United States v. Canal Barge Co., Inc.

631 F.3d 347, 68 A.L.R. Fed. 2d 767, 41 Envtl. L. Rep. (Envtl. Law Inst.) 20065, 2011 A.M.C. 445, 2011 U.S. App. LEXIS 460, 2011 WL 43426
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 7, 2011
Docket09-5388, 09-5421, 09-5422, 09-5423, 09-5424
StatusPublished
Cited by9 cases

This text of 631 F.3d 347 (United States v. Canal Barge Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Canal Barge Co., Inc., 631 F.3d 347, 68 A.L.R. Fed. 2d 767, 41 Envtl. L. Rep. (Envtl. Law Inst.) 20065, 2011 A.M.C. 445, 2011 U.S. App. LEXIS 460, 2011 WL 43426 (6th Cir. 2011).

Opinions

ROGERS, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. BATCHELDER, C.J. (pp. 357-59), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

This case presents a question of venue, specifically, the appropriate district in which to prosecute a charge of willful failure to “immediately notify” the Coast Guard of a “hazardous condition” aboard a vessel. 33 U.S.C. § 1232(b)(1); 33 C.F.R. § 160.215. The crime is a continuing offense rather than a point-in-time offense, and therefore the location of the crime continued into the Western District of Kentucky as the vessel in question proceeded from the Mississippi River to the Ohio. The district court in this case there[350]*350fore erred in acquitting defendants on the ground that there was no criminal venue in the Western District of Kentucky.

I

On June 16, 2005, a barge carrying 400,-000 gallons of benzene down the Mississippi River sprang a leak near St. Louis, Missouri. The barge was owned by Canal Barge and was being operated under a contract with Conoco Phillips to transport the benzene from Wood Island, Illinois, to Catlettsburg, Kentucky. When the leak was discovered, Jeffery Scarborough, a Canal Barge employee and the pilot of the barge’s towboat, instructed deckhands to try sealing the leak by rubbing a bar of soap over the crack. Scarborough telephoned Paul Barnes, the port captain in the company’s Belle Chase, Louisiana, office, who directed Scarborough to apply a temporary epoxy patch. With the help of deckhands, Scarborough succeeded in temporarily securing the leak. Captain Randy Martin, who had been off duty and asleep when the leak was first discovered, assumed control of the towboat later in the afternoon.

The epoxy patch held for about four days. During that time, the barge was transferred to a towboat owned by a different company on June 20, near Cairo, Illinois, at the confluence of the Mississippi and Ohio Rivers, and continued onto the Ohio River. On June 20, while the barge continued up the Ohio River, the epoxy patch failed. The captain of the new towboat notified the Coast Guard office in Louisville, Kentucky, and the barge was dropped at a fleeting area near Mount Vernon, Indiana, where environmental crews cleaned the benzene from the barge’s deck and permanently repaired the leak.

A three-count indictment filed two years later in the Western District of Kentucky charged Canal Barge, Scarborough, Barnes, and Martin with: (1) conspiracy to violate the Ports and Waterways Safety Act; (2) violation of the PWSA; and (3) negligent violation of the Clean Water Act.1 After a two-week trial, the defendants moved for a judgment of acquittal, arguing that the government had failed to prove that venue was proper in the Western District of Kentucky. The district court reserved ruling on the motion, and the jury returned a guilty verdict on Count 2, but acquitted the defendants of the remaining two counts.

Defendants then renewed their motion for a judgment of acquittal on the ground of improper venue. The defendants also argued that the government had failed to introduce sufficient evidence that the proper Coast Guard office in St. Louis was not notified of the June 16 leak, and sufficient evidence that the defendants’ violation of the PWSA was knowing and willful. In the alternative, the defendants argued that they were entitled to a new trial because their convictions were against the weight of the evidence. Additionally, Martin moved separately for a judgment of acquittal, arguing that the government did not show that a hazardous condition existed on the barge while he was in charge of the vessel, and Canal Barge moved separately for a judgment of acquittal, contending [351]*351that the government failed to prove that a Canal Barge employee violated the PWSA with the intent to benefit the company.

On November 25, 2008, the district court granted the defendants’ motion, concluding that the PWSA violation was a point-in-time offense that was complete at the time the defendants failed to immediately notify the Coast Guard of the hazardous condition, which occurred on the Mississippi River prior to entry into the Western District of Kentucky. The district court denied all of the defendants’ remaining motions.

On appeal, the government argues that the district court erred in granting the defendants’ post-verdict motion for judgment of acquittal for lack of proper venue, because the defendants’ PWSA violation is a continuing offense under 18 U.S.C. § 3237(a) ¶ 1. In the alternative, the government argues that the PWSA violation is an offense “involving ... transportation in interstate ... commerce” under 18 U.S.C. § 3237(a) ¶ 2.

The defendants cross-appeal the district court’s denial of their motion for judgment of acquittal on the remaining grounds, arguing that the government failed to prove that the defendants did not immediately notify the nearest Coast Guard office of the June 16 leak, and that the government failed to prove the elements of knowledge and willfulness. The defendants also argue that the district court abused its discretion in denying their motion for a new trial. Finally, both Martin and Canal Barge appeal the denial of their separate motions for judgment of acquittal for the reasons advanced in the district court.

II

The defendants’ failure to immediately report a hazardous condition aboard the barge was a continuing offense because the duty to report continued from the time the leak was discovered on June 16 until the Coast Guard was notified on June 20. Because the barge continued moving until the unreported hazardous condition was in the Western District of Kentucky, the PWSA violation occurred in part in the Western District of Kentucky. Venue was therefore proper in that district under 18 U.S.C. § 3237(a) ¶ 1.

For venue purposes in federal criminal cases, Congress has the power to create a “continuing offense” by defining “the locality of a crime [to] extend over the whole area through which force propelled by an offender operates.” United States v. Johnson, 323 U.S. 273, 274, 65 S.Ct. 249, 89 L.Ed. 236 (1944). Because the PWSA does not specifically define venue for criminal prosecutions, we look to the catch-all venue provision, which covers situations where the elements of the offense are committed in more than one district. 18 U.S.C. § 3237(a). The catch-all statute states in part:

(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

18 U.S.C.

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United States v. Canal Barge Co., Inc.
631 F.3d 347 (Sixth Circuit, 2011)

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631 F.3d 347, 68 A.L.R. Fed. 2d 767, 41 Envtl. L. Rep. (Envtl. Law Inst.) 20065, 2011 A.M.C. 445, 2011 U.S. App. LEXIS 460, 2011 WL 43426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-canal-barge-co-inc-ca6-2011.