# Reply Brief — Eschenbach v. United States (Nos. 07-1287, 07-1286)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1348%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2007

## Text

FILED |
(4) JUN 2- 2008 |

OFFICE OF THE CLERK
SUPREME COURT, U.S.

No. 07-1287 _

IN THE

Supreme Court of the Gnited States

HENRY A. ESCHENBACH, ET AL.,
Petitioners,
Vie

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth
Circuit

REPLY BRIEF FOR THE INDIVIDUAL
PETITIONERS

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 David S. Krakoff
GOUGH, SHANAHAN, Gary A. Winters
JOHNSON & W \TERMAN David M. Gossett
33 South Last Chance James T. Parkinson

Gulch MAYER BROWN LLP
Helena, MT 59601 1909 K Street NW
(406) 442-8560 Washington, DC 20006

(202) 263-3000

Counsel yor Defendant-Petitioner Henry A.

Eschenbach
Palmer Hoovestal Elizabeth Van Doren
HOOVESTAL LAW FIRM, Gray
PLLC SOWELL, GRAY, STEPP, &
P.O. Box 747 LAFFITTE, LLC
Helena, MT 59624 P.O. Box 11449
(406) 457-0970 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 Gailik

GCETZ, 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
Aimee M. Grmoljez
BROWNING KALECZYC
BERRY & HOVEN P.C.
P.O. Box 1697

Helena, MT 59624
(406) 443-6820

Stepher. 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

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES
INTRODUCTION
ARGUMENT
CONCLUSION

il

TABLE OF AUTHORITIES

Cases
Barapind v. Enomoto,
400 F.3d 744 (9th Cir. 2005)
Bouie v. City of Columbia,
378 U.S. 347 (1964)
Estelle v. Gamble,
429 U.S. 97 (1976)
Mazurek v. Armstrong,
520 U.S. 968 (1997)
Sabri v. United States,
541 U.S. 600 (2004)
Toussie v. United States,
397 U.S. 112 (1970)
United States v. Approximately 64,695 Pounds of
Shark Fins,
520 F.3d 976 (9th Cir. 2008)
United States v. Gen. Motors Corp.,
323 U.S. 373 (1945)
United States v. W.R. Grace,
455 F. Supp. 2d 1133 (D. Mont. 2006)
United States v. W.R. Grace,
No. 06-30192, 2008 U.S. App. LEXIS 10453
(9th Cir. May 15, 2008)
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc..,
455 U.S. 489 (1982)

Statutes
18 U.S.C. § 3288

Other Authorities

Andrew Schneider, Big Asbestos Prosecution in
Jeopardy, U.S. Argues, Seattle Post
Intelligencer, June 5, 2007

INTRODUCTION

On the fundamental issue raised by the
individual petitioners, the government’s brief in
opposition (“U.S. Br.”) neither defends the merits of
the Ninth Circuit’s ruling nor claims that its
approach was consistent with the precedents of this
Court or the other federal courts of appeals. Though
conceding that the Ninth Circuit did “refer to”
petitioners’ “knowledge of asbestos,” U.S. Br. 21, the
government does not argue that this was a correct
standard, or one that has been accepted by this
Court or other courts. Rather, implicitly
acknowledging the unprecedented—and
erroneous— nature of the Ninth Circuit’s approach,
the government claims that the Ninth Circuit’s
remarks were merely “dictum.” U.S. Br. 22. But
even a cursory review of the Ninth Circuit’s opinion
shows that the panel relied heavily on the
petitioner’s supposed subjective knowledge of
“asbestos.” This unprecedented use of subjective
intent to assess the notice provided by a statute—
exacerbated by the utter lack of evidentiary
foundation for the panel’s speculation—is a
dramatic and far-reaching departure from precedent
that requires this Court’s immediate review.

As discussed thoroughly in W.R. Grace’s reply, in
which the individual petitioners join, the
government’s other reasons for denying the petitions
are insubstantial, and sometimes border on the
disingenuous. Contrary to the government's primary
argument, the interlocutory posture of this petition
provides no basis for denying review. The issue
presented in this petition is dispositive of the
substantive Clear Air Act (“CAA”) charges and the

2

CAA object of the conspiracy alleged in the
indictment. A pretrial decision affirming the district
court’s definition of “asbestos” would therefore
substantially shorten the trial.

Considerations of fairness, effective judicial
review, and conservation of judicial resources all
favor prompt review. The individual petitioners are
all more than 68 years old and have been under
indictment for more than three years. The
government has estimated that its case-in-chief will
include more than 230 witnesses and almost 750
exhibits. There is no reason that these aging
petitioners should face a long and unnecessary trial
under a manifestly erroneous legal standard. The
CAA charges that depend on this ruling also carry

the risk of substantial cross-over prejudice.
Moreover, if the petitioners were to prevail at trial,
the Ninth Circuit’s erroneous ruling would escape
this Court’s review. Finally, having initiated this
interlocutory appeal, the government cannot credibly
complain about additional delay that may result
from the orderly conclusion of that process.

Certiorari is also warranted to correct the Ninth
Circuit’s distorted reading of 18 U.S.C. § 3288. The
plain language of § 3288 articulates Congress’s
intent in affording prosecutors the ability to correct
flaws in an indictment except where a charge—here,
the conspiracy’s knowing endangerment object—was
not brought within the applicable statute of
limitations. The fundamental due process protection
provided to defendants by the statute of limitations
must be respected in the Ninth Circuit, as in other
federal courts.

3

ARGUMENT

1. The government does not seriously defend the
Ninth Circuit's use of petitioners’ supposed
subjective intent in assessing whether the CAA
provided fair notice that its definition of “asbestos”
includes richterite and winchite. Nor does the
government argue that the Ninth Circuit’s approach
is consistent with the precedents of this Court or
other federal courts of appeals. Rather, it dismisses
the Ninth Circuit’s approach as “dictum,” claiming
that the Ninth Circuit held that “the statute alone
provided fair notice.” U.S. Br. 21-22. But this
statement appears nowhere in the court’s opinion;
rather, the Ninth Circuit’s holding rests squarely on
the petitioners’ putative knowledge. Even if the
holding were considered to be dictum, it is still, as
noted in Grace’s reply, “circuit law.” Barapind uv.
Enomota, 400 F.3d 744, 750-51 & n.8 (9th Cir. 2005)
(en banc). Tellingly, the Ninth Circuit incorporated
its reasoning into its specific holding, finding that
“[a]sbestos is adequately defined as a term and need
not include mineral-by-mineral classifications to
provide notice of its hazardous nature, particularly
to these knowledgeable defendants.” Pet. App. 19a-
20a.

The government claims, relying on a subsequent
Ninth Circuit panel opinion that recites the fair
notice standard applied by other federal courts of
appeals, U.S. Br. 22 n.11 (citing United States v.
Approximately 64,695 Pounds of Shark Fins, 520
F.3d 976, 980 (9th Cir. 2008)), that the law of the
Ninth Circuit is consistent with that of other
circuits. This argument is wrong. Shark Fins was
an in rem forfeiture action involving no individual

4

defendants and presenting no issue of a defendant’s
subjective intent, see 520 F.3d at 980-81. The case
therefore provides no guidance as to whether, in a
case analogous to this one, the Ninth Circuit would
persist in looking beyond the core fair notice
standard and consider subjective intent. The
government has identified no other case in which a
federal court of appeals has authorized such an
approach in general, let alone on a record devoid of
any evidence bearing on that subjective intent. This
petition therefore presents a divergence requiring
this Court’s review.

The government seeks to minimize the extent of
the Ninth Circuit’s deviation from standard practice
(and its unfair impact on the petitioners) by citing
cases suggesting, largely in the context of facial

challenges rather than actual prosecutions, that a
statute need only provide notice to members of a
particular specialized community. See U.S. Br. 19
(citing cases to argue that “asbestos as defined by
the CAS registry has a sufficiently clear meaning in
the relevant industry”). In advancing these argu-
ments, the government, like the Ninth Circuit,
deviates from this Court’s clear directive in Bouie v.
City of Columbia, 378 U.S. 347, 355 (1964). Bouie
held that the adequacy of notice provided by a
statute depends on its own words, not on the “basis
of an ad hoc appraisal of the subjective expectations
of particular defendants,” and that the relevant
question is whether a statute provides fair notice to
a person of common intelligence. Jd. at 355 n.5. The
government is effectively using cases that pre-date
Bouie and/or arose in a different context to advocate
precisely the analysis that Bouie forbids. This

5

argument underscores a persistent confusion among
practitioners and courts regarding the interplay
between Bouie and the cited cases, and favors
further review.’

The government also argues that “the presence of
a culpable intent as a necessary element of the
offense,” U.S. Br. 20, eliminates any fair notice
concerns. This argument is not only wrong but begs
the very question presented in this petition. The
government correctly notes that the CAA charges
require proof that the petitioners knowingly released
“asbestos” and that they knew the releases would
endanger others. Jd. Proof of such knowledge,
however, would have no bearing on whether the
statute, by its own terms, provides fair notice of
which substances constitute “asbestos.” The govern-

ment’s argument confuses the concepts of mens rea
and fair notice. Assume that the statute and related
regulations contained no definition of “asbestos”
whatsoever; even a defendant’s scientific knowledge
that a certain mineral was properly classified as

' The government’s effort to apply Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), and
similar cases to these facts fails. Even if such approach were
proper, which it is not in light of this Court’s precedents, the
government makes no effort to define the relevant industry in
this case or to show that the individual petitioners have a place
in it. And, unlike in the cases cited by the government, the
definition of asbestos inherently involves analysis of such
things as chemical composition and whether a substance is
fibrous -- two things that require specialized scientific
knowledge -- and will always involve a subjective inquiry. This
approach, advocated by the government, thus leads inevitably
to analysis of the petitioners’ subjective knowledge, without
any record ev ‘dence to support that analysis.

6

“asbestos” would not save the statute from a fair
notice challenge. See Bouie, 378 U.S. at 355 n.5
(“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... .” ).

2. The government claims that petitioners will
face no prejudice if this Court declines further
review because the excluded evidence would have
been admissible under the district court’s original
order adopting the EPA definition of “asbestos.” U.S.
Br. 14. This assertion is incorrect and strikingly
inconsistent with both the district court’s order and
the government’s position below. Indeed, if the
government believed it could still prove its case
despite the district court’s ruling, there was no
reason for it to have taken this appeal in the first
place.

In response to the district court’s ruling that it
would not allow presentation of “any sampling data
that commingles the minerals making up what the
government calls ‘Libby umphibole,” without
differentiating between minerals covered by the
Clean Air Act and minerals not covered,” Pet. App.
63a, the government has asserted the importance of
the excluded evidence in both pre-trial and appellate
proceedings. First, the government’s certification
under 18 U.S.C. § 3731 stated:

The sampling evidence and analytical results
excluded by the district court’s August 7 and
August 9, 2006 orders are material to the
government’s required proof that the
defendants released or caused the release of

a hazardous air pollutant, asbestos,
conspired to defraud the United States, and
obstructed the EPA. Moreover, the
foundational requirements for the admission
of the government’s Clean Air Act evidence
established in these orders has the practical
effect of excluding much of the government’s
evidence relevant to the crimes charged in
the Superseding Indictment.

See CR-05-07-M-DWM Dkt. No. 731 at 2 (D. Mont.
Aug. 23, 2006) (footnote omitted). In its oral
argument before the Ninth Circuit, the government
similarly acknowledged that the district court’s
ruling would prevent it “from presenting facts and
data that came from .. . EPA’s asbestos sampling in
Libby ... .” Andrew Schneider, Big Asbestos
Prosecution in Jeopardy, U.S. Argues, Seattle
Post Intelligencer, June 5, 2007, available at
http://seattlepi.nwsource.com/local/318479_grace05.h
tml. The government’s current assertion also
conflicts with the district court’s observation that its
rulings “will likely render inadmissible much of the
government’s proof relating to the Clean Air Act
allegations.” United States v. W.R. Grace, 455 F.
Supp. 2d 1133, 1140 n.3 (D. Mont. 2006).

The excluded evidence is dispositive not only of
the three counts (out of seven) that relate to the
CAA, but also likely the conspiracy count insofar as
proof of the CAA object depends on the same
evidence. Despite the government’s present
assertions to the contrary, this evidence is of the
utmost importance to the government’s case and a

8

reversal of the Ninth Circuit’s decision would
dramatically alter the composition of this case.

3. As explained in the individuals’ petition, Pet.
31-38, certiorari is also warranted to review the
Ninth Circuit’s incorrect and pernicious misreading
of § 3288. The government’s arguments to the
contrary are unpersuasive.

In particular, the government ignores the critical
flaw in the Ninth Circuit’s ruling: under its
interpretation of § 3288, the government can bring
an untimely indictment—that is, one that does not
allege that the defendants committed the crimes for
which they are indicted within the relevant statute
of limitations—suffer dismissal on that ground, and
then use the six-month grace period afforded by
§ 3288 to resuscitate the prosecution by identifying
and alleging an act within the original limitations
period. As a practical matter, under this analysis,
§ 3288 would never preclude the government from
filing a superseding indictment in a conspiracy case
if the original indictment was dismissed on statute-
of-limitations grounds. But that result directly
contradicts the plain language of § 3288—which
specifies that “[§ 3288] does not permit the filing of a
new indictment . .. where the reason for the
dismissal [of the original indictment] was the failure
to file the [original] indictment ... within the period
prescribed by the applicable statute of limitations” —
and would render that provision a nullity. Critically,
the government never explains when this clause
might have any effect were it not to apply in the
context of this case.

9

Rather than addressing this fundamental point,
the government principally adopts the Ninth
Circuit’s novel and unsupportable distinction
between a claim that is “time-barred” because the
government failed to allege an overt act within the
statute-of-limitations period, and a claim that is not
timely filed. See U.S. Br. 23 (calling the flaw in the
initial indictment a “pleading deficiency”). But that
meaningless distinction merely obscures the true
error below.’ See Pet. 32-33. A claim is barred by a
statute of limitations if the government has not
alleged that the defendant committed that crime (in
the context of a conspiracy claim, an overt act in
support of the conspiracy) within the relevant time
period. That was precisely the flaw with the initial
indictment here. The mere fact that the government
might have been able to obtain an indictment
alleging a timely claim when it obtained the initial
indictment does not remedy its failure to do so.
Because it did not, the plain text of § 3288 precludes
the government from getting another bite at the
apple.

Thus, should the opinion below stand, criminal
defendants in the Ninth Circuit will be stripped of a
fundamental due process safeguard. See Toussie v.
United States, 397 U.S. 112, 114-115 (1970).

4. Because the government has no response to
the substantive issues raised by petitioners, it relies

? Contrary to the government’s assertion, U.S. Br. 23 (citing
F.E.R. 549), the district court did not hold that this claim was
timely filed. The government has quoted what appears to have
been a question from the district court at oral argument and
suggested this was the court’s ruling.

10

heavily on its claim that interlocutory review is
inappropriate. The government argues that this
Court should deny this petition to permit eventual
review on a complete record and avoid further delay.
Neither of these assertions is meritorious. This
Court has emphasized that “there is no absolute bar
to review of nonfinal judgments of the lower federal
courts.” Mazurek v. Armstrong, 520 U.S. 968, 975
(1997) (per curiam) (citing Estelle v. Gamble, 429
U.S. 97, 28 (1976); United States v. Gen. Motors
Corp., 323 U.S. 373, 377 (1945)). This Court has
granted review of criminal cases prior to trial. See,
e.g., Sabri v. United States, 541 U.S. 600 (2004)
(deciding criminal case in this posture over the
Government’s opposition).

Because the questions presented in this petition
are dispositive of several counts in the indictment, a
decision affirming the district court’s construction of
the statute would substantially narrow the scope
and shorten the length of trial. As the Ninth Circuit
noted in its recent en banc decision addressing the
government’s first interlocutory appeal, the
complexity of this “case poses special challenges to
the parties in preparing for trial and to the court in
managing the litigation.” United States v. W.R.
Grace, No. 06-30192, 2008 U.S. App. LEXIS 10453,
at *38 (9th Cir. May 15, 2008) (en banc). By
granting review and clarifying the proper definition
of “asbestos” before trial, this Court will promote
judicial economy and reduce the burden of trial on
the individual petitioners, all of whom are over 68
years of age, as well as on prospective witnesses.
The government’s desire to have witnesses and
victims observe the trial cannot trump the aging

1]

petitioners’ right not to stand trial, especially a trial
of this magnitude, on patently flawed charges. The
government’s concerns about delay do not ring true,
as the government set the delay in motion by filing
an interlocutory appeal in the first instance.

If the petitioners proceed to trial now and prevail,
the Ninth Circuit’s erroneous reasoning will escape
this Court’s review and remain the law governing all
parties subject to its jurisdiction.

CONCLUSION
For the foregoing reasons, this Court should
either summarily reverse the decision below or set
the case for plenary review.

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

12

Ronald F. Waterman David S. Krakoff
GOUGH, SHANAHAN, Gary A. Winters
JOHNSON & WATERMAN David M. Gossett
33 South Last Chance James T. Parkinson

Gulch MAYER BROWN LLP
Helena, MT 59601 1909 K Street NW
(406) 442-8560 Washington, DC 20006

(202) 263-3000

Counsel for Defendant-Petitioner Henry A.

Eschenbach
Palmer Hoovestal Elizabeth Van Doren
HOOVESTAL LAW FIRM, Gray
PLLC SOWELL, GRAY, STEPP, &
P.O. Box 747 LAFFITTE, LLC
Helena, MT 59624 P.O. Box 11449
(406) 457-0970 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

s

Brian Gallik

GOETZ, GALLIK &
BALDWIN, P.C.

P.O. Box 6580
Bozeman, MT 59771
(406) 587-0618

13

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

14

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 N.W.

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1348%3A3. Public record. Not legal advice.