalties commonly are

relatively small, and conviction does no grave damage to

an offender’s reputation”); Staples v. United States, 511

U.S. 600, 617-18 (1994) (“[T]he cases that first defined

the concept of the public welfare offense almost uniformly

involved statutes that provided for only light penalties or

short jail sentences... . [A] severe penalty is a further

factor tending to suggest that Congress did not intend to

eliminate a mens rea requirement’).

The FFDCA public welfare offenses at issue in

Dotterweich and Park had no mens rea requirement; they

were misdemeanor violations; and carried only light jail

terms or fines for a conviction. Dotterweich and Park do

not legitimize use of the responsible corporate officer

doctrine for prosecuting felony offenses, particularly those

with express mens rea requirements and the possibility of

lengthy prison sentences. Yet, the Eleventh Circuit

endorsed the use of the responsible corporate officer

doctrine in convicting Randall Hansen of “knowing”

violations of RCRA and CWA felony provisions which,

under the U.S. Sentencing Guidelines, carry mandatory

multi-year prison sentences.* As discussed below, the

* Prior to the adoption of the U.S. Sentencing Guidelines in

1987 requiring determinate sentencing, the normal practice was that a

defendant receiving a sentence of more than one year would be

eligible for parole after serving one-third of the sentence. 18 U.S.C.

§ 4205(a) (1987). Congress abolished the practice of parole with the

use of determinate sentencing under the U.S. Sentencing Guidelines.

Sentencing Reform Act of 1984, Pub. L. 98-473, tit. II, § 218(a)(5),

13

inappropriateness of the responsible corporate officer

doctrine is most glaring in the case of the RCRA “knowing

endangerment” offense.

B. The Mens Rea Language of the RCRA

“Knowing Endangerment” Felony

Provision and its Fifteen-Year Maximum

Sentence are Incompatible with the

Responsible Corporate Officer Doctrine

Enacted in 1976, RCRA sets forth a detailed

scheme for the cradle-to-grave management of hazardous

wastes. 42 U.S.C. §§ 6901-6992k(1994). A facility must

obtain a RCRA permit to perform almost any activity

involving management of hazardous waste. RCRA

prohibits a person from “knowingly” storing, treating,

disposing, or transporting any hazardous waste without a

permit or in violation of any existing RCRA permit

condition. 42 U.S.C. § 6928. Such “knowing” violations

are felonies, punishable by fines of up to $50,000 for each

day of violation, and imprisonment of up to five years, or

both. /d.

In the present case, the frial court permitted the use

of the responsible corporate officer doctrine to convict

Randall Hansen not only of RCRA violations requiring

“knowledge,” but also of the much more serious charge

under RCRA of “knowing endangerment,” which carries

potential fines of up to $250,000 and imprisonment of up

to fifteen years. 42 U.S.C. § 6928(e). RCRA defines

98 Stat. 2027 (1984) (repealing 18 U.S.C. § 4205 as of Nov. 1987).

Thus, Randall Hansen’s 46-month sentence is comparable to a pre-

guideline sentence of a staggering 138 months, or // //2 years.

14

knowing endangerment as having occurred only where “a

person who knowingly transports, treats, stores, disposes

of, or exports any hazardous waste,” in violation of 42

U.S.C. § 6928(d), also “knows at that time that he thereby

places another person in imminent danger of death or

serious bodily injury.” Jd. So as to leave no doubt about

the mental state required to convict a defendant of

knowing endangerment, Congress provided “special rules”

to govern the knowing endangerment provision. See 42

U.S.C. § 6928(f). Among these special rules is the

following, which can only be read as_ prohibiting

application of the responsible corporate officer doctrine:

In determining whether a defendant who is a

natural person knew that his conduct placed another

person in imminent danger of death or serious

bodily injury — (A) the person is responsible only

for actual awareness or actual belief that he

possessed; and (B) knowledge possessed by a

person other than the defendant but not by the

defendant himself may not be attributed to the

defendant.

42 U.S.C. § 6928(f)(2)(A)-(B) (emphasis added).

Notwithstanding the clear statutory requirement that

a defendant must have “actual awareness” that his conduct

placed another in imminent danger of death or severe

injury, and the further statutory proviso that such actual

awareness cannot be attributed or imputed to a defendant,

the Eleventh Circuit found no error in the “responsible

corporate officer” instruction that the district court gave the

jury. Under that instruction, the jury could convict

Randall Hansen of knowing endangerment even if they

15

concluded he did not have “actual awareness” of the

danger to workers posed by mismanagement of hazardous

waste. Thus, Randall Hansen was convicted of a felony,

ordered to pay a $20,000 fine, and sentenced to 46 months

in prison — not because he had “actual awareness” of an

endangerment, but because he had the misfortune of being

a corporate officer for a bankrupt company. Pet. App.

14a, 59a; R14-235-12, 13. Such a result is not only

contrary to the statutory language of RCRA, but it is also

at odds with this Court’s prior articulation of the

circumstances in which it is proper to use the responsible

corporate officer doctrine.

The Eleventh Circuit’s misapplication of the

responsible corporate officer doctrine can perhaps be

attributed to uncertainty over the contours of the public

welfare offense doctrine. Justice Thomas commented on

the vagaries of the public welfare doctrine in his dissent

from the denial of certiorari in Hanousek v. United States,

528 U.S. 1102, 1103 (2000) (Thomas, J., dissenting). In

Hanousek, the defendant supervisor was sentenced to one

year imprisonment for "negligently violating" the Clean

Water Act because an independent contractor, hired by the

supervisor’s employer, accidentally punctured a pipeline,

releasing a small amount of oil into a nearby river. Justice

Thomas urged this Court to reexamine the contours of the

public welfare doctrine in view of “the Court of Appeals’

overly broad interpretation of this doctrine.” Jd.

The government’s use of the responsible corporate

officer doctrine to prosecute Randall Hansen for “knowing

endangerment” — a felony for which a 15-year prison

sentence is possible — announces a new era in prosecution

of environmental crimes and cries out for redress by this

pepe,

16

Court. The time has come for this Court to step in and

clarify the circumstances under which the government may

convict a corporate official of criminal offenses without

having to prove criminal intent, and the necessity of

ensuring that sufficient evidence was presented to the jury

to prove the existence of mens rea beyond a reasonable

doubt.

II. IF ALLOWED TO STAND, THE COURT OF

APPEALS DECISION WILL IMPOSE

UNJUSTIFIED RISKS ON CORPORATE

MANAGERS TO THE DETRIMENT OF THE

PUBLIC INTEREST

No less than the former Assistant Administrator for

the EPA Office of Solid Waste, Donald Clay, has

concluded that understanding the Nation’s hazardous waste

laws is beyond the grasp of all but a handful of career

bureaucrats working for EPA:

RCRA is a_ regulatory cuckoo land of

definition. . . . I believe we have five people in the

agency who understand what “hazardous waste’”’ is.

What’s hazardous one year _ isn’t -- wasn’t

hazardous yesterday, is hazardous tomorrow,

because we’ve changed the rules... . You havea

waste that in one state is hazardous and in another

isn’t because they haven’t adopted a rule yet. It is

a legal statutory framework rather than logical,

based on concentration and threat type of thing.

United States v. White, 766 F. Supp. 873, 882 (E.D. Wash.

1991).

17

Given the complexity of RCRA, no CEO of a large

company could be expected to maintain expertise in RCRA

and provide direct oversight of compliance with its

provisions while simultaneously discharging a CEO’s duty

to run the company. CEOs have no choice but to delegate

responsibility for RCRA compliance to _ corporate

environmental managers. Under the responsible corporate

officer doctrine, however, delegating responsibility is no

defense; a responsible corporate officer can be convicted

without knowledge that a specific violation is occurring.

Thus, to expand the Park/Dotterweich doctrine to RCRA

felonies, as the prosecution here urged and the trial court

allowed, would usher in a whole new level of

risk -- untenable risk -- for corporate managers.

If the Eleventh Circuit’s decision is allowed to

stand, corporate managers for industrial businesses may

want to rethink their career choice. As some

commentators have observed, applying the responsible

corporate officer doctrine to prosecution of environmental

felony offenses, in effect, confers “designated felon” status

on industrial business managers. See Brenda S. Hustis &

John -Y. Gotanda, The Responsible Corporate Officer

Doctrine: Designated Felon or Legal Fiction?, 25 Loy.

U. CHI. L. J. 169 (1994). To borrow a phrase from the

dissent in United States v. Weitzenhoff, it would impose on

these officers “a massive legal risk, unjustified by law or

precedent.” 35 F.3d 1275, 1299 (9th Cir. 1994)

(Kleinfeld, J., dissenting), cert. denied, 513 U.S. 1128

(1995). Amici urge this Court to grant certiorari and make

it clear that the responsible corporate officer doctrine

cannot be used to support convictions under statutes that

require proof of criminal intent.

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Danie! J. Popeo Peter L. Gray

Paul D. Kamenar (Counsel of Record)

WASHINGTON LEGAL Thomas B. Johnston

FOUNDATION Margaret Johnson

2009 Massachusetts Ave., NW MCKENNA & CUNEO, LLP

Washington, DC 20036 1900 K Street, NW

(202) 588-0302 Washington, DC 20036

(202) 496-7500

Date: May 1, 2002