United States v. Pennsylvania Industrial Chemical Corporation, a Corporation

ROSEN, ADAMS, Circuit and Before STAPLETON, Judges District and Judge. THE COURT

OPINION OF Judge. ADAMS, Circuit appeal on the in this center The issues Harbors parameters of the Rivers and regard to plant into the Mo- an industrial from nongahela River,1 in the circum- whether n has been stances of this a crime Act, terms of the committed within the whether, applies, if the and comports due in this case viction process considerations. August, at the two teachers Pennsylvania

McKeesport Campus of the along University Mo- canoed State Baskin, Boreman, Gondelman, Harold nongahela purpose de- River for Pittsburgh, Sacks, Craig, Gondelman & manufacturing termining op- whether Pa., appellant. for discharging the river erations on were They samples Thornburgh, Atty., pollutants into it. took Richard L. U. S. days August Pittsburgh, Pa., appellee. on two different — tides, floods, high or 1. Section 13 of the storms or 33 U.S.C. or or provides: whereby otherwise, navigation or shall Provided, may throw, impeded “It shall not be : lawful dis- be or obstructed charge, deposit, cause, suffer, nothing shall ex- or or or herein contained That opera- procure thrown, to, prohibit discharged, to, apply to be or de- or tend improvement posited any ship, with the either from or out of tions in connection barge, floating any kind, navigable or other waters or construction craft of necessary wharf, manufacturing works, shore, public or from the considered any super- establishment, any kind, proper mill or the United States officers any description improvement public vising refuse kind or or work: matter such Secretary flowing provided further, whatever than that And That from passing Army, streets and sewers there- whenever anchorage liquid state, any navigable from in a into of the Chief injured thereby, any States, water of the United will or into any tributary any deposit material navigable waters, with- which the same shall float or be washed mentioned above navigable water; condi- be defined and under into such shall in limits to by him, provided prescribed deposit, cause, suffer, not be or lawful tions to prior procure any deposited application de- him to be material of is made to any material; any place any positing kind in and whenever on the bank of such any granted navigable water, there- on is so conditions the bank of any complied with, tributary strictly navigable water, where of shall be thereof shall be unlawful.” the same liable to be violation shall be washed ordinary water, either defend —at two outfalls owned first contends ant, Pennsylvania Chemical Industrial to make criminal Act was intended (PICCO). Corp. to the sent These were would im Laboratory Testing Allegheny County navigation. Although legisla pede analysis. results, history point, equivocal Based on we on tive Attorney further, however, filed criminal United States need look than Unit April on information PICCO Oil ed States v. Esso Standard Co. jury (3d on Rico, 1971. Trial commenced before a Cir. Puerto F.2d 621 jury holding and the returned June for this Court’s guilty verdict of dis prove June need not naviga charge impediment an created points The in this with which we deal a conviction. tion order to secure categories: appeal fall broad three There, petroleum products spilled were (1) general applicability of the stat- and, by land, force defendant’s ute; applicability particu- Its gravity, flowed water. ease; lar of circumstances this and agreed Both sides there that the defend grounds process The due to be considered violating guilty the ant not second was make even the statute would otherwise the of section forbids clause which PICCO’s activities criminal. impeding or obstruction Yet this court affirmed the conviction Generally I. The Statute dealing clause, on first based the Applicable “any discharge Thus, the the refuse”. presented, Before evidence the was discharges type apply Act does to the preliminarily district court instructed gives question, and the in no one here jury Government, the that the in order right discharge any to matter of “refuse conviction, required to secure a was “any kind” into the water of prove beyond a reasonable that doubt United States.” discharged PICCO matter “refuse” Next, that, even plant, from its PICCO contends that the “refuse” dis- was assuming arguendo charged “navigable that the industrial into a water the “refuse”, discharged discharge States,” were wastes United and that the “flowing portion excepting ref not the section was from streets and sew- “flowing and passing liquid and use matter from streets ers in therefrom a liquid state,” passing exemptions sewers and therefrom a one of the set forth coverage ap parties stipulated state” from of the Act the Act. The the that discharges plies through pipes PICCO here issue the owned support posi To river, the a matter of law. this and entered the tion, Monongahela relies on various texts that the River is “navi- a gable dictionary States”, definitions written circa water the there- law, by narrowing year the jury. Act became issues pipes the river solids Based contained received data from solution, thereby suspension, teachers, than rather informations were filed on hoping prove day against its would same Steel “impede navigation”. Corp., Laughlin Corp., The not district & Jones Steel objections Corp. Wheeling Pittsburgh Although court sustained certain offers, go immediately not to these did PICCO elected trial jury indictment, charge on its three the other defend- impeded navigation. light must have ants moved to dismiss the indictments Oil and the of the decision Standard them in the district court. The discussion, proof abeyance pending not above motions are now appeal, was have constituted defense. PICCO outcome of this and the were three charge, therefore, and, granted not entitled to the status as amici in this case. rulings in trial err its court regard. Throughout attempted the trial PICCO flowing through show matter its commonly- that, sewage in order contends proposition created. conflict, the district court industrial to resolve the include wastes. defined to Congress, incorpo however, had a “refuse” appears should have defined to have quality estab very rate the water standards when it enacted different concern 1160(c) pursuant dealing exception matter lished refuse 33 U.S.C. “flowing As and sewers.” from streets legal noted: one scholar and Harbors Act Under Rivers sewage exception “[T]he discharge made refuse is designed to Refuse Act was federal subject ato while from, locally authorized differentiate provide that newer statutes discharges. By except- unauthorized they proscribed exceed when ‘flowing ing from streets applicable quality control water state,’ liquid in a . sewers . federal standards set standards. The expressed awareness rely the newer primarily statutes taking sewers, public construction of states, with those day cognizance practice proviso that in certain circumstances sanitary combining sew- storm applied. a federal standard point important ers. prove at the trial that PICCO offered to through system in waste made it it had a Commonwealth state’, ‘liquid local rather that but Pennsylvania efflu- who authorities had some control over Monongahela River, ents into Rodg- system.” connected to sewer met federal that ers, Industrial Pollution Water by complying standards with criteria Refuse A Act: Chance Second by Pennsylvania. established 761, Quality, 119 Water U.Pa.L.Rev. PICCO reasons that the Government (footnote omitted); (1971) cf. prevails appeal, on be this will Corp., Republic United States v. branded a under 884, criminal one statute 27, 482, n. 80 S.Ct. meticulously while it panion provision a com- observes dissenting). (Harlan, J., 4 L.Ed.2d 903 goal. aimed at the same sewage addition, In suggested by definition contends that we should resolve Supreme Court does by reading apparent conflict materially by employed differ from that pollution pari acts in materia reach an court, the district public Steel, supra, Re States accommodation in the fashion that same 490, Boys Supreme Markets, Court in Inc. Moreover, assert, PICCO, as does that 235, Union, Retail Clerk’s may pipe carrying any be wastes (1970), 26 L.Ed.2d 199 recon- salutary sewer, called a erode the anti-injunction provision ciled the Congress command of as stated Act, Norris-LaGuardia 29 U.S.C. § particular exception. Act in favor of a Manage- portion with the of the Labor law, then, liquid As a matter of indus directing ment Relations Act the federal flowing through pipes trial waste navigable jurisdiction courts to la- take in certain exempt water is not disputes, 185(a). bor 29 U.S.C. § proscriptions of Act. un- Such a course of action argument by would be The final advanced justified statutory the circumstances PICCO this area of inter grounds. on a cru- It is pretation number is is unless section 407 beginning cial to note conjunction Pol read with the Water Pollution Control Act Water lution Control of Act 33 U.S.C. Congress separate four occasions has on seq., 1151 et of 1961 its amendments years specifically past stated Environ the Water and Har- the Rivers and that section 407 of Improvement mental Act matter”, banning “any refuse among is bors a conflict the statutes legis- by subsequent v. Esso not affected Standard Oil Co. Rico, supra, Puerto dealt the exist- lation.4 permit pro- ence or non-existence of a Moreover, and Har Rivers gram Republic under the 1899 Act. In Pollution Control bors Act and the Water Steel, it was clear that designed accomplish what Act were impeded by may dif same as the end viewed sought company, held and Harbors ferent means. The Rivers ex- while both Standard Oil cases the terms, Act, by stipulates criminal permit program istence was irrele- penalties; Pollution Control Water vant accidental because of the nature only. provides Act for civil actions present involved. For may enforced Rivers and Harbors significance purposes, the of these cases against discharging those congres- is the courts there found a any navigable the United sional intent that all of refuse States, the Water Pollution Control while any kind, including discharges only pollution has be used if the adversely refuse which do not affect Finally, an interstate effect. under the subject regula- navigation, should be Rivers and Harbors no need Act there is They not, however, tion. find that 180-day period prior notice prohibit intended to all such proceeding the commencement of a civil discharges. required as the Water Pollution Con The conclusion section significant trol Act. view these Rivers and Harbors Act was intended to approach, differences in “cardi and the regulatory program establish a rather repeals legislation] nal rule that [of general prohibition than a indicated implication favored,”5 dis practical not lating re- considerations trict court was correct when declined impact gen- to the drastic that a to define “refuse” used the Rivers prohibition discharging any eral “foreign and Harbors Act in terms of the water substance” would pursuant standards established economy the nation’s but even 1160-(c) to section of the Water by Congress’ subsequent also enactments Pollution Control Act. quality in the water field. There would something fundamentally appear to be II. The Circumstances Here program inconsistent de- between the of Demonstrate That No Crime veloping enforcing quality and water Was Committed Quality Act standards under the Water Although have we above it held and section Rivers and Har- 407 the improper would be to accommodate the Act, bors the effect of the latter is leg- pollution 1899 Act recent water prohibit industrial by redefining islation “refuse” word navigable Congress, waste into waters. provision per- 1899 aof however, obviously thought that the two program mit impor- in the 1899 Act is compatible statutes were not or it would tant if sense is some to be made of these expressly any intention disavowed statutes. repeal or affect section when 407 pointed It should first be out Quality enacted the 1965. Water Act of that neither United States v. Standard compatible What makes the two statutes Co., 224, Oil 1427, 384 U.S. 16 permit program contemplated is the L.Ed.2d recognizes Section 13. The Government Republic Corp., supra, nor United purpose this fact when it describes 4. 33 (1972) U.S.C. citing 1174. City Posadas v. National Bank, 349, 56 S.Ct. Lynch 5. Corp., Household Finance 80 L.Ed. 351 31 L.Ed.2d 822 deposit prohibits acts of the and 1970 U.S.C. navigable generally ‘refuse as follows: waters description matter of kind or “Congress sought to establish mini- flowing whatever other than that laws; mum under new standards passing streets and there- sewers retained, however older law was jurisdic- liquid from a state’. The (33 1174), as a foundation. U.S.C. § Department Army, tion of the of the policy It federal that no announces the Federal derived from the laws enacted right person corporation has a protection preservation for the any navigable discharge stream waters permitted to new unless do so. The States, is limited and directed per- proceeds law that such to state may necessary protect control as granted mission to one not navigation. public right Action discharge whose violate under section therefore been standards to be established.” Department principally directed August The situation in when of those ma- made, here issue were injuri- terials are obstructive or must be evaluated mind. navigation.” ous to 209.- 33 C.F.R. § short, following the Standard Oil it was clear that of refuse publi- PICCO tendered evidence tending adversely naviga- to affect Engineers Corps cation of dated scope tion within were of section 407. publication March This clear, It was also at least time among following statements, tains the the enactment of the Water others: intended the Sec- retary Army “1. Sections 10 of the River (sic) administer section Harbor ... designed protecting navigable navigation protect vehicle wa- naviga- ters refuse, capacity from all of industrial of Federal places but responsibility rather as a ble vehicle for waters and fur- thering policy. upon Department the national conservation for enforcement Army. prove PICCO offered to in the court below The instructions and that the executive branch of the paragraph simply respond follow this deal with failed to congressional problem illegal deposits in navi- directive insofar itas gable waterways discharges having signifi- related to law which explicitly cance for concerns Engineers until December responsi- when has a the institution of a bility program pollution for under abatement and is section was an- 407 carrying responsibility nounced the out that under President. There would appear various support to media. be substantial other for this contention. From until 1965 December Department 3. The of the concern regulation of pertaining the to Army of the in industrial under waste section of 407 the Rivers and Harbors program this lies the effect provided as follows: suspended contained ef- solids in the Deposit 209.395. “§ fluent from industrial outfalls have on of refuse. Section navigable 13 of waterway. the River capacity and Harbor of the (30 1152; of March 1899 Department primarily Stat. The Congress 6. explicit While recognition did until the AVater action was an of what Quality Improvement Congress Act of 1970 add assumed must have when it en- quality legislation to its water control an acted the Act of AVater 1965— express prohibition granting applications permits that under for 407 § eye upon for § 407 with would be acted an meeting quality standards, the water this acts.

475 under cerned This Part version of remained in ef- shoaling improved August navi- fect of of authorized placing re- gation channels and The materials which PICCO submitted moving sponsibility cost for and/or appear to the district court to indicate that industries on those these shoals agency responsible that the for admin- causing them.” istering regulatory program Corps of En- of December made no Section 13 determination Army gineers Department of the of the congressional required it commission complete Part published of revision deny permits to on a blanket basis to Regulations. of Code of Federal seeking discharge industrial to refuse revision notice While the served having no adverse effect Engineers pollu- consider of permit pro- Nor would the absence of factors tion and conservation gram appear prod- in this area to applications passing on under sections temporary uct of a mora- administrative for and Harbors Act Rivers pending development appro- torium of permits waters” for “work policies procedures. priate Rather (33 209.120(d), refer- the sole C.F.R. § Engi- appear it would again init ence to section 407 described neers, perhaps as a result of a mistake navigation: problems terms limited to law, made a decision to conscious decline responsibility imposed to undertake “(2) Section River upon Congress. byit (30 Harbor Act of March 1152; Stat. 407) authorizes 33 U.S.C. appeal Secretary is a certain Army There permit the crisp conclusion of the district court deposit of matter in refuse Congress penalties for waters, intended criminal whenever discharged anchorage one who without a Engineers the navigation Chief concededly permit. thereby, injured had no will not be When of this viewed context limits to and under within be defined tested with touchstone con prescribed him. conditions Although gressional intent, however, analysis Department exer Congress time, produces an unsound result. authority from cised this time contemplated pur regulatory program un preferable act it is considered persons posi in discharge suant which 4 of the River and Harbor der Section 1147; tion able indus (33 would be Act March Stat. 419). trial at the discretion the Sec of assist 33 ing As a means U.S.C. Army. retary It crim deter intended the Chief of penalties mining anchorage inal failed to ves those who the effect on regulatory comply program. with this sels, Coast Guard views Congress not, however, crim intend will be solicited coordination penalties people inal comply who failed local Coast Commander 209.-200(e) regulatory awith non-existent District.” 33 C.F.R. Guard § program. The members (2) .7 jurisdiction (Emjiliasis supplied) Corps’ § C.F.R. 209.- described 200(e) preceding paragraph as the follows: "(1) River Har- 4 of the Section only (33 one case revealed bor 8. Research lias Act of March Stat. prosecuting 1147; have authorities authorizes the where the 33 U.S.C. compara Secretary Army prescribe reg- charges pressed of the to criminal govern transportation The conviction ble circumstances. the ulations State, water, dumping any navigable Brown v. Tex.Cr. overturned. (Ct.App.1914). adjacent thereto, dredgings 108, 167 S.W. 348 or of R. waters Dixon, 140 Tex. also Mitchell materials whenever See n Com.App.1943). (Texas regulations judgment S.W.2d his such navigation.” required the interest of category, of If this falls in the latter Acts enacted the Water case who “saving provi has convicted we hold that PICCO been and 1970 their Congress never the of a crime which has of Rivers for section sions” might created. be astonished Harbors Act well implications inherent in the broad the Were III. If The Act Even judgment entered below. of conviction Ac- Make PICCO’s Construed To Criminal, Con- Process tivities Due Similarly is the unsound Govern- Require A Re- siderations Would a ment’s contention that absence versal permit program is irrelevant because importance case Because of permit. If applied never a for field, ecology in the we are constrained proves it has what offered PICCO prove our for to set forth an alternative basis if, concluded, we Con- as have directing reversal convic- order a of the gress did not intend to make failure is proposition tion and a remand.10 The comply program a with a nonexistent together the we advanced that when take crime, we do that the can not believe axe vagueness history, of the stay depending upon fall or whether interpretation Act administrative go through did defendant did not Corps Engineers, ac- and other making application charade of an for Government, be un- tions something of the it would not exist. expect a an individual reasonable caution, of an Out abundance we corporation to conclude that hasten to add that what we said have discharges not apply industrial any would have no whatever to relevance affecting navigation. discharge occurring imple- after important aspects of One of program.9 permit mentation of por- contentions relates Compliance quality with the water stand- “The tion of section authorizes course, not, ards should be a defense Secretary Army, of the whenever brought to an action under section 407 Engineers an- of the Chief of discharged one who without chorage in- will permit. a intended jured deposit thereby, permit [to] branch executive in navi- material above mentioned proposed advance notice of ”* * * gable The Govern- waters opportunity and an to determine whether permit agrees possession ment will be consistent with Secretary issued would constitute national, policy. Accordingly, one who complete prosecution. defense to the permit without a undermines testimony of Mr. The uncontradicted program regardless character Johnston, Vice-president of William discharge. There is a vast differ- PICCO, showed that least since ence, however, between a conviction permit program had no by been established one fails per- who to secure an available mit and a conviction of one who fact, fails Monongahela River. secure which is more unavailable.9a it was not until December convey impres- 1899; See, Sanders, We do not intend to 9a. The Refuse by reversing Key sion that Water, the conviction here 58 A.B.A.J. to Clean we are indifferent to the need for en- improvement. However, vironmental be- point cause federal quiek standards that be- We are out vigorously be enforced as a soon cause the nature alternative our implemented, decision, our decision basis certain of the rationales today very may appear should have little effect on to be incon- advanced here ecological well-being II, of our nation sistent those set forth in Part future, and, fact, supra. implications will have small for the past. doing requires commission four after the months either forbids than indictment, vague alleged an act in terms so that men of the act Fed.Reg. intelligence necessarily 11574, common must Executive Order guess 19627, meaning in- its to at and differ as the President announced the application under sec- permit program its violates the first essen- stitution process compliance fed- tial of due of law.” to tion 407 achieve Mr. John- water standards. eral presented In the situation he testified that in 1949 ston also here, however, mis claims it PICCO Corps of spoken with an individual in given by interpretation led to the statute Engineers Pittsburgh and that office Corps Engineers, body pri conversation, a PICCO result of that marily navigable responsible wa for discharge applied permit for a to never of the United States.11 ters Cf. thus takes refuse into the river. PICCO Painter, (4th States 314 F.2d 939 v. exception portion district to Cir.), denied, 831, cert. 374 U.S. 83 S.Ct. charge stated, is “But it court’s which 1873, L.Ed.2d contention of the Defendant not Mancuso, (3d Cir. 139 F.2d 90 v. unknowingly unin- the act was done 1944). prior There is evidence that tentionally.” objects on the basis PICCO December, 1970, Engineers, Corps acting that it was in a consistent manner published regulations, in its had consist thought required, what it the law ently interpreted require section 407 to Mr. told and that Johnston had been discharges only a for industrial Corps member of a when the effect would require for the statute not a impede navigation, deposit be to g., e. discharge of wastes not industrial tending of solids on the river bed affecting navigation. lower the water level aof The test to determine whether channel. The reference to section facts, true, these would sufficient be regulations governing Corps’ process make out a due violation is set permits un issuance the various leading Connally forth in case of der the is found at C.F.R. Co., General Construction 269 U.S. 209.200(e), supra reproduced at 46 S.Ct. L.Ed. 322 regulation Moreover, pub in an internal (1926): March, supra 1968, reproduced lished in “That penal terms statute noted for its concern creating a new only. offense must suffi- Because Court ciently explicit give great weight those inform who must to the consistent subject to it agency on their interpretation conduct of a statute part pen- will render primarily responsible them to its liable its enforce alties, well-recognized is require- ment, Tallman, Udall ment, ordinary (1965), consonant alike with 13 L.Ed.2d 616 play notions of rely fair and the settled permitted also should be rules of Corps’ reading law: and a statute of section 407. Adding pact. claimed confusion is the If true that no Water according permits Act of have been available from the obeyed which if Engineers, every state standards industrial permit, along obtained a Monongahela, perhaps state cern subject would not be throughout portion to abatement. Al- a substantial though we nation, held above that belief which uses water operation plant erroneous that it was violation waters of its alleged compliance pure §of 407 because puts something of its than back appears with the 1965 PICCO’s belief violation of the Act. practical many Indeed, purposes, have been unreasonable or held in Moreover, might bad faith. plants operate PICCO asserts that not be able to these accept the Government’s view of the at all. Act, might confiscatory well create a im- given it position should of the Governm PICCO notice It is have hand, ent,12 Re that the stat was in violation of the 1899 Act. In public showing Steel, require of scien it is clear that the industrial not ute does navigation contrary discharges impeded lack the mere ter —criminal intent —and permit program consti not command of the second clause of a should charge claimed section 407. has tute a defense to a criminal PICCO throughout litigation, and the claim section 407. uncontradicted, have concerning major In decisions its two navigational Oil, on effect. Standard Supreme has not the 1899 Act Court hand, the other dealt with the accidental given any scienter indication whether discharge fuel, of aviation and the Court necessary the of- be a element of commercially decided valuable fense under section United States 407. pur substances could “refuse” for Co., Oil Standard U.S. poses Similarly, de of section our S.Ct. 16 L.Ed.2d cision in Oil United States Standard Corp., Republic United States v. Rico, supra, of Puerto is insufficient L.Ed.2d alleged made aware of its fact, 903 case, In Oil in the Standard continuing is violation of the Act. The specifically open left Court sue there was the defendant whether question. scienter gasoline responsible deposit could be S.Ct. 1427. The conceives directly and ed into intentionally, waters not argument encompassing as spilled on but which had nothing traditionally re- than more gravity defendant’s land and force jected ignorance defense that of the law flowed into the water. That the 1899 is an excuse. employed prosecute one Act has been PICCO does not claim that it did not deposits time accidental of refuse proofs know the law existed. Its showed See, g., La been clear for some time. e. it was well aware of section 407. 1936). Merced, (9th No 84 F.2d 444 Cir. Rather, PICCO asserts af- brought atten decision has been to our firmatively misled of En- tion, holding however, criminally respon gineers to believe that the Act sible an industrial firm whose inapplicable to of waste that were whose not one-time accidents or impede navigation. did not navigation day-to-day had no al effect. Thus the assertion is not that PICCO ignorant application of the law’s way, In much the same the Govern- it and therefore In- lacked scienter. ment’s contention that lack of a stead, it is contended that had it not program will not constitute a defense misleading been for behavior—whether point presented misses the here. We are intentional or not—of the En- with much more than the mere absence gineers, PICCO would have been able to permit program. begin, To it was apply decide it should for a sec- unreasonable to read for PICCO Corps, depending permitting tion Corps’ response application, to an affecting wastes not planned could have its behavior accord- Corps Engineers, regula- published ingly. tions, appeared read the might It that, be maintained if noth- way. Department same Until ing else, Supreme Court’s decisions interpreta- of Justice concurred in this Republic Steel and Standard Oil According tion of the Act. to an Assist- Although points the Government to a doubts that PICCO can be held to have Corps pamphlet published in 1968 to show knowledge of such materials. See Hotch pollution, its concern with we do States, v. United 212 F.2d 14 Alaska passage convey clearly find the (9th 1954). Cir. meaning ascribed, grave and we have early General, “Only process Attorney re until meant due of law. ant gard, corporation year, administered an individual should statute was or last criminally responsible strictly as be held Department of in the Justice reasonably ap- usually activities could not and it was which a criminal statute illegal anticipated have been based be plied to years government im- in which on 70 consistent States waters of Proceedings, terpretation subsequent navigation.” Refuse peded behavior. (1971). Cf., City Columbia, Bouie Act of Fed.B.J. 347, 351, proffered testi- 12 L.Ed.2d add to this the S.Ct. When we Harriss, mony member that a of Mr. Johnston per- 98 L.Ed. 989 told him alternative, (1954). necessary hold, in if the We mit would be therefore, navigation, impede it is clear because which would not evidence would rely on the mere been relevant to PICCO’s defense that PICCO does not relies, incorrectly permit program. It was excluded lack of a district alleged jury rather, it was af- court and not in on the fact that because the firmatively applying for misled into not regarding defense, structed permit.13 a is entitled a trial.15 PICCO new circumstances, apparent In such Proceedings IV. Remand On may position of well point have been unfair holding II, supra, Based on our in Part proc- PICCO’s conviction due given violated opportunity PICCO should be concept play ess.14 im- of fair is prove permit non-existence plicit in is program our basic notions of what alleged at the time of of- regard interesting prosecutor. 13. In this it note Nevertheless, per- is zealous a pro- if the Federal Criminal Code son who would not have violated the law posed understanding on Re- National Commission if his reasonable law, gained by form of Federal Criminal Laws were the his own efforts to obtain law, appear legal de- to have a advice or from reliable official statements, fense under 609 whch reads: been had not mistaken “Except expressly provided, position as otherwise should not find himself in the person’s good having depend prosecutor’s a faith belief that conduct prosecute judge’s does constitute a crime is an affirm- or trial decision not to which, law, a in commit- ative defense he acted reasonable crime lie upon reliance a statement of the law ted.” case, prosecutor did elect to in: contained In this proceed given (a) enactment; the maxi- a statute or other (b) judicial decision, opinion, fine. order mum judgment; or pointed that even 14. It be out should also (c) grant an administrative order or Attorney the United the States, General of permission; considering purpose of when (d) interpretation an official predecessor Act, stat- a direct of the 1899 body public charged servant or law ed : responsibility interpreta- for the only by governed “You should tion, administration or enforcement of affecting navigation of siderations defining law the crime.” now, and, if there be none the river explained Working Papers, As Nation- may af- which then considerations al Commission on Reform of Federal navigation, whether fect likely future (1970), Criminal Laws 138 not, important or which to become “If a defense of reasonable reliance on a competent (official presumed to have must unofficial) state- authorizing present and in mind in omitted, prosecutors ment of the law is expenditures large have been which prosecutions can be counted on to decline improvement the river.” made plainly where the defense would be Op.Atty.Gen. fully applicable. are, indeed, There re- holdings parts III II and 15. The markably reported few cases opinion the record are limited to Judges the defense been at has issue. presented. have been likely impose which we will not be severe sen- brought by tences the eases a too that, suggested by fenses. the evidence show proposed Should Section 609 of the fact, did exist at may Federal Criminal Code'and encom- time, then, pass theory based on Part the relevant estoppel even crim- III, supra, cases,1 PICCO should be allowed inal I do not that a believe citi- attempt prove En- reasonably rely that the zen on a statement gineers affirmatively be- misled it into regulation an administrative when necessary lieving judicial that a was not government branch of the clearly in its situation. contrary. declared the Accordingly, the of convic- re-

tion will be reversed the cause proceed-

manded to the district court for ings opinion. consistent with this

STAPLETON, Judge (con- District

curring) . expressed

I concur in the views majority’s opin- first sections two STUBBS, Jr., Trawick H. as Trustee in unable, however, ion. I am to subscribe Bankruptcy Hodges Parker, Bell views stated the third section Bankrupt, Appellant, opinion. Co., Oil In United States v. Standard Bettye John wife, B. HARDEE B. Hardee, Appellees. Supreme Court L.Ed.2d 492 No. 71-1847. “the of the United concluded United States Appeals, Court of ‘refuse’ used in word Section [as Fourth Circuit. includes Rivers and Harbors Act] Argued Jan. 1972. foreign pollutants substances and passing sewers therefrom Decided June ‘flowing apart streets from those

liquid state’ watercourse.” Co. Esso

United States v. Standard Oil (3rd Rico, Cir. of Puerto 375 F.2d 621 by up- Court suit followed

holding a conviction under Section

in a case no evidence where there was discharge might adversely

that the navigation. affect assign find it I difficult sig- pronouncements limited

to these given third section them in nificance majority’s opinion. major- portion

As I read

ity’s opinion, despite holds

pronouncements these of the courts in cases, may successfully assert affirmatively misled

defense that it was regulations of En- gineers believing Section apply which would

adversely I affect While agree Clause the Due Process recognize require a court to the defense Note, Estoppel Applying Principles Cases, See Criminal Yale L.J.

nation.

Case Details

Case Name: United States v. Pennsylvania Industrial Chemical Corporation, a Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: May 30, 1972

Citation: 461 F.2d 468

Docket Number: 71-1840

Court Abbreviation: 3rd Cir.