Tuesday, October 16, 2012

Discovery for Organizational Defendants / Invited Error / Inconsistent Verdicts

United States v. Maury, --- F.3d ----, 2012 WL 4074565 (3d Cir. Sept. 17, 2012).  In a lengthy decision affirming convictions for organization and multiple individual defendants under the Clean Water Act, the Court addresses multiple issues and, in short, held: (1) Rule governing discovery rights of organizational defendants mandated disclosure only of the binding statements (Fed. R. Crim. P. 16(a)(1)(C)(i), (ii)), that related to alleged misconduct and not of all statements made by employees; (2) "invited error" doctrine applied and prevented defendants from objecting to district court's actions in giving the lesser-included offense and simple negligence instructions which they had requested; and (3) fact that the jury convicted defendants only of lesser-included offense of negligently violating the Clean Water Act, rather than any willful violation, and at same time found them guilty of knowingly participating in conspiracy to violate the CWA, was not necessarily inconsistent.

After an eight-month trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of violations of the Clean Water Act (CWA) and Clean Air Act (CAA), including conspiring to commit environmental pollution and worker safety violations, impeding their investigation, and substantive violations of the CWA and CAA. These offenses included unlawfully pumping contaminated water, burning drums of paint waste, and concealing several work-related accidents, one resulting in the death of an employee. Defendants raised multiple arguments both jointly and individually. The Court principally addressed the adequacy of pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure, the sufficiency of the jury instructions, and the alleged inconsistency of the verdict.

DiscoveryDiscovery in the case was contentious, particularly regarding statements of company employees. Initially, the district court granted a protective order allowing the government to defer production of discoverable statements by current and former employees until 30 days before the start of trial. Defendant’s subsequently filed several motions to compel discovery and also argued that, despite the protective order, they were entitled to all statements made by "co-conspirators," as the government intended to "bind" the company by the statements of those co-conspirators, as well as statements of employees whose conduct would bind the company. The Circuit noted that these requests did not concern the scope of Rule 16(a)(1)(C), but what Defendants were entitled to prior to 30 days before trial. The district court denied the motion to reconsider the protective order.

Consistent with the protective order, the government ultimately produced the withheld Rule 16(a)(1)(C) materials for 24 witnesses. Portions were heavily redacted, purportedly pursuant to the scope of Rule 16(a)(1)(C) which reads:
(C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:
(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

For employees who would bind the company under subsection (i), the government produced all oral statements that it intended to use at trial, and all written statements discussing issues on which the employee had the authority to bind the Company. For those who would bind the company because of their participation in specific conduct under subsection (ii), the government produced all oral and written statements discussing that specific conduct. Other statements from these individuals – statements unrelated to the charged conduct or observations of the conduct of others – were redacted. Defendants objected to the redactions, but did not object to the scope of the government's reading of Rule 16(a)(1)(C). Unredacted copies were produced as Jencks material prior to the testimony of each witness.

On appeal, Defendants argued that the district court erred in its reading of Rule 16(a)(1)(C) and deprived defendants of critical discovery, arguing that the discovery received under subsection (ii) was erroneously limited to statements by employees about specific misconduct, rather than any statements made by the employees. Finding that defendant’s did not preserve an objection to the actual scope of discovery under subsection (ii), the Circuit reviewed for plain error and rejected defendants’ claim.

The Court looked at the purpose of Rule 16(a)(1)(C), to apply the individual-defendant discovery rules to organizational defendants. Looking at subsection (ii), applying those rules to employees who engage in illegal conduct within the scope of their jobs and then make some statement about having done so, the Court held that the "conduct constituting the offense" and the ability "to bind the defendant in respect to that alleged conduct" contemplates statements regarding only the conduct itself. It is only in this context that the employee "speaks" on the behalf of the company. In addition, a broader interpretation would provide an organizational defendant with broader rights than those of individual defendants.

Jury InstructionsDefendants also challenged the district court's instructions to the jury, arguing that the court erred, first, in defining the mens rea for a misdemeanor violation of the CWA, and second, in refusing to include language stating that a showing of recklessness could not meet the mens rea for the charged offenses which required a "knowing" or "willful" violation.

Although the indictment charged felony (knowing) violations of the CWA, defendants requested that the trial court also instruct on the lesser-included misdemeanor offense, which penalizes negligent violations of the Act. In that regard, defendants requested that the court instruct the jury that a "person negligently violates the Clean Water Act by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances." A simple negligence instruction.

On appeal, defendants objected to the simple negligence instruction arguing that a showing of gross negligence was required, based on the subsequently adopted Third Circuit Model Jury Instructions and Supreme Court decision in Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007), a case analyzing and comparing use of the terms "willful" and "reckless" in the civil and criminal provisions of the Fair Credit Reporting Act. The Circuit declined to find that Safeco – addressing an entirely different statute – constitutionally altered, or altered at all, prior caselaw addressing the CWA. Accordingly, defendants were barred from relief by the invited error doctrine, and in any event, would not have overcome plain error review.

The Court also rejected defendants’ assertion that, in addition to an instruction that negligence was not a valid theory of liability on the felony counts, the district court should have included an instruction explaining that "recklessness" was likewise not sufficient to prove "knowing" conduct for a felony conviction. The Court found that the district court was well within its discretion to decline out of concern about confusing the jury and because the required intent was already addressed in other instructions defining "knowing," "willful" and "intentional" conduct.

Inconsistent VerdictsThough charged with felony violations of the CWA, (§ 1319(c)(2)) , two defendants, Prisque and Davidson, were convicted of lesser-included misdemeanor or negligent violations (§ 1319(c)(1)(A)). The two were also convicted, however, of knowingly and willfully participating in a conspiracy with the specific objective of violating the CWA. Defendants argued that these verdicts were mutually exclusive and that the conspiracy convictions should be vacated. The Court declined, explaining that the two were convicted of multiple objectives underlying the conspiracy charge, and even if some degree of inconsistency existed between the misdemeanor convictions under § 1319(c)(1) of the CWA and the conspiracy under 18 U.S.C. § 371, the conspiracy conviction could still stand based on the jury's verdict on the remaining underlying offenses. The verdicts were not "fundamentally at odds with one another."

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