United States v. Evans

• Decision Date: 19 August 2021
• Docket Number: 3:19-CR-009
• Parties: UNITED STATES OF AMERICA, v. BRUCE EVANS, and BRUCE EVANS, JR., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA, v. BRUCE EVANS, and BRUCE EVANS, JR., Defendants

No. 3:19-CR-009

United States District Court, M.D. Pennsylvania

August 19, 2021

MEMORANDUM

MALACHY E. MANNION United States District Judge

I. BACKGROUND^[1]

On January 8, 2019, a 13-count Indictment was filed against defendant Bruce Evans, Sr., (“Evans Sr.”). His son, Bruce Evans, Jr., (Evans Jr.”), was also charged in Counts 2-4 of the Indictment. (Doc. 1).

On May 28, 2020, a Superseding Indictment was filed against both defendants. (Doc. 62). The Superseding Indictment contains 36 Counts, namely: (1) three counts under 33 U.S.C §1319(c)(2)(A) for failure to operate and maintain in violation of a Clean Water Act permit; (2) two counts under 33 U.S.C. §1319(c)(2)(A) for discharge in violation of a Clean Water Act permit; (3) one count under 33 U.S.C. §1319(c)(2)(A) for failure to notify PA Department of Environmental Protection (“PADEP”) in violation of CWA permit; (4) eight counts under 33 U.S.C. §1319(c)(2)(A) for bypassing the treatment system in violation of a CWA permit; (5) nine counts under 33 U.S.C. §1319(c)(2)(A) for failure to notify PADEP of bypasses and sewage overflows in violation of a CWA permit; (6) eight counts under 18 U.S.C. §1343 for wire fraud; (7) four counts under 18 U.S.C. §1702 obstruction of correspondence; and (8) one count of false statements in violation of the CWA under 33 U.S.C. §1319(c)(4). Evans Sr. is charged in 35 of the Counts (i.e., all Counts except for Count 6), while Evans Jr. is only charged in Counts 2-5 and 6. In Count 6, Evans Jr. is charged with false statements in violation of the CWA.

On October 16, 2019, and February 8, 2021, defendants Evans Jr., and Evans Sr., respectively, filed motions to dismiss various counts against them contained in the original Indictment and the Superseding Indictment under Fed.R.Crim.P. 7(c) and 12(b)(3).^[2] (Docs. 48 & 80). Defendant Evans Jr. moves the court to dismiss Counts 2-5 against him claiming that they fail to allege essential elements of the offenses charged. Specifically, in Counts 2 and 3 Evans Jr. is charged with failure to operate and maintain in violation of a Clean Water Act (“CWA”) permit under 33 U.S.C. §1319(c)(2)(A), and in Counts 4 and 5, he is charged with discharge in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A).

As alternate relief in his motion, Evans Jr. seeks the court to direct the government to file a bill of particulars under Rule 7(f) claiming that the Counts against him fail to provide sufficient factual or legal information for him to prepare his defense to them.

Evans Sr. moves to dismiss Counts 1 through 5 and Count 7 of the Superseding Indictment which charge him with the following: failure to operate and maintain in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A), Counts 1-3; discharge in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A), Counts 4 and 5; and failure to notify PADEP of wastewater overflows in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A), Count 7.

The motions of both defendants, (Docs. 48 & 80), have been fully briefed by the parties and they are ripe for the court's decision. (Docs. 49, 57, 89, 93 & 99).^[3]

The FPTC is presently set for August 17, 2021, and the trial date is August 30, 2021. (Doc. 102).

II. STANDARD

“An Indictment ‘must be a plain, concise, and definite written statement of the essential facts constituting the offense charged' and include the ‘provision of law that the defendant is alleged to have violated.'” U.S. v. Wood, 2021 WL 3048448, *9 (D. De. July 20, 2021) (citing Fed. R. Crim. P. 7(c)(1)).

“An indictment is an accusation only, and its purpose is to identify the defendant's alleged offense ... and fully inform the accused of the nature of the charges so as to enable him to prepare any defense he might have.” U.S. v. Manganas, 2017 WL 2547310, *2 (M.D. Pa. June 13, 2017) (quoting United States v. Stansfield, 171 F.3d 806, 812 (3d Cir. 1999). “A defendant, however, may move to dismiss an indictment based on defects in the indictment, lack of jurisdiction, or failure to charge an offense.” Id. (citing Fed. R. Crim. P. 12(b)(2), (3)(B)).

“An indictment is sufficient ‘if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge [against him, ] and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” Id. (citing Hamling v. United States, 418 U.S. 87, 117 (1974); accord United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000) (“An indictment ... to be sufficient must contain all essential elements of the charged offense.”)). “However, an indictment ‘fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'” Id. (quoting United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002)). “In other words, the facts in the indictment must satisfy the elements of the underlying criminal statute.” Id. (citation omitted). See also United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989) (“[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.”).

As the court in Wood, 2021 WL 3048448, *9, explained:

“It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'” Hamling v. United States, 418 U.S. 87, 117 (1974) [citation omitted]. “The test is not whether the indictment could have been framed in a more satisfactory manner but whether it conforms to the minimal constitutional standards.” United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir. 1989) (internal quotations and citation omitted). An indictment that tracks the language of the statute and is supplemented by specific allegations of the activity giving rise to the charge is sufficient. See id.

Additionally, “[i]n considering a defense motion to dismiss an indictment, the district court [must] accept[ ] as true the factual allegations set forth in the indictment.” United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011) (citation omitted). “If the allegations in the indictment do not suffice to state an offense, Rule 12(b)(3)(B) authorizes dismissal; however, “dismissal may not be predicated upon the insufficiency of the evidence to prove the indictment's charges.” Manganas, 2017 WL 2547310, *2 (citing United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000) (“Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence.”)).

III. DISCUSSION^[4]

This court has jurisdiction under 18 U.S.C. §3231.

As mentioned the defendants move to dismiss Count 1, (Evans Sr. only), and Counts 2 through 5, (both defendants), of the Superseding Indictment which charge them with failure to operate and maintain in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A), Counts 1-3, and unlawful discharge of wastewater in violation of a CWA permit under 33 U.S.C. §1319(c)(2)(A), Counts 4 and 5. Evans Sr. also moves to dismiss Count 7. Further, Evans Jr. claims that he is entitled to a bill of particulars if his motion to dismiss is not granted. The court will first address Counts 1-3.

1. Counts 1-3, CWA violations under 33 U.S.C. §1319(c)(2)(A)

Section 1319(c)(2) provides, in pertinent part as follows:

(2) Knowing violations. Any person who-

(A) knowingly violates ... [this Act, including §1311] ..., or any permit condition ..., or any requirement imposed in a pretreatment program ... or in a permit issued under [this Act] ... by the Secretary of the Army or by a State....

“In 1972, Congress passed the Clean Water Act, which, among other things, criminalizes the discharge of pollutants into ‘navigable waters' without an appropriate permit.” U.S. v. Lucero, 989 F.3d 1088, 1091 (9^th Cir. 2021) (citing 33 U.S.C. §§1311(a), 1362(12), 1344). Moreover, as the Ninth Circuit in Lucero, id. at 1095, explained:

In enacting the Clean Water Act, Congress wanted to pass the broadest possible protections against water pollution. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Act's stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. §1251(a). The Act is “an all-encompassing program of water pollution regulation.” Milwaukee v. Illinois, 451 U.S. 304, 318, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). And the phrase “into water” supports its statutory objective by broadly proscribing the dumping of pollutants “into” any “water” from any conveyance. See Riverside Bayview, 474 U.S. at 133, 106 S.Ct. 455 (holding that “Congress chose to define the waters covered by the Act broadly.”).

“Section 1319(c) creates criminal penalties for violation of the Clean Water Act.” Lucero 989 F.3d at 1093 (citing 33 U.S.C. §1319(c)). “In particular, §1319(c)(2)(A) makes it a felony for anyone to ‘knowingly violate[] section 1311' of the Act.” Id. (citing §1319(c)(2)(A)). “Section 1311, in turn, provides that ‘the discharge of any pollutant by any person shall be unlawful' without a permit.” Id. (citing §1311(a)). “When the word ‘knowingly' precedes the verb ‘violate,' it applies to the verb's direct object, which in this...