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23 ELR 10145 | Environmental Law Reporter | copyright © 1993 | All rights reserved
The number of individuals prosecuted for environmental crimes has also increased.8 Indeed, between 1983 and 1992, 68 percent of all federal prosecutions for environmental crimes were brought against individuals as opposed to corporate entities. Eighty percent of the individuals prosecuted for environmental crimes were officers and managers of corporations.9 Accompanying this increase in prosecutions has been a proliferation of law journal articles that discuss the phenomenon and, at times, theorize as to its causes.10 In February 1992, for example, Keith A. Onsdorff and James M. Mesnard, the authors of an article entitled The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You,11 contended that in prosecuting federal environmental crimes against individuals, the U.S. Department of Justice (DOJ) * attempted to "ignore the traditional requirement of personal knowledge that is expressly included in the statute,"12 * "tilted the balance in the criminal justice arena away from due process safeguards,"13 * "can be expected to attempt to hold corporate officers criminally liable for RCRA felonies regardless of whether they knew of and expressly authorized the violations committed by subordinate employees under their control and supervision, however theoretical that oversight function may be,"14 and * has sought to use the responsible corporate officer doctrine in an attempt to circumvent RCRA's slender knowledge requirement.15 These authors misunderstand the DOJ's position16 regarding the prosecution of corporate officers for environmental crimes. More importantly, the article may have created some confusion regarding the current meaning and application of the responsible corporate officer doctrine in the context of federal environmental prosecutions. This Article will review the responsible corporate officer doctrine, discuss its relationship to the knowledge requirement contained in several federal environmental criminal provisions, and demonstrate how it has been applied in recent years. Development of the Responsible Corporate Officer Doctrine In United States v. Dotterweich,17 the president and general manager of the Buffalo Pharmacal Company was convicted in a jury trial of three misdemeanor violations of the Federal Food, Drug, and Cosmetic Act (FDCA)18 for shipping misbranded and adulterated drugs in interstate commerce. This law was enacted by Congress in 1938 to extend the range of control over illicit and noxious articles and to stiffen the penalties for disobedience.19 It prohibits, inter alia, the introduction or delivery for introduction into interstate commerce of any drug that is adulterated or misbranded.20 The U.S. Supreme Court stated that Dotterweich's prosecution was based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.21 [23 ELR 10147] Justice Frankfurter, recognizing that the statute itself eliminated the knowledge requirement, sought to balance the obvious hardships on a corporate officer who may not have intended to violate the statute against the risks to a public unable to protect itself from adulterated or misbranded drugs. He wrote: Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent people who are wholly helpless.22 Although the Supreme Court made it clear that the offense is committed by all who have a "responsible share in the furtherance of the transaction which the statute outlaws,"23 the Court did not attempt to define "the class of employees which stands in such a responsible relation."24 Justice Frankfurter stated that "[i]n such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on 'conscience and circumspection in prosecuting officers.'"25 In Morissette v. United States,26 the U.S. Supreme Court discussed the distinction between common-law offenses and public welfare violations. Morissette was convicted of the taking of spent bomb casings from an Air Force practice bombing range.27 Although the defendant contended that he thought these casings were abandoned,28 the federal district court refused to submit or allow counsel to argue to the jury whether the defendant acted with innocent intention. Instead, the court ruled that the defendant's "felonious intent is presumed by his own act."29 The Sixth Circuit affirmed the conviction, ruling that this particular violation did not require proof of criminal intent.30 The U.S. Supreme Court reversed, and used the case to discuss its philosophy of criminal law and how scienter requirements may vary depending on the nature of the crime and the purpose sought to be served by such laws when enacted. Justice Jackson, writing for the majority, described how various courts have viewed the element of intent required for conviction of most common-law crimes: Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil …. However, courts of various jurisdictions, and for the purpose of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.31 To be distinguished from common-law offenses, such as those against the state, person, property, or public morals, public welfare offenses are "not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect when the law requires care, or inaction where it imposes a duty."32 Thus, whatever the intent of the violator, the injury is the same, and whether the consequences are injurious is a question of fortuity. Accordingly, legislation applicable to such offenses does not specify intent as a necessary element.33 "The Court concluded that if the accused does not will the violation, he is usually in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities."34 The Court reiterated and clarified the Dotterweich rationale in United States v. Park.35 Park, the president and chief executive officer of Acme Markets, Inc., a national retail food chain, was charged in a five-count information with violations of the FDCA.36 Since the lower court ruled [23 ELR 10148] that Dotterweich was controlling, the only issue presented to the jury for consideration was whether the defendant held a position of authority and responsibility in the business of Acme Markets.37 Park was found guilty on all counts. Notwithstanding the techings of the Supreme Court in Dotterweich, the Fourth Circuit reversed the conviction and remanded for a new trial, holding that due process required that the government prove "wrongful action" on the part of the corporate officer.38 The Supreme Court reversed and wrote: Thus Dotterweich and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission — and this is by no means necessarily confined to a single corporate agent or employee — the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them.39 The Court further concluded that Congress had intended "to enforce the accountability of responsible corporate agents dealing with products which may affect the health of consumers by penal sanctions cast in rigorous terms, and the obligation of the courts is to give them effect so long as they do not violate the Constitution."40 In reversing the Court of Appeals for the Fourth Circuit, the Supreme Court also disagreed with placing on the governmentthe burden of proving that the defendant acted with "wrongful intent," since no such requirement existed in the statute. Instead, the Court held that the government established a prima facie case when it introduced sufficient evidence "to warrant a finding by the trier of the facts that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so."41 It thus became clear in 1975, that corporate officers who are "responsible" for supervising subordinates who violate public welfare offenses may be prosecuted, at least for misdemeanors, without evidence of criminal intent or guilty knowledge, if a statute so provides. Legislative Recognition of the Responsible Corporate Officer Doctrine and Subsequent Case Law The responsible corporate officer doctrine is more than a prosecutorial theory. Consistent with the applicable case law, Congress explicitly incorporated the category of responsible corporate officer into the definition of a "person"42 in the penalty provisions of the Clean Water Act (CWA) in 198743 and the Clean Air Act (CAA) in 1977.44 However, the legislative history of these amendments is sparse at best. The U.S. Senate Committee on Environment and Public Works, in discussing the amendments to the criminal penalty provisions of the CAA, reported: [F]or the purpose of liability for criminal penalties the term "person" is defined to include any responsible corporate officer. This is based on a similar definition in the enforcement section of the Federal Water Pollution Control Act. The Committee intends that criminal penalties be sought against those corporate officers under whose responsibility a violation has taken place, and not just those employees directly involved in the operation of the violating source.45 Although the House Committee on Public Works and Transportation agreed to accept the Senate's provisions on criminal sanctions with certain changes unrelated to the addition of the responsible corporate officer to the term "person,"46 the House Committee did not discuss its meaning in criminal enforcement of the CAA. It did, however, extensively discuss this term as it applies to the assessment of civil penalties.47 The 1977 amendments to the CAA made it abundantly clear that Congress intended the responsible corporate officer to be subject to criminal penalties. However, at the time of the amendments, the criminal provisions of the CAA called only for misdemeanor sanctions, as did the criminal provisions in § 309(c) of the CWA.48 It is anything but clear that Congress would have intended to impose [23 ELR 10149] felony sanctions, such as were added to the CAA in 1990 and the CWA in 1987, requiring the imposition of substantial periods of incarceration, on any person who did not have actual knowledge of the wrongdoing. Because of the upgrading to felonies of former misdemeanor violations in most of the environmental statutes, as well as stiff penalties that individuals now face under the U.S. Sentencing Guidelines,49 it was necessary for the DOJ to reevaluate how the responsible corporate officer doctrine should be applied to be consistent with congressional intent, yet treat each individual with fairness. This intersection of expanded individual criminal liability and fundamental due process warrants the careful exercise of prosecutorial discretion. Apart from legislative activity, several references to the responsible corporate officer doctrine in criminal prosecutions arose under the Resource Conservation and Recovery Act (RCRA)50 and the CWA.51 However, the federal appellate courts did not squarely face the issue in environmental criminal prosecutions until 1991 in United States v. Brittain52 and United States v. MacDonald and Watson Waste Oil Co.53 These cases were decided only 10 days apart, yet arguably reached quite different results. In Brittain, the defendant contended, among other issues, that he was not a "person" subject to criminal prosecution under the CWA, because the government failed to prove that he was a permittee of a wastewater discharge permit or that he was a responsible corporate officer of a discharging permittee.54 The City of Enid, Oklahoma, the holder of the wastewater permit, was allowed to discharge pollutants from the city's wastewater treatment plant into a nearby creek. Although the original permit provided for two discharge point sources (outfalls 001 and 002), a new permit was issued that only allowed for one discharge point source (outfall 001). The defendant, who held the position of public utilities director, was informed by the plant supervisor that the plant was discharging raw sewage from outfall 002. In fact, the defendant witnessed two such discharges. Although required to report by the terms of the permit, the defendant instructed the plant supervisor not to report these discharges to the U.S. Environmental Protection Agency (EPA). The defendant was convicted of two violations of the CWA55 [23 ELR 10150] and 18 counts of falsely reporting a material fact to a government agency.56 The jury was never presented with the responsible corporate officer issue in the context of a jury question, and the government never suggested that it was relying on this theory. Nonetheless, the Tenth Circuit analyzed the term to determine whether the defendant, as an individual, is a "person" subject to liability under the CWA. Judge Baldock began the analysis by stating: Section 1319(c)(3) does not define a "responsible corporate officer" and the legislative history is silent regarding Congress's intention in adding the term. The Supreme Court, however, first recognized the concept of "responsible corporate officer" in 1943…. The Dotterweich Court held that a corporation's misdemeanor offense under the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA) was committed by all corporate officers "who do have … a responsible share in the furtherance of the transaction which the statute outlaws … though consciousness of wrongdoing be totally wanting."57 The Tenth Circuit opined that the underlying rationale of the FDCA also applies to the CWA. According to the court, Congress perceived that the public health concerns outweigh the hardship suffered by a criminally responsible corporate officer: The rationale for this harsh rule lay in the type of legislative action that the Dotterweich Court was interpreting. Congress passed the FDCA in order to protect the public health, and, according to the Court, Congress perceived the public health interest to outweigh the hardship suffered by criminally liable responsible corporate officers who had no consciousness of wrong-doing…. The same rationale applies to the Clean Water Act. Congress intended, with the Act, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters … [and that] the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a).58 The Tenth Circuit, in accord with the Third Circuit in Johnson and Towers,59 viewed the inclusion of the category of responsible corporate officers in the definition of the term "person" as an expansion of the class of potential criminal defendants rather than a limitation of that class: We think that Congress perceived this objective to outweigh the hardships suffered by "responsible corporate officers" who are held criminally liable in spite of their lack of "consciousness of wrong-doing." We interpret the addition of "responsible corporate officers" as expansion of liability under the Act rather than, as defendant would have it, an implicit limitation. The plain language, after all, states that "responsible corporate officers" are liable "in addition to the definition [of persons] contained in section 1319(c)(3) …."60 The Tenth Circuit suggests that a responsible corporate officer would not have to personally direct, or commit, a violation of the CWA to be criminally liable. There is nothing novel in this approach. However, in a broad interpretation of criminal culpability unnecessary to its holding, the court concludes: Under this interpretation, a "responsible corporate officer," to be held criminally liable, would not have to "willfully or negligently" cause a permit violation. Instead, the willfulness or negligence of the actor would be imputed to him by virtue of his position of responsibility.61 The legal conclusion in this case, that responsible corporate officers may be persons for purposes of criminal prosecution, is clearly called for by the terms of the statute. Since the defendant had actual knowledge of the illegal conduct and directed that it occur and be concealed from the authorities, the court's analysis of the extent to which knowledge may be imputed to a corporate officer, by virtue of his position alone, must be considered dicta. The DOJ has not followed this dicta in subsequent prosecutions. In contrast to the Tenth Circuit's approach to this theory of criminal liability, the First Circuit adopted an arguably different approach in United States v. MacDonald and Watson Waste Oil Co.62 The company, its president and owner, and two employees of the company were convicted under RCRA § 3008(d)(1)63 of knowingly transporting and causing the transportation of hazardous waste, namely toluene and soil contaminated with toluene, to a facility which did not have a permit.64 The president and owner of the company contended that the court's charge to the jury was in error regarding the element of knowledge in the case of a corporate officer.65 The First Circuit was not persuaded by the Third Circuit's analysis in Frezzo Brothers because the defendants could have been found guilty solely based on negligence, and no presumption of knowledge was necessary to sustain the conviction.66 The court held as follows: We agree with the decisions discussed above that knowledge may be inferred from circumstantial evidence, including position and responsibility of defendants such as corporate officers, as well as information provided to those defendants on prior occasions. Further, willful blindness to the facts constituting the offense may be sufficient to establish knowledge. However, the district court erred by instructing the jury that proof that a defendant was a responsible corporate officer, as described, would suffice to conclusively establish the element of knowledge expressly required under § 3008(d)(1). Simply because a responsible corporate officer believed that on a prior occasion illegal transactions occurred, he did not necessarily possess knowledge of the violation charged. In a crime having knowledge as an express element, a mere showing of official responsibility under Dotterweich and Park is not an adequate substitute for direct or circumstantial proof of knowledge.67 In this opinion, the First Circuit stated quite clearly the most fundamental, and often misunderstood, aspect of the responsible corporate officer doctrine. The doctrine expands the definition of "person," but does not eliminate, or even speak to, the applicable statutory requirements for knowledge in criminal litigation.68 The DOJ has followed the teachings of this decision in its environmental prosecutions. The Responsible Corporate Officer and "Knowing Violations" The responsible corporate officer doctrine was developed in the context of statutory offenses for which Congress did not include an express standard of intent. In addition to any other person who engages in activity that Congress proscribes as a public welfare offense, a corporate officer under whose responsibility a violation has taken place is equally liable. Many questions arise regarding how these concepts interact. For example, to what extent may a trier of fact assume that a responsible corporate officer had knowledge of a crime based solely on the corporate officer's overall responsibility for business operations? Must the responsible corporate officer personally and directly participate in criminal activity to be criminally liable? May the government introduce proof of willful blindness if the corporate officer intentionally shields himself from the criminal conduct being perpetrated by his subordinates for his own or his company's benefit?69 The concept in the First Circuit's decision in MacDonald and Watson that knowledge can be proven by circumstantial evidence is so well-embraced and relied on by the courts that no one is quite sure when it came into being. It is, for example, so well-settled that circumstantial evidence may serve as a basis for proving unlawful intent that the concept is explicitly or implicitly recognized in virtually every set of jury instructions now in publication.70 Similarly, the concept of "willful blindness" has been recognized and used for years in virtually every federal circuit court of appeals.71 The underlying basis for the doctrine is that responsible individuals (including responsible corporate officers) should not be allowed to actively shield themselves from criminal liability simply by closing their eyes to violations, or deliberately or consciously avoiding [23 ELR 10152] knowledge of unlawful acts that fall within their area of responsibility.72 The extensive case law that supports the "willful blindness" doctrine and its various permutations, coupled with the well-recognized ability of jurors to infer knowledge from circumstantial evidence, demonstrates that the district court's instruction in MacDonald and Watson varied only incrementally from well-established methods of proving criminal knowledge and intent. As the First Circuit explained in detail, the only unique and objectionable aspect of the district court's instruction in MacDonald and Watson was that it allowed the jury to conclusively presume knowledge if it made certain findings of circumstantial facts.73 The First Circuit held that this presumption was improper, and that the district court should have instructed the jury that it may — rather than must — infer knowledge from those facts.74 Virtually the only meaningful difference, therefore, between the instruction given by the district court in MacDonald and Watson and the numerous other cases involving "willful blindness," "conscious avoidance," and other like approaches, is that the district court allowed the jury to conclusively presume guilt if it made certain findings of circumstantial facts, whereas in these other similar cases, courts have instructed juries that they may — in their discretion — find the defendants guilty based on specified or unspecified circumstantial evidence. Apart from this difference, the instructions regarding knowledge given by the district court in MacDonald and Watson are consistent with similar instructions given in other cases. In all instances, juries are permitted to infer that a responsible corporate officer knows of the unlawful acts of subordinates based on circumstantial evidence, which could well include the specific responsibilities he exercised — and to find a corporate officer guilty on the basis of that knowledge. Such a finding may be made regardless of whether the officer specifically gave orders to commit the violation. If the acts were within the officer's scope of actual responsibility, and the evidence shows directly or circumstantially that the officer knew of the conduct constituting the violation, or deliberately avoided such knowledge, the officer may be found guilty. Stated simply, in environmental prosecutions, the DOJ considers prosecution of responsible corporate officers in cases in which there is proof of actual knowledge by the officer under whose responsibility a violation has taken place. As Justice Frankfurter stated in Dotterweich, prosecutors' good sense must be trusted to define the class of employees who have a "responsible share in the furtherance of the transaction which the statute outlaws."75 This is not to say that the government has only relied on direct evidence to prove knowledge. To the contrary, circumstantial evidence is relevant to this determination, and knowledge may be inferred from a person's position and responsibility in a corporation, along with information provided to the corporate officer in the past.76 A person's status in a corporation, standing alone, however, is not a sufficient basis to institute a criminal prosecution against that person for an environmental criminal violation that includes a "knowing" standard.77 When individual liberties are at stake for felony violations that require significant prison terms under the U.S. Sentencing Guidelines,78 a conclusive presumption of knowledge based simply on a person's position and status in a corporation is too broad a theory of criminal liability.79 As a matter of practice, the DOJ has sought to introduce at trial additional evidence that links the corporate officer to criminal conduct, thus permitting the jury to infer that the defendant had actual knowledge of the violation.80 Recently, the government requested jury instructions in two separate CWA prosecutions. In both cases, the government requested jury instructions that the defendant's position of responsibility be considered by the jury as circumstantial evidence from which knowledge could be inferred.81 The proposed charge submitted in both cases reads substantially as follows: The element of knowledge can seldom be shown by direct evidence. Usually it is established from all the facts and surrounding circumstances. In determining the issue of knowledge, therefore, you may consider the entire [23 ELR 10153] conduct of the defendant at or near the time of the alleged offense including any statements made or acts done by the defendant. You may consider whether relevant circumstantial evidence establishes whether the defendant knew of the violations charged in the indictment. Among the circumstances you may consider in determining a defendant's knowledge is his position in the corporation, including his responsibilities under the regulations and under any applicable corporate policies and his activities as a corporate executive. Thus, you may infer that the defendant knew certain facts by virtue of his position in the corporation, his relationship to other employees or any applicable corporate policies and other facts and circumstances including information provided to the defendant on prior occasions. If the defendant was an officer of the corporation, you may consider whether the defendant was the corporate officer who had primary and direct responsibility over the activities which gave rise to the violations charged in determining whether he had knowledge of the charged violations.82 This proposed charge is in accord with the teachings of the First Circuit, because it allows the jury to draw permissive inferences without requiring that mandatory presumptions be reached based solely on a corporate officer's position in the company. Moreover, the inference must be based not only on the person's position as a responsible corporate officer, but also on other facts and circumstances. By avoiding an instruction that allows a jury to impute knowledge to a corporate officer based solely on that person's position in an organization, the United States has eliminated the possibility of allowing the defendant to be convicted of a status offense. The responsible corporate officer doctrine has existed for approximately 50 years and has been applied to public welfare violations, consistent with the language of applicable statutes. While it renders corporate officials criminally liable for acts of their subordinates, it does not eliminate the knowledge requirement set forth in the applicable statute. The doctrine has not been used by the DOJ to ignore, circumvent, or otherwise undermine the express requirements of any statute, nor has the use of this doctrine "tilted the balance in the criminal justice arena away from due process safeguards."83 While responsible corporate officers may be subject to criminal prosecution as "persons" under environmental statutes before they may be convicted of a felony, there must be sufficient evidence that they, just like any person, knowingly violated the law.84 The public has a right to expect that individuals who "voluntarily assume positions of authority in business enterprises, whose services and products affect the health and well-being of the public that supports them,"85 will act with foresight and vigilance. There is no question that enforcement action should be taken against individuals who are derelict in fulfilling these responsibilities to the public. But criminal enforcement is not always the appropriate course of action. The good sense of prosecutors, according to the sage counsel of Justice Frankfurter,86 is ever so important in deciding when to institute a criminal prosecution, who should be charged with a criminal violation, and what theories and facts should be presented to the court and jury to establish the defendant's criminal culpability.
Memorandum from Peggy Hutchins, Paralegal to Neil S. Cartusciello, Chief, Environmental Crimes Section (Dec. 9, 1992) (on file with author). 5. No. A90-015 CR (D. Alaska Oct. 8, 1991). This case involved the criminal prosecution of Exxon Corporation and its wholly owned subsidiary for the March 1989 Exxon Valdez oil spill in Prince William Sound, Alaska. More than 10 million gallons of crude oil spilled from the vessel into Prince William Sound and the Gulf of Alaska, killing a multitude of wildlife and having a catastrophic effect on the natural resources. A criminal prosecution was brought in 1990 in Alaska Federal District Court. On October 8, 1991, Chief Judge H. Russel Holland approved comprehensive criminal and civil settlements that required Exxon to pay in excess of $1 billion in criminal fines, restitution, and damages. 6. No. 92 CR 107 (D. Colo. June 1, 1992). In June 1992, Chief Judge Sherman G. Finesilver of the District of Colorado approved a criminal plea agreement that called for Rockwell Corporation to pay a fine of $18.5 million ($2 million of which was remitted) and to enter pleas of guilty to six violations of the Clean Water Act (CWA) and four violations of the Resource Conservation and Recovery Act (RCRA) for conduct that occurred while it operated the Rocky Flats Nuclear Weapons Plant near Golden, Colorado. 7. Fed. Penalties Imposed
In FY 92, the combined penalties assessed in the Rockwell International and Exxon Valdez cases alone total $143.5 million, nearly twice the amount of total penalties assessed since 1983. 8. Sixty-eight percent of all federal prosecutions (565 of 828) for environmental crimes are brought against individuals, as opposed to corporate entities. Eight percent of the individuals (451 of 565) prosecuted for environmental crimes were officers and managers of corporations.
10. Environmental Enforcement Excesses: Overcriminalization and Too Severe Punishment, 21 ELR 10658 (Nov. 1991); EPA's Environmental Enforcement in the 1990s, 20 ELR 10327 (Aug. 1990); Environmental Crimes and the Sentencing Guidelines: The Time Has Come … and It Is Hard Time, 20 ELR 10096 (Mar. 1990); The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 ELR 10099 (Dec. 1987). The reasons for this increase in publications are simple. First, several federal environmental laws have been amended to create criminal violations for conduct that had previously been subject to civil enforcement. In several instances, conduct that was previously subject to civil or criminal misdemeanor penalties has now been upgraded to felony sanctions, such as the 1991 Amendments to the Clean Air Act (CAA), which created the negligent endangerment standard and raised misdemeanors to felonies. Second, the amount of resources requested by the President, and appropriated by Congress, for environmental criminal enforcement has increased substantially. 11. 22 ELR 10099 (Feb. 1992). 12. Id. at 10100. 13. Id. at 10104. 14. Id. at 10103. 15. Id. at 10102. 16. As previously noted, supra note 1, the DOJ prosecutes cases referred to it by either the FBI, EPA, or other law enforcement agencies. The views expressed in this Article are those of the authors based on their experience with the DOJ, which has plenary authority to prosecute federal environmental crimes. It is entirely possible that others who are associated with EPA may have different views based on their experience in administering the investigative phase of these cases. 17. 320 U.S. 277 (1943). 18. 21 U.S.C. § 303 (1982). 19. 320 U.S. at 280. 20. See id. at 278. The statute is silent as to the standard of intent required to establish proof of guilt. 21 U.S.C. § 321(e) (1984). The term "person" is defined to include individual, partnership, corporation, and association. 21. 320 U.S. at 280-81. 22. Id. at 285. 23. Id. at 284. 24. Id. at 285. 25. Id. 26. 342 U.S. 246 (1952). 27. See 18 U.S.C. § 641: whoever steals anything of value of the United States shall be fined not more than $10,000 or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year or both. See id. 342 U.S. at 248 n.3. The statute was silent as to the standard of intent required to establish guilt. The location in question was a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan. The practice bombs used by the Air Force consisted of a metal cylinder about 40 inches long and eight inches across filled with sand and black powder. At various places about the range, signs read "Danger — Keep Out — Bombing Range." The range was also known as good deer country and was extensively hunted. In December 1948, the defendant went deer hunting on this property and came across spent bomb casings. In an effort to meet expenses for his hunting trip, he took three tons of the casings and sold them for a total of $84.00. See id. at 247. 28. The spent bomb casings were not stacked or piled in any order, were exposed to the weather, and were rusting. 342 U.S. at 247. 29. Id. at 249. The court charged the jury, in part, as follows: And I instruct you that if you believe the testimony of the government in this case, he intended to take it …. He had no right to take this property…. [A]nd it is no defense to claim that it was abandoned, because it was on private property…. And I instruct you to this effect: That if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty…. The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty. Not surprisingly, the jury found the defendant guilty. 30. Id. at 250. 31. Id. at 251-252. 32. Id. at 255. 33. Id. at 256. 34. Id. 35. 421 U.S. 658 (1975). 36. 21 U.S.C. § 331(k) (1982) prohibits: [T]he alteration, mutilation, destruction, obliteration, or removal, of the whole or any part of the labeling of, or the doing of, any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded. 37. See 421 U.S. at 665 n.9. 38. See id. at 666. 39. Id. at 672. 40. Id. at 673. 41. Id. at 673-74. 42. To determine the meaning of the term "responsible corporate officer," left undefined in a statute, it is necessary to look to the long history of case law. See United States v. Bailey, 444 U.S. 394, 397 (1979) ("in enacting the Federal Criminal Code Congress legislated in the light of a long history of case law that is frequently relevant in fleshing out the bare bones of a crime that Congress may have proscribed in a single sentence"). 43. 33 U.S.C. § 1319(c)(6) (1987). This section provides that "For purposes of this subsection, the term 'person' shall mean, in addition to the definition contained in section 1362(5) of this title, any responsible corporate officer." Under general definitions in 33 U.S.C. § 1362(5) (1987), ELR STAT. FWPCA 064, the term person is defined to mean "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 44. 42 U.S.C. § 7413(c)(6) (Supp. 1992), ELR STAT. CAA 50. "For the purpose of this subsection, the term 'person' includes, in addition to the entities referred to in section 7602(e) of this title, any responsible corporate officer." Under general definitions in 42 U.S.C. § 7602(e) (1989), ELR STAT. CAA 133, the term "person" is defined to include "an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department or instrumentality of the United States and any officer, agent, or employee thereof." 45. S. REP. No. 94-717, 94th Cong., 2d Sess. 40 (1976) (emphasis added), reprinted in 6 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, No. 95-16, 4701, 4741 (1978). Because the Committee preserved the knowledge requirement, it may be concluded that it intended that these officials be prosecuted just like all other persons: for "knowing" violations. 46. H.R. CONF. REP. No. 95-56, 95th Cong., 1st Sess. 131 (1977), reprinted in 3 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, No. 95-16, 381, 512 (1978). 47. H.R. REP. No. 95-294, 95th Cong., 1st Sess. 69-71 (1977), reprinted in 4 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, No. 95-16, 2465, 2536-38 (1978). 48. 33 U.S.C. § 1319(c), ELR STAT. FWPCA 039. 49. See, e.g., U.S.S.G. § 2Q. 50. 42 U.S.C. §§ 6901-6992, ELR STAT. RCRA 001-050. In United States v. Johnson and Towers, Inc., 741 F.2d 662, 14 ELR 20634 (3d Cir. 1982), the Third Circuit Court of Appeals was called upon to interpret the statutory definition of the term "person" in RCRA. The defendants (a foreman and service manager in the trucking department of the company) contended that the term "person" did not have its common-sense meaning since the CWA and the CAA added the category of responsible corporate officer to the term "person." The court noted that "[w]ithout passing on the meaning of 'any person' in the Clean Air or Clean Water Act, which are not the subject of this appeal, we note that the addition of those acts of 'any responsible corporate officer' seems to expand rather than limit the class of potential defendants." Id. at 665 n.3, 14 ELR at 20636 n.3. 51. In United States v. Frezzo Bros., 602 F.2d 1123, 9 ELR 20556 (3d Cir. 1978), cert. denied, 444 U.S. 1074 (1980), a jury found the president, secretary, and corporation guilty of six counts of willfully or negligently discharging pollutants in violation of the CWA. The defendants contended on appeal that the court "improperly instructed the jury that they could be found guilty as individuals when the indictment charged them with acting as corporate officials." The government argued the case on the responsible corporate officer doctrine recognized by the U.S. Supreme Court in United States v. Park, 421 U.S. 658 (1974) and United States v. Dotterweich, 320 U.S. 277 (1943). The court, in affirming the conviction, stated that "[w]e have examined the judge's charge and we perceive no error in the instruction to the jury on this theory." Id. at 1130 n.11. The lower court gave the following charge regarding the responsible corporate officer doctrine: Now, I want to point out to you that if you have found beyond a reasonable doubt, in your consideration of this case, that the Government has proved all of those three essential elements of the crime against the corporation, or the corporate defendant; and if you, in the course of your deliberations, found that the Government failed to prove each of those three essential elements of the crime against one or both of these individual defendants; if you find in addition, that the Government proved beyond a reasonable doubt that either or both of the individual defendants was a responsible corporate officer and held a position of authority in the operation of the business of the corporate defendant at the time, on or about the time or times alleged in the indictment, then, of course, you may find that responsible corporate officer guilty of the crime committed by the corporation. In other words, this particular Act specifically provided that responsible corporate officers can be held responsible criminally for the acts of their corporation. Now, I want to say to you that not every corporate officer is a responsible corporate officer, or one in a position of authority upon whom Congress has placed the burden of vigilance and foresight. A "responsible corporate officer," or one in a "position of authority" for these criminal purposes, has been defined as one who has a responsible share in the furtherance of the transaction or occupance which the statute forbids. Another way of defining it is as follows: If the officer has the responsibility and powers commensurate with that responsibility to devise whatever measures are necessary to ensure compliance with the statute and regulations, then that officer is a responsible corporate officer. So what I am trying to say to you: That if you find the corporate defendant, the corporation, was guilty of the crime charged in any one of these counts, because of the acts or omissions of its agents; and if you also find beyond a reasonable doubt that the defendant, for instance Guido, had by virtue of his position in the corporation, the power to prevent or correct the violation; and if you find that he failed to exercise that power to prevent or correct the wrongdoing, then you may also find him guilty. And by the same token, I want to say: If you found the corporate defendant guilty of the crime charged in any count of this indictment because of the acts or omissions of its agents; and if you find beyond a reasonable doubt that the defendant, James L. Frezzo had by virtue of his position in the corporation the power to prevent or correct the violation; and if you find that he failed to exercise that power to prevent or correct the wrongdoing, then you may also find him guilty. But you must take up each one of their cases separately in this connection. United States v. Frezzo Bros., Criminal No. 78-218, Charge Volume IVb 27-29 (E.D. Pa. 1978). Considerable questions can be raised regarding the validity of the instruction given in this case, over 14 years ago. It is not a theory that the DOJ currently pursues. 52. 931 F.2d 1413, 21 ELR 21092 (10th Cir. 1991). 53. 933 F.2d 35, 21 ELR 21449 (1st Cir. 1991). 54. See 931 F.2d at 1419, 21 ELR at 21094. 55. 33 U.S.C. §§ 1311(a), 1319(c) (1987), ELR STAT. FWPCA 028, 038. At the time of the offense, this provision of the CWA, prohibiting the willful or negligent discharge of a pollutant into waters of the United States, was punishable as a misdemeanor with a penalty of incarceration not to exceed one year or a fine of not less than $2,500 or more than $25,000 per day of violation, or both. In February 1987, Congress amended subsection (c)(1) of the CWA by eliminating the term "willful" and adding subsection (c)(2) that makes a knowing violation of the Act a felony punishable with a period of incarceration of not more than three years or a fine of not less than $5,000 or more than $50,000 per day of violation, or both. 56. 18 U.S.C. § 1001 (1982). 57. Brittain, 931 F.2d at 1419, 21 ELR at 21094. The court cites cases holding, in part, that Park is not limited to misdemeanors. However, to reach the felony level, the government must prove that a violation of the Federal Food, Drug, and Cosmetic Act (FDCA) was committed with an intent to defraud. 58. Brittain, 931 F.2d at 1419, 21 ELR at 21094. 59. 741 F.2d at 665 n.3, 14 ELR at 20636 n.3. 60. Id. 61. Id. (emphasis added). 62. 933 F.2d 35, 21 ELR 21449 (1st Cir. 1991). 63. 42 U.S.C. § 6928(d)(1), ELR STAT. RCRA 021. 64. See 933 F.2d at 39, 21 ELR at 21449. 65. Id. at 50, 21 ELR at 21454. The court instructed the jury as follows: When an individual Defendant is also a corporate officer, the Government may prove that individual's knowledge in either of two ways. The first way is to demonstrate that the Defendant had actual knowledge of the act in question. The second way is to establish that the defendant was what is called a responsible corporate officer of the corporation committing the act. In order to prove that a person is a responsible corporate officer three things must be shown. First, it must be shown that the person is an officer of the corporation, not merely an employee. Second, it must be shown that the officer had direct responsibility for the activities that are alleged to be illegal. Simply being an officer or even the president of a corporation is not enough. The Government must prove that the person had a responsibility to supervise the activities in question. And the third requirement is that the officer must have known or believed that the illegal activity of the type alleged occurred. 66. Id. at 54, 21 ELR at 21456. In Frezzo Bros., Judge Broderick instructed the jury that the government had the burden to prove that the discharge of the pollutant was done either willfully or negligently. The court defined willfully to mean "to act voluntarily, and intentionally, and with specific intent to do something that the law forbids, or with specific intent to fail to do something that the law requires you to do. Another way of saying it is to act with bad purpose, either to disobey or disregard the law …. [S]pecific intent … means more than general intent to commit the act or to refrain from acting. And to establish specific intent, the Government must prove that a defendant knowingly did an act which the law forbids, or knowingly failed to do an act which the law requires, purposefully intending to violate the law …." Frezzo Bros., Criminal No. 78-218, Charge Volume IVb, at 22. "Willfulness" is a higher standard than the general intent standard of "knowing conduct." 67. Id. at 55. (emphasis added). Accord United States v. White, 766 F. Supp. 873 (E.D. Wash. 1991). It should be noted that the indictments brought against the individuals in connection with the White prosecution were voluntarily dismissed by the government. 68. In fact, Congress considered and rejected an amendment to the CAA to limit the applicability of civil penalties to "knowing" violations. The Committee on Interstate and Foreign Commerce believed that "the remedial and deterrent purposes of the civil penalty provision would be better served by not limiting its application to 'knowing' violations." There was no discussion, however, as to what the knowledge requirement ought to be in criminal prosecution. 4 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, at 2537. 69. The February 1992 Article identifies the MacDonald and Watson case as a principal example of the government's dramatic departure from the due process requirements of the U.S. Constitution and, more specifically, from the "fundamental tenet" that violations be committed knowingly and intentionally. The more troubling aspect of the decision is that the court went on to state that the knowledge criterion could be satisfied without direct evidence that a corporate officer actually had knowledge of a violation. The court stated that knowledge can be proven by circumstantial evidence, such as a defendant's "position and responsibility" or "willful blindness to the facts constituting the offense." 70. See, e.g., 1 E. DEVITT & C. BLACKMAR, FEDERAL JURY PRACTICE AND INSTRUCTIONS, § 15.01 (3d ed. 1977) stating that [t]here are two types of evidence from which you may find the truth as to the facts of a case — direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness; circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. [i]ntent ordinarily may not be proved directly, because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. You may consider any statement made and done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. You may consider it reasonable to draw inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. As I have said, it is entirely up to you to decide what facts to find from the evidence. 71. The leading case is United States v. Jewell, 532 F.2d 697, 699 n.2 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976) (deliberately refrained from acquiring positive knowledge). See also Spurr v. United States, 174 U.S. 728, 735 (1899) (wrongful intent is the essence of the crime; evil design may be presumed if the officer purposely keeps himself in ignorance); United States v. Cincotta, 689 F.2d 238, 243 & n.2 (1st Cir.), cert. denied, 459 U.S. 991 (1982) (if someone refuses to investigate an issue that cries out for investigation, we may presume that he already knows the answer the investigation would reveal); United States v. West, 666 F.2d 16, 19 (2d Cir. 1981) (acted with a conscious purpose to avoid learning); United States v. Biggs, 761 F.2d 184, 188 (4th Cir. 1985) (deliberately avoided learning); United States v. DeVeau, 734 F.2d 1023 1028 & n.2 (5th Cir.), cert. denied, 469 U.S. 1158 (1985) (defendant deliberately closed his eyes to what would otherwise have been obvious); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (may not willfully and intentionally remain ignorant). 72. It is settled law that a finding of guilty knowledge may not be avoided by a showing that the defendant closed his eyes to what was going on around him; "see no evil" is not a maxim in which the criminal defendant should take any comfort. United States v. Bernstein, 533 F.2d 775, 796-98 (2d Cir. 1976); Jewell, 532 F.2d 697 (9th Cir. 1976). United States v. Hanlon, 548 F.2d 1096, 1101 (2d Cir. 1977). See also, 1 E. DEVITT & C. BLACKMAR, FEDERAL JURY PRACTICE AND INSTRUCTIONS, § 14.09 (3d ed. 1977) [t]he element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. It is entirely up to you as to whether you find any deliberate closing of the eyes, and the inferences to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge. 73. 933 F.2d at 50-55, 21 ELR at 21454-56. 74. Id. 75. 320 U.S. at 285. 76. MacDonald and Watson, 933 F.2d at 55, 21 ELR at 21456. 77. In Gordon v. United States, 347 U.S. 909, 910 (1954), the petitioners, who were business partners in the sale of applicances, were convicted under § 603 of the Defense Production Act of 1950 for a willful violation of the regulations promulgated in the Act. The district court instructed the jury that "the knowledge of the petitioners' employees was chargeable to petitioners in determining petitioners' willfulness. Because of the instruction, the Government has confessed error. We agree, and accordingly reverse the judgment and remand the case to the District Court for retrial." 78. U.S. Sentencing Commission, Guidelines Manual § 2Q (Nov. 1991). 79. It is unclear whether the Dotterweich, Park, Frezzo Bros., and Brittain courts would have applied the responsible corporate officer doctrine as a mandatory presumption to felony violations, expressly requiring knowledge as an element, with the likely imposition of incarceration following conviction. See MacDonald and Watson, 933 F.2d at 53, 21 ELR at 21455. 80. Thus, in United States v. Brittain, 931 F.2d 1413, 21 ELR 21092 (10th Cir. 1991), the defendant, who was the generally responsible corporate officer, was told of the illegal discharge, personally observed it, and instructed another not to report it. In United States v. Baytank, 934 F.2d 599, 21 ELR 21101 (5th Cir. 1991), the individual defendants were not just responsible corporate officers, but were "intimately versed" in the company's operations, had direct responsibility for day-to-day operations, including those which constituted the violations, and including filing of environmental compliance forms, thus allowing the jury to infer actual knowledge of the illegal actions. 81. United States v. Curtis, No. A91-75 CR (D. Alaska May 26, 1992) (available at Environmental Crimes Section) and United States v. Ramagosa, No. 3:CR-91-079 (M.D. Pa. 1992). 82. This charge was given to the jury in Ramagosa. The Curtis court, however, did not believe this charge was necessary and provided the jury with the more traditional circumstantial evidence charge. 83. See Onsdorff & Mesnard, 22 ELR at 10100. 84. In addition to other relevant criteria, the DOJ prosecutes when it has a reasonable basis to believe it can obtain a conviction. Federal Principles of Prosecution, Comment to Part A.2; Part B.3 (U.S. Dep't of Justice 1980). 85. Park, 421 U.S. at 672. 86. Dotterweich, 320 U.S. at 285. 23 ELR 10145 | Environmental Law Reporter | copyright © 1993 | All rights reserved |