Ongoing serious health problems suffered by residents in Libby, Montana, the site of a vermiculite ore mining and processing facility operated by W. R. Grace, prompted the United States to obtain an indictment against the company and seven of its executives (collectively Grace). Following the district court’s dismissal of a portion of the original indictment,[1]the government’s superseding criminal indictment charged Grace with one count of dual-object conspiracy based upon Grace’s alleged actions to 1) knowingly release asbestos, a hazardous air pollutant, into the ambient air, thereby knowingly placing people in imminent danger of death or serious bodily injury,[2]and 2) defraud the United States by impairing, impeding, and frustrating government agency investigations and clean-up operations.[3]The indictment charged Grace with three counts of knowing endangerment under the Clean Air Act (CAA)[4]and four counts of obstruction of justice.[5]The Ninth Circuit reversed in part, affirmed in part, and remanded.

The district court entered six orders that led to this interlocutory appeal to the Ninth Circuit. These orders 1) dismissed as time-barred the knowing endangerment object of the conspiracy charge, 2) narrowed the government’s use of evidence of asbestos releases to only those releases of “asbestos” as defined in the CAA’s civil regulation, 3) denied the government’s motion to exclude evidence on an affirmative defense, and
4) excluded significant portions of the government’s evidence and expert testimony. Before remanding to the district court, the Ninth Circuit reversed the dismissal of the knowing endangerment conspiracy charge, allowed the broader definition of “asbestos” found in the criminal statute,[6]and issued a writ of mandamus directing the district court to disallow Grace’s use of the affirmative defense. The court affirmed the exclusion of some evidence but allowed the testimony of experts who drew inferences from that evidence. Finally, the court granted Grace’s motion to strike certain documents contained in the government’s reply brief on appeal.

a. Dismissal of the “Knowing Endangerment” Object of the Dual Conspiracy Charge

On appeal, the Ninth Circuit reversed the district court’s ruling that the government’s superseding indictment was time-barred and not protected by the savings clause of 18 U.S.C. § 3288. That provision allows the government to return a new indictment after a statute of limitations period has expired, but only if it does so within six months of dismissal of an indictment or a portion thereof.[7]The Ninth Circuit reviewed de novo both the district court’s decision to dismiss part of the indictment and its interpretation of the statutory savings clause.

A statute of limitations must be satisfied as to each object of a multi-object conspiracy.[8]Grace asserted that the “knowing endangerment” object here was time-barred because the original indictment failed to allege that Grace released asbestos, conspired to release asbestos, or committed any other overt act furthering the “knowing endangerment” object. The government responded that certain overt acts in the indictment supported both objects of the conspiracy, namely that Grace failed to remove asbestos-contaminated material from sites in the community, misled individuals regarding that contamination, and failed to disclose the existence of contaminated sites. Concluding the structure and text of the indictment was indicative of obstruction, not conspiracy, the district court dismissed as time-barred the “knowing endangerment” object of the conspiracy charge.

The government then obtained a superseding indictment that alleged many overt acts furthering the “knowing endangerment” object. Reasoning that the savings clause prohibits superceding indictments where the original indictment does not allege overt acts within the statute of limitations, the district court dismissed the new indictment as time-barred because it was not protected by the section 3288 savings clause.

The Ninth Circuit reversed. The court examined its precedent and determined that the savings clause permits amendments to a superceding indictment when the original is timely filed but suffers from structural flaws.[9]The Ninth Circuit reasoned that “[a]s long as the original indictment is filed within the statute of limitations and charges the same crime, based upon approximately the same facts charged in the superseding indictment, section 3288 allows the government to file a superseding indictment within six months.”[10]Contrary to the district court’s assertion, the Ninth Circuit stated that this reading of section 3288 does not extend the threat of indictment indefinitely but only for six months in limited situations where the government timely files an indictment charging the same crimes based on approximately the same facts. The court noted that its interpretation has the added benefit of eliminating a defendant’s incentive to wait until the end of the limitations period to move for dismissal of a technically flawed indictment so that the government is powerless to correct it. The Ninth Circuit reversed the district court and reinstated the knowing endangerment object of the conspiracy count in the superseding indictment.

b. Definition of “Asbestos”

The Ninth Circuit then turned to the district court’s ruling upon the parties’ cross motions in limine to exclude all evidence outside of each party’s interpretation of the term “asbestos.” The district court held that “asbestos” has no inherent meaning within the CAA’s criminal enforcement scheme; therefore, its use in this action violated the rule of lenity and the Due Process Clause. The district court looked to the CAA’s civil regulatory definition of “asbestos” and limited the definition, as applied to the knowing endangerment provision, to the six asbestiform minerals mentioned in the civil definition.[11]This limitation excluded evidence of releases of 95 percent of the asbestiform contaminants in the Libby vermiculite as well as all evidence that did not distinguish between the regulated and unregulated asbestiform minerals. The core issue before the Ninth Circuit was whether the criminal provision’s use of the term “asbestos” was ambiguous as to what substances qualified as hazardous air pollutants in the criminal context. The Ninth Circuit reviewed de novo both the district court’s construction of the CAA and its rulings on admissibility of evidence where issues of law predominated.

The Ninth Circuit agreed with the government that a statutory term may be defined differently for civil and criminal purposes, and the term “asbestos” in the CAA’s knowing endangerment provision included the minerals involved in this case. When a term is undefined by statute, the Ninth Circuit construes the term according to its “ordinary, contemporary, common meaning[,]“[12]and it is “well-known” that the common meaning of “asbestos” encompasses several substances.

The Ninth Circuit reversed the district court’s order limiting evidence of asbestos releases to those types of releases fitting within the civil regulations. The court first held that the district court improperly invoked the rule of lenity, which only applies in truly ambiguous circumstances.[13]The district court erred in finding ambiguity in the term “asbestos” simply because two oversight structures use different definitions. The Ninth Circuit determined that Congress adequately defined asbestos and no mineral-by-mineral classification was required. The court concluded that no further definition was needed, particularly for knowledgeable defendants who, as top executives in the chemical industry, knew of the health risks posed by asbestos since 1976 and knew or should have known that Grace’s vermiculite mining and processing could release asbestos into the ambient air.

Finally, the court held that, given the distinct purposes of the criminal and civil CAA enforcement provisions, these separate enforcement mechanisms may draw on different definitions for the same term or phrase. The civil provisions regulate major sources of hazardous air pollutants and focus on “commercially viable” asbestiform minerals rather than non-viable varieties that, due to market forces, are unlikely to become major sources. The criminal enforcement mechanism focuses on human health risks, so it regulates all hazardous pollutants, regardless of the size of the source. Accordingly, the Ninth Circuit held the district court erred in its decision to limit the term “asbestos” to the six minerals covered by civil regulations.

c. Mandamus

The government sought a writ of mandamus to overturn the district court’s ruling that allowed Grace to admit evidence in support of an affirmative defense established by the CAA where hazardous air pollutants are released “in accordance with” an applicable National Emission Standard for Hazardous Air Pollutants.[14]First, the Ninth Circuit determined it could

issue the writ if, among other things, the district court made a clear error as a matter of law.[15]

The Ninth Circuit, after reviewing the statutory language setting forth the affirmative defense, held that the affirmative defense is unavailable to Grace because asbestos is not an “air pollutant for which the Administrator has set an emissions standard.”[16]The court noted that while many hazardous air pollutants do have a single emissions standard, several emissions standards apply to the various categories and sources of asbestos. Moreover, there is no emissions standard at all for asbestos released at mining operations.[17]The court held that because the district court incorrectly applied an emissions standard of “no visible emissions,” which only applies to some asbestos emission standards, Grace’s asbestos releases cannot be “in accordance with” an applicable emissions standard. Therefore, the Ninth Circuit granted the government’s petition for a writ of mandamus.

d. Evidentiary Rulings

The government also appealed the district court’s order excluding evidence related to, and testimony based on, certain studies the government sought to introduce in support of the three counts in the indictment alleging violations of the CAA’s knowing endangerment provision. The studies included EPA indoor air studies, Grace’s historic testing of its vermiculite products, an Agency for Toxic Substances and Disease Registry (ATSDR) report based on a medical screening study of residents of Libby, Montana, and the peer-reviewed, published results of that screening study. The Ninth Circuit reviewed de novo the district court’s interpretation of the Federal Rules of Evidence (FRE), and reviewed for abuse of discretion the district court’s decision regarding admissibility of scientific evidence and expert testimony.

For each piece of evidence included in the district order, the Ninth Circuit considered whether the district court acted within its discretion in accordance with the relevant FRE. For the EPA indoor air studies, the Ninth Circuit held the district court acted within its discretion to exclude the indoor air studies as prejudicially confusing since the jury could confuse the indoor air quality evidence as relevant to the question of releases of asbestos into the ambient air. However, because the district court did not consider whether under FRE 702 and 703 the data is of the type reasonably relied on by experts in the field, the Ninth Circuit remanded the question of whether experts could use the studies’ data on asbestos friability without
prejudicial effect.

As to Grace’s historic product testing studies, the Ninth Circuit ruled that the district court abused its discretion by excluding historic testing data under FRE 702 because the district court considered each document alone, rather than in light of the expert’s reasoning and methodology as a whole. The Ninth Circuit ruled that a limited use of historic product testing studies to inform expert opinions as to the hazardous characteristics of Libby asbestos-contaminated vermiculite and its propensity to release fibers is a permissible use of the data to show the “release” element of the knowing endangerment provision. Therefore, the Ninth Circuit reversed the district court’s ruling excluding the use of this data by experts for this purpose.

Finally, the Ninth Circuit considered the district court’s exclusion of the ATSDR report, which was based on a medical screening study of residents of Libby, Montana. The court also considered whether the government could use the peer-reviewed, published results of that screening study. The court ruled that the district court acted within its discretion in excluding the studies themselves under FRE 403, but determined that the district court abused its discretion in excluding this evidence for use in informing expert opinion and testimony. The court reasoned that an expert is the best judge of what materials would help form his or her opinion, and while trial courts can vet the basis for an expert’s opinion under FRE 703 by examining his or her methodology under FRE 702, the district court misapplied FRE 702 and incorrectly replaced the FRE 703 analysis with an FRE 403 analysis. While the district court could properly exclude the studies themselves, the Ninth Circuit reversed the district court’s order excluding these studies for purposes of expert consideration.

e. Motion to Strike

The Ninth Circuit made its last determination on a defense motion to strike six documents not included in the record. Usually, reviewing courts only consider the record that was before the district court, but this general rule is subject to three narrow exceptions: to “correct inadvertent omissions from the record,” to “take judicial notice,” and to “exercise inherent authority . . . in extraordinary cases.”[18]Although three of the six documents at issue fell within the second exception, the Ninth Circuit pointedly stated that the record is most appropriately supplemented on appeal “by motion or formal request” so that other parties and the court are made aware of the status of the documents in question.[19]Although it used its discretion to refuse to take notice of the documents on appeal, the court explained its ruling does not preclude an application to the district court to include the documents in the district court’s record on remand.

f. Conclusion

The Ninth Circuit reversed the dismissal of the knowing endangerment object of the dual object conspiracy charge, rejected the district court’s adoption of the civil regulatory definition of asbestos in the criminal enforcement context, and issued a writ of mandamus ordering the district court to disallow the affirmative defense under the CAA’s knowing endangerment provision. The court also held that while certain studies were themselves inadmissible, they could be used to ground expert testimony. Finally, the Ninth Circuit granted Grace’s motion to strike documents submitted on appeal that were not part of the record in the district court below.

^[1] United States v. W. R. Grace, 434 F. Supp. 2d 879, 888 (D. Mont. 2006).

^[2] 42 U.S.C. § 7413(c)(5)(A) (2000).

^[3] 18 U.S.C. § 371 (2000).

^[4] 42 U.S.C. § 7413(c)(5)(A) (2000).

^[5] 18 U.S.C. §§ 1505, 1515(b) (2000).

^[6] 42 U.S.C. § 7412(b) (2000).

^[7] 18 U.S.C. § 3288 (2000).

^[8] Yates v. United States, 354 U.S. 298 (1957)(overruled on other grounds).

^[9]See United States v. Clawson, 104 F.3d 250, 251-52 (9th Cir. 1996).

^[10] United States v. W. R. Grace, 504 F.3d 745, 753 (9th Cir. 2007)

^[11] 40 C.F.R. § 61.141 (2007).

^[12] United States v. Cabaccang, 332 F.3d 622, 626 (9th Cir. 2003)(en banc).

^[13]See Muscarello v. United States, 524 U.S. 125, 138 (1998).

^[14]See Clean Air Act, 42 U.S.C. § 7413(c)(5)(A) (2000)(emission standard).

^[15]See Clemens v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 1177-78 (9th Cir. 2005).

^[16] 42 U.S.C. § 7413(c)(5)(A) (2000)(emphasis added).

^[17]See 40 C.F.R. §§ 61.142-151 (2007).

^[18] Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

^[19]Id. at 1025.

Charles Lynn Moses (Moses) was charged with three counts of felonious criminal violations under the Clean Water Act (CWA)[1]for knowingly discharging and causing to be discharged pollutants from a point source into the waters of the United States without a permit.[2]The charges concerned activities in Teton Creek, in Idaho. A jury found Moses guilty on all counts. Moses twice motioned for a new trial, attempting in the first motion to introduce new evidence to support an estoppel argument. The United States District Court for the District of Idaho denied both motions. The court sentenced Moses to eighteen months imprisonment with one year of supervised release, and fined him $9,000 in addition to a $300 special assessment.

On appeal to the Ninth Circuit, Moses argued the evidence was insufficient to show that Teton Creek is a “water of the United States” to trigger CWA jurisdiction, and was insufficient to show his activities constituted a “discharge.”[3]He also claimed that his activities required no permit, and therefore the district court should have granted a new trial. The Ninth Circuit reviewed the sufficiency claim de novo,[4]and reviewed the district court’s denial of a motion for a new trial for abuse of discretion.[5]The court rejected Moses’s arguments, affirming the district court’s decisions.

Moses is a developer who worked on a 50-acre development adjacent to Teton Creek, a tributary of the Teton River. Because of a diversion upstream, water only flows in the portion of the stream next to the development for two months each year during the spring runoff. Moses hired bulldozer operators to reshape the stream and build log and gravel structures to convert its three channels into one broad channel that would hold all the spring runoff. Since the early 1980s, the disturbances moved thousands of cubic yards of gravel and caused substantial impacts both upstream and downstream of the excavation site.[6]

Moses’s prosecution followed repeated warnings by the United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agency (EPA) that his activities required a CWA permit. These warnings included notice by the Corps that it had jurisdiction over the creek during a 1982 hearing; a cease and desist order to stop all dredge and fill activities issued by the Corps in 1995; and letters from the Corps in 1996 and 1997 seeking his cooperation. When Moses hired an excavation business to do extensive work in the creek[7]in 2002, a Corps environmental resources specialist who observed the work warned him of potential civil and criminal penalties. The Corps issued a notice of violation that repeated these warnings. Following similar work in 2003,[8]the EPA issued an administrative compliance order requiring Moses to cease and desist unauthorized discharges and to submit a restoration plan for the stream. Moses did not respond, but hired another contractor who completed additional gravel removal and contouring of the streambed. A three-count indictment by a federal grand jury followed in March 2005.

Before turning to Moses’s claim that his stream disturbance required no permit, the Ninth Circuit considered his claims that the evidence was insufficient to show 1) that Teton Creek is a water of the United States, and
2) that Moses’s activities constituted a discharge. To restore the integrity of the nation’s waters, the CWA prohibits unauthorized discharges of any pollutants into waters of the United States.[9]A criminal conviction for a CWA violation is supported by sufficient evidence if “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[10]Under this test, the court found sufficient evidence to affirm the conviction.

Moses argued that because no water flows in Teton Creek for ten months of the year due to an upstream man-made diversion, the stream is not a “water of the United States.” In considering the sufficiency of the evidence to show otherwise, the court gave deference to the Corps’s and EPA’s broad interpretation of the term “waters of the United States.”[11]Both agencies’ CWA regulations include nonnavigable bodies of water such as intermittent streams, wetlands, and tributaries of waters of the United States.[12]Prior to the installation of the water diversion, Teton Creek was at least a tributary.[13]The court noted that a water of the United States would not lose that status by the installation of a mere man-made diversion that left the stream with intermittent flow,[14]citing to the United States Supreme Court for the proposition that “navigability is not . . . appraised on . . . natural conditions only. . . [w]hen once found to be navigable, a waterway remains so.”[15]

The Ninth Circuit offered a second rationale for its determination that Teton Creek is a water of the United States-that regardless of its condition prior to the installation of the man-made diversion,[16]“a seasonally intermittent stream which empties into a river that is a water of the United States can, itself, be a water of the United States.”[17]In Headwaters, Inc. v. Talent Irrigation District(Headwaters),[18]the Ninth Circuit followed the Eleventh Circuit’s approach in holding that intermittently flowing tributaries are “waters of the United States.”[19]The court there reasoned that such water bodies can carry pollutants to navigable waters during wet periods and thereby cause environmental damage.

Citing to Headwaters for support in the present case, the Ninth Circuit noted that although the U.S. Supreme Court recently addressed the interpretation of what qualifies as a tributary in the wetlands context,[20]it had not undercut the Ninth Circuit’s prior analysis. A four-justice plurality in Rapanos v. United States stated that the phrase “waters of the United States” does not include “channels through which water flows intermittently or ephemerally . . . but does not necessarily exclude seasonal rivers . . .which contain continuous flow during some months . . . but no flow during dry months.” [21]Four dissenting Justices countered that “common sense and common usage demonstrate that intermittent streams, like perennial streams, are still streams.”[22]And Justice Kennedy, in his concurrence, stated that the test instead requires a “significant nexus” between wetlands and navigable waters, as established on a case-by-case basis. Finally, if federal jurisdiction does exist over an intermittent stream, the Ninth Circuit observed that Rapanos made no contention that it evaporates and reappears with the seasonal flow.

The Ninth Circuit interpreted Rapanos to indicate unanimous agreement that seasonal, intermittent streams can be “waters of the United States.” Because the segment of Teton Creek that Moses disturbed is a seasonal, intermittent stream that for two months each year rages to join the lower Teton Creek and flow out to lower tributaries, the Ninth Circuit held that it constitutes a “water of the United States” and rejected Moses’s argument.

The court then turned to Moses’s claim that the evidence was insufficient to support the “discharge of a pollutant” element of the crime. Moses asserted that because the activities occurred during periods of no flow, there was no discharge. The Ninth Circuit rejected this reasoning on two grounds. First, following the Eleventh Circuit’s rationale relied on in Headwaters, the court noted that it is irrational to think that pollutants deposited while a stream is dry will not eventually wind up in navigable waters during the next period of flow. Second, Moses left redeposited gravel[23]and log structures in the streambed while the water rose, which could become dislodged and carried downstream. In affirming that the evidence was sufficient to find a discharge of pollutants, the court rejected Moses’s claim that his activities fell under the limited “incidental fallback” exception of the Corps’s CWA regulations because the massive movement of thousands of cubic yards of material stood in stark contrast to the small

volume of dirt, such as that falling off the back of a shovel or bucket, contemplated by the regulations.[24]

Lastly, the Ninth Circuit turned to Moses’s claim that the district court erred in denying his motion for a new trial because no CWA permit was required for his activities. He argued his stream disturbance fell under an exception for discharges aimed at maintaining currently serviceable structures.[25]The Ninth Circuit rejected this argument, too, noting that exceptions from the CWA must be construed narrowly and analyzed in light of the Act’s purposes.[26]Under such a narrow construction, the court found that the district court did not abuse its discretion in denying a new trial. Even if some of the logs placed in the creek were repairable structures, none were constructed pursuant to a permit.[27]The changes Moses caused in the streambed went far beyond mere maintenance, and the evidence suggested Moses did not meet the exception’s requirement that such activities not further impair the waterbody.[28]Thus, the Ninth Circuit concluded that the district court did not abuse its discretion when it denied Moses’s motion for a new trial.

Having rejected Moses’s claims regarding sufficiency of the evidence, and having determined that the district court did not abuse its discretion in denying the motion for a new trial, the Ninth Circuit affirmed.

^[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

^[2]Id. §§ 1311(a), 1319(c)(2)(A); 18 U.S.C. § 2 (2000).

^[3]Id. §§ 1362(7), 1362(16).

^[4] United States v. Lyons, 454 F.3d 968, 971 (9th Cir. 2006). Moses preserved this claim by moving for a judgment of acquittal.

^[5]See United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004).

^[6] A government expert described the stream as “probably one of the more impacted streams” he had observed, in terms of localized, upstream, and downstream effects. United States v. Moses, 496 F.3d 984, 986-87 (9th Cir. 2007).

^[7] In 2002, Moses hired Tupco, Inc., an excavation business, to rebuild log structures, perform dredge and fill work, build a ramp into the stream, and remove gravel bars. This work was completed both before and after spring runoff.

^[8] In 2003, Moses’s excavator repaired log structures in the stream bed and moved gravel out of and within the stream bed.

^[9]See Federal Water Pollution Control Act, 33 U.S.C. §§ 1251(a), 1311(a), 1362(7), 1362(12), 1362(16) (2000).

^[10]Lyons, 454 F.3d 968, 971 (9th Cir. 2006)(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

^[11]See San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 705 (9th Cir. 2007)(requiring deference to agency interpretations).

^[12]See 33 C.F.R. § 328.3(a) (2007) (defining waters of the United States under the Corps’s regulations); 40 C.F.R. § 122.2 (2007) (defining waters of the United States under EPA’s regulations); see also United States v. Phillips, 367 F.3d 846, 855-56 (9th Cir. 2004) (supporting the proposition that a tributary of waters of the United States is also a “water of the United States”).

^[13] Teton Creek flows into the Teton River, which flows into the Snake River. Moses did not claim these larger bodies of water or any portions of Teton Creek that flow year round failed to qualify as waters of the United States.

^[14]Cf. George v. Beavark, Inc., 402 F.2d 977, 978 (8th Cir. 1968)(addressing a claim that a boat on a man-made lake, created by damming the White River, was floating on navigable waters).

^[15] United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-08 (1940).

^[16] The Ninth Circuit acknowledged that the diversion was constructed prior to the passage of the CWA, but stated that this did not affect its analysis.

^[17]Moses, 496 F.3d 984, 989 (9th Cir. 2007).

^[18] 243 F.3d 526 (9th Cir. 2001).

^[19]Id. at 534; United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997).

^[20] Rapanos v. United States, 126 S. Ct. 2208 (2006).

^[21]Id. at 2225.

^[22]Id. at 2260(Stevens, J., dissenting).

^[23] Dredging and redepositing material can violate the CWA. See Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d 810, 814 (9th Cir. 2001).

^[24]See 33 C.F.R. § 323.2(d)(2)(i) (2007) (providing that “incidental fallback is the redeposit of small volumes of dredged material . . . examples include soil that is disturbed when dirt is shoveled . . . when such small volume of soil or dirt falls into substantially the same place from which it was removed”).

^[25] Federal Water Pollution Control Act, 33 U.S.C. § 1344(f)(1)(B) (2000).

^[26] United States v. Akers, 785 F.2d 814, 819 (9th Cir. 1986).

^[27] The Ninth Circuit summarily rejected Moses’s claim that he didn’t need a permit because his activities were covered by Nationwide Permit Number Three, 67 Fed. Reg. 2078 (Jan. 15, 2002). The court stated that this permit was issued pursuant to the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. §§ 401-467n (2000), and does not apply to activities covered by the CWA. Even if the permit did apply, new evidence submitted with Moses’s motion for a new trial related only to his 1980 activity, leaving him in violation from the period the Corps asserted jurisdiction in 1982.

^[28] 33 U.S.C. § 1344(f)(2) (2000); see also 33 C.F.R. § 323.4(a)(2) (2007).

Dennis Price, president of AB-HAZ Environmental, filed with the Ninth Circuit an interlocutory appeal of the district court’s denial of a motion to dismiss a Clean Air Act (CAA)[1] criminal indictment.[2] Price and his company, AB-HAZ, had been indicted after the company supervised the removal of asbestos from hotel and casino buildings before demolition in Clark County , Nevada. Price claimed that the federal CAA prosecution was barred under the Double Jeopardy Clause[3] because he had already settled with the Clark County Heath District (District) after it alleged violations of local air pollution law. The Ninth Circuit determined that it had jurisdiction because the court found that Price’s appeal was “colorable”[4] and the issue was one of first impression. However, the Ninth Circuit held that the Double Jeopardy Clause did not bar the federal criminal prosecution.

In reaching its decision, the Ninth Circuit examined the separate sovereign doctrine, which states that “a single act that violates the laws of two separate sovereigns constitutes two separate crimes, and prosecutions by each of these sovereigns does not violate the Double Jeopardy Clause.”[5] In trying to prove the inapplicability of the doctrine, Price argued that the federal government had delegated to the District, through the state, the authority to enforce the standards under the CAA, and therefore the state and federal laws were not separate. However, the court found that the District received its authority to punish Price from the state’s police power.

Even though the state submitted its air pollution standards to the Environmental Protection Agency for approval under the CAA, the state had the freedom to adopt more stringent standards than those in the CAA. In addition, the Ninth Circuit pointed out that the CAA explicitly allows for the retention of state authority and does not preempt state law.[6] Therefore, the court found that the federal government and the District were separate sovereigns and held that Price’s indictment was not barred by double jeopardy.

[1] 42 U.S.C. §§ 7401-7671q (2000).

[2] The indictment was for violating 42 U.S.C. § 7412 (2000).

[3] U.S. Const. amend. V (providing that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb”).

[4] United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002) (citing Richardson v. United States, 468 U.S. 317, 322 (1984)).

[5] Id. (citing Heath v. Alabama, 474 U.S. 82, 88 (1985)).

[6] 42 U.S.C. §§ 7412, 7416 (2000).

The Ninth Circuit affirmed the defendant’s conviction for a felony violation of the Lacey Act,[1] holding that a felony conviction under the Lacey Act does not require knowledge of the particular law violated by the possession of illegal wildlife, as long as the defendant knows of the unlawfulness of the act.

Joey Santillan, the owner of a tropical fish store, was prosecuted and convicted for smuggling and importing wildlife in violation of the Lacey Act. While crossing the United States-Mexico border on his way back from Tijuana, Santillan failed to declare ten baby parrots hidden under the seat of his automobile. At the time of his capture he admitted that he knew it was illegal to bring the birds into the United States.

Santillan argued that the district court erroneously instructed the jury on the mental element required under the Lacey Act. The prosecutor charged Santillan with importing wildlife in violation of a regulation that required he complete and file a declaration form.[2] In his defense, Santillan offered an interpretation of the Lacey Act that would require proof that he knew of the form requirement, in order to convict him of a felony violation. Instead, the district court instructed the jury that the prosecution only had to show that the defendant knew he was importing wildlife, and that the wildlife was “possessed” in violation of the law.

The Ninth Circuit held that “the Lacey Act does not require knowledge of the particular law violated by the possession or other predicate act, so long as the defendant knows of its unlawfulness.”[3] The criminal penalty provisions of the Lacey Act create felony penalties for a “person who knowingly imports . . . wildlife . . . in violation . . . of this Act . . . knowing that the . . . wildlife [was] taken, possessed, transported or sold in violation [of the law].”[4] The Ninth Circuit first distinguished United States v. Miranda,[5] an Eleventh Circuit case that Santillan offered in support of his interpretation. The court determined that Miranda did not apply because it involved a situation where the defendant would not have known there was anything unlawful about his act. In contrast, Santillan clearly knew that his possession and importation of wildlife was unlawful.

The Ninth Circuit next examined the criminal penalty provisions of the Lacey Act and concluded that the language supported the interpretation that a person only has to know his act was violative of any law, regardless of whether the person knew which law was violated. The court explained that the mental state requirement is meant to separate wrongful conduct from “otherwise innocent conduct.”[6] Therefore, achieving that objective does not require the defendant to know the exact law he violated, only that he know his conduct was unlawful.

Santillan also argued that the district court erred by not instructing the jury that they could convict him of a lesser included offense. The Lacey Act includes a felony provision and a misdemeanor provision, but the judge refused to instruct that they could find Santillan guilty of a misdemeanor. The Ninth Circuit concluded that the evidence did not leave room for the conclusion that Santillan did not know possession of the birds was illegal. As a result, the district judge did not err in failing to give the instruction.

[1] Lacey Act Amendments of 1981, 16 U.S.C. §§ 667e, 1540, 3371-3378; 18 U.S.C. §§ 42-44, 3054, 3112 (1994 & Supp. V 1999).

[2] 50 C.F.R. § 14.61 (2000) (requiring importers to file a Declaration of Importation of Wildlife).

[3] United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir. 2001).

[4] 16 U.S.C. § 3373(d)(1)(A) (1994).

[5] 835 F.2d 830 (11th Cir. 1988) (holding the evidence established that defendant and his company conspired to sell undersized spiny lobster tails).

[6] 243 F.3d at 1129 (quoting Carter v. United States, 530 U.S. 255 (2000)).

The Ninth Circuit vacated the district court’s conviction of Ian Martin Lynch for knowingly removing an archaeological resource from public land in violation of the Archaeological Resources Protection Act (ARPA)[1] and remanded the case for further proceedings. The court held that to convict Lynch under the ARPA, the government had to show that Lynch knew or had reason to know that he was removing an “archaeological resource.”

In 1997, Lynch discovered and removed a partially buried human skull while deer hunting with friends on an uninhabited island in southeast Alaska. Agents of the United States Forest Service interviewed Lynch after being informed of his actions. Lynch turned over the skull at the interview and directed agents to the site where he found it. After a Forest Service archeologist could not readily determine the age of the skull, the agency used carbon dating to conclude that the skull was at least 1400 years old.

Lynch was indicted for a felony violation of the ARPA. The ARPA prohibits the removal of archeological resources from public lands,[2] and provides that anyone who “knowingly violates” the statute will “be fined not more than $10,000 or imprisoned for not more than one year or both.”[3] At trial, Lynch entered a conditional plea of guilty after the district court informed him that “the government would not have to prove that [he] knew that his act was against the law nor that the skull he removed from government land was an archeological resource.”[4] Lynch appealed the district court’s holding that his actions were malum in se,[5] meaning that the government only had to show that he knew he was removing a human skull, in order to secure a felony conviction. On appeal, the Ninth Circuit held that when charging a defendant with criminal liability for knowingly violating the ARPA, the government must prove “that the defendant knew more than that the object he removed was a human skull.”[6]

In the Ninth Circuit’s analysis, the court first rejected Lynch’s argument that the government must prove specific intent–that he knew he was violating the ARPA–to indict him. In contrast, the government asserted that because the ARPA uses “knowingly” instead of “willfully,” the statute does not require that a defendant know his actions are illegal. The court surveyed cases with similar facts and rejected Lynch’s argument. Prior opinions indicated that a defendant must be aware that he is performing a particular act, but not that the act has been criminalized.[7] In addition, the court determined that the legislative history seemed to support rejecting Lynch’s argument. The Ninth Circuit held that a felony conviction under the ARPA requires the government to prove that the defendant knew, or had reason to know, that the item taken was an “archeological resource.” The court concluded that picking up a skull is not malum in se in every case, nor does it always “involve the public welfare.”[8]

The court decided that in most cases a “knowing” violation means that the defendant must “know the facts that make his conduct illegal.”[9] The Ninth Circuit compared Lynch’s conviction under the ARPA with the Supreme Court’s decision in Staples v. United States.[10] In Staples, the Supreme Court held that the government must prove that “the defendant knew the weapon he possessed had characteristics that brought it within the statutory definition of a machine gun in order to be convicted for failing to register a machine gun.”[11] Similarly, the Ninth Circuit decided that to convict Lynch, the government must show that Lynch knew the skull he removed had characteristics that brought it within the statutory definition of an archeological resource. The appellate court determined that the concerns expressed by the Supreme Court in Staples were present in Lynch’s case. The primary concern over the potential for harsh penalties “counsel[ed] against convicting an unwitting person of a felony when nobody knew until after a lengthy investigation that the [skull] taken was more than 100 years old . . . .”[12] Therefore, the Ninth Circuit read a knowledge requirement into the statute.

The court also decided the case was like Staples because it involved the widespread tradition of artifact collecting, similar to the widespread tradition of gun ownership that the Supreme Court found important in Staples. The government attempted to cast Lynch’s conduct in a different light, arguing that Staples did not apply because grave robbing is not an accepted tradition. The court rejected this argument because the government failed to charge Lynch with grave robbing, and the record did not contain any evidence that Lynch knew or should have known the skull was in a grave.

The Ninth Circuit also rejected the government’s attempt to characterize the case as involving a “public welfare” offense. With public welfare offenses, the prosecution does not have to prove the state of mind of the defendant to secure a conviction. The court determined that the public welfare offense cases offered by the government dealt with conduct that is inherently more felonious than removing a skull, such as arson, assault, and breaking into a federal computer.[13] Finally, the court distinguished a previous Ninth Circuit opinion that addressed knowing violations under the Endangered Species Act (ESA).[14] In United States v. McKittrick,[15] the court held that to violate regulations under the ESA, a defendant does not have to know that he killed a listed endangered species. The Ninth Circuit distinguished McKittrick in two ways. First, the legislative intent of the ESA indicated the statute was meant to halt species extinction regardless of the cost, while the legislative history of the ARPA suggests that Congress was worried about “penalizing archeologically naive visitors to public lands.”[16] In addition, McKittrick involved misdemeanor penalties and Lynch faced felony penalties. Thus, the Ninth Circuit vacated Lynch’s conviction and remanded for further proceedings.

[1] Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-470mm (1994 & Supp. V 1999).

[2] Id. § 470ee(a) (1994).

[3] Id. § 470ee(d).

[4] United States v. Lynch, 233 F.3d 1139, 1139 (9th Cir. 2000).

[5] “A crime or an act that is inherently immoral, such as murder, arson, or rape.” Black’s Law Dictionary 970 (7th ed. 1999).

[6] 233 F.3d at 1140.

[7] See Staples v. United States, 511 U.S. 600, 619 (1994) (holding that the government had to show defendant knew the weapon he possessed was a machine gun, not that his possession was illegal); United States v. Int’l. Minerals & Chem. Corp., 402 U.S. 558, 561-62 (1971) (holding that the language “knowingly violates” does not imply that knowledge of the law was required); Morissette v. United States, 342 U.S. 246, 270-72 (1952) (holding that statutory language “knowing conversion” required that the defendant have knowledge of the facts, but not necessarily the law that made the taking a conversion); United States v. Sherbondy, 865 F.2d 996, 1002-03 (9th Cir. 1988) (holding statute’s use of “knowingly” for a federal firearms offense does not require knowledge of the law be proved as an element of the offense).

[8] 233 F.3d at 1143.

[9] Id. at 1143 (quoting Staples, 511 U.S. at 606).

[10] 511 U.S. 600 (1994).

[11] Lynch, 233 F.3d at 1143 (citing Staples, 511 U.S. at 623 (Ginsburg, J., concurring)).

[12] Id. at 1143.

[13] United States v. LaPorta, 46 F.3d 152, 155-56 (2d Cir. 1994) (involving the destruction of government property by arson, in contravention of federal statute), rev’d on other grounds, Sicurella v. United States, 157 F.3d 177 (2d Cir. 1998); United States v. Feola, 420 U.S. 671 (1975) (holding that under statute prohibiting assault of federal officers, the government only need show intent to assault); United States v. Sablan, 92 F.3d 865, 868-69 (9th Cir. 1996) (holding that under a computer fraud statute the government only must show intent to access a federal computer without authorization, rather than actual intent to destroy government files).

[14] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[15] 142 F.3d 1170 (9th Cir. 1998).

[16] 233 F.3d at 1145.

The Ninth Circuit affirmed the defendant’s conviction for violating a Bureau of Land Management (BLM) regulation prohibiting construction of enclosures, gates, or fences on BLM land without the agency’s permission. Although the magistrate judge erred by not instructing the jury on specific intent as requested by the defendant, the Ninth Circuit concluded that the error was harmless beyond a reasonable doubt.

In February 1998, BLM employees discovered Gerald Henderson digging an open trench on BLM land at Farrar Gulch in Arizona. A subsequent site inspection revealed that Henderson also had a travel trailer, heavy equipment, building materials, and barriers constructed from boulders on the public land. BLM agents served Henderson with a Notice of Immediate Suspension, which directed him to remove the materials and fill the open trench. Henderson failed to comply with the suspension notice, prompting BLM to file a misdemeanor complaint alleging multiple violations of BLM regulations,[1] in contravention of the Federal Land Policy and Management Act (FLPMA).[2] At trial, Henderson requested that the magistrate judge instruct the jury that conviction under section 303(a) required proof of “specific intent to do or fail to do what the defendant knows is unlawful.”[3] The judge declined the request and instructed the jury that “willfully” means “that a person knowingly and intentionally committed the acts which constitute the offenses charged.”[4] The jury found Henderson guilty.

The Ninth Circuit determined that the magistrate judge erred by failing to instruct the jury on “specific intent.” Analyzing the language of section 303(a), the court concluded that to impose criminal liability, the government must show that a defendant “knowingly and willfully” violated BLM’s regulations. Furthermore, the court concluded that under section 303(a), “knowingly and willfully” means that the prosecution must establish that the defendant “was aware that the conduct in question was unlawful in order to sustain a conviction.”[5] The court determined that the statute’s use of “willfully” showed congressional intent to require the prosecution to establish that the defendant was aware of the illegality of the conduct in question. The Ninth Circuit analyzed several cases that addressed the use of “willfully” in statutes imposing criminal liability. In Bryan v. United States,[6] the Supreme Court recognized that use of the word “willfully” required “proof of knowledge of unlawfulness . . . when the criminal conduct is contained in a regulation instead of in a statute, and when the conduct punished is not obviously unlawful.”[7] A comparison of the use of “willfully” in section 303(a) with the case law revealed that violations of BLM regulations were specific-intent offenses. Henderson’s illegal conduct was listed in the administrative regulations, rather than the statute, and the regulations barred conduct that was not obviously illegal.

The court also determined that the instruction given by the magistrate judge rendered the term “willfully” mere surplusage. According to the court, “knowingly” generally means that the prosecution must show that the defendant “possessed knowledge of the facts that constitute the offense.”[8] However, the magistrate’s instruction on the meaning of the term “willfully” was almost identical to the generally recognized meaning of “knowingly.” The Ninth Circuit concluded that the magistrate judge erred by not instructing the jury on “specific intent,” as requested by the defendant.

The Ninth Circuit nevertheless affirmed Henderson’s conviction. The court reasoned that BLM served Henderson with a detailed, written suspension notice. Henderson failed to remove the barriers or fill in the trench. As a result, the evidence clearly showed that he failed to comply with the suspension notice. The notice also informed Henderson that failure to comply with the requirements would subject him to criminal liability. Because he was aware his conduct was unlawful and no reasonable jury could have found that Henderson lacked knowledge that his conduct was unlawful, the failure to give the requested instruction was harmless error.

[1] 43 C.F.R. § 3715.6(e) (2000) (requiring compliance with the suspension notice); id. § 3715.6(g) (prohibiting “[p]lacing, constructing, or maintaining enclosures, gates, or fences, or signs . . . without BLM’s concurrence”).

[2] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, 1733(a) (1994 & Supp. III 1997) (enforcement authority).

[3] United States v. Henderson, 243 F.3d 1168, 1170 (9th Cir. 2001).

[4] Id.

[5] Id. at 1171.

[6] 524 U.S. 184 (1998).

[7] 243 F.3d at 1172. The Ninth Circuit also cited another Supreme Court case and a Ninth Circuit case that held that the use of the word “willfully” required “proof of violation of a known legal duty.” Ratzlaf v. United States, 510 U.S. 135, 137 (1994) (holding that use of “willfully” in a provision regulating currency reporting required a showing that defendant knew his conduct was illegal); United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828 (9th Cir. 1976) (holding that “willful” violations of regulations governing the import of munitions were specific-intent offenses).

[8] 243 F.3d at 1173 (quoting Bryan, 524 U.S. at 193 & n.15).

MacDonald challenged the enhancement of his sentence by the district court for conspiracy to manufacture methamphetamine due to the unlawful discharge of a hazardous substance. The Ninth Circuit affirmed the enhancement of MacDonald’s sentence.

MacDonald pled guilty to the charge of conspiracy to manufacture methamphetamine. The plea agreement set a base offense level with reductions, and the Presentence Report included a recommended two-level enhancement of the sentence for the disposal of hazardous materials.[1] MacDonald objected to the two-level enhancement to his sentence. Finding that the district court did not clearly err or abuse its discretion in enhancing MacDonald’s sentence under the U.S. Sentencing Guidelines (Guidelines), the Ninth Circuit affirmed MacDonald’s sentence, including the two-level addition for unlawful discharge of a hazardous substance.

MacDonald was convicted of conspiring to manufacture methamphetamine on public land. Both the state’s witnesses and MacDonald’s witnesses indicated that hazardous wastes were poured onto the ground at the campsite where the crime occurred. MacDonald argued that the quantity of hazardous waste poured onto the ground was not sufficient to cause a toxic effect and therefore the two-level enhancement did not apply to his case.

The Ninth Circuit noted that the Guidelines require that the courts “increase the base offense level [of a defendant] by two levels ‘[i]f the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous substance.’”[2] The comments accompanying the Guidelines provide that subsection 5(A) is applicable if the conduct involved in the offense was a violation covered by section 3008(d) of the Resource Conservation and Recovery Act of 1976 (RCRA)[3] or other environmental statutes. RCRA “criminalizes a range of activities related to the unlawful generation, transportation, storage, treatment, and disposal of a ‘hazardous waste’ identified or listed under RCRA”[4] and delegates to the United States Environmental Protection Agency (EPA) responsibility for identifying and listing the items considered hazardous waste. EPA has listed hazardous wastes including naptha and acetone. The Government’s expert stated that the crime involved an illegal disposal of naptha or acetone. The testimony of MacDonald’s expert related only to toxicity levels for the soil that had already been cleaned up, and therefore the Ninth Circuit stated that the testimony of MacDonald’s expert “does not undermine or contradict [the government's expert's] conclusion that there was a disposal of waste covered by RCRA.”[5]

MacDonald challenged the two-level addition to his sentence on the theory that the amount of waste poured onto the ground was not sufficient to cause a toxic effect. The Ninth Circuit found MacDonald’s interpretation of the statute misguided. In order to qualify as an emission of hazardous waste, a discharge need only contain a material that EPA considers to be hazardous waste or to have the characteristics of a hazardous waste–it does not matter how much of the material is contained in the discharge or whether that discharge alone could cause a toxic effect.

The Ninth Circuit reviewed the district court’s findings of fact for clear error, and reviewed the district court’s application of the enhancement provision of the Guidelines under an abuse of discretion standard. The Ninth Circuit determined that the district court did not commit clear error in holding that the enhanced sentencing guidelines applied to MacDonald because there was unlawful discharge or disposal of a hazardous substance under RCRA at two of the places where the methamphetamine was produced. The court also determined that the district court did not commit an abuse of discretion by applying the enhanced guidelines to MacDonald. Therefore the Ninth Circuit affirmed MacDonald’s enhanced sentence under RCRA.

[1] SeeU.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(A) (2002) (requiring two-level enhancement for crimes involving disposal of hazardous materials).

[2] United States v. MacDonald, 339 F.3d 1080, 1081 (9th Cir. 2003) (quoting U.S. Sentencing GuidelinesManual § 2D1.1(b)(5)(A) (2002)).

[3] 42 U.S.C. §§ 6901-6992(k) (2000) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992). RCRA section 3008(d) is codified at id. § 6928(d).

[4] MacDonald, 399 F.3d at 1082 (quoting 42 U.S.C. § 6903(5) (2000)) (citations omitted).

[5] Id. at 1083.

Thomas Pearson was convicted for criminal violations of sections 112(f)(4),[1] 112(h),[2] and 113 (c)(1)[3] of the Clean Air Act (CAA).[4] Pearson appealed, contending that the district court gave improper jury instructions concerning the charged offense elements, the district court improperly sustained objections to Pearson’s testimony during direct examination, and the United States Sentencing Guidelines[5] were misapplied. The Ninth Circuit affirmed the district court’s decision.

In 1995 the Navy contracted with Metcalf Grimm, who in turn subcontracted with Environmental Maintenance Service (EMS), to remove asbestos from the central heating plant at the Whidbey Island Naval Air Station. The removal occurred in three phases, the last of which was the subject of the litigation. Pearson was hired as a certified asbestos supervisor by EMS to oversee this third phase. The third phase involved removal of asbestos from boilers and other equipment. During this phase plastic sheeting was used around the clean-up area to contain the asbestos, machines were used to lower the air pressure in the containment area thereby preventing off site asbestos diffusion, and workers wore respiratory protection.

Under the CAA regulations, asbestos also must be wetted before removal.[6] However, according to witness testimony, dry asbestos was “all over the place,” some of the air machines were clogged, and bags of asbestos were outside the containment area.[7] As a result, Pearson was charged with two counts of knowingly causing asbestos removal in violation of the CAA. The maximum penalty under the statute for each count is five years imprisonment.[8]

Pearson argued that he was not involved with the asbestos removal and was only involved with the demolition phase of the project. The district court acquitted Pearson of Count 1, but convicted Pearson of Count 2 and instructed the jury to find that Pearson was acting as a supervisor. At the sentencing hearing, the district court set the base offense level at eight for Pearson’s conviction under section 7413 of the CAA.[9] The base level was enhanced by four for discharge of hazardous waste[10] and enhanced by nine for causing risk of serious bodily injury or death.[11] The district court further enhanced the base level by two for Pearson’s leadership role in the offense,[12] refusing to reduce the sentence in exchange for Pearson’s acknowledgment of responsibility.[13] At this point, the base level offense had been adjusted to a level twenty-three. Next, the district court applied downward factors, reducing the base level by two for the degree of harm,[14] by five levels based on the degree of risk,[15] and by four levels based on aberrant behavior. Ultimately, the base level offense was adjusted to twelve, resulting in a potential sentence of ten to sixteen months. Pearson was sentenced to the minimum of ten months and a subsequent three-year supervised release.

On appeal, Pearson argued that the district court applied the wrong definition of “supervisor” and that “he did not have enough authority to be liable as a ‘supervisor’ under the CAA.”[16] Both the district court and the Ninth Circuit applied the “substantial control” standard, which requires a defendant to have the “ability to direct the manner in which work is performed and the authority to correct problems.”[17] Thus, because a “supervisor” is not necessarily the individual with the highest authority, the Ninth Circuit held that the district court did not abuse its discretion in instructing the jury to apply the “substantial control” standard in determining Pearson’s liability as a supervisor.

Pearson also argued that a jury could find that while acting as a supervisor he also acted under orders from his employer. Pearson contended that because he was an employee carrying out orders, he could not be held liable as an operator under the CAA’s criminal provisions unless he was in knowing and willful violation of the Act.[18] Although the Ninth Circuit agreed that a jury could reasonably find that an individual who qualifies as a supervisor under section 7412 also could qualify as an employee under section 7413(h), Pearson failed to raise and meet his burden of establishing that he was an employee because he contended no involvement in the asbestos clean-up. Thus, the district court did not err in excluding instructions to the jury on the issue of whether Pearson acted as an employee.

Pearson also claimed that the district court erred by not properly defining “owner or operator” for the jury.[19] In the jury instructions, the district court emphasized the supervisory aspect of the owner/operator definition. The Ninth Circuit held that the jury instructions were sufficient, particularly in light of the “supervisory aspect of the charged offense.”[20]

Pearson’s second claim alleged that the district court prevented him from answering the charges against him when the court sustained several objections raised by his counsel during Pearson’s direct examination. The Ninth Circuit examined the questions at issue and the defense Pearson raised. Finding that the questions and the defense were unrelated, the Ninth Circuit determined that the district court had not prevented Pearson from receiving a fair trial.[21]

Finally, Pearson argued that the district court improperly enhanced his sentence because the facts did not support a determination that hazardous substances had been discharged. Pearson also alleged that the district court abused its discretion in denying him an evidentiary hearing. In its de novo review, the Ninth Circuit determined first that the district court had not abused its discretion under Rule 32 (c)(1) of the Federal Rules of Criminal Procedure when it denied Pearson’s request. As the Ninth Circuit noted, the district court allowed Pearson’s counsel to present objections in a pre-sentence report, and the district court made findings with respect to each objection. The Ninth Circuit then determined that the district court’s inference that hazardous waste had been released into the outside air was not clearly erroneous because witnesses had testified that bags had asbestos dust on their exterior and drains had been clogged with asbestos fibers. Accordingly, the Ninth Circuit held that district court’s enhancement under U.S.S.G. section 2Q1.2(b)(1)(B) was proper. Similarly, because Pearson’s non-compliance with work practice standards resulted in improper storage and removal of asbestos as well as potential worker exposure to asbestos-related health risks,[22] the Ninth Circuit held that the district court’s enhancement under U.S.S.G. section 2Q1.2(b)(2) was proper.

[1] 42 U.S.C. § 7412(f)(4) (2000).

[2] Id. § 7412(h).

[3] Id. § 7413(c)(1).

[4] 42 U.S.C. §§ 7401-7671q (2000).

[5] U.S. Sentencing Guidelines Manual §§ 2Q1.2(b)(1)(B), 2Q1.2(b)(2) (1998).

[6] 40 C.F.R. § 61.141 (2001).

[7] United States v. Pearson, 274 F.3d 1225, 1229 (9th Cir. 2001).

[8] 42 U.S.C. § 7413(c)(1) (2000).

[9] U.S. Sentencing Guidelines Manual § 2Q1.2 (1998).

[10] Id. § 2Q1.2(b)(1)(B).

[11] Id. § 2Q1.2(b)(2).

[12] Id. § 3B1.1.

[13] Id. § 3E1.1.

[14] Id. § 2Q1.2, cmt. n.5.

[15] Id. § 2Q1.2, cmt. n.6.

[16] Pearson, 274 F.3d 1225, 1230 (9th Cir. 2001).

[17] Id. at 1231 (citing United States v. Walsh, 8 F.3d 659, 662-63 (9th Cir. 1993), and United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir. 2001)).

[18] Clean Air Act, 42 U.S.C. § 7413(h) (2000).

[19] Id. § 7412(a)(9) (2000) (“‘owner or operator’ means any person who owns, leases, operates, or controls or supervises”); 40 C.F.R. § 61.141 (2001) (an “owner or operator” is one who “owns, leases, operates, controls, or supervises the demolition or renovation operation, or both,”); 40 C.F.R. § 61.145(a) (2001) (statutory requirements apply to “each owner or operator of a demolition or renovation activity, including the removal of [regulated asbestos-containing materials]“).

[20] Pearson, 274 F.3d at 1233.

[21] According to the Ninth Circuit, the questions asked on direct examination involved Pearson’s knowledge of falling asbestos, while Pearson’s defense focused on his role during the asbestos removal.

[22] SeeOccupational Safety and Health Administration, Fact Sheet No. 03-06 Better Protection Against Asbestos in the Workplace (1993), available at http://www.osha-slc.gov/OshDoc/Fact_data/FSNO93-06.html (stating that OSHA regulations require employers to reduce employee exposure to asbestos to the lowest level attainable).

Defendants Joel A. Wyatt and Rebecca Kay Smith appealed their convictions for “(1) using, or aiding and abetting the use of, a hazardous or injurious device on federal land with the intent to obstruct a timber harvest; and (2) maintaining an unauthorized structure on National Forest land.”[1] The Ninth Circuit considered whether 18 U.S.C. § 1864(a), which in part prohibits the use of a “hazardous or injurious device on Federal land” when there is “intent to obstruct or harass the harvesting of timber,” was unconstitutionally vague as applied.[2] The Ninth Circuit held that the statute was not unconstitutionally vague as applied to the visible and unmodified ropes that the defendants strung in the trees above a proposed helicopter landing site and affirmed the district court’s ruling.

Wyatt and Smith, members of Wild Rockies Earth First occupied two elevated platforms in trees in the Bitterroot National Forest in Montana as part of a tree-sit. They strung one blue climbing rope between their platforms and four yellow polypropylene ropes which were not suitable for climbing from the trees. All of the ropes were within reach of the platforms and readjusted during the time they occupied the platforms. The platforms were designated as proposed logging helicopter and emergency medical helicopter sites. However, at the time the defendants were protesting, the platforms could not be used as landing sites until five trees were removed. The defendants strung ropes from the trees and stated that they knew the site was chosen to prevent helicopters from landing and that the purpose of the lines was to prevent helicopters from landing. The defendants first climbed onto the platforms on July 8, 2002. Wyatt left on July 29, 2002, and Smith was removed by the United States Forest Service on August 6, 2002. The district court jury found the defendants guilty of “(1) using, or aiding
and abetting the use of, a hazardous or injurious device on federal land with the intent to obstruct a timber harvest; and (2) maintaining an unauthorized structure on National Forest land.”[3]

To determine whether the statute was unconstitutionally vague the Ninth Circuit reviewed the district court’s holding using a de novo standard of review[4]. The defendants argued that 18 U.S.C. § 1864(a) was unconstitutionally vague as applied because the statute did not give adequate notice that it was a crime to hang unmodified and visible ropes between trees because these ropes do not fall within the definition given in the statute of a “hazardous or injurious device.”[5] A hazardous or injurious device is

a device, which when assembled or placed, is capable of causing bodily injury, or damage to property, by the action of any person making contact with such device subsequent to the assembly or placement. Such term includes guns attached to trip wires or other triggering mechanisms, ammunition attached to trip wires or other triggering mechanisms, sharpened stakes, lines or wires, lines or wires with hooks attached, nails placed so that the sharpened ends are position in an upright manner, or tree spiking devices including spikes, nails, or other objects hammered, driven, fastened, or otherwise placed into or on any timber, whether or not severed from the stump.[6]

The Ninth Circuit explained that a statute is vague and thus void and unconstitutional if the statue “(1) does not define the conduct it prohibits with sufficient definiteness and (2) does not establish minimal guidelines to govern law enforcement.”[7] The court also commented that when a statute is ambiguous the “rule of lenity must be applied.”[8]

First, the court determined that the statute provided fair warning to the defendants because unmodified and visible ropes strung above a helicopter landing site meets the definition of a “‘hazardous or injurious device’” because when “‘assembled or placed’” such that they are strung above the helicopter landing site, the ropes are “‘capable of causing bodily injury, or damage to property, by the action of any person making contact with such device subsequent to the assembly or placement’” if the helicopter landed on the ropes or became entangled in them and crashed.[9] Next the court determined that the ropes fell within the “lines or wires” example given in the statute[10] because the definition of a “hazardous or injurious device” includes “sharpened stakes, lines or wires, line or wires with hooks attached”[11] and “lines” are defined in the dictionary as “[a] rope, cord, [or] string.”[12]

Finally, the court turned to congressional intent and explained that the other examples in the “hazardous and injurious device”[13] definition show that Congress’ intent was to prevent interference with logging activities by devices that might cause “bodily injury” or “damage to property” and as an example that the definition of “hazardous or injurious device”[14] includes, inter alia “tree spiking devices.” The court also pointed to Senator McClure’s statement that the statute was meant to stop ecoterrorists from using “‘dangerous and deadly’”[15] methods such as punji sticks (steel bars with sharpened nails that could injure hikers) and tree spikes (spikes driven into trees that shatter saw blades so that they are dangerous).[16]

A scienter requirement, the court explained, can help prevent a vagueness problem in a law[17] so that the offense is not defined in a way that could “encourage arbitrary and discriminatory enforcement.”[18] The statute requires a defendant to use the device “with the intent to obstruct or harass the harvesting of timber”[19] which the court determined limits the discretion of law enforcement and lessens any perceived vagueness.

The Ninth Circuit rejected the defendants’ argument that the statute[20] does not provide adequate notice because “‘unmodified and highly visible ropes’”[21] are not included in the definition of a “‘hazardous and injurious device.’”[22] The list, the court explained, was non-exhaustive because when a definition starts with a general definition and then provides examples “‘include[d]‘”[23] in the definition, the use of the word “included” suggests that the list is not exclusive[24].

The court also dismissed the defendants’ argument that in the “hazardous or injurious device” definition,[25] ”sharpened” modifies “stakes” and “lines or wires” and thus because the defendants’ ropes were not sharpened they are not included in the definition. The court compares the statute at issue with 21 U.S.C. § 841(d)(3) to show the error in the defendant’s argument. That statute defines “boobytrap” as “‘any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wires with hooks attached.’”[26] The unmodified term “lines or wires” is absent from the statute which the court suggests means that Congress did not intend to modify “lines and wires” with “sharpened” in the statute at issue. Thus the court held that 18 U.S.C. § 1864(a) provided fair warning to a person of common intelligence that it was a crime to hang ropes over a helicopter
landing site with the intent to prevent the harvesting of timber and therefore the statute was not unconstitutionally void for vagueness as applied here.

The rule of lenity is inapplicable, the court explained, because a statute is only ambiguous and interpreted in favor of the defendant when there is no way to determine what Congress intended.[27] Furthermore, the court reasoned it was not ambiguous because it is clear how the yellow ropes could be hazardous or injurious if a helicopter came into contact with the ropes. In conclusion, the Ninth Circuit held that 18 U.S.C. 1864(a) is not unconstitutionally vague and affirmed the district court’s ruling and the defendant’s conviction.

[1] United States v. Wyatt, 408 F.3d 1257, 1258 (9th Cir. 2005).

[2]  Id. at 1260.

   [3] Id. at 1258.

[4] United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004).

[5] Hazardous or Injurious Devices on Federal Lands, 18 U.S.C. § 1864(d)(3) (2000).

   [6] Id.

   [7] Rodriguez, 360 F.3d at 953. See United States v. Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997). (A criminal statute “cannot be so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.’” (quoting United States v. Lanier, 520 U.S. 259, 266 (1997)).

   [8] Id. (citation omitted).

[9] United States v. Wyatt, 408 F.3d 1257, 1260-61 (9th Cir. 2005).

[10] 18 U.S.C. § 1864(d)(3) (2000).

[11] Id.

[12] Oxford English Dictionary (2d ed. 1989).

[13] 18 U.S.C. § 1864(d)(3) (2000).

[14] Id.

[15] United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005).

[16] Id.

[17] Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526 (1994).

[18] Kolender v. Lawson, 461 U.S. 352, 357 (1983).

[19] 18 U.S.C. § 1864(a)(2) (2000).

[20] Id. § 1864(d)(3) (2000).

[21] United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005).

[22] 18 U.S.C. § 1864(d)(3) (2000).

[23] Wyatt, 408 F.3d at 1261.

[24] See Hockings, 129 F.3 at 1071. See also Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“‘[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.’”).

[25] 18 U.S.C. § 1864(d)(3) (2000).

[26] Wyatt, 408 F.3d at 1262 (quoting 21 U.S.C. § 841(d)(3)).

[27] United States v. Phillips, 367 F.3d 846, 857 n.39 (9th Cir. 2004).