Opinion
NA 99-008-CR-B/N
July 28, 2000
ENTRY DENYING DEFENDANTS' MOTION TO DISMISS
After being indicted by a federal grand jury for violating the Clean Water Act ("CWA," 33 U.S.C. § 1251 et. seq.), Marvin and Wayne Friedman and Metalite Corporation ("defendants") moved to dismiss the indictment on multiple grounds. On July 12, 2000, we conducted a hearing to address this and other issues raised by defendants.
Defendants' motions to suppress evidence are discussed in a separate Entry.
Background
Following are the relevant facts as the parties have outlined them to us during the pretrial phase of this litigation: In the mid-1990's, defendant Metalite Corporation, a Kentucky corporation, was doing business in New Albany, Indiana, using an aluminum anodizing process to make aluminum reflector lighting fixtures. Metalite's anodizing process generated wastewater allegedly containing pollutants such as lead and other metals, as well as phosphoric, nitric and sulphuric acids. The individual defendants are Marvin and Wayne Friedman. Marvin Friedman was an owner and president of Metalite with responsibility for overseeing the company's daily operations, including the treatment and disposal of the industrial process wastewater generated by the company's operations. Wayne Friedman was a vice-president of Metalite responsible for overseeing the company's anodizing room and the treatment and disposal of the wastewater generated by the anodizing process.Metalite's wastewater allegedly was discharged through an underground storm water drain pipe to a point behind the Metalite building, "into a surface channel, then into a tributary of the Ohio river, and then into the Ohio River." Indictment at 9.
The indictment charges defendants with "knowingly discharg[ing] and caus[ing] the discharge of a pollutant, chemical wastes and industrial process wastewater, from a point source, the storm water drain pipe and surface channel, into waters of the United States without a NPDES permit" on August 5, 11, 12, 19, 23, and 26 and September 16 and 30, 1994, all in violation of 33 U.S.C. § 1311(a) and 1319(c)(2)(A) and 18 U.S.C. § 2. See Indictment Counts One through Eight. The same allegation is made regarding a flexhose (instead of the drain pipe) with the discharge occurring on June 17, 1996. See Count Nine.
NPDES = National Pollutant Discharge Elimination System.
Counts Ten and Eleven charge the Defendants with "knowingly operat[ing] and caus[ing] to be operated a source, the METALITE facility, in violation of a pretreatment standard after the effective date of that standard by discharging and causing to be discharged chemical wastes and industrial process wastewater with a pH of less than 5.0 standard units into the municipal sewer system of the City of New Albany, Indiana" on or about April 19 and 22, 1996, in violation of 33 U.S.C. § 1317(d) and 1319(c)(2)(A) and 18 U.S.C. § 2. Metalite's City Water Discharge Permit "specifically prohibited the discharge" of wastewater with a pH lower than 5.0 into the New Albany sewer system. (The indictment in this section is confusing in that it includes the additional information that Metalite's permit needed to be renewed at least 60 days prior to its expiration on March 5, 1996, but does not indicate whether or not it was renewed or replaced by a new permit.)
Defendants' motion to dismiss the indictment rests upon five purported grounds, which actually raises three issues: the scienter requirement of the CWA, the CWA's alleged vagueness, and the government's alleged undue delay in returning the indictment.
Discussion
A. Scienter Requirement of the CWA
First, defendants argue that the indictment is insufficient because it fails to charge that they acted with specific intent in violating the CWA under § 1319(c)(2)(A).
Defendants' argument that the government's interpretation and application of the CWA create a strict liability crime is probably a misnomer because a true strict liability crime would not require any element of intent, whereas defendants are charged with "knowingly" discharging pollutants. Rather, defendants argue that the CWA section under which they are charged requires proof of specific intent.
Section 1319(c)(2)(A) of the CWA makes it a felony offense to "knowingly violate section 1311, . . . 1317, [etc.] of this title, . . . or any permit condition or limitation implementing any of such sections in a permit issued under [various sections of the CWA]."
Section 1311(a) provides that "[e]xcept as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." It effectively prohibits discharging any pollutant from a point source into the navigable waters of the United States without a permit.
Section 1317(d) provides, "After the effective date of any effluent standard or prohibition or pretreatment standard under this section, it shall be unlawful for any owner or operator of any source to operate any source in violation of any such effluent standard or prohibition or pretreatment standard." The CWA regulates waters to be discharged into municipal sewer systems and requires publicly owned treatment works (POTWs) to establish pretreatment programs subject to the Environmental Protection Agency (EPA) Administrator's approval. This section makes it unlawful for a pollution source to violate such pretreatment standards.
Defendants argue that the word "knowingly" in § 1319(c)(2)(A) modifies "violates" (as in "knowingly violates [certain sections of the CWA or permit conditions]") so that the government should be required to prove specific intent — i.e., that defendants knew that their acts violated the law. In contrast, the government contends that the statute should be read as the Supreme Court construed 19 U.S.C. § 834(f) (prohibiting a "knowing" violation of ICC regulations) in United States v. International Minerals Chemical Corporation. 402 U.S. 558 (1971). In International Minerals, the Court held that a defendant would not be excused from criminal liability under a public welfare statute even if he had no idea of the existence of the law he broke, for "'ignorance of the law is no excuse,' and knowledge of the regulation was not required under § 834(f)." United States v. Wagner, 29 F.3d 264, 266 (7th Cir. 1994) (quoting International Minerals and similarly interpreting § 6928(d)(2)(A) of the Resource Conservation and Recovery Act).
In interpreting the CWA, "as in all cases of statutory interpretation, the starting point of our analysis is the plain language of the statute itself." Wagner, 29 F.3d at 266 (citing United States v. Rosado, 866 F.2d 967, 969 (7th Cir. 1989)).
Although the words "knowingly violate" seem clear in the context of § 1319(c)(2)(A) itself, their meaning is less clear when the statute is read as a whole. The CWA consists of prohibitions, followed by penalty sections that specify different penalties according to the level of intent associated with the violation. For example, § 1319(c)(1) associates criminal misdemeanor penalties with "negligent" violations of the same provisions listed under § 1319(c)(2)(A) and another section outlines civil penalties for those who simply "violate" the same provisions. Administrative penalties may also be assessed if the EPA Administrator "finds that any person has violated" certain sections of the CWA. 33 U.S.C. § 1319(g)(1)(A). When the CWA enforcement provisions are read as a whole, it seems likely that Congress intended "knowingly violates [certain sections]" to be "construed as a shorthand designation for specific acts or omissions which violate the Act."International Minerals, 402 U.S. at 562.
This method of statutory construction was utilized by the Supreme Court in International Minerals and has been applied by other courts to other statutes, including the CWA, that make it a crime to "knowingly violate" their provisions. See, e.g., United States v. Wilson, 159 F.3d 280, 289 (7th Cir. 1998) (holding in context of 18 U.S.C. § 922(g)(8) and 924(a)(2) that "knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law"); United States v. Obiechie, 38 F.3d 309, 314 (7th Cir. 1994) (citing United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) and discussing gun cases); see also United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), United States v. Hopkins, 53 F.3d 533 (2nd Cir. 1995), and United States v. Kelley Technical Coatings, Inc., 157 F.3d 432 (6th Cir. 1998) (all relying at least in part upon public welfare doctrine to find CWA defendant need not know of CWA permit requirements or legal duties). The result in these cases, that the words "knowingly violates" do not create a specific intent crime, appears to depend upon one or both of two factors: 1) the principle that ignorance of the law is no excuse; and 2) the public welfare doctrine.
Under Seventh Circuit precedent, establishing a "knowing" violation of a statute "only requires proof of knowledge by the defendant of the facts that constitute the offense," unless the text of the statute dictates a different result. Wilson, 159 F.3d at 289. The text of the CWA offers no evidence that Congress intended to create a specific intent standard for the crime of "knowingly violating" the CWA's provisions or an exception to the rule that 'ignorance of the law is no defense.' This conclusion is buttressed by an examination of the CWA's legislative history. In 1987, Congress amended the criminal penalty provision of the CWA. Before 1987, the statute provided for criminal penalties for those who "willfully and negligently" violated the CWA. Expressing its intent to heighten enforcement efforts and create stiffer penalties for violations of CWA provisions, Congress in 1987 created two separate criminal sections: felony penalties for "knowing" violations and misdemeanor penalties for "negligent" violations. Weitzenhoff, 35 F.3d at 1283; United States v. Sinskey, 119 F.3d 712, 716 (8th Cir. 1997) (analyzing legislative history of CWA); see also United States v. Wilson, 133 F.3d 251, 262 (4th Cir. 1997) and Hopkins, 53 F.3d at 539-40 (same). The Weitzenhoff court quoted parts of the House and Senate reports accompanying the legislation that "speak in terms of 'causing' a violation" of the CWA and concluded that "the congressional explanations of the new penalty provisions strongly suggest that criminal sanctions are to be imposed on an individual who knowingly engages in conduct that results in a permit violation, regardless of whether the polluter is cognizant of the requirements or even the existence of the permit." 35 F.3d at 1284.
We note that the Seventh Circuit cases on point relate to gun crimes, which the Supreme Court expressly held are not public welfare offenses. See Staples v. United States, 511 U.S. 600, 606-618 (1994).
We will refer to this case as Wilson (Fourth Circuit) throughout this Entry to avoid confusion with the Seventh Circuit opinion of the same name cited above.
The Senate report (referring to section 1319) "explains that the changes in the penalty provisions were to ensure that '[c]riminal liability shall . . . attach to any person who is not in compliance with all applicable Federal, State and local requirements and permits and causes a POTW [publicly owned treatment works] to violate any effluent limitation or condition in any permit issued to the treatment works." 35 F.3d at 1284, citing S.Rep. No. 50, 99th Cong., 1st Sess. 29 (1985). The House report also explained that the proposed amendments to enhance penalties "were to 'provide penalties for dischargers or individuals who knowingly or negligently violate or cause the violation of certain of the Act's requirements.'" Id., citing H.R. Rep. No. 189, 99th Cong., 1st Sess. 29-30 (1985) (emphasis added).
The generally accepted understanding of "willful" versus "knowing" in the criminal law context is that "willfulness" requires an act in conscious disregard of a known duty, whereas "knowingly" designates a lack of mistake or accident and an awareness of actions that make up a violation of the law, without knowing that one's acts were prohibited by law. For example, in United States v. Obiechie, 38 F.3d 309, 314 (7th Cir. 1994), the Seventh Circuit, in construing § 924(a)(1) of the Gun Control Act, held that "willfully" means intentional violation of a known legal duty, whereas the "generally accepted construction of 'knowingly' in criminal statutes . . . requires only knowledge of the pertinent facts and not knowledge of the applicable law." The change by the amendment of the CWA's criminal intent language from "willful" to "knowing" suggests Congress did not intend a "knowing violation" to require specific intent of illegality. See Wilson (Fourth Circuit), Sinskey, and Hopkins,supra.
The second rationale upon which courts have excused a knowledge requirement as it applies to awareness of duties imposed by the law, regulations, or a permit is the so-called "public welfare doctrine." Courts use this concept in a variety of ways to justify a lack of knowledge requirement when the inherently dangerous or harmful nature of the defendant's activity should put him on notice that laws and regulations will apply to the conduct. The extent of the doctrine is unclear, especially given the Supreme Court's discussion of it in Staples v. United States. 511 U.S. 600 (1994) (holding that defendant charged with possession of machine gun must know the weapon possessed had the characteristics that brought it within the statutory definition of a machine gun; rejecting government's argument that, because public welfare doctrine applied, it need only prove general knowledge that gun was of dangerous nature).
The Ninth, Second, and Sixth circuits (in Weitzenhoff, Hopkins, andKelley, respectively, supra) have held that the CWA is a public welfare statute. In the first opinion to consider the matter, the Ninth Circuit in Weitzenhoff rejected defendant's argument that Staples, supra applied to the case and that the government must prove the defendant knew every element of the offense (including that defendant knew he was violating the conditions of his permit). The Weitzenhoff court distinguished statutes regulating gun ownership, at issue in Staples, from "other regulatory regimes" governing "dangerous or deleterious devices or products or obnoxious waste materials," and "potentially harmful or injurious items" that "place a defendant on notice that he is dealing with a device or substance 'that places him in responsible relation to a public danger.'" 35 F.3d at 1285-86, quoting Staples. Holding that the CWA is a public welfare statute, the court cited other cases construing language in public welfare statutes prohibiting knowing violations of, e.g., regulations, as a "shorthand designation for specific acts" that violate the statute. Id. at 1285 fn. 6, quoting International Minerals at 567. Finally, it quoted Staples for the proposition that in a public welfare statute, "Congress intended to place the burden on the defendant to ascertain at his peril whether [his conduct] comes within the inhibition of the statute." Id. Interestingly, Weitzenhoff did not rely upon the general proposition that neither ignorance of the law nor a mistake about the law's meaning can provide a defense to criminal charges.
The Weitzenhoff defendants' arguments regarding Staples seem misplaced; even in the case of gun crimes, a defendant's knowledge of a permit requirement or other legal prohibition is irrelevant. Perhaps the distinction lies in the different ways one can violate the CWA: 1) violate a legal requirement that one obtain a permit in order to discharge, or 2) violate the conditions set forth in the legally required permit. International Minerals provides some support for considering permit requirements as the equivalent of personalized laws in its holding that the "principle that ignorance of the law is of [sic] defense applies whether the law be a statute or a duly promulgated and published regulation." 402 U.S. at 563.
Five circuit judges dissented from the Weitzenhoff majority's order rejecting the suggestion for rehearing en banc. The dissent argued that the fact that permit conditions were violated, not the fact that pollutants were discharged, made the defendants' otherwise innocent conduct illegal; therefore, the knowledge requirement should apply to permit violations.
Applying Staples' requirement that defendants must know the facts underlying each element of the offense, an alternative to the dissent's position might be that the discharge of a certain level of pollutants (above the level allowed by the permit) is what makes the conduct illegal. As long as defendants know (are not mistaken about) the level or amount of sludge they are discharging, (e.g., ten barrels rather than one barrel, see Sinskey, supra) the government should not have to prove defendants' knowledge that this level or amount of discharge is in violation of the permit condition.
The dissent felt that a "mistake of law" defense should be available in felony CWA cases. The concern about criminal prosecution of polluters who, due to some mistake of a factual nature, do not think they are violating their permit (e.g., a meter malfunctioned), seems valid, but not when applied to polluters who simply misunderstood the permit requirements. For example, the defendants in Weitzenhoff argued that they believed their bypass of the water treatment monitoring system was permitted because the permit authorized bypass to perform essential maintenance. The EPA and the courts, however, disagreed with the defendants' interpretation of this permit condition. Under the dissent's reasoning, the defendants' mistake about the meaning of the permit (or the requirements of the regulations or statute, by extension) would constitute a good defense to alleged CWA violations. Whether or not one believes that such a mistake (or ignorance) is excusable depends upon one's view regarding the extent of a person's responsibility to know the applicable law. For example, Chief Judge Posner's dissent in United States v. Wilson discussed the tension between the idea that "[i]t is wrong to convict a person of a crime if he had no reason to believe the act for which he was convicted was a crime, or even that it was wrongful" and the idea that "ignorance of the law is no defense." 159 F.3d at 293-296 (arguing that criminal penalty for "knowingly violating" law prohibiting gun possession by persons subject to protective orders is "highly technical" malum prohibitum and that conviction should require proof of specific intent).
Although the CWA resembles a public welfare statute in some respects, especially in its regulation of potentially hazardous substances and toxic wastes, it also prohibits the discharge into waters of seemingly innocuous substances that ordinary people may not know are considered "pollutants," such as sand or rocks. See 33 U.S.C. § 1362(6) (defining "pollutant"). Some courts have expressed concern about the application of the public welfare doctrine to eliminate the requirement that a defendant knowingly perform all of the acts that make up an offense.
The Fifth Circuit overturned a CWA conviction because the jury instructions did not adequately link the scienter requirement of "knowingly" to "'each of the statutory elements which criminalize otherwise innocent conduct.'" Ahmad, 101 F.3d at 390 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)). The Ahmad court rejected the government's argument that the prosecution need not meet this requirement because the CWA is a public welfare statute; the court held that the CWA is not a public welfare statute. The Supreme Court recently denied certiorari in a criminal case stemming from negligent violations of the CWA. Hanousek v. United States, 120 S.Ct. 860 (2000). Justices Thomas and O'Connor, dissenting from the denial of certiorari, expressed concern that Circuit courts have construed the public welfare doctrine too broadly in the context of the CWA, which imposes serious penalties upon "persons using standard equipment to engage in a broad range of ordinary industrial and commercial activities." See Hanousek, 120 S.Ct. at 861-62.
Regardless of the rationale, none of the five Circuit Court opinions to address the issue of the CWA's mens rea requirement has held that a defendant must know he is violating the law or a permit to be convicted of a knowing violation of the CWA under § 1319(c)(2)(A). Most share the view that requiring the government to prove that a defendant knew he was violating the law or the conditions of a permit would allow defendants to assert a 'mistake of law' defense. However, there may exist some disagreement about what a defendant must know in order to be convicted of a felony. As the Seventh Circuit stated in Wagner, "the question is simply 'how far the initial 'knowingly' travels.'" 29 F.3d at 266 (quoting United States v. Dean, 969 F.2d 187, 190 (6th Cir. 1992)). If the mens rea requirement is not linked to each element, defendants may be impeded in their ability to assert a "mistake of fact" defense.
In Ahmad, the Fifth Circuit overturned a conviction based upon a flawed jury instruction because the jury could have convicted the defendant even if it found the defendant believed he was discharging water instead of gasoline, which is considered a pollutant under the CWA. The case inWilson (Fourth Circuit) involved a similar instruction that enumerated four elements:
The Instruction read as follows, with the numbered elements listed on separate lines: For you to find Mr. Ahmad guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: (1) that on or about the date set forth in the indictment, (2) the defendant knowingly discharged (3) a pollutant (4) from a point source (5) into the navigable waters of the United States (6) without a permit to do so. 101 F.3d at 389.
First, that is the defendant knowingly . . . discharged or caused to be discharged a pollutant.
Second, that the pollutant was [dis]charged from a point source.
Third, that the pollutant entered a water of the United States; and fourth, that the discharge was unpermitted.
* * * *
[T]he government must prove that the defendants knew, one, that the areas which are the subject of these discharges had the general characteristics of wetland; and two, the general nature of their acts. The government does not have to prove that the defendants knew the actual legal status of wetlands or the actual legal status of the materials discharged into the wetlands. The government does not have to prove that the defendants knew that they were violating the law when they committed their acts. 133 F.3d at 260.
The Fourth Circuit, reversing, held that the government would need to prove the following elements:
(1) that the defendant knew that he was discharging a substance, eliminating a prosecution for accidental discharges; (2) that the defendant correctly identified the substance he was discharging, not mistaking it for a different, unprohibited substance; (3) that the defendant knew the method or instrumentality used to discharge the pollutants; (4) that the defendant knew the physical characteristics of the property into which the pollutant was discharged that identify it as a wetland, such as the presence of water and water-loving vegetation; (5) that the defendant was aware of the facts establishing the required link between the wetland and waters of the United States; and (6) that the defendant knew he did not have a permit. 133 F.3d at 264.
The Wilson (Fourth Circuit) court noted that the last requirement does not mean the government must show that the defendant knew that permits were available or required. "Rather, it, like the other requirements, preserves the availability of a mistake of fact offense [sic] if the defendant has something he mistakenly believed to be a permit to make the discharges for which he is being prosecuted." Id. In contrast, the Ninth Circuit's language in Weitzenhoff suggests that it does not matter "whether the polluter is cognizant of the requirement or even the existence of the permit." 35 F.3d at 1284.
As for elements four and five listed above, the Wilson court explained that these were not jurisdictional because state statutes did not appear to cover the property in question. Id.; cf. Ahmad, 101 F.3d at 391 (holding that, "[w]ith the exception of purely jurisdictional elements, the mens rea of knowledge applies to each element of the crimes").
In an unpublished opinion subsequent to Wilson, the Fourth Circuit expressed its opinion that it was plain error for a district court to have given an instruction nearly identical to the indictment in the instant case:
In order to prove the defendant guilty of count six of the indictment, the government must prove beyond a reasonable doubt each of the following elements:
One, that on or about the date set forth in the indictment, the defendants knowingly discharged or caused to be discharged a pollutant from a point source into waters of the United States and without a permit. United States v. Ellis, 172 F.3d 864, 1999 WL 92568, *9-*10 (4th Cir. 1999).
The district court had provided clarifying definitions of "discharge of a pollutant," "pollutant," "point source," and "person," in addition to three instructions regarding knowledge:
The term knowingly means that an act was done voluntarily and intentionally and not because of mistake, accident, negligence, or some other innocent reason.
. . . .
For the purpose of the Clean Water Act, counts five and six, the government must prove that the defendants knew the general nature of the materials that were being discharged and the nature of their acts. The government does not have to show that the defendants knew the legal status of the materials being discharged or that they were violating the law.
[G]uilty knowledge may not be established by demonstrating that the defendant was merely negligent, foolish or mistaken. United States v. Ellis, 172 F.3d 864, 1999 WL 92568, *9-*10 (4th Cir. 1999).
The Fourth Circuit found the district court erred in failing to give "more specific instructions indicating that knowledge was the appropriate mens rea requirement for all elements of the crime." Id. at *10.
At the July 12th hearing in the case at bar, defendants informed the court that they do not intend to rely on any "mistake of fact" defense. We invited both parties to submit proposed jury instructions setting forth their understanding of the CWA's scienter requirement. The government tendered a proposed instruction and argued that "knowingly" applies to the discharge of a pollutant, while the other elements are jurisdictional and need not have been done "knowingly." Defendants' submission restated the argument made in their motion to dismiss that the government should have to prove defendants' knowledge of violation of the law, in essence restating their contention that conviction would require proof of specific intent.
Defendants' position that the indictment is insufficient because it charges a "strict liability" crime is erroneous because the indictment contains the scienter requirement, "knowingly," as set forth in the statute. Drawing on the prevailing law in other circuits as described above, we are persuaded that § 1319(c)(2)(A) does not create a specific intent crime and we therefore reject defendants' contentions.
However, our decision on that point does not resolve the issue of "how far the 'knowingly' should travel" and whether the indictment's failure to specify the elements of the offense to which "knowingly" should apply renders the indictment deficient. In light of the fact that neither the Supreme Court nor the Seventh Circuit has addressed this issue and given the rationale of other Circuits' decisions coupled with our reluctance to lighten the government's burden with respect to some of the elements based solely on the potential applicability of the public welfare doctrine, we conclude (as we stated at the hearing) that wherever a mistake of fact defense attaches, the knowing requirement should apply. Although defendants maintain that they do not intend to assert any mistake of fact defenses, depending upon the evidence and theories put forth at trial, it may be necessary when instructing the jury to specify which elements of the offense the mens rea of "knowingly" applies to. Nonetheless, we find that the indictment is sufficient because it contains the requisite mens rea, even though it does not refer explicitly to each element as to what defendants knew or what they must have known to be found guilty.
It is not necessary to determine at this point whether the CWA should be considered a public welfare statute.
We may, in addition, need to establish which elements are purely jurisdictional.
Appellate courts review the legal sufficiency of indictments de novo.See U.S. v. Webster, 125 F.3d 1024, 1029 (7th Cir. 1997). Federal Rule of Criminal Procedure 7(c)(1) requires that the indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The Seventh Circuit has noted that "[f]acial sufficiency is not a high hurdle." United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996). The indictment must state the facts and elements of the alleged offense necessary to inform the accused of the charge so that he may prepare a defense and invoke Double Jeopardy when appropriate. Id. Courts normally will find an indictment sufficient unless it fails to state a material element of the offense.Id., see also United States v. Locklear, 97 F.3d 196, 198-99 (7th Cir. 1996).
If an indictment "sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished," it will generally be held sufficient. Bates, 96 F.3d at 970 (quoting United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981)). In cases where the scienter requirement is implied in a statute, the indictment need not allege it; "it is sufficient that the prosecution prove it and the jury be charged that finding it is essential to conviction." Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972). An indictment will not be considered to have been impermissibly amended unless "the crime charged in the indictment . . . is 'materially different or substantially altered at trial, so that it is impossible to know whether the grand jury would have indicted for the crime actually proved.'" United States v. Gunning, 984 F.2d 1476, 1482 (7th Cir. 1993) (quoting United States v. Mosley, 786 f.2d 1330, 1335 (7th Cir. 1985)).
In the instant case, the indictment recites statutory language in which the application of the mens rea to all elements is implicit. The indictment should be construed in the same manner as the statutory language that it tracks and the government "should not be forced to guess" about the level of intent when crafting an indictment. See United States v. Barrera-Paniangua, 2000 WL 246241 (N.D.Ill. 2000) (holding in context of immigration law that "whatever intent exists is 'implicit' in the language of the statute and therefore the indictment"; citing United States v. Dixon, 596 F.2d 178 (7th Cir. 1979)). See, e.g., United States v. Mango, 1997 WL 222367 (N.D.N.Y. 1997) (upholding indictment challenged for vagueness that did not link "knowingly" to each element of crime);see also United States v. Eichhorst, 544 F.2d 1383, 1389 (7th Cir. 1976) (holding it reasonable to read "knowingly and intentionally" to apply to language that did not immediately follow those words in the indictment).
B. Alleged Unconstitutional Vagueness of CWA
Defendants argue that the CWA, in particular, in its use of the terms "point source" and "navigable waters of the U.S.," is impermissibly vague. As the Seventh Circuit noted in Karlin v. Foust, the "Constitution tolerates a lesser degree of vagueness in enactments 'with criminal rather than civil penalties because the consequences of imprecision' are more severe." 188 F.3d 446, 458 (7th Cir. 1999) (quotingVillage of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982)). Statutes must provide "fair warning" about the conduct that will trigger liability: a penal statute is unconstitutionally vague if a person of ordinary intelligence cannot tell from reading the statute what conduct is proscribed so that he may avoid breaking the law. Karlin, 188 F.3d at 458-59. Statutes must also provide "an explicit and ascertainable standard" to prevent "arbitrary and discriminatory" application by those charged with enforcement. Id. at 459, (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1971)).
Section 1311(a) of the CWA provides that "[e]xcept as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful."
The statute defines the terms "discharge of a pollutant" and "discharge of pollutants" to mean "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12).
A "person" includes an individual or corporation. 33 U.S.C. § 1362(5). With respect to the statute's criminal penalties, "the term 'person' means, in addition to the definition contained in section 1362(5) of this title, any responsible corporate officer." 33 U.S.C. § 1319(c)(6).
A "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. § 1362 (6). The statute also lists exceptions to the definition.
"Navigable waters" are "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Seventh Circuit recognizes that Congress intended the CWA's coverage to be expansive. "It is well established that the geographical scope of the Act reaches as many waters as the Commerce Clause allows." Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs., 191 F.3d 845, 851 (7th Cir. 1999). The CWA gives the EPA and the Army Corps of Engineers responsibility for administering and enforcing its provisions. 33 U.S.C. § 1319(a)(3), 1344. They have promulgated regulations defining "waters of the United States" to mean "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce." 33 C.F.R. § 328.3(a)(2); 40 C.F.R. § 230.3(s)(3). See United States v. Krilich, 209 F.3d 968, 970 (7th Cir. 2000).
"The term 'point source' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362 (14).
The government argues persuasively in its brief that the CWA is clear and easy to understand: one may not discharge pollutants into the waters of the U.S. without a permit. The CWA gives "fair warning" to ordinary people of what conduct is prohibited and its detailed definitions help prevent arbitrary enforcement as well. Defendants' objection to the term "point source" (that it should not apply to water seeping from underneath the pipe) is not really about unconstitutional vagueness; it concerns a factual issue that can be disputed at trial when the government adduces evidence to prove that the discharges were made from or through a "point source."
In addition, defendants contend that the CWA is unconstitutional as applied to them because it is not obvious that "navigable waters" could include a ditch flowing through a disputed number of intermediary steps to the Ohio River. This argument can be understood as a criticism of the regulations quoted above defining "navigable waters"-both that the definition is vague or difficult to understand and that the definition exceeds Congress' authority under the Commerce Clause. As with the term "point source," we believe that the regulations defining "navigable waters" are sufficiently clear to give notice to persons of ordinary intelligence. Again, the issue seems to relate more to defendants' belief that the government cannot prove that the waters in this case fall within the definition of "navigable waters" — an issue that should be resolved at trial.
Defendants argue that because the Fourth Circuit in Wilson held that the regulations (including the so-called 'migratory bird rule') are an unreasonable interpretation of the CWA, the regulation should not be applied to them in this case. The Seventh Circuit distinguished Wilson from the situation in Solid Waste Agency because of the "crucial" finding that the waters were a habitat for migratory birds. See Solid Waste Agency of N. Cook County, 191 F.3d at 849, 852. Wilson held that although the Supreme Court upheld the regulations in the context of a wetland "that actually abuts on a navigable waterway," the regulation should not be applied on the basis that something "could affect" interstate commerce. The indictment in the instant case clearly alleges an actual connection to the Ohio River and that is sufficient to pass Constitutional muster under Seventh Circuit precedent. See Solid Waste Agency of N. Cook County, 191 F.3d at 850, 852 ("substantial effect" upon commerce required by Commerce Clause can be cumulative).
The defendants' objection to the term "navigable waters" may also relate to the scienter argument discussed above in section A. The argument that the term is vague in the sense of difficult to understand seems to arise in part from defendants' belief that it would be unfair to subject them to criminal penalties when they did not know their discharges were reaching interstate waters. Otherwise, any argument that the statute is unconstitutionally vague must fail because the pertinent terms are well defined in the statute and the regulations.
C. Alleged Unconstitutional Delay in Indictment.
Defendants allege that the government's investigation into their alleged environmental crimes began as early as 1992 and culminated in the execution of a warrant in September of 1994, yet the government delayed seeking an indictment until 1999, resulting in prejudice to their defense. (Counts One through Eight of the Indictment allege CWA violations in 1994; Nine through Eleven allege violations in 1996.) The alleged prejudice arises from the death in 1997 of a Metalite employee (and potential witness) and from defendants' claimed inability to prepare a defense using comparative samples of soil and water.
In its response to defendants' motion, the government countered that the investigation began in 1994, not 1992, and that the statute of limitations provides the best check on undue delay and the indictment complies with it. In addition, the government argued defendants had not shown actual, as opposed to speculative, prejudice and that if actual prejudice were found, defendants would still need to show the government delayed to gain a tactical advantage.
Denial of a motion to dismiss an indictment for undue delay is normally reviewed for abuse of discretion. See United States v. Fuzer, 18 F.3d 517, 519 (7th Cir. 1994). While the statute of limitations protects defendants against having to face stale charges, due process under the Fifth Amendment requires an indictment's dismissal if the defendant can show he was substantially prejudiced by the delay and the court finds this prejudice outweighed the government's reasons for the delay. See United States v. Smith, 80 F.3d 1188, 1191 (7th Cir. 1996) (holding defendant must show actual and substantial prejudice to establish claim of pre-indictment delay under Due Process clause, then burden shifts to government to justify the delay); see also United States v. Gouveia, 467 U.S. 180 (1984); United States v. Lerch, 996 F.2d 158, 163 (7th Cir. 1993); United States v. L'Allier, 838 F.2d 234, 238 (7th Cir. 1988) (discussing allegations of unconstitutional pre-indictment delay). As we noted at the July 12 hearing, the defendant's burden of showing "actual and substantial" prejudice is an "exacting" one: he must present "concrete evidence showing material harm." United States v. Canoy, 38 F.3d 893, 902 (7th Cir. 1994) (citations omitted).
The defendants informed us at the hearing of their decision to rely upon their briefs regarding the undue delay issue and not to offer evidence of prejudice. Defendants did not attach affidavits to their briefs, but alleged in their brief that Al Williams, who died in February of 1997, was a head supervisor or foreman at Metalite during the times listed in the indictment. According to defendants, Williams was in charge of "solid waste pickups by the waste management company" and "wastewater sampling." Williams also allegedly "supervised caustic application and wastewater treatment." Defendants in their brief claimed that Williams "had important background knowledge about the so-called 'bypass pipe,'" possessed "deep background information," and (if not for his death) could provide the "full story" at trial, but did not specify how Williams' testimony would have helped them: they simply concluded that the loss of the testimony "is devastating to their ability to defend themselves." Defs.' Reply to Gov.'s Resp. to Mot. To Dismiss for Pre-Indictment Delay at 3. In its response, the government stated that during an interview with government representatives, Williams implicated Marvin Friedman in criminal activity surrounding an illegal bypass pipe.
Without more, defendants cannot establish that the death of Al Williams has actually prejudiced their defense. Vague or conclusory allegations of faded memories of participants and witnesses are insufficient to establish actual and substantial prejudice. Lerch and L'Allier, supra. When a defendant alleges that prosecutorial delay resulted in prejudice due to the unavailability of a witness, as when a witness dies in the interim, the Seventh Circuit has "required proof that the missing witness would have testified on the defendant's behalf, would have withstood cross-examination, and would have been a credible witness before the jury. Canoy, 38 F.3d at 902 (citations omitted). Courts also discuss whether the defendant was in any way responsible for the delay or prejudice. See Canoy, 38 F.3d at 903 fn7 (noting defendant was on notice during eighteen-month period before phone company would have destroyed relevant records that he was suspected of making call yet made no attempt to obtain records); see also United States v. Miner, 127 F.3d 610, 616 (7th Cir. 1997) (holding no prejudice where defendant's deceased husband's previous statements inculpated defendant; defendant was in position to know if husband had other evidence to provide and obtain it before his death); United States v. Sabath, 990 F. Supp. 1007, 1015-1016 fn. 8 (N.D.Ill. 1998) (holding unfair to burden criminal defendant who receives no notice that he is target of investigation with duty to preserve evidence before he is indicted). As we stated at the hearing, the defendants have not presented enough from which we could find actual prejudice.
Defendants believe that the government's delay in indicting them has substantially prejudiced them in several respects relating to soil and water samples, but again, they presented no evidence regarding the facts underlying this alleged prejudice when offered the opportunity to do so at the July 12 hearing. In addition, it seems that some of the alleged prejudice may have resulted from unreliable sampling and evidence-gathering techniques, not the passage of time. We conclude that the defendants cannot demonstrate any prejudice caused by the delay in the indictment and we will not dismiss the indictment on the basis of undue delay.
Conclusion
For the reasons stated above, we find that the defendants are not entitled to dismissal of the indictment. We reject defendants' argument that the relevant sections of the CWA outline a specific intent crime and find that the indictment sufficiently communicates the offense being charged, as well as implies the correct scienter requirement, "knowingly," to the offense. In addition, the defendants failed to show that they were prejudiced by the five-year delay between the government's execution of a search warrant on Metalite premises in 1994 and the return of the indictment in 1999. Defendants' motion to dismiss is DENIED.
It is so ORDERED.