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United States v. Sinskey

ELR Citation: 27 ELR 21468
Nos. 96-3962, -3965, 119 F.3d 712/(8th Cir., 07/11/1997)

The court affirms the convictions of a meat-packing plant manager and engineer for violating the Federal Water Pollution Control Act (FWPCA) by manipulating the testing process for the level of ammonia nitrate in the wastewater disposed of by the plant in order to appear to comply with the plant's national pollutant discharge elimination system (NPDES) permit. Regarding the plant manager's conviction, the court first holds that the trial court properly instructed the jury to find the manager guilty for violations of either the FWPCA or the NPDES permit by showing that he was merely aware of the nature of his acts and that he did not act or fail to act through ignorance, mistake, or accident. Following the generally accepted construction of the word in criminal statutes, the FWPCA's legislative history, and decisions of other appellate courts, the court rules that the word "knowingly" modifies the acts constituting the underlying conduct prohibited by the statute. The court also holds that the trial court did not abuse its discretion by admitting evidence of a wastewater treatment plant (WWTP) assistant manager's records of actual levels of ammonia nitrogen being discharged, nor did it err by not granting the plant manager's motion seeking to limit severely the government's ability to cross-examine an unindicted co-conspirator.

Regarding the conviction of the plant engineer, the court holds that the trial court did not abuse its discretion when it refused to give a jury instruction that the engineer had no affirmative legal duty to report FWPCA violations or to intervene to prevent them, because the government sufficiently proved that the engineer actively encouraged the flow manipulation and selective sampling, thereby affirmatively participating in the misleading monitoring scheme. Nor does the court find reversible error in the government's closing argument, because its statements did not suggest to the jury that it could convict the engineer solely for the failure to report permit violations or the failure to intervene to stop them. Finally, the court holds that the prosecutor did misstate the law concerning the plant manager's and engineer's guilt but the jury instructions sufficiently cured whatever unfair prejudice that statement may have created.

Counsel for Appellee
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Thomas C. Green
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8000