Environmental Crimes : How to Present, Negotiate and Defend Your Case in this Evolving High Risk Arena
, by Lincenberg, Gary S.; Lincenberg, Gary S.; American Bar Association Section of Criminal Justice; Krakoff, David S.; Krakoff, David S.Note: Supplemental materials are not guaranteed with Rental or Used book purchases.
- ISBN: 9781570736681 | 1570736685
- Cover: Hardcover
- Copyright: 3/1/1999
David S. Krakoff is a principal at Beveridge and Diamond in the Washington, D.C. He is a member of ABA and serves as vice chairman of the Environmental Crimes Committee (Section of Environment) and co-chairman of the Environmental Crimes Subcommittee of the White Collar Crime Committee (Criminal Justice Section). He is also a member of the Criminal Litigation Committee. Additionally, Mr. Krakoff is a member of the National Association of Criminal Defense Lawyers and the Edward Bennett Williams American Inn of Court Gary Lincenberg is the co-managing partner of the Los Angeles litigation firm Bird, Marella, Boxer and Wolpert. Before entering private practice, Mr. Lincenberg served as a deputy chief in the Los Angeles U.S. Attorney's Office
Preface | p. vii |
Table of Authorities | p. viii |
The Development of Environmental Criminal Prosecutions | p. 1 |
Introduction | p. 1 |
Statutory Review | p. 2 |
Growth of the Federal Environmental Criminal Program | p. 3 |
Criminal Prosecutions by State and Local Authorities | p. 6 |
The Future of Environmental Enforcement | p. 6 |
Overview of Federal Criminal Environmental Statutes | p. 10 |
Introduction | p. 10 |
Criminal Provisions of Selected Federal Environmental Statutes | p. 10 |
Resource Conservation and Recovery Act (42 U.S.C. 6901-6992k) | p. 10 |
Federal Water Pollution Control Act, or Clean Water Act (33 U.S.C. 1251-1387) | p. 11 |
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601-9675) | p. 13 |
Clean Air Act (42 U.S.C. 7401-7561q) | p. 14 |
The Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136y) | p. 14 |
Toxic Substances Control Act (15 U.S.C. 2601-2692) | p. 15 |
Money Laundering Control Act | p. 15 |
Other Statutory Tools for Prosecuting Environmental Crimes | p. 16 |
Conclusion | p. 16 |
Pretrial Proceedings in Environmental Cases | p. 21 |
Introduction | p. 21 |
Motion Practice to Manage the Case | p. 21 |
Do You Have the Time? Slowing Down the Case | p. 22 |
Trimming the Fat: Managing the Volume | p. 22 |
Motion Practice to Ferret Out Information | p. 23 |
Discovery That Is Material to Preparing the Defense | p. 23 |
Rough Notes of Statements Taken During Government Investigation | p. 24 |
Statements and Grand Jury Testimony of Current and Former Employees | p. 26 |
Summary of Expert Witness Testimony | p. 27 |
Bill of Particulars | p. 27 |
Specific Brady Requests | p. 28 |
Playing to Win: Attacks on the Indictment | p. 29 |
Cleaning Up the Indictment | p. 29 |
Constitutionally Based Challenges | p. 29 |
Challenges Grounded in Regulatory Deficiencies | p. 31 |
Paperwork Reduction Act | p. 31 |
Gaps in RCRA State Authorization | p. 33 |
Mixture Rule | p. 34 |
The Building Blocks of a Successful Defense | p. 35 |
Pretrial Evidentiary Objections | p. 35 |
Fourth Amendment Objections | p. 36 |
Rule 403 Objections | p. 36 |
Severance of Counts | p. 37 |
Understanding the Statutes: The Element of Guilty Knowledge | p. 37 |
The Resource Conservation and Recovery Act | p. 37 |
The Clean Water Act | p. 41 |
Demystify the Chemicals -- Make Them User-Friendly | p. 41 |
Attack the Science | p. 42 |
Conclusion | p. 42 |
Establish Environmental Defenses Early | p. 56 |
Introduction | p. 56 |
Establish Defenses Early | p. 56 |
Prevention | p. 57 |
Environmental Compliance Programs | p. 57 |
Self-Audits | p. 61 |
Preparation | p. 63 |
Create an Early Warning System | p. 63 |
Plan Ahead--The Value of Institutional Pessimism | p. 67 |
Investigation | p. 70 |
Protecting the Privileged Nature of the Investigation | p. 71 |
No Violation Occurred | p. 71 |
The Evidence Does Not Establish that the Accused Possessed Requisite Knowledge and Intent | p. 78 |
Estoppel by Reliance and Nonreliance | p. 81 |
Equitable Defenses | p. 83 |
Conclusion | p. 85 |
Post-Indictment Strategies in Defense of Environmental Crimes: Coordination of Legal and Technical Defenses at Trial | p. 95 |
Introduction | p. 95 |
Legal Defenses to Environmental Crimes | p. 96 |
Establishing and Presenting the Technical Defense | p. 97 |
Lack of Fair Notice and the "Knowledge" Requirement | p. 99 |
"Entrapment by Estoppel" in Environmental Cases | p. 101 |
Use of Expert Witnesses in the Technical Case | p. 102 |
Examination of Environmental Experts | p. 104 |
Direct Examination | p. 105 |
Cross-Examination | p. 106 |
Conclusion | p. 107 |
Sentencing of Environmental Crimes | p. 112 |
Introduction | p. 112 |
Guidelines for Individual Defendants | p. 112 |
No Guidelines for Corporate Defendants | p. 113 |
Applying the Guidelines | p. 113 |
Individual Defendants | p. 113 |
Chapter 2, Part Q: Offense Conduct | p. 114 |
Chapter 3: Adjustments | p. 118 |
Chapter 5: Computing and Departing from the Sentencing Range | p. 120 |
Restitution and Fines for Individual Defendants | p. 121 |
Corporate Defendants | p. 121 |
General Approach to Sentencing of Organizations | p. 122 |
Categorizing the Fine | p. 122 |
Conclusion | p. 125 |
United States Sentencing Commission: Draft Environmental Sentencing Guidelines (proposed November 1993) | p. 135 |
Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement: The Exercise of Investigative Discretion (Jan. 12, 1994) | p. 163 |
EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66,706 (1985) | p. 171 |
Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement, Forensics, and Training: Implementation of the Environmental Protection Agency's Self-Policing Policy for Disclosures Involving Potential Criminal Violations (Oct. 1, 1997) | p. 190 |
U.S. Department of Justice: Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991) | p. 197 |
Summary of EPA Authority Under Federal Environmental Laws for Administrative Inspections | p. 206 |
Sample Confidentiality Agreement | p. 210 |
Sample Memorandum to Employees Regarding Interviews by Government Investigators | p. 213 |
Sample Document Collection Instructions | p. 215 |
Sample Memorandum to Employees Regarding Grand Jury Compliance | p. 220 |
Index | p. 222 |
About the Editors | p. 231 |
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