The opinion of the court was delivered by: Korman, District Judge.
On May 26, 1988, a teacher at the Saint John's Lutheran
School took her eighth grade class on a field trip to the
Alice Austin House, a museum on Staten Island that overlooks
Pebble Beach on the Hudson River. While playing on the beach
after touring the museum, the students came upon numerous
glass vials containing what appeared to be human blood lying
in the sand. The New York City Sanitation Department later
collected approximately seventy of these vials scattered along
the shoreline and floating in the incoming tide. The broken
remains of others were found among clusters of rocks in the
shallow water. Tests later revealed that five of the vials
contained blood infected with hepatitis B, an infectious virus
that causes inflammation of the liver and can lead to chronic
illness, including cancer, or to death.
Four months later, a maintenance employee at the Admirals
Walk Condominium Association (Admirals Walk), an apartment
complex bordering the Hudson River in Edgewater, New Jersey,
noticed a plastic bag full of blood vials wedged into the
rocks of the river bulkhead. Edgewater Police Officers
eventually collected at least one hundred vials floating
loosely in the river or packed in containers wedged into the
bulkhead. Fifty-five of these vials were tested for disease
and at least five were found to be infected with hepatitis B.
State investigators traced the vials by the identifying
information on their labels to Plaza Health Laboratories, a
facility that tests blood for disease and other medical
conditions in Brooklyn, New York. The defendant, Geronimo
Villegas, was co-owner of Plaza and lived at the Admirals Walk
complex when the vials were found. When questioned by state
investigators, Mr. Villegas admitted to placing vials in the
bulkhead in June, 1988 to make room in his laboratory for
incoming blood samples. Although he did not admit to hiding
vials there on an earlier occasion, expert evidence on tides
and currents established that the vials found in Staten Island
could also have originated from the Admirals Walk bulkhead.
On January 31, 1991, a jury found Mr. Villegas guilty of
four counts charging violations of the Clean Water Act
(33 U.S.C. § 1319). All four counts are premised on the allegation
that the defendant knowingly discharged pollutants into
navigable waters from a "point source," a term of art
established and defined by the Clean Water Act. See
33 U.S.C. § 1362(14). Two of the four convictions (Counts One and Three)
are premised on the so-called "knowing endangerment" provision
of this statute that imposes substantially enhanced penalties
on polluters who knowingly place others "in imminent danger of
death or serious bodily injury." 33 U.S.C. § 1319(c)(3).
In a post-trial motion pursuant to Fed.R.Crim.P. 29(c), Mr.
Villegas challenges the sufficiency of the evidence supporting
all four convictions. The motion for a judgment of acquittal
is granted with respect to Counts One and Three, but denied as
to Counts Two and Four.*fn1
This case involves difficult questions of statutory
construction that arise primarily from the effort of the
United States Attorney to apply the Clean Water Act to
circumstances that Congress may not have specifically
contemplated when it enacted this statute. Only recently,
Judge Posner aptly described the task of a judge faced with
such a problem:
When a court can figure out what Congress
probably was driving at and how its goal can be
achieved, it is not usurpation — it is
interpretation in a sense that has been orthodox
since Aristotle — for the court to complete (not
enlarge) the statute by reading it to bring about
the end that the legislators would have specified
had they thought about it more clearly or used a
more perspicuous form of words.
Friedrich v. City of Chicago, 888 F.2d 511, 514 (7th Cir.
1989), vacated, ___ U.S. ___, 111 S.Ct. 1383, 113 L.Ed.2d 440
(1991). The interpretive task is the same whether the statute
is criminal or civil in nature.
While it is often said, and sometimes held, that ambiguity
in a criminal statute should be resolved in favor of a
defendant, the Supreme Court has cautioned — even when
construing an arguably ambiguous statute — that such statutes
"`ought not to be construed so strictly as to defeat the
obvious intention of the legislature.'" Huddleston v. United
States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782
(1974) (quoting American Fur Co. v. United States, 2 Pet. 358,
367, 7 L.Ed. 450 (1829)). Indeed, in a criminal prosecution
under the Rivers and Harbors Act of 1899, the Supreme Court
rejected a persuasive argument by Justice Harlan to "[apply] a
seemingly straight-forward statute in a straightforward way".
United States v. Standard Oil Co., 384 U.S. 224, 236, 86 S.Ct.
1427, 1433, 16 L.Ed.2d 492 (1966) (Harlan, J., dissenting).
Instead, the Court broadly construed the statute in a manner
consistent with its purpose. Justice Douglas, writing for the
This case comes to us at a time in the Nation's
history when there is greater concern than ever
over pollution — one of the main threats to our
free-flowing rivers and to our lakes as well. The
crisis that we face in this respect would not, of
course, warrant us in manufacturing offenses where
Congress has not acted nor in stretching statutory
language in a criminal field to meet strange
conditions. But whatever may be said of the rule of
strict construction, it cannot provide a substitute
for common sense, precedent, and legislative
Id. at 225, 86 S.Ct. at 1428. See also United States v.
Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 889, 4
L.Ed.2d 903 (1960). These words provide an appropriate backdrop
to the questions of statutory interpretation at issue here.
The first of these relates to all four counts of the
indictment. The defendant's argument is a simple one. The
Clean Water Act makes it an offense for any "person" to
"discharge" a "pollutant" into "navigable waters" from a
"point source." 33 U.S.C. § 1311(a). The phrase "point source"
is defined in part as "any discernible, confined and discrete
conveyance . . . from which pollutants are or may be
discharged." 33 U.S.C. § 1362(14). This language, the defendant
argues, demonstrates that a "point source" is the structure
through which pollutants are discharged into navigable waters
by persons. In this case, however, the defendant deposited the
vials into the Hudson River without using a conveyance of any
kind. Accordingly, he argues, he cannot be found guilty of
discharging pollutants from a "point source." While this
argument is not without some appeal, common sense, precedent
and legislative history, suggest that in certain circumstances,
a person can be a "point source."
Congress has defined a "point source" as "any discernible,
confined and discrete conveyance, including, but not limited
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." 33 U.S.C. § 1362(14).
This language is emphatically inclusive, as reflected in the
words "any," "discernible" and "not limited to." Moreover, use
of such a highly general term as "conveyance" establishes that
Congress had an expansive vision of what would constitute a
point source. The word conveyance is defined simply ...