IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-20627

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ATTIQUE AHMAD,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

November 27, 1996

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Atti que Ahmad appeals his conviction of, and sentence for,

criminal violati ons of the Clean Water Act (“CWA”). Concluding

that the district court erred in its instructions to the jury, we

reverse and remand.

I.

This case arises from the discharge of a large quantity of2

gasoline into the sewers of Conroe, Texas, in January 1994. In

1992, Ahmad purchased the “Spin-N-Market No. 12,” a combination

convenience store a nd gas station located at the intersection of

Second and Lewis Streets in Conroe. The Spin-N-Market has two

gasoline pumps, each of which is fed by an 8000-gallon underground

gasoline tank. Some time after Ahmad bought the station, he

discovered that one of the tanks, which held high-octane gasoline,

was leaking. This did not pose an immediate hazard, because the

leak was at the top of the tank; gasoline could not seep out. The

leak did, however, allow water to enter into the tank and

contaminate the gas. Because water is heavier than gas, the water

sank to the bottom of the tank, and because the tank was pumped

from the bottom, Ahmad was unable to sell from it.

In October 1993, Ahmad hired CTT Envi ronmental Services

(“CTT”), a tank testing company, to examine the tank. CTT

determined that it contained approximately 800 gallon s of water,

and the rest mostly gasoline. Jewel McCoy, a CTT employee,

testified that she told Ahmad that the leak could not be repaired

until the tank was completely emptied, which CTT offered to do for

65¢ per gallon plus $65 per hour of labor. After McCoy gave Ahmad

this estimate, he inquired whether he could empty the tank himself.

She replied that it would be dangerous and illega l to do so. On

her testimony, he responded, “Well, if I don’t get caught, what

then?”

On January 25, 1994, Ahmad rented a hand-held motorized water3

pump from a local hardware store, telling a hardware store employee

that he was planning to use it to remove water from his backyard.

Victor Fonseca, however, identified Ahm ad and the pump and

testified that he had seen Ahmad pumping gasoline into the street.

Oscar Alvarez stated that he had seen Ahmad and another person

discharging gasoline into a manhole. Tereso Uribe testified that

he had confronted Ahmad and asked him what was going on, to which

Ahmad responded that he was simply removing the water from the

tank.

In all, 5,220 gallons of fluid were pumped from the leaky

tank, of which approximately 4,690 gallons were gasoline. Some of

the gas-water mixture ran down Lewis Street and some into the

manhole in front of the store.

The gasoline discharged onto Lewis Street went a few hundred

feet along the curb to Third Street, where it entered a storm drain

and the storm sewer system and flowed through a pipe that

eventually empt ies into Possum Creek. When city officials

discovered the next day that there was gasoline in Possum Creek,

several vacuum trucks were required to decontaminat e it. Possum

Creek feeds into the San Jacinto River, which eventually flows into

Lake Houston.

The gasoline that Ahmad discharged into the manhole went a

different route: It flowed through the sanitary sewer system and1 C onroe’s sanitary sewer system is completely independen t of its storm

sewer system; the two serve different purposes, empty into different locations,

and share no common pipes.

4 eventually entered the city sewage treatment plant. 1 On

January 26, employees at the treatment pl ant discovered a 1,000-

gallon pool of gasoline in one of the intake ponds. To avoid

shutting down the plant altogether, they d iverted the pool of

gasoline and all incoming liquid into a 5,000,000-gallon emergency

lagoon.

The plant supervisor ordered that non-essential personnel be

evacuated from the plant and called f irefighters and a hazardous

materials crew to the scene. The Conroe fire department determined

the gasoline was creating a risk of explosion and ordered that two

nearby schools be evacuat ed. Although no one was injured as a

result of the discharge, fire officials t estified at trial that

Ahmad had created a “tremendous explosion hazard” that could have

led to “hundreds, if not thousands, of deaths and injuries” and

millions of dollars of property damage.

By 9:00 a.m. on January 26, investigators had traced the

source of the gasoline back to the manhole directly in front of the

Spin-N-Market. Their suspicions were confirmed when they noticed

a strong odor of gasoline and saw signs of corrosion on the asphalt

surrounding the manhole. The investigators questioned Ahmad, who

at first denied having operated a pump the previous night. Soon,

however, his story changed: He admitted to having used a pump but5

denied having pumped anything from his tanks.

Ahmad was indicted for three violations of the CWA: knowingly

discharging a pollutant from a point source into a navigable water

of the United States without a permit, in violation of 33 U.S.C. §§

1311(a) and 1319(c)(2)(A) (count one); knowingly operating a source

in violation of a pretreatment standard, in violation of 33 U.S.C.

§§ 1317(d) and 1319(c)(2)(A) (count two); and knowingly placing

another person in imminent danger of death or serious bodily injury

by discharging a pollutant, in violation of 33 U.S.C. § 1319(c)(3)

(count three). At trial, Ahmad did not dispute that he had

discharged gasoline from the tank or that eventually it had found

its way to Possum Creek and the sewage treatment plant. Instead,

he contended that his discharge of the gasoline was not “knowing,”

because he had believed he was discharging water.

One of the key pieces of evidence Ahmad attempted to introduce

in support of this theory was the testimony of Mohammed Abassi and

Shahid Latif, who would have to ld the jury that Ahmad was at the

Spin-N-Market only until 7:30 or 8:00 p.m. on January 25, and not

the entire evening as the government contended. The gist of this

was an attempt to show that Ahmad did not knowingly discharge

gasoline himself, but rather only negligently left the pump in the

hands of his employees. The district court found Abassi's and

Latif’s testimony irrelevant and excluded it. The jury found Ahmad

guilty on counts one and two and deadlocked on count three.6 II.

Ahmad argues that the district court improperly instructed the

jury on the mens rea required for coun ts one and two. The

instruction on count one stated in relevant part:

For you to find Mr. Ahmad guilty of this crime, you must

be conv inced that the government has proved each of the

following beyond a reasonable doubt:

(1) That on or about t he date set forth in the

indictment,

(2) the defendant knowingly discharged

(3) a pollutant

(4) from a point source

(5) into the navigable waters of the United States

(6) without a permit to do so.

On count two, the court instructed the jury:

In order to pro ve the defendant guilty of the offense

charged in Count 2 of the indictment, the government must

prove beyond a reasonable doubt each of the following

elements:

(1) That on or about the date set forth in the

indictment

(2) the defendant,

(3) who was the owner or operator of a source,

(4) knowingly operated that source by discharging into

a p ublic sewer system or publicly owned treatment

works

(5) a pollutant that created a fire or explosion hazard7 in that p ublic sewer system or publicly owned

treatment works.

Ahmad contends that the jury should have been instructed that

the statutory mens rea SS knowledge SS

was required as to each element

of the offenses, rather than only with regard to discharge or the

operation of a source. Because Ahmad requested such instruction,

we review the refusal to give it for abuse of discretion.

Under this standard, we will affirm if the charge, viewed in

its entirety, is a correct statement of the law that plainly

instructs jurors on the relevant principles of law. U nited States

v. Allibhai , 939 F.2d 244, 251 (5th Cir. 1991), cert. denied , 502

U.S. 1072 (1992). We will reverse a conviction, on the other hand,

if the instructions do not correctly state the law. U nited States

v. Gray

, 96 F.3d 769, 775 (5th Cir. 19 96); U nited States v.

Townsend

, 31 F.3d 262, 270 (5th Cir. 1994), cert. denied , 115 S.

Ct. 773 (1995). The matter of to which elements of the offenses

the word “knowingly” applies is a question of pure statutory

construction that we review de novo

. U nited States v. Snyder

, 930

F.2d 1090, 1093 (5th Cir.), cert. denied , 502 U.S. 942 (1991).

The language of the CWA is less than pellucid. Title

3 3 U.S.C. § 1319(c)(2)(A) says that “any person who knowingly

violates” any of a number of othe r sections of the CWA commits a

felony. One of the provisions that § 1319(c)(2)(A) makes it

unlawful to violate is § 1311(a), which, when read together with a8

series of definitions in § 1362, prohibits the addition of any

pollutant to navigable waters from a “point source.” That was the

crime charged in count one . Section 1319(c)(2)(A) also

criminalizes violations of § 1317(d), which prohibits the operation

of any “source” in a way that contravenes any effluent standard,

prohibition, or pretreatment standard. That was the crime charged

in count two.

The principal issue is to which elements of the offense the

modifier “knowingly” applies. The matter is complicated somewhat

by the fact that the phrase “knowingly violates” appears in a

different section of the CWA from the language defining the

elements of the offenses. Ahmad argues that within this context,

“knowingly violates” should be read to require him knowingly to

have acted with regard to each elemen t of the offenses. The

government, in contrast, contends that “knowingly violates”

requires it to prove only that Ahmad knew the nature of his acts

and that he performed them intentionally. Particularly at issue is

whether “knowingly” applies to the element of the discharge's being

a pollutant, for Ahmad’s main theory at trial was that he thought

he was discharging water, not gasoline.

The Supreme Court has spoken to this issue in broad terms. In

United States v. X-Citement Video, Inc.

, 115 S. Ct. 464, 467

(1994), the Court read “knowingly ” to apply to each element of a

child pornography offense, notwithstanding its conclusion that2 A ccord United States v. Anderson

, 885 F.2d 1248 (5th Cir. 1989) (en banc).

9 under the “most natural grammatical reading” of the statute it

should apply only to the element of havin g transported, shipped,

received, distribut ed, or reproduced the material at issue. The

Court also reaffirmed the long-held view that “the presumption in

favor of a scienter requirement should apply to each of the

statutory elements which criminalize otherwise innocent conduct.”

Id. at 469.

Although X-Citement Video is the Court ’s most recent

pronouncement on this subject, it is not the first. In S taples v.

United States

, 511 U.S. 600, 619-20 (1994), the Court found that

the statutes criminalizing knowing possession of a machinegun,

26 U.S.C. §§ 5845(a)(6) and 5861(d), require that defendants know

not only that they possess a firearm but that it actually is a

machinegun. Thus, an awareness of the features of the

gun SS specifically, the features that make it an automatic weapon SS is

a necessary element of the offense. 2 More generally, the Court

also made plain that statutory crimes carrying severe penalties are

presumed to require that a defendant know the facts that make his

conduct illegal. Id.

Our own precedents are in the same vein. In United States v.

Baytank (Houston), Inc.

, 934 F.2d 599, 613 (5th Cir. 1991), we

concluded that a conviction for knowing and improper storage of

hazardous wastes under 42 U.S.C. § 6928(d)(2)(A) requires “that the10

defendant know[] factually what he is doing SS storing, what is being

stored, and that what is being stored factually has the potential

for harm to others or the environment, and that he has no permit

. . . .” This is directly analogous to the interpretation of the

C WA that Ahmad urges upon us. Indeed, we find it eminently

sensible that the phrase “knowingly violates” in § 1319(c)(2)(A),

when referring to other provisions that define the elements of the

offenses § 1319 creates, should uniformly require knowledge as to

each of thos e elements rather than only one or two. To hold

otherwise would require an explanation as to why some elements

should be treated d ifferently from others, which neither the

parties nor the caselaw seems able to provide.

In support of its inter pretation of the CWA, the government

cites cases from other circuits. We find these decisions both

inapposite and unpersuasive on the point for which they are cited.

I n United States v. Hopkins

, 53 F.3d 533, 537-41 (2d Cir . 1995),

cert . denied , 116 S. Ct. 773 (1996), the court held that the

government need not d emonstrate that a § 1319(c)(2)(A) defendant

knew his acts were illegal. The illegality of the defendant’s

actions is not an element of the offense, how ever. In U nited

States v. Weitzenhoff

, 35 F.3d 1275 (9th Cir. 1994), cert. denied

,

115 S. Ct. 939 (1995), the court similarly was concerned almost

exclusively with whether the language of the CWA creates a mistakeof-law defense. Both cases are easily distinguishable, for neither11

directly addresses mistake of fact or the statutory construction

issues raised by Ahmad.

The government also protests that CWA violations fall into the

judicially-created exception for “public welfare offenses,” under

which some regulatory crimes have been held not to require a

showing of mens rea

. On its face, the CWA certainly does appear to

implicate public welfare.

As recent cases have emphasized, however, the public welfare

offense exception is narrow. The Staples Court, for example, held

that the statute prohibiting t he possession of machineguns fell

outside the exception, notwithstanding the fact that “[t]ypically,

our cases recognizing such offenses involve statutes that regulate

potentially harmful or injurious items.” S taples

, 511 U.S. at 607

(citation omitted).

Though gasoline is a “potentially harmful or injurious item,”

it is certainly no more so than are machineguns. Rather, Staples

held, the key to the public welfare offense analysis is whether

“dispensing with mens rea wo uld require the defendant to have

knowledge only of traditionally lawful conduct.” I d. at 618. The

CWA o ffenses of which Ahmad was convicted have precisely this

characteristic, for if knowledge is not required as to the nature

of the substance disc harged, one who honestly and reasonably

believes he is discharging water may find himself guilty of a

felony if the substance turns out to be something else.12

The fact that violations of § 1319(c)(2)(A) are felonies

punishable by years in federal prison confirms our view that they

do not fall within the public welfare offense exception. As the

Staples Court noted, public welfare offenses have virtually always

been crimes punishable by relatively light penalties such as fines

or short jail sentences, rather than substantial terms of

imprisonment. I d. at 1802-03. Serious felonies, in contrast,

should not fall within the exception “absent a clear statement from

Congress that mens rea is not required.” I d. at 618. Following

Staples

, we ho ld that the offenses charged in counts one and two

are not public welfare offenses and that the usual presumption of

a mens rea requirement applies. With the exception of purely

jurisdictional elements, the mens rea of knowledge applies to each

element of the crimes.

Finally, the government argues that the instructions,

considered as a whole, adequately conveyed to the jury the message

that Ahmad had to have known that what he was discharging was

gasoline in order for the jury to find him guilty. We disagree.

At best, the jury charge made it uncertain to which elements

“ knowingly” applied. At worst, and considerably more likely, it

indicated that only the element of discharge need be knowing. The

instructions listed each element on a separate line, with the word

“knowingly” present only in the line corresponding to the element

that something was discharged. That the district court included a13

one-sentence summary of each count in which “knowingly” was present

did not cure the error.

The obvious inference for the jury was that knowledge was

required only as to the fact that something was discharged, and not

as to any other fact. In effect, with regard to the other elements

of the crimes, the instructions implied that the requisite mens rea

was strict liability rather than knowledge.

There was at least a reasonable likelihood that the jury

applied the instructions in this way, s ee Victor v. Nebraska

,

511 U.S. 1, 6 (1994), so we conclude that the instructions misled

the jury as to the elements of the offense. Because the charge

effectively withdrew from the jury’s consideration facts that it

should have been permitted to find or not find, this error requires

reversal.

III.

Having found reversible error in the instructions, we need not

consider Ahmad’s other arguments. Given that this case likely will

be tried again, however, we will address, in the interest of

judicial economy, the exclusion of two of Ahmad’s witnesses.

Ahmad argues that the district court improperly excluded the

testimony of two individuals who would have testified that he was

not at the Spin-N-Market from approximately 7:30 or 8:00 p.m. on

January 25 through 12:45 a.m. on January 26. These witnesses,3 It was not; the government did not request such notice.

4 Ahmad ultimately requested, and the court denied, a lesser i ncluded

offense instruction on each of the charged crimes.

14 Mohammed Abassi and Shahid Latif, were intended to support Ahmad’s

theory that he started the pump and left the Spin-N-Market shortly

thereafter, in contrast to the government’s theory that he was

there all evening. They were not intended to show that he had been

completely uninvolved in the incident. Whether Ahmad pumped at

least some of the fluid was not in issue; his counsel conceded at

trial that “he started it [the pump] off.”

The first of these witnesses w as Abassi, to whose testimony

the government objected on the ground that it tended to establish

an alibi. After some confusion over whether the defense was

required to give the government notice of alibi under F ED

. R. C RIM

.

P. 12.1(a), 3 Ahmad’s counsel settled on the argument that Abassi’s

testimony was not being off ered as an alibi, but rather only to

show that Ahmad had left the store during the evening in question.

This, he argued, would support the theory that Ahmad’s violation

had been negligent rather than knowing, in the sense that he

negligently left the store in the care of his untrained employees.

The cou rt responded that because it did not intend to give an

instruction on the lesser included offense of a negligent

violation, Abassi’s testimony was i rrelevant, and excluded it on

that ground. 4

Our examination of the exclusion of evidence is limited to the5 United States v. Browner

, 889 F.2d 549, 550-51 (5th Cir. 1989) (citing

Schmuck v. United States

, 489 U.S. 705, 715-16 & n.8 (1989)), appeal after remand

, 937 F.2d 165 (5th Cir. 1991). S ee also United States v. Harrison

, 55 F.3d 163, 166

(5th Cir. 1995), cert. denied

, 116 S. Ct. 324 (1995); United States v. Deisch

, 20

F.3d 139, 142 (5th Cir. 1994).

15 grounds that were proffered for its admission at trial. S ee, e.g.,

United States v. Mejia

, 844 F.2d 209, 214-15 (5th Cir. 1988).

Given the basis on which Abassi’s testimony was offered, the only

way in which it could have been relevant was to support a theory of

negligent rather than knowing violation. This in turn means that

the testimony was irrelevant unless Ahmad was entitled to an

instru ction on the lesser included offense. If he was not so

entitled, the evidence was properly excluded. We conclude to the

contrary.

In Sansone v. United States

, 380 U.S. 343, 350 (1965), the

Court held that a defendant is entitled to have the jury instructed

on a lesser included offense if there is an evidentiary basis that

would allow a finding of guilt of the lesser offense and “the

charged greater offense requires the jury to find a disputed

factual element which is not required for conviction of the lesserinclude d offense.” T hus the test we apply for whether the

instruction should be given is two-pronged: “(1) [T]he elements of

the lesser offense must be a subset of the elements of the charged

offense; and (2) the evidence at trial must be such that a jury

could rationally find the defendant guilty of the lesser offense,

yet acquit him of the greater.” 516

It is self-evident that Ahmad met the first prong of the test,

for knowing violations of §§ 1311 and 131 7(d) require everything

that negligent violations do, and more. The second prong, however,

is less easily disposed of.

The district court’s instructions and its rulings on Ahmad’s

proposed instructions indicate that it thought “knowingly” modified

only the element that something was discharged. Were this the

correct interpret ation of the CWA, the lesser included offense

instruction would have been correctly denied, because no rational

jury simultaneously could have found both (1) that Ahmad did not

know that he was operating the pump and (2) that he was negligent

with regard to whether he was operating it. Indeed, on the facts

as presented, the idea that Ahmad could have been negligent with

regard to whether a pump was being operated is almost nonsensical.

With regard to the other elements of the crime, however, there

is a vivid and sensible distinc tion between negligence and

knowledge. Having held that the district court’s interpretation of

the CWA was incorrect, we also must conclude that it erred in

refusing to give the lesser included offense instruction. Because

the statutory mens rea applies to multiple elements of the offense,

such as whether what was being discharged was a pollutant, there

was ample evidence to support the lesser violation.

Most of Ahmad’s defense, after all, was built around the idea

that he thought water, rather than gasoline, was being discharged.17

A rational jury could so have found, and at the same time could

have found that he did not actually know that he was pumping gas.

Because the lesser included offense instruction was improperly

denied, Abassi's and Latif’s testimony was improperly excluded as

well. We remand with instruction that, if this case is retried,

the admissibility of this testimony be reconsidered in light of the

foregoing.

IV.

Becaus e we reverse Ahmad’s convictions, we need not address

his sentencing claims. The convictions are REVERSED and the case

REMANDED.