U.S. v. Templeton, 02-1284.
| Decision Date | 28 July 2004 |
| Docket Number | No. 02-2775.,No. 02-1284.,No. 02-1285.,No. 02-1286.,No. 02-1510.,No. 02-2918.,02-1284.,02-1286.,02-1510.,02-1285.,02-2775.,02-2918. |
| Citation | 378 F.3d 845 |
| Parties | UNITED STATES of America, Appellee, v. Rush TEMPLETON, Appellant. United States of America, Appellee, v. Warren Spielman, Appellant. United States of America, Appellant, v. Rush Templeton; Warren Spielman, Appellees. United States of America, Appellee, v. Venetian Harbor, Inc., Appellant. United States of America, Appellee/Cross Appellant, v. Jared Lee Bonbrake, Appellant/Cross Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Missouri, Charles A. Shaw, J.
Rush Templeton, argued, Asst. Federal Public Defender, Lee Lawless, St. Louis, Missouri, for appellant.
Richard H. Sindel, argued, Clayton, Missouri, for appellants Venetian Harbor and Warren Spielman.
Benicia Baker-Livorsi, argued, St. Charles, Missouri, for appellant Jared Lee Bonbrake.
Patrick M. Flachs, argued, St. Louis, Missouri, for appellee Asst. U.S. Attorney.
Before RILEY and MELLOY, Circuit Judges, and ERICKSON,1 District Judge.
Venetian Harbor, Inc. (VHI), Warren Spielman (Spielman), Jared Lee Bonbrake (Bonbrake), and Rush Templeton (Templeton) (collectively, appellants) were convicted of knowingly discharging raw sewage in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A), and Spielman, Bonbrake, and Templeton were also convicted of conspiring to discharge raw sewage in violation of 18 U.S.C. § 371. The discharges occurred from a towboat moored on the Mississippi River and used as a restaurant, bar, and gas station. The appellants moved for judgments of acquittal at the close of the government's case and at the end of trial. Because the Clean Water Act, 33 U.S.C. §§ 1251-1387(Act), does not provide criminal penalties for such discharges from "vessels," and we conclude the towbarge in this case is a "vessel," we reverse the district court's denial of the appellants' motions for judgments of acquittal.
Although the relevant facts of this case are relatively undisputed, we present the evidence in the light most favorable to the government. VHI, Spielman, Bonbrake, Templeton, and Thea Preston (Preston) were all involved at one time or another in a business called The Tavern on the Rand ("Tavern"). The Tavern was a restaurant and bar located at VHI, a marina on the Mississippi River near Portage Des Sioux, Missouri. The Tavern was built on a towboat, the Frank C. Rand (Rand), which was moored at VHI. Spielman was VHI's president, and Bonbrake was its vice president. Templeton leased the Rand and operated the Tavern in 1998 and 1999.
The Rand is a 166-foot towboat with a steel hull and superstructure manufactured in 1946, and was used as a tow barge until it fell into disrepair in the late 1980s and was decommissioned. In 1994, Spielman purchased the Rand from American Milling Company for $65,000 on VHI's behalf, buying the vessel "where is, as is" because the Rand had been stripped of many of its parts. VHI spent approximately $39,000 to clean, replate, and chemically certify the Rand while in drydock. After the repair work was completed, the Rand was towed to VHI and tied to a gas dock.
The Rand was moored about fifteen feet from the shore. Two spud poles, attached with a total of eighteen removable bolts, kept the Rand from drifting away. Her radar was left onboard, her smoke stacks were left intact, she floated on her own, and her onboard engines could have been rebuilt with sufficient funds. Spielman and Bonbrake decided to install a new sewage system and, after an overhaul, the air tanks formerly used to start the engines were converted into sewage tanks by David Aten (Aten), a VHI employee. Two discharge pipes on the side of the Rand allowed licensed waste haulers to pump out waste. Leaks from the tanks would run down to the bilge, which also contained wastewater. The bilge water was pumped overboard at least twice while Aten worked for VHI. Bonbrake and Spielman had licensed waste haulers pump out the tanks at least three times, but eventually they instructed Aten and Preston to dump the waste into the river. Templeton also pumped waste into the river. Waste was discharged into the river from one to three times per week.
Division visited Spielman at his office in Portage Des Sioux to investigate sewage discharge from the Rand. Spielman said he had little to do with the Rand because Templeton leased the Rand, but Spielman informed Special Agent McFarlane he believed pumper trucks were used to dispose of the waste. On September 1, 1999, Special Agent McFarlane again discussed with Spielman the Rand's status, and Spielman explained he was trying to get the Rand back, but Templeton still possessed it. Special Agent McFarlane later returned when he learned Spielman had changed the locks to the Rand and, with Spielman's consent, boarded the Rand and began photographing the exterior. Special Agent McFarlane discovered a water pump with a three-foot hose in the bilge area. Special Agent McFarlane tracked Templeton down on his houseboat, and Templeton denied any illegal dumping. Later, Special Agent McFarlane visited Bonbrake, the Rand's former manager, who said he also believed pumper trucks were used to discharge sewage from the Rand.
The government indicted VHI, Spielman, Bonbrake, Preston, and Templeton for conspiracy to violate and knowingly violating the Act. A superceding indictment charged all the defendants with conspiring to discharge pollutants illegally, in violation of 18 U.S.C. § 371, and knowingly discharging pollutants, in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). Preston pled guilty, and the remaining defendants proceeded to trial.2
At the close of the evidence at trial, the court denied the appellants' motions for judgment of acquittal, ruling the Rand was not a "vessel" as a matter of law, but submitting the question to the jury as a possible affirmative defense. After a seven-day trial, the jury found the appellants guilty. The district court (1) placed VHI on probation for five years and ordered it to pay a $90,000 fine; (2) sentenced Spielman to ninety days in prison, three years supervised release, and a $90,000 fine; (3) sentenced Bonbrake to a one-day prison term with credit for time served, three years supervised release, and a $20,000 fine; and (4) sentenced Templeton to thirty days in prison, two years supervised release, and a $10,000 fine.3 VHI, Spielman, Bonbrake, and Templeton appeal the district court's ruling that the Rand was not a vessel under the Act.4
Initially, we note a dispute as to the applicable standard of review we should apply to the district court's ruling that the Rand is not a vessel under the Act. The appellants assert the district court's refusal to dismiss the indictment was an error of law, and that no party disputes the relevant facts surrounding the Rand's status. The appellants claim the dispute revolves around the legal conclusion to be drawn from those facts.
Conversely, the government contends the court properly submitted the question about the Rand to the jury, which decided the Rand is not a vessel. The government argues the court included the Act's definition of the term "vessel" in the jury instructions, and the defendants did not object, thus waiving this objection such that our review should be for plain error. United States v. Woodard, 315 F.3d 1000, 1004 (8th Cir.2003).
The appellants, in turn, argue they requested the jury instruction as a last-ditch effort after the district court denied their motions for acquittal on the legal issue of whether the Rand was a vessel. The appellants do not argue the jury instruction as given was erroneous, because it mirrored 1 U.S.C. § 3. Instead, they argue the jury should not have been permitted to answer the question about the Rand's status. The appellants further contend they did not submit the issue of the Rand's status as an affirmative defense, and the government has not offered caselaw to support its argument that the issue of the Rand's status is an affirmative defense to be determined by the trier of fact. Finally, the appellants note the central case on which the government relies ruled the interpretation of a statute is reviewed de novo. See United States v. West Indies Transp., Inc., 127 F.3d 299, 307-08 (3d Cir.1997).
Because the issue before us involves a question of statutory interpretation, our review is de novo. United States v. Sumlin, 317 F.3d 780, 781 (8th Cir.2003); see also West Indies, 127 F.3d at 308-09 (); United States v. Brittain, 931 F.2d 1413, 1418 (10th Cir.1991) ().
Congress enacted the Act to restore and maintain the biological, chemical, and physical integrity of our country's waters. 33 U.S.C. § 1251. The Act prohibits, with certain exceptions, the "discharge of any pollutant by any person." 33 U.S.C. § 1311(a). Although "sewage" is considered a pollutant under the Act, "sewage from vessels" is excluded from the definition of a "pollutant." 33 U.S.C. § 1362(6). Thus, if the Rand qualifies as a vessel, the appellants did not violate the criminal provisions of the Act, and we must reverse their convictions. West Indies, 127 F.3d at 309.
The Act's definitions of both new and existing vessels "includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on the navigable waters." 33 U.S.C. § 1322(a)(1)-(2). This definition is identical, in all relevant...
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