                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-1997

USA v. W Indies Transp Co
Precedential or Non-Precedential:

Docket
96-7063




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Recommended Citation
"USA v. W Indies Transp Co" (1997). 1997 Decisions. Paper 241.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/241


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Filed October 15, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-7063, 96-7064
and 96-7065

UNITED STATES OF AMERICA

v.

WEST INDIES TRANSPORT, INC.,
       Appellant at No. 96-7063

WIT EQUIPMENT CO., INC.,
       Appellant at No. 96-7064

W. JAMES OELSNER,
       Appellant at No. 96-7065

On Appeal from the District Court of the Virgin Islands
Division of St. Croix
(D.C. Criminal Nos. 93-cr-00195-1,
93-cr-00195-2 and 93-cr-00195-3)

Argued December 9, 1996

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Filed October 15, 1997)

       TRESTON E. MOORE, ESQUIRE
        (ARGUED)
       P.O. Box 310, E.G.S.
       Charlotte Amalie, St. Thomas
       U.S. Virgin Islands 00804

        Attorney for Appellants




       KATHERINE W. HAZARD, ESQUIRE
        (ARGUED)
       United States Department of Justice
       P.O. Box 23795
       L'Enfant Plaza Station
       Washington, D.C. 20026

       DAVID L. ATKINSON, ESQUIRE
       Office of United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       U.S. Virgin Islands 00820

        Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Defendants West Indies Transport, Inc., WIT Equipment
Co., and W. James Oelsner appeal their convictions and
sentences for visa fraud, environmental crimes, conspiracy,
and racketeering. The district court had jurisdiction under
48 U.S.C. S 16121 and 18 U.S.C. SS 3231 and 3241.2 We
_________________________________________________________________

1. 48 U.S.C. S 1612(a) provides, in part: "The District Court of the
Virgin
Islands shall have the jurisdiction of a District court of the United
States
. . . ."

48 U.S.C. S 1612(c) provides, in part: "The District Court of the Virgin
Islands shall have concurrent jurisdiction with the courts of the Virgin
Islands established by local law over those offenses against the criminal
laws of the Virgin Islands, whether felonies or misdemeanors or both,
which are of the same or similar character or part of, or based on, the
same act or transaction or two or more acts or transactions connected
together or constituting part of a common scheme or 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 of the Virgin Islands has jurisdiction pursuant to
subsections (a) and (b) of this section."

2. 18 U.S.C. S 3231 provides, in part: "The district courts of the United
States shall have original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United States."

                                  2



have jurisdiction under 28 U.S.C. S 1291.3 We will affirm.4

I. Facts and Procedural History

West Indies Transport, Inc. and WIT Equipment Co.
(collectively "West Indies Transport") operated several
businesses in Krum Bay, St. Thomas, including a dry dock,
ship repair facility, and barge towing company. West Indies
Transport's chief operating officer was W. James Oelsner.
In 1987, West Indies Transport obtained permits to use five
barges as fixed docks for its other vessels. In 1989,
Hurricane Hugo seriously damaged some of these barges,
shifting them from their permitted positions. West Indies
Transport did not attempt to repair, reposition, or salvage
these barges after the storm. Instead, it used these barges
as docks, repair facilities, and housing for employees in
their new unauthorized locations. In the process, West
Indies Transport attached the barges permanently to shore,
constructed walkways and ramps between the barges for
use by vehicles and employees, and wired them for
electricity.

To staff its facilities, West Indies Transport hired an
overseas agent to recruit Filipino workers. The Filipino
_________________________________________________________________

18 U.S.C. S 3241 provides: "The United States District Court for the
Canal Zone and the District Court of the Virgin Islands shall have
jurisdiction of offenses under the laws of the United States, not locally
applicable, committed within the territorial jurisdiction of such courts,
and jurisdiction, concurrently with the district courts of the United
States, of offenses against the laws of the United States committed upon
the high seas."

3. 28 U.S.C. S 1291 provides, in part: "The courts of appeals (other than
the United States Court of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the district courts of
the
United States, the United States District Court for the District of the
Canal Zone, the District Court of Guam, and the District Court of the
Virgin Islands, except where a direct review may be had in the Supreme
Court."

4. In some instances, it is difficult for us to ascertain the precise
basis
of the defendants' claims for relief. We have construed defendants' brief
in the most plausible fashion.

                                3



workers were instructed to apply for D-1 visas intended for
non-immigrant foreign maritime crewmen, not the H-2
visas required by law. The "West Indies Transport crewmen"
never put to sea. Instead, West Indies Transport housed
them in a converted shipping container on a barge and
used them as dock workers. The Filipino workers were paid
approximately $400 per month for a 56-hour work week.
By using underpaid illegal foreign employees, West Indies
Transport was able to reduce significantly its expenses for
wages and wage taxes.

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

Defendants were charged in a twenty-one count
indictment for visa fraud, environmental crimes,
conspiracy, and racketeering. Five counts were dismissed
on motion of the government. A jury found defendants
guilty on the remaining sixteen counts. Defendants moved
for post-verdict judgment of acquittal, which the district
court denied. This appeal followed.

                                4



II. Visa Fraud

A.

Defendants were convicted of aiding and abetting visa
fraud in violation of 18 U.S.C. S 2 and 18 U.S.C. S 1546.5 At
trial, the district court instructed the jury that defendants'
representations to U.S. immigration and State Department
officials verifying that Filipino workers hired by West Indies
Transport would be working as crewmen aboard foreign
flagged vessels were material as a matter of law. These
instructions were consistent with our decision in United
States v. Greber, 760 F.2d 68 (3d Cir.), cert. denied, 474
U.S. 988 (1985), which held that when a defendant is tried
for perjury the issue of materiality is decided by the court.

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

The rule announced in Gaudin applies retroactively to
this direct appeal. Johnson v. United States, ___ U.S. ___,
117 S. Ct. 1544, 1549 (1997) (Gaudin applies retroactively
_________________________________________________________________

5. 18 U.S.C. S 1546 provides, in part: "Whoever knowingly makes under
oath, or . . . knowingly subscribes as true, any false statement with
respect to a material fact in any application, affidavit, or other
document
required by the immigration laws or regulations prescribed thereunder,
or knowingly presents any such application, affidavit, or other document
containing such statement -- Shall be fined under this title or
imprisoned not more than five years, or both."

18 U.S.C. S 2 provides: "(a) Whoever commits an offense against the
United States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal. (b) Whoever willfully causes
an act to be done which if directly performed by him or another would
be an offense against the United States, is punishable as a principal."

                                5



on direct review; citing Griffith v. Kentucky , 479 U.S. 314,
328 (1987)). Defendants contend that Gaudin requires a
new trial.

Defendants submitted to the district court proposed jury
instructions which took the issue of materiality away from
the jury, but now object to those same instructions. For
this reason, the government asks us to treat the district
court's instructions as non-reviewable invited error, under
United States v. Console, 13 F.3d 641 (3d Cir. 1993), cert.
denied, 513 U.S. 812 (1994) and Herman v. Hess Oil Virgin
Islands Corp., 524 F.2d 767 (3d Cir. 1975). We decline to
do so. Where a defendant submits proposed jury
instructions in reliance on current law, and on direct
appeal that law is declared constitutionally infirm, we will
not apply the invited error doctrine. Instead, we will review
for plain error under Fed. R. Crim. P. 52. See Johnson, 117
S. Ct. at 1548-49 (reviewing Gaudin error under plain error
standard where defendant, relying on current law later
declared unconstitutional, insisted at trial that materiality
was an issue for the court, not jury, to decide). Under Rule
52, "before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity or public reputation of the
judicial proceedings." Johnson, 117 S. Ct. at 1549 (internal
quotations and brackets omitted; citing United States v.
Olano, 507 U.S. 725, 732 (1993)). As the Supreme Court
explained in Johnson, "in a case such as this -- where the
law at the time of trial was settled and clearly contrary to
the law at the time of appeal -- it is enough that an error
be `plain' at the time of appellate consideration." Id. See
also United States v. Retos, 25 F.3d 1220 (3d Cir. 1994)
(question is not whether error was plain at time of trial, but
whether it is plain based on current law at time of direct
appeal).

Failure to submit the issue of materiality to the jury was
error. Gaudin, 115 S. Ct. at 2320; Johnson, 117 S. Ct. at
1549. That Gaudin involved perjury under 18 U.S.C. S 1001
rather than 18 U.S.C. S 1546, the relevant statute here, is

                                6



not significant given the identical character of the
materiality element in both perjury statutes. See Johnson,
117 S. Ct. 1544 (1997) (applying Gaudin to case involving
perjury under 18 U.S.C. S 1623); United States v. DiRico, 78
F.3d 732 (1st Cir. 1996) (applying Gaudin to perjury under
26 U.S.C. S 7206(1)).

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

To satisfy the "substantial rights" prong of the plain error
test, defendants usually must show that the error was
"prejudicial" -- "It must have affected the outcome of the
district court proceedings." Olano, 507 U.S. at 734; United
States v. Turcks, 41 F.3d 893 (3d Cir.) (same), cert. denied,
514 U.S. 1074 (1994).6 Defendants bear this burden of
proof. Id. Defendants here have not brought to our
attention any facts suggesting that a jury might have
reached a conclusion different from the district court on
materiality. Defendants presented no evidence at trial that
their statements were not material. More importantly, the
government introduced substantial evidence proving the
defendants' representations were material. Indeed, had
immigration officials known the true facts behind the
Filipino workers' applications for visas -- defendants'
intention to employ as dock workers illegally underpaid
foreign workers housed permanently on derelict barges --
_________________________________________________________________
6. In Olano, the Supreme Court suggested that there might be a "special
category" of structural errors that can be corrected under Rule 52
regardless of their effect on the outcome of the trial, 507 U.S. at 735,
but
did not state what types of cases might fall under this special category.
In Johnson, 117 S. Ct. 1544 (1997), the Supreme Court declined to
address whether a Gaudin error falls within this category. Our ruling in
Retos, 25 F.3d 1220, assumed but did not decide that this "special
category," whatever its content, does not include cases where the district
court failed to instruct the jury on an essential element of the offense.
We agree with that assumption. But see United States v. David, 83 F.3d
638 (4th Cir. 1996) (failure to send issue of materiality to jury falls
within "special category" noted by Supreme Court in Olano; reversal
required regardless of effect on outcome).

                                7



the visas never would have been granted. For these
reasons, defendants have not met their burden of proving
that the failure to submit the issue of materiality to the jury
affected the outcome of the trial. See United States v.
Kramer, 73 F.3d 1067 (11th Cir.) (Gaudin error not
reversible plain error; defendant failed to show that error
affected outcome of trial), cert. denied, 117 S. Ct. 516
(1996); United States v. Ross, 77 F.3d 1525 (7th Cir. 1996)
(Gaudin error not reversible plain error; issue of materiality
not seriously disputed at trial).

"When the first three parts of Olano are satisfied, an
appellate court must then determine whether the forfeited
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings before it may exercise its
discretion to correct the error." Johnson, 117 S. Ct. at 1550
(internal quotations and brackets omitted). Whether or not
their substantial rights were affected, defendants have not
satisfied the fourth prong of the Olano test. In Johnson, a
case involving similar facts, the Supreme Court observed
that the evidence of materiality was "overwhelming,"
materiality was "essentially uncontroverted at trial," and
the defendant had presented "no plausible argument" that
her false statements were "somehow not material." Id. The
Supreme Court concluded: "On this record there is no basis
for concluding that the error seriously affected the fairness,
integrity or public reputation of the judicial proceedings.
Indeed, it would be the reversal of a conviction such as this
which would have that effect. . . . No miscarriage of justice
will result here if we do not notice the error, and we decline
to do so." Id. (internal quotations omitted).

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

                                8



B.

Defendants contend their convictions for aiding and
abetting visa fraud must be reversed because the district
court did not instruct the jury that it must find "knowing
subscription" or "knowing presentation" of false material.
Not only did defendants fail to request such an instruction,
their proposed instruction was remarkably similar to that
actually delivered by the district court.7 "Thus, if there was
any error at all, it was `invited error' and cannot now be a
basis for reversal." United States v. Console, 13 F.3d 641,
661 (3d Cir. 1993) (quoting Herman v. Hess Oil Virgin
Islands Corp., 524 F.2d 767, 772 (3d Cir. 1975)), cert.
denied, 513 U.S. 812 (1994).

C.

Defendants contend as a matter of law they could not be
convicted of aiding and abetting visa fraud because the
government conceded that immigrant workers who
presented false information to the INS at West Indies
Transport's instigation lacked criminal intent. We review de
novo where the question is one of statutory interpretation.
United States v. Schneider, 14 F.3d 876 (3d Cir. 1994).

The aiding and abetting statute provides, inter alia, that
a defendant is liable if he willfully causes an act to be done
by another which would be illegal if he did it himself.18
U.S.C. S 2(b). For this reason, whether the immigrant
workers lacked criminal intent is irrelevant so long as West
Indies Transport intentionally caused them to submit false
information. As the Court of Appeals for the Eleventh
Circuit explained, "it is well established that S 2(b) was
designed to impose criminal liability on one who causes an
intermediary to commit a criminal act, even though the
intermediary who performed the act has no criminal intent
and hence is innocent of the substantive crime charged."
_________________________________________________________________

7. Compare defendants' proposed instruction, requiring the jury to find
that "knowing false statement be made" to the government, SA 1140,
with actual instruction used, which required the jury to find that false
statements were "made" and that the defendants "knew" that they were
false, A 981.

                                9



United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th
Cir.), reh'g denied, 716 F.2d 914 (1983). See also Springs v.
First Nat. Bank of Cut Bank, 835 F.2d 1293 (9th Cir. 1988)
("A person who causes the commission of an offense is
punishable as a principal even though the person who
commits the wrongful act violates no criminal statute
because of lack of criminal intent or capacity.").

In United States v. Catena, 500 F.2d 1319 (3d Cir.), cert.
denied, 419 U.S. 1047 (1974), a physician was convicted for
presenting false Medicare claims to the United States. On
appeal, the physician argued that his conviction must be
overturned because he did not present the claims to the
United States in person. Rather, he submitted the false
claims to two insurance companies, which forwarded them
to the United States government. We affirmed his
conviction, observing that under "S 2(b) a person may be
convicted of causing a false claim to be presented to the
United States even though he uses an innocent
intermediary (in this case the insurance carriers) to actually
pass on the claims to the United States." Id. at 1323.

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

West Indies Transport's arguments are indistinguishable
from those rejected in Catena and Causey. When a
defendant uses an innocent intermediary to present false

                                10
claims or make false statements to the government, the
criminal intent of the intermediary is not an element of the
offense. 18 U.S.C. S 2(b). For this reason, the district court's
charge was not erroneous.

III. Environmental Crimes

A.

Defendants were convicted of violating the Clean Water
Act, 33 U.S.C. S 1251 et seq., by (1) severing a 250-ton
concrete and rebar block from the stern of Witconcrete II, a
ferrous concrete barge, and dumping it into Krum Bay, St.
Thomas; (2) severing approximately one hundred pieces of
rebar and attached concrete from the stern of Witconcrete II
and dropping it into Krause Lagoon; and (3) conducting
sandblasting operations on a floating barge that projected
sand and paint chip residue into Krum Bay. The Clean
Water Act generally prohibits discharging pollutants into
the navigable waters of the United States without a permit.
But it only regulates "discharges" of pollutants from a
"point source." See 33 U.S.C. SS 1311(a) and 1362(12).8
Defendants contend as a matter of law their conduct did
not constitute discharge of a pollutant from a point source.
We review questions of statutory interpretation de novo.
United States v. Schneider, 14 F.3d 876 (3d Cir. 1994).

Barges are "floating craft," expressly included within the
definition of "point source." 33 U.S.C. 1362(14).9
_________________________________________________________________

8. 33 U.S.C. S 1311(a) provides: "Except as in compliance with this
section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this
title, the discharge of any pollutant by any person shall be unlawful."

33 U.S.C. S 1362(12) provides: "The term `discharge of a pollutant' and
the term `discharge of pollutants' means (A) any addition of any pollutant
to navigable waters from any point source, (B) any addition of any
pollutant to the waters of the contiguous zone or the ocean from any
point source other than a vessel or other floating craft."

9. 33 U.S.C. S 1362(14) provides: "The term `point source' means any
discernible, confined and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are or may be discharged.
The term does not include agricultural stormwater discharges and return
flows from irrigated agriculture."

                                11
"Discharges" include "any addition of any pollutant to
navigable waters from any point source." Defendants
concede that Krum Bay and Krause Lagoon are navigable
waters of the United States. Rebar, concrete, sand and
paint chips fall within the Clean Water Act's broad
definition of "pollutant." 33 U.S.C. S 1362(6).10 Therefore,
cutting off pieces of a ferro-concrete barge and dumping
them in Krum Bay and Krause Lagoon, or conducting
sandblasting on a floating craft and allowing the residue to
fall into Krum Bay, constitutes making an addition of a
pollutant to navigable waters of the United States from a
point source. Defendants' conduct fell within the applicable
statutory definitions.

Appellants' reliance on United States v. Plaza Health
Labs., Inc., 3 F.3d 643 (2d Cir. 1993), cert. denied, 512 U.S.
1245 (1994), does not alter our conclusion. There,
defendant removed containers loaded with blood vials from
his office, transported them in his car, and carried them to
the Hudson River, where he deposited them during low tide
in a bulkhead separating his home from the river. The
United States Court of Appeals for the Second Circuit
refused to consider defendant a "point source." But Plaza
offers no guidance here because it focused almost
exclusively on the application of the Clean Water Act to
human beings:

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

* * *

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

10. 33 U.S.C. S 1362(6) provides, in part: "The term `pollutant' means
dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste discharged into water."

                                 12



* * *

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

* * *

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

Id. at 647 (citations omitted). Congress intended a broad
definition of "point source:" "[t]he concept of a point source
was designed to further this [regulatory] scheme by
embracing the broadest possible definition of any
identifiable conveyance from which pollutants might enter
the waters of the United States." United States v. Earth
Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979). Plaza
properly circumscribed the breadth of the "point source"
definition that the rebar was actually part of the Witconcrete
II and does not alter the analysis. Before and after the
severance of the rebar, the Witconcrete II qualified as a
"vessel or other floating craft" within the parameters of 33
U.S.C. S 1362(14). The deliberate amputation of a portion of
the vessel did not destroy the Witconcrete II's suitablity as
a "point source." Cf. Hudson Riverkeeper Fund, Inc. v.
Harbor at Hastings Assocs., 917 F. Supp. 251, 257
(S.D.N.Y. 1996) ("[i]t would seem unlikely that Building 15
would fit into this interpretation of point source as any
discharge of material would not be deliberate or
systematic"). We see no error here.

B.

Defendants were also convicted for discharging untreated
sewage into Krum Bay from a barge used to house their

                                 13



workers, in violation of 33 U.S.C. SS 1311(a) and
1319(c)(2)(A).11 Defendants correctly argue and the
government concedes that "sewage from vessels" is
regulated under 33 U.S.C. S 1322, not SS 1311 and 1319.
Thus, if defendants' barge falls within the statutory
definition of "vessel," the conduct in question does not
violate S 1311(a) and S 1319(c)(2)(A) and their convictions
must be reversed. Defendants maintain their barge on
which they housed Filipino workers is a vessel. We
disagree.

33 U.S.C. S 1322(a)(1) defines "new vessel" and "existing
vessel" to include "every description of watercraft or other
artificial contrivance used, or capable of being used, as a
means of transportation on water." This definition contrasts
vessels with "other floating craft," a term which the Clean
Water Act does not define, but which suggests by its terms
and in the context of the statute an artificial water-borne
contrivance that, in contrast to a vessel, is not used or
capable of being used for transportation purposes. See 33
U.S.C. S 1362(12). At all relevant times, the barge in
question was moored permanently to shore. It was used to
house foreign workers, not as a means of transport. Nor
could the barge have been used for transport. According to
testimony at trial, defendants' barge was half submerged in
the water of Krum Bay, with part of the hull resting on the
bottom and with water visible below decks. The barge could
not be moved from its mooring. There was sufficient
evidence therefore for the trier of fact to conclude that the
barge was not a vessel within the meaning of the Clean
Water Act.

Though we are not aware of any authority interpreting
the meaning of "vessel" under S 1322, our view is in accord
with long-standing interpretation of the term "vessel" in
other contexts. See Cope v. Valette Dry-Dock Co., 119 U.S.
625 (1887) (dry dock attached to shore by large chains,
_________________________________________________________________

11. 33 U.S.C. S 1311(a) provides: "Except as in compliance with this
section and sections 1312, 1316, 1317, 1328, 1342 and 1344 of this
title, the discharge of any pollutant by any person shall be unlawful."
Section 1319(c)(2)(A) provides for criminal sanctions for "any person"
who "knowingly" violates S 1311.

                                14



with no means of propulsion, and incapable of being used
for navigation, not a vessel; "The fact that it floats on the
water does not make it a ship or vessel."); Kathriner v.
UNISEA, Inc., 975 F.2d 657 (9th Cir. 1992) ("[F]loating
structures are not classified as vessels in navigation if they
are incapable of independent movement over water, are
permanently moored to land, have no transportation
function of any kind, and have no ability to navigate.").

C.

33 U.S.C. S 1319(c)(2)(A) establishes criminal penalties for
anyone who "knowingly" violates 33 U.S.C.S 1311.
Defendants contend the district court erred when it failed
to instruct jurors on the definition of "knowingly," arguing
that jurors might have been unaware that an accidental
discharge of pollutants was insufficient to convict.
Defendants did not raise this objection at trial, so we review
for plain error.

Despite defendants' contention, the court instructed
jurors on the meaning of the term "knowingly." It stated:
"An act is done knowingly if done voluntarily and
intentionally, and not because of mistake or accident or
other innocent reason. The purpose of adding the word
`knowingly' is to insure that no one will be convicted for an
act done because of mistake, accident, or other innocent
reason." There was no error here.

D.

Defendants were convicted for violating the Rivers and
Harbors Act, 33 U.S.C. S 403, which provides, in part:

       it shall not be lawful to build or commence the building
       of any wharf, pier, dolphin, boom, weir, breakwater,
       bulkhead, jetty, or other structures in . . . any water of
       the United States, outside established harbor lines, or
       where no harbor lines have been established, except on
       plans recommended by the Chief of Engineers and
       authorized by the Secretary of the Army.

Defendants contend the district court should have
dismissed this count because the government "did not

                                15



prove that the Defendants had knowingly built a pier,
wharf, or any other structure."

Under longstanding precedent, the prohibition on
"build[ing] or commencing the building of any wharf, pier
. . . or other structures" contained in S 403 contemplates
"the purposeful creation of something formulated or
designed, construction work in the conventional sense."
United States v. Bigan, 274 F.2d 729, 732 (3d Cir. 1960).
Thus, we have held that negligent creation of an
obstruction to navigation does not violate S 403. See id.
(negligently caused land slide resulting in blocked river
channel not a violation of S 403).

At trial, the government presented evidence that
defendants intentionally strung together numerous derelict
barges to form a permanent dock for loading activities,
repairs, and the housing of employees. West Indies
Transport permanently attached these barges together and
to land with rope and wire cable. The barges and shore
were connected by walkways defendants constructed out of
metal and wood. The resulting wharfs were wired for
electricity and were substantial enough to support
significant loading and repair operations, including the use
of forklifts. This evidence provided sufficient basis that
defendants purposefully built an unauthorized structure.
This was not a case where an act of nature or negligence
resulted in an obstruction to navigation. It was clear that
defendants here intentionally built a large dock to conduct
their business activities.12
_________________________________________________________________

12. Consistent with the United States Supreme Court's directive to
interpret 33 U.S.C. S 403 broadly, courts have considered structures
analogous to the barges at issue in the instant case"obstructions." See
United States v. Republic Steel Corp., 362 U.S. 482, 487 (1960) ("the
Court . . . gave the concept `obstruction' . . . a broad sweep"), reh'g
denied, 363 U.S. 858 (1960); Norfolk & W. Co. v. United States, 641 F.2d
1201, 1210 (6th Cir. 1980) (" `obstruction' within the meaning . . . of
the
Act is to be liberally construed"). Examples of like structures which
constitute "obstructions" include docks, piers, boat ramps, and sunken
vessels. See Great Am. Ins. Co. v. Tugs "Cissi Reinauer" et al., 933 F.
Supp. 1205, 1219 (S.D.N.Y. 1996) (finding a houseboat, that served as
a residence and was not moved for more than seven months, constituted
a "permanently moored vessel" and an "unauthorized riparian

                                16



E.

Defendants raise a second objection to their convictions
under 33 U.S.C. S 403, the Rivers and Harbors Act. 33
U.S.C. S 403 sanctions the construction of structures in
water of the United States only when those structures are
built "outside established harbor lines, or where no harbor
lines have been established." 33 U.S.C. S 403. The district
court did not instruct the jury that it must find defendants
built a structure outside harbor lines, or where no lines
have been established. Although defendants now contend
on appeal the jury instruction was fatally deficient, their
proposed jury instruction made no mention of the"harbor
lines" element. "Thus, if there was any error at all, it was
`invited error' and cannot now be a basis for reversal."
United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993)
(quoting Herman v. Hess Oil Virgin Islands Corp., 524 F.2d
767, 772 (3d Cir. 1975)).

If not invited error, we would review for plain error
because defendants did not object at trial. A plain error
must be "prejudicial" -- "It must have affected the outcome
of the district court proceedings." Olano, 507 U.S. at 734;
United States v. Turcks, 41 F.3d 893 (3d Cir. 1994) (same).
Defendants bear this burden of proof. Id.

Defendants have not brought to our attention any
evidence suggesting that the district court's instruction
affected the outcome of the trial. West Indies Transport has
not argued, at trial or on appeal, that its docks were in fact
constructed within established harbor lines, or where no
_________________________________________________________________

`obstruction' " for purposes of S 403) (citations omitted); United States
v.
Lambert, 915 F. Supp. 797, 804 (S.D.W. Va. 1996) ("[t]he dock and its
extension are `structures' that obstruct the navigable capacity of the
River. The River's normal flow and circulation patterns have been
disrupted also"); Fox Bay Partners v. United States Corps of Engineers,
831 F. Supp. 605, 608 (N.D. Ill. 1993) ("the construction of docks, piers,
and boat ramps creates obstructions in the navigable waters of the
United States"); United States v. Ohio Barge Lines, Inc., 432 F. Supp.
1023, 1027 (E.D. Pa. 1977) ("[a] barge, whether negligently or
intentionally sunk in a navigable river of the United States, to further
the purpose of the Act and not narrow it . . . [is included] as an
obstruction").

                                17



lines have been established. On the contrary, defendants
appear to concede this issue. Nor do defendants contend
that a reasonable jury might have acquitted them on this
charge 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 and because the district court followed
the defendants' proposed instruction, the court's
instruction did not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings. Therefore we
see no plain error.

IV. Alleged Prejudicial Testimony

Randolph Allen, a local labor official, testified for the
government regarding the costs defendants would have
incurred had they employed workers through legal means.
Defendants objected to his testimony on the ground that it
was unduly prejudicial and irrelevant. The district court
allowed Allen's testimony as probative of defendants' motive
and intent to commit visa fraud.

After the conclusion of Allen's testimony 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
for possible prejudice. Denying the motion for mistrial, the
court noted that defendants failed to raise this question
with potential jurors during pre-trial voir dire. Nevertheless,
the district court halted the trial and asked the jurors
whether any of them had "such strong feelings for or
against alien workers" that they would not be able "to
decide this case fairly and impartially." No juror responded
affirmatively.

We review denial of mistrial for abuse of discretion.
United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.
1986). Allen's testimony was relevant to and probative on
the intent element of the charged visa fraud counts because
it tended to establish the defendants' motive. We see no
sign of undue prejudice. Though the defendants did not
raise this issue during voir dire, the district court carefully
questioned the jury to ensure there was no prejudice that

                                18



might affect the jury's impartiality. We see no abuse of
discretion here.

V. Entrapment by Estoppel

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

A.

The affirmative defense of entrapment by estoppel has its
roots in two Supreme Court decisions, Raley v. State of
Ohio, 360 U.S. 423 (1959) and Cox v. State of Louisiana,
379 U.S. 559 (1965), reh'g denied, 380 U.S. 926 (1965),
finding violations of due process. In Raley, defendants
refused to answer questions of the Ohio Un-American
Activities Commission after a state official erroneously
informed them that they were protected under the state
constitution's privilege against self-incrimination. The
defendants were subsequently held in contempt. The
Supreme Court reversed, holding that the state may not
"convict[ ] a citizen for exercising a privilege which the state
clearly had told him was available to him," for to do so
"would be to sanction the most indefensible sort of
entrapment." Id. at 438. The Court applied the doctrine
again in Cox, where it reversed state law convictions for
picketing because a state official had granted defendants
permission to picket.
We have applied the entrapment by estoppel defense in
only one prior decision, United States v. Pennsylvania
Industrial Chemical Corp., 461 F.2d 468 (3d Cir. 1972),
modified and remanded, 411 U.S. 655 (1973). In
Pennsylvania Industrial, the defendant was charged with
discharging pollution into the Monongahela River, in
violation of the Rivers and Harbors Act, 33 U.S.C. S 407. At
trial, the defendant sought to present evidence that its
allegedly criminal acts had been authorized by Army
regulations and the federal government's long-term
interpretation of the statute. The district court prohibited
the defendant from introducing the evidence and refused to

                                19



instruct a jury that the defendant should be acquitted
if his actions resulted from affirmative government
representations that its acts were lawful.

Citing due process grounds, we reversed on appeal."The
concept of fair play is implicit in our basic notions of what
is meant by due process of law. In this regard, an
individual or corporation should not be held criminally
responsible for activities which could not reasonably have
been anticipated to be illegal based on 70 years of
consistent government interpretation and subsequent
behavior." Id. at 479. Because the defendant had not been
allowed to present the evidence nor had the jury been
instructed on the entrapment by estoppel defense, we
granted a new trial. Id.

The Supreme Court agreed with our statement of the law,
holding "it was error for the District Court to refuse to
permit PICCO to present evidence in support of its claim
that it had been affirmatively misled into believing that the
discharges in question were not a violation of the statute."
United States v. Pennsylvania Indus. Chem. Corp., 411 U.S.
655, 775 (1973). The Court also held that the defense
applied only where there is reliance in fact and that
reliance was reasonable under the circumstances. Id.

Since Pennsylvania Chemical was decided, other courts of
appeals, citing the due process clause, have applied the
entrapment by estoppel defense, although employing
slightly different tests. See, e.g., United States v. Rector, 111
F.3d 503, 506-07 (7th Cir. 1997) (entrapment by estoppel
defense applies where "the one misleading the defendant be
an official of the state; that he actively mislead the
defendant; and that the defendant's reliance be actual
and reasonable in light of the identity of the agent, the
point of law represented, and the substance of the
misrepresentation"; additionally, defendant's reliance must
be in good faith); United States v. Aquino-Chacon, 109 F.3d
936, 938 (4th Cir. 1997) ("A criminal defendant may assert
an entrapment-by-estoppel defense when the government
affirmatively assures him that certain conduct is lawful, the
defendant thereafter engages in the conduct in reasonable
reliance on those assurances, and a criminal prosecution
based upon the conduct ensues."); United States v. Trevino-

                                20



Martinez, 86 F.3d 65, 69 (5th Cir. 1996) ("criminal
defendant may be entitled to raise a defense of entrapment
by estoppel only when a government official or agent
actively assures a defendant that certain conduct is legal
and the defendant reasonably relies on that advice and
continues or initiates the conduct") (internal quotations
omitted), cert. denied, 117 S. Ct. 1109 (1997); United States
v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991) ("The
entrapment by estoppel defense applies when an authorized
government official tells the defendant that certain conduct
is legal and the defendant believes the official."); United
States v. Smith, 940 F.2d 710, 714 (1st Cir. 1991)
("Entrapment by estoppel has been held to apply when an
official assures a defendant that certain conduct is legal,
and the defendant reasonably relies on that advice and
continues or initiates the conduct."). These courts agree
that reasonable reliance means a defendant must establish
that "a person truly desirous of obeying the law would have
accepted the information as true, and would not have been
put on notice to make further inquiries." Trevino-Martinez,
86 F.3d at 69; Brebner, 951 F.2d at 1024.

We hold the entrapment by estoppel defense applies
where the defendant establishes by a preponderance of the
evidence that (1) a government official (2) told the defendant
that certain criminal conduct was legal, (3) the defendant
actually relied on the government official's statements, (4)
and the defendant's reliance was in good faith and
reasonable in light of the identity of the government official,
the point of law represented, and the substance of the
official's statement.13

B.

At trial, defendants sought to raise two entrapment by
estoppel defenses. First, they wished to present testimony
from certain West Indies Transport employees and INS
agents. Defendants claimed the testimony would show that
_________________________________________________________________

13. The defendant's reliance is reasonable and in good faith only where
a person truly desirous of obeying the law would have accepted the
information as true, and would not have been put on notice to make
further inquiries.

                                21



they had fully informed INS that they wanted to employ
foreign nationals admitted to the United States on D-1
crewman visas as dockworkers at their facility, and that
INS had approved of the scheme.

The district court held that "[t]o establish entitlement to
the defense of entrapment by estoppel . . . defendants must
show (1) that after fully informing government officials with
actual or apparent authority of the underlying facts, they
were advised that the alleged conduct was legal; (2) that
they relied on that advice; and (3) that reliance was
reasonable, and given that reliance, prosecution would be
unfair." After holding an in camera hearing to review the
proffered evidence, 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 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-1 foreign crewman visas as permanent
dockhands.14

As the district court correctly observed, defendants
pointed to 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-1 foreign
crewman visas as permanent dockhands. Defendants have
_________________________________________________________________

14. The district court said: "The proffered testimony has led me to
conclude that no comments by a government agency can be construed
as indicating to 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
of the facts which are relevant to obtaining the visas, they could not
have obtained or relied upon any advice indicating that their conduct
with regard to the information provided on the visa applications was
legal. Thus the entrapment by estoppel defense is not available to the
defendants in this case."
                                22



failed to establish a necessary element of the defense --
that government officials told them that their conduct was
lawful. For that reason, the district court correctly excluded
the proffered evidence.

C.

The second entrapment by estoppel claim arises out of
defendants' convictions under the Ocean Dumping Act, 33
U.S.C. SS 1411(a) and 1415(b)(1). Defendants were
convicted for dumping large quantities of scrap metal and
other debris into the ocean under cover of darkness,
without a permit. Coast Guard regulations implementing
the Act to Prevent Pollution from Ships, 33 U.S.C.S 1901-
11, require all vessels 26 feet and longer to carry placards
that warn vessel owners and crews that certain discharges
of ship-generated garbage and sewage are prohibited at
various distances from shore. At trial, defendants argued
that the placards led them to believe that they could legally
dump scrap metal into the ocean so long as the dump site
was at least twelve miles offshore. The district court allowed
them to present their evidence, but did not instruct the jury
on the entrapment by estoppel defense.15

Defendants contend their reasonable reliance on these
signs absolved them of criminal responsibility under the
doctrine of entrapment by estoppel. In the alternative, they
contend the failure to instruct on the entrapment by
estoppel defense violated their due process rights.

Defendants have included in the appellate record
examples of placards similar to those on which they
claimed they relied when they believed their dumping
operations were legal. One example, apparently produced
by the Coast Guard, states that certain types of "non-
plastic trash" may be discharged at sea if the vessel is at
least twelve nautical miles from shore. The placard makes
no representations about scrap metal. It also states, in
clear type: "The information contained on this device is
provided as a guidance to many, but not all, of the
_________________________________________________________________

15. We cannot ascertain from the defendants' brief or appendix whether
the defendants requested such an instruction.

                                23



discharge restrictions which apply under United States law.
There are a number of discharge restrictions which are not
set out in this device."

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

The second example placard submitted by the defendants
was manufactured by "Seachoice Products," apparently
a private ship chandler. The entrapment by estoppel
defense applies only to representations made by
government officials, not to asserted reliance on legal advice
or representations from non-governmental actors.
Representations made by Seachoice Products or any other
private entity as to the legality of ocean dumping cannot
remotely establish a valid entrapment by estoppel defense.
Even if the placard contained representations by the
government, it would not warrant the defense, for the
placard contains no statements regarding the legality of
dumping scrap metal at sea.

No government official ever told West Indies Transport its
dumping operations were legal. Nor does it appear from the
record that West Indies Transport ever asked the
government for advice on this matter. Defendants were
experienced operators in the maritime industry. It was
clearly unreasonable for defendants to rely on a placard
that appears on all types of vessels, including recreational
boats, as legal justification for industrial ocean dumping.

                                  24



VI. Racketeering and Conspiracy

Defendants assert if we reverse their convictions on the
immigration and environmental crimes counts, we must
reverse their convictions for conspiracy and racketeering.
Because we affirm defendants' convictions for visa fraud
and environmental violations, we will affirm these
convictions as well.

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

VII. Sentencing

Defendants raise several sentencing objections.

A.

First, defendants contend that the $500,000 fine imposed
by the district court under the Corrupt Organizations Act,
14 V.I.C. S 605, was excessive. We review the district
court's determination of the amount of a fine for clear error.
United States v. Seale, 20 F.3d 1279, 1284 (3d Cir. 1994).
The defendants concede the fine falls within the range
permitted by law. Nor have defendants pointed to any legal
or factual error underlying the assessment of a fine in this
amount. We see no error here.

B.

Defendants also contend the six level enhancement for
ongoing, continuous, or repetitive discharge of a pollutant
assessed by the district court under U.S.S.G.

                                25



S 2Q1.3(b)(1)(A) should be reduced because the raw human
sewage defendants dumped into navigable waters was "fully
biodegradable." Our review is plenary. United States v.
James, 78 F.3d 851 (3d Cir.), cert. denied, 117 S. Ct. 128
(1996).

Defendants cite no authority for the proposition that
untreated human sewage or fully biodegradable pollution
warrants different treatment under the guidelines than
other pollutants, nor any reasons why we should adopt
such a rule. Because untreated human sewage falls within
the clear meaning of "pollutant" under S 2Q1.3(b)(1)(A), we
will affirm the enhancement.
C.

The district court ordered defendants to pay restitution to
offset the costs of cleaning up their environmental damage.
Restitution is authorized only for violations of Title 18 and
some Title 49 provisions. See 18 U.S.C. S 3663. Defendants
contend the trial court erred by ordering restitution for title
33 offenses. Our review is plenary. United States v.
Maurello, 76 F.3d 1304 (3d Cir. 1996).

Defendants' argument is meritless. Each Title 33 offense
also charged a violation of 18 U.S.C. S 2. Restitution is
authorized for violation of 18 U.S.C. S 2.

D.

Defendants also imply, though they do not clearly argue,
that the amount of restitution was excessive given the
amount of environmental damage caused by their criminal
conduct. We review the appropriateness of a particular
restitution award for abuse of discretion. United States v.
Maurello, 76 F.3d 1304 (3d Cir. 1996). The district court
calculated restitution based on Coast Guard estimates of
the costs required to clean defendants' environmental
damage. The district court also ordered that if the ultimate
cost of the clean-up is lower than the Coast Guard
estimate, any amount over the actual costs shall be
returned to the defendants. This sensible approach appears
appropriate and does not constitute an abuse of discretion.

                                26



VIII.

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

                                27



NYGAARD, Circuit Judge, concurring and dissenting.

I agree with most of the government's argument.
Regarding the Clean Water Act charges, I cannot. It is true,
of course, that "wrecked or discarded equipment" is a listed
"pollutant" under 33 U.S.C. S 1362(6). Webster's, however,
defines "equipment" as "the set of articles or physical
resources serving to equip a person or thing . . . ."
Webster's Ninth New Collegiate Dictionary 421 (1988). I do
not think these parts of the Witconcrete II--which in better
times were an integral part of its hull--can properly be
thought of as part of the ship's equipment. They were not
mere appurtenances, like a loading crane or radar antenna
dumped over the side. I believe they were a part of the ship
itself.

That aside, however, there still was no "point source"
within the meaning of the Act. The Clean Water Act
prohibits discharging pollutants into the navigable waters
of the United States without a permit; however, it regulates
discharges only from "point sources." See 33 U.S.C.
SS 1311(a), 1362(12). Appellants argue that they cannot be
criminally culpable because as a matter of law the
discharges above did not emanate from point sources.
Under 33 U.S.C. S 1362(14), "point source" is defined as
follows:

       "any discernable, confined and discrete conveyance,
       including but not limited to any pipe, ditch, channel,
       tunnel, conduit, well, discrete fissure, container, rolling
       stock, concentrated animal feeding operation, or vessel
       or other floating craft, from which pollutants are or
       may be discharged."

Appellants rely on United States v. Plaza Health
Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993). There, the
defendant owned a medical testing laboratory. He loaded
vials of blood into his car and dumped them into the
Hudson River. He was indicted under the Clean Water Act.
The Court of Appeals, however, ruled that defendant, as an
individual dumping waste directly into a body of water, was
not a "point source" within the meaning of the Act and
reversed his conviction.

                                28



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

The Court next turned to the legislative history of the Act
and found no congressional intent "to impose criminal
liability on an individual for the myriad, random acts of
human waste disposal, for example, a passerby whoflings
a candy wrapper into the Hudson River, or a urinating
swimmer." Id. at 647. Moreover, it found no such expansive
interpretation of the Act in the criminal case law, although
it noted that courts dealing with this issue in the context of
civil penalties have construed the statute more broadly. Id.
at 648. Finally, the Plaza Health Court found no evidence
of any administrative interpretation by the EPA that would
bring the defendant's conduct within the statute. Id. at 649.

Based on these observations, the Court then concluded
"that the term `point source' as applied to a human being
is at best ambiguous." Id. Applying the rule of lenity, it held
that the prosecution must be dismissed. Id.

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

                                29



tug's screws were a point source under the facts of that
case. Id. at 1505-06.

It is evident to me that when Congress used the term
"point source," it had in mind something other than the
propulsion system of every ship that happens to operate in
navigable waters. I would thus conclude that a point source
is the conduit, conveyance or vector by which pollutants
are discharged, and not the screws of a vessel stirring up
old pollutants without discharging anything at all.

I would not follow M.C.C. for another reason: there, the
government sought only civil penalties. Here, we are
reviewing a felony conviction, and must apply different
maxims of statutory construction. Remedial statutes are
typically construed broadly to effectuate the legislative
purpose behind them. Criminal statutes are construed
more narrowly to give defendants fair warning of the
conduct the legislature intended to penalize. I conclude that
Plaza Health fits our case particularly well, and would
adopt its holding.
I would also conclude that the error here was plain. In
United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770
(1993), the Supreme Court clarified the standard that
courts of appeals must employ when deciding whether a
forfeited error warrants reversal under Fed. R. Crim. P.
52(b). First, of course, there must be an error that has not
been knowingly and intentionally waived. Id. at 732-33, 113
S. Ct. at 1777. Second, the error must be plain; that is,
clear or obvious under current law. Id. at 734, 113 S. Ct.
1777. Third, the plain error must have affected substantial
rights, generally by affecting the outcome of the district
court proceedings. Id. at 734, 113 S. Ct. at 1777-78.
Finally, once this threshold has been crossed, the reviewing
court must exercise its discretion, correcting the error if it
"seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings," Id. at 736, 113 S. Ct. at
1779 (quoting United States v. Atkinson, 297 U.S. 157, 160,
56 S. Ct. 391, 392 (1936)), as when the error caused the
conviction of an "actually innocent defendant." Id. at 736,
113 S. Ct. at 1779.

Turning to this case, the Clean Water Act proscribes only
"the discharge of any pollutant," 33 U.S.C.S 1311(a), which

                                30



in turn is defined as "any addition of any pollutant . . .
from any point source . . . ." 33 U.S.C. S 1362(12). It is
evident that the requirement that the discharge emanate
from a point source is an essential element of the crime.

We have held recently that "[t]he omission of an essential
element of an offense from the jury instructions usually will
be obvious error, and therefore ordinarily satisfies the first
and second requirements of Olano." United States v.
Stansfield, 101 F.3d 909, 920 (3d Cir. 1996) (citation
omitted); accord United States v. Zolicoffer, 869 F.2d 771,
774 (3d Cir. 1989) ("the failure to prove one of the essential
elements of a crime is the type of fundamental error which
may be noticed by an appellate court notwithstanding the
defendant's failure to raise it in the district court"). Thus, I
conclude that to the extent appellants' Clean Water Act
convictions rested on the erroneous conclusion that the
discharges came from point sources, the error was "plain."1

I likewise have no difficulty concluding that the error
involved appellants' substantial rights and seriously
undermined the fairness, integrity and reputation of the
judicial proceedings. If the discharges did not emanate from
a point source, an issue to which I shall turn shortly, then
appellants could not, as a matter of law, have been
convicted of Clean Water Act violations, and are"actually
innocent" of the offense. Such a conviction would be a
classic miscarriage of justice. Accordingly, to the extent
there was error, we have the power to correct it and I would
exercise our discretion to do so.

I believe that neither the discharge of the Witconcrete II's
stern nor its protruding rebar qualifies as a point source
within the meaning of the Clean Water Act. The severing of
the stern was not a discharge from a vessel, as required by
_________________________________________________________________

1. My conclusion is not altered by the fact that Plaza Health, a Second
Circuit case, was not binding in this circuit at the time of appellants'
trial. In United States v. Retos, 25 F.3d 1220, 1230 (3d Cir. 1996), we
held that the defendant was entitled, on plain error review, to the
benefit
of a Supreme Court decision handed down after his trial but before his
appeal became final. Here, the law was clear at the time of trial;
although not binding in a formal sense, the holding of Plaza Health has
not been questioned by any other court facing analogous facts.

                                31



33 U.S.C. S 1362(14). Rather, a part of the vessel itself was
discharged. Appellants merely severed a wrecked, useless
portion of the Witconcrete II to extricate a serviceable
forward portion of it. This was a salvage operation, not a
discharge of concrete and rebar through the
instrumentality of the barge.

Likewise, the severed rebar was not discharged through
the "conveyance" of the barge, see 33 U.S.C. S 1362(14), it
was part of the barge itself. Put another way, I think these
two discharges are closer to the intermittent, manual blood
dumping of Plaza Health than they are to the industrial
paradigm of the sewage treatment plant, oil refinery or steel
mill that animates most Clean Water Act cases.2 I would
accordingly reverse appellants' convictions at counts one
and two.

I also disagree with the government's argument
concerning the Rivers and Harbors Act. I rely again on the
language of the statute, 33 U.S.C. S 403, under which it is
prohibited "to build or commence the building of any wharf,
pier . . . or other structures." In sum, these barges were
placed in their current locations by the hurricane, not by
WIT. At most, WIT wired them to the local utilities and built
some walkways to connect them. That may be the "use" of
an existing structure, but it is not the "build[ing]" of a new
one.
In more detail, appellants had a permit to moor four
vessels in Krum Bay as docks. When Hurricane Hugo hit
the Virgin Islands in 1989, it ran some of these vessels
aground and otherwise shifted their positions from those
specified in the permits. After the storm, appellants did not
move these vessels back to their original positions, but
used them where they sat. By November 1992, the permits
had expired. In count three of the superseding indictment,
the government charged appellants with misdemeanor
violations of the Rivers and Harbors Act, 33 U.S.C. S 403,
which proscribes creating piers and wharves without a
_________________________________________________________________

2. The government also argues that the stern and rebar became "wrecked
and discarded equipment," a listed pollutant under S 1362(6), but that
begs the question of whether there was a point source, which I conclude
there was not.

                                32



permit. Appellants did not challenge the sufficiency of the
evidence to support their convictions in the district court,
so again the plain error standard applies.

Under longstanding precedent, prohibiting "build[ing] or
commenc[ing] the building of any wharf, pier .. . or other
structures" contained in section 403 contemplates "the
purposeful creation of something formulated or designed,
construction work in the conventional sense." United States
v. Bigan, 274 F.2d 729, 732 (3d Cir. 1960) (emphasis
added). There, we held that a negligently caused earth slide
resulting in an obstruction to a river channel was not a
violation of section 403. Likewise, we have held that
negligently sinking a vessel in a river channel did not
violate the Act. See United States v. Ohio Barge Lines, Inc.,
607 F.2d 624, 629 (3d Cir. 1979); accord United States v.
Wilson, 235 F.2d 251, 253 (2d Cir. 1956) (a sunken barge
may be an "obstruction," but is not a "structure" in
violation of S 403).

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

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

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