author: CLARY, Senior District Judge.

text:
    Harold E. HARRINGTON et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1163.
    United States Court of Appeals, First Circuit.
    Heard Sept. 4, 1974.
    Decided Oct. 24, 1974.

      James R. McGowan, Providence, R. I., with whom Lester H. Salter and Salter, McGowan, Arcaro & Swartz, Incorporated Providence, R. I., were on brief, for appellants.
    Elmer J. Kelsey, Atty., Tax Div., Dept, of Justice, with whom Richard M. Roberts, Acting Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Providence, R. L, Gilbert E. Andrews, and Alfred S. Lombardi, Attys., Tax Div., Dept, of Justice, Washington, D. C., were on brief, for appellee.
    Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and CLARY, District Judge.

         Senior District Judge sitting by designation.

   CLARY, Senior District Judge.

This appeal has been taken by plaintiffs , Harold Harrington and Francis Davis, from the entry of judgment against them in favor of the United States and from the denial of their motion for a new trial. These two civil actions were consolidated and tried before The Honorable Edward W. Day and a six-person jury resulting in verdicts against the plaintiffs on their claims for refunds and in favor of the United States on its counterclaims. For the reasons set forth in this opinion, we affirm.

The relevant facts require some exposition. On November 4, 1966, the Commissioner of Internal Revenue made an assessment of $22,585.84 against both plaintiffs under authority of Section 6672 of the Internal Revenue Code of 1954. The assessments were based on plaintiffs’ asserted liability for unpaid federal income and social security taxes withheld from employees and due and owing from D & H Building Wreckers, Inc. (hereinafter D & H) for the first and second quarters of 1963. On December 16, 1966, the Commissioner, again under Section 6672, assessed the amount of $21,311.63 against Davis. This assessment was based on Davis’ asserted liability for unpaid federal income and social security taxes withheld from employees and due and owing from Sixth Wrecking, Inc. (hereinafter Sixth Wrecking) for the third and fourth quarters of 1963.

Davis subsequently paid $1,627.71 of the assessment against D & H and $103.-59 of the amount attributable to Sixth Wrecking. Harrington paid $49.91 of the amount attributable to D & H. Both plaintiffs filed claims for refunds, and filed suit for the amounts paid when the claims were disallowed. The United States filed counterclaims totalling $31,-723.05, plus interest, this amount representing the unpaid assessments; $10,-515.01 attributable to D & H and $21,-208.24 attributable to Sixth Wrecking.

D & H was a Rhode Island Corporation arid had been in business since 1955. Davis was president, treasurer and 85'%- stockholder in the company. Harrington was vice-president, secretary and 15% stockholder. During the relevant time period, the first two quarters of 1963, the company was engaged in unrelated projects in Pittsburgh, Pennsylvania, and Providence, Rhode Island. It is only the Providence operation of D & H which is of concern here in this action.

Pursuant to a May 1962 contract, D & H was demolishing buildings for the Providence Redevelopment Agency. Payment under the contract was made following the submission of monthly requisitions by D & H for work completed. The Agency would pay the requisition, less 10% held back against completion of the entire contract. The requisition for work done in May 1963 was not paid since D &. H’s insurance on the job was cancelled. When satisfactory arrangements for reinsurance could not be made, the Agency terminated its contract with D & H.

Harrington alone supervised the D & H demolition operations in Providence, although Davis would usually fly back to Providence on weekends to discuss business matters with him. Both Davis and Harrington had authority to sign checks on behalf of D & H for the Providence operation, as did Davis’ sister, Peg Paquette, who signed checks on behalf of Davis. The Employer’s Quarterly Federal Tax Returns, Form 941, submitted by D & H were signed by Davis as president of the company.

D & H was petitioned into receivership in July of 1963, and tax liens which the Internal Revenue Service filed against D & H went unsatisfied. In answer to interrogatories, both Harrington and Davis stated that D & H had sufficient funds to pay the withholding and F.I.C.A. taxes, although they offered clarifications of these answers at trial. In any event, the taxes were not paid.

While Harrington was in Providence, Davis was supervising the demolition of the Rosenbaum Building in Pittsburgh pursuant to a contract with Tenny Realty Corporation. Due to unforeseen difficulties and labor problems, D & H fell behind in its demolition schedule. Because of financing pressures, Tenney and D & H entered into a new agreement whereby Tenney would pay all expenses of demolition using D & H’s employees and equipment. To oversee the work, Tenney hired the consulting firm of Paul Channin Company of New York. Thereafter, Gilbert Cutler, a Channin employee, was present at the job site from Thursday afternoon until Friday evening each week. When D & H went into receivership in Rhode Island, work stopped immediately at the Pittsburgh site. A new corporation, Sixth Wrecking, was formed by Davis, Carmine Dis-tante, a D & H supervisor, and Davis’ father-in-law, George Piacitelli, apparently at the direction of Cutler and Tenney’s attorneys. Davis served as president of the new company which continued the demolition work.

Checks used to pay employees and creditors of D & H, and later of Sixth Wrecking, were prepared by Joseph Stanionis, a bookkeeper, at the direction of Davis. Davis was the only one who signed the checks. Davis directed Stan-ionis as to the order in which creditors were to be paid, and Davis testified that while other creditors were paid he was aware that the taxes in question remained unpaid. On October 4, 1963, Tenney and Sixth Wrecking terminated their contract.

At the close of the taxpayers’ case, the Government’s motion for a directed verdict was denied. Davis moved for a directed verdict as to his liability for the Providence taxes at the close of all the evidence, and the Government renewed its earlier motion for a directed verdict. Both motions were denied and the jury returned verdicts against the plaintiffs and in favor of the Government.

Plaintiffs advance several contentions which they feel necessitates reversal as to one or both of them. We shall consider these contentions in order.

Initially, Davis argues that the trial court erred in denying his motion for a directed verdict as to his liability for the taxes arising from the D & H activities in Providence. Before addressing this point directly, we must consider the substantive law involved. Section 6672 provides that any person required to collect, account for and pay over the requisite taxes, but who willfully fails to do so, shall be liable for a penalty equal to the amount of the taxes in default. As it applies to this case, “person” is defined to include a corporate officer or employee under a duty to collect, account for and pay over the taxes. The tax money required to be collected or withheld constitutes a special fund in trust for the United States. The penalty imposed by Section 6672 is civil in nature, United States v. Industrial Crane & Mfg. Co., 492 F.2d 772 (5th Cir. 1974), and designed to insure the protection of government revenue by assuring that taxes will be collected. Spivak v. United States, 370 F.2d 612 (2nd Cir.), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); Botta v. Scanlon, 314 F.2d 392 (2nd Cir. 1963).

The individual sought to be held liable under Section 6672 must be a “person” within the meaning of the statute, be required to collect, account for and pay over the taxes, and willfully fail to do so. United States v. Hill, 368 F.2d 617 (5th Cir. 1966). “Willful” has been defined as a voluntary, conscious and intentional decision to prefer other creditors to the United States, and the “bad motive” requirement of criminal statutes is not a necessary element. Burden v. United States, 486 F.2d 302 (10th Cir. 1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974); McCarty v. United States, 437 F.2d 961, 194 Ct.Cl. 42 (1971); Monday v. United States, 421 F.2d 1210 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). Further, delegation will not relieve one of responsibility; liability attaches to all those under the duty set forth in the statute. Braden v. United States, 442 F.2d 342 (6th Cir.), cert. denied sub nom., Bonistall v. Braden, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971).

It is proper to direct a verdict in a case where the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there is only one verdict reasonable men could reach. Fleming v. McEnany, 491 F.2d 1353 (2nd Cir. 1974). Whether the evidence is sufficient to create an issue of fact to go to the jury is solely a question of law to be determined by the court. United States ex rel. Weyerhauser Co. v. Bucon Constr. Co., 430 F.2d 420 (5th Cir. 1970); Roche v. New Hampshire Nat’l. Bank, 192 F.2d 203 (1st Cir. 1951). The same standard is to be applied by both the trial court and the reviewing appellate court; whether there is evidence upon which the jury could properly find a verdict for the party against whom the motion is directed. Ralston Purina Co. v. Edmunds, 241 F.2d 164 (4th Cir.), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). The court must view the evidence and any inferences which may reasonably be drawn from it in the light most favorable to the party opposing the motion for directed verdict. Riske v. Truck Ins. Exch., 490 F.2d 1079 (8th Cir. 1974); Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). If the evidence is of such quality and weight that reasonable men might reach different conclusions in the exercise of impartial judgment, a motion for directed verdict should be denied. Trawick v. Manhattan Life Ins. Co. of New York, N.Y., 447 F.2d 1293 (5th Cir. 1971), appeal after remand, 484 F.2d 535 (5th Cir. 1973).

Our task now is to apply the above mentioned legal principles to the facts of this case in order to determine if the evidence was sufficient to present a jury question. The record indicates that D & H had only two shareholders, Davis and Harrington. Davis was president and treasurer as well as 85% shareholder. While some question existed as to whether Davis personally signed any company checks in Providence during the first two quarters of 1963, it is clear that his sister was authorized to, and did sign company checks in his behalf. Further, Davis flew to Providence on weekends and conferred with Harrington about business matters, including finances. Davis signed the Employer’s Quarterly Federal Tax Returns, Form 941, as president of D & H and also had a D & H bank account in Pittsburgh on which Harrington testified that he (Harrington) drew no checks. When the Internal Revenue Service filed liens against money due D & H and in the hands of the Redevelopment Agency, both Davis and Harrington attended a meeting with I.R. S. personnel. Both attempted to obtain loans from two banks in order to clear up D & H’s financial difficulties. From such facts and the reasonable inferences which flow from them, the jury clearly could find that Davis was a responsible person within the meaning of the statute. The fact that Harrington testified to his sole responsibility for the Providence operation presented a question of credibility to be resolved by the trier of fact.

Davis has contended that he could not be responsible for the Providence taxes since the record indicated that such responsibility had been “delegated” to Harrington. First, it must be recognized that the definition of the word “person” is not to be so limited as to only encompass those persons specifically enumerated. Pacific Nat’l. Ins. v. United States, 422 F.2d 26 (9th Cir.), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269, rehearing denied, 400 U.S. 883, 91 S.Ct. 116, 27 L.Ed.2d 121 (1970). The term “person” is to be construed to include all those connected with a corporation so as to be responsible for the performance of the act in respect of which the violation has occurred. Liability is not limited to those employees performing merely mechanical functions of collection and payment, United States v. Graham, 309 F.2d 210 (9th Cir. 1962), but extends to all with responsibility and authority to avoid the default which constitutes a violation of the statute; even though more than one person may be liable. Scott v. United States, 354 F.2d 292, 173 Ct.Cl. 650 (1965). In this regard we have no difficulty in concluding that the issue of Davis’ responsibility properly went to the jury. The language of the Court of Claims in a similar situation is enlightening :

As a general proposition it may be safely postulated that one who is the founder, chief stockholder, president, and member of the board of directors of a corporation ... is rebut-tably presumed to be the person responsible under section [6672] of the Code and is thus liable for the penalty, in the absence of an affirmative showing by him that in actual fact he lacked the ultimate authority to withhold and pay the employment taxes in question, or that his omission was not willful in the statutory sense. McCarty v. United States, 437 F.2d 961, 967-968, 194 Ct.Cl. 42 (1971).

Since the jury could properly have found that Davis was the person with responsibility for the taxes, we find no error in the decision of the court below.

The evidence is also ample to justify a jury finding that Davis willfully preferred other creditors to the United States, all that is required under the statute. Burden v. United States, 486 F.2d 302 (10th Cir. 1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974); McCarty v. United States, 437 F.2d 961 (Ct.Cl.1971); Monday v. United States, 421 F.2d 1210 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). The evidence indicated that sufficient funds were available to pay the taxes, including $35,471.50 which D & H received from the Redevelopment Agency in the first two quarters of 1963. The unpaid D & H assessment amounted to $10,515.01.

Plaintiffs apparently would have us believe that the taxes would have been paid with sums due but not received from the Redevelopment Agency. This argument is unpersuasive, as the jury found. .The evidence is sufficient to support a finding that D & H “risked” funds properly payable to the United States and were unable to cover themselves due to business reverses. See Newsome v. United States, 431 F.2d 742, 746 (5th Cir. 1970).

Having carefully considered all of the arguments raised, we conclude that the district court did not err in denying Davis’ motion for directed verdict as to his liability for the Providence taxes of D & H.

Plaintiffs assert that various errors committed by the trial judge concerning the admissibility of evidence constitute a second ground for reversal. The trial judge excluded plaintiffs’ Exhibits numbers 6, 7 and 8 from evidence and admitted defendant’s Exhibits L and M. After a careful review of the record, we find the claims of plaintiffs are without merit.

Exhibit 6 was a copy of an agreement purporting to be a modification of the D & H-Tenney contract for the Pittsburgh demolition. The agreement was unsigned and accompanied by a cover letter from a Providence law firm to one in Chicago. The trial judge excluded the evidence as failing to comply with the “best evidence” rule. Contrary to the argument advanced by plaintiffs in their brief, it is they, and not the court, who misconceived the application of the “best evidence” rule.

We note first that the admission and exclusion of evidence is primarily within the discretion of the trial judge, and this determination will not be disturbed absent a showing of abuse of discretion. Control Data Corp. v. International Business Machine Corp., 421 F.2d 323 (8th Cir. 1970); Great American Ins. Co. v. Horab, 309 F.2d 262 (8th Cir. 1962); 1 J. Wigmore, Evidence § 16 (3d ed. 1940). The “best evidence” rule requires that in proving the terms of a writing where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. McCormick, Evidence § 230 (2d ed. 1972). Secondary evidence is admissible in place of the unavailable original, but only if the proponent shows that a reasonable and diligent search has been made for the original without success. Sylvania Elec. Prod., Inc. v. Flanagan, 352 F.2d 1005 (1st Cir 1965).

With respect to Exhibit 6, plaintiffs have failed io make a satisfactory showing of the original’s unavailability. Davis testified that he had “checked with” the D & H receiver, Mr. Sweeney, but could not get the original document. Davis’ counsel then produced a Rhode Island Superior Court order relating to the original’s unavailability. The trial court found that the order authorizing the records and papers in the possession of the D & H receiver to “be disposed of” was ambiguous. From these facts, the trial court concluded that the showing of unavailability of the original document was inadequate; a finding which we are not persuaded should be disturbed. Sylvania Elec. Prod., Inc. v. Flanagan, 352 F.2d 1005 (1st Cir. 1965).

Exhibit 7 was a letter dated May 24, 1963 from Carl E. Glock, Jr., a Pittsburgh attorney, to Gilbert Cutler, dealing with the payment of taxes of D & H for periods prior to those in question. The trial court excluded the evidence as irrelevant since the taxes involved in this suit were those of Sixth Wrecking for the third and fourth quarters of 1963, while the letter referred to D & H taxes for 1962 and the first two quarters of 1963. All D & H taxes in Pittsburgh had been paid by the time of this action. Plaintiffs’ counsel admitted that the letter related to no part of the taxes at issue. We find the decision by the trial judge to be within the scope of his discretion, and that this discretion was not abused.

Exhibit 8 was an indemnification agreement entered into between Davis and Tenney on October 4, 1963. By the terms of the agreement, Tenney agreed to indemnify and save Davis harmless againt all just claims of the United States, the Commonwealth of Pennsylvania, and the City of Pittsburgh, for taxes due from D & H and from Sixth Wrecking, and all just claims against Sixth Wrecking for amounts incurred with the approval of Gilbert Cutler. The trial judge excluded this exhibit. We agree with plaintiffs that this was an indemnification agreement; however, we also agree with the trial court that it was properly excluded.

We reiterate that the trial judge has broad discretion in admitting evidence, especially where the case is tried before a jury, Olin-Mathieson Chem. Corp. v. Allis-Chalmers Mfg. Co., 438 F.2d 833 (6th Cir. 1971), and the court may exclude in its sound discretion evidence relating to collateral issues. New Mexico Sav. & Loan Ass’n. v. United States Fidelity & Guar. Co., 454 F.2d 328 (10th Cir. 1972). As we view this document, Tenney has agreed to reimburse Davis for sums for which Davis may be legally liable. Clearly indemnification alone is contemplated. This is a private contract between Tenney and Davis, and regardless of the rights and liabilities which exist between these parties, the agreement has no bearing on the liability of Davis to the United States. The agreement contains no indication that Tenney had agreed to be responsible for the payment of the taxes should Davis fail to pay them. It is only if Davis is first found liable for withheld taxes that Ten-ney is obligated by the contract to indemnify him.

Furthermore, as the Government explained in its brief and at oral argument, the employer [through Davis, its responsible officer] was required to make monthly deposits with authorized banks. These deposit periods would fall approximately on August 15 and September 15, 1963. Since the agreement was entered into on October 4, 1963, we think the district court could reasonably conclude that it was immaterial to whether or not Davis should be relieved of responsibility for the taxes.

As the last evidentiarypoint, plaintiffs contend that the trial court erred in admitting Exhibits L and M which were executed on October 4, 1963, and are labelled “releases.” Both were signed by Davis, Exhibit L as president of Sixth Wrecking and Exhibit M as president of D & H. These exhibits evidenced Davis’ position within Sixth Wrecking, and tended to establish that he was “responsible” for the withholding taxes. After considering plaintiffs’ argument that the exhibits should be treated as a set, and the set either admitted or excluded in toto for “completeness,” we find that the trial judge did not abuse his discretion in admitting Exhibits L and M and excluding Exhibit 8. No rule of “completeness” requires the admission of separate and distinct documents merely because they were executed on the same day. The completeness concept allows the admission of documents which refer to a writing previously admitted, or which are necessary for a proper understanding of a previous writing, even though no internal reference is found. We think the court did not exceed its discretion. YII J. Wigmore § 2104 (3d ed. 1940).

The third ground to challenge the decision below concerns the charge of the trial judge. Plaintiffs first object to specific points of the charge and we will dispose of these briefly. We affirm the use by the trial judge of that portion reading:

Whether either or both of the plaintiffs who were officers of D & H Building Wreckers, Inc. and who were responsible for collecting, truthfully accounting for and paying over to the Internal Revenue Service federal withholding and Social Security taxes withheld from wages or salaries paid by said corporation during the first and second quarters of 1963, failed to do so; and whether their failure to do so was wilful [sic] within the meaning of Section 6672 of the Internal Revenue Code of 1954.

The issue of who was responsible presented a jury question. However, since the evidence was overwhelming and the charge as a whole may be read leaving the ultimate decision to the jury, we find no prejudice. There is no evidence in the record that would support any other result and therefore the alleged error would be harmless.

The court instructed the jury that a corporation can only act through its officers, directors and employees. This portion of the charge also brought an objection, but we find such objection without merit. The trial judge merely stated one of the most basic propositions of corporation law to the enlightenment, and not the confusion, of the jury. There is also no error in the court’s charge that an individual need not be in day to day control of the administrative and financial aspects of the business in order to be the responsible person within the meaning of Section 6672, so long as he has the right to control such aspects of the business. This was a correct statement of the law. See Monday v. United States, 421 F.2d 1210 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); Hewitt v. United States, 377 F.2d 921 (5th Cir. 1967).

Having found no error in the charge of the trial court as given, we must now turn to plaintiffs’ allegations of error in denying their points for charge. The only significant issue presented is whether it was error for the trial court to exclude the qualification of “without reasonable cause or justifiable excuse” from the definition of “willful.” “Willful” was defined as a voluntary, conscious and intentional act, without a need to show bad motive or intent to defraud the United States.

On the question of whether the definition of willful includes the element of “without reasonable cause” or “justifiable excuse” there exists a split of authority among the circuits. Although some decisions have not addressed this precise issue, see Burden v. United States, 486 F.2d 302 (10th Cir. 1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974), two clearly identifiable positions can be ascertained. One line of authority, represented by Monday v. United States, 421 F.2d 1210 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970), holds that the test of willfulness excludes a “reasonable cause” or “justifiable excuse” element. The opposite position is best exemplified by Newsome v. United States, 431 F.2d 742 (5th Cir. 1970), which recognizes a limited “reasonable cause” or “justifiable excuse” element in the definition of “willfulness.” At least one circuit appears to have an internal conflict on the point. We have not yet had occasion to confront the issue.

After careful consideration of the arguments advanced by counsel and a careful examination of existing ease law, we adopt the view enunciated in Monday and hold that an act is “willful” within the meaning of Section 6672 if it is voluntary, conscious and intentional; no bad motive or intent to defraud the United States need be shown, and a “reasonable cause” or “justifiable excuse” element has no part in this definition.

Several factors lead us to adopt this position. First, as the Seventh Circuit noted in Monday, a standard that encompasses lack of “reasonable cause” or “justifiable excuse” is a ready source of confusion. It may either inject the “bad motive” concept into the civil test of willfulness, or invite consideration of irrelevant elements such as the financial condition of business. Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). Further, the standard which we adopt is more likely to result in the protection of government revenue, the primary purpose of the statute. Botta v. Scanlon, 314 F.2d 392 (2d Cir. 1963). Finally, we note that while “reasonable cause” is an element of other sections of the statute, it is not made so in Section 6672. We cannot assume that Congress has made an oversight in this regard. If any inference is to be drawn, it is that Congress intended lack of “reasonable cause” to be an element in certain sections of the statute and not in others. Section 6672 falls into this latter category, and we conclude, therefore, that Congress acted knowingly in excluding the lack of “reasonable cause” element from the definition of willfulness.

Plaintiffs have brought several miscellaneous points to our attention, and we will deal with each briefly.

Plaintiffs assert that the trial court erred in denying plaintiffs’ counsel the opportunity to state on the record his objections, with the reasons therefor, to the court’s failure to give plaintiffs’ requested jury instructions, as required by Rule 51. As this court has previously stated:

The object of this rule is to afford the trial judge an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge. The rule also serves to lessen the potential burden of appellate courts by diminishing the number of rulings at the trial which they may be called upon to review. Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955).

Application of Rule 51 also prevents counsel from shielding himself behind a recitation of numbered points and then developing these points on appeal when the trial judge has not had sufficient opportunity to consider the objections. See United States v. Lachmann, 469 F.2d 1043 (1st Cir. 1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973).

The record below indicates that the plaintiffs’ counsel discussed the requested instructions with the trial judge in chambers at length. Further extensive discussion on the record would not advance the purpose of Rule 51 since all objections had already been painstakingly considered. Plaintiffs’ counsel did briefly state their exceptions on the record, as well as their reasons for objecting to the charge as given. The trial judge indicated he was familiar with the decision in Lachmann and had fully examined the plaintiffs’ points for charge. We are satisfied on these facts that the policies of both Rule 51 and Lachmann were substantially met.

Plaintiffs also object to the court’s failure to give certain requested instructions. The function of the appellate court with respect to jury instructions is to satisfy itself that the instructions show no tendency to confuse or mislead the jury with respect to the applicable principles of law. Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970). The fairness of the charge cannot be determined by considering only a portion out of context, the entire charge must be examined. Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d 710 (1st Cir.), cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673, rehearing denied, 385 U.S. 890, 87 S.Ct. 14, 17 L.Ed.2d 122 (1966). The purpose of jury instructions is to advise the jury on the proper legal standards to be applied in determining issues of fact as to the case before them. Daly v. Moore, 491 F.2d 104 (5th Cir. 1974). The trial court is not obligated to give instructions which are erroneous or misleading, Hiatt v. New York Cent. R. R., 411 F.2d 743 (7th Cir. 1969), nor to use the precise words proposed by one party in its instructions; it is sufficient if the principle of law is correctly stated. Gray v. Shell Oil Co., 469 F.2d 742 (9th Cir.), cert. denied, 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973). Applying these standards, we find no error in the charge of the trial court.

Plaintiffs’ remaining assignments of error are patently without merit. We have considered each of them and find no ground for reversal.

Affirmed.

      . Section 6672 provides in pertinent part : Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.

      . The taxes at issue are those withheld by an. employer for Social Security (F.I.C.A.) and federal income tax pursuant to Sections 3102 and 3402. Int.Rev.Code of 1954, §§ 3102, 3402.

      . Tiie term “person”, as used in this sub-chapter, includes an officer or employer of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs. Int.Rev.Code of 1954, § 6671(b).

      . Int.Rev.Code of 1954, § 7501; Monday v. United States, 421 F.2d 1210 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970).

      . Since some of the “disposed of” documents (in the form of checks) appeared later in the trial, it would seem that hindsight justifies the trial judge’s misgivings concerning the unavailability of the originals.

      . 26 C.F.R. § 31.6302(c)-!.

      . See Annot., 22 A.L.R.3d 8, 88-96 (1968).

      . See also, McCarty v. United States, 437 F.2d 961, 194 Ct.Cl. 42 (1971) ; United States v. Strebler, 313 F.2d 402 (8th Cir. 1963) ; Bloom v. United States, 272 F.2d 215 (9th Cir.), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960).

      . The view expressed in Newsome has found its greatest development in the Fifth Circuit. See, Gefen v. United States, 400 F.2d 476 (5th Cir. 1968) ; Cash v. Campbell, 346 F.2d 670 (5th Cir. 1965) ; Frazier v. United States, 304 F.2d 528 (5th Cir. 1962).

      . Compare, Datlof v. United States, 252 F.Supp. 11 (E.D.Pa.), aff’d 370 F.2d 655 (3d Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 624 (1967) with United States v. Slattery, 224 F.Supp. 214 (E.D.Pa.1963), aff’d per curiam, 333 F.2d 844 (3d Cir. 1964).

      . See, e. g., Int.Pev.Code of 1954 §§ 6651, 6652, 6656.


source: Caselaw Access Project

author: EDWARDS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ASHLAND OIL AND TRANSPORTATION CO., a subsidiary of Ashland Oil Co., Inc., Defendant-Appellant.
    No. 73-2161.
    United States Court of Appeals, Sixth Circuit.
    Nov. 1, 1974.

      Ralph W. Wible, Owensboro, Ky., for defendants-appellants.
    A. Duane Schwartz, George Long, Asst. U. S. Attys., Louisville, Ky., James Lawrence Zimmerman, John Vance Hughes, E.P.A. — Region 4, Atlanta, Ga., Wallace H. Johnson, Edmund B. Clark, Carl Strass, Dept, of Justice, Appellate Section, Land and Natural Resources Div., Washington, D.C., for plaintiff-ap-pellee.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   EDWARDS, Circuit Judge.

This case poses three questions of vital importance to protection of the water resources of these United States:

1) Did Congress in adopting the Federal Water Pollution Control Act Amendments of 1972 intend to control both discharges of pollutants directly into navigable waters and discharges of pollutants into nonnavigable tributaries which flowed into navigable rivers? We answer this question “yes.”

2) Does Congress have constitutional authority under its interstate commerce powers to prohibit discharge of pollutants into nonnavigable tributaries of navigable streams? We answer this question “yes.”

3) Assuming the affirmative answers set forth above, under the Federal Water Pollution Control Act is the government required to bear the burden of proof to establish not only that (as here) pollutants were discharged into a non-navigable tributary of a navigable river, but that in fact these same pollutants reached and polluted the navigable river? We answer this question “no.”

Defendant-appellant Ashland Oil was indicted for failing “immediately” to report the discharge of 3,200 gallons of oil into the water of Little Cypress Creek on February 20, 1973. The indictment alleged violation of 33 U.S.C. § 1321(b)(5) of the Federal Water Pollution Control Act Amendments of 1972. The statutory provisions directly concerned are:

“(5) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal ease, except a prosecution for perjury or for giving a false statement.” 33 U.S.C. § 1321 (b)(5) (1972).
“(3) The discharge of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone in harmful quantities as determined by the President under paragraph (4) of this subsection, is prohibited, except (A) in the case of such discharges of oil into the waters of the contiguous zone, where permitted under article IV of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended, and (B) where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful. Any regulations issued under this subsection shall be consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards.” 33 U.S.C. § 1321(b)(3) (1972).

The case was tried before Judge James Gordon in the United States District Court for the Western District of Kentucky. Ashland Oil was found guilty and on recommendation of the United States Attorney was fined $500.

On appeal Ashland claims that Congress does not have the constitutional power to control pollution of nonnavi-gable tributaries of navigable streams and has not sought to do so in the statutes quoted above, that these statutes being criminal in nature should be strictly construed against the government, that Little Cypress Creek was non-navigable in fact, that the discharge never reached “navigable waters,” and that anyway it (Ashland) did report the oil discharge “immediately.”

The case was tried chiefly on an extensive stipulation of facts:

“STIPULATION — Filed September 20, 1973
Now comes the parties, by counsel, and stipulate as follows:
1. Ashland Oil and Transportation Company, a subsidiary of Ashland Oil Incorporated was a person in charge of the pipeline which discharged crude oil.
2. The Ashland Oil and Transportation Company pipeline from which the discharge occurred is located on and under land within the Western District of Kentucky, in Muhlenburg County, Kentucky.
3. The oil discharged directly into the waters of a small tributary to Little Cypress Creek at a point approximately 100 feet from the tributary’s confluence with Little Cypress Creek.
4. Ashland Oil and Transportation Company had certain knowledge of the exact location and origin of the spill by 7:00 p. m., February 20, 1973.
5. Ashland Oil and Transportation Company reported the spill to the United States Environmental Protection Agency in Atlanta through Mr. A. D. Headley, its employee, at 10:10 a. m., February 21, 1973.
6. Ashland Oil and Transportation Company discharge approximately 3200 gallons of crude oil which created a visible sheen on Little Cypress Creek before 7:00 p. m., February 20, 1973.
7. The Green River is navigable in fact at the point that Pond River empties into it.
8. That Cypress Creek is a tributary to Pond River and Pond River is a tributary to Green River.
9. Little Cypress Creek is a tributary to Cypress Creek.
10. Illinois Central Railroad and Peabody Coal Company both are engaged in interstate commerce and both discharge into Little Cypress Creek.
11. The Central City Kentucky Sewage Treatment Plant treats the waste coming from several motels and restaurants which are engaged in interstate commerce, and it discharges into Little Cypress Creek.
12. A portion of the Western Kentucky Parkway, a four lane toll road and major highway for interstate commerce running east and west through the State of Kentucky, is drained by Little Cypress Creek.
13. The Little Cypress Creek drains many farms through which it flows. These farms use equipment and materials which are received through interstate commerce, and their products affect interstate commerce.
14. The Little Cypress Creek drains the area in which Ashland Oil and Transportation Company facilities are located.
15. While the defendant does not stipulate in any way that it degraded the quality of the water of Little Cypress Creek, the parties do stipulate that the quality of the water in Little Cypress Creek affects the produce of the farms that it drains and to which it supplies water.
16. Ashland Oil and Transportation Company was aware on February 20, 1973 that the U. S. Environment Protection Agency and U. S. Coast Guard each maintains 24 hour telephone services for receiving reports of oil and hazardous material spills.”

As noted above in the stipulation, Little Cypress Creek is a tributary to Cypress Creek, which is a tributary to Pond River, which is a tributary to Green River. The stipulation indicates that of these, only Green River is actually a navigable river “in fact” in terms of waterborne commerce.

I Interpretation of the Act

The Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 through 1376, was first enacted in 1948. It was amended many times until it was substantially revised and reenacted in 1972. It is this statute which contains the two enforcement paragraphs, previously quoted, upon which the prosecution of this case depends. We do not, however, believe that § 1321(b)(3) and (5) can properly be interpreted without reference to the whole of the Congressional scheme of which they are merely a small, if important, part. To understand Congress’ purposes, we need to refer to the national goals and policies which Congress adopted:

“(a) The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter—
(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;
(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;
(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and
(6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans.” 33 U.S.C. § 1251(a)(1-6) (1972).

Since the term “navigable waters” is employed in the first stated national goal, it is important at the outset to quote the definition of that term which was added by the 1972 Amendments and is applicable to the whole chapter:

“Except as otherwise specifically provided, when used in this [chapter] :
* -X- * * X X
(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (1972).

In the same definition section, the term “pollution” is defined:

“(19) The term ‘pollution’ means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” 33 U.S.C. § 1362(19) (1972).

The intention of Congress to eliminate or drastically reduce water pollution throughout the waters of the United States is made clear in many provisions of the Act, of which the following are only a sample:

“(a) The Administrator shall, after careful investigation, and in cooperation with other Federal agencies, State water pollution control agencies, interstate agencies, and the municipalities and industries involved, prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters. In the development of such comprehensive programs due regard shall be given to the improvements which are necessary to conserve such waters for the protection and propogation of fish and aquatic life and wildlife, recreational purposes, and the withdrawal of such waters for public water supply, agricultural, industrial, and other purposes. For the purpose of this section, the Administrator is authorized to make joint investigations with any such agencies of the condition of any waters in any State or States, and of the discharges of any sewage, industrial wastes, or substance which may adversely affect such waters.
X X X X X- X
“(e)(1) The Administrator shall, at the request of the Governor of a State, or a majority of the Governors when more than one State is involved, make a grant to pay not to exceed 50 per centum of the administrative expenses of a planning agency for a period not to exceed three years, which period shall begin after October 18, 1972, if such agency provides for adequate representation of appropriate State, interstate, local, or (when appropriate) international interests in the basin or portion thereof involved and is capable of developing an effective, comprehensive water quality control plan for a basin or portion thereof.
* * * * * w
“(3) For the purposes of this subsection the term ‘basin’ includes, but is not limited to, rivers and their tributaries, streams, coastal waters, sounds, estuaries, bays, lakes, and portions thereof, as well as the lands drained thereby.” 33 U.S.C. § 1252(a), (c) (1), (3) (1972).
“(a) The Administrator shall establish national programs for the prevention, reduction, and elimination of pollution and as part of such programs shall—
* * * -X* -X- *
“(5) in cooperation with the States, and their political subdivisions, and other Federal agencies establish, equip, and maintain a water quality surveillance system for the purpose of monitoring the quality of the navigable waters and ground waters and the contiguous zone and the oceans and the Administrator shall, to the extent practicable, conduct such surveillance by utilizing the resources of the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, the Geological Survey, and the Coast Guard, and shall report on such quality in the report required under subsection (a) of section 1375 of this title;
* * * * *■ *
“(i) The Administrator, in cooperation with the Secretary of the department in which the Coast Guard is operating, shall—
(1) engage in such research, studies, experiments, and demonstrations as he deems appropriate, relative to the removal of oil from any waters and to the prevention, control, and elimination of oil and hazardous substances pollution; . . . .”33 U.S.C. § 1254(a)(5), (i)(1) (1972).

Other Congressional concerns with water pollution which extend far beyond waters which are navigable in fact are § 1254(n), dealing with studies of the effects of pollution upon estuaries and estuarial zones, § 1254 (p), agricultural pollution, § 1254(q), studies of sewage in rural areas, and § 1255(b), demonstration projects for control of pollution in river basins.

Important definitions include:

“(a) For the purpose of this section, the term — ■
(1) ‘oil’ means oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil;
* * * * * *
(5) ‘United States’ means the States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands;
* * * * * -X-
(8) ‘remove’ or ‘removal’ refers to removal of the oil or hazardous substances from the water and shorelines or the taking of such other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches;
*X* * * # * *
(10) ‘onshore facility’ means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land; * * * *” 33 U.S.C. § 1321(a)(1), (5), (8), (10) (1972).

Section 1321(b)(1) provides:

“The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.”

Section 1321(c)(1) provides:

“Whenever any oil or a hazardous substance is discharged, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, the President is authorized to act to remove or arrange for the removal of such oil substance at any time, unless he determines such removal will be done properly by the owner or operator of the vessel, onshore facility, or offshore facility from which the discharge occurs.”

Section 1321(e) provides:

“In addition to any other action taken by a State or local government, when the President determines there is an imminent and substantial threat to the public health or welfare of the United States, including, but not limited to, fish, shellfish, and wildlife and public and private property, shorelines, and beaches within the United States, because of an actual or threatened discharge of oil or hazardous substances into or upon the navigable waters of the United States from an onshore or offshore facility, the President may require the United States attorney of the district in which the threat occurs to secure such relief as may be necessary to abate such threat, and the district courts of the United States shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.” 33 U.S.C. § 1321(b)(1), (c)(1), (e) (1972).

We have indulged this much quotation from the statutory language in order to make the point that Congress’ clear intention as revealed in the Act itself was to effect marked improvement in the quality of the total water resources of the United States, regardless of whether that water was at the point of pollution a part of a navigable stream.

We believe Congressional intent was accurately portrayed by Representative Dingell, one of the active supporters of S. 2770:

“Several of the provisions of the conference report deserve special mention in aid of explaining the intent of Congress with regard to the administration and enforcement of the revised Federal Water Pollution Control Act. Also, there are several provisions which give me special concern.
* * * * * *
“Third, the conference bill defines the term ‘navigable waters’ broadly for water quality purposes. It means all ‘the waters of the United States’ in a geographical sense. It does not mean ‘navigable waters of the United States’ in the technical sense as we sometimes see in some laws.
“The new and broader definition is in line with more recent judicial opinions which have substantially expanded that limited view of navigability— derived from the Daniel Ball case (77 U.S. 557, 563 [10 Wall. 557, 19 L.Ed. 999]) — to include waterways which would be ‘susceptible of being used * * * with reasonable improvement,’ as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, et cetera.
“The U. S. Constitution contains no mention of navigable waters. The authority of Congress over navigable waters is based on the Constitution’s grant to Congress of ‘Power * * * To regulate commerce with Foreign Nations and among the several States * * * ’ (art. I, see. 8, clause 3). Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 [6 L.Ed. 23] (1824). Although most interstate commerce 150 years ago was accomplished on waterways, there is no requirement in the Constitution that the waterway must cross a State boundary in order to be within the interstate commerce power of the Federal Government. Rather, it is enough that the waterway serves as a link in the chain of commerce among the States as it flows in the various channels of transportation — highways, railroads, air traffic, radio and postal communication, waterways, et cetera. The ‘gist of the Federal test’ is the waterway’s use ‘as a highway,’ not whether it is ‘part of a navigable interstate or international commercial highway.’ Utah v. United States, 403 U.S. 9, 11 [91 S.Ct. 1775, 29 L.Ed.2d 279] (1971); U. S. v. Underwood, 4 ERC 1305, 1309 [344 F.Supp. 486] (D.C., Md., Fla., Tampa Div., June 8, 1972).
“Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill. Indeed, the conference report states on page 144:
‘The conferees fully intend that the term navigable waters be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.’ ” 118 Cong.Rec. 33756-57 (1972).

With the broad sweep of the Act in our minds and with this specific legislative interpretation by one of the House floor managers of the bill, we turn directly to the problems of statutory interpretation posed by this case. Appellant claims that the two paragraphs of Section 311 of the Act (33 U.S.C. § 1321 (b)(3), (5)) which are directly involved in this prosecution (See page 1319, supra) apply only to “navigable waters of the United States” in the classical meaning accorded them in 1871 in the case of The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871).

Judge Gordon responded to this argument:

“In form of a motion to dismiss, defendant contended that Section 311 of the Act applies only to the classical ‘navigable waters of the United States,’ and, therefore, does not provide jurisdiction over discharges into ‘waters of the United States’ as alleged in the information. That motion is denied.
“To determine the clear meaning of the questioned criminal provision, one need go no further than the definitions provided in the Act. Congress defined ‘navigable waters’ as ‘waters of the United States.’ [33 U.S.C. § 1362 (7)]. To determine whether an oil discharge has entered waters regulated by Section 311 of the Act, a citizen simply inserts the statutory definition in place of the term ‘navigable waters.’ That navigable waters is sometimes followed by a prepositional phrase does not alter this obvious result except perhaps to emphasize the inclusion of the waters of all the geographic areas listed in the definition of ‘United States.’ [Section 311(5) of the Act; 33 U.S.C. Section 1321(5)]. Thus, it is unnecessary to rely on the government's supplemental argument that well established judicial philosophy ‘forbids a narrow, cramped reading’ of pollution legislation. United States v. Standard Oil Co., 384 U.S. 224, 226 [86 S.Ct. 1427, 16 L.Ed.2d 492] (1966); United States v. Republic Steel Corp., 362 U.S. 482, 491 [80 S.Ct. 884, 4 L.Ed.2d 903] (I960).”

As Judge Gordon recognized, Congress in 1972 adopted a new definition of the term “navigable waters” for purposes of the Federal Water Pollution Control Act. The definition was added at a most meaningful point in Congress’ consideration of the Act by the Joint House Senate Conference Committee. It was placed in the general definition section, 33 U.S.C. § 1362(7) (1972), following the words “Except as otherwise specifically provided, when used in this [chapter] The definition reads “(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas.”

Like the District Judge, we believe Congress knew exactly what it was doing and that it intended the Federal Water Pollution Control Act to apply, as Congressman Dingell put it, “to all water bodies, including main streams and their tributaries.” Certainly the Congressional language must be read to apply to our instant case involving pollution of one of the tributaries of a navigable river. Any other reading would violate the specific language of the definition just quoted and turn a great legislative enactment into a meaningless jumble of words.

II The Constitutional Power

Whatever Congress may have intended, its enactments to be valid must be within its legislative authority under the Constitution of the United States. Our forefathers in writing the Constitution could have had no concept of the water pollution problems of today. But they had a specific concept of the importance of interstate commerce and specifically gave Congress power to regulate it:

“The Congress shall have Power
To regulate Commerce among the several States. . . . ”
U.S.Const, art. I, § 8, cl. 3.

Likewise, the authors of the Constitution provided Congress broad legislative authority to pass laws concerning future unknown problems which might affect the health and welfare of the nation:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S.Const, art. I, § 1.
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . .
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S.Const, art. I, § 8.

See Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937); City of Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274 (1945).

We believe that the language of the Federal Water Pollution Control Act and its legislative history show that the United States Congress was convinced that uncontrolled pollution of the nation’s waterways is a threat to the health and welfare of the country, as well as a threat to its interstate commerce.

Obviously water pollution is a health threat to the water supply of the nation. It endangers our agriculture by rendering water unfit for irrigation. It can end the public use and enjoyment of our magnificent rivers and lakes for fishing, for boating, and for swimming. These health and welfare concerns are, of course, proper subjects for Congressional attention because of their many impacts upon interstate commerce generally. But water pollution is also a direct threat to navigation — the first interstate commerce system in this country’s history and still a very important one.

Some years ago the United States Supreme Court supplied a dramatic illustration of this last problem:

“The seaman lost his life on the tug Arthur N. Herron, which, on the night of November 18, 1952, while towing a scow on the Schuylkill River in Philadelphia, caught fire when an open-flame kerosene lamp on the deck of the scow ignited highly flammable vapors lying above an extensive accumulation of petroleum products spread over the surface of the river. Several oil refineries and facilities for oil storage, and for loading and unloading petroleum products, are located along the banks of the Schuylkill River. The trial court found that the lamp was not more than three feet above the water.” Kernan v. American Dredging Co., 355 U.S. 426, 427, 78 S.Ct. 394, 395, 2 L.Ed.2d 382 (1958).

We also know (and we take judicial notice) that two of the important rivers of this circuit, the Rouge River in Dear-born, Michigan, and the Cuyahoga River in Cleveland, Ohio, reached a point of pollution by flammable materials in the last ten years that they repeatedly caught fire. Such pollution is an obvious hazard to navigation which Congress has every right to seek to abate under its interstate commerce powers.

It would, of course, make a mockery of those powers if its authority to control pollution was limited to the bed of the navigable stream itself. The tributaries which join to form the river could then be used as open sewers as far as federal regulation was concerned. The navigable part of the river could become a mere conduit for upstream waste.

Such a situation would have vast impact on interstate commerce. States with cities and industries situated upstream on the nonnavigable tributaries of our great rivers could freely use them for dumping raw sewage and noxious industrial wastes upon their downstream neighboring states. There would be great pressure upon the upstream states to allow such usage. Reduced industrial costs and lower taxes thus resulting would tend to place industries, cities and states located on navigable rivers at a considerable competitive disadvantage in interstate commerce. In such a situation industrial frontage on a creek which flowed ultimately into a navigable stream would become valuable as an access point to an effectively unrestricted sewer.

The courts have taken no such narrowly restricted view of either the commerce power or the navigational servitude. In Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941), the state of Oklahoma sought to restrain the building of the Denison Reservoir on the Red River. At the point in question in Oklahoma the Red River was not and never had been navigable. The Denison project had been authorized by Congress “to control the watershed of one of the principal tributaries of the Mississippi in alleviation of floods in the lower Red River and Mississippi Valleys.” Oklahoma ex rel. Phillips v. Atkinson Co., swpra at 520, 61 S.Ct. at 1057. The Supreme Court held that “[I]t is clear that Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.” Id. at 523, 61 S.Ct. at 1058. Nonnavigability of the stream controlled was held irrelevant because the Congressional act had an effect on the total commerce function of the navigable river. The opinion also said:

“We would, however, be less than frank if we failed to recognize this project as part of a comprehensive flood-control program for the Mississippi itself. But there is no constitutional reason why Congress or the courts should be blind to the engineering prospects of protecting the nation’s arteries of commerce through control of the watersheds. There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries. Nor is there a constitutional necessity for viewing each reservoir project in isolation from a comprehensive plan covering the entire basin of a particular river. We need no survey to know that the Mississippi is a navigable river. We need no survey to know that the tributaries are generous contributors to the floods of the Mississippi. And it is common knowledge that Mississippi floods have paralyzed commerce in the affected areas and have impaired navigation itself. We have recently recognized that ‘Flood protection, watershed development, recovery of the cost of improvements through utilization of power are . . . parts of commerce control.’ United States v. Appalachian Power Co., supra, [311 U.S. 377], page 426 [61 S.Ct. 291, page 308, 85 L.Ed. 243], And we now add that the power of flood control extends to the tributaries of navigable streams. For, just as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or' in part in flood control on its tributaries. As repeatedly recognized by this Court from M’Culloch v. Maryland, 4 Wheat. 316 [4 L.Ed. 579] to United States v. Darby, 312 U.S. 100 [61 S.Ct. 451, 85 L.Ed. 609], the exercise of the granted power of Congress to reguiate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce.” Oklahoma ex rel. Phillips v. Atkinson Co., supra at 525-526, 61 S.Ct. at 1059-1060. (Emphasis added.) (Footnote omitted.)

The parallel seems clear to us. Pollution control of navigable streams can only be exercised by controlling pollution of their tributaries. If “the power of flood control extends to the tributaries of navigable streams,” (see emphasized language above) then we believe that the power of pollution control extends to the tributaries of navigable streams likewise.

If the Atkinson case left any doubt, it was surely resolved in United States v. Grand River Dam Authority, 363 U.S. 229, 80 S.Ct. 1134, 4 L.Ed.2d 1186 (1960). In this case Oklahoma as a state desired to develop power projects on the Arkansas River, and Congress by the 1941 Flood Control Act, adopted one of the sites at Fort Gibson which Oklahoma had franchised to a state agency. The state agency sued for compensation and the Supreme Court said:

“The Government contends that the navigational servitude of the United States extends also to nonnavigable waters, pre-empting state-created property rights in such waters, at least when asserted against the Government. In the view we take in this ease, however, it is not necessary that we reach that contention. Congress by the 1941 Act, already mentioned, adopted as one work of improvement ‘for the benefit of navigation and the control of destructive floodwaters’ the reservoirs in the Grand River. That action to protect the ‘navigable capacity’ of the Arkansas River (United States v. Rio Grande Irrigation Co., 174 U.S. 690, 708 [19 S.Ct. 770, 777, 43 L.Ed. 1136]) was within the constitutional power of Congress. We held in Oklahoma v. Atkinson Co., 313 U.S. 508 [61 S.Ct. 1050, 85 L.Ed. 1487], that the United States over the objection of - Oklahoma could build the Denison Dam on the Red River, also nonnavigable, but a tributary of the Mississippi. We there stated, ‘There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries.’ Id., [313 U.S.] at 525 [61 S.Ct. at 1059], And see United States v. Appalachian Power Co., 311 U.S. 377, 426 [61 S.Ct. 291, 308, 85 L.Ed. 243]; Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 373 [69 S.Ct. 114, 121, 93 L.Ed. 64], We also said in Oklahoma v. Atkinson Co., supra, that ‘. . . the power of flood control extends to the tributaries of navigable streams.’ Id., [313 U.S.] at page 525 [61 S.Ct. [1050], at pages 1059, 1060], We added, ‘It is for Congress alone to decide whether a particular project, by itself or as part of a more comprehensive scheme, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. That determination is legislative in character.’ Id., [313 U.S.] at 527 [61 S.Ct. [1050], at 1060]. We held that the fact that the project had a multiple purpose was irrelevant to the constitutional issue, Id., [313 U.S.] at 528-534 [61 S.Ct. at 1060-1063] as was the fact that power was expected to pay the way. Id., [313 U.S.] at 533 [61 S.Ct. at 1063] ‘[T]he fact that ends other than flood control will also be served, or that flood control may be relatively of lesser importance, does not invalidate, the exercise of the authority conferred on Congress.’ Id., [313 U.S.] at 533-534 [61 S.Ct. at 1063].” United States v. Grand River Dam Authority, supra, at 232-233, 80 S.Ct. at 1136-1137. (Footnote omitted.)

In another and somewhat earlier case the Supreme Court had recognized that the government’s right to aid navigation sometimes impinges on the advantages otherwise owned by riparian owners. In United States v. Willow River Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945), the Court said:

“Operations of the Government in aid of navigation ofttimes inflict serious damage, or inconvenience or interfere with advantages formerly enjoyed by riparian owners, but damage alone gives courts no power to require compensation where there is not an actual taking of property.” Id. at 510, 65 S.Ct. at 767.

Thus, the doctrine of navigational servitude entitles the federal government to control the quality of effluent from riparian owners whose land drains into nonnavigable streams in pursuance of the federal interest in preserving the navigability and the quality of the navigable waters of the commerce-carrying rivers into which these tributaries flow.

These cases have never been overruled or modified and appear to us clearly to uphold the authority which Congress sought to exercise in the Federal Water Pollution Control Act Amendments of 1972.

The government in this case, however, pins its argument primarily upon the wider concept that water pollution is subject to Congressional restraint because it affects commerce in innumerable ways and because it affects the health and welfare of the nation, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The statute lends some weight to the government’s argument by its many references (some of which we have quoted above) to aspects of pollution control which have no possible direct bearing on navigability. Congressional concern in the 1972 Act with the impact of pollution upon fishing for commercial purposes or upon bathing and fishing and boating for recreational purposes of interstate travelers, and for the needs of towns, cities, industries and farms for unpolluted water for both health and commerce supports this broader concept. Congress, as indicated above, intended to exercise its full constitutional powers, and we are required to give effect to that intention. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423, 4 L.Ed. 579 (1819); United States v. Appalachian Power Co., 311 U.S. 377, 423-429, 61 S.Ct. 291, 85 L.Ed. 243 (1940); United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 85 L.Ed. 609 (1941). The generous construction of water pollution laws required by the Supreme Court is amply demonstrated in many cases. See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 669-670, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); United States v. Standard Oil Co., 384 U.S. 224, 226, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).

In United States v. Standard Oil, the Supreme Court said:

“Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant.” United States v. Standard Oil Co., supra, 384 U.S. at 226, 86 S.Ct. at 1428.

We hold that the provisions of the Water Pollution Control Act Amendments of 1972 are constitutional and were constitutionally applied by the District Court.

Ill The Burden of Proof

The only remaining question of importance in this case concerns whether or not the government must bear the burden of establishing not merely that oil was discharged into a tributary of a navigable stream, but also that, in fact, the oil reached and polluted the navigable river. To state the question is to recognize the impossibility of such proof in many if not all cases. Drops (or barrels) of oil carry no fingerprints. At the juncture of the Pond River and the Green River water analysis which might show oil pollution could not possibly prove which polluter discharged it, in what proportion, or on what occasion. Nor where many offenders are involved in creating a great social problem is such proof constitutionally required. Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The following portion of the Report of the Senate Committee on Public Works fully demonstrates Congressional understanding of this problem and sheds light on Congressional intent:

“The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. Through a narrow interpretation of the definition of interstate waters the implementation [of the] 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries.” S.Rep.No.414, 92d Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 3742-3743 (1972) (Emphasis added.)

We believe that the analysis of the Act set forth above amply demonstrates that Congress was concerned with pollution of the tributaries of navigable streams as well as with the pollution of the navigable streams. We also believe that it is incontestable that substantial pollution of one not only may but very probably will affect the other. See United States v. American Cyanamid Co., 480 F.2d 1132 (2d Cir. 1973).

The construction of the statute urged by appellant in this regard would be violative of the generous construction of water pollution legislation mandated by the Supreme Court. See United States v. Pennsylvania Industrial Chemical Corp., supra; United States v. Standard Oil Co., supra. In this regard the strict construction rule applicable to criminal statutes has clearly been modified by the Supreme Court. United States v. Standard Oil Co., supra, 384 U.S. at 225, 86 S.Ct. 1427.

We agree with Judge Gordon that the facts in this ease disclose that the notice of the discharge of oil required to be given “immediately” by 33 U.S.C. § 1321 (b)(5) was not so given.

For the reasons outlined above and further set out in the opinion of the District Judge, we affirm the judgment of the District Court.

      . 33 U.S.C. §§ 1251-1376 (1972).

      . Both parties call our attention to Hardy Salt Co. v. Southern Pacific Transportation Co., 501 F.2d 1150 (10th Cir. 1974). Appellant claims it supports the continuing vitality of the definition of “navigable waters of the United States” contained in The Daniel Ball, supra. Hardy Salt, however, concerns the Rivers and Harbors Act of 1899 but has no application to the Federal Water Pollution Control Act Amendments of 1972 and reaches no question of constitutional power.

      . This question, of course, relates only to the navigational servitude aspect of the preceding constitutional holdings.

      . The government belatedly complains of the inadequacy of the $500 fine and argues that probation would be desirable as an additional deterrent. However appropriate this may be in future cases, it is clear to us that the United States Attorney recommended the penalty which the District Judge administered and that the United States made no effort to appeal the sentence.


author: CECIL, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald M. KIDD, Jr., an Individual, Defendant-Appellant,
    Nos. 73-2086, 73-2085.
    United States Court of Appeals, Sixth Circuit.
    Decided Oct. 23, 1974.

      William J. Melvin, Fontana, Ward, Kaps & Perry, Richard C. Addison, Columbus, Ohio, Roger Curran, H. Yale Gutnick, Edwin J. Strassburger, Rose, Schmidt & Dixon, Pittsburgh, Pa., William M. Downer, Weinman, Downer, Quinn, Adulewicz & Kerr, Steubenville, Ohio, for defendants-appellants.
    William W. Milligan, U. S. Atty., James Rattan, Asst. U. S. Atty., Columbus, Ohio, John L. Murphy, Chief, Government Regulations Section, Crim. Div., Dept, of Justice, DeWitt R. Dent, B. Franklin Taylor, Jr., Richard I. Chaifetz, Washington, D. C., for plaintiff-appellee.
    Before WEICK and LIVELY, Circuit Judges and CECIL, Senior Circuit Judge.
   CECIL, Senior Circuit Judge.

The Appellants, Consolidation Coal Company and Donald M. Kidd, were jointly tried and convicted by a jury in the United States District Court for the Southern District of Ohio, Eastern Division, under a four count information charging them with having violated two of the Interim Mandatory Safety Standards contained in Sec. 862(a), Title 30, U.S.C. The appellants were prosecuted under the penal provisions of Sec. 819 (b) and (c) of Title 30. Separate appeals have been filed but they will be considered together in this opinion.

The Hanna Coal Company is a division of the Consolidation Coal Company, one of the appellants in this appeal. It owned, operated and controlled the Franklin No. 25 Mine in New Athens, Harrison County, Ohio. This mine is the subject of the criminal charges in this case. Donald M. Kidd was a foreman in the section of the mine which became the subject of the specific charges in the information.

Counts one and two of the information charged appellant, Consolidation Coal Co., that it

“willfully failed to support and otherwise control adequately the roof and ribs of the active underground roadways, travelways and working places in the Franklin No. 25 Mine”

for protection of persons from falls, and that it

“willfully failed to adopt a roof control plan and revisions thereof suitable to the roof conditions and mining system in the Franklin No. 25 Mine and approved by the Secretary of the Interior.”

Counts three and four of the information charged that appellant, Donald M. Kidd, in his representative capacity

“knowingly authorized, ordered and carried out the violation charged in Count I (Count II) of this information.”

By separate pretrial motions to dismiss both appellants challenged the sufficiency of the information. These motions were denied and at request of the court Bills of Particulars were filed. By these Bills the Government stated in detail what it expected to prove. The appellants in these appeals claim error on the part of the trial judge in denying the motions to dismiss the information.

Upon consideration of the motions, the statutes involved, herein, the four counts of the information and the arguments and briefs of counsel, we conclude that'Section 862(a) supra, is not unconstitutionally vague, that it defines the offenses charged in the information with certainty, that the information sufficiently states offenses under the statute and that the information with the aid of the Bills of Particulars adequately inform the defendants of the charges they are to meet. For discussion of vague and overbroad statutes defining offenses, see Grayned v. City of Rockwood, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222.

Both appellants moved for judgment of acquittal at the close of the government’s case and for judgment of acquittal n. o. v. at the close of the entire case. Consolidation Coal Company presents this question on appeal.

Count one of the information was framed from the second sentence of Section 862(a) of Title 30 U.S.C. as follows:

“The roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs.”

Count two was framed from the third sentence of the same section reading as follows:

“A roof control plan and revisions thereof suitable to the roof conditions and mining system of each coal mine and approved by the Secretary shall be adopted and set out in printed form within sixty days after the operative date of this subchapter.”

We hold as did the trial judge that this language may be the subject of two separate counts.

The substance of the charges is that the corporate appellant, Consolidation Coal Company, committed the violations. Specifically, the basis of the charges is that at about noon on June 14, 1972, there was a roof fall in what is denominated as room 52 of the mine.

The government’s chief witness was one Paul G. Gregor. Mr. Gregor was a coal mine inspector employed by United States Bureau of Mines. He had had experience in various phases of mine work and special training for his job as an inspector. At about 4:45 P.M. of the afternoon of the roof fall Mr. Gregor went into the mine with several other men. With him entering the mine were Mr. Young, his supervisor, Mr. Wood, his fellow inspector, representing the bureau of mines, Mr. Henry Roberts of the State of Ohio Division of Mines, mine workers Walter Ludwig and John Yemich, of the Union Safety Committee and mine worker Glenn Donaldson. Of the witnesses who testified only Walter Ludwig, Glenn Donaldson and Harold Fletcher had been in room 52 before the roof fall.

Mr. Gregor testified in detail concerning the condition of room 52 at the time he was in it after the roof fall. He identified drawings as exhibits, testified as to overhangs, roof bolts, rib and roof supports, made measurements and otherwise described with exactness the condition in which he found this room. This apparently was the government’s theory of showing that the room did not meet required safety standards before the roof fall. No one with prior knowledge of the condition of room 52 testified that this condition after the roof fall would not have met the proper safety standards before the roof fall. Mr. Gregor testified that there was a roof plan for room 52 which had been approved by the Secretary. This is shown by exhibit 2 and the documents contained therein. The district judge held that not only must there be an approved roof plan but it must have been shown to have been put into effect.

For the purposes of this discussion we assume that the condition of room 52 prior to the roof fall did not meet the required safety standards and that the approved roof plan had not been put into effect.

The willful violations of Consolidation can be shown only through the action of an authorized agent. Mr. Duane Land-acre, employed by appellant, Consolidation Coal Company, as Coordinator of Personnel, testified from his records that appellant, Donald M. Kidd, had been employed by Consolidation since June 1, 1964 and that he had been a foreman since May 1, 1969. He did not testify as to what his authorized duties as a foreman were. Nor is there any testimony on the part of management as to Mr. Kidd’s authorized duties.

Mr. Gregor testified that he had a conversation with Mr. Kidd at a conference in the superintendent’s office. He stated that Mr. Kidd said that on the day of the fall Mr. Ball was only in his fourth day of working for him and that if he had known that he had had only eleven or twelve days experience in the mine he would not have sent him into that working place alone. He further testified that Mr. Ball left the bottom about 7:40 A.M. on the day of the fall and arrived at the working section about 8:00 A.M. Apparently Mr. Kidd assigned shot firing duties to Mr. Ball on this occasion. By 11:30 A.M. he had shot down six cuts of coal. He then went to lunch and Mr. Kidd said as he was going past the dinner hole Mr. Ball asked him what he was to do after lunch. Mr. Kidd told him to begin setting temporary roof supports in number 53 room.

Later Mr. Kidd saw Mr. Ball in number 53 and he told him when he finished setting the posts there to go into 52 and just follow the loading machine. When Mr. Kidd went into 52, he could not observe the condition of the roof because the loading machine was there. Mr. Gregor further testified that Mr. Kidd said that at 12:30 P.M. he was out on the loading ramp when he heard Mr. Donaldson yell and he hurried into the room (presumably 52) to see what had happened. This apparently was the occasion of the roof fall.

Glenn Donaldson testified that at the time of the roof fall he was working with a crew of eleven men including Mr. Ball and Mr. Kidd as foremen. His testimony that Mr. Kidd, the foreman, directed the work of the section does not aid in determining what authority or what authorized responsibility he had for seeing that there was compliance with the statutory safety requirements. At the time of the accident Mr. Donaldson was just entering number 52 with his bolting machine. This was apparently to bolt up the roof following the six shots of coal that were shot down by Mr. Ball. Mr. Harold Fletcher, a mine loader, testified that no safety posts or jacks could be installed in a. room until he gets the coal all loaded out and the place cleaned up. He apparently had just gone through 52 after the six shots of coal had been shot down at 11:30 A.M.

Mr. Gaither Knight employed by U. S. Bureau of Mines, a Federal coal mine inspector, roof control, testified that there was an approved roof control plan for Franklin No. 25 Mine, approved in December 1971. There being a roof control plan, count two of the information must fail unless the trial judge is right in holding that not only must there be a plan but it must be shown to have been put into effect.

Upon consideration of all of the evidence we conclude that there is a total failure of proof to show that Donald M. Kidd willfully or even knowingly violated, or authorized any one to violate, the Act as charged in the information. Kidd was only a foreman for coal mining operations and was in charge of a crew of miners. There was no evidence that he ever had anything to do with policy matters or managerial functions of Consolidation.

The evidence is that Mr. Ball shot down six cuts of coal by 11:30 A.M. and that witness Fletcher followed this with his loader. At the time of the fall witness Donaldson was just going into 52 with his bolting machine. We cannot tell from this whether shooting the cuts of coal would destroy the existing roof plan so that a new one would have to be installed or whether an approved roof control plan should withstand the shooting of coal.

Another claim made by appellant, Consolidation Coal Co., is that the trial judge erred in his instruction to the jury on willfulness and in refusing to give appellant’s proposed instruction concerning the elements of the crime. The proposed instruction:

“An act is done willfully if done voluntarily and purposely with the specific intent to do that which the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. Willfullness includes an evil motive.”

The instruction as given is as follows:

“the failure to comply with the safety standard under the Federal Coal Mine Health and Safety Act of 1969 is willful if done knowingly, purposely or obstinately by a coal mine operator who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirements.”

Congress provided for both a civil and a criminal penalty for violations of the safety standards prescribed by the Act. Sec. 819(a)(1) provides for a civil penalty and 819(b) defines the criminal offense.

“Any operator who willfully violates a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued under 814 of this title, or any order incorporated in a final decision issued under this subchapter except an order incorporated in a decision under subsection (a) of this section or section 820(b)(2) of this title, shall, upon conviction, be punished,” etc.

The instruction as given by the court was taken substantially from United States v. Illinois Cent. R. Co., 303 U.S. 239, 243, 58 S.Ct. 533, 82 L.Ed. 773. The requested instruction was taken verbatim from our opinion in United States v. Krosky, 6 Cir., 418 F.2d 65, 67. It should be noted that the Illinois Central case involved a civil penalty while the Krosky case was a criminal conviction against the appellant. We reversed the conviction because “willfulness” was not adequately explained. See also James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 6 L.Ed.2d 246; United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 98 L.Ed. 381; Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. E. Brooke Matlack, Inc., 149 F.Supp. 814, 819 (D.Md.1957). On mens rea see United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

Since Congress provided both a civil penalty and a criminal liability for violations of mine safety standards, it considered that such violations could have very serious results. Consequently there should be a very clear distinction between the type of violation that would incur only a civil penalty and one that would rise to criminal liability. Obviously, it was not intended that such a violation as would give rise to a civil penalty should be alternatively a criminal offense. The statute uses the term “willfully violates.” We are of the opinion that this would contemplate an affirmative act either of commission, or omission, not merely the careless omission of a duty.

The instruction on willfulness as given was not a sufficiently clear definition of the crime contemplated by the statute.

We conclude that the court erred in its instruction on willfulness. In this instruction the court used the word “knowingly” in the disjunctive. The jury could conclude from this that “knowingly” was the same as “willfully.” It has been held that “willfully” means something more than “knowingly”, St. Louis & S. F. R. R. v. United States, 169 F. 69 (C.A. 8 1909). Neither can we accept the instruction requested by the appellant, Consolidation. We do not consider the phrases “bad purpose” and “an evil motive” to be appropriate in this action. The Act, here involved, is a safety Act and it would be virtually impossible to establish violations if this rule were followed.

In the context of the present case we would suggest that willfulness be defined substantially as follows:

The failure to comply with the safety standard under the Federal Coal Mine Health and Safety Act of 1969 is willful if done knowingly and purposely by a coal mine operator who, having a free will or choice, either intentionally disobeys the standard or recklessly disregards its requirements.

We further conclude that there is a failure of evidence to show that appellant Donald M. Kidd knowingly authorized or ordered the violations charged in counts one and two. Thus the conviction against appellant Kidd on counts three and four must be vacated.

We reverse the judgment against Consolidation and remand to the District Court for retrial.

We do not reach other alleged errors claimed by the appellants.