427 F.3d 1278 (10th Cir. 2005), 04-1228, United States v. Ortiz

Docket Nº:04-1228.
Citation:427 F.3d 1278
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. David Enrique ORTIZ, Defendant-Appellee.
Case Date:November 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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427 F.3d 1278 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,


David Enrique ORTIZ, Defendant-Appellee.

No. 04-1228.

United States Court of Appeals, Tenth Circuit.

Nov. 1, 2005

Appeal from the United States District Court for the District of Colorado, D.C. No. 03-CR-113-M

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Patricia W. Davies, Assistant U.S. Attorney, Denver, Colorado (William J. Leone, Acting United States Attorney, James C. Murphy, Assistant U.S. Attorney, Denver, Colorado and Linda Kato, Regional Criminal Enforcement Counsel, U.S. EPA, Region 8, Denver, Colorado with her on the briefs) for the Plaintiff-Appellant.

Virginia L. Grady, Assistant Federal Public Defender, Denver, Colorado (Raymond P. Moore, Federal Public Defender, Denver, Colorado and John T. Carlson, Assistant Federal Public Defender, Denver, Colorado with her on the brief) for the Defendant-Appellee.

Before BRISCOE, BRORBY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

After a jury convicted David Ortiz of violating the Clean Water Act by negligently discharging a pollutant into the Colorado River, the district court entered a judgment of acquittal. The court ruled as a matter of law that an individual is not guilty of negligently discharging a pollutant unless he knows that the pollutant's path terminates in protected water. This conclusion is at odds with the plain language of the Clean Water Act, which criminalizes any act of ordinary negligence that leads to the discharge of a pollutant into the navigable waters of the United States. We therefore REVERSE the district court's judgment of acquittal.


When reviewing a judgment of acquittal, this court must view the evidence in the light most favorable to the government. United States v. McClatchey, 217 F.3d 823, 829 (10th Cir. 2000). Construed in this manner, the evidence adduced at trial presents the following facts.

Chemical Specialties, Inc. operates a propylene glycol distillation facility in Grand Junction, Colorado where David Ortiz served as the Grand Junction facility's operations manager and sole employee. The process of distilling propylene glycol, an airplane wing de-icing fluid, produces significant amounts of wastewater. At the optimum mixture, the distillation of 1,000 gallons of used propylene glycol generates 500 gallons of industrial wastewater. Propylene glycol distillation enterprises typically discharge such wastewater to a municipal waste treatment plant for processing. Chemical Specialties, however, specifically declined to obtain a permit to discharge its industrial wastewater to

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Grand Junction's pretreatment plant and instead represented to city officials that it would ship all of its wastewater to a nearby business.

Grand Junction currently operates a bifurcated sewage system consisting of a wastewater treatment plant fed by numerous sanitary sewer lines and a storm water drainage system that collects rain water and distributes it into the Colorado River. Prior to the early 1990s, the city maintained a combined sewer line directing both waste and rain water to the treatment plant. In segregating its combined line into sanitary sewer lines and storm drains after the early 1990s, Grand Junction overlooked sewer service line connections in the area near Chemical Specialties, with the effect that since the early 1990s all sanitary discharges from Chemical Specialties and surrounding businesses flowed into a storm drain that discharged into the Colorado River.

In late April 2002, the city received a complaint of a noxious odor near the Colorado River, and subsequent investigation revealed a black substance accompanied by a pungent odor described as being reminiscent of onions pouring from a storm drain outfall and seeping into the river. City employees traced the malodorous black substance upstream along the storm drain and took samples en route. The samples were found to contain propylene glycol and propionaldehyde, a breakdown constituent of propylene glycol.

On May 1st, a city official accompanied by an employee of the Colorado Department of Public Health and Environment met with Ortiz at Chemical Specialties. After informing Ortiz that they were investigating the source of an unusual odor downstream from Chemical Specialties, Ortiz insisted that he sent all of his wastewater to a nearby business. Six days later, after discovering more of the black discharge downstream from Chemical Specialties and none upstream, the two officials returned and told Ortiz that the substance appeared to be coming from his facility. Specifically, they told Ortiz that black fine material reeking like onions was spilling into the Colorado River, that the officials had traced it through the storm drain, and that it seemed to be emanating from Chemical Specialties. They asked Ortiz if the facility had discharged any wastewater. Again, Ortiz said no. Dubious, the officials sought and received permission to inspect the facility, whereupon they observed significant amounts of water on the bathroom floor and several hoses and pumps lying nearby. On inspection of the grounds behind the facility, the officials detected the same onion odor. They also observed a large canvas bag containing a black granular substance, which Ortiz identified as carbon used in the distillation process.

During a follow-up investigation on May 29th, a city employee collected samples from the storm drain downstream from Chemical Specialties and from a pool of water below the storm drain flapper gate. Analysis revealed propylene glycol in the samples. Because earlier investigation had ruled out surrounding businesses as the likely source of the discharges, officials turned their attention exclusively to Chemical Specialties. On June 6th, a city employee conducted a test that conclusively demonstrated a connection between the toilet in Chemical Specialties and the storm sewer. The city employee informed Ortiz that the toilet was definitely connected to the storm drain and instructed Ortiz not to discharge anything down the toilet or sink. In their words, officials "shut the water off" at Chemical Specialties and arranged for a portable toilet and handwash station to be delivered to the facility.

On June 18th, two EPA special agents were dispatched to Chemical Specialties

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where they discovered a tanker truck spewing a liquid with "a fermenting type of smell that comes off of [wet onions]" onto the ground at the facility. The agents then walked to the nearby storm drain outfall where yet again a black liquid with the stench of rotten onions was observed pouring into the Colorado River. Although the storm drain downstream from Chemical Specialties had the same smell, immediately upstream from the facility the storm drain was dry and odorless. Returning to Chemical Specialties, the agents interviewed Ortiz who informed them that the leaking tanker contained propylene glycol that Ortiz intended to process. Ortiz stated that he was the sole employee of Chemical Specialties, and volunteered that he was the only person with a key to the facility. When asked if he had ever discharged pollutants through the toilet, Ortiz refused to answer. City investigators again observed puddles of water on the bathroom floor and hoses lying nearby, and noted that water supply to the toilet had been turned back on and the toilet was operational.

On submission of the case to a federal grand jury, a superseding indictment was returned charging Ortiz with two violations of the Clean Water Act ("CWA"): (1) negligently discharging chemical pollutants from a point source (a storm drain) into waters of the United States (the Colorado River) without a permit on May 29, 2002 and (2) knowingly discharging chemical pollutants from a point source into waters of the United States without a permit on June 18, 2002. Having been convicted on both counts on trial to a jury, Ortiz filed a motion for judgment of acquittal. The district court denied the motion as to Count Two but granted it as to Count One, finding: "There is no evidence that the defendant had any awareness that the toilet was not connected to a sanitary sewer line before June 6, 2002. While the first count of the Superseding Indictment charges a negligent discharge, the defendant could not be guilty on that discharge in the absence of his knowledge that using the toilet would result in the discharge . . . to the river." At sentencing, the court declined to apply an enhancement for an "ongoing, continuous or repetitive discharge" pursuant to U.S.S.G. § 2Q1.3(b)(1)(A), and also denied the government's requested enhancement for a "discharge without a permit" under U.S.S.G. § 2Q1.3(b)(4). Ortiz received a sentence of twelve months' imprisonment. The government appeals the judgment of acquittal on Count One and the court's decision denying the two requested enhancements.


"This court gives no deference to a district court's decision to set aside a jury's guilty verdict and grant a defendant's post-verdict motion for judgment of acquittal. "McClatchey, 217 F.3d at 829. Rather, we review a defendant's motion for judgment of acquittal de novo. In deciding whether a district court erred in entering a judgment of acquittal, we review the evidence submitted at trial in the light most favorable to the government and "determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. "Id. Because the district court misinterpreted the statute of conviction, and because sufficient evidence supports the jury's guilty verdict, we reverse the judgment of acquittal and reinstate Ortiz's conviction for negligently discharging a pollutant in violation of the CWA, 33 U.S.C. §§ 1311(a) and 1319(c)(1)(A).


The CWA prohibits the discharge of any pollutant into...

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