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United States v. Ellis

ELR Citation: 29 ELR 20621
Nos. No. 98-4150, 172 F.3d 864/48 ERC 1168/(4th Cir., 02/22/1999)

The court upholds the Clean Air Act and Federal Water Pollution Control Act (FWPCA) convictions of a shipbreaking business owner for violating asbestos removal and disposal requirements and for dumping debris and petroleum into the Baltimore Harbor without a permit. The court first holds that the district court jury instructions, which constructively amended three counts of the indictment, did not impermissibly broaden the basis of the owner's conviction in violation of the Grand Jury Clause of the Fifth Amendment. Even if the instructions were erroneous, the error in the instructions was invited by the defense and cannot form the basis for relief. In addition, the court refuses to adopt an exception to the invited error doctrine. The court then holds that the owner's counsel, which participated in the constructive amendment of the indictment, was not ineffective. The record does not conclusively demonstrate that the counsel's representation at the end of trial was below the threshold of reasonableness.

The court also rejects the owner's argument that the government committed reversible prosecutorial misconduct during its closing argument when it made 12 distinct incorrect or misleading statements of fact or law relating to the friability of asbestos aboard two of the ships at issue. The district court's instructions to the jury that statements made during closing arguments were not in evidence mitigated any prejudicial effect the government's alleged misstatements of the evidence had on the owner.

Next, the court holds that although the district court's jury instructions failed to explicate the mens rea requirement with respect to the FWPCA indictment, the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. The jury should have been given more specific instructions indicating that knowledge was the appropriate mens rea requirement for all elements of the crime. Moreover, the error was plain. And because the erroneous jury instructions prevented the jury from making a factual finding on the mens rea required for each element of the crime, prejudice is assumed. However, no miscarriage of justice occurred because the evidence of the owner's knowledge was simply overwhelming.

The court then holds that the evidence presented at trial was sufficient to support a conviction for making a false statement regarding asbestos abatement that occurred on one of the ships prior to its demolition. The government's evidence was substantial.

Counsel for Plaintiff
William W. Hamel, Ass't U.S. Attorney
U.S. Attorney's Office
604 U.S. CtHse.
101 W. Lombard St., Baltimore MD 21201
(410) 962-4822

Counsel for Defendants
Larry A. Nathans
Bennett & Nathans
210 E. Lexington St., Ste. 301, Baltimore MD 21202
(410) 783-0272

Before Luttig, Williams, and Traxler, JJ.