U.S. v. Weitzenhoff

• Decision Date: 08 August 1994
• Docket Number: 92-10108,Nos. 92-10105,s. 92-10105
• Citation: 35 F.3d 1275
• Parties: 24 Envtl. L. Rep. 21,504 UNITED STATES of America, Plaintiff-Appellee, v. Michael H. WEITZENHOFF; Thomas W. Mariani, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1275

35 F.3d 1275

24 Envtl. L. Rep. 21,504

UNITED STATES of America, Plaintiff-Appellee, v. Michael H. WEITZENHOFF; Thomas W. Mariani, Defendants-Appellants.

Nos. 92-10105, 92-10108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1993.

Decided Aug. 3, 1993.

As Amended on Denial of Rehearing and

Rehearing En Banc Aug. 8, 1994.

Craig H. Nakamura, Asst. U.S. Atty., Honolulu, Hawai'i, for plaintiff-appellee.

Philip H. Lowenthal, Lowenthal, August and Graham, Wailuku, Hawai'i, for defendant-appellant Weitzenhoff.

Peter C. Wolff, Jr., Honolulu, Hawai'i, for defendant-appellant Mariani.

Appeal from the United States District Court for the District of Hawaii.

Before: GOODWIN and FLETCHER, Circuit Judges and HUFF, ^* District Judge.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING

AND REHEARING EN BANC

Aug. 8, 1994.

The opinion filed at 1 F.3d 1523 is amended as follows:

At 1 F.3d 1530, bottom of the first column, delete:

But see United States v. Speach, 968 F.2d 795 (9th Cir.1992) (distinguishing Hoflin and holding that different subsection of RCRA uses word "knowingly" in different manner so as to require showing that transporter of hazardous wastes knew that receiving facility lacked storage permit).

Add footnote "5" following "violating law)." in the line prior to the deleted text:

5 Weitzenhoff argues that this case is controlled by United States v. Speach, 968 F.2d 795, 796-97 (9th Cir.1992), in which we held that 42 U.S.C. Sec. 6928(d)(1), which imposes criminal liability on parties who "knowingly transport[ ] ... hazardous waste ... to a facility which does not have a permit," requires that the transporter know that he acted in violation of the statute. This argument is unavailing because Speach recognizes the general rule that public welfare offenses are not to be construed to require proof that the defendant knew he was violating the law in the absence of clear evidence of contrary congressional intent and finds only a narrow exception to this general rule. In Speach, we relied on the fact that the defendant was not the permittee but simply the individual who transported waste to the permittee, and, as contrasted to the permittee was not "the person in the best position to know the facility's permit status." Id. at 797. Although we considered it unreasonable to put the defendant at risk for failing to ascertain the permit status of the receiving facility, we recognized that such a risk is not unreasonable when the permittee is also the defendant. Id. In this case, as the permittees, appellants are clearly in the best position to know their own permit status, and are among those persons upon whom the Speach court would impose liability.

Replace the deleted language of text with:

Other courts have also followed International Minerals by similarly construing the knowledge requirement in statutes that regulate deleterious devices or obnoxious waste materials. E.g., United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir.1993) (Sec. 6928(d)(2)(A) of RCRA), cert. denied, --- U.S. ----, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States v. Buckley, 934 F.2d 84, 88 (6th Cir.1991) (pre-1990 version of Sec. 7413(c)(1)(C) of the Clean Air Act); United States v. Dee, 912 F.2d 741, 745 (4th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991) (Sec. 6928(d)(2)(A) of RCRA); United States v. Corbin Farm Serv., 444 F.Supp. 510, 519-20 (E.D.Cal.), aff'd, 578 F.2d 259 (9th Cir.1978) (Federal Insecticide, Fungicide and Rodenticide Act). ⁶

6 Like the court in International Minerals, we construe the language in Sec. 1319(c)(2)(A) prohibiting knowing violation of "any permit condition" as a "shorthand designation for specific acts" that violate the CWA. See International Minerals, 402 U.S. at 567, 91 S.Ct. at 1703. In both Sec. 1319(c)(2)(A) and the statute in question in International Minerals, the penalty provisions were drafted in a general fashion to encompass a wide variety of possible violations of the Acts and the word "knowingly" is used to reflect a requirement At 1 F.3d 1530, second column, immediately following first paragraph, insert:

that the government prove general intent in order to establish a violation. See also Buckley, 934 F.2d at 88 ("knowingly ... violates section 7411(e) ..."); Sherbondy, 865 F.2d at 1002 ("knowingly violates subsection ... (g) ... of section 922"); Corbin Farm Serv., 444 F.Supp. at 518 ("knowingly violates any provision of this subchapter").

Subsequent to the filing of the original opinion in this case, the Supreme Court decided two cases which Weitzenhoff contends call our analysis into question. See Ratzlaf v. United States, --- U.S. ----, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); Staples v. United States, --- U.S. ----, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). We disagree.

The statute in Ratzlaf does not deal with a public welfare offense, but rather with violations of the banking statutes. The Court construed the term "willfully" in the anti-structuring provisions of the Bank Secrecy Act to require both that the defendant knew he was structuring transactions to avoid reporting requirements and that he knew his acts were unlawful. The Court recognized that the money structuring provisions are not directed at conduct which a reasonable person necessarily should know is subject to strict public regulation and that the structuring offense applied to all persons with more than $10,000, many of whom could be engaged in structuring for innocent reasons. Ratzlaf, --- U.S. at ---- - ----, 114 S.Ct. at 660-62. In contrast, parties such as Weitzenhoff are closely regulated and are discharging waste materials that affect public health. The International Minerals rationale requires that we impute to these parties knowledge of their operating permit. This was recognized by the Court in Staples.

The specific holding in Staples was that the government is required to prove that a defendant charged with possession of a machine gun knew that the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun. But the Court took pains to contrast the gun laws to other regulatory regimes, specifically those regulations that govern the handling of "obnoxious waste materials." See Staples, --- U.S. at ----, 114 S.Ct. at 1798. It noted that the mere innocent ownership of guns is not a public welfare offense. Id. at ----, 114 S.Ct. at 1804. The Court focussed on the long tradition of widespread gun ownership in this country and, recognizing that approximately 50% of American homes contain a firearm, id. at ----, 114 S.Ct. at 1801, acknowledged that mere ownership of a gun is not sufficient to place people on notice that the act of owning an unregistered firearm is not innocent under the law.

Staples thus explicitly contrasted the mere possession of guns to public welfare offenses, which include statutes that regulate " 'dangerous or deleterious devices or products or obnoxious waste materials,' " id. at ----, 114 S.Ct. at 1800, and confirmed the continued vitality of statutes covering public welfare offenses, which "regulate potentially harmful or injurious items" and place a defendant on notice that he is dealing with a device or a substance "that places him in 'responsible relation to a public danger.' " Id. "[I]n such cases Congress intended to place the burden on the defendant to ascertain at his peril whether [his conduct] comes within the inhibition of the statute." Id. at ----, 114 S.Ct. at 1798 (citations and internal quotations omitted).

Unlike "[g]uns [which] in general are not 'deleterious devices or products or obnoxious waste materials,' International Minerals, supra [402 U.S.], at 565 , that put their owners on notice that they stand 'in responsible relation to a public danger[,]' Dotterweich, 320 U.S. at 281 ," Staples, --- U.S. at ----, 114 S.Ct. at 1800, the dumping of sewage and other pollutants into our nation's waters is precisely the type of activity that puts the discharger on notice that his acts may pose a public danger. Like other public welfare offenses that regulate the discharge of pollutants into the air, the disposal of hazardous wastes, the undocumented shipping of acids, and the use of pesticides on our food, the improper and excessive discharge of sewage causes cholera 7 In Staples, the Court also noted that the penalty attached to a violation of a criminal statute in the past has been a relevant factor in determining whether the statute defines a public welfare offense. The Court recognized that public welfare offenses originally involved statutes that provided only light penalties such as fines or short jail sentences, see --- U.S. at ----, 114 S.Ct. at 1802, but that modern statutes now punish public welfare offenses with much more significant terms of imprisonment. E.g., International Minerals, 402 U.S. 558, 91 S.Ct. 1697 (ten years imprisonment if death or bodily injury results from violation); United States v. Freed, 401 U.S. 601, 609-10, 91 S.Ct. 1112, 1118-19, 28 L.Ed.2d 356 (1971) (five years imprisonment for possession of unregistered grenade); Hoflin, 880 F.2d 1033 (two years imprisonment for certain violations of RCRA). While the Staples opinion expresses concern with this evolution of enhanced punishments for public welfare offenses, it refrains from holding that public welfare offenses may not be punished as felonies. Staples, --- U.S. at ----, 114 S.Ct. at 1804 (stating that the early cases suggest that public welfare offenses might not extend to felonies, but noting that "[w]e need not adopt such a definitive rule of construction to decide this case").

hepatitis, and other serious illnesses, and can have serious repercussions for public health and welfare. ⁷

Except for the above amendments, the petition for rehearing is denied and the petition for rehearing en banc is rejected.

The petition for rehearing en banc was circulated...