U.S. v. Plaza Health Laboratories, Inc., s. 61

• Citation: 3 F.3d 643
• Decision Date: 01 September 1993
• Docket Number: D,79,Nos. 61,s. 61
• Parties: , 62 USLW 2160, 23 Envtl. L. Rep. 21,526 UNITED STATES of America, Appellee-Cross-Appellant, v. PLAZA HEALTH LABORATORIES, INC., Defendant, Geronimo Villegas, Defendant-Appellant-Cross-Appellee. ockets 92-1090, 92-1091.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 643

3 F.3d 643

37 ERC 1265, 62 USLW 2160, 23 Envtl.

L. Rep. 21,526

UNITED STATES of America, Appellee-Cross-Appellant, v. PLAZA HEALTH LABORATORIES, INC., Defendant, Geronimo Villegas, Defendant-Appellant-Cross-Appellee.

Nos. 61, 79, Dockets 92-1090, 92-1091.

United States Court of Appeals, Second Circuit.

Argued Sept. 16, 1992.

Decided Sept. 1, 1993.

Vivian Shevitz, New York City (Jane Simkin Smith, Georgia J. Hinde, of counsel), for defendant-appellant.

Robin L. Greenwald, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Andrew J. Maloney, U.S. Atty., Robert L. Begleiter, Deborah Zwany, Peter R. Ginsberg, of counsel), for appellee.

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

GEORGE C. PRATT, Circuit Judge:

Defendant Geronimo Villegas appeals from a judgment entered in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, convicting him of two counts of knowingly discharging pollutants into the Hudson River in violation of the Clean Water Act ("CWA"). See 33 U.S.C. Secs. 1311 and 1319(c)(2). The government cross-appeals, claiming the district court erred in its post-verdict grant of a judgment of acquittal on two counts of violating the knowing-endangerment provisions of the act. See 33 U.S.C. Sec. 1319(c)(3).

FACTS AND BACKGROUND

Villegas was co-owner and vice president of Plaza Health Laboratories, Inc., a blood-testing laboratory in Brooklyn, New York. On at least two occasions between April and On May 26, 1988, a group of eighth graders on a field trip at the Alice Austin House in Staten Island, New York, discovered numerous glass vials containing human blood along the shore. Some of the vials had washed up on the shore; many were still in the water. Some were cracked, although most remained sealed with stoppers in solid-plastic containers or ziplock bags. Fortunately, no one was injured. That afternoon, New York City workers recovered approximately 70 vials from the area.

September 1988, Villegas loaded containers of numerous vials of human blood generated from his business into his personal car, and drove to his residence at the Admirals Walk Condominium in Edgewater, New Jersey. Once at his condominium complex, Villegas removed the containers from his car and carried them to the edge of the Hudson River. On one occasion he carried two containers of the vials to the bulkhead that separates his condominium complex from the river, and placed them at low tide within a crevice in the bulkhead that was below the high-water line.

On September 25, 1988, a maintenance worker employed by the Admirals Walk Condominium discovered a plastic container holding blood vials wedged between rocks in the bulkhead. New Jersey authorities retrieved numerous blood vials from the bulkhead later that day.

Ten of the retrieved vials contained blood infected with the hepatitis-B virus. All of the vials recovered were eventually traced to Plaza Health Laboratories.

Based upon the May 1988 discovery of vials, Plaza Health Laboratories and Villegas were indicted on May 16, 1989, on two counts each of violating Secs. 1319(c)(2) and (3) of the Clean Water Act. 33 U.S.C. Secs. 1251 et seq. A superseding indictment charged both defendants with two additional CWA counts based upon the vials found in September 1988.

In December of 1990 the district court granted the government's motion to sever all claims against Plaza Health Laboratories, apparently due to Plaza's participation in ongoing bankruptcy proceedings. The government then proceeded to trial against Villegas only.

Counts II and IV of the superseding indictment charged Villegas with knowingly discharging pollutants from a "point source" without a permit. See 33 U.S.C. Secs. 1311(a), 1319(c)(2). Counts I and III alleged that Villegas had discharged pollutants, knowing that he placed others in "imminent danger of death or serious bodily injury". See 33 U.S.C. Sec. 1319(c)(3). On January 31, 1991, following a trial before Judge Korman, the jury found Villegas guilty on all four counts.

Renewing a motion made at trial, Villegas moved for a judgment of acquittal on all counts under rule 29 of the Federal Rules of Criminal Procedure. Judge Korman granted the motion on counts I and III, holding that he had incorrectly instructed the jury on the act's "knowing endangerment" provisions. This ruling is reported at 784 F.Supp. 6, 13-14 (E.D.N.Y.1991). The district judge denied the motion on counts II and IV, rejecting arguments that the act did not envision a human being as a "point source". 784 F.Supp. at 10-11.

Judge Korman sentenced Villegas on counts II and IV to two concurrent terms of twelve months' imprisonment, one year of supervised release, and a $100 special assessment. Execution of the sentence was stayed pending this appeal.

Villegas contends that one element of the CWA crime, knowingly discharging pollutants from a "point source", was not established in his case. He argues that the definition of "point source", 33 U.S.C. Sec. 1362(14), does not include discharges that result from the individual acts of human beings. Raising primarily questions of legislative intent and statutory construction, Villegas argues that at best, the term "point source" is ambiguous as applied to him, and that the rule of lenity should result in reversal of his convictions. The government has cross-appealed from the district court's post-verdict order acquitting Villegas on the two knowing-endangerment counts.

DISCUSSION

Because "discharge from a point source" is an essential element of a "knowing" violation

as well as a "knowing endangerment" violation, see 33 U.S.C. Secs. 1319(c)(2)-(3) and discussion infra, we need not address the government's contentions regarding the CWA's definition of "imminent danger" if we should conclude that Villegas's discharges were not "from a point source". We therefore consider the "point source" issue first.

A. Navigating the Clean Water Act.

The basic prohibition on discharge of pollutants is in 33 U.S.C. Sec. 1311(a), which states:

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.

Id. (emphasis added).

The largest exception to this seemingly absolute rule is found in 33 U.S.C. Sec. 1342, which establishes the CWA's national pollutant discharge elimination system, or NPDES:

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 [aquaculture] and 1344 of this title [dredge and fill permits], the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant * * * notwithstanding section 1311(a) of this title, upon condition that such discharge will meet * * * all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title * * *.

33 U.S.C. Sec. 1342(a) (emphasis added).

Reading Sec. 1311(a), the basic prohibition, and Sec. 1342(a)(1), the permit section, together, we can identify the basic rule, our rhumb line to clean waters, that, absent a permit, "the discharge of any pollutant by any person" is unlawful. 33 U.S.C. Sec. 1311(a).

We must then adjust our rhumb line by reference to two key definitions--"pollutant" and "discharge". "Pollutant" is defined, in part, as "biological materials * * * discharged into water." 33 U.S.C. Sec. 1362(6) (emphasis added). "Discharge", in turn, is "any addition of any pollutant to navigable waters from any point source * * *." (emphasis added). 33 U.S.C. Sec. 1362(12).

As applied to the facts of this case, then, the defendant "added" a "pollutant" (human blood in glass vials) to "navigable waters" (the Hudson River), and he did so without a permit. The issue, therefore, is whether his conduct constituted a "discharge", and that in turn depends on whether the addition of the blood to the Hudson River waters was "from any point source".

For this final course adjustment in our navigation, we look again to the statute.

(14) The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

33 U.S.C. Sec. 1362(14).

During and after Villegas's trial, Judge Korman labored over how to define "point source" in this case. At one point he observed that the image of a human being is not "conjured up" by congress's definition of "point source". Ultimately, he never defined the "point source" element but he did charge the jury:

Removing pollutants from a container, and a vehicle is a container, parked next to a navigable body of water and physically throwing the pollutant into the water constitutes a discharge from a point source.

In ruling on Villegas's rule 29 motion, however, Judge Korman held that the element "point source" may reasonably be read to include any discrete and identifiable conduit--including a human being--designated to collect or discharge pollutants produced in the course of a waste-generating activity. (emphasis added).

As the parties have presented the issue to us in their briefs and at oral argument, the question is "whether a human being can be a point source". Both sides focus on the district court's conclusion in its rule 29 memorandum that, among other things, the requisite Significantly, the jury was never clearly instructed on this legal theory, and the instruction actually given bordered on an improper removal of the determination of an essential element of the crime from the jury's consideration. Serious problems might be presented by the government's attempt to justify Judge Korman's post-verdict definitional efforts as an alternate theory upon which to...