v. Canal Barge Company , Inc . (09-5422), Randolph Martin (09-5421), Paul D. Barnes…

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0007p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA (09-5388),
Plaintiff-Appellant/Cross-Appellee,
v.
CANAL BARGE COMPANY , I NC . (09-5422),
RANDOLPH M ARTIN (09-5421), PAUL D.
BARNES (09-5423), and J EFFERY A.
SCARBOROUGH (09-5424),
Defendants-Appellees/Cross-Appellants.
X---->
,-------
N
Nos. 09-5388/5421/
5422/5423/5424
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
Nos. 07-00012-001; 07-00012-002; 07-00012-003; 07-00012-004—
Joseph H. McKinley, Jr., District Judge.
Argued: November 30, 2010
Decided and Filed: January 7, 2011
Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: John E. Arbab, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Michael R. Mazzoli, COX & MAZZOLI, Louisville,
Kentucky, for Appellees. ON BRIEF: John E. Arbab, John L. Smeltzer, Jennifer A.
Whitfield, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Jason
Walta, Silver Spring, Maryland, Randy W. Ream, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellant. Michael R. Mazzoli, COX &
MAZZOLI, Louisville, Kentucky, Rob Eggert, David A. Lambertus, Mark L. Miller,
Mark D. Chandler, Louisville, Kentucky, for Appellees.
ROGERS, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. BATCHELDER, C.J. (pp. 15–17), delivered a separate opinion concurring in
part and dissenting in part.
1

-- 1 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. This case presents a question of venue, specifically,
the appropriate district in which to prosecute a charge of willful failure to “immediately
notify” the Coast Guard of a “hazardous condition” aboard a vessel. 33 U.S.C.
§ 1232(b)(1); 33 C.F.R. § 160.215. The crime is a continuing offense rather than a
point-in-time offense, and therefore the location of the crime continued into the Western
District of Kentucky as the vessel in question proceeded from the Mississippi River to
the Ohio. The district court in this case therefore erred in acquitting defendants on the
ground that there was no criminal venue in the Western District of Kentucky.
I
On June 16, 2005, a barge carrying 400,000 gallons of benzene down the
Mississippi River sprang a leak near St. Louis, Missouri. The barge was owned by
Canal Barge and was being operated under a contract with Conoco Phillips to transport
the benzene from Wood Island, Illinois, to Catlettsburg, Kentucky. When the leak was
discovered, Jeffery Scarborough, a Canal Barge employee and the pilot of the barge’s
towboat, instructed deckhands to try sealing the leak by rubbing a bar of soap over the
crack. Scarborough telephoned Paul Barnes, the port captain in the company’s Belle
Chase, Louisiana, office, who directed Scarborough to apply a temporary epoxy patch.
With the help of deckhands, Scarborough succeeded in temporarily securing the leak.
Captain Randy Martin, who had been off duty and asleep when the leak was first
discovered, assumed control of the towboat later in the afternoon.
The epoxy patch held for about four days. During that time, the barge was
transferred to a towboat owned by a different company on June 20, near Cairo, Illinois,
at the confluence of the Mississippi and Ohio Rivers, and continued onto the Ohio River.
On June 20, while the barge continued up the Ohio River, the epoxy patch failed. The
captain of the new towboat notified the Coast Guard office in Louisville, Kentucky, and

-- 2 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 3
1Count 2 of the indictment alleged that “[o]n or about June 16, 2005, and continuing thereafter
until on or about June 20, 2005, in the Western District of Kentucky, Henderson County, Kentucky, and
elsewhere, defendants Canal Barge Company, Inc., Paul D. Barnes, Jeffery A. Scarborough, and Randolph
Martin, each aided and abetted by the other, knowing of a hazardous condition aboard a
vessel, . . . knowingly and willfully failed to immediately notify the nearest Coast Guard Marine Safety
Office of a hazardous condition” in violation of 33 U.S.C. § 1232(b)(1) and 33 C.F.R. § 160.215.
the barge was dropped at a fleeting area near Mount Vernon, Indiana, where
environmental crews cleaned the benzene from the barge’s deck and permanently
repaired the leak.
A three-count indictment filed two years later in the Western District of
Kentucky charged Canal Barge, Scarborough, Barnes, and Martin with: (1) conspiracy
to violate the Ports and Waterways Safety Act; (2) violation of the PWSA; and (3)
negligent violation of the Clean Water Act.1 After a two-week trial, the defendants
moved for a judgment of acquittal, arguing that the government had failed to prove that
venue was proper in the Western District of Kentucky. The district court reserved ruling
on the motion, and the jury returned a guilty verdict on Count 2, but acquitted the
defendants of the remaining two counts.
Defendants then renewed their motion for a judgment of acquittal on the ground
of improper venue. The defendants also argued that the government had failed to
introduce sufficient evidence that the proper Coast Guard office in St. Louis was not
notified of the June 16 leak, and sufficient evidence that the defendants’ violation of the
PWSA was knowing and willful. In the alternative, the defendants argued that they were
entitled to a new trial because their convictions were against the weight of the evidence.
Additionally, Martin moved separately for a judgment of acquittal, arguing that the
government did not show that a hazardous condition existed on the barge while he was
in charge of the vessel, and Canal Barge moved separately for a judgment of acquittal,
contending that the government failed to prove that a Canal Barge employee violated the
PWSA with the intent to benefit the company.
On November 25, 2008, the district court granted the defendants’ motion,
concluding that the PWSA violation was a point-in-time offense that was complete at the

-- 3 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 4
time the defendants failed to immediately notify the Coast Guard of the hazardous
condition, which occurred on the Mississippi River prior to entry into the Western
District of Kentucky. The district court denied all of the defendants’ remaining motions.
On appeal, the government argues that the district court erred in granting the
defendants’ post-verdict motion for judgment of acquittal for lack of proper venue,
because the defendants’ PWSA violation is a continuing offense under 18 U.S.C.
§ 3237(a) ¶ 1. In the alternative, the government argues that the PWSA violation is an
offense “involving . . . transportation in interstate . . . commerce” under 18 U.S.C.
§ 3237(a) ¶ 2.
The defendants cross-appeal the district court’s denial of their motion for
judgment of acquittal on the remaining grounds, arguing that the government failed to
prove that the defendants did not immediately notify the nearest Coast Guard office of
the June 16 leak, and that the government failed to prove the elements of knowledge and
willfulness. The defendants also argue that the district court abused its discretion in
denying their motion for a new trial. Finally, both Martin and Canal Barge appeal the
denial of their separate motions for judgment of acquittal for the reasons advanced in the
district court.
II
The defendants’ failure to immediately report a hazardous condition aboard the
barge was a continuing offense because the duty to report continued from the time the
leak was discovered on June 16 until the Coast Guard was notified on June 20. Because
the barge continued moving until the unreported hazardous condition was in the Western
District of Kentucky, the PWSA violation occurred in part in the Western District of
Kentucky. Venue was therefore proper in that district under 18 U.S.C. § 3237(a) ¶ 1.
For venue purposes in federal criminal cases, Congress has the power to create
a “continuing offense” by defining “the locality of a crime [to] extend over the whole
area through which force propelled by an offender operates.” United States v. Johnson,

-- 4 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 5
323 U.S. 273, 274 (1944). Because the PWSA does not specifically define venue for
criminal prosecutions, we look to the catch-all venue provision, which covers situations
where the elements of the offense are committed in more than one district. 18 U.S.C.
§ 3237(a). The catch-all statute states in part:
(a) Except as otherwise expressly provided by enactment of Congress,
any offense against the United States begun in one district and completed
in another, or committed in more than one district, may be inquired of
and prosecuted in any district in which such offense was begun,
continued, or completed.
18 U.S.C. § 3237(a) ¶ 1. This provision applies on its face if the offense was
“continued” on the Ohio River, which at the relevant point is entirely in the Western
District of Kentucky.
The offense in this case was so “continued.” The criminal violation is the willful
and knowing violation of a Coast Guard regulation promulgated under the PWSA,
33 U.S.C. § 1232(b)(1), that in turn requires:
Whenever there is a hazardous condition either aboard a vessel or caused
by a vessel or its operation, the owner, agent, master, operator, or person
in charge shall immediately notify the nearest Coast Guard Sector Office
or Group Office.
33 C.F.R. § 160.215. The time for complying with this obligation clearly starts
“immediately,” which means that any delay is against the regulation. Contrary to the
interpretation urged by the defendant and accepted by the district court, however, the
“immediate” start of the obligation does not mean that the obligation ceases as soon as
there has been some delay in reporting. The natural reading of the regulation, instead,
is that the obligation to report starts immediately when the relevant actor has the relevant
knowledge, and continues at least until a report is made or the Coast Guard otherwise
becomes aware of the condition. Stated differently, the purpose of the word
“immediately” is simply to preclude a defense that the duty was discharged by giving

-- 5 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 6
2Indeed, the defendants themselves point out in their brief that the purpose of the “immediacy”
requirement is to prevent fast-developing crises, like the 1993 Amtrak disaster in which a passenger train
plunged off a railroad bridge eight minutes after the bridge was damaged by a passing barge.
notice several hours—or in this case, days—after the hazard was discovered.2 Under
such a natural interpretation of the regulation, venue lay in the Western District of
Kentucky in this case.
In addition to being the most textually plausible, this reading of the regulation
is also the most sensible. It would frustrate the purpose of the PWSA if the duty to
report were not ongoing, because the need to notify the Coast Guard of a hazardous
condition does not dissipate over time. The harm from an unreported hazard is more
likely to increase rather than to decrease from the continued lack of a report. Moreover,
an unreported hazard may cause harm in more than one district. And each district
through which a hazard passes has an interest in preventing that hazard from causing
injury or environmental damage within the district. See United States v. Reed, 773 F.2d
477, 482 (2d Cir. 1985).
While it is certainly true that the crime was complete and chargeable shortly after
the leak was discovered on June 16, that does not mean that the crime did not continue
for venue purposes once it was sufficiently complete to ground a conviction. A crime
can be both complete and continuing for venue purposes. See United States v. Cores,
356 U.S. 405 (1958); United States v. Rodriguez-Moreno, 526 U.S. 275 (1999). For
example, in Cores, the Supreme Court held that the crime of “willfully remaining” in the
United States after the expiration of a landing permit was a continuing offense. 356 U.S.
at 408-09. The defendant argued that the offense was complete the moment the permit
expired, and that even if he remained in the United States thereafter, he was no longer
committing the offense. Id. The Court rejected this argument, explaining that the
statutory prohibition against “willfully remaining” in the United States imposed a
continuing duty on the defendant to leave the country, and his failure to leave at the
moment his permit expired did not exhaust that duty. See id.; see also Rodriguez-
Moreno, 526 U.S. at 280-81. Similarly, the failure to immediately notify the Coast

-- 6 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 7
Guard of the hazardous condition on June 16 “satisfies the definition of the crime, but
it does not exhaust it.” Cores, 356 U.S. at 409.
The defendants rely on Toussie v. United States, 397 U.S. 112 (1969), in which
the Supreme Court held that a failure to register for the draft could not be deemed a
continuing offense for purposes of the statute of limitations. The defendants also cite
United States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989), a decision that relied on
Toussie in holding that the defendants’ failure to submit plans and schedules for making
plant modifications in violation of the Atomic Energy Act was not a continuing offense
for statute of limitations purposes.
These cases are distinguishable because they involve statutes of limitations, not
questions of venue. Of course, questions of venue, like statutes of limitations, involve
a temporal element. However, the distinction is sensible in light of the different
consequences that attach to a determination that a crime is a continuing offense for
statute of limitations purposes as opposed to venue purposes. If the crime is deemed to
be a continuing offense for venue purposes, the defendant is merely exposed to
prosecution in a different district. But if the crime is a continuing offense for statute of
limitations purposes, the defendant may be prosecuted after a time at which he would
otherwise have no exposure whatsoever. Thus, interpreting a crime as a continuing
offense for statute of limitations purposes has more serious consequences than it does
in the context of venue. Indeed, the Supreme Court was sensitive to this concern in
Toussie, observing that construing failure to register for the draft as a continuing offense
“could effectively extend the final date for prosecution until as late as 13 years after the
crime is first complete.” Toussie, 397 U.S. at 122. The Court specifically distinguished
Cores and Armour Packing Co. v. United States, 209 U.S. 56 (1908), two cases that dealt
with venue and did not involve the statute of limitations. Toussie, 397 U.S. at 121.
The defendants also argue that the rule of lenity requires that any ambiguity in
the statutory language must be resolved in favor of Canal Barge and its employees. See
United States v. Santos, 553 U.S. 507, 514 (2008). However, the rule of lenity is

-- 7 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 8
typically invoked only when interpreting the substantive scope of a criminal statute or
the severity of penalties that attach to a conviction—not the venue for prosecuting the
offense. See, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992); Bifulco v. United
States, 447 U.S. 381, 387 (1980). Santos, the case cited by the defendants, involved a
question of the substantive scope of the federal money-laundering statute: whether the
term “proceeds” referred to “profits” or the broader “receipts.” See 553 U.S. at 511-12.
Moreover, the rule of lenity is only a tiebreaker of last resort when, “after consulting
traditional canons of statutory construction, we are left with an ambiguous statute.”
United States v. Shabani, 513 U.S. 10, 17 (1994). But here the terms of the statute,
together with the purpose of the PWSA, leave no ambiguity. “Although the clause might
have been more meticulously drafted, the ‘grammatical possibility’ of a defendant’s
interpretation does not command a resort to the rule of lenity if the interpretation
proffered by the defendant reflects ‘an implausible reading of the congressional
purpose.’” Abbott v. United States, 131 S. Ct. 18, 31 n.9 (2010) (quoting Caron v.
United States, 524 U.S. 308, 316 (1998)).
Finally, the defendants argue that a narrow reading of whether the crime
continued is required by Johnson, in which the Supreme Court ruled that:
If an enactment of Congress equally permits the underlying spirit of the
constitutional concern for trial in the vicinage to be respected rather than
to be disrespected, construction should go in the direction of
constitutional policy even though not commanded by it.
323 U.S. at 276. Johnson involved the Federal Denture Act, which prohibited “use [of]
the mails or any instrumentality of interstate commerce for the purpose of sending or
bringing into” a district a set of dentures cast by an unlicensed dentist. The Court used
the “constitutional concern for trial in the vicinage” as a tiebreaker against the
continuing offense doctrine where the statute was susceptible to two different readings.
Id. Distinguishing the crime of “sending” from that of “transportation” in another
statute, the Court held that venue for illegal sending was limited to the district in which
the unlawful dentures were sent, and not where the dentures were received. Id. at 277.

-- 8 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 9
Importantly, the Court relied explicitly on the absence of a specifically applicable venue
provision. Id.
In response to Johnson, Congress added the second paragraph of § 3237(a),
which “removes all doubt as to the venue of continuing offenses and makes unnecessary
special venue provisions except in cases where Congress desires to restrict the
prosecution of offenses to particular districts.” Revision Notes to 18 U.S.C. § 3237(a).
The revision provided that “[a]ny offense involving the use of the mails [or]
transportation in interstate . . . commerce . . . is a continuing offense.” Although we do
not rely directly on that provision in this case, the revision arguably requires a more
expansive definition of a continuing offense than that applied in Johnson. But see
United States v. Brennan, 183 F.3d 139, 147 (2d Cir. 1999) (reasoning that the rule of
construction announced in Johnson retains its general validity notwithstanding the
enactment of the second paragraph of § 3237(a)). Furthermore, cases decided
subsequently to both Johnson and the enactment of the revised § 3237(a) provision make
clear that the Supreme Court does not hesitate to construe a crime as a continuing
offense when that is the superior interpretation of the statute. See Cores, 356 U.S. at
408-09; Rodriguez-Moreno, 526 U.S. at 280-82. Like the rule of lenity, the Johnson rule
is only a tiebreaker, and it does not overcome the more natural reading of the statute
here.
For these reasons, the most sensible characterization of the offense is that the
PWSA and 33 C.F.R. § 160.215 proscribe an ongoing failure to report a hazardous
condition, making venue proper in the district where the hazardous condition continued
unreported.
Because we conclude that the PWSA violation is a continuing offense under
18 U.S.C. § 3237(a) ¶ 1, we need not address the government’s alternative theory—that
the PWSA violation is an offense “involving . . . transportation in interstate . . .
commerce” under the second paragraph of 18 U.S.C. § 3237(a). We also need not
determine whether venue might also lie in the district where the nonreporting officer

-- 9 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 10
was, or where the report was supposed to be received, or where the effects of the
unreported hazard may have been felt.
III
Defendants also cross-appeal the denial of their motions for judgment of acquittal
based on insufficiency of the evidence, and their joint motion for a new trial on the
ground that the verdict was against the weight of the evidence. Because the judgment
of acquittal for improper venue must be vacated, we address the remaining grounds
rejected by the district court.
A
Defendants are not entitled to a judgment of acquittal on the remaining grounds
presented to the district court because the evidence was sufficient to establish the
elements of the PWSA offense beyond a reasonable doubt. “Evidence is sufficient to
support a criminal conviction if, after viewing the evidence in the light most favorable
to the government, any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.” United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir.
1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “In cases in which we
assess the sufficiency of the evidence, we do not weigh the evidence, assess the
credibility of the witnesses, or substitute our judgment for that of the jury.” United
States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994).
Viewed in the light most favorable to the government, the evidence was
sufficient for a jury to find that the defendants failed to notify any Coast Guard office,
including the St. Louis office, of the hazardous condition aboard the barge. For
example, Officer Robert Moran, a marine inspector from the Coast Guard’s Louisville
office, testified that he questioned Jay Little, Canal Barge’s maintenance superintendent,
about “what the reason was – that no Coast Guard, not the Coast Guard in Louisville,
any Coast Guard, where the barge had come from, . . . had not been contacted.” Robin
Mason, a Canal Barge employee who worked in the Belle Chasse office, testified that

-- 10 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 11
3The regulations define a hazardous condition as “any condition that may adversely affect the
safety of any vessel, bridge, structure, or shore area or the environmental quality of any port, harbor, or
navigable waterway of the United States. It may, but need not, involve collision, allision, fire, explosion,
grounding, leaking, damage, injury or illness of a person aboard, or manning-shortage.” 33 C.F.R.
§ 160.204.
she prepared a written “incident report” for the June 16 leak and faxed it to the Coast
Guard on June 21, and that she was surprised the leak had not been reported to the Coast
Guard before June 21. And Officer Chuck Mellor testified that he reviewed the
towboat’s “ship log” and found that it did not contain a record of the June 16 leak or any
calls to the Coast Guard.
Likewise, the government presented sufficient evidence that the defendants’
failure to notify the Coast Guard of the hazardous condition was knowing and willful,
instead of a poor judgment call or an honest mistake. First, the government presented
evidence that Scarborough, Barnes, and Martin were aware of a hazardous condition
aboard the barge.3 The record indicates that the benzene leak was reported to
Scarborough around 2:00 pm on June 16; that Scarborough told a deckhand to try sealing
the leak with a bar of soap; that Scarborough notified Barnes at the company’s
headquarters that a leak had been found; and that Barnes instructed Scarborough to apply
an epoxy patch to secure the leak. The record also indicates that Barnes thought the
temporary repair would enable the company to get the barge to its destination and back
before it was permanently repaired. Finally, the record indicates that, around 3:00 pm
on June 16, Martin was told that a leak had been found and stopped with a bar of soap;
that he was informed later that afternoon that there had been a spill and that the deck
crew had inhaled toxic fumes; and that Martin took command of the towboat later in the
afternoon.
In addition, the government presented expert testimony that benzene is toxic,
highly explosive, and a known human carcinogen; that even a very small leak could be
hazardous, because of the risk that it might enlarge over time; and that benzene is an
industrial solvent that will break down and dissolve epoxy material. The jury also heard
testimony that Scarborough, Barnes, and Martin were all trained maritime shipping

-- 11 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 12
professionals with decades of experience on the river. A rational jury could find that all
three defendants knew that even a small benzene leak patched with an epoxy material
would be a “condition that may adversely affect the safety of any vessel . . . or the
environmental quality of any . . . navigable waterway.” 33 C.F.R. § 160.204.
Second, the government introduced sufficient evidence that the defendant’s
failure to immediately notify the Coast Guard was willful. The record indicates that the
defendants failed to follow the company’s Coast Guard-approved “vessel response plan,”
which included procedures for a spill or threat of a spill. Another Canal Barge captain,
John DeVaux, testified that he had been trained to call the Coast Guard when a spill or
threat of spill occurred aboard a barge; that a decision to notify the Coast Guard under
these circumstances would not have been “a close call” but rather “dead obvious;” and
that there was not a captain in the world who would not have called the Coast Guard in
a case like this. The jury also heard evidence that Scarborough and Martin failed to
record the leak or the attempted patch in the towboat’s ship log, even though they signed
off on the log as true. Viewed in the light most favorable to the government, a rational
jury could find that Scarborough, Barnes, and Martin were each aware of a hazardous
condition aboard the barge, and that their failure to call the Coast Guard was not merely
a poor judgment call, but rather a knowing and willful violation of the law.
The district court also properly denied the separate motions for judgment of
acquittal filed by Martin and Canal Barge, because, viewed in the light most favorable
to the government, the evidence was sufficient for a rational jury to find that both
defendants willfully failed to immediately notify the Coast Guard of a hazardous
condition aboard the barge.
First, the evidence was sufficient to show that Martin knew of a hazardous
condition aboard the barge and willfully failed to immediately notify the Coast Guard.
The record shows that Martin was awake at 3:00 pm, about an hour after the leak was
discovered; that he was told later that afternoon that there had been a spill and that the
deck crew had inhaled toxic fumes; and that he took control of the towboat later in the

-- 12 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 13
afternoon. A rational jury could find that Martin knew of a benzene leak aboard the
barge about an hour after it was discovered. As captain of the barge’s towboat, Martin
was ultimately responsible for notifying the Coast Guard of the leak. And, for the
reasons discussed above, there was sufficient evidence for a jury to find that Martin’s
failure to notify the Coast Guard after learning of the leak was willful.
Second, the evidence was sufficient to show that an employee of Canal Barge
failed to immediately notify the Coast Guard with the intent, at least in part, to benefit
the company. The district court instructed the jury that to convict a corporate defendant,
it must find beyond a reasonable doubt that an agent of the corporation acted with the
intent to benefit the corporation. The jury heard testimony that the delay required to
offload and permanently repair the barge would have cost Canal Barge time and money.
Coast Guard Officer Moran testified that barge companies are concerned with delays
because they are costly. And Canal Barge captain Simpson Kemp testified that delays,
though normal on the river, cost time and money. Viewing this evidence in the light
most favorable to the government, a rational jury could find that one or more Canal
Barge employees acted with the intent, at least in part, to benefit the company.
B
The district court also properly concluded that the defendants were not entitled
to a new trial; this is because the evidence did not “preponderate[] heavily against the
verdict.” United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007). The decision of
whether to grant a new trial is committed to the “sound discretion of the trial judge,”
United States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982), and this discretion should
be exercised only in “extraordinary circumstance[s],” Hughes, 505 F.3d at 593.
Defendants urge that they are entitled to a new trial because the weight of the
evidence does not support a finding of a hazardous condition, and because the evidence
does not establish that the defendants’ failure to notify the Coast Guard was knowing
and willful. The defendants argue that the leak was not a “hazardous condition” because
“the product did not get into the water.” This was disputed at trial. But even if none of

-- 13 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 14
the benzene had actually spilled into the river, that was not the only risk presented by the
leaking barge. Because benzene is highly explosive, the risk in this case was not just
that the liquid would spill overboard and contaminate the river, but that the leaking fuel
would ignite and blow up the barge. The district court acted well within its discretion
in concluding that the evidence did not preponderate heavily against the jury’s finding
that a hazardous condition existed aboard the barge on June 16.
Likewise, for the reasons already discussed, the district court did not abuse its
discretion in concluding that the evidence did not preponderate heavily against the jury’s
finding that the defendants’ failure to notify the Coast Guard was knowing and willful.
IV
We reverse the district court’s judgment of acquittal for improper venue, and
remand for further proceedings consistent with this opinion.

-- 14 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 15
________________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
________________________________________________________
ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in
part. The majority opinion correctly concludes that there was sufficient evidence to
convict Defendants. The evidence in favor of conviction was more than sufficient to
withstand the limited scrutiny which we give such matters on appeal. I therefore concur
in the majority opinion’s affirmance of the district court’s denial of Defendants’ motions
for judgment of acquittal and for a new trial. However, I must vigorously dissent from
the majority opinion’s conclusion that the failure to “immediately” notify the Coast
Guard is a continuing offense.
Venue is a constitutional protection, U.S. Const. art. III, § 2 (“Trial shall be held
in the State where the said Crimes shall have been committed . . . .”), as well as a
statutory one, and we should always take appropriate care to assure that the government
abides by relevant constitutional provisions. The majority opinion adopts the
government’s position in holding that the offense in this case, a violation of 33 U.S.C.
§ 1232(b)(1) and, by derivation, 33 C.F.R. § 160.215, is a continuing offense. The
regulation in question requires “immediate[] notif[ication of] the nearest Coast Guard
Sector Office or Group Office.” The majority opinion concludes that its
interpretation—that failure to immediately notify can be a continuing offense—is not
only “a natural interpretation,” but also “the most textually plausible” and “most
sensible.” I respectfully submit that the English language would only accept the
majority opinion’s interpretation after being bullied into submission.
A continuing offense, as correctly described by the majority opinion, is one in
which the offense is “begun in one district and completed in another, or committed in
more than one district.” 18 U.S.C. § 3237(a). That description simply does not apply
to the offense which Defendants committed. The failure to immediately notify the Coast
Guard was an omission which became a complete and chargeable offense when, near St.

-- 15 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 16
1The majority opinion rejects the notion that this case has anything to do with statutes of
limitations, yet it is only a very small step from the legal framework established by the majority opinion
here to extend, indefinitely, the statute of limitations for violations of the pertinent regulation.
Louis, Missouri, the leak was discovered and not reported to the Coast Guard. The
majority opinion concedes this point, Maj. Op. at 6, but simultaneously concludes that
the immediacy prong of the regulation merely starts the clock, a clock which continues
running indefinitely until notice actually is given.1
I simply cannot make linguistic sense of the majority opinion’s conclusion that
a failure to immediately notify the nearest Coast Guard station can be an offense that is
perpetual and ongoing. To support its holding, the majority opinion invokes United
States v. Cores, 356 U.S. 405, 408-09 (1958), in which the Supreme Court held that the
crime of “willfully remaining” in the United States after the expiration of a landing
permit was a continuing offense. The majority opinion claims that the offenses of
“willfully remaining” and “failure to immediately notify” are similar, but the comparison
is simply untenable. If someone wrongfully remains past a deadline, he has violated the
initial proscription, but the affirmative act of continuing to remain is the very act that is
proscribed. In contrast, failure to immediately notify is an omission that is complete
right now, not right now and then again every five, ten, or thirty minutes for the
indefinite future. Once the violation is completed, there is no affirmative act that is
being proscribed.
The First Circuit rejected a similar argument by the government in United States
v. Salinas, 373 F.3d 161 (1st Cir. 2004). There, the government also argued that “a
crime can be both complete and continuing for the purposes of venue analysis.” Id. at
168. The First Circuit conceded that, “[a]s a theoretical matter, that proposition is true,”
but it clearly viewed the government’s claim with great skepticism, and rejected that
“one last arrow in [the government’s] quiver,” because doing so would “effectively
authorize the government to choose a venue of its liking even when, as now, the crime
was complete before a second district was implicated.” Id. at 168-69. The First Circuit
was especially concerned about the expansion of venue for crimes which, like the one

-- 16 of 17 --

Nos. 09-5388/5421/
5422/5423/5424
United States v. Canal Barge Co., et al. Page 17
at issue here, require specific intent, worrying that “[a]llowing specific intent to continue
a crime into any district in which that intent has consequences would significantly
expand the range of permissible venues.” The First Circuit correctly rejected such an
unwarranted expansion of venue, and we should do the same.
That failure to immediately notify cannot be a continuing offense is further
confirmed by other language in the regulation. In order to avoid violating the regulation,
one need do more than notify just any Coast Guard official—one must notify the
“nearest” Coast Guard Station. That term becomes nonsensical if the violation continues
indefinitely.
I do not understand the majority opinion’s insistence on its flawed interpretation
of the regulation. That the Defendants committed the crime for which they were
convicted seems clear, but requiring the government to abide by statutory and
constitutional restrictions on venue would not mean that Defendants would escape
punishment, only that the government would have to prosecute them in the proper venue.
While this would certainly not be the most efficient use of resources, concerns of
efficiency cannot be allowed to trump constitutional and statutory venue provisions,
especially when the government caused the inefficiency by bringing criminal claims in
what was clearly the wrong venue.

-- 17 of 17 --