U.S. v. W.R. Grace
| Decision Date | 20 September 2007 |
| Docket Number | No. 06-30472.,No. 06-30524.,06-30472.,06-30524. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. W.R. GRACE; Alan R. Stringer; Henry A. Eschenbach; Jack W. Wolter; J. McCaig; Robert J. Bettacchi; O. Mario Favorito; Robert C. Walsh, Defendants-Appellees. United States of America, Plaintiff-Appellant, v. W.R. Grace; Alan R. Stringer; Henry A. Eschenbach; Jack W. Wolter; William McCaig; Robert J. Bettacchi; O. Mario Favorito; Robert C. Walsh, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Krakoff, Gary A. Winters, Washington, DC, for defendant-appellee Henry A. Eschenbach; Mike Milodragovich, W. Adam Duerk, Missoula, MT; Mark Holscher, Jeremy Maltby, Los Angeles, CA, for defendant-appellee Jack W. Wolter; Palmer Hoovestal, Helena, MT, Elizabeth Van Doren Gray, Columbia, SC, William A. Coates, Greenville, SC, for defendant-appellee William J. McCaig; Brian Gallik, Bozeman, MT, Thomas C. Frongillo, Boston, MA, Vernon S. Broderick, New York, NY, for defendant-appellee Robert J. Bettacchi; C.J. Johnson, Missoula, MT, Stephen A. Jonas, Robert Keefe, Boston, MA, for defendant-appellee O. Mario Favorito; Catherine A. Laughner, Aimee M. Grmoljez, Helena, MT, Stephen R. Spivack, Washington, DC, David E. Roth, Birmingham, AL, for defendant-appellee Robert C. Walsh.
Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-05-00007-DWM.
Before: B. FLETCHER, HARRY PREGERSON, and WARREN J. FERGUSON, Circuit Judges.
From 1963 until the early 1990s, W.R. Grace ("W.R. Grace" or "Grace") mined and processed a rich supply of vermiculite ore outside of Libby, Montana. In response to ongoing serious health problems suffered by Libby residents, the government obtained an indictment charging W.R. Grace and seven of its executives (together "Grace") with criminal conduct arising from Grace's vermiculite operation in Libby. The superseding indictment charges defendants-appellees with (1) conspiring knowingly to release asbestos, a hazardous air pollutant, into the ambient air, thereby knowingly placing persons in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 7413(c)(5)(A) and (2) conspiring to defraud the United States in violation of 18 U.S.C. § 371. In addition to the dual-object conspiracy alleged in Count I, the indictment charged defendants-appellees with three counts of knowing endangerment under the Clean Air Act, 42 U.S.C. § 7413(c)(5)(A), and four counts of obstruction of justice in violation of 18 U.S.C. §§ 1505 and 1515(b).
This interlocutory appeal brought by the government concerns six orders grouped into four sections: the first order dismissed the knowing endangerment object of Count I's conspiracy charge; the second adopted a particular definition of asbestos and excluded evidence inconsistent with that definition; the third denied a motion to exclude evidence related to an affirmative defense and relied on an emission standard for asbestos contained in certain Environmental Protection Agency ("EPA") regulations, see, e.g., 40 C.F.R. §§ 61.142-61.149; and the fourth through sixth orders excluded certain evidence and expert testimony. In addition, we rule on defendants-appellees' motion to strike documents attached to the government's reply brief. We have jurisdiction to hear this appeal pursuant to 18 U.S.C. § 3231, and we reverse in part, affirm in part, and remand.
In the original indictment, filed February 7, 2005, the government charged defendants with participating in a dual-object conspiracy. According to Count I of the indictment, which details the scope of the conspiracy, defendants conspired (1) to knowingly release asbestos, a hazardous air pollutant, and thus knowingly to endanger both EPA employees and members of the Libby community in violation of 42 U.S.C. § 7413(c)(5)(A) ("knowing endangerment object"); and (2) to defraud the United States by impairing, impeding, and frustrating government agency investigations and clean-up operations in violation of 18 U.S.C. § 371 ("defrauding object"). On March 20, 2006, defendants moved to dismiss the knowing endangerment object of the conspiracy, arguing that the government had failed to allege an overt act in furtherance of the alleged conspiracy within the statute of limitations period. United States v. W.R. Grace, 434 F.Supp.2d 879, 883 (D.Mont.2006).
Defendants' argument relied primarily on Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) (), overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Because the government supposedly had failed to allege a requisite overt act before the statute of limitations ran on November 3, 2004, defendants asserted that the knowing endangerment object was time-barred.
The government disputed defendants' characterization of the indictment, claiming that certain overt acts alleged in the indictment could support both the fraud object and the knowing endangerment object of Count I's conspiracy charge. Towards this end, the government directed the district court's attention to paragraphs 143, 149, and 173-184 of the indictment. W.R. Grace, 434 F.Supp.2d at 885-87. The paragraphs cited by the government alleged that defendants had failed to remove asbestos-contaminated material from sites in the Libby community, had misled various individuals regarding current asbestos contamination, and had failed to disclose the existence of numerous asbestos-contaminated sites. What the paragraphs purportedly failed to allege was that defendants released, or conspired to release, asbestos during the relevant time period.
Analyzing both the text of the specified paragraphs and the structure of the indictment, in which the cited paragraphs were listed under the sub-heading "Obstruction of EPA's Superfund Clean-Up," the district court concluded that the indictment "more plausibly suggests a completed operation than a conspiracy still at work." Id. at 887. To the extent that overt acts were alleged, the district court found that they were acts of obstruction, not acts of wrongful endangerment. Id. Thus, the district court dismissed as time-barred the knowing endangerment object of the Count I conspiracy. Id. at 888.
Two weeks after the district court's first order, dismissing a portion of the indictment, the government obtained a superseding indictment. The new indictment was substantially similar to the original indictment, amending only paragraphs 173-183, which had been the focus of the district court's previous order. In the superseding indictment, the government changed the section heading under which the disputed paragraphs had been listed from "Obstruction of Superfund Clean-Up" to "Knowing Endangerment of EPA Employees and the Libby Community and Obstruction of the EPA's Superfund Clean-Up." It also changed paragraphs 173, 174, 176-80, 182 and 183, by adding at the end of each original paragraph the phrase, "thereby concealing the true hazardous nature of the asbestos contamination, delaying EPA's investigation and causing releases of asbestos into the air in the Libby Community."1
Defendants then moved to dismiss the "knowing endangerment" object of the superseding indictment, arguing that the government had failed to fix the original indictment because the new indictment alleged no new overt acts, was barred by the previous dismissal "with prejudice," and was time-barred because the statute of limitations had run. The district court rejected the first two arguments, but agreed with defendants that the new indictment was time-barred. Under the district court's reading, the superseding indictment was not protected by the savings clause of 18 U.S.C. § 3288. Order at 17, United States v. W.R. Grace, 434 F.Supp.2d 879 ("Order Dismissing Indictment") (D.Mont.2006) (Docket # 690). The government now appeals that determination.
We review de novo a district court's decision to dismiss part of an indictment, United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991), as we review, also de novo, the district court's interpretation of 18 U.S.C. § 3288. United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir.2002).
If a district court dismisses an indictment (or portion thereof), the savings clause of 18 U.S.C. § 3288 permits the government to return a new indictment after the statute of limitations has expired, as long as it is done within six months of the dismissal. The statute reads as follows:
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has...
To continue reading
Request your trial
-
Kosilek v. Spencer
...when, as here, they are not being considered for the truth of the matters reported. SeeFed.R.Evid. 201; United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir.2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n. 13, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (observing that, on ......
-
US v. Valencia
...the relevant market at issue"; expert witness presented such evidence) (internal quotation and citation omitted); United States v. W.R. Grace, 504 F.3d 745, 765 (9th Cir. 2007) (holding that "the fact that a study is associational—rather than an epidemiological study intended to show causat......
-
Bull v. City and County of San Francisco
...member. As an appellate court, "[i]n general, we consider only the record that was before the district court." United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir.2007). Absent more information, the record provides no evidence that anyone who would qualify for membership in the certifie......
-
United States v. Bastide-Hernandez
...DISCUSSIONA. Standard of Review We review a district court's decision to dismiss a criminal indictment de novo, United States v. W.R. Grace , 504 F.3d 745, 751 (9th Cir. 2007), as we do its conclusion that a defect in removal proceedings precludes reliance upon the resulting order of remova......
-
Specific Environmental Statutes
...by the Colorado Department of Health, but replaced in 1992 by a new permit that instead required a camera monitoring system.” 287 283. 504 F.3d 745 (9th Cir. 2007), cert. denied, 554 U.S. 918 (2008). 284. Kirk Johnson, Chemical Company Acquitted in Asbestos Case, N.Y. Times (May 8, 2009), a......
-
Betty B. Fletcher: NEPA's Angel and Chief Editor of the Hard Look
...joined by Reinhardt, Kozinski, Trott, and Nelson, JJ., dissenting from the order rejecting the suggestion for rehearing en banc). 132. 504 F.3d 745, 37 ELR 20244 (9th Cir. 2007) (Fletcher, J., joined by Pregerson and Ferguson, JJ.). 133. Id. at 750. 134. As to ATSDR, see William H. Rodgers ......
-
History of the Federal Environmental Crimes Program
...U.S. v. Kaluza, Crim. Act. No. 12-265, 2013 U.S. Dist. LEXIS 173134 (E.D. La,, Dec. 10, 2013). 32. See United States v. W.R. Grace & Co., 504 F.3d 745, 37 ELR 20244 (9th Cir. 2007), cert. denied W.R. Grace & Co. v. United States, No. 05-1363, 2008 U.S. LEXIS 5196 (U.S. June 23, 2008). 33. S......