UNITED STATES of America (09-5388), Plaintiff-Appellant/Cross-Appellee, v. CANAL BARGE COMPANY, INC. (09-5422), Randolph Martin (09-5421), Paul D. Barnes (09-5423), and Jeffery A. Scarborough (09-5424), Defendants-Appellees/Cross-Appellants.
Nos. 09-5388, 09-5421, 09-5422, 09-5423, 09-5424.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Jan. 7, 2011.
631 F.3d 347
Argued: Nov. 30, 2010.
Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.
ROGERS, J., delivered the opinion of the cоurt, in which KETHLEDGE, J., joined. BATCHELDER, C.J. (pp. 357-59), delivered a separate opinion concurring in part and dissenting in part.
OPINION
ROGERS, Circuit Judge.
This case presents a question of venue, specifically, the appropriate district in which to prosecute a charge of willful failure to “immediately notify” the Coast Guard of a “hazardous condition” aboard a vessel.
I
On June 16, 2005, a barge carrying 400,000 gallons of benzene down the Mississippi River sprang a leak near St. Louis, Missouri. The barge was owned by Canal Barge and was being operated under a contract with Conoco Phillips to transport the benzene from Wood Island, Illinois, to Catlettsburg, Kentucky. When the leak was discovered, Jeffery Scarborough, a Canal Barge employee and the pilot of the barge‘s towboat, instructed deckhands to try sealing the leak by rubbing a bar of soap over the crack. Scarborough telephoned Paul Barnes, the port captain in the company‘s Belle Chase, Louisiana, office, who directed Scarborough to apply a temporary epoxy patch. With the help of deckhands, Scarborough succeeded in temporarily securing the leak. Captain Randy Martin, who had been off duty and asleep when the leak was first discovered, assumed control of the towboat later in the afternoon.
The epoxy patch held for about four days. During that time, the barge was transferred to a towboat owned by a different company on June 20, near Cairo, Illinois, at the confluence of the Mississippi and Ohio Rivers, and continued onto the Ohio River. On June 20, while the barge continued up the Ohio River, the epoxy patch failed. The captain of the new towboat notified the Coast Guard office in Louisville, Kentucky, and the barge was dropped at a fleeting area near Mount Vernon, Indiana, where environmental crews cleaned the benzene from the barge‘s deck and permanently repaired the leak.
A three-count indictment filed two years later in the Western District of Kentucky charged Canal Barge, Scarborough, Barnes, and Martin with: (1) conspiracy to violate the Ports and Waterways Safety Act; (2) violation of the PWSA; and (3) negligent violation of the Clean Water Act.1 After a two-week trial, the defendants moved for a judgment of acquittal, arguing that the government had failed to prove that venue was proper in the Western District of Kentucky. The district court reserved ruling on the motion, and the jury returned a guilty verdict on Count 2, but acquitted the defendants of the remaining two counts.
Defendants then renewed their motion for a judgment of acquittal on the ground of improper venue. The defendants also argued that the government had failed to introduce sufficient evidence that the proper Coast Guard office in St. Louis was not notified of the June 16 leak, and sufficient evidence that the defendants’ violation of the PWSA was knowing and willful. In the alternative, the defendants argued that they were еntitled to a new trial because their convictions were against the weight of the evidence. Additionally, Martin moved separately for a judgment of acquittal, arguing that the government did not show that a hazardous condition existed on the barge while he was in charge of the vessel, and Canal Barge moved separately for a judgment of acquittal, contending
On November 25, 2008, the district court granted the defendants’ motion, concluding that the PWSA violation was a point-in-time offense that was complete at the time thе defendants failed to immediately notify the Coast Guard of the hazardous condition, which occurred on the Mississippi River prior to entry into the Western District of Kentucky. The district court denied all of the defendants’ remaining motions.
On appeal, the government argues that the district court erred in granting the defendants’ post-verdict motion for judgment of acquittal for lack of proper venue, because the defendants’ PWSA violation is a continuing offense under
The defendants cross-appeal the district court‘s denial of their motion for judgment of acquittal on the remaining grounds, arguing that the government failed to prove that the defendants did not immediately notify the nearest Coast Guard office of the June 16 leak, and that the government failed to prove the elements of knowledge and willfulness. The defendants also argue that the district court abused its discretion in denying their motion for a new trial. Finally, both Martin and Canal Barge appeal the denial of their separate motions for judgment of acquittal for the reasons advanced in the district court.
II
The defendants’ failure to immediately report a hazardous condition aboard the barge was a continuing оffense because the duty to report continued from the time the leak was discovered on June 16 until the Coast Guard was notified on June 20. Because the barge continued moving until the unreported hazardous condition was in the Western District of Kentucky, the PWSA violation occurred in part in the Western District of Kentucky. Venue was therefore proper in that district under
For venue purposes in federal criminal cases, Congress has the power to create a “continuing offense” by defining “the locality of a crime [to] extend over the whole area through which force propelled by an offender operates.” United States v. Johnson, 323 U.S. 273, 274, 65 S.Ct. 249, 89 L.Ed. 236 (1944). Because the PWSA does not specifically define venue for criminal prosecutions, we look to the catch-all venue provision, which covers situations where the elements of the offense are committed in more than one district.
(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
The offense in this case was so “continued.” The criminal violation is the willful and knowing violation of a Coast Guard regulation promulgated under the PWSA,
Whenever there is a hazardous condition either aboard a vessel or caused by a
vessel or its operation, the owner, agent, master, operator, or person in charge shall immediately notify the nearest Coast Guard Sector Office or Group Office.
In addition to being the most textually plausible, this reading of the regulation is also the most sensible. It would frustrate the purpose of the PWSA if the duty to report were not ongoing, because the need to notify the Coast Guard of a hazardous condition does not dissipate over time. The harm from an unreported hazard is more likely to increase rather than to decrease from the continued lack of a report. Moreover, an unreported hazard may cause harm in more than one district. And each district through which
While it is certainly true that the crime was complete and chargeable shortly after the leak was discovered on June 16, that does not mean that the crime did not continue for venue purposes once it was sufficiently complete to ground a conviction. A crime can be both complete and continuing for venue purposes. See United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958); United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). For example, in Cores, the Supreme Court held that the crime of “willfully remaining” in the United States after the expiration of a landing permit was a continuing offense. 356 U.S. at 408-09, 78 S.Ct. 875. The defendant argued that the offense was complete the moment the permit еxpired, and that even if he remained in the United States thereafter, he was no longer committing the offense. Id. The Court rejected this argument, explaining that the statutory prohibition against “willfully remaining” in the United States imposed a continuing duty on the defendant to leave the country, and his failure to leave at the moment his permit expired did not exhaust that duty. See id.; see also Rodriguez-Moreno, 526 U.S. at 280-81, 119 S.Ct. 1239. Similarly, the failure to immediately notify the Coast Guard of the hazardous condition on June 16 “satisfies the definition of the crime, but it does not exhaust it.” Cores, 356 U.S. at 409, 78 S.Ct. 875.
These cases are distinguishable because they involve statutes of limitations, not questions of venue. Of course, questions of venue, like statutes of limitations, involve a temporal element. However, the distinction is sensible in light of the different consequences that attach to a determination that a crime is a continuing offense for statute of limitations purposes as opposed to venue purposes. If the crime is deemеd to be a continuing offense for venue purposes, the defendant is merely exposed to prosecution in a different district. But if the crime is a continuing offense for statute of limitations purposes, the defendant may be prosecuted after a time at which he would otherwise have no exposure whatsoever. Thus, interpreting a crime as a continuing offense for statute of limitations purposes has more serious consequences than it does in the context of venue. Indeed, the Supreme Court was sensitive to this concern in Toussie, observing that construing failure to register for the draft as a continuing offense “could effectively extend the final date for prosecution until as late as 13 years after the crime is first complete.” Toussie, 397 U.S. at 122, 90 S.Ct. 858. The Court specifically distinguished Cores and Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681 (1908), two cases
The defendants also argue that the rule of lenity requires that any ambiguity in the statutory language must be resolved in favor of Canal Barge and its employees. See United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). However, the rule of lenity is typically invoked only when interpreting the substantive scope of a criminal statute or the severity of penalties that attach to a conviction—not the venue for prosecuting the offense. See, e.g., United States v. R.L.C., 503 U.S. 291, 305, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980). Santos, the case cited by the defendants, involved a question of the substantive scope of the federal money-laundering statute: whether the term “proceeds” referred to “profits” or the broader “receipts.” See 553 U.S. at 511-12, 128 S.Ct. 2020. Moreover, the rule of lenity is only a tiebreaker of last resort when, “after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). But here the terms of the statute, together with the purpose of the PWSA, leave no ambiguity. “Although the clause might have been more meticulously drafted, the ‘grammatical possibility’ of a defendant‘s interpretation does not command a resort to the rule of lenity if the interpretation proffered by the defendant reflects ‘an implausible reading of the cоngressional purpose.‘” Abbott v. United States, 562 U.S. 8, 31 n. 9, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010) (quoting Caron v. United States, 524 U.S. 308, 316, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998)).
If an enactment of Congress equally permits the underlying spirit of the constitutional concern for trial in the vicinage to be respected rather than to be disrespected, construction should go in the direction of constitutional policy even though not commanded by it.
323 U.S. at 276, 65 S.Ct. 249. Johnson involved the Federal Denture Act, which prohibited “use [of] the mails or any instrumentality of interstate commerce for the purpose of sending or bringing into” a district a set of dentures cast by an unlicensed dentist. The Court used the “constitutional concern for trial in the viсinage” as a tiebreaker against the continuing offense doctrine where the statute was susceptible to two different readings. Id. Distinguishing the crime of “sending” from that of “transportation” in another statute, the Court held that venue for illegal sending was limited to the district in which the unlawful dentures were sent, and not where the dentures were received. Id. at 277, 65 S.Ct. 249. Importantly, the Court relied explicitly on the absence of a specifically applicable venue provision. Id.
In response to Johnson, Congress added the second paragraph of
For these reasons, the most sensible characterization of the offense is that the PWSA and
Because we conclude that the PWSA violation is a continuing offense under
III
Defendants also cross-appeal the denial of their motions for judgment of acquittal based on insufficiency of the evidence, and their joint motion for a new trial on the ground that the verdict was against the
A
Defendants are not entitled to a judgment of acquittal on the remaining grounds presented tо the district court because the evidence was sufficient to establish the elements of the PWSA offense beyond a reasonable doubt. “Evidence is sufficient to support a criminal conviction if, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir.1992) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “In cases in which we assess the sufficiency of the evidence, we do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994).
Viewed in the light most favorable to the government, the evidence was sufficient for a jury to find that the defendants fаiled to notify any Coast Guard office, including the St. Louis office, of the hazardous condition aboard the barge. For example, Officer Robert Moran, a marine inspector from the Coast Guard‘s Louisville office, testified that he questioned Jay Little, Canal Barge‘s maintenance superintendent, about “what the reason was—that no Coast Guard, not the Coast Guard in Louisville, any Coast Guard, where the barge had come from, ... had not been
Likewise, the government presented sufficient evidence that the defendants’ failure to notify the Coast Guard of the hazardous condition was knowing and willful, instead of a poor judgment call or an honest mistake. First, the government presented evidence that Scarborough, Barnes, and Martin were aware of a hazardous condition aboard the barge.3 The record indicates that the benzene leak was reported to Scarborough around 2:00 pm on June 16; that Scarborough told a deckhand to try sealing the leak with a bar of soap; that Scarborough notified Barnes at the company‘s headquarters that a leak had been found; and that Barnes instructed Scarborough to apply an epoxy patch to secure the leak. The record also indicates that Barnes thought the temporary repair would enable the company to get the barge to its destination and back before it was permanently repaired. Finally, the record indicates that, around 3:00 pm on June 16, Martin was told that a leak had been found and stopped with a bar of soap; that he was informed later that afternoon that there had been a spill and that the deck crew had inhaled toxic fumes; and that
In addition, the government presented expert testimony that benzene is toxic, highly explosive, and a known human carcinogen; that even a very small leak could be hazardous, because of the risk that it might enlarge over time; and that benzene is an industrial solvent that will break down and dissolve epoxy material. The jury also heard testimony that Scarborough, Barnes, and Martin were all trained maritime shipping professionals with decades of experience on thе river. A rational jury could find that all three defendants knew that even a small benzene leak patched with an epoxy material would be a “condition that may adversely affect the safety of any vessel ... or the environmental quality of any ... navigable waterway.”
Second, the government introduced sufficient evidence that the defendant‘s failure to immediately notify the Coast Guard was willful. The record indicates that the defendants failed to follow the company‘s Coast Guard-approved “vessel response plan,” which included procedures for a spill or threat of a spill. Another Canal Barge captain, John DeVaux, testified that he had been trained to call the Coast Guard when a spill or threat of spill occurred aboard a barge; that a decision to notify the Coast Guard under these circumstances would not have been “a close call” but rather “dead obvious;” and that there was not a captain in the world who would not have called the Coast Guard in a case like this. The jury also heard evidence that Scarborough and Martin failed to record the leak or the attempted patch in the towboat‘s ship log, even though they signed off on the log as true. Viewed in the light most favorable to the government, a rational jury could find that Scarborough, Barnes, and Martin were each
The district court also properly denied the separate motions for judgment of acquittal filed by Martin and Canal Barge, because, viewed in the light most favorable to the government, the evidence was sufficient for a rational jury to find that both defendants willfully failed to immediately notify the Coast Guard of a hazardous condition aboard the barge.
First, the evidence was sufficient to show that Martin knew of a hazardous condition abоard the barge and willfully failed to immediately notify the Coast Guard. The record shows that Martin was awake at 3:00 pm, about an hour after the leak was discovered; that he was told later that afternoon that there had been a spill and that the deck crew had inhaled toxic fumes; and that he took control of the towboat later in the afternoon. A rational jury could find that Martin knew of a benzene leak aboard the barge about an hour after it was discovered. As captain of the barge‘s towboat, Martin was ultimately responsible for notifying the Coast Guard of the leak. And, for the reasons discussed above, there was sufficient evidence for a jury to find that Martin‘s failure to notify the Coast Guard after learning of the leak was willful.
Second, the evidence was sufficient to show that an employee of Canal Barge failed to immediately notify the Coast Guard with the intent, at least in part, to benefit the company. The district court instructed the jury that to convict a corporate defendant, it must find beyond a reasonable doubt that an agent of the corporation acted with the intent to benefit the corporation. The jury heard testimony that the delay required to offload and
B
The district court also properly concluded that the defendants were not entitled to a new trial; this is because the evidence did not “preponderate[] heavily against the verdict.” United States v. Hughes, 505 F.3d 578, 593 (6th Cir.2007). The decision of whether to grаnt a new trial is committed to the “sound discretion of the trial judge,” United States v. Barlow, 693 F.2d 954, 966 (6th Cir.1982), and this discretion should be exercised only in “extraordinary circumstance[s],” Hughes, 505 F.3d at 593.
Defendants urge that they are entitled to a new trial because the weight of the evidence does not support a finding of a hazardous condition, and because the evidence does not establish that the defendants’ failure to notify the Coast Guard was knowing and willful. The defendants argue that the leak was not a “hazardous condition” because “the product did not get into the water.” This was disputed at trial. But even if none of the benzene had actually spilled into the river, that was not the only risk presented by the lеaking barge. Because benzene is highly explosive, the risk in this case was not just that the liquid would spill overboard and contaminate the river, but that the leaking fuel would ignite and blow up the barge.
Likewise, for the reasons already discussed, the district court did not abuse its discretion in concluding that the evidence did not preponderate heavily against the jury‘s finding that the defendants’ failure to notify the Coast Guard was knowing and willful.
IV
We reverse the district court‘s judgment of acquittal for imрroper venue, and remand for further proceedings consistent with this opinion.
ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in part.
The majority opinion correctly concludes that there was sufficient evidence to convict Defendants. The evidence in favor of conviction was more than sufficient to withstand the limited scrutiny which we give such matters on appeal. I therefore concur in the majority opinion‘s affirmance of the district court‘s denial of Defendants’ motions for judgment of acquittal and for a new trial. However, I must vigorously dissent from the majority opinion‘s conclusion that the failure to “immediately” notify the Coast Guard is a continuing offensе.
Venue is a constitutional protection,
A continuing offense, as correctly described by the majority opinion, is one in which the offense is “begun in one district and completed in another, or committed in more than one district.”
I simply cannot make linguistic sense of the majority opinion‘s conclusion that a failure to immediately notify the nearest Coast Guard station can be an offense that is perpetual and ongoing. To support its holding, the majority opinion invokes United States v. Cores, 356 U.S. 405, 408-09, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958), in which the Supreme Court held that the crime of “willfully remaining” in the United States
The First Circuit rejected a similar argument by the government in United States v. Salinas, 373 F.3d 161 (1st Cir. 2004). There, the government also argued that “a crime can be both complete and continuing for the purposes of venue analysis.” Id. at 168. The First Circuit conceded that, “[a]s a theoretical matter, that proposition is true,” but it clearly viewed the government‘s claim with great skepticism, and rejected that “one last arrow in [the government‘s] quiver,” because doing so would “effectively authorize the government to choose a venue of its liking even when, as now, the crime was complete before a second district was implicated.” Id. at 168-69. The First Circuit was especially concerned about the expansion of venue for crimes which, like the one at issue here, require specific intent, worrying that “[a]llowing specific intent to continue a crime into any district in which that intent has consequences would significantly expand the range of permissible venues.” The First Circuit correctly re
That failure to immediately notify cannot be a continuing offense is further confirmed by other language in the regulation. In order to avoid violating the regulation, one need do more than notify just any Coast Guard official—one must notify the “nearest” Coast Guard Station. That term becomes nonsensical if the violation continues indefinitely.
I do not understand the majority opinion‘s insistence on its flawed interpretatiоn of the regulation. That the Defendants committed the crime for which they were convicted seems clear, but requiring the government to abide by statutory and constitutional restrictions on venue would not mean that Defendants would escape punishment, only that the government would have to prosecute them in the proper venue. While this would certainly not be the most efficient use of resources, concerns of efficiency cannot be allowed to trump constitutional and statutory venue provisions, especially when the government caused the inefficiency by bringing criminal claims in what was clearly the wrong venue.
ALICE M. BATCHELDER
CHIEF JUDGE