*1 AMERICA OF UNITED STATES EQUIPMENT INC.; CO., TRANSPORT, INC.; WIT WEST INDIES OELSNER, Appellants W. JAMES 96-7063, and 96-7065 Nos. 96-7064 the Third Circuit Court Appeals United States 15, 1997 October *4 Thomas, U.S.V.I., Treston E. St. Appellants Moore, Esq., for (United Katherine W. (argued), States Department of Hazard, Esq., Justice), D.C., (Office Washington, and David L. Atkinson, Esq., Croix, U.S.V.I., St. Attorney), Appellee SCIRICA, McKEE, NYGAARD and Judges

OPINION OF THE COURT SCIRICA Inc.,

Defendants West Co., Indies Transport, WIT Equipment W. Oelsner appeal their convictions and sentences for visa James fraud, crimes, environmental conspiracy, and racketeering. The district jurisdiction court had under 48 U.S.C. 16121 and 1612(a) 1 48U.S.C. "The provides, part: District Court of the Islands shall have Virgin jurisdiction of District court of the United . ." States. . 1612(c) "The provides, part: District Court of the Islands shall Virgin have concurrent with the jurisdiction courts of the Islands Virgin established local law over Islands, those offenses against the criminal laws of the Virgin whether felonies or both, of, on, misdemeanors or which are of the same similar character or or based part the same act or transaction or two or more acts or transactions connected together or part of a common scheme or constituting plan, if such act or transaction or acts or transactions also constitutes or constitute an offense or offenses against one or more of the statutes over which the District Court the Virgin Islands has jurisdiction pursuant (a) (b) subsections of this section." *5 have jurisdiction U.S.C. 3231 and 3241.2We under 28 U.S.C. §§ 1291.3We will affirm.4 §

I. AND FACTS PROCEDURAL HISTORY Transport, West Indies Inc. and WIT Equipment (collectively Co. Indies Transport") operated Bay, "West several businesses in Krum Thomas, dock, including dry St. and ship repair facility, barge towing company. Transport's operating West Indies chief officer was W. In Oelsner. West Indies obtained Transport James to permits barges use five as fixed docks its other In for vessels. Hugo seriously Hurricane damaged barges, some of these shifting permitted positions. them from their West Transport Indies repair, salvage did not attempt reposition, barges to these after Instead, docks, facilities, the it barges storm. used these repair housing and for in their new employees unauthorized locations. In the process, perma- West Indies attached the Transport barges shore, nently walkways ramps constructed and between the for use barges employees, vehicles and and wired them for electricity. facilities,

To its staff West Indies hired Transport an overseas agent Filipino recruit workers. The Filipino workers were instructed to for D-l visas apply non-immigrant intended for crewmen, foreign maritime not the H-2 law. required by visas The Instead, "West Indies crewmen" never to sea. Transport put West Transport Indies housed them in converted container shipping 2 18 U.S.C. of the United States." original jurisdiction, exclusive of the provides, part: "The district courts of the courts of States, of all United States shall have offenses against the laws courts, against United District States, the laws of the United States Court jurisdiction, of the not locally applicable, committed within the territorial provides: Virgin concurrently Islands shall "The United with the district committed have States District Court for the Canal Zone and the jurisdiction upon courts of of high offenses seas." jurisdiction States, laws of of offenses of such 3 28 U.S.C. Virgin Court the District of the Canal decisions Islands, Appeals for provides, except district courts of the United the Federal where a Zone, in part: direct review Circuit) "The District courts shall Court of States, may have appeals be had jurisdiction Guam, the United (other States District the District Court of the than the United States Supreme appeals from all final Court." Court instances, 4 Insome it is difficult for us the precise to ascertain basis of the defendants' claims for relief. We have brief in construed defendants' plausible most fashion. *6 workers Filipino and them as dock workers. The barge on a used week. for a 56-hour work per were month paid approximately $400 West Indies Trans- illegal foreign employees, By using underpaid wages its for and significantly expenses was able to reduce port wage taxes. Transport West Indies repair operations,

In the course of its navigable the waters of discharged pollutants several different into II, heavily barge, the United States. Witconcrete ferro-concrete severed from Hugo. partially in Hurricane The stern was damaged reinforcing metal barge, only by the remainder of the attached bars, attempt Indies did not Transport known as rebar. West Instead, stern. it cut the up, salvage damaged break repair, and the stern into by dumped rebar which the stern was attached Later, when West Indies decided to move bay. Transport it cut additional of rebar from barge, protruding pieces Transport structure and them in the water. West Indies dumped facility,causing the hull of a vessel moored in its also sand-blasted the main water Bay and sand to fall into Krum near paint chips system The on plant. intake the St. Thomas desalinization toilet for Witrollon, were illegal Filipino on which workers barge housed, the West Indies sewage directly bay. raw into discharged its and scrap repair operations also collected steel from Transport at undercover of darkness. West it twelve miles out sea dumped pollution of these permit never obtained for Transport Indies discharges. for twenty-one in a count indictment charged

Defendants were crimes, fraud, racketeering. conspiracy, visa environmental A government. jury on motion of the Five counts were dismissed remaining sixteen counts. Defen- guilty found defendants which the post-verdict judgment acquittal, dants moved appeal district court denied. This followed.

II. FRAUD VISA A. visa fraud in abetting aiding

Defendants were convicted of trial, violation of 18 U.S.C. and 18 U.S.C. 1546.5At the district court instructed the that defendants' to U.S. jury representations and State officials immigration Department verifying Filipino workers hired West Indies would be by working Transport crewmen aboard vessels were material as a matter foreign flagged of law. These instructions were consistent with our decision in Greber, denied, Cir.), United States v. 760 F.2d 68 cert. 474 U.S. 988 which held that when a defendant is tried for (1985), perjury issue of is decided the court. materiality

Between verdict and the United States sentencing, Supreme 1001, Court held that on a under 18 U.S.C. perjury charge Gaudin, must be submitted to the United States v. materiality jury. (1995). 515 U.S. 506 "The Constitution a criminal defendant gives determine, doubt, to have a a reasonable his right jury beyond element of the crime with which he is The guilt every charged. trial court's refusal to allow the on the jury pass materiality Gaudin's false statements that Id. at 2320. infringed right."

The rule announced in Gaudin to this direct applies retroactively States, _ U.S. _, 117 v. United S. Ct. appeal. Johnson review; (1997) (Gaudin 1549 on direct applies retroactively citing 314,328 v. U.S. 479 Defendants contend (1987)). Kentucky, Griffith that Gaudin a new trial. requires

Defendants submitted to the district court proposed jury instructions which took the issue of from the materiality away jury, reason, but now to those same instructions. For this object asks us to treat the district court's instructions as government error, Console, non-reviewable invited under United States v. 5 18 U.S.C. knowingly tions prescribed application, imprisoned other document ^[1546] subscribes as not affidavit, or provides, more thereunder, containing than five other document true, or part: "Whoever such statement any years, knowingly presents any false or both." statement with required knowingly — Shall be fined under respect such immigration makes under application, to a material fact in laws or oath, this affidavit, or . . . title or regula or abets, counsels, commands, another would be an offense (b) Whoever ^[18] U.S.C. 2 provides: willfully causes an act to be "(a) induces or Whoever commits an offense against the United procures done which if its States, commission, is against punishable directly performed by is punishable the United States or as a principal." as a principal, him aids, or

586 denied, Cir. cert. 513 U.S. 812 and Herman v. (3d 1993), (1994) F.2d We decline 1975). Hess Oil Islands Corp., Virgin to do so. Where a defendant submits instructions in jury proposed law, reliance on current and on direct that law is declared appeal infirm, we will not the invited error doc constitutionally apply Instead, trine. we will review for error under Fed. R. Crim. P. plain 52. See 117 S. Ct. at 1548-49 Gaudin error under Johnson, (reviewing defendant, error standard where current law later plain relying unconstitutional, declared insisted at trial that an was materiality court, issue for the Under Rule an decide). "before jury, trial, at court can correct an error not raised there must be appellate error, (1) (2) is that affects substantial If all (3) plain, rights. met, three conditions are an court then exercise its appellate may error, discretion to notice a forfeited but if the error (4) only fairness, affects the seriously integrity public reputation 117 Ct. at Johnson, (internal S. judicial proceedings." quota Olano, omitted; tions and brackets States v. U.S. citing 725, 732 As the Court "in a (1993)). Johnson, Supreme explained — case such as this where the law at the time trial settled — to the law at the time of it is clearly contrary appeal enough an error be at the time of consideration." Id. 'plain' appellate Retos, See also United *8 States 25 F.3d 1220 Cir. is 1994)(question trial, whether not error was at time of but whether it is plain plain based on current law at time direct of appeal).

Failure to submit the issue of to the materiality jury Gaudin, 2320; error. at 117 S. at That 115 S. Ct. Ct. 1549. Johnson, Gaudin involved under U.S.C. rather than 18 18 1001 perjury § here, U.S.C. the relevant statute is not the significant given identical character of the element in both materiality perjury Johnson, (1997) statutes. See 117 S. Ct. 1544 Gaudin to case (applying DiRico, under v. 1623); United States involving perjury (1st 78 F.3d 732 Cir. Gaudin to under 26 1996) (applying perjury U.S.C. 7206(1)).

A error is an which is "clear" or "obvious." error "plain" 1549; Olano, 117 S. Ct. at 507 U.S. at 734. Failure to send the Johnson, is, Gaudin, issue of to the of obvious or materiality jury light clear and therefore error. 117 S. Ct. at 1549. Johnson, "plain"

587 error plain rights" prong the satisfy To "substantial "prejudicial" test, that error was must the usually defendants show — District court the outcome of the "It must have affected Turcks, 734; Olano, v. U.S. at UnitedStates 507 proceedings." (1994).6 (3d Cir.) (same), denied, Defendants 514 1074 cert. U.S. not brought Id. here have this burden of Defendants proof. bear have reached jury might that a suggesting attention facts our materiality. Defen district court on different from the a conclusion not trial that their statements were no evidence at presented dants introduced substan importantly, government material. More were mate representations the defendants' proving tial evidence Indeed, facts behind known true immigration had officials rial. — defendants' inten Filipino applications workers' visas underpaid foreign work illegally workers employ tion to dock — visas never barges on derelict permanently ers housed reasons, not defendants have granted. have been For these would of the failure to submit issue proving met their burden of of the trial. SeeUnited jury to the affected the outcome materiality Cir.) (11th (Gandin Kramer,73 not reversible F.3d 1067 error error; that error affected outcome of defendant failed to show plain trial), 516(1996); Ross, denied, Ct. United Statesv. F.3d cert. 117S. error; (7th 1996)(Gaudin plain issue of error not reversible trial). disputed at materiality seriously satisfied, an parts appellate first three of Olano are "When the seriously the forfeited error court must then determine whether fairness, judicial of integrity, public reputation affects the to correct may before it exercise its discretion proceedings 1550(internal quotations 117 Ct. at brackets Johnson, error." omitted). S. affected, rights were Whether or not their substantial 6 Olano, In Rule structural errors that can be corrected under Retos, v. an within "special category" regardless its declined outcome of David, content, essential 25 F.3d this to of effect on does not include Supreme special element of the offense. We address whether Gandin error falls 1220, trial, assumed category. Court (4th outcome). U.S. at Cir. noted suggested cases but In *9 a 1996) (failure Johnson, did where by Supreme not decide that this but did not state agree the district court failed to instruct the 117 S. Ct. 1544 with there to send issue that Court within this might assumption. regardless what "special be a (1997), the Olano; types materiality category. "special category" category," But see United States their effect on the reversal Supreme cases Our might whatever jury ruling required jury Court falls fall defendants have not satisfied the fourth of the Olano In prong test. facts, a Supreme case similar involving Johnson, Court observed that the evidence materiality "overwhelming," materiality was trial," "essentially was uncontroverted at and the defendant had "no presented plausible argument" that false her statements were "somehow not material." Id. The Court Supreme concluded: "On record this there is no basis for concluding seriously that error fairness, integrity affected the public or of the reputation judicial Indeed, it would be proceedings. the reversal of conviction such as this which would . . have effect. . No miscarriage justice error, will result here if not we do notice the and we do decline to (internal omitted). Id. so." quotations manner,

In same the evidence at trial that West Indies Transport's representations were material was overwhelming and uncontroverted. On defendants appeal, presented have not plausible argument that their statements were not material. The materiality failure submit to the jury seriously did not affect the fairness, integrity, or public reputation judicial proceedings. reasons, For these affirm we will the convictions on visa fraud. B.

Defendants their aiding abetting contend convictions for fraud visa must be reversed because the district court did not the jury instruct that it must find "knowing subscription" "knowing presentation" of only false material. did Not defendants instruction, to request fail such an their proposed instruction was remarkably actually similar to that delivered district court.7 "Thus, all, if there error at it was 'invited error' and Console, cannot now be a basis reversal." United 13F.3d (3d 1993) 641, 661 Cir. (quoting Virgin Herman v. Hess Oil Islands 1975)), denied, Corp., 524 F.2d cert. 513 U.S. 812 (1994).

C. they

Defendants contend as a matter could of law instruction, 7 Compare defendants' to find that false proposed requiring jury "knowing used, statement be made" SA actual which to the with instruction government, required the find false and that jury to statements were "made" the defendants false, "knew" that A 981. they were *10 govern- the abetting and visa fraud because aiding convicted presented who false that workers immigrant ment conceded instigation Transport's INS at West Indies information to the is one de novowhere the question criminal intent. Wereview lacked (3d Schneider, Statesv. 14F.3d876 statutory interpretation. 1994). Cir. alia, inter that a statute aiding abetting provides,

The an act be done willfully is if he causes to defendant liable 2(b). be if he did it himself.18 U.S.C. illegal which would another reason, criminal immigrant whether the workers lacked For this intentionally Transport West Indies long intent is irrelevant so as the Appeals false information. As Court of caused them to submit well established that explained, the Eleventh Circuit "it is for 2(b) liability on causes to criminal one who designed impose act, though a even the intermediary an to commit criminal intermediary the act has no criminal intent and performed who charged." the UnitedStates hence is innocent of substantive crime (11th Cir.), 1092, 1099 denied, reh'g Tobon-Builes, F.2d 716 F.2d 706 (1983). Bank, Springs Nat. Cut Seealso v. First Bank (9th 1988)("A the of an person Cir. who causes commission who punishable though person is a even the principal offense act violates no criminal statute because of wrongful commits lack of criminal intent capacity."). Cir.), Catena, denied,

In UnitedStatesv. 500 F.2d 1319 cert. (1974), presenting a was convicted for false physician U.S. the United States. On appeal, physician Medicare claims to did that conviction must be overturned because he argued his Rather, person. to he present claims the United States false two which companies, submitted the claims to insurance government. forwarded them to United States We affirmed his 2(b) conviction, be con observing person may "§ causing presented victed of false claim to to United States (in an though intermediary even he uses innocent this case the carriers) actually to on the claims the United pass insurance to States." Id. at 1323. the same Appeals

The Court of Ninth Circuit reached 1987). 1289(9th Causey, Statesv. In conclusion United 835F.2d Causey,a tax protester was convicted for tax aiding abetting tax by helping persons evasion file false On appeal, returns. he argued government prove failed persons actually submitting the false returns criminal The possessed intent. court rejected it this is argument Causey's "because immaterial *11 conviction whether or taxpayers not the were shown to have file, 2(b) intended to tax Id. at false returns." 1291. "Under . . . § the government need not prove someone other than the defendant guilty of the person substantive crime. A who causes the commission of an is punishable offense as a principal even person though completes who act wrongful violates no criminal statute because capacity of lack of intent or . . . . Whether the had taxpayers guilty knowledge in submitting the 2(b)." claims irrelevant becomes Id. at § 1291.

West Transport's arguments indistinguishable Indies are from rejected Causey. those in Catena and When a defendant uses an innocent intermediary present false claims or make false state- ments to the government, the criminal intent of intermediary is 2(b). reason, not an element the offense. of For this charge district court's was not erroneous.

III. ENVIRONMENTAL CRIMES A. Act,

Defendants were convicted Water violating Clean (1) seq., U.S.C. 1251et a severing 250-ton and rebar concrete II, block from the stern of Witconcrete a barge, ferrous concrete and (2) Thomas; dumping Bay, it Krum severing approximately into St. one hundred of rebar and attached from pieces concrete the stern (3) of WitconcreteII and into dropping Lagoon; it Krause and conducting sandblasting operations barge a floating pro- sand jected chip residue into Krum The Clear paint Bay. Water Act generally prohibits discharging pollutants navigable into waters a permit. only But regulates without it a "discharges" "point from See 33 pollutants source." U.S.C. 1311(a) 1362(12).8 §§ Defendants contend as a matter lawof their conduct did not constitute discharge of a a pollutant from point source. We review questions statutory interpretation de' 1994). Schneider, novo. United States v. 14 F.3d 876 craft," Barges are “floating expressly included within the 1362(14).9 definition of “point source." 33 U.S.C. “Discharges" “any include any pollutant addition of naviga- ble waters from point source." Defendants concede that Krum Bay and Lagoon Krause are navigable waters of the United States. Rebar, concrete, sand and paint chips fall within the Clean Water 1362(6).10 Act's broad definition of “pollutant." 33 U.S.C. There- fore, cutting off pieces of ferro-concrete barge and dumping them in Krum Bay and Krause Lagoon, or conducting sandblasting on floating craft and allowing residue to fall into Krum Bay, constitutes an making addition of a pollutant to navigable waters of the United States from a point source. Defendants' conduct fell *12 within the applicable statutory definitions.

Appellants' Labs., reliance on United Inc., States v. Plaza Health 1993), (1994), F.3d denied, cert. 512 U.S. 1245 does not There, alter our conclusion. defendant removed containers loaded office, with blood car, vials from his transported them in his and carried River, them to the Hudson where he deposited them during low tide in a bulkhead separating his home from the river. 1311(a) 8 33U.S.C. provides: "Except as in compliance § with this and section sections 1316, 1317, 1328, 1342, title, and 1344 of this discharge any pollutant any bv shall person be unlawful." 1362(12) "The term provides: of a 'discharge pollutant' and the term 'discharge (A) of pollutants' means any addition of any pollutant to navigable waters from any point source, (B) any addition any pollutant the waters of the zone or the contiguous ocean from point source other than a vessel or other craft." floating 1362(14) discernible, 9 33U.S.C. provides: "The term 'point source' means any confined ditch, channel, tunnel, and discrete conveyance, but including not limited to any pipe, conduit, well, fissure, container, stock, discrete rolling concentrated animal feeding craft, operation, or vessel or other floating from which pollutants are or may be The discharged. term does not include agricultural stormwater discharges return flows from irrigated agriculture." 1362(6) 10 33U.S.C. provides, part: "The 'pollutant' means dredged spoil, term solid waste, residue, munitions, incinerator sewage, garbage, sewage sludge, chemical wastes, materials, materials, heat, biological radioactive wrecked or discarded equip ment, rock, sand, industrial, cellar dirt and municipal, agricultural waste dis into water." charged The United States Court of for the Second Circuit refused Appeals to consider defendant a source." But Plaza offers "point no guidance exclusively here because it focused almost the appli- on cation of the Clean Water Act to human beings: parties

As the have the issue to us in their presented briefs and at oral is argument, question 'whether human being can be a point source.'

* * if Human are not beings among enumerated items may be a source' .... if 'point every discharge humans were involving 'discharge considered a from a source.' the point lengthy statute's definition of 'point source' would have been unnecessary.

* * sfr The Clean generally Water Act industrial and targets sources of municipal pollutants, as is evident from a .... perusal many of its sections The legislative history of the CWA . . . confirms the act's focus on industrial polluters.

* * * We find no either suggestion in the act itself or in the history of its passage congress intended the CWA to impose criminal an liability myriad, individual for the random acts of human disposal, example, waste *13 passerby flings who a candy wrapper into the Hudson River, a urinating swimmer. Discussions during passage of the 1972 amendments indicate that congress had bigger fry. fish to (citations omitted).

Id. at 647 Congress intended a broad definition "point "[t]he of source:" of a source was concept point designed to further [regulatory] this scheme the broadest embracing possi- ble definition of identifiable from which conveyance pollutants might enter the waters of the United States." United States v. Earth

593 Sciences, Inc., 368, Plaza (10th 1979). properly definition that the breadth of the source" circumscribed the "point and does not alter the of the Witconcrete II rebar was actually part rebar, the Witconcrete Before and after the severance of analysis. craft" within the a "vessel or other II as param- floating qualified of a U.S.C. The deliberate 1362(14). eters of 33 amputation § the Witconcrete II's of the vessel did not suitability destroy portion Fund, at Hudson Inc. v. Harbor as a source." Riverkeeper "point Cf. Assocs., 251, would (S.D.N.Y. 1996) ("[i]t 917 F. Hastings Supp. would fit into this of seem interpretation unlikely Building deliberate of material would not be source as any discharge point We see no error here. or systematic").

B. untreated

Defendants were also convicted discharging workers, used to house their into Krum from sewage Bay barge and Defendants 1311(a) 1319(c)(2)(A).11 in violation of 33 U.S.C. §§ and the concedes from "sewage correctly argue government and under 33 U.S.C. vessels" is regulated § §§ 1319.Thus, if defendants' falls within the definition statutory barge "vessel," 1311(a) the conduct in does not violate of question § must be reversed. Defen and their convictions 1319(c)(2)(A) § maintain their on which housed workers dants they Filipino barge is a vessel. We disagree. ves- defines "new vessel" 1322(a)(1) "existing § or other artificial

sel" to include of watercraft "every description used, used, as a means of trans- contrivance or capable being vessels with "other on water." This definition contrasts portation define, craft," Clear Act does not a term which the Water floating and in the context of the statute an but which its terms suggests by that, vessel, contrivance in contrast to a is not artificial water-borne See 33 used or used for capable being transportation purposes. times, At all relevant 1362(12). U.S.C. barge question to shore. It was used to house moored foreign permanently 1311(a) with this section and sections "Except compliance U.S.C. provides: 11 33 title, 1316, 1317, 1328, 1342 any pollutant by any person and 1344 of this discharge 1319(c)(2)(A) for "any unlawful." Section for criminal sanctions provides shall be who violates 1311. person" "knowingly" *14 barge have workers, Nor could transport. a means of not as trial, at defen- According testimony to transport. for been used with Bay, of Krum in the water submerged was half barge dants' water visible below the bottom and with resting the hull on part of There was mooring. from its The could not moved barge decks. that the the trier of fact to conclude evidence therefore for sufficient Act. the Clear Water meaning a vessel within the of barge was not authority interpreting any are not aware of Though we with view is in accord our meaning of "vessel" in contexts. the term "vessel" other interpretation of long-standing (1887) Co., (dry dock Dry-Dock 119 U.S. 625 Cope See v. Valette chains, propulsion, with no means of by large attached to shore vessel; "The fact for being navigation, and of used incapable vessel."); a ship water not make it that it floats on the does 1992) (9th UNISEA,Inc., ("[Floating F.2d Kathriner v. are they if navigation are not classified as vessels structures water, permanently are of movement over incapable independent kind, land, of transportation have no function moored ability navigate."). have no

C. 1319(c)(2)(A) any- penalties criminal establishes con- 33 U.S.C. 1311.Defendants "knowingly"

one who violates on the jurors erred when it failed to instruct tend the district court have been arguing jurors might "knowingly," definition of was insufficient pollutants of discharge unaware that an accidental trial, we at so objection Defendants did not raise this to convict. error. plain review for contention, jurors instructed defendants' the court

Despite "An act is done It stated: meaning "knowingly." of the term and not because voluntarily intentionally, knowingly if done The purpose innocent reason. mistake or accident or other no one will be is to insure that 'knowingly' the word adding accident, mistake, or other convicted for an act done because here. There was no error innocent reason." D. and Harbors the Rivers violating were convicted for

Defendants Act, part: which provides, 33 U.S.C. § *15 it shall not be lawful to build or commence the building wharf, boom, weir, any breakwater, pier, dolphin, bulk- head, . . jetty, any or other structures in . water of the States, lines, United outside established harbor or where established, no harbor lines have been except plans by recommended the Chief of and Engineers authorized by Secretary Army. the

Defendants contend the district court should have dismissed this count the government prove because "did not that the Defendants wharf, had built a knowingly pier, any or other structure." Under longstanding precedent, the prohibition on "build[ing] or wharf, . commencing building . pier. or other struc- tures" contained in 403 contemplates § "the purposeful creation of something designed, formulated or construction work in the 729, conventional Bigan, sense." United States v. 732 1960).Thus, we have held that negligent creation of an obstruc- navigation tion to does not violate See § 403. id. (negligently caused land slide river resulting blocked channel not a violation 403). of § trial,

At government presented evidence that defen dants intentionally strung together numerous derelict barges to activities, form a permanent dock for loading repairs, housing of employees. West permanently Indies at Transport barges tached these together and to land rope with and wire cable. The barges and shore were connected walkways defendants constructed out of metal and wood. The resulting wharfs were wired for electricity and were substantial enough support to significant loading repair operations, including use forklifts. provided This evidence sufficient basis that defendants purposefully built an unauthorized structure. This was anot case an where act of nature negligence or resulted in an obstruction to navigation. It was clear that defendants here built intentionally large dock to conduct their business activities.12 12 Consistent with the broadly, courts have considered structures analogous (1960) ("the instant case Court. "obstructions.". See United States . gave . concept'obstruction'. Supreme States Court's directive v. Republic . .a broad sweep to the Steel interpret Carp., barges 33 U.S.C. at ”), U.S. issue reli'g denied, § E. their convictions

Defendants raise second objection U.S.C. 403 sanctions and Harbors Act. 33 the Rivers U.S.C. in water of the United of structures the construction only lines, harbor "outside established are built when those structures 403. harbor lines have been established." where no or find it must did not instruct The district court jury lines, where no lines outside harbor built a structure defendants contend on defendants now been established. have Although deficient, their instruction fatally proposed appeal jury element. the "harbor lines" instruction made no mention of jury *16 all, "Thus, error' and at it was 'invited if there was error any Console, v. 13 F.3d be a reversal." United States cannot now basis for 641, Islands Herman v. Hess Oil (3d 661 Cir. Virgin 1993)(quoting 767, 771 Cir. (3d 1975)). 524 F.2d Corp., error, because we would review for error If not invited plain trial. A error must defendants did not at "prejudi- object plain — court have affected the outcome of the district cial" "It must Turcks, 734; Olano, v. 41 F.3d at United States 507 U.S. proceedings." Id. bear this burden of 1994) (same).Defendants 893 Cir. proof. attention evidence Defendants have not to our brought affected the outcome that the district court's instruction suggesting at trial has not or the trial. West Indies of argued, Transport fact within established that its docks were in constructed appeal, lines, On the lines have been established. harbor or where no ^[363] Supp. vessel" and an "unauthorized was not moved ramps, ("'obstruction' Examples omitted); and its extension waters of River's construction Partners v. United States navigable it . . . U.S. 858 (E.D. 1205, [is included] and sunken normal United States v. of like structures the United river of the United Pa. ^[1219] (1960); within the docks, 1977) flow and circulation patterns for more than seven (S.D.N.Y. are 'structures' Norfolk vessels. See Great as an States"); ("[a] piers, Corps Engineers, Lambert, obstruction"). & Co. 1996) meaning which constitute "obstructions" barge, W. States, and boat riparian United States v. that obstruct (finding 915 F. whether v. United to further the ... Am. 'obstruction'" months, Supp. ramps Ins. Co. of houseboat, negligently States, the Act is to be liberally Ohio F. have been disrupted creates obstructions constituted a "permanently Supp. navigable capacity purpose Barge ^[804] Tugs for that served (S.D.W. ’ purposes Lines, Inc., "Cissi Reinauer" or include 1201, 1210 intentionally the Act and not narrow Va. (N.D. Ill. of as a residence and 1996) docks, in the navigable of also"); (6th 403) (citations the River. The F. Supp.1023, construed"). ("[t]he et 1993) ("the sunk in a piers, al., Fox moored ^[933] 1980) dock boat Bay F. contrary, appear defendants to concede this issue. Nor do defen- dants contend that a jury might reasonable acquitted have them on charge this had it been instructed on the harbor lines requirement. We see no indication that the district court's jury instruction had any impact on the outcome of the trial. For these reasons because the district court followed the defendants' proposed instruction, the court's instruction did not seriously affect the fairness, integrity, public reputation judicial proceedings. Therefore we plain see no error.

IV. ALLEGED PREJUDICIAL TESTIMONY Allen, official, Randolph local labor testified govern- for the ment regarding the costs defendants would have incurred had they employed through legal workers means. Defendants objected testimony to his ground on the that it unduly prejudicial and irrelevant. The district court allowed Allen's testimony proba- tive of defendants' motive and intent to commit visa fraud.

After the conclusion of testimony Allen's defendants asked for a mistrial, citing possible prejudice among union workers on the jury against someone who employed alien labor. Defendants also asked the court to question the jury possible prejudice. Denying mistrial, motion for the Court noted that defendants failed to raise *17 this question with potential jurors during pre-trial voir dire. Nev- ertheless, the district court halted the trial and asked the jurors whether of them had "such strong feelings for or against alien that they workers" would not be able "to decide this fairly case and impartially." juror No responded affirmatively.

We review denial of mistrial for abuse of discretion. United (3d Cir.1986). States v. Wright-Barker, Allen's testimony was relevant to and probative on the intent element of the charged visa fraud counts it because tended to establish the defendants' motive. We see no of undue sign prejudice. Though dire, defendants did not raise this issue during voir the district court carefully questioned the jury to ensure there was preju no dice that might affect the jury's impartiality. We see no abuse of discretion here. BY ENTRAPMENT ESTOPPEL

V. when the a fair trial denied they were contend Defendants to, evidence relevant presenting them from prevented district court by estoppel" on, "entrapment two jury to instruct and failed defenses.

A. has its roots by estoppel entrapment of affirmative defense

The Ohio, decisions, 360U.S. 423 Raleyv. State Court Supreme in two of (1965), denied, reh'g Louisiana, (1959) U.S. 559 and Coxv. State of (1965), Raley, In process. of due violations finding 380 U.S. 926 the Ohio Un-American questions to answer defendants refused erroneously informed a official after state Commission Activities constitution's under the state were they protected them were subse- The defendants against self-incrimination. privilege reversed, holding Court Supreme The contempt. held in quently privilege a exercising a citizen for "convict[ ] may that the state him," to for to him was available clearly had told which the state entrap- sort of the most indefensible be to sanction do so "would Cox, again the doctrine applied at 438. The Court ment." Id. because for picketing law convictions it reversed state where picket. to permission defendants granted officialhad state only one defense in by estoppel entrapment Wehave applied Chemical Pennsylvania decision, Industrial prior 1972), remanded, 411U.S. 655 Corp.,461F.2d468 modified with Industrial, (1973). charged defendant was Pennsylvania In River, in violation Monongahela into the discharging pollution trial, Act, the defendant 407.At 33 U.S.C. and Harbors the Rivers had been acts criminal allegedly that its evidence sought present government's and the federal by Army regulations authorized prohib court The district the statute. interpretation long-term and refused evidence introducing the from the defendant ited actions if his acquitted the defendant should jury instruct that its acts representations government affirmative resulted from were lawful. "The appeal. we reversed grounds, process due

Citing *18 meant what is notions of in our basic implicit play of fair is concept corporation or an individual regard, this of law In by due process 599 should not be held criminally responsible for activities which reasonably could not have anticipated illegal been to be based on years government 70 of consistent interpretation and subsequent behavior." Id. at 479. Because the defendant been had not allowed to present jury the evidence nor had the been instructed on the defense, entrapment by estoppel granted we trial. new Id. law, The Supreme Court with our agreed statement of the holding "it was error for the District Court permit to refuse to PICCO present evidence in of its claim it had support been affirmatively believing misled into that the in discharges question were Pennsylvania not a violation of the statute." United v. States (1973). Corp., 655, 775 Indus. Chem. 411U.S. The Court also held that only defense applied where there is reliance in fact and that reliance was reasonable under the circumstances. Id. decided,

SincePennsylvaniaChemicalwas other courts of appeals, clause, citing process the due applied have the entrapment by defense, See, estoppel although employing slightly different tests. (7th 1997) Rector, 503, e.g., United 111 F.3d 506-07 Cir. (entrapment by estoppel applies defense where "the one mislead state; ing defendant bean official actively that he mislead defendant; and that the defendant's be actual reliance light reasonable in of the identity of the agent, point of law represented, and the the misrepresentation"; substance of addi faith); tionally, good defendant's reliance must UnitedStatesv. (4th ("A 1997) Aquino-Chacon,109 F.3d Cir. criminal defendant assert an may defense entrapment-by-estoppel when the government affirmatively assures him that certain conduct is lawful, the engages defendant thereafter in the conduct reason able assurances, reliance those and a criminal prosecution based ensues."); upon Trevino-Martinez, the conduct United States v. (5th 1996) ("criminal F.3d Cir. defendant be entitled may raise a entrapment defense of by estoppel only government when official agent actively a defendant assures that certain conduct is legal and reasonably the defendant relies on that advice and (internal conduct") omitted), continues or initiates the quotations (1997); denied, Brebner, cert. 117S. Ct. States v. (9th 1991) ("The 1017, 1024 entrapment by estoppel defense applies government when an authorized official tells defendant *19 the the defendant believes legal conduct is and that certain 1991) (1st Smith, official."); F.2d United States to when an official apply has been held estoppel ("Entrapment and the defendant legal, certain conduct is a defendant that assures initiates the advice and continues or on that reasonably relies conduct."). a means that reasonable reliance agree These courts obeying truly that "a desirous of person must defendant establish true, would the and accepted would have information the law Trevino- inquiries." further put been on notice make not have Brebner, 69; Martinez, at 1024. 86 F.3d at defense where by estoppel applies We hold entrapment the that by a the evidence preponderance the defendant establishes (2) (1) that told defendant certain criminal official the government (3) actually govern relied the legal, was the defendant on conduct (4)and statements, defendant's reliance was ment official's identity of the light government and of the faith reasonable good official, and the represented, law substance point of statement.13 official's

B. estoppel trial, sought entrapment by to raise two

At defendants First, certain West present testimony from they defenses. wished claimed agents. and INS Defendants Transport employees Indies INS that fully that had informed testimony they would show foreign admitted to the they employ wanted to nationals facility, at and D-l visas as dockworkers their States on crewman had of the scheme. approved that INS that entitlement to "[t]o The district held establish court (1) . . must show by estoppel. defendants entrapment defense officials with actual fully informing government after that facts, that they were advised authority underlying apparent advice; (2) that legal; they relied on alleged conduct reliance, (3) reasonable, given that reliance was hearing in an camera holding would be unfair." After prosecution The defendant's desirous of not have been obeying put reliance notice to make further is reasonable and in law would have accepted inquiries. good the information as faith only where true, and would person truly evidence, to review proffered the district court concluded defendants' evidence demonstrated only that INS extended the Filipino workers' visas based on representations by West Indies Transport that the workers would soon be employed as crewmen on ocean-going vessels. The evidence also showed that defendants never informed any United States officials at any time that the workers would be living on United States soil and that they would *20 work as dock workers on derelict barges and on land. For these reasons, the district court held that defendants had offered no evidence tending' to prove that the INS was informed of and approved defendants' scheme to employ alien workers admitted to the United States on D-l foreign crewman visas as permanent dockhands.14 observed,

As the district correctly court defendants pointed to no evidence tending prove that the INS was informed of and approved defendants' scheme to employ alien workers admitted to the United States on D-l foreign crewman visas as permanent dockhands. Defendants have failed to establish a necessary ele ment of the defense —that government officialstold them that their conduct reason, was lawful. For that the district court correctly excluded the proffered evidence.

The second entrapment by estoppel claim arises out of defen- dants' convictions Act, under the Ocean Dumping 1411(a) 1415(b)(1). §§ Defendants were convicted for dumping large quantities of scrap metal and other debris into the ocean darkness, under cover of without a permit. Coast Guard regula- tions implementing Act to Prevent Pollution from Ships, 33 1901-11, U.S.C. require all vessels 26 feet and longer to carry placards that warn vessel owners and crews that certain discharges 14 Thedistrict court said: "The proffered has led me testimony to conclude that no comments aby government can be agency construed as indicating defendants that their conduct was legal, when no government official was ever informed as to the specifics of the given situation. Because defendants failed to inform any government authority visas, facts which are relevant to obtaining they could not have obtained or relied upon advice indicating their conduct with to the regard information provided on the visa applications was Thus the legal. entrapment by estoppel defense is not available to the defendants in this case." at various are sewage prohibited garbage ship-generated trial, argued placards that the At defendants from shore. distances into scrap metal they legally dump could to believe led them at least twelve miles site was dump as the long the ocean so evidence, their them to present court allowed The district offshore. by estoppel the entrapment jury did not instruct but defense.15 signs reliance on these their reasonable

Defendants contend under the doctrine responsibility them of criminal absolved alternative, they contend the failure In the by estoppel. entrapment violated their estoppel defense entrapment by on the to instruct due process rights. examples of appellate in the record

Defendants have included they relied when they which claimed similar to those on placards example, One legal. were dumping operations believed their they Guard, certain types Coast states that by the apparently produced the vessel is at at sea if may discharged trash" "non-plastic no placard shore. The makes twelve nautical miles from least states, "The type: metal. It also in clear scrap about *21 representations a provided guidance this device is as contained on information apply all, which discharge restrictions many, but discharge of restrictions law. There are a number United States set out in this device." which are not by estoppel an entrapment

Defendants were not entitled to makes no The placard. placard of this strength instruction on — dump of defendants' conduct legality about the representations states that other placard expressly The ing scrap metal off-shore. notice to defendants on may apply, putting discharge restrictions their conduct was determine whether further inquiries make on rely for defendants to it have been reasonable Nor would legal. scrap metal off-shore. dump an authorization to this as placard facility a generated by ship repair metal scrap of Large quantities trash." meaning "non-plastic of plain fall within the do not Moreover, the defendants' evidence that there is substantial faith. Had West good actual nor in reliance was neither claimed defendants whether appendix the defendants' brief or 15We cannot ascertain from such an instruction. requested Transport truly Indies believed that its ocean dumping legal, it would not have consistently dumped metal under cover scrap darkness. example placard by

The second submitted the defendants Products," was manufactured by apparently private "Seachoice ship chandler. The entrapment by estoppel defense applies only to officials, representations by made government not to asserted legal reliance on advice or representations non-governmental from actors. made Representations Seachoice Products or other private entity legality as to the of ocean dumping cannot remotely establish valid entrapment by estoppel defense. Even if the placard representations by contained the government, it would not defense, warrant for placard The contains no statements regarding legality dumping scrap metal at sea. government No ever told Transport official West Indies its operations dumping legal. appear were Nor it does from record that West Indies asked Transport ever for government advice on matter. this Defendants we reexperienced operators in the industry. maritime It was clearly unreasonable for defendants to rely vessels, on a placard appears all types including boats, legal justification recreational for industrial ocean dump- ing.

VI. AND RACKETEERING CONSPIRACY Defendants we assert if reverse their convictions on immi- gration counts, and environmental crimes we must reverse their for conspiracy racketeering. convictions we Because affirm defendants' convictions visa fraud and environmental viola- tions, we will affirm these convictions as well.

Defendants also contend their racketeering convictions must be overturned because of the predicate none acts was a local Virgin statute, Islands offense. The Virgin Islands RICO 14 V.I.C. § that at requires only predicate charged least one act as a federal offense also "constitute" a felony Virgin under Islands law. But, 604(j)(2)(C). V.I.C. the one requisite § local predicate act need charged felony, not be as a local but merely "constitute" one. Here, defendants were charged with and convicted for conspiracy felony under constitutes a under Conspiracy federal law. also the See 14 551. We error here. Virgin § Islands Code. V.I.C. see no

VII. SENTENCING several sentencing objections. Defendants raise A.

First, $500,000 defendants fine imposed contend Act, by the district under Corrupt Organizations court 14V.I.C. 605,was We § excessive. review the district court's determination Seale, a fine amount of for clear error. UnitedStatesv. 20 F.3d (3d 1994).The Cir. defendants concede fine falls within permitted Nor have range by pointed law. defendants any legal or error underlying factual assessment of fine in this amount. We no see error here.

B. also contend level

Defendants the six enhancement for ongoing, continuous, repetitive of a pollutant assessed discharge 2Q1.3(b)(l)(A) district court under U.S.S.G. be reduced should because the human sewage raw defendants into dumped naviga "fully ble waters biodegradable." Our is plenary. review (3d Cir.), denied, United States v. James, cert. 117 S. Ct. 128(1996). cite authority

Defendants no for the that un proposition treated sewage biodegradable human or fully pollution warrants different under guidelines treatment than other nor pollutants, we why reasons should such rule. Because untreated adopt human falls within the sewage meaning clear "pollutant" 2Q1.3(b)(l)(A), we will affirm the enhancement. C.

The district court ordered defendants to pay restitution offset cleaning costs of their up damage. environmental Restitution is authorized of Title only violations 18 and some Title 49 provisions. See18U.S.C. 3663.Defendants contend the trial court by ordering erred title restitution for 33 offenses. Our review is 1996). Maurello, plenary. United States v. 76 F.3d 1304 *23 argument Defendants' is meritless. Each Title 33 offense also a 2. charged violation of 18 U.S.C. Restitution is authorized for violation of 18 U.S.C. 2.§

Defendants also imply, though they clearly argue, do that the of amount restitution was excessive given amount of damage environmental caused their criminal conduct. We review the appropriateness particular of a restitution award for Maurello, abuse of discretion. F.3d 1996). The district court calculated restitution based on Coast Guard of required estimates the costs to clean defendants' envi damage. ronmental The district court also ordered if the ultimate cost of is lower than the clean-up Coast Guard estimate, any amount over the actual costs shall be returned to the appears defendants. This sensible approach appropriate and does not constitute an abuse of discretion.

VIII. reasons, For these the judgments of conviction sentence will be affirmed.

NYGAARD,concurring dissenting

I agree with government's most argument. Regarding the true, course, Clean charges, Water Act I It cannot. is "wrecked a equipment" or discarded is listed "pollutant" under 33 1362(6). Webster's, however, U.S.C. defines "equipment" as "the set physical of articles or equip resources serving person or ... ." thing Webster's Ninth New Collegiate Dictionary (1988).I do not think these of the parts WitconcreteII—which in better an integral part times were hull—can properly its part bethought equipment. They of as of the were ship's not mere appurtenances, like crane or radar loading dumped antenna over the side. I they believe were a part ship itself. aside, however,

That there still was no "point source" within the Act. meaning of the The Clean Water Act prohibits discharging pollutants navigable into the waters of the United States without a however, permit; it regulates discharges only "point from sources." 1311(a), 1362(12). *24 argue See that Appellants they 33 U.S.C. §§ criminally culpable cannot be because as a matter of law the did discharges above not emanate from Under point sources. 1362(14),"point U.S.C. source" is defined as follows: discernable, conveyance, confined and discrete "any in- ditch, channel, but not cluding any pipe, limited to conduit, tunnel, well, fissure, container, discrete rolling stock, feeding operation, concentrated animal vessel or or craft, floating pollutants may other from which or are discharged." Laboratories,Inc., on

Appellants rely United States v. Plaza Health 1993). There, F.3d 643 Cir. the defendant owned a medical testing laboratory. Fie loaded vials of blood into his car and them the dumped into Hudson River. He was indicted however, Clean Water The Appeals, Act. Court of ruled that defendant, as an individual waste into a dumping directly body of water, "point was not a source" within the of the meaning Act and reversed his conviction.

After observing first that statute designed "this was never random, address the polluter," individual id. at the Plaza Health Court to the looked and structure of the Act and language concluded that the listed "evoke[d] items in statute images of physical and structures act systematically instrumentalities a means of conveying pollutants from an industrial source to navigable waterways." Id. It interpretation then reasoned an the statutory every text that brought "discharge act of involving humans" within the ambit term "pointsource" would make redundant, 646-47, that text id. at contrary thus to long- established principles of construction. statutory

The Court turned legislative next to the of the Act and history found no intent congressional impose liability "to criminal on an myriad, individual for the acts disposal, random of human waste for example, flings a a passerby candy wrapper who into the River, Moreover, Hudson a urinating swimmer." Id. at it 647. found no expansive such Act in the criminal interpretation .the law, case it noted that with this issue in the although dealing courts context of civil more penalties broadly. have construed statute no Plaza HealthCourt found evidence of Finally,

Id. at 648. bring the EPA that would interpretation administrative Id. at 649. within statute. defendant's conduct observations, then "that the the Court concluded Based on these beings ambigu- to a human at best applied source' as 'point term rule of it held that the lenity, prosecution Id. Applying ous." must be Id. dismissed. M.C.C.,Inc., relies, however, United government

The 1985), (11th a building 772 F.2d 1501 in which contractor departed approved plan from the Keys Florida bridge Unfortunately, the by barge. assemblies in brought construction body from the bottom of shallow up screws stirred sand tug's *25 beds, them. damaging it on nearby grass water and redeposited water, already in when held that material the The M.C.C. court a under Clean Water discharge constitute the redeposited, could issue, the dwelling at 1506. the court concluded Act. Id. Without statutory possible the list of that because "vessel" was included in sources, the facts a source under tug's point the screws were point case. Id. at 1505-06. of that "point that used the term Congress

It is evident to me when source," than propulsion it other the something had in mind waters. happens operate navigable of that system every ship conduit, convey- a is the point I would thus that source conclude discharged, and not pollutants vector which are by ance or discharging stirring up old without pollutants screws of vessel at anything all. there, the govern- M.C.C.for another reason:

I would follow Here, felony are sought reviewing civil we only penalties. ment conviction, of construc- statutory and must different maxims apply to effectu- typically broadly Remedial are construed tion. statutes are them. Criminal statutes legislative ate the behind purpose fair warning defendants of narrowly give construed more I conclude that Plaza penalize. intended to legislature conduct holding. well, and would its adopt fits our case particularly Health In United that here was plain. I would also conclude the error 1770(1993), 725, Supreme Olano, v. U.S. S. Ct. 507 113 appeals employ of must clarified the standard that courts Court warrants reversal deciding whether a forfeited error when course, First, P. R. Crim. of there must be an that 52(b). error has Fed. 732-33, not been waived. Id. at 113 S. knowingly intentionally Second, is, Ct. at 1777. the error clear must or obvious plain; 734, 113 Third, at under current law. Id. S. Ct. 1777. error plain must have affected substantial rights, generally affecting 734, of outcome the district court at S. Id. 113 Ct. at proceedings. crossed, once this has threshold been 1777-78.Finally, reviewing discretion, court must its exercise the error if it "seri correcting fairness, ously integrity affect[ed] public reputation 736, Id. at 113 S. atCt. judicial proceedings," (quoting Atkinson, 160,56 391, States v. 297 U.S. S. Ct. as (1936)), when the error caused the conviction of an innocent "actually 736, 113 Id. at defendant." S. Ct. at 1779. case, to this the Clean Water Act "the

Turning only proscribes 1311(a), which turn is discharge any pollutant," defined addition of . . .from "any any pollutant any point . . source . ." 33 U.S.C. It 1362(12). is evident that the require- ment that the emanate from a source is an essential discharge point element the crime.

We have held omission of an essential recently "[t]he element of an offense from the instructions will be jury usually error, obvious and therefore the first satisfies and second ordinarily of Olano." United States v. requirements Stansfield, 1996) (citation omitted); accord United States Zolicoffer, *26 771,774 F.2d (3d 1989) Cir. ("the failure to one of the essential prove of a the elements crime is of fundamental error which type may an noticed court the defendant's by notwithstanding appellate Thus, raise it court"). failure to in the district to I conclude that the extent Clean Water Act on convictions rested the appellants' sources, erroneous conclusion that the from came discharges point the error was "plain."1

1Mv conclusion binding 1220, 1230 appeal facing in a formal to the benefit of a analogous facts. became in this sense, is not altered final. circuit at 1996), Supreme holding Here, we held that the defendant was by the law Court time of of has not been Pinza the fact that Plaza Health decision handed down after his trial but before his was appellants' clear at Health, the time of trial. In entitled, questioned Second trial; although Circuit plain by any other p. Retos, case, error was not binding review, court F.3d - I likewise have no difficulty concluding that the error involved appellants' substantial rights seriously undermined the fair- ness, integrity reputation of the judicial If the proceedings. source, did not discharges emanate from a point an issue to which not, I shall turn shortly, law, then appellants could as a matter of have violations, been convicted of Clean Water Act and are "actually innocent" of the offense. Such a conviction would be classic miscarriage justice. to the Accordingly, extent there was error, we have power it correct and I would exercise our discretion to do so.

I believe that neither the discharge of the WitconcreteII's stern nor its protruding qualifies rebar a point as source within the meaning of the Clean Water Act. The severing stern was not vessel, 1362(14). a discharge from a required by 33 U.S.C. § Rather, part of the vessel itself was discharged. Appellants wrecked, merely severed a portion useless of the WitconcreteII to extricate a serviceable portion forward of it. This awas salvage operation, not a discharge of concrete and rebar through the instrumentality of the barge.

Likewise, the severed rebar was not discharged through the 1362(14), "conveyance" of the see barge, it part itself. barge way, Put another I think these two discharges are intermittent, closer to the manual blood dumping of Plaza Health they than are industrial paradigm of the sewage treatment plant, refinery oil or steel mill that animates most Clean Water Act cases.2 I would accordingly appellants' reverse convictions at counts one and two.

I also with disagree government's argument concerning Rivers and Act. rely again statute, Harbors I on the language of the 403,.under 33 U.S.C. which it is prohibited "to build or com- wharf, mence the building pier ... or other structures." In sum, these barges placed were in their current locations by hurricane, most, not WIT. At WIT wired them to the local utilities-and built walkways some to connect them. That be may *27 2The government also that the stern and argues rebar became "wrecked and discarded 1362(6), a equipment/' pollutant listed but that begs question of whether § source, there was a point which I conclude there was not.

610 structure, but it is not the an the "use" of "build[ing]" existing a new one. detail, in had a to moor four vessels more

In permit appellants hit the Islands as docks. When Hurricane Krum Virgin Hugo Bay 1989, and otherwise shifted it of these vessels in ran some aground storm, After the those in the their from permits. positions specified to their did move these vessels back original appellants 1992, the them where sat. November but used they By positions, indictment, In three had count superseding expired. permits with misdemeanor violations charged appellants government 403, Act, which of the Rivers and Harbors proscribes a did not and wharves without permit. Appellants creating piers their convic- the evidence to support challenge sufficiency court, error standard tions the district so applies. again plain "build or com Under [ing] longstanding precedent, prohibiting wharf, . . .or other structures" of any mencing] building pier creation of 403 "the contained contemplates purposeful in the construction work formulated something designed, 729, (3d United States v. 732 conventional sense." Bigan, There, a we held that 1960) added). Cir. negligently (emphasis channel in an river caused earth slide obstruction resulting Likewise, we have held was not a violation of 403. negli channel did not violate the Act. vessel in a river sinking gently Lines, Inc., F.2d Cir. (3d See United States v. Ohio Barge Wilson, 1956) F.2d 1979); accord United States "obstruction," but is not a "structure" sunken be an (a barge may 403). in violation of §

Here, vessels in Krum had to moor Bay, every right appellants how- but the hurricane them out of shifted position. Appellants, ever, in their current never the vessels positions put purposely Because, as in violation of the Act. hence never built structure failed to adduce I have discussed utterly supra, government crime, I would an element of evidence essential supporting it under discretion to correct deem the and exercise our error plain the convictions I would reverse 52(b). Fed. R. Crim. P. Accordingly, at count three.