United States v. Ahmad ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20627
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ATTIQUE AHMAD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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November 27, 1996
Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Attique Ahmad appeals his conviction of, and sentence for,
criminal violations of the Clean Water Act (“CWA”). Concluding
that the district court erred in its instructions to the jury, we
reverse and remand.
I.
This case arises from the discharge of a large quantity of
gasoline into the sewers of Conroe, Texas, in January 1994. In
1992, Ahmad purchased the “Spin-N-Market No. 12,” a combination
convenience store and gas station located at the intersection of
Second and Lewis Streets in Conroe. The Spin-N-Market has two
gasoline pumps, each of which is fed by an 8000-gallon underground
gasoline tank. Some time after Ahmad bought the station, he
discovered that one of the tanks, which held high-octane gasoline,
was leaking. This did not pose an immediate hazard, because the
leak was at the top of the tank; gasoline could not seep out. The
leak did, however, allow water to enter into the tank and
contaminate the gas. Because water is heavier than gas, the water
sank to the bottom of the tank, and because the tank was pumped
from the bottom, Ahmad was unable to sell from it.
In October 1993, Ahmad hired CTT Environmental Services
(“CTT”), a tank testing company, to examine the tank. CTT
determined that it contained approximately 800 gallons of water,
and the rest mostly gasoline. Jewel McCoy, a CTT employee,
testified that she told Ahmad that the leak could not be repaired
until the tank was completely emptied, which CTT offered to do for
65¢ per gallon plus $65 per hour of labor. After McCoy gave Ahmad
this estimate, he inquired whether he could empty the tank himself.
She replied that it would be dangerous and illegal to do so. On
her testimony, he responded, “Well, if I don’t get caught, what
then?”
On January 25, 1994, Ahmad rented a hand-held motorized water
2
pump from a local hardware store, telling a hardware store employee
that he was planning to use it to remove water from his backyard.
Victor Fonseca, however, identified Ahmad and the pump and
testified that he had seen Ahmad pumping gasoline into the street.
Oscar Alvarez stated that he had seen Ahmad and another person
discharging gasoline into a manhole. Tereso Uribe testified that
he had confronted Ahmad and asked him what was going on, to which
Ahmad responded that he was simply removing the water from the
tank.
In all, 5,220 gallons of fluid were pumped from the leaky
tank, of which approximately 4,690 gallons were gasoline. Some of
the gas-water mixture ran down Lewis Street and some into the
manhole in front of the store.
The gasoline discharged onto Lewis Street went a few hundred
feet along the curb to Third Street, where it entered a storm drain
and the storm sewer system and flowed through a pipe that
eventually empties into Possum Creek. When city officials
discovered the next day that there was gasoline in Possum Creek,
several vacuum trucks were required to decontaminate it. Possum
Creek feeds into the San Jacinto River, which eventually flows into
Lake Houston.
The gasoline that Ahmad discharged into the manhole went a
different route: It flowed through the sanitary sewer system and
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eventually entered the city sewage treatment plant.1 On
January 26, employees at the treatment plant discovered a 1,000-
gallon pool of gasoline in one of the intake ponds. To avoid
shutting down the plant altogether, they diverted the pool of
gasoline and all incoming liquid into a 5,000,000-gallon emergency
lagoon.
The plant supervisor ordered that non-essential personnel be
evacuated from the plant and called firefighters and a hazardous
materials crew to the scene. The Conroe fire department determined
the gasoline was creating a risk of explosion and ordered that two
nearby schools be evacuated. Although no one was injured as a
result of the discharge, fire officials testified at trial that
Ahmad had created a “tremendous explosion hazard” that could have
led to “hundreds, if not thousands, of deaths and injuries” and
millions of dollars of property damage.
By 9:00 a.m. on January 26, investigators had traced the
source of the gasoline back to the manhole directly in front of the
Spin-N-Market. Their suspicions were confirmed when they noticed
a strong odor of gasoline and saw signs of corrosion on the asphalt
surrounding the manhole. The investigators questioned Ahmad, who
at first denied having operated a pump the previous night. Soon,
however, his story changed: He admitted to having used a pump but
1
Conroe’s sanitary sewer system is completely independent of its storm
sewer system; the two serve different purposes, empty into different locations,
and share no common pipes.
4
denied having pumped anything from his tanks.
Ahmad was indicted for three violations of the CWA: knowingly
discharging a pollutant from a point source into a navigable water
of the United States without a permit, in violation of 33 U.S.C. §§
1311(a) and 1319(c)(2)(A) (count one); knowingly operating a source
in violation of a pretreatment standard, in violation of 33 U.S.C.
§§ 1317(d) and 1319(c)(2)(A) (count two); and knowingly placing
another person in imminent danger of death or serious bodily injury
by discharging a pollutant, in violation of 33 U.S.C. § 1319(c)(3)
(count three). At trial, Ahmad did not dispute that he had
discharged gasoline from the tank or that eventually it had found
its way to Possum Creek and the sewage treatment plant. Instead,
he contended that his discharge of the gasoline was not “knowing,”
because he had believed he was discharging water.
One of the key pieces of evidence Ahmad attempted to introduce
in support of this theory was the testimony of Mohammed Abassi and
Shahid Latif, who would have told the jury that Ahmad was at the
Spin-N-Market only until 7:30 or 8:00 p.m. on January 25, and not
the entire evening as the government contended. The gist of this
was an attempt to show that Ahmad did not knowingly discharge
gasoline himself, but rather only negligently left the pump in the
hands of his employees. The district court found Abassi's and
Latif’s testimony irrelevant and excluded it. The jury found Ahmad
guilty on counts one and two and deadlocked on count three.
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II.
Ahmad argues that the district court improperly instructed the
jury on the mens rea required for counts one and two. The
instruction on count one stated in relevant part:
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.
On count two, the court instructed the jury:
In order to prove the defendant guilty of the offense
charged in Count 2 of the indictment, the government must
prove beyond a reasonable doubt each of the following
elements:
(1) That on or about the date set forth in the
indictment
(2) the defendant,
(3) who was the owner or operator of a source,
(4) knowingly operated that source by discharging into
a public sewer system or publicly owned treatment
works
(5) a pollutant that created a fire or explosion hazard
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in that public sewer system or publicly owned
treatment works.
Ahmad contends that the jury should have been instructed that
the statutory mens reaSSknowledgeSSwas required as to each element
of the offenses, rather than only with regard to discharge or the
operation of a source. Because Ahmad requested such instruction,
we review the refusal to give it for abuse of discretion.
Under this standard, we will affirm if the charge, viewed in
its entirety, is a correct statement of the law that plainly
instructs jurors on the relevant principles of law. United States
v. Allibhai, 939 F.2d 244, 251 (5th Cir. 1991), cert. denied, 502
U.S. 1072 (1992). We will reverse a conviction, on the other hand,
if the instructions do not correctly state the law. United States
v. Gray, 96 F.3d 769, 775 (5th Cir. 1996); United States v.
Townsend, 31 F.3d 262, 270 (5th Cir. 1994), cert. denied, 115 S.
Ct. 773 (1995). The matter of to which elements of the offenses
the word “knowingly” applies is a question of pure statutory
construction that we review de novo. United States v. Snyder, 930
F.2d 1090, 1093 (5th Cir.), cert. denied, 502 U.S. 942 (1991).
The language of the CWA is less than pellucid. Title
33 U.S.C. § 1319(c)(2)(A) says that “any person who knowingly
violates” any of a number of other sections of the CWA commits a
felony. One of the provisions that § 1319(c)(2)(A) makes it
unlawful to violate is § 1311(a), which, when read together with a
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series of definitions in § 1362, prohibits the addition of any
pollutant to navigable waters from a “point source.” That was the
crime charged in count one. Section 1319(c)(2)(A) also
criminalizes violations of § 1317(d), which prohibits the operation
of any “source” in a way that contravenes any effluent standard,
prohibition, or pretreatment standard. That was the crime charged
in count two.
The principal issue is to which elements of the offense the
modifier “knowingly” applies. The matter is complicated somewhat
by the fact that the phrase “knowingly violates” appears in a
different section of the CWA from the language defining the
elements of the offenses. Ahmad argues that within this context,
“knowingly violates” should be read to require him knowingly to
have acted with regard to each element of the offenses. The
government, in contrast, contends that “knowingly violates”
requires it to prove only that Ahmad knew the nature of his acts
and that he performed them intentionally. Particularly at issue is
whether “knowingly” applies to the element of the discharge's being
a pollutant, for Ahmad’s main theory at trial was that he thought
he was discharging water, not gasoline.
The Supreme Court has spoken to this issue in broad terms. In
United States v. X-Citement Video, Inc., 115 S. Ct. 464, 467
(1994), the Court read “knowingly” to apply to each element of a
child pornography offense, notwithstanding its conclusion that
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under the “most natural grammatical reading” of the statute it
should apply only to the element of having transported, shipped,
received, distributed, or reproduced the material at issue. The
Court also reaffirmed the long-held view that “the presumption in
favor of a scienter requirement should apply to each of the
statutory elements which criminalize otherwise innocent conduct.”
Id. at 469.
Although X-Citement Video is the Court’s most recent
pronouncement on this subject, it is not the first. In Staples v.
United States, 511 U.S. 600, 619-20 (1994), the Court found that
the statutes criminalizing knowing possession of a machinegun,
26 U.S.C. §§ 5845(a)(6) and 5861(d), require that defendants know
not only that they possess a firearm but that it actually is a
machinegun. Thus, an awareness of the features of the
gunSSspecifically, the features that make it an automatic weaponSSis
a necessary element of the offense.2 More generally, the Court
also made plain that statutory crimes carrying severe penalties are
presumed to require that a defendant know the facts that make his
conduct illegal. Id.
Our own precedents are in the same vein. In United States v.
Baytank (Houston), Inc., 934 F.2d 599, 613 (5th Cir. 1991), we
concluded that a conviction for knowing and improper storage of
hazardous wastes under 42 U.S.C. § 6928(d)(2)(A) requires “that the
2
Accord United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc).
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defendant know[] factually what he is doingSSstoring, what is being
stored, and that what is being stored factually has the potential
for harm to others or the environment, and that he has no permit
. . . .” This is directly analogous to the interpretation of the
CWA that Ahmad urges upon us. Indeed, we find it eminently
sensible that the phrase “knowingly violates” in § 1319(c)(2)(A),
when referring to other provisions that define the elements of the
offenses § 1319 creates, should uniformly require knowledge as to
each of those elements rather than only one or two. To hold
otherwise would require an explanation as to why some elements
should be treated differently from others, which neither the
parties nor the caselaw seems able to provide.
In support of its interpretation of the CWA, the government
cites cases from other circuits. We find these decisions both
inapposite and unpersuasive on the point for which they are cited.
In United States v. Hopkins, 53 F.3d 533, 537-41 (2d Cir. 1995),
cert. denied, 116 S. Ct. 773 (1996), the court held that the
government need not demonstrate that a § 1319(c)(2)(A) defendant
knew his acts were illegal. The illegality of the defendant’s
actions is not an element of the offense, however. In United
States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994), cert. denied,
115 S. Ct. 939 (1995), the court similarly was concerned almost
exclusively with whether the language of the CWA creates a mistake-
of-law defense. Both cases are easily distinguishable, for neither
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directly addresses mistake of fact or the statutory construction
issues raised by Ahmad.
The government also protests that CWA violations fall into the
judicially-created exception for “public welfare offenses,” under
which some regulatory crimes have been held not to require a
showing of mens rea. On its face, the CWA certainly does appear to
implicate public welfare.
As recent cases have emphasized, however, the public welfare
offense exception is narrow. The Staples Court, for example, held
that the statute prohibiting the possession of machineguns fell
outside the exception, notwithstanding the fact that “[t]ypically,
our cases recognizing such offenses involve statutes that regulate
potentially harmful or injurious items.” Staples, 511 U.S. at 607
(citation omitted).
Though gasoline is a “potentially harmful or injurious item,”
it is certainly no more so than are machineguns. Rather, Staples
held, the key to the public welfare offense analysis is whether
“dispensing with mens rea would require the defendant to have
knowledge only of traditionally lawful conduct.” Id. at 618. The
CWA offenses of which Ahmad was convicted have precisely this
characteristic, for if knowledge is not required as to the nature
of the substance discharged, one who honestly and reasonably
believes he is discharging water may find himself guilty of a
felony if the substance turns out to be something else.
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The fact that violations of § 1319(c)(2)(A) are felonies
punishable by years in federal prison confirms our view that they
do not fall within the public welfare offense exception. As the
Staples Court noted, public welfare offenses have virtually always
been crimes punishable by relatively light penalties such as fines
or short jail sentences, rather than substantial terms of
imprisonment. Id. at 1802-03. Serious felonies, in contrast,
should not fall within the exception “absent a clear statement from
Congress that mens rea is not required.” Id. at 618. Following
Staples, we hold that the offenses charged in counts one and two
are not public welfare offenses and that the usual presumption of
a mens rea requirement applies. With the exception of purely
jurisdictional elements, the mens rea of knowledge applies to each
element of the crimes.
Finally, the government argues that the instructions,
considered as a whole, adequately conveyed to the jury the message
that Ahmad had to have known that what he was discharging was
gasoline in order for the jury to find him guilty. We disagree.
At best, the jury charge made it uncertain to which elements
“knowingly” applied. At worst, and considerably more likely, it
indicated that only the element of discharge need be knowing. The
instructions listed each element on a separate line, with the word
“knowingly” present only in the line corresponding to the element
that something was discharged. That the district court included a
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one-sentence summary of each count in which “knowingly” was present
did not cure the error.
The obvious inference for the jury was that knowledge was
required only as to the fact that something was discharged, and not
as to any other fact. In effect, with regard to the other elements
of the crimes, the instructions implied that the requisite mens rea
was strict liability rather than knowledge.
There was at least a reasonable likelihood that the jury
applied the instructions in this way, see Victor v. Nebraska,
511 U.S. 1, 6 (1994), so we conclude that the instructions misled
the jury as to the elements of the offense. Because the charge
effectively withdrew from the jury’s consideration facts that it
should have been permitted to find or not find, this error requires
reversal.
III.
Having found reversible error in the instructions, we need not
consider Ahmad’s other arguments. Given that this case likely will
be tried again, however, we will address, in the interest of
judicial economy, the exclusion of two of Ahmad’s witnesses.
Ahmad argues that the district court improperly excluded the
testimony of two individuals who would have testified that he was
not at the Spin-N-Market from approximately 7:30 or 8:00 p.m. on
January 25 through 12:45 a.m. on January 26. These witnesses,
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Mohammed Abassi and Shahid Latif, were intended to support Ahmad’s
theory that he started the pump and left the Spin-N-Market shortly
thereafter, in contrast to the government’s theory that he was
there all evening. They were not intended to show that he had been
completely uninvolved in the incident. Whether Ahmad pumped at
least some of the fluid was not in issue; his counsel conceded at
trial that “he started it [the pump] off.”
The first of these witnesses was Abassi, to whose testimony
the government objected on the ground that it tended to establish
an alibi. After some confusion over whether the defense was
required to give the government notice of alibi under FED. R. CRIM.
P. 12.1(a),3 Ahmad’s counsel settled on the argument that Abassi’s
testimony was not being offered as an alibi, but rather only to
show that Ahmad had left the store during the evening in question.
This, he argued, would support the theory that Ahmad’s violation
had been negligent rather than knowing, in the sense that he
negligently left the store in the care of his untrained employees.
The court responded that because it did not intend to give an
instruction on the lesser included offense of a negligent
violation, Abassi’s testimony was irrelevant, and excluded it on
that ground.4
Our examination of the exclusion of evidence is limited to the
3
It was not; the government did not request such notice.
4
Ahmad ultimately requested, and the court denied, a lesser included
offense instruction on each of the charged crimes.
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grounds that were proffered for its admission at trial. See, e.g.,
United States v. Mejia, 844 F.2d 209, 214-15 (5th Cir. 1988).
Given the basis on which Abassi’s testimony was offered, the only
way in which it could have been relevant was to support a theory of
negligent rather than knowing violation. This in turn means that
the testimony was irrelevant unless Ahmad was entitled to an
instruction on the lesser included offense. If he was not so
entitled, the evidence was properly excluded. We conclude to the
contrary.
In Sansone v. United States, 380 U.S. 343, 350 (1965), the
Court held that a defendant is entitled to have the jury instructed
on a lesser included offense if there is an evidentiary basis that
would allow a finding of guilt of the lesser offense and “the
charged greater offense requires the jury to find a disputed
factual element which is not required for conviction of the lesser-
included offense.” Thus the test we apply for whether the
instruction should be given is two-pronged: “(1) [T]he elements of
the lesser offense must be a subset of the elements of the charged
offense; and (2) the evidence at trial must be such that a jury
could rationally find the defendant guilty of the lesser offense,
yet acquit him of the greater.”5
5
United States v. Browner, 889 F.2d 549, 550-51 (5th Cir. 1989) (citing
Schmuck v. United States, 489 U.S. 705, 715-16 & n.8 (1989)), appeal after remand,
937 F.2d 165 (5th Cir. 1991). See also United States v. Harrison, 55 F.3d 163, 166
(5th Cir. 1995), cert. denied, 116 S. Ct. 324 (1995); United States v. Deisch, 20
F.3d 139, 142 (5th Cir. 1994).
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It is self-evident that Ahmad met the first prong of the test,
for knowing violations of §§ 1311 and 1317(d) require everything
that negligent violations do, and more. The second prong, however,
is less easily disposed of.
The district court’s instructions and its rulings on Ahmad’s
proposed instructions indicate that it thought “knowingly” modified
only the element that something was discharged. Were this the
correct interpretation of the CWA, the lesser included offense
instruction would have been correctly denied, because no rational
jury simultaneously could have found both (1) that Ahmad did not
know that he was operating the pump and (2) that he was negligent
with regard to whether he was operating it. Indeed, on the facts
as presented, the idea that Ahmad could have been negligent with
regard to whether a pump was being operated is almost nonsensical.
With regard to the other elements of the crime, however, there
is a vivid and sensible distinction between negligence and
knowledge. Having held that the district court’s interpretation of
the CWA was incorrect, we also must conclude that it erred in
refusing to give the lesser included offense instruction. Because
the statutory mens rea applies to multiple elements of the offense,
such as whether what was being discharged was a pollutant, there
was ample evidence to support the lesser violation.
Most of Ahmad’s defense, after all, was built around the idea
that he thought water, rather than gasoline, was being discharged.
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A rational jury could so have found, and at the same time could
have found that he did not actually know that he was pumping gas.
Because the lesser included offense instruction was improperly
denied, Abassi's and Latif’s testimony was improperly excluded as
well. We remand with instruction that, if this case is retried,
the admissibility of this testimony be reconsidered in light of the
foregoing.
IV.
Because we reverse Ahmad’s convictions, we need not address
his sentencing claims. The convictions are REVERSED and the case
REMANDED.
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