### 1997 D e c i sion s O p inion s of the U nit e d

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. e du/thir dc ir c uit_1997/241Filed 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.,

App ellant 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 f or 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

Off ice of United States Attorney

1108 King Street, Suite 201Christiansted, St. Croix

U.S. Virgin Islands 00820

Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Defendants West Indies Transport, I nc., 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) pro vides, 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 misdemea nors 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 prov ides, 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 fac ility, 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 so me 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 cour ts 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

t hem 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, aferro

- concrete barge, was he avily 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 ille gal 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 obtain ed 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 defe ndants

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 ofevery 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 stat ement 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 state ment

-- 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 pun ishable 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 revie w; 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 ob ject 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 Herma n 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 unconstitutiona l, 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 rig hts. If all three conditions are

met, an appellate court may then exercise its discretion tonotice 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 1 8 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 inv olving

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 th is 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 statement s 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

-- d efendants'

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 dis trict

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" not ed 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 bracke ts 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 "overwhelm ing,"

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 concludi ng 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 wasoverwhelming and uncontroverted. On appeal, defendant s

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 instigatio n 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 willfull y 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 falsestatements 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 prin cipal 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 convict ed 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 ins urance 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

in termediary (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 C ausey, 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 t han 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 capaci ty . . . . 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 us es an innocent intermediary to present false

10claims 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 operat ions 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 pol lutants 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 pollutan t' 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 o r 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, ro lling 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

pa int 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 a nd 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 carri ed 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 guidan ce 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 statut e'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, incinera tor 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 andmunicipal sources of pollutants, as is evident from a

perusal of its many sections . . . . The legislative

history o f 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 possibl e 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"

d efinition 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 unli kely 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 barg e onwhich 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

mea ns 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 tha t, 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 o f 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 cou ld

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."

Sectio n 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 m oored 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 innoce nt 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 River s 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 t he 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 pro hibition 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 tr ial, 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 IndiesTransport permanently attached these barge s 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 a nd 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 navigatio n. 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

interp ret 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

constitut e "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 4 03 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 errormust be "prejudicial"

-- "It must have affected the outcome

of the district court proceedings." Olano, 507 U.S. at 73 4;

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. We st 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

disrupte d 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 Li nes, 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 line s

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' mo tive

and intent to commit visa fraud.

After the conclusion of Allen's testimony defendants

asked for a mistrial, citing possible prejudice among unionworkers on the jury against someone who employed alien

labor. Defendants also asked the court to q uestion 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 ju rors

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.

Unite d 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 o f

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 violatio ns 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

- incriminat ion. 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 s anction 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 t he 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 g overnment'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 acti ons 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, a n

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 Dis trict 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 misleadin g 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 themisrepresenta tion"; 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 c ertain 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

Mar tinez, 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 rel ies 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 authoriz ed

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 d efendant 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 w as 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 reasona ble and in good faith only wherea 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 informe d 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 advic e; 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 t he 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 tha t 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 o f 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 dist rict 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 pr ovided 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 o fficials 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

t hat 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 en trapment 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 entrap ment 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 restri ctions

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 qu antities 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 priva te 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 a ny 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 n o 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 indust rial 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 theseconvictions as well.

Defendants also contend their racketeering convictions

must be overturned because none of the predicate a cts 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, th e 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 Cod e. 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 defen dants 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.

Ja mes, 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, n or 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

of fset 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 offens es. 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 o f 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 argumen t.

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 s erving 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 bettertimes 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 limit ed 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 criminalliability 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 a pplied 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

contract or 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 i n 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 vess el 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 statut ory 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 t hat

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 th at 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 the refore 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 o f 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 fairnes s, 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 beenconvicted of Clean Water Act violations, an d 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 th e 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

th e "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 s ewage 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 hurrica ne, 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 b ack 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 unde r 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 i n 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 cr eation 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 r iver 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.

Appell ants, 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

33