In the Courts

In United States v. W.R. Grace, No. 06-30472, 06-30524, 2007 WL 2728767 (9th Cir. Sept. 20, 2007), the United States Court of Appeals for the Ninth Circuit held in part that: 1) a timely filed but structurally flawed indictment may, in many situations, be amended after the statute of limitations has expired, even if all or part of the indictment was dismissed as time barred; and 2) a term in a criminal statute may be defined in part based on the defendants' specialized, subjective business knowledge. In a complex opinion, these two issues stand out for their potential application in other business crimes and enforcement matters.

The Ninth Circuit's interlocutory opinion and the government's superseding indictment arose out of W.R. Grace's now-closed vermiculite mine near Libby, MT. The United States Attorney for the District of Montana successfully sought an eight-count indictment charging W.R. Grace and seven of its current or former employees (collectively, the 'Defendants') with: 1) one count of conspiring to violate the Clean Air Act ('CAA') and conspiring to defraud the United States in violation of 18 U.S.C. ' 371; 2) three counts of knowing endangerment under the CAA in violation of 42 U.S.C. ' 7413(c)(5)(A); and 3) four counts of obstruction of justice in violation of 18 U.S.C. ” 1505 and 1515(b). Id. at *1. After the United States District Court for the District of Montana granted a series of the Defendants' pre-trial motions, the government filed an interlocutory appeal concerning, among other orders, (the government also appealed the district court's order denying of the government's motion to exclude evidence related to a CAA affirmative defense and three orders excluding certain evidence and expert testimony) the district court's: 1) dismissal of the CAA object of the conspiracy charge and 2) definition of asbestos and exclusion of evidence inconsistent with that definition. Id.