Amicus Curiae Brief — Eschenbach v. United States (Nos. 07-1287, 07-1286)

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ine 07-1 Y | FI ED.

IN THE MAY 15 2008

OF THE CLERK

SUPREME COURT, U.S.

W.R. GRACE & Co.,

Petitioner,

v.

UNITED STATES,

Respondent.

HENRY A. ESCHENBACH, ET AL.,

Petitioners,

v.

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND

AMERICAN CHEMISTRY COUNCIL AS AMICT

CURIAE IN SUPPORT OF PETITIONERS

Jeffrey T. Green Kristina Silja Bennard

Jonathan Rackoff Counsel of Record

SIDLEY AUSTIN LLP Matthew D. Clark

1501 K Street, N.W. DAVIS WRIGHT

Washington, D.C. 20005 TREMAINE LLP

(202) 736-8000 1201 Third Avenue

Suite 2200

Seattle, WA 98101

(206) 622-3150

(Additional counsel listed on inside cover)

WILS8On-E PES PRINTING Co., Inc. — (202) 789-0008 — WASHINGTON, D.C. 20002

Additional Counsel for Amici Curiae

Jan S. Amundson

Quentin Riegel

NATIONAL ASSOCIATION OF MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 637-3000

Leslie A. Hulse

AMERICAN CHEMISTRY COUNCIL

1300 Wilson Blvd.

Arlington, VA 22209

(708) 741-5165

i

TABLE OF CONTENTS

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INTEREST OF THE AMICT CURIAE................

INTRODUCTION AND SUMMARY OF

A. Public Welfare Offenses Subject

Regulated Communities In The

Ninth Circuit To Boundless Risk Of

Disparate Penalties Without

Traditional Protections .....................0..0.000.

B. Industries Are Subject To Vast

Statutory And Regulatory Schemes,

Many Of Which Create Potential

Criminal Liability................cs0ccsssssesesseereeee

C. A Relaxed Mens Rea Requirement

Leaves Regulated Communities

Vulnerable To Prosecution And

Invites Inefficient Over-Investment

D. The Ninth Circuit’s Erroneous

Interpretation Of § 3288’s Plain Text

Destroys Statutory Repose For

Criminal Defendants And Merits

Certiorari Review .............................cscccccees

SE Tene ae

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TABLE OF AUTHORITIES

Page(s)

Cases

Arthur Anderson LLP v. United States,

MT I ions scvicssseciscesvcsnsssersniscesecs 16, 17

Bryan v. United States,

Fe iced recsvciccecsccccossesccctveceveass 12, 16

Crandon v. United States,

GF, FI ibis vesceniisnsnccvcesiarecrscesensesss 10, 11

Hanousek v. United States,

528 U.S. 1102, 120 S. Ct. 860 (2000)................... 21

Liparota v. United States,

EE iar oiviaiisvcea dssncccasisevevooseresceauénenne ll

Morissette v. United States,

Te avi deidiicnsincosasedecnnicvenscveseores 6, 22

Ratzlaf v. United States,

i I oivcnccowsencecesivnceseveccasetensceonetne 17

Staples v. United States,

I nie crcvevercevenvscesvecentneenes 6, 21

United States v. Aversa,

984 F.2d 493 (1st Cir. 1993) (en banc)................ 16

United States v. Borowski,

OTF OO BT Caae Cie, FOG] .......nn..c.ccccccccsccccccccccsss 12

United States v. Hopkins,

53 F.3d 533 (2d Cir. 1995) .................eceeee eee

United States v. Lanier,

TF, BI vvvnvasoveevcccccceccccacsccesececccocosmecucs 11

United States v. Plaza Health Labs., Inc.,

3 F.3d 643 BN ND icc cic ssntconcceneecoescadentsouces 12

United States v. Sinskey,

219 FiGe TiS CBE Gib. 1907) ...cccccccccscccccccccccccesees 21

United States v. United States Gypsum Co.,

I I io achive cc cenccsvessecevencccvscececocsesies 23

United States v. Weintraub,

273 F/Sd 139 (Sd Cir. 2OO1) ...........0..ccccccccee 20, 21

United States v. Weitzenhof,

35 F.3d 1275 (9th Cir. 1999) ..................... 6, 20, 21

United States v. Wilson,

133 F.3d 251 (4th Cir. 1997) ......................... 19, 20

Statutes and Regulations

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ee Fe or veiinsvvicacavvvetccininnsemnsaverenianiines 5, 24, 25

ts beers areas 13

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Be a MII vdhihascicvreisssesaconscicesiconcinesesisnaunseciniasinnabitien 13

42 U.S.C. § 6928(d)

42 U.S.C. § 7413(c)

40 C.F.R. §§ 50-97

40 C.F.R. §§ 100-149

40 C.F.R. §§ 400-699

40 C.F.R. §§ 260-282

Other Authorities

AMERICAN BAR ASS’N, THE FEDERALIZATION

OF CRIMINAL LAw (1998) 13, 14, 15

Anderson, The Environmental Revolution at

Twenty-Five, 26 RUTGERS L.J. 395 (1995)

Baker, Measuring the Explosive Growth of

Federal Crime Legislation, THE

FEDERALIST SOC’Y FOR LAW & PUBLIC

PoLicy STUDIES (2005)

Barker, Environmental Crimes, Prosecutorial

Discretion, and the Civil/Criminal Line,

88 VA. L. REV. 1387 (2002)

Barkow, The Ascent of the Administrative

State and the Demise of Mercy, 121 HARV.

L. REV. 1332 (2008)

Barstow & Bergman, With Little Fanfare, 4

New Effort to Prosecute Employers that

Flout Safety Laws, N.Y. TIMES, May 2,

7

Coffee, Paradigms Lost: The Blurring of the

Criminal and Civil Law Models, 71 YALE

Rc susesenncccesee 14

Fact Sheet: President’s Corporate Task Force

Marks Five Years of Ensuring Corporate

Integrity, U.S. Dep’t of Justice

RN asics cerdcansiciacisvvaccoversesovereseee 7

Huff, Wrongful Conviction: Causes and Public

Policy Issues, CRIM. JUST., Spring 2008 ............... 8

Lazarus, Meeting the Demands of Integration

in the Evolution of Environmental Law:

Reforming Environmental Criminal Law,

83 GEO. L.J. 2407 (1995)...........ccccccccccccssssseee 12, 17,

18, 20, 21

Luna, The Overcriminalization Phenomenon,

54 Am. U. L. REV. 703 (2008) .............cccccseceeeses 8, 15

Lundin, Sentencing Trends in Environmental

Law: An “Informed” Public Response,

5 FORDHAM ENVTL. L.J. 43 (1999) ..............00. 7,14

Rosenzweig, The Heritage Foundation,

The Over-Criminalization of Social

and Economic Conduct (April 17, 2003) ...... 13, 16,

19, 22

Scott & Stuntz, Plea Bargaining as Contract,

101 YALE L.J. 1909 (1992) .............ccsccccessssceeseseeeees 8

Stuntz, Substance, Process, and the Civil-

Criminal Line, 7 J. CONTEMP. LEGAL

Ee 7,8

vi

Wright, Trial Distortion and the End of

Innocence in Federal Criminal Justice,

164 U. PA. La REV. TO GROOE) ....ccccsicccccccecsedessscoessies

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND

AMERICAN CHEMISTRY COUNCIL AS AMICT

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

The National Association of Criminal Defense

Lawyers (NACDL) is a non-profit organization with

direct national membership of over 10,000

attorneys, in addition to more than 28,000 affiliate

members from all 50 states. NACDL is the only

professional bar association that represents public

defenders and private criminal defense lawyers at

the national level. NACDL’s mission is to ensure

justice and due process for the accused; to foster the

integrity, independence, and expertise of the

criminal defense profession; and to promote the

proper and fair administration of justice. NACDL

routinely files amicus curiae briefs in this Court

and other courts throughout the country. '

The National Association of Manufacturers

(NAM) is the nation’s largest industrial trade

association, representing small and _ large

manufacturers in every industrial sector and in all

' The parties have consented to the filing of this brief. Counsel

of record for all parties received notice at least 10 days prior to

the due date of the amici curiaé’s intention to file this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No persons

other than amici curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

2

50 states. The NAM’s mission is to enhance the

competitiveness of manufacturers by shaping a

legislative and regulatory environment conducive

to economic growth and to increase understanding

among policymakers, the media, and the general

public about the vital role of manufacturing to

American’s economic future and living standards.

The American Chemistry Council (ACC)

represents the leading companies engaged in the

business of chemistry. ACC members apply the

science of chemistry to create innovative products

and services that make people’s lives better,

healthier, and safer. The business of chemistry is a

$664 billion enterprise and a key element of the

nation’s economy. Safety and security have always

been primary concerns of ACC members, and they

work closely with government agencies to improve

security and defend against any threat to the

nation’s infrastructure.

INTRODUCTION AND SUMMARY OF

ARGUMENT

1. The federal government indicted petitioners

W.R. Grace and certain of its employees for

violating the Clean Air Act (CAA) by releasing a

substance constituting or comprising “asbestos”

into the ambient air. Petitioners argued, and the

district court agreed, that this substance did not

qualify as a “hazardous air pollutant” under

Environmental Protection Agency (EPA) definitions

applicable to both the civil regulatory scheme and,

by incorporation, the criminal enforcement

provisions. The Ninth Circuit reversed, holding

that the term “asbestos” describes something

3

different — and far broader — in a CAA criminal

prosecution than the EPA’s long-standing definition

of the same term. In so holding, the Ninth Circuit

committed two significant errors, each meriting

review.

First, the Ninth Circuit's decision all but

ensures that corporate defendants or indicted

employees will receive substantially harsher

treatment than their counterparts in other Circuits

for the same offense. In the Ninth Circuit, smart

prosecutors will now indict, try, and convict — or,

more likely, use newfound leverage to secure pleas

from — defendants for actions not proscribed by the

plain text of any regulation. Actual ignorance of the

regulatory prohibition, however vague, will not be a

defense. Neither fair notice requirements nor the

rule of lenity will apply. Rather, for defendants

generally, familiar with the regulated substance,

activity, or industry, culpable knowledge of the

previously unannounced line between legal and

illegal conduct will simply be presumed.

The questions presented in this case reach

fundamental tenets of criminal enforcement and

civil regulation, including:

« due process demands fair notice of the

threshold dividing prohibited from

permitted conduct;

* courts construing cximinal statutes

must resolve ambiguities in favor of

defendants (i.e., the rule of lenity);

4

* common law principles cannot enlarge

the scope of criminal liability fixed by

statute;

* statutes or regulations must mean what

they say and must not change based on

the identity or characteristics of

particular defendants; and

* all accused persons must be treated

equally without stereotype, bias, or

regard for the accident of geography.

The Ninth Circuit has broken from these

venerable _spriricaples, subjecting regulated

communities to disparate (and virtually unlimited)

risk of criminal liability for public welfare offenses.

This will have a staggering impact on American

industry.

Specifically, and second, the Ninth Circuit’s

decision jeopardizes the viability of numerous

highly-regulated industries already heavily

burdened by federal criminal oversight. By

collapsing the bright line between legal and illegal

conduct and reducing the quantum of criminal

intent the government must prove to secure a

conviction, the Ninth Circuit has invited inefficient

over-investment in regulatory compliance beyond

that which the law actually requires. To avoid

harsh criminal penalties for inadvertent

transgressions of indeterminate standards — the

mens rea historically reserved for amelioration in

tort — companies will now spend far more on

prevention than Congress or the EPA ever

-

intended, reducing competitiveness, and,

ultimately, competition, in the affected industries.

This Court’s review is thus necessary to restore

the few fundamental protections criminal

defendants accused of environmental violations had

before the Ninth Circuit ran roughshod over them.

2. The Ninth Circuit’s decision merits certiorari

review for another reason, as well: it substantially

weakens protections against untimely prosecutions

for those accused of regulatory crimes — a class of

defendants already burdened by the Ninth Circuit’s

retreat from basic tenets of criminal law.

The Ninth Circuit ignored district court’s

unambiguous finding that the initial indictment

violated the statute of limitations because it “failed

to allege an overt act in furtherance of the knowing

endangerment object within the limitztions period.”

By holding that 18 U.S.C. § 3288 does not bar the

return of a superseding indictment where the

original indictment was, as here, “time-barred,” the

decision misunderstands §3288 to create a

distinction between “time-barred” and “timely-filed,”

effectively writing the limitation out of the statute

for these defendants. As a result, prosecutors in the

Ninth Circuit may now bring numerous prophylactic

indictments alleging generic elements against

anyone under suspicion, effectively extending the

statutory period by six months in every case.

6

ARGUMENT

A. Public Welfare Offenses Subject Regulated

Communities In The Ninth Circuit To

Boundless Risk Of Disparate Penalties

Without Traditional Protections.

1. The public welfare offense doctrine — under

which individuals can be found guilty with a

reduced mens rea requirement for handling

“dangerous and deleterious devices” that “will be

assumed to alert an individual that he stands in

responsible relation to a public danger” — “almost

uniformly involved statutes that provided for only

light penalties such as fines or short jail sentences,

not imprisonment in the state penitentiary.”

Staples v. United States, 511 U.S. 600, 612 n.6, 616

(1994); accord Morissette v. United States, 342 U.S.

246, 256 (1952) (public welfare offense “penalties

commonly are relatively small, and conviction does

no grave damage to an offender’s reputation”).

Under environmental statutes like the CAA and

the Federal Sentencing Guidelines, however,

companies and individuals who transgress an

environmental regulation — even unknowingly —

may be guilty of a felony punishable by years of

imprisonment. For example, a defendant in an

earlier Ninth Circuit case received 33 months

imprisonment for discharging 6% more sewage

than his permit allowed. United States v.

Weitzenhoff 35 F.3d 1275, 1282, 1296 (9th Cir.

1993).

Despite the availability of a wide range of civil

and administrative enforcement mechanisms,

federal regulators are increasingly turning to

7

criminal prosecution of the environmental laws.’

See Lundin, Sentencing Trends in Environmental

Law: An “Informed” Public Response, 5 FORDHAM

ENVTL. L.J. 43, 48-51 (1993) (describing trend

toward increased environmental prosecutions and

longer prison sentences). This trend shows no sign

of abating — in fact, the government has recently

expanded the reach of environmental enforcement

into the workplace. See Barstow & Bergman, With

Little Fanfare, a New Effort to Prosecute

Employers that Flout Safety Laws, N.Y. TIMES,

May 2, 2005, at Al17 (DOJ announcing interagency

partnership with EPA and OSHA to prosecute

workplace safety violations by using environmental

laws).

2. These harsh penalties mixed with the

government's decreased burden of proving mens

rea, as detailed infra at 15-22, create immense

pressure on defendants to accept plea bargains.

The easier a case is to try, the more power a

prosecutor wields in plea negotiations: “[clases that

would be risky in litigation if the crime were

defined precisely become fairly easy, meaning that

charges the defendant would otherwise contest turn

into pleas.” Stuntz, Substance, Process, and the

? This phenomenon is not limited to environmental laws.

Government officials have also stepped up prosecutions for

corporate fraud. In 2007, for example, the President’s Corporate

Fraud Task Force announced its “remarkable results”: in five

years, it had secured convictions for 1,236 individuals,

including 214 CEOs and presidents, 53 CFOs, 23 corporate

counsels, and 129 vice-presidents. Fact Sheet: President’s

Corporate Task Force Marks Five Years of Ensuring Corporate

Integrity, U.S. Dep’t of Justice (July 17, 2007), available at

http://www.usdoj.gov/opa/pr/2007/July/07_odag_ 507.html.

8

Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1,

15 (1996); see also Luna, The Overcriminalization

Phenomenon, 54 AM. U. L. REv. 703, 724 (2005)

(increasing potential punishment allows

prosecutors “to wield a bigger stick throughout the

criminal process, and often leaves the accused little

choice but to accept a plea bargain”).? The more

power a prosecutor has to induce a plea agreement,

the more concentrated governmental authority

becomes because, as commentators have observed,

plea bargaining “zs the criminal justice system.”

Scott & Stuntz, Plea Bargaining as Contract, 101

YALE L.J. 1909, 1912 (1992) (emphasis in original);

see also Wright, Trial Distortion and the End of

Innocence in Federal Criminal Justice, 154 U. PA.

L. REV. 79, 90-91 (2005) (about 95% of federal

criminal cases are resolved by guilty pleas).

3. Both before and after a defendant is swept

into the criminal system for regulatory violations,

the deck is stacked against her. The probability is

high that she will receive a multi-year prison

sentence, even if she did not know her actions

violated the law and, after the Ninth Circuit’s

decision here, even if she could not have known.

The Ninth Circuit’s decision turns the existing legal

labyrinth into something even more one-sided,

effectively eliminating long-standing procedural

> Studies have shown that innocent criminal defendants can be

more likely to agree to a plea deal. Huff, Wrongful Conviction:

Causes and Public Policy Issues, CRIM. JUST., Spring 2003, at

15, 17 Gn psychological experiment, “innocent ‘defendants’ were

more likely to accept plea bargains when they faced a number

of charges or when the probable severity of punishment was

great”).

protections for those accused of regulatory

infractions.

First, the decision nullifies the principle that

due process entitles defendants to fair warning of

the conduct that can give rise to criminal liability.

Many American industries are already subject to

pervasive regulation. The governing regulations are

often highly technical, and their requirements can

be difficult to ascertain, even for experts. But now,

in the Ninth Circuit, the government may

prosecute companies and their employees for acts

that are not even covered by the text of any

regulation but are, at most, somehow merely

similar in nature.

Second, the decision impermissibly applies

common law principles to enlarge the scope of

criminal liability fixed by statutory or regulatory

text. The meaning of environmental laws must be

determinate, not variable according to the whim of

prosecutors or the identity of defendants. Here,

even a defendant who manages to penetrate

thousands of pages of regulations might still be

handed an indictment if the government decides,

after the fact, that an otherwise on-point civil

regulatory definition does not apply to his conduct

— even where, as here, the criminal provision

incorporates the civil definition rather than

providing one of its own.

Instead, the prosecutor can select his own

definition, which, in the present case, was the

definition of “asbestos” found in the Chemical

Abstract Service (CAS), a private database

accessible only to paid subscribers. W.R. Grace Pet.

10

13. Alternatively, a court can, without citation,

offer its own definition, previously unknown and

unknowable to the defendant. App. (No. 07-1286),

at 16a-17a. There is no refuge, nothing to provide

actual or constructive notice, even for the most

diligent and innocent-minded defendant who is

otherwise engaging in socially productive conduct.

This gives prosecutors even more power to bring

charges and secure convictions, thus increasing the

pressure on defendants to negotiate plea

agreements.

In the instant case, the Ninth Circuit held that,

because defendants are “an industrial chemical

company and seven of its top executives” who “are

all familiar with asbestos,” they had “actual notice”

and “have known of the health risks posed by .. .

their products.” Jd. at 17a.‘ While a defendant’s

professional background might have some bearing

on whether he should have known that a particular

substance was a pollutant subject to regulation, it

is wholly irrelevant to a statute’s or regulation’s

definition of what a pollutant is. A defendant’s

background does not change what it is that

Congress and the EPA intended to — and actually

did — regulate.

“Because construction of a criminal statute must

be guided by the need for fair warning, it is rare

that ‘egislative history or statutory policies will

support a construction of a statute broader than

that clearly warranted by the text.” Crandon v.

* Because there is no factual record in this case — only an

indictment — the Ninth Circuit had no basis for making these

assumptions about defendants.

11

United States, 494 U.S. 152, 160 (1990); see also

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

(“due process 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”). It

should be rarer still for a court’s own conception of

what constitutes a “hazardous air pollutant” to

displace, and broaden, the EPA’s own published

and properly promulgated definition. Nevertheless,

the Ninth Circuit has accomplished just that, and

in so doing countenanced virtually boundless

liability for regulatory crimes.

Third, the Ninth Circuit has abandoned the rule

of lenity, the application of which should not hinge

on a defendant’s subjective characteristics. See

App. (No. 07-1286), at 17a. When a criminal statute

does not, as here, unambiguously cover the

accused’s conduct, the rule of lenity gives the

benefit of the doubt to the defendant. It is a “time-

honored interpretive guideline” that “ensures that

criminal statutes will provide fair warning

concerning conduct rendered illegal and strikes the

appropriate balance between the legislature, the

prosecutor, and the court in defining criminal

hability.” Liparota v. United States, 471 U.S. 419,

427 (1985). A statute is either ambiguous or it is

not — neither the clarity of Congress’ intent nor its

words in a criminal statute change from defendant

to defendant.

“In our era of multiplying new federal crimes” —

and, one might add, ever growing and complex

regulations — “there is more reason than ever to

12

give this ancient canon of construction consistent

application.” Bryan v. United States, 524 U.S. 184,

205 (1998) (Scalia, J.,-dissenting). This is especially

true for environmental crimes: “when the

environmental protection requirements upon which

violations ure based are too obscure or

indeterminatel[,] the applicable law should be read

in a light more favorable to the criminal

defendant.” Lazarus, Meeting the Demands of

Integration in the Evolution of Environmental Law:

Reforming Environmental Criminal Law, 83 GEO.

L.J. 2407, 2526 (1995). Indeed, “the problems

intended to be redressed by the rule of lenity are

especially pronounced in the environmental law

context.” Jd. at 2527. In contrast to the Ninth

Circuit, other courts of appeals have properly

recognized that “[t]he fact that [a] case involves

pollution does not make the rule of lenity

inapplicable.” United States v. Borowski, 977 F.2d

27, 32 n.9 (1st Cir. 1992) (applying rule of lenity to

Clean Water Act); accord United States v. Plaza

Health Labs., Inc., 3 F.3d 643, 649 (2d Cir. 1993).

B. Industries Are Subject To Vast Statutory

And Regulatory Schemes, Many Of Which

Create Potential Criminal Liability.

The scope of American industry already subject

to highly intrusive federal civil regulation and

direct criminal enforcement is breathtaking. There

are now “several hundred federal agencies, charged

with everything from ‘assurling] so far as possible

every working man and woman in the nation safe

and healthful working conditions and preservling]

our human resources’ to creating ‘a national policy

13

which will encourage productive and enjoyable

harmony between man and his environment.”

Barkow, The Ascent of the Administrative State

and the Demise of Mercy, 121 HARV. L. REV. 1332,

1337-38 (2008) (quoting 29 U.S.C. § 651(b) (OSHA)

and 42 U.S.C. §4321 (EPA)). These agencies

manage industries comprising a vital share of our

domestic economy, including manufacturing,

transportation and shipping, finance and banking,

energy and mining, health care, pharmaceuticals,

agriculture, and more.

The long arm and stubborn complexity of this

civil regulatory scheme may be matched only by the

rapidly expanding reach of federal criminal laws to

new regulatory domains, a mode of enforcement

traditionally reserved to the States. No precise

count of the number of federal statutory crimes

exists. Charged with the task of enumerating them,

the American Bar Association’s Task Force on the

Federalization of Crime essentially gave up, stating

that it “may be impossible to determine exactly how

many federal crimes could be prosecuted” — “[s]o

large is the present body of federal criminal law

that there is no conveniently accessible, complete

list of federal crimes.” AMERICAN BAR ASS’N, THE

FEDERALIZATION OF CRIMINAL LAW 2, 9 (1998)

(hereinafter “ABA Task Force”). These laws are

“scattered in over 50 titles of the United States

Code, encompassing roughly 27,000 pages.”

Rosenzweig, The Heritage Foundation, The Over-

Criminalization of Social and Economic Conduct

(April 17, 2003), republished in CHAMPION, Aug.

2003, at *29.

14

Nevertheless, it is safe to say that thousands of

acts (or omissions) are subject to criminal sanction

by the federal government — and that number is

growing. After an exhaustive analysis, one

commentator concluded that “[t]here are over 4,000

offenses that carry criminal penalties in the United

States Code.” Baker, Measuring the Explosive

Growth of Federal Crime Legislation, THE

FEDERALIST Soc’y FOR LAW & PUBLIC POLICY

STUDIES, at 3 (2005) (emphasis added). That

number reflects a one-third increase since 1980. Jd.

Environmental crimes accounted for a “substantial

number” of the federal criminal statutes enacted

from 1998 to 2005. Jd. Indeed, prior to the 1980s,

all but the most egregious environmental violations

received administrative or civil sanction. See

Lundin, supra, at 48.

Such figures do not even include administrative

regulations. Federal criminal laws impacting

economic activity often incorporate regulations

promulgated by the agencies charged with

implementing the statutes and impose criminal

liability for violating the same. The ABA Task

Force estimated that as of 1996, the federal

government could impose sanctions, many of which

would be criminal, for nearly 10,000 regulations —

and that is likely a conservative figure. ABA Task

Force, supra, at 10; see also Coffee, Paradigms

Lost: The Blurring of the Criminal and Civil Law

Models, 71 YALE L.J. 1875, 1881 (1992) (early 1990s

estimate that “the number of federal regulations

currently punishable by criminal penalties [is] over

300,000”). “Whatever the exact number of crimes

that comprise today’s ‘federal criminal law,’ it is

15

clear that the amount of individual citizen behavior

now potentially subject to federal criminal control

has increased in astonishing proportions in the last

few decades.” ABA Task Force, supra, at 10.

C. <A Relaxed Mens Rea Requirement Leaves

Regulated Communities Vulnerable To

Prosecution And Invites Inefficient Over-

Investment in Compliance.

The convergence of the federal government’s

civil regulatory role with its vast expansion into the

criminal sphere has already harmed regulated

communities. “[The] rise of the modern

administrative state [has] erectled] a vast legal

labyrinth buttressed by criminal penalties in areas

ranging from environmental protection and

securities regulation to product apd workplace

safety.” Luna, supra, at 708-09.

That twin enforcement system captures acts (or

omissions) that may not be inherently evil and

which, to the contrary, frequently occur in the

context of socially and economically beneficial

activities. Proof that the defendant knew she was

violating the law is rarely required; a mere

inadvertence can sometimes result in a felony

conviction. Thus, coupled with the sheer volume of

regulations — many of which are, at best, incredibly

complex — the cost of compliance is high. Yet, the

cost has thus far been determinate; what any given

law required was usually ascertainable. No longer

in the Ninth Circuit. Its decision here allows

prosecutors to impute knowledge of illegality to

defendants before the illegal subject matter is even

16

identified, increasing the burden of compliance to

the breaking point.

1. Acts giving rise to regulatory criminal

liability are unlike traditional, common law crimes.

They are wrongful not because of their intrinsic

nature ~ like murder, arson, or rape (malum in se)

— but rather because the law says they are (ma/um

prohibitum). BLACK’s LAW DICTIONARY 978-79 (8th

ed. 2004) (malum prohibitum is “aln] act that is a

crime merely because it is prohibited by statute,

although the act itself is not necessarily immoral”).

Thus, “many statutes punish those whose acts are

wrongful only by virtue of legislative” — or agency —

“determination.” Rosenzweig, supra, at *30. As a

result, individuals are less likely to realize when

their actions cross the line from permissible to

criminal. This is especially true when the laws are

technical and complex.

For example, this Court has observed that the

“highly technical” tax code and banking laws

“present[] the danger of ensnaring individuals

engaged in apparently innocent conduct.” Sryan,

524 U.S. at 194. Both sets of laws “sometimes

criminalize conduct that would not strike an

ordinary citizen as immoral or likely unlawful.

Thus, both sets of laws may lead to the unfair

result of criminally prosecuting individuals who

subjectively and honestly believe they have not

acted criminally.” United States v. Aversa, 984

F.2d 493, 502 (1st Cir. 1993) (en banc) (Breyer, J.,

concurring); see also Arthur Anderson LLP v.

United States, 544 U.S. 696, 703-04 (2005) (“the act

underlying the conviction — ‘persuasion’ — is by

17

itself innocuous ... ‘persuading’ a person ‘with

intent to ... cause’ that person to ‘withhold’

testimony or documents from ... Government

officialls] is not inherently malign”) (quoting 18

U.S.C. § 1512(b)); Ratzlaf v. United States, 510

U.S. 135, 144 (1994) (“currency structuring is not

inevitably nefarious”).

These concerns are magnified in the

environmental realm, particularly because

environmental laws are frequently empirical.

Because “[t]here are rarely any clear threshold

levels at which environmental pollution becomes

unacceptable,” the laws “draw[] lines that tend to

be based on fairly arbitrary distinctions [and] turn

on questions of degree that are, at best, gray at the

border.” Lazarus, supra, at 2431. “It is rarely self-

evident[] on which side of the border one lies.” Jd.

Moreover, because “[mJany socially beneficial

activities cause pollution, either indirectly or

directly,” environmental laws often do not prohibit

the release of substances in their entirety; rather,

the laws govern “where, when, and how much” one

can discharge — “the difference between being on

just one side of the line rather than just on the

other side is likely to be negligible,” but the legal

consequences can be tremendous. /d. at 2422, 2431.

Not only are the lines between permissible and

illegal not intuitive in environmental law, but they

are incredibly complex and technical. Even experts

in the field refer to environmental law’s

“extraordinary complexity” and note that “the

quantity of minutely detailed language in modern

environmental law beggars description.” /d. at 2423

18

(collecting citations). “{AJlthough criminal law

requires clear, determinate, and readily accessible

legal standards, familiar to the general public,

environmental law is replete with obscure . . . and

highly technical standards, the meaning of which

few can claim genuine mastery.” Jd. at 2445.

2. There are approximately 16,000 pages of

regulations for the three major environmental

statutes — the Clean Air Act, Clean Water Act

(CWA), and Resource Conservation and Re¢overy

Act (RCRA). See 40 C.F.R. §§ 50-97 (CAA); 40

C.F.R. §§ 100-149, 400-699 (CWA); 40 C.F.R.

§§ 260-282 (RCRA). See also Anderson, The

Environmental Revolution at Twenty-Five, 26

RuTGERS L.J. 395, 413 (1995) (environmental

regulations in Code of Federal Regulations

measure over thee-and-a-half feet tall).°

Individuals need not know that their conduct

violates any of these regulations to be subject to

potential criminal liability. The CAA, CWA, and

RCRA criminalize almost all knowing violations of

a regulation, including discharging a substance

without a permit when one is required, failing to

comply with a permit condition, or failing to meet

recording and reporting requirements. 42 U.S.C.

* The EPA also drafts preambles to its regulatory schemes that

do not appear in the Code of Federal Regulations, but provide

detailed guidance as to how the agency plans to implement

specific laws. These preambles can be lengthier than the rules

themselves. For example, the regulations setting forth the

definition of “solid waste” were a few pages of the Federal

Register; the EPA’s preamble explaining those regulations

covered 54 pages. Lazarus, supra, at 2437 (citing 50 Fed. Reg.

614 (1985)).

19

§ 7413(c)(1)-(2); 33 U.S.C. § 1319(c)(2); 42 U.S.C.

§ 6928(d). To determine the scope of criminal

liability, one must not only consult the statute, but

also decipher the underlying regulations that form

the basis for the statute’s civil regulatory scheme.

“This structure creates [a] broad criminal net,

which piggybacks on the full range of

environmental regulations.” Barker,

Environmental Crimes, Prosecutorial Discretion,

and the Civil/Criminal Line, 88 VA. L. REV. 1387,

1393 (2002); see also Rosenzweig, supra. at *35

(“Identically phrased statutes are often applicable

to the same conduct — one authorizing a civil

penalty and the other a criminal sanction.” (citing

383 U.S.C. §1319(g) (authorizing administrative

penalties for CWA violations), § 1319(b),(d) (civil

penalties), and § 1319(c) (criminal penalties)).

The requirement that a violation be “knowing”

is all that stands between a civil or administrative

sanction and aé felony conviction. As _ one

commentator has noted, however, that line is a

“parchment barrier,” Rosenzweig, supra, at *33,

because courts of appeals have held that a

“knowing” mens rea does not require that the

defendant actually know he is breaking the law.

Put another way, the “knowing” mens rea standard

in environmental statutes “requires not that a

defendant know that his conduct was illegal, but

only that: he know the facts that make his conduct

illegal.” United States v. Wilson, 133 F.3d 251, 262

(4th Cir. 1997) (quotations omitted). The

“government need not prove that the defendants

understood the legal consequences of those facts or

were even aware of the existence of the law

20

granting them significance.” Jd. at 264.° In other

words, to secure a _ felony conviction, the

government need only prove that a defendant knew

she was discharging a pollutant. A defendant who

honestly, but incorrectly, believed that she — or her

employer — had a permit to do so has no defense.

E.g., United States v. Weitzenhoff, 35 F.3d 1275,

1286 (9th Cir. 1993) (defendants could not

interpose “lack of knowledge” defense where

permitted sewage discharge exceeded allowable

levels by 6%; knowledge of discharge alone satisfied

mens rea standard);’ United States v. Hopkins, 53

F.3d 533, 541 (2d Cir. 1995) (government needed to

prove only that defendant “knew the nature of his

acts and performed them intentionally, but [not]

that he knew that those acts violated the CWA, or

any particular provision of that law, or the

regulatory permit”).

Similarly, by invoking the traditional public

welfare offense doctrine, courts of appeals have also

held that a defendant who knowingly discharged a

pollutant, but did not know he needed a permit to

do so, acted “knowingly.” E.g., United States v.

* See also Lazarus, supra, at 2469 (“Without exception, the

courts agree that the criminal penalty provisions in

{environmental statutes] that require that a person ‘knowingly

violates’ do not require the government to prove that the

defendant was actually aware of the applicable environmental

standard.”).

’ “The only thing [the defendants] have to know to be guilty is

that they were dumping sewage into the ocean, yet that was a

lawful activity expressly authorized by their federal permit.”

Weitzenhoff, 35 F.3d at 1294 (Kleinfeld, J., dissenting from

denial of rehearing en banc).

21

Weintraub, 273 F.3d 139, 147 (2d Cir. 2001). For a

public welfare offense, a defendant has the

requisite mens rea if he simply “knows that he is

dealing with a dangerous devise of a character that

places him in responsible relation to a public

danger, [and] should be alerted to the probability of

strict regulation.” Staples, 511 U.S. at 607

(quotations and citation omitted). See, e.g, United

States v. Sinskey, 119 F.3d 712, 715-16 (8th Cir.

1997) (CWA, invoking public offense doctrine);

Hopkins, 53 F.3d at 537-39 (same); Weitzenhoff, 35

F.3d at 1284-86 (same). Thus, the government need

not prove that a defendant knew a substance was

covered by a regulation — only that the defendant

had a general sense that the substance was a

pollutant.

Of course, not all pollutants are self-evidently

pollutants as defined by statute or regulation: hot

water, rock, and sand are “pollutants” under the

CWA. 33 U.S.C. § 1362(6); see also Lazarus, supra,

at 2479 (“pollutants subject to the federal

environmental statutes are not ... confined to

those that are especially dangerous”). And, to hold

that “any statute can be described as creating a

public welfare offense so long as the statute

regulates conduct that is known to be subject to

extensive regulation and that may involve a risk to

the community ... would extend thle] narrow

[public welfare offense] doctrine to virtually any

criminal statute applicable to industrial activities.”

Hanousek v. United States, 528 U.S. 1102, 120 S.

Ct. 860, 861 (2000) (Thomas, J., dissenting from

denial of certiorari).

22

In short, an individual can act “knowingly” even

without any specific intent to do a wrongful act or

to violate a legal duty that is set forth amid

thousands of pages of dense, highly technical

regulations — regulations that even agency officials

might not understand.

3. The Ninth Circuit’s interpretation of the

CAA’s knowing endangerment section relaxes

prosecutors’ burden of proving intent even further.

As the law currently stands, “in regulated

industries, those who participate in the industry

are presumed to know all of the intricate regulatory

arcana that govern their conduct. As a

consequence, the only requirement imposed by

requiring proof that one has acted ‘knowingly is

that the government must demonstrate that the

defendant has purposefully done the act

constituting the offense — and in the context of

regulated economic conduct that showing is trivial.”

Rosenzweig, supra, at *33-*34 (emphasis added).

“The contention that an injury can amount to a

crime only when inflicted by intention is no

provincial or transient notion.” Morissette, 342 U.S.

at 250. Yet, the Ninth Circuit has turned this

fundamental tenet of criminal law inside out.

Here, defendants could not have obtained fair

warning of the legal status of the conduct now

resulting in crimina! liability. Until today, industry

had recognized that materials containing the six

historically regulated fibers of asbestos were the

subject of potential civil or criminal enforcement if

certain practices were not followed. Critically,

however, winchite and richterite fell outside this

23

definition of “asbestos,” as used by every

governmental regulatory agency to address the

issue for decades, the EPA included.® This presents

an unworkable dilemma. To avoid the fate of W.R.

Grace and its employees, the regulated community

in the Ninth Circuit must divert resources from

business interests to invest in over-compliance with

the law. The uncertainty about the legal rule

requires a margin of error to avoid inadvertent

criminal liability.

It is therefore vitally important that this Court

grant review to restore clear notice of the acts that

could subject companies and individuals to criminal

sanction, so as not to deter economically and

socially beneficial activities. See United States v.

United States Gypsum Co., 488 U.S. 422, 441

(1978) (‘salutary and procompetitive conduct lying

close to the borderline of impermissible conduct

might be shunned by businessmen who chose to be

excessively cautious in the face of uncertainty

regarding possible exposure to _ criminal

® This holds for both civil and criminal enforcement. The Ninth

Circuit’s understanding of the CAA’s “hazardous air pollutant”

regulation promulgated for asbestos as an instrument of civil

enforcement only is erroneous. It belies the federal

government’s 30 years of use in criminal prosecutions of the

sam2 six-fiber definition of asbestos found in the National

Emission Standards for Hazardous Air Pollutants (NESHAP)

reculations. Under the Ninth Circuit’s decision, however, if

prosecutors also assert “imminent endangerment,” common law

principles can lead to a more expansive allegation-specific

defiaition at variance with the NESHAP text. The result wil! be

inconsistent federal criminal defiriitions of asbestos in the same

CAA regulation for substantially similar releases depending on

a’ cident of geography.

24

punishment for even a_ good-faith error of

judgment”).

D. The Ninth Circuit's Erroneous

Interpretation Of § 3288's Plain Text

Destroys Statutory Repose For Criminal

Defendants And Merits Certiorari Review.

The Ninth Circuit's erosion of procedural

protections for those accused of regulatory crimes is

further exacerbated by its move to substantially

weaken criminal statutes of limitations. This

Court’s review is necessary to protect those accused

of regulatory crimes — already burdened by the

Ninth Circuit's unprecedented retreat from basic

tenets of criminal iaw -— from untimely

prosecutions.

The Ninth Circuit fundamentally misunderstood

the intent of 18 U.S.C. § 3288, the final sentence of

which explains that the savings clause does not

extend to initial indictments barred by the statute

of limitations. Here, the Ninth Circuit held that

this provision does not bar the return of the

superseding indictment because the original

indictment had been obtained before the statute of

limitations expired. Such a reading ignores the

district court’s unambiguous finding that the initial

indictment was “time-barred” because it “failed to

allege an overt act in furtherance of the knowing

endangerment object within the limitations period.”

App. (No. 07-1287), at 103a.

By creating an artificial distinction between

“time-barred” and “timely-filed,” the Ninth Circuit

effectively wrote the limitation out of the statute

25

for these defendants. But the district court never

found, and the parties never agreed, that the

original indictment had been “timely filed.” Nor did

the superseding indictment simply repair a minor

pleading flaw in an _ otherwise _ timely-filed

indictment. Section 3288 makes no provision for

new allegations in a superseding indictment to

relate back to the initial filing date.

Rather, the district court dismissed the initial

indictment explicitly on statute of limitations

grounds, and the plain text of § 3288 clearly directs

that statute of limitations violations in the original

indictment cannot be revived under the savings

clause. The rationale for this is obvious — were it

otherwise, the government could rescue a woefully

inadequate indictment containing virtually none of

the elements of the offense simply by filing a

superseding indictment after the statute of

limitations had expired. At best, initial indictments

would become placeholders, allowing prosecutors to

extend their rights as to potential defendants at the

close of the limitations period. The savings clause

was intended to protect the government from

formalism, from minor technical flaws trumping

substance. Yet, the Ninth Circuit has transformed

this important check into a device for prosecutors to

cast wide nets, and avoid the statute, with the hope

of sorting it out afterwards. Especially in the

context of regulatory crimes, certiorari review is

needed to protect an already over-burdened class of

defendants from this abuse.

CONCLUSION

For the foregoing reasons, this Court should

grant the petitions for certiorari.

Respectfully submitted.

Jeffrey T. Green

Jonathan Rackoff

SIDLEY AUSTIN '.LP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Jan S. Amundson

Quentin Riegel

NATIONAL ASSOCIATION

OF MANUFACTURERS

1331 Pennsylvania

Avenue, N.W.

Washington, D.C. 20004

(202) 637-3000

May 15, 2008

Kristina Silja Bennard

Counsel of Record

Matthew D. Clark

DAVIS WRIGHT

TREMAINE LLP

1201 Third Avenue

Suite 2200

Seattle, WA 98101

(206) 622-3150

Leslie A. Hulse

AMERICAN CHEMISTRY

COUNCIL

1300 Wilson Blvd.

Arlington, VA 22209

(703) 741-5165