THE TRIAL OF AN ENVIRONMENTAL CRIMINAL CASE

SELECTED ISSUES IN A CASE STUDY OF UNITED STATES v. BAYTANK (HOUSTON), INC., 934 F.2d 599 (5th Cir. 1991)

INTRODUCTION

On September 3, 1987, the grand jury impaneled in the South­ern District of Texas, Houston Division, handed down a 37-count indictment against two corporations and 19 individuals charging crimes under the Resource Conservation and Recovery Act (“RCRA”), the Clean Water Act (“CWA”), the Comprehensive Environmental Response, Compensation Liability Act (“CERCLA”) and, for the first time,

the Marine Protection, Research and Sanctuaries Act (“MPRSA”)(otherwise known as the “Ocean Dumping Act”). In addition to the environmental criminal charges, the indictments also included standard Title 18 crimes and charged all individuals and the two corporate entities with conspiracy and each individual with aiding and abetting all crimes. In all, over 211 different charges were leveled against Odfjell Westfal-Larsen (U.S.A.), Inc. (“OWL”), a wholly-owned subsidiary of Odfjell Westfal-Larsen S.A. (a Norwegian shipping company), Baytank (Houston), Inc. (“Baytank”), a wholly-owned subsidiary of OWL, Baytank’s presi­dent, operations manager, traffic manager and technical manager, the engineer employed by OWL who designed Baytank, as well as 14 ship officers employed by Odfjell Westfal-Larsen Tankers S.A.

This matter, styled United States v. Odfjell Westfal-Larsen (USA), Inc., et al., Crim. No. H-87-220, was given top priority by the United States Department of Justice (“DOJ”) and the United States Envi­ronmental Protection Agency (“EPA”). The EPA Office of Enforce­ment and Compliance Monitoring described the case in their 1987 Summary of Enforcement Accomplishments as follows: "In another case with international ramifications which has not yet been tried, as result of a major, joint investigation into the ocean dumping of hazardous wastes, twenty-one (21) defendants (including a foreign company and many of its ship captains) were indicted in this first case to enforce MPRSA." United States Environmental Protection Agency, Summary of Enforcement Accomplishments, Fiscal Year 1987 (April 1988). In fact, according to the DOJ, the case was one of the top criminal prosecutions that year.

After several pre-trial skirmishes over discovery and the DOJ’s attempts to disqualify defense counsel, the trial began on October 18, 1988. On November 8, 1988, after producing thirty eight (38) witnesses, the Government closed its case-in-chief. Upon oral motion by the defendants, and after hearing argument, the dis­trict court granted judgments of acquittal, discharging all defendants on all counts except for Baytank and three individu­als, variously, on six CWA misdemeanor counts, three CERCLA misde­meanor counts and two RCRA felony counts. The case on the remaining eleven counts was submitted to the jury on November 17, 1988. The next day, November 18, 1988, the jury returned its verdict and found Baytank and the individuals guilty on nine of the eleven counts (all were acquitted on the two CERCLA misdemeanor counts).

On November 23, 1988, the remaining defendants filed post-trial motions for judgments of acquittal or, alternatively, for a new trial. On the two felony counts, the district court granted judgments of acquittal to the individuals, denying the motion to Baytank. The district court did grant new trials to all defen­dants on all of the misdemeanor counts. Baytank was subsequently fined $50,000.00 on one of the felony counts and was required to undertake a community service plan for the other count. On September 10, 1990, the United States Court of Appeals for the Fifth Circuit heard oral argument on cross appeals. On June 13, 1991, the Fifth Circuit upheld the conviction of Baytank and reversed the grant of a new trial to Baytank on all other counts. The Fifth Circuit also reversed the judgments of acquittal as to the individuals; however, it upheld the grant of new trial to the individuals on each count.

On March 23, 1992, as a result of the Fifth Circuit’s opin­ion and extensive negotiations, Settlement Agreements and Plea Agreements were entered as to all parties disposing of all matters left in the case. As finally configured, the Government had obtained two felony and six misdemeanor convictions against Baytank and, through plea agreements, two misdemeanor convictions against each of two of the individuals and one misdemeanor con­viction against one individual. The fine paid by Baytank and the individuals totaled $1,150,000.00, (not including the special assessments). While the case was technically a win for the DOJ; in reality, the case was a resounding victory for the defendants.

Coming in the next few days, we will explore selected aspects of the trial and I will share some of the tactics used by the defense team in challenging the Government’s case.

More later.

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii