Amicus Curiae Brief — Mills v. United States

In the

Supreme Court of the United States

+

OCIE MILLS and CAREY MILLS,

Petitioners,

Vv.

UNITED STATES OF AMERICA

Respondent.

+

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

+

JAMES S. BURLING FRANK A. SHEPHERD

Pacific Legal Foundation Counsel of Record

10360 Old Placerville Road Pacific Legal Foundation

Suite 100 P.O. Box 522188

Sacramento, California 95827 Miami, Florida 33152

Telephone: (916) 362-2833 Telephone: (305) 499-9807 .

Facsimile: (916) 362-2932 Facsimile: (305) 715-9779

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTION PRESENTED

Whether the decision of the Eleventh Circuit Court of

Appeals conflicts with the decision of this Court in United

States v. Morgan?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........0.0-0ceccececeeeees i

TABLE OF AUTIROIIUOD 6.cicccectesneeeedsseieeees iii

INTEREST OF AMICUS CURIAE ............2.20-0000: l

STATEMENT OF THE CASE ...........2.0.0eeececeees 3

SUMMARY OF THE ARGUMENT .............-2-2005: 5

ARGUMENT ........ ee > ie anne 7

I. THE DECISION OF THE ELEVENTH CIRCUIT

COURT OF APPEALS CONFLICTS WITH THE

DECISION OF THIS COURT IN UNITED STATES

V. MORGAN ooo ccceccnweeensectaeenesssadedeons 7

Il. WRIT OF CORAM NOBIS IS PARTICULARLY

JUSTIFIED BECAUSE THE MILLSES’ CONVIC-

TIONS WERE NOT ONLY TAINTED BY JUROR

MISCONDUCT, BUT WERE BASED UPON

INNOCENT CONDUCT THAT TRADITIONALLY

HAS BEEN CONSIDERED PERFECTLY LEGAL ... 10

CONCLUSION .....icscasacepeseesaeebeeeaue sane tes 15

a

---

iii

TABLE OF AUTHORITIES

Page

Cases

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) .............. 2

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) ............... 2

Dolan v. City of Tigard, 512 U.S. 374 (1994) ........... 2

Douglas County, Oregon v. Babbitt,

I a i a rk a aha ein kh ane oie 2

Gentile v. State Bar of Nevada,

ee eer eer 8

Keene Corp. v. United States,

EE So's 5 oss do's 0d dw adé ceeasases 2

Liparota v. United States,

i os neh on snnsee ews an bsp we 11

Lucas v. South Carolina Coastal Council,

EDs 6.x.6 s'pinece he eatws koe cde-aee 2

Mills v. United States, 36 F.3d 1052

(11th Cir. 1994), cert. denied,

DPE COUEE GSU GAUiabdets econdecebess 3-4

Moody v. United States, 874 F.2d 1575

EE cu vei bbekbassbaccisctboch vse 7

Morissette v. United States, 342 U.S. 246 (1952) ....... 14

Nollan v. California Coastal Commission,

ES Se 2

Pacific Legal Foundation v. Andrus,

ey ee Gs BED v6 dc cconcssctcccvecce’ 2

iv

TABLE OF AUTHORITIES—Continued

Page

Palazzolo v. Rhode Island, 746 A.2d 707

(R.I.), petition for writ of cert. granted,

No. 2047, 2000 LEXIS 6596 (Oct. 10,2000) ......... 2

Rewis v. United States, 401 U.S. 808 (1971) ........... 13

Roland v. State, 584 So. 2d 68 (Fla. lst DCA 1991)....... 9

Steel Company v. Citizens for a Better

Environment, 523 U.S. 83 (1998) ...........eceeeee 2

Suitum v. Tahoe Regional Planning Agency,

SAR, TR OEEE 0 vs Rv dnnsbhageata cue esac 2

United States v. Mayer, 235 U.S. 55 (1914) ........ 5, 7-9

United States v. Mena, 863 F.2d 1522

CROCE SO bed ndaccncesuintasabastucbentns 11

United States v. Mills, 221 F.3d 1201

COE EE ha RAKE SSS Canned deans heperase 5,9

United States v. Mills, 817 F. Supp. 1546

GR Re EE bows d beds sank sdbesskee 3,10

United States v. Morgan, 346 U.S. 502 (1954) .... 5-7, 9-10

United States v. Riverside Bayview Homes, Inc.,

Pe es ae EE 6 5 ends SN LA CAR Ce da oO 12

United States v. Universal C.I.T. Credit Corp.,

Po RRR Rar anes iy gpa eee 13

United States v. Weitzenhoff,

PPA beset. fe S| eee oy pores 14

Statutes

Be Rn PPO 5 6 on 0 CERES) aS Ee 6-7

Vv

TABLE OF AUTHORITIES—Continued

Page

33 USC. § 403, Of 008) isos cccsekisien ieee 3

SOF chvka vane sounacecneseeenc aca el ieee 12

© TAP h OEE 5 ae dncc's ceeds Ress i 3,6

ee i) re errr rrr errr err .. 14

© TSUNA 6 45 nich ee ueeds aia sou ease 4

9 IG a inks cass ceeveiese iene ease 12

BE eee RT ORE SE 4

S ISG «bap dccdecaieedagantieueiienes 12-13

Ge UDA OPO 6 oi kane wa vh awe adekeaetinks Ms

Rules and Regulations

Sepee Cet ae Sc... 1

Ok: i. SF. ee as ccs cas as cubae nace 5

33 CIR. § SAR me Pee: Kvn es 50d cea eed eaees 12

Miscellaneous

Archibold (7th ed., Chitty, 1840 350) ................. 7

Joshua D. Yount, The Rule of Lenity and

Environmental Crime, 1997 U. Chi.

FEA gh. 2 errr rrr reer Ter cere 11, 13

Kevin A. Gaynor, Thomas R. Bartman,

Criminal Enforcement of Environmental

Laws, 10 Colo. J. Int’]. Envtl. L. & Pol’y 39

SR... Seem en, gn pam mpd j4

INTEREST OF AMICUS CURIAE'

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Founded in 1973, PLF provides a voice in the

courts for mainstream Americans who believe in limited

government, private property rights, individual freedoms, and

free enterprise.

This case arises from an increasing tendency by

government agencies to invoke criminal statutes to coerce,

compel, or redress conduct arising from activities which would

have in former times been considered, at most, civil wrongs.

Indeed, the conduct which provided the basis for what is all but

conceded to have been a misguided criminal prosecution in this

case would not have been of interest to any agency--federal or

State--a scant few years ago. Yet, as will be shown below,

government agencies recently have not only exhibited an

insatiable interest in enlarging their regulatory regimes, but

have also reinforced that expanded authority with the veiled

threat of criminal liability.

As if to underscore these proclivities, federal agencies

today increasingly utilize another device to increase their sway

upon the body politic, namely adopting regulatory

interpretations that go well beyond the plain meaning and intent

of the statutory authority conferred on them by Congress. The

confluence of this penchant for expansion, aggressive

interpretation, and the deployment of criminal process where it

has heretofore not been envisioned creates a significant

potential for citizen harm without any concomitant social or

community good, as the facts of this case demonstrate. In a case

' Pursuant to Supreme Court Rule 37.6, Amicus Curiae Pacific Legal

Foundation affirms that no counsel for any party in this case

authored this brief in whole or in part; and, furthermore, that no

person or entity has made a monetary contribution specifically for

the preparation or submission of this brief.

2

in which the results defy common sense and centuries of

English and American legal tradition, two citizens of this

country not only suffer convictions of crimes of which they are

in all likelihood not guilty, but also find themselves time-

- barred, through no fault of their own, from contesting error of

the most fundamental character that infected the trial that

resulted in those convictions. Although exhibiting considerable

discomfort with the result, the Eleventh Circuit Court of

Appeals upheld these convictions on the basis of what it

considered to be binding precedent of this Court.

PLF has participated in numerous cases involving the

interpretation of federal laws. For example, PLF was a party of

record in Pacific Legal Foundation v. Andrus, 657 F.2d 829

(6th Cir. 1981). PLF also participated as amicus curiae in this

Court in the Steel Company v. Citizens for a Better

Environment, 523 U.S. 83 (1998); Douglas County, Oregon v.

Babbitt, 516 U.S. 1042 (1996); and Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984).

Pacific Legal Foundation attorneys have also represented

property owners like the petitioners before this Court when

regulatory agencies have taken rights in property without the

payment of just compensation, see, e.g. Palazzolo v. Rhode

Island, 746 A.2d 707 (R.L.), petition for writ of cert. granted,

No. 2047, 2000 LEXIS 6596 (Oct. 10, 2000), Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997), and Nolian v.

California Coastal Commission, 483 U.S. 825 (1987). In

addition, Pacific Legal Foundation has participated as amicus

curiae in almost all of the major Takings Clause cases before

this Court in the past 20 years. See, e.g., Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992); Keene Corp.

v. United States, 508 U.S. 200 (1993); Dolan v. City of Tigard,

512 U.S. 374 (1994); and City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999). PLF attorneys have

also previously appeared in this case as cocounsel on issues

Seeeeerenmeiaaaasitiiiiiiaiaiiiiiiaiiiaiiiiails

3

which have been previously resolved, Mills v. United States, 36

F.3d 1052 (11th Cir. 1994), cert. denied, 514 U.S. 1112 (1995).

PLF submits that because of its considerable experience

protecting civil rights including property rights before this

Court, its participation here will add a valuable and unique -

perspective that will assist this Court’s consideration of this

case.

STATEMENT OF THE CASE

This case arises out of the 1989 felony convictions of a

father and son, Ocie and Carey Mills, on five counts of

“discharging pollutants into the navigable waters of the United

States” in violation of the Clean Water Act, 33 U.S.C. § 1251,

et seq., and one count of unlawfully excavating a canal in the

navigable waters of the United States, in violation of the Rivers

and Harbors Act, 33 U.S.C. § 403, ef seg. Petitioner’s

Appendix B at 11. The Millses’ offense was the dumping of

clean sand on a plot of subdivided dry land owned by them that

the United States Corps of Engineers deemed to be a “wetland.”

United States v. Mills, 817 F. Supp. 1546, 1548 (N.D. Fla.

1993). For at least the last 22 years, since the Millses’ property

was subdivided, the land has not been wet beyond that which

might briefly obtain after a Florida rainstorm--“it had no

standing water on it, nor did it appear to be a marsh, swamp, or

bog.” Id.? The Millses bought the property in 1986. Jd.

at 1549.

This case has a lengthy and tortured procedural history.

See Petitioners’ Statement of the Case. However, during the

? The property was described by the trial judge, who in 1991 viewed

the property as part of a proceeding on a petition to enforce the

conditions of a supervised release because of alleged failure of the

petitioners to comply with a site restoration plan as being “mostly

wooded, with large pine, oak, gum, bay, and magnolia trees, as well

as lots of smaller trees and shrubs.” Jd.

4

course of one of the proceedings, it became apparent that at the

time of the alleged offenses by the Millses, the subject land was

probably not a “wetland” within the meaning of the Clean

Water Act. Jd. at 1548. In fact, any characteristics of the land

under which it could have been so classified had been effaced

long before the Clean Water Act Regulations on which the

Millses were convicted became effective. Jd.

The Milles were so incredulous that they could be

prosecuted for placing clean fill on their own dry land, that they

represented themselves without the benefit of counsel in their

1989 jury trial. Mills v. United States, 36 F.3d at 1056 n.6.

Nevertheless, they were convicted, sentenced to 21 months in

jail, 1 year of supervised release, and fined $5,000, as well as

being required to comply with a site restoration plan.’

On April 11, 1996, Petitioners filed a petition for writ of

error coram nobis contending that they were entitled to a new

trial based upon juror misconduct. Attached as an exhibit to the

petition is an affidavit of Quentin Wise, a member of the jury

that convicted the defendants. The affidavit recites that

Mr. Wise contacted Ocie Mills by telephone on March 3, 1996,

after watching a television program where Mr. Mills was

describing his grievances. Mr. Wise stated that the foreman of

the jury, Thomas J. Smith, had given the jury unfavorable

information about the Millses’ that had not been introduced into

evidence at trial. According to the affidavit, the source of the

information was Mr. Smith’s son, who worked for the State of

Florida Water Management. The affidavit states that the jury

foreman had repeatedly told the jury that Ocie Mills had prior

cases, that Mr. Mills had threatened environmental regulators

> The knowing discharge of pollutants, without a permit, into the

“navigable waters of the United States” is punishable by a fine of

between $5,000 and $50,000, and imprisonment for not more than

three years. 33 U.S.C. § 1319(c){(2). Sand is a “pollutant” under the

Clean Water Act. 33 U.S.C. § 1362(6).

5

on his property with a gun, and that if Mr. Mills were found

guilty, he would not be sentenced to a prison term and would

only have to remove soil from his property. Mr. Wise also

stated that he felt intimidated by Mr. Smith. Petitioner’s

Appendix B at 12; United States v. Mills, 221 F.3d 1201, 1203

(11th Cir. 2000).

The government in this case recognizes that no other

remedy is available to the Millses on the facts stated and that

the Millses have presented sound reasons for failing to seek

relief earlier. Jd at 1204 n.4. Nevertheless, the government

contends that a writ of error coram nobis is unavailable to the

Millses on the basis of this Court’s reasoning in United States

v. Mayer, 235 U.S. 55, 69 (1914), that “[i]n cases of prejudicial

misconduct in the course of the trial, the misbehavior or

partiality of jurors, and newly discovered evidence, as well as

where it is sought to have the court in which the case was tried

reconsider its rulings, the remedy is by a motion for a new

trial... .”* Thus, the government contends that the Millses’

application for a writ is time-barred since the time to file a

motion for a new trial has passed. The Millses contend, to the

contrary, that the jury misconduct alleged is of such funda-

mental character that the writ should issue.

SUMMARY OF THE ARGUMENT

Certiorari should be granted in this case because the

decision of the Eleventh Circuit Court of Appeals below,

United States v. Mills, 221 F.3d 1201, directly and

irreconcilably conflicts with this Court’s decision in United

* Rule 33, Fed. R. Crim. P. provides that a court may grant a new

trial based upon newly discovered evidence, but only if made within

three years of the verdict. At the time the Millses were convicted,

the time limit was two years. Rule 33, Fed. R. Crim. P. Advisory

Committee Notes, 1998 Amendments. These deadlines had both

passed before the Millses learned of the facts which form the basis

for their writ of error coram nobis.

6

States v. Morgan, 346 U.S. 502 (1954). Certiorari is especially

warranted here by the additional fact that the convictions at

issue are based upon constitutionally questionable extensions of

criminal liability under the Clean Water Act that, together with

similar extensions in other environmental statutes, have

increasingly resulted in the criminalization of conduct of

citizens of the United States which formerly would have been

treated as, at most, civil wrongs.

Ocie and Carey Mills were convicted in 1989 of five

felony counts of discharging pollutants into the navigable

waters of the United States in violation of the Clean Water Act,

33 U.S.C. § 1251, et seg. In 1993, factual and legal investi-

gation resulting from a requirement that they restore the

property demonstrated that the Millses were in all likelihood

never guilty of the crimes with which they were charged. In

1996, the Mills additionally discovered that their fundamental

right to a trial by a fair and impartial jury under the Sixth

Amendment to the United States Constitution had been

violated. The Millses did not know or have reason to know of

the juror misconduct prior to 1996. Despite the existence of

this error, the Eleventh Circuit Court of Appeals declined to

allow the issuance of a writ of error coram nobis, the only

remedy available to them some ten years after their erroneous

convictions.

A writ of error coram nobis is an extraordinary remedy of

last resort which emanates from the all writs section of the

Judicial Code, 28 U.S.C. § 1651(a). The writ may issue only

under compelling circumstances involving error of the most

fundamental character, which renders the proceeding itself

irregular and invalid. This Court should reverse the decision of

the Eleventh Circuit Court of Appeals and permit the granting

of the writ on the compelling circumstances of this case.

_—

7 2

ARGUMENT

I

THE DECISION OF THE

ELEVENTH CIRCUIT COURT OF

APPEALS CONFLICTS WITH THE DECISION

OF THIS COURT IN UNITED STATES v. MORGAN

A writ of error coram nobis is an extraordinary remedy of

last resort. While no one doubts the availability of the writ in

English common law, Archibold (7th ed., Chitty, 1840 350,

389), it has been questioned whether the writ continued to exist

in modern criminal jurisprudence in the United States. In 1954,

this Court squarely addressed and settled the issue, holding that

a writ of error coram nobis was an available post-judgment

ground for relief, but only under very limited circumstances.

United States v. Morgan, 346 U.S. 502.

The power to issue the writ emanates from the all-writs

section of the Judicial Code, 28 U.S.C. § 1651(a). Jd. at 506.

It has been said that the writ may issue only under “[s]uch

compelling circumstances . . . involv[ing] a matter of fact of the

most fundamental character which has not been put in issue or

passed upon and which renders the proceeding itself irregular

and invalid.” Moody v. United States, 874 F.2d 1575, 1576

(11th Cir. 1989) (citing United States v. Mayer, 235 U.S. at 69).

In Mayer, the United States Supreme Court was asked to grant

a writ of error coram nobis to consider allegations that a

criminal conviction was improvidently obtained through

prosecutorial misconduct and undisclosed juror bias. Mayer

235 U.S. at 58. While expressing no opinion on whether a writ

of error coram nobis was available in modern American

jurisprudence, the Court reasoned that even if it was, it could

only be invoked to remedy error of the most fundamental

character. The Court stated:

[E]ven if it be assumed that in the case of errors in

certain matters of fact, the district courts may

ee

8

exercise in criminal cases--as an incident to their

powers expressly granted--a correctional jurisdiction

at subsequent terms analogous to that exercised at

common law on writs of error coram nobis, as to

which we express no opinion, that authority would

not reach the present case. This jurisdiction was of

limited scope; the power of the Court thus to vacate

its judgments for errors of fact existed, as already

stated, in those cases where the errors were of the

most fundamental character, that is, such as

rendered the proceeding itself irregular and invalid.

Mayer, 235 U.S. at 69 (emphasis added, citation omitted).

One might think that violation of one’s Sixth Amendment

right to “enjoy the right to a trial . . . by an impartial jury”

would fall squarely into that category of cases requiring the

issuance of a writ. This Court has characterized this right as

one of the few most furlamental interests guaranteed by the

Constitution. Gentile v. State Bar of Nevada, 501 U.S. 1030,

1075 (1991). However, in Mayer, Chief Justice Hughes on

behalf of the Court stated in arguably overly sweeping terms

that a writ would be unavailable for either “misbehavior or

partiality of jurors.” Mayer, 235 U.S. at 69. The Court stated:

In cases of prejudicial misconduct in the course of

the trial, the misbehavior or partiality of jurors and

newly discovered evidence, as well as where it is

sought to have the court in which the case was tried

reconsider its rulings, the remedy is by motion for a

new trial.

Mayer, 235 U.S. at 69.

Although the district court judge granted the writ,

apparently placing little weight on the sweeping language in

Mayer, the Eleventh Circuit Court of Appeals reversed, finding

9

itself compelled to follow Mayer. However, even they were

uncomfortable with the result they felt bound to reach:

We understand why the district court might consider

juror misconduct to be an error of the most

fundamental character. Were we writing on a clean

slate, we might agree.

United States v. Mills, 221 F.3d at 1205.

Although juror misbehavior whether by concealment of

bias during voir dire or misconduct in the jury room through

introduction of extra-judicial statements or evidence not

received during the course of trial are serious offenses, PLF

submits that Mayer is distinguishable on its facts. The issue in

that case appears to have been one of extant juror bias that was

either not discovered or not divulged during voir dire, but

which theoretically could have been discovered. In the instant

case, no amount of effort by the Millses could have revealed the

error of which they complain.’

On the other hand, the decision of the Eleventh Circuit

Court of Appeals below directly and irreconcilably conflicts

with United States v. Morgan, 346 U.S. 502. In Morgan, this

Court affirmed the issuance of a writ of error coram nobis

where it appeared that the respondent Morgan had been

convicted in violation of his constitutional right to be provided

counsel. Morgan, 346 U.S. at 503. Ocie and Carey Millses’

Sixth Amendment right to jury trial is no less important than

> In fact, Fla. Bar Code Prof. Resp. D.R. 4-3.5(d) prohibits a lawyer

in Florida from communicating with jurors after a verdict unless the

lawyer has grounds to believe that the verdict may be subject to legal

challenge based upon juror misconduct. Thus, counsel for the

Millses was legally prohibited from initiating an investigation of the

jury room misconduct which ultimately came to the attention of

Ocie Mills. See also Roland v. State, 584 So. 2d 68 (Fla. Ist DCA

1991).

10

Morgan’s Sixth Amendment right to counsel which was at issue

in Morgan. Just as Morgan was entitled to a writ to protect that

right, so also are Ocie and Carey Mills entitled to a writ here to

vindicate their Sixth Amendment right to trial by an impartial

jury. :

Il

WRIT OF CORAM NOBIS IS

PARTICULARLY JUSTIFIED BECAUSE

THE MILLSES’ CONVICTIONS WERE NOT

ONLY TAINTED BY JUROR MISCONDUCT,

BUT WERE BASED UPON INNOCENT

CONDUCT THAT TRADITIONALLY HAS

BEEN CONSIDERED PERFECTLY LEGAL

The importance of this case should be apparent. This case

arises because a father and son spent 21 months in prison, a

year of supervised release, and paid significant fines for

engaging in conduct that is now all but conceded to have been

lawful conduct by them on their own property. United States v.

Mills, 817 F. Supp. at 1548. Such a set of facts, where parties

are first convicted of violating the law on the basis of conduct

that was innocent and probably legal, only later to find that their

convictions were also tainted by blatant jury misconduct, should

cause outrage in anyone concerned about personal liberty in this

country. But beyond outrage, the facts of this case fashion an

additional, unique prism which supports the grunting of

certiorari in this case. :

As recognized by the district judge at one point during the

course of this saga, “[t]his case presents the disturbing

implications of the expansive jurisdiction which has been

assumed by the United States Army Corps of Engineers under

the Clean Water Act.” Jd. The Millses were incarcerated for

dumping clean sand on land owned by them that was not “wet”

in any ordinary sense of the word. At the time of the alleged

offense, the land was most probably not even a “wetland”

within the Corps’ perversion of the term contained in the

*

EE

11

regulatory hydra of the Clean Water Act. In short, the Millses

were convicted based upon a counter-intuitive application of a

regulatory definition promulgated not by Congress, but rather

by the United States Corps of Engineers during the course of a

rulemaking process ordinarily employed for regulatory rather

than criminal purposes.°

Since 1970, the federal government has dramatically

increased its regulatory and enforcement activity. Joshua D.

Yount, The Rule of Lenity and Environmental Crime, 1997 U.

Chi. Legal F. 607 (1997). Up until the 1980’s, however, these

statutes were commonly enforced through civil enforcement

procedures and the penalties imposed were rather mild. /d. at

608. However,

[i]n the 1980s and early 1990s Congress significantly

enhanced criminal provisions in the nation’s

environmental laws. It introduced new, more serious

crimes and stiffened penalties across the board.

Now, most violations are felonies with accordingly

significant fines and prison sentences. Congress also

enacted a pair of laws that bestowed greater

resources and powers on the EPA to enforce

environmental laws criminally. Furthermore, the

Federal Sentencing Guidelines, enacted in 1987,

contain specific provisions for environmental crimes

and make prison sentences considerably more likely.

Id. at 608-09 (footnotes omitted).

® This raises additional constitutional questions. See United States v.

Mena, 863 F.2d 1522, 1527 (11th Cir. 1989) (In order to be valid, a

penal law must provide a “sufficiently definite warning as to the

proscribed conduct when measured by common understanding and

practices.”); Liparota v. United States, 471 U.S. 419, 424 (1985)

(The penal laws of the United States are creatures of Congress and

required to be so under constitutional separation of powers.).

12

The trend toward criminal enforcement of environmental

laws has serious potential consequences for ordinary citizens

who merely wish to know and abide by the law, because

environmental laws are notoriously ambiguous. For example,

the Clean Water Act, which the Millses stand convicted of

having violated, prohibits the discharge of fill or dredged

material into navigable waters (33 U.S.C. § 1344) without the

issuance of a permit pursuant to 33 U.S.C. § 404. Section 1344

also refers to these navigable waters as waters of the United

States. Thus, an ordinary citizen wishing to exercise care

might reasonably ask whether all wetlands wherever located are

subject to the prohibition?’ If so, what constitutes a wetland?

Does a dry lot qualify that has vegetation sometimes found in

wetland areas, but which has no standing water, or hydric

soils?* And for that matter, since section 404 only applies if a

pollutant is added to the wetlands from a “point source,” is a

” In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121

(1985), this Court ruled that wetlands adjacent to navigable waters

qualify, but did not address isolated wetlands

* The Corps of Engineers has defined by regulation wetlands to

mean “[t}]hose areas that are inundated or saturated by surface or

ground water at a frequency and duration sufficient to support, and

that under normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs and similar

areas.” 33 C.F.R. § 328.3(8\(b) (1998). The Corps of Engineers has

also drafted an entire technical manual to help scientists define a

jurisdictional wetland. See 1987 Wetland Delineation Manual,

Wetlands Research Program Technical Report Y-87-1.

® The Act defines “point source” as

any discernable, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, rolling

(continued...)

13

human being, such as Ocie Mills, a point source when he is.

spreading sand on his lot? Apparently, these ambiguities had

no dissuading impact on the government’s decision to prosecute

the Millses.'° However, ambiguities such as these leave

“significant discretion to courts, prosecutors, and bureaucrats to

resolve textual uncertainty [in the laws]” well beyond that

existing in the usual criminal prosecution. Joshua D. Yount,

The Rule of Lenity and Environmental Crime, 1997 U. Chi.

Legal F. at 608. Discretion of such breadth provides the leeway

for the government to define an offense after the conduct has

occurred, an idea which should be as repulsive to a person

interested in ordered liberty as the introduction of extraneous

evidence into a jury room.

Despite these ambiguities, the harsh and unyielding hand

of criminal prosecution continues. EPA referrals of criminal

cases to the Justice Department have steadily and dramatically

increased from 20 in fiscal year 1982 to 107 in 1992 to a record

278 in 1997. Criminal fines in fiscal year 1997 were a record

$169.3 million. In fiscal year 1996, 221 defendants were

° (...continued)

stock, concentrated animal feeding operation, or vessel

or other floating craft, from which pollutants are or may

be discharged. This term does not include agricultural

stormwater discharges and return flows from irrigated

agriculture.

33 U.S.C. § 1362(14).

'© This Court has frequently admonished that “ambiguity concerning

the ambit of criminal statutes should be resolved in favor of lenity.”

Rewis v. United States, 401 U.S. 808, 812 (1971). See also United

States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952)

(“{W]hen choice has to be made between two readings of what

conduct Congress has made a crime, it is appropriate, before we

choose the harsher alternative, to require that Congress should have

spoken in language that is clear and definite.”).

14

criminally charged with environmental offenses, and indivi-

duals were sentenced to 1,116 months in prison. Kevin A.

Gaynor, Thomas R. Bartman, Criminal Enforcement of

Environmental Laws, 10 Colo. J. Int’!. Envtl. L. & Pol’y 39, 40

(Winter, 1999). At the same time amendments to the statutes

have expanded the scope of criminal liability by introducing ;

lower or no intent crimes, such as the recent criminalization of

merely negligent conduct under the Clean Air and Clean Water

Acts. 42 U.S.C. § 7413(c)(4); 33 U.S.C. § 1319(c)(1). Some

courts have also provided aid and comfort to the expansion of

criminal liability by interpreting violations of environmental

statutes to be “public welfare offenses.” In such cases, the

government is allowed to do away with the presumption of

innocence and apply strict criminal liability by not having to

establish any mens rea. See United States v. Weitzenhoff, 35

F.3d 1275, 1283-84 (9th Cir. 1994).

The expansion of criminal liability under the federal

environmental laws coupled with the lowering of the bar for

convictions and rising penalties creates complicated issues of

culpability for those accused of running afoul of environmental

laws. As the grounds for criminal liability for violations of

complex and ambiguous laws expand, ordinary citizens run an

increasing risk of criminal conviction for wholly innocent

conduct. The imposition of criminal penalties under these

circumstances, especially where there is no criminal intent, is

incompatible with a free society. See Morissette v. United

States, 342 U.S. 246, 252 (1952) (“wrongdoing must be

conscious to be criminal”).

The Millses unfortunately fell into this very trap. They

were subjected to criminal penalties for placing clean sand on

their dry land. The United States Army Corps of Engineers

interpreted this action to violate the Clean Water Act’s less than

obvious provisions prohibiting the discharge of fill into

navigable waters without a permit. They were not even

afforded a fair trial free of jury misconduct. Their

a eee

15

circumstances rise to the level of “an error of law of the most

fundamental character.” The Court should grant the writ of

certiorari, address this important issue, and reverse the lower

court.

+

CONCLUSION

Ocie and Carey Millses stand convicted of crimes in a trial

infected with fundamental error that they did not and could not

have reasonably discovered before the time had passed for them

to seek relief under the normally employed statutes and

procedures. Moreover, their crimes were based upon the

counter-intuitive application of a constitutionally questionable,

complex environmental regulatory scheme promulgated not by

Congress, but rather by a federal agency. This scheme puts

ordinary citizens at risk for criminal prosecution based upon

innocent conduct that has traditionally been considered

perfectly legal and noncriminal. PLF submits that this case

presents compelling circumstances for the issuance of a writ of

error coram nobis and that the lower court’s failure to approve

a grant of such a writ conflicts with the settled law of this

Court.

DATED: December, 2000.

Respectfully submitted,

JAMES S. BURLING FRANK A. SHEPHERD

Pacific Legal Foundation Counsel of Record

10360 Old Placerville Road Pacific Legal Foundation

Suite 100 P.O. Box 522188

Sacramento, California 95827 Miami, Florida 33152

Telephone: (916) 362-2833 Telephone: (305) 499-9807

Facsimile: (916) 362-2932 Facsimile: (305) 715-9779

Counsel for Amicus Curiae

Pacific Legal Foundation