U.S. v. Hopkins

• Decision Date: 28 April 1995
• Docket Number: No. 989,D,989
• Citation: 53 F.3d 533
• Parties: , 63 USLW 2697, 25 Envtl. L. Rep. 21,178 UNITED STATES of America, Appellee, v. Robert H. HOPKINS, Defendant-Appellant. ocket 94-1428.
• Court: U.S. Court of Appeals — Second Circuit

Page 533

53 F.3d 533

40 ERC 1953, 63 USLW 2697, 25 Envtl.

L. Rep. 21,178

UNITED STATES of America, Appellee, v. Robert H. HOPKINS, Defendant-Appellant.

No. 989, Docket 94-1428.

United States Court of Appeals, Second Circuit.

Argued Feb. 9, 1995.

Decided April 28, 1995.

Joseph C. Hutchison, Asst. U.S. Atty., New Haven, CN (Christopher F. Droney, U.S. Atty., D. Conn., on the brief), for appellee.

Robert B. Mann, Providence, RI (Mann & Mitchell, on the brief), for defendant-appellant.

Before: OAKES, KEARSE, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Robert H. Hopkins appeals from a judgment entered in the United States District Court for the District of Connecticut following a jury trial before Ellen Bree Burns, Judge, convicting him on one count of falsifying, tampering with, or rendering inaccurate a monitoring device or method required to be maintained pursuant to the Clean Water Act ("CWA" or the "Act"), 33 U.S.C. Secs. 1251-1387 (1988 & Supp. V 1993), in violation of id. Sec. 1319(c)(4); one count of violating the restrictions of a discharge permit issued pursuant to the Act, in violation of id. Sec. 1319(c)(2)(A); and one count of conspiracy to violate Secs. 1319(c)(2)(A) and (c)(4), in violation of 18 U.S.C. Sec. 371 (1988). Hopkins was sentenced principally to 21 months' imprisonment, to be followed by a two-year period of supervised release, and ordered to pay a $7,500 fine. On appeal, he contends that the district court improperly instructed the jury on the knowledge element of the offenses with which he was charged and erred in giving a "conscious avoidance" instruction with respect to the two substantive counts. For the reasons below, we affirm the judgment of conviction.

I. BACKGROUND

The present prosecution focused on environmental problems of Spirol International Corporation ("Spirol"), a manufacturer of metal shims and fasteners in northeastern Connecticut. Spirol's manufacturing operation involved a zinc-based plating process that generated substantial amounts of wastewater containing zinc and other toxic materials; this wastewater was discharged into the nearby Five Mile River. The State of Connecticut's Department of Environmental Protection ("DEP"), pursuant to authority delegated by the United States Environmental From at least 1987 through September 6, 1990, Hopkins was Spirol's vice president for manufacturing. Hopkins signed the 1987 consent order with DEP on behalf of Spirol, and he had corporate responsibility for ensuring compliance with the order and the DEP permit. The present prosecution charged that between March 1989 and September 1990 Hopkins deliberately tampered with Spirol's wastewater testing and falsified its reports to DEP. The government's proof at trial included the testimony of Dennis Mark Morrison, Aaron Anderson, and John J. Morris, who at the pertinent times were Spirol employees. Taken in the light most favorable to the government, the evidence was as follows.

Protection Agency, administered the CWA provisions applicable to Spirol's discharges into the river. In 1987, Spirol, then operating under the name "CEM Co.," entered into a consent order with DEP, requiring Spirol to pay a $30,000 fine for past zinc-related discharge violations and to comply in the future with discharge limitations specified in the order. In February 1989, DEP issued a modified "wastewater discharge permit" (the "DEP permit") imposing more restrictive limits on the quantity of zinc and other substances that Spirol was permitted to release into the river.

A. The Evidence as to the Sampling Process Directed by Hopkins

The DEP permit required Spirol each week to collect a sample of its wastewater and send it to an independent laboratory by Friday morning of that week. Spirol was required to report the laboratory results to DEP in a discharge monitoring report once a month. Under the DEP permit, the concentrations of zinc in Spirol's wastewater were not to exceed 2.0 milligrams per liter in any weekly sample, nor to average more than one milligram per liter in any month.

During the period March 1989 to September 1990, Spirol began its weekly sampling process on Mondays. A composite sample of the plant's wastewater was aggregated over a 24-hour period by Morrison and Anderson, who were involved in the zinc-plating process. Morrison was Anderson's supervisor and reported directly to Hopkins. Before sending a sample to the independent laboratory, Morrison and Anderson measured the concentration of zinc in the sample, and Morrison reported the results to Hopkins. Morrison and Anderson testified that if the sample collected on a Tuesday contained less than one milligram of zinc per liter, it would be sent promptly to the independent laboratory with a "chain of custody" record signed by Hopkins. If the Tuesday sample was not below that level, however, it was not sent to the laboratory. Morris, Spirol's maintenance engineer, testified that Hopkins expressed concern that if the samples did "not meet the permit requirements ... the company would be facing another fine." (Trial Transcript ("Tr.") at 48.) Accordingly, whenever the Tuesday in-house test indicated a zinc content above the one-milligram-per-liter level, Hopkins directed that that sample be discarded and that another 24-hour composite sample be taken on Wednesday. In 54 of the 78 weeks in question, Spirol's samples were sent to the laboratory later than Tuesday.

If a Wednesday sample failed the in-house test, Hopkins sometimes ordered that it too be discarded and that another sample be taken on Thursday; but he more often instructed Morrison and Anderson to dilute the Wednesday sample with tap water or to reduce the zinc concentration using an ordinary coffee filter. Similarly, if the Thursday sample failed to meet the proper standard, Hopkins usually directed that it be diluted or filtered; but, Morrison testified, "A lot of times, we would go right through Friday." (Tr. at 90.) Any Friday sample that failed to meet the standard was always diluted or filtered, in order that a good sample could be sent to the laboratory by the Friday deadline. Morrison testified that in some of the samples submitted to the laboratory, there was more tap water than wastewater.

From March 1989 to September 6, 1990, Hopkins filed with DEP monthly discharge monitoring reports consolidating the weekly test results from the independent laboratory. These reports showed no zinc concentrations above one milligram per liter. On each report, Hopkins signed the following certification I certify under penalty of law that this document and all attachments were prepared under by [sic ] direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information. [sic] The information is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

Contrary to Hopkins's certifications of his belief as to truth and accuracy, Morrison testified that Hopkins had caused the samples to be "tampered with" about "40 percent of the time." (Tr. at 115.) Morrison testified that on 25-30 occasions when he reported back to Hopkins that he had finally succeeded in getting a satisfactory sample by means of dilution or filtration, Hopkins responded, "I know nothing, I hear nothing." (Tr. at 116.) Anderson testified that on one occasion in the summer of 1989, he reported directly to Hopkins that an unsatisfactory sample had been collected. Hopkins's response was, " 'See what you could do with it' " (Tr. at 136); when Anderson returned three hours later and reported that the sample was now satisfactory, Hopkins signed the chain-of-custody record without comment, question, or sign of surprise.

Morris testified that he told Hopkins that the testing procedures being used were improper. Regardless of the test results, Spirol continued to discharge its wastewater into the river.

B. The Trial Court's Instructions as to Knowledge

In December 1993, Hopkins was charged in a three-count indictment alleging (1) that he had knowingly falsified or tampered with Spirol's discharge sampling methods, in violation of 33 U.S.C. Sec. 1319(c)(4) (count one); (2) that he had knowingly violated the conditions of the DEP permit, in violation of 33 U.S.C. Sec. 1319(c)(2)(A) (count two); and (3) that he had conspired to commit those offenses, in violation of 18 U.S.C. Sec. 371.

At trial, the district court instructed the jury as follows, over Hopkins's objections, on the knowledge element of each count. As to count one, the court stated:

Knowledge may be established by direct or circumstantial evidence. One may not willfully or intentionally remain ignorant of a fact, material or important to his conduct to escape the consequences of criminal law.

If you find beyond a reasonable doubt that the defendant was aware that there was a high probability that employees of Spirol were tampering with a monitoring device or method but he deliberately and consciously avoided confirming this fact so that he could deny knowledge if apprehended, then you may treat this deliberate avoidance of [sic ] the equivalent of knowledge, unless you find the defendant actually believed that Spirol employees were not tampering with a monitoring device or method.

A showing of negligence, mistake or even foolishness on the part of the defendant is not enough to support an inference of knowledge.

It is not necessary for the government to prove that the defendant intended to violate the law or that the defendant had any specific knowledge of the particular statutory, regulatory or permit requirements imposed under the Clean Water...