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True or false? "It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly be imputed to a citizen who...has no evil intention or consciousness of wrongdoing."
A clue may be that Justice Murphy wrote that _ in dissent _ in a 1943 case affirming the conviction of a citizen whose company shipped adulterated drugs in interstate commerce. That case, United States v. Dotterweich, 320 U.S. 277, retains remarkable vitality in two related areas of environmental law: the "responsible corporate officer" doctrine and the field of "public welfare offenses."
As to the first, the question in Dotterweich was whether the president of the corporation could be held criminally liable for what was, arguably, the act of the corporation. Justice Frankfurter said "yes":
The offense is committed...by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws...
The other question was whether the corporate officer could be liable even though he may not have known that the corporation was lacking a certain guaranty which would have made his act innocent. Again, Justice Frankfurter said "yes":
The prosecution...is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct _ awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger...
At bottom, the question is what a statute means. Congress may define who is a "responsible corporate officer" and create "public welfare offenses," eliminating mens rea. To interpret such statutes, the Supreme Court has often invoked Dotterweich. See, e.g., United States v. Park, 421 U.S. 658 (1975)(an opinion which should be read by every environmental counselor), and United States v. International Minerals Corp., 402 U.S. 558 (1971). The latter reinstated a dismissed information that charged a "knowing" violation of a hazardous materials regulation, even though there was no assertion that defendant knew it was violating the regulation. The Court wrote:
Where as here...dangerous or...obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.
But more recent Supreme Court cases may give pause. United States v. Liparota, 471 U.S. 419 (1985) and Staples v. United States, 511 U.S. 600 (1994), involved food stamps and semi-automatic rifles respectively. In both, the Court reversed convictions on the grounds that the defendant did not have sufficient knowledge to be held criminally liable. In Staples particularly, the Court questioned the breadth of the doctrine. ("Close adherence to the early cases...might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense.")
These are important concepts in environmental law. Two recent cases illustrate that. The latest is United States v. Iverson, __F.3d __ (9th Cir. December 11, 1998). Iverson had "officially" retired, but remained active in the affairs of his company. He challenged a jury instruction that permitted conviction under the Clean Water Act based simply on his "authority and capacity to prevent the discharge of pollutants." Supported by Dotterweich and Park, the Court held the instruction adequate.
...[A] person is a `responsible corporate officer' if the person has authority to exercise control over the corporation's activity that is causing the discharges. There is no requirement that the officer in fact exercise such authority or that the corporation expressly vest a duty in the officer to oversee the activity.
Dotterweich also supported United States v. Kelley Technical Coatings, Inc. 157 F.3d 432 (September 16, 1998). That case upheld the conviction, under RCRA, of a defendant who claimed he did not know his acts were illegal. Citing Liparota, Staples and other cases, defendant claimed the jury should have been instructed that it could not convict unless he "knew that the material in question was regulated hazardous waste and knew that a permit was required." The Sixth Circuit rejected this "knowledge of illegality" defense. It cited United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), and United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995), which embraced the "public welfare offense" doctrine, to determine what must be known under the Clean Water Act to constitute a criminal offense.
There are cases in tension with these. See, e.g., United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996). Yet in environmental law, Justice Frankfurter's views still seem to prevail over Justice Murphy's. It appears, generally, that a defendant may be convicted if he knows certain facts, even if he does not know that his act is illegal. For environmental lawyers who counsel clients, these cases _ and those that are sure to follow _ bear close reading.
Mr. Goode is a partner in the firm of McCutchen, Doyle, Brown & Enersen.
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