Father and Son Do Hard Time for Filling a Dry Ditch

By National Center for Public Policy Research | July 7, 2008 | 8:21pm EDT

(Editor's Note: The following is the 77th of 100 stories regarding government regulation from the book Shattered Dreams, written by the National Center for Public Policy Research. CNSNews.com will publish an additional story each day.)

Ocie Mills bought two lots in Escombia Bay, Fla., in 1986. He planned to build a dream home for his son, Carey. The father and son brought in 19 loads of clean building sand, cleared a dry ditch and began filling that ditch with sand to level the ground for a foundation. Shortly after the work began, Mills received a notice from the U.S. Army Corps of Engineers demanding that he immediately stop placing fill in the ditch because the Corps considered it a wetland.

When Mills tried to contact the Corps, he unknowingly spoke with someone who worked for the Florida Department of Environmental Regulation (DER). The Corps was temporarily sharing office space with the DER at the time. The DER official came to the Millses' property to determine if it contained wetlands. Flags placed on the property by the DER showed that most of the land, including the ditch, was not a wetland. The Millses resumed dumping fill. The Corps, however, disagreed with the judgement of the DER and sent U.S. Marshals to arrest Ocie and Carey Mills. The Millses could not afford a lawyer, and they didn't think the Corps' case would be taken seriously due to the judgement from the DER.

The case did go to trial, however. In January 1989, three federal lawyers represented the government's case against the Millses. Ocie Mills, representing himself, attempted to submit evidence showing that the DER did not agree that the ditch qualified as a wetland since the land was completely dry. This evidence, however, was disregarded because it dealt with state law, which was superceded by federal law. Ocie and Carey Mills were both sentenced to 21 months without parole and fined $5,250 each.

The two men served their complete sentences. In 1992, they returned to U.S. District Court and a new judge in an attempt to have their convictions erased. The Millses' lawyers raised questions regarding jurisdiction over the property, a matter that was never discussed in the original trial. Since appeals can only be made based on information argued in the initial trial, Judge Roger Vinson - though sympathetic - ruled not to reverse the convictions. He did rule, however, that "the property was probably never a wetland for purposes of the Clean Water Act."

In March 1996, Quenton Wise, a juror from the original trial, informed Ocie Mills that the jury had been prejudiced against the father and son during the trial because the jury foreman had told the other jurors of a past encounter Ocie Mills had with environmental officials.

In light of allegations of a biased jury, the Millses filed a petition for the writ of error coram nobis ("error before us") on April 11, 1996. Such writs are only granted in rare circumstances if a severe injustice can be proven, but it provided a possible way for the Millses to get a new trial. Judge Vinson ruled in the Millses' favor and set an evidentiary hearing, but the 11th Circuit Court of Appeals in Atlanta decided the tainting of a jury pool is not severe enough to merit the writ and overturned the ruling.

In 2001, the U.S. Supreme Court declined to hear the Millses' case.

Sources: Pacific Legal Foundation, the Washington Times, WorldNetDaily.com, the Freedom Forum Act.

Copyright 2003, National Center for Public Policy Research

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