[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2007
No. 05-17019 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00199-CR-2-RBP-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
versus
CHARLES BARRY ROBISON,
Defendant,
MCWANE, INC.,
Defendant-Appellant,
JAMES DELK,
MICHAEL DEVINE,
Defendants-Appellants-
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
______________________
(October 24, 2007)
Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER,*
District Judge.
HULL, Circuit Judge:
Defendants McWane, Inc. (“McWane”), James Delk (“Delk”), and Michael
Devine (“Devine”) appeal their convictions for their roles in a Clean Water Act
(“CWA”) conspiracy (Count 1), as well as their convictions for substantive
violations of the CWA (Counts 2, 3, 5, 7-19, 21, and 22).1 After the defendants’
convictions, the United States Supreme Court addressed how to define “navigable
waters” under the CWA in Rapanos v. United States, __ U.S. __, 126 S. Ct. 2208
(2006). The definition of “navigable waters” in the jury charge in this case was
erroneous under Rapanos, and the government has not shown that the error was
harmless. Accordingly, we must vacate defendants’ CWA convictions and remand
the case for a new trial.
McWane also appeals its conviction for making a false statement to the
Environmental Protection Agency (“EPA”) (Count 24).2 Because McWane was
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
1
Counts 12-19, 21, and 22 of the superseding indictment only charged McWane and
Delk, while Counts 2, 3, 5, and 7-11 charged McWane, Delk, and Devine. Before the case was
submitted to the jury, the government dismissed Count 11 as to Devine.
2
Count 24—the false statement count in the superseding indictment—was ultimately
submitted to the jury as Count 23. For consistency, we refer to the false statement count
throughout this opinion as “Count 24.”
2
entitled to a judgment of acquittal on that charge, we vacate McWane’s conviction
on Count 24 as well.
I. BACKGROUND
A. Defendants
Defendant McWane is a large manufacturer of cast iron pipe, flanges,
valves, and fire hydrants. McWane has numerous manufacturing plants. This case
concerns McWane’s plant in Birmingham, Alabama (hereinafter “the plant” or
“McWane’s plant”).
Defendants Delk and Devine, along with Charles “Barry” Robison and
Donald Harbin, worked in management positions at McWane’s plant at all relevant
times.
Robison was McWane’s Vice President of Environmental Affairs.
Defendant Delk was the General Manager of the plant. Defendant Devine was the
Plant Manager, and he reported to defendant Delk. Harbin was the Maintenance
Manager, and he reported to defendant Devine.3
B. Avondale Creek
The CWA violations at issue involve McWane’s discharge of pollutants into
3
When defendant Delk was hired as the General Manager—in 1998—Harbin was the
Plant Manager. Defendant Delk demoted Harbin to the Maintenance Manager and hired
defendant Devine to replace Harbin as the Plant Manager.
3
Avondale Creek, which is adjacent to McWane’s plant.
Avondale Creek flows into another creek called Village Creek. In turn,
Village Creek flows approximately twenty-eight miles into and through Bayview
Lake, which was created by damming Village Creek. On the other side of
Bayview Lake, Village Creek becomes Locust Fork, and Locust Fork flows
approximately twenty miles out of Bayview Lake before it flows into the Black
Warrior River.
At trial, the government presented testimony, inter alia, from an EPA
investigator (Fritz Wagoner) that Avondale Creek is a perennial stream with a
“continuous uninterrupted flow” into Village Creek. Wagoner testified that there is
“a continuous uninterrupted flow” not only from Avondale Creek into Village
Creek, but also from Village Creek through Bayview Lake and into Locust Fork,
and ultimately into the Black Warrior River.
On cross-examination, Wagoner admitted that he did not conduct a “tracer
test” to check the flow of Avondale Creek into the Black Warrior River. Wagoner
explained that a “tracer test” is a procedure whereby a “concentrated dye” is put
into a body of water and tracked to determine “where that water body flows.”
Wagoner conducted no tests to measure the volume of water discharged from
Avondale Creek or between the bodies of water that connect Avondale Creek and
4
the Black Warrior River. He conceded that the water level in Avondale Creek was
so low that he was able to walk through Avondale Creek all the way down to its
intersection with Village Creek. Furthermore, Wagoner testified that Village
Creek is dammed (creating Bayview Lake) and that the dam runs “all the way
across Village Creek.” Wagoner’s only site visit was in April 2005. This was
more than four years after the violations at issue in this case.
The government presented no evidence, through Wagoner or otherwise, of
the chemical, physical, or biological effect that Avondale Creek’s waters had or
might have had on the Black Warrior River. Indeed, the district court observed
that there was no evidence of any actual harm or injury to the Black Warrior River.
C. Defendants’ conduct
McWane’s plant manufactures eighteen-foot and twenty-foot lengths of
pipe. McWane utilizes a great deal of water in its pipe manufacturing processes.
The water that runs out of the pipe manufacturing machines is generally referred to
as “process wastewater.” The evidence at trial established that process wastewater
accumulated in large amounts in basements under McWane’s “eighteen-foot
machine” and “twenty-foot machine.” The process wastewater contained various
contaminants, including hydraulic oil, excess iron, and trash.
The CWA authorizes the EPA, and states with programs approved by the
5
EPA, to issue permits for the discharge of pollutants, in compliance with the
National Pollutant Discharge Elimination Systems (“NPDES”). These permits are
known as NPDES permits. The Alabama Department of Environmental
Management (“ADEM”) administers the NPDES program in Alabama.
McWane obtained an NPDES permit from ADEM that authorized McWane
to discharge some process wastewater. Specifically, McWane’s NPDES permit
allowed it to discharge some treated process wastewater into Avondale Creek, but
only from one discharge point at the plant (“DSN001”), and only if other discharge
limits and bookkeeping requirements were met. McWane’s NPDES permit also
allowed it to discharge “storm water runoff from industrial activity” from other
discharge points at the plant (“DSN002” through “DSN020”). McWane, however,
was not permitted to discharge process wastewater from any point at the plant
other than DSN001.
At trial, the government established that McWane discharged process
wastewater into Avondale Creek from discharge points other than DSN001, in
violation of the express provisions of its NPDES permit. Numerous former
McWane employees testified that the plant was in disarray by the late 1990s and
that process wastewater was all over the plant. Process wastewater overflowed on
a regular basis when it was pumped from the eighteen-foot machine and twenty-
6
foot machine basements. The process wastewater would then spill into the storm
water runoff discharge points (DSN002-DSN020) and flow into Avondale Creek.
One McWane employee described the extent of the process wastewater
discharges as “[e]nough to drown a small village.” Indeed, multiple witnesses
testified that process wastewater from McWane’s plant was regularly discharged
into Avondale Creek. Harbin, for instance, testified that between May 1999 and
January 2001, process wastewater was discharged into storm drains fifteen out of
every twenty operating days per month. Other witnesses testified that the plant’s
basements were pumped (which led to the corresponding noncompliant wastewater
discharge) every Friday night.
McWane’s NPDES permit listed defendant Delk as one of two people with
the authority and responsibility to prevent and abate violations of ADEM’s
regulations. Trial testimony established that defendant Delk was “everybody’s
boss” at the plant, and that on multiple occasions, defendant Delk ordered McWane
employees to pump process wastewater from the basements, despite knowing that
the wastewater had nowhere to go but Avondale Creek. Further testimony
established that defendant Delk watched as wastewater spilled or was pumped into
the center courtyard of the plant, and that Delk once instructed Harbin to falsify a
water sample for inspectors.
7
Likewise, defendant Devine also ordered McWane employees to violate the
NPDES permit. One former employee, Troy Venable, testified that he overheard a
conversation between defendant Devine and a McWane maintenance foreman in
which Devine said that it would be “easier” for McWane to pay off its fines than to
pay $70,000 to fix one of the sources of the problem. There was also testimony
about two separate incidents in which defendant Devine ordered that excess
process wastewater be pumped from the basements despite there being no
appropriate place to put the water, and told employees that he did not care how the
water got out of the plant as long as it was gone.
Additionally, McWane’s former safety and personnel director, John Walsh,
testified that on one occasion, an ADEM inspector came to inquire about pollutant
discharges from the storm water discharge runoff points. According to Walsh,
defendant Devine directed him to lie to the ADEM inspector and tell the inspector
that the cause of the discharges was McWane’s test-flushing of fire hydrants.
Walsh testified that he complied with defendant Devine’s instructions because he
“was told to” and feared that if he did not, he would lose his job.
The EPA inspected the plant in April 2000, and subsequently required
McWane to submit plant inspection reports and other documents concerning the
plant. McWane responded with two separate document productions, on August 17,
8
2000, and September 15, 2000. The document productions were accompanied by
certifications signed by Robison.
D. Indictment
In May 2004, a twenty-five count indictment was issued against McWane,
Delk, Devine, Robison, and Donald Bills (the plant engineer). The indictment was
superseded in July 2004.
Count 1 of the superseding indictment alleged that defendants McWane,
Delk, Devine, Robison, and Bills conspired: (1) to knowingly discharge pollutants
into the waters of the United States in violation of McWane’s NPDES permit and
the CWA; (2) to defraud the United States; (3) to knowingly and willfully make
false statements; and (4) to obstruct justice. Counts 2-11 alleged that defendants
McWane, Delk, and Devine knowingly caused discharges of pollutants from a
storm water outfall (DSN002) into Avondale Creek in each month from May 1999
through February 2000, in violation of McWane’s NPDES permit and the CWA.
Counts 12-22 accused McWane and Delk (but not Devine) of similar NPDES and
CWA violations from March 2000 through January 2001.
Count 23 alleged that McWane, Delk, and Devine knowingly caused
discharges of pollutants from the wastewater outfall (DSN001) on May 26, 1999,
in violation of the maximum limits allowed by McWane’s NPDES permit and the
9
CWA. Count 24 charged McWane and Robison with making false statements to
the EPA on or about August 17, 2000, and September 15, 2000. Finally, Count 25
alleged that McWane obstructed justice by providing false and misleading
information to the EPA regarding its discharge of wastewater.
E. Trial
A jury trial was held in May and June 2005. At the close of the
government’s evidence, the district court: (1) dismissed Bills from the case;4 (2)
dismissed Robison from Count 1 (conspiracy), leaving Robison only in Count 24;
(3) struck three of the four objects of the conspiracy in Count 1, leaving the sole
object of the conspiracy as the knowing discharge of pollutants into the waters of
the United States in violation of the NPDES permit and the CWA; and (4)
dismissed Counts 23 and 25 in their entirety.
On June 10, 2005, the jury returned guilty verdicts on all remaining counts
except Counts 4, 6, and 20. All three appellants here, McWane, Delk, and Devine,
were convicted of conspiracy to violate the CWA (Count 1), as well as multiple
substantive violations of the CWA. McWane, Delk, and Devine were convicted on
Counts 2, 3, 5, and 7-10, and McWane and Delk were also convicted on Counts
11-19, 21, and 22. Additionally, McWane and Robison were convicted of making
4
Bills is not a party to this appeal.
10
a false statement to the EPA (Count 24).5
F. Sentences
On December 5, 2005, the district court sentenced the defendants.
The district court sentenced: (1) Delk to 36 months’ probation (including 6
months of nighttime home detention), and a fine of $90,000;6 (2) Devine to 24
months’ probation (including 3 months of nighttime home detention), and a fine of
$35,000;7 and (3) McWane to 60 months’ probation and a fine of $5 million.8
II. DISCUSSION
The parties’ disagreement as to what constitutes a “navigable water” under
the CWA is at the heart of this appeal.
A. Jury instruction on “navigable waters”
5
Robison is no longer a party to this appeal. Robison initially filed a notice of appeal in
this case, but he dismissed his appeal here as part of his resolution of a separate criminal case in
Utah involving McWane’s violations of the Clean Air Act. See United States v. McWane, Inc.,
No. 2:05-cr-00811 (D. Utah Feb. 8, 2006).
6
Defendant Delk’s base offense level was 6. After a 4-level enhancement for Delk’s
leader/organizer role in the offense and other adjustments, the district court calculated Delk’s
total offense level to be 16. With a criminal history category of I, Delk’s advisory guidelines
range was 21-27 months’ imprisonment.
7
Defendant Devine’s base offense level was 6. After a 3-level enhancement for Devine’s
manager/supervisor role in the offense and other adjustments, the district court calculated
Devine’s total offense level to be 15. With a criminal history category of I, Devine’s advisory
guidelines range was 18-24 months’ imprisonment.
8
The government cross-appeals the sentences of Delk and Devine. Additionally, Delk
and Devine attempt to raise a sentencing issue in their response briefs to the government’s cross-
appeal. Because we vacate Delk’s and Devine’s convictions, we do not address any of the
parties’ sentencing arguments and dismiss the government’s cross-appeal without prejudice.
11
The CWA generally prohibits the discharge of pollutants into “navigable
waters.” See 33 U.S.C. §§ 1311(a), 1362(12). Under the CWA, “navigable
waters” are defined as “the waters of the United States, including the territorial
seas.” Id. § 1362(7). The parties agree that the definition of “navigable waters” is
a key element of the CWA criminal offenses in this case.
Based on the Supreme Court’s Rapanos decision, defendants contend that
Avondale Creek is not a “navigable water” within the meaning of the CWA, and
that the district court erroneously instructed the jury as to the definition of the term
“navigable waters.” The government responds that Avondale Creek’s connection
with the Black Warrior River and/or Village Creek renders Avondale Creek a
“navigable water” within the meaning of the CWA.9
The problem in this case arises because the district court charged the jury
that “navigable waters” include “any stream which may eventually flow into a
navigable stream or river,” and that such stream may be man-made and flow “only
intermittently,” as follows:
9
We review the legal correctness of the district court’s “navigable waters” jury
instruction de novo. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We reject
the government’s argument that defendants failed to properly preserve an objection to the
“navigable waters” jury instruction. Defendants repeatedly made clear to the district court their
position as to the appropriate definition of a “navigable water” under the CWA. See Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). Thus, our review is de novo,
not for plain error. Under de novo review, if we determine that there was error, we still must
consider whether the government has carried its burden to show that the error was harmless. See
Fed. R. Crim. P. 52(a).
12
As to Counts 2 through 22, a “water of the United States” includes
any stream which may eventually flow into a navigable stream or
river. The Government does not have to prove that the stream into
which the discharge is made is itself navigable in fact. What it must
prove is that the stream into which the discharge is made may
eventually flow directly or indirectly into a navigable stream or river.
The stream into which the discharge is made may be a natural or
manmade [stream] and may flow continuously or only intermittently,
as long as it may eventually flow directly or indirectly into a
navigable stream or river whose use affects interstate commerce.
A navigable stream or river is defined as one that is used or is
susceptible of being used in its ordinary condition, as a highway for
interstate commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.
(Emphasis added.)
The district court’s jury charge was based, inter alia, on this Court’s decision
in United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997). In Eidson, we
observed: (1) that Congress chose to define broadly the waters covered by the
CWA; (2) that it was “well established that Congress intended to regulate the
discharge of pollutants into all waters that may eventually lead to waters affecting
interstate commerce”; and (3) that courts repeatedly had recognized that tributaries
to waters affecting interstate commerce—even when man-made or intermittently
flowing—were subject to the CWA. Eidson, 108 F.3d at 1341-42.
However, the defendants’ trial occurred before Rapanos, and the Supreme
Court indicated in Rapanos that Eidson’s “expansive definition” of “‘tributaries’”
13
is no longer good law. Rapanos, __ U.S. at __, 126 S. Ct. at 2217 (plurality
opinion) (citing, inter alia, Eidson, 108 F.3d at 1340-42). Even the government
here tacitly concedes that the jury charge given by the district court in this case was
erroneous to some extent in light of Rapanos. See Resp. Br. of United States, at
24-25. Nevertheless, the government contends that any error in the jury charge
was harmless and does not require reversal.
Accordingly, we consider Rapanos in detail in order to determine exactly
how and to what extent the district court’s “navigable waters” instruction was
erroneous. We then consider whether the incorrect jury instruction was harmless
error.
B. Rapanos and the proper definition of “navigable waters”
In Rapanos, which involved two consolidated cases, the Supreme Court
addressed how the statutory term “navigable waters” should be construed under the
CWA. The consolidated cases involved the discharge of pollutants into four
separate wetlands. See Rapanos, __ U.S. at __, 126 S. Ct. at 2219 (plurality
opinion). The wetlands at issue varied in terms of their precise connections to
navigable-in-fact bodies of water, but the wetlands were all “near ditches or man-
made drains that eventually empt[ied] into traditional navigable waters.” Id. In the
case of three of the four wetlands, it was “not clear whether the connections
14
between the[] wetlands and the nearby drains and ditches [were] continuous or
intermittent, or whether the nearby drains and ditches contain[ed] continuous or
merely occasional flows of water.” Id. In the case of the fourth wetland, the ditch
running alongside the wetland was “separated from it by a 4-foot-wide man-made
berm” that was “largely or entirely impermeable to water.” Id.
In both cases, the Sixth Circuit concluded that the wetlands were covered by
the CWA. Id. The Supreme Court consolidated the cases and granted certiorari to
decide whether the wetlands actually constituted “waters of the United States”
under the CWA. Id. at __, 126 S. Ct. at 2220.
The entire Supreme Court agreed that the term “navigable waters”
encompasses something more than traditionally “navigable-in-fact” waters. Id. at
__, 126 S. Ct. at 2220 (plurality opinion); id. at __, 126 S. Ct. at 2241 (Kennedy, J.,
concurring); id. at __, 126 S. Ct. at 2255 (Stevens, J., dissenting). However, five
Justices concluded that remand was necessary for consideration of whether the
wetlands at issue were “navigable waters” covered by the CWA, and whether the
EPA and the Army Corps of Engineers had impermissibly extended their
regulatory authority under the CWA. Id. at __, 126 S. Ct. at 2220 (plurality
opinion); id. at __, 126 S. Ct. at 2235-36 (Roberts, C.J., concurring); id. at __, 126
S. Ct. at 2236, 2241, 2251-52 (Kennedy, J., concurring).
15
Despite agreeing that the remand was necessary for further consideration of
whether the wetlands at issue were covered by the CWA, the five-Justice majority
fractured with regard to the proper definition of the term “navigable waters.”
Justice Scalia wrote for a four-justice plurality, while Justice Kennedy provided the
fifth vote for reversal. Justice Stevens dissented, joined by the remaining three
Justices.10
1. Justice Scalia’s plurality opinion
Although Justice Scalia’s plurality opinion recognized that the statutory term
“‘navigable waters’ includes something more than traditional navigable waters,”
the plurality also emphasized that “the qualifier ‘navigable’ is not devoid of
significance.” Id. at __, 126 S. Ct. at 2220 (plurality opinion). According to the
plurality, “navigable waters” include only “relatively permanent, standing or
continuously flowing bodies of water ‘forming geographic features’ that are
described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’” Id.
at __, 126 S. Ct. at 2225 (alteration in original) (citation omitted). The plurality
emphasized that bodies of water such as streams, oceans, rivers, and lakes (i.e.,
10
Chief Justice Roberts filed a short separate concurrence but also joined Justice Scalia’s
plurality opinion, along with Justices Thomas and Alito; Justice Breyer filed a short separate
dissent but also joined Justice Stevens’s dissenting opinion, along with Justices Souter and
Ginsburg. Thus, the three “main” opinions in Rapanos are Justice Scalia’s plurality opinion
(four Justices); Justice Kennedy’s concurring opinion (one Justice); and Justice Stevens’s
dissenting opinion (four Justices).
16
“navigable waters”) are “continuously present, fixed bodies of water, as opposed to
ordinarily dry channels through which water occasionally or intermittently flows.”
Id. at __, 126 S. Ct. at 2221.
Moreover, while the plurality was of the view that “relatively continuous
flow is a necessary condition for qualification as a ‘water,’” relatively continuous
flow, in and of itself, is “not an adequate condition” under the plurality’s test. Id.
at __ n.7, 126 S. Ct. at 2223 n.7.
The plurality also applied its test to the specific wetlands at issue in
Rapanos. Noting that under prior precedent wetlands “adjacent to” navigable
bodies of water were considered “waters of the United States,” the plurality stated
that “only those wetlands with a continuous surface connection to bodies that are
‘waters of the United States’ in their own right, so that there is no clear
demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and
covered by the Act.” Id. at __, 126 S. Ct. at 2226 (second emphasis added).
“Wetlands with only an intermittent, physically remote hydrologic connection to
‘waters of the United States’ . . . lack the necessary connection to covered waters . .
. .” Id. To summarize, the plurality’s test for “establishing that wetlands . . . are
covered by the Act requires two findings: First, that the adjacent channel [to the
wetland] contains ‘a water of the United States,’ (i.e., a relatively permanent body
17
of water connected to traditional interstate navigable waters); and second, that the
wetland has a continuous surface connection with that water, making it difficult to
determine where the ‘water’ ends and the ‘wetland’ begins.” Id. at __, 126 S. Ct. at
2227 (alteration omitted).
The plurality also noted that although it did not reach the issue, there was
“no reason to suppose that [its] construction . . . [would] significantly affect[] the
enforcement” of the CWA, in that “lower courts . . . have not characterized
intermittent channels as ‘waters of the United States.’” Id. The plurality observed
that “from the time of the CWA’s enactment, lower courts have held that the
discharge into intermittent channels of any pollutant that naturally washes
downstream likely violates [the CWA], even if the pollutants discharged . . . do not
emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.”
Id. (citations omitted).
2. Justice Kennedy’s concurrence
Justice Kennedy supplied the fifth vote for reversal and agreed with the
plurality that the Sixth Circuit had failed to apply the proper test as to what
constitutes a “navigable water.” See id. at __, 126 S. Ct. at 2236 (Kennedy, J.,
concurring) (stating that the Sixth Circuit “recognized the [proper] test’s
applicability,” but failed to apply it correctly). However, Justice Kennedy
18
disagreed with the plurality over the substance of the proper test.
According to Justice Kennedy, the Supreme Court actually established the
test for determining whether a “water or wetland” constitutes a “navigable water”
under the CWA five years prior to Rapanos, in Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S. Ct.
675 (2001) (“SWANCC”). See Rapanos, __ U.S. at __, 126 S. Ct. at 2236
(Kennedy, J., concurring). Citing SWANCC, Justice Kennedy wrote in his
Rapanos concurrence that the applicable test for determining whether or not a
“water or wetland” is “navigable” is the so-called “significant nexus” test. See id.
at __, 126 S. Ct. at 2236 (Kennedy, J., concurring) (citing SWANCC, 531 U.S. at
167, 172, 121 S. Ct. at 680, 683). In Justice Kennedy’s view, a “water or wetland”
can only be “navigable” under the CWA if it possesses a ‘“significant nexus’ to
waters that are or were navigable in fact or that could reasonably be so made.”
Id.11
Because Rapanos was a wetlands case, Justice Kennedy’s concurrence then
11
In reviewing the Supreme Court’s prior precedent, Justice Kennedy also noted: “Taken
together these cases establish that in some instances . . . the connection between a nonnavigable
water or wetland and a navigable water may be so close, or potentially so close, that the Corps
may deem the water or wetland a “navigable water” under the Act. In other instances, as
exemplified by SWANCC, there may be little or no connection. Absent a significant nexus [in
these latter instances], jurisdiction under the Act is lacking. Because neither the plurality or the
dissent addresses the nexus requirement, this separate opinion, in my respectful view, is
necessary.” Rapanos, __ U.S. at __, 126 S. Ct. at 2241 (Kennedy, J., concurring).
19
focused on when a wetland meets the “significant nexus” test. A wetland meets the
“significant nexus” test if, “either alone or in combination with similarly situated
lands in the region, [it] significantly affect[s] the chemical, physical, and biological
integrity of other covered waters more readily understood as ‘navigable.’” Id. at
__, 126 S. Ct. at 2248. “When, in contrast, wetlands’ effects on water quality are
speculative or insubstantial, they fall outside the zone fairly encompassed by the
statutory term ‘navigable waters.’” Id.
Justice Kennedy also emphasized that a “mere hydrologic connection”
between a wetland and a navigable-in-fact body of water would not necessarily be
sufficiently substantial to meet his “significant nexus” test. Id. at __, 126 S. Ct. at
2250-51. According to Justice Kennedy, a “mere hydrologic connection . . . may
be too insubstantial for the hydrologic linkage to establish the required nexus with
navigable waters as traditionally understood.” Id. at __, 126 S. Ct. at 2251. Under
Justice Kennedy’s test, the “required nexus must be assessed in terms of the
statute’s goals and purposes,” which are to “‘restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.’” Id. at __, 126 S. Ct. at
2248 (citation omitted).
3. Justice Stevens’s dissent
Justice Stevens, writing for himself and three other Justices, would have
20
upheld the Army Corps of Engineers’ and EPA’s broad interpretation of CWA
jurisdiction and concluded that the wetlands at issue in Rapanos were “navigable
waters,” i.e., “waters of the United States.” Id. at __, 126 S. Ct. at 2252 (Stevens,
J., dissenting).
As aptly noted by Chief Justice Roberts in his concurrence, neither Justice
Scalia’s plurality opinion, Justice Kennedy’s concurrence, nor Justice Stevens’s
dissent “command[ed] a majority of the Court on precisely how to read
Congress’[s] limits on the reach” of the CWA. Id. at __, 126 S. Ct. at 2236
(Roberts, C.J., concurring). In addition, Justice Stevens’s dissent noted that “while
both the plurality and Justice Kennedy agree that there must be a remand for
further proceedings, their respective opinions define different tests to be applied on
remand.” Id. at __, 126 S. Ct. at 2265 (Stevens, J., dissenting).
Justice Stevens’s dissent then stated that the four Justices joining his opinion
would uphold CWA jurisdiction in all cases in which either the plurality’s or
Justice Kennedy’s test is met, as follows:
Given that all four Justices who have joined this opinion would
uphold the Corps’ jurisdiction in both of these cases—and in all other
cases in which either the plurality’s or Justice Kennedy’s test is
satisfied—on remand each of the judgments should be reinstated if
either of those tests is met.
Id. (first emphasis added).
21
C. The governing rule of Rapanos
Given the various opinions, the parties dispute what constitutes the
governing definition of “navigable waters” under Rapanos. The defendants argue
that only Justice Kennedy’s concurrence (i.e., the “significant nexus” test) applies.
The government responds that if Avondale Creek can be shown to satisfy either the
plurality’s test or Justice Kennedy’s test, that is sufficient to sustain CWA
jurisdiction in this case.
The circuits likewise are split on the question of which Rapanos opinion
provides the holding. Both the Seventh and the Ninth Circuits concluded that
Justice Kennedy’s concurrence controls and adopted the “significant nexus” test.
See N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.
2007) (“River Watch II”);12 United States v. Gerke Excavating, Inc., 464 F.3d 723,
724-25 (7th Cir. 2006), cert. denied, __ U.S. __, __ S. Ct. __, 76 U.S.L.W. 3156
12
The Ninth Circuit’s River Watch case resulted in two opinions. In Northern California
River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006) (“River Watch I”), the issue
was whether a rock quarry pit called “Basalt Pond” was subject to the CWA. Basalt Pond
contained wetlands that were adjacent to a navigable-in-fact river. Applying Justice Kennedy’s
test, the Ninth Circuit concluded that “Basalt Pond and its wetlands possess . . . a ‘significant
nexus’ to waters that are navigable in fact, because the Pond waters seep directly into the
navigable Russian River.” River Watch I, 457 F.3d at 1025; see also S.F. Baykeeper v. Cargill
Salt Div., 481 F.3d 700, 707 (9th Cir. 2007) (stating that Justice Kennedy’s Rapanos
concurrence is “controlling”).
Subsequently, in August 2007, the Ninth Circuit withdrew River Watch I and substituted
an opinion that contained some additional explanation as to why Justice Kennedy’s Rapanos test
was “controlling . . . for [the River Watch] case” as well as for “almost all cases.” River Watch
II, 496 F.3d at 999-1000.
22
(U.S. Oct. 1, 2007) (No. 06-1331). The First Circuit, on the other hand, concluded
that because the dissenting Rapanos Justices would find jurisdiction under either
Justice Scalia’s plurality test or Justice Kennedy’s “significant nexus” test, “‘the
United States may elect to prove jurisdiction under either test.’” United States v.
Johnson, 467 F.3d 56, 64 (1st Cir. 2006) (citation omitted), cert. denied, __ U.S.
__, __ S. Ct. __, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9). Because the
Ninth Circuit in River Watch II expressly adopted the Seventh Circuit’s reasoning
in Gerke, we review Gerke in detail, and then Johnson.
In Gerke, the Seventh Circuit, faced with a Supreme Court remand “in light
of Rapanos,” addressed which Rapanos opinion governed the further stages of the
case before it. Gerke, 464 F.3d at 724-25. Citing Marks v. United States, 430 U.S.
188, 97 S. Ct. 990 (1977), the Seventh Circuit first noted that when a majority of
the Supreme Court agrees only on the result of a case, lower courts “are to follow
the narrowest ground to which a majority of the Justices would have assented if
forced to choose.” Gerke, 464 F.3d at 724. The Gerke court explained that it
found Justice Kennedy’s test to be “narrower (so far as reining in federal authority
is concerned) . . . in most cases, though not in all . . . .” Id. at 724-25.
In support, the Gerke court noted that “[t]he plurality Justices [also] thought
that Justice Kennedy’s ground for reversing was narrower than their own, because
23
they concluded their extensive and in places harsh criticism of the concurrence by
saying that ‘Justice Kennedy tips a wink at the agency [i.e., the Corps of
Engineers], inviting it to try its same expansive reading again.’” Id. at 724
(quoting Rapanos, __ U.S. at __ n.15, 126 S. Ct. at 2234 n.15 (plurality opinion)).
In that regard, the Gerke court observed that Justice Kennedy’s concurrence
“expressly rejected two ‘limitations’ imposed by the plurality on federal authority
over wetlands” under the CWA. Id. (citation omitted).
The Gerke court surmised that in some wetlands cases Justice Kennedy
would vote against finding CWA jurisdiction due to the lack of a “significant
nexus,” even when the plurality and the dissenting Justices would vote for CWA
jurisdiction due to a “surface-water connection” between “wetlands (however
remote)” and “a continuously flowing stream (however small).” Id. at 725
(quotation marks and citation omitted). However, the Gerke court dismissed such
instances as “rare” and concluded that, “as a practical matter,” Justice Kennedy’s
concurrence provides “the least common denominator.” Id.
In contrast, the First Circuit in Johnson determined that it would uphold
CWA jurisdiction in those cases in which either Justice Scalia’s test or Justice
Kennedy’s test was satisfied. Johnson, 467 F.3d at 64-65. Since—per Justice
Stevens’s dissent—the four dissenting Justices in Rapanos would vote to uphold
24
CWA jurisdiction whenever either of the two tests were met, the First Circuit
reasoned that the “simple and pragmatic” way to determine the governing standard
was to find CWA jurisdiction in either situation. Id. at 64.
The First Circuit acknowledged Marks’s language that the holding of a
fractured decision “is the position of the Justices ‘who concurred in the judgments
on the narrowest grounds . . . .’” Id. at 65 (quoting Marks, 430 U.S. at 193, 97 S.
Ct. at 993). The First Circuit nevertheless cited various post-Marks cases in which,
in the First Circuit’s view, the Supreme Court itself had examined not only
plurality and concurring opinions, but also dissenting opinions, in order to
determine the holding of an earlier, fragmented Supreme Court decision. See id. at
65-66. The First Circuit concluded that its approach was therefore “particularly
sound given that the Supreme Court itself has moved away from [rigid application
of] the Marks formula.” Id. at 65.13
For the reasons stated below, we join the Seventh and the Ninth Circuits’
conclusion that Justice Kennedy’s “significant nexus” test provides the governing
rule of Rapanos.
13
According to the First Circuit, “‘Marks is workable—one opinion can be meaningfully
regarded as 'narrower' than another—only when one opinion is a logical subset of other, broader
opinions.’” Johnson, 467 F.3d at 63-64 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991) (en banc)). In the First Circuit’s view, the “shortcomings of the Marks formulation in
applying Rapanos” were actually highlighted by Gerke, in which the Seventh Circuit observed
that there would be some cases in which the plurality’s test would be satisfied, but Justice
Kennedy’s test would not, and vice-versa. Id. at 64.
25
Marks expressly directs lower courts, including this Court, that “[w]hen a
fragmented [Supreme] Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding . . . may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest
grounds.” Marks, 430 U.S. at 193, 97 S. Ct. at 993 (emphasis added) (quotation
marks and citation omitted); see also United States v. Gonzalez-Lauzan, 437 F.3d
1128, 1136 n.6 (11th Cir.), cert. denied, __ U.S. __, 127 S. Ct. 146 (2006). The
“narrowest grounds” is understood as the “less far-reaching” common ground.
Johnson v. Bd. of Regents, 263 F.3d 1234, 1247 (11th Cir. 2001). We simply
cannot avoid the command of Marks.
We are controlled by the decisions of the Supreme Court. Dissenters, by
definition, have not joined the Court’s decision. In our view, Marks does not direct
lower courts interpreting fractured Supreme Court decisions to consider the
positions of those who dissented. See King v. Palmer, 950 F.2d 771, 783 (D.C.
Cir. 1991) (en banc) (“[W]e do not think we are free to combine a dissent with a
concurrence to form a Marks majority.”). Marks talks about those who “concurred
in the judgment[],” not those who did not join the judgment. Marks, 430 U.S. at
193, 97 S. Ct. at 993. It would be inconsistent with Marks to allow the dissenting
Rapanos Justices to carry the day and impose an “either/or” test, whereby CWA
26
jurisdiction would exist when either Justice Scalia’s test or Justice Kennedy’s test
is satisfied. See Rapanos, __ U.S. at __, 126 S. Ct. at 2265 (Stevens, J.,
dissenting). The fact that the dissenting Justices would uphold CWA jurisdiction
under both Justice Scalia’s test and Justice Kennedy’s test is of no moment under
Marks. Further, when the Supreme Court’s Justices are interpreting their own
prior opinions, they can always reconsider them and thus may look more broadly
to the rationale in a dissent. We do not have that luxury.14
Thus, pursuant to Marks, we are left to determine which of the positions
taken by the Rapanos Justices concurring in the judgment is the “narrowest,” i.e.,
the least “far-reaching.” See Marks, 430 U.S. at 193, 97 S. Ct. at 993; Bd. of
Regents, 263 F.3d at 1247. The issue becomes whether the definition of
“navigable waters” in the plurality or concurring opinions in Rapanos was less far-
reaching (i.e., less-restrictive of CWA jurisdiction). See Gerke, 464 F.3d at 724-
25.
Notably, Justice Kennedy’s test, at least in wetlands cases such as Rapanos,
will classify a water as “navigable” more frequently than Justice Scalia’s test. See
Gerke, 464 F.3d at 724-25; Rapanos, __ U.S. at __ n.14, 126 S. Ct. at 2265 n.14
(Stevens, J., dissenting); see also Johnson, 467 F.3d at 64. This is because Justice
14
The First Circuit’s Johnson decision is nevertheless correct on this point: Marks does
not “translate easily” to Rapanos. Johnson, 467 F.3d at 64.
27
Kennedy’s concurrence rejected two “limitations” imposed by the plurality’s test
on the definition of “navigable waters.” Rapanos, __ U.S. at __, 126 S. Ct. at 2242
(Kennedy, J., concurring). Specifically, Justice Kennedy’s concurrence rejected
the plurality’s requirement that “navigable waters” must be “relatively permanent,
standing or flowing bodies of water,” and also rejected the plurality’s requirement
of a “continuous surface connection.” Id. at __, 126 S. Ct. at 2242-44 (quotation
marks and citations omitted). As discussed later, in factual circumstances different
from Rapanos, Justice Scalia’s test may be less restrictive of CWA jurisdiction;
however, in determining the governing holding in Rapanos, we cannot disconnect
the facts in the case from the various opinions and determine which opinion is
narrower in the abstract. Thus, pursuant to Marks, we adopt Justice Kennedy’s
“significant nexus” test as the governing definition of “navigable waters” under
Rapanos. See Gerke, 464 F.3d at 725; River Watch II, 496 F.3d at 999-1000.
D. The jury instruction was erroneous and not harmless error
We next consider whether the district court’s jury charge comported with
Justice Kennedy’s “significant nexus” test.15
Again, under Justice Kennedy’s concurrence, a water can be considered
15
The government tacitly concedes that the jury charge did not meet Justice Kennedy’s
“significant nexus” test. See Resp. Br. of United States at 24-25 (“The defendants correctly
point out that the[] instructions do not precisely meet . . . . Justice Kennedy’s standard . . . .”).
28
“navigable” under the CWA only if it possesses a “significant nexus” to waters that
“are or were navigable in fact or that could reasonably be so made.” Rapanos, __
U.S. at __, 126 S. Ct. at 2236 (Kennedy, J., concurring). Moreover, a “mere
hydrologic connection” will not necessarily be enough to satisfy the “significant
nexus” test. Id. at __, 126 S. Ct. at 2250-51. The district court here did not
mention the phrase “significant nexus” in its “navigable waters” instruction to the
jury or advise the jury to consider the chemical, physical, or biological effect of
Avondale Creek on the Black Warrior River. Rather, the district court instructed
the jury that a continuous or intermittent flow into a navigable-in-fact body of
water would be sufficient to bring Avondale Creek within the reach of the CWA.
As such, the instruction did not satisfy Justice Kennedy’s “significant nexus” test
and was erroneous.
Moreover, the government bears the burden of establishing that the jury
charge error was harmless. See Neder v. United States, 527 U.S. 1, 15, 119 S. Ct.
1827, 1837 (1999) (concluding that “the omission of an element [from a jury
instruction] is an error that is subject to harmless-error analysis”); United States v.
Olano, 507 U.S. 725, 734-35, 113 S. Ct. 1770, 1778 (1993) (when a defendant has
made a timely objection and harmless-error review applies, the government has the
burden of establishing that any error was harmless); United States v. Mathenia, 409
29
F.3d 1289, 1291-92 (11th Cir. 2005) (same).
In order to carry its burden, the government must establish that the error did
not “affect [defendants’] substantial rights.” Fed. R. Crim. P. 52(a). We have
explained that in the case of non-constitutional error,16 the government can meet
this burden by showing that the error “did not affect the verdict, ‘or had but very
slight effect.’” United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004)
(quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S. Ct. 1239, 1248
(1946)). If the government can establish “‘with fair assurance . . . that the
judgment was not substantially swayed by the error,’ the judgment is due to be
affirmed even though there was error.” Id. at 1315-16 (quoting Kotteakos, 328
U.S. at 764, 66 S. Ct. at 1248). Nevertheless, “[t]he non-constitutional harmless
error standard is not easy for the government to meet. It is as difficult for the
government to meet that standard as it is for a defendant to meet the third-prong
prejudice standard for plain error review.” Mathenia, 409 F.3d at 1292.
Here, the government failed to satisfy its burden. Although Wagoner (the
EPA investigator) testified that in his opinion there is a continuous uninterrupted
flow between Avondale Creek and the Black Warrior River, he did not testify as to
16
We need not reach the question of whether the Rapanos error in this case was
constitutional or non-constitutional, because, as explained momentarily, we conclude that the
Rapanos error here was not harmless even under the less demanding harmless-error test for non-
constitutional error.
30
any “significant nexus” between Avondale Creek and the Black Warrior River.
The government did not present any evidence, through Wagoner or otherwise,
about the possible chemical, physical, or biological effect that Avondale Creek
may have on the Black Warrior River, and there was also no evidence presented of
any actual harm suffered by the Black Warrior River.17 Thus, the government
failed to establish that the jury instruction error did not affect the jury’s verdict or
had but very slight effect, and the district court’s “navigable waters” instruction
was not harmless error.18
We recognize that the government, attempting to show harmless error,
stresses that it presented evidence of a continuous flow between Avondale Creek (a
relatively permanent, fixed body of water) and the Black Warrior River (a
navigable-in-fact water), and argues that this evidence satisfies Justice Scalia’s test.
The government also emphasizes that even the Seventh Circuit in Gerke noted that
17
We further note that prior to trial, the district court denied defendants’ motion to
dismiss the indictment and indicated that it would apply a broad, Eidson-based definition of
“navigable waters” under which the government would not need to prove that pollutants actually
reached a navigable body of water. Defendants thus arguably had no incentive to put on
evidence of any lack of “significant nexus” between Avondale Creek and the Black Warrior
River. See, e.g., O’Connor v. Ohio, 385 U.S. 92, 93, 87 S. Ct. 252, 253 (1966) (declining to
penalize criminal defendant for failing to anticipate a new rule of law announced after the
defendant’s trial).
18
Because Avondale Creek is not adjacent to the Black Warrior River, but separated by
Village Creek, Bayview Lake, and Locust Fork, there is no claim in this case that the “significant
nexus” test could be met by the adjacency of Avondale Creek and the Black Warrior River. See
supra note 11.
31
there may be some cases in which Justice Kennedy would find no CWA
jurisdiction, but Justice Scalia and the dissenting Justices would, and that as a
practical matter (i.e., counting the Rapanos votes), defendants’ convictions should
be affirmed under Justice Scalia’s test.
This case arguably is one in which Justice Scalia’s test may actually be more
likely to result in CWA jurisdiction than Justice Kennedy’s test, despite the fact
that Justice Kennedy’s test, as applied in Rapanos, would treat more waters as
within the scope of the CWA. See Gerke, 464 F.3d at 725 (recognizing the
potential for such cases but classifying them as “rare”). To be sure, the district
court’s jury instruction was still erroneous even under Justice Scalia’s plurality
opinion, because the instruction allowed the jury to find that defendants’
discharges were into a “navigable water” even if the jury also concluded that
Avondale Creek flowed “only intermittently.”19 But under Justice Scalia’s test,
that error may well have been harmless, because Wagoner, the EPA investigator,
clearly and unambiguously testified that there is a continuous, uninterrupted flow
between Avondale Creek and the Black Warrior River. Under Justice Scalia’s test,
the district court’s jury instruction error arguably “did not affect the verdict, ‘or
19
Under Justice Scalia’s plurality opinion, a “navigable water” only includes relatively
permanent, standing, or continuously flowing “fixed bodies of water, as opposed to ordinarily
dry channels through which water occasionally or intermittently flows.” Rapanos, __ U.S. at __,
126 S. Ct. at 2221-22, 2225.
32
had but very slight effect.’” Hornaday, 392 F.3d at 1315 (citation omitted). Thus,
the decision as to which Rapanos test applies may be outcome-determinative in this
case, and so it is not surprising that the government advocates a practical, Johnson-
style approach whereby all votes—from plurality, concurring, and dissenting
Justices—are counted.20
Nevertheless, as we have already discussed, Marks requires us to adopt the
narrowest view of the Justices who concurred in the judgment in Rapanos. Thus,
Justice Kennedy’s test is the test against which we have measured the district
court’s jury instruction for harmless error. Justice Kennedy’s test is also the test
that the district court must apply on remand, for the reasons explained.21
E. Other CWA arguments
Defendants raise several other arguments related to their CWA convictions,
all of which lack merit.
20
We also need not, and do not, determine whether the government in fact established
harmless error under Justice Scalia’s plurality opinion in Rapanos, because, as discussed, it
would be inconsistent with Marks for us to follow and apply Justice Scalia’s opinion. Indeed,
defendants point out that Wagoner admitted on cross-examination, inter alia, that he did not
conduct any “tracer tests” to verify continuous flow between Avondale Creek and the Black
Warrior River; that he conducted no tests to measure the volume of discharge from Avondale
Creek or between the bodies of water connecting Avondale Creek and the Black Warrior River;
and that the water level of Avondale Creek was low enough that he was able to walk its length.
Furthermore, defendants had no incentive to present evidence regarding a lack of continuous
flow, because the district court clarified prior to trial that its definition of “navigable waters”
would include waters with either continuous or intermittent flow. See also supra note 17.
21
We express no opinion as to whether Avondale Creek does or does not actually satisfy
Justice Kennedy’s test; that is a question for the jury in the first instance.
33
First, all defendants contend that the district court’s “navigable waters”
error, discussed supra, entitles them to judgments of acquittal, and not merely new
trials, because there was insufficient evidence that defendants discharged any
process wastewater into a Rapanos-defined “navigable water.”22
Preliminarily, we observe that on appeal, defendants do not contend that
there was insufficient evidence that their discharges were into a “navigable water”
as that term was incorrectly defined for the jury by the district court in the actual
trial. Indeed, the government presented sufficient evidence that defendants’
discharges were into a “navigable water” as the term was incorrectly defined by the
district court, and so acquittal is not warranted on that ground.
Rather, defendants’ contention is that they are entitled to judgments of
acquittal based on the district court’s Rapanos error. This argument, however,
ignores our precedent stating that “[r]emand for a new trial is the appropriate
remedy where . . . [any] insufficiency of evidence is accompanied by trial court
error whose effect may have been to deprive the Government of an opportunity or
incentive to present evidence that might have supplied the deficiency.” United
States v. Sanchez-Corcino, 85 F.3d 549, 554 n.4 (11th Cir. 1996), overruled on
22
We review the sufficiency of the evidence de novo, drawing all reasonable inferences in
favor of the government. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005),
cert. denied, 547 U.S. 1047, 126 S. Ct. 1635 (2006).
34
other grounds by Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939 (1998).
Here, we need not evaluate whether there was insufficient evidence that
defendants’ discharges were into “navigable waters” as that term is properly
defined under Rapanos. Instead, it is enough to note that the district court
erroneously defined “navigable water” and made it clear to the parties far in
advance of trial that it would continue to use its erroneous definition throughout
the case. That decision deprived the government of any incentive to present
evidence that might have cured any resulting insufficiency or met Justice
Kennedy’s “significant nexus” test.23 Thus, under Sanchez-Corcino, we conclude
that remand for a new trial is the appropriate remedy in this case.
Second, all defendants contend that there was insufficient evidence that any
discharges of process wastewater occurred in specific months, as charged in the
indictment, entitling defendants to a judgment of acquittal. However, defendants
concede that the government put forth sufficient evidence that five of the charged
CWA violations (Counts 2, 14, 16, 21, and 22) occurred as charged in the
indictment. Moreover, Harbin testified that between May 1999 and January 2001,
process wastewater was discharged into storm drains at least fifteen out of twenty
operating days per month, and several former employees testified that pumping
23
See also supra note 17.
35
regularly occurred on Friday nights.
Third, Delk and McWane argue that there was insufficient evidence that they
participated in a CWA conspiracy, and Delk further argues that there was
insufficient evidence that he discharged any process wastewater or caused anyone
else to discharge wastewater in violation of the CWA. We disagree. For example,
Delk was one of two McWane employees designated as having responsibility for
McWane’s NPDES compliance, and witnesses testified that Delk gave orders to
discharge process wastewater and once directed Harbin to falsify a water sample so
that McWane could pass an inspection.
Fourth, we reject Delk’s and Devine’s argument that they were deprived of
their due process rights to a fair trial when the district court struck three of the four
objects of the CWA conspiracy from the indictment at the close of the
government’s case.24 Delk and Devine primarily rely on United States v.
Adkinson, 135 F.3d 1363 (11th Cir. 1998); however, that case is materially
distinguishable. In Adkinson, four of the five objects of the conspiracy in the
indictment did not state an offense under prevailing law, and the government
presented evidence as to those four objects that was not relevant to the fifth object.
24
Denials of motions to dismiss the indictment are reviewed for abuse of discretion, see
United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir. 2004), but underlying legal errors,
including due process claims, are reviewed de novo, see Agan v. Vaughn, 119 F.3d 1538, 1541
(11th Cir. 1997).
36
Adkinson, 135 F.3d at 1372. The district court in Adkinson only permitted the
government to present such evidence because the government assured the district
court that the prevailing law would change before the end of the trial; however, the
expected change in the law did not occur in time. Id. at 1369-70. The district court
in Adkinson then struck the four legally impermissible objects of the conspiracy
after the trial, but at that point, the district court had allowed into evidence
“[m]ountains of details relevant only tangentially, if at all, to the ultimately
charged scheme.” Id. at 1372. As this Court observed on appeal in Adkinson, the
district court thus “obviously invited the jury to convict for conduct not, ultimately,
even alleged to be a crime.” Id. (emphasis added).
In contrast, the four objects of the CWA conspiracy in this case were legally
proper under prevailing law, and the district court simply determined that the
evidence did not support the objects that were ultimately struck. Cf. Adkinson,
135 F.3d at 1373 n.30 (noting that Adkinson was “not a case where perfectly
proper charges [were] ultimately found by the court not to be supported by the
evidence at trial”). Moreover, the district court stated that substantially all of the
evidence relating to the stricken objects of the conspiracy also related to the CWA
discharges, and defendants have failed to establish that the district court abused its
37
discretion in that evidentiary ruling.25
Finally, we recognize that Devine argues that the government had to prove
that Devine knew the terms of McWane’s NPDES permit and knowingly violated
the permit. We need not determine whether the district court should have required
the government to establish that Devine knew the terms of McWane’s NPDES
permit. Any such error committed by the district court in this regard was harmless,
because there was ample evidence presented that Devine did in fact know the terms
of McWane’s NPDES permit.
F. False statement in Count 24
McWane’s last argument is that it is entitled to acquittal on Count 24, the
false statement count. Under 18 U.S.C. § 1001, a conviction for making a false
statement in a matter within the jurisdiction of the executive branch of the United
States requires proof of five elements: “(1) a statement, (2) falsity, (3) materiality,
(4) specific intent, and (5) agency jurisdiction.” United States v. Herring, 916 F.2d
1543, 1546 (11th Cir. 1990).
Count 24 against McWane concerns certifications that Robison signed on
McWane’s behalf and that McWane submitted to the EPA. There is no dispute
25
Evidentiary rulings are reviewed for an abuse of discretion. See United States v.
Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005), cert. denied, 546 U.S. 1169, 126 S. Ct. 1331
(2006).
38
that the statements in the certifications were material. Rather, McWane contends
that the government presented insufficient evidence to satisfy elements two
(falsity) and four (specific intent). Specifically, McWane contends that what
Robison represented in the certifications was not false and that the government
presented no evidence that Robison’s certifications—as opposed to the underlying
plant inspection reports prepared by other persons and submitted with the
certifications—were false.
We first review the allegations in Count 24 and then explain why the record
supports McWane’s argument for several reasons.
First, the language of the certifications, introduced into evidence at trial, is
materially different from the charge in Count 24, and thus the certifications
themselves do not support that charge. Count 24 charged McWane and Robison
with making a false statement to the EPA, in violation of § 1001, as follows:
MCWANE, INC. and CHARLES “BARRY” ROBISON, the
defendants, in a matter within the jurisdiction of [the EPA] . . . did
knowingly and willfully make a materially false, fictitious, and
fraudulent statement and representation that is, the defendants
certified that documents submitted on or about August 17, 2000 and
September 15, 2000, to EPA pursuant to a request under the [CWA] . .
. , including “Daily . . . and Monthly . . . Inspection[]” forms, were
“true, accurate, and complete,” when in truth and fact, as defendants
MCWANE and CHARLES “BARRY” ROBISON then well knew and
believed, certain “Daily . . . and Monthly . . . Inspection” forms
included in the submission to EPA were false.
39
In sum, Count 24 alleged that McWane and Robison’s certifications falsely
represented that the plant inspection reports submitted to the EPA “were ‘true,
accurate, and complete,’ when in truth and fact,” McWane and Robison well knew
that certain of the submitted documents—plant inspection reports for January 1998
through March 2000—were false.26
However, McWane correctly points out that Robison, on McWane’s behalf,
did not certify that he personally knew that the attached documents—i.e., the plant
inspection reports—were accurate, or even that he had personally reviewed the
inspection reports. Rather, Robison certified only that the documents were
prepared under his direction or supervision in accordance with a system designed
to ensure that qualified personnel would properly gather and evaluate the
documents, and that based on his inquiry of those persons who were responsible
for gathering the documents, to the best of his knowledge, the documents were
accurate. Specifically, the certifications in evidence, which Robison signed, state
in full:
I certify under penalty of law that this document and all attachments
were prepared under my direction or supervision, in accordance with a
system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the
person or persons who manage the system, or those persons directly
26
We note that prior to trial, the scope of Count 24 was narrowed to encompass only the
September 15, 2000 submission.
40
responsible for gathering the information, the information submitted
is, to the best of my knowledge and belief, true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment for knowing violations.
In other words, Robison certified that other qualified persons had prepared the
documents and advised him of the documents’ accuracy. Because of the language
in the certifications, Robison could truthfully make the representations included in
the certifications even if the underlying documents included with the submissions
were false.
Second, the government introduced no evidence that the plant inspection
reports were prepared or gathered in a manner or a system other than that certified
to by Robison. The government also presented no evidence that Robison did not
inquire of the persons responsible for gathering the documents, as Robison
represented in the certifications. And the government presented no evidence that
upon inquiring of such persons, Robison learned from such persons that the
documents were not true or accurate. Indeed, the government acknowledged
before the district court that it presented no evidence as to McWane’s document-
gathering “system” or Robison’s “inquiries” of the persons responsible for
gathering the documents. Thus, the government failed to prove that any of the
statements actually certified to by Robison were false.
41
Third and most notably, McWane points out that the EPA previously
required a certifying individual to certify that he or she had “personally examined”
documents included in submissions, such as the one at issue here, but in 1983, the
EPA eliminated the “personal examination” requirement. Compare 40 C.F.R. §
122.6(d) (1981) (requiring EPA certifications to state that “under penalty of law
. . . I have personally examined and am familiar with the information submitted in
this document and all attachments”), with 48 Fed. Reg. 39,611, 39,613 (Sept. 1,
1983) (eliminating the personal examination requirement). As such, the
certifications in this case contained no representation that Robison had personally
reviewed the documents in question or that he was vouching for the documents’
accuracy based on his personal knowledge of the documents themselves. Rather,
Robison only certified—and only had to certify—that others had prepared the
documents, and that based on his inquiry of those who prepared the documents, the
documents were accurate to the best of his knowledge.
The government responds that, notwithstanding the actual language of the
certifications, Robison had personal knowledge of the problems at the plant, the
plant inspection reports showed no problems at the plant, and therefore, Robison
falsely certified that the inspection reports were accurate. Even assuming without
deciding that such offense conduct is adequately encompassed in Count 24, the
42
government still presented no evidence that Robison ever personally reviewed the
plant inspection reports or had personal knowledge of the contents of the plant
inspection reports, which is needed to show that his certifications about the reports
were false.
Certainly, the government introduced evidence that some of the plant
inspection reports themselves were false. Indeed, Walsh (McWane’s former safety
and personnel director) testified that he was the employee who prepared the
inspection reports at issue and that some of them were false. However, Walsh
made clear that Robison was not among the several McWane employees who
received copies of the inspection reports in the regular course of McWane’s
business.27 Additionally, there were approximately 600 pages of documents
attached to the certifications, and those documents included more than just the
falsified inspection reports that accompanied the certifications at issue here.28 The
27
We stress that the government does not argue that McWane violated § 1001 by
submitting false inspection reports to the EPA. Rather, the government concedes that under
Count 24, it had to prove that the certifications themselves contained false statements. In other
words, the government acknowledges that the false statements in the inspection reports, in and of
themselves, are insufficient to sustain McWane’s false statement conviction. Thus we
necessarily focus on the language in the certifications.
28
Chetan Gala, an EPA enforcement officer, testified that the post-inspection documents
that McWane was required to produce (and that accompanied the certifications at issue in this
case) included: (1) information about McWane’s CWA permit for the plant; (2) information
about entities that provided laboratory services to McWane; (3) McWane’s discharge monitoring
reports for a five-year period; (4) a diagram of McWane’s plant; (5) McWane’s “Best
Management Practices Plan,” “Storm Water Pollution Prevention Plan,” and “Spill Prevention
Control and Countermeasure Plan,” as well as the inspection reports, training records, and
43
problem with the government’s conclusory argument—that the evidence showed
that Robison knew the inspection reports he submitted were false—is that Count
24 is a specific intent crime, and the government cannot point to any evidence that
Robison actually knew the contents of the particular inspection reports
accompanying the certifications or that Robison actually knew that those particular
inspection reports contained false information.29
The government thus failed to establish that Robison’s certified statements
were knowingly false. At most, the government proved that Robison negligently
submitted documents to the EPA, but that is insufficient. See United States v.
Baker, 626 F.2d 512, 515-16 (5th Cir. 1980)30 (stating that “in order to sustain a §
1001 conviction the government must prove that the defendant knowingly made a
false statement with intent to deceive,” and further stating that the specific intent
requirement of § 1001 excludes “false statements made by inadvertence, mistake,
[or] carelessness”) (quotation marks omitted).
corrective action reports accompanying those plans; (6) the location where McWane’s records
were stored; (7) a schematic of the production process and related documents; (8) a description
of the waste disposal system; and (9) CWA-related inspection reports by ADEM and related
correspondence for a five-year period.
29
Even Robison’s contemporaneous notes fail to help the government, because the notes
do not refer to any inspection reports and are not evidence that Robison had reviewed the
contents of the particular inspection reports submitted to the EPA.
30
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all Fifth Circuit decisions rendered prior to October 1, 1981.
44
Accordingly, we must conclude that McWane is entitled to a judgment of
acquittal on Count 24.
III. CONCLUSION
For the foregoing reasons, defendants’ convictions are reversed. The case is
remanded for entry of a judgment of acquittal in favor of defendant McWane on
the false statement count (Count 24). The case is remanded for a new trial as to all
defendants on the CWA conspiracy count (Count 1) and for a new trial as to all
defendants charged in the remaining substantive CWA counts (Counts 2, 3, 5, 7-
19, 21, and 22).
REVERSED, VACATED, and REMANDED.
45
United States v. Robison
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-10-24
Citations: 505 F.3d 1208
Copy CitationsCombined Opinion