of Frezzo Bros., and that Frezzo Bros. owned the property and controlled the compost operation. We therefore reject the defendants' contention that the evidence produced at trial was insufficient to support the verdict of the jury.
II. Motion for a New Trial.
Defendants claim the following errors in support of their motion for a new trial:
(A) That the Court erred when it failed to strike the opinion offered by Richard Casson to the effect that the condition or pollution of the stream at the Ellicott Avenue Bridge was caused by the discharge from the Frezzo property;
(B) That the Court erred when it overruled the defendants' objections to the statement made by James on May 9, 1978 and to the reading of Government exhibit No. 41;
(C) That the Court erred when it failed to give defendants' point for charge No. 5 that the mere discharge of a pollutant is not a criminal offense;
(D) That the Court erred when it advised the jury that the individual defendants could be found guilty outside their capacity as alleged co-owners and responsible officers of the corporation; and
(E) That the Court erred when it denied the defendants' motion to suppress samples taken from the channel box.
A. The Opinion of Richard Casson.
In connection with the defendants' contention that the opinion offered by Mr. Casson that the condition or pollution of the stream of the East Branch of the White Clay Creek at the Ellicott Avenue Bridge was caused by the discharge from the Frezzo property should have been stricken for lack of a factual basis, we find that our ruling at trial was correct. Mr. Casson testified that he had on several occasions observed the flow of the discharge from the Frezzo property to the Ellicott Avenue Bridge. In addition, he testified that a comparison of the results of the analyses of samples from the channel box and samples from the White Clay Creek substantiated his conclusion. Thus, we find that there was a sufficient factual basis for Mr. Casson's opinion. See United States v. R. J. Reynolds Tobacco Co., 416 F. Supp. 313 (D.N.J.1976).
B. Statement and Letter of James.
The defendants, Guido and Frezzo Bros., contend that the Court erred in admitting into evidence a statement made by James on May 9, 1978 and the contents of a letter written by James to the DER on October 4, 1971, despite the Court's instruction to the jury that the letter and the statement were admissible only as to James. Neither the statement made by James nor the pertinent contents of the letter fall within the Bruton rule, as defendants contend. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
In Bruton, the Supreme Court held that the admission of a co-defendant's confession implicating the defendant was a violation of the defendant's right to cross-examine witnesses against him, even if it was admitted with a cautionary instruction to the jury that the statement was only to be considered as evidence against the co-defendant. But implicit within this ruling was the rationale that the statement represent a "powerfully incriminating extrajudicial statement" which was highly damaging to the defendant and which was of critical, or at least substantial, weight to the Government's case. 391 U.S. at 128, 135-38, 88 S. Ct. 1620; United States v. Munford, 431 F. Supp. 278, 291 (E.D.Pa.1978). In light of the other evidence against defendants Guido and Frezzo Bros., we find that the statements involved here were not powerfully incriminating, highly damaging to these defendants, or of substantial weight to the Government's case against these defendants. Thus, we find that our rulings with respect to the May 9, 1978 statement of James and the letter from James to the DER were correct.
C. Point for Charge No. 5.
Defendants' contention (C), that the Court failed to charge the jury that the mere discharge of a pollutant is not a crime, is without merit because the Court in fact specifically charged the jury as follows:
In connection with the second element, therefore, the burden is on the Government to prove beyond a reasonable doubt that the defendants discharge of the pollutant was done willfully or negligently and the mere discharge of the pollutant, without proof that it was done either willfully or negligently, does not satisfy the Government's burden of proof beyond a reasonable doubt that the discharge was done willfully or negligently.
D. Charge of Court Concerning Individual Defendants.
The individual defendants contend that the Court erred in its charge to the jury concerning them. They point to the indictment which charges that James, "an individual in his capacity as co-owner and Secretary of Frezzo Brothers, Inc." violated Sections 301(a) and 309(c) of the Act and that Guido, "an individual in his capacity as co-owner and President of Frezzo Brothers, Inc." violated Sections 301(a) and 309(c) of the Act, and they claim that the Court erred in omitting this language in its charge to the jury concerning the individual defendants.
The statute creates an offense, the gravamen of which is the willful or negligent discharge of a pollutant by any person without a permit. It does not create a separate offense for such a discharge by a person in his capacity as a co-owner or an officer of a corporation or in any other capacity.
In the Court's charge, the jury was instructed that the Government had a burden to prove beyond a reasonable doubt all of the essential elements of the crime as to each defendant.
The charge stated that the essential elements of the crime consisted of the willful or negligent discharge of a pollutant without a permit. Inasmuch as the capacity in which one discharges the pollutant is not an essential element of the crime, the language of the indictment alleging that James and Guido each acted in his capacity as co-owner and/or Secretary and President of Frezzo Bros. goes beyond alleging matters which are essential elements of the crime. Language in an indictment which goes beyond alleging matters which are essential elements of the crime charged is surplusage and need not be proved. United States v. Greene, 497 F.2d 1068, 1086 (7th Cir. 1974), Cert. denied, 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975); United States v. Goodwin, 440 F.2d 1152, 1157 (3d Cir. 1971). It therefore follows that the language concerning the capacity in which James and Guido committed the crime is surplusage and need not be proved, and the jury need not have been so charged.
In their memorandum of law in support of their motion for a new trial, the defendants allege a fatal variance between the indictment and the Court's charge. The Court finds no basis for such a contention. Defendants rely on United States v. Smolar, 557 F.2d 13 (1st Cir.), Cert. denied, 434 U.S. 971, 98 S. Ct. 523, 54 L. Ed. 2d 461 (1977), which held that the Court may not in its instruction change the charging part of an indictment "to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes." Id. at 19 (quoting Stirone v. United States, 361 U.S. 212, 216, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960)). The fact that the charge did not mention co-owners and officers of Frezzo Bros. did not in any way change the charging part of the indictment as discussed in Smolar. The indictment was read to the jury and it went out with the jury during its deliberations. Furthermore, all of the evidence presented by the Government concerning James and Guido pointed to the fact that they were in control of the operation of Frezzo Bros. We are, therefore, unable to find any error in the charge.
E. Motion to Suppress.
Defendants contend that the Court should have ordered the suppression of all of the samples taken from the channel box on the west side of Penn Green Road, which channel box was not located on the Frezzo property. At the suppression hearing, however, there was no evidence presented that the defendants were on the premises at the time of the seizure of the samples, that the defendants had a legitimate proprietary or possessory interest in the premises or that the defendants were charged with an offense that includes as an essential element of the offense possession of the samples seized. Brown v. United States, 411 U.S. 223, 230, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). Thus, the defendants lacked standing to object to the seizure of the samples taken from the channel box, and we correctly denied their pretrial motion to suppress.
While we do not herein discuss all the contentions of alleged error raised by the defendants, we have considered each and every allegation of error and hold that none of them, singly or collectively, is of sufficient substance to merit any further discussion as a basis for granting a judgment of acquittal or a new trial in this case.
Accordingly, an Order will be entered denying the defendants' motions for judgment of acquittal and a new trial.