UM Grace Case

Motions to Dismiss

Motions to Dismiss

A motion to dismiss asks a court to remove a specific part of an indictment.  If a trial court grants a motion to dismiss a certain count, a defendant cannot be convicted of that crime.  Because there are so many Defendants in this case, and because they could all have different theories why the trial court (in this case the district court) should dismiss, this case has seen many motions to dismiss.

Motions to dismiss are a tough hurdle for a defendant to clear.  First of all, all trial courts will take care to avoid making determinations of factual issues, as those are expressly the province of the jury during the actual trial.  Thus, motions to dismiss must be founded in claims that the prosecution’s case has a fatal flaw regardless of what the facts in dispute might be.  This places a heavy burden on the moving party, and trial courts will often take an expansive view of the facts alleged in the charging documents (in this case the original and superseding indictments), and deny motions to dismiss if the charging documents, taken at face value, make an argument good enough to sustain the charges.

Because of the nature of a motion to dismiss, appellate courts also exercise broad power, reviewing the situation from the trial court with little or no deference, as the decision to dismiss is legal and not factual.  Appellate courts act as a second set of legal minds to help interpret complex legal issues.  This prosecution has the fairly unique status of having had appellate judges offer their opinions before trial.

With that short background of the nature of motions to dismiss, we can now examine the many motions in this case.

First Round of Motions to Dismiss

On December 15, 2005, the defense served the United States with eight briefs detailing various grounds for dismissal.   The court examined them all in one order on March 3, 2006, ruling on the following grounds:

Motion to Dismiss for Duplicity in Count I of the Original Indictment

Every Defendant first claimed, in the same motion and brief, that the District Court should have dismissed the charges because the charges in Count I of the Original Indictment of February 2005 charged two different conspiracies in one count (i.e. duplicity of the charge).  In other words, the Defendants claimed that because Count I appeared to charge them with both the object of releasing asbestos into the air and also of concealing the dangers of asbestos, their due process and other constitutional rights would be infringed, as the jury could be confused by exactly what it had to find to convict on Count I. 

The prosecution, on the other hand, argued that Count I merely charged an overarching agreement between the Defendants to violate the law, and that the separate objects of this conspiracy were irrelevant to the existence of a conspiracy formed for nefarious purposes. 

The District Court found, based on prior case law, that Count I of the Original Indictment was not duplicitous, and therefore denied the first motion to dismiss.  The Court reasoned that the Original Indictment itself, read simply, only alleged one crime – formation of an illegal conspiracy.  Secondly, the Court stated that, if the evidence at trial would excessively confuse the jury (and, therefore, result in an improper verdict), any confusion could be cured with a well-worded jury instruction from the judge before closing arguments. 

Motion to Dismiss for Failure by the United States to Allege Knowledge of Unlawful Conduct in Counts I through IV of the Original Indictment

The Court next addressed the Defendants’ argument that they could not have violated the criminal provisions of the Clean Air Act because they did not know their conduct in any alleged asbestos release was illegal.  The Prosecution countered that the Clean Air Act does not require knowledge of the illegality of a release, merely knowledge of the act of releasing a substance (that is to say, an illegal substance to release). 

The Court examined the statute, as written by Congress, bearing in mind that courts have the job of interpreting the laws as written, and then if that doesn’t work, to make an effort to understand Congressional intent when passing legislation.  Based on the specific use of “knowingly” as opposed to the word “willfully” (which would connote knowledge of the illegality and acting anyway), the Court determined the Original Indictment met the legal standard required to survive a motion to dismiss.   Furthermore, the Court reasoned, comparing the Clean Air Act to similar federal environmental laws would undermine Congress’ intent in using their exact language.  Thus, the motion failed.

Motion to Dismiss for Failure to Allege Breach of an Emission Standard by Defendants W.R. Grace, Alan Stringer, Jack W. Wolter, and Robert J. Bettacchi in Counts II through IV of the Original Indictment

Some of the Defendants made a separate motion offering a possibly confusing legal argument.  The Clean Air Act criminalized emissions in excess of emission standards created by the Environmental Protection Agency (EPA).  Because the counts in the Original Indictment relating to the Clean Air Act did not allege that the Defendants had exceeded such a standard for asbestos (as there was none), they argued that those counts should be dismissed for lack of illegality under the statute.   The Prosecution countered with an even more confusing argument to the non-lawyer: that the grounds for this motion, as argued by these Defendants, was an affirmative defense (meaning a claim to offset their criminal culpability) in that the Defendants could claim at trial that their alleged emissions were within regulatory guidelines (and therefore arguably legal) and that such an affirmative defense would fail because the EPA had made no determination of a “safe” amount of asbestos release. 

The court weighed the counts up for dismissal here, as stated in the Original Indictment, as well as the controlling statute and congressional intent, and reasoned that just because the EPA had set permissible limits for certain emissions, criminal liability could still exist for emitting pollutants for which the EPA had not stated a “safe” level.  Therefore, the Original Indictment had again met the requisite standard and the motion failed.

Motion to Dismiss for Failure by the United States to Sufficiently Apprise Defendants W.R. Grace, Alan Stringer, Jack W. Wolter, and Robert J. Bettacchi of the Nature of the Offenses Charged in Counts II through IV.

Some of the Defendants moved to dismiss based on the argument that the word “Asbestos” was a vague term, and that vagueness in the Original Indictment deprived them of their Sixth Amendment rights to know the nature of the charges against them.  Counts II through IV accused them of illegal release of “asbestos” while the rest of the Original Indictment mentioned several different minerals mined by W.R. Grace near Libby.  Because so many different minerals were listed in the Original Indictment and the definition of “asbestos” is unclear, these defendants argued they were in the unconstitutional position of being unable to defend themselves due to confusion as to the Prosecution’s claims. 

The Court pointed out that “Asbestos” could mean some mixture of the many minerals mentioned in the Original Indictment, but that any mix of those minerals would constitute a hazard.  Therefore, the Original Indictment satisfactorily informed the Defendants of the charges against them, and that any remaining ambiguities were facts for determination at trial and not in a motion to dismiss.  Thus, this motion failed. 

Motion to Dismiss Counts II through IV of the Original Indictment against W.R. Grace Due to Statute of Limitations and Duplicity Grounds

A statute of limitations is a law passed by a congressional body that prevents filing of any sort of suit, civil or criminal, if every element of a possible claim occurred past a specific time in the past.  The policy behind statutes of limitations is to encourage people to quickly resolve their legal disputes, to eventually give possible defendants peace of mind about past problems, and “let the dead bury the dead,” i.e. to let disputes and crimes of the past eventually fade away. 

The non-corporate defendants in this case wrote a brief in support of this motion and brief submitted by W.R. Grace.  Thus, all of the Defendants argued that any violations of the Clean Air Act before November 3, 1999 would be barred by the applicable statute of limitations, in this case, five years.  Thus, without any other legal or factual argument, any releases prior to that date that would otherwise violate the Clean Air Act (proven or unproven) could not result in criminal liability.  The Prosecution argued that each of the releases claimed in the Original Indictment were continuing in nature as long as any danger remained.  In other words, the clock for the relevant statute of limitations would not begin to run until the alleged releases that contaminated Libby and the surrounding area could no longer harm anyone. 

The Court made a detailed examination of the relevant section of the Clean Air Act and determined that Congress had not intended to criminalize the “continuing danger” but rather only the initial release.  Therefore, any alleged releases would have been specific temporal events and therefore the statute of limitations clock would have begun to run at the time of the final release.  Therefore, the defendants’ motion correctly pointed out that any “releases” of asbestos before November 3, 1999 were time barred, and the Court granted the motion to dismiss as to acts occurring before that time as alleged in Counts II through IV of the Original Indictment.

The Defendants also made a different argument for duplicity, arguing that the Clean Air Act violations alleged in the Original Indictment could lead to impermissible confusion, as they alleged several releases without specific notice of each individual release.   As with the motion to dismiss the conspiracy count for duplicity, the court pointed out that the Original Indictment gave the Defendants adequate notice of the charges against them and any possible duplicity remaining after the presentation of evidence at trial could be cured via proper jury instruction. 

Motion to Dismiss for Failure by the United States to State an Offense Allegedly Perpetrated by Defendants W.R. Grace, Alan Stringer, Jack W. Wolter, and Robert J. Bettacchi.

The Defendants charged with the crime of wire fraud in Counts V and VI moved to dismiss those charges.  The Prosecution had also filed a motion to dismiss those Counts without prejudice (meaning they wanted the right reassert those claims later), due to the fact that the Counts, as stated in the Original Indictment, did not contain all the fundamental elements of that crime. Thus, the fight was whether the dismissal would be with or without prejudice.  The court, examining the circumstances and possible negative ramifications of allowing the Prosecution to restate the charges, reasoned that the wire fraud charges would be dismissed without prejudice. 

Summary of Court’s Order

Thus, in its Order of March 3, 2006, the court denied each of the Defendants’ motions to dismiss, with the exception of claims of emissions in violation of the Clean Air Act in the Original Indictment before November 3, 1999.  Emissions after that date could still satisfy the Counts, so the Counts still stood, they just continued with that significant limitation.

 
More Motions to Dismiss

Motion to Dismiss Due to Pre-Indictment Delay by the United States

On March 1, 2006, the Defendants moved to dismiss Count I of the Original Indictment, claiming that the significant delay had eroded their constitutional right to due process.   In other words, the Defendants claimed that the long lag between the alleged criminal conduct and the indictment had led to loss of possible defense evidence based on such unfortunate time-based occurrences as death or incapacity of witnesses and erosion of memory, and therefore they could not present a proper defense.

The Court weighed the proper tests for the claim, as well as examining the specific witnesses and evidence the delay would remove from the trial and other factors, and concluded that the Defendants had not suffered sufficiently to warrant granting the motion, so it was therefore denied.

Second Motion to Dismiss Due to Preclusion by the Applicable Statute of Limitations

On March 27, 2006, all of the Defendants moved to dismiss or limit Count I, the conspiracy charge, based on the fact that the relevant statute of limitations swallowed any acts that would have led to the existence of a conspiracy.  The Defendants argued that without any prosecutable acts, no conspiracy could legally exist. 

The Court issued an order on this motion on June 8, 2006.  After setting aside a procedural argument that the timeline for pretrial motions had come and gone, the Court found that, just as stated in the March 3, 2006 order, the acts of emission were points in time, and points in time beyond the statute of limitations could not legally lead to criminal liability.  Because the Original Indictment set forth no specific acts within the statue of limitations, the Court granted the motion to dismiss as to Count I with prejudice. 

The Superseding Indictment, Subsequent Motion to Dismiss, and Interlocutory Appeals

The Superseding Indictment

On June 26, 2006, the Prosecution attempted to cure the defect in the Original Indictment that prompted the Court to dismiss the conspiracy charge:  lack of overt acts alleged to have been committed within the statute of limitations period.  The Prosecution went back to the grand jury and the grand jury again indicted the defendants on conspiracy (the Superseding Indictment).  Taking to heart the lessons of the motions to dismiss up to that point, the Superseding Indictment reinvigorated the conspiracy claims by alleging conspiratorial actions past the block of the statute of limitations.  In response to the Superseding Indictment, the Defendants renewed their efforts to dismiss based on the grounds of preclusion by the statute of limitations.

Motion to Dismiss the Clean Air Act Object of Count I of the Superseding Indictment

On June 30, 2006, the Defendants moved to dismiss the new version of the knowing endangerment aspect of the conspiracy count, as stated in Count I of the Superseding Indictment, as the Court’s June 8, 2006 order had dismissed it with prejudice (meaning the state could not make the claim again).

The Court clarified that the dismissal of Count I on June 8, 2006, saying that the statements, as stated in the Original Indictment, alleged crimes barred by the statue of limitations.  The Defendants had wrongly briefed this motion under the assumption that since the Superseding Indictment stated no new facts, it would fail for the same reasons as Count I of the Original Indictment.  The Court pointed out that such a reading would involve determining facts before trial, which motions to dismiss cannot do, and that the Court had based its dismissal of the conspiracy counts in the Original Indictment merely on the law, not the facts. 

However, the Court again dismissed the knowing endangerment aspect of the conspiracy count, on the grounds that the prior dismissal of the conspiracy count had been “with prejudice” thus preventing the Prosecution from raising the claim again in the Superseding Indictment.  The Court also discussed whether a federal statute allowing federal prosecutors to file superseding indictments (in case of flaws), and found it did not apply, as the statute of limitations still put a stake in the heart of the conspiracy claim, even as restated. 

Ninth Circuit Appeal

In an uncommon twist of procedure, the Prosecution secured an Interlocutory Appeal (a sort of pre-trial appeal) to the Ninth Circuit Court of Appeals of the District Court’s order dismissing the Conspiracy-knowing endangerment  count in the Superseding Indictment.  The Ninth Circuit reversed the District Court, holding that the Prosecution had adequately met the legal requirements to survive a motion to dismiss based on the relevant statute of limitations, and that the District Court erred when it dismissed the knowing endangerment aspect of Count I of the Superseding Indictment.

Another Motion at Dismissal

On August 14, 2006, Defendant Robert J. Bettacchi moved to dismiss Counts III and IV of the Superseding Indictment, well past the deadline for motions.  The Court made it explicitly clear that the Federal Rules of Criminal Procedure contain no sort of mechanism for “summary judgment” (a civil law concept designed to avoid trial when unnecessary), and any further motions to dismiss would invite sanctions against the moving lawyer.   The motion was denied. 

-Mark Lancaster