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United States v. Fern

ELR Citation: 27 ELR 21526
Nos. 95-4099, -4596, 117 F.3d 1298/(11th Cir., 07/24/1997)

The court holds that the government's failure to state expressly in an indictment of an asbestos remover that materiality is an element of a Clean Air Act (CAA) §113 false statement offense and the district court's subsequent failure to submit the question of materiality to the jury constitute harmless error. The court first holds that the Double Jeopardy Clause does not bar defendant's retrial because the need for defendant's motion for mistrial did not arise because of goading on the government's part. The court then rejects defendant's contention that the government's failure to allege "willfulness" in the three false statement counts makes the indictment deficient. The plain language of CAA §113 does not require a showing of willfulness, and the court declines defendant's invitation to read willfulness into the statute via the language of CAA §113(h). The court also determines that the omission of a reference to materiality in the indictment is harmless. The indictment charged defendant with making a false statement and specifically referred to CAA §113(c)(2). The only provision within §113(c)(2) that could even potentially concern false statements is subsection (A). Because defendant could not read §113(c)(2) and conclude that he was charged with a violation of anything but §113(c)(2)(A), the court rejects the claim that the indictment failed to notify defendant of the charges that he had to defend. The court next holds that the district court's failure to submit the issue of materiality to the jury did not prejudice defendant and was harmless error. The materiality issue turns on whether the identified false statements were capable of influencing Metropolitan Dade County Department of Environmental Resources Management (DERM) officials' exercise of their regulatory oversight responsibilities. The trial testimony of DERM officials leaves no doubt that the false statements in this case were material. The testimony was uncontroverted, and no jury could conclude that defendant's actions were not material.

Counsel for Plaintiff
Kendall Coffey
Law Offices of Kendall Coffey
Office in the Grove
2699 S. Bayshore Dr., 10th Fl., Miami FL 33133
(305) 860-8226

Counsel for Defendant
Benedict P. Kuehne
Sale & Kuehne
NationsBank Tower
100 SE Second St., Ste. 3550, Miami FL 33131
(305) 789-5989

Before Cox and Meskill,* JJ