ELR Citation: ELR 21178
No(s). 94-1428 (2d Cir. Apr 28, 1995)

The court affirms an individual's conviction under Federal Water Pollution Control Act (FWPCA) §309(c)(2)(A) and (c)(4) for knowingly falsifying monitoring reports and knowingly violating a wastewater discharge permit and affirms his conviction under 18 U.S.C. §371 for conspiring to do so. The court holds that the trial court correctly instructed the jury that in a prosecution under §309(c)(2)(A), the government must prove that the defendant knew the nature of his acts and performed them intentionally, but not that he knew those acts violated the FWPCA or any particular FWPCA provision or a regulatory permit issued under it. FWPCA §311(c)(2)(A) itself does not expressly state whether the adverb "knowingly" is intended to require proof that the defendant had actual knowledge that his conduct violated any of the statutory provisions that follow the phrase "knowingly violates" or had actual knowledge that his conduct violated a permit condition. The U.S. Supreme Court has inferred that Congress did not intend to require proof that a defendant knew his actions were unlawful in charges brought under public welfare statutes. The purpose and legislative history of §309(c)(2)(A) indicate that the government need not prove that the defendant knew his conduct was unlawful. Moreover, the court infers that Congress' amendment of the term "willfully" in §309(c)(2)(A) to "knowingly" demonstrates that Congress did not intend to require the government to prove that the defendant knew his conduct violated the law or a regulatory permit. The court also holds that the trial court correctly instructed the jury as to the proof of knowledge required in a prosecution under FWPCA §309(c)(4), because a term that appears throughout a statute should generally be construed consistently.

The court holds that there was no possibility that the jury could have convicted the defendant solely for negligence. Rather, the evidence and testimony at trial overwhelmingly indicated that the defendant was aware of the permit requirements and that he knew that numerous samples of the company's wastewater discharge contained concentrations of zinc in excess of the permitted levels. Finally, the court holds that the district court did not err in instructing the jury that it could find the defendant guilty based on his conscious attempt to avoid actual knowledge that the samples had been falsified. Such an instruction is not inappropriate merely because the government has primarily attempted to prove that the defendant had actual knowledge, while urging in the alternative that if the defendant lacked such knowledge it was only because he had studiously sought to avoid it. Although the defendant did not testify, his knowledge plainly was in dispute, because the thrust of his defense was that he did not know about the tampering. Further, although there was ample evidence that the defendant himself had ordered the tampering with the samples that were sent to the laboratory, there was also evidence that he had studiously avoided confirming the tampering.

Counsel for Appellee
Joseph C. Hutchison, Ass't U.S. Attorney
U.S. Attorney's Office
141 Church St., New Haven CT 06508
(203) 773-2108

Counsel for Appellant
Robert B. Mann
Mann & Mitchell
Turks Head Pl., Ste. 501, Providence RI 02903
(401) 351-5770