United States District Court, Eastern District of New York
December 13, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
GERONIMO VILLEGAS, DEFENDANT.
The opinion of the court was delivered by: Korman, District Judge.
MEMORANDUM AND ORDER
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 as "a means
or way of conveying." Webster's New International Dictionary
499 (3d ed.
1981). Any conduit or container of waste falls directly within
The intent of Congress in using the phrase "point source"
may be even more clearly ascertained from the distinction made
in the statute, and emphasized in the legislative history and
the case law, between "point sources" and "non-point sources."
See 33 U.S.C. § 1314(f); S.Rep. No. 92-414, 92nd Cong., 1st
Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3705-06,
3718-19, 3744. By non-point source pollution, Congress was
referring to "disparate runoff caused primarily by rainfall
around activities that employ or cause pollutants." United
States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.
1979). Indeed, Congress specifically excluded from the
definition of point source "return flows from irrigated
agriculture." 33 U.S.C. § 1362(14). Thus, "[t]he concept of
point source was developed to distinguish pollution resulting
from simple erosion over the surface of the ground from
pollution that has been collected or comes from a confined
system." Friends of Sakonnet v. Dutra, 738 F. Supp. 623, 630
If the purpose of Congress in specifically proscribing
pollution from a "point source" was to ensure that
naturally-induced, random run-off of pollutants would not
result in criminal or civil liability under the Clean Water
Act, then it is difficult to find a basis for holding that a
"point source" does not encompass the deliberate discharge of
pollutants produced in the course of a waste-generating
activity merely because a person directly deposits those
pollutants into the water. Indeed, the definition of "point
source" in the Clean Water Act, even if read literally, does
not exclude discharge by a person. While the words "any
discernible, confined and discrete conveyance" do not conjure
up the image of a human being, neither do they specifically
exclude one. It is true that the examples included within the
definition — "any pipe, ditch, channel, tunnel, well, discrete
fissure, container, rolling stock, concentrated animal feeding
operation or vessel or other floating craft from which
pollutants may be discharged" — imply that the statutory
reference is to some kind of physical container or conduit.
Such an implication, however, is not dispositive. As the
Supreme Court observed in Gooch v. United States:
The rule of ejusdem generis, while firmly
established, is only an instrumentality for
ascertaining the correct meaning of words when
there is uncertainty. Ordinarily, it limits general
terms which follow specific ones to matters similar
to those specified; but it may not be used to
defeat the obvious purpose of the legislation. And,
while penal statutes are narrowly construed, this
does not require rejection of that sense of the
words which best harmonizes with the context and
the end in view.
297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936);
United States v. Alpers, 338 U.S. 680, 682, 70 S.Ct. 352, 354,
94 L.Ed. 457 (1950).
The application of the rule of ejusdem generis to resolve the
statutory questions presented here would "defeat the obvious
purpose" of the Clean Water Act which is to prevent unregulated
pollution of the navigable waters of the United States. See
33 U.S.C. § 1251, 1341-45. As the Court of Appeals for the Sixth
Circuit has observed:
"The touchstone of the regulatory scheme is that
those needing to use the waters for waste
distribution must seek and obtain a permit to
discharge that waste, with the quantity and
quality of the discharge regulated. The concept
of a point source was designed to further this
scheme by embracing the broadest possible
definition of any identifiable conveyance from
which pollutants might enter waters of the United
Earth Sciences, 599 F.2d at 373.
Congress was concerned with the precise manner by which
pollutants are discharged into navigable waters because of its
intent to exclude certain types of pollution-generating
activity from the ambit of the Clean Water Act. Where, as
here, that concern is not implicated, there is no reason to
limit the broad definition of the words Congress
employed. Cf. Dague v. City of Burlington, 935 F.2d 1343, 1354
(2d Cir. 1991) ("The definition of a point source is to be
broadly interpreted."), petition for cert. filed, (Nov. 18,
1991). Surely, it is absurd to argue that the defendant should
be relieved of responsibility merely because he dumped vials of
poison directly into the Hudson River instead of discharging
them from a pipe or other physical conveyance.
Admittedly, there is an argument to be made that use of the
phrase "point source" serves the purpose of limiting the
coverage of the Clean Water Act to activities that generate
and dispose of pollutants on a large-scale and continuous
basis. Indeed, references in the statute and the legislative
history indicate that the primary focus of the Act was
industrial polluters. See 33 U.S.C. § 1341-45 (establishing a
permit system to regulate waste discharge); S.Rep. No. 92-414,
92nd Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N.
3668 (referring to "industry," "industrial sources,"
"facilities" and "plants"). Congress, however, did not exempt
small-time, intermittent polluters from the regulatory scheme
prescribed by the Clean Water Act. On the contrary, the statute
defines "the discharge of a pollutant" as "any addition of any
pollutant to navigable waters from any point source."
33 U.S.C. § 1362(12) (emphasis added). See also United States v. St.
Bernard Parish, 589 F. Supp. 617, 621 (E.D.La. 1984)
(Intermittent discharges are not excluded from the Clean Water
Nevertheless, Congress did not intend the Clean Water Act to
apply anytime a person throws garbage into the ocean merely
because such litter may be encompassed within the broad
statutory definition of a "pollutant." The scope of the Act
may be limited, however, without creating arbitrary and
irrational distinctions of the kind suggested by the
defendant. Specifically, the phrase "point source" may
reasonably be read to include any discrete and identifiable
conduit or container — including a human being — designated
to collect or discharge pollutants produced in the course of a
waste-generating activity. This definition places the focus of
the inquiry on whether a defendant was deliberately engaged in
threatening the "chemical, physical and biological integrity of
the Nation's waters," 33 U.S.C. § 1251(a), which is the object
of the Clean Water Act, and not whether the conduit for such
activity was a human being or an inanimate structure.*fn2
The parties have framed the essential issue in this case as
whether a person can be a "point source" and the issue has
been addressed as so framed. At least as to Counts One and
Two, however, there is an independent basis for concluding
that the defendant discharged the blood vials from a "point
source." Whether or not Mr. Villegas himself was a "point
source," it is quite clear that the rocks forming the bulkhead
at Admirals Walk come within the definition of that phrase.
The crevices of the bulkhead literally constitute "discrete
fissure[s]," one of the definitions of a point source
specifically provided by the Clean Water Act.
33 U.S.C. § 1362(14). Indeed, the cases have consistently found that
structures comprised of natural materials with the physical
capacity to hold "pollutants" constitute point sources. See
Dague, 935 F.2d at 1354-55 (a culvert is a point source);
United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1401
(D.N.H. 1985) (a ditch is a point source); Earth Sciences, 599
F.2d at 374 (ditches form part of a point source); National
Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir.
1982) (a dam can be a point source). The capacity and function
of the structures in these cases cannot be istinguished from
the crevices in the rocky facade
of the bulkhead that held the defendant's blood vials.
Finally, even if the bulkhead does not constitute a "point
source," the very containers holding the blood vials and
hidden in the rocky facade come directly within the definition
of that phrase. 33 U.S.C. § 1362(14) (point source is a
The defendant next argues that even if he is guilty of
discharging pollutants from a "point source," the evidence is
insufficient to support his convictions on Counts One and
Three of the indictment. These counts charge violations of the
knowing endangerment provision of the Clean Water Act that
reads as follows:
Any person who knowingly violates section 1311 .
. . of this title, . . . and who knows at that
time that he thereby places another person in
imminent danger of death or serious bodily
injury, shall, upon conviction, be subject to a
fine of not more than $250,000 or imprisonment of
not more than 15 years, or both.
33 U.S.C. § 1319(c)(3)(A). Under this section, the United
States Attorney must prove that the defendant discharged
pollutants from a point source, and that in doing so, he knew
he was placing another person in imminent danger of death or
bodily injury. The defendant argues that there is insufficient
evidence to prove that when he placed the vials in the Hudson
River he knew that he was thereby placing another person in
"imminent danger of death or serious bodily injury."
Under the Clean Water Act's knowing endangerment provision,
a person acts with the requisite degree of knowledge if he
possesses "actual awareness" or an "actual belief" that he is
placing another person in imminent danger.
33 U.S.C. § 1319(c)(3)(B). Circumstantial evidence may be used to prove
either mental state. Id. Only one reported case refers to the
Clean Water Act's knowing endangerment provision and it does
not apply or further define the knowledge element. See United
States v. Rutana, 932 F.2d 1155 (6th Cir.), cert. denied, ___
U.S. ___, 112 S.Ct. 300, 116 L.Ed.2d 243 (1991).
The legislative history of the section, however, does
address the issue. The Senate Environment and Public Works
Committee emphasized the deliberate omission from § 1319(c)(3)
of the definition of knowledge found in an analogous provision
in the Resource Conservation and Recovery Act (RCRA). S.Rep.
No. 99-50, 99th Cong., 1st Sess., at 30 (1985). Under the RCRA,
"a person's state of mind is knowing with respect to a result
of his conduct, if he is aware or believes that his conduct is
substantially certain to cause danger of death or serious
bodily injury." 42 U.S.C. § 6928(f)(1)(C) (emphasis added).
According to the Senate Report, this language was left out of
the Clean Water Act because it tended to "discourage
prosecutions." S.Rep. No. 99-50, 99th Cong., 1st Sess., at 30
(1985). Instead, the Senate Committee intended that knowledge
in the knowing endangerment provision of the Clean Water Act be
"measured against the standard established by prevailing case
law, as it is for any other Federal crime sharing the same
state of mind element." Id.
The omission in the Clean Water Act of the RCRA's
"substantial certainty" language, combined with the reference
legislative history to the "standard established by prevailing
case law," leaves unclear precisely what evidence is necessary
to sustain a conviction under 33 U.S.C. § 1319(c)(3). There
does not appear to be any "prevailing [federal] case law,"
defining knowledge in this particular context. The Model Penal
Code, the culpability standards of which have been adopted or
used as a guide in numerous jurisdictions, see 1 Charles E.
Torcia, Wharton's Criminal Law 137-40 (1978), provides that
when knowledge of the result of one's conduct is an element of
an offense, such knowledge is established if a person "is aware
that it is practically certain that his conduct will cause such
a result." Model Penal Code § 2.02(2)(b)(ii) (1962) (emphasis
added). Moreover, one year after Congress amended the criminal
provision of the Clean Water Act to include the knowing
endangerment section, it enacted the Medical Waste Tracking
Act. This Act also contains a knowing endangerment section that
imposes enhanced penalties on violators who knowingly place
another person in imminent danger of death or serious bodily
injury. See 42 U.S.C. § 6992d(c). The knowing endangerment
section of the Medical Waste Tracking Act, however, expressly
returns to the knowledge standard of the RCRA, requiring proof
that the defendant "is aware or believes that his conduct is
substantially certain to cause danger of death or serious
bodily injury." Id. ("The terms of this paragraph shall be
interpreted in accordance with the rules provided under §
6928(f) of this title") (emphasis added).*fn4
The United States Sentencing Commission has taken a similar
approach in formulating the guidelines for the offense at
issue here. The Commission provided for an eleven level
increase from the base level offense of discharging or
mishandling environmental pollutants "[i]f the offense
resulted in a substantial likelihood of death or serious
bodily injury," United States Sentencing Commission,
Guidelines Manual, § 2Q1.3 (Nov. 1991), and if the defendant
knew that his discharge of pollutants would have this effect.
Id., at Comment. (n. 3).
Although the "substantially/practically certain" standard
appears to be the predominant definition of knowledge with
respect to the result of conduct, some states have opted for
a "high probability" standard. In Montana, for example, the
criminal code defines knowledge with respect to the result of
conduct as being "aware that it is highly probable that such
result will be caused" by the conduct. Mont.Code Ann. §
45-2-101(33) (1990) (emphasis added). A similar definition was
adopted in Armour v. State of Indiana, 479 N.E.2d 1294 (Ind.
1985), which involved the application of a child neglect
statute that made it a crime to knowingly put a "dependent in a
situation that may endanger his life or health." Ind.Code Ann.
§ 35-46-1-4 (Burns 1990). The Supreme Court of Indiana held
that a defendant could be found guilty of violating the statute
only if he was "subjectively aware of a high probability that
he placed the dependent in a dangerous situation." Armour, 479
N.E.2d at 1297 (emphasis added). See also Caldwell v. State of
Indiana, 497 N.E.2d 610 (Ind. Ct. App. 1986); Ware v. State of
Indiana, 441 N.E.2d 20 (Ind. Ct. App. 1983).
Significantly, the "high probability" standard also tracks
the language of the Model Penal Code as it defines knowledge
of a fact inferred from a person's conscious avoidance of that
fact. The Code states that "when knowledge of the existence of
a particular fact is an element of an offense, such knowledge
is established if a person is aware of a high probability of
its existence, unless he actually believes it does not exist."
Model Penal Code § 2.02(7) (1962) (emphasis added). The Supreme
Court has expressly approved this language, see Leary v. United
States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 1553 n. 93, 23
L.Ed.2d 57 (1969), and it has been consistently accepted
by the Court of Appeals for the Second Circuit. See, e.g.,
United States v. Gurary, 860 F.2d 521 (2d Cir. 1988), cert.
denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989);
United States v. Gatzonis, 805 F.2d 72 (2d Cir. 1986), cert.
denied, 484 U.S. 932, 108 S.Ct. 303, 98 L.Ed.2d 262 (1987);
United States v. Reed, 790 F.2d 208 (2d Cir.), cert. denied,
479 U.S. 954, 107 S.Ct. 445, 93 L.Ed.2d 393 (1986).
The "high probability" standard provides a viable
alternative to the "substantial certainty" test that Congress
apparently rejected when enacting the Clean Water Act's
knowing endangerment provision. It allows for conviction on
proof less than knowledge of a substantial certainty of
imminent danger, while also setting a sufficiently rigorous
standard to justify the stiff criminal penalties that attach
pursuant to § 1319(c)(3). More significantly, it is consistent
with the language of 33 U.S.C. § 1319(c)(3) that provides for
an enhanced sentence only where "at [the] time" the defendant
discharges a pollutant into navigable waters he "knows . . .
that he thereby places another person in imminent danger of
death or serious bodily injury."
These words imply that the discharge must actually place
another person in imminent danger of death or serious bodily
injury and not merely that such result be a "potential"
consequence of the defendant's act. See Govt.Br. at 40. Indeed,
unless so read, the word "imminent" has no meaning at all.
Cases have held that the phrase "imminent danger" does not mean
immediate danger. Dague, 935 F.2d at 1355-56. Because the word
danger means risk or peril, Webster's New International
Dictionary 573 (3d ed. 1981), the phrase "imminent danger" must
connote something more than the mere possibility or risk that
death or serious bodily injury is a foreseeable consequence of
a discharge. Thus, at the very least, "imminent danger" must
mean danger that is a highly probable consequence of a
discharge. Cf. United States Sentencing Commission, Guidelines
Manual, § 2Q1.3 (Nov. 1991). It is this particular level of
danger that the defendant must have known existed when he
discharged the blood vials into the Hudson River.*fn5 Id. at
Comment. (n. 3).
The United States Attorney offered three sources of
testimony on the element of the defendant's knowledge. Elena
Ramos, a former data entry employee at Plaza, testified that
Mr. Villegas had worked in two laboratories that handled blood
before becoming co-owner and vice-president of marketing at
Plaza. She also testified that Mr. Villegas handled blood
samples regularly and took precautions when doing so. Shahid
Mustaquim, a former medical technologist at Plaza, testified
that between 35-50% of the blood specimens brought there were
tested for hepatitis. He further stated that Plaza has set
aside a separate area and a separate machine for hepatitis
testing. Dr. Sashikale Krishnan, former director of pathology
at Plaza, confirmed that Plaza conducted a great deal of
testing for diseases like hepatitis and leukemia. He also
stated that Mr. Villegas was one of two people in charge of
Plaza, that he co-authored the laboratory's safety manual,
which included guidelines for handling blood, and that these
guidelines were followed by Plaza employees.
This evidence is sufficient to support a jury finding that
the defendant acted with knowledge of the dangers of
hepatitis, and that some of the discharged vials contained
hepatitis-infected blood. The evidence, however, does not
support the conclusion that when he placed the vials in the
Hudson River, Mr. Villegas knew there was a high probability
that he was thereby placing another person in imminent danger
of death or serious bodily injury. Of particular
significance is the testimony of Dr. Alfred M. Prince, an
expert in virology called by the United States Attorney. Dr.
Prince suggested that the principal risk of hepatitis
infection as a result of exposure to a vial of contaminated
blood would arise "[i]f that vial is broken and if a piece of
broken glass were to penetrate the skin . . ." Trial Tr. at
362. While Dr. Prince testified that the likelihood of
contamination in those circumstances was "very high,"
id., he also testified that the risk of this happening was
The Court: Doctor, if three or four or five vials
like — of the kinds we have been talking about
were dropped in the Hudson River, would you say
that that would place any person in imminent danger
of death or serious bodily injury?
Dr. Prince: If those vials were to land on the
shore and someone were to step on them and
puncture their skin, they would be in danger of
infection, hepatitis B, yes. Those vials that
were infected, of course. They all were not.
The Court: Of course, one would have to know that
that was going to happen. Or sooner or later
everything floats to shore?
Dr. Prince: The risk of this happening is low but
it is a risk.
Trial Tr. at 371.
This testimony was elicited outside the presence of the
jury, and the defendant's trial counsel declined an invitation
to have it repeated to the jury.*fn6 Nevertheless, the
testimony does suggest the need for caution in inferring that
the defendant must have known that he was placing another
person in imminent danger of death or serious bodily injury
merely because he knew that the vials contained a dangerous
virus. Yet this is essentially the theory underlying the
prosecution's case. The Assistant United States Attorneys
trying the case argued that "from the evidence regarding the
currents and tides the jury could infer that the defendant
knew or should have known that the — anything thrown into
[the] waters would be swept out into the sea and eventually be
lodged on a beach," and that the defendant "knew that people
walked on the rocks [at] Edgewater." Trial Tr. at 391.
Consequently, they argued, the defendant should have been aware
of the risk to those who walk along Hudson River beaches or
climb on the Admirals Walk bulkhead.
There was, however, no evidence introduced at trial showing
that the defendant knew "that people walked on the rocks [at]
Edgewater" where the vials were hidden, or that such activity
even occurs. Moreover, there was no evidence introduced that
showed the defendant's knowledge of the tides and,
specifically, that the vials would be swept out into the sea
and eventually wash ashore in an area where they could cause
the kind of injury Dr. Prince described. Indeed, if Dr.
Prince, an expert in virology who has a more sophisticated
understanding of these matters than Mr. Villegas, viewed the
danger of such serious bodily injury or death as remote, it is
hard to know why Mr. Villegas should have known it to be
highly probable or even likely.
There is no doubt that the defendant's conduct was
irresponsible and that it had the potential to cause serious
bodily injury. These factors may provide a basis for an upward
adjustment of the guideline range applicable to the offense of
discharging pollutants into the water. See United States
Sentencing Commission, Guidelines Manual, § 2Q1.3, comment. (n.
4) (Nov. 1991). The evidence, however, is insufficient to
justify the enhanced penalties provided for cases where a
polluter knows that there is a high probability that he is
placing another person in imminent danger of death or serious
Accordingly, the defendant's motion pursuant to
Fed.R.Crim.P. 29(c) is granted with respect to Counts One and
denied with respect to Counts Two and Four.