U.S. v. Lucas
| Citation | 516 F.3d 316 |
| Decision Date | 01 February 2008 |
| Docket Number | No. 06-60289.,06-60289. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert J. LUCAS, Jr.; Big Hill Acres, Inc.; Consolidated Investments, Inc.; Robbie Lucas Wrigley; M.E. Thompson, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stone, Pigman, Walther & Wittmann, New Orleans, LA, William Lee Guice, III, Rushing & Guice, Ocean Springs, MS, for Defendants-Appellants.
Malcolm Reed Hopper, Pac. Legal Found., Sacramento, CA, for Amicus Curiae, Pac. Legal Foundation.
James Murphy, Nat. Wildlife Fed., Montpelier, VT, Myron Joseph Hess, Nat. Wildlife Fed., Austin, TX, for Amici Curiae, Nat. Wildlife Fed. and Mississippi Wildlife Fed.
Appeal from the United States District Court for the Southern District of Mississippi.
Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.
I
Defendants sold house lots and designed and certified septic systems on wetlands but represented the lots as dry. Septic systems on the lots failed, causing waste discharges. The Government charged the corporate developer and various individuals with Clean Water Act (CWA) violations, mail fraud, and conspiracy to commit mail fraud and to violate the CWA. A jury found Defendants guilty on all counts.1 Defendants appealed.
II
Robert J. Lucas owned Big Hill Acres, Inc. (BHA, Inc.) and Consolidated Investments, Inc. Through these companies, he acquired Big Hill Acres (BHA), a large parcel of land in Jackson County, Mississippi approximately eight miles from the Gulf of Mexico. He subdivided the property and sold mobile home lots under long-term installment plans. The property was not connected to a central municipal waste system, and County law required Lucas to certify and install individual septic systems on each lot before they could establish electric hook-ups or sell the lots. In Jackson County, septic systems must be approved by an engineer with the Mississippi Department of Health (MDH) or by an independent licensed engineer. Lucas initially hired an MDH engineer to approve septic systems, but MDH withdrew many of its initial approvals when it found that the lots were on saturated soils. Lucas then hired a private licensed engineer, M.E. Thompson, Jr., to approve and certify the septic systems. Robbie Lucas Wrigley, Lucas's daughter, advertised the lots, showed them to prospective buyers, and leased them.
The Army Corps of Engineers, the EPA, the MDH, and the Mississippi Department of Environmental Quality (DEQ) became concerned that Defendants were selling house lots and installing septic systems on wetlands. These agencies issued several cease and desist orders against Lucas and Thompson,2 and the EPA sent letters to residents and organized a meeting of the residents to warn them of lot conditions and to tell them where wetlands were located on the property. It also met with BHA's counsel to attempt to designate the areas where they would allow development. These efforts were not fully successful.
The Government filed a 41-count indictment against Defendants, in June of 2004 and then a superseding indictment, charging filling of wetlands without a Section 404 permit from the Corps, failing to obtain Section 402 National Pollutant Discharge Elimination System (NPDES) Permits for the septic tanks, mail fraud, and conspiracy to commit mail fraud and to violate Sections 402 and 404 of the CWA.3 The district court denied pre-trial motions to dismiss the CWA charges. After the Government concluded its case, the court denied a joint motion for judgment of acquittal for all counts, except for counts 30-35 charging violations of the CWA. After a weekend recess and an argument from the Government that granting the motion would preclude appeal, the court reversed the acquittal. A jury convicted Defendants on all counts, and the court denied Defendants' joint motion to vacate the verdict, enter a judgment of acquittal on all counts, or to order a new trial. The court sentenced Lucas, Wrigley, and Thomas to prison terms; placed BHA, Inc. and Consolidated Investments on probation; and ordered all Defendants to pay restitution, special assessments, and fines.
III
The first and overarching question is jurisdiction—whether the jury was properly required to find that the property at issue was subject to the CWA. Lucas, BHA, Inc., and Consolidated Investments, Inc., as well as Wrigley in adopting all arguments in Lucas's brief and Thompson in adopting the CWA jurisdiction issues raised in Lucas's brief, urge that the jury instructions failed to require the jury to find that the wetlands were "waters of the United States" and in refusing its requested charge. The instructions stated in relevant part,
The term navigable waters means waters of the United States. Whether a body of water is navigable-in-fact is determined by whether it is used or susceptible of being used in its natural and ordinary condition as a highway for commerce over which trade and travel are, or may be, conducted in the customary modes of trade and travel on water.
The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions .... Not all wetlands fall under the protection of the Clean Water Act. However, wetlands that are waters of the United States are protected by the Clean Water Act. Wetlands are considered waters of the United States if they are adjacent to a navigable body of open water. Wetlands are adjacent to a navigable body of water if there is a significant nexus between the wetlands in question and a navigable-in-fact waterway. Some of the factors which you may wish to consider in determining whether there is a significant nexus include, but are not limited to: . . . flow rate of surface waters from the wetlands into a navigable body of water . . . evidence of any past or present contamination of a navigable body of water attributable to the discharge of pollutants on the wetlands ... when, or to what extent, contaminants from the wetlands have or will affect a navigable body of water . .
Defendants argue that the court erred in not including their requested language that
The Clean Water Act does not permit the federal government to impose regulations over tributaries that are neither themselves navigable nor truly adjacent to navigable waters . . . adjacency implicates a "significant nexus" between the water in question and the navigable in fact waterway. If the government fails to prove beyond a reasonable doubt that the wetlands at issue in this case are in fact navigable or truly adjacent to i.e. lying near, close, contiguous, or adjoining a navigable waterway, you must find the defendants not guilty on counts Twenty through Forty-One.
They allege that the instructions, which did not include their proposed language, were in error because they "could have lead the jury to believe that they could find Defendants guilty under the CWA even if they found no significant nexus."4
We review alleged error in jury instructions for an abuse of discretion, reversing "only when the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.'"5 A district court abuses its discretion in omitting a requested jury instruction only if the requested language "(1) is substantively correct; (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present effectively a particular defense."6
The court's instructions were not in error, nor was the court's omission of Defendants' requested instructions. The court's instructions required that the jury find that the wetlands were waters of the United States adjacent to navigable waters with a significant nexus between the wetland and the navigable-in-fact waterway to establish CWA jurisdiction. The instructions substantially covered Defendants' requested instructions by requiring adjacency7 as defined by a significant nexus. The closing arguments also included the "significant nexus" language. The Government argued
[T]he government has shown that there is a significant nexus between the wetlands on Big Hill Acres and navigable-in-fact waters. Showed that the surface from the Big Hill Acres site drains in three directions. The western portions of the site drain into Bayou Costapia. Bayou Costapia empties into the Tchoutacabouffa River, which then empties into the Gulf of Mexico. The central portions of the Big Hill Acres development drained through tributaries into Old Fort Bayou Creek. And Old. Fort Bayou Creek connects to Old Fort Bayou, which is a protected coastal preserve emptying into the Gulf of Mexico. And the eastern portions drain into the headwaters of Little Bluff Creek, which then connects to Bluff Creek, which flows into the Pascagoula River and on to the Gulf of Mexico. And what we also demonstrated was that you could walk on wetlands from any one of these three areas on Big Hill Acres all the way to the navigable-in-fact waters.
Defendants also emphasized the need for a significant nexus finding in their closing arguments. Lucas's attorney argued, "And if you find that the land at Big Hill Acres is not adjacent to a navigable-in-fact body of water, does not have a significant nexus to a navigable water, you should return a verdict of not guilty on all the Clean Water Act counts." The court did not abuse its...
To continue reading
Request your trial
-
Precon Development v. U.S. Army Corps of Engineers
...... United States v. Lucas, 516 F.3d 316, 327 (5th Cir.2008); United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009). . Due to the procedural history ......
-
United States v. Donovan
...... why he would have affirmed the judgments below, Justice Stevens noted that, “[i]t has been [the Supreme Court's] practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate.” Id. at ...Lucas, 516 F.3d 316, 325–27 (5th Cir.2008) (upholding Corps jurisdiction over wetlands where evidence at trial supported jurisdiction under the ......
-
US v. Valencia
...... Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). A "material" statement has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." See United States v. Lucas, 516 F.3d 316, 339 (5th Cir.) (quotation omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 116, 172 L.Ed.2d 36 (2008) 11 ; United States v. Philip Morris USA Inc., 566 F.3d 1095, 1122 (D.C.Cir.2009) ("This materiality requirement is met if the matter at issue is of importance to a reasonable ......
-
U.S. v. Cundiff
...Cir.2008), cert. denied sub nom. as United States v. McWane, ___ U.S. ___, 129 S.Ct. 627, ___ L.Ed.2d ___ (2008); United States v. Lucas, 516 F.3d 316 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 116, 172 L.Ed.2d 36 4. For instance, if one dropped a poison into the Cundiffs' wetlan......
-
What Wetlands Are Regulated? Jurisdiction of the §404 Program
...was promulgated in the 1980’s. Court held that regulation could be challenged on an “as applied” basis. United States v. Lucas , 516 F.3d 316 (5th Cir. 2008), cert. denied, 2008 U.S. LEXIS 6488 (Oct. 6, 2008) Upheld criminal convictions for CWA violations holding that the wetlands at issue,......
-
Specific Environmental Statutes
...not violate due process by permitting criminal penalties for ordinary negligent conduct.” 97 84. Id . at 1183. 85. Id. at 1184-85. 86. 516 F.3d 316, 322 (5th Cir. 2008). 87. Id . at 322 n.2. 88. Id . at 350. 89. Id . at 351. 90. 757 F. Supp. 21, 22 Envtl. L. Rep. (Envtl L. Inst.) 20536 (E.D......
-
Table A: Decisions Interpreting the Elements of the Water Pollution Offense
...Cir. 2009) 28. Oregon Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 39 ELR 20297 (9th Cir. 2008) 29. United States v. Lucas, 516 F.3d 316, 38 ELR 20041 (5th Cir. 2008) 30. United States v. Robinson, 505 F.3d 1208, 37 ELR 20265 (11th Cir. 2007) 31. Northern Cal. River Watch v. Cit......
-
Environmental crimes.
...from Congress or the Corps). Courts in the Fifth and Sixth Circuits have found that both tests were met. See United States v. Lucas, 516 F.3d 316, 327 (5th Cir. 2008) (upholding jury's finding that all of the Rapanos standards had been met); United States v. Cundiff, 555 F.3d 200, 210 (6th ......