United States v. Peters

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 31, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 02-41176

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL J. PETERS;
JEFFREY L. JACKSON,

Defendants-Appellants.

Appeals from the United States District Court
For the Eastern District of Texas

Before KING, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit
Judges.

HIGGINBOTHAM, Circuit Judge:

Michael Peters and Jeffrey Jackson appeal their convictions on

three counts of knowingly operating a defective and damaged

wastewater tank in violation of the Clean Air Act,1 one count of

making a false writing as to material matters within the

jurisdiction of the Environmental Protection Agency,2 and one count

1
42 U.S.C. § 7413(c)(1) (1995).
2
18 U.S.C. § 1001 (2000).
of conspiracy to make the false writing.3 They argue that the

district court reversibly erred by (1) making coercive statements

and giving supplemental instructions to the jury foreperson during

an ex parte meeting; (2) allowing the wastewater tank conviction to

stand even though the government provided no evidence that they do

not qualify under an exception to the regulations; and (3) denying

their rights to speedy sentencing and appeal. Although we find no

error in the judge’s application of the wastewater tank regulations

to the defendants or the speed with which sentencing occurred, we

conclude that the judge’s ex parte communications with the jury

foreperson were reversible error. We reverse the convictions and

remand the case to the district court for a new trial.

I

Huntsman Petrochemical Corporation owns and operates an

aromatics and olefins production plant in Port Arthur, Texas. The

Port Arthur plant used benzene to produce ethylene, propylene, and

cyclohexalene. From 1994 to 1996, Appellant Peters was the

environmental manager for Huntsman’s Jefferson County Operations

(“JCO”) in southeast Texas. JCO consisted of four facilities,

including the Port Arthur plant, for which Peters oversaw

environmental policy and programs. The managers of each of the

four plants managed its daily operations. Jackson served as a

plant manager from early 1995 through mid-1997.

3
18 U.S.C. § 371 (2000).

2
 The indictment alleged federal statutory violations involving

two of the Port Arthur plant’s components. First, the plant used

a tower to cool water used to cool processes in the Light Olefins

Unit. Water pumps through the processes, takes the heat and then

circulates through the cooling tower. After being notified by the

Texas Natural Resource Conservation Commission (“Commission”) that

the tower was a potential source for significant airborne benzene

emissions, Huntsman discovered that benzene was leaking into the

cooling system on a continuous basis. Peters drafted a letter to

the Commission that characterized the benzene leak as a “major

upset” in normal operations, which would exempt the plant from

sanctions under state law. A few weeks later, Peters drafted, and

Jackson signed, a Notice of Continuous Release for the benzene

releases from the cooling tower that was sent to the EPA and state

officials. A continuous release is one that is routine,

anticipated, and incidental to normal operations.4 The government

argued at trial that the notice to the EPA that characterized the

leak as continuous contradicts Peters’ earlier letter to the

Commission, which characterized the leak as a “major upset.”

Further, the government argued that Peters’ letter knowingly used

benzene emission samples from a different location that had lower

level emissions to give a false representation of emissions.

4
40 C.F.R. § 302.8(b) (2003).

3
 The second alleged violation involved a wastewater tank used

to store wastewater prior to treatment. Tank 33756 (“Tank 56") was

used as a backup tank to hold benzene-contaminated wastewater.

Tank 56 operated by way of an external floating roof, but when the

level of wastewater in the tank dropped below a certain level, the

floating roof came to rest on its legs instead of the wastewater.

Lightning struck the tank in November 1995, causing a fire that

damaged the tank’s seal. After the fire, Jackson stated that he

would continue to use the tank. Huntsman repaired the tank in

April 1996. Jackson, Peters, and other Huntsman employees met with

state officials to discuss elevated benzene levels in the area of

the Port Arthur plant in July 1996. Although Peters and Jackson

prepared a chronology before the meeting that showed Tank 56's

wastewater level as below the level at which the roof would float

on the wastewater, this information was not part of the chronology

that Huntsman presented to the state officials.

A federal grand jury indicted Peters and Jackson. The

indictment alleged that they attempted to prevent the United States

from discovering the unauthorized release of volatile organic

compounds. It alleged further that Peters and Jackson violated the

Clean Air Act by operating Tank 56 in violation of EPA standards.

The case was tried to a jury.

The heart of this appeal focuses on an ex parte meeting

between the judge and the jury foreperson that occurred during the

jury’s three days of deliberations. The jury foreperson sent the

4
judge a note stating, “I’m not going to take insults and I ask to

be relieved.” In response, the judge informed the attorneys that

he wanted to meet privately with the foreperson. The judge told

the attorneys that the meeting would be limited to what was

bothering the foreperson. The attorneys did not object to the

meeting.

During the ex parte meeting, the judge and juror discussed

what was bothering the foreperson, but the discussion continued

into other areas. The foreperson told the judge that the jury was

eleven to one on one count, and “the pressure that was involved on

the one person to agree was tremendous.” The juror asked the judge

what effect the jury’s inability to agree on one count would have

on the overall verdict. The judge, in addition to answering his

question, told the juror, “It is my hope that there would be -

everybody hopes the jury will be able to conclude the verdict on

all counts.” He went on to tell the juror to “reach a unanimous

verdict on as many counts as you can without doing violence to

anyone’s conscience and so on.” The foreperson told the judge

three times that he was concerned with causing a mistrial, and the

judge assured him that the meeting would not do so. The judge went

on to tell the foreperson that he would not “declare a mistrial

until and unless I [know that], after necessary instructions and so

on, it’s impossible for the jury to proceed and obtain a unanimous

verdict on the issues that are before you.” The judge also told

the foreperson: “I anticipated that this jury would be out at

5
least two days, probably longer, I mean, yesterday and then today

and tomorrow.” Finally, the conversation led to inadvertent

supplemental instructions. The foreperson asked, “In order to have

one . . . overt act to be found guilty of, there may be several

parts, and all the parts have to be combined in order to make the

one true?” The judge answered, “Yeah,” and the foreperson

responded, “Okay.” Later in the ex parte meeting, when discussing

documents involved in the case, the judge instructed the juror “to

also remember the testimony about the document.”

A court reporter recorded the ex parte meeting, but the judge

sealed the transcript until after the trial. The judge told the

attorneys that the jury foreperson vented his frustrations. The

transcript was unsealed after the trial. It showed (1) the jury’s

deadlock on one count; (2) the judge’s instruction that “everyone

hopes the jury will be able to conclude the verdict on all counts”;

(3) the foreperson’s questions about the effect of the jury’s

answers on the entire verdict, the possibility of a mistrial

because of the meeting, or the meaning of an overt act; and (4) the

judge’s instructions in response to the foreperson’s questions.

The jury found both defendants guilty the day after the

meeting. Defendants moved for a new trial based, among other

things, on the ex parte meeting. The motions were denied.

II

A

6
 Defendants argue that the judge’s meeting with the foreperson

was reversible error under United States v. Gypsum Co.5 and United

States v. Cowan.6 They argue that the judge’s comments and

instructions rise to the level of impermissible coercion, and

violate their right to be present, to object, and to clarify

supplemental instructions when given.

The Supreme Court and this court have warned of the dangers

inherent in any ex parte meeting between judge and juror, despite

good intentions:

Any ex parte meeting or communication between the judge
and the foreman of a deliberating jury is pregnant with
possibilities for error. . . . [E]ven an experienced
trial judge cannot be certain to avoid all of the
pitfalls inherent in such an enterprise.7

The Court in Gypsum gave three reasons for the great possibility of

error. First, a judge cannot predict or control the direction a

conversation may take, and “[u]nexpected questions or comments can

generate unintended and misleading impressions of the judge’s

subjective personal views which have no place in his instruction to

the jury – all the more so when counsel are not present to

challenge the statements.”8 Second, there is a risk that the one

juror will return to the jury and provide “innocent misstatements

5
438 U.S. 422 (1978).
6
819 F.2d 89 (5th Cir. 1987).
7
Cowan, 819 F.2d at 91 (quoting Gypsum, 438 U.S. at 460).
8
Gypsum, 438 U.S. at 460.

7
of the law and misinterpretations despite the good faith of the

participants.”9 Finally, “the absence of counsel from the meeting

and the unavailability of a transcript or full report of the

meeting aggravate the problems of having one juror serve as a

conduit for communicating instructions to the whole panel.”10 The

supplemental instruction regarding the jury’s obligation to return

a verdict, coupled with the judge’s disallowance of any possible

remedy for the situation by excluding the attorneys, led the court

to hold that “the Court of Appeals would have been justified in

reversing the convictions solely because of the risk that the

foreman believed the court was insisting on a dispositive

verdict.”11

In Gypsum, the judge informed counsel that he wished to meet

with a juror ex parte to discuss solely the jury’s health after a

long trial. Counsel made no objection and reluctantly agreed. The

conversation drifted away from its intended topic, moving instead

to whether the judge insisted on a verdict. The Court found the

following colloquy to be reversible error:

THE COURT. I would like to ask the jurors to continue
their deliberations and I will take into consideration
what you have told me. That is all I can say.

9
Id. at 461.
10
Id.
11
Id. at 462.

8
 MR. RUSSELL. I appreciate it. It is a situation I don’t
know how to help you get what you’re after.

THE COURT. Oh, I am not after anything.

MR. RUSSELL. You are after a verdict one way or the
other.

THE COURT. Which way it goes doesn’t make any difference
to me.12

Most of the conversation between the judge and juror concerned the

health of the jury after a five-month jury trial, and the state of

the jury’s deadlock.13 Nonetheless, the court found the above

colloquy created such a risk of improper influence by the judge

that it constituted reversible error.14 Neither the judge’s comment

that he was not after anything, nor the fact that his final

statement could be interpreted by some as not insisting on a

verdict, could save the jury’s verdict. The risk alone that the

judge was insisting on a verdict required reversal.15

This circuit followed Gypsum’s instruction and reasoning in

Cowan. In Cowan the jury was deadlocked on the question of

conspiracy, and the judge told counsel that he wanted to question

each juror ex parte about the prospect of reaching a verdict.16

12
Id. at 432.
13
Id.
14
Id. at 462.
15
Id.
16
Cowan, 819 F.2d at 90-91.

9
Counsel did not object.17 Inadvertently, the ex parte

communications drifted into supplemental instructions concerning

the jury’s obligation to reach a verdict.18 A jury member told the

judge that the jury could not agree on the definition of

conspiracy, and the judge responded, “I don’t see how there can be

any real difference of opinion. They [the jury instructions] are

[in] very plain English, which is what they try to do and put it in

layman’s language and not some technical language that a jury

person couldn’t understand.”19 The judge also told another juror,

“well, I really hate to keep you here and I was supposed to be home

tonight, but it is just one of those things.”

Relying on Gypsum, the Cowan court held that these comments

impermissibly influenced the jury and required reversal. First,

the comment about the instructions could have made the jury think

that the judge viewed them as less intelligent than other juries.20

As a result, the juror “could have reasonably inferred that the

judge was irritated that the jury was unable to return a verdict

for such a frivolous reason.”21 Second, the comment about hating

to keep the jury into the evening could be perceived as pressure to

17
Id. at 91.
18
Id. at 91-93.
19
Id. at 91 (alteration in original).
20
Id. 91-92.
21
Id. at 92.

10
return a verdict.22 Third, the situation was aggravated by the fact

that the attorneys were excluded from the meetings and were not

allowed to correct any mistaken impression given.23 The court held

that this exclusion constituted a denial of the defendant’s right

to object to supplemental instructions.24

Cowan found the error was not harmless because it did not know

whether the verdict was a result of the court’s improper influence.

While the jury convicted the defendant on another count that was

not discussed during the ex parte meeting, the second count could

not save the verdict because “the jury’s verdict on both counts was

not delivered until after the ex parte communications were

completed.”25

It is noteworthy that the Gypsum and Cowan courts reversed

despite the lack of an objection by counsel. The courts forgave

the lack of an objection because the ex parte meetings moved beyond

the scope of consent given by counsel. In Gypsum, counsel

acquiesced to an ex parte meeting limited to receiving “a report on

the state of affairs in the jury room and the prospects for a

verdict.”26 Counsel did not agree to an incomplete report of the

22
Id. at 92-93.
23
Id. at 93.
24
Id.
25
Id. at 94.
26
Gypsum, 438 U.S. at 461.

11
meeting, the judge giving supplemental instructions, or the judge’s

coercion of the jury into reaching a verdict.27 The same approach

was taken by this circuit in Cowan: “As in Gypsum, we overlook the

defendant’s failure to object because he was led to believe that

the district judge sought only to evaluate the prospects for

reaching a verdict.”28

B

Gypsum and Cowan lead us to find reversible error. We

recognize that this able judge was not bearing down on the

foreperson and was not attempting to force a verdict. But the law

controlling this case affords little tolerance for any ex parte

meeting between judge and juror during deliberations, and

statements that seem innocuous at first glance may - in the law’s

eye - be improperly influential. Here, the judge’s statements

regarding his and everybody’s hope for a verdict, his desire for

unanimity, his expectations as to how long the jury should take to

reach a verdict, and the instructions on the law make the meeting

at least as impermissible as those in Gypsum and Cowan.

First, as in Gypsum and Cowan, the judge’s inadvertent

comments regarding his hope for a verdict may have generated the

“unintended and misleading impressions of the judge’s subjective

27
Id.
28
Cowan, 819 F.2d at 93.

12
personal views.”29 While discussing the foreperson’s concern about

not reaching a verdict, the judge stated that it was his “hope that

there would be - everybody hopes the jury will be able to conclude

the verdict on all counts.” He instructed the foreperson to “reach

a unanimous verdict on as many counts as you can.” He told the

foreperson how long he expected the jury to take in reaching a

verdict. In response to the foreperson’s concern that a mistrial

may result, the judge assured him that he would only declare a

mistrial after he was sure the jury could not reach a unanimous

verdict. These statements are not overly or intentionally coercive.

However, they are at least as objectionable as the judge’s

statement in Gypsum. There, the judge said that which way the

verdict came out did not matter to him, implying the obligation to

return a verdict “one way or the other.” The judge qualified his

comments by stating that he was not after anything, but the Court

found the meeting to constitute reversible error nonetheless. The

statements here are more explicit and extensive on the judge’s

personal desire for a verdict. The judge’s comments may have

impressed on the jury an obligation to return a verdict, and

counsel could not remedy this impression because of their absence.

We are left with the possibility of this impression and the

inability to correct it, as in Gypsum and Cowan.

29
Gypsum, 438 U.S. at 460.

13
 Second, the judge’s instructions on the definition of an overt

act, the effect of the jury’s answer to one count on the overall

verdict, and the possibility of a mistrial created the risk that

the foreperson would return to the jury and provide “innocent

misstatements of the law.” Of course, no one knows what was said

among the jurors after the ex parte meeting, but we are left with

a high risk of the foreperson’s misstatements.

Finally, counsel was absent from the meeting, and the

transcript was sealed until after the jury delivered its verdict.

As noted in Gypsum and Cowan, these facts aggravate the already

high risk of the jury’s impression that it must return a verdict

and the jury’s misinterpretation of the judge’s comments. Counsel

was unaware of the coercive statements and the supplemental

instructions, and therefore was denied the opportunity to remedy

the situation. Together these three considerations - the risk of

coercion, the incidental supplemental instruction and the absence

of counsel - constitute reversible error.

C

We are keenly aware that counsel might sandbag a trial judge

by standing down while a judge enters a situation known by all to

be “pregnant with possibilities for error.” Chief Justice

Rehnquist’s dissent from Gypsum’s approach to the ex parte meeting

because the meeting was “consented to by all parties to the case”

14
has great force.30 Similarly, the Third Circuit noted the danger

of sandbagging in a case where counsel repeatedly encouraged ex

parte meetings.31 The Chief Justice’s view, however, was the

dissent, and counsel here did not encourage ex parte meetings.

Accordingly, our standard is harmless error.

This case involved a complicated factual history and a

technical area of the law. The jury had difficulty coming to a

unanimous verdict. After reviewing the record, we, like the Cowan

court, cannot say that the jury was not coerced or intimidated into

reaching a unanimous verdict. We also follow Cowan in holding that

the jury’s possible other verdicts - not discussed in the ex parte

meeting - do not provide a basis for affirmance.32 The verdict was

delivered after the ex parte meeting, and any possibility of a

conviction or acquittal on other grounds before that meeting is

mere speculation.

30
Gypsum, 438 U.S. at 474 (Rehnquist, C.J., concurring in part
and dissenting in part).
31
United States v. Aimone, 715 F.2d 822, 829 (3rd Cir. 1983)
(“[W]hen defense lawyers, as a matter of trial strategy, urge the
judge to conduct off-the-record interviews with a juror in a
situation like this, we hold counsel to their obligations to the
court. They may not promote action by a trial judge and then
assign that compliance as error. ‘Sandbagging’ will not be
countenanced by this court.”).
32
Cowan, 819 F.2d at 94 (“Although the ex parte communications
ostensibly focused only on the conspiracy charge, the jury’s
verdict on both counts was not delivered until after the ex parte
communications were completed. The government is therefore only
speculating that the jury unequivocally convicted Cowan on the
distribution count.”).

15
 III

Defendants also urge that counts 3-5 of their indictment

addressing possible Clean Air Act violations fail as a matter of

law and require that we dismiss them with prejudice. The argument

is that the charged regulations do not apply because defendants

chose an alternative means of compliance, and that the government

presented no evidence that they did not comply with the

alternative, so dismissal with prejudice is required. We disagree.

Defendants were charged with failing to comply with various

wastewater tank standards set forth in 40 C.F.R. §§ 60.112b and

60.351. Another regulation, 40 C.F.R. § 61.342(e), provides an

alternative means of compliance with benzene waste operations.

Although not raised or argued at trial, the argument is that

defendants selected this alternative, and the government produced

no evidence to show that they did not comply with it.

This alleged error was not raised at trial and we review for

plain error. We are persuaded that the alternative on which

defendants rely is properly construed as an affirmative defense

that the government does not have to plead and prove as an

essential element of the offense. It is a “well-established rule

of criminal statutory construction that an exception set forth in

a distinct clause or provision should be construed as an

affirmative defense and not as an essential element of the crime.”33

33
United States v. Santos-Riviera, 183 F.3d 367, 370-71 (5th
Cir. 1999) (citing McKelvey v. United States, 260 U.S. 353, 357

16
Here, a provision distinct from the wastewater tank requirements

provides an alternative means of compliance. The government need

not negate this exception when charging one with violating the tank

standards; instead, it is the defendants’ burden to prove the

exception’s applicability as an affirmative defense. There was no

error, much less plain error; we therefore remand counts 3-5 of the

indictment along with the other counts.

IV

Defendants next contend that delay in sentencing denied their

Sixth Amendment right to speedy sentencing and their due process

right to a reasonably speedy appeal. A court considers four

factors in determining whether delay in sentencing violated a

defendant’s rights: (1) the length of the delay; (2) the reason

for the delay; (3) the defendant’s assertion of his speedy trial

right; and (4) the resulting prejudice to the defendant, if any.34

Considering these factors in light of the record, we do not believe

the defendants’ rights were violated. The delay in sentencing was

attributable to the complexity of the issues presented, various

post-trial motions, and the resolution of issues regarding the

Presentence Report, which defendants fought strongly. These

circumstances show the delay to be reasonable, and no prejudice has

been shown that would justify a reversal with prejudice.

(1922)).
34
See Barker v. Wingo, 407 U.S. 514 (1972); see also United
States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996).

17
 V

We REVERSE the defendants’ convictions and REMAND for a new

trial.

18