United States Court of Appeals
For the First Circuit
Nos. 09-1158
09-1159
UNITED STATES OF AMERICA,
Appellee,
v.
BRAULIO AGOSTO-VEGA,
BRAULIO AGOSTO MOTORS, INC.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Martin G. Weinberg, with whom Francisco Rebollo-Casalduc, were
on brief for appellant Agosto-Vega.
Kimberly Homan, for appellant Braulio Agosto Motors, Inc.
Lisa E. Jones, Attorney, Department of Justice, Environment &
Natural Resources Division, with whom John C. Cruden, Acting
Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United
States Attorney, Nelson Pérez-Sosa, Thomas F. Klumper, Desireé
Laborde-Sanfiorenzo, Assistant United States Attorneys, Michael R.
Fisher, United States Environmental Protection Agency, Silvia
Carreño, Office of the Regional Counsel, were on brief for
appellee.
August 18, 2010
TORRUELLA, Circuit Judge. This is a consolidated appeal
from a jury verdict which found Appellants Braulio Agosto-Vega
(Agosto) and Braulio Agosto Motors, Inc. (Agosto Motors) guilty of
violating criminal provisions of the Clean Water Act (CWA), 33
U.S.C. §§ 1251 et seq.
The principal issue presented is whether Appellants were
deprived of their constitutional right to a public trial pursuant
to the Sixth Amendment. As will be explained more fully, we find
that the District Court committed a structural error by excluding
the public from the courtroom during the selection of the jury.
See Presley v. Georgia, __ U.S. __, 130 S. Ct. 721 (Jan. 19, 2010)
(per curiam). We are thus required to vacate Appellants'
convictions and remand their cases for a new trial.
Nevertheless, considering that Appellants will have a new
trial on the same charges, to prevent an allegation that they will
be subjected to double jeopardy in violation of the Fifth Amendment
by reason of this retrial, it is incumbent upon us to address
Appellants' contentions that the government failed to present
sufficient evidence at the first trial to allow the jury to
conclude that they were guilty beyond a reasonable doubt of the
charges presented against them. See United States v. Mélendez-
Rivas, 566 F.3d 41, 43 (1st Cir. 2009). We conclude that the
government proved the charges against Appellants by sufficient
evidence to establish their guilt beyond a reasonable doubt.
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I. Factual background and procedural synopsis1
Agosto was the owner and principal officer of Agosto
Motors, an automobile dealership in San Juan, Puerto Rico, as well
as of another closely-held family corporation, Mansiones de
Hacienda Jiménez, Inc. (Mansiones), a real estate development
company which he used to develop a housing project in Río Grande,
Puerto Rico called Mansiones de Hacienda Jiménez (the development,
or the project). Both companies were run out of the same office,
and had as officers various members of the Agosto family.
The development began selling units in 2003, with the
first purchasers moving into their residences in the summer of
2004. Almost immediately, several of the new homeowners began to
experience frequent overflows of raw sewage from the septic tanks
located in front of their houses. These tanks would become
completely full, often in a matter of days, and raw sewage would
routinely overflow into the front yards, onto the sidewalks, and
into streets, where it would then drain into the storm sewers. Raw
sewage would also bubble up inside the homes through the toilets,
the bath tubs, and the sink drains. As would be expected, the
septic tank issue became contentious and was the subject of
numerous meetings, telephone calls, and correspondence between the
1
We recite the facts relevant to Appellants' claim of
insufficient evidence "in the light most favorable to the jury's
verdict." United States v. Troy, 583 F.3d 20, 22 (1st Cir. 2009).
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homeowners individually, the Homeowners Association, and Agosto,
his representatives, and his lawyers.
Although at first Agosto paid reputable companies to
dispose of the waste, he soon turned to Mansiones employees. They
would use a hose to suction the raw sewage from the septic tanks
and either discharge the wastewater directly into storm drains that
emptied directly into Jiménez Creek (the Creek) through an
underground pipe, or into a large tank truck registered to Agosto
Motors, which would then be emptied into the storm drains, onto
land adjacent to the Creek's basin, or into the Creek itself. The
Creek is a tributary of the Espíritu Santo River, a major river on
the northeastern coast of Puerto Rico, in the Municipality of Río
Grande, which empties into the Atlantic Ocean.
In March and April of 2005, after receiving multiple
complaints, the Puerto Rico Environmental Quality Board (EQB) and
the U.S. Environmental Protection Agency (EPA) investigated the
allegations regarding the discharges into the Creek, which was
classified as an "SD" fluvial resource, indicating that it was
suitable for drinking and recreational use. The investigation
revealed that thousands of gallons of raw sewage had been
discharged into the Creek. These discharges caused the water in
the Creek, at times, to turn black and reek of sewage.
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On May 11, 2005, Agosto and Agosto's brother Juan2 were
indicted by a federal grand jury and charged with engaging in a
conspiracy to violate the CWA (Count One), as well as three counts
of aiding and abetting in the unlawful discharge of raw sewage from
a point source into waters of the United States, namely the Creek
(Counts Two through Four). See 33 U.S.C. §§ 1311 and 1319(c)(2)(A).
Agosto Motors was charged with two of the three counts of aiding
and abetting alleged in the indictment.
The trial began on June 18, 2008. When jury selection
was about to commence, counsel for Agosto called the attention of
the district judge to the fact that the court's security officers
were refusing to allow members of the Agosto family into the
courtroom during jury selection. The judge responded that there
was no room for them or anyone not a member of the venire because
"the benches are full of jurors." The court indicated that her
regular courtroom was under repair thus necessitating the use of
the smaller facility, which was the only courtroom available at the
time. Defense counsel suggested that the jury box be used to seat
jurors, thus opening seating in the courtroom benches for the
Agosto family members, a suggestion rejected by the district judge,
who indicated that she wanted to keep all the jurors together. The
court expressed concern regarding "family members touching
potential jurors while the selection of the jury is going on." The
2
Juan pleaded guilty prior to the trial.
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court maintained its view that there was not enough room for the
family members at that time, and that jury empanelment was not part
of the process in which it particularly mattered whether Agosto's
relatives were present. It stated: "[l]isten, this is selection of
the jury. There is no evidence. There is no argument. This isn't
something that if relatives aren't there . . . [sic]." Over the
objections of Agosto's lawyer, the court closed the courtroom, and
no one was allowed into the courtroom during the entire jury
selection process. Neither defense counsel, nor the court, nor
government counsel suggested that the Agosto family members be
permitted to enter as room became available during the proceedings,
i.e., as potential jurors were dismissed.
After selection was completed and the jury sworn, defense
counsel stated for the record that Agosto's family had spent the
entire day outside the courtroom waiting to come into the trial but
had never been allowed into the courtroom. This was so,
notwithstanding that in addition to the jury box there had also
been available three empty benches in the well of the courtroom in
which jurors could have been seated, thus making room for the
Agosto relatives to sit in that section of the courtroom during the
jury selection. The district judge indicated that it was not her
practice to allow the well to be used for the purpose indicated by
counsel, and again stated that space constraints had required the
public's exclusion, while faulting defense counsel for failing to
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ask the court again to admit the family members after some of the
prospective jurors had been excused. Agosto's counsel then stated
that he knew "for a fact" that a courtroom security officer had
prevented a member of the press from entering the courtroom during
the jury selection process at a point when there were seats
available by reason of jurors being excused. This assertion was
not refuted in any manner by counsel for the government, but the
court indicated that it did not consider counsel's assertion to be
an established fact. After a sixteen-day trial, which lasted
intermittently through July 24, 2008, Agosto and Agosto Motors were
convicted on all counts.
In this appeal, Appellants contend that their convictions
should be vacated, and their case remanded for a new trial, because
their Sixth Amendment rights were violated when the district court
excluded the public from the courtroom during jury selection. They
also challenge the sufficiency of the evidence supporting their
convictions, claiming that the government failed to prove beyond a
reasonable doubt (1) that they had knowledge of the illegal
discharges, and (2) that the creek into which the pollutants were
dumped constitutes "navigable waters of the United States" within
the meaning of the CWA. Both challenges reference essential
elements of the crimes charged. Additional claims of error need
not be decided as they are not relevant considering our ultimate
ruling on this appeal.
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II. Discussion
A. The Sixth Amendment right to a public trial
We are informed on this issue by the Supreme Court's
recent decision in Presley, 130 S. Ct. 721, as well as by our own
circuit precedents, particularly Owens v. United States, 483 F.3d
48 (1st Cir. 2007). Presley was not decided until after Appellants
were convicted, but Owens dates back to the year before the present
trial. We begin with the facts of Presley for reasons which will
become obvious.
At the commencement of Presley's case, and shortly before
jury selection was about to start, the trial judge excluded
Presley's uncle from the courtroom, who at the time was the only
member of the public present for the proceedings. The judge told
the uncle he was welcome to come back after jury selection was
completed, but "[could not] sit out in the audience with the
jurors." Presley, 130 S. Ct. at 722. Presley's lawyer objected
to "the exclusion of the public from the courtroom," but the court
explained, "[t]here just isn't space for them to sit in the
audience." Id. To counsel's insistence that "some accommodation"
be reached, the court responded that "the uncle can certainly come
back in once the trial starts. There's no, really no real need for
the uncle to be present during jury selection . . . ." Id. The
court went on to point out that the seats in the audience would be
occupied by the jurors and "[Presley's] uncle cannot sit and
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intermingle with members of the jury panel." Id. The court
restated that the uncle would be allowed back once the trial
started.
Presley was convicted, and in post-trial motions he moved
for a new trial based on the exclusion of the public during the
voir dire. In the course of the hearing on the motion, Presley
presented evidence to the effect that fourteen of the prospective
jurors could have been seated in the jury box and the remaining
twenty-eight could have fit entirely on one side of the courtroom,
leaving adequate room for the public. Nevertheless, the court was
not convinced, and the motion for new trial was denied, with the
court commenting that "it preferred to sit jurors throughout the
entirety of the courtroom." Id. Georgia's appellate court found
no abuse of discretion by the trial judge, and the state supreme
court affirmed this conclusion, ruling that "Presley was obliged to
present the court with any alternatives that he wished the court to
consider;" in the absence of which "there [was] no abuse of
discretion in the court's failure to sua sponte advance its own
alternatives." Presley v. State, 674 S.E.2d 909, 912 (Ga. 2009).
The United States Supreme Court reversed the Georgia
courts. In so doing, the Court was pristinely clear that the Sixth
Amendment right to a public trial extends to the jury voir dire
process. Presley, 130 S. Ct. at 724. Furthermore, the Court
emphasized that although the right to a public trial is not
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absolute, and "may give way in certain cases to other rights or
interests, such as the defendant's right to a fair trial or the
government's interest in inhibiting disclosure of sensitive
information," "[s]uch circumstances will be rare . . . and the
balance of interests must be struck with special care." Id. at 724
(quoting Waller v. Georgia, 467 U.S. 39, 45 (1984)). The Court,
citing to the standards announced in Waller, then explained that
"before excluding the public from any stage of a criminal trial,"
id. (emphasis added):
[1] the party seeking to close the hearing
must advance an overriding interest that is
likely to be prejudiced,
[2] the closure must be no broader than
necessary to protect that interest,
[3] the trial court must consider reasonable
alternatives to closing the proceedings, and
[4] it must make findings adequate to support
the closure.
Id. (citing 467 U.S. at 48). In Owens, we similarly stressed that
"closure may be justified only by 'an overriding interest based on
findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest,'" and held that "a court
must consider (and reject) alternatives to closure before barring
public access." 483 F.3d at 61-62 (emphasis added, internal
citations omitted).
Expounding further on this Sixth Amendment right, the
Presley Court explained that "'[t]he process of juror selection is
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itself a matter of importance, not simply to the adversaries but to
the criminal justice system. The public has a right to be present
whether or not any party has asserted the right.'" Presley, 130 S.
Ct. at 724-25 (quoting Press-Enterprise Co. v. Superior Court of
Cal., 464 U.S. 501, 505 (1984)(holding that press has First
Amendment right to free access to a public trial, including during
voir dire)). The Presley court went on to describe the nature of
the trial court's duty in this respect, in language particularly
apropos to the concerns expressed by the district judge in the
present case:
Trial courts are obligated to take every
reasonable measure to accommodate public
attendance at criminal trials. . . . Without
knowing the precise circumstances, some
possibilities include reserving one or more
rows for the public; dividing the jury venire
panel to reduce courtroom congestion; or
instructing prospective jurors not to engage
or interact with audience members.
. . . The generic risk of jurors
overhearing prejudicial remarks,
unsubstantiated by any specific threat or
incident, is inherent whenever members of the
public are present during the selection of
jurors. If broad concerns of this sort were
sufficient to override a defendant's
constitutional right to a public trial, a
court could exclude the public from jury
selection almost as a matter of course.
Id. at 725.
Presley Applied
At the outset we acknowledge, and in fact commend, the
district judge in the present case for her actions in trying to
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insulate the jury from improper influences. For striving to
achieve this goal we certainly cannot fault the trial court.
However, as is apparent from a reading of Presley, there are higher
constitutional values which cannot be overlooked absent exceptional
circumstances, conditions which are not presented by the facts of
this appeal. We are constrained to say, however, that we are
somewhat taken aback by the government's silence in failing to come
to the court's aid during the course of this incident, which ended
with the total barring of the public from the jury's voir dire.
The government's intervention in suggesting alternatives to this
extreme outcome might very well have saved us all the need for
repeating this exercise.
As can be seen by our recitation of the facts in Presley
and in this case, both proceedings are strikingly similar in
content: (1) they both involve criminal trials, thus making the
public trial requirement of the Sixth Amendment de rigueur; (2)
they both involve the total exclusion of members of the public
(actually members of the defendant's family) from the jury voir
dire process; (3) in both cases the trial court, following its
usual trial management procedures, wanted to keep the jury panel
within its physical control inside the courtroom's limited space;
(4) in both cases the trial court was concerned with the
defendant's family members "intermingl[ing]" (i.e., being "elbow to
elbow") with prospective jurors, because of their perceived close
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proximity to the jurors in the crowded courtroom; (5) in both cases
the trial court stated that there was no room for the public in the
audience area of the courtroom; (6) in both cases the trial judge
indicated that there was no need for the defendant's relatives to
be present during the voir dire; (7) in both cases the trial court
stated that the public would be allowed into the courtroom once the
trial started; and (8) in both cases the trial court was not
proactive in seeking alternative solutions to totally barring the
public during voir dire.
There is at least one other important fact in the present
case which reinforces Appellants' claims of error when compared to
the circumstances of Presley: as Agosto's counsel pointed out to
the trial judge, there was space available in the courtroom, which
with appropriate flexibility by the district court would have
allowed some members of the public to be seated during jury
selection, while at the same time insulating the jury from
contamination by extraneous influences. There were also other
options available to the court: it could have seated members of
the public as members of the venire were excused, irrespective of
whether the request was renewed by counsel for the defense, or it
could have admonished the members of the venire and the public
against inappropriate conduct, if this concern existed. And of
course, if despite such measures it still considered that the
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closing was required by the circumstances, it was required to
substantiate its actions by specific findings in support thereof.3
We need not belabor the point. This case falls far short
of meeting the requirements of Presley and Owens for allowing the
exclusion of the public from a criminal trial, and thus we must
vacate Appellants' convictions and remand the case for a new trial.
On these facts, we need not consider whether, as the government
contends, there may be circumstances where a courtroom closure is
so trivial that it does not require a new trial. Cf. Gibbons v.
Savage, 555 F.3d 112, 121 (2d Cir. 2009).
It is appropriate that we add one last observation. We
have previously held, in the context of courtroom closures, that
the Waller "standard applies to [the exclusion of] family members
[just as it applies] to the general public." Owens, 483 F.3d at
62; see Martin v. Bissonette, 118 F.3d 871, 876 (1st Cir.
1997)("[A] trial court need [not] go beyond the already stringent
requirements of Waller before removing a defendant's family members
from the courtroom."). Therefore, when considering the balance of
3
For similar reasons, we reject the government's attempt to
distinguish Presley on the basis of courtroom size. The government
asserts that the courtroom in which Agosto was tried was physically
smaller than the courtroom in Presley, and thus could not
comfortably seat spectators. However, there is no indication in
the facts of Presley that the courtroom in that case could
accommodate spectators more easily than the courtroom here.
Indeed, in Presley the Supreme Court indicated that the courtroom
was large enough to accommodate the public if the judge had seated
some of the jury in the jury box. 130 S. Ct. at 232. Agosto made
the very same argument in this case.
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factors supporting closure, courts should not minimize the
importance of a criminal defendant's interest in the attendance and
support of family and friends. To say the least, this support is
ineffective in absentia.
B. The Government proved its case by proof beyond a reasonable
doubt
Standard of review
Because this matter is before us after jury verdicts of
guilty, this court reviews the evidence de novo, considering "all
the evidence, direct and circumstantial, in the light most
favorable to the prosecution, drawing all reasonable inferences
consistent with the verdict, and avoiding credibility judgments, to
determine whether a rational jury could have found the defendant
guilty beyond a reasonable doubt." United States v. Sherman, 551
F.3d 45, 49 (1st Cir. 2008)(internal quotation marks omitted).
The legal standards - Count One
Count One of the indictment charged Agosto with
conspiracy to commit offenses against the United States. See 18
U.S.C. § 371. To prove this crime, the government must establish
beyond a reasonable doubt (1) that Agosto entered into "an
agreement to commit an unlawful act; (2) [Agosto's] knowledge of
the agreement and voluntary participation in it; and (3) an overt
act by at least one of the coconspirators in furtherance of the
conspiracy." United States v. Vázquez-Botet, 532 F.3d 37, 61 (1st
Cir. 2008)(citation omitted). The government must prove that
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Agosto had both the intent to agree and the intent to commit the
substantive offense, United States v. Muñoz-Franco, 487 F.3d 25, 45
(1st Cir. 2007), namely violating 33 U.S.C. §§ 1311 and
1319(c)(2)(A).
The CWA prohibits the "discharge of any pollutant"
without a permit issued pursuant to the National Pollutant
Discharge System administered by the EPA or approved state
agencies. 33 U.S.C. § 1311(a). The knowing violation of this
prohibition is a felony under § 1319(c)(2)(A). The CWA defines the
discharge of a pollutant as "any addition of any pollutant to
navigable waters from any point source," 33 U.S.C. § 1362(12), and
includes as pollutants, "sewage, . . . sewage sludge, . . . [and]
biological materials . . . discharged into water." 33 U.S.C.
§ 1362(6). The term "navigable waters" is defined as "waters of
the United States, including the territorial seas." 33 U.S.C.
§ 1362(7).
Agosto's sufficiency challenge is centered, first, on the
knowledge requirement and, second, on the contention that there was
insufficient evidence to establish that the unauthorized discharges
were into "waters of the United States." Agosto further maintains
that the government was required to prove beyond reasonable doubt
that he knew that the Creek fell within the CWA's definition of
that term.
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Agosto's Knowledge of the Discharges
Agosto claims that there is no direct evidence that he
knew of the discharges, that he was ever present when discharges
occurred, that anyone ever told him about the discharges, or that
he knowingly directed or approved the discharges. Agosto argues
that there is no direct evidence of actual knowledge on his part,
and that the case against him is entirely circumstantial. However,
even assuming arguendo that this contention is correct, it is well-
established that "[k]nowledge may be proven by circumstantial
evidence alone;" indeed, "it frequently cannot be proven in any
other way." United States v. García, 521 F.3d 898, 901 (8th Cir.
2008); see United States v. García-Pastrana, 584 F.3d 351, 377 (1st
Cir. 2009)(for purposes of criminal conviction, "knowledge and
intent can be proven through circumstantial evidence" (internal
quotation marks omitted)); see also United States v. Glover, 814
F.2d 15, 16 (1st Cir. 1987)("The government may prove its case
through circumstantial evidence so long as the total evidence,
including reasonable inferences, is sufficient to warrant a jury to
conclude that the defendant is guilty beyond a reasonable doubt.").
There is nothing remarkable in the use of such evidence in this
case, and our sole concern is to determine whether the Government
has met its constitutional burden in establishing its case by proof
beyond a reasonable doubt through competent evidence. We believe
it has.
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The jury reasonably could have found that Agosto was
fully aware of the raw sewage problem at the Mansiones development,
and that he knew and understood its severity. There was evidence
presented at trial that Agosto visited the development at least
several times a week throughout periods when raw sewage routinely
overflowed from the septic tanks onto the front lawns, sidewalks
and streets of the homes his company had constructed and sold.
Furthermore, as an experienced businessman, Agosto was likely
cognizant of the fact that he was ultimately responsible for the
solution to this intractable nuisance. The jury could have
concluded this from the fact that Agosto engaged homeowners
directly and through intermediaries and representatives, and
attended several meetings and discussions with his legal counsel.
For a time, Agosto was able to provide a legal solution
to this situation by paying the municipality or hiring reputable
contractors (through his corporations) to remove the sewage from
the premises. However, by October 2004, for whatever reason,
Agosto stopped using these third parties and instead proceeded to
employ his own workers, providing them with an old military truck
with a 3000-gallon tank (which was registered to Agosto Motors) for
the purpose of suctioning off the raw sewage from the septic tanks
and surroundings.
It is not reasonable to think that Agosto had
expectations that these polluted liquids would somehow evaporate
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from inside the truck's tank. The logical conclusion is that these
pollutants would have to be disposed of in some way. A photograph
which forms part of the government's case provides part of the
answer. It shows the truck dumping sewage into the storm sewers of
the project's streets. There was also testimony from several
eyewitnesses establishing that the truck dumped raw sewage into
these sewers, or into the Creek itself, on numerous occasions. It
is uncontested that these sewers empty into the Creek, which in
turn flows into the Espíritu Santo River and thereafter into the
Atlantic Ocean. See United States v. Ortiz, 427 F.3d 1278, 1281
(10th Cir. 2005) (storm drain that carried flushed chemicals from
toilet to the Colorado River was a "point source"). This evidence
provides resounding proof of violations of the federal
environmental laws.
Since it is undisputed that raw sewage continued to
overflow the septic tanks, and because Agosto and his closely-held
companies, Agosto Motors and Mansiones, had to continue to remove
it to appease the homeowners, and equally important, to be able to
continue with the sale of additional homes in the Mansiones
development, the jury could have reasonably concluded that the
dumping of sewage by the employees not only took place, but that
this activity could not have happened without the direction,
knowledge and approval of a person who was an active participant in
the day-to-day operations of Mansiones and Agosto Motors and was
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their de facto chief executive officer: Agosto. See United States
v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 55 (1st Cir.
1991) (with respect to the knowledge element under the comparable
Resource Conservation and Recovery Act, "knowledge may be inferred
from circumstantial evidence, including position and
responsibility"). Additionally, but critically, as the principal
owner of the Mansiones project, Agosto was the person who stood the
most to gain economically, and conversely to lose if things went
sour and the sewage was not disposed.
One additional piece of damning circumstantial evidence
came from Agosto's brother, Juan, who was the person whom Agosto
indicated was acting on his behalf in managing the housing project.
With respect to the illegal sewage discharges, Juan testified that
"the land belonged to [Agosto]" and that Juan was "just following
orders."
In light of all this, there was undoubtedly sufficient
circumstantial evidence to establish by proof beyond a reasonable
doubt: (1) the existence of a conspiracy between Agosto, his
brother Juan, and others to dispose of raw sewage into the Creek,
without the appropriate permits, (2) that several overt acts were
performed by members of the conspiracy in furtherance of its
objectives, and (3) that Agosto had knowledge of these illegal
actions.
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"Waters of the United States"
That the Creek is a "water of the United States" is a
jurisdictional fact that the government must establish. However,
the government is not required to establish that the defendant was
aware of the facts connecting the Creek to the regulatory
definition of "waters of the United States." United States v.
Cooper, 482 F.3d 658, 668 (4th Cir. 2007)(holding that creek's
"status as a 'water of the United States' is simply a
jurisdictional fact, the objective truth of which the government
must establish but the defendant's knowledge of which it need not
prove"); see also United States v. Wilson, 133 F.3d 251, 262 (4th
Cir. 1997) (when the government prosecutes a "knowing violation" of
the CWA, it "need not prove that the defendant knew his conduct to
be illegal"); United States v. Sinskey, 119 F.3d 712, 715-17 (8th
Cir. 1997); United States v. Hopkins, 53 F.3d 533, 541 (2d Cir.
1995).
The EPA has promulgated a regulatory definition of the
term "waters of the United States" that encompasses, inter alia,
"waters susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the
tide; [and] [a]ll interstate waters, including interstate wetlands;
[and] the tributaries of [such] waters." 40 C.F.R. § 230.3(s).
This duly promulgated regulation has the force of law. Cf.
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Citizens Coal Council v. United States E.P.A., 447 F.3d 879, 891
(6th Cir. 2006) (citing 33 U.S.C. § 1311(a)).
The Supreme Court has recognized that Congress, in
enacting the CWA, "evidently intended to repudiate limits that had
been placed on federal regulation by earlier water pollution
control statutes and to exercise its powers under the Commerce
Clause to regulate at least some waters that would not be deemed
'navigable' under the classical understanding of that term."
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133
(1985); see Int'l Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6
(1987)(the term navigable waters "has been construed expansively to
cover waters that are not navigable in the traditional sense"); see
also Rapanos v. United States, 547 U.S. 715, 730-31 (2006)
(plurality opinion); id. at 767-768 (Kennedy, J., concurring in the
judgment).
In United States v. Johnson, 467 F.3d 56, 60 (1st Cir.
2006), we held that the United States "may assert jurisdiction over
[a particular surface water] if it meets either Justice Kennedy's
legal standard" (i.e., the wetlands "possess the requisite nexus"
if "either alone or in combination with similarly situated lands in
the region, [they] significantly affect the chemical, physical, and
biological integrity of other covered waters more readily
understood as 'navigable,'" Rapanos, 547 U.S. at 780), or the
plurality's view (i.e., "relatively permanent, standing or
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continuously flowing bodies of water," that are connected to
traditional navigable waters, as well as wetlands with a continuous
surface connection to such bodies of water). Id. at 739-42.
That the Creek was a "water of the United States," as a
jurisdictional matter, was established by the Government by proof
beyond a reasonable doubt. The land upon which the Mansiones
project was developed is located in Río Grande, Puerto Rico on the
northern slopes of the Luquillo Mountain Range and in close
proximity to the El Yunque National Forest (the only recognized
tropical rain forest in the United States), an area of copious
precipitation. In fact, the Creek originates in the rain forest
approximately two miles away and is a tributary of the Espíritu
Santo River (the River). The Mansiones development abuts the
Creek, which then flows into the River across the street from the
project. Before the incidents that gave rise to this case, the
Creek was suitable for human consumption and recreation, and
provided drinking water for the residents of the Municipality of
Río Grande. The River is physically navigable by small boats from
at least its mouth on the Atlantic Ocean to the Mansiones project.
It is subject to the effects of the ebb and flow of marine tides.
Using either Justice Kennedy's or the plurality's test in
Rapanos, the government presented sufficient evidence from which
the jury could find, beyond a reasonable doubt, the required
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jurisdictional nexus. Agosto's guilt was established as to Count
One.
Counts Two, Three and Four
These counts charge the Agosto and Agosto Motors with
aiding and abetting each other, and others, with specific illegal
discharges that took place in October 2004 (Count Two) and January
2005 (Count Three). See 18 U.S.C. § 2. Agosto was charged with
aiding and abetting an additional discharge occurring in March 2005
(Count Four).
Provided the government establishes the facts required to
meet the elements of the crime charged by proof beyond a reasonable
doubt, Appellants may be held indirectly responsible as aiders and
abettors if they "associate[d] [themselves] with the venture, []
participate[d] in it as something that [they] want[ed] to bring
about, [or] [sought] by [their] actions to make the venture
succeed." United States v. Lugo Guerrero, 524 F.3d 5, 13 (1st Cir.
2008). It is settled that "a culpable aider and abettor need not
perform the substantive offense, be present when it is performed,
or be aware of the details of its execution." United States v.
Colón-Muñoz, 192 F.3d 210, 223 (1st Cir. 1999).
Further, we are required to consider all of the evidence
in the light of the cases that have established, for some time,
that a person who creates the conditions for, and has the ultimate
responsibility for, a discharge, may be held liable for the
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discharge. See Sierra Club v. Abston Const. Co., 620 F.2d 41, 45
(5th Cir. 1980) (coal mine operators who built sediment basin held
liable for discharge from basin's overflow because basin was
"reasonably likely to be the means by which pollutants are
ultimately deposited into a navigable body of water"); United
States v. Brittain, 931 F.2d 1413, 1420 (10th Cir. 1991) (a person
whose "specific conduct . . . allowed the discharge to occur" is
liable for CWA violation); United States v. Hubenka, 438 F.3d 1026,
1029-30 (10th Cir. 2006) (defendants who directed others to perform
the illegal discharge liable for the discharge under CWA).
Appellants do not really challenge that the specific
discharges listed in the indictment occurred; rather, they focus
their attack on the sufficiency of the evidence of Appellants'
actual knowledge of, and/or role in, the discharges.4 However, as
we have already discussed, a reasonable jury could have found that
Agosto had the requisite knowledge of the illegal discharges into
the Creek by his agents and employees. A jury could have found
that Agosto carried out these actions at least in part to benefit
his enterprises, including Agosto Motors. The evidence is that
Agosto, through his corporations, initially hired third parties to
dispose of the pollutants, but then switched to doing this work
4
In any event, the government provided ample evidence that the
illegal discharges alleged in the indictment were carried out by
employees of Mansiones, including through the testimony of several
eyewitnesses and/or participants.
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with his own equipment and employees, who did so in violation of
the CWA. To Agosto's overall activities and interventions can be
added his orders to place trenches in the Mansiones project which
a jury could have found were designed to channel raw sewage away
from the sidewalks and streets and towards the Creek's basin, as
charged in Count 4 of the Indictment. The jury could properly
infer that these things were done to save Agosto money and to allow
him to continue selling properties in the Mansiones development.
We also find that the evidence was more than sufficient
to support the conviction of Agosto Motors on Counts 2 and 3. "[A]
corporation may be held liable for the criminal acts of its agents
so long as those agents are acting within the scope of employment."
United States v. Potter, 463 F.3d 9, 25 (1st Cir. 2006); accord
United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 42
(1st Cir. 1991). Typically, "[t]he test is whether the agent is
'performing acts of the kind which he is authorized to perform,'
and those acts are 'motivated -- at least in part -- by an intent
to benefit the corporation.'" Potter, 463 F.3d at 25 (quoting
United States v. Cincotta, 689 F.2d 238, 241-42 (1st Cir. 1982).
Agosto Motors contends that the government presented insufficient
evidence from which the jury could conclude that Agosto or anyone
else acted to benefit Agosto Motors -- as opposed to Mansiones --
in connection with the illegal discharges. We disagree.
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Agosto Motors and Mansiones were closely-held, family-run
companies operating out of the same location, namely, the Agosto
Motors dealership. Both companies used the same telephone and fax
numbers. They had overlapping employees as well as officers. As
to both entities, Agosto was the de facto chief executive.
Significantly, the truck used to carry out the illegal discharges
alleged in the indictment was registered to Agosto Motors and
Agosto Motors paid its annual registration fees.5 Agosto's son,
Miguel, had purchased the truck in 2002 in connection with another
business venture. Miguel was a Mansiones employee who was active
in trying to sell homes in the development, and was well-aware of,
and had some responsibilities related to, the septic tank problem.
By November 2004, about a month after the illegal discharges began,
Miguel was also a salaried employee of Agosto Motors.
At a minimum, this evidence was sufficient to permit the
jury to reasonably infer that the truck's commercial registration
was made available to Mansiones by employees of Agosto Motors for
the purpose of carrying out the illegal discharges. The jury could
also have concluded that this would not have taken place without
the knowledge of Agosto, and was therefore within the scope of
employment at Agosto Motors (i.e., per the orders of the boss,
Agosto). In any event, the jury could have inferred that the
5
Appellants emphasize that the government only proved that the
truck's license plate was registered to Agosto Motors's commercial
fleet. In any event, we think that is enough.
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illegal discharges were undertaken "at least in part" to benefit
Agosto Motors, even if they also benefitted Mansiones; the jury was
not required to turn a blind eye to the inextricable relationship
between the entities. On these facts, the evidence was sufficient
for the jury to conclude that Agosto Motors aided and abetted the
CWA violations charged in the indictment by providing the means by
which those discharges were carried out.
As a matter of law the government presented sufficient
evidence to allow a jury to find beyond a reasonable doubt that
Appellants were aiders and abettors in the charged violations of
the CWA.
III. Conclusion
The conviction of Appellants is vacated and these cases
are remanded for action consistent with this opinion.
Vacated and Remanded.
"Concurring Opinion Follows"
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HOWARD, Circuit Judge, concurring. I join Judge
Torruella's excellent opinion, adding three brief comments.
First, I agree that by failing to adequately consider an
arrangement that would have allowed at least some spectators to be
present in the courtroom during jury selection, the district court
did not fulfill its obligation to conduct the careful balancing of
interests as required by Presley. I do not, however, view our
holding as suggesting that the trial judge court is in every case
constitutionally required to adopt such an arrangement to preserve
the defendant's public trial rights in the face of overcrowding.
Second, two of the government's primary arguments are
that the closure was temporary and its impact de minimus, and that
Agosto had an affirmative burden to request that the court reopen
the courtroom once there was room for spectators. The difficulty
that I have with these arguments is that, in addition to failing to
consider reasonable alternatives to closing the proceeding and
failing to make findings adequate to support the closure, the court
took insufficient measures to ensure that the closure would be no
broader than necessary, as demanded by Waller. Waller v. Georgia,
467 U.S. 39, 48 (1984).
Each argument hinges on our determining that the trial
court only intended to close the courtroom until seats became
available, and that it clearly conveyed this intention to the
parties. The record, however, suggests otherwise. Although the
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judge suggested that she would welcome spectators, she also told
defense counsel twice in no uncertain terms that spectators would
be welcome "as soon as the jury is selected."
With respect to the claim that the closure was temporary
and its impact de minimus, whatever the judge's intentions might
have been, her initial inadequate balancing set in motion a chain
of events that resulted in the closure of the courtroom for the
entirety of jury selection. Because the impact of the closure was
substantial, it cannot support the invocation of a triviality
exception.
As for the defendant's obligation, the defendant cannot
be faulted for taking the trial judge's statement to mean that she
had conclusively ruled on the issue. Even if a defendant might
have a burden under other circumstances to inform the court when a
lawful closure has ended, Agosto did not have that obligation here,
as it was reasonable for him to conclude that the trial judge had
closed the courtroom for the entirety of jury selection.
Finally, I agree that Agosto Motors should also be
afforded a new trial, based on our resolution of the courtroom
closure claim. Whether Agosto Motors waived objection to the
closure is a close call; ultimately I would not find waiver. The
claim has, however, been forfeited by the lack of a trial
objection. I would nevertheless relieve Agosto Motors of its
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forfeiture on plain error review, an issue that the government
barely mentions.
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