United States v. Maury

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 09-2305/09-2306/09-2345/09-2346/09-2356
UNITED STATES OF AMERICA
v.
JEFFREY MAURY,
Appellant No. 09-2305
_____
UNITED STATES OF AMERICA
v.
CRAIG DAVIDSON,
Appellant No. 09-2306
_____
UNITED STATES OF AMERICA
v.
JOHN PRISQUE,
Appellant No. 09-2345
_____
UNITED STATES OF AMERICA
v.
SCOTT FAUBERT,
Appellant No. 09-2346
____
UNITED STATES OF AMERICA
v.
ATLANTIC STATES
CAST IRON PIPE
COMPANY,
a Division of McWane, Inc.
Appellant No. 09-2356
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-03-cr-00852-001 through 004 and 006)
District Judge: Hon. Mary L. Cooper
_______________
Argued March 29, 2012
2
Before: FUENTES, SMITH, and JORDAN, Circuit Judges.
(Filed: September 17, 2012)
_______________
Michael N. Pedicini (ARGUED)
60 Washington Street
Courthouse Plaza
Morristown, NJ 07960
Attorney for Defendant-Appellant Jeffrey Maury
Hilary L. Brunell (ARGUED)
Vincent J. Nuzzi
Nuzzi & Mason
50 Nelson Street
Dover, NJ 07801
Attorneys for Defendant-Appellant Craig Davidson
Michael D. Critchley (ARGUED)
Critchley, Kinum & Vazquez
75 Livingston Ave
3rd Floor
Roseland, NJ 07068
Attorney for Defendant-Appellant John Prisque
Michael D’Alessio, Jr. (ARGUED)
Walder, Hayden & Brogan
3
5 Becker Farm Road
3rd Floor
Roseland, NJ 07068
Timothy I, Duffy
Mark. K. Silver
Michael J. Sullivan
Coughlin Duffy
350 Mount Kemble Avenue
P.O. Box 1917
Morristown, NJ 07962
Attorneys for Defendant-Appellant Scott Faubert
John J. O’Reilly (ARGUED)
Day Pitney
One Jefferson Road
Parsippany, NJ 07054
Attorney for Defendant-Appellant Atlantic States Cast Iron
Pipe Co.
Mark E. Coyne
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Glenn J. Moramarco (ARGUED)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
4
John L. Smeltzer
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7415
Washington, DC 20044
Attorneys for Plaintiff-Appellee the United States of America
Table of Contents
I. Facts & Posture………………………………………...8
A. Factual Background………………………………...8
1. The Defendants…………………………………8
2. The Plant………………………………………9
B. Clean Water Act Violations……………………….10
1. Unlawful Discharge of Wastewater…………...11
2. Resulting Oil Spills & Ensuing Investigations...15
C. Clean Air Act Violations………………………….19
1. The Plant’s CAA Permits……………………...20
2. Burning Excess Paint………………………….21
D. OSHA Incidents…………………………………...23
1. The Coxe Fatality……………………………...24
2. The Marchan Incident…………………………26
3. The Owens Incident…………………………...28
5
4. The Velarde Incident…………………………..29
E. Indictment…………………………………………31
F. Pre-Trial Issues……………………………………34
G. Trial & Sentencing………………………………...34
H. The Present Appeal & the Parties’ Arguments……37
II. Discovery Issues………………………………………39
A. Pre-Trial Discovery in a Criminal Case…………...39
1. Jencks Material………………………………...39
2. Fed. R. Crim. P. 16…………………………….40
3. Brady and Giglio Material…………………….43
B. Pre-Trial Discovery in this Case…………………..43
C. The Scope of Fed. R. Crim. P. 16(a)(1)(C)……….46
1. Applicable Standard of Review……………….47
2. Rule 16(a)(1)(C)(ii)……………………………50
III. Jury Instructions on the Clean Water Act
Violations.......................................................................55
A. Negligence Instruction Under the Clean Water
Act............................................................................55
1. Invited Error Doctrine…………………………61
B. The District Court’s Refusal to Define
“Recklessness”…………………………………….68
1. Accuracy of the Court’s Instructions on
“Knowing” Conduct………………………………70
2. Abuse of Discretion in Rejecting Proposed
Language…………………………………………..73
6
IV. Mutually Exclusive Verdicts…………………………76
V. Conclusion…………………………………………….82
FUENTES, Circuit Judge:
Following an eight-month criminal trial, a jury
convicted Atlantic States Cast Iron Pipe Company and four of
its managers of various crimes. These included conspiring to
commit a host of environmental pollution and worker safety
violations, attempting to cover up or impede federal
investigation of those violations, and substantive violations of
the Clean Water Act and the Clean Air Act. Specifically, the
Defendants were found to have illegally pumped
contaminated water into storm drains and, as a result, into the
Delaware River; to have unlawfully burned 50-gallon drums
of paint waste in a cupola and emitted the fumes from those
activities into the air; and to have attempted to cover up
several work-related accidents at its facility, one of which
resulted in the death of an employee. The jury also found that
the Defendants engaged in a conspiracy to commit these
acts—and to impede the resulting federal investigation—in
order to maximize productivity and profits at the Plant.
The Defendants appealed from the jury’s verdict,
raising a litany of issues relating to pre-trial discovery, the
District Court’s handling of the trial itself, the propriety of
certain jury instructions, and the District Court’s sentencing
determinations. For the reasons that follow, and in light of
the District Court’s fine handling of these extraordinarily
complicated proceedings, we will affirm the final judgments
of conviction and sentence in this case.
7
I. Facts & Posture
A. Factual Background 1
1. The Defendants
Atlantic States Cast Iron Pipe Company (the “Company”),
owned by McWane, Inc., operates a pipe foundry in
Phillipsburg, New Jersey. The Plant, which produces ductile
iron pipes used as municipal water pipes, sits on a 33-acre
facility located just one mile from the Delaware River. Prior
to 2002, the facility had several large storm drains that flowed
through the municipal storm sewers to an outfall pipe that fed
into the Delaware River. 2
During the periods in question, the Plant was overseen by
John Prisque, who became the Plant Manager in 1998. Prior
to that, Prisque served as the Production Superintendent and
the Production Manager.
Jeffrey Maury, like Prisque, had a long career at the
Plant. After serving as the Maintenance Foreman from 1995
1
A more detailed discussion of the evidence introduced at
trial can be found in the District Court’s comprehensive
opinion. United States v. Atl. States Cast Iron Pipe Co., No.
03-852, 2007 WL 2282514, at *69-133 (D.N.J. Aug. 2, 2007).
2
After 2002, the Company overhauled its internal sewage and
drainage systems and completely removed itself from the
city’s sewer system. The Company says that this eliminated
any risk of future discharges into the Delaware River and
allowed them to conserve water for use at the Plant.
8
to 1997, Maury was promoted to Maintenance Superintendent
in 1998. In this position, Maury oversaw the maintenance of
all equipment used in the casting and finishing of the
Company’s pipes and of construction equipment, such as
forklifts. He also supervised all of the Plant’s maintenance
foremen. Maury reported directly to Prisque.
All finishing processes at the Plant, including the
cement lining and pipe painting operations, were overseen by
Craig Davidson, who served as the Finishing Superintendent
beginning in March 1998. Like Maury, Davidson reported
directly to Prisque.
Scott Faubert served as the Plant’s Human Resources
Manager from 1996 to September 2000. His job
responsibilities included overseeing the Plant’s health and
safety programs and supervising the Plant’s Safety Director.
Faubert also reported directly to Prisque.
2. The Plant
As part of the Company’s production process,
employees at the Plant melt scrap iron and steel at an
extremely high heat in a cupola, or furnace. The molten
metal is then poured into a pipe cast and passed through an
oven that makes the pipes ductile. From there, the pipes are
sent to the finishing department, where they are cooled with
water, grinded, pressure tested, lined with cement, rinsed and
painted. Much of the machinery used during this process
relies on hydraulic cylinders and petroleum-based hydraulic
fluid. This process produces contaminated water and air
pollutants, which are governed by the Clean Water Act, 33
U.S.C. § 1251 et seq., and the Clean Air Act, 42 U.S.C. §
7401 et seq., respectively. Discharges of any such
contaminated water and emissions of any such air pollutant
9
are controlled by strict permits issued to the Company by the
relevant policing agency.
As an industrial facility, the Plant is also subject to the
requirements of the Occupational Health and Safety Act, as
administered by the Occupational Health and Safety
Administration (“OSHA”). See 29 U.S.C. § 651 et seq.
OSHA has promulgated volumes of regulations designed to
ensure that workers can perform their jobs without substantial
risk of industrial accident. Under OSHA’s regulations, the
Plant is required to comply with certain health and safety
standards, educate employees about workplace safety, and
report any on-the-job injuries. Certain categories of
workplace injuries, including those involving a fatality or the
risk of an ongoing imminent danger at a facility, are subject
to investigation by a regional OSHA inspector.
The Defendants in this case were charged with and
convicted of conspiring to violate these regulatory schemes
and to impede federal investigations into those violations.
They were also separately charged with and convicted of
several of the underlying violations. The sections that follow
describe these violations in turn.
B. Clean Water Act Violations
Congress enacted the Clean Water Act (the “CWA”) to
preserve the environmental and physical integrity of the
national waterways. 33 U.S.C. § 1251. To that end, the
CWA “prohibits the discharge of any pollutant into waters of
the United States except as expressly authorized.” United
States v. Allegheny Ludlum Corp., 366 F.3d 164, 171 (3d Cir.
2004). Chemical or industrial waste constitutes a pollutant.
33 U.S.C. § 1362(6). An individual wishing to discharge
such a substance must first obtain a National Pollution
10
Discharge Elimination System permit (a “discharge permit”)
from the relevant agency overseeing the program—in this
case, the New Jersey Department of Environmental
Protection (“NJDEP”). 3 Any discharge must comply with the
terms of the permit, and the restrictions set out in the CWA.
Id. § 1342(k).
The Company held a discharge permit that
fundamentally allowed the Plant to discharge two types of
substances: (1) storm water runoff (e.g., rainwater); and (2)
“non-contact cooling water”—i.e. water that has not come
into contact with any industrial machinery or its associated
pollutants. Atl. States, 2007 WL 2282514, at *14. To
qualify as “non-contact cooling water,” the discharged water
could have no visible sheen, had to pass tests designed to
measure petroleum hydrocarbon levels, and could contain no
solid debris. At no point was the Company permitted to
discharge wastewater created from the cleaning of equipment,
the pipes produced in the Plant, or the Plant’s facilities.
1. Unlawful Discharge of Wastewater
The Plant uses large volumes of water at several stages
of its manufacturing process, producing both noncontact
3
Pursuant to 33 U.S.C. § 1342(b) and (c), the Environmental
Protection Agency (the “EPA”) may authorize the issuance
and enforcement of discharge permits by analogous state
agencies so long as the state program meets federal
requirements set forth under the Act. New Jersey has
administered its own discharge permit program since 1982.
See 47 Fed. Reg. 17,331 (Apr. 22, 1982).
11
cooling water and wastewater. During the relevant time
periods, water was pumped from large containment tanks
through the Plant via a closed-loop system, and was used to
cool the pipes after casting, to cool the casting machines
themselves and to cool the cupola. The Plant also used water
to rinse the pipes during the cement lining process and
afterward, prior to painting. Both processes yielded non-
dischargeable wastewater.
a) The Number Four Pit
While some of the cooling water burned off as steam,
the Plant’s cooling processes—the casting process in
particular—also generated wastewater. During the casting
process, the water used to cool the pipes dripped from the
closed-loop recirculation system into a pit—referred to as the
Number Four Pit—located beneath the casting machine. 4
Because the machines also dripped hydraulic oil into the pit,
the water in the Number Four Pit was often contaminated.
The Number Four Pit was positioned adjacent to the “bull
ladle pit,” in which molten iron from the cupola was held, and
had to be watched carefully to ensure that it did not overflow
4
Robert Bobinis was a millwright and foreman at the Plant
and worked in the casting area. He testified that the water
system in the casting area was designed to be a closed-loop,
sealed system that recirculated the water used in the
production process. However, the system did not function
this way. Though the Plant also had a wastewater treatment
process for this closed-loop system, employees testified that
the water treatment facility was inoperable for much of the
period in question.
12
into the bull ladle pit and cause an explosion. Workers
testified that the pit was typically full and that the need to
drain the pit varied day to day, depending on the severity of
the leaks from the machinery above.
To drain the Number Four Pit, workers were supposed
to pump the wastewater through trenches that ran alongside
the casting equipment and into large holding tanks located
outside the building. However, both during production and
during the night-shift maintenance activities, the workers
were instructed to pump into the tanks even if the tanks were
too full to handle more wastewater. The result of this
pumping was that the tanks overflowed, sending “dark, hot,
muddy water” flowing down the roadway alongside the Plant,
and into the nearby storm drains. Id. at *118. Night-shift
employees were also sometimes instructed to pump the water
out of the pit and directly onto the ground outside the Plant.
Though the frequency of this pumping depended on how
much the machinery leaked in a given day, employees
estimated that the discharges from the Number Four Pit
occurred once or twice a week. Robert Bobinis, who worked
in the casting area of the Plant, noted that he mentioned the
overflow problem to Maury one day and told Maury, “I’m not
going to jail for this.” Maury responded only with, “Shhh.”
Id. at *120.
b) The Cement Pit
Like the Number Four Pit, the Cement Pit suffered
from too much wastewater and too little storage. Water from
the Plant’s cement washing process gathered in containment
pits below the cement lining equipment and then flowed, via
trenches or troughs, to the Cement Pit located outside the
building. Along the way, this water collected the cement
debris and hydraulic oil that had accumulated during the
13
manufacturing process. Once in the pit, the debris sunk to the
bottom and the oil floated to the top. As a result of these
pollutants, water in the cement pits had a greenish, oily
appearance.
During production, this wastewater remained in the pit.
The oil was supposed to be skimmed from the top of the
water, and the water itself recycled through the Plant and
reused for cement washing. However, over time, the debris at
the bottom of the pit would accumulate and displace the water
in the pit, until it began to interfere with production. This
required that the pit water be removed, usually at the end of
the production week, so that maintenance workers could
scrape the bottom of the pit of debris. Workers were supposed
to clean the pit by pumping the water out and into hazardous
materials tanks that were maintained and emptied by outside
contractors. In 1999, the Plant altered this system, installing
next to the pit a large, brown tank specifically intended to
hold the water during cleaning and allow for its reuse
afterward. When the tank was full, workers were to pump
any excess water into the preexisting hazardous materials
tank, located across the roadway, for disposal.
In reality, however, these practices were routinely
disregarded in favor of illegally pumping the wastewater onto
the roadway and, as a result, into the facility’s storm drains. 5
5
Testimony at trial indicated that the large brown tank,
installed to hold this excess water, clogged frequently as a
result of the debris in the water. Thus, shortly after it was
installed in 1999, it became largely inoperative and was used
only sporadically.
14
During the night-shift and, in particular, on Friday nights,
maintenance workers were instructed to “pump the pit” by
emptying the wastewater onto the nearby roadway. Id. at
*102. After the pit was emptied, workers put the pumps away
and cleared the debris from the bottom of the pit. They then
re-filled the pit with water so that production could resume
during the morning shift. Employees testified that some of
these orders came directly from Davidson, the head of the
Finishing Department. Other employees testified that they
received their orders from their shift foreman. As with the
discharges from the Number Four Pit, this water flowed from
the roadway into the nearby storage drains and, eventually,
into the Delaware River.
This practice appears to have continued until February
2000, when environmental inspectors began looking into
possible spills from the Plant. At that point, workers began
pumping the cement pit water into the hazmat tanks.
However, because those tanks were frequently full, the
cement water still occasionally spilled over the sides of the
tank, down the roadway to the storm drains and, eventually,
into the river.
2. Resulting Oil Spills & Ensuing
Investigations
The unpermitted discharges from the Plant resulted in
at least three separate oil spills on the Delaware River.
Statements made by the individual defendants to the state and
federal investigators looking into these spills would later
serve as the basis for some of the false statements and
obstruction charges in the indictment.
15
a) March 1998
On March 19, 1998, New Jersey residents reported
seeing an oil slick on the Delaware River. An employee of
the Phillipsburg Department of Public Works investigated and
traced the spill to a large outfall pipe in the vicinity of the
Plant. The discharge was eventually traced to the facility
itself. The local agency sent the Company a letter, copied to
the NJDEP, requesting that the facility take measures to avoid
such spills going forward.
b) December 1999
On December 5, 1999, another local resident noticed a
large sheen of oil—later estimated to contain approximately
200 – 300 gallons of liquid petroleum 6—floating on the
Delaware River. The resident reported the sighting to local
authorities, which again triggered an investigation. Local
authorities contacted Bruce Doyle, an emergency response
specialist for the NJDEP, who began by visiting the location
at which the sheen was spotted. He took photographs and
collected samples of the water, and noted that he believed the
discharge had been continuing for some time based on the
amount of oil that he observed in the river. Doyle traced the
discharge to an outfall pipe near the Plant.
Later that same day, Doyle and the Chief of the
Phillipsburg Fire Department, Richard Hay, went to the
6
Estimates were that this amount of petroleum, mixed with
approximately 20 times that amount in wastewater, had been
discharged into the river.
16
Company’s facility, where they were initially denied entry.
While waiting outside the facility’s gates, Doyle observed
large, oily puddles on the ground inside the gates. He could
also see discharge flowing into two storm drains, one of
which was near what he later learned to be the cement pit. He
also observed a “partially-submerged sump pump that was
not operating at the time.” Id. at *111. Doyle testified that it
appeared to him that the water flowing into the drains had
come from the exposed end of the sump pump lying on the
roadway.
Once allowed into the facility, Doyle confirmed that
the cement containment pond was the source of the discharge
he had observed at the outfall. Doyle also had an opportunity
to speak with Joseph Maddock, the Plant’s safety director,
who reported directly to Faubert. Maddock said he had no
information on the sump pump or hose in the pit and told
Doyle that “he had no idea what had caused the discharge.”
Id. at *112. Doyle told Maddock that the Company was
directed to clean up the spill at the Plant and at the outfall.
NJDEP officials obtained a search warrant to examine
the facility, and returned to the Plant on February 24, 2000.
They were accompanied by officers from the New Jersey
Department of Law and Public Safety, Christopher Fernicola
and Jeffrey Hill; and FBI Special Agent James Spence.
Doyle was also present. At that time, the cement pit’s
condition was again full of debris, oil and milky-green water,
and was fuller than it had been on December 5. Investigators
collected a sump pump and hose, not in use, from around the
pit and took those items into evidence. Investigators also
took photographs of the area and sampled water from the pit.
Later tests confirmed that the liquid in the pit matched the
17
liquid that had flowed through the storm drains and into the
Delaware River.
During this visit, officials interviewed Maury,
Davidson and Prisque. Agents Fernicola and Hill interviewed
Maury. Maury told them that he thought the leak had been
caused by a leak in the hydraulic line on one of the street
sweeper trucks used at the Plant. Agent Fernicola testified
that Maury fidgeted in his chair and wrung his hands
throughout the interview. 7 Davidson told Agent Hill that the
discharge was caused by a hole in the hose that led from the
sump pump to the storage tank where the water was held
before being recirculated through the system. 8 Like
Davidson, Prisque attributed the discharge to a hole in the
sump pump hose.
c) April 2000
On April 16, 2000, Doyle was again called to
investigate reports of a floating oil sheen on the Delaware
River. This sheen was smaller, but was still visible from the
road. Doyle again traced the spill back to the outfall pipe
near the Company’s facility, this time observing oil and a
“cement-like material” in the discharge. Id. at *113. Doyle
went to the Plant later that day and noted that, though there
had been rainfall that day, the roads surrounding the Plant did
not have puddles and were dry, indicating that the oil
7
Fernicola also testified that he believed that Maury was
lying at the time of the interview.
8
Davidson’s pager went off at some point during the
interview. Afterward, he refused to be interviewed further.
18
discharge had not been caused by surface rainfall washing the
oil from the ground into the drain. He also observed a large
oil sheen surrounding a grated drain at the facility and
concluded that drain had been the source of the sheen he
observed on the river. 9 The NJDEP again issued a directive
and notice of violation against the Company.
In light of these discharges and the oil spills, the
Defendants—the Company, Maury, Davidson and Prisque—
were eventually charged with violations of the Clean Water
Act § 1319(c). They were also charged with lying to
investigators about the source of the 1999 spill.
C. Clean Air Act Violations
The Clean Air Act (the “CAA”), overseen by the EPA
but administered at the local level by the NJDEP, provides
that “certain stationary sources of air pollution must obtain
federal operating permits” prior to any emissions. Ocean
Cnty Landfill Corp. v. United States EPA, 631 F.3d 652, 654
(3d Cir. 2011) (citing 42 U.S.C. §§ 7661-7661f, 7661a(d)(1),
40 C.F.R. § 70, App. A). Because the Company’s
manufacturing process involves the smelting of metals in a
cupola, it was required to obtain and comply with an NJDEP-
issued emissions permit.
9
The District Court speculated that this smaller discharge
may have been caused by “passive weekend leaking onto the
roadway of cement pit water pumped to the hazmat pit,
enhanced by the rain event of that day, and perhaps swept
from the blacktop at Atlantic States before NJDEP arrived to
check.” Atl. States, 2007 WL 2282514, at n.141.
19
1. The Plant’s CAA Permits
The Plant’s cupola, which was approximately 70 to 80
feet high, required the use of various fuels in order to heat or
“charge” the furnace to a temperature high enough to melt
scrap metal to make the cast iron pipes. The Company held
operating permits at all times relevant to this case. In
addition to regulating how the emissions were to be measured
and reported to the NJDEP, the operating permits also
governed what fuels could be sent into the cupola and what
amount of pollutant emissions could be released into the air.
Under the relevant permits, the Company could use
only certain types of fuel. The Plant typically used coke, but
was also permitted to use non-hazardous waste paint in
limited amounts. At all times relevant to this case, the Plant
was permitted to burn no more than 55 gallons of non-
hazardous waste paint per day. 10 No material other than a
permissible fuel and the scrap metal being melted were to be
burned in the cupola. In particular, hazardous waste paint—
essentially, fresh, liquid paint—was never a permitted fuel,
since it releases higher levels of volatile organic chemicals
when burned.
As for the Plant’s emissions levels, the Company was
permitted to release from the cupola’s stack no more than
2,500 parts per million of carbon monoxide per hour,
averaged over the course of a day. Three times per quarter,
the Company was permitted to burn up to 4,000 parts per
million of carbon dioxide per hour, averaged over the course
10
Prior to 2001, the Plant was permitted to burn 55 gallons of
non-hazardous waste per hour.
20
of a day. Any amount beyond these levels, termed an
“exceedance,” was in violation of the Plant’s operating permit
and had to be reported to the NJDEP. Atl. States, 2007 WL
2282514, at *124. The Plant had a long, documented history
of failure to comply with these limitations and, as of late
2000, was facing fines of approximately $600,000 for
documented exceedances. Prisque would have known about
these exceedances and any others because, as Plant Manager,
he was responsible for certifying the Plant’s compliance and
exceedance reports to the NJDEP.
2. Burning Excess Paint
The pipe finishing process, during which the pipes
were painted inside and/or outside, generated large volumes
of waste paint. The Plant’s disposal method for this waste, at
least in part, was to burn it in the Plant’s cupola in violation
of the Company’s operating permit.
As automated machines spray painted each pipe,
excess paint dripped and collected on the floor below the
paint machine, forming a thick, tarry coating. During the
night shift, once production had stopped, workers used flat
shovels to scoop the waste paint into 55-gallon drums,
generally filling them 2–3 inches from the top of the drum.
Some employees testified that they also placed paint-covered
plastic drop cloths—not permitted in the cupola—in the
drums. The workers then placed small pieces of iron called
“chill” in each drum so that the crane, which used a magnet to
lift things, could lift them. The workers then sealed the
drums, duct taped the seam of the lid and moved the drums to
the scrap yard.
Employee testimony at trial demonstrated that these
drums of waste paint frequently were burned in the cupola.
21
After placing the drums in the scrap yard, cranes would lift
the drums into the cupola and burn them. In addition to waste
paint, the drums often contained the plastic tarps on which the
paint had gathered under the painting station. Employees of
the Plant testified that Davidson instructed them to handle the
paint in this way, that he did so specifically when the drums
started to build up in the scrap yard, and that workers filled
and moved somewhere between four and ten drums per night.
The Plant disposed of waste paint this way as early as 1999,
burning an average of four drums a day.
NJDEP officials first spotted large collections of 55-
gallon drums in the scrap yard in February 2000, while they
were executing the search warrant to investigate the 1999
wastewater discharge into the Delaware River. Officials
photographed the drums, some of which were sealed and
others of which were open, exposing a black, tarry substance.
Going forward, the Company made efforts to hide any
existing drums from state officials when they visited the
Plant, or to dispose of them prior to the officials’ arrival. One
crane operator testified that, in anticipation of an expected
NJDEP visit in 2003, his supervisor told him to put one 55-
gallon drum of paint per hour into the cupola. When the
crane would not lift some of the drums, he was told to bury
them in scrap metal so that they would not be visible. George
Shepherd, the former General Electrical Foreman and a key
government witness at trial, testified that this incident
occurred around April 2003. He explained that this was fairly
standard practice any time “visitors” came to the facility.
Prisque would instruct them to “make sure there’s nothing out
22
in the plant they could find.” 11 Id. at *128. Shortly after the
NJDEP inspectors visited, Prisque directed Shepherd to get
rid of the drums that had been buried. Shepherd said that the
Plant burned approximately 20 55-gallon drums of waste
paint in the cupola that day, and another 15-20 drums the
next.
Moreover, both the workers and their supervisors
understood that burning the paint in the cupola was causing
the Plant to exceed the emissions cap in its operating permit.
Shepherd testified that he reported this concern to Prisque in
2003, after the aforementioned incident, but that Prisque told
him that the paint had nothing to do with the meter readings
and said, “Don’t go there.” Atl. States, 2007 WL 2282514, at
*128.
In light of these practices, Prisque and the Company
were eventually charged with violating the Clean Air Act
between February and August 2003.
D. OSHA Incidents
Between 1999 and 2002, several of the Company’s
employees suffered severe injuries at the Plant due to unsafe
working conditions. The evidence introduced at trial
demonstrated that the Company’s management took steps to
conceal the cause of those injuries and to obstruct OSHA
investigators’ inquiries.
11
The crane operator also testified that Prisque had given him
similar instructions.
23
1. The Coxe Fatality
On March 24, 2000, Al Coxe, an employee at the
Plant, was run over and killed by a forklift driven by Juan De
Los Santos. De Los Santos had never been trained, as
required, on the forklift and this was his second accident.
OSHA officials were notified of the accident, as required by
law.
Safety Compliance Officer Carol Tiedeman was
assigned to investigate the facility and arrived that same
morning. Faubert, the Human Resources Manager and the
individual in charge of overseeing safety at the Plant, met
with Tiedeman and showed her the scene of the accident.
Faubert informed Tiedeman that the forklift driver had not
been properly trained on the equipment. He also showed her
the forklift—referred to as forklift #24—which appeared to
be working properly, and assured Tiedeman that it had been
untouched since the accident. As she was leaving the facility
that day, Tiedeman instructed Faubert to gather any
inspection sheets for the forklift. She recommended that
Faubert have the forklift completely inspected before it be
used again.
When Tiedeman returned to the Plant on April 7, 2000,
she met with Faubert and his subordinate, Joe Maddock, the
employee charged with maintaining the Plant’s OSHA injury
log. She was given an inspection report, dated the day after
the Coxe accident, which noted that Maury and Yukna, the
garage mechanic, had inspected forklift #24 and found it to be
in “perfect operating condition.” Id. at *77. In later visits to
the Plant, however, Tiedeman was given the opportunity to
review several drivers’ maintenance checklists for forklift #24
from immediately before and immediately after the accident.
Almost all of those checklists noted extensive problems with
24
the forklift, including that the brakes were defective.
Moreover, the forklift’s repair logs showed no work
performed on the forklift, suggesting that it could not have
been in “perfect” condition during or immediately after the
Coxe accident. Id. Indeed, despite Faubert’s representations
to the contrary, later investigations demonstrated that the
Company’s management had concealed the fact that the
brakes on forklift # 24 had not been functioning at the time
that Coxe was run over, and that this was the cause of the
accident.
As a general matter, testimony and equipment records
from the Plant demonstrated that the Plant’s forklifts were
often in disrepair, with brake failure being one of several
recurring maintenance problems. Forklift operators
repeatedly reported problems with the machines, but were
told to drive the equipment or risk losing their jobs. These
forklift operators testified that, in order to make do, they
routinely brought their own brake fluid to work, and many
learned how to drop the forklift’s load in order to stop the
machine without brakes. In fact, forklift #24 had been
reported as having brake problems during the shift
immediately prior to the fatal accident.
Shepherd testified that, just after Coxe’s death, Prisque
told Maury to have Shepherd take forklift #24 to the
maintenance area for inspection. There, Shepherd and Maury
confirmed that the brakes had malfunctioned. Shepherd
instructed Yukna to fix the problem. 12 When Shepherd saw
the forklift later that morning, around the time of the OSHA
12
Yukna did not testify at trial.
25
visit, he noted that the brakes were working again and
assumed they had been fixed. At some point during the
morning, Prisque also held a meeting with Maury, Davidson,
Shepherd, and two others. Shepherd said that, at this
meeting, he was instructed to make preparations for the
inevitable OSHA visit, which might include a walk through
the facility.
Robert Rush, another employee who testified at trial,
stated that Prisque told him to lie about the condition of the
forklift, and to tell OSHA investigators that “the forklift was
fully operational, it was safe, and [De Los Santos] was
driving recklessly.” Id. at *89. When Rush told Prisque that
he did not want to lie, Prisque threatened him and said,
“You’re going to tell them this because your job depends on
it. It’s in the best interest of your employment. In the best
interest of your job somewhere down the line.” Id.
2. The Marchan Incident
Gabriel Marchan, a plant supervisor, was struck by a
forklift driven by De Los Santos on April 27, 1999. Though
the accident occurred in 1999, OSHA first learned about
Marchan’s injury in 2000, while investigating the Coxe
accident. There had been no prior investigation into the
accident because Marchan’s injury had not been recorded, as
required, in the Plant’s OSHA 200 logs—logs in which
employers are required to record workplace injuries.
In April 2000, while investigating the Coxe accident,
Tiedeman read a news article which stated that the forklift
driver who had run over Coxe had been involved in a similar
incident at the Plant the year before. When Tiedeman asked
Faubert about this incident, he chuckled and stated that
Marchan’s leg had been broken. Tiedeman requested a copy
26
of Marchan’s accident report. The evidence presented at trial
demonstrated that the Defendants thereafter took steps to
conceal the extent of Marchan’s injuries from OSHA.
In May 2000, Faubert provided Tiedeman with a
statement from Marchan that stated falsely that he had come
back to work the day following the accident. When
Tiedeman, confused, asked about the broken leg, Faubert
changed his story and said that there had been no broken leg.
When Tiedeman asked why the injury had not been recorded,
as required, Faubert again stated that this was because the leg
had not been broken and because Marchan had returned to
work the next day. In light of these discrepancies, Officer
Tiedeman opted to interview Marchan directly.
Marchan testified that, just before his interview with
Tiedeman in July 2000, Faubert threatened to fire him unless
he lied about his injuries. Marchan thus told Tiedeman that
he had been struck and run over by a forklift, but that he had
only sustained a scratch and a bruise as a result. He denied
having been seriously injured.
That same day, Tiedeman also interviewed Faubert
and his subordinate, Maddock, regarding the Plant’s failure to
log the Marchan accident. Maddock stated that he understood
that OSHA required employers to report employees’ on-site
injuries and any restrictions on their ability to work, and said
that it was his job to decide whether to include an injury in
the OSHA log, based on the description of that injury in the
Plant’s own first aid log. Maddock denied having been at the
Plant on the day that Marchan was run over. When Tiedeman
asked Maddock why Marchan’s injury had not been recorded
and whether Marchan had missed any work because of it,
Faubert interjected that Marchan had not been treated at the
plant and that, as a result, no OSHA log entry was made.
27
It was only later, in reviewing subpoenaed company
records that Officer Tiedeman learned that Faubert, Maddock
and Marchan had lied to her. Despite their representations to
the contrary, Marchan had been seriously injured and placed
on restricted duty for 44 days following his accident. Indeed,
Marchan testified that, immediately after the accident, it was
Maddock who had driven him to the hospital for treatment.
After his leg had been placed in a splint, and despite his pleas
that he be allowed to go home because he was in pain, it was
also Maddock who drove him back to the Plant and forced
him to sit in a chair and paint from a bucket for the rest of the
day. During the remainder of the time that his leg was in a
cast, another employee drove him to and from work. The
Company had an obligation to report Marchan’s injury, and
the fact that he was limited to restricted duty for the month
and a half after his accident, to OSHA but had failed to do so.
3. The Owens Incident
On June 25, 1999, employee Robert Owens was
injured and lost his eye when a piece of a rotating blade from
the cut saw he was using broke off from the blade and struck
him in the face. OSHA compliance officer Alex Salerno was
assigned to investigate the incident and to assess whether
adequate safety features had been in place at the time of
Owens’ injury.
Salerno visited the Plant roughly two weeks after
Owens’ accident, met with Faubert and was escorted to the
site of the accident. At that time, he witnessed a worker
operating the machine from behind a sliding plexiglas shield
with a wooden frame and a wire mesh screen that was
designed to protect the worker. Salerno observed that the
shield appeared to have been newly built, but Faubert assured
him that it had existed in that condition for 16 years. The
28
employee at the machine told Salerno the shield had been in
place for 10 years.
Despite these representations, evidence and testimony
at trial indicated that no wire mesh safety shield had been in
place on the day of Owens’ accident. Rather, the plexiglass
and wire mesh covering had been built by a carpenter a few
days after Owens’ injury. The employee who told Salerno
otherwise later testified at trial that Prisque instructed him to
say that the shield “was always there” and that he lied to
Officer Salerno because he wanted to keep his job. Id. at *84.
4. The Velarde Incident
Attempts to conceal deficient safety measures and
employee injuries were made again in December 2002, after
Hector Velarde lost three fingers in a cement mixer accident.
Velarde was cleaning the mixer on December 7, 2002, when
his co-worker activated the mixer without alerting him.
When the mixer’s blades activated, Velarde’s fingers were
amputated. Officer Tiedeman was the OSHA inspector
assigned to investigate Velarde’s injury.
On Tiedeman’s first visit to the Plant to investigate this
incident, she met with Prisque, Don Harbin, the Plant’s
maintenance manager, and Mark Neetz, then the Plant’s
safety director. All three individuals escorted her to the
mixer, and Harbin explained what had happened during the
accident. When Tiedeman asked whether the machine had
come with a safety switch or interlock switch—designed to
shut down the machine if the doors were open—she was
assured that it had not, but was told the Plant would attempt
to install one itself.
In truth, the mixer had come from the manufacturer
with an interlock switch installed, but Prisque had instructed
29
Shepherd to bypass the switch because it slowed
production. 13 Shepherd testified that prior to Tiedeman’s
arrival, at Prisque’s instruction, he had removed all evidence
that he had bypassed the switch in the first place and had
rigged the machine to look as though no interlock switch ever
existed. Before Tiedeman’s second visit to the Plant,
Shepherd reinstalled the original interlock switch in order to
make it look like the Plant had taken steps to improve the
safety of the mixer.
Tiedeman only learned that the mixer actually had
been manufactured and shipped to the Plant with a
functioning interlock switch in February 2003, when she
requested and reviewed the owner’s manual for the
equipment. The manual explicitly warned of the risks of
bypassing the safety feature. When she confronted Harbin
with this discovery, he confessed that there had originally
been a switch, but said that it had only functioned for a day or
two before it got too dirty to operate properly. He also
speculated that the switch had been removed by an employee
no longer at the Company and said he could not provide a
name for that individual.
In light of these incidents, the Company, along with
Faubert, Prisque, and Maury, were charged with lying to
13
The doors had to be opened frequently during production to
determine whether the cement was the right consistency.
However, because of the interlock safety switch, every time
the doors were opened the machine had to be restarted.
Shepherd testified that this delay caused the cement line to
become backed up during production.
30
OSHA inspectors and with attempting to obstruct their
investigation into the employees’ injuries.
E. Indictment
On December 11, 2003, a federal grand jury sitting in
the District of New Jersey indicted Defendants Prisque,
Faubert, Maury, Davidson and the Company14 on charges of
conspiring, in violation of 18 U.S.C. § 371, to
(1) knowingly discharge a
pollutant into U.S. waters, without
and in violation of a permit, in
violation of the Clean Water Act,
33 U.S.C. §§ 1311(a) and
1319(c)(2)(A);
(2) knowingly violate a
requirement and prohibition of
permits under the Clean Air Act,
42 U.S.C. § 7413(c);
(3) defraud the United States by
obstructing the lawful functions of
the [OSHA] and the [EPA] in
enforcing federal workplace
safety and environmental laws
and regulations;
14
Daniel Yadzinski, the Plant’s engineering manager and
environmental manager, was also indicted, but was acquitted
on all charges against him. He is, of course, not a party to
this appeal.
31
(4) make false statements in
matters within the jurisdiction of
OSHA, EPA and the [FBI], in
violation of 18 U.S.C. § 1001; and
(5) corruptly influence and
obstruct the administration of law
under a pending proceeding
before OSHA, in violation of 18
U.S.C. §§ 1505 and 1515(b).
D. Ct. Op. 2. The indictment also charged the defendants
with committing, or aiding and abetting the commission of,
substantive violations of the aforementioned laws.
Maury was charged with making false statements to
investigators concerning the December 4, 1999 oil spill
(Count 3), the Coxe forklift accident (Count 5), and with
obstructing the OSHA investigation into Coxe’s death (Count
9). He was also charged with substantive violations of the
Clean Water Act for the pumping of the cement pit that
resulted in the sheen on the Delaware River on December 5,
1999 (Count 27), and the Number Four Pit from May to
October 1999 (Counts 28-33).
Davidson, in addition to the conspiracy charge, was
indicted for substantive violations of the CWA for the
pumping of the cement pit from December 1998 to February
2000 (Counts 12-26), and for the pumping of the cement pit
that resulted in the sheen on the Delaware River on December
5, 1999 (Count 27). Davidson was also charged with making
false statements to investigators regarding that spill (Count 4).
Prisque was charged with violating the CWA based on
the pumping of the cement pit that resulted in the sheen on
32
the Delaware River on December 5, 1999 (Count 27) and
with a substantive violation of the Clean Air Act for his
participation in the burning of the Plant’s waste paint in the
cupola between February and August 2003 (Count 34).
Prisque was also charged with making false statements to
OSHA officers concerning the Owens accident (Count 8), and
with obstruction of a federal investigation for his role in
concealing evidence regarding the Coxe forklift fatality,
Marchan’s forklift injury, and the Velarde accident (Counts 9-
11).
Faubert was charged with making false statements to
OSHA officials concerning Marchan’s forklift accident
(Count 7), obstructing the investigation of Marchan’s forklift
accident (Count 10), and obstructing the investigation of the
Coxe fatality (Count 9).
The Company was also charged with numerous
crimes, including making false statements regarding the 1999
oil spill (Counts 3-4), the Coxe fatality (Count 5), and the
Marchan accident (Count 7). It faced obstruction charges for
the attempts to conceal evidence of the Owens accident
(Count 8) and the cause of Coxe’s death (Count 9), the extent
of Marchan’s injury (Count 10), and the cause of Velarde’s
cement mixer accident (Count 11). Prosecutors also charged
the Company with violating the CWA for the pumping of the
cement pit from December 1998 to February 2000 (Counts
12-26), the pumping of the cement pit that resulted in the
sheen on the Delaware River on December 5, 1999 (Count
27), and the pumping of the Number Four Pit in 1999 (Counts
28-33). Finally, the Company was charged with violating the
Clean Air Act (Count 34).
33
F. Pre-Trial Issues
Pre-trial discovery in this case was highly
contentious. 15 In May 2004, the Government sought (and
eventually obtained) a protective order allowing it to defer
production of otherwise discoverable statements by current
and former employees of the Plant until 30 days before the
start of trial. The Government based this request on
allegations of workplace harassment and intimidation against
Plant employees and their concern that witnesses would be
penalized for cooperating with the prosecution or would be
too intimidated to testify at all.
G. Trial & Sentencing
Trial began on September 27, 2005. The United States
called 50 witnesses—many of them employees of the
Company—and three rebuttal witnesses. Among the
employees who testified were five unindicted co-conspirators:
Joseph Maddock, the former safety and human resources
director of the Plant; Donald Harbin, the Plant’s maintenance
manager; George Shepherd, the general electrical foreman;
Tom Dalrymple, who supervised emissions controls at the
cupola and reported directly to Prisque; and Steven Wayda,
the union representative at the Plant.
The Defendants began presenting their case on
February 8, 2006 and called another 52 witnesses. All of the
individual Defendants testified. Defendants moved for a
judgment of acquittal at the close of the Government’s case,
15
For a more detailed account of the discovery proceedings in
this case, see infra Part II.
34
and at the end of the evidence. The Court reserved judgment
and submitted all counts to the jury. The Court also
submitted to the jury, at the Defendants’ request, the lesser
included offense (not charged in the indictment) of a
negligent—as opposed to knowing—violation of the Clean
Water Act, 33 U.S.C. § 1319(c)(1)(A). Negligent violations
of the Act constitute misdemeanors, rather than felonies.
Following these proceedings and after 10 days of
deliberation, on April 26, 2006, the jury convicted the
Defendants of almost all of the charges levied against them. 16
Notably, though the Company was convicted of felony
violations of the CWA for the 1999 spill on the Delaware
16
The jury failed to reach a verdict on Count 2 of the
indictment, which charged Faubert and the Company with
making false statements to OSHA inspectors when Faubert
told them that he was unaware of a pit excavated in the
casting department that had supposedly collapsed on an
employee’s leg. Maury was acquitted on Count 5, which
concerned his representation to OSHA inspectors that the
forklift had been found to be in “perfect operating condition”
immediately after the Coxe fatality. The Company was
acquitted on Count 6, which concerned alleged false
statements to the NJDEP regarding the accuracy of NJDEP’s
testing procedures. And Prisque was acquitted on Count 10,
which alleged that he had been part of efforts to convince
Marchan to lie to the OSHA inspectors about the extent of his
injuries from the forklift accident in 1999. And, finally,
though not relevant to this opinion, Daniel Yadzinski, the
Plant’s engineering manager and environmental manager, was
acquitted of all charges against him.
35
River and the unpermitted pumping of the cement pit (Counts
12-26, 27), the jury concluded that Prisque, Maury and
Davidson were guilty only of negligent violations for those
incidents. The jury found the Company and Maury guilty of
felony violation of the CWA for the unpermitted pumping of
wastewater from the Number Four Pit (Counts 28-33). All
Defendants were convicted of having knowingly and willfully
engaged in a conspiracy to achieve the purposes set out in the
indictment.
Following the jury verdicts, the Defendants filed an
omnibus post-trial brief that raised a multitude of challenges
to the jury’s verdicts and to the District Court’s handling of
the case. In August 2007, the District Court ruled on the
Defendants’ post-trial motions, rejecting the majority of those
challenges, but granting Rule 29 judgments of acquittal for
insufficient evidence on the following: (1) one false statement
charge against Faubert and the Company, for the jury’s
failure to reach a verdict (Count 2); (2) one CWA charge
against Davidson and the Company, concerning an alleged
unlawful discharge of wastewater in September 1999 (Count
21); and (3) one CWA charge against Maury and the
Company concerning an alleged unlawful discharge of
wastewater in October 1999. The Court denied the Rule 29
motions as to all other counts of conviction.
The District Court held sentencing hearings in April
2009. It sentenced Prisque to 70 months’ imprisonment,
Faubert to 41 months’ imprisonment, Maury to 30 months’
imprisonment, and Davidson to 6 months’ imprisonment. As
for the Company, the Court opted to apply the Alternative
Fines Act (the “AFA”), 18 U.S.C. § 3571(c)(1), rather than
the CWA and CAA, in imposing criminal penalties.
Applying the AFA, the Court fined the Company the
36
maximum penalty of $500,000 per violation on Count 1
(conspiracy), Counts 8-11 (obstruction), Counts 12-16
(CWA—cement pit discharge), Counts 28-32 (CWA—
Number Four Pit discharge), and Count 34 (CAA) for a total
fine of $8 million dollars. It also sentenced the Company to 4
years’ probation, with a court-ordered monitor to ensure
regulatory compliance going forward.
The Defendants timely appealed to this Court in May
2009.
H. The Present Appeal & the Parties’
Arguments 17
Jointly, the Defendants raise a multitude of arguments,
principal among them that (1) they were afforded inadequate
pre-trial discovery under Rule 16 of the Federal Rules of
Criminal Procedure, (2) the Government withheld substantial
Brady and Giglio material and engaged in numerous acts of
prosecutorial misconduct, and (3) the District Court erred in
instructing the jury on the appropriate standard of mens rea
for a negligent violation of the CWA. They also raise
numerous challenges to the District Court’s handling of the
proceedings themselves, including its evidentiary rulings and
the adequacy of the voir dire.
The Defendants’ individual claims on appeal are
equally numerous. The Company, in addition to challenging
the adequacy of the Rule 16 discovery it received, argues that
the District Court erred in denying its motions for acquittal
17
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
37
and for a new trial. It also challenges the reasonableness of
the criminal penalties imposed by the District Court under the
AFA.
Faubert contests the sufficiency of the evidence used
to convict him; argues that there was a fatal duplicity in the
charged objectives of the conspiracy, and challenges the
sentence imposed by the District Court.
Davidson argues that the verdicts against him for
conspiracy and for negligent violation of the Clean Water Act
are mutually exclusive; that the Government failed to prove
essential elements of the crimes charged against him, that
there was a variance in one of the charges against him, that
the government “released false discovery” that hampered his
ability to defend himself, and that he was prejudiced by the
“unfair charging practice of the government.” Davidson Br.
24, 26.
Prisque, like Davidson, argues that the verdicts against
him were mutually exclusive. He also claims that the
Government engaged in a pattern of prosecutorial misconduct
against him, that the evidence was insufficient to convict him,
and that the District Court erred in imposing his sentence.
Finally, Maury challenges the sufficiency of the
evidence against him. He also argues that his false statement
conviction stemming from the December 1999 oil spill
(Count 3) should be dismissed because the question posed to
him was too ambiguous to support the charge, that there was
a variance between the indictment and the evidence against
him on that same charge, and that the District Court erred in
allowing prejudicial testimony against him.
38
II. Discovery Issues
The Defendants raise many challenges to the degree of
criminal discovery they were afforded throughout the
proceedings in this case. Among the many arguments they
raise, the Defendants argue that the District Court erred in its
interpretation of Fed. R. Crim. P. 16(a), as it applies to
organizational or, in this case, corporate defendants.
We find the issue concerning the question of the extent
of a corporate defendant’s right to discovery under Rule
16(a)(1)(C) to be the most deserving of attention and further
discussion, and we therefore address it herein. Because we
find that the discovery the Defendants received was adequate
and in keeping with the standards of Fed. R. Crim. P. 16, we
discern no error in the District Court’s handling of discovery
in this case.
A. Pre-Trial Discovery in a Criminal Case
The Defendants’ arguments raised issues involving
several overlapping aspects of pre-trial criminal discovery.
We begin with a brief overview of a criminal defendant’s
right to discovery of the evidence that the government intends
to use against him at trial. In a criminal trial, the government
is subject to three sets of disclosure obligations: those
imposed under the Jencks Act, 18 U.S.C. §3500(b), those
imposed by Fed. R. Crim. P. 16 (“Rule 16”), and those
imposed by the Supreme Court’s holding in Brady v.
Maryland, 373 U.S. 83 (1963).
1. Jencks Material
Pursuant to the Jencks Act, implemented by Federal
Rule of Criminal Procedure 26.2, any time that a government
witness testifies on direct examination, the defendant is
39
entitled to a copy of “any statement . . . of the witness in the
possession of the United States which relates to the subject
matter as to which the witness has testified.” 18 U.S.C. §
3500(b)(2). Provided the government contests the relevance
of any portion of the statement, it must submit the entire
statement to the court for in camera review. Id. § 3500(c). A
“statement” is defined as (1) any written statement made and
signed or adopted by the witness; (2) a “stenographic,
mechanical, electrical, or other recording, or a transcription
thereof” that recites “substantially verbatim”, and was made
contemporaneously with, the witness’s statement; or (3) a
recording or transcript of grand jury testimony. Id. § 3500(e).
The purpose of Jencks disclosure is to provide the defendant
with an opportunity to review the witness’s statements for any
possible inconsistencies that he might use to impeach the
witness. United States v. Rosa, 891 F.2d 1074, 1076-77 (3d
Cir. 1989). Importantly, in light of this purpose, the
government has no obligation to produce Jencks material
until the witness has testified. 18 U.S.C. § 3500(a). 18 This
limitation does not apply to testimony by the defendant
himself. Id.; see also Fed. R. Crim. P. 16.
2. Fed. R. Crim. P. 16
The bulk of the government’s pre-trial disclosure
obligations stem from Rule 16, which requires that the
government, “[u]pon a defendant’s request,” allow the
18
Despite this limitation, many federal prosecutors routinely
turn over Jencks material a few days before the witness
testifies.
40
defendant access to certain categories of information that the
government has collected over the course of its investigation.
With respect to an individual defendant, the
government must disclose
(1) “[A]ny relevant oral statement made by the
defendant, before or after arrest, in response to
interrogation by a person the defendant knew was a
government agent if the government intends to use the
statement at trial.” Fed. R. Crim. P. 16(a)(1)(A).
(2) Any relevant “written or recorded statement by the
defendant” if the statement is in the government’s
possession or control, and the government knows of
the statement. Id. 16(a)(1)(B)(i).
(3) Any written record containing the substance of a
defendant’s oral statements provided the statement is
made in response to interrogation by a person the
defendant knew to be a government agent. Id.
16(a)(1)(B)(ii).
(4) Any recordings of the defendant’s grand jury
testimony, if related to the offense. Id.
16(a)(1)(B)(iii).
Organizational or corporate defendants are also
entitled to pre-trial discovery. Fed. R. Crim. P. 16(a)(1)(C).
However, in this context, the meaning of Rule 16 shifts. An
organization has no self-knowledge of its own conduct, since
it acts through its agents, and must be afforded an opportunity
to learn what of its employees’ conduct is being used against
it at trial. Thus, under Rule 16(a)(1)(C), an organizational
defendant is entitled to any statement described in Rule
16(a)(1)(A) and (B), above, so long as the government
contends that the person making the statement:
41
(i) was legally able to bind the
defendant regarding the subject of
the statement because of that
person’s position as the
defendant’s director, officer,
employee, or agent; or
(ii) was personally involved in the
alleged conduct constituting the
offense and was legally able to
bind the defendant regarding that
conduct because of that person’s
position as the defendant’s
director, officer, employee, or
agent.
Fed. R. Crim. P. 16(a)(1)(C)(i), (ii). It is only by learning
what statements can be attributed to it as an organization that
a corporate defendant can defend itself at trial. Fed. R. Crim.
P. 16(a)(1)(C) Advisory Committee Notes to 1994
Amendments.
Moreover, the government must allow any defendant
to review any “books, papers, documents, data, photographs,
tangible objects, buildings or places” that are material to the
defense, provided that the government intends to use that
evidence in its case-in-chief or that the item was obtained
from the defendant. Fed. R. Crim. P. 16(a)(1)(E).
These obligations are subject to a carveout for attorney
or agent work product “made . . . in connection with
investigating or prosecuting the case.” Fed. R. Crim. P.
16(a)(2). Rule 16 also makes clear that it does not authorize
“discovery or inspection of statements made by prospective
42
government witnesses except as provided” under the Jencks
Act, 18 U.S.C. § 3500. Fed. R. Crim. P. 16(a)(2).
3. Brady and Giglio material
Finally, independent of these obligations, under Brady
v. Maryland, a prosecutor has an obligation to disclose
“evidence favorable to an accused” individual so long as it is
“material either to guilt or to punishment.” 373 U.S. 83, 87
(1963). Evidence is “material” if there is a reasonable
probability that, “had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” United States v. Friedman, 658 F.3d 342, 357-58
(3d Cir. 2011) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). “The prosecution must also disclose
evidence that goes to the credibility of crucial prosecution
witnesses.” Buehl v. Vaughn, 166 F.3d 163, 181 (3d Cir.
1999) (citing Giglio v. United States, 405 U.S. 150, 154
(1972)). Referred to as Giglio material, this evidence is a
subset of Brady material insofar as it addresses situations in
which certain evidence about a witness’s credibility or
motivation to testify exists, and where “the reliability of a
given witness may well be determinative of guilt or
innocence.” Giglio, 405 U.S. at 154 (citing Napue v. Illinois,
360 U.S. 264 (1959)).
B. Pre-Trial Discovery in this Case
Fed. R. Crim. P. 16(d)(1) allows a court to, “for good
cause, deny, restrict, or defer discovery or inspection, or grant
other appropriate relief.” In this case, the District Court
granted a protective order allowing delayed disclosure of
certain employees’ statements that the government sought to
use in its case against the Company—in other words,
statements that the Court believed fell within the reach of
43
Rule 16(a)(1)(C). In granting that request, it reviewed in
camera the statements themselves, and the Government’s
affidavits in support of their motion. It determined that
delayed production was the only way to “protect the safety of
prospective witnesses and the likelihood that they will appear
and testify without intimidation or improper influence at
trial.” (J.A. 652.) The Court also determined that alternative,
less drastic proposals, such as producing the materials with
redactions of the employees’ names, or ordering disclosure of
a list of the sought after statements and allowing the full
documents to be produced later, would “undermin[e] the
effect of the protective order to be issued.” (J.A. 652.)
In the wake of the District Court’s initial decision
granting the protective order, the Defendants filed several
motions to compel discovery on a host of grounds. 19 In
October 2004, the Defendants also argued that, despite the
Court’s protective order, they were immediately entitled to
any and “all statements made by the ‘co-conspirators’
referenced in the Superseding Indictment, as the United States
is clearly attempting to bind the [C]ompany by the acts and/or
statements of those co-conspirators,” as well as “all
statements of employees whose alleged conduct binds
Atlantic States.” ((J.A. 695.) (citing Fed. R. Crim. P.
16(a)(1)(C) (the “Rule 16 motion”)). They argued that even if
the employees’ identities were protected under the Court’s
19
The Defendants filed motions to compel what they claimed
was Brady material, Giglio material, and requesting early
Jencks disclosure and rough notes from the OSHA and
NJDEP inspectors, whom the government had not treated as
“agents” within the meaning of Rule 16(a).
44
order, any and all statements by the employees should be
turned over immediately. Importantly, these statements
concerned not so much the scope of Rule 16(a)(1)(C), but
whether the Defendants were entitled to anything under Rule
16(a)(1)(C) prior to 30 days before trial. See J.A. 695. The
Defendants’ continuing demands for information concerned
the timing of the Government’s disclosures, not the scope
thereof.
The Court reserved decision on the Rule 16 motion,
pending further in camera review of the evidence, and noted
that it would decide the Rule 16 motion in conjunction with
the Defendants’ Motion for Reconsideration of the Protective
Order. The Court intended to use that additional in camera
review to determine whether the scope of the protective order
could be narrowed. Following additional arguments and the
Court’s in camera review, on February 17, 2005, the Court
denied the motion to reconsider the protective order.
On August 12, 2005, consistent with the Court’s
protective order, the Government produced the previously
withheld Rule 16(a)(1)(C) materials to the Defendants. In all,
the production consisted of documents for 24 witnesses.
Portions of these documents were heavily redacted, in
keeping with the Government’s understanding of the scope of
Rule 16(a)(1)(C). For individuals who could bind the
Company by virtue of their position alone, the Government
produced all oral statements that it intended to use at trial, and
all written statements discussing issues on which the
employee had the authority to bind the Company. See Rule
16(a)(1)(C)(i). For all employees who were capable of
binding the Company by virtue of their participation in the
charged events, i.e. employees who had participated directly
in the charged conduct, the Government produced all oral and
45
written statements discussing that specific conduct. See Rule
16(a)(1)(C)(ii). All other statements from these individuals,
such as statements unrelated to the charged conduct or
observations of the conduct of others, were redacted.
Following this production, the Defendants sent a letter
to the Court complaining about the Government’s redactions,
noting that “the disclosures lack[] any indication to
substantiate” the need for the protective order. (J.A. 1533.)
The Defendants “request[ed] that the summaries and
transcripts be produced in unredacted form, so that the
necessity for the Protective Order is clear.” Id. They did not
object to the scope of the Government’s reading of Rule
16(a)(1)(C). 20
Full, unredacted versions of these documents were
produced to the Defendants as Jencks material at least 3 days
prior to the testimony of each witness. Of course, for those
individuals who did not testify, no such Jencks disclosure
occurred. See 18 U.S.C. § 3500(a).
C. The Scope of Fed. R. Crim. P. 16(a)(1)(C)
On appeal, the Defendants argue that the District Court
erred in its application of Rule 16(a)(1)(C) and that it
deprived the Defendants of “an inordinate amount of critical
discovery” in the process. Joint Def. Br. 78. They concede
that the Government’s application of Rule 16(a)(1)(C)(i),
20
The Defendants continued to file motions to compel
discovery on other grounds. See, e.g., J.A. 1737-38 (“Motion
to Compel Production of United States Attorney and
Investigator Rough Notes”).
46
which governs individuals “legally able to bind the defendant
regarding the subject of the statement” because of their
position of authority, was in keeping with the requirements of
that rule. See Joint Def. Br. 77. However, they argue that the
discovery they received under Rule 16(a)(1)(C)(ii) was
unduly narrow insofar as it was limited to statements by
employees about the specific offending conduct. 21
The Defendants urge us to read Rule 16(a)(1)(C)(ii) to
require that, “[o]nce an employee participated in the
misconduct, all statements given by that employee should
have been disclosed, even if unrelated to the misconduct.”
Joint Def. Br. 80 (emphasis omitted). The Government
responds that the Defendants’ argument is subject to plain
error review because they failed to raise a challenge to the
redactions under Rule 16(a)(1)(C)(ii) before the District
Court. In any event, it argues, their redactions were in
keeping with the scope and reach of Rule 16(a)(1)(C)(ii).
1. Applicable standard of review
Though we review a district court’s application of the
Federal Rules of Criminal Procedure, including its decisions
21
The Defendants raise this issue jointly and argue that they
are all entitled to a new trial as a result of this supposed error.
Rule 16(a)(1)(C), however, benefits organizational defendants
alone, and an individual defendant is not entitled to discovery
of the statements of his codefendants. Cf. United States v.
Randolph, 456 F.2d 132, 135-36 (3d Cir. 1972). Therefore,
even were we to find reversible error, only the Company
would be entitled to the benefit of our ruling.
47
denying or limiting discovery, for an abuse of discretion, see
Gov’t of Virgin Islands v. Fahie, 419 F.3d 249, 258 (3d Cir.
2005), our review of a court’s interpretation of the meaning or
reach of a rule is plenary, see United States v. Toliver, 330
F.3d 607, 610 (3d Cir. 2003). Claims of error in criminal
discovery that are raised for the first time on appeal are
subject to plain error review. See Fed. R. Crim. P. 52(b).
We agree with the Government’s contention that plain
error review governs this argument on appeal. Despite the
Defendants’ contentions to the contrary, the record
demonstrates that they failed to directly challenge the
appropriate scope of discovery available under Rule
16(a)(1)(C)(ii) before the District Court. In their reply brief,
the Defendants point to three statements before the District
Court which, they contend, adequately presented the issue for
the District Court’s review: (1) their statement at the hearing
for the Protective Order that said, “make no mistake about
that—we want the entire statements and the rough notes,”
J.A. 582; (2) their motion to compel discovery, in which they
sought all statements from the relevant employees, even if the
employees’ identities were not discoverable per the Court’s
protective order, J.A. 696; and (3) their post-production letter
in which they complained about the Government’s redactions
and “request[ed] that the summaries and transcripts be
produced in unredacted form, so that the necessity for the
Protective Order is clear.” (J.A. 1533.)
However, while these statements do reference Rule 16,
they do so in the context of challenging the reach and
necessity of the Court’s Protective Order, both prior to and
48
after the Government’s production. 22 None squarely presents
the Court with the question of whether, under Rule
16(a)(1)(C)(ii), the scope of discovery is limited to only those
statements that reference the offending conduct, or instead
reaches any statement from an employee who has participated
in that conduct. Therefore, because the Defendants never
squarely presented the Court with this challenge, we hold that
plain error review applies to the Defendants’ claim.
Before an appellate court can correct an error not
properly preserved before the District Court, it must find that
“(1) there was error; (2) the error was clear or obvious; (3) the
error affected the defendant’s substantial rights; and (4) the
error seriously affected the fairness, integrity, or public
reputation of the legal proceeding.” United States v. Tyson,
653 F.3d 192, 211 (3d Cir. 2011); see also United States v.
Williams, 464 F.3d 443, 445 (3d Cir. 2006). We find no such
“clear or obvious” error in this case.
22
We note that the Defendants have not directly challenged
the appropriateness of the order itself. Had they, we would be
hard pressed to find that the Court abused its discretion given
the circumstances presented in this case and the evidence
before the Court at the time of its decision. United States v.
Hedaithy, 392 F.3d 580, 605-06 (3d Cir. 2004) (explaining
that a district court abuses its discretion only where its
“decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law, or an improper application of law to
fact” (citation and internal quotation omitted)).
49
2. Rule 16(a)(1)(C)(ii)
We know of no circuit court opinion that has
confronted the precise scope of discovery available under
Rule 16(a)(1)(C)(ii). This dearth in law alone makes it
particularly challenging for the Defendants to prove that the
discovery they received was plainly erroneous under the law
as it stands. See United States v. Riley, 621 F.3d 312, 323 (3d
Cir. 2010) (stating that an error is “clear or obvious” where
the law at issue has been clarified at the time of the appeal).
Moreover, because the Defendants never challenged the
Government’s application of Rule 16(a)(1)(C)(ii) directly,
there is no clear ruling by the District Court on this issue. We
are left only to consider whether the discovery the Defendants
received was clearly at odds with the language of Rule
16(a)(1)(C). We conclude that it was not.
Under Rule 16, an individual is entitled to essentially
(1) any oral statement made in response to interrogation by a
government agent, provided that the government intends to
use that statement at trial; (2) copies of any written or
recorded statement by the defendant—or any record
containing the substance of that statement—provided it is
within the control of the government; and (3) the defendant’s
grand jury testimony relating to the offense. Fed. R. Crim. P.
16(a)(1)(A), (B). Such statements are often admissions and
can be used to bind the defendant at trial. Pre-trial discovery
allows an individual defendant the opportunity to seek
suppression of these statements before they are introduced
into evidence at trial, see Fed. R. Crim. P. 16(a)(1)(C)
Advisory Committee Notes to 1994 Amendments, and to
evaluate the weight of such direct evidence against him in
deciding whether to take a plea or face trial.
50
Rule 16(a)(1)(C) imports the individual-defendant
discovery rules in subsections (a)(1)(A) and (B) to the context
of organizational defendants, such as the Company in this
case. The Advisory Committee Notes pertaining to this
portion of Rule 16 make it clear that the disclosure
requirements “apply equally to individual and organizational
defendants.” Fed. R. Crim. P. 16(a)(1)(C) Advisory
Committee Notes to 1994 Amendments (emphasis added).
This, in our view, indicates that the same limitations and
driving principles which control in the individual context
transfer, through incorporation, to the discovery rights
afforded to organizational defendants under Rule 16(a)(1)(C).
Of course, organizations are able to act or speak only
through their agents. The statements of agents can bind the
corporation. See, e.g., Fed. R. Evid. 801(d)(2)(C), (D). And,
“[b]ecause an organizational defendant may not know what
its officers or agents have said or done in regard to a charged
offense, it is important that it have access to statements made
by persons whose statements or actions could be binding on
the defendant.” Fed. R. Crim. P. 16 Advisory Committee
Notes to 1994 Amendments. Rule 16(a)(1)(C) thus entitles
an organizational defendant to those very statements. See id.
In terms of evidence, an organization such as a
corporation can be bound by the words of its employees in
two basic ways: first, by a statement from a person with
authority to speak on the behalf of the organization on that
subject; second, by a statement from an employee or agent of
the organization on a matter within the scope of his assigned
conduct. See Fed. R. Evid. 801(d)(2). Such statements are
admissible against the principal because we view the speaker,
in these situations, as speaking for or as the principal.
51
Rule 16(a)(1)(C) similarly limits the disclosure
afforded to those “statements made by a person who the
government contends,” falls in one of two categories. Those
who
(1) [were], at the time of making the statement, so
situated as a director, officer, employee, or agent as to
have been able legally to bind the defendant in respect
to the subject of the statement; or
(2) [were], at the time of the offense, personally
involved in the alleged conduct constituting the
offense and so situated as a director, officer, employee
or agent as to have been able to legally bind the
defendant in respect to that alleged conduct.
See Fed. R. Crim. P. 16(a)(1)(C). Thus, two classes of
individuals can make statements that are sufficient to
constitute admissions against the corporation, which are thus
discoverable under Rule 16(a)(1)(C): (1) representatives, or
individuals who have the power to bind an organization by
virtue of their authority to make statements on the subject on
behalf of the organization, see Fed. R. Crim. P.
16(a)(1)(C)(i); and (2) employees who engage in illegal
conduct within the scope of their jobs and then make some
statement about having done so, see Fed. R. Crim. P.
16(a)(1)(C)(ii).
Against this backdrop, we think the second category,
which references “the conduct constituting the offense” and
the ability “to bind the defendant in respect to that alleged
conduct,” contemplates that the statements governed by Rule
16(a)(1)(C)(ii) are tethered to the conduct itself. In keeping
with traditional notions of agency and vicarious liability, it is
only in this context that the employee “speaks” on the behalf
52
of the Company as concerns the charged conduct against
which the organizational defendant must defend itself.
Indeed, and perhaps most convincingly, any broader
reading begins to afford organizational defendants greater
rights than those afforded to individual defendants. Rule 16
recognizes the dueling identities of an organization’s average
employee: first, as a situational agent of the Company and
second, as an average, run-of-the-mill fact witness. The
further a general employee’s statements diverge from
admissions about having engaged in a form of conduct on
behalf of the Company, the more they begin to resemble
general, fact-based, witness statements. Such statements are
not discoverable to individual defendants prior to the
witness’s trial testimony and until the Government’s Jencks
obligations kick in. See Fed. R. Crim. P. 16(a)(2); 18 U.S.C.
§ 3500. To make such statements discoverable under Rule
16(a)(1)(C) would grant organizational defendants a windfall,
by allowing such defendants to use Rule 16 as a means of
gaining early access to witness’s inculpatory statements when
non-organizational defendants have no such right. See United
States v. Dessange, No. 99-Cr.-1182, 2000 U.S. Dist. LEXIS
2557, at *8-9 (S.D.N.Y. Mar. 7, 2000); United States v. Lin
Lyn Trading, Ltd., 911 F. Supp. 494, 497 (D. Utah 1996);
United States v. Bhutani, No. 93-585, 1995 WL 632069 (N.D.
Ill. Sept. 1, 1995) (explaining that Rule 16 reaches only those
statements that are in the nature of admissions). To the extent
a defendant wishes to use those statements to contradict the
witness, or to draw the witness’s credibility into question at
trial, that is the stuff of Jencks disclosures and is adequately
accounted for by that requirement.
The Defendants rely on United States v. Chalmers—a
case from the Southern District of New York that was
53
decided after discovery in this case—in support of their
proposition that once an employee has engaged in bad
conduct sufficient to bind the organization, all statements of
the employee are discoverable under Rule 16(a)(1)(C). 410 F.
Supp. 2d 278 (S.D.N.Y. 2006). In Chalmers, the court held
that under Rule 16(a)(1)(C) “the Government must disclose
all statements made by persons whose actions it alleges bind
the [organizational defendant].” Id. at 291. However, we
note that other courts, including one other court from the
same district, have reached conclusions similar to our own.
See Dessange, 2000 U.S. Dist. LEXIS 2557, at *8; Lin Lyn
Trading, Ltd., 911 F. Supp. at 494; Bhutani, 1995 WL
632069. Moreover, the Chalmers holding creates the very
windfall we think must be avoided by closely focusing on the
conduct that binds the organization under Rule
16(a)(1)(C)(ii).
We have long held that Rule 16 is not to be used as a
tool for general evidence-gathering prior to trial. See United
States v. Randolph, 456 F.2d 132, 136 (3d Cir. 1972) (“Rule
16 does not require the prosecution to disclose ‘all the
minutia of its evidence, to reveal its trial strategy, and to
delineate with total specificity the case it intends to
present.’”) (quoting United States v. Fioravanti, 412 F.2d
407, 411 (3d Cir. 1969) cert. denied, sub nom. Pannacione v.
United States, 396 U.S. 837 (1969)). Because the
Defendants’ interpretation of the rule would effectively allow
that very result and, in so doing, give organizational
defendants a substantial advantage in criminal proceedings,
we must reject it as an incorrect reading of Rule
16(a)(1)(C)(ii).
Rather, we conclude that where a statement itself is
being used to bind the Company, Rule 16 affords an
54
organizational defendant the opportunity to access that
statement—and only that binding statement—prior to trial so
that the defendant can seek to have it suppressed and can
attempt to estimate the damage that might be inflicted by it at
trial. This is consistent with and equal to the discovery
allowed to individual defendants under Rule 16(a). The
discovery afforded to the Defendants in this case was in
keeping with this reading, and therefore was not plainly in
error.
III. Jury Instructions on the Clean Water Act
Violations
Defendants raise two primary challenges to the District
Court’s instructions to the jury. First, they argue that the
District Court erred in defining the culpable mental state for a
misdemeanor violation of the CWA as simple negligence,
rather than gross negligence. Second, they argue that the
District Court erred in refusing to include language stating
that a showing of recklessness could not meet the mens rea
for the charged offenses, all of which required that the
Government prove a “knowing” or “willful” violation of the
applicable law. 23 Both arguments fail.
A. Negligence Instruction Under the Clean Water Act
The Defendants were indicted on charges of felony, or
“knowing,” violation of the CWA, 33 U.S.C. § 1319(c)(2)(A)
23
With the exception of the misdemeanor crime under the
Clean Water Act, all of the charged crimes required that the
government show that the Defendant knowingly engaged in
the proscribed conduct.
55
(Counts 12-33). 24 However, late in the trial, the Defendants
requested that the District Court also instruct the jury on the
24
Section 1319(c)(2) reads:
(2) Knowing violations. Any person who—
(A) knowingly violates . . . [this
Act] . . . , or any permit condition
. . . , or any requirement imposed
in a pretreatment program . . . or
in a permit issued under [this Act]
. . . by the Secretary of the Army
or by a State . . . . or
(B) knowingly introduces into a
sewer system or into a publicly
owned treatment works any
pollutant or hazardous substance
which such person knew or
reasonably should have known
could cause personal injury or
property damage or, other than in
compliance with all applicable
Federal, State, or local
requirements or permits, which
causes such treatment works to
violate any effluent limitation or
condition in a permit issued to the
treatment works under [this Act]
by the Administrator or a State;
56
lesser-included misdemeanor offense, which penalizes
negligent violations of the Act, or of any permits issued under
the Act. 25 Specifically, they requested that the District Court
shall be punished by a fine of not
less than $5,000 nor more than
$50,000 per day of violation, or
by imprisonment for not more
than 3 years, or by both.
25
Section 1319(c)(1) reads:
(1) Negligent violations. Any person who—
(A) negligently violates
[provisions of the CWA], or any
permit condition or limitation . . .
in a permit issued under [the
CWA] by the Administrator or by
a State, or any requirement
imposed in a pretreatment . . . ; or
(B) negligently introduces into a
sewer system or into a publicly
owned treatment works any
pollutant or hazardous substance
which such person knew or
reasonably should have known
could cause personal injury or
property damage or, other than in
compliance with all applicable
Federal, State, or local
requirements or permits, which
57
instruct the jury that a “person negligently violates the Clean
Water Act by failing to exercise the degree of care that
someone of ordinary prudence would have exercised in the
same circumstances.” ((J.A. 5629) (Defendants’ proposed
jury instructions (citing United States v. Hanousek, 176 F.3d
1116 (9th Cir. 1999))). The District Court agreed to charge
the jury with the lesser included offense, as it was required to
do. See Keeble v. United States, 412 U.S. 205, 208 (1973)
(“[T]he defendant is entitled to an instruction on a lesser
included offense if the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit
him of the greater.”).
The Court’s instruction to the jury on the misdemeanor
provision of the CWA read, in relevant part, as follows:
[Y]ou may still consider whether
the government has proven
beyond a reasonable doubt that
defendant is guilty of the offense
of negligently violating that Act. .
causes such treatment works to
violate any effluent limitation or
condition in any permit issued to
the treatment works . . . ;
shall be punished by a fine of not
less than $2,500 nor more than
$25,000 per day of violation, or
by imprisonment for not more
than 1 year, or by both.
58
. . “Negligence” may be defined
as a failure to exercise, in the
given circumstances, that degree
of care for the safety of others
which a person of ordinary
prudence would exercise under
similar circumstances. It may be
the doing of an act which the
ordinary prudent person would
not have done, or the failure to do
that which the ordinary prudent
person would have done, under
the circumstances then existing.
(J.A. 7209.) The Court then made it clear that “[t]he Clean
Water Act [was] the only offense in th[e] [i]ndictment that
can be violated negligently. All of the other offenses require
knowledge and/or willfulness.” Id.
Despite having initially requested the lesser offense
charge and recommended the simple negligence language to
the Court, the Defendants now object to the Court’s
instruction on the level of mens rea required to support a
conviction under § 1319(c)(1) of the CWA, because they say
the misdemeanor provision requires a showing of gross,
rather than simple, negligence. They rely on the argument that
the common law, the Model Penal Code and, as of 2004—
after this trial was completed—the Third Circuit Model Jury
Instructions all define criminal negligence to require a
59
showing of gross negligence. 26 In response, the Government
argues that the Defendants are barred from bringing this
challenge under the “invited error doctrine,” which provides
that a “defendant cannot complain on appeal of alleged errors
invited or induced by himself.” United States v. Console, 13
F.3d 641, 660 (3d Cir. 1993) (citation and internal quotation
marks omitted). Because Defendants requested almost the
exact instruction given, and made no request that the Court
instruct on gross negligence, rather than simple negligence,
the Government contends that the Defendants cannot now
attack the District Court’s instructions. Alternatively, the
Government argues—and the Defendants concede—that plain
error review applies, since the Defendants did not challenge
the instructions at trial. The Government asserts that, because
other circuits have stated that simple negligence is the
appropriate standard under the Clean Water Act, the District
Court’s decision to rely on those cases was not plainly
erroneous.
26
The Model Penal Code defines criminal negligence as a
failure to perceive “a substantial and unjustifiable risk” of the
harm that occurred. Model Penal Code, § 2.02(2)(d)
(defining mental state for criminal negligence). The Third
Circuit Model Criminal Jury Charges adopt the Model Penal
Code definition, and via the commentary, note that the gross
negligence instruction “should be used when the federal
crime charged includes negligently as an element of the
offense. This happens most often in regulatory type offenses,
such as violations of environmental laws.” Third Circuit
Model Criminal Jury Charges, § 5.09, Commentary (2004).
60
1. Invited Error Doctrine
Under the invited error doctrine, “[a] defendant cannot
complain on appeal of alleged errors invited or induced by
himself.” Console, 13 F.3d at 660 (citation and internal
quotation marks omitted). “[W]here a defendant makes a
request in favor of certain instructions, he waives the right to
complain of error in such instructions on appeal.” United
States v. Andrews, 681 F.3d 509, 517 n.4 (3d Cir. 2012).
However, we have held that “[w]here a defendant submits
proposed jury instructions in reliance on current law, and on
direct appeal that law is declared constitutionally infirm, we
will not apply the invited error doctrine. Instead, we will
review for plain error.” United States v. W. Indies Transp.,
Inc., 127 F.3d 299, 305 (3d Cir. 1997) (citing Johnson v.
United States, 520 U.S. 461, 465-66 (1997)); Andrews, 681
F.3d at 517 n.4 (describing exception as applying to instances
in which the law relied on by defendant is found to be
“constitutionally problematic”).
It is uncontested in this case that the District Court’s
jury instruction defined the standard for negligence under §
1319(c)(1) of the CWA consistent with the Defendant’s own
proposed language. Compare J.A. 5629 (Defendants’
proposal) with J.A. 7209 (District Court’s instruction). Thus,
in order to except themselves from the application of the
invited error doctrine, which otherwise bars their claim,
Defendants must show that the law they relied on in
proposing their instruction for simple negligence has since
been found to be constitutionally problematic. See Andrews,
681 F.3d at 517 n.4. Defendants argue that they qualify for
this exception and that, in the alternative, special
circumstances warrant departure from the invited error bar.
61
Because we find no qualifying change in the law on this issue
and no such special circumstances, we disagree.
a) Simple Negligence Under the
Clean Water Act
The Clean Water Act does not, itself, define the
appropriate standard for negligence under § 1319(c)(1). Nor
has this Circuit weighed in on this issue.
In proposing the simple negligence instruction to the
District Court, the Defendants relied on the Ninth Circuit’s
holding in Hanousek, which held that the appropriate mens
rea under § 1319(c)(1) was simple, rather than gross,
negligence. 176 F.3d at 1121. The Ninth Circuit began with
the premise that Congress, in drafting statutes, intends to rely
on the ordinary meaning of the words it uses. Id. at 1120.
Noting that Congress, in the CWA’s civil provisions allowing
increased civil penalties against violators who demonstrated
“gross negligence” or “willful misconduct,” 33 U.S.C. §
1321(b)(7)(D), used the phrase “gross negligence” when it
meant to do so, the Hanousek court concluded that Congress
deliberately set forth a lesser standard in § 1319(c)(1). See id.
at 1121. It also noted that Congress passed the Clean Water
Act as a form of public welfare legislation, allowing it to
“render criminal ‘a type of conduct that a reasonable person
should know is subject to stringent public regulation and may
seriously threaten the community’s health or safety.’” Id. at
1121 (quoting Liparota v. United States, 471 U.S. 419, 433
(1985)).
Indeed, other Circuits have since concluded that
simple, rather than gross, negligence is the appropriate mens
rea for a misdemeanor violation of the CWA under
§ 1319(c)(1). In 2005, in United States v. Ortiz, the Tenth
62
Circuit relied on the plain meaning of the statutory text to
determine that the use of “negligently” in § 1319(c)(1)
referred to ordinary negligence—“a failure to exercise the
degree of care that someone of ordinary prudence would have
exercised in the same circumstance.” 427 F.3d 1278, 1283
(10th Cir. 2005). Though it noted that its decision was in
accord with that of the Ninth Circuit in Hanousek, the Tenth
Circuit believed that the plain meaning of the statute was
clear on its face. Id. at 1283. More recently, in United States
v. Pruett, the Fifth Circuit rejected a defendant’s argument
that the district court had erred in defining the appropriate
mens rea under § 1319(c)(1) as ordinary negligence, rather
than gross negligence. 681 F.3d 232, 242 (5th Cir. 2012) (per
curiam). Noting that negligence has a “plain and
unambiguous meaning,” the Fifth Circuit found itself bound
by § 1319(c)(1)(A)’s failure to specifically reference “gross
negligence” as the appropriate mens rea, and therefore
concluded that Ҥ1319(c)(1)(A) requires only proof of
ordinary negligence.” Id. The Pruett court, like the Ninth
Circuit in Hanousek, noted that this plain text reading was
bolstered by the fact that, where Congress had intended to
require gross negligence, it had explicitly stated so in the
plain language of the statute. Id. at 242 n.5.
b) Whether Hanousek has been
Constitutionally Invalidated
The Defendants argue that the reasoning of Hanousek,
and by extension, the reasoning of circuits that have reached
similar conclusions, have been clearly invalidated by the
Supreme Court’s 2007 decision in Safeco Insurance Company
of America v. Burr, 551 U.S. 47 (2007). Thus, they argue, the
invited error doctrine does not apply to bar their argument on
appeal.
63
In Safeco, the Supreme Court held that, under the civil
enforcement provisions of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681n(a), an insurer “willfully”
disregards his notice obligations to consumers if he acts in
“reckless disregard” of those obligations. 551 U.S. at 52.
The defendant insurance companies had argued against
liability since, under the criminal provisions of the FCRA,
willful conduct excludes mere recklessness and that the civil
provisions should be read to include identical limitations. Id.
at 60. The Supreme Court rejected this argument, stating that
“willfully” for the purposes of the civil provisions, was
broader and reached conduct that demonstrated a “reckless
disregard” for its consequences. Id. In reaching that
conclusion, the Court relied heavily on the structure of the
FCRA and, specifically, on the fact that Congress often
explicitly uses modifiers such as “willfully” in the criminal
context in order to “narrow[] the otherwise sufficient intent,
making the government prove something extra, in contrast to
its civil law usage.” Id. It held that, on the facts and statutory
scheme before it, “[t]he vocabulary of the criminal side of
FCRA is consequently beside the point in construing the civil
side.” Id.
Whatever the import of the Safeco holding for future
case law addressing the Clean Water Act, we are not
persuaded that its holding so clearly overrules or undermines
the Ninth Circuit’s decision in Hanousek so as to except the
Defendants from the invited error doctrine. See W. Indies,
127 F.3d at 305 (applying the exception where “on direct
appeal that law is declared constitutionally infirm” (emphasis
added)). Safeco was not a case of constitutional dimension.
It dealt exclusively with the FCRA, and with the structure,
intricacies and legislative history of that statute. Nor did the
64
Court’s analysis indicate that it addressed broader principles
of statutory construction relevant to this case.
The Safeco Court addressed what it found to be the
problems created by using the definition of “willful” conduct
from the stricter, criminal side of the FCRA in order to
interpret that same phrase, as it appeared in the civil, remedial
side of the statute. 551 U.S. at 57 n.9. Noting that “willful”
is a word of many meanings, the Court stated that those
meanings are often different in the criminal and civil
contexts. In the criminal law, it is often intended to heighten
the burden on the prosecution in proving its case while, on the
civil side, “use of the term . . . typically presents neither the
textual nor the substantive reasons” for imposing such a high
burden on the plaintiff. Id.; see also id. at 57 (“[W]here
willfulness is a statutory condition of civil liability, we have
generally taken it to cover not only knowing violations of a
standard, but reckless ones as well.”).
Here, however, we have a different statute, a different
set of circumstances, and a different means of statutory
interpretation. Notably, the Hanousek, Ortiz and Pruett courts
reached their conclusions relying primarily on the plain text
of § 1319(c)(1), in keeping with the canon of construction
which provides that courts must follow the plain and
unambiguous text of the statute when interpreting and
applying criminal laws. Neither Hanousek, nor the cases
which followed, attempted to import a definition from outside
the criminal provision before them. Rather, each court
concluded that negligence has an ordinary and well-accepted
meaning, and that, where Congress intended to alter that
meaning to demand a showing of “gross negligence,” it did so
explicitly. See Pruett, 681 F.3d at 242.
65
Certain portions of the Defendants’ brief also imply
that the Model Penal Code and our own Model Criminal Jury
Instructions indicate that the reasoning of Hanousek has been
invalidated. See Joint Reply 11. The Third Circuit Model
Criminal Jury Instructions—published in 2004, after the
District Court’s instruction to the jury in this case—
recommend an instruction of “gross negligence” for crimes
that include negligence as an element of the offense. See
Third Circuit Model Criminal Jury Charges, § 5.09,
Commentary (2004). However, the Model Instructions are
not-binding on this, or any, court. They thus cannot
invalidate the decisions of this Circuit or others. Moreover,
we note that our recommended instruction at § 5.09 relies on
the Model Penal Code § 2.02(2)(d). While our model charges
may have post-dated the District Court’s handling of this
case, the Model Penal Code existed at the time that the
Defendants drafted their proposed instruction under §
1319(c)(1). Thus, Defendants could easily have relied on the
Model Penal Code in arguing for a higher standard before the
District Court. 27 They did not do so. This is the very
situation that the invited error doctrine is intended to address.
In short, Hanousek, and the cases which followed it,
remain good law. We cannot say that they stand for
27
At argument, the Defendants’ counsel insisted that, because
Hanousek was the only case law available at the time of the
trial, the Defendants could not have “legitimately push[ed]”
for a gross negligence charge under § 1319(c)(1). Oral Arg.
Trans., No. 09-2305, at 32 (Mar. 29, 2012). Of course, the
decisions of other circuits, while persuasive, are not binding
on the district courts in this Circuit.
66
principles which have been “declared constitutionally infirm.”
W. Indies, 127 F.3d at 305; see also Andrews, 681 F.3d at 517
n.4. We therefore conclude that the invited error doctrine
should apply to bar the Defendants’ argument on appeal.
Moreover, even were we to excuse the application of
the invited error doctrine, the Defendants’ argument would
still fail under plain error review. To find plain error in a
court’s jury instructions, we must find that “(1) there was
error; (2) the error was clear or obvious; (3) the error affected
the defendant’s substantial rights; and (4) the error seriously
affected the fairness, integrity, or public reputation of the
legal proceeding.” Tyson, 653 F.3d at 211. An error is “clear
or obvious” only where the applicable law at issue has been
clarified by the time of the appeal. Riley, 621 F.3d at 323.
As stated previously, Defendants cannot demonstrate that
there was a clear error in this case.
The Defendants asserted, at oral argument, that if one
“analyze[s] the later developing law, and you look at it in the
context of what the Model Penal Code was back then,” one
realizes that it should have been plain to the Court that the
simple negligence instruction was in error. Oral Arg. Trans.,
No. 09-2305, at 31, (Mar. 29, 2012). We disagree. At the
time that the District Court issued its instruction, the Ninth
Circuit had concluded that simple negligence was the
appropriate standard of mens rea under § 1319(c)(1) of the
CWA. Hanousek, 176 F.3d 1116. No circuit had held
otherwise. Moreover, since then, relying on textual
interpretation alone, the Tenth Circuit has reached the same
conclusion. See Ortiz, 427 F.3d 1278; see also Pruett, 681
F.3d at 232. Most telling, however, is the fact that this Court
has not yet reached a contrary conclusion. And though we
need not reach this issue today, we note that we are now
67
confronted with a slowly expanding body of law from our
sister circuits which indicates that simple or ordinary
negligence may be the appropriate standard of mens rea under
§ 1319(c)(1). In sum, the supposed error, if any, was
anything but “clear and obvious.” Tyson, 653 F.3d at 211.
Thus, notwithstanding that they invited the error they
now claim was plainly erroneous, the Defendants’ argument
that the District Court erred in defining the appropriate level
of mens rea for negligence under § 1319(c)(1) of the CWA
must fail.
B. The District Court’s Refusal to Define
“Recklessness”
The Defendants argue that the concept of “negligent
conduct” in this case did “double duty” as “it was the basis
for misdemeanor liability under the CWA, and at the same
time, it served as a defense to all of the felony charges,” since
they required a showing of knowing or willful conduct. Joint
Def. Br. 61. To that end, after asking the Court to instruct the
jury on the lesser-included negligence charge under the
CWA, the Defendants requested that the Court caution the
jury that “negligence is not a valid theory of liability” on the
remaining felony counts. (J.A. 5646.) The District Court
granted this request in light of the fact that negligence was the
basis for conviction under § 1319(c)(1)—the misdemeanor
offense under the Clean Water Act.
The Defendants also asked the District Court to
include language instructing the jury on the definition of
recklessness, and explaining that a showing of recklessness
was insufficient to demonstrate knowing conduct. Their
proposed instructions therefore juxtaposed acts done
“knowingly and willfully”—sufficient to render a felony
68
conviction—with acts done “negligently or recklessly.” 28 D.
Ct. Op. 36. Though the District Court initially included the
Defendants’ proposed language on recklessness in its jury
instructions, it deleted that language from later drafts and,
ultimately, from the final version. The Court reasoned that
recklessness was not an element of any of the charged crimes,
28
For example, on the false statement charges, the
Defendants proposed that the Court instruct the jury that
“[t]he false statement at issue must have been a knowing and
willful false statement instead of a mere negligent or reckless
one.” D. Ct. Op. 36 (discussing Defendants’ proposed jury
instructions). For the Clean Water Act violations, the
Defendants proposed the following language:
To find a “knowing” violation of
the Clean Water Act, you must
find . . . that a defendant knew
that he was discharging
petroleum-contaminated
wastewater and knew that the
discharge was in violation of the
authorized limits of the water
permits. Negligence or
recklessness is not sufficient to
satisfy the requirement of a
knowing violation.
Id.
69
and that discussing it risked confusing the jury in an already
complex case and was not essential to the Defendants’ ability
to argue their defense. See J.A. 5768. The Court also raised
concerns that the instruction, were recklessness included,
might actually misstate the applicable law on “willful”
conduct.
The Defendants now challenge the Court’s refusal to
include their recklessness instruction, arguing that the Court’s
instruction that negligence was insufficient to convict on the
felony counts, combined with its refusal to instruct on gross
negligence and recklessness, “erroneously defin[ed]
‘knowingly’ under the felony counts” and “infected the jury’s
understanding and evaluation of [their] mens rea defense.”
Joint Def. Br. 61, 71.
1. Accuracy of the Court’s Instructions on
“Knowing” Conduct
We review the legal accuracy of a district court’s jury
instructions de novo. United States v. Hoffecker, 530 F.3d
137, 173-74 (3d Cir. 2008). Absent an affirmative
misstatement of the applicable law, our review is for an abuse
of discretion. Id. at 174. A trial judge retains broad
discretion in this regard, so long as the court’s instructions
“‘fairly and adequately submit [] the issues in the case to the
jury.’” United States v. Petersen, 622 F.3d 196, 203 (3d Cir.
2010) (alteration in original) (quoting United States v. Hart,
273 F.3d 363, 373 (3d Cir. 2001)).
In its preliminary instructions to the jury, the Court
was clear that “a person acts ‘knowingly’ if that person acts
voluntarily and intentionally and not because of mistake or
accident or other innocent reason.” (J. A. 7149). In
instructing the jury at the close of the trial, the District Court
70
expounded on its earlier definition, providing separate mens
rea charges for each offense in the indictment, and defining
“knowing” conduct in the context of each charge. For
example, in defining “knowingly and willingly” for purposes
of the conspiracy charge under 18 U.S.C. § 371 (Count 1), the
Court explained:
A person acts ‘knowingly’ if that
person acts voluntarily and
intentionally and not because of
mistake or accident or other
innocent reason. . . . It is also the
law that a person cannot be
convicted of conspiracy if the
state of mind of the defendant was
in the nature of negligence. . . . I
repeat that a defendant cannot be
convicted of conspiracy . . . based
on a state of mind that does not
rise to the level of knowing and
willful participation in the
conspiracy. A person acts
‘willfully’ if that person acts
voluntarily and with the specific
intent or purpose to do something
the law forbids or with the
specific intent to omit something
the law requires that person do;
that is to say, with bad purpose
either to disobey or disregard the
law.
(J.A. 7195.) For the instruction on the false statement
offenses, the Court explained that the government must prove
71
that the defendants “acted willfully, with knowledge of the
statement’s falsity,” as “opposed to . . . innocently,
unintentionally, or even negligently.” ((J.A. 7195, 7197-98)
(charging the jury under 18 U.S.C. § 1001 (Counts 2-7))). On
the obstruction of justice charges, it explained that a guilty
verdict was appropriate only if the jury found that the
defendants had acted “knowingly and dishonestly,” “with
specific intent to subvert or undermine” a federal
investigation. ((J.A. 7201) (charging the jury under 18 U.S.C.
§ 1505 (Counts 8-10)); see also J.A. 7203 (requiring a
showing of “intent to impede, obstruct and influence” the
OSHA investigation under 18 U.S.C. § 1519 (Count 11)).
In instructing the jury on the felony CWA violation,
the Court made clear that the evidence had to demonstrate
that the Defendants discharged the wastewater “intentionally
and not as the result of ignorance, mistake or accident;” that
they “knew the nature of the material discharged;” and that
they “knew the discharge was in violation of” their CWA
permits. (J.A. 7208.) Similarly, in instructing the jury on the
CAA counts, the Court instructed the jury that it must find
that the defendants “knew that an amount of waste paint in
excess of 55 gallons per day was being burned in the cupola,”
and that they “knowingly participated in causing that amount
to be burned.” ( J.A. 7213.)
We note at the outset that these proffered instructions
are consistent with our own case law and our recommended
jury instructions concerning “knowing” conduct. See W.
Indies, 127 F.3d at 310 (noting, in the context of the CWA,
that “[a]n act is done knowingly if done voluntarily and
intentionally, and not because of mistake or accident or other
innocent reason.”); see also United States v. Flores, 454 F.3d
149, 160-61 (3d Cir. 2006) (approving similar “knowing”
72
instruction); Third Circuit Model Criminal Jury Instruction
5.02. Indeed, the Defendants do not contest that the
instructions were accurate statements of the law governing
“knowing” conduct. Rather, they argue that the District
Court’s failure to include their additional proposed language
regarding recklessness effectively lowered the standard for
“knowing” conduct in the eyes of the jury.
The Defendants argue that this entitles them to de novo
review. However, fundamentally their argument is that the
District Court’s refusal to include their proposed language
confused the jury and undermined their ability to present their
defense. We review such challenges for an abuse of
discretion. Hoffecker, 530 F.3d at 176.
2. Abuse of Discretion in Rejecting
Proposed Language
A court’s “refusal to give a proposed instruction”
constitutes an abuse of discretion “only if the omitted
instruction is correct, is not substantially covered by other
instructions, and is so important that its omission prejudiced
the defendant." United States v. Piekarsky, 687 F.3d 134, 142
(3d Cir. 2012) (citation and internal quotation marks omitted);
see also Hoffecker, 530 F.3d at 176 (“[A] defendant is
entitled to a theory-of-defense instruction if (1) he proposes a
correct statement of the law; (2) his theory is supported by the
evidence; (3) the theory of defense is not part of the charge;
and (4) the failure to include an instruction of the defendant’s
theory would deny him a fair trial” (citation and internal
quotation marks omitted)). “[A] defendant is not entitled to a
judicial narrative of his version of the facts, even [if] such a
narrative is, in one sense of the phrase, a ‘theory of defense.’”
United States v. Friedman, 658 F.3d 342, 353 (3d Cir. 2011)
73
(quoting Hoffecker, 530 F.3d at 176) (internal quotation
marks omitted).
The Defendants argue that the Court’s instructions, in
defining “knowing” conduct and stating that negligence was
not sufficient to convict under the felony counts, “failed to
define the intermediate mental states between simple
negligence and willful or knowing conduct.” Joint Reply 62.
As a result, they argue, “the jury was forced to find [them]
guilty of the felonies if their conduct rose even minimally
above civil negligence.” Id. at 65. We disagree.
We have never held that a court must define a requisite
mental state by defining and explicitly excluding all of the
mental states that do not meet the threshold. See Friedman,
658 F.3d at 354; Hoffecker, 530 F.3d at 177; cf. Hanousek,
176 F.3d at 1124 (holding under the CWA that the district
court did not err in denying defendant’s request to further
define the culpable mental state by explaining what it did not
include). The jury need only receive those instructions
necessary to its understanding of what conduct will suffice to
support a conviction. Cf. Peterson, 622 F.3d at 203. That
standard is met here. In light of the specificity of each
instruction and the overall effect of these instructions read as
a whole, we can only conclude that it was clear to the jury at
the time of deliberation that only knowing, intentional
conduct would suffice to render a conviction under each of
these felony counts. Anything below that threshold required
an acquittal.
Moreover, even assuming that the Defendants can
demonstrate that their proposed instruction was correct and
supported by the record—assertions called into question by
the District Court’s well-reasoned post-trial memorandum, D.
Ct. Op. 85-86—they cannot substantiate their claims that the
74
Court’s omission of their proposed language foreclosed their
theory of the defense or worked a substantial prejudice
against them. See Piekarsky, 687 F.3d at 142; Hoffecker, 530
F.3d at 177 (considering whether the theory of the defense
was implicit in the charge and whether the omission denied
defendant of a fair trial).
Because the District Court’s instructions made clear
that a showing of anything less than “knowing” or intentional
conduct would not support a felony conviction, any
instruction on recklessness, as requested by the Defendants,
would have been duplicative of the clear mens rea standards
set forth by the District Court. See Hoffecker, 530 F.3d at
177 (noting that instructions on “lack of intent” as a theory of
defense were duplicative of the district court’s instructions
that knowing and willful conduct was required). The
Defendants were thus afforded ample room to argue to the
jury that, “even if certain acts took place, at worse [sic] the
activity was grossly negligent, or even reckless, but was not
intentional,” Joint Def. Br. 65. See Friedman, 658 F.3d at
354; Hoffecker, 530 F.3d at 177; Hanousek, 176 F.3d at 1124.
Recklessness, as a standard of mens rea, was never
explicitly at issue in this case. The District Court decided not
to introduce that concept out of fear of confusing the jury,
because the judge doubted its soundness under the law and
thought it was already addressed adequately by her discussion
of “knowing,” “willful” and “intentional” conduct. That
determination was well within the judge’s discretion. We
therefore affirm the jury instructions provided by the District
Court.
75
IV. Mutually Exclusive Verdicts
Though charged with felony violations of the CWA,
33 U.S.C. § 1319(c)(2), Defendants Prisque and Davidson
were convicted only of lesser-included misdemeanor or
negligent violations under § 1319(c)(1)(A) (Counts 12-27).29
The jury also found that Prisque and Davidson had knowingly
and willfully participated in a conspiracy with the specific
objective of violating the CWA (Count 1). The Defendants
now argue that these two verdicts are mutually exclusive and
that we should thus vacate their conspiracy convictions
(Count 1) on these grounds. We will affirm.
A defendant seeking acquittal for inconsistent verdicts
has a tough row to hoe. Consistency of verdicts is not
necessary in a criminal trial. United States v. Vastine, 363
F.2d 853, 854 (3d Cir. 1996). Rather, where a jury convicts
on one count and acquits on another, in most circumstances,
“the most that can be said . . . is that the verdict shows that . .
. the jury did not speak their real conclusions” on one of the
convictions. Dunn v. United States, 284 U.S. 390, 393 (1932)
(quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir.
1925)). As a matter of law, courts treat this situation as an
instance of juror lenity, undeserving as a basis for overturning
a conviction. Vastine, 363 F.2d at 855 (“That the verdict may
29
Defendant Maury was also charged with violations of the
Clean Water Act (Counts 27, 28-33). Though the jury
convicted him of the lesser charge concerning the December
1999 pumping and spill (Count 27), it convicted him of the
felony counts concerning the pumping of the Number Four
Pit (Counts 28-33).
76
have been the result of compromise, or of a mistake on the
part of the jury, is possible. But verdicts cannot be upset by
tears” into such matters. (citation and internal quotation
marks omitted)); see also Harris v. Rivera, 454 U.S. 339, 346
(1981) (noting “the unreviewable power of a jury to return a
verdict of not guilty for impermissible reasons”).
In United States v. Powell, the Supreme Court
determined that these same principles apply when a jury
convicts on a conspiracy charge, but acquits on the
underlying overt act, 469 U.S. 57, 65 (1984). Conceding that
the rule yields sometimes unsatisfying results, the Court held
that it applied nonetheless. Id. (citing Dunn, 284 U.S. at
393). To argue that such inconsistencies should receive
special treatment, particularly where the district court’s
instructions were correct, “simply misunderstands the nature
of the inconsistent verdict problem.” Id. at 68. “Whether
presented as an insufficient evidence argument, or as an
argument that the acquittal on the predicate offense should
collaterally estop the Government on the compound offense,
the argument necessarily assumes that the acquittal on the
predicate offense was proper—the one the jury ‘really
meant.’” Id. While inconsistent verdicts might be the
product of juror mistake, compromise, or lenity, determining
which requires the sort of impermissible speculation into the
reasoning of a jury’s decision that courts have historically
avoided. Id. at 66. Moreover, the Court wrote, when
inconsistent verdicts present themselves, “‘error,’ in the sense
that the jury has not followed the court’s instructions, most
certainly has occurred, but it is unclear whose ox has been
gored.” Id. at 65. Just as the Government has lost on one
count, a defendant has received the advantage of an acquittal
on the other. Id. at 69.
77
 However, though Powell explicitly foreclosed a
defendant’s ability to challenge an inconsistent verdict
involving a conviction of a conspiracy and an acquittal on a
predicate act, the Court stated in a footnote that nothing in
that decision was intended to decide the “proper resolution of
a situation where a defendant is convicted of two crimes,
where a guilty verdict on one count logically excludes a
finding of guilt on the other.” Id. at 69 n.8 (citing United
States v. Daigle, 149 F. Supp. 409 (D.D.C. 1957)). 30
Since Powell, this Circuit has had two occasions to
determine the meaning of the Supreme Court’s footnote in
Powell. In United States v. Gross, we were confronted with a
defendant who challenged a jury verdict that acquitted him of
knowingly causing the filing of a false statement with the
Securities and Exchange Commission, but convicted him of
insider trading and mail fraud. 961 F.2d 1097 (3d Cir. 1992).
The defendant argued that Powell did not apply, since in his
case the two verdicts both involved the same mental state:
“knowingly and willfully.” Id. at 1106-07. We disagreed,
30
In Daigle, the district court invalidated a jury’s guilty
verdict for larceny when the jury also convicted the defendant
of embezzlement. Because embezzlement involves the
conversion of property that a defendant rightfully had in his
possession, but did not own, and larceny involves the carrying
away of a good that the defendant had no right to possess in
the first place, the two convictions could not be reconciled.
The district court therefore struck the larceny verdict, stating
that “where a guilty verdict on one count negatives some fact
essential to a finding of guilty on a second count,” the two
verdicts cannot both stand. Id. at 414.
78
noting that the verdicts were not necessarily inconsistent,
since a jury could have decided to acquit because one element
of the acquitted crime was not supported by sufficient
evidence, even if the knowledge requirement was satisfied as
to both. Id. at 1106 (“For example, . . . the government may
have failed to make the required showing that [the defendant]
‘caused’ the false statements to be filed.”). We made clear
that we interpreted Powell’s exception to narrowly apply to
only “those situations where a jury has convicted a defendant
of two crimes and those convictions are mutually
exclusive”—or, put differently, where the defendant was
“convicted of two crimes, at least one of which he could not
have committed.” Id. at 1107.
Several years later, in Buehl v. Vaughn, we relied on
Gross for the proposition that “logically incompatible guilty
verdicts may not stand” in considering the claims of a habeas
petitioner who argued that his trial counsel had been
ineffective in failing to object to purportedly inconsistent
verdicts. 166 F.3d 163, 178 n.11 (3d Cir. 1999) (Alito, J.).
The petitioner had been charged with first-degree murder,
third-degree murder and involuntary manslaughter, all based
on the same conduct. Id. at 177. The jury convicted the
Defendant on all counts, and the petitioner argued on appeal
that this demonstrated that the jury had been confused as to
what level of mens rea was supported by the evidence. Id. at
177-78. Thus, the Buehl court considered whether, under
Gross and Powell, a defendant could argue that two
convictions based on the same conduct and same evidence
could be “logically inconsistent” where one was essentially a
lesser-included offense of the other. We held that he could
not because, “although involuntary manslaughter requires
only recklessness or gross negligence, that element may be
satisfied by proof that the defendant intentionally killed the
79
decedent, as the first degree murder statute requires.” Id. at
179 (internal footnote omitted); see also id. at 178 (quoting
Masoner v. Thurman, 996 F.2d 1003, 1005 (9th Cir. 1993) for
the proposition that a verdict will be upheld if “based on the
evidence presented to the jury[,] any rational fact finder could
have found a consistent set of facts supporting both
convictions”).
Therefore, in light of Powell, as explicated in Gross
and Buehl, a defendant may only challenge dual guilty
verdicts that are inherently and fundamentally at odds with
one another. Or, to put it differently, a conviction as to one of
the crimes must negate an element of the other. Moreover,
the rule remains that, under Dunn, a defendant cannot
challenge inconsistent jury verdicts if he was acquitted on one
count and convicted on another. With these principles in
mind, it is difficult to see how Defendants Prisque and
Davidson can succeed with their argument.
The jury found Prisque and Davidson guilty of
multiple objectives underlying the conspiracy charged in
Count 1 of the indictment. In addition to the negligence
charge under the CWA, the jury also found Davidson guilty
of knowingly making materially false statements to NJDEP
investigators following the December 1999 oil spill. Prisque
was found to have committed every offense charged as an
objective of the conspiracy. Thus, even were we to find some
degree of inconsistency between the conviction under
§1319(c)(1) of the CWA and the conspiracy under 18 U.S.C.
§ 371, the conspiracy conviction could still stand based on the
jury’s verdict on the remaining underlying offenses. When a
defendant is charged with a multi-object conspiracy, the
conviction will stand so long as the verdict as to any one of
the underlying objectives of the conspiracy is sound. See
80
United States v. Navarro, 145 F.3d 580, 590-91 (3d Cir.
1998).
Even were we to ignore this fatal flaw in the
Defendants’ argument, the argument would still fail. Insofar
as Prisque and Davidson attempt to argue that their acquittal
on the felony charge under the Clean Water Act is
inconsistent with their conviction for the conspiracy, that
argument is foreclosed by Powell, supra; accord United
States v. Mathis, 579 F.2d 415, 418 (7th Cir. 1978) (“Any
arguable inconsistency arises not from the verdict of guilty of
unarmed assault, but rather from the implicit verdict of not
guilty of the offense of assault with a deadly or dangerous
weapon.”). To the extent their argument is that the conviction
for negligently violating the CWA under § 1319(c)(1) is
inconsistent with the conspiracy conviction, one need only
compare the elements of these crimes to see that there is no
necessary inconsistency between the two. Though the CWA
instructions here required the jury to find a lower mens rea,
the “failure to exercise in the circumstances that degree of
care for the safety of others which a person of ordinary
prudence would exercise under similar circumstances,” our
case law indicates that a showing of a higher, “knowing”
violation would suffice to meet this requirement. See Buehl,
166 F.3d at 179-80. Alternatively, the conspiracy itself could
predate the actual negligent violation, or vice versa.
Evanchyk v. Stewart, 340 F.3d 933, 942 (9th Cir. 2003)
(relying on this logic to uphold dueling guilty verdicts).
Defendants attempt to avoid this seemingly foregone
conclusion by arguing that, in this case, unlike in Buehl,
“conspiracy and the substantive CWA violations were not a
unitary offense,” but instead were “different counts, . . .
involved different facts, different elements, and entirely
81
different statutory schemes.” Davidson Br. at 24. But these
arguments neither render Buehl inapplicable nor help the
Defendants’ case. Instead, they serve to emphasize why the
two convictions here—the first of negligent violation of the
CWA, and the second, of knowingly participating in a
conspiracy—are not mutually exclusive. To hold otherwise
would require the very sort of speculation and hypothesizing
about the jury’s verdict that our case law clearly forbids.
Thus, here, as in Powell, Defendants have been “given
the benefit of . . . acquittal on the counts on which [they were]
acquitted, and it is neither irrational nor illogical to require
[them] to accept the burden of conviction on the counts on
which the jury convicted.” Powell, 469 U.S. at 69; see also
Vastine, 363 F.2d at 854 (upholding conviction on conspiracy
despite acquittal of defendants on the underlying substantive
offenses). Accordingly, we see no error in the District
Court’s handling of this issue.
V. Conclusion
Having carefully considered the Defendants’ various
remaining arguments, we find them to be without merit. 31
31
We note that the Company filed a letter, pursuant to Rule
28(j) of the Federal Rules of Appellate Procedure notifying us
of the Supreme Court’s recent decision in Southern Union
Co. v. United States, 132 S. Ct. 2344 (2012). We find that
case inapplicable to the Company’s challenge to the criminal
penalties imposed by the District Court.
82
We therefore affirm the final convictions, judgments and
sentences of the District Court, in all respects.
83