United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3962

___________ United States of America, *
* Appellee, * Appeals from the United States
* District Court for the District
v. * of South Dakota.
* Timothy J. Sinskey, *
* Appellant. *

___________ No. 96-3965

___________ United States of America, *
* Appellee, *
*
v. *
* Wayne Kumm, *
* Appellant. *The Honorable Lawrence L. Piersol, United States District Judge for th e District 1 of South Dakota.
-2- ___________ Submitted: May 20, 1997 Filed: July 11, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRI S SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.

The de fendants appeal their convictions for criminal violations of the Clea n Water Act. We affirm the judgments of the trial court. 1

I. In the early 199 0s, Timothy Sinskey and Wayne Kumm were, respectively, the plant manager and plant engineer at John Morrell & Co. ("Morrell"), a large meat-packing plant in Sioux Falls, South Dakota. The meat-packing process created

a large amount of wastewater, some of which Morrell piped to a municipal treatment plant and the rest of which it treated at its own wastewater treatment plant ("WWTP"). After treating wastewater at the WWTP, Morrel l would discharge it into the Big Sioux River.

One of the WWTP's functions was to reduce the amount of ammonia nitrogen in the wastewater dis charged into the river, and the Environmental Protection Agency ("EPA") required Morrell to limit that amount to levels specified in a permit issue d under the Clean Water Act ("CWA"), see 33 U.S.C. §§ 1251-1387. As well as-3-

specifying the acceptable levels of a mmonia nitrogen, the permit also required Morrell to perform weekly a seri es of tests to monitor the amounts of ammonia nitrogen in the discha rged water and to file monthly with the EPA a set of reports concerning thos e results.
In the spring of 1991, Morrell doubled the number of hogs that it sla ughtered and process ed at the Sioux Falls plant. The resulting increase in wastewater caused th e level of ammonia nitrate in the discharged water to be above that allowed by the CWA permit. Ron Greenwood and Barry Milbauer, the manager and assistant manager , respecti vely, of the WWTP, manipulated the testing process in two ways so tha t Morrell would appear not to violate its permit . In the first technique, which the parties frequently refer to as "flow manipulation" or the "flow g ame," Morrell would discharge extremely low levels of water (and thus low levels of ammonia nitrogen) early in the week, when Greenwood and Milbauer would perform the required tests. A fter the tests had been performed, Morrell w ould discharge an exceedingly high level of water (and high levels of ammonia nitrogen) later in the week. The tests would therefore no t accurately reflect the overall levels of ammonia nitrogen in the discharged water. I n addition to manipula

ting the flow, Greenwood and Milbauer also engaged in what the parties call "selective sampling," that is, they performed more than the number of tests required by the EPA but reported only t he tests showing acceptable levels of ammonia ni trogen. When manipulating the flow and selective sampling failed to yield th e requ ired number of tests showing acceptable levels of ammonia nitrogen, the tw o simply falsified the test results and the monthly EPA reports, which Sinske y then signed and sent t o the EPA. Morrell submitted false reports for every month but one fro m August, 1991, to December, 1992. As a result of their participation in these activities, Sinskey and Kumm wer e charged wi th a variety of CWA violations. After a three-week trial, a jury foun d Sinskey gu ilty of eleven of the thirty counts with which he was charged, and Kum m guilty of one of the seventeen counts with which he was charged. In particular, the jury-4-

found both Sinske y and Kumm guilty of knowingly rendering inaccurate a monitoring method required to be maintained under the CWA, in violation of 33 U.S.C

. § 1319(c)(4), and Sinskey guilty of knowingly discharging a pollutant into waters of the United States in amounts exceeding CWA permit limitations, in violation of 33 U.S.C. § 1319(c)(2)(A); see also 33 U.S.C. § 1311(a). Each appeals his conviction.

II. Sinskey first challenges the jury instructions that the tri al court gave with respect to 33 U.S.C. § 1319(c)(2)(A), which, among other things, punishes anyone wh o "knowingly violates" § 1311 or a condition or limitation contained in a permit tha t impleme nts § 1311. That section of the CWA prohibits the discharge of pollutant s
ex ceptin compliance with, among other provisions, § 1342, which establishes th e National Pollutant Discharge Elimination Sy stem ("NPDES"). The NPDES authorizes the EPA to issue permits that allow the discharge of certain pollutants within specified limitations and

with specified reporting and monitoring conditions. As applied in this
case, § 1319(c)(2)(A) therefore prohibits the discharge of pollutants in amount s exceeding the limitations specified in an NPDES permit.
The trial court gave an instruction, which it incorpo rated into several substantive charges, that in order for the jury to find Sinskey guilty of acting "kno wingly," the proof had t o show that he was "aware of the nature of his acts, perform[ed] the m in tentionally, and [did] not act or fail to act through ignorance, mistake, or accident." Th e instructions also told the jury that the government was not required to prove that Sinskey knew that his acts violated the CWA or permits i ssued under that act. Sinskey contest s these instructions as applied to 33 U.S.C. § 1319(c)(2)(A), arguing tha t becau se the adverb "knowingly" immediately precedes the verb "violates," th e governme nt must prove that he knew that his conduct violated either the CWA or the NPDES permit. We disagree.-5-

Althou gh our court has not yet decided whether 33 U.S.C. § 1319(c)(2)(A ) requi res the government to prove that a defendant knew that he or she was violatin g either the CWA or the relevant NPDES permit when he or she acted, we are guided in answering this question by the generally accepted construction of the word "knowingly" in criminal statutes, by the CWA's leg islative history, and by the decisions of the other courts of ap peals that have addressed this issue. In construing other statutes wit h similar lan guage and structure, that is, statutes in which one provision punishes th e "know ing violation" of another provision that defines the illegal conduct, we hav e repeatedly held that the word "knowingly" modifies the ac ts constituting the underlying conduct. S ee United States v. Farrell , 69 F.3d 891, 893 (8th Cir. 1995), cert. denied , 116 S. Ct. 1283 (1996), and United States v. Hern , 926 F.2d 764, 766-68 (8th Cir

. 1991).

In Farrell , 69 F.3d at 892-93, fo r example, we discussed 18 U.S.C. § 924(a)(2), which penalizes anyone who "knowingly v iolates" § 922(o)(1), which in turn prohibits the transfer

or possession of a machine gun. In construing the word "knowingly," we held that it applied only to the conduct proscribed in § 922(o)(1), that is, the act o f transferring or possessing a machine g un, and not to the illegal nature of those actions. A conviction under § 924(a)(2) therefore did not require proof that the defendant knew that his actions violated the law. We see no reason to depart from that commonly accepted construction in thi s case, and we therefore believe that in 33 U.S.C. § 1319(c)(2)(A), the word " knowingly" applies to the underlying conduct prohibited by the statute. Untangling the statutor y provisions discussed above in order to define precisely the relevan t underlying conduct, however, is not a little difficult. At first glance, the conduct in question might appear to be violating a permit limitation, which would imply that § 1319(c)(2)(A) require s pr oof that the defendant knew of the permit limitation and knew that he or she wa s violating it. To violate a permit limitation, however, one must engage in the conduct prohibited by that limitation. The permit is, in essence, another layer of regulation in-6-

the nature of a law, in this case, a law that applies only to Morrell. We therefor e believe that the und erlying conduct of which Sinskey must have had knowledge is the conduct th at is prohibited by the permit, for example, that Morrell's discharges o f ammonia nitrates were higher than one part per million in the summer of 1992. Given this interpretation of the statute, the government was no t required to prove that Sinskey knew that his acts violated either the CWA or the NPDES permit, but merely that he was aware of the conduct that resulted in the permit's violation.
This interpretation comports not only with our legal system's gen eral recognition that ignorance of the la

w is no excuse, see Cheek v. United States , 498 U.S. 192, 199 (19 91), but also with Supreme Court interpretations of statutes containing similar language and structure. In United States v. International Minerals & Chemical Corp. , 402 U .S. 558 (1971), for example, the Court analyzed a statute that punished anyone who "knowingly violate[d]" certain regulations pertaining to the interstate shipment of hazardous materials. In holding that a conviction under the statute at issue did no t require knowl edge of the pertinent law, the Court reasoned that the statute's language was merely a s horthand designation for punishing anyone who knowingly committed the specific acts or omissions contemplated by the regulations at issue, and that th e statute therefore required knowled ge of the material facts but not the relevant law. Id. at 562-63. The Court also focused on the nature of the regulatory scheme at issue , noting that where "dangerous or ... obnoxious waste materials" are involved, anyone dealing w ith such materials "must be presumed" to be aware of the existence of th e regulations. Id. at 56 5. Requiring knowledge only of the underlying actions, and not of the law, would therefore raise no substantial due process concerns. Id. at 564-65. Such reasoning applies with equ al force, we believe, to the CWA, which regulates the discharge into the public's water of such "obnoxious waste mater ials" as the byproducts of slaughtered animals.

The a ct's legislative history, moreover, supports our view of the mens re a required for conviction under 33 U.S.C. § 1 319(c)(2)(A). In 1987, Congress amended-7-

the act, in part to increase deterrence by strengthening the criminal sanctions for it s violation. See , e.g. , H.R. Conf. Rep. No. 99-1004 at 138 (1986) and S. Re p. No. 99-50 at29-30 (1985). To that end, Congress changed the term "willfully" to "knowingly" in that section of the act dealing with inten tional violations. See 133 Cong. Rec. H131 (daily ed. Jan. 7, 1987) (statement of Rep. J. Howard), reprin ted in 1987 U.S.C.C.A.N. 5, 28, and 33 U.S.C. § 1319, historical and statutory notes, 1987 amendment, at 197 (West supp. 1997). Although Congress did not explicitly discuss this change, it may log ically be viewed as an effort to reduce the mens rea necessary for a conviction, as th e word "willfully" generally connotes acting with the knowledge that one's conduct violates the law, while the word "knowingly" normally means a cting with an awareness of one's actions. Compare Cheek , 498 U.S. at 201, with International Minerals , 402 U.S. at 562-63. See also Babbitt v. S weet Home Chapter of Communities , 115 S. Ct. 2407, 2412 n.9 (1995) (discuss ing change in Endangered Species Act from "willfully" to "knowingly"), and Hern , 926 F.2d at 767.

Our confidence in this interpretation is increased by decisions of the only other appellate courts to analyze the precise issue presented here. See United States v

. Hopkins , 53 F.3d 533, 541 (2d Cir. 1995), cert. denied , 116 S. Ct. 773 (1996), an d United Sta tes v. Weitzenhoff, 35 F.3d 1275, 1283-86 (9th Cir. 1993), cert. denied , 115 S . Ct. 939 (1995). Both cases held that 33 U.S.C. § 1319(c)(2)(A) does no t require proof that the defendant knew that his or her acts violated the CWA or th e NPDES permits at issue. Contrary to the defendants' assertions, moreover, United States v. Ahmad , 101 F.3d 386 (5th Cir. 1996), is inapposite. In Ahmad , 101 F.3 d at 388, a convenience store owner pumped out

an underground gasoline storage tank into which some water had leaked, discharging gasoline into city sewer systems and nearby creeks in violation of 33 U. S.C. § 1319(c)(2)(A). At trial, the defendant asserted that he thought that he was discharging water, and that the statute's requirement that he ac t knowingly required that the government prove not only that he knew that he was discharging something,-8-

but also that he knew that he was discharging gasoline. Id. at 390. The Fifth Circuit agreed, holding that a defendant does not violate the statute unless he or she act s kno wingly with regard to each element of an offense. Id. at 391. Ahmad , however , involved a classic mistake-of-fact defense, and is not applicable to a mistake-of-la w defense such as that asserted by Sinskey and Kumm. Indeed, the Fifth Circuit noted

as much, distinguishing Hopkins , 53 F.3d at 533, and Weitzenhoff , 35 F.3d at 1275 , on the grounds that those decisions involved a mistake-of-law defense. See Ahmad , 101 F.3d at 390-91.

Si nskey, joined by Kumm, also challenges the trial court's instructions with respect to 33 U.S.C. § 1319(c)(4), arguing that the government should have bee n required to prove that they knew that their acts were illegal. This argument has even le ss force with respect to § 1319(c)(4) -- which penalizes a person who "knowingl y falsifies, tampers with, or renders inaccurate any mo nitoring device or method required to be m aintained" by the CWA -- than it does with respect to § 1319(c)(2)(A). I n § 1319(c)(4), the adverb "knowingly" precedes and explicitly modifies the verbs that describe the activities that violate the act.

We have r epeatedly held that, in other statutes with similar language, the word "knowingl y" refers only to knowledge of the relevant activities (in this case, th e defendants' knowledge that they were rendering the monitoring methods inaccurate by aiding and abetting in the flow games and selective sampling). See , e.g. , Unite d States v. Hopkins , 53 F.3d at 541; United St ates v. Enochs , 857 F.2d 491, 492-94 (8th Cir. 1988), cert. denied , 490 U.S. 1022 (1989); and United States v. Udofot , 711 F.2d 831, 837 (8th Cir. 1983), cert. denied , 464 U.S. 896 (1983). Based on this wel l established constructional convention, and the equally well known principle that a term that a ppears in a statute more than once should ordinarily be construed the same way each time, Ratzlaf v. United States , 510 U.S. 135, 143 (1994), we see no re ason to read

a requir ement that a defendant know of the illegal nature of his or her acts into 3 3 U.S.C. § 1 319(c)(4). Contrary to the defendants' assertions, moreover, requiring the-9-

government to prove only that the defendant acted with awareness of his or her conduct does not render § 1319(c)(4) a strict liability offense.
Sinskey also contends that the trial court abused its discretion by admitting into evidenc e Milbauer's "secret logs" -- that is, notes that Milbauer took in which h e recorde d the actual levels of ammonia nitrogen being discharged -- because the log s constitu ted expert scientific evidence that did not meet the threshold standards o f

accur acy and reliability. See Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., In c. , 509 U.S. 579, 594 (1993). Sinskey appears not to contest the fact that, in th e abstract, the means of testing ammonia nitrogen levels that Milbauer used, an ammonia nitrate probe, was sufficiently accurate and reliable. Sinskey instead attacks th e manner in which Milbauer used t he probe, arguing that certain deviations by Milbauer from t he standard protocol prescribed for using the probe rendered his results s o unreliable as to negate, in this case, the probe's generally accepted accuracy an d reliability. See , e.g. , United States v. Johnson , 56 F.3d 947, 952-53 (8th Cir. 1995), and United States v. Martinez , 3 F.3d 1191, 1198 (8th Cir. 1993), cert. denied , 510 U.S. 1062 (1994).

After a careful review of the trial court's two-day hearing on this issue and the

re levant testimony at trial, we find no error. Although Sinskey identified severa l practices of Milbauer that deviated from the sta ndard protocol for use of the probe, the government

produced testimony tending to show that these deviations did not affect the relia bility of Milbauer's test results. Therefore, admitting the secret logs an d allowing the jury to consider these deviations when deciding what weight to give the logs was, we believe, well within the trial court's discretion. We simil arly find no error in the trial court's decision not to grant Sinskey' s motion s eeking to limit severely the government's ability to cross-examine a n uni ndicted co-conspirator. Although a trial court must strike a balance between a witness's fifth amendment privilege and the defendant's s ixth amendment right to cross--10-

exami nation, see , e.g. , United States v. Rubin , 836 F.2d 1096, 1099-1100 (8th Cir

. 1988), th ere is no indication in the present case that the trial court failed properly t o strike such a balance. Although the trial court refused to grant the requested motion, it ind icated that it would be willing to consider other restrictions on the cross

examination 's scope. After the defense suggested none, the trial court ruled that i t would allow the witness, after direct examination, to invoke his fifth amendmen t priv ilege outside the presence of the jury. We believe that this ruling gave Sinske y everythi ng that he requested, and more. The trial court therefore did not err i n balancing the defendant's and the witness's rights in the manner that it chose.

III. Kumm attacks his conviction for violating 33 U.S.C. § 1319(c)(4) on a number of grounds, first among them the sufficiency of the government's evidence. Kum m claims that the government's evidence established only that he failed to stop others from rend ering inaccurate Morrell's monitoring methods, not that he affirmativel y par ticipated in the deceit either directly or by aiding and abetting those who did. As Kumm correctly argues, to convict him of aiding and abetting the monitoring scheme, the government must prove more than his mere a ssociation with, and knowledge of the activit ies of, Greenwood, Milbauer, and Sinskey. United States v. Nunn , 940 F.2 d 1128, 1131 (8th Cir. 1991). Instead, the government must show that Kumm associated hims elf with the misleading monitoring scheme, participated in it "as something [he ] wished to bring about," and acted in such a way as to ens ure its success. United States v. Hernandez , 98 6 F.2d 234, 238 (8th Cir. 1993), quoting United States v. Posters 'N' Things, Ltd. , 969 F.2d 652, 661 (8th Cir. 1992), aff'd , 511 U.S. 513 (1994)

. Encouraging the perpetrators o f a crime in their efforts to effect that crime is therefore aiding and abetting the commission of a crime. See Hernandez , 986 F.2d at 238, and Nunn , 940 F.2d at 1131.

After a careful review of the record in the light most favorable to the jury' s verdict, see United States v. Baker , 98 F.3d 330, 338 (8th Cir. 1996), cert. denied , 117-11-

S. C t. 1456 (1997), we believe that the evidence against Kumm, although hardl y overwhelming, is not so weak tha t no reasonable juror could have convicted him. See id. In particular, we believe that the evidence supports a verdict that he aided an d abetted the misleading monitoring scheme by encouraging Greenwood to rende r Morrell' s monitoring methods inaccurate and by discouraging him from complainin g about it to others at the WWTP.

Kumm once reassure d a worried Greenwood, for example, "not to worry about [the violations] because if we did get caught, Morrell's had enough lawyers an d lobbyists that it wouldn't be a problem." Although Kumm knew of Green wood's illegal acti vities, moreover, he praised Greenwood on employee evaluations and eve n recommended that Green wood receive a raise. When Greenwood began complaining about t he violations and campaigning for physical improvements at the WWTP t o decrease future violations, Kumm silenced him. At a meeting of t he plant's mechanical department , for example, Kumm told Greenwood that "[n]ow is not the time or th e place to discuss those matters" when Greenwood raised the subject of the violations. Lastly, although Greenwood would "rant and rave" to Kumm several times a wee k about the permit violations and about g etting the WWTP fixed, Kumm responded only by s ubmitting to Morrell headquarters routine requests for future improvements tha t were similar to previous requests that had already been denied. We believe that these affirmative acts constitute sufficient evidence to support Kumm's conviction.

Kumm challenges the jury instructions on several grounds. In addition to th e issue discussed above, Kumm asserts that the essence of th e government's case was his failure to report the violations and to intervene to stop their continuation, that he had

no such duties, and that the trial court therefore abused its discretion when it refused to give an instruction to the jury that Kumm had no affirmative legal duty to repor t violations of the CWA permits or to intervene to prevent them. Though such a n instruction would ce rtainly have been appropriate, after a careful review of the record-12-

we see n o abuse of discretion in the trial court's decision not to give the requeste d instruction, for the following reasons.
Contrary to Kumm's assertions, the government's case did not focus solely o n Kumm's role as a supervisor and his failure to report the violations or to intervene. We note at the outset of this discussion that Kumm was neither char ged with, nor convicted of, a fa ilure to report CWA permit violations. Instead, he was charged with, an d convicted of, "render[ing] inaccurate" the monitor ing methods required under Morrell's CWA permit. See 33 U.S.C. § 1319(c)(4). Kumm a rgues, however, that the testimony of several witnesses and certain portions of the government's closing argument s o emphasized his supervisory status and his inaction, that they led the jury to convict him for being an innocent bystander who merely failed to report the violations or t o intervene. After a careful review of the statements at issue, in their full context, w e disagree.

As we indicated above, the government sufficiently proved that Kumm actively

en couraged the flow manipulation and selective sampling, thereby affirmativel y particip ating in the misleading monitoring scheme. Presenting evidence that Kum m
was a su pervisor, that is, that he was in a position capable of giving rewards an d

rea ssurances, was but a necessary part of showing how he was able to encourag e Greenwood. Likewise, testimony that Kumm neither reported nor interfered with the permit violations was consistent with the government's claim that Kumm wa s
en couraging illegal activity. Contrary to Kumm's assertions, this evidence did no t merely te nd to show that Kumm violated some supposed duty to report permi t violations; it tended instead to prove acts of concealment on Kumm's part that allowed the selective sampling scheme effectively to camouflage Morrell's violations.
Nor do we find reversible error in the p rosecutor's closing argument. As Kumm points out, the prose cutor did, at times, argue that Sinskey and Kumm had "a duty" or "an obligation" to "protect the river" or "make sure that the plant operated in-13-

comp liance with the law." In the context of the full closing argument, however, w e believe that these statements refer not to legal dut ies, but rather to the duties of his job. And while the prosecutor did refer to what Kum m did not do, such as not reporting the violations and not interfering with them, these references were always, as a rhetorical device, j uxtaposed against what Kumm did do. In context, we do not believe tha t these statements suggested to the jury th at it could convict Kumm solely for the failure to report permit violations or the failure to intervene to stop them.
We do, however, believe that the p rosecutor misstated the law when he told the jury, with respect to the violation of 33 U.S.C. § 1319(c)(4), that if "these tw o gentlemen knew that the s elective sampling and the flow game was going on, they are guilty." We note, though, not only that this statemen t was not objected to either during

or after th e argument in question, but also that we believe that the jury instruction s sufficiently cured whatever unfair prejudic e this statement may have created. The trial court told the jury that it had to "follow the law as stated in these instructions," that it had to "foll ow my instructions on the law, even if you thought the law was different," and tha t "[i]t would be a violation of your sworn duty to base your verdict upon an y rules of law other than the ones given you in these instructions." The instruction s relevant to § 1319(c)(4) defined accurately the elements of a violation of it and th e elements of aiding and abetting, including the necessity th at a defendant act knowingly. The aiding and abetting instructions, moreover, correctly told the jury that a defendant's

mere pre sence at a crime scene or his mere association with the perpetrators of a violation was insufficient to prove that the defendant a ided and abetted the commission of an offense.

IV. For the foregoing reasons, we affirm the convictions in all respects.-14-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.