U.S. v. M/G Transport Services, Inc.
| Decision Date | 22 April 1999 |
| Docket Number | No. 97-3909,97-3909 |
| Citation | 173 F.3d 584 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. M/G TRANSPORT SERVICES, INC., J. Harschel Thomassee, Fred E. Morehead, and Robert S. Montgomery, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
H. Claire Whitney (briefed), James A. Morgulec (argued and briefed), Environmental Crimes Section, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Plaintiff-Appellant.
Glenn V. Whitaker (argued and briefed), Victor A. Walton, Jr. (briefed), Eric W. Richardson (briefed), Vorys, Sater, Seymour & Pease, Cincinnati, OH, for Defendant-Appellee M/G Transport Services, Inc.
Thomas R. Smith (argued and briefed), Haverkamp, Brinker, Rebold & Riehl, Cincinnati, OH, for Defendant-Appellee J. Harschel Thomassee.
Marc D. Mezibov (argued and briefed), Ted L. Wills (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Defendants-Appellees Fred E. Morehead and Robert S. Montgomery.
Before: MARTIN, Chief Judge; DAUGHTREY and CLAY, Circuit Judges.
This appeal stems from a federal prosecution of alleged environmental crimes involving the non-permitted discharge of pollutants into the Ohio River from tow boats owned by M/G Transport Services, Inc. After a seven-week trial, a jury convicted M/G Transport and J. Harschel Thomassee, an official with the company, on the charge of conspiracy to violate the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1386, popularly known as the Clean Water Act. The jury further convicted M/G Transport and Thomassee of failure to notify the appropriate agencies of the discharge of a harmful quantity of oil from one of the company's vessels, as charged in Count 2 of the indictment. Finally, M/G Transport, Thomassee, and Fred Morehead and Robert Montgomery, captains of M/G Transport vessels, were found guilty of various charges in Counts 4 through 9 entailing the dumping of ash and other pollutants into federal waterways. The district court, however, granted the defendants' motions for judgment of The United States now appeals from the dismissal of the charges of dumping pollutants without a permit. Because we hold that sufficient evidence exists in the record to justify a rational finder of fact in concluding that the defendants are guilty of the various charges beyond a reasonable doubt, we reverse the judgment of the district court and remand the case for entry of a judgment of conviction on Counts 4 through 9 and appropriate sentencing on those convictions.
acquittal on all charges contained in Counts 4 through 9.
Trial testimony established that M/G Transport operated tow boats on the Mississippi, Ohio, and Tennessee Rivers, as well as their tributaries. From 1985 until January 1, 1992, Thomassee served in the position of marine superintendent of the company with operational control of all M/G Transport vessels. Furthermore, from 1986 until January 1, 1992, defendant Thomassee also occupied the position of vice-president of operations of M/G Transport.
Other trial witnesses testified regarding the daily life aboard the tow boats. Vessel engineers and assistant engineers stated that the boats accumulated a combination of water, oil, grease, and other materials in the bilges of the vessels. Although the engineers knew they were not to discharge the "bilge slop" overboard if such a discharge would produce a sheen upon the water, they nevertheless did so because there were no places to store the wastewater on board. The witnesses testified, however, that they would dump the "slop" in remote locations on the rivers at night so as to avoid detection.
Evidence offered at trial also indicated that Thomassee exercised ultimate supervision over the operation of the tow boats and that he and the company were aware of the discharge of oil and other pollutants into the waters of the rivers served by M/G Transport. For example, the bilges of the vessels were known to be too small to hold all bilge slop collected during a river run. Nevertheless, Thomassee, the only company official with the authority to have a slop barge offload waste material from the vessels, rarely requested such services. Moreover, Thomassee himself was on one of M/G Transport's vessels when 40 gallons of lube oil leaked into the water. No official aboard the vessel reported the discharge to authorities; instead, the engineer was merely directed to put detergent into the water to help break down the spill.
Numerous other witnesses testified that the tow boats did not carry dumpsters on them prior to the time Thomassee no longer worked for the company. Consequently, the vessels used 55-gallon burn barrels to incinerate any solid waste or debris gathered or generated during time out of port. Every two or three days, the barrels would fill up and deck hands were ordered, as company policy, to dump the ash and unburned material directly into the river. In fact, the barrels themselves eventually outlived their usefulness and were also thrown into the water.
To avoid detection, however, employees were again instructed to dump the contents of the barrels only at night and in remote locations. Defense witnesses sought to intimate that the nighttime dumping was necessitated only because the barrels were required to cool before dumping; however, other testimony belies such motivation. For example, one witness testified that he was advised by M/G Transport's safety instructor not to dump the ashes near cities. Other witnesses testified that they were not to dump the barrel contents when they were on stretches of the rivers where they could be observed by individuals on the shore.
The government also offered the testimony of officials from various regions of the Environmental Protection Agency. Those individuals related that they had The defendants also offered a number of witnesses on their behalf. Included in the testimony provided was evidence from one individual that he had once asked Thomassee to procure a slop barge so that his vessel could offload accumulated waste. According to the witness, Thomassee stated that he would arrange for the barge to remove the waste that same day. Other witnesses related the commonplace nature of burn barrels on river vessels, even on boats operated by the United States Coast Guard, the agency charged with policing inland waterways. Some of those same witnesses also offered their opinions that the dumping of waste ash into the water was not only necessary, but actually beneficial to water quality.
searched the computer files of their offices and found no evidence of permits issued to M/G Transport or to any of the individual defendants to authorize the discharge of any pollutants into the rivers on which M/G Transport vessels operated. In fact, all three witnesses explained that the defendants would not have been able to obtain a permit if one had been requested because of the quality and quantity of the materials that were to be dumped.
The jury obviously placed little credence in the defendants' witnesses and theories. At the conclusion of their deliberations, the jurors convicted M/G Transport and Thomassee on Count 1 of conspiracy to violate the Clean Water Act by discharging oil into the rivers in harmful quantities. The jury also convicted the company and Thomassee on Count 2 for knowingly failing to report to the appropriate agency an oil spill from the M/V Richard A. Hain on July 2, 1990. All defendants were acquitted, however, on the charge in Count 3 that they conspired to discharge plastics and other pollutants into the Ohio River.
Although the conspiracy charge based upon the dumping of the ash generated in the burn barrels resulted in acquittals for all defendants, the jury still found the company, Thomassee, and the tow boat captains guilty of discharging that waste or of aiding and abetting such discharge. Specifically, M/G Transport, Thomassee, and Captain Montgomery were convicted on the charges in Counts 4 and 5 that pollutants were discharged without a permit on or about specified dates from the M/V Maurice F. Alverson and the M/V Richard A. Hain. M/G Transport, Thomassee, and Captain Morehead were convicted in Counts 6 and 7 on charges that they discharged pollutants without a permit on or about other specified days from the M/V Richard A. Hain. Finally, M/G Transport and Morehead alone were convicted of further non-permitted discharges from the M/V Richard A. Hain on or about still other listed dates.
Post-trial, the defendants moved for judgments of acquittal on all convictions. The district court denied those motions insofar as they related to the charges leveled in Counts 1 and 2 of the indictment. The court did, however, grant the motions for judgments of acquittal on Counts 4 through 9 on two separate bases. First, the district judge concluded that the government had failed to adduce sufficient evidence to prove that the specific crimes charged to have been perpetrated by M/G Transport and Thomassee were committed on or about the dates alleged, or that "Morehead or Montgomery participated in an act to materially assist the commission of the specific crime alleged" in each of Counts 4 through 9. Second, relying upon the case of United States v. Dalton, 960 F.2d 121 (10th Cir.1992), the district court decided that principles of due process precluded holding the defendants criminally liable for discharging pollutants without a permit when no permit would ever have been issued to allow the level of pollution the defendants sought to discharge. M/G Transport and Thomassee do not contest the denial of their motions for judgment of acquittal on Counts 1 and 2. The government, however, seeks reinstatement of the convictions returned by the jury in Counts 4 through 9.
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