Petition for Writ of Certiorari — Eschenbach v. United States (Nos. 07-1287, 07-1286)

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Supreme ¢ U.S.

071287 APR1 4 2008

OFFICE OF THE CLERK

No. 07:

IN THE

Supreme Court of the United States

HENRY A. ESCHENBACH, ET AL.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI BY THE

INDIVIDUAL DEFENDANTS

Mike Milodragovich Jeremy Maltby

W. Adam Duerk (Counsel of Record

MILODRAGOVICH, DALE, Carolyn Kubota

STEINBRENNER & BINNEY Shannon Keast

620 High Park Way Justin Ford

Missoula, MT 59806 O’MELVENY & MYERS LLP

(406) 728-1455 400 S. Hope Street

Los Angeles, CA 90071

(213) 430-6000

Counsel for Defendant-Petitioner Jack W. Wolter

(Additional counsel listed on inside cover)

Ronald F. Waterman

' GOUGH, SHANAHAN,

JOHNSON & WATERMAN

33 South Last Chance

Gulch

Helena, MT 59601

(406) 442-8560

David S. Krakoff

Gary A. Winters

David M. Gossett

James T. Parkinson

MAYER BROWN LLP

1909 K Street NW

Washington, DC 20006

(202) 263-3000

Counsel for Defendant-Petitioner Henry A.

Eschenbach

Palmer Hoovestal

HOOVESTAL LAW FIRM,

PLLC

P.O. Box 747

Helena, MT 59624

(406) 457-0970

Elizabeth Van Doren

Gray

SOWELL, GRAY, STEPP, &

LAFFITTE, LLC

P.O. Box 11449

Columbia, SC 29211

(803) 929-1400

William A. Coates

ROE CASSIDY COATES &

PRICE, PA

P.O. Box 10529

Greenville, SC 29603

Counsel for Defendant-Petitioner William J. McCaig

Brian Gallik

GOETZ, GALLIK &

BALDWIN, P.C.

P.O. Box 6580

Bozeman, MT 59771

(406) 587-0618

Thomas C. Frongillo

WEIL, GOTSHAL &

MANGES LLP

100 Federal St. 34th

Floor

Boston, MA 02111

(617) 772-8335

Vernon S. Broderick

WEIL, GOTSHAL &

MANGES LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8730

Counsel for Defendant-Petitioner Robert J. Bettacchi

C.J. Johnson

KALKSTEIN LAW FIRM

P.O. Box 8568

Missoula, MT 59807

(406) 721-9800

Stephen A. Jonas

Robert Keefe

WILMER CUTLER

PICKERING HALE AND

DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6144

Counsel for Defendant-Petitioner O. Mario Favorito

Catherine A Laughner Stephen R. Spivack

Aimee M. Grmoljez BRADLEY ARANT ROSE &

BROWNING KALECZYC WHITE LLP

BERRY & HOVEN P.C. 1133 Connecticut Ave.

P.O. Box 1697 NW.

Helena, MT 59624 Washington, DC 20036

(406) 443-6820 (202) 393-7150

David E. Roth

BRADLEY ARANT ROSE &

WHITE LLP

One Federal Place

1819 Fifth Avenue North

Birmingham, AL 35203

(205) 521-8000

Counsel for Defendant-Petitioner Robert C. Walsh

QUESTIONS PRESENTED

1. Whether a criminal defendant’s presumed

subjective knowledge is a relevant factor for a court

assessing both whether a criminal statute provides

fair warning of the prohibited conduct and whether

statutory ambiguity requires application of the rule

of lenity.

2. Whether 18 U.S.C. § 3288, which specifically

precludes re-indictment following a dismissal on

statute of limitations grounds, prohibits’. the

government from seeking a new indictment that

attempts to rectify a statute of limitations violation

in the initial indictment.

PARTIES TO THE PROCEEDING

Petitioners are Henry A. Eschenbach, Jack W.

Wolter, William J. McCaig, Robert J. Bettacchi, O.

Mario Favorito, and Robert C. Walsh, the defendant-

appellees below.

Respondent is the United States of America,

plaintiff-appellant below.

Defendant-appellee W.R. Grace, Inc. files its

petition for certiorari separately today.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

APPENDIX CONTENTS

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS AND JUDGMENTS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

A. Factual and Regulatory Background

B. Proceedings Below

REASONS FOR GRANTING THE WRIT

I. The Ninth Circuit Departed From This Court’s

Settled Precedent By Erroneously Using A

Defendant's Subjective Knowledge In Assessing

Whether An Ambiguous Statute Provides Fair

Notice And Whether The Rule of Lenity

Should Apply

A. The Ninth Circuit’s Application of the Fair

Notice Doctrine and the Rule of Lenity

Conflicts With This Court’s Established

Precedents

B. The Ninth Circuit’s Approach Cenflicts

. With Decisions Of Other Courts

of Appeals

II. Certiorari Is Also Warranted To Correct The

Ninth Circuit's Erroneous Interpretation of

18 U.S.C. § 3288

A. The Ninth Circuit Ignored § 3288's Plain

B. The Ninth Circuit’s Interpretation

Destroys Statutory Repose for Criminal

Defendants

CONCLUSION

APPENDIX CONTENTS

APPENDIX A: Court of Appeals Opinion................ la

APPENDIX B: Denial or Rehearing En Banc ....... 43a

APPENDIX C: District Court Opinion - Order

On Motions in Lamime .............ccccccoscscccccsccesccsesse Aida

APPENDIX D: District Court Opinion - Order

on Motion to Dismiss Count 1 of the

Superseding Indictment.........................cceseseeees 66a

APPENDIX E: District Court Opinion - Order

on Motion to Dismiss Count 1 of the

RN ii ceirebsin al dcaninra Aicbeiibeletiorncescvensnieapee’ 84a -

APPENDIX F: Superseding Indictment..............

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978)

Boute v. City of Columbia,

378 U.S. 347 (1964)

Krulewitch v. Umied States,

336 U.S. 440 (1949)

McBoyle v. United States,

283 U.S. 25 (1931)

Toussie v. United States,

397 U.S. 112 (1970)

United States v. Blaszak,

349 F.3d 881 (6th Cir. 2003)

United States v. Carpenter,

422 F.3d 738 (8th Cir. 2005)

United States v. Councilman,

418 F.3d 67 (1st Cir. 2005)

United States v. Crawford,

60 F. App’x 520 (6th Cir. 2003)

United States v. Cullen,

499 F.3d 157 (2d Cir. 2007)

United States v. Drucker,

453 F. Supp. 741 (S.D.N.Y. 1978)

United States v. Fisher,

289 F.3d 1329 (11th Cir. 2002)

United States v. Introcaso,

506 F.3d 260 (3d Cir. 2007)

United States v. Kay,

513 F.3d 432 (6th Cir. 2007)

United States v. Lanier,

520 U.S. 259 (1997)

United States v. Levine,

658 F.2d 113 (3d Cir. 1981)

United States v. Lim,

444 F.3d 910 (7th Cir. 2006)

United States v. Lund,

853 F.2d 242 (4th Cir. 1988)

United States v. Macklin,

535 F.2d 191 (2d Cir. 1976)

United States v. Michel,

446 F.3d 1122 (10th Cir. 2006)

United States v. Milstein,

401 F.3d 53 (2d Cir. 2005)

United States v. West,

393 F.3d 1302 (D.C. Cir. 2005)

Constitutional Provisions

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Page(s)

Statutes

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Clean Air Act Amendments of 1970,

Pub. L. No. 91-604, 84 Stat. 1676

Clean Air Act Amendments of 1990,

Pub. L. No. 101-549,

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Regulations

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38 Fed. Reg. 8,829 (Apr. 6, 1973) ............c.. ce ceeeee seen 10

Other Authorities

Comments of NIOSH on the MSHA Proposed

Rule on Asbestos Exposure Limits, |

Nene. cenacceneersccasens i3

“What is Asbestos?”

http://www.epa.gov/oppt/asbestos/pubs/asbe.pdf.10

Mark Germine & John Puffer, Abstract, Winchite

and Crocidolite Asbestos in a Historical

Sample of the Libby, Montana Vermiculite

I TI Oe NE vv nedesisnecncccescvsasseverssceioceseees 26

PETITION FOR A WRIT OF CERTIORARI

Petitioners Henry A. Eschenbach, Jack W.

Wolter, William J. McCaig, Robert J. Bettacchi, O.

Mario Favorito, and Robert C. Walsh respectfully

petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS AND JUDGMENTS BELOW

The Ninth Circuit’s decision is reported at 504

F.3d 745 and reprinted in the Appendix (“App.”) at

la. The district court’s relevant orders are reported

at 455 F. Supp. 2d 1122 and 455 F. Supp. 2d 1113

and are reprinted at App. 45a, 66a, and 84a,

respectively.

JURISDICTION

The Ninth Circuit rendered its decision on

September 20, 2007, 504 F.3d 745, and, on December

5, 2007, denied timely petitions for rehearing en

banc. App. 48a. On February 14, 2008, Justice

Kennedy granted petitioners’ application to extend

the time in which to petition this Court for certiorari

until April 14, 2008. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The criminal provisions of the Clean Air Act

provide in relevant part:

Any person who knowingly releases into

the ambient air any hazardous air

pollutant listed pursuant to section 7412

of this title . . . and who knows at the

time that he thereby places another

person in imminent danger of death or

serious bodily injury’ shall, upon

conviction, be punished by a fine under

Title 18, or by imprisonment of not more

than 15 years, or both. Any person

committing such violation which is an

organization shall, upon conviction

under this paragraph, be subject to a

fine of not more than $1,000,000 for each

violation.

42 U.S.C. § 7413(c)(5)(A).

The civil provisions of the Clean Air Act provide

in relevant part:

(b) List of pollutants

(1) Initial list

The Congress establishes for purposes of

this section a list of hazardous air

pollutants as follows:

CAS number Chemical name

5d te ¥

1332214 Asbestos

* * *

(1) In general

Not later than 12 months after

November 15, 1990, the Administrator

shall publish, and shall from time to

time, but no less often than every 8

years, revise, if appropriate, in response

to public comment or new information, a

list of all categories and subcategories of

major sources and area sources (listed

under paragraph (3)) of the air

pollutants listed pursuant to subsection

(b) of this section. .

(2) Requirement for emissions standards

For the categories and subcategories the

Administrator lists, the Administrator

shall establish emissions standards

under subsection (d) of this section,

according to the schedule in this

subsection and subsection (e) of this

section.

(3) Area sources

The Administrator shall list under this

subsection each category or subcategory

of area sources which the Administrator

finds presents a threat of adverse effects

to human health or the environment (by

such sources individually or in the

aggregate) warranting regulation under

this section. The Administrator shall,

not later than 5 years after November

15, 1990, and pursuant to subsection

(k)(3)(B) of this section, list, based on

actual or estimated aggregate emissions

of a listed pollutant or pollutants,

sufficient categories or subcategories of

area sources to ensure that area sources

representing 90 percent of the area

source emissions of the 30 hazardous air

pollutants that present the greatest

threat to public health in the largest

number of urban areas are subject to

regulation under this section. Such

regulations shall be promulgated not

later than 10 years after November 15,

1990.

42 U.S.C. § 7412.

The EPA has defined “Asbestos” within the

meaning of § 7214(b) as follows:

Asbestos means_ the _ asbestiform

varieties of serpentinite (chrysotile),

riebeckite (crocidolite), cummingtonite-

grunerite, anthophyllite, and actinolite-

tremolite.

40 C.F.R. § 61.141.

18 U.S.C. § 3288 provides:

Whenever an indictment or information

charging a felony is dismissed for any

reason after the period prescribed by the

applicable statute of limitations has

expired, a new indictment may be

returned in the appropriate jurisdiction

within six calendar months of the date of

the dismissal of the indictment or

information, or, in the event of an

appeal, within 60 days of the date the

dismissal of the indictment or

information becomes final, or, if no

regular grand jury is in session in the

appropriate jurisdiction when _ the

indictment or information is dismissed,

within six calendar months of the date

when the next regular grand jury is

convened, which new indictment shall

not be barred by any statute of

limitations. This section does not permit

the filing of a new indictment or

information where the reason for the

dismissal was the failure to file the

indictment or information within the

period prescribed by the applicable

statute of limitations, or some other

reason that would bar ae new

prosecution.

INTRODUCTION

In this criminal prosecution, the government has

attempted to change settled rules to advance its

case, and the Ninth Circuit has departed from

precedent and logic to accommodate the

government's efforts. The individual petitioners

respectfully submit this separate petition to

underscore two troubling aspects of the Ninth

Circuit’s opinion that apply with particular force to

each of them.

I. The Ninth Circuit’s decision ignores the settled

statutory definition of “asbestos” that has been

accepted by all federal agencies for more than 30

years. In reaching that decision, the Ninth Circuit

applied canons of stat«tory interpretation that

diverge sharply from the precedents of this Court

and every other federal court of appeals. In so doing,

the Ninth Circuit deemed its novel definition clear

and refused to apply the rule of lenity, not on the

basis of statutory text and related guidance, but on

account of its own sweeping assumptions regarding

petitioners’ subjective understanding of a scientific

term in the statute.

Since 1971, all federal agencies have agreed that

the definition of “asbestos” under the civil provisions

of the Clean Air Act (“CAA”) includes six minerals.

Until this case, it has been universally accepted that

the CAA’s criminal provisions applied the same

definition. But to advance this criminal prosecution,

the government claimed for the first time that the

CAA’s criminal provisions provide a broader and

more open-ended definition of asbestos than the one

applicable under the statute’s civil provisions. This

proposed definition reaches two substances—

richterite and winchite—never previously regulated

as asbestos under the CAA.

The Ninth Circuit endorsed the government’s

newly minted definition and, in construing an

ambiguous statute and addressing the due process-

based principles of fair warning and the rule of

lenity, explicitly considered the supposed subjective

knowledge of petitioners. To make matters worse,

the Ninth Circuit made and relied on assumptions

regarding the petitioners’ knowledge and intent on a

record devoid of evidence.

For the reasons explained in petition filed by W.

R. Grace & Co. (“Grace”), the Ninth Circuit’s reading

of the CAA was wrong, and that error threatens a

range of real world consequences requiring this

Court’s immediate review. The Ninth Circuit’s

vague and unfettered definition of “asbestos”

appears to include such common minerals as talc

and to exclude crocidolite, which is one ef the six

regulated asbestos minerals (and the one often

regarded as the most harmful). Although it

represents a new and one-sided split, the Ninth

Circuit's mode of statutory analysis ard ultimate

definition of “asbestos” under the criminal provisions

of the CAA require this Court’s prompt review to

avoid broad consequences beyond this prosecution.

In holding that its novel definition of “asbestos”

was so clear that the petitioners had fair notice of

the criminality of their alleged conduct and that

there was no need to apply the rule of lenity, the

Ninth Circuit relied on its unsupported view of the

petitioners’ subjective knowledge of industrial

chemicals. App. 17a-18a. Not only had the district

court received no evidence on this point, but the

government agency charged with interpreting and

enforcing the CAA had long employed a definition:of

“asbestos” markedly different from the Ninth

Circuit's. For more than 30 years, Congress, EPA,

and other federal agencies had enunciated a single

definition of “asbestos” that excluded richterite and

winchite, the two minerals that comprise 95% of the

material whose alleged “release” forms the principal

basis for the CAA charges in this case.

Under the Due Process Clause, a criminal statute

must provide clear notice of the conduct that it

proscribes in language that the common person can

understand. To implement this constitutional

guarantee, courts have uniformly held that criminal

statutes must provide, in ianguage aimed at the

reasonable person, clear notice of the conduct the

statute prohibits and the consequences of violation.

This Court has explicitly rejected using a defendant’s

subjective knowledge to determine a_ criminal

statute’s scope, Bouie v. City of Columbia, 378 U.S.

347, 348-49 (1964). Consistent with that decision,

every other federal court of appeals has made clear

that a statute must put an objective reader on notice

of what is criminal. The Ninth Circuit’s departure

from this basic rule places criminal defendants

within the circuit on a different footing than those

throughout the rest of the country. The Ninth

Circuit compounded this error by assessing this

irrelevant aspect of the petitioners’ knowledge on an

empty record. By granting review and bringing the

Ninth Circuit in line before trial, this Court will

preserve judicial economy and reduce the burden of

trial on the individual petitioners, all of whom are

over 65 years of age and have been under indictment

since 2005.

II. This Court should also grant certiorari to

correct the Ninth Circuit’s fundamental misreading

of 18 U.S.C. § 3288, which precludes the government

from seeking a superseding indictment when the

original indictment was dismissed on statute-of-

limitations grounds. The Ninth Circuit has read out

of the statute this critical protection and provided

the government with a means of avoiding statutes of

limitations. In the Ninth Circuit, the government

may now bring an untimely indictment, suffer

dismissal on that ground, and then use the six-

month grace period afforded by § 3288 to resuscitate

the time-barred prosecution through a superseding

indictment. Because this aspect of the Ninth

Circuit’s decision denies criminal defendants an

essential protection against untimely prosecutions, it

is unprecedented and fundamentally wrong.

For these reasons and those set forth in Grace’s

petition, this Court should grant certiorari and

reverse the decisions below.

STATEMENT OF THE CASE

A. Factual and Regulatory Background

This case arises from Grace’s operation of a

vermiculite mine in Libby, Montana, from 1963 to

1990. Vermiculite, a mineral that resembles mica

and that expands when heated, is not ordinarily

hazardous itself. However, the vermiculite ore

deposit in Libby contains naturally occurring

mineral impurities, including primarily winchite,

richterite, and tremolite. The government describes

this combination of mineral impurities as “Libby

amphibole.” App. 46a. An analysis of “Libby

amphibole” by the United States Geological Survey

concluded that, “approximately 84% of the

amphiboles can be classified as winchite, 11% as

richterite, and 6% as tremolite.”! See App. 47a.

When Congress amended the CAA in 1970 to

regulate hazardous air pollutants, it directed the

Environmental Protection Agency (“EPA”) to identify

“hazardous air pollutants” and to promulgate

emissions standards for them. See Clean Air Act

Amendments of 1970, Pub. L. No. 91-604, § 4(a) 84

Stat. 1676, 1685 (1970). In 1971, the EPA issued a

proposed rule that established “asbestos” as a

hazardous air pollutant and defined it as “actinolite,

1 Although these numbers amount to 101%, the district court

properly quoted from a supplemental expert witness disclosure;

it appears that the underlying arithmetic error arises from an

issue of rounding.

amosite, anthophyllite, chrysotile, crocidolite,

tremolite.” 36 Fed. Reg. 23,239, 23,242 (Dec. 7, 1971)

(to be codified 40 C.F.R. pt. 61). The final rule

adopting that definition was promulgated in 1973.

38 Fed. Reg. 8,829 (Apr. 6, 1973) (codified at 40

C.F.R. § 61.21). That six-mineral definition,

currently codified at 40 C.F.R. § 61.141, has

remained essentially unchanged since 1973 and has

been adopted by OSHA, MSHA, the CSPC, and even

Congress itself.2. This definition has stood for 35

years as the sole federal regulatory definition of

“asbestos.”3 Of particular importance in this case,

that definition has never included the minerals

richterite or winchite, which comprise approximately

95% of “Libby amphibole.”

In 1990, Congress amended the CAA in

significant respects. For the first time, Congress

specifically identified a list of 189 substances as

“hazardous air pollutants” including “asbestos”—but

not richterite or winchite. Clean Air Act

Amendments of 1990, Pub. L. No. 101-549, Title ITI,

§ 301, 104 Stat. 2399, 2532 codified at 42 U.S.C. §

7412(b). Again, Congress did not create a specific

statutory definition of “asbestos” or any of the other

listed pollutants; rather, it directed that EPA’s

previously promulgated standards were to remain in

2 See 29 C.F.R. § 1910.1001(b) (adopted by OSHA); 30 C.F.R. §

71.702(a) (adopted by MSHA); 16 C.F.R. § 1304.3(b) (adopted

by CPSC); and 40 C.F.R. § 763.163 (adopted by EPA). Congress

similarly defined “asbestos” in the Asbestos Hazard and

Emergency Response Act (“AHERA”), 15 U.S.C. § 2642(3),

enacted in 1986.

3 Currently, EPA’s website uses the six-mineral definition for

its publication “What is Asbestos?’

http://www.epa.gov/oppt/asbestos/pubs/asbe .pdf.

effect. See id., 104 Stat. 2399, 2562, codified at 42

U.S.C. § 7412(q).

Section 7412 itself provides no definition of

“asbestos,” but contains a reference to a Chemical

Abstracts Service (“CAS”) registry number. The

CAS registry is a private database maintained by

the American Chemical Society, a private entity.

The CAS database, which can be accessed only by

paid subscribers, lists particular minerals or mineral

groups, defines their characteristics, and assigns

each a unique number. App. 58a°59a, 61a. The CAS

registry assigns “Asbestos” the number 1332-21-4

and provides the following definition: “A grayish,

noncombustible fibrous material. It consists

primarily of impure magnesium silicate minerals.”

App. 59a_ For each of the six minerals in the EPA’s

definition of asbestos, the CAS entry lists the term

“asbestos” in at least one information field. Jd. In

contrast, the CAS entries for richterite and winchite

contain no references to asbestos. App. 60a.

Also in the 1990 amendments, Congress revised

and supplemented the CAA’s criminal provisions.

Specifically, Congress made it a crime for any party

to “knowingly release[] into the ambient air any

hazardous air pollutant listed pursuant to” 42 U.S.C.

§ 7413(b) while “knowling] at the time that he

thereby places another person in imminent danger of

death or serious bodily injury ....” Jd., Title VII, §

701, 104 Stat. 2399, 2676 codified at 42 U.S.C. §

7413(c)(5)(A). The maximum sentence for a violation

of the “knowing endangerment” provision of the CAA

is 15 years imprisonment. /d.

There have been no pertinent changes to the

underlying civil regulations in well over a decade,

despite discussions, proposed rule-makings, and

congressional hearings on the issue. Notably, in

2001, Kathleen Rest, the Acting Director of the

National Institute for Occupational Safety and

Health’s (“NIOSH”) Center for Disease Control and

Prevention, testified before the United States Senate

that “80 to 90% ... of the fiber contaminant in this

[Libby] vermiculite has been characterized as

several other similar fibers that are not currently

regulated as asbestos, such as winchite and

richterite.” Defs.’ Joint Mot. in Limine on Evid. on

non-“Asbestos” Minerals, Ex. I, Doc. No. CR-05-07-

M-DWN (D. Mont. May 31, 2006) (Docket Entry No.

474). Similarly, in Comments to the Mine Safety

and Health Administration (“MSHA”) on a Proposed

Rule on Asbestos Exposure Limit, NIOSH agreed

with MSHA’s decision not to modify the definition of

asbestos at that time. Comments of NIOSH on the

MSHA Proposed Rule on Asbestos Exposure Limits,

2 (Oct. 13, 2005), available at

http://198.246.98.2 1/niosh/review/public/099/pdfs/As

bestos-msha_final%202005_proposed%20rule.pdf. In

doing so, NIOSH noted that the “regulatory

definition of asbestos should include asbestiform

mineral fibers such as winchite and richterite,” but

acknowledged that the existing definition of asbestos

did not do so. /d.

B. Proceedings Below

1. In February 2005, a federal grand jury in the

District of Montana returned a ten-count indictment

charging Grace and seven former employees with,

among other offenses, (a) violating the criminal

“knowing endangerment” provision of the CAA, 42

U.S.C. § 7413(c)(5)(A), and (b) conspiring over a 26-

year period to: (1) knowingly endanger others by

releasing asbestos into the ambient air, in violation

of the CAA; and (2) defrauding the government in

violation of 18 U.S.C. § 371 by concealing

information about the hazards of asbestos and

impeding the EPA’s efforts to address asbestos

contamination in Libby. App. 122a. Under a tolling

agreement between petitioners and the government,

acts that occurred before November 3, 1999 are time-

barred.

2. Petitioners moved to dismiss the knowing

endangerment object of the conspiracy count as time-

barred because the law requires that the statute of

limitations must be satisfied independently for each

object when the government charges a defendant

with a conspiracy having multiple objects.

Petitioners argued that the indictment failed to

allege any overt acts that were both within the

statute of limitations and in furtherance of the

endangerment object. The district court agreed and

dismissed the knowing endangerment object “as

time-barred.” App. 103a.

3. The government did not appeal from this

decision. Instead, on June 26, 2006, the government

obtained an eight-count Superseding Indictment.

The new indictment reiterated the charge of

conspiracy to defraud and to knowingly endanger, as

well as substantive violations of the CAA. App.

104a-154a.

The superseding indictment is largely identical to

the original indictment,4 with one notable exception.

The government rewrote the conspiracy count to

allege that post-November 3, 1999 conduct not only

furthered the conspiracy to defraud but also caused

releases of asbestos, thereby furthering the

endangerment conspiracy. The conduct described in

the new allegations occurred more than five years

before the filing date of superseding indictment was

filed (June 26, 2006), making the knowing

endangerment object untimely on its face.

4. The district court granted petitioners’

subsequent motion to dismiss the endangerment

conspiracy, holding that, like its counterpart in the

original indictment, this charge was barred by the

applicable statute of limitations. App. 83a. The

district court cited its prior holding that “the reason

for the dismissal” of the knowing endangerment

object in the first indictment was because it was

“time-barred,” as well as the text of 18 U.S.C. § 3288,

which states that the government may not re-indict

“where the| reason for the dismissal was the failure

to file the indictment or information within the

period prescribed by the applicable statute of

limitations, or some other reason that would bar a

new prosecution.” App. 78a. The government then

filed this interlocutory appeal.

¢ As in the original indictment, petitioners Grace, Wolter, and

Bettacchi, and defendant Alan Stringer were charged in the

superseding indictment with substantive violations and with

conspiracy to violate the Clean Air Act, while petitioners

Eschenbach, Walsh, McCaig, and Favorito were included only

in the conspiracy charge. App. 122a, 154a-158a. Mr. Stringer

died while the indictment was pending and has been dismissed

from the case.

i a

5. In the district court, petitioners also

challenged the government's attempt to introduce

evidence of allegedly hazardous releases based on

mineral samples composed principally of two

materials that had never previously been defined as

“asbestos” under the CAA.

The counts charging substantive violations of the

CAA’s “knowing endangerment” provision allege that

petitioners knowingly released or caused the release

of “asbestos” into the ambient air, thereby placing

certain inhabitants of Libby in imminent danger of

death or serious bodily injury. App. 149a-15la. The

Superseding Indictment does not distinguish among

the mineral impurities found in Libby vermiculite

ore but instead refers to them collectively as “Libby

amphibole,” which is_ described as_ asbestos

“composed of a family of closely related minerals

including tremolite, winchite, richterite, actinolite

and others.” App. 105a.

Petitioners moved in limine to exclude expert

testimony based on mineral samples that contained

an undifferentiated mixture of minerals, some of

which are defined as “asbestos” under the CAA and

some of which are not. Petitioners argued that the

definition of “asbestos” for purposes of the criminal

provisions of the CAA derives from the familiar and

longstanding six-mineral definition that Congress

cross-referenced from the EPA’s civil regulations,

which do not include winchite or richterite. See App.

47a. Petitioners claimed that construing the term to

include winchite and richterite would deny them fair

notice, and that the rule of lenity required the

resolution of any ambiguity in their favor. App. 46a-

47a.

Petitioners further argued that government

agency's own interpretations of the definition of

asbestos excluded winchite and richterite- For

example, in a March 2001 e-mail, Susan Kess of the

Agency for Toxic Substance and Disease Registry

explained that Chris Weis of EPA had settled on the

term “Libby amphibole” because “[ilf we call it.

asbestos then the lawyers can say it is not one of the

6 regulated asbestos types.” Defs.’ Joint Mot. in

Limine on Evid. on non-“Asbestos” Minerals, Ex. H,

Doc. No. CR-05-07-M-DWN (D. Mont. May 31, 2006)

(Docket Entry No. 474). Similarly, in a May 2003

internal EPA document entitled Qs & A’s for

Asbestos and Vermiculite, the agency stated that

“[mlost of the fibrous materials which contaminated

the Libby vermiculite are not included in the federal

definition of regulated asbestos.” Jd. at Ex. L.

The government argued that the word “asbestos,”

supplemented by the CAS registry definition of that

term, was a sufficient definition for purposes of the

criminal provisions. App. 6la. The government

further claimed that the regulatory definition of

asbestos promulgated under § 7412(b) was

inapplicable because the Libby mine was not a

regulated source of emissions. App. 58a-59a.

The district court rejected these arguments,

finding that the language in the CAA was

ambiguous and did not provide fair notice as to

which minerals were “asbestos” within the meaning

of the statute. App. 57a-58a. The district court noted

that the CAA’s knowing endangerment provision

“sends an actor in two different directions in search

of the hazardous air pollutant asbestos.” App. 62a.

Explicitly applying an objective standard, the court

found that a “reasonable person who searches both

the CAS registry and the NESHAPs regulations

could fairly conclude that winchite and richterite are

not covered by § 7412(b)(1); neither the statute, the

regulations, or the CAS registry explicitly includes

those materials in the definition of ‘asbestos.” Jd.

(emphasis added). The district court then applied

the rule of lenity, strictly construed the criminal

statute in favor of the defendants, and resolved the

statutory ambiguity by applying the civil

regulations six-mineral definition of “asbestos.”

App. 63a. Based on this definition, the district court

excluded as irrelevant evidence of minerals not .

included in EPA’s regulatory definition.

Because much of the government’s evidence and

surveys simply referred to “Libby amphibole,” the

district court likewise excluded sampling data or

other evidence that did not distinguish among the

minerals. App. 63a°64a. As the district court

explained, the risk of unfair prejudice to petitioners.

would be “intolerable” if the government were:

allowed to elicit testimony that petitioners

“endangered others through the release of a deadly

composite of minerals without stating with any

certainty what percentage of the minerals released

are covered by the criminal statute under which

[petitioners] are charged.” App. 64a.

The district court entered its order on August 8,

2006, approximately one month before trial was

scheduled to begin. The government filed this

interlocutory appeal of that order and several other

pretrial orders August 23, 2006. The district court

stayed the trial pending the resolution of both this

appeal and a prior interlocutory appeal by the

government.

6. On September 20, 2007, in an opinion by

Judge Betty Fletcher, joined by Judges Pregerson

and Ferguson, the Ninth Circuit rejected the district

court's interpretation of both the CAA and § 3288.

App. 42a.

With respect to the CAA interpretation, without

citing even a dictionary definition, the Ninth Circuit

held that it is “well known” that “asbestos has a

common meaning; it is a fibrous, non-combustible

compound that can be composed of several

substances, typically including magnesium.” App.

16a-17a. Citing the CAS registry, the court also

noted that asbestos may be defined as a “grayish

non-combustible material” that “consists primarily of

impure magnesium silicates.” App. 17a. The court

also remarked, without any evidence having been

presented in the case, that “defendants had actual

notice in this case of the risks from the fibrous

content of the asbestiform minerals in their

products” and that “[slince at least 1976, defendants

have known of the health risks posed by asbestiform

minerals in their products. It is clear that

defendants knew or should have known that their

mining, milling, and distribution activities risked

the release of asbestos into the ambient air.” /d.

The Ninth Circuit determined in light of

“defendants’ knowledge of the industrial chemicals

field” that the definition of asbestos was clear, and

petitioners had feir notice that the definition

included richterite and winchite. As a result, the

Ninth Cir. it concluded that the district court’s

interpretation of the statute and invocation of the

rule of lenity was misplaced. App. 18a.

The Ninth Circuit also reversed the district

court’s holding that the government’s effort to file a

superseding indictment concerning the knowing

endangerment object of the conspiracy count was

impermissible under § 3288. App. 13a. The panel

perceived the statute to incorporate a distinction

between charges that are “not timely filed” and those

that are merely “time-barred.” In its view, re-

indictment is prohibited when the initial indictment

was “not timely filed, ie. [] not filed within the

statute of limitations,” id, but permitted when—as

happened here—the district court rules that the

indictment fails to allege an act sufficient to trigger

the running of the statute of limitations within the

applicable limitations period. Despite contrary

language in the district court’s order, the panel

construed that order, which dismissed the first

indictment as a finding that the indictment was

“timely filed.” In the Ninth Circuit’s view, the faulty

endangerment conspiracy count was merely “time-

barred” because it failed to allege an overt act within

the statute of limitations. Hence, the panel held, re-

indictment of that count was proper. /d.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit Departed From This

Court’s Settled Precedent By Erroneously

Using A Defendant's Subjective Knowledge In

Assessing Whether An Ambiguous Statute

Provides Fair Notice And Whether The Rule

of Lenity Should Apply

Grace’s petition sets forth in detail the significant

errors of law and logic that pervade the Ninth

Circuit’s decision. Disregarding the district court’s

careful analysis, the Ninth Circuit erred in

concluding that the term “asbestos” has a different—

and broader—meaning in the criminal provisions of

the CAA than it does in the civil provisions. The

profound and far-reaching consequences of that

erroneous decision alone merit this Court's

immediate review. The individual petitioners write

separately to emphasize that the Ninth Circuit’s

mode of statutory interpretation represents a

dramatic departure from the precedents of this

Court and other federal courts of appeals. The Ninth

Circuit’s consideration of a defendant’s subjective

knowledge when assessing whether an ambiguous

statute provides fair notice to a common person sets

it apart from every court in the country and calls for

prompt reversal. By making assumptions about

that knowledge on an empty record, the Ninth

Circuit placed its approach even farther outside the

judicial mainstream.

A. The Ninth Circuit’s Application of the

Fair Notice Doctrine and the Rule of

Lenity Conflicts With This Court's

Established Precedents

The Due Process Clause requires that criminal

statutes place the public on “fair warning’ that

certain conduct is proscribed and punishable by

law—‘“no man shall be held criminally responsible

for conduct which he could not reasonably

understand to be proscribed.” Bouie v. City of

Columbia, 378 U.S. 347, 351 (1964). The “fair

warning’ requirement includes three _ related

doctrines: vagueness, lenity, and judicial restraint.

United States v. Lanier, 520 U.S. 259, 266-67 (1997).

Under each doctrine, the analysis turns on “whether

the statute, either standing alone or as construed,

made it reasonably clear at the relevant time that

the defendant’s conduct was criminal.” Jd. at 267

(emphasis added).

The three manifestations of fair warning—

vagueness, lenity, and judicial restraint—are rooted

in the perspective of the common person. The

vaguer-cs doctrine prohibits enforcement of “a

statute which either forbids or requires the doing of

an act in terms so vague that men of common

intelligence must necessarily guess at its meaning

and differ as to its application.” Lanier, 520 U.S. at

266 (quoting Connally v. Gen. Constr. Co., 269 U.S.

385, 391 (1926)) (emphasis added). The rule of lenity

“ensures fair warning by so resolving ambiguity in a

criminal statute as to apply it only to conduct clearly

covered.” Jd. at 266. And judicial restraint “bars

courts from applying a novel construction of a

criminal statute to conduct that neither the statute

nor any prior judicial decision has fairly disclosed to

be within its scope.” Jd. Each of these doctrines

shares the goal of providing fair notice to the general

public; none takes into account a defendant’s

subjective knowledge. This Court has previously

recognized the rule of lenity’s applicability to other

criminal provisions of the CAA. See Adamo

Wrecking Co. v. United States, 434 U.S. 275, 284-85

(1978).

The Ninth Circuit’s decision runs afoul of all

three fair warning doctrines. The court did not

consider whether the statute provides fair notice of

the proscribed conduct to “men of common

intelligence” or whether the CAA provides fair

warning “to the world in language that the common

world will understand, of what the law intends to do

if a certain line is passed.” McBoyle v. United

States, 283 U.S. 25, 27 (1931) (Holmes, J.). Rather,

it focused on the subjective, individual knowledge of

the petitioners, and, in so doing, assumed as fact

allegations made by the government. Due process

prohibits such an approach.

This Court has never held that a defendant’s

actual knowledge, much less an _ unsupported

assumption regarding that knowledge, can obviate

the need to apply the rule of lenity to an ambiguous

criminal statute. Indeed, it has held exactly the

opposite. In Boule v. City of Columbia, this Court

addressed the application of a criminal trespass

statute to lunch counter sit-in protests in Columbia,

South Carolina. 378 U.S. at 348-49. The state

argued that the defendants knew their conduct was

unlawful as evidenced by their testimony that they

intended to be arrested. This Court disagreed,

declaring that testimony “irrelevant.” Jd. at 355 n.5.

This Court specifically rejected the analysis applied

by the Ninth Circuit in this case: “The determination

whether a criminal statute provides fair warning of

its prohibitions must be made on the basis of the

statute itself and the other pertinent law, rather

than on the basis of an ad hoc appraisal of the

subjective expectations of particular defendants.” Id.

This Court held that the South Carolina statute did

not provide fair warning to the defendants that their

conduct would be criminal. /d. at 355.

In United States v. Lanier, 520 U.S. 259 (1997),

this Court reaffirmed the objective approach set

forth in Bouie. In Lanier, the Court reviewed the

conviction of a state judge found guilty under 18

U.S.C. § 2425 of acting under color of state law to

deprive several women of their constitutional rights

by sexually assaulting them. This Court considered

whether that statute provided fair notice of the

conduct it makes criminal. Section 242 does not

specify the predicate constitutional rights but

incorporates constitutional law by reference, giving

the law a broad scope. Lanier, 520 U.S. at 265. This

Court found unanimously that the statute provided

fair warning, noting that its analysis parallels the

civil qualified immunity doctrine, which requires

that a constitutional right to be “clearly established.”

Id. at 270. Under either standard—“clearly

established” in the civil context or “fair warning” in

the criminal—an official will be held liable oniy

when “the contours of the right [violated are]

sufficiently clear that a reasonable official would

understand that what he is doing violates that

right.” Jd. (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)) (emphasis added) (internal

quotation marks omitted). The issue was not

whether Judge Lanier knew that the right in

question was clearly established, but whether a

5 18 U.S.C. § 242 provides, in pertinent part, “Whoever, under

color of any law, statute, ordinance, regulation, or custom,

willfully subjects any person in any State, Territory,

Commonwealth, Possession, or District to the deprivation of

any rights, privileges, or immunities secured or protected by

the Constitution or laws of the United States .. . shall be fined

under this title or imprisoned not more than one year, or both .

”

reasonable person would have known that he was

violating a constitutionally protected right.

Indeed, neither this Court nor the courts below

considered whether, as a judge, Lanier had special

familiarity with constitutional law such that a

different standard of criminal lability should apply

to him, as opposed to a police officer, a prison

warden, or some other official. This failure to

consider that information, even if it had been

established, was appropriate because the standard of

fair warning that applies to all criminal statutes is

simply “whether the statute, either standing alone or

as construed, made it reasonably clear at the

relevant time that the defendant’s conduct was

criminal.” Lanier, 520 U.S. at 267.

The Ninth Circuit abandoned the long-

established principles of fair warning and lenity in

favor of an analysis that, by employing a subjective,

individualized standard of notice, turns both

concepts upside-down. The court cited no authority

for its decision other than its assessment of the

individuals’ presumed knowledge of industrial

chemicals and the hazards of “asbestos” generally.

The panel determined that the petitioners’

supposed knowledge of industrial chemicals, App.

17a, and their purported understanding of the

dangerousness of asbestos, id., somehow put them on

notice that minerals not defined as “asbestos” by

EPA regulations would nevertheless be subject to

criminal sanction. The panel st: ted, as a matter of

law, that “[alsbestos is adequately defined as a term

and need ~not_ include’ mineral-by-mineral

classifications to provide notice of its hazardous

nature, particularly to these knowledgeable

defendants.” App. 19a-20a ‘emphasis added).

Although (or perhaps, because) the Ninth Circuit

addressed the issue before the presentation of any

evidence, at trial or otherwise, the court relied on its

own unsupported belief to rationalize its ruling. The

court divined that petitioners “are all familiar with

asbestos” and that “[slince at least 1976, defendants

have known of the health risks posed by the

asbestiform minerals in their products.” App.17a.

Remarkably, the court asserted, before empanelling

a jury and without testimony from even one witness,

that “defendants knew or should have known that

their mining, milling, and distribution activities

risked the release of asbestos in the ambient air” and

that their “knowledge of the industrial chemicals

field” should have precluded the application of the

rule of lenity by the district court. Jd.

Besides lacking any evidentiary basis, the Ninth

Circuit’s views of petitioners’ supposed knowledge of

the dangers of asbestos were irrelevant. Knowledge:

that asbestos can pose dangers to human health is

not equivalent to knowledge that the statutory

definition of “asbestos” includes substances never

previously included in statutory and regulatory

definitions of that term. Whatever petitioners knew

about the dangers of asbestos as a general matter—

and the record is silent on that issue—there is

nothing to suggest tha!; they had reason to know that

the CAA’s definition of asbestos encompassed

richterite and winchite, two substances that the

EPA, other regulatory agencies, and even the CAS

registry had never defined as “asbestos.”6

In short, the Ninth Circuit’s speculation about

the petitioners’ subjective knowledge had no place in

a proper analysis of whether the government’s

proposed reading of the statute provided fair

warning or of whether the statute was ambiguous

and therefore required resort to the rule of lenity. In

surmising, based on an empty record, not only what

petitioners knew but also that because of this

knowledge petitioners had fair notice that the CAA

proscribed their alleged conduct, the Ninth Circuit

construed the criminal provisions of the CAA in a

manner that runs counter to this Court’s established

precedent. That approach should be reversed.

B. The Ninth Circuit's Approach Conflicts

With Decisions Of Other Courts of

Appeals

6 As more fully explained in Grace’s petition, the Ninth

Circuit’s definition of “asbestos” is seriously flawed. The first

part of the definition—‘“a fibrous, non-combustible compound

that can be composed of several substances, typically including

magnesium”—is overbroad and includes such common

materials as talc (MgsSisO10(OH)2). The second part of the

definition, joined with a disjunctive “or” is also problematic,

because a “grayish non-combustible material” that “consists

primarily of impure magnesium silicates” necessarily excludes

winchite and established forms of “asbestos” like crocidolite,

both of which are blue. See Mark Germine & John Puffer,

Abstract, Winchite and Crocidolite Asbestos in a Historical

Sample of the Libby, Montana Vermiculite Product, presented

at the 2001 Asbestos Health Effects Conference (May 25, 2001)

(available at

http://www.epa.gov/oswer/ahec/summary/abstracts/germine2.pd

f).

The Ninth Circuit’s subjective fair warning

analysis puts it at odds with the approach applied by

every other court of appeals to address the issue of

fair warning. This Court should reverse to bring the

Ninth Circuit back in line with the other courts of

appeals.

In United States v. Introcaso, 506 F.3d 260, 269-

70 (3d Cir. 2007), cert. denied, 128 S. Ct. 1324

(2008), the Third Circuit used objective principles to

determine whether a firearm owner violated the

Firearms Act by failing to register an antique

shotgun. The court reversed the defendant's

conviction on the grounds that Congress did not

define the term “antique” with enough specificity to

put a reasonable person on notice regarding the

exemptions from the registration requirements. The

defendant in Jntrocaso owned twenty-eight other

registered firearms. Jd. at 263. Unlike the Ninth

Circuit, the Third Circuit ignored the defendant’s

subjective knowledge and based its decision on what

a common person would find in the statutory text.

Similarly, the Eleventh Circuit has explicitly held

that in a fair warning analysis, the court must

determine whether an ordinary person could look at

the statute and determine the conduct prohibited.

United States v. Fisher, 289 F.3d 1329, 1336 (11th

Cir. 2002). The defendant in Fisher was charged

with violating the Analogue Act, 21 U.S.C. § 813,

which prohibits the sale of precursors and analogues

to controlled substances. Fisher, the owner and

operator of a bodybuilding gym, sold a drink

containing a drug called GBL, which upon ingestion

was metabolized into GHB, a controlled substance.

Fisher, 289 F.3d at 1331-32. Fisher argued that the

Act did not give him fair warning that GBL was an

analogue of GHB. Jd. at 1336. The Eleventh Circuit

analyzed the Act and held that the public was on

notice that GHB and its analogues were controlled

substances. Jd. The court determined that “[t]he

next step in this constitutional analysis is to decide

whether an ordinary person could look at the

definition of controlled substance analogue and

determine that GBL is an analogue of GHB.” /d.

(emphasis added). The court, ignoring Fisher’s own

subjective knowledge, then found that “[pleople of

ordinary intelligence would easily be able to

determine that a substance, which is converted upon

ingestion into a metabolite . . . would meet the

definition of a controlled substance analogue.” Jad. at

1339. Nowhere in its inquiry did the Eleventh

Circuit consider whether a “knowledgeable

defendant” would have been on notice; the court’s

inquiry was based on objective criteria.

In United States v. Councilman, 418 F.3d 67 (ist

Cir. 2005) (en banc), the First Circuit used similar

objective principles in addressing a fair warning

challenge to the Wiretap Act, 18 U.S.C. §§ 2510-

2522. The defendant, who ran a rare-book listing

service and provided book dealers with e-mail

service, was charged with violating the Wiretap Act

by diverting a copy of all e-mails sent through his

server from Amazon.com, another online seller of

books. /d. at 70. At issue was whether the Wiretap

Act’s prohibition of “intentionally interceptlingl,

endeavorling] to intercept, or procureling] any other

person to intercept or endeavor to intercept, any

wire, oral, or electronic communication” gave fair

warning as to what conduct was prohibited. Jd. at

72; see 18 U.S.C. § 2511. The defendant argued that

“electronic communication” and “intercept” were too

ambiguous to provide fair warning as to when his

conduct as a service provider would be criminal. A

majority of the en banc panel disagreed and held

that, “[flrom its text, a person of average intelligence

would, at the very least, be on notice that ‘[e]xcept as

otherwise specifically provided in’ the Act, ‘electronic

communication{s],’ which are defined expansively,

may not be ‘intercepted.” Councilman, 418 F.3d at

84. Although the dissent disagreed with the result,

it, too, applied an objective standard, stating,

“Councilman is being held to a level of knowledge

which would not be expected of any of the judges

who have dealt with this problem, to say nothing of

‘men [and women] of common intelligence.’ Jd. at 90

(Torruella, J., dissenting) (quoting Lanier, 520 U.S.

at 266).

Other Circuits have taken the same approach to

such challenges. See, e.g., United States v. Cullen,

499 F.3d 157, 159-60 (2d Cir. 2007) (holding that the

phrase “personal pet” in the Wild Bird Conservation

Act, 16 U.S.C. § 4901 et seg., provided fair warning

for the objective person to know the Act’s

exemptions); United States v. Lund, 853 F.2d 242,

244-245 (4th Cir. 1988) (determining, without regard

to defendant’s subjective knowledge, that

“application” and “contract” are “common words with

well-established meanings that are more than

adequate to give persons of ordinary intelligence fair

notice of the conduct proscribed by the statute.”);

United States v. Kay, 513 F.3d 432, 441-42 (5th Cir.

2007) (affirming conviction under Foreign Corrupt

Practices Act because the Act's “obtaining or

retaining’ business nexus requirement gave

objective notice that payments to foreign officials for

preferential tax benefits were proscribed); United

States v. Blaszak, 349 F.3d 881, 885-87 (6th Cir.

2003) (finding statute clearly prohibited conduct and

that statute’s “meaning should be clear to a person of

common intelligence because it is neither overly

technical nor obscure.”); United States v. Lim, 444

F.3d 910, 915-16 (7th Cir. 2006) (affirming

conviction for failure to register under Firearm Act

notwithstanding statute’s lack of guidance as to how

to measure the gun barrel or overall length because

reasonable persons would understand those terms

and implementing regulations explained the terms),

cert. denied, 127 S. Ct. 239 (2008); United States v.

Carpenter, 422 F.3d 738, 746 (8th Cir. 2005)

(holding phrase “harm to human life” provided

sufficient notice to person of common intelligence for

fair warning): United States v. Michel, 446 F.3d

1122, 1135 (10th Cir. 2006) (affirming conviction

under Armed Career Criminal Act, 18 U.S.C. § 924,

because statute’s “separateness” element “set out in

terms that the ordinary person exercising ordinary

common sense can sufficiently understand and

comply with, without sacrifice to the public interest”)

(quotation omitted); United States v. West, 393 F.3d

1302, 1311-12 (D.C. Cir. 2005) (assessing meaning of

criminal statute informed by doctrine that fair

warning te given in “language chat the common

world will uuderstand” and that “legislatures, not

courts” define cri:..inal activity) (quotation omitted).

The Ninth Circuit’s decision runs counter to the

approach applied by every other circuit. This Court

should grant certiorari to address this divergence.

IT. Certiorari Is Also Warranted To Correct The

Ninth Circuit’s Erroneous Interpretation of 18

U.S.C. § 3288

This Court should also grant certiorari because

the Ninth Circuit’s decision opens a substantial hole

in criminal statutes of limitations, denying criminal

defendants critical protection against untimely

prosecutions. Under the court of appeals’

misreading of the plain text of § 3288, the

government may bring an untimely indictment,

suffer dismissal on that ground, and then use the six

month grace period afforded by § 3288 to resuscitate

the prosecution by identifying and alleging

additional acts within the original imitations period.

The pernicious implications of the Ninth Circuit’s

ruling warrant this Cou:t’s review even in the

absence of a direct conflict with the decision of any

other court of appeals.

A. The Ninth Circuit Ignored § 3288's

Plain Text

Section 3288 tolls any applicable statute of

limitation to allow the government time to correct

certain defects in a dismissed indictment. The

purpose of § 3288 is simply, and sensibly, to allow

the government to repair defects in a charge that

was not previously dismissed on grounds that bar

further prosecution, such as double jeopardy or

expiration of the statute of limitations. Congress

made clear that the six-month grace period has no

application if the origina] indictment was itself

dismissed on statute of limitations grounds: “[§ 3288]

does not permit the filing of a new indictment * * *

where the reason for the dismissal was the failure to

file the [original] indictment * * * within the period

prescribed by the applicable statute of limitations.”

18 U.S.C. § 3288. This limitation prudently

eliminates the grace period where the government

did not, in the first instance, file the indictment in a

timely fashion. The Ninth Circuit, in a strained and

illogical reading that would expose petitioners to

criminal liability on an untimely charge, effectively

wrote this critical limitation Jut of the statute.

Inexplicably, the Ninth Circuit concluded that

the district court found, and the parties supposedly

agreed, that the initial indictment in this case was

“timely filed.” App. lla-12a. But the district court

held just the opposite. The district court

unambiguousiy dismissed the endangerment

conspiracy in the initial indictment as “time-barred”

because the indictment “failed to allege an overt act

in furtherance of the knowing endangerment object

within the limitations period.” App. 103a. When the

government obtained a surerseding indictment

purporting to allege additional overt acts, the district

court held that, because its prior dismissal was on

statute of limitations grounds, the last sentence of

§ 3288 precluded’ re-indictment and_ the

endangerment conspiracy was again “time-barred.”

App. 84a.

Contrary to the straightforward command of the

last sentence of § 3288, the Ninth Circuit ruled that,

if a superseding indictment alleges new conduct that

would have brought the initial, untimely indictment

within the statute of limitations, the prosecution

may proceed. App. 8a. According to the Ninth

Circuit, because those newly-alleged acts occurred

within the applicable lir:tations period, the

superseding indictment simply repaired a

“structurall] flaw{]” in an otherwise timely-filed

indictment. Jd. at 9a. In effect, the Ninth Circuit

concluded that § 3288 permits any new allegations

in a superseding indictment to “relate back” to the

time of filing the initial indictment, even when the

initial indictment was dismissed on statute of

limitations grounds. But that is not what § 3288

directs.7

Only by characterizing the initial indictment as

“timely filed” could the panel conclude that the

cecond sentence of § 3288 did not bar re-indictment.

Yet the panel could reach that conclusion only by

doing precisely what the plain text of § 3288

prohibits, that is, retroactively considering the

initial indictment in light of the new overt acts

alleged in the superseding indictment. This analysis

7 Section 3288 applies only to technical defects in the

indictment or process, not to a statute of limitations violation

in the original indictment. See, e.g., United States v. Milste/i,

401 F.3d 53, 67 (2d Cir. 2005) (superseding indictment

permitted where it “did not broaden the charges . . . but merely

added a jurisdictional allegation”) cert. denied, 128 S. Ct. 190

(2007); United States v. Crawford, 60 F. App’x 520, 531 (6th

Cir. 2003) (re-indictment permitted where prior indictment

“was brought by a grand jury selected according to

[impermissible] procedures”); United States v. Macklin, 535

F.2d 191, 193 (2d Cir. 1976) {re-indictment permitted under

§ 3288 where initial indictment dismissed because term of

grand jury that issued original indictment had expired); United

States v. Drucker, 453 F. Supp. 741, 742 (S.D.N.Y. 1978) (re-

indictment permitted despite defendant’s argument that the

“original indictment was invalid in that it was based upon

excessive and misleading hearsay”).

Only by characterizing the initial indictment as

“timely filed” could the panel conclude that the

second sentence of § 3288 did not bar re-indictment.

Yet the panel could reach that conclusion only by

doing precisely what the plain text of § 3288

prohibits, that is, retroactively considering the

initial indictment in light of the new overt acts

alleged in the superseding indictment. This analysis

rests on the fiction that later events can show the

initial indictment to have been timely when the

district court determined that it was not.

Of greater concern, as applied in conspiracy cases

and charges involving fraud and other schemes, this

analysis will often enable the government to rescue

an indictment filed after the statute of limitations

has expired, thereby accomplishing precisely what

the text of § 3288 explicitly prohibits. Under the

Ninth Circuit’s ruling, if a district court finds that

all the relevant conduct alleged in an indictment

took place outside the applicable limitations

period—and accordingly concludes that the

indictment was. brought too late—all the

government need do is file a superseding indictment

adding new conduct within the original limitations

period. So long as the superseding indictment

charges the “same exact crime” Ddased on

[impermissible] procedures”); United States v. Macklin, 535

F.2d 191, 193 (2d Cir. 1976) (re-indictment permitted cider

§ 3288 where initial indictment dismissed because term of

grand jury that issued original indictment had expired); United

States v. Drucker, 453 F. Supp. 741, 742 (S.D.N.Y. 1978) (re-

indictment permitted despite defendant’s argument that the

“original indictment was invalid in that it was based upon

excessive and misleading hearsay”).

timely, the statutory text explicitly forecloses the

government from prosecuting further.

There is no doubt that the knowing

endangerment object of the conspiracy count was

filed after expiration of the applicable statute of

limitations. After citing Yates v. United States, 354

U.S. 298 (1957), for the rule that the statute of

limitations must be independently satisfied as to

each object of the conspiracy, app. 93a-95a, the

district court found that “the government has failed

to allege an overt act in furtherance of the knowing

endangerment object within the limitations period.”

App. 103a. As a result, the knowing endangerment

object of Count I had to be “dismissed as time-

barred.” fd. Critically, the government did not

appeal from this ruling.

The court of appeals did not take issue with the

district court’s analysis. Instead, it attributed an

unprecedented and unwarranted legal import to the

district court’s conclusion: it held that not all “time-

barred” indictments are untimely filed within the

meaning of § 3288. App. 8a. But this metaphysical

distinction is without legal foundation. The district

court plainly found an absence of any overt act in

furtherance of the endangerment conspiracy within

the five-year limitations period. Indeed, the only

overt acts that could have been in furtherance of the

endangerment conspiracy were alleged to have

occurred well before the five-year period. See, e.g.,

App. 102a-103a. The conclusion therefore is

inescapable that the knowing endangerment object

in the indictment, as originally framed, was

“untimely filed” at the time it was filed on February

7, 2005, and had to be dismissed for failure to satisfy

the statute of limitations. As a consequence, tc treat

the absence of overt acts within the limitations

period as merely “a flaw that can be cured through

re-indictment under § 3288” (App. 1la)—as opposed

to a defect that means the indictment has been filed

after expiration of the statute of limitations—is to

eliminate any meaning from the second sentence of

§ 3288. In effect, the Ninth Circuit allowed the

allegations of a superseding indictment to “relate

back” and create timeliness in the first indictment,

which the district court had held untimely. Given

that § 3288 does not permit re-indictment where the

“reason for the dismissal [of the original indictment]

was the failure to file the indictment * * * within the

period prescribed by the applicable statute of

limitations” (emphasis added), the statutory

language forecloses such a retroactive analysis.

Because § 3288 does not permit re-indictment

where an indictment is dismissed on statute of

limitations grounds, the statutory language

forecloses the retroactive analysis applied by the

Ninth Circuit.

B. The Ninth Circuit's Interpretation

Destroys Statutory Repose for Criminal

Defendants

Not only was the Ninth Circuit’s interpretation of

§ 3288 fundamentally incorrect, the ruling has

disturbing consequences for future government

prosecutions. This Court has made clear that

statutes of limitations play an important role in

protecting the rights of defendants and creating

sensible incentives for prosecutors «and investigators:

The purpose of a statute of limitations is

to limit exposure to criminal prosecution

to a certain fixed period of time following

the occurrence of those acts the

legislature has decided to punish by

criminal sanctions. Such a limitation is

designed to protect individuals from

having to defend themselves against

charges when the basic facts may have

become obscured by the passage of time

and to minimize the danger of official

punishment because of acts in the far-

distant past. Such a time limit may also

have the salutary effect of encouraging

law enforcement officials promptly to

investigate suspected criminal activity.

Toussie v. United States, 397 U.S. 112, 114-115

(1970). See also, e.g., United States v. Levine, 658

F.2d 113, 125 (3d Cir. 1981) (‘statutes of limitations

embody historically important rights of repose and

fairness for defendants which are fundamental to

our system of criminal law’).

But under the Ninth Circuit’s ruling, so long as a

superseding indictment rests on “approximately the

same facts” (App. lla) (and what superseding

indictment would not be?) the government would, in

effect, have an extra six months after virtually any

dismissal of a conspiracy charge on statute of

limitations grounds to find overt acts that would

transform the original indictment into one that,

viewed in retrospect, could have been “timely filed.”

This result is different in kind from § 3288's goal of

allowing the government additional time to correct

technical defects in indictments that were originally

filed before expiration of a statute of limitations.

This consequence is particularly alarming in the

context of conspiracy prosecutions. Justice Jackson

famously remarked that conspiracy is an “elastic,

sprawling and pervasive offense,” that is “so vague

that it almost defies definition.” Arulewitch v.

United States, 336 U.S. 440, 445, 446-47 (1949)

(Jackson, J. concurring). He therefore joined in an

opinion rejecting the assumption that every

conspiracy is inevitably followed by a second,

“implied agreement to conceal” the original violation.

Id. at 443. He was motivated in part by a concern

that such an assumption would result in “an

indeterminate extension of the statute of

limitations.” Jd. at 457. The Ninth Circuit

accomplished that pernicious result by different and

more direct means. Its error is one of extraordinary

importance, running roughshod over the concept of

statutory repose, denying defendants their

substantial rights, and contravening the manifest

intent of Congress when it enacted § 3288. This

Court’s review is therefore warranted.

CONCLUSION

For the foregoing reasons, and the reasons set

forth in the petition filed by Grace, petitioners

respectfully request that the Court grant the writ of

certiorari and reverse the judgments of the Ninth

Circuit.

Respectfully submitted,

- Mike Milodragovich Jeremy Maltby

W. Adam Duerk (Counsel of Record)

MILODRAGOVICH, DALE, Carolyn Kubota

STEINBRENNER & BINNEY Shannon Keast

620 High Park Way Justin Ford

Missoula, MT 59806 O'MELVENY & MYERS LLP

(406) 728-1455 400 S. Hope Street

Los Angeles, CA 90071

(213) 430-6000

Counsel for Defendant-Petitioner Jack W. Wolter

Ronald F. Waterman

GOUGH, SHANAHAN,

JOHNSON & WATERMAN

33 South Last Chance

Gulch

Helena, MT 59601

(406) 442-8560

David S. Krakoff

Gary A. Winters

David M. Gossett

James T. Parkinson

MAYER BROWN LLP

1909 K Street NW

Washington, DC 20006

(202) 263-3000

Counsel for Defendant-Petitioner Henry A.

Eschenbach

Palmer Hoovestal

HOOVESTAL LAW FIRM,

PLLC

P.O. Box 747

Helena, MT 59624

(406) 457-0970

Elizabeth Van Doren

Gray

SOWELL, GRAY, STEPP, &

LAFFITTE, LLC

P.O. Box 11449

Columbia, SC 29211

(803) 929-1400

William A. Coates

ROE CASSIDY COATES &

PRICE, PA

P.O. Box 10529

Greenville, SC 29603

Counsel for Defendant-Petitioner William J. McCaig

Brian Gallik

GOETZ, GALLIK &

BALDWIN, P.C.

P.O. Box 6580

Bozeman, MT 59771

(406) 587-0618

Thomas C. Frongillo

WEIL, GOTSHAL &

MANGES LLP

100 Federal St. 34th

Floor

Boston, MA 02111

(617) 772-8335

Vernon S. Broderick

WEIL, GOTSHAL &

MANGES LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8730

Counsel for Defendant-Petitioner Robert J. Bettacchi

C.J. Johnson Stephen A. Jonas

KALKSTEIN LAW FIRM Robert Keefe

P.O. Box 8568 WILMER CUTLER

Missoula, MT 59807 PICKERING HALE AND

(406) 721-9800 Dorr LLP

60 State Street

Boston, MA 02109

(617) 526-6144

Counsel for Defendant-Petitioner O. Mario Favorito

Catherine A Laughner

Aimee M. Grmoljez

BROWNING KALECZYC

BERRY & HOVEN P.C.

P.O. Box 1697

Helena, MT 59624

(406) 443-6820

Stephen R. Spivack

BRADLEY ARANT ROSE &

WHITE LLP

1133 Connecticut Ave.

N.W.

Washington, DC 20036

(202) 393-7150

David E. Roth

BRADLEY ARANT ROSE &

WHITE LLP

One Federal Place

1819 Fifth Avenue North

Birmingham, AL 35203

(205) 521-8000

Counsel for Defendant-Petitioner Robert C. Walsh

APPENDIX

APPENDIX A

COURT OF APPEALS OPINION

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CTRCUIT

)

UNITED STATES OF AMERICA, )

Plaintiff-Appellant, )

v. )

) No. 06-30472

W.R. GRACE; ALAN R. STRINGER; ) D.C. No. CR-05-°9007-DWM

HENRY A. ESCHENBACH:; JACK W. )

WOLTER: J. MCCAIG: ROBERT J.)

BETTACCHI; O. MARIO FAVORITO; )

ROBERT C. WALSH, )

Detfendants-Appeliees.

)

UNITED STATES OF AMERICA, )

Plaintiff-Appellant, y

Vv. )

) No. 06-30524

W.R. GRACE; ALAN R. STRINGER: ) D.C. No. CR-05-00007-DWM

HENRY A. ESCHENBACH: JACK W. )

WOLTER: WILLIAM MCCAIG;: ) OPINION

ROBERT J. BETTACCHI: O. MARIO )

FAVORITO;: ROBERT C. WALSH, )

Detendants-Appellees.

)

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

June 4, 2007 — Seattle, Washington

Filed September 20, 2007

Before: Betty B. Fletcher, Harry Pregerson, and

Warren J. Ferguson, Circuit Judges.

Opinion by Judge B. Fletcher

COUNSEL

Todd S Aagaard, Dept. of Justice Environment

and Natural Resources Division, Washington, D.C.,

and Kris A. McLean, Assistant United States

Attorney, Missoula, Montana, argued for the

government. With them on the briefs were Sue

Ellen Wooldridge, Assistant Attorney General:

William W. Mercer, United States Attorney; Eric E.

Nelson, Linda Kato, Special Assistant United States

Attorneys; Kevin M. Cassidy, and Allen M.

Brabender, Attorneys, United States Dept. of Justice

Environment and Natural Resources Division.

Christcpher Landau, Washington, D.C., argued

for defendant-appellee W.R. Grace & Co. With him

on the brief were Laurence A. Urgenson, Tyler D.

Mace, Michael D. Shumsky, Washington, D.C.;

Stephen R. Brown, Charles E. McNeil, Kathleen L.

DeSoto. Missoula, Montana, for defendant-appellee

W.R. Grace & Co.; Angelo J. Calfo, Seattle,

Washington; Michael F. Bailey, Missoula, Montana,

for defendant-appellee Alan R. Stringer; Ronald F.

Waterman, Helena, Montana; David S. Krakoff,

Gary A. Winters, Washington, D.C., for defendant-

appellee Henry A. Eschenbach; Mike Milodragovich,

W. Adam Duerk, Missoula, Montana; Mark

Holscher, Jeremy Maltby, Los Angeles, California,

for defendant-appellee Jack W. Wolter; Palmer

Hoovestal, Helena, Montana, Elizabeth Van Doren

Gray, Columbia, South Carolina, William A. Coates,

Greenville, South Carolina, for defendant-appellee

William J. McCaig; Brian Gallik, Bozeman,

Montana, Thomas C. Frongillo, Boston,

Massachusetts, Vernon S. Broderick, New York,

New York, for defendant-appellee Robert J.

Bettacchi; C.J. Johnson, Missoula, Montana,

Stephen <A. Jonas, Robert Keefe, Boston,

Massachusetts, for defendant-appellee O. Mario

Favorito; Catherine A. Laughner, Aimee M.

Grmoljez, Helena, Montana, Stephen R. Spivack,

Washington, D.C., David E. Roth, Birmingham,

Alabama, for defendant-appellee Robert C. Walsh.

OPINION

B. FLETCHER, Circuit Judge:

From 1963 until the early 1990s, W.R. Grace

(“W.R. Grace” or “Grace”) mined and processed a rich

supply of vermiculite ore outside of Libby, Montana.

In response to ongoing serious health problems

suffered by Libby residents, the government

obtained an indictment charging W.R. Grace and

seven of its executives (together “Grace”) with

criminal conduct arising from Grace’s vermiculite

operation in Libby. The superseding indictment

charges defendants-appellees with (1) conspiring

knowingly to release asbestos, a hazardous air

pollutant, into the ambient air, thereby knowingly

placing persons in imminent danger of death or

serious bodily injury in violation of 42 U.S.C.

§ 7413(c)(5)(A) and (2) conspiring to defrauc the

United States in violation of 18 U.S.C. § 371. In

addition to the dual-object conspiracy alleged in

Count I, the indictment charged defendants-

appellees with three counts of knowing

endangerment under the Clean Air Act, 42 U.S.C.

§ 7413(ch5)(A), and four counts of obstruction of

justice in violation of 18 U.S.C. §§ 1505 and 1515(b).

This interlocutory appeal brought by _ the

government concerns six orders grouped into four

sections: the first order dismissed the knowing

endangerment object of Count I’s conspiracy charge;

the second adopted a particular definition of asbestos

and excluded evidence inconsistent with that

definition; the third denied a motion to exclude

evidence related to an affirmative defense and relied

on an emission standard for asbestos contained in

certain Environmental Protection Agency (“EPA”)

regulations, see, e.g., 40 C.F.R. §§ 61.142°61.149;

and the fourth through sixth orders excluded certain

evidence and expert testimony. In addition, we rule

on defendants-appellees’ motion to strike documents

attached to the government’s reply brief. We have

jurisdiction to hear this appeal pursuant to 18

U.S.C. § 3131, and we reverse in part, affirm in part,

and remand.

I. Dismissal of the Knowing Endangerment Object

1. Background

In the original indictment, filed February 7, 2005,

the government charged defendants with

participating in a dual-object conspiracy. According

to Count I of the indictment, which details the scope

of the conspiracy, defendants conspired (1) to

knowingly release -asbestos, a hazardous air

pollutant, and thus knowingly to endanger both EPA

employees and members of the Libby community in

violation of 42 U.S.C. § 7413(c)(5)(A) (“knowing

endangerment object”); and (2) to defraud the United

States by impairing, impeding, and frustrating

government agency investigations and cleanup

operations in violation of 18 U.S.C. § 371

(“defrauding object”). On March 20, 2006,

defendants moved to dismiss the knowing

endangerment object of the conspiracy, arguing that

the government had failed to allege an overt act in

furtherance of the alleged conspiracy within the

statute of limitations period. United States v. W.R.

Grace, 434 F. Supp. 2d 879, 883 (D. Mont. 2006).

Defendants’ argument relied primarily on Yates

v. United States, 354 U.S. 298 (1957) (holding that

the statute of limitations must be satisfied as to each

object of the conspiracy when the government

charges a multi-object conspiracy), overruled on

other grounds by Burks v. United States, 437 U.S. 1,

2 (1978). Because the government supposedly had

failed to allege a requisite overt act before the

statute of limitations ran on November 3, 2004,

defendants asserted that the knowing endangerment

object was time-barred.

The government disputed defendants’

characterization of the indictment, claiming that

certain overt acts alleged in the indictment could

support both the fraud object and the knowing

endangerment object of Count I’s conspiracy charge.

Towards this end, the government directed the

district court’s attention to paragraphs 143, 149, and

173-184 of the indictment. W.R. Grace, 434

F. Supp. 2d at 885-87. The paragraphs cited by the

government alleged that defendants had failed to

remove asbestos-contaminated material from sites in

the Libby community, had misled various

individuals regarding current asbestos

contamination, and had failed to disclose the

existence of numerous asbestos-contaminated sites.

What the paragraphs purportedly failed to allege

was that defendants released, or conspired to

release, asbestos during the relevant time period.

Analyzing both the text of the _ specified

paragraphs and the structure of the indictment, in

which the cited paragraphs were listed under the

sub-heading “Obstruction of EPA’s Superfund Clean-

Up,” the district court concluded that the indictment

“more plausibly suggests a completed operation than

a conspiracy still at work.” Jd. at 887. To the extent

that overt acts were alleged, the district court found

that they were acts of obstruction, not acts of

wrongful endangerment. Jd. Thus, the district court

dismissed as time-barred the knowing

endangerment object of the Count I conspiracy. Jd.

at 888.

Two weeks after the district court’s first order,

dismissing a portion of the indictment, the

government obtained a superseding indictment. The

new indictment was substantially similar to the

original indictment, amending only paragraphs

1731-83, which had been the focus of the district

court’s previous. order. In the superseding

indictment, the government changed the section

heading under which the disputed paragraphs had

been listed from “Obstruction of Superfund Clean-

Up” to “Knowing Endangerment of EPA Employees

and the Libby Community and Obstruction of the

EPA’s Superfund Clean-Up.” It also changed

paragraphs 173, 174, 176-80, 182 and 183, by adding

at the end of each original paragraph the phrase,

“thereby concealing the true hazardous nature of the

asbestos contamination, delaying EPA’s

investigation and causing releases of asbestos into

the air in the Libby Community.”!

| Paragraph 175 was changed significantly.

Defendants then moved to dismiss the “knowing

endangerment” object of the superseding indictment,

arguing that the government had failed to fix the

original indictment because the new indictment

alleged no new overt acts, was barred by the

previous dismissal “with prejudice,” and was time-

barred because the statute of limitations had run.

The district court rejected the first two arguments,

but agreed with defendants that the new indictment

was time-barred. Under the district court’s reading,

the superseding indictment was not protected by the

savings clause of 18 U.S.C. § 3288. Order at 17,

United States v. W.R. Grace, 9:05-cr-00007-DWM

(‘Order Dismissing Indictment”) (July 27, 2006)

(Docket # 690). The government now appeals that

determination.

2. Standard of Review

We review de novo a district court’s decision to

dismiss part of an indictment, United States v.

Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.

1991), as we review, also de novo, the district court’s °

interpretation of 18 U.S.C. § 3288. United States v.

Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002).

3. Analysis

If a district court dismisses an indictment (or

portion thereof), the savings clause of 18 U.S.C.

§ 3288 permits the government to return a new

indictment after the statute of limitations has

expired, as long as it is done within six months of the

dismissal. The statute reads as follows:

Whenever an indictment or information

charging a felony is dismissed for any reason

after the period prescribed by the applicable

statute of limitations has expired, a new

indictment may be returned in _ the

appropriate jurisdiction within six calendar

months of the date of the dismissal of the

indictment or information ..., which new

indictment shall not be barred by any statute

of limitations. This section does not permit

the filing of a new indictment or information

where the reason for the dismissal was the

failure to file the indictment or information

within the period prescribed by the

applicable statute of limitations, or some

other reason that would bar a new

prosecution.

The dispute in the instant case stems from the

parties’ divergent interpretations of the final

sentence of § 3288. This sentence explains that the

savings clause does not extend to indictments

initially filed outside of the statute of limitations.

The government takes the position that this does not

bar the return of the new indictment because the

original indictment was obtained before the statute

of limitations expired. Thus, the government argues,

§ 3288 permits amendment by a _ superseding

indictment. Defendants disagree, arguing that the

government failed to allege an overt act for the

knowing endangerment object of the conspiracy

before the statute of limitations expired. The district

court agreed with defendants and dismissed the

knowing endangerment object as time-barred.

Defendants’ argument is premised on a conflation

of the terms “time-barred” and “not timely filed.”

The last sentence of § 3288 refers to indictments that

were not timely filed, i.e., indictments that were not

filed within the statute of limitations. Here, there is

no dispute that the government (/ed its indictment

within the statute of limitations period. The district

court dismissed the knowing endangerment object in

the original indictment as “time-barred” because it

failed to allege an overt act within the statute of

limitations, not because the indictment was

untimely filed. The district court erred. If the

indictment is filed within six months of the dismissal

order, § 3288 does not bar the government from

filing a superseding indictment: the savings clause of

§ 3288 permits amendment when the original was

structurally flawed but timely filed. United States v.

Clawson, 104 F.3d 250 (9th Cir. 1996).

In Clawson, the defendant was indicted for mail

fraud on June 10, 1993. J/d at 251. Defendant

immediately moved to dismiss the indictment for

failure to allege an overt act within the five-year

statute of limitations. Jd. The indictment alleged

overt acts that occurred before the limitation period

began on June 10, 1988, or after defendant's .

withdrawal from the conspiracy on July 5, 1988. Jd. -

The district court granted defendant’s motion to -

dismiss the indictment and the government

responded by obtaining a First Superseding

Indictment, which alleged overt acts occurring in the

window between June 10, 1988, and July 5, 1988.

Id. Defendant then moved to dismiss the new

indictment, arguing that the statute had run before

the government obtained the First Superseding

Indictment and that § 3288 did not extend to

indictments dismissed for failure to comply with the

statute of limitations. Jd. The district court denied

his motion and we affirmed. /d. at 251-52.

Clawson noted that when “[rlead in its entirety,

thle] last sentence [of § 3288] cuts off the six-month

grace period only where the defect—whether it’s a

10a

limitations problem ‘or some other’ problem—is not

capable of being cured.” Jd. at 252. In the instant

case, the district court held (and defendants now

argue) that the defect in the original indictment

obtained by the government is not capable of being

cured because the original indictment did not allege

an overt act for the knowing endangerment object

before the statute of limitations expired. This

position, however, is precluded by Clawson.

In Clawson we distinguished between a timely

filed, but flawed, indictment, to which the savings

clause of § 3288 does apply, and an untimely filed

indictment, to which it does not.

“(lf the original indictment was brought

after the limitations period ran on all the

alleged criminal conduct, allowing

reindictment under section 3288 would

obliterate the statute of limitations: A

defendant could be indicted two years after

the statute had run and, when the court

dismissed, the prosecution could simply

reindict within six months, free from the

limitations bar.” Jd.

For obvious reasons, reindictment is prohibited

by § 3288 in such circumstances. /d.

“The matter is much different where the

original indictment is brought within the

limitations period, but is dismissed for

failure to allege the exact elements of the

crime, or some other technical reason. In the

latter circumstance, a valid indictment could

have been brought in a timely fashion; the

six-month grace period merely allows the

government to do what it had a right to do in

the first place.” Jd.

lla

The latter circumstance describes the facts of

both Clawson and the instant case. In both cases,

the government timely indicted defendants for a

particular crime, but originally failed to allege a

valid overt act. The government then obtained

superseding indictments charging defendants with

the exact same crimes, but adding the necessary

overt act allegations. Thus, each defendant was

charged “with the exact crime for which he could

have been prosecuted had there not been a defect in

the indictment. Section 3288 was designed to apply

in this situation.” Jd; see also United States v.

Charnay, 537 F.2d 341, 354 (9th Cir. 1976) (“[The]

underlying concept of § 3288 is that if the defendant

was indicted within time, then approximately the

same facts may be used for the basis of any new

indictment [obtained after the statute has run] ... , if

the earlier indictment runs into legal pitfalls.”).

When discussing “timeliness,” both Clawson and

Charnay refer to the time of the original filing of the.

indictment. They do not consider whether the-

original] indictment included all of the relevant acts

or elements necessary to charge defendants with the

crime. As long as the original indictment is filed

within the statute of limitations and charges the

same crime, based upon approximately the same

facts charged in the superseding indictment, § 3288

allows the government to file a _ superseding

indictment within six months. See 18 U.S.C. § 3288;

Clawson, 104 F.3d at 251-52; Charnay, 537 F.2d at

354. Here, the parties do not dispute that the

original indictment was timely filed. The district

court’s holding that the indictment was time-barred

referred only to its failure to allege the necessary

overt acts in the original indictment—a flaw that can

be cured through re-indictment under § 3288.

12a

The district court attempted to distinguish

Clawson, stating that in Clawson the government

alleged overt acts in the original indictment, which

was filed within the limitations period. This

distinction is irrelevant. While the government did

allege overt acts before the limitations period

expired in Clawson, it failed to allege an overt act

sufficient to support the conspiracy charge since the

only overt acts alleged occurred outside the statute

of limitations or subsequent to Clawson’s withdrawal

from the conspiracy. Thus, the government

originally failed to allege any relevant overt acts in

Clawson, just as in the instant case.

Moreover, Clawson did not turn on the distinction

advanced by the district court: as we have explained,

§ 3288 applies when an indictment (though

defective) is brought within the limitations period,

and the superseding indictment charges defendant

with the same exact crime with which he was

initially charged, based on approximately the same

facts. The only addition in the new indictment

considered in Clawson was the inclusion of new overt

acts that the government could have used in the

original indictment. The fact that the government

had timely alleged inapplicable overt acts was

wholly extraneous to the Clawson court’s decision.

The district court’s misapprehension of both

Clawson and § 3288 is also clear from its statement

that “[tlo allow the government a six-month grace

period in this case would extend the statute of

limitations for the improper purpose of affording the

prosecution a second opportunity to do what it failed

to do in the _ beginning.” Order Dismissing

Indictment at 16. Yet this is exactly what § 3288

does. It extends the statute of limitations by six

13a

months to allow the prosecution a_ second

opportunity to do what it failed to do in the

beginning: namely, file an indictment free of legal

defects.

This reading of § 3288 does not, as the district

court suggests, “require a defendant to remain

subject to an indefinite threat of prosecution, held

open beyond the statute of limitations period, while

he and the court wait for the government to finish

tinkering with the indictment.” Jd What § 3288

does is twofold: First, it eliminates the incentive for

criminal defendants to move for dismissal of an

indictment at the end of the statute of limitations,

thereby winning dismissal at a time when the

government cannot re-indict. And second, it subjects

defendants to the threat of prosecution for six

months after the dismissal of the original

indictment—not an indefinite threat of prosecution

as the district court suggests—and only if the

government has timely filed an indictment charging

the exact same crimes based on approximately the

same facts.

For the reasons articulated herein, we reverse

the district court's dismissal of the knowing

endangerment object of Count I in the superseding

indictment and reinstate that portion of the count.

II. Definition of Asbestos

1. Background

We now turn to the question of whether

Congress’s use of the term “asbestos” to identify a

hazardous air pollutant created ambiguity as to

what substance was meant by that term. The

parties filed cross motions in limine to exclude

evidence that fell outside their respective

l4a

interpretations of the term. Govt. Mot. in Limine #2

Re: Definition of Asbestos (Docket # 462); Defs’ Mot.

in Limine Re: Definition of Asbestos (Docket # 474).

The district court held that the term “asbestos” has

no inherent meaning and therefore its use in the

criminal provisions of the Clean Air Act violated the

rule of lenity and the Due Process Clause of the

Fourteenth Amendment. It interpreted asbestos for

purposes of the Clean Air Act’s knowing

endangerment provision to mean the six minerals

covered by EPA’s civil regulatory scheme. Order at 2

& 20, United States v. W.R. Grace, 9:05-cr-00007-

- DWM (“Order Defining Asbestos”) (Aug. 8, 2006)

(Docket # 701). That regulation defines the civilly

regulated species of asbestos as “the asbestiform

varieties of serpentinite (chrysotile), riebeckite

(crocidolite), cummingtonite-grunerite,

anthophyllite, and actinolite-tremolite.” Definitions

for National Emission Standards for Hazardous Air

Pollutants (““NESHAPs”), 40 C.F.R. § 61.141 (2007).

The district court imported the civil regulatory

definition of “asbestos” into the criminal provisions

of the Clean Air Act, and then ruled that evidence of

asbestos releases offered at trial would be limited to

those relevant to proving releases of the six minerals

included in the regulatory definition; evidence of

releases of other asbestiform minerals would be

excluded. Order Defining Asbestos at 22. This

ruling eliminated from trial evidence of releases of

95% of the contaminents in the Libby vermiculite—

which are asbestiform minerals but fall outside of

the six minerals in the civil regulatory definition—as

well as excluding government data that did not

differentiate between the six regulated minerals and

unregulated asbestiform minerals. The government

appeals, asserting that the definition contained in

15a

the criminal portion of the statute is the applicable

definition.

2. Standards of Review

We review de novo the district court’s

construction of the Clean Air Act, as we do rulings

on the admissibility of evidence in which issues of

law predominate. See United States v. Mateo-

Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000).

3. Analysis

The Clean Air Act's knowing endangerment

provision prohibits the knowing and dangerous

release into the ambient air of “any hazardous air

pollutant listed pursuant to § 7412.” 42 U.S.C.

§ 7413(c)(5)(A).2 Section 7412(b) lists “asbestos,” also

2 42 U.S.C. § 7413(c)(5)(A) reads in relevant part:

Any person who knowingly releases into the ambient air

any hazardous air pollutant listed pursuant to section

7412 of this title ..., and who knows at the time that he

thereby places another person in imminent danger of

death or serious bodily injury shall, upon conviction, be

punished by a fine under Title 18, or by imprisonment of

not more than 15 years, or both. Any person committing

such violation which is an organization shall, upon

conviction under this paragraph, be subject to a fine of

not more than $1,000,000 for each violation. If a

conviction of any person under this paragraph is for a

violation committed after a fizst conviction of such person

under this paragraph, the maximum runishment shall

be doubled with respect to both the fine and

imprisonment. For any air pollutant for which the

Administrator has set an emissions standard or for any

source for which a permit has been issued under

subchapter V of this chapter, a release of such pollutant

in accordance with that standard or permit shall not

constitute a violation of this paragraph or paragraph (4).

16a

identified by its Chemical Abstracts Service (“CAS”) 3

Registry number 1332-21-4, as a hazardous air

pollutant. 42 U.S.%. § 7412(b). Thus, § 7412(b)

identifies asbestos by name and defines it through

reference to CAS Registry # 1332-21-4.

The government contends that a statute may

have two definitions for one term, one definition civil

and one criminal. Further, it argues that the

definition of asbestos applicable to the Clean Air

Act’s criminal knowing endangerment provision

covers the minerals involved in this case. We agree

on both points.

The district court found § 7412(b)’s “one-word

definition”’’ to be “unsatisfactory” as a matter of law.

However, Congress need not define every word in a

criminal statute for the _ statute to pass

Constitutional muster. When Congress does not

define a term in a statute, we construe that term

“according to [its] ordinary, contemporary, common

meaningl].” United States v. Cabaccang, 332 F.3d

622, 626 (9th Cir. 2003) (en banc) (internal quotation

marks omitted). It is well known that asbestos has a

common meaning; it is a fibrous, non-combustible

3 The Chemical Abstracts Service Registry, maintained by the

American Chemical Society, is an authoritative database of

chemical information. The Registry assigns each chemical

substance a unique numeric identifier. Searches in the

Registry require subscription. However, EPA maintains on its

website a free “Substance Registry System” containing CAS

Registry information, including the CAS definition of asbestos.

http:// www.epa.gov/srs/ (search “asbestos”; follow link

associated with 1332-21-4) (last visited Aug. 3, 2007).

4 T.e., “1332214 Asbestos”

17a

compound that can be composed of several

substances, typically including magnesium. Or, as

defined by the CAS Registry, and incorporated by

reference into § 7412(b), it is a “grayish non-

combustible material” that “consists primarily of

impure magnesium silicates.” CAS Registry number

1332-21-4, available at

http://Aiaspub.epa.gov/srs/srs_proc_

qry-navigate?P_SUB_ ID=85282. This definition has

been established for decades, as was elucidated in

the motions in limine. See Defs’ Mot. in Limine Re:

Definition of Asbestos n.4 (Expert Witness

Disclosure of Gregory P. Meeker, Appendix A) (May

31, 2006) (noting that asbestos was first defined in

1920).

In addition, defendants had actual notice in this

case of the risks from the fibrous content of the

asbestiform minerals in their products. Defendants

are an industrial chemical company and seven of its

top executives They are all familiar with asbestos.

Since at least 1976, defendants have known of the

health risks posed by the asbestiform minerals in

their products. It is clear that defendants knew or

should have known that their mining, milling, and

distribution activities risked the release of asbestos

into the ambient air. In light of the clear statutory

language, including § 7412(b)’s incorporation by

reference of the CAS Registry asbestos definition,

and defendants’ knowledge of the _ industrial

chemicals ffield, the district court erred in

misdefining “asbestos” as used in the criminal

statute and in invoking the rule of lenity. See

Muscarello v. United States, 524 U.S. 125, 138

(1998) (‘The rule of lenity applies only if, after

seizing everything from which aid can be derived, ...

we can make no more than a guess as to what

18a

Congress intended.”) (alteration in original) (internal

quotation marks omitted); United States v. Lanier,

520 U.S. 259, 266 (1997) (The “rule of lenity{]

ensures fair warning by so resolving ambiguity in a

criminal statute as to apply [the statute] only to

conduct clearly covered.”).

The district court’s conclusion that ambiguity

exists simply because of the existence of two

oversight structures—a civil regulatory structure

and a criminal enforcement provision—that use

different definitions of the term “asbestos” is

erroneous. As we determined in United States v.

Hagberg, 207 F.3d 569, 573 (9th Cir. 2000), Congress

validly may create multiple enforcement

mechanisms that each draw on different definitions

for the same term or phrase.

In Hagberg, defendant was indicted for allegedly

dumping sewage along a public road in violation of

the Clean Water Act, 33 U.S.C. §§ 1319(c)(2),

1345(e). Hagberg at 570. Moving to dismiss the

indictment, Hagberg argued that his actions did not

fit within the statutory definition of the crime

because the material he dumped was not “sewage

sludge” as defined by the regulations for permitting

waste disposal. Jd at 571. Accepting Hagberg’s

argument, the district court dismissed’ the

indictment. The government appealed. Jd We

reversed because the district court improperly had

conflated the regulatory and direct enforcement

provisions of the Clean Water Act, and the relevant

definition—supplied by the direct enforcement

provision—covered the material dumped . by

defendant. Jd. at 571-72, 575. We explained that

“some terms found in the [direct enforcement

provision] are defined differently when used in the

19a

context of [the civil permitting] regulations.” Jd. at

672.

Like the Clean Water Act provisions at issue in

Hagberg, the Clean Air Act creates multiple

enforcement mechanisms: a civil regulatory

structure and a direct enforcement mechanism. In

the instant case, as in Hagberg, defendants are

charged with violating the directly enforceable

provision of the statute that pulls its definitions from

a separate provision than does the regulatory

provision. The civil regulatory system draws its

definition of asbestos from 40 C.F.R. § 61.141, the

knowing endangerment provision from 42 U.S.C...

§ 7412(b). See 42 U.S.C. §§ 7412(a)(6); 7413(c)(5)(A).

The civil regulatory system regulates major sources

of hazardous air pollutants, 42 U.S.C. § 7412(c)-(g),

and therefore understandably focuses on a subset of

asbestifom minerals deemed to have commercial

potential; market forces preclude commercially non-

viable species of asbestos from becoming major

sources of pollution from asbestos mills and mines~

and other covered sources. The direct enforcement

mechanism created in 42 U.S.C. § 7413 focuses on

risks to health. Therefore it provides oversight of

release of hazardous pollutants whether or not they

come from major sources of pollution. We defer to

Congress’s decision to create two enforcement

structures and hold the district court’s conflation of

the two to be error.

In sum, the district court improperly limited the

term “asbestos” to the six minerals covered by the

civil regulations. Asbestos is adequately defined as a

term and need not include mineral-by-mineral

classifications to provide notice of its hazardous

nature, particularly to these knowledgeable

20a

defendants. Accordingly, we reverse the order

limiting evidence to that fitting within the civil

regulations.

III. Mandamus

1. Background

The knowing endangerment provision of the

Clean Air Act establishes an affirmative defense for

hazardous air pollutants released “in accordance

with” an applicable National Emissions Standards

for Hazardous Air Pollutants (“NESHAP”). See 42

U.S.C. § 7413(c)(5)(A). In the proceedings before the

district court, the government argued _ that

defendants could not avail themselves of this

affirmative defense because no NESHAP applied to

W.R. Grace’s operations in Libby; thus, compliance

with an “applicable” NESHAP was impossible. The

district court rejected this argument, finding that

the regulations created an emissions standard of “no

visible emissions” for asbestos. Accordingly, the

district court ruled that it would allow defendants to

introduce evidence at trial to try to prove their

affirmative defense. Because the district court did

not exclude any of the government's emissions

evidence as a result of this ruling, the government

cannot appeal the district court’s decision. Instead,

it now seeks a writ of mandamus to overturn the

decision.

2. Standard of Review

The writ of mandamus is codified at 28 U.S.C.

§ 165l(a): “The Supreme Court and all courts

established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and

principles of law.” This court has developed a five-

2la

factor test for determining whether a writ may issue.

We must consider whether:

(1) The party seeking the writ has no other

adequate means, such as direct appeal, to attain the

relief he or she desires.

(2) The petitioner will be damaged or prejudiced

in a way not correctable on appeal.

(3) The district court’s order is clearly erroneous

as a matter of law.

(4) The district court’s order is an oft-repeated

error, or manifests a persistent disregard of the

federal rules.

(5) The district court’s order raises new and

important problems, or issues of law of first

impression.

Clemens v. U. S. Dist. Ct., 428 F.3d 1175, 1177-

78 (9th Cir. 2005) (quoting Bauman v. United States

Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977)). Not

every factor must be present to warrant mandamus

relief, see id. at 1178, and in this case the only

disputed issue is whether the district court made a

clear error as a matter of law.

3. Analysis

Where, as here, the district court’s order involves

issues of statutory interpretation, the order is clearly

erroneous as a matter of law if the reviewing court is

left with “a definite and firm conviction that the

district court’s interpretation of the statute was

incorrect.” DeGeorge v. United States Dist. Court,

219 F.3d 930, 936 (th Cir. 2000) (citing Jn re

Cement Antitrust Litig., 688 F.2d 1297, 1306 (9th

Cir. 1982)); see also United States v. Ye, 436 F.3d

1117, 1123 (9th Cir. 2006). Here, the plain language

22a

of the statute makes clear that the affirmative

defense is not applicable to defendants’ actions.

In relevant part, § 7413(c)(5)(A) states, “(flor any

air pollutant for which the Administrator has set an

emissions standard ..., a release of such pollutant in

accordance with that standard ... shall not constitute

a violation of this paragraph.” The first clause of the

affirmative defense makes it inapplicable to Grace’s

alleged asbestos releases. Quite simply, asbestos is

not an “air pollutant for which the Administrator

has set an emissions standard.” § 7413(c)(5)(A)

(emphasis added). Rather, the Administrator has

set several emissions standards, each of which is

source dependent. Some asbestos emissions

standards make no reference at all to “visible

emissions.” See 40 C.F.R. §§ 61.143, 61.145, &

61.148. Others include additional procedural

requirements, above and beyond the “no visible

emissions” requirement. See 40 C.F.R. §§ 61.142,

61.144, 61.146, 61.149, & 61.150. In short, there is

simply no trans-categorical emissions standard for

asbestos; neither is there an emissions standard for

asbestos releases from mining _ operations.5

Therefore, it is inconceivable that the alleged Grace

releases were “in uccordance with that standard.”

§ 7413(c)(5)(A). The plain language of the statute

makes clear that the affirmative defense simply

doesn’t apply in this case. The district court’s order

5 A perusal of the table of contents for 40 C.F.R. § 61 shows

that most hazardous pollutants do in fact have a single

emissions standard, enumerated in a single code section. See,

e.g., §§ 61.22, 61.32, 61.42, 61.52. Asbestos, however, does not.

See §§ 61.142-.151.

23a

to the contrary leaves us with a “a definite and firm

conviction” that it got the law wrong. DeGeorge, 219

F.3d at 9936. Consequently, we grant the

government's petition for writ of mandamus, and

hold that W.R. Grace can not avail itself at trial of

the affirmative defense articulated in 42 U.S.C.

§ 7413(c)(5)(A).

IV. Evidentiary Rulings

1. Introduction

As stated above, Counts II-IV of the superseding

indictment allege violations of 42 U.S.C.

§ 7413(c)(5)(A), the Clean Air Act's knowing

endangerment provision, which creates criminal

penalties for a person who “knowingly releases into

the ambient air any hazardous air pollutant listed

pursuant to section 7412 of this title ... and who

knows at the time that he thereby places another

person in imminent danger of death or serious bodily

”

injury.” Defendants filed motions in limine seeking

to exclude evidence related to, or testimony based on,

certain studies—EPA indoor air studies (“Indoor Air

studies”), Grace’s historic testing of its vermiculite

products (“Historic Testing”), a report of the Agency

for Toxic Substances and Disease Registry based on

a medical screening study of residents of Libby,

Montana (“ATSDR Report”), and the results of the

screening study published as an article in a peer:

reviewed journal (“Peipins Publication”). Ruling

that these studies were unreliable, irrelevant, or

unduly prejudicial, the district court barred

government experts from relying on them in forming

opinions regarding the knowing endangerment

charges, and, as to the indoor air studies, the

ATSDR Report, and the Peipins Publication,

excluding the studies, report, and publication

24a

themselves for most or all purposes. Order, United

States v. W.R. Grace, 9:05-cr-O0007DWM (Aug. 21,

2006) (“Indoor Air Order”); Order, United States v.

W.R. Grace, 9:05-cr-00007-DWM (Aug. 28, 2006)

(“Historical Testing Order”); Order, United States v.

W.R. Grace, 9:05-cr-00007-DWM (Aug. 31, 2006)

(“ATSDR and Peipins Order”). The government

appeals.

2. Standard of Review

This court reviews de novo the district court's

interpretation of the Federal Rules of Evidence.

United States v. Sioux, 362 F.3d 1241, 1244 n.5 (9th

Cir. 2004). In general, this court reviews for abuse

of discretion a district court’s decision to admit or

exclude scientific evidence and expert testimony.

United States v. Finley, 301 F.3d 1000, 1007 (9th

Cir. 2002). “{A] trial court has ‘broad discretion’ in

assessing the relevance and reliability of expert

testimony.” Jd. (quoting United States v Murillo,

255 F.3d 1169, 1178 (9th Cir. 2001)).

25a

3. Relevant Rules

Federal Rule of Evidence 401 defines “relevant

evidence” as that which has “any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.”

Rule 402 provides that relevant evidence is

admissible, except as limited by the Constitution,

statutes, or other rules of evidence. Rule 403

provides a balancing test for the exclusion of

relevant evidence on the grounds of prejudice:

relevant evidence may be excluded if “probative

value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or

misleading the jury....”6

Several rules apply specifically to testimony by

experts. Under Rule 702, an expert witness may

provide opinion testimony if “the testimony is based

upon sufficient facts or data” and “is the product of

reliable principles and methods,” which have been

“applied ... reliably to the facts of the case.” The rule

“affirms the court’s role as gatekeeper and provides

some general standards that the trial court must use

to assess the reliability and helpfulness of proffered

expert testimony.” Advisory Comm. Notes, Rule 702

(2000).

6 Advisory committee notes from 1972 discuss the meaning of

unfair prejudice—the “undue tendency to suggest decision on

an improper basis, commonly ... an emotional one”—and

observe that the “availability of other means of proof may also

be an appropriate factor” of determining when there is unfair

prejudice.

26a

Under Rule 703, the “facts or data ... upon which

an expert bases an opinion or inference may be those

perceived by or made known to the expert at or

before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or

data need not be admissible in evidence in order for

the opinion or inference to be admitted.” However, if

the expert relies on facts or data that are otherwise

inadmissible, then those facts “shall not be disclosed

to the jury by the proponent of the opinion or

inference unless the court determines that their

probative value in assisting the jury to evaluate the

expert's opinion substantially outweighs their

prejudicial effect.”7

4. Analysis

A. Indoor Air Releases

i. Background

On May 31, 2006, Defendants filed a motion in

limine to exclude evidence of or derived from indoor

asbestos releases. Defendants sought to exclude

documents and studies, including EPA’s Phase II air

sampling charts, as well as expert testimony that

7 To the extent that inadmissible evidence is reasonably relied

upon by an expert, a limiting instruction typically is needed—

i.e., the evidence is admitted only to help the jury evaluate the

expert's evidence. £.g., United States v. 0.59 Acres of Land,

109 F.3d 1493, 1496 (9th Cir. 1997) (error to admit hearsay

offered as the basis of an expert opinion without a limiting

instruction). There is a presumption against disclosure to the

jury of inadmissible information used as the basis for expert's

opinion. See Adv‘sory Comm. Notes, Rule 703 (2000).

27a

relied upon these studies. See Defs’ Mot. in Limine

Re: Indvor Air Releases at 4-6 (Docket # 473).

On August 28, 2006, the district court granted

defendants’ motion “with respect to evidence of or

derived from indoor releases offered for the purpose

of proving an ‘ambient air’ release in violation of 42

U.S.C. § 7413(c)(5)(A).” Indoor Air Order at 11. The

district court held that “[iJndoor sampling performed

by EPA in the course of its CERCLA activities, and

testimony based upon this sampling, is not relevant

[under Fed. R. Evid. 402] to whether Defendants

committed a release in violation of the Clean Air Act,

and is not admissible for the purpose of proving such

a release.” Jd. at 8. The court stated that, under

Federal Rules of Evidence 403, “[elvidence derived

from EPA testing and sample collection performed as

part of its CERCLA analysis has the potential to be

highly confusing and prejudicial,” jd. at 10, and

barred the evidence for most purposes related to the

Clean Air Act counts. However, the court held that

the evidence had probative value with respect to

defendants’ “knowledge of the dangerous~ess of the

asbestos contaminated vermiculite,” id at 8,

relevant to the government’s argument that

defendants knowingly “place[d] another person in

imminent danger of death or serious bodily injury,”

42 U.S.C. § 7413(c)(5)(A), by releasing vermiculite

into the community. In addition, the district court

held the evidence relevant to the defrauding object of

Count I’s conspiracy charge and to the four counts of

obstruction of justice in the superseding indictment.

The district court thus denied the motion with

respect to establishing knowledge of risk for the

Clean Air Act charges and with respect to proving

the obstruction and conspiracy counts. The

government appeals the exclusion of the Indoor Air

28a

studies and expert testimony based upon them with

regard to the knowing endangerment counts.

u. Analysis

The government argues that EPA’s Phase II tests

show the propensity of the Libby asbestos to release

fibers whenever it was disturbed and regardless of

the form the vermiculite took and therefore should

be admitted to form the basis of expert testimony.

The government also makes an argument that the

Indoor Air studies should themselves be admitted as

relevant. However, although the government makes

a valid argument about the friability of Libby

asbestos being the same whether indoors or

outdoors, the probative value of the EPA studies is

possibly outweighed by the danger of unfair

prejudice. First, the studies’ overall probative value

is low because they largely concern the asbestos

releases at various indoor locations in Grace’s Libby

mining and milling operation. There is some

information in the studies regarding the friable

character of Libby asbestos, but not much. There is

a risk of unfair prejudice because the indoor releases

may not reflect the level of releases into the ambient

air, and there is some language in the studies

regarding asbestos-related diseases in Libby that

may mislead or confuse the jury into believing that

releases into indoor air proves releases into ambient

air. Finally, even if this court disagreed with the

district court's Rule 403 balancing, “[a]n appellate

court will not reengage in a balancing of the

probative value and prejudicial effect.” Rogers v.

Raymark Industries, Inc., 922 F.2d 1426, 1430 (9th

Cir. 1991). The district court’s decision to bar the

use of documents and studies derived from indoor air

29a

releases for the purpose of proving a release into the

ambient air was within its discretion.

It is a separate question, however, whether the

district court abused its discretion in excluding

expert testimony based on documents and studies

derived from indoor air releases. The district court

did not conduct an inquiry under Rule 702° or

7039 in its August 28th order. Rule 703 provides, “If

of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences

upon the subject, the facts or data need not be

admissible in evidence in order for the opinion or

inference to be admitted.” (Emphasis added.) The

government persuasively argues that the proper

remedy for the problems associated with the indoor

8 Fed. R. Evid. 702 provides, “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or -

education, may testify thereto in the form of an opinion or .

otherwise.” ,

9 Fed. R. Evid. 703 provides, “The facts or data in the

particular case upon which an expert bases an opinion or

inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be

admissible in evidence in order for the opinion or inference to

be admitted. Facts or data that are otherwise inadmissible

shall not be disclosed to the jury by the proponent of the

opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert's

opinion substantially outweighs their prejudicial effect.”

30a

air studies is to prevent an expert from disclosing

the prejudicial facts instead of preventing the expert

from relying on them altogether. Allowing expert

testimony based on the EPA studies “will assist the

trier of fact to understand the evidence or to

determine a fact in issue” under Rule 702 because

the studies may show the propensity of the asbestos-

contaminated vermiculite to release asbestos fibers

into the ambient air. While the specific asbestos

concentration levels discussed in the studies are not

relevant because the studies largely measured

indoor air releases and gathered data under

conditions different from the ambient air releases

relevant to the statute, the government's experts

should be permitted to opine generally about the

friability of Libby asbestos based in part on the data

in the studies. The data from the indoor sampling is

relevant to the propensity of Libby asbestos to

release fibers upon disturbance. Based on these

data, an expert could testify about friability and

whether a release of asbestos would occur if

asbestos-contaminated vermiculite were exposed or

disturbed. Because the district court did not inquire

into whether the data provided by the indoor air

tests is of the type reasonably relied upon by experts

in the field, see Fed. R. Evid. 703, or whether the

data fits under Rule 702, we remand so that the

district court can conduct these inquiries in the first

instance.

B. W.2. Grace’s Historic Product Testing

1. Background

On May 31, 2006, defendants filed a motion in

limine to exclude expert opinions regarding Grace's

historical, non-ambient air product and commercial

testing. Defendants sought to exclude the testimony

sla

of Dr. Richard Lemen,!® Dr. Vernon Rose,!! Paul

Peronard,!2 Dr. Aubrey Miller,13 Dr. Chris Weis,!4

and other government witnesses who might “attempt

to draw unsupportable correlations between Grace’s

historical product and commercial tests and expected

ambient air exposures from. disturbances of

vermiculite materials found in the town of Libby.”

Defs’ Mot. in Limine Re: Historic Testing at 4

(Docket # 496). On August 29, 2006, the district

court granted defendants’ motion to exclude expert

testimony based on historic testing offered to prove a

release in violation of 42 U.S.C. § 7413(c)(5)(A).

Historic Testing Order at 7. The district court

denied defendants’ motion with respect to expert

testimony based on historic testing offered for the

purpose of showing defendants’ knowledge of the

dangerousness of the asbestos contaminated

vermiculite. /d.

i. Analysis

Rule 702 authorizes expert testimony that “will

assist the trier of fact” when the testimony “is based

upon sufficient facts or data,” the testimony is

produced through “reliable principles and methods,”

and the expert witness “has applied the principles

10 Docket # 287.

11 Docket # 283.

12 Docket # 281.

13 Docket # 279.

14 Docket # 286.

32a

and methods reliably to the facts of the case.”

Generally, an inquiry under Rule 702 examines the

expert’s testimony as a whole. The 702 inquiry

typically does not examine the reliability or

relevance of particular data sets that underlie the

expert testimony, although this approach does no

harm where the expert testifies on only one study or

where no combination or addition of data could make

the data in question a proper, reliable basis for

making a given claim. In contrast to Rule 702’s

holistic focus on an expert’s testimony, Rule 703

governs the inquiry into the reliability of particular

data underlying expert testimony. Fed. R. Evid. 703;

see also Claar v. Burlington Northern R. Co., 29 F.3d

499, 501 (9th Cir. 1994).

Here, the district court excluded the historic

testing data under Rule 702. This document-based

approach creates the problem that one cannot know

fully whether or in what ways other information

sources are meant to, in combination with the

challenged data sources, form the premise for the

expert testimony. Each document must be

dispositive under the district court’s approach, a

requirement we do not impose under Rule 702. On

remand, the district court shall conduct the Rule 702

analysis in light of the expert’s reasoning and

methodology as a whole.

Faced with this new 702 analysis, defendants

presumably will argue, as they do on appeal, that

the historic testing evidence fails the “fit” test under

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

33a

(1993).15 In response, the government argues that its

experts do not plan to rely on the historic testing

data to estimate the fiber concentrations from the

charged releases, but only to opine generally on the

hazardous’ characteristics! of Libby asbestos

contaminated vermiculite. This limited use of the

study to inform experts’ opinions is permissible,

because the propensity of Libby asbestos to release

fibers fits the release element of the knowing

endangerment provision. The district court did not

consider this propensity-to-release inquiry, thus

abusing its discretion by excluding this evidence

under 702.

Defendants make two additional, ultimately

unsupportable arguments. First, they argue that

the testimony’s exclusion under Rule 702 was proper

because the government’s experts “do not need” the

evidence on historic air releases to testify about the

friability of Libby asbestos. This argument

misconceives Rule 702’s inquiry, which focuses on

fitness, relevance, and reliability, not on whether an

expert potentially has other evidence on which to

base an opinion. Second, defendants argue that the

district court properly excluded the testimony under

Rule 403 in addition to Rule 702. Contrary to

defendants’ assertion, however, the district court did

not rely on Rule 403 in its historic testing order but

discussed the admissibility of expert testimony only

15 This phrasing of the argument improperly focuses the 702

inquiry on a document-by-document approach that we

_disapproved supra.

16 [e., the propensity of Libby asbestos to break down and

release fibers into the ambient air.

34a

under Rule 702. Moreover, an expert reasonably

may rely on inadmissible evidence in forming an

opinion or delivering testimony. See Fed. R. Evid.

703.

The question remains whether data concerning

indoor air quality are of the type reasonably relied

on by other experts in the field. See Fed. R. Evid.

703. Although it appears that the district court

never conducted this 703 inquiry, the second step of

the Rule 702 analysis—that the study was “the

product of reliable principles and methods’—

presumably answers this question in the affirmative.

See Rule 702; see also Claar, 29 F.3d at 501 (“Rule

703 merely relaxes, for experts, the requirement that

witnesses have personal knowledge of the matter to

which they testify,” not whether the requirements of

702 are properly met). Although not stated

explicitly, the order implicitly found the historic

testing reliable in finding it admissible under 702 to

show knowledge. Historic Testing Order at 3-4.

Thus, the historic testing is admissible for purposes

of expert opinion formation and testimony regarding

the propensity of Libby vermiculite to release

asbestos as relevant to 42 U.S.C. § 7413(c)(5)(A).

Accordingly, we reverse the district court order

excluding such testimony.

C. Medical Screening Study: ATSDR and FPeipins

Publication

1. Background

In 2000-2001, the Agency for Toxic Substances

and Disease Registry (“ATSDR”) conducted a

medical screening study in Libby (the “ATSDR

Report”) to detect pleural abnormalities in Libby

residents and to inform priority-setting in EPA’s

35a

asbestos clean-up operation. The study entailed

interviewing and medically testing individuals who

had lived, worked, attended school, or participated in

other activities in Libby for at least six months

before 1990. Questions were asked to identify

individuals who had accessed potential “exposure

pathways” to asbestos and vermiculite prior to

December 31, 1990. For example, “pathways”

included employment at W.R. Grace, living with

W.R. Grace workers, using vermiculite for

gardening, and engaging in recreational activities in

certain locations known to contain vermiculite.

Information about other basic demographic variables

and risk factors was also gathered, e.g., age, sex,

smoking status, history of pulmonary disease and

various other self-reported health conditions.

ATSDR published an initial report of the study’s

findings in February 2001. The complete results of

the study (the “Peipins Publication”) were published

in November 2003 in Environmental Medicine, a

peer-reviewed journal. The Peipins Publication

analysis used regression modeling to estimate the

risk of respiratory abnormalities for each of the

exposure pathways while controlling for all other

pathways and other established and suggested risk

factors.

The study showed that certain factors—including

exposure to particular pathways—were associated

with respiratory illness and abnormalities. The

factors most strongly associated with abnormalities

were: being a former W.R. Grace employee, being

older, having had household contact with a former

W.R. Grace worker, and being male. (The study also

demonstrated “a statistically significant increase in

the prevalence of pleural abnormalities with an

36a

increasing number of exposure pathways.” While

“participants reporting more pathways might be

expected to have more cumulative exposure than

would those reporting fewer } athways,” this was not

data gathered by the study; the study identified

avenues for exposure but did not quantify the

duration or intensity of individuals’ exposures.

Both the interim ATSDR Report and the final

Peipins Publication noted that the study had no

control group and “no directly coraparable Montana

or U.S. population studies [were] available.” The

researchers were able to compare the data gathered

with studies of other groups with substantive work-

related asbestos exposure. The levels of pleural

abnormalities were higher in Libby than in studies

of other groups, but the study did not engage in any

direct quantitative comparison.!’

On May 31, 2006, defendants filed a motion in

limine “to exclude expert evidence relating to the

ATSDR Medical Testing Program.” Defs’ Mot. in

Limine Re: ATSDR (Docket # 500, 502). The district

court characterized the motion as one to exclude

“any evideace or expert testimony relating to” the

medical screening study conducted in Libby by the

Agency for Toxic Substances and Disease Registry.

ATSDR Order at 1. The government did not object

17 The results of the ATSDR Report were also compared with

“control groups or general populations found in other studies.”

That comparison showed that the levels of pleural

abnormalities were also higher in Libby for those who claimed

“no apparent exposure” to particular pathways than subjects in

other studies. This supported the study’s conclusion that it was

unlikely that there were individuals in Libby who had not been

exposed to some degree.

37a

to the court’s characterization of defendants’ motion.

On August 31, 2006, the district court granted

defendants’ motion. The court ruled that the ATSDR

Report and Peipins Publication, and any expert

testimony based thereon, were excluded under Rules

403 and 702 for any purpose relating to the Clean

Air Act knowing endangerment counts. Jd. at 31.

i. Analysis

The district court acted within its discretion in

excluding the ATSDR Report and Peipins

Publication themselves under Rule 403 for purposes

of the knowing endangerment counts. There are

limits to the probative value!® of the particular

correlations the ATSDR Report revealed and

potentially prejudicial aspects to the data.

Moreover, the government failed to contest the

district court’s undue prejudice conclusion. Because

Rule 403 requires the district court to balance the

probative value and the prejudicial effects of a piece

of evidence, failure to raise and argue prejudice .

18 The study demonstrated an association between negative

health outcomes and an individual’s unquantified exposure to

vermiculite via particular “pathways” prior to the statutory

period. The existence of association—and not causation—goes

to the probative value of the evidence. The reported findings

did not indicate that all exposure pathways were significantly

associated with lung abnormalities (for example, gardening

with vermiculite is not one of the factors mentioned as one

being associated with such abnormalities). Because the data

were gathered before the statutory period, it is questionable

how reliable a basis they provide for drawing conclusions about

the extent of the dangers posed by ambient releases during the

statutory period, i.e., concentration or duration of releases.

However, this is more an issue for the expert than the court.

38a

generally waives the argument. See United States v.

Wilson, 966 F.2d 243, 245-46 (7th Cir. 1992).

However, in excluding this evidence from

informing expert opinion and testimony, the district

court erred. The expert is, in the first instance, the

judge of what resources would help him to form an

opinion, and he can filter out as_ irrelevant

prejudicial information. The trial judge is to assure

the reliability of evidence by vetting under Rule 703

the bases underlying the expert’s testimony and by

examining under Rule 702 the expert's methodology.

Here, however, the trial judge misapplied Rule 702

and replaced inappropriately the Rule 703 analysis

with one under Rule 403.

To begin, the district court concluded that the

ATSDR medical screening program and resulting

analyses did not establish a causal link between

exposure to Libby’s vermiculite and the development

of asbestos-related disease. The ATSDR Report

acknowledged repeatedly that the testing program

was not designed as an epidemiological study to

show causality. Notably, there was no internal

control group and the participants were self-selected,

rather than randomly selected. In light of this, the

district court concluded that the data could not

provide experts with a reliable basis for opining as to

causality (i.e., the danger posed by the releases from

Libby vermiculite).

Nonetheless, one of the main objectives of the

ATSDR Report was to examine the association

between pleural and interstitial abnormalities and

participants’ exposure histories—measured in broad

terms by the participants’ overall contact with

exposure pathways. As the district court

acknowledged, the government’s experts did not

39a

claim that they intended to use the study to show

causation, but rather indicated that they would rely

on the evidence to show that there were some

associations or correlations between exposure to

vermiculite in Libby and pleural abnormalities.

The district court took the view that the jury

would be unlikely to distinguish between evidence of

an association and evidence of causation and

therefore would likely be misled, and would place

undue reliance on the evidence. In this respect, the

court substantially underestimated the capacity of

jury instructions to distinguish these relationships,

and the potential efficacy of a limiting instruction.

Further, the fact that a study is associational—

rather than an epidemiological study intended to

show causation—does not bar it from being used to

inform an expert’s opinion about the dangers of

asbestos releases, assuming the study is “of the type

typically relied upon” by experts in the field. Fed. R.

Evid. 703. Of course, the expert’s opinion testimony

must satisfy the requirements of Rule 702—but that

requires consideration of the overall] sufficiency of

the underlying facts and data, and the reliability of

the methods, as well as the fit of the methods to the

facts of the case. Fed. R. Evid. 702.

1 _ ve, the district court failed to consider the Rule

702 requirements with regard to causation. Instead,

as with the historical testing, the court conducted a

document-by-document Rule 702 analysis that

deconstructed the experts’ testimony in a manner

not contemplated by Rule 702. Moreover, the study,

which was published in a peer-reviewed journal and

relevant to association, is adequate under 702. The

study’s failure to establish causation goes to the

40a

weight it should be accorded, but does not mean that

an expert could not rely on it in forming an opinion.

Nor did the district court consider the possibility

of expert reliance on the ATSDR Report without

disclosure of the study itself to the jury, as provided

for by Rule 703 (“If of a type reasonably relied upon

by experts in the particular field in forming opinions

or inferences upon the subject, the facts or data need

not be admissible in evidence in order for the opinion

or inference to be admitted.”). In fact, the district

court generally failed to conduct a 703 analysis, such

as considering whether this study was “of the type”

relied upon by experts in the field, or whether the

ATSDR Report’s “probative value ... substantially

outweighs [its] prejudicial effect.” Fed. R. Evid. 703.

Instead, the district court excluded expert

testimony regarding the ATSDR Report under Rule

403. This ruling improperly replaced 703 balancing

with 403 balancing, cf Fed. R. Evid. 703 (providing

balancing test applicable to expert testimony), and

the exclusion of the ATSDR Report and Peipins

Publication as bases for expert testimony or opinicn

formation was error. While Rule 403 supplies a

basis for holding the underlying ATSDR Report

inadmissible, it does not contemplate barring an

expert from relying on it. Cf Fed. R. Evid. 403. The

exclusion of the ATSDR Report and the Peipins

Publication from expert consideration and testimony

was error, and thus we reverse that part of the

ATSDR Order.

ae V. Motion to Strike

In its reply brief to this court, the government

submitted six documents not included in the record

.below—two excerpts of the federal register (addenda

1 and 3), a report of the National Research Council

Ala

(addendum 2), published scientific articles (addenda

5 and 6), and search results presumably from the

CAS Registry (addendum 4). Defendants moved to

strike four of the documents (addenda 2, 4, 5, and 6)

on the grounds that they were not part of the record

below, were misleading, and, by virtue of their

submission in the reply brief, were presented

without giving defendants an opportunity to

respond.

In general, we consider only the record that was

before the district court. We have made exceptions

to this general rule in three situations: (1) to “correct

inadvertent omissions from the record,” (2) to “take

judicial notice,” and (3) to “exercise inherent

authority ... in extraordinary cases.” Lowry v.

Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2008).

Considerations of institutional expertise and notice

support our limitation of these exceptions to

“unusual circumstances.” Jd.

The search results in addendum item 4 fit none of

these exceptions. Addendum items 2, 5, and 6 fit

within the second exception—we have discretion to

take judicial notice under Rule 201 of the existence

and content of published articles. See Bell Atlantic

Corp. v. Twombly, __ U.S. __, ___ n.13, 127 S. Ct.

1955, 1973 n.13 (2007); United States v. Rutgard,

116 F.3d 1270, 1278 (9th Cir. 1997). However, as we

have stated before, the appropriate manner to

supplement the record on appeal is “by motion or

formal request so that the court and opposing

counsel are properly apprised of the status of the

documents in question.” Lowry, 329 F.3d at 1025.

The government failed to so move, and thus we grant

defendants’ motion to strike. However, due to the

reversal and remand on certain issues, our ruling

42a

here does not preclude application to the district

court for inclusion in the district court’s record for

whatever use is appropriate.

CONCLUSION

We reverse the order dismissing the knowing

endangerment object of Count I of the superseding

indictment. We reverse the order adopting the

regulatory definition of asbestos used for civil

regulation and direct that the definition in the

criminal statute, i.e., the definition provided in 42

U.S.C. § 7412(b), applies. We grant the

government's request for a writ of mandate. We

affirm the exclusion of the indoor air studies, the

ATSDR Report, and the Peipins Publication

themselves. However we reverse their exclusion—

and the exclusion of the historic testing—as bases

underlying an expert's opinion or _ testimony.

Finally, we grant defendants’ motion to strike the

documents included with the government’s reply

brief to this court.

AFFIRMED in part, REVERSED in part, and

REMANDED.

WRIT OF MANDAMUS GRANTED on one issue.

43a

APPENDIX B

DENIAL OF REHEARING EN BANC

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

No. 06-30472

W.R. GRACE; ALAN R. STRINGER: D.C. No. CR-05-00007-DWM

HENRY A. ESCHENBACH; JACK W.

WOLTER: J. MCCAIG; ROBERT J.

BETTACCHI; O. MARIO FAVORITO;:

ROBERT C. WALSH,

Defendants-Appellees.

)

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

No. 06-30524

W.R. GRACE; ALAN R. STRINGER: D.C. No. CR-05-00007-DWM

HENRY A. ESCHENBACH:; JACK W.

WOLTER; WILLIAM MCCAIG:

ROBERT J. BETTACCHI;: O. MARIO

FAVORITO: ROBERT C. WALSH,

Defendants-Appellees.

Nee ee OO Oe ee es’ SD ~~ ~

Before: B. FLETCHER, PREGERSON, and

FERGUSON, Circuit Judges.

Judge Pregerson has voted to deny the petitions

for rehearing en banc and Judges B. Fletcher and

44a

Ferguson so recommend.

The full court has been advised of the petitions

for rehearing en banc and no judge has requested a

vote on whether to rehear the matter en banc. Fed.

R. App. P. 35.

The petitions for rehearing en banc are denied.

45a

APPENDIX C

DISTRICT COURT OPINION-

ORDER ON MOTIONS IN LIMINE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

UNITED STATES OF AMERICA, CR 05-07-M-DWM

Plaintiff

vs.

W.R. GRACE, ALAN R. STRINGER,

HENRY A. ESCHENBACH, JACK W.

WOLTER, WILLIAM J. MCCAIG;

ROBERT J. BETTACCHI; O. MARIO

FAVORITO, ROBERT C. WALSH,

Defendants.

ORDER

i i i i a a a a a a

I. Introduction

The difficult question presented now is what the

Congress meant when it used the term “asbestos.”

How the word is defined has significant legal

ramifications in this criminal case. The definition of

“asbestos” sets the parameters of the Clean Air Act’s

criminal prohibitions and affects the likelihood that

alleged conduct in this case will be deemed criminal.

If the word “asbestos” as applied in the criminal law

includes varieties of winchite and richterite the

46a

criminal case involved here is dramatically different

than if “asbestos” is defined as the phrase has

historically been used by every governmental

regulatory agency to address the issue.

The issue gets resolved through motions in limine

filed by all parties seeking a ruling on the definition

of the term “asbestos” as it appears in the Clean Air

Act, 42 U.S.C. § 7412(b)(1).1 The government urges

the Court to adopt a broad reading of the term to

include all of the minerals comprising what the

government calls “Libby amphibole.” The

Defendants argue that the proper definition is the

narrower one set forth in the _ regulations

implementing the Clean Air Act, which excludes the

minerals that comprise the majority of the

amphibole found in Libby. For the reasons that

follow, I find that the limited definition advocated by

the Defendants applies to the Clean Air Act offenses

charged in this case.

II. Background

The Superseding Indictment alleges that the

vermiculite mined in Libby was contaminated with

amphibole asbestos “composed of a family of closely

related minerals including tremolite, winchite,

richterite, actinolite and others.” Superseding

1 The motions at issue are the government’s Motion in limine

#2 to Faclude Evidence and Argument that Defendants Were

Reguiated by the Clean Air Act's NESHAPs Program (Doc. No.

462) and the Defendants’ Joint Motion in limine to Exclude

Evidence Based on Sample Results Indicating the Presence of

Fibers from Minerals that do not Constitute “Asbestos” Under

the Clean Air Act (Doc. No. 474, filed by Defendant Bettacchi

on behalf of all Defendants).

47a

Indictment (Doc. No. 590) at 94. According to the

Superseding Indictment, “[t]his amphibole asbestos

has been commonly called ‘tremolite.” Jd. However,

the United States Geological Survey (USGS),

working in conjunction with the Environmental

Protection Agency (EPA) on the Libby clean-up,

analyzed the amphibole at the Libby mine and

concluded that “approximately 84% of the

amphiboles can be classified as winchite, 11% as

richterite, and 6% as tremolite.” Exhibit C to

Supplemental Expert Witness Disclosure of Gregory

P. Meeker, p. 1959.

The EPA acknowledged the reality on the ground |

in Libby when its Office of Air Quality Planning and

Standards issued a report titled Action Plan: Air

Emission from Sources of Contaminant Asbestos.

The report states on page 2: “The asbestiform

minerals found at the Libby, MT site were originally

thought to be tremolite asbestos, but more

specifically may be the asbestiform varieties of

winchite and richterite, neither of which is regulated

explicitly by any EPA regulation.”

The Defendants are charged in Counts II through

IV of the Superseding Indictment with violating the

Clean Air Act’s knowing endangerment provision.2

The knowing endangerment offense is codified at 42

U.S.C. § 7413(c)(5)(A), which provides in part:

Any person who knowingly releases into the

ambient air any hazardous air pollutant

2 Defendant Grace is charged alone in Count II; Counts III and

IV name Defendants Grace, Stringer, Wolter and Bettacchi.

Superseding Indictment at Jf 185-190.

48a

listed pursuant to section 7412 of this title or

any extremely hazardous substance listed

pursuant to section 11002(a)(2) of this title

that is not listed in section 7412 of this title,

and who knows at the time that he thereby

places another person in imminent danger of

death or serious bodily injury shall, upon

conviction, be punished by a fine under Title

18, or by imprisonment of not more than 15

years, or both.

Section 7412(a)(6) defines “hazardous air

pollutant” as “any air pollutant Listed in [Section

7412(b)].” Section 7412(b)(1) provides a compendium

of hazardous air pollutants listed by their chemical

mames and in most cases accompanied by the

corresponding Chemical Abstract Services (CAS)

number. Included on the list is “Asbestos,” along

with its CAS number 1332214.

Although the criminal knowing endangerment

provision of 42 U.S.C. § 7413(c)(5)(A) refers to § 7412

for its list of proscribed pollutants, § 7412 is not a

criminal statute. It is part of a civil regulatory

scheme intended to set emissions standards for

certain regulated sources of pollution. Following the

1990 Amendments to the Clean Air Act, EPA was

required to identify categories of sources’ for each of

3 There are two types of sources relevant to this discussion. A

“major source” is

any stationary source or group of stationary

sources located within a contiguous area and

under common control that emits or has the

potential to emit considering controls, in the

aggregate, 10 tons per year or more of any

hazardous air pollutant or 25 tons per year or

49a

the pollutants listed in § 7412(b)(1). Congress then

directed EPA to promulgate regulatory emissions

standards for all major sources and for those selected

area sources which EPA determines present a threat

of adverse health effects. 42 U.S.C. § 7412(a)(1)-(3),

(c)(1)-(3), (d)(1). These standards are known as

National Emissions Standards for Hazardous Air

Pollutants, or NESHAPs. This statutory command

was accompanied by a savings provision at 42 U.S.C.

§ 7412(q1), which clarified that pre-existing

regulatory standards in effect under the prior

version of the section would remain in effect

following the 1990 Amendments.

One such pre-existing standard was set forth in

regulations established in response to the enactment

of the Clean Air Act of 1970. The regulations,

established in 1973, set emissions standards for

asbestos. 38 Fed. Reg. 8820, 8826 (April 6, 1973).

The regulations include a definition of asbestos for

purposes of § 7412 of the Clean Air Act that has been

substantially unchanged since 1973 and was in effect.

at the time of the 1990 Amendments to the Act. The

definition is codified at 40 C.F.R. § 61.141 and

states: “Asbestos means the asbestiform varieties of

serpentinite (chrysotile), riebeckite (crocidolite),

cummingtonite-grunerite, anthophyllite, and

more of any combination of hazardous air

pollutants.

42 U.S.C. § 7412(a)(1).

An “area source” is “any stationary source of hazardous

air pollutants that is not a major source.” 42 U.S.C.

§ 7412(a)(2).

50a

actinolite-tremolite.”4 Section 61.141 appears under

the heading “Subpart M-National Emission

Standard for Asbestos.” Also under that heading is

40 C.F.R. § 61.140, which states: “The provisions of

this subpart are applicable to those sources specified

in §§ 61.142 through 61.151, 61.154, and 61.155.”

The parties agree that Defendant Grace’s Libby

mine was not a regulated source under § 61.140 and

was therefore not subject to the civil regulatory

emissions standards established under that subpart.

The Defendants argue that § 61.141’s six-species

definition of asbestos is nonetheless applicable in

this case because that regulation interprets

§ 7412(b)(1), which in turn supplies’ the

identification of hazardous air pollutants for

§ 7413(c)(5)(A), the section defining the criminal

offense. ‘The United States argues that the six-

species definition should not apply because it

appears in a civil regulation and therefore cannot be

relied upon to define the content of a criminal

offense. The parties have attempted to force a

resolution of this dispute once before, but the Court

deferred consideration of the matter until trial. See

United States v. W.R. Grace, 429 F. Supp. 2d 1207,

1238 (D. Mont. 2006).

4 Similar definitions of “asbestos” appear elsewhere in the

regulatory state, including: 29 C.F.R. § 1910.1001 (adopted by

OSHA); 30 C.F.R. § 71.702(a) (adopted by MSHA); 16 C.F.R. §

1304.3(b) (adopted by CPSC); and 40 C.F.R. § 763.163 (adopted

by EPA). Also, Congress similarly defined “asbestos” in the

Asbestos Hazard and Emergency Response Act (“AHERA”), 15

U.S.C. § 2642(3), enacted in 1986.

5la

Since then, the parties’ expert disclosures have

revealed that each side intends to present expert

testimony that assumes that the legal definition of

“asbestos” for purposes of the Clean Air Act will be

the one it favors. The government's witnesses intend

to give opinions on the dangers of “Libby amphibole,”

the composite of all minerals found in Libby

including winchite and richterite.5 The Defendants

have retained expert witnesses who intend to testify

that winchite and richterite are not regulated by any

federal agency.§ If the legal dispute is left

unresolved, the jurors will hear lengthy and

potentially confusing testimony from two distinct

sets of experts offering opinions based on different

standards which cannot both be correct. How

asbestos is defined is a legal question that when

answered will dictate the nature and kind of proof

that can be presented to the jury.

III. Analysis

A. Legal standard

The pending motions present a question of

statutory construction. Because this is an issue of

statutory construction, the parties’ extensive citation

to one another's historical positions on the

interpretation and applicability of the emissions

5 See for example expert witness disclosures for government

witnesses Gregory P. Meeker, James Millette, Christopher

Weis and Aubrey Miller.

6 See for example expert witness disclosures for defense

witnesses Charles Blake, Arthur Langer, Elizabeth Anderson,

Joseph Rodricks, Mickey Gunter, Richard Lee, Fred Pooley and

John Addison.

52a

regulations is not helpful. Evidence of a party's

previously adopted interpretation, whether it be the

government or the Defendants, is no use in

determining what Congress intended in enacting 42

U.S.C. § 7413(c)(5)(A). In this regard, allegations

that a party is attempting to “have it both ways” are

particularly inapposite, as the canons of statutory

construction do not employ principles of estoppel.

In interpreting a criminal statute to determine

what it meuns, courts must look first to the language

of the statute, and second to the legislative history of

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

1283 (9th Cir. 1994). A court should seek to “give

effect to the plain, common-sense meaning of the

enactment without resorting to an interpretation

that defies common sense.” United States v. Bonilla-

Montenegro, 331 F.3d 1047, 1051 (9th Cir. 2003)

(internal quotation marks omitted). The plain

language of the statute is to be ignored only when a

literal interpretation of the statute would thwart the

purpose of the statutory scheme and lead to an

absurd result. County of Santa Cruz v. Cervantes,

219 F.3d 955, 960 (9th Cir. 2000). Courts should

also reject any interpretation that would render

another statutory provision surplusage or a nullity.

Id. at 961. Resort to the legislative history for aid in

interpreting a statute is only appropriate when the

terms of the statute are ambiguous. Burlington N.

R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454,

461 (1987) (“Unless exceptional circumstances

dictate otherwise, when we find the terms of a

statute unambiguous, judicial inquiry is complete.”

(internal quotation marks omitted)).

When a criminal statute’s meaning remains

ambiguous after application of the rules of statutory

53a

construction, the rule of lenity requires that the law

be interpreted to cover only conduct that clearly falls

within its scope. United States v. Lanier, 520 U.S.

259, 266 (1997); United States v. Shabani, 513 US.

10, 17 (1994).

B. Discussion

1. The Court’s prior CERCLA Order

The government first argues that this Court has

already decided the matter at issue during the EPA’s

civil enforcement action against Grace. The

government cites the March 9, 2001 Order in which

the Court wrote, “The Action Memorandum

demonstrates a ‘reasonable basis’ to believe that

asbestos contamination is a problem in Libby. The

conclusion is as plain to see as the East Front of the

Rocky Mountains.” United States v. Grace, 134

F. Supp. 2d 1182, 1188 (D.Mont. 2001). The

government argues that because this finding was

“not limited to one of the six commercial types of

asbestos,” Govt.’s Br. (Doc. No. 462) at p. 5, it

constitutes a finding that all of the “Libby

amphibole,” including winchite and richterite, is

asbestos for purposes of the Clean Air Act.

The flaws in the government’s argument are self-

evident. The 2001 Order was issued in the context of

a civil clean-up action under the Comprehensive

Environmental Response, Compensation and

Liability Act (CERCLA). It did not consider or rule

upon any provision of the Clean Air Act, particularly

the criminal part of that law. Moreover, the

language of the opinion is an analysis of whether the

EPA had a reasonable basis to believe there may

have been at the time a “release or threat of release

of a hazardous substance or pollutant or

contaminant” under CERCLA, 42 US.C.

54a

§ 9604(e)(5(B). CERCLA defines “pollutant or

contaminant” very broadly to include, but not be

limited to:

[A]ny element, substance, compound, or

mixture, including disease-causing agents,

which after release into the environment and

upon exposure, ingestion, inhalation, or

assimilation into any organism, either

directly from the environment or indirectly

by ingestion through food chains, will or may

reasonably be anticipated to cause death,

disease, behavioral abnormalities, cancer,

genetic mutation, physiological malfunctions

(including malfunctions in reproduction) or

physical deformations, in such organisms or

their offspring ....

42 U.S.C. § 9601(33). Given this broad definition, it

is clear that the Court could have found that EPA

had a rational basis for its belief that there was a

present threat of a release of a hazardous pollutant

or contaminant without necessarily finding that

winchite and richterite are “asbestos” for purposes of

the Clean Air Act. The CERCLA statute strives to

clean and restore the environment. The criminal

part of the Clean Air Act seeks to establish

culpability for harmful events in the environment

that cause serious risks to the well being of humans.

2. Interpretation of 42 U.S.C. §§ 7413(c)(5)(A) and

7412(b)(1)

Section 7413(c)(5)(A) poses a_— difficult

interpretative challenge because it draws _ its

definition of “hazardous air pollutant” from § 7412,

which is a civil regulatory statute. The matter is

complicated by the existence of a NESHAP Program

regulation promulgated under § 7412 that defines

55a

“asbestos.” Normally, an implementing regulation is

a legitimate place to search for clarification of the

meaning of a statute. On the other hand, the

language of § 7412(b)(1) includes not just the word

asbestos but also a corresponding CAS number,

suggesting that Congress felt the proper path to an

interpretation runs through the CAS registry.

Regardless of which path one follows, the conclusion

is an ambiguous statute that must be construed so

that it criminalizes only conduct that is clearly

prohibited.

If reading the Clean Air Act’s criminal knowing

endangerment provision is confined to the text of the

statute, the reader is left with a general description

of “asbestos” as one of the prohibited hazardous air

pollutants. The government urges the Court to

confine its reading of the statute to that single word

definition, which would make the jury’s finding

regarding this element dependent entirely on expert

testimony as to what minerals constitute asbestos.

But as is clear from reading the CAS registry

(discussed in greater detail below), the Code of

Federal Regulations, and the many _ expert

disclosures filed in this case, there is not a consensus

on the definition of asbestos. A defendant on trial

for releasing “asbestos” would be apprehensive about

the prospect of his fate turning on which expert the

jury found most persuasive in describing which

minerals fall within the scope of the criminal offense.

More problematic is that disputed expert testimony

would define an element of the offense, a matter that

is the province of the court. Thus, § 7412(b)(1)’s use

of the term “asbestos” fails to provide the requisite

fair warning about what conduct is considered

criminal. See Lanier, 520 U.S. at 266-267.

56a

But the text of the statute is not all there is to go

on in determining what conduct has been proscribed.

The regulations implementing § 7412 provide the

six-species definition of asbestos advocated by the

Defendants. The. government argues that reference

to the regulations is inappropriate because “this is

not a NESHAPs case.” Govt.’ s Reply Br. at p. 2.

The argument is correct on that point, and the

Defendants have not argued otherwise. Even so,

this is not a civil case either, yet § 7413(c)(5)(A)

relies upon a civil regulatory statute (§ 7412(b)(1))

for its listing of hazardous air pollutants. The

conundrum the government must explain is why

reliance on a civil statute is permissible but reliance

on a civil regulation is not.

The answer from the government is that the

regulatory definition does not apply because it is

part of a regulatory scheme that did not govern

Grace’s Libby operation. Because the Libby

amphibole is a contaminant in the vermiculite mined

by Grace, the Libby mine was not a regulated source

under the NESHAPs Program. 40 C.F.R. § 61.140.

As a result, the government argues, the definition of

asbestos supplied in the NESHAPs regulations does

not apply to this case. The Defendants point out

that the government’s position would give the word

“asbestos” two different meanings within the same

statute. If the release comes from a regulated source

under 40 C.F.R. § 61.140, then the substance

released is asbestos only if it is one of the six species

listed in 40 C.F.R. § 61.141. If on the other hand the

same substance is released from an unregulated

source such as the Libby mine, then, according to the

government, the definition of asbestos is broader.

The government does not clarify the boundaries of

57a

this “broader” definition, except to say that it

includes winchite and richterite.

To bolster its argument the government notes

that Congress, in enacting AHERA in 1986, included

the six-species definition within the text of the

statute. According to the government, AHERA

shows that when Congress means for the six-species

definition of asbestos to apply, it is capable of saying

so in the statutory text. This argument fails to

account for the fact that there were Clean Air Act

regulations adopting the six-species definition of

“asbestos” in place at the time of the 1990

Amendments to the Act. That regulatory definition

remained in effect after the 1990 Amendments

pursuant to the savings provision in § 7412(q)(1).’

So while Congress did not expressly define

“asbestos” in the text of the statute as it did in

AHERA, Congress did expressly adopt the existing

reg

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