Supreme Court of the United States

Transcription

1 No. 11- IN THE Supreme Court of the United States CORY LEDEAL KING, v. Petitioner, UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari To the United States Court of Appeals For the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI David R. Lombardi Daniel J. Popeo Givens Pursley LLP Richard A. Samp 601 W. Bannock St. (Counsel of Record) P.O. Box 2720 Washington Legal Foundation Boise, ID Massachusetts Ave., NW (208) Washington, DC (202) Paul L. Westberg rsamp@wlf.org Westberg, McCabe & Collins, Chtd. P.O. Box 2836 Boise, ID (208) Counsel for Petitioner

2 QUESTIONS PRESENTED (1) Petitioner was convicted of making a materially false statement in a matter within the jurisdiction of the United States, in violation of 18 U.S.C. 1001(a)(2). The subject matter of the false statement was the injection of water into irrigation wells, a subject matter over which federal officials have regulatory authority. However, the false statement was made to a state official who had no connection with the federal government and had no role in regulating underground water injections. At the time of the false statement, the federal government was not conducting any investigation of Petitioner and/or his water injection practices. The question presented is: Where a false statement is made to an individual who has no connection whatsoever to the federal government, is the false statement nonetheless made in a matter within the jurisdiction of the United States, in violation of 18 U.S.C. 1001, if the subject matter of the statement involves issues over which the federal government may exercise regulatory authority? (2) Petitioner was also convicted of four counts of injecting fluids into deep wells without a permit, in violation of the Safe Drinking Water Act, 42 U.S.C. 300h-2(b)(2). The Government neither alleged nor proved that: (1) the injected fluids (water) were contaminated; (2) the injected water flowed interstate; or (3) that the water was injected into any aquifer that was a current or potential source of drinking water. The question presented is: Does the Government exceed its power under the Commerce Clause when it criminalizes underground injections of clean water into intrastate aquifers with no connection to underground sources of drinking water?

3 iii TABLE OF CONTENTS Page TABLE OF AUTHORITIES...v OPINIONS BELOW...1 JURISDICTION...1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...1 INTRODUCTION...1 STATEMENT OF THE CASE...3 REASONS FOR GRANTING THE PETITION I. REVIEW IS WARRANTED TO RESOLVE CONFUSION AMONG THE FEDERAL APPELLATE COURTS REGARDING THE SCOPE OF 18 U.S.C A. The Ninth Circuit s Interpretation of 1001's Matter within the Jurisdiction Requirement Directly Conflicts with a Decision of the Sixth Circuit...14 B. The Decision Below Conflicts with This Court s 1001 Case Law...22

4 iv Page II. CONGRESS EXCEEDED ITS COMMERCE CLAUSE AUTHORITY BY CRIMINALIZING THE INJECTION OF UNCONTAMINATED WATER INTO AN AQUIFER UNCONNECTED TO PUBLIC DRINKING WATER...29 CONCLUSION...37 APPENDIX APPENDIX A: Opinion of the United States Court of Appeals for the Ninth Circuit (October 3, 2011)...1a APPENDIX B: Memorandum Decision of the United States District Court for the District of Idaho, Denying Motion for New Trial and Motion for Judgment of Acquittal (August 29, 2009)...20a APPENDIX C: Memorandum Decision of the United States District Court for the District of Idaho, Denying Motion to Dismiss the Indictment on Federalism Principles (April 6, 2009)...30a APPENDIX D: Relevant Statutes, Regulations, and Constitutional Provisions...44a

5 Cases: v TABLE OF AUTHORITIES Page(s) Bryson v. United States, 396 U.S. 64 (1969)...14 Florida v. U.S. Dep t of Health & Human Services, 648 F.3d 1235 (11th Cir. 2011)...36 Friedman v. United States, 374 F.2d 363 (8th Cir. 1967)...23 Gonzales v. Raich, 545 U.S. 1 (2005)...30, 33, 35 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng rs [ SWANCC ], 531 U.S. 159 (2001)...32, 33 United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004)...25 United States v. Bramblett, 348 U.S. 503 (1955)...28 United States v. Enmons, 410 U.S. 396 (1973)...36 United States v. Ford, 639 F.3d 718 (6th Cir. 2011).. 17, 18, 19, 20, 21, 22 United States v. Gilliland, 312 U.S. 86 (1941)...25 United States v. Lopez, 514 U.S. 549 (1995)...29, 34, 36 United States v. Rodgers, 466 U.S. 475 (1984)... 10, 17, 22, 23, 24, 25 United States v. Morrison, 529 U.S. 598 (2000) United States v. Starnes, 583 F.3d 196 (3d Cir. 2009)...16

6 vi Page United States v. Taylor, 582 F.3d 558 (5th Cir. 2009)...16 United States v. White, 451 F.3d 356 (6th Cir. 2001)...15 U.S. Dep t of Health & Human Servs. v. Florida, cert. granted, 132 S. Ct. 604 (2011)...13, 36 Wickard v. Filburn, 317 U.S. 111 (1942)...30 Statutes and Constitutional Provisions: U.S. Const., Art. i, 8, cl. 3 (Commerce Clause)... passim 18 U.S.C passim 18 U.S.C. 1001(a) U.S.C. 1001(a)(1) U.S.C. 1001(a)(2)...7, 10, 13, U.S.C. 3553(a)...9 Clean Water Act, 404(a), 33 U.S.C. 1344(a)...32, 33 False Claims Act, 12 Stat. 696 (1863)...28 Safe Drinking Water Act (SDWA), 93 P.L. 523, 88 Stat (1974)... passim 42 U.S.C. 300h U.S.C. 300h(b)(1)(A) U.S.C. 300h(b)(2) U.S.C. 300h(d)(1) U.S.C. 300h(d)(1)(B)(i)...34

7 vii Page(s) 42 U.S.C. 300h(d)(1)(B)(ii) U.S.C. 300h U.S.C. 300h-2...4, 7 42 U.S.C. 300h-2(b)(2)...2 Idaho Code , et seq....3 Idaho Code , 7, 16 Idaho Code , C.F.R Miscellaneous: ADMIN. OFFICE OF U.S. COURTS, Judicial Facts and Figures Multi-year Statistical Compilations of Federal Court Caseloads Through Fiscal Year 2009, tbl. 5.3 (2010), available at gov/uscourts/statistics/judicialfactsand Figures/ 2009/alljudicialfactsandfigures.pdf H.R. REP. No , 93rd Cong. 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N , 32 Eyder Peralta, EPA Report Links Fracking to Water Pollution (NPR, Dec. 8, 2011)...34 U.S. Food and Drug Administration, About FDA (October 2011)...25 Webster s Third International Dictionary (1976).. 24

8 OPINIONS BELOW The Ninth Circuit s opinion affirming Petitioner s conviction (App. 1a-19a) is reported at 660 F.3d The district court s opinions denying Petitioner s motion for a new trial and renewed motion for judgment of acquittal (App. 20a-29a) and his motion to dismiss the indictment on federalism principles (App. 30a-43a) are unreported. JURISDICTION The Ninth Circuit s opinion was issued on October 3, On December 15, 2011, Justice Kennedy granted an extension of time for filing the petition to and including February 2, CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The appendix reproduces the relevant statutes, regulations, and constitutional provisions. INTRODUCTION Petitioner Cory King s criminal conviction was based on an unprecedented application of the federal material false statement statute. By its terms, the statute is limited to statements or omissions in a matter within the jurisdiction of the United States. 18 U.S.C. 1001(a). Mr. King made the statement in question to a livestock investigator from the Idaho Department of Agriculture. The evidence is uncontested that the livestock investigator had no relationship with any federal official, nor did he have responsibility for or authority under the Safe Drinking

9 2 Water Act (SDWA), the federal statute that gave rise to the Environmental Protection Agency s (EPA) subsequent investigation of Petitioner. The Ninth Circuit nonetheless held that the statement was made in a matter within the jurisdiction of EPA. The appeals court reasoned that 1001's jurisdictional prerequisite had been met because the subject matter of Petitioner s statement (the injection of surface water into the ground) is one over which EPA exercises regulatory authority. Petitioner is unaware of any other federal court that has upheld the use of 1001 in this extraordinarily expansive manner. Under the Ninth Circuit s standard, the great majority of statements one makes in everyday conversations would be subject to 1001 jurisdiction. Moreover, the Ninth Circuit s decision directly conflicts with a recent decision of the Sixth Circuit, which overturned a 1001 conviction based on its narrower construction of 1001's matter within the jurisdiction provision. Review is warranted to resolve the conflict and to determine whether Congress really intended to provide 1001 with such broad reach. Mr. King was also convicted of four counts of violating 42 U.S.C. 300h-2(b)(2), a SDWA provision that criminalizes the willful underground injection of fluids without a permit under state law. The federal government proceeded with this felony prosecution even though officials from Idaho (whose permitting statute King was alleged to have violated) decided not to proceed with a criminal prosecution but instead to proceed civilly against Mr. King s employer. Mr. King was convicted of violating the SDWA even though the federal government neither alleged nor proved that: (1)

10 3 the injected fluids (water) were contaminated; (2) the injected water flowed interstate; or (3) that the water was injected into any aquifer that was a current or potential source of drinking water. Indeed, the trial judge, during sentencing proceedings, issued a specific finding that the injected water was not contaminated. Under those circumstances, there is serious question whether the federal government possesses Commerce Clause authority to regulate Mr. King s intrastate activities. Review is warranted to hear that Commerce Clause claim. At the very least, the Court should hold this Petition until it issues its decision in U.S. Dep t of Health & Human Servs. v. Florida, No , which raises similar Commerce Clause issues. STATEMENT OF THE CASE Petitioner Cory L. King has served since 1986 as manager of Double C Farms, a large farm and ranch operation in a semi-desert area of Idaho. Double C principally engages in crop farming on about 11,000 acres, which are irrigated by a large and complex sprinkler irrigation system with numerous irrigation wells. The operation also includes a cattle feedlot operation on a much smaller segregated parcel of about 25 acres. Double C s operations have long been subject to extensive regulation by the State of Idaho. Of direct relevance to this case, a 1971 Idaho statute regulates the construction and use of injection wells within the State. Idaho Code ( I.C. ) , et seq. During the years in question, the statute prohibited the use of any waste disposal and injection well without a permit.

11 4 I.C The unpermitted use of such a well is a misdemeanor under Idaho law. I.C In 1974, Congress adopted the Safe Drinking Water Act (SDWA), 93 P.L. 523, 88 Stat. 1660, which established a federally mandated, state-administered regulatory scheme for the protection of natural sources of drinking water, including underground sources. Among other things, the SDWA authorizes EPA to promulgate regulations establishing minimum requirements for state underground injection control programs ( UIC programs ), 42 U.S.C. 300h; establishes standards by which States could qualify for such programs, id. 300h-1; and prescribes the process for enforcement of state UIC program regulations, id. 300h-2. Among the minimum requirements established by Congress for all state IOC programs was that all such programs shall prohibit... any underground injection in such State which is not authorized by a permit issued by the State. Id. 300h(b)(1)(A). EPA ultimately approved Idaho s pre-existing UIC program as meeting the SDWA requirements and granted Idaho primary enforcement responsibility for underground water sources. See 40 C.F.R Idaho s UIC program, including its injection permitting program, is administered by the Idaho Department of Water Resources (DWR) as acknowledged by EPA s regulations. Id. (stating that Idaho s UIC program is administered by the Idaho Department of Water Resources. ). 1 Section 3903 was amended in The new version of the statute prohibits use of any deep injection well. The amendment is immaterial to the issues raised herein.

12 5 Like many other farmers in Idaho, the owners and managers of the property on which Double C sits had a long history of engaging in underground water injections a history that precedes Idaho s 1971 adoption of its injection permitting statute, Congress s 1974 adoption of the SDWA, and Mr. King s 1986 arrival at the property. In order to ensure an adequate supply of irrigation water, each spring they injected surface runoff water into an aquifer that feeds its irrigation wells. ER212-16, ER Specifically, they diverted winter and spring runoff from Willow Creek and Land Creek (surface streams that flow onto Double C property), into the Double C irrigation system, down several wells, and into the aquifers below. ER , ER The creeks terminate on or near Double C property and do not flow into the Snake River or any of its tributaries. Mr. King continued the practice of injecting surface runoff water into the farm s irrigation system from the time of his arrival through Spring On May 23, 2005, John Klimes, a livestock investigator from the Idaho Department of Agriculture, arrived at Double C to conduct a routine livestock feedlot waste inspection of the operation. ER290. While there, he was approached by Double C employee Shawn Carson, who told him that: (1) the Double C irrigation system had been modified by reversal of backfill valves that would permit injection of water into irrigation wells on the property; and (2) the water being injected was contaminated because it was coming from 2 ER refers to the Excerpts of Record prepared for the Ninth Circuit.

13 6 the main waste pond for the cattle feedlot operation. ER Klimes then confirmed that backflow valves had been reversed, and he heard water running down one of the wells. ER Alerted to these potential waste disposal issues, Klimes returned to Double C three times in the ensuing week. On June 2, 2005, he came with his supervisor, John Chatburn, who told Mr. King that the Department of Agriculture had received allegations that Double C was injecting wastewater into its wells. ER 279. Later that day, Klimes accompanied Mr. King to Well Five. When asked by Klimes to describe the function of a valve at the well, Mr. King said that the valve provided irrigation water to a nearby sprinkler pivot. ER That statement formed the basis of the material false statement claim. On June 9, 2005, Klimes telephoned a local EPA official (Kelly O Neill) and told O Neill about Double C s use of injection wells and about the June 2 statement. ER147. Based on that telephone call, EPA began an investigation of Mr. King. ER Before the call which occurred a week after Mr. King made the statement that formed the basis of his 1001 indictment O Neill had never heard of Klimes or Mr. King or Double C. ER147. Klimes also alerted the Idaho Department of Water Resources, which also opened an investigation. On July 15, 2005, DWR issued a Notice of Violation/ Order to Cease and Desist to Lambert Produce, Inc. (the owner of the property) directing Lambert to cease all well injections. No water has been injected into wells at Double C since June In March 2006, Lambert

14 7 agreed to a consent order with DWR regarding the injection and wells at Double C. ER District Court Proceedings. In January 2008, nearly three years after the 2005 inspection by state authorities, a federal grand jury returned a four-count indictment against Mr. King alleging three violations of the SDWA and one false statement. ER A superseding indictment, returned in February 2008, added a fourth injection count. ER Counts One through Four alleged that, on various dates in May and June 2005, Mr. King caused injection of water into Double C s irrigation wells without a permit. The indictment charged that these injections violated Idaho Code and, consequently, also violated 42 U.S.C. 300h-2. Id. It did not allege that any of the injected water was contaminated, flowed interstate, or was injected into an aquifer that was a current or potential source of drinking water. In Count Five, Mr. King was charged with violating 18 U.S.C. 1001(a)(2) by making a false statement on June 2, 2005, to investigator Klimes. ER299. According to the superseding indictment, Mr. King misrepresented the function of a valve at a well within the farm s irrigation system (Well Five) as providing irrigation water to a sprinkler pivot when, in fact, the valve diverted water into the well. Id. The trial court denied all of Mr. King s pre-trial motions to dismiss the indictment, including a motion to dismiss the injection counts on the ground that Congress lacked authority under the Commerce Clause to legislate as to wholly intrastate injections of fluids. App. 30a-43a. The court reasoned that Congress was

15 8 authorized to act pursuant to its authority over activities that substantially affect interstate commerce. Id. 35a. The court held that due to the prophylactic nature of the SDWA, Congress possessed constitutional authority to regulate all underground injections, without regard to whether the injections involved contaminated water shown to threaten sources of drinking water. Id. 41a. Mr. King s motion to dismiss Count Five (on the ground that Mr. King s alleged statement did not pertain to any matter within EPA s jurisdiction) was denied without analysis. ER107. At trial, prosecutors presented no evidence that the intrastate aquifers beneath the injection wells either constituted an underground source of drinking water or were reasonably likely to be one in the future. Nor did they allege or prove that the injected surface water contained any pollutant. Rather, prosecutors contended that Mr. King violated the SDWA merely by injecting surface runoff water into an underground aquifer without obtaining a permit from the Idaho DWR. With respect to the false statement count, Mr. King principally argued to the jury that his statement did not involve a matter within the jurisdiction of EPA because as of June 2, 2005 (the date the statement was made to a livestock investigator from the Idaho Department of Agriculture), the investigator had no relationship whatsoever with EPA or with Idaho s UIC program. ER The jury returned a guilty verdict on all counts. ER After the verdict, the district court denied Mr. King s renewed motion for judgment of acquittal and

16 9 motion for a new trial. App. 20a-29a. The motion renewed Mr. King s claim that his statement to Klimes did not involve a matter within the jurisdiction of EPA, noting the absence of evidence that as of June 2, 2005, Klimes had ever dealt with EPA or had any involvement in enforcement of Idaho s UIC program. The court rejected that claim, relying on evidence that EPA became involved in the investigation of the illegal injections shortly after King s false statement on June 2, Id. 25a (emphasis added). After a sentencing hearing, the district court concluded in its Sentencing Memorandum that the government had failed to prove, even by a preponderance of the evidence, that the injected runoff water contained any waste or pollutant (ER14-16), and accordingly ruled inapplicable to Mr. King the Sentencing Guidelines that apply to a conviction for mishandling hazardous or toxic wastes, U.S.S.G. 2Q1.2, or to a conviction for mishandling pollutants, U.S.S.G. 2Q1.3, relying on the latter only as informative to the application of 18 U.S.C. 3553(a). ER Ninth Circuit Proceedings. The numerous issues Mr. King raised on appeal to the Ninth Circuit included the two pressed here: that his 1001 material false statement conviction should be overturned because it did not involve a matter within the jurisdiction of either EPA or the United States, and that his conviction under the injection counts exceeded the powers delegated to Congress under the Commerce Clause. The Ninth Circuit affirmed the conviction. App. 1a-19a. With respect to Count Five, the appeals court deemed it immaterial that on June 2, 2005, there existed no

17 10 relationship between Klimes (the Idaho investigator to whom Mr. King made his statement) and any federal officials. It concluded that the statement was in a matter within the jurisdiction of EPA because the subject matter of the statement (underground injections) involved one over which EPA possessed regulatory authority: Section 1001(a)(2) jurisdiction extends wherever the federal government has the power to exercise authority. [United States v.] Rodgers, 466 U.S. [475], 479 [1984]. Jurisdiction requires a direct relationship between the authorized functions of an agency and the false statement. App. 16a. The court conceded that the standard it articulated could lead to significant expansion of 1001's scope e.g., prosecution for statements made to strangers walking down the street. But the court concluded that application of 1001 to Mr. King s statement to Klimes did not exceed the outer boundaries of the statute. Id. Among the factors the court cited in support of its conclusion: (1) Mr. King knew that the Idaho Department of Agriculture had authority to examine his wells and injection procedures ; and (2) he knew that Klimes was questioning him to determine whether wastewater was being injected into Double C wells. Id. 17a. But the appeals court did not explain how those facts served to limit the scope of its interpretation of 1001's matter within the jurisdiction language, particularly given the absence of any relationship between Klimes and the federal government, and given that the Department of Agriculture has no role in enforcing Idaho s UIC permitting program.

18 11 The appeals court also rejected Mr. King s Commerce Clause claim. App. 10a-15a. The court concluded that drinking water is an article in interstate commerce and that any regulatory scheme, including the SDWA, that affects the safety of sources of drinking water inescapably has an effect on the supply of drinking water, and therefore on interstate commerce. Id. 13a. The court conceded that Congress s preventive approach prohibiting all water injections unless and until a permit applicant demonstrates that injections will not harm underground sources of drinking water (USDW) may result in forbidding some injections that would not contaminate a USDW. Id. 14a. The court nonetheless concluded that the regulation of Mr. King s intrastate activities was a valid exercise of federal authority because the federal government has the authority under the Commerce Clause to regulate injections broadly out of an abundance of caution, as a means of providing effective protection of the purity of the nation s drinking water. Id. 15a. The court did not address Mr. King s argument that a preventive approach cannot justify regulation of intrastate activity that does not harm drinking water, when (as is true of the SDWA) the federal regulatory scheme contains such large exceptions that it cannot legitimately be deemed a comprehensive regulatory scheme.

19 12 REASONS FOR GRANTING THE PETITION This case raises issues of exceptional importance. Federal prosecutors have been making increasing use of 18 U.S.C as a prosecutorial tool in recent decades. The standards governing whether a materially false statement or omission was made in a matter within the jurisdiction of the United States (within the meaning of 1001) are highly unsettled and important. As a result of the Ninth Circuit s broad reading of that statutory phrase, individuals can be subjected to federal criminal prosecution even for statements made to those who lack any connection to the federal government. The decision directly conflicts with a 2011 Sixth Circuit decision, which held (contrary to the Ninth Circuit) that a statement or omission does not meet 1001's jurisdictional requirement merely because the subject matter of the speech or omission involves an issue over which the federal government possesses regulatory authority. The decision below also conflicts with decisions of this Court, which have interpreted matter within the jurisdiction of the United States in a narrower fashion. Review is warranted to resolve those conflicts and to provide guidance to the lower courts on an issue that is arising with increasing frequency. Review is also warranted to determine what judicially enforceable limits exist with respect to congressional assertion of enforcement powers under Art. I, 8, cl. 3 of the U.S. Constitution, the Commerce Clause. The activity which led to Mr. King s SDWA conviction injection of uncontaminated, intrastate water into irrigation wells unconnected to sources of drinking water did not substantially affect interstate commerce. There is no reason to conclude that the

20 13 impact on the interstate market for drinking water would be any greater even if Mr. King s activity were combined with the effects of other, similar injections of uncontaminated water. Moreover, the United States made no effort to demonstrate that regulation of Mr. King s activity was necessary to ensure that it could effectively regulate the interstate market for drinking water, a market in which Mr. King indisputably was not a participant. A finding that regulation of Mr. King s conduct falls within Congress s Commerce Clause powers is tantamount to a finding that there are no enforceable limits on that power. At the very least, the Court should hold the Petition until it issues its decision in U.S. Dep t of Health & Human Servs. v. Florida, No , which raises similar Commerce Clause issues. I. REVIEW IS WARRANTED TO RESOLVE CONFUSION AMONG THE FEDERAL APPELLATE COURTS REGARDING THE SCOPE OF 18 U.S.C A jury convicted Mr. King on Count Five of the superseding indictment, which charged him with violating 18 U.S.C. 1001(a)(2) by knowingly and willfully making a materially false statement in a matter within the jurisdiction of the Environmental Protection Agency. ER299. At issue here is whether Mr. King s June 2, 2005 statement to a livestock investigator for the Idaho Department of Agriculture

21 14 was made in a matter within the jurisdiction of EPA. 3 The federal appeals courts have adopted sharply conflicting interpretations of the phrase matter within the jurisdiction. A. The Ninth Circuit s Interpretation of 1001's Matter within the Jurisdiction Requirement Directly Conflicts with a Decision of the Sixth Circuit Each of the 1001 cases that have reached this Court have involved statements made directly to a federal government official, thereby making plain that the statement or omission was made in a matter within the jurisdiction of the United States. See, e.g., Bryson v. United States, 396 U.S. 64 (1969) (affidavit filed by union officer with NLRB, falsely denying affiliation with 3 18 U.S.C provides in relevant part: (a) [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years..., or both.

22 15 Communist Party). The federal appellate courts have for the most part determined that a statement is made in a matter within the jurisdiction of the United States, even if the statement was not made to a person employed by the United States, so long as the relationship between that person and the United States was sufficiently close that the person could be deemed to be standing in the shoes of the United States. A sufficiently close relationship is often found to exist where the person to whom the statement is made is a state employee whose state agency works closely with the federal government as part of a joint federal-statement regulatory program, particularly if the state agency is federally funded. For example, in a case cited by the district court, the Sixth Circuit held that a false report submitted by the superintendent of a water treatment plant to the Kentucky Division of Water was a matter within the jurisdiction of EPA, because of the close relationship between EPA and the Kentucky Division of Water. United States v. White, 451 F.3d 356, (6th Cir. 2001). 4 Among the factors that led the Sixth Circuit to conclude that the Kentucky Division of Water was in essence standing in the shoes of EPA were: (1) the state agency was largely funded by EPA; (2) EPA had delegated to the state agency SDWA enforcement authority; (3) EPA regularly audited the state agency; and (4) should the state agency be found to have failed in its enforcement duties, EPA was authorized to take 4 EPA s arrangement with the Kentucky Division of Water was quite similar to the arrangement it had with Idado s DWR.

23 16 over those duties. Id. at 363. See also United States v. Starnes, 583 F.3d 196 (3d Cir. 2009) (false statements were made in a matter within the jurisdiction of HUD where they were made to a Virgin Islands agency in connection with a project that was 100% funded by HUD and in which HUD delegated its supervisory authority to the Virgin Islands agency); United States v. Taylor, 582 F.3d 558 (5th Cir. 2009) (false statements were made in a matter within the jurisdiction of HUD where they were made to the Mississippi Development Authority (MDA) for the purpose of obtaining fraudulent Hurricane Katrina disaster relief assistance, the MDA disaster relief effort was 100% funded by HUD, and MDA was required to provide relief assistance in accordance with regulations issued by HUD). But, as the government conceded below, EPA had no similar relationship with the Idaho Department of Agriculture or Klimes (the DOA investigator to whom Mr. King made his June 2 statement). In enforcing the SDWA s injection permitting requirements, EPA worked with the Idaho Department of Water Resources (DWR), not the Idaho DOA. Idaho law explicitly provides that its UIC program is the responsibility of DWR. I.C Neither Klimes nor John Chatburn (Klimes s supervisor at DOA) ever testified that DOA was authorized to enforce Idaho s injection permitting program, and the government did not argue below that DOA possessed such authority. Instead, the government asserted below that Mr. King s statement qualified as a statement made in a matter within the jurisdiction of EPA on the basis of the subject matter of Mr. King s statement. See, e.g.,

24 17 U.S. 9th Cir. Br. at (EPA is charged with administering the SDWA, and Mr. King s statement to Klimes related to EPA s SDWA enforcement authority). The Ninth Circuit accepted that assertion as the basis for its decision upholding the conviction: App. 16a. Section 1001(a)(2) jurisdiction extends wherever the federal government has the power to exercise authority. Rodgers, 466 U.S. at 479. Jurisdiction requires a direct relationship between the authorized functions of an agency and the false statement. In direct conflict with the decision below, the Sixth Circuit last year rejected the United States s contention that a matter within the jurisdiction of the United States refers to the subject matter of the defendant s speech, and held instead that matter(s) within the jurisdiction of the United States are limited to instances in which the defendant s statement/omission was itself within the jurisdiction of the United States. United States v. Ford, 639 F.3d 718 (6th Cir. 2011). The Sixth Circuit overturned a 1001 conviction because (as here) the defendant s statements/ omissions were made to state agencies that had no connection to the federal government. Id. at Defendant Ford was a Tennessee State Senator who arranged to have himself hired as a highly paid consultant to Omnicare, a health care provider. The consulting arrangement provided that Ford s compensation was dependent on the health care

25 18 provider winning significant contracts from TennCare, a Tennessee state organization that provides health care services to Tennessee citizens not covered by Medicaid. TennCare was nearly 100% funded by the federal government and was subject to extensive federal government regulation. TennCare s contract with Omnicare prohibited it from paying state officials and required it to prevent benefits from flowing to them. Ford s relationship with Omnicare led to his receipt of over $800,000 in funds that were initially supplied by TennCare and HHS. Nonetheless, although Ford s legislative position gave him considerable oversight authority over TennCare, neither federal nor state law required Ford to report to TennCare his financial arrangements with TennCare contractors such as Omnicare. Rather, his obligation to report his outside sources of business income ran only to the Tennessee Senate and the Tennessee Registry of Election Finance. A jury convicted Ford of violating 18 U.S.C by knowingly and willfully concealing and covering up by trick, scheme, or device, material facts in a matter within the jurisdiction of HHS. Ford, 639 F.3d at 720. The Sixth Circuit reversed the conviction on the grounds that Ford s omission of his OmniCare income from reports filed with the Tennessee Senate and the Tennessee Registry of Election Finance did not involve a matter within the jurisdiction of the United States. Id. at The court stated that 1001's matter within the jurisdiction provision requires that there be a direct relationship between the federal government and entities to whom the statements/ omissions were made, and that it is not enough that the subject matter of the statements/omissions was federal in character. Id. at 720. It explained, While the facts

26 19 that [Ford] failed to disclose concerned an entity inseparable from federal ties, the entities to which he failed to disclose those facts were anything but federal. Id. Indeed, the court noted that Ford had not contested that the subject matter of his statements/omissions was federal: [Ford] makes an important distinction between the subject matter of his non-disclosures and the entities to which he owed disclosure duties. Ford all but concedes that the subject matter of his non-disclosures his financial interests related to TennCare was federal. Indeed, TennCare is paid mostly with federal funding and exists only because of a federal waiver from Medicaid. Id. The appeals court held that evidence that the subject matter of a statement/omission is federal in character does not make the statement/omission a matter within the jurisdiction of the United States, within the meaning of Id. at The decisions of the Sixth and Ninth Circuit s are in direct conflict and cannot be reconciled. In both cases, the subject matter of the statement/omission was federal in character. In our case, EPA has jurisdiction (by virtue of the SDWA) over underground water injections, the subject matter of Mr. King s statement; while in Ford, HHS has jurisdiction (by virtue of the Medicaid statutes) over the use of federal funds to provide health care to Tennessee residents. In both cases, there was no evidence of a direct relationship between the federal government and the entities/ individuals to whom the statements/omissions were made. In our case, there was no direct

27 20 relationship between the federal government and Klimes, the Idaho Department of Agriculture livestock investigator to whom Mr. King made his statement; while in Ford, there was no direct relationship between HHS and the state bodies (the Tennessee Senate and the Tennessee Registry of Election Finance) to whom he failed to disclose his receipt of $800,000. The Ninth Circuit held that 1001's matter within the jurisdiction requirement is met if the subject matter of the statement/omission is federal in character. The Sixth Circuit disagreed, holding that the subject matter of a statement/omission is irrelevant to whether it is a matter within the jurisdiction of the United States. Review is warranted to resolve the conflict. 5 The Petition provides an excellent vehicle for the Court to resolve the conflict. Mr. King preserved the matter within the jurisdiction issue at all stages of the proceedings below; he raised it in a district court motion to dismiss, a motion for judgment of acquittal, and before the Ninth Circuit. ER107, App. 20a-29a, 1a-19a. In each instance, the government defended the 1001 charge by noting that the subject matter of Mr. King s statement (underground water injections) was one over which EPA exercises regulatory authority. In addition, 5 Mr. King was convicted under 1001(a)(2), which targets one who makes any materially false, fictitious, or fraudulent statement or representation. Ford was convicted under 1001(a)(1), which targets one who falsifies, conceals, or covers up by any trick, scheme, or device a material fact. That difference does not serve to distinguish the Sixth and Ninth Circuit decisions. Both decisions turned on the meaning of the phrase matter within the jurisdiction of the United States, a phrase that appears at the beginning of 1001(a) and applies equally to both 1001(a)(1) and 1001(a)(2).

28 21 the facts surrounding Mr. King s statement to Klimes and surrounding Klimes s relationship to EPA are largely uncontested; indeed, a recording of the statement was introduced into evidence at trial. Accordingly, the Court s resolution of the purely legal issue raised by the petition is unlikely to turn on contested facts or on any facts unique to this case. The issue is highly likely to recur unless resolved now. In recent years, federal prosecutors have been bringing an increasing number of 1001 charges. 6 Moreover, the expansive interpretation of 1001(a) s matter within the jurisdiction language advocated by the government in the Ninth Circuit that the jurisdictional prerequisite is met so long as the subject matter of the false statement/omission is one over which the federal government exercises regulatory authority is one that the government continues to press in other 1001 prosecutions. For example, prosecutors explicitly argued in Ford that the word matter in 1001(a) should be interpreted to mean subject matter, and that exercise of 1001 jurisdiction was appropriate because the subject matter of Ford s statements/omissions was federal in character. See U.S. Suppl. Br., United States v. Ford, No (filed Mar. 31, 2011). 6 During , federal prosecutors filed an average of 790 false statement cases per year, nearly 50% higher than the annual rate in the preceding decade. See ADMIN. OFFICE OF U.S. COURTS, Judicial Facts and Figures Multi-year Statistical Compilations of Federal Court Caseloads Through Fiscal Year 2009, tbl. 5.3 (2010), available at Statistics/JudicialFactsAndFigures/2009/alljudicialfactsandfigure s.pdf.

29 22 In sum, review is warranted to resolve the conflict between the Sixth and Ninth Circuit and to provide the federal courts with badly needed guidance on a frequently recurring legal issue. B. Review Is Warranted to Resolve the Conflict Between the Decision Below and This Court s 1001 Case Law Review is also warranted because the Ninth Circuit s decision misconstrued the decisions of this Court that have addressed the meaning of 18 U.S.C Nothing in those decisions supports the government s expansive interpretation of 1001's matter within the jurisdiction provision. In particular, the Court s past treatment of the provision indicates that the Court does not interpret the word matter to mean subject matter and thus does not endorse the government s position that 1001 covers any materially false statement that discusses an issue over which the United States exercises regulatory authority. This Court held in United States v. Rodgers, 466 U.S. 475 (1984), that an individual could be prosecuted under 1001 for lying to FBI agents about an alleged kidnaping plot, a lie that caused the FBI to devote over 100 agent hours investigating the alleged plot. It rejected the Eight Circuit s conclusion that the phrase any matter was limited to proceedings in which a federal body had power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry, and thus that 1001 did not cover Rodgers s false statements to the FBI. 466 U.S. at 478 (quoting Friedman v. United

30 23 States, 374 F.2d 363, 368 (8th Cir. 1967)). The Court concluded that the Eighth Circuit s interpretation of 1001 was unduly strained, stating: Section 1001 expressly embraces false statements made in any matter within the jurisdiction of any department or agency of the United States. (Emphasis supplied.) A criminal investigation surely falls within the meaning of any matter. Id. at 479. The quoted language makes plain that the Court understood 1001 s use of the word matter in the same way that Mr. King does: it refers to a proceeding of some sort (such as an investigation), not to the subject matter of the statement (e.g., statements about environmental issues). Under the interpretation of 1001 now espoused by the government, Rodgers could have been charged even if, instead of falsely reporting a kidnaping to the FBI, he had told his tale to a neighbor since the subject matter of his conversation (kidnaping) falls within the jurisdiction of the FBI. Nothing in Rodgers supports such a broad reading of the statute. The Ninth Circuit cited Rodgers in support of its interpretation of App. 16a ( Section 1001(a)(2) jurisdiction extends wherever the federal government has the power to exercise authority. Rodgers, 466 U.S.

31 24 at 479. ). The Ninth Circuit pulled the Rodgers quote out of context and thereby ascribed to this Court a meaning it never intended. In the passage quoted, the Court made clear that it was not interpreting the matter within the jurisdiction clause, but rather was focusing solely on the word jurisdiction. The Court said that the word should be given its ordinary meaning and used the language quoted by the Ninth Circuit while discussing a dictionary definition of jurisdiction : Webster s Third International Dictionary 1227 (1976) broadly defines jurisdiction as, among other things, the limits or territory within which any particular power may be exercised: sphere of authority. A department or agency has jurisdiction, in this sense, when it has the power to exercise authority in a particular situation. Rodgers, 466 U.S. at 479 (emphasis added). Two things are apparent from the quoted passage: (1) the Court was not asserting, as contended by the Ninth Circuit, that Section 1001(a)(2) jurisdiction extends wherever the federal government has the power to exercise authority ; and (2) the Court was confining its discussion to the meaning of the word jurisdiction, not the meaning of the statutory clause (a matter within the jurisdiction of the United States) in which the word jurisdiction appears. The Court went on to conclude that the term jurisdiction should not be given a narrow or technical meaning for purposes of 1001 and, in particular, should not be assigned a narrow meaning that would frustrate a congressional intent to protect the authorized

32 25 functions of government departments and agencies from the perversion which might result from the practices described. Id. at 480 (quoting United States v. Gilliland, 312 U.S. 86, 93 (1941)). Based on its conclusion that the word jurisdiction, as used in 1001, should be given its ordinary meaning, Rodgers rejected the Eighth Circuit s holding that statements made during the course of an FBI kidnaping investigation were not statements made in any matter within the jurisdiction of the United States. Id. at But Rodgers did not include any discussion of the word matter (other than the limited discussion included in the block quotation above), and nothing in the decision suggests that 1001 jurisdiction extends to any and all statements whose subject matter is one over which the United States exercises regulatory authority. Moreover, the broad interpretation of 1001 espoused by the government is unprecedented. 7 We are unaware of any appellate decision outside of the Ninth Circuit that has upheld a 1001 conviction under circumstances similar to this case (i.e., the false statement was made to an individual who lacked any 7 Several federal appeals courts have warned against the shocking 1001 prosecutions that could arise if courts do not maintain reasonable limitations on what can constitute a matter within the jurisdiction of the United States. See, e.g., United States v. Blankenship, 382 F.3d 1110, 1138 (11th Cir. 2004). It is a rare conversation whose subject matter does not fall within the regulatory jurisdiction of at least one federal agency. See, e.g., U.S. Food and Drug Administration, About FDA (Oct. 2011) (estimating that FDA regulates about 25% of the United States economy ).

33 26 connections with the federal government, but the subject matter of the statement is one over which federal officials exercise regulatory authority). In asserting before the Ninth Circuit that there was, in fact, a sufficient link between Mr. King s statement and EPA, the government relied primarily on the fact that Klimes contacted EPA a week after his conversation with Mr. King. U.S. 9th Cir. Br. at 50. The government s position that government officials can take steps after a statement has been made, so as to bring the statement within the reach of 1001, raises significant due process and ex post facto issues. While acknowledging the broad scope that it assigned to 1001's matter within the jurisdiction language, the Ninth Circuit concluded that several facts present in this case prevented this case from exceeding the outer boundaries of the statute. App. 16a. First, it noted that Mr. King knew that the Idaho DOA had the authority to examine his wells and injection procedures. Second, he knew that the DOA was trying to determine whether wastewater was being injected into Double C wells. 8 Third, he lied to Klimes, one of 8 The Ninth Circuit apparently relied on the testimony of DOA s John Chatburn in concluding that Mr. King knew the nature of DOA s investigation. Chatburn testified that he told Mr. King on June 2, 2005 that there had been an allegation made to [DOA] that Double C Farms had been injecting processed waste water and that we would need to at some point in time in the future or that day to take some water samples. ER279. See also ER155 (regarding his June 2 conversation with Mr. King, Chatburn testified Yes, sir, in response to the question, And you described the allegations as being, essentially, that they were injecting fluids into wells? ). There was no evidence at trial that DOA was investigating allegations that Double C was injecting fluids without a permit.

34 27 the investigators, in order to defeat the investigation. Id. 17a. None of those facts serves to confine the extraordinary scope of the Ninth Circuit s interpretation of 1001's matter within the jurisdiction language. The fact that DOA had authority to investigate farming and ranching practices at Double C (including unsanitary handling of waste water) does not change the fact that DOA lacked authority to enforce Idaho s UIC permitting program and never claimed such authority. If statements made to DOA that happen to touch on a subject matter (here, underground water injections) over which EPA (but not DOA) exercises regulatory authority are sufficient to trigger 1001 jurisdiction, then so would statements made to any state or local regulatory official with authority to regulate a business a sheriff, a tax collector, a business licensing official, or even a dog catcher. That Klimes was undertaking an authorized function at the time that Mr. King made his June 2 statement does not change the fact that he had no connection with either the federal government or Idaho s UIC program. Nor does the Ninth Circuit s assertion that Mr. King lied to Klimes... in order to defeat the investigation have any bearing on whether Mr. King s statement was made in a matter within the jurisdiction of EPA. Moreover, because no one can be DOA could not, of course, have conducted such an investigation because it lacked authority over the permitting program and would have had no means to determine on its own whether Double C had an injection permit.

35 28 convicted under 1001 unless his statement is false and is spoken knowingly and willfully, the Ninth Circuit s reliance on the falsity of Mr. King s statement does nothing to limit the extraordinary scope of its interpretation of 1001's jurisdictional provision. The predecessor to 1001 was adopted in 1934, and it has undergone very few substantive changes since then. See United States v. Bramblett, 348 U.S. 503, 508 (1955). It is an outgrowth of the 1863 False Claims Act, 12 Stat. 696, which made it a criminal offense to present to the federal government a false claim for payment. The purpose of the 1934 statute was to broaden the statute so as to reach not only false papers presented in connection with a claim against the Government, but also nonmonetary frauds such as those involved in the hot-oil shipments. A greater variety of false claims were meant to be included. Id. at 507. The Court concluded that the language requiring that the statement be made in a matter within the jurisdiction of the United States was added to the 1934 statute to indicate that not all falsifications but only those made to government organs were reached. Id. Given the absence of any connection between Klimes (the DOA livestock investigator to whom Mr. King s statement was made) and EPA, the Ninth Circuit s holding cannot be squared with Bramblett s conclusion that 1001 applies only to those falsifications made to an organ of the federal government. Review is warranted to resolve that conflict.