United States v. Tobin Packing Co., Inc., 72-CR-257.

• Decision Date: 09 August 1973
• Docket Number: No. 72-CR-257.,72-CR-257.
• Citation: 362 F. Supp. 1127
• Parties: UNITED STATES of America v. TOBIN PACKING CO., INC., Defendant.
• Court: U.S. District Court — Northern District of New York

362 F. Supp. 1127

UNITED STATES of America v. TOBIN PACKING CO., INC., Defendant.

No. 72-CR-257.

United States District Court, N. D. New York.

August 9, 1973.

James M. Sullivan, Jr., U. S. Atty., Syracuse, N. Y., for plaintiff; George H. Lowe, Asst. U. S. Atty., of counsel.

DeGraff, Foy, Conway & Holt-Harris, Albany, N. Y., for defendant; John Carter Rice, Albany, N. Y., of counsel.

MEMORANDUM-DECISION AND ORDER

JAMES T. FOLEY, Chief Judge.

I.

Defendant, the Tobin Packing Co., Inc., is charged in the instant indictment with fifty (50) counts of violating § 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. In a single motion the following relief is sought: (1) Dismissing the indictment as insufficient, or in the alternative dismissing 49 counts; (2) directing the government to provide a bill of particulars; (3) seeking an order to discover and inspect certain items; (4) granting defendant permission to inspect the minutes of the grand jury.

The defendant's motion to dismiss the indictment because of its insufficiency lacks legal support in my judgment. It is settled law that the only purpose of an indictment is to charge all of the essential facts of a criminal offense thereby informing the defendant so that he will neither be misled in preparing his defense nor twice prosecuted for the same offense. In questioning the "sufficiency" of the indictment, emphasis must be focused on these practical functions and not on technical considerations. United States ex rel. Harris v. State of Illinois, 457 F.2d 191, 197 (7th Cir. 1972); 8 J. Moore, Federal Practice, ¶ 704 at 7-19 (2d ed. 1972). An indictment will not be dismissed when there is some competent evidence to sustain the charge made by a Grand Jury. United States v. Reyes, 280 F. Supp. 267, 269 (S.D.N.Y.1968); see also Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964). The indictment here consists of a general accusation that defendant caused refuse matter to be discharged and deposited in Patroon Creek, a tributary of navigable waters of the United States, and thereafter lists fifty dates, each as one count violations of Title 33, U.S.Code §§ 407 and 411. I find the indictment sufficient in this respect. United States v. Bally Manuf. Corp., 345 F.Supp. 410 (E.D.La.1972).

Defendant's contention that the acts will not support fifty separate violations raises more serious problems if the discharge was of a continuous nature. See United States v. Hercules, Inc., Sunflower Army Am.Pl., 335 F.Supp. 102 (D. Kansas 1971). The government attorney asserts that while the statute does not ascribe what shall constitute separate offenses, one day is a reasonable demarcation for each count. There have been no submissions of any pertinent case law or statutory history to support this assertion.

It is my opinion that § 13's approach toward protecting rivers by its broad language is not aimed at the polluting substance per se but at the acts of the polluter. Indeed, excepting only "`refuse matter' . . . flowing from streets and sewers . . .", any discharge of any refuse matter is prohibited by the Act. United States v. Pennsylvania Industrial Chem. Corp., (PICCO), 329 F.Supp. 1118, 1120 (W.D. Pa.1971), remanded on other grounds, 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). The language of this statute does not provide criteria to multiply counts based on the kind or quantity of the polluting substance involved, its potential or actual harm, or the manner or length of time it takes to enter the water. It might seem anomalous to some that a person who dumps one gallon of refuse is as culpable as some discharging 100 times as much, or that two people emptying the same amount with one having twice the discharge rate, i. e., doing it in half as many days, are equally culpable. But the statute does not differentiate among the varied types of refuse that might be discharged. The statute by its clear terms is meant to punish each separate act of discharging or depositing refuse — not the discharge itself. Cf. United States v. Georgetown University, 331 F.Supp. 69, 73 (D.C.D.C. 1971). To sustain each count the government will have to show that each count refers to some act needed to cause the polluting on the separate and numerous dates mentioned. For example, the acts might be differentiated or isolated by time, distance or even by differences in the type of refuse see United States v. S. S. Mormacsaga, 204 F.Supp. 701, 702 (E.D.Pa.1962), or operation of the plant itself. However, the statute is addressed to each act resulting in a discharge. The number of acts, i. e., counts, cannot be deduced from the mere size or length of time of a discharge without more, unless discontinuity of the flow or change in composition or other evidence indicates that certain actions necessarily were taken to further the discharging or depositing of refuse. United States v. Hercules, Inc., Sunflower Army Am. Pl., supra, 335 F.Supp. at 107. Whether the government can sustain such a factual basis to justify each count under the established principles applicable to criminal cases must await trial. Defendant's motion to dismiss any or all counts of the indictment must be and is denied at this stage of the prosecution.

The remaining portions of defendant's motion deals with obtaining information by a bill of particulars, discovery and inspection, and inspection of the grand jury minutes. The government has consented to these demands except for the following items which are challenged: (1) Defendant's bill of particulars which seeks to discover internal working documents of federal agencies (para. 8); (2) defendant's motion to discover essentially the same information demanded by the bill of particulars above; and (3) inspection of the grand jury minutes other than those of defendant's Vice President, Robert H. Griessel.

I find the objections voiced by the government on these items to be well founded in law and therefore deny defendant's motion to so obtain this information. Regarding the first two items, defendant has failed to show satisfactorily that this evidence is material or reasonable to their case and in any event, such government internal documents are expressly protected from discovery under Rule 16(b), Fed.R.Crim.Proc., except as to certain "examinations" and "tests". See Rule 16(a)(2). The...