US v. Mills

• Decision Date: 31 March 1993
• Docket Number: PCA No. 91-30428-RV.,PCR No. 88-03100-RV
• Citation: 817 F. Supp. 1546
• Parties: UNITED STATES of America v. Ocie MILLS and Carey C. Mills.
• Court: U.S. District Court — Northern District of Florida

817 F. Supp. 1546

UNITED STATES of America v. Ocie MILLS and Carey C. Mills.

PCR No. 88-03100-RV, PCA No. 91-30428-RV.

United States District Court, N.D. Florida, Pensacola Division.

March 31, 1993.

Samuel A. Alter, Jr., Supv. Asst. U.S. Atty., for U.S.

Ronald W. Johnson, Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, FL, for Ocie and Carey Mills.

ORDER

VINSON, District Judge.

This cause comes on for consideration upon the magistrate judge's report and recommendation dated June 26, 1992. All parties have been furnished copies of the report and recommendation and have been afforded an opportunity to file objections, pursuant to Title 28, United States Code, Section 636(b)(1). Subject to the following discussion, the report and recommendation is adopted, incorporated into, and made a part of this order.

I. BACKGROUND

This case presents the disturbing implications of the expansive jurisdiction which has been assumed by the United States Army Corps of Engineers under the Clean Water Act. In a reversal of terms that is worthy of Alice in Wonderland, the regulatory hydra which emerged from the Clean Water Act mandates in this case that a landowner who places clean fill dirt on a plot of subdivided dry land may be imprisoned for the statutory felony offense of "discharging pollutants into the navigable waters of the United States."

The movants, Ocie Mills and Carey C. Mills, father and son, were found guilty in a 1989 jury trial of five counts of discharging pollutants into the waters of the United States without a permit, in violation of Sections 301(a) and 309(c) the Clean Water Act, Title 33, United States Code, Sections 1311(a) and 1319(c).¹ The two Millses were also found guilty of a misdemeanor offense of unlawfully excavating a canal (the drainage ditch between Lots 19 and 20) in the navigable waters of the United States, in violation of Sections 10 and 12 of the Rivers and Harbors Act, Title 33, United States Code, Sections 403 and 406. Their prosecution and conviction stemmed from their attempt to prepare for building on two waterfront lots (Lots 20 and 21) on Escambia Bay which they purchased in 1986. One lot (Lot 21) was deemed to be upland, but a significant portion of the other lot (Lot 20) was deemed by the Corps to be a "wetland." Although Lot 20 (like Lot 21) is a waterfront lot, it does not have the appearance of what most lay people think of as a "wetland." Prior to the events in question here, it was originally mostly wooded, with large pine, oak, gum, bay, and magnolia trees, as well as lots of smaller trees and shrubs. Some of these trees grow well in saturated soil conditions, while others do not. A relatively narrow strip of marsh grass along the bay beachline was not directly affected by the Millses' action in question. In its original natural state, the lot had a dish-shaped drain through the center that apparently carried rainwater runoff from inland to the bay, but it had no standing water on it, nor did it appear to be a marsh, swamp, or bog.

After their jury trial, the Millses were each sentenced by Senior Judge Winston E. Arnow of this Court to twenty-one months incarceration, followed by one year of supervised release. In addition, the court imposed a $5000 fine and a special monetary assessment of $250 on each defendant and required the defendants to comply with a Site Restoration Plan. Following their convictions, the Millses filed a direct appeal. The convictions were summarily affirmed by the Eleventh Circuit Court of Appeals. United States v. Mills, 904 F.2d 713 (11th Cir.1990) (table).

In a separate subsequent proceeding regarding the Millses' Supervised Release and their obligations under the Site Restoration Plan, I held an extended evidentiary hearing. By order entered herein on December 24, 1991, I determined that the Millses had substantially complied with the Plan, and specifically, that the elevation requirements had all been met. One significant factual development from that proceeding was a determination that, at the time in question, the subject land (Lot 20) was probably not a "wetland" for purposes of the Clean Water Act. This was because, as a part of the subdivision development in 1978, a drainage that formerly ran through Lot 20 was offset about 45 feet by constructing a ditch between Lots 19 and 20, and the old drain through Lot 20 was blocked and partially filled by the developer. Thus, the diversion of the drain and some filling on Lot 20 was apparently done before the effective date of the applicable Clean Water Act Regulations, and long before the Millses bought their lots in 1986. The Millses, who represented themselves without an attorney at their criminal trial, were not allowed to put on evidence about this, however. Although they challenged this on direct appeal, the Eleventh Circuit affirmed.

The two Millses have now moved to vacate, set aside, or correct their sentences, pursuant to Title 28, United States Code, Section 2255, and/or for a writ of error coram nobis. They have raised four grounds in support of the motion: (1) their convictions for violations of the Clean Water Act are void because Congress has unconstitutionally delegated its legislative authority to the United States Army Corps of Engineers; (2) they were selectively prosecuted; (3) they were denied due process when the trial court prevented them from presenting to the jury the defense of equitable estoppel; (4) there was insufficient evidence to establish that, at the time they placed fill and spoil material on their property, the property was a "wetland."

II. DISCUSSION

Having considered the magistrate judge's report and recommendation and all objections thereto timely filed by the parties, I have determined that the recommendation should be adopted in part. Specifically, I adopt the recommendation of the magistrate judge that (1) the Millses have procedurally defaulted on the selective prosecution claim, and (2) the defenses of equitable estoppel and sufficiency of the evidence were fully disposed of on direct appeal and, therefore, are not cognizable under Section 2255. As questionable as it now may be, the factual basis of their convictions and the sufficiency of the evidence at their trial were previously affirmed by the Eleventh Circuit, and are not subject to further review by this Court. However, the Millses' contention that the Clean Water Act unconstitutionally delegates power to the United States Army Corps of Engineers (the "Army Corps") merits additional discussion.

As a threshold matter, I note that the Millses failed to raise this constitutional challenge to the Clean Water Act earlier, both in the proceedings before the trial court and on direct appeal.² Thus, they procedurally defaulted on the delegation challenge. Generally, the failure to raise a constitutional issue on direct appeal bars a movant from raising the same issue in a Section 2255 proceeding. Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990); Parks v. United States, 832 F.2d 1244, 1245 (11th Cir.1987). Movants can avoid this procedural bar only by showing cause for the failure to raise the claim on direct appeal and actual prejudice resulting from the failure. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816, 830 (1982); Greene v. United States, supra, 880 F.2d at 1305.

The Millses make no attempt to show cause for not raising this constitutional challenge earlier. Instead, they argue that to be incarcerated for violating a criminal provision which is void results in a fundamental miscarriage of justice. According to the Millses, such exceptional circumstances excuse their procedural default.

The Millses are correct that, in certain exceptional circumstances, procedural default may be excused in order to avoid a "fundamental miscarriage of justice." Gonzalez v. Abbott, 967 F.2d 1499, 1504 (11th Cir.1992). In Gonzalez v. Abbott, supra, a challenge to a conviction was raised in a habeas petition which had not been raised at trial or on direct appeal. The petitioner in that case was incarcerated pursuant to a conviction for conspiracy to traffic in cocaine. Id., 967 F.2d at 1500. The petitioner challenged his conviction on the grounds that, prior to the conviction becoming final, the state legislature had repealed the statute creating the substantive offense—trafficking in cocaine—upon which the conspiracy conviction was based. Thus, according to the petitioner, the conspiracy conviction was void.

The district court held that the petitioner had procedurally defaulted on this claim by not raising it earlier, either at trial or on direct appeal. Reversing, the Court of Appeals held that "this claim, if legally founded, establishes that the ... conviction ... is void and cannot be a legal cause of imprisonment —notwithstanding any procedural default." Id., 967 F.2d at 1504.

The Millses argue that the same principle excuses their procedural default. According to them, the provisions of the Corps' Regulations which they were convicted of violating are void, because Congress has unconstitutionally delegated its legislative power to the Army Corps of Engineers, an agency of the Executive Branch of government. Thus, the argument goes, a criminal conviction for violating those provisions would itself be void and could not be a legal cause of imprisonment. While I find merit in this argument, I need not decide whether the Millses' procedural default should be excused in order to avoid a fundamental miscarriage of justice. This is because even if I consider the merits of the Millses' delegation challenge, I am constrained by Supreme Court precedent to conclude that the Clean Water Act does not impermissibly delegate legislative power to the Corps of Engineers.

A. Clean Water Act

The Clean Water Act was enacted "to restore and maintain the chemical, physical, and...