ELR Citation: ELR 20193
No(s). s. 95-4099,-4596 (11th Cir. Sep 23, 1998)

The court affirms the convictions of the owner of an asbestos testing and consulting company for mail fraud, attempted witness tampering, and Clean Air Act (CAA) §113(c)(2)(A) violations. The court first holds that under the Double Jeopardy Clause of the U.S. Constitution, the impropriety of a government witness did not bar the owner's retrial. The relevant events revealed no bad faith, prosecutorial misconduct, or attempt to subvert the protections of the Double Jeopardy Clause. The owner may have needed to move for a mistrial, but this need did not arise because of goading on the government's part. The court next holds that the indictment contained sufficient information to sustain the false statement counts brought against the owner under CAA §113(c)(2)(A). The owner's contention that the indictment is insufficient because it failed to allege "willfulness" is meritless because willfulness is not an essential element of an offense under §113(c)(2). Likewise, the owner's contention that the indictment failed to allege the "materiality" of his offenses under CAA §113(c)(2)(A) is unpersuasive. The owner could not read §113(c)(2) and conclude that he was charged with a violation of anything but making a false material statement. Moreover, for Fifth Amendment purposes, the indictment adequately identified the false statements the owner was charged with. The court then holds that the district court's failure to submit the issue of materiality to the jury was harmless. The alleged error did not contribute to the guilty verdict against the owner, and the jury's finding that the owner acted knowingly is so closely related to the materiality issues that it is functionally equivalent to a materiality finding.

Counsel for Plaintiff
Burt Jordan, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Justice Bldg.
99 NE 4th St., Miami FL 33132
(305) 961-9000

Counsel for Defendant
Benedict P. Kuehne
Sale & Kuehne
NationsBank Tower
100 SE Second St., Ste. 3550, Miami FL 33131
(305) 789-5989

Before Cox and Meskill,^* JJ.