Amicus Curiae Brief — Hansen v. United States

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Supreme Court, US. ;

FILED

MAY 3 2002

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No. 01-1104

OFFICE OF THE CLERK

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IN THE

Supreme Court of the Gnited States

RANDALL W. HANSEN,

Petitioner,

V.

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 BUSINESS ROUNDTABLE, THE NATIONAL

ASSOCIATION OF MANUFACTURERS, AND THE

AMERICAN PETROLEUM INSTITUTE

IN SUPPORT OF PETITIONER

CARTER G. PHILLIPS

ALAN CHARLES RAUL*

JULIE M. ZAMPA

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Amici Curiae

May 1, 2002 * Counsel of Record

A EIA SEEN EOE LON ANAT TEREP A ES ONIN ROSE EN EE ONECART INN NN

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

I.

Il.

QUESTIONS PRESENTED

Whether the “responsible corporate officer” doctrine,

which this Court has applied only to statutes lacking a

mens rea requirement, also applies to “knowing

endangerment” under the Resource Conservation and

Recovery Act and to other serious environmental crimes

for which Congress has enacted a heightened mens rea

requirement.

Whether the felony provisions of the Resource

Conservation and Recovery Act and the Clean Water Act

are public welfare statutes permitting convictions of

individual defendants without proof of mens rea.

Whether a conviction for “corporate conspiracy” can be

sustained on the basis of a lower mens rea requirement

than that of the underlying offense.

(1)

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........:000ccccvccesessesesesooressrses

yy BR Re yy ey. ee

INTEREST OF AMICI CURITAE.................cccccccccccessseees

oars ibe tsonsecannauctesenveetiishess

REASONS FOR GRANTING THE PETITION ...........

I. HANSEN RELIES ON VICARIOUS CRIMINAL

IL.

LIABILITY REJECTED BY CONGRESS ...........

A. The Felony’ Statutes At Issue Here

Unmistakably Require Mens Rea......................

B. Hansen Significantly Extends The “Respons-

ible Corporate Officer” Doctrine ......................

THE PUBLIC WELFARE OFFENSE

DOCTRINE DOES NOT APPLY TO

STATUTES THAT REQUIRE MENS REA AND

IMPOSE FELONY PENALTIES. .......................

A. This Court Has Only Applied The

“Responsible Corporate Officer” And Public

Welfare Doctrines To Statutes Without Mens

PP INIIIOD <oovaseievixcersevsnssiscrsseserovsner tts

B. Felony Penalties Are Not Characteristic Of

Public Welfare Offenses........................0..::.0065.

C. Eliminating Mens Rea For Felonies Risks

Over-Criminalizing Regulatory Offenses And

Undermining The Integrity Of The Criminal

(iii)

10

1]

13

15

iV

TABLE OF CONTENTS—continued

Page

I. “CORPORATE CONSPIRACY” CHARGES

MAY NOT BE USED TO CIRCUMVENT THE

HEIGHTENED MENS REA REQUIREMENTS

OF THE UNDERLYING VIOLATIONS ............. 18

IIE sicxicsi deal acecacoekecualusmtistatnianiacnc aancatensaceks 20

Vv

TABLE OF AUTHORITIES

CASES Page

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

Jan. 24, 2002) (No. 01-1112).......000.en. 2

Hanousek v. United States, 528 US. 1102

SINE siitasisciscleesscéndedemeesmumamamersiaaadtaatee 9, 10, 14, 15

lannelli v. United States, 420 U.S. 770 (1975)...... 19

Liparota v. United States, 471 U.S. 419 (1985)..... 13

Morissette v. United States, 342 US. 246

ED cncisscumcksedanesscniecdoeticeauamtcie 11, 12, 13, 14

Staples v. United States, 511 U.S. 600 (1994)....... 4,14

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

PID cvs vicacsievsiccacoeutcedssenvenpiontounnic basse nanan: 10

United States v. Dotterweich, 320 U.S. 277

SID a cistsnleciscsudpmcunenanscaieaaaane a, §, 11,12, 16

United States v. Eidson, 108 F.3d 1336 (11th Cir.

DOPED vincynsspscusvicssuisnditeinssiataaoaenma nee 10

United States v. Greer, 850 F.2d 1447 (11th Cir.

PID vscnsccecnopusvesmevesdcesscemmmmealcaniaekeeeaaae 10

United States v. Hansen, 262 F.3d 1217 (11th Cir.

s+) | i cctesussnbasielascaamaatamceaaaaee passim

United States v. Hanousek, 176 F.3d 1116 (9th

Cir. 1999), cert. denied, 528 U.S. 1102 (2000).. 8,9

United States v. Hayes Int’l Corp., 786 F.2d 1499

CSSERCH. FI cisaiaeeeaee 12

United States v. Hoflin, 880 F.2d 1033 (9th Cir.

FIT: viiccisorcosnsssssrainceceices aaneee eae aeaemee eae 10

United States v. Johnson & Towers, Inc., 741

Fe Oe COG, FI hives caceneicescstovnssckotetennanees 12

~ United States v. Kelley Technical Coatings, Inc.,

1ST F356 432 (Gia CW. FOGG) oie cc cccevecsncocccescnons 10

United States v. Kelly, 167 F.3d 1176 (7th Cir.

i, SRO en rah ed By URI RUA Date 10

United States v. Laughlin, 10 F.3d 961 (2d Cir.

FRB ctcccsvdboccsnactentirin ademas asinine 10 -

vi

TABLE OF AUTHORITIES—continued

Page

United States vy. MacDonald & Watson Waste Oil

Co., 933 F.2d 35 (1st Cir. 1991) .........0. ee. 10

United States v. Ming Hong, 242 F.3d 528 (4th

Cir.), cert. denied, 122 S. Ct. 60 (2001)............. 8

United States v. Park, 421 U.S. 658 (1975)......... 3, 5,12

United States v. Self, 2 F.3d 1071 (10th Cir.

BO rain ccxeexsnchsaceausseadactiamialicensatae eee 10

United States v. Sellers, 926 F.2d 410 (Sth Cir.

BOWED. cancaceceisassncscossanecnecsa ee ee 10

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

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

CRD <x2sscsenorssnseeciscoinneesacenensss cui teenaenneeee passim

STATUTES

7 USA. 6 BEE) citivcticiénccmn ee 13

i Bie 1 dt py ; PMRRMOMno Menten nemenent enn! TN 19

ee Cae SPO cornsensssocanceciereeerscearsasereeee 5, 11

BD UEBe © Ba ORD irctnsccincneaan 3, 8, 9, 13

OD PED cevesessaseiriraeaennrecee 8,9

WE U.A~ Be crersesssssssesscacdeaeneeeee passim

RULES

OO: GA: Bi BUS miigencao eee l

PI: inesecasvinses eo kcberenilaele ere l

LEGISLATIVE HISTORY

H.R. Conf. Rep. No. 96-1444 (1980), reprinted in

GGG U. SECA, Fie nitccadnenncnines 7, 20

Vil

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES Page

M. Diane Barber, Fair Warning: The

Deterioration of Scienter Under Environmental

Criminal Statutes, 26 Loy. L.A. L. Rev. 105

SUNPNTEE sccticheivscecottunauanaiiamuonaleaiciaaamae user 15

John C. Coffee, Jr., Does “Unlawful” Mean

“Criminal”?; Reflections on the Disappearing

Tort/Crime Distinction in American Law, 71

eee ee BU BOE i creccciestsorcesesasssvieniecaneres 16, 17

John C. Coffee, Jr., Paradigms Lost: The Blurring

of the Criminal and Civil Law Models—And

What Can Be Done About It, 101 Yale LJ.

SEE eM sssseidecsartosvecumedtatnaneetiiiiece dune 17

Mark A. Cohen, Environmental Crime and

Punishment, 82 J. Crim. L. & Criminology

1054 (1992).......... re OT er 16, 17

Lawrence Friedman & H. Hamilton Hackney III,

Questions of Intent: Environmental Crimes and

“Public Welfare” Offenses, 10 Vill. Envtl. L.J.

EI icscuacd ici nasescesdeuareineh danieieataa ta nees 15

Abraham S. Goldstein, Conspiracy To Defraud

the United States, 68 Yale L.J. 405 (1959)......... 19

Karen M. Hansen, “Knowing” Environmental

Crimes, 16 Wm. Mitchell L. Rev. 987 (1990)... 12, 17

Henry M. Hart, Jr., The Aims of the Criminal

Law, 23 L. & Contemp. Probs. 401 (1958)........ 18

Richard J. Lazarus, Meeting the Demands of

Integration in the Evolution of Environmental

Law: Reforming Environmental Criminal Law,

BP SOO BF. DONT COPD iivcsesccensecssencceesseses 16, 17, 18

Francis Bowes Sayre, Public Welfare Offenses,

iio 65 A. ee 17

INTEREST OF AMICI CURIAE'

Amici are leading national organizations that collectively

represent the interests of a broad spectrum of United States

industries. Each of the amici advocates public policies that

promote vigorous and environmentally responsible economic

growth.

The Business Roundtable is an association of chief

executive officers of major United States corporations. The

Roundtable seeks to advance policies that foster a healthy

economy, for the benefit of corporations and consumers eke.

The National Association of Manufacturers (NAM) is the

largest United States industrial trade association, comprising

14,000 members and 350 member associations from every

industrial sector. NAM supports legislation and public

policies that create a dynamic, competitive business climate

for United States manufacturers.

The American Petroleum Institute (API) is the foremost

United States trade association for the oil and natural gas

industry. API represents over 400 member companies

engaged in all aspects of that industry, and serves as a major

force for advocating the public policy objectives and interests

of the oil and natural gas sector.

As advocates of responsible economic and industrial

growth, amici strongly support compliance with federal and

state environmental regulation. Amici are concerned,

however, that the decision in United States v. Hansen, 262

F.3d 1217 (11th Cir. 2001) (per curiam), impermissibly

expands criminal liability for corporate officers far beyond

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent have

been filed with the Clerk of this Court. No counsel for any party has

authored this brief in whole or in part. No monetary contributions to the

preparation or submission of this brief have been made by any person or

entity other than amici curiae and their counsel. Sup. Ct. R. 37.6.

2

what Congress specified in enacting the felony provisions of

federal environmental laws. The result below actually

undermines respect for the law by eroding the link between

criminal and moral culpability.”

INTRODUCTION

This case involves a corporate CEO, Randall Hansen,”

ywhose primary responsibility at LCP Chemicals-Georgia

(“LCP”) was to address the company’s debilitating financiai

problems and to guide the company through the bankruptcy

process. Jd at 1229. As CEO, Hansen had overall

responsibility for managing the corporation—including

environmental affairs—but he apparently did not personally

order or direct any environmental violations. Moreover,

because the company was in bankruptcy, he evidently did not

have a free hand to make environmental or other major

decisions. Significantly, the bankruptcy court actually denied

the company’s request for certain environmental compliance

funds. See id at 1237. But notwithstanding Hansen’s

relatively limited responsibility for, and involvement with,

environmental matters—involvement the sentencing judge

~characterized as “after the fact” and _ possibly

“unintentional”’*—he was convicted and sentenced to a

lengthy period of incarceration under the “knowing

* The mental state associated with moral culpability is variously

referred to herein as mens rea (or “guilty mind”), scienter, or criminal

“intent.”

* Amici focus principally on petitioner Randall Hansen because, as chief

executive officer, the role of the “responsible corporate officer” jury

instruction in diminishing the applicable mens rea standard is starkest in

his case. The legal arguments, however, also apply to separate petitioners

Christian A. Hansen and Alfred R. Taylor. See Hansen v. United States,

70 U.S.L.W. 3497 (U.S. Jan. 24, 2002) (No. 01-1112). Amici's legal

arguments concern only the lower courts’ failure to implement the

relevant statutory requirements, and do not imply any broader position

regarding the defendants’ actions.

* R14-235-6, -8.

3

endangerment” provisions of the Resource Conservation and

Recovery Act (“RCRA”), 42 USC. § 6928(e).° His

conviction was flawed because it was based on jury

instructions that effectively vitiated the Statutory mens rea

requirement and replaced it with vicarious liability under the

“responsible corporate officer” doctrine. This hyper-

extension of the Court’s public welfare offense precedents of

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

United States v. Park, 421 US. 658 (1975), is seriously

misguided and dangerous. It may discourage corporate

officer involvement in regulatory matters,° and it circumvents

the express will of Congress to require heightened, not

relaxed, standards of personal culpability to establish guilt for

serious environmental crimes.

If this Court corrects the error, and instructs the lower

courts to give effect to statutory mens rea requirements, it

wceuld not absolve corporate officers of responsibility for their

intentional wrongdoing—it would simply uphold the

standards for criminal intent that Congress expressly provided

for certain environmental crimes.

REASONS FOR GRANTING THE PETITION

The courts below effectively eliminated the personal

culpability requirements expressly set forth in law. Instead

of adhering to the statutory requirements, the lower courts

allowed corporate officers to be convicted if they “had a

* Hansen was also convicted of “knowing” violations of both RCRA,

42 U.S.C. § 6928(d)(2)(A), and the Clean Water Act (“CWA”), 33 U.S.C.

§ 1319(c)(2)(A). The impropriety of vicarious criminal liability is clearest

with regard to the “knowing endangerment” provision of RCRA, but

equally applicable to other felony provisions of RCRA and the CWA that

specify a “knowing” state of mind. Proof of mens rea is required by any

statute that criminalizes “knowing” violations.

° Cf United States v. Weitzenhoff. 35 F 3d 1275, 1295 (9th Cir. 1994)

(Kleinfeld, J., dissenting) (this use of the doctrine deters work in regulated

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

4

responsible relationship to the violation,” “had the power or

capacity to prevent the violation,” and “acted knowingly in

failing to prevent, detect or correct the violation.” App. 95a.

Pursuant to this jury instruction, guilt was a function of status,

not intentional wrongdoing. Even the limited “knowledge”

component of the Hansen jury instruction related only to

whether Hansen knowingly failed to “prevent, detect or

correct” the violation, rather than whether he “knowingly

transport[ed], treat[ed], store[d], dispose[d] of, or export[ed]

any hazardous waste .. . know/ing] at that time that he

thereby place[d] another person in imminent danger of death

or serious bodily injury,” as the statute requires. 42 U.S.C.

§ 6928(e) (emphasis added). Congress could not have

devised statutory language more demanding and unequivocal;

it is simply not possible to reconcile this statute’s intrinsically

personal standard of liability with the “status” crime

permitted by the trial court.

The “responsible corporate officer” doctrine, in contrast,

arose in the context of public welfare statutes that contain no

mens rea requirement and impose light penalties. In Staples

v. United States, 511 U.S. 600, 618 (1994), this Court

strongly suggested that the public welfare offense doctrine

does not apply to felonies, but ultimately left this question

open. Nonetheless, the district court in Hansen did not

observe this Court’s admonition in Staples, id., against

diminished intent standards for felonies, and permitted

Hansen to be convicted of felony crimes based on what the

court described as “after the fact” knowledge of LCP’s

environmental problems, R14-235-6, and regardless of

whether Hansen’s conduct was “intentional or unintentional,”

R14-235-8. The court of appeals upheld the convictions as

though the relevant statutory provisions did not contain

heightened mens rea requirements.

Hansen presents an opportunity to take up the question left

open in Staples, and to revive the fundamental moral

culpability requirement for serious, felony crimes.

5

I. HANSEN RELIES ON VICARIOUS CRIMINAL

LIABILITY REJECTED BY CONGRESS.

Hansen demonstrates the acute need for providing guidance

to the lower courts in applying the “responsible corporate

officer” doctrine where Congress has established intent and

knowledge as specific elements of a felony. The doctrine was

developed by this Court for regulatory offenses where

Congress had not specified mens rea elements and where the

statute imposed only misdemeanor penalties. See Park, 421

U.S. at 671-74 (construing the Federal Food, Drug, and

Cosmetic Act (“FDCA”), 21 U.S.C. § 331(k)); Dotterweich,

320 US. at 285 (same).

As a device used to increase the reach of liability for

corporate crimes, the doctrine allows “responsible corporate

officers” to be personally convicted if they bear a

“responsible relation” to the business activity in question.

Dotterweich, 320 U.S. at 285. Liability derives from the

individual’s status as a corporate officer; personal fault and

actual knowledge are not required for a conviction. See id. at

281. Any corporate officer who “shares responsibility in the

business process” that resulted in illegal conduct may be held

vicariously liable for the corporation’s acts. /d. at 284.

This Court has not yet addressed whether the “responsible

corporate officer” doctrine applies to environmental crimes

that require actual knowledge and carry felony penalties. The

circuit courts are split on this issue, with some courts—

including the 11th Circuit—effectively permitting vicarious,

or derivative, liability under this doctrine, even where mens

rea is an element of the statute at issue.

A. The Felony Statutes At Issue Here Unmistakably

Require Mens Rea.

Both the text and the legislative history of RCRA

demonstrate that Congress specified a heightened mens rea

requirement for the “knowing endangerment” provision of

that Act. RCRA explicitly states that conduct only amounts

SS

6

to “knowing endangerment” if a “person who knowingly

transports, treats, stores, disposes of, or exports any hazardous

waste .. . knows at that time that he thereby places another

person in imminent danger of death or serious bodily injury.”

42 USC. § 6928(e) (emphasis added). Accordingly, to be

convicted, the defendant must have personal knowledge of,

and personal involvement with, the specific disposition of the

hazardous waste at issue, and also have actual knowledge’ of

the extreme danger posed to others by such disposition at the

time the defendant “transports, treats . . . [or] disposes of”

the hazardous waste. Id. (emphasis added). It is clear on the

statute’s face that one who learns of dangerous conduct only

after it has occurred does not possess the requisite mens rea.

Moreover, vicarious liability and imputed knowledge are

plainly foreclosed by the statute. Jd § 6928(f). A defendant

‘is responsible only for actual awareness or actual belief that

he possessed” and “knowledge possessed by a person other

than the defendant but not by the defendant himself may not

be attributed to the defendant.” Jd. § 6928(f)(2)(A), (B).

Congress thus codified the rule that a criminal defendant’s

knowledge must be personal; one may not be convicted based

solely on one’s corporate position or responsibilities.

Knowledge possessed only by others in the corporation is

sumilarly insufficient. Contrary to the district court’s jury

imstructions, a defendant who merely discovers or fails to

cigzover prior misconduct could not have the mens rea for

‘knowing endangerment.” See id.

The legislative history of RCRA’s “knowing

endangerment” provision further reflects Congress’ intent to

create a clear and careful distinction between those

individuals who possess personal, prior knowledge of danger,

and those who do not. In rejecting a “reckless endangerment”

"Indeed, the statute expressly requires that the defendant be

“substantially certain” that his conduct will place others in imminent

danger. 42 U.S.C. § 6928(f)(1)(C).

7

provision in favor of the “knowing endangerment” provision,

Congress explained that “[t]he knowledge necessary for

culpability of a natural person is actual knowledge, which

may be established by direct or circumstantial evidence, but

not constructive or vicarious knowledge.” H.R. Conf. Rep.

No. 96-1444, at 37 (1980), reprinted in 1980 U.S.C.C.A.N.

5028, 5037 (emphasis added). A defendant lacks the

necessary mens rea “if he did not actually have the requisite

knowledge about the danger at the time he acted.” /d at 39,

reprinted in 1980 U.S.C.C.A.N. at 5038.

The Hansen jury instruction violated each of these precepts.

us By charging the jury to convict based on failure to “prevent,

detect or correct,” App. 95a, and by acknowledging that

Hansen’s knowledge was “after the fact,” R14-235-6, and his

conduct possibly “unintentional,” R14-235-8, the district

court flatly disregarded the specific, textual requirements of

the law.

This failure to comply with the detailed, demanding

statutory requirements for proving “knowing endangerment”

was echoed by the Eleventh Circuit. The court of appeals

purported to recognize the need for both personal knowledge

of the illegal activities and awareness of the danger posed at

the time the activities occur. But the court did not devote any

meaningful analysis to whether the jury had been properly

instructed. The court merely stated, perfunctorily, that the

jury instructions passed muster because they included the

phrase “‘acted knowingly.”” Hansen, 262 F.3d at 1253. The

“knowledge” required by the district court to prove guilt

differed markedly, however, from the “knowledge” required

by the statute.

By instructing the jury that Hansen could be convicted of

“knowing endangerment” based on his “responsible

relationship to the violation,” App. 95a, rather than his actual,

personal knowledge and intent, the courts below allowed

convictions based on the vicarious criminal liability rejected

8

by Congress.* This Court’s review is necessary to steer the

lower courts back toward the plain language of the statute.

B. Hansen Significantly Extends The “Responsible

Corporate Officer” Doctrine.

This Court has declined previous opportunities to define the

parameters of personal criminal liability for environmental

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

(9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000); United

States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994), cert.

denied, 513 U.S. 1128 (1995).? These decisions, however,

presented less extreme examples of the trend toward dimin-

ished scienter for environmental crimes. In prior cases, the

conduct in question was more egregious, the penalties were

lighter, or the relevant statutory language was less rigorous.

In Hanousek, the supervisor of a rock-quarrying project

was convicted of a misdemeanor for negligently discharging

oil into a river, in violation of the Clean Water Act, 33 U.S.C.

§§ 1319(c)(1)(A), 1321(b)(3). The provisions at issue

penalized negligent conduct, and did not include a heightened

mens rea requirement. See 176 F.3d at 1121 (“If Congress

intended to prescribe a heightened negligence standard, it

could have done so explicitly.”). Given these statutory

provisions, the court found that the CWA constitutes public

* Judge Kleinfeld criticized such judicial expansions of criminal

liability in dissenting from the denial of rehearing en banc in United States

v. Weitzenhoff. He said: “It is we, and not Congress, who have made [the

defendants] felons. The statute, read in an ordinary way, does not.” 35

F.3d at 1293 (discussing the “knowing” violation provision of the CWA,

33 U.S.C. § 1319(c)(2)(A), which was the basis for one of Hansen’s

convictions).

* This Court also recently denied certiorari in United States vy. Ming

Hong, 242 F.3d 528 (4th Cir.), cert. denied, 122 S. Ct. 60 (2001). As in

Hanousek, Ming Hong was convicted of a misdemeanor for negligent

violations of the CWA, 33 U.S.C. § 1319(c)(1)(A). 242 F.3d at 530.

Moreover, illegal discharges “occurred openly while Hong was present.”

Id. at 532.

9

welfare legislation, and therefore allows criminal penalties

without proof of mens rea. Id. at 1122. Two Justices

dissented from the denial of certiorari in Hanousek. See

Hanousek vy. United States, 528 U.S. 1102 (2000). Justices

Thomas and O’Connor rejected the characterization of the

CWA as a public welfare statute, citing the severity of the

potential penalties. /d. at 1103-04. Hansen is a significantly

more compelling candidate for this Court’s review because

the crime at issue is a felony, the statute explicitly calls for

heightened standards of personal knowledge, and the

penalties imposed are considerably more severe. Compare 42

U.S.C. § 6928(d)(2), and id § 6928(e), with 33 USC.

§ 1319(c)(1)(A), and id. § 1321(b)(3) (express knowledge and

intent requirements versus simple negligence). While

Hanousek was convicted of only a misdemeanor and received

a six-month prison sentence, see 176 F.3d at 1120, Hansen

was convicted of a felony and sentenced to four years in

prison, see 262 F.3d at 1232.

Hansen \ikewise represents a far greater expansion of

vicarious liability than did the decision in Weitzenhoff. There,

the Ninth Circuit affirmed the convictions of two sewage

treatment plant managers who had personally ordered illegal

discharges of sludge in violation of the CWA, 33 U.S.C.

§ 1319(c)(2). See 35 F.3d at 1282 (the defendants “instructed

two employees at the plant to dispose of [sludge] on a regular

basis by pumping it from the storage tanks . . . directly into

the ocean”). Even in Weitzenhoff, where the defendants had

deliberately engaged in “midnight dumping,” five judges

dissented from the denial of rehearing en banc, decrying the

majority’s erosion of mens rea for environmental crimes. /d.

at 1293-99 (Kleinfeld, J., dissenting). Yet Hansen lowers the

thresholds for criminal liability still further. Absent any

personal conduct even approaching the “midnight dumping”

in Weitzenhoff, the Eleventh Circuit affirmed Hansen’s

conviction without demanding proof of the statutory element

| of personal knowledge at the time of the actions in question

a

10

that others were thereby placed in “imminent danger.” 42

U.S.C. § 6928(e)."°

Il. THE PUBLIC WELFARE OFFENSE DOCTRINE

DOES NOT APPLY TO STATUTES THAT

REQUIRE MENS REA AND IMPOSE FELONY

PENALTIES.

The courts of appeals are split on the issue of whether the

criminal provisions of environmental legislation are public

welfare statutes that permit convictions without proof of mens

rea. See Hanousek, 528 U.S. at 1103 (Thomas, J., dissenting

from the denial of cert.) (noting the circuit split regarding

whether the CWA is a public welfare statute); United States

v. Kelley Technical Coatings, Inc., 157 F.3d 432, 439 n.4 (6th

Cir. 1998) (deeming the public welfare doctrine applicable to

the CWA); United States v. Ahmad, 101 F.3d 386, 391 (Sth

Cir. 1996) (rejecting the argument that the CWA is a public

welfare statute); Weitzenhoff, 35 F.3d at 1286 (characterizing

the CWA as public welfare legislation); United States v.

MacDonald & Watson Waste Oil Co., 933 F.2d 35, 51-52 (ist

Cir. 1991) (reversing a RCRA conviction where a

“responsible corporate officer” instruction dispensed with

'° As in Weitzenhoff, but unlike the present case, defendants convicted

in previous environmental crime cases have been personally involved in

directing or specifically authorizing the violations to a significant degree.

See, e.g., United States v. Kelly, 167 F.3d 1176, 1178 (7th Cir. 1999)

(defendant directed the movement of hazardous materials to an

unapproved disposal site); United States v. Eidson, 108 F.3d 1336, 1340

(11th Cir. 1997) (defendant gave permission for disposal in the sewer),

United States vy. Laughlin, 10 F.3d 961, 963 (2d Cir. 1993) (defendant

personally released creosote sludge onto the ground); United States v. Self,

2 F.3d 1071, 1087 (10th Cir. 1993) (defendant directed the illegal storage

of hazardous waste, then concealed the waste from inspectors); United

States v. Sellers, 926 F.2d 410, 412 (Sth Cir. 1991) (defendant personally

dumped paint waste onto a creek embankment), United States v. Hoflin,

880 F.2d 1033, 1035 (9th Cir. 1989) (defendant instructed an employee to

remove and bury paint drums); United States v. Greer, 850 F.2d 1447,

1450-52 (11th Cir. 1988) (defendant himself ordered the illegal dumping).

11

proof of actual knowledge). Accordingly, this Court’s review

would provide essential guidance regarding the legal

standards applicable to environmental felonies and public

welfare offenses. ''

A. This Court Has Only Applied The “Responsible

Corporate Officer” And Public Welfare

Doctrines To Statutes Without Mens Rea

Requirements.

The “responsible relationship” concept was developed in

the context of public welfare statutes that impose strict

liability for violations. See Morissette v. United States, 342

U.S. 246, 259-60 (1952). Public welfare statutes have been

defined as laws that “heighten the duties of those in control of

particular industries, trades, properties or activities that affect

public health, safety or welfare.” Jd at 254. Such laws

punish “forbidden acts or omissions” rather than a particular

mental state. /d. at 252-53. The “responsible corporate

officer” doctrine thus originated in cases involving regulatory

statutes that do not contain a knowledge requirement and that

prescribe relatively small, misdemeanor penalties for

violations. In Dotterweich, 320 U.S. at 278, the president of a

pharmaceutical company whose employees had shipped

misbranded and adulterated drugs was convicted of violating

the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21

U.S.C. § 331. The provision did not specify any mens rea.

See id. Violators were guilty of a misdemeanor. See id

§ 333. In upholding the conviction, the Court looked to the

statute and noted that:

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

'' Though the Eleventh Circuit did not explicitly refer to the public

welfare doctrine, the court implicitly relied upon it by invoking the

“responsible corporate officer” principle. Hansen, 262 F.3d at 1250-51.

aaa ial eae

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12

innocent but standing in responsible relation to a public

danger.

320 US. at 281.

In Park, 421 U.S. at 673-74, this Court reviewed the same

provision of the FDCA and explained that misdemeanor

liability was proper even for a corporate officer who had no

direct involvement in the criminal offense, provided he had a

“responsible relationship” to the illegal actions. Further

developing the doctrine, the Court held that those with

supervisory responsibility were liable for failures to-prevent

or correct violations. /d The statute at issue in both

Dotterweich and Park prescribed misdemeanor penalties,

contained no mens rea requirement, and imposed essentially

strict liability for violations. Several lower courts, including

the Eleventh Circuit in Hansen, have ignored these

distinguishing attributes and _ reflexively applied the

“responsible corporate officer” concept and the public welfare

offense doctrine to statutes that require heightened mens rea.

See, e.g., United States v. Hayes Int'l Corp., 786 F.2d 1499,

1503 (11th Cir. 1986); United States v. Johnson & Towers,

Inc., 741 F.2d 662, 670 (3d Cir. 1984); see also Karen M.

Hansen, “Knowing” Environmental Crimes, 16 Wm. Mitchell

L. Rev. 987, 1006 (1990) (hereinafter “Knowing”

Environmental Crimes) (facile application of the public

welfare offense doctrine “is misguided because it juxtaposes

‘knowing’ crimes with an analytical model that has little, if

any, applicability where a statute defines an offense in terms

of a culpability requirement”).

This Court’s precedents indicate that the public welfare

offense doctrine cannot be employed to eliminate mens rea

. requirements. In Morissette, 342 U.S. at 250, the Court

explained that public welfare offenses are the exception to the

cardinal principle that “an injury can amount to a crime only

when inflicted by intention.” The Court distinguished public

welfare offenses, which “d[o] not specify intent as a

necessary element,” id. at 256, from the common law crime at

13

issue in that case, which did demand proof of intent, id. at

261. Where mens rea is required, “presumptive intent has no

place.” Jd at 275. The Morissette Court accordingly

reversed the defendant’s conviction where the trial court had

instructed the jury that intent could be presumed from the

defendant’s act. /d It follows from Morissette that courts

may not prejudge the mens rea element of an offense based

solely on the defendant’s “responsible relationship” to an

activity. The jury instruction in Hansen, however,

impermissibly allowed the jury to infer that a “responsible

relationship,” rather than specific knowledge, was a sufficient

basis for finding guilt.

Even where a statute is part of a regulatory scheme that

operates for the public benefit, all of its provisions cannot

automatically be classified as public welfare offenses for

which intent need not be proven. In Liparota v. United

States, this Court reviewed a conviction obtained under a

statute, 7 U.S.C. § 2024(b)(1), that criminalized “knowingly”

using or transferring food stamps in an unauthorized manner.

471 U.S. 419, 420 (1985). The government had argued that

the food stamp program was public welfare legislation, and

thus that no proof of actual knowledge was necessary. /d: at

432. This Court rejected that argument and held that because

the statute had specified a mental state, proof of knowledge

was required. /d at 425-26. The public welfare offense

doctrine does not apply where, as with “knowing

endangerment” under RCRA, Congress has required actual

knowledge and mens rea.

B. Felony Penalties Are Not Characteristic Of

Public Welfare Offenses.

In addition to containing a mens rea element, the “knowing

endangerment” provision of RCRA, and the “knowing” vio-

lation provisions of RCRA and the CWA, prescribe severe,

felony penalties for violations. See 42 U.S.C. § 6928(d), (e);

33 U.S.C. § 1319(c)(2). By contrast, relatively light penalties

have been a key attribute of public welfare offenses in this

14

Court’s jurisprudence. According to Morissette, a defining

characteristic of such offenses is that “penalties commonly

are relatively small, and conviction does no grave damage to

an offender’s reputation.” 342 U.S. at 256.

In Staples, 511 U.S. at 618, this Court expressly reserved

the question of whether felony crimes can be characterized as

public welfare offenses. The statute there, which penalized

possession of an unregistered automatic weapon as a felony,

was silent as to mens rea. Id. at 605. The Court nonetheless

concluded that deeming the provision a public welfare statute

and dispensing with mens rea could “‘criminalize a broad

range of apparently innocent conduct.’”” /d at 610 (quoting

Liparota, 471 U.S. at 426). Without deciding the issue, the

Court noted that the statute’s harsh penalty strongly supported

the conclusion that the public welfare offense doctrine did not

apply in that case. The fact that “[h]istorically, the penalty

imposed under a statute has been a significant consideration

in determining whether the statute should be construed as

dispensing with mens rea,” id. at 616, suggests “that

punishing a violation as a felony is simply incompatible with

the theory of the public welfare offense,” id. at 618; see also

Hanousek, 528 U.S. at 1104 (Thomas, J., dissenting from the

denial of cert.) (examining the CWA’s felony provision and

determining that “[t}he seriousness of these penalties counsels

against concluding that the CWA can accurately be classified

as a public welfare statute”). Consequently, even absent an

explicit knowledge requirement, the Court refused to construe

the statute so as to eliminate mens rea. Surely where, as with

the statutes at issue in Hansen, Congress has not only

prescribed felony penalties but also expressly set forth an

intent requirement, the public welfare offense doctrine cannot

be invoked to impose liability without proof of mens rea.'”

'? As this Court made clear in Staples, the fact that certain articles

contain potentially dangerous properties does not alone justify invoking

the public welfare offense doctrine to dispense with mens rea for all

legislation that regulates those articles. 511 U.S. at 611; see also

15 a

See M. Diane Barber, Fair Warning: The Deterioration of

Scienter Under Environmental Criminal Statutes, 26 Loy.

L.A. L. Rev. 105, 108 (1992) (“Congress has reshaped

criminal environmental violations so that they no longer

conform to the traditionally gentle description of public

welfare offenses.”).

C. Eliminating Mens Rea For Felonies Risks Over-

Criminalizing Regulatory Offenses And Under-

mining The Integrity Of The Criminal Law.

Strong policy considerations support this Court’s prior

decisions to restrict the application of the public welfare

offense doctrine to avoid converting “intent” crimes into strict

liability offenses.‘ Expanding the public welfare offense

doctrine to statutes such as the CWA would too readily

expose those engaging in “a broad range of ordinary

industrial and commercial activities” to “heightened criminal

liability.” |Hanousek, 528 U.S. at 1103 (Thomas, J.,

dissenting from the denial of cert.).'* Failing to give effect to

Hanousek, 528 U.S. at 1104 (Thomas, J., dissenting from the denial of

cert.) (“[W]e have never held that any statute can be described as creating

a public welfare offense so long as the statute regulates conduct that is

known to be subject to extensive regulation and that may involve a risk to

the community. Indeed, such a suggestion would extend this narrow

doctrine to virtually any criminal statute applicable to industrial

activities.”).

'? See Lawrence Friedman & H. Hamilton Hackney III, Questions of

Intent: Environmental Crimes and “Public Welfare” Offenses, 10 Vill.

Envtl. L.J. 1, 4 (1999) (To ignore statutory intent requirements “would

indeed create a special category of ‘green collar’ criminals, transforming

environmental statutes .. . into a virtual strict liability scheme. Under

such a scheme the government would, in essence, have to make only the

most minimal showing with respect to intent.”’).

'* The five Ninth Circuit judges who dissented from the denial of

rehearing 2m Heme in Weitzenhoff, 35 F.3d at 1293, also cautioned against

unduly Ge riimg individuals from engaging in the wide spectrum of

“ordinary, immocent, productive activity’ that is regulated by

environmental statutes.

Fe eee ee Dee

16

statutory intent requirements subjects those in_ vitally

important industries to “a massive legal risk, unjustified by

law or precedent.” Weitzenhoff, 35 F.3d at 1299 (Kleinfeld,

J., dissenting). '°

The mens rea requirements of RCRA and the CWA

maintain the important distinction between the civil and

criminal enforcement realms. Corporate officers are properly

accountable for corporate wrongdoing in accordance with

civil schemes where intent is not an element of the offense.

They should also be criminally liable when they possess the

mens rea specified by statute.

But imputing mens rea to an individual based on corporate

position rather than personal action weakens the authority of

the criminal law. See Richard J. Lazarus, Meeting the

Demands of Integration in the Evolution of Environmental

Law: Reforming Environmental Criminal Law, 83 Geo. L.J.

2407, 2511 (1995) (“[V]iolations of federal environmental

laws can involve the kind of morally culpable behavior

warranting felony sanctions. The challenge is to define the

sanctions in a manner more consistent with th[e] culpability

touchstone.”); Mark A. Cohen, Environmental Crime and

Punishment, 82 J. Crim. L. & Criminology 1054, 1103 (1992)

(“There is growing concern about . . . corporate officers held

_ criminally liable for incidents that are not intentional or not

controllable by the party being held liable. Although few

would argue against strict liability for reasonable cleanup

costs and third party damages, punitive sanctions .. . are

another matter.”); Disappearing Distinction, supra, at 217

(asserting the importance of punishing corporate

environmental crime, but distinguishing between “knowing”

'S See also John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?:

Reflections on the Disappearing Tort/Crime Distinction in American Law,

71 B.U. L. Rev. 193, 220 (1991) (hereinafter Disappearing Distinction)

(discussing the increasing criminalization of regulatory offenses and

noting that “there is a social loss in defining the criminal law so that

individuals cannot safely avoid its application”).

17

violations and those unaccompanied by the mens rea

necessary to justify criminal penalties).

The law professor who coined the phrase “public welfare

offense,” cautioned that “[t]he group of offenses punishable

without proof of any criminal intent must be sharply limited.”

Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.

Rev. 55, 70 (1933). If true culpability is not a prerequisite to

liability for serious offenses, crime loses its moral stigma. '°

Thus, while the “responsible corporate officer” doctrine may

be useful for allocating responsibility for strict liability

regulatory offenses, applying it in felony cases risks over- —

criminalizing conduct in regulated fields.’’ It also

'© See Lazarus, supra, at 2442-43 (“[B]ecause moral stigma is one of a

criminal conviction’s essential features . . . careful definitions and

procedural safeguards are critical to the viability of the sanction.”); Cohen,

supra, at 1104 (“{C)riminalization of regulatory behavior might trivialize

the criminal law itself. If every action that harms society is a crime, the

criminal law loses its one distinguishing characteristic—the moral stigma

associated with being labeled a criminal.”). The effectiveness of the

criminal law is in turn undermined. See Weitzenhoff, 35 F.3d at 1293

(Kleinfeld, J., dissenting) (noting in the context of environmental crimes

that “[dJilution of the traditional requirement of a criminal state of

mind... reduces the moral authority of our system of criminal law’),

Disappearing Distinction, supra, at 193 (The “blurring of the border

between tort and crime predictably will result in injustice, and ultimately

will weaken the efficacy of the criminal law as an instrument of social

control.”’).

'? See Lazarus, supra, at 2449 (In the environmental realm, “{t}he only

distinction between a civil and criminal violation is that criminal

defendants act with a culpable state of mind.”); John C. Coffee, Jr.,

Paradigms Lost: The Blurring of the Criminal and Civil Law Models—

And What Can Be Done About It, 101 Yale L.J. 1875, 1880 (1992)

(Courts’ growing acceptance of vicarious criminal liability shows that

“fa]t the same time that courts have begun to apply the penalties of the

criminal law to legal standards that evolved within the civil law, they have

also shown an increasing tendency to abandon some of the most important

limits on the criminal law.”),; “Knowing” Environmental Crimes, supra, at

1018-19 (“[I]f courts allow doctrines such as deliberate ignorance and the

responsible corporate officer principle to dilute a knowledge requirement,

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18

compromises the integrity and coherence of the criminal law,

which derives much of its moral force from the crucial

distinction between culpable and non-culpable states of mind.

See Dotterweich, 320 U.S. at 286 (Murphy, J., dissenting) (“It

is a fundamental principle of Anglo-Saxon jurisprudence that

guilt is personal and that it ought not lightly to be imputed to

a citizen who . . . has no evil intention or consciousness of

wrongdoing.”); Henry M. Hart, Jr., The Aims of the Criminal

Law, 23 L. & Contemp. Probs. 401, 423 (1958) (“In the tra-

dition of Anglo-American law, guilt of crime is personal.”).

Preserving the intent element for serious environmental

crimes also wisely constrains prosecutorial over-reaching.

Imputed intent relieves the government of its burden to prove

mens rea. This unduly eases the prosecutor’s task and

encourages criminal prosecution even where true culpability

is lacking. See Lazarus, supra, at 2487. While a vigorous

environmental enforcement scheme is a matter of great public

importance, the public interest is not served when prosecutors

operate outside legislated bounds. See Hart, supra, at 423

(“[M]aximizing compliance with [the] law, rather than

successful prosecution of violators, is the primary aim of any

regulatory statute.”). Compelling lower courts to give effect

to the mens rea requirements enacted by Congress would

protect against arbitrary and unprincipled criminal enforce-

ment. It would not preclude criminal liability for intentional

wrongdoing, or strict liability for regulatory violations.

Ill. “CORPORATE CONSPIRACY” CHARGES MAY

NOT BE USED TO CIRCUMVENT THE

HEIGHTENED MENS REA REQUIREMENTS OF

THE UNDERLYING VIOLATIONS.

The lower courts’ casual approach to mens rea was

reflected in all aspects of the Hansen case. Specifically, the

the result will be criminalization of conduct which is already subject to

civil enforcement on a strict liability basis for noncompliance with

statutory requirements.”).

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19

courts allowed the government to rely on the less demanding

conspiracy standards in lieu of proving the requisite

knowledge elements for the underlying statutes.'* The

conspiracy count was based in part on the underlying

substantive offense of “knowing endangerment.” See R1-10.

In affirming the conspiracy conviction, the court of appeals

did not assess whether Hansen himself had actual, prior

knowledge of imminent harm. Rather, the court determined

that “the substantive offenses were foreseeable conse-

quences” of the alleged co-conspirators’ conduct. 262 F.3d at

1247 (emphasis added). The conspiracy charge thus allowed

the government to prove its case with a_ simple

“foreseeability” test, instead of meeting the heightened mens

rea standard for “knowing endangerment.” This use of the

conspiracy count is particularly troubling in light of the fact

that the “responsible corporate officer” instruction was given

for the substantive offenses charged against Hansen as an

individual; proof of Hansen’s actual knowledge of “endanger-

ment” was not required at any point in the proceedings.

In addition to eliding the individual responsibility elements

of the underlying offenses, the opinion below failed to

identify a mens rea sufficient to sustain the conspiracy

conviction itself. To be guilty of a conspiracy under 18

U.S.C. § 371, alleged co-conspirators must share an unlawful

objective. See Jannelli vy. United States, 420 U.S. 770, 777

(1975) (“[{T]he essence of [conspiracy] is an agreement to

commit an unlawful act.”). Individuals who act in concert but

do not harbor an illegal objective do not possess the necessary

mens rea for criminal conspiracy. No such illegal objective is

apparent from the court of appeals’ opinion. The conduct that

the court deemed a “criminal conspiracy” appeared to consist

'§ Cf Abraham S. Goldstein, Conspiracy To Defraud the United States,

68 Yale L.J. 405, 409 (1959) (referring to “the tactical advantage [the

conspiracy charge] brings to the prosecutor. By charging ‘conspiracy,’ he

can reach persons who might escape conviction if they were proceeded

against separately.”).

20

mainly of sharing “the common goal to operate the plant until

a buyer could be found.” Hansen, 262 F.3d at 1247.

Firms in regulated industries necessarily and routinely

confront regulatory challenges. Thus, Congress drafted the

“knowing endangerment” provision “in a way intended to

assure to the extent possible that persons are not prosecuted or

convicted unjustly for making difficult business judgments

where such judgments are made without the necessary

scienter.” H.R. Conf. Rep. No. 96-1444, at 37, reprinted in

1980 U.S.C.C.A.N. at 5036-37. The Hansen opinicn may or

may not cause corporate officers to eschew regulatory

responsibilities, but it surely conflicts with the plain intent of

Congress: Under the statutes at issue here, corporate officers

making difficult environmental decisions must not be

convicted of crimes in the absence of criminal intent.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CARTER G. PHILLIPS

ALAN CHARLES RAUL*

JULIE M. ZAMPA

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Amici Curiae’ __

May 1, 2002 * Counsel of Record

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