ELR Citation: ELR 20557
No(s). 95-20627 (5th Cir. Nov 27, 1996)

The court holds that the government must prove that a store owner who discharged gasoline from a point source into navigable water without a permit knew that he was discharging gasoline, and not water, in order to convict the store owner of violating §§301(a) and 307(d) under §309(c) of the Federal Water Pollution Control Act (FWPCA), and that this mens rea requirement must be included in the jury instructions. The court first holds that the phrase "knowingly violates" in FWPCA §309(c)(2)(A), when referring to other provisions that define the elements of the offenses §309 creates, should uniformly require knowledge as to each of those elements. If knowledge is not required as to the nature of the substance discharged, one who honestly and reasonably believes that he or she is discharging water may find himself or herself guilty of a felony if the substance turns out to be something else. The court then finds that the fact that violations of §309(c)(2)(A) are felonies punishable by years in federal prison confirms the court's view that they do not fall within the public welfare exception. Public welfare offenses have virtually always been crimes punishable by relatively light penalties such as fines or short jail sentences, rather than substantial terms of imprisonment. The court then goes on to hold that the offenses charged are not public welfare offenses and that the usual presumption of a mens rea requirement applies. With the exception of purely jurisdictional elements, the mens rea of knowledge applies to each element of the crimes. The court next finds that at best, the jury charge made it uncertain to which elements "knowingly" applied. The court holds that the jury instructions misled the jury as to the elements of the offense. Because the charge effectively withdrew from the jury's consideration facts that it should have been permitted to find or not find, this error requires reversal.

Given that this case likely will be tried again, the court goes on to address the exclusion of two of the store owner's witnesses. The court holds that the lower court erred in refusing to give the lesser included offense instruction. Because the statutory mens rea applies to multiple elements of the offense, such as whether what was being discharged was a pollutant, there was ample evidence to support the lesser violation of negligence. Because the lesser included offense instruction was improperly denied, testimony to be given by the store owner's witnesses was improperly excluded as well.

Counsel for Plaintiff
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Thomas R. Bartman
Vinson & Elkins
The Willard Office Bldg.
1455 Pennsylvania Ave. NW, Washington DC 20004
(202) 639-6400

Before POLITZ, Chief Judge, and SMITH and DUHE, Circuit Judges.