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December 13, 1991


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 majority, observed:

  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. ยง 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 ...

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