# Amicus Curiae Brief — Hansen v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1117%3A6

## Record

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

## Text

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Supreme Court, US. ;
FILED

MAY 3 2002

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No. 01-1104

OFFICE OF THE CLERK

cannon

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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1117%3A6. Public record. Not legal advice.