ELR Citation: ELR 20202
No(s). s. 96-7063 et al (3d Cir. Oct 15, 1997)

The court upholds the convictions and sentences of two transporting companies and their chief operating officer for visa fraud, environmental crimes, conspiracy, and racketeering. Defendants used barges, which a hurricane had damaged and shifted from their permitted positions, as docks, repair facilities, and housing for illegal foreign employees. In regard to the visa fraud convictions, the court holds that defendants have not met their burden of proving that the failure to submit to the jury the issue of the materiality of defendants' representations to immigration officials affected the outcome of the trial. The court next holds that any error relating to the jury instructions was invited error and cannot be a basis for reversal. The court also holds that when a defendant uses an innocent intermediary to present false claims or to make false statements to the government, the criminal intent of the intermediary is not an element of the offense. Therefore, the visa fraud convictions are affirmed.

As for defendants' Federal Water Pollution Control Act (FWPCA) convictions, the court holds that cutting off pieces of a ferro-concrete barge and dumping them into Krum Bay and a nearby lagoon, or conducting sandblasting on a floating craft and allowing the residue to fall into the bay, constitutes discharging a pollutant to navigable waters of the United States from a point source. Defendants' conduct fell within the applicable statutory definitions. The court next upholds defendants' convictions for discharging untreated sewage into the bay from a barge used to house their workers. At all relevant times, the barge was moored permanently to the shore. And it was used to house foreign workers, not as a means of transport. There was sufficient evidence, therefore, for the trier of fact to conclude that defendants' barge was not a vessel within the meaning of the FWPCA. The court also holds that the district court did not err when it instructed jurors on the meaning of the term "knowingly" to insure that defendants would not be convicted for an accidental discharge of pollutants.

In regard to defendants' Rivers and Harbors Act convictions, the court holds that defendants knowingly built a large dock to conduct business activities in violation of the Act. At trial, the government presented evidence that defendants intentionally strung together numerous derelict barges to form a permanent dock for loading activities, repairs, and the housing of employees. The court next holds that the district court's failure to instruct the jury that it must find that defendants built a structure outside harbor lines, or where no lines have been established was invited error. Further, there is no indication that the district court's jury instruction had any impact on the outcome of the trial. Therefore, the court also holds that there was no plain error.

The court next holds that government testimony, as to the costs defendants would have incurred had they employed workers through legal means, was not unduly prejudicial. The court also holds that defendants were not denied a fair trial when the district court prevented them from utilizing entrapment by estoppel defenses. Next, the court affirms the racketeering and conspiracy charges, because it affirmed defendants' convictions for visa fraud and environmental violations. Last, the court holds that there was no error in the sentences imposed against defendants.

Counsel for Appellees
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Treston E. Moore
P.O. Box 310, EGS, St. Thomas VI 00804
(809) 777-5490

Before Nygaard and McKee, JJ.