U.S. v. Williams, 02-CR-897 (NG).

Citation283 F.Supp.2d 850
Decision Date17 September 2003
Docket NumberNo. 02-CR-897 (NG).,02-CR-897 (NG).
PartiesUNITED STATES of America v. Bernard WILLIAMS, Defendant.
CourtU.S. District Court — Eastern District of New York

Assistant United States Attorney Michael Asaro Brooklyn, for plaintiff.

Mel A. Sachs, for defendant.

ORDER

GERSHON, District Judge.

Defendant Bernard Williams was convicted on July 16, 2003, following a jury trial, of recklessly causing the transportation in air commerce of hazardous materials in violation of 49 U.S.C. § 46312. Defendant now brings this motion, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a judgment of acquittal or, in the alternative, a new trial, on the following four grounds: 1) that the jury was wrongfully charged that reckless conduct on the part of defendant could give rise to criminal liability; 2) that the government failed to satisfy its burden of proving, beyond a reasonable doubt, that defendant acted knowingly and intentionally, and recklessly, in relation to the crime charged; 3) that the denial of defendant's application to put on a sur-rebuttal case deprived him of a fair trial; and 4) that the court improperly permitted the substitution of two alternate jurors after the jury began its deliberations. For the following reasons, defendant's motion is denied.

Briefly, taken in the light most favorable to the government, the evidence at trial established the following:

On February 15, 2002, defendant, Bernard Williams, boarded Spirit Airlines Flight 488 from Fort Myers, Florida to LaGuardia Airport in Queens, New York after checking two large cardboard boxes containing 14 one-gallon containers of highly-concentrated ammonia. The boxes bore the commercial imprint "Cat's Pride Kitty Litter." Spirit Airlines ticket agent, Madeline Carr, testified during the trial that defendant stated that he packed the boxes himself, that they had not been out of his possession since the time of packaging, and that they contained kitty litter. Defendant repeated his claim that the boxes contained kitty litter to Ms. Carr's supervisor. Defendant paid a $50 overweight charge for the boxes.

Once Flight 488 was airborne, a noxious smell was detected in the passenger cabin. Several passengers on the flight became nauseous and developed difficulty breathing. Medical personnel met the plane upon landing and an investigation ensued. Inspection of the plane's cargo bay indicated that one of the bottles of ammonia in defendant's checked baggage had broken and was the cause of the fumes. According to the testimony of law enforcement personnel who spoke to defendant at the airport on the night of the incident and in interviews several weeks later, defendant admitted that the boxes of ammonia were his.

The theory of the defense, presented through various witnesses at trial, was that defendant had purchased both the ammonia and kitty litter in Florida and believed that he was transporting the kitty litter on the airplane. According to the testimony of law enforcement personnel at trial, defendant did not tell any of the three officers who interviewed him that he had mistakenly transported the ammonia.

I. Liability for Reckless Conduct

Title 49 of the United States Code, Section 46312, provides criminal penalties for a person who, "in violation of a regulation or requirement relating to the transportation of hazardous material prescribed by the Secretary of Transportation under this part ... recklessly causes the transportation in air commerce of the property." Both the government and defendant agree that "under this part" refers to Subtitle VII of Title 49. Defendant argues that reckless conduct cannot give rise to criminal penalties under Subtitle VII because the regulations defendant is charged with violating were not promulgated pursuant to that Subtitle.

The provisions governing transportation of hazardous material by air were originally enacted as part of the Hazardous Materials Transportation Act ("HMTA"), a comprehensive scheme to "protect the nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." "Declaration of Policy," Sec. 102, HMTA, P.L. No. 93-633 (1975), codified as former 49 U.S.C. § 1801. In enacting the HMTA, Congress created an explicit statutory link between the former Department of Transportation Act, P.L. No. 89-670 (1966), which regulated the transportation of hazardous material by ground, rail, and sea, and the Federal Aviation Act, P.L. No. 85-726 (1958), which regulated the transportation of hazardous material by air: "In carrying out his responsibilities under this Act, the Secretary of Transportation may exercise the authority vested in him by section 105 of the HMTA to provide by regulation for the safe transportation of hazardous materials by air." "Relation to Other Laws," Sec. 112, HMTA, P.L. No. 93-633 (1975), codified as former 49 U.S.C. § 1811. Pursuant to that regulatory power, the Secretary of Transportation created a Materials Transportation Board which issued extensive regulations relating to hazardous materials transportation. These regulations set forth specific marking, classing, and packaging guidelines for the transportation of hazardous materials. See 49 C.F.R. §§ 171, 172, and 173.

In 1994, Congress re-codified the provisions of the HMTA relating to air transportation under Subtitle VII of Title 49 and those relating to ground, rail, and sea transportation under Subtitle III of Title 49.1 Section 40113(b) of Subtitle VII provides that "the Secretary has the same authority to regulate the transportation of hazardous material by air that the Secretary has under Section 5103," the provision providing promulgation authority for the regulation of hazardous material transportation by ground, rail, and sea under Subtitle III. Subtitle III provides criminal penalties for knowingly tampering with packages or vessels containing hazardous materials and for willful violations of its other provisions. See 49 U.S.C. §§ 5104(b), 5124. Subtitle VII provides criminal penalties for willful delivery of hazardous materials in air transportation and for recklessly causing the transportation in air commerce of hazardous materials. See 49 U.S.C. § 46312. In May 2000, Congress further amended the criminal penalty provisions of Subtitle VII to remove, as an element of the offense, knowledge of the specific regulations being violated. See P.L. No. 106-181. Title V, § 507 (2000), codified as 49 U.S.C. § 46312(b). This history demonstrates a Congressional intent to expand the criminal enforcement powers of the Secretary of Transportation in relation to violations of the hazardous materials regulations relating to air commerce. Nothing in this history indicates an intent to lessen those enforcement powers.

Nonetheless, in United States v. Sabretech, Inc., 271 F.3d 1018, 1024 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit dismissed charges against a defendant aviation repair station on the ground that "none of the hazardous material regulations in existence in May 1996 ... were based upon statutory authority contained within" Subtitle VII. The Sabretech court concluded that the reckless conduct counts against defendant, brought pursuant to the criminal penalty provisions of that Subtitle, were a "legal nullity." Id. at 1020.

No decision, in this or in any other Circuit, citing Sabretech or discussing the issues it raised has been cited to this court, nor has independent research uncovered any. The only other reported decision involving the statute at issue, United States v. Moskowitz, 883 F.2d 1142 (2d Cir.1989), assumed a proper linkage between the hazardous materials regulations and the criminal penalty provisions relating to transportation of such materials in air commerce. Although decided prior to the 1994 re-codification discussed at length in Sabretech, the Court of Appeals' decision in Moskowitz is highly instructive. In Moskowitz, the Court of Appeals for the Second Circuit affirmed the conviction of a defendant under 49 U.S.C. § 1472(h), the criminal penalty provision of the Federal Aviation Act later re-codified as 49 U.S.C. § 46312, based on defendant's reckless violation of regulations contained in 49 C.F.R. §§ 171 et seq. At the time Moskowitz was decided, the regulations cited, as their sole source of statutory authority, the criminal and civil penalty provisions of the HMTA, then codified as 49 U.S.C. §§ 1803, 1804, and 1809, which provided criminal penalties only for willful violations of the regulations. Nonetheless, both the district court and the Court of Appeals in Moskowitz assumed that reckless violations of those regulations could give rise to criminal penalties under 49 U.S.C. § 1472(h). For the reasons that follow, I agree with that assumption and decline to follow the Eleventh Circuit's decision in Sabretech.

As noted above, Section 46312 of Subtitle VII provides criminal penalties for persons who violate the hazardous material regulations relating to air commerce. Under the Sabretech court's analysis, however, not one of the dozens of hazardous material regulations relating specifically to air commerce contained in 49 C.F.R. §§ 171-180 could, during the time frame considered by the court in that decision, have given rise to criminal penalties under Subtitle VII. I cannot conclude that this narrow construction of the relationship between the statutes and the regulations reflects Congressional intent. The history of the statutes at issue demonstrates that Congress intended to increase the Secretary of Transportation's power to enforce the regulations relating to the transportation of hazardous materials in air commerce. Under the reasoning of Sabretech, however, no link between the criminal enforcement provisions of Subtitle VII and the regulations relating to the transportation of hazardous materials existed during the time frame considered by the court. The Sabretech decisio...

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