Business 8th Edition by Marianne Jennings

Exercise 27

Gasoline, Drains, and Knowledge of the Two together: a crime?
Facts
Mr. Ahmad owns a Spin-N-Market located in Conroe, Texas. Shortly after he purchased the combination gas and convenience store in 1992, he discovered a leak in one of the high-octane gasoline tanks at the location. The leak was at the top of the tank and did not present problems with gasoline seeping out. However, the leak did allow water to get into the tank and contaminate the gas. Because water is heavier than gas, the water sank to the bottom of the tank, and because the tank was pumped from the bottom, Mr. Ahmad was unable to sell gas from it.
In October 1993, Mr. Ahmad hired CTT Environmental Services, a tank-testing company, to examine the tank. CTT determined that the tank contained 800 gallons of water and the rest was mostly gasoline. Jewel McCoy, a CTT employee, told Mr. Ahmad that the leak could not be repaired until the tank was completely empty, which CTT offered to do for 65 cents per gallon plus $65 per hour of labor. After Ms. McCoy gave Mr. Ahmad this CIT estimate, he asked whether he could empty the tank himself. Ms. McCoy told him that it would be dangerous and illegal for him to do so. Mr. Ahmad then responded, "Well, if I don't get caught, what then?"
On January 25,1994, Mr. Ahmad rented a handheld motorized water pump from a local hardware store, telling a hardware store employee that he was planning to use it to remove water from his backyard. Mr. Ahmad hooked the pump up to his tank at the Spin-N-Market and pumped 5,220 gallons of fluid into a manhole near the store and into Lewis Street alongside the store. Of the fluid pumped, 4,690 gallons were gasoline.
The gasoline from Lewis Street made its way to a storm drain and the storm sewer system and eventually into Possum Creek. When city officials discovered the gasoline in Possum Creek, several vacuum trucks were required to decontaminate it.
The gasoline from the manhole made its way to the city sewage treatment center. The gasoline was diverted into a different storage pool in order to avoid shutting down the plant altogether, but the plant had to evacuate all but essential personnel, and firefighters and hazardous materials crews from the city had to be called to restore the plant to a safe condition. While the crews worked, two area schools had to be evacuated for safety reasons.
Mr. Ahmad was indicted for three violations of the Clean Water Act (CWA), of knowingly discharging a pollutant into navigable waters without a permit, knowingly placing others in imminent danger through a pollutant, and knowingly operating a source in violation of pre-treatment requirements. Mr. Ahmad did not dispute the conduct; he said he did not meet the ''knowingly" requirements because he believed he was discharging water.
The jury found Mr. Ahmad guilty on two of the three charges and deadlocked on the charge of imminent danger. Mr. Ahmad appealed.
Judicial Opinion
SMITH, Circuit Judge
Ahmad contends that the jury should have been instructed that the statutory mens rea -knowledge-was required as to each element of the offenses, rather than only with regard to discharge or the operation of a source.
The language of the CWA is less than pellucid. Title 33 U.S.C. § 1319(c)(2)(A) says that "any person who knowingly violates" any of a number of other sections of the CWA commits a felony. The principal issue is to which elements of the offense the modifier "knowingly" applies. The matter is complicated somewhat by the fact that the phrase "knowingly violates" appears in a different section of the CWA from the language defining the elements of the offenses. Ahmad argues that within this context, "knowingly violates" should be read to require him knowingly to have acted with regard to each element of the offenses. The government, in contrast, contends that "knowingly violates" requires it to prove only that Ahmad knew the nature of his acts and that he performed them intentionally. Particularly at issue is whether "knowingly" applies to the element of the discharge's being a pollutant, for Ahmad's main theory at trial was that he thought he was discharging water, not gasoline.
The Supreme Court has spoken to this issue in broad terms.... "[T]he presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct." I Indeed, we find it eminently sensible that the phrase "knowingly violates" in § 1319(c)(2)(A), when referring to other provisions that define the elements of the offenses § 1319 creates, should uniformly require knowledge as to each of those elements rather than only one or two. To hold otherwise would require an explanation as to why some elements should be treated differently from others, which neither the parties nor the case law seems able to provide. The government also protests that CWA violations fall into the judicially created exception for "public welfare offenses" under which some regulatory crimes have been held not to require a showing of mens rea. On its face, the CWA certainly does appear to implicate public welfare.
The fact that violations of § 1319(c)(2)(A) are felonies punishable by years in federal prison confirms our view that they do not fall within the public welfare offense exception.... [P]ublic welfare offenses have virtually always been crimes punishable by relatively light penalties such as fines or short jail sentences, rather than substantial terms of imprisonment. Serious felonies, in contrast should not fall within the exception "absent a clear statement from Congress that mens rea is not required."... [W]e hold that the offenses charged in counts one and two are not public welfare offenses and that the usual presumption of a mens rea requirement applies. With the exception of purely jurisdictional elements, the mens rea of knowledge applies to each element of the crimes.
At best, the jury charge made it uncertain to which elements "knowingly" applied. At worst, and considerably more likely, it indicated that only the element of discharge need be knowingly. The instructions listed each element on a separate line, with the word "knowingly" present only in the line corresponding to the element that something was discharged. That the district court included a one-sentence summary of each count in which "knowingly" was present did not cure the error.
The obvious inference for the jury was that knowledge was required only as to the fact that something was discharged, and not as to any other fact. In effect, with regard to the other elements of the crimes, the instructions implied that the requisite mens rea was strict liability rather than knowledge.
There was at least a reasonable likelihood that the jury applied the instructions in this way, so we conclude that the instructions misled the jury as to the elements of the offense. Because the charge effectively withdrew from the jury's consideration facts that it should have been permitted to find or not find, this error requires reversal.
Most of Ahmad's defense, after all, was built around the idea that he thought water, rather than gasoline, was being discharged. A rational jury could so have found, and at the same time could have found that he did not actually know that he was pumping gas.
Reversed and remanded.
Of what significance is Jewel McCoy's testimony?