# Petition for Writ of Certiorari — Eschenbach v. United States (Nos. 07-1287, 07-1286) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1348%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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. ii 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 iv 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 Vv 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.............. vi 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 Tee. ees, IE WP ics ina a. sais secinaeueerdcmeuns 7,21 Vill Page(s) Statutes NI oi iinssiic sh enniteaniisianddenibivebeniiavedekinsoniela 10 I chsiinsninebisdiickoisessepesssoebbeniesusobelall 110 30 I . . - cevusersissbdbiveassiberavasecsciannanlll 23 iiss sccevsisnissacécllshadevenisreseiseseanain 13 TEL ERT eae 30 Re I .... ..avivesniwvesiodiessustnedosesaoisabieaenl 29 EE isiveinscswcucevacsesoteguilenisseseeteumeiebaseenanninn 29 ii drip cd nccueceninasdecrikiundtavutsevesesoee passim Be I I tate onc: sisdvnsindveveesavsnucbavadeneiseccmmensaealiae 28 Se ciciicsiniicssinavnaintnvvncn ssnieecedinmnvednthcemceasaaaaneia 1 LOO INOS. 4,13 ee itis citinbichninsiccutnntiniaaitcstcsiisscenednins passim 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, BOG Be, Te TE wee vvciccvccccesoscdcccccocaccccoscscess 11, 372 Regulations Te Oy EE iiisiaiinivacviidadciocceei ieee 10 , Lee F eh: rn Sma 10 I . sccensnsedussveicesacvsdmaveessibvn 10 ia... a scsssinescsnencnsectscnsenescoseieese 4,10 oe covcsesestvasersessscseassonceoss 10 36 Fed. Reg. 23,239 (Dec. 7, 1971) ..........ccccccceeeeeeeee 10 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 2 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 * * * (c) List of source categories (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 3 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 4 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 5 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 6 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 7 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. 8 347, 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. 9 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. 10 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. 11 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. 12 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, 13 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. 14 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 15 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. - 16 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 17 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 18 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 19 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 20 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 21 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 22 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. 23 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 . ” 24 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 25 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 26 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). 27 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 28 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 29 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 30 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. 31 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] 32 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 33 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”). 34 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”). 35 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 wR 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: 37 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 38 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. ) J 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 2a 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, 3a 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 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 regulatory standards, including the definition of “asbestos” found at 40 C.F.R. § 61.141. Congress: also adopted the regulatory language limiting the - applicability of the NESHAPs Program to a list of sources that does not include Grace’s Libby operation. See 40 C.F.R. § 61.140. Statutory ambiguity exists when a single-word definition of a hazardous air pollutant can have two different meanings depending on the manner of the 7 42 U.S.C. § 7412(q)(1) provides in part: “Any standard under this section in effect before the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990] shall remain in force and effect after such date unless modified as provided in this section before the date of enactment of such Amendments or under such Amendments.” 58a release. The government wants to ignore the NESHAPs regulations because they are not part of the statute. The problem with that argument is that § 7412 contemplates and in fact requires that regulations be promulgated to establish national emissions standards. 42 U.S.C. § 7412(a)(1)-(3), (c)(D)-(3), Cd). Without the regulations § 7412(b)(1)’ s listing of hazardous air pollutants is meaningless. Absent reference to the regulations a citizen is left with no guidance about prohibited conduct except the unsatisfactory one-word definition of asbestos in § 7412(b)(1). The statute creates an ambiguity. Section 7412’s reference to: “asbestos” does not provide fair notice as to which minerals are hazardous air pollutants; the statute’s implementing NESHAPs regulations provide a definition, but the civil regulatory nature of the NESHAPs Program renders the applicability of the regulations questionable in the criminal context. Reliance upon the CAS number for asbestos provides no greater clarity. Section 7412(b)(1) includes CAS numbers for nearly every pollutant listed in that section. Of the few pollutants lacking CAS numbers, the statute provides definitions for all . but one. This leads to an inference that the CAS number is intended to serve a definitional function in § 7412(b){1). The Chemical Abstract Service is a division of the American Chemical Society. The CAS registry itself is a privately maintained database that cannot be directly accessed unless a fee is paid. The United States points out much of the database’s content appears to be available on the EPA’s website. Each CAS registry entry consists of a list of information fields for each entry. Information fields includ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1348%3A1. Public record. Not legal advice.