United States v. Discovery Aluminas

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30530
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DISCOVERY ALUMINAS, INC.,
Defendant,
JOHN/JANE DOE,
Movant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CR-151-ALL
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July 22, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
John/Jane Doe appeals the denial of a motion to intervene in
the criminal proceedings under 33 U.S.C. § 1319(c)(2) of the
Federal Water Pollution Act, i.e., the Clean Water Act, against
Discovery Aluminas, Inc. (“Discovery”). Doe sought to assert,
under 33 U.S.C. § 411, a right to one-half of the fine levied
against Discovery.

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No. 01-30530
-2-
Doe has abandoned the contract claim raised in the district
court. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
Doe contends that the Government’s prosecution of Discovery
under 33 U.S.C. § 1319(c)(2) was essentially a prosecution under
33 U.S.C. § 407 and that 33 U.S.C. § 407 is a lesser-included
offense of 33 U.S.C. § 1319(c)(2). Doe asserts that he met the
requirements of FED. R. CIV. P. 24(a)(2) for intervention.
Discovery was convicted of a violation of the Clean Water
Act. The Clean Water Act does not contain a provision that would
entitle Doe to share in the fine that was assessed against
Discovery. A right to a portion of a fine assessed for a
violation of 33 U.S.C. § 407 arises following a conviction
obtained by the United States under that statute. See 33 U.S.C.
§ 413. The power to conduct litigation in which the United
States is a party is discretionary and is generally not
reviewable by the courts. Dresser Indus. v. United States, 596
F.2d 1231, 1237 (5th Cir. 1979).
Doe has not shown that he had the right to intervene in this
criminal proceeding, nor has he shown that a conviction under 33
U.S.C. § 1319(c)(2) is equivalent to a conviction under 33 U.S.C.
§ 407. Accordingly, the judgment of the district court is
AFFIRMED.

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