1. Of what significance is Jewel McCoy’s testimony in establishing mens rea?

2. What is the difference between knowledge of the law and knowledge of conduct? What is the significance of Mr. Ahmad’s testimony that he thought he was discharging water?

3. What does the court explain is required for the state of mind under the Clean Water Act?

Ahmad owns a Spin-N-Market in Texas, a convenience store and gas station. One of the Spin-N-Market’s gasoline tanks developed a leak. Jewel McCoy of CIT Environmental Services inspected the tank and said it needed to be drained and then pumped. McCoy gave Ahmad the cost of draining, and he suggested he would do it himself despite McCoy’s warning about violations of the law. Ahmad rented a pump at the local hardware store and pumped over 5,000 gallons into a manhole near his store (4,690 of those gallons were gasoline). The gasoline made its way to the storm sewer system and then a creek as well as the city sewage treatment center. While firemen were working to divert the gasoline, the treatment center and two nearby schools had to be evacuated. Ahmad was charged with violation of the Clean Water Act and was convicted of two charges.

JUDICIAL OPINION

SMITH, Circuit Judge … Ahmad contends that the jury should have been instructed that the statutory mens rea—knowledge—was required as to each element of the offenses.

The language of the CWA is less than pellucid. Title 33 U.S.C. § 1319(c)(2)(A) says that “any person who knowingly violates” any of a number of other sections of the CWA commits a felony. The principal issue is to which elements of the offense the modifier “knowingly” applies. Ahmad’s main theory at trial was that he thought he was discharging water, not gasoline.

The Supreme Court has spoken to this issue in broad terms. “[T]he presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct.”

The government also protests that CWA violations fall into the judicially created exception for “public welfare offenses,” under which some regulatory crimes have been held not to require a showing of mens rea.

At best, the jury charge made it uncertain to which elements “knowingly” applied. At worst, and considerably more likely, it indicated that only the element of discharge need be knowingly. The instructions listed each element on a separate line, with the word “knowingly” present only in the line corresponding to the element that something was discharged. That the district court included a one-sentence summary of each count in which “knowingly” was present did not cure the error.

The obvious inference for the jury was that knowledge was required only as to the fact that something was discharged, and not as to any other fact. In effect, with regard to the other elements of the crimes, the instructions implied………………………..