Petition for Writ of Certiorari — Hopkins v. United States

te? FILED

95+*6090CT 16m

No. __OFFICE OF THE CLERK

| In The

Supreme Court of the United States

October Term, 1995

+

ROBERT H. HOPKINS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

To The Court Of Appeals

For The Second Circuit

a

PETITION FOR WRIT OF CERTIORARI

+

Rosert B. MANN

MANN & MITCHELL

501 Turks Head Place

Providence, R.I. 02903

(401) 351-5770

Attorney for Petitioner

Robert H. Hopkins

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

What is the meaning of the term “knowing” as used

in the Clean Water Act in 33 U.S.C. section 1319(c)(4) and

section 1319(c)(2)(A)?

What is the mens rea required for a conviction under

33 U.S.C. section 1319(c)(4) and section 1319(c)(2)(A) and

conspiracy to violate the same provisions in violation of

the same provisions and 18 U.S.C. section 371?

ii

TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR REVIEW..... 1

II. REFERENCE TO OPINIONS BY OTHER

COURTS. 5 iia Gi SPO AS PI ee 1

III. BASIS FOR THE JURISDICTION OF THIS

COMBE oc scan soecs 19 nawh oes teeeteenes beeen 1

IV. CONSTITUTIONAL PROVISIONS INVOLVED

ENT TEED CAGE oo cc cb ivienstviecnvenen depose 1

V. STATEMENT OF THE CASE..........s02000. 8

Vi ARGUIMEINE 6c nsccceucccwanvusnkewaseteciea 13

A. THE WORDING OF THE STATUTE..... 13

B. THE COURT OF APPEALS’ RELIANCE

ON THE PUBLIC WELFARE DOCTRINE

WAS MESPUALSE: s iececinscsseee ess 18

1. THE APPLICATION OF THE PUB-

LIC WELFARE DOCTRINE TO THIS

CAGE 0 00 eb in Fe dc uanese eens as eecuees 18

2. THE PUBLIC WELFARE DOCTRINE

CONSIDERED IN LIGHT OF APPLI-

CABLE PUNAL Foes ss eccvesiigeseces 23

C. THE MEANING OF KNOWINGLY IN 33

U.S.C. SEL TIOIN TSIEN) oc bs vic agecces 24

Vil. CORGCEARIG ¢ des ces ds sesnssaeessnaneee 25

iii

TABLE OF AUTHORITIES

Page

CASES

Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604

IS BS Be Ce ark ke nia) clas 03 COSC ES ob woo 6¥e' 21

| Liparaota v. United States, 471 U.S. 419 (1985)..... 15, 22

Ratzlaf v. United States, 114 S.Ct. 655 (1994) ...... 16, 21

Staples v. United States, 114 S.Ct. 1793 (1994)

RO Eo Oe ae Pe ee ee 15, 16, 20, 21, 23, 24

United States v. Balint, 258 U.S. 250 (1922)........ 18, 19

United States v. Dotterweich, 320 U.S. 277 (1943). ..18, 19

United States v. Freed, 401 U.S. 601 (1971) ........ 18, 19

United States v. International Minerals & Chemical

Ces ME. Bele GM NAOT Bde ccc ccccccccescccs 18, 19, 21

United States v. X-Citement Video, Inc., _ U.S. ___,

Re I I Uc dak ss uc ctecccuactccccsdecs 22

United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir.

SN dete e eM SECC Vda os 048 Os Chee we 15; 16, 23

STATUTES

ee ee Clee evereseascabewe 1, 9

ER, gs cn cc owaciccccsescensoens 2, 16

SP Gee SUCUENE BOSILCMAA) occ ccc cceccccess 9, 14, 24

2 RR 8 he ES CS 9, 24

NS a Eg | RR are 17

Stee, UIA BPR PUMEMADLAD 5 vc ccc ccnscccesccaces 18

rr cen cctescceeceecese 8, 20

a i UE ee 16

PETITION FOR WRIT OF CERTIORARI

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Second Circuit entered July 18, 1995.

S

REFERENCE TO OPINIONS BY OTHER COURTS

The case below was reported by the United States

Court of Appeals for the Second Circuit in the case of

United States of America v. Robert H. Hopkins, No. 94-1428

(April 28, 1995).

BASIS FOR THE JURISDICTION OF THIS COURT

The judgment in this case was entered on April 28,

1995, by the United States Court of Appeals for the Sec-

ond Circuit.

The order denying the petition for rehearing was

entered on July 18, 1995.

This Court has jurisdiction to review the judgment in

question by writ of certiorari pursuant to 28 U.S.C. sec-

tion 1254.

4

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THIS CASE

18 U.S.C. section 371:

If two or more persons conspire either to

commit any offense against the United States, or

to defraud the United States, or any agency

thereof in any manner or for any purpose, and

one or more of such persons do any act to effect

the object of the conspiracy, each shall be fined

under this title or imprisoned not more than five

years, or both.

If, however, the offense, the commission of

which is the object of the conspiracy, is a misde-

meanor only, the punishment for such conspir-

acy shall not exceed the maximum punishment

provided for such misdemeanor.

33 U.S.C. section 1319(c):

(c) Criminal penalties

(1) Negligent violations

Any person who -

(A) negligently violates section 1311,

1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345

of this title, or any permit condition or limita-

tion implementing any of such sections in a

permit issued under section 1342 of this title by

the Administrator or by a State, or any require-

ment imposed in a pretreatment program

approved under section 1342(a)(3) or (b)(8) of

this title or in a permit issued under section

1344 of this title by the Secretary of the Army or

by a State; or

(B) negligently introduces into a

sewer system or into a publicly owned treat-

ment works any pollutant or hazardous sub-

stance which such person knew or reasonably

should have known could cause personal injury

or property damage or other than in compliance

with all applicable Federal, State, or local

requirements or permits which causes such

treatment works to violate any effluent limita-

tion or condition in any permit issued to the

treatment works under section 1342 of this title

by the Administrator or a State;

shall be punished by a fine of not less than

$2,500 nor more than $25,000 per day of viola-

tion, or by imprisonment for not more than 1

year, or by both. If a conviction of a person is for

a violation committed after a first conviction of

such person under this paragraph, punishment

shall be by a fine of not more than $50,000 per

day of violation, or by imprisonment of not

more than 2 years, or by both.

(2) Knowing violations

Any person who -

(A) knowingly violates section 1311,

1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345

of this title, or any permit condition or limita-

tion implementing any of such sections in a

permit issued under section 1342 of this title by

the Administrator or by a State, or any require-

ment imposed in a pretreatment program

approved under section 1342(a)(3) or (b)(8) of

this title or in a permit issued under section

1344 of this title by the Secretary of the Army or

by a State; or

(B) knowingly introduces into a sewer

system or into a publicly owned treatment

works any pollutant or hazardous substance

which such person knew or reasonably should

have known could cause personal injury or

property damage or, other than in compliance

with all applicable Federal, State, or local

requirements or permits, which causes such

4

treatment works under section 1342 of this title

by the Administrator or a State;

shall be punished by a fine of not less than

$5,000 nor more than $50,000 per day of viola-

tion, or by imprisonment for not more than 3

years, or by both. If a conviction of a person is

for violation committed after a first conviction

of such person under this paragraph, punish-

ment shall be by a fine of not more than

$100,000 per day of violation, or by imprison-

ment of not more than 6 years, or by both.

(3) Knowing endangerment

(A) General Rule

Any person who knowingly violates

section 1311, 1312, 1316, 1317, 1318, 1321(b)(3),

1328, or 1345 of this title; or any permit condi-

tion or limitation implementing any of such sec-

tions in a permit issued under section 1342 of

this title by the Administrator or by a State, or

in a permit issued under section 1344 of this title

by the Administrator or by a State, and who

knows at that time that he thereby places

another person in imminent danger of death or

serious bodily injury, shall, upon conviction, be

subject to a fine of not more than $250,000 or

imprisonment of not more than 15 years, or

both. A person which is an organization shall,

upon conviction of violating this subparagraph,

be subject to a fine of not more than $1,000,000.

If a conviction of a person is for a violation

committed after a first conviction of such person

under this paragraph, the maximum punish-

ment shall be doubled with respect to both fine

and imprisonment.

(B) Additional provisions

For the purpose of this subparagraph

(A) of this paragraph -

(i) in determining whether a defendant

who is an individual knew that his conduct

placed another person in imminent danger of

death of serious bodily injury -

(1) the person is responsible only for

actual awareness or actual belief that he pos-

sessed; and

(II) knowledge possessed by a person

other than the defendant but not by the defen-

dant himself may not be attributed to the defen-

dant; except that in proving the defendant's

possession of actual knowledge, circumstantial

evidence may be used, including evidence that

the defendant took affirmative steps to shield

himself from relevant information;

(ii) it is an affirmative defense to prosecu-

tion that the conduct charged was consented to

by the person endangered and that the danger

and conduct charged were reasonably foresee-

able hazards of -

(I) an occupation, a business, or a pro-

fession; or

(II) medical treatment or medical or

scientific experimentation conducted by profes-

sionally approved methods and such other per-

son had been made aware of the risks involved

prior to giving consent; and such defense may

be established under this subparagraph by a

preponderance of the evidence;

(iii) the term “organization” means a legal

entity, other than a government, established or

organized for any purpose, and such term

include a corporation, company, association,

firm, partnership, joint stock company, founda-

tion, institution, trust, society, union, or any

association of persons; and

(iv) the term “serious bodily injury”

means bodily injury which involves a substan-

tial risk of death, unconsciousness, extreme

physical pain, protracted and obvious disfigure-

ment, or protracted loss or impairment of the

function of a bodily member, organ, or mental

faculty.

(4) False statements

Any person who knowingly makes any

false material statement, representation, or certi-

fication in any application, record, plan, or other

document filed or required to be maintained

under this chapter or who knowingly falsifies,

tampers with, or renders inaccurate any mon-

itoring device or method required to be main-

tained under this chapter, shall upon conviction,

be punished by a fine of not more than $10,000,

or by imprisonment for not more than 2 years,

or by both. If a conviction of a person is for a

violation committed after a first conviction of

such person under this paragraph, punishment

shall be by a fine of not more than $20,000 per

day of violation, or by imprisonment of not

more than 4 years, or by both.

(d) Civil penalties; factors considered in

determining amount.

Any person who violates section 1311, 1312,

1316, 1317, 1318, 1328, or 1345 of this title, or

any permit condition or limitation implement-

ing any of such sections in a permit issued

? a

i

under section 1342 of this title by the Adminis-

trator, or by a State, or in a permit issued under

section 1344 of this title by a State, or any

requirement imposed in a pretreatment program

approved under section 1342(a)(3) or (b)(8) of

this title, and any person who violates any order

issued by the Administrator under subsection

(a) of this section, shall be subject to a civil

penalty not to exceed $25,000 per day for each

violation. In determining the amount of a civil

penalty the court shall consider the seriousness

of the violation or violations, the economic ben-

efit (if any) resulting from the violation, any

history of such violations, any good-faith efforts

to comply with the applicable requirements, the

economic impact of the penalty on the violator,

and such other matters as justice may require.

For purposes of this subsection, a single opera-

tional upset which leads to simultaneous viola-

tions of more than one pollutant parameter shall

be treated as a single violation.

(g) Administrative penalties

(1) Violations

Whenever on the basis of any information

available -

(A) the Administrator finds that any

person has violated section 1311, 1312, 1316,

1317, 1318, 1328, or 1345 of this title, or has

violated any permit condition of limitation

implementing any of such sections in a permit

issued under section 1342 of this title by the

Administrator or by a State, or in a permit

issued under section 1344 of this title by a State,

or

(B) the Secretary of the Army (here-

inafter in this subsection referred to as the “Sec-

retary”) finds that any person has violated any

permit condition or limitation in a permit issued

under section 1344 of this title by the Secretary,

the Administrator or Secretary, as the case may

be, may, after consultation with the State in

which the violation occurs, assess a class I civil

penalty or a class II civil penalty under this

subsection.

33 U.S.C. section 1362(6):

(6) The term “pollutant” means dredged

spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive mate-

rials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into water.

This term does not mean (A) “sewage from ves-

sels” within the meaning of section 1322 of this

title; or (B) water, gas, or other material which is

injected into a well to facilitate production of oil

or gas, or water derived in association with oil

or gas production and disposed of in a well, if

the well used either to facilitate production or

for disposal purposes is approved by authority

of the State in which the well is located, and if

such State determines that such injection or dis-

posal will not result in the degradation of

ground or surface water resources.

S

STATEMENT OF THE CASE

The petitioner in this case was the defendant in a

criminal prosecution initiated in the United States District

*

Court for the District of Connecticut for violations of the

Clean Water Act. Federal jurisdiction was based on the

Clean Water Act. Specifically, the defendant was con-

victed of one count of falsifying, tampering with, or

rendering inaccurate a monitoring device or method

required to be maintained pursuant to the Clean Water

Act, 33 U.S.C. section 1319(c)(4), one count of violating

the the terms of a discharge permit in violation of 33

U.S.C. section 1319(c)(2)(A), and one count of conspiracy

to violate the above two provisions of the Clean Water

Act in violation of 18 U.S.C. section 371.

From 1987 through September 6, 1990, the defendant

was the vice president of manufacturing of Spirol Inter-

national Corporation (“Spirol”). Spirol had a manufactur-

ing process that discharged wastewater into the Five Mile

River. It did so pursuant to a permit which regulated,

among other matters, the level of zinc which was dis-

charged. The instant indictment alleged that for approx-

imately an 18 month period from March, 1989, through

September, 1990, the defendant tampered with the reports

required by the permit and violated the terms of the

permit. The allegations all dealt with the concentrations

of zinc which were discharged.

The permit in question required Spirol to submit

weekly samples of its discharge to an independent labo-

ratory and report these results on a monthly basis to the

Connecticut Department of Environmental Protection

(“DEP”). The DEP administered the permit pursuant to

authority delegated to it from the Environmental Protec-

tion Agency. The weekly samples were collected by

employees under the supervision of the defendant. The

10

testimony at trial showed that Spirol maintained an inter-

nal method of measuring the level of zinc in the wastewa-

ter. The testimony was that employees at Spirol took

various steps to alter the sampling process if the in house

results were not satisfactory. These steps included dis-

carding the initial sample, diluting the sample with tap

water, or using a coffee filter to reduce the zinc level.

There was testimony showing varying degrees of knowl-

edge on the part of the defendant as to these steps.

Each month the defendant submitted a report to the

Connecticut Department of Environmental Protection

that indicated that the levels of zinc did not exceed the

permissible amounts specified by the permit. On each

report the defendant signed the following statement:

I certify under penalty of law that this document

and all attachments were prepared under by

[sic] direction or supervision in accordance with

a system designed to assure that qualified per-

sonnel properly gather and evaluate the infor-

mation submitted. Based on my inquiry of the

person or persons who manage the system, or

those persons directly responsible for gathering

the information, [sic] the information is, to the

best of my knowledge and belief, true, accurate

and complete. I am aware that there are signifi-

cant penalties for submitting false information,

including the possibility of fine and imprison-

ment for knowing violations.

There was evidence that the defendant was a person

of limited educational and professional experience, who

had risen to his position as a result of long years with the

NN TTT |

11

same employer. In fact, the government produced evi-

dence that within approximately six weeks of the termi-

nation of the defendant, the problem with the zinc

discharges had been corrected by the defendant’s suc-

cessor. This fact prompted the trial justice to query the

prosecutors if the defendant was being prosecuted for his

lack of ability. In a colloquy with the prosecutor, the

Court said. “So he’s being indicted for not being a good

manager, other than being —” Tr. at 148. Shortly thereafter

the Court said: “He was inefficient? Is that what you are

saying?” Tr. at 148. During that same exchange, the pros-

ecutor said: “ . . . our position is that Mr. Hopkins was

essentially, through lack of effort, lack of concern, just

didn’t — rather than fix this -.” Tr. at 148. Moreover, the

evidence established that the defendant had received no

training during the last six years and had limited educa-

tion. Tr. at 110-111.

The key question in this case was the jury instruc-

tions concerning the issue of knowledge. As to Count 1,

the Court charged as follows:

It is not necessary for the government to prove

that the Defendant intended to violate the law,

or that the Defendant had any specific knowl-

edge of the particular statutory, regulatory or

permit requirements imposed under the Clear

Water Act. The government must prove beyond

a reasonable doubt, however, that the Defendant

acted voluntarily or intentionally to falsify, tam-

per with or render inaccurate a monitoring

device or method, and that he did not do so by

mistake, accident or other innocent reason.

Tr. at 285-286.

12

As to Count 2, the Court charged as follows:

To reiterate, the government need not prove

that the Defendant intended to violate the law,

or that the Defendant had any specific knowl-

edge of the specific requirements of the condi-

tions and limitations of the permit. The

government must prove beyond a reasonable

doubt, however, that in taking actions — or caus-

ing actions to be taken - in violation of the

permit, he acted voluntarily, or intentionally,

and not by mistake, accident, ignorance of the’

facts, or for other innocent reason.

Tr. at 288.

As to Count 3, the conspiracy count, the Court

charged:

While the government must prove that the

defendant entered the conspiracy knowingly

and willfully, understanding the purpose of the

agreement, it need not establish that the defen-

dant acted with a specific intent to violate or

disregard the law. Thus, if you are convinced

beyond a reasonable doubt that the defendant

entered the conspiracy with an understanding

that the purpose of the conspiracy was to falsify

or tamper with a monitoring device or method,

and/or to violate the state discharge permit, it is

immaterial whether the defendant knew such

acts are unlawful.

Tr. at 293-294.

The defense objected to the definition of knowledge

given by the Court and offered alternative definitions of

its own. As to Count 1, the defense proffered the follow-

ing instructions:

13

That the defendant knew that the monitor-

ing device or method was required to be main-

tained under the Clean Water Act and that his

actions were in violation of the Clean Water Act.

Tr. at 303.

As to Count 2, the defense offered the following

instruction:

That the defendant knew that he was violat-

ing conditions or limitations of a discharge per-

mit and knew that he was acting in violation of

the Clean Water Act.

Tr. at 304. In the event this instruction were not given, the

defense asked for the following instruction:

That the defendant knew that he was violat-

ing conditions or limitations of discharge permit

or causing the same.

App. at 334; Tr. at 304.

As to Count 3, the defense objected specifically to the

language of the Court instructing the jury that the gov-

ernment did not have to prove that the defendant acted

with a specific intent to violate or disregard the law and

that it was immaterial whether the defendant knew his

acts were unlawful. App. at 335; Tr. at 305 paraphrasing.

+

ARGUMENT

A. The Wording of the Statute

The critical question in this case is the level of know!l-

edge required for a violation of two provisions of the

14

Clean Water Act, 33 U.S.C. section 1319(c)(2)(A) provides

criminal penalties for any person who:

knowingly violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1328, or 1345 ..., or any

permit condition or limitation implementing

any of such sections in a permit...

33 U.S.C. section 1319(c)(2)(A). The defense submits that

the term “knowingly” requires proof that the defendant

had actual knowledge that his conduct violated the law.

The first argument advanced by the defendant is that the

plain language of the statute compels the conclusion that

what is required is that a person actually know he was

violating the law. As the Court of Appeals in this case

said:

As a matter of abstract logic, it would seem that

a statute making it unlawful to “knowingly vio-

lates” a given statutory or permit provision

would require proof that the defendant bot

violated and knew that he violated that provi-

sion.

The defense submits that the plain language of the statute

requires this result. This is exactly the conclusion reached

by Judge Kleinfeld of the Ninth Circuit, when he stated:

The statute says “knowingly vio-

late(s) . . . any permit condition or limitation.”

“Knowingly” is an adverb. It modifies the verb

“violates.” The object of the verb is “any permit

condition or limitation.” The word “knowingly”

is placed before “violates” to explain its mean-

ing in the case at hand more clearly.” 1 George

O. Curme, A Grammar of the English Language

72 (1935). Congress has distinguished those who

knowingly violate permit conditions, and are

TO eT EN a eR TER TT OE TT ee

15

thereby felons, from those who unknowingly

violate permit conditions, so are not. The panel

reads the statute as though it says “knowingly

discharges pollutants.” It does not. If we read

the statute on the assumption that Congress

used the English language in an ordinary way,

the state of mind required is knowledge that one

is violating a permit condition.

United States v. Weitzenhoff, 35 F.3d 1275, 1294 (9th Cir.

1994), (Kleinfeld, J. Dissenting). The Court of Appeals in

this case adopted a different approach. It opined that the

Court was required to determine the proper “ ‘inference

of the intent of Congress’ ”, citing Staples v. United States,

114 S.Ct. 1793, 1797 (1994).

Yet the very section of Staples v. United States cited by

the Court of Appeals is followed by the statement that

the starting point in the analysis of the intent of Congress

is the wording of the statute itself. Linited States v. Staples,

114 S.Ct. at 1797. Justice Thomas goes on to note that the

statute at issue in Staples was silent on the issue of the

level of mens rea required. Staples v. United States, 114

S.Ct. at 1797. Indeed, Justice Thomas goes on to make the

point that even silence on the issue of mens rea does not

“necessarily suggest that Congress intended to dispense

with the conventional mens rea element. .. . ” Staples v.

United States, 114 S.Ct. 1793, 1797 (1994).

This Court has frequently said that the definition of

the elements of criminal offenses is a legislative function,

particularly in the arena of federal crimes. Liparaota v.

United States, 471 U.S. 419 (1985). In different words, this

Court reiterated that point in United States v. Staples,

when this Court said the starting point to determine

16

intent is the language of the statute itself. Staples v. United

States, 114 S.Ct. at 1796. A court is not to turn to legisla-

tive history, “ . . . to cloud a statutory text that is clear.”

Ratzlaf v. United States, 114 S.Ct. 655, 662-663 (1994).

Moreover, if the language of the statute is ambig-

uous, the rule of lenity would require a construction that

imposes upon the government the higher burden of

proof, to wit that the government prove the defendant

knew he was violating the law. United States v.

Weitzenhoff, 35 F.3d at 1295, (Kleinfeld, J. dissentirg),

citing inter alia, Ratzlaf v. United States, U.S. 114 S.Ct. 655

(1994).

The defense submits that the plain wording of the

statute compels the conclusion that the word knowingly

as used in the statute requires proof that the defendant

knew that he was violating the statute. A juxtaposition of

subsections 1 and 2 of 33 U.S.C. section 1319(c) provides

further support for the defendant’s position. 33 U.S.C.

section 1919 is entitled Enforcement. Section c is titled

Criminal Penalties. Subsection (1) is titled Negligent

violations and Subsection 2 is titled Knowing violations.

Negligent violations are punishable by a fine and

imprisonment for not more than one year for the first

violation and double that penalty for second and subse-

quent violations. Knowing violations are punishable by a

fine and imprisonment for not more than 3 years and

similarly double those penalties for second and subse-

quent violations. Clearly these subsections of the statu-

tory scheme show a considered scheme in which more

serious penalties are imposed for more serious violations,

with the government yet retaining the ability to prosecute

17

persons for misdemeanor violations without being obli-

gated to show knowledge.

Further consideration of the statutory scheme rein-

forces this analysis. The opinion of the Court in this case

would allow conviction of a person for a felony with less

proof of responsibility than for a misdemeanor. A misde-

meanor conviction would require proof of negligence,

which would require proof of the existence of a duty by

the defendant, a standard of care to be observed, and a

breach of the same. Conviction of a felony, conversely,

would not require any such proof. To impose upon the

government a higher standard of proof for violation of a

misdemeanor than a felony is to stand the logical con-

struction of a statute on its head. The result simply does

not make sense. The only result that allows the construc-

tion of the misdemeanor and felony provisions of section

1319 to stand in a logical relation to each other is to read

the felony statute as having a mens rea requirement.

Finally, consideration of the Clean Water Act as a

whole enhances this analysis. This Act has provisions for

the imposition of civil and administrative penalties. 33

U.S.C. section 1319(d), titled Civil Penalties, provides, in

relevant part, that:

[aJny person who violates section 1311, 1312,

1316, 1317, 1318, 1328, or 1345 of this title, or

any permit condition or limitation implement-

ing any of such sections in a permit issued

under section 1342 of this title . . . shall be

subject to a civil penalty not to exceed $25,000

per day for each violation.

18

In a similar vein, 33 U.S.C. section 1319(g)(1)(A), is titled

“Administrative Penalties” and provides in pertinent

part:

(A) the Administrator finds that any person has

violated section 1311, 1312, 1316, 1317, 1318,

1328, or 1345 of this title, or has violated any

permit condition or limitation implementing

any of such sections in a permit issued under

section 1342 of this title . . . the Administrator

.. May ... assess a class I civil penalty or a

class II civil penalty.

33 U.S.C. Section 1319(g)(1)(A). The imposition of these

sanctions does not require a finding of a mens rea. The

reading accorded the felony provisions of the Act by the

Court of Appeals in this case would obviate any differ-

ences in culpability between an administrative or civil

penalty on the one hand, and a felony violation on the

other hand, while leaving the most heightened burden

faced by the government in misdemeanor violations.

B. The Court of Appeals’ Reliance on the Public

Welfare Doctrine Was Misplaced

1. The Application of the Public Welfare Doc-

trine to this Case

The Court of Appeals in this case relied on cases

involving the “public welfare” in construing the knowl-

edge requirement in this case. Slip Opinion at 10. It cited

United States v. International Minerals & Chemical Corp., 402

U.S. 558 (1971); United States v. Freed, 401 U.S. 601 (1971);

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

United States v. Balint, 258 U.S. 250 (1922). Slip Opinion at

19

10. In all of these cases, the Court found that Congress

did not require prooi that a defendant knew his actions

were unlawful. In essence the Court was comparing the

statutes in these cases with the statute in this case, but the

comparison illuminates why strict liability should not be

applied in this case. In International Minerals what was

forbidden was the transport of hazardous materials. In

United States v. Freed, the item being regulated was hand

grenades. In United States v. Dotterweich, the subject mat-

ter being regulated was adulterated drugs and in United

States v. Balint, it was narcotics. In each of these cases, the

person involved in the handling of the materials is on

notice by virtue of the nature of the materials in question.

In this case, the breadth of the Clean Water Act extends

far beyond materials that are traditionally considered

hazardous or dangerous. Indeed, in this case, there was

never any evidence of harm to the environment. There

were certainly no reports of any fish being killed as a

result of the discharge in this case. Tr. of trial at 217.

Moreover, the record does not establish that the vast

majority of substances regulated by the Clean Water Act

are of the nature to alert the ordinary user that they are

subject to stringent regulation. Indeed, the breadth of the

Act suggests a contrary conclusion. The Act defines a

pollutant as:

“dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials radioactive

materials, heat, wrecked or discarded equip-

ment, rock, sand, cellar dirt and industrial,

municipal and agricultural waste discharged

into water.

20

33 U.S.C. section 1362(6). The broad sweep of the statute

extends far beyond what is inherently dangerous.

The Court of Appeals in this case said:

Further, the CWA sections to which section

1319(c)(2)(A) refers regulate a broad range of

pollutant discharges, including “[wJater quality

related effluent[s],” see 33 U.S.C. section 1312;

“toxic pollutants” listed in accordance with sec-

tion 1317(a), see 33 U.S.C. section 1317; “[o]il and

hazardous substance[s],” see 33 U.S.C. section

1321; and “sewage sludge,” see 33 U.S.C. section

1345. The vast majority of these substances are

of the type that would alert any ordinary user to

the likelihood of stringent regulation. Moreover,

the very fact that a governmental permit has

been issued enhances the user’s awareness of

the existence of regulation.

Slip Opinion at 13-14.

There are two significant problems with this conclu-

sion of the Court of Appeals. First, the mere fact that

there has been regulation, even of an extensive sort,

should not be sufficient by itself to trigger the public

welfare doctrine. See Staples v. United States in which this

Court said that the existence of regulation in a particular

area is not sufficient by itself to implicate the public

welfare doctrine. United States v. Staples, 114 S.Ct. at 1801.

In Staples, the comment was made with respect to guns. If

that is true with respect to guns, it should be equally true

with respect to issues covered by the Clean Water Act.

The second problem with the statement of the Court

of Appeals is the comment that “The vast majority of

these substances are of the type that would alert any

21

ordinary user to the likelihood of stringent regulation.”

The record simply does not support this very broad state-

ment. Indeed, in this case, there was no evidence of any

harm to the environment as a result of the violations

which were the basis for the convictions. What was at

issue was the discharge of lead in excess of permit levels.

The record is totally silent as to any evidence that the

nature of this substance was such as to alert an ordinary

user about the likelihood of stringent regulation.

The very structure of the Clean Water Act is different

than many other types of regulation. It regulates all con-

duct involving waters and wetlands, except that which is

permitted, rather than prohibiting specified conduct. One

consequence of such breadth is that the nature of conduct

which is subject to the statute is broad and includes much

conduct that might generally be considered innocuous.

This Court has recently reaffirmed that the public welfare

doctrine requires that a person at least know that the

person is dealing with something that is inherently dan-

gerous. Staples v. United States, 114 S.Ct. at 1798, n. 3. The

breadth of the Clean Water Act militates against such an

interpretation.

The legislative history also does not support the view

adopted by the Court of Appeals in this case. The Court

of Appeals focused on the change in the legislation which

basically resulted in the substitution of the word “know-

ingly” for “willfully.” Slip Opinion at 14. The panel opin-

ion goes on to cite many instances in which “willfulness”

has been defined to require knowledge that one was

breaking the law. See, e.g., Ratzlaf v. United States, 114

S.Ct. 655 (1994); Cheek v. United States, 498 U.S. 192, 111

S.Ct. 604 (1991). The panel opinion also cites United States

22

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

564-565, 91 S.Ct. 1697, 1701-1702 (1971) for the proposi-

tion that the term “knowingly” does not require proof

that a defendant knew his acts were illegal. The panel

opinion goes on to comment on the change in wording

from “willfully” to “knowingly,” stating:

We infer from this reduction that, by the latter

term, Congress intended not to require proof

that the defendant knew his conduct violated

the law or a regulatory permit.

Slip Opinion at 16.

The defense respectfully submits that the difference

in meaning between the terms “willfully” and “know-

ingly” is not universal or near universal and that often

the term “knowing” has signaled a heightened mens rea

requirement.

Most recently, this Court has considered the meaning

of the term “knowingly” in United States v. X-Citement

Video, Inc., __. U.S. __, 115 S.Ct. 464 (1994). In its deci-

sion, this Court cited cases utilizing the term “know-

ingly” to impose a heightened mens rea requirement.

United States v. X-Citement Video Inc., 115 S.Ct. at 468. Of

particular note, the Court cited Liparota v. United States,

471 U.S. 419, 433, 105 S.Ct. 2084, 2092 (1985), in which the

Supreme Court held that the term “knowingly” modified

the phrase “in any manner not authorized by {the stat-

ute}.” United States v. X-Citement Video, Inc., 115 S.Ct. at

468, citing Liparota v. United States.

In United States v. X-Citement Video, Inc., 115 S.Ct. at

472, the Supreme Court held that the term “knowingly”

had a broad reach which required the government to

i i aaa

23

prove knowledge both as to the sexual nature of the

material and as to the age of the performers. The defense

submits that the inference the panel opinion drew from

the change in wording from “willfully” to “knowingly” is

not warranted. In fact, the defense submits that the his-

tory of the use of the terms shows that the meaning of the

two terms is more dependent upon context than a univer-

sal definition. ;

In United States v. Weitzenhoff, the dissent from the

petition for rehearing and rehearing en banc considered

the legislative history of the Clean Water Act. Judge

Kleinfeld said:

Even if the use of legislative history were proper

here, it would not support the panel’s construc-

tion. The legislative history furnished a column

of quotations and references in the opinion but

no genuine support of the panel’s analysis.

United States v. Weitzenhoff, 35 F.3d at 1295 (Kleinfeld, J.

Dissenting). The defense submits that in light of the clear

language of the statute, there is no need to consider

legislative history, but that if the legislative history is

considered, it is at most inconclusive.

2. The Public Welfare Doctrine Considered In

‘Light of Applicable Penalties

In Staples v. United States, this Court noted that one of

the characteristics of the “public welfare” offenses was

the fact that they generally provided for only light penal-

ties, including short jail sentences. Staples v. United States,

__:;U.'S. __, 114 S.Ct. at 1802. In Staples this Court said

24

that the severity of the penalty was a factor to be consid-

ered in determining whether or not an offense should be

classified as a public welfare offense. Staples v. United

States, __ U.S. __, 114 S.Ct. at 1804. In this case, the

significant sanction, a felony conviction, a prison sen-

tence of twenty one months, fines, and supervised release

were all imposed. These are very serious sanctions that

further militate against application of the public welfare

doctrine in this case. This Court declined to adopt a

bright line rule in Staples v. United States that the public

welfare classification of cases should not apply to any

felony, but the defense urges that in the context of this

case, the severity of the penalty should prevent applica-

tion of the public welfare doctrine. Alternatively, this

Court should adopt precisely the bright line rule it

declined to adopt in United States v. Staples and simply

declare the public welfare doctrine inapplicable to felo-

nies.

C. The Meaning of Knowingly in 33 U.S.C. section

1319(c)(4)

The panel opinion of the Court of Appeals treats the

meaning of “knowingly” the same for both substantive

counts of the indictment alleging violations of 33 U.S.C.

sections 1319(c)(2)(A) and 1319(c)(4). Slip Opinion at 19.

The defense agrees that the term should be construed

consistently within the Clean Water Act and hence the

argument set forth above applies with equal force to both

substantive counts, as well as the conspiracy count.

¢

25

CONCLUSION

For the reasons set forth above, petitioner respect-

fully urges that this Court grant certiorari to determine

whether the actions of the Court of Appeals for the

Second Circuit as set forth were in error.

Respectfully submitted,

Rosert Hopkins

By his Attorney

Rosert B. MANN

MANN & MITCHELL

501 Turks Head Place

Providence, R.I. 02903

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 989 August Term, 1994

(Argued: February 9, 1995 Decided: APR 28 1995)

Docket No. 94-1428

UNITED STATES OF AMERICA,

Appellee,

ae

ROBERT H. HOPKINS,

Defendant-Appellant.

Before: OAKES, KEARSE, and CABRANES, Circuit

Judges.

Appeal from a judgment of the United States District

Court for the District of Connecticut, Ellen Bree Burns,

Judge, convicting defendant of violating wastewater dis-

charge permit issued pursuant to the Clean Water Act

and of falsifying reports required under the permit, 33

U.S.C. §§ 1319(c)(2)(A) and (c)(4), and of conspiring to do

so, 18 U.S.C. § 371.

Affirmed.

JOSEPH C. HUTCHISON, Assis-

tant United States Attorney, New

Haven, Connecticut (Christopher

F. Droney, United States Attorney

for the District of Connecticut,

App. 2

New Haven, Connecticut, on the

brief), for Appellee.

ROBERT B. MANN, Providence,

Rhode Island (Mann & Mitchell,

Providence, Rhode Island, on the

brief), for Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant Robert H. Hopkins appeals from a judg-

ment entered in the United States District Court for the

District of Connecticut following a jury trial before Ellen

Bree Burns, Judge, convicting him on one count of falsify-

ing, tampering with, or rendering inaccurate a monitor-

ing device or method required to be maintained pursuant

to the Clean Water Act (“CWA” or the “Act”), 33 U.S.C.

§§ 1251-1387 (1988 & Supp. V 1993), in violation of id.

§ 1319(c)(4); one count of violating the restrictions of a

discharge permit issued pursuant to the Act, in violation

of id. § 1319(c)(2)(A); and one count of conspiracy to

violate §§ 1319(c)(2)(A) and (c)(4), in violation of 18

U.S.C. § 371 (1988). Hopkins was sentenced principally to

21 months’ imprisonment, to be followed by a two-year

period of supervised release, and ordered to pay a $7,500

fine. On appeal, he contends that the district court

improperly instructed the jury on the knowledge element

of the offenses with which he was charged and erred in

giving a “conscious avoidance” instruction with respect

to the two substantive counts. For the reasons below, we

affirm the judgment of conviction.

App. 3

I. BACKGROUND

The present prosecution focused on environmental

problems of Spirol International Corporation (“Spirol”), a

manufacturer of metal shims and fasteners in north-

eastern Connecticut. Spirol’s manufacturing operation

involved a zinc-based plating process that generated sub-

stantial amounts of wastewater containing zinc and other

toxic materials; this wastewater was discharged into the

nearby Five Mile River. The State of Connecticut’s

Department of Environmental Protection (“DEP”), pur-

suant to authority delegated by the United States Envi-

ronmental Protection Agency, administered the CWA

provisions. applicable to Spirol’s discharges into the river.

In 1987, Spirol, then operating under the name “CEM

Co.,” entered into a consent order with DEP, requiring

Spirol to pay a $30,000 fine for past zinc-related discharge

violations and to comply in the future with discharge

limitations specified in the order. In February 1989, DEP

issued a modified “wastewater discharge permit” (the

“DEP permit”) imposing more restrictive limits on the

quantity of zinc and other substances that Spirol was

permitted to release into the river.

From at least 1987 through September 6, 1990, Hop-

kins was Spirol’s vice president for manufacturing. Hop-

kins signed the 1987 consent order with DEP on behalf of

Spirol, and he had corporate responsibility for ensuring

compliance with the order and the DEP permit. The pre-

sent prosecution charged that between March 1989 and

September 1990 Hopkins deliberately tampered with Spi-

rol’s wastewater testing and falsified its reports to DEP.

The government’s proof at trial included the testimony of

Dennis Mark Morrison, Aaron Anderson, and John J.

App. 4

Morris, who at the pertinent times were Spirol

employees. Taken in the light most favorable to the gov-

ernment, the evidence was as follows.

A. The Evidence as to the Sampling Process

Directed by Hopkins

The DEP permit required Spirol each week to collect

a sample of its wastewater and send it to an independent

laboratory by Friday morning of that week. Spirol was

required to report the laboratory results to DEP in a

discharge monitoring report once a month. Under the

DEP permit, the concentrations of zinc in Spirol’s waste-

water were not to exceed 2.0 milligrams per liter in any

weekly sample, nor to average more than one milligram

per liter in any month.

During the period March 1989 to September 1990,

Spirol began its weekly sampling process on Mondays. A

composite sample of the plant’s wastewater was aggre-

gated over a 24-hour period by Morrison and Anderson,

who were involved in the zinc-plating process. Morrison

was Anderson’s supervisor and reported directly to Hop-

kins. Before sending a sample to the independent labora-

tory, Morrison and Anderson measured the concentration

of zinc in the sample, and Morrison reported the results

to Hopkins. Morrison and Anderson testified that if the

sample collected on a Tuesday contained less than one

milligram of zinc per liter, it would be sent promptly to

the independent laboratory with a “chain of custody”

record signed by Hopkins. If the Tuesday sample was not

below that level, however, it was not sent to the labora-

tory. Morris, Spirol’s maintenance engineer, testified that

App. 5

Hopkins expressed concern that if the samples did “not

meet the permit requirements . . . the company would be

facing another fine.” (Trial Transcript (“Tr.”) at 48.)

Accordingly, whenever the Tuesday in-house test indi-

cated a zinc content above the one-milligram-per-liter

level, Hopkins directed that that sample be discarded and

that another 24-hour composite sample be taken on

Wednesday. In 54 of the 78 weeks in question, Spirol’s

samples were sent to the laboratory later than Tuesday.

If a Wednesday sample failed the in-house test, Hop-

kins sometimes ordered that it too be discarded and that

another sample be taken on Thursday; but he more often

instructed Morrison and Anderson to dilute the Wednes-

day sample with tap water or to reduce the zinc concen-

tration using an ordinary coffee filter. Similarly, if the

Thursday sample failed to meet the proper standard,

Hopkins usually directed that it be diluted or filtered;

but, Morrison testified, “A lot of times, we would go

right through Friday.” (Tr. at 90.) Any Friday sample that

failed to meet the standard was always diluted or filtered,

in order that a good sample could be sent to the labora-

tory by the Friday deadline. Morrison testified that in

some of the samples submitted to the laboratory, there

was more tap water than wastewater.

From March 1989 to September 6, 1990, Hopkins filed

with DEP monthly discharge monitoring reports consol-

idating the weekly test results from the independent lab-

oratory. These reports showed no zinc concentrations

above one milligram per liter. On each report, Hopkins

signed the following certification:

App. 6

I certify under penalty of law that this document

and all attachments were prepared under by

[sic] direction or supervision in accordance with

a system designed to assure that qualified per-

sonnel properly gather and evaluate the infor-

mation submitted. Based on my inquiry of the

person or persons who manage the system, or

those persons directly responsible for gathering

the information. [sic] The information is, to the

best of my knowledge and belief, true, accurate

and complete. I am aware that there are signifi-

cant penalties for submitting false information,

including the possibility of fine and imprison-

ment for knowing violations.

Contrary to Hopkins’s certifications of his belief as to

truth and accuracy, Morrison testified that Hopkins had

caused the samples to be “tampered with” about “40

percent of the time.” (Tr. at 115.) Morrison testified that

on 25-30 occasions when he reported back to Hopkins

that he had finally succeeded in getting a satisfactory

sample by means of dilution or filtration, Hopkins

responded, “I know nothing, I hear nothing.” (Tr. at 116.)

Anderson testified that on one occasion in the summer of

1989, he reported directly to Hopkins that an unsatisfac-

tory sample had been collected. Hopkins’s response was,

“ “See what you could do with it’” (Tr. at 136); when

Anderson returned three hours later and reported that

the sample was now satisfactory, Hopkins signed the

chain-of-custody record without comment, question, or

sign of surprise.

Morris testified that he told Hopkins that the testing

procedures being used were improper. Regardless of the

App. 7

test results, Spirol continued to discharge its wastewater

into the river.

B. The Trial Court’s Instructions as to Knowledge

In December 1993, Hopkins was charge in a three-

count indictment alleging (1) that he had knowingly falsi-

fied or tampered with Spirol’s discharge- sampling

methods, in violation of 33 U.S.C. § 1319(c)(4) (count

one); (2) that he had knowingly violated the conditions of

the DEP permit, in violation of 33 U.S.C. § 1319(c)(2)(A)

(count two); and (3) that he had conspired to commit

those offenses, in violation of 18 U.S.C. § 371.

At trial, the district court instructed the jury as fol-

lows, over Hopkins’s objections, on the knowledge ele-

ment of each count. As to count one, the court stated:

Knowledge may be established by direct or

circumstantial evidence. One may not willfully

or intentionally remain ignorant of a fact, mate-

rial or important to his conduct to escape the

consequences of criminal law.

If you find beyond a reasonable doubt that

the defendant was aware that there was a high

probability that employees of Spirol were tam-

pering with a monitoring device or method but

he deliberately and consciously avoided con-

firming this fact so that he could deny knowl-

edge if apprehended, then you may treat this

deliberate avoidance of [sic] the equivalent of

knowledge, unless you find the defendant actu-

ally believed that Spirol employees were not

tampering with a monitoring device or method.

App. 8

A showing of negligence, mistake or even

foolishness on the part of the defendant is not

enough to support an inference of knowledge.

It is not necessary for the government to

prove that the defendant intended to violate the

law or that the defendant had any specific

knowledge of the particular statutory, regula-

tory or permit requirements imposed under the

Clean Water Act.

The government must prove, beyond a rea-

sonable doubt, however, that the defendant

acted voluntarily or intentionally to falsify, tam-

per with or render inaccurate a monitoring

device or method and that he did not do so by

mistake, accident or other innocent reason.

(Tr. at 285-86.) The court delivered substantially the same

instruction with respect to count two:

To reiterate, the government need not prove

that the defendant intended to violate the law or

that the defendant had any specific knowledge

of the specific requirements of the conditions

and limitations of the permit.

The government must prove, beyond a rea-

sonable doubt, however, that in taking actions

or causing actions to be taken, in violation of the

permit, he acted voluntarily or intentionally and

not by mistake, accident, ignorance of the facts,

or for other innocent reason.

The element of acting knowingly may also

be satisfied if you find beyond a reasonable

doubt . . . that the defendant willfully or inten-

tionally remained ignorant of relevant material

facts.

(Tr. at 288.)

App. 9

With respect to the knowledge element of the con-

spiracy charged in count three, the court instructed that

[w]hile the government must prove that the

defendant entered the conspiracy knowingly

and willfully, understanding the purpose of the

agreement, it need not establish that the defen-

dant acted with a specific intent to violate or

disregard the law.

Thus, if you are convinced beyond a reason-

able doubt that the defendant entered the con-

spiracy with an understanding that the purpose

of the conspiracy was to falsify or tamper with a

monitoring device or method, and/or to violate

the state discharge permit, it is immaterial

whether the defendant knew such acts are

unlawful.

(Tr. at 293-94.)

The jury convicted Hopkins on all three counts. He

was sentenced as indicated above, and this appeal fol-

lowed.

Il. DISCUSSION

On appeal, Hopkins contends principally that the

district court instructed the jury erroneously as to the

knowledge element of each count of the indictment. He

also contends that, as to the substantive counts, the court

should not have given a conscious-avoidance instruction.

We reject all of his contentions.

App. 10

A. The Knowledge Requirements Under the CWA

1. Section 1319(c)(2)(A)

Subsection (2) of § 1319(c), whose violation was

alleged in count two of the indictment, establishes crimi-

nal penalties, including fines of up to $50,000 per day and

imprisonment for up to three years, for “[a]ny person”

who, inter alia,

knowingly violates section 1311, 1312, 1316, 1317,

1318, 1321(b)(3), 1328, or 1345 of [Title 33], or

any permit condition or limitation implement-

ing any of such sections in a permit issued

under [the CWA] by the Administrator or by a

State.

33 U.S.C. § 1319(c)(2)(A) (emphasis added). Hopkins con-

tends that the district court should have instructed the

jury that it could not find him guilty of violating this

section unless it found that he knew he was acting in

violation of the CWA or the DEP permit. We disagree.

Section 1319(c)(2)(A) itself does not expressly state

whether the adverb “knowingly” is intended to require

proof that the defendant had actual knowledge that his

conduct violated any of the statutory provisions that

follow the phrase “knowingly violates” or had actual

knowledge that his conduct violated a permit condition.

As a matter of abstract logic, it would seem that a statute

making it unlawful to “knowingly violate[]” a given

statutory or permit provision would require proof that

the defendant both violated and knew that he violated

that provision. In defining the mental state required for

conviction under a given statute, however, the courts

eee Se

App. 11

4

must seek the proper “ ‘inference of the intent of Con-

gress,” Staples v. United States, 114 S. Ct. 1793, 1797

(1994) (“Staples”) (quoting United States v. Balint, 258 U.S.

250, 253 (1922)), and in construing knowledge elements

that appear in so-called “public welfare” statutes — i.c.,

statutes that regulate the use of dangerous or injurious

goods or materials —- the Supreme Court has inferred that

Congress did not intend to require proof that the defen-

dant knew his actions were unlawful. See, e.g., United

States v. Internationai Minerals & Chemical Corp., 402 U.S.

558, 565 (1971) (discussed below); United States v. Freed,

401 U.S. 601, 607-08 (1971) (conviction under 26 U.S.C.

§ 5861(d) for possession of unregistered hand grenades

did not require knowledge of registration requirement);

United States v. Dotterweich, 320 U.S. 277, 280-81 (1943)

(strict liability under 21 U.S.C. § 331 for distribution of

adulterated drugs); United States v. Balint, 258 U.S. at

252-54 (strict liability under § 2 of Narcotic Act of Decem-

ber 17, 1914, for sale of narcotics).

In United States v. International Minerals & Chemical

Corp. (“International Minerals”), the Court construed a

statute that authorized the Interstate Commerce Commis-

sion (“ICC”) to promulgate regulations governing the

transport of corrosive liquids and imposed criminal pen-

alties on those who “knowingly violate{jd] any such regu-

lation,” see 18 U.S.C. § 834(f) (1970) (repealed 1979). The

Court held that the quoted phrase required the govern-

ment to prove only that the defendant knew the nature of

his acts, not that he knew his acts violated an ICC regula-

tion. See 402 U.S. at 565. The Court stated that “where

- . . dangerous or deleterious devices or products or

obnoxious waste materials are involved, the probability

App. 12

of regulation is so great that anyone who is aware that he

is in possession of them or dealing with them must be

presumed to be aware of the regulation.” Id. Applying

this presumption of awareness, the Court concluded that

the phrase “knowingly violate[d] any [ICC] regulation”

was meant to be a “shorthand” method of referring to the

acts or omissions contemplated by the statute. Id. at

560-62. Noting “the general rule that ignorance of the law

is no excuse,” id. at 563, the Court “decline[d] to attribute

to Congress the inaccurate view that” use of the word

“knowingly” would “require[ ] proof of knowledge of the

law, as well as the facts,” id. See also Staples, 114 S. Ct. at

1805-06 n.3 (Ginsburg, J., concurring) (“The mens rea pre-

sumption requires knowledge only of the facts that make

the defendant’s conduct illegal, lest it conflict with the

related presumption, ‘deeply rooted in the American

legal system,’ that, ordinarily, ‘ignorance of the law or a

mistake of law is no defense to criminal prosecution.’ ”)

(quoting Cheek v. United States, 498 U.S. 192, 199 (1990)).

This Court in United States v. Laughlin, 10 F.3d 961,

964-67 (2d Cir. 1993) (“Laughlin”), cert. denied, 114 S. Ct.

1649 (1994), applied the International Minerals “presump-

‘tion of awareness of regulation” in constructing provi-

sions of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§ 6901-6992k (1988 & Supp. V 1993),

and the Comprehensive Environmental Response, Com-

pensation and Liability Act (“CERCLA”), 42 U.S.C.

§§ 9601-9675 (1988 & Supp. V 1993). RCRA provides for

the imposition of criminal penalties against any person

who “knowingly treats, stores, or disposes of any hazard-

_ous waste identified or listed under [RCRA]” without a

permit, 42 U.S.C. § 6928(d)(2). We held that this provision

App. 13

did not require the government to prove that the defen-

dant knew that the waste he dealt with was identified or

listed under RCRA or that he lacked a disposal permit.

Rather, we held that the government need prove only that

the defendant knew the nature of the hazardous waste

matter with which he dealt. See Laughlin, 10 F.3d at 966.

Accord United States v. Wagner, 29 F.3d 264, 265-66 (7th Cir.

1994); United States v. Dean, 969 F.2d 187, 191 (6th Cir.

1992), cert. denied, 113 S. Ct. 1852 (1993); United States v.

Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, 499 U.S.

919 (1991); United States v. Hoflin, 880 F.2d 1033, 1037-38

(9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990). Similarly,

with respect to CERCLA, which requires agency notifica-

tion of an excess discharge of a hazardous substance by

any person in charge of a facility “as soon as he has

knowledge of any release (other than a federally permit-

ted release),” 42 U.S.C. § 9603(a), we held that the gov-

ernment was not required to prove that the defendant

was aware of the regulatory requirements but only that

he was “aware of his acts.” Laughlin, 10 F.3d at 967.

For several reasons, we view the presumption of

awareness of regulation, applied to the ground-pollution

offenses in Laughlin, to be equally applicable to the

phrase “knowingly violates [the specified sections or per-

mit]” in § 1319(c)(2)(A). Congress considered discharges

of hazardous waste onto the ground, which are regulated

in RCRA, as no less serious than such discharges into

water, see, e.g., S. Rep. 99-50, 99th Cong., 1st Sess. 29

(1985) (discussing increase in criminal penalties proposed

by 1987 amendments to CWA to parallel existing penal-

ties under “RCRA [to] reflect the commensurately serious

nature of the violations to be criminally prosecuted under

App. 14

the Clean Water Act”). Further, the CWA sections to

which § 1319(c)(2)(A) refers regulate a broad range of

pollutant discharges, including “[w]ater quality related

effluent[s],” see 33 U.S.C. § 1312; “toxic pollutants” listed

in accordance with § 1317(a), see 33 U.S.C. § 1317; “fo]il

and hazardous substance[s],” see 33 U.S.C. § 1321; and

“sewage sludge,” see 33 U.S.C. § 1345. The vast majority

of these substances are of the type that would alert any

ordinary user to the likelihood of stringent regulation.

Moreover, the very fact that a governmental permit has

been issued enhances the user’s awareness of the exis-

tence of regulation.

The legislative history of § 1319(c)(2)(A) also lends

support to the conclusion that, under that section, the

government need not prove that the defendant knew his

conduct was unlawful. Prior to 1987, the substance of

§ 1319(c)(2)(A) appeared in § 1319(c)(1), which provided

penalties for one who “willfully or negligently” violated

that section. See 33 U.S.C. § 1319(c)(1) (1982) (emphasis

added). In 1987, Congress amended § 1319(c)(1), placing

the prohibitions against intentional and negligent viola-

tions in separate sections, addressing negligent violations

in § 1319(c)(1)(A) and intentional violations in

§ 1319(c)(2)(A); and in § 1319(c)(2)(A), it changed the

term “willfully” to “knowingly.” Though the congres-

sional reports on the bills leading to the 1987 amend-

ments do not expressly discuss the change from

“willfully” to “knowingly,” they make clear that one goal

of the amendments was to strengthen the criminal sanc-

tions. See, e.g., S. Rep. No. 50, 99th Cong., Ist Sess. 30

(1985) (noting “[s]trong public support” for “[t]he addi-

tion and stren[g]thening of criminal sanctions in the Act

ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeOOOOOeeEE—Eeeoeeee

App. 15

for knowing violations”); H.R. Conf. Rep. No. 1004, 99th

Cong., 2d Sess. 138 (1986) (amendments intended to

establish “increased penalties for . . . criminal violations

of the [CWA]”). One way of heightening criminal sanc-

tions is to reduce the mens rea element of the prohibited

acts, and a change from prohibiting “willful” acts to

prohibiting “knowing” acts may be viewed as such a

reduction. The term “willfulness” has generally, albeit not

uniformly, been interpreted as referring to knowledge

that the conduct in question was wrongful or unlawful.

See, e.g., Ratzlaf v. United States, 114 S. Ct. 655, 657 (1994)

(to convict of “wilfully” structuring transactions in viola-

tion of 31 U.S.C. § 5322, government must prove that the

defendant had knowledge that structuring itself was

unlawful); Cheek v. United States, 498 U.S. 192, 201 (1991)

(willfulness in 26 U.S.C. § 7201, prohibiting federal tax

evasion, means the “voluntary, intentional violation of a

known legal duty”) (internal quotes omitted); United

States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam)

(same re 26 U.S.C. § 7206(1), prohibiting willful filing of

false federal income tax returns); United States v. Bishop,

412 U.S. 346, 361 (1973) (same); United States v. Murdock,

290 U.S. 389, 396 (1933) (same re 26 U.S.C. § 1265(a),

prohibiting willful failure to pay federal tax); United

States v. Gurary, 860 F.2d 521, 523 (2d Cir. 1988) (same re

prosecution under 26 U.S.C. § 7206(2) for willfully aiding

and assisting the filing of false federal tax returns), cert.

denied, 490 U.S. 1035 (1989). But see United States v. Collins,

957 F.2d 72, 75-77 (2d Cir.) (inferring, in light of legisla-

tive history, that Congress intended “willfully” in 18

U.S.C. § 922(a)(1)(D) (unlicensed dealing in firearms) to

mean merely knowingly and purposefully doing an act

App. 16

that the law forbids), cert. denied, 112 S. Ct. 2285 (1992);

United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970)

(under 15 U.S.C. § 78ff(a), a defendant may be convicted

of willfully violating a securities regulation of whose

existence he is unaware), cert. denied, 401 U.S. 935 (1971).

The prevalent interpretation of “willfully” to mean

intentionally violating a law of whose existence the

defendant was aware was reflected in United States v.

Murdock, for example, in which the Supreme Court held

that a defendant prosecuted under an Internal Revenue

Code provision prohibiting a “willful{]” failure to pay a

tax may defend by showing his bona fide misunderstand-

ing of the requirements of that section. See 290 U.S. at 396.

The International Minerals Court, in ruling that “know-

ingly violates [ICC] regulations” did not require knowl-

edge of the pertinent regulations, pointed out that if

Congress had wished to require proof that the defendant

knew his acts were unlawful, it could have used the word

“willfully” as it had done in the provision construed in

Murdock. See International Minerals, 402 U.S. at 564. We

think this observation is especially pertinent where Con-

gress has amended a statutory provision, as it did with

respect to § 1319(c)(2)(A), to change the mens rea element

from “willfully” to “knowingly.” We infer from this

reduction that, by the latter term, Congress intended not

to require proof that the defendant know his conduct

violated the law or a regulatory permit.

Thus, we conclude that the purpose and legislative

history of § 1319(c)(2)(A) indicate that Congress meant

that that section would be violated if the defendant's acts

were proscribed, even if the defendant was not aware of

the proscription.

App. 17

The only other Circuit, of which we are aware, to

construe the knowledge requirement of § 1319(c)(2)(A)

has reached the same conclusion. In United States v.

Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994), cert. denied, 115 S.

Ct. 939 (1995), the Ninth Circuit noted that the criminal

provisions of the CWA define a set of “public welfare”

offenses that are “clearly designed to protect the public at

large from the potentially dire consequences of water

pollution.” Id. at 1286 (citing S. Rep. No. 99-50, 99th

Cong., 1st Sess. 29 (1985)). The Weitzenhoff court upheld

the trial court’s instruction that, with respect to knowl-

edge, the government was required to prove only that a

defendant knew he was discharging the pollutants in

question and was “not required to prove that the defen-

dant knew that his act[s] or omissions were unlawful.” Id.

at 1283 (internal quotes omitted). Rejecting the defen-

dants’ contention that the government should have to

prove their knowledge of the pertinent provisions of their

discharge permit, the court concluded that “[t]he Interna-

tional Minerals rationale requires that we impute to these

parties knowledge of their operating permit.” Id. at 1285.

Hopkins’s reliance on Staples, 114 S. Ct. 1793, and on

Posters ‘N’ Things, Ltd. v. United States, 114 S. Ct. 1747,

1753-54 (1994), for the contrary proposition is misplaced.

Staples involved 26 U.S.C. § 5861(d) (1988), which pro-

hibits the possession of unregistered machine guns and

does not specify a mens rea element. The defendant had

unsuccessfully requested an instruction that the jury, in

order to convict, must find that he knew the weapon he

possessed would fire automatically; the court of appeals

affirmed his conviction on the ground that the govern-

ment was not required to prove a defendant’s knowledge

App. 18

of a weapon’s physical characteristics. The Supreme

Court reversed the conviction, ruling that the defendant

could not properly be convicted unless the government

proved that he knew the nature of his acts. 114 S. Ct. at

1804. The Court in no way suggested, however, that the

government had the burden of proving that the defen-

dant also knew that his acts violated § 5861(d).

Posters ‘N’ Things also involved prosecution under a

statutory provision that contained no express mens rea

element, to wit, 21 U.S.C. § 857(a)(1) (1988) (repealed

1990), which prohibited “use of . . . [an] interstate convey-

ance as part of a scheme to sell drug paraphernalia.” The

Court concluded that the section was intended to require

proof of knowledge that the merchandise sold would

probably be used with drugs, but not proof of knowledge

that the merchandise was within the statutory definition

of “drug paraphernalia.” 114 S. Ct. at 1753-54.

In sum, we conclude for the foregoing reasons that

the trial court correctly instructed the jury that in a pros-

ecution under § 1319(c)(2)(A), the government was

required to prove that Hopkins knew the nature of his

acts and performed them intentionally, but was not

required to prove that he knew that those acts violated

the CWA, or any particular provision of that law, or the

regulatory permit issued to Spirol.

2. The Meaning of “Knowingly” in § 1319(c)(4)

We reach the same conclusion with respect to subsec-

tion (4) of § 1319(c), whose violation was alleged in count

App. 19

one of the indictment. That section provides, in pertinent

part, that

[aJny person who . . . knowingly falsifies, tam-

pers with, or renders inaccurate any monitoring

device or method required to be maintained under

this chapter, shall [be guilty of a felony].

33 U.S.C. § 1319(c)(4) (emphasis added). Though Hopkins

contends that the district court should have instructed

the jury that it could not find him guilty of violating this

section unless he knew that accurate maintenance of the

monitoring methods was required by the CWA, a term

that appears in several places in the same statute should

generally be construed “the same way each time it

appears,” Ratzlaf v. United States, 114 S. Ct. at 660.

Accordingly, we reject Hopkins’s § 1319(c)(4) challenge

for the reasons stated above with respect to the “know-

ingly” element of § 1319(c)(2)(A).

In light of our rejection of Hopkins’s contentions

concerning the knowledge requirements of

§§ 1319(c)(2)(A) and (c)(4), his similar challenge to the

district court’s instruction on the conspiracy count is also

without merit.

3. The Negligence Contention

Hopkins also contends that the jury, consistent with

the trial court’s instructions, could have convicted him

for conduct that was merely negligent or innocent. In

light of the court’s actual instructions and the evidence

presented, this contention is meritless. With respect to

count one, for example, the court instructed, inter alia,

App. 20

that the government was required to prove that Hopkins

had a high degree of awareness that the testing process

was being tampered with, and prove that he “did not

[falsify or tamper with that process] by mistake, accident

or other innocent reason” (Tr. at 286), and that “[a] show-

ing of negligence, mistake or even foolishness on the part

of the defendant is not enough to support an inference of

knowledge” (id. at 285). With respect to count two, the

court similarly instructed that the government was

required to prove the Hopkins had “acted voluntarily or

intentionally and not by mistake, accident, ignorance of

the facts, or for other innocent reason.” (Id. at 288.)

Nor did the evidence show conduct that was merely

negligent. Rather, the evidence and testimony at trial

overwhelmingly indicated both that Hopkins was aware

of the permit requirements and that he knew that

numerous samples of Spirol’s wastewater discharge con-

tained concentrations of zinc in excess of the permitted

levels. In his capacity as a corporate officer, Hopkins had

signed the 1987 consent order imposing detailed dis-

charge limitations; the February 1989 permit modification

had been sent to Spirol to the attention of Hopkins; and

Hopkins had sole corporate responsibility for supervising

the Spirol wastewater testing program throughout the

relevant period. In carrying out that supervision, Hop-

kins repeatedly warned Morrison when the zinc concen-

trations in a sample were “close to the borderline,”

repeatedly sent Morrison back for cleaner samples, and

specifically alluded to the one-milligram-per-liter permit

limitation by telling Morrison to “make sure it doesn’t go

over one.” (Tr. 100.)

App. 21

We see no possibility that the jury could have con-

victed Hopkins solely for negligence.

B. The Conscious-Avoidance instruction

Hopkins also challenges the district court’s instruc-

tion that the jury could find that Hopkins had the equiva-

lent of knowledge if it found that “there was a high

probability that employees of Spirol were tampering with

a monitoring device or method but [Hopkins] deliber-

ately and consciously avoided confirming this fact so that

he could deny knowledge if apprehended.” Hopkins

argues that such an instruction was inappropriate

because it was contrary to the government’s contention

that he had actual knowledge. His challenge has no merit.

A conscious-avoidance charge is appropriate when

(a) the element of knowledge is in dispute, and (b) the

evidence would permit a rational juror to conclude

beyond a reasonable doubt “that the defendant was

aware of a high probability of the fact in dispute and

consciously avoided confirming that fact,” United States v.

Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993). See generally

United States v. Civelli, 883 F.2d 191, 194-95 (2d Cir.), cert.

denied, 493 U.S. 966 (1989). Such an instruction is not

inappropriate merely because the government has pri-

marily attempted to prove that the defendant had actual

knowledge, while urging in the alternative that if the

defendant lacked such knowledge it was only because he

had studiously sought to avoid knowing what was plain.

See, e.g., United States v. Mang Sun Wong, 884 F.2d 1537,

1541 (2d Cir. 1989), cert. denied, 493 U.S. 1082 (1990).

App. 22

Both prerequisites for a conscious-avoidance instruc-

tion were present here. Though Hopkins did not testify at

trial, his knowledge plainly was in dispute, for the thrust

of his cross-examination and arguments was that he did

not know about the tampering. For example, in his clos-

ing argument, defense counsel argued that Hopkins

could have corrected matters “if [he] had known what

was going on.” (Tr. at 253.) Further, though there was

ample evidence that Hopkins himself had ordered the

tampering with the samples that were to be sent to the

laboratory, there was also evidence that he had stu-

diously avoided confirming the tampering. Morrison tes-

tified, for example, that on 25-30 occasions when he

presented Hopkins with satisfactory samples after having

previously presented him with unsatisfactory samples,

Hopkins said, “I know nothing, I hear nothing.” In light

of Hopkins’s litigation position and the evidence at trial,

the district court did not err in instructing the jury that it

could find Hopkins guilty based upon his conscious

attempt to avoid actual knowledge that the samples had

been falsified.

CONCLUSION

We have considered all of Hopkins’s arguments on

this appeal and have found them to be without merit. The

judgment of conviction is affirmed.

App. 23

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

GEORGE LANGE III

CLERK

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the 18th day of July one thousand nine hundred and

ninety-five.

USA

heaiies,

oT Dkt No: 94-1428

Hopkins

Defendant-Appellant.

(Filed July 18, 1995)

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellant Robert Hopkins.

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges for the court in

regular active service and to any other judge that heard

App. 24

the appeal and that no such judge has requested that a

vote be taken thereon.

FOR THE COURT

GEORGE LANGE III, CLERK

By: Beth J. Meador

Beth J. Meador Date

Administrative Attorney

ee