Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5388, Appeal from the United States District Court for the Western District of Kentucky at Owensboro. As explained by the Appeals Court, the 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 [citing 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. In a split opinion, the majority Appeals Court ruled that, "The district court in this case therefore erred in acquitting defendants on the ground that there was no criminal venue in the Western District of Kentucky."
The case involves a barge carrying 400,000 gallons of benzene down the Mississippi River that sprang a leak near St. Louis, Missouri. The leak was temporarily stopped with a make shift patch for several days and then began to leak again. The
Coast Guard was not notified of the leak until several days after the original leak.
The majority indicated that, "Defendants urge that they are entitled to a new trial because the weight of the evidence does not support a finding of a hazardous condition, and because the evidence does not establish that the defendants' failure to notify the Coast Guard was knowing and willful. The defendants argue that the leak was not a 'hazardous condition' because 'the product did not get into the water.' This was disputed at trial. But even if none of the benzene had actually spilled into the river, that was not the only risk presented by the leaking barge. Because benzene is highly explosive, the risk in this case was not just that the liquid would spill overboard and contaminate the river, but that the leaking fuel would ignite and blow up the barge. The district court acted well within its discretion in concluding that the evidence did not preponderate heavily against the jury's finding that a hazardous condition existed aboard the barge on June 16. Likewise. . . the district court did not abuse its discretion in concluding that the evidence did not preponderate heavily against the jury's finding that the defendants' failure to notify the Coast Guard was knowing and willful." The majority reverse the district court's judgment of acquittal for improper venue, and remand for further proceedings consistent with this opinion.
The dissenting justice concurred in part and dissented in part and said, "The majority opinion correctly concludes that there was sufficient evidence to convict Defendants. The evidence in favor of conviction was more than sufficient to withstand the limited scrutiny which we give such matters on appeal. I therefore concur in the majority opinion's affirmance of the district court's denial of Defendants' motions for judgment of acquittal and for a new trial. However, I must vigorously dissent from the majority opinion's conclusion that the failure to 'immediately' notify the Coast Guard is a continuing offense.
Access the complete opinion and dissent (click here).
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