Sixth Circuit Rules that Failure to Notify Coast Guard of Hazardous Condition is a Continuing Offense for Establishing Venue
In United States v. Canal Barge Company, the Sixth Circuit held that the District Court erred in acquitting defendants on the ground that there was no criminal venue in the Western District of Kentucky.
This case was brought in the Western District of Kentucky after a barge carrying 400,000 gallons of benzene on the Mississippi River sprang a leak near St. Louis, Missouri. The leak was discovered on June 16, 2005 by an employee of Canal Barge, who in turn applied a temporary epoxy patch to secure the leak. This temporary fix worked for about four (4) days. The barge then transferred to a towboat owned by a different company. When the barge began traveling up the Ohio River on June 20, 2005, the epoxy patch failed and the Coast Guard was immediately notified of the leak. Canal Barge and three employees were charged with conspiracy to violate the Ports Waterways Safety Act (PWSA), violation of the PWSA, and negligent violation of the Clean Water Act.
After trial, the jury returned a verdict of guilty for violating the PWSA and acquitted the defendants on the remaining two counts. The defendants moved for a judgment of acquittal on the ground of improper venue. The District Court granted the defendants' motion concluding that the PWSA violation was an offense that was complete at the time the defendants failed to immediately notify the Coast Guard of the Hazardous Condition and was not a continuing offense.
The Sixth Circuit turned to 18 U.S.C. 3237(a) to determine when an offense is continuous for purposes of venue. The statute provides: "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." The Sixth Circuit reasoned that this was a continuing offense that was committed in multiple districts because the defendants were first aware of the hazardous condition in Missouri and the condition was not reported until another towboat owner discovered the failure of the epoxy patch in Kentucky. By classifying this as a continuing offense, the obligation to report the hazardous condition starts immediately when the relevant actor has the relevant knowledge that a hazard exists, and this duty to report continues until a report is made to the Coast Guard. Further, because the barge continued moving until the unreported hazardous condition was present in the Kentucky, the PWSA violation occurred in part of the Western District of Kentucky, thereby making venue proper.
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