Case: 11-30572 Document: 00511855989 Page: 1 Date Filed: 05/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2012
No. 11-30572 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
J. JEFFREY PRUETT; LOUISIANA LAND & WATER COMPANY; L W C
MANAGEMENT COMPANY, INCORPORATED,
Defendants–Appellants
Appeals from the United States District Court
for the Western District of Louisiana
Before KING, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:
Defendants–Appellants J. Jeffrey Pruett, Louisiana Land & Water Co.,
and LWC Management, who own and operate numerous wastewater treatment
facilities, were charged with knowingly violating the Clean Water Act. After a
ten-day trial, Defendants–Appellants were convicted on multiple counts. They
now appeal their convictions and sentences. For the reasons stated herein, we
AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant–Appellant J. Jeffrey Pruett (“Pruett”) was the president and
chief executive officer of Defendants–Appellants Louisiana Land & Water Co.
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(“LLWC”) and LWC Management Co., Inc. (“LWC Management”). Pruett,
through LLWC and LWC Management, was responsible for the operation of
twenty-eight wastewater treatment facilities in northern Louisiana.
Pruett’s facilities treated and discharged wastewater, known as “effluent.”
Under the Clean Water Act (“CWA”), 33 U.S.C. § 1342, Pruett was required to
obtain a National Pollutant Discharge Elimination System (“NPDES”) permit
for each wastewater treatment facility that he operated. Pruett obtained the
required permits through the Louisiana Department of Environmental Quality
(“LDEQ”), which administers the NPDES program in Louisiana. Among other
things, the NPDES permits imposed “effluent limitations” on the discharge of
certain pollutants from treatment facilities. Pruett was required to collect
samples to ensure that effluent discharges from his facilities were within permit
limits, and to regularly submit the test results, called Discharge Monitoring
Reports, to the LDEQ. Pruett was also required to maintain detailed records of
his monitoring activities and provide inspectors access to his records.
In November 2007, the Environmental Protection Agency (“EPA”) and the
LDEQ began a series of inspections at Pruett’s facilities. Inspectors discovered
violations at many of these facilities, six of which are at issue here: (1) Bayou
Galion, (2) Charmingdale, (3) Donovan Woods and Daywood, (4) Fleetwood Park,
(5) Love Estates, and (6) Pine Bayou. After discovering these violations, the
government initiated a criminal prosecution against Pruett, LLWC, and LWC
Management. The seventeen-count indictment charged four broad categories of
offenses, all in violation of 33 U.S.C. §§ 1311(a), 1342, and 1319(c)(2)(A): (1)
failure to provide proper operation and maintenance of the facilities; (2) failure
to maintain monitoring results as required by the permits; (3) discharge in
excess of effluent limitations; and (4) unpermitted discharge. Several counts
were dismissed on the government’s motion.
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Following a ten-day trial during which the government presented twenty
witnesses, the jury was instructed that for each offense it could return a verdict
of (1) guilty of a knowing violation (a felony), (2) guilty of a negligent violation
(a misdemeanor), or (3) not guilty. The jury returned the following verdict: (1)
a guilty verdict against all Appellants for a knowing violation of effluent
limitations at Love Estates (Count 13), (2) a guilty verdict against Pruett and
LLWC for a knowing violation of the record keeping requirement at all facilities
(Counts 2, 5, 8, 11, 12, and 15), and (3) a guilty verdict against Pruett for a
negligent violation of operation and maintenance requirements at Pine Bayou
(Count 14). The Appellants were acquitted on all remaining counts.
Pruett was sentenced to twenty-one months incarceration on the felony
convictions and twelve months on the misdemeanor conviction, to run
concurrently, and a fine of $310,000. LLWC was fined $300,000 and LWC
Management was fined $240,000, with the fines imposed on a joint and several
basis against all Appellants. This appeal followed.
II. DISCUSSION
Appellants challenge the sufficiency of the evidence, the jury instruction
on negligence, certain evidentiary rulings, and the mid-trial dismissal of a juror.
They also appeal the sentences imposed by the district court. We address each
issue in turn.
A. Sufficiency of the Evidence
1. Standard of Review
As Appellants properly moved for a judgment of acquittal pursuant to
Federal Rule of Criminal Procedure 29, they preserved their sufficiency of the
evidence claim for appellate review. We review Appellants’ challenge de novo.
See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). In assessing a
challenge to the sufficiency of the evidence, we must determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
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trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). “When there is a conflict over testimony, the court will defer to the fact
finder’s resolution with respect to the weight and credibility of the evidence. To
be sufficient, the evidence need not exclude every reasonable hypothesis of
innocence, so long as the totality of the evidence permits a conclusion of guilt
beyond a reasonable doubt.” United States v. Hicks, 389 F.3d 514, 533 (5th Cir.
2004) (citations omitted).
2. Sufficiency of Evidence to Support Felony Convictions
Under the CWA, the “discharge of any pollutant by any person shall be
unlawful,” except when, inter alia, that discharge is in compliance with the
permitting requirements of § 1342. See 33 U.S.C. § 1311(a). Section 1319
prescribes both civil and criminal penalties for violations of these requirements.
Criminal penalties are divided into “[n]egligent violations” (misdemeanors) and
“[k]nowing violations” (felonies). 33 U.S.C. § 1319(c)(1)(A),1 (c)(2)(A).2
1
Section 1319(c)(1)(A), applicable to negligent violations, provides:
Any person who–
(A) negligently violates section 1311 . . . of this title, or any permit condition or
limitation implementing any of such sections in a permit issued under section
1342 of this title by the Administrator or by a State . . . .
shall be punished by a fine of not less than $2,500 nor more than $25,000 per
day of violation, or by imprisonment for not more than 1 year, or by both. . . .
2
Section 1319(c)(2)(A), applicable to knowing violations, provides:
Any person who–
(A) knowingly violates section 1311 . . . of this title, or any permit condition or
limitation implementing any of such sections in a permit issued under section
1342 of this title by the Administrator or by a State . . . .
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Appellants appeal their felony convictions with respect to certain effluent
and record keeping violations. We find that the government presented sufficient
evidence to support the convictions.
i. Effluent Violations
Appellants appeal their felony convictions with respect to Count 13, which
alleged that from May 2005 to August 2008, Appellants knowingly discharged
pollutants at the Love Estates treatment facility in excess of effluent limitations
set forth in their NPDES permit. On appeal, they concede that the government
produced sufficient evidence to prove that the violations occurred, but argue that
the government did not produce sufficient evidence of their intent. The
government responds that it demonstrated the requisite intent through “the
near constancy and extended duration of the Love Estates violations” over a
four-year period.
In general, “[t]he intent necessary to support a conviction can be
demonstrated by direct or circumstantial evidence that allows an inference of
unlawful intent, and not every hypothesis of innocence need be excluded.” United
States v. Aggarwal, 17 F.3d 737, 740 (5th Cir. 1994). Prior acts may be
introduced to prove intent. FED. R. EVID. 404(b); see United States v. El–Mezain,
664 F.3d 467, 549-50 (5th Cir. 2011). In United States v. Greuling, No. 95-50705,
1996 WL 460109 (5th Cir. Aug. 1, 1996), we found sufficient evidence to support
a factory owner’s conviction under 33 U.S.C. § 1319(c)(2)(A) for knowingly
discharging pollutants into a city sewer system. There, the government had
presented evidence of Greuling’s substantial experience in the industry, his
knowledge of inadequate factory conditions, the repeated citations and reports
of excess discharges at the factory, and his failure to allocate money to repair the
shall be punished by a fine of not less than $5,000 nor more than $50,000 per
day of violation, or by imprisonment for not more than 3 years, or by both. . . .
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factory. Id. at *2-3. Similar evidence exists here. Pruett worked in the industry
since 1986 and was familiar with his permit obligations. The government
presented evidence demonstrating that the effluent violations at Love Estates
were constant up to and including the period charged in the indictment (a period
of approximately four years).3 At some points, the discharges at Love Estates
were double or triple the levels allowed by the permit. The government also
introduced testimony from an inspector that Pruett had installed an unorthodox
makeshift measure (an old rail car) at the Love Estates facility, even though
Pruett knew that the rail car was not authorized for water treatment purposes.
In light of this evidence, which we must view in the light most favorable
to the prosecution, we find that a rational trier of fact could have found beyond
a reasonable doubt that Appellants knowingly violated the permit limitations at
Love Estates. Therefore, there was sufficient evidence to support the Appellants’
convictions on Count 13.
ii. Records Violations
Pruett and LLWC also challenge the sufficiency of the evidence with
respect to Counts 2, 5, 8, 11, 12, and 15, which alleged violations of record
keeping requirements. We find sufficient evidence to support the convictions.
Under 33 U.S.C. § 1319(c)(2)(A), it is a felony to knowingly violate “any
permit condition or limitation implementing” the CWA. Among other things,
Pruett’s NPDES permits required him to ensure that
[inspectors] [h]ave access to and copy, at reasonable times, any
records that the department or its authorized representative
determines are necessary for the enforcement of this permit. For
records maintained in either a central or private office that is open
only during normal office hours and is closed at the time of
3
In contrast, mere temporary noncompliance would be considered an “upset,” and not
evidence of a knowing violation. See 40 C.F.R. § 122.41(n)(1). A demonstration of an “upset”
“constitutes an affirmative defense to an action brought for noncompliance” if certain
conditions are met. Id. § 122.41(n)(2).
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inspection, the records shall be made available as soon as the office
is open, but in no case later than the close of the next business day.
During EPA and LDEQ inspections at several of Appellants’ facilities, inspectors
demanded that Pruett produce certain operating records. Pruett claimed that he
could not produce the records because he had sent them to his civil attorney in
Baton Rouge in response to a subpoena. The jury convicted Pruett and LLWC on
six counts of records violations, based upon inspections at his facilities in
November 2007, December 2007, and August 2008.
On appeal, Pruett and LLWC argue that the inspectors had “access” to the
records, as required by the permits, even though the records were in Baton
Rouge and not at the inspected facilities. In the alternative, they maintain that
any violation of the record keeping requirement was unintentional.
We conclude that there is sufficient evidence to support the record keeping
convictions. Pruett did not provide “access” to the records merely by telling
investigators that those records were located at his attorney’s office in Baton
Rouge. Although the permits contemplate that records might be maintained at
an office that is closed at the time of inspection, the permits nevertheless require
that the records “shall be made available as soon as the office is open, but in no
case later than the close of the next business day.” Consistent with this
requirement, inspectors allowed Pruett twenty-four hours to produce the records,
but Pruett never did so. Pruett therefore did not provide “access” to the records
as required by his permits.4
4
Pruett and LLWC also argue that the rule of lenity requires reversal of the records
convictions, as the “access” requirement is ambiguous and should be interpreted in their favor.
We decline to apply the rule of lenity. Under this rule of interpretation, “when [a] choice has
to be made between two readings of what conduct Congress has made a crime, it is
appropriate, before [a court] choose[s] the harsher alternative, to require that Congress should
have spoken in language that is clear and definite.” Jones v. United States, 529 U.S. 848, 858
(2000) (citation and internal quotation marks omitted). “To invoke the rule, we must conclude
that there is a grievous ambiguity or uncertainty in the statute.” Muscarello v. United States,
524 U.S. 125, 138-39 (1998) (emphasis added) (citations and internal quotation marks
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We also find sufficient evidence of intent. In light of Pruett’s experience,
he knew or should have known that he was required to maintain records for
inspectors. The permits themselves also put Pruett on notice that he had a duty
to maintain records and produce them during inspections. The inspectors
likewise stressed to Pruett the importance of providing documentation during
their November 2007 inspections. Pruett nevertheless failed to provide the
records when inspectors returned in December 2007 and August 2008. In August
2008, Pruett did not even provide a civil subpoena as an excuse for this failure.
These repeated incidents constitute sufficient evidence for the jury to conclude
that Pruett knew of his obligations, but intentionally failed to turn his records
over to inspectors. Although Pruett attempted to provide an innocent
explanation for his failures, the jury was free to disbelieve him and conclude that
he intentionally failed to provide inspectors with access to his records.
In sum, we conclude that there was sufficient evidence to support Pruett’s
and LLWC’s convictions on Counts 2, 5, 8, 11, 12, and 15.
3. Sufficiency of the Evidence to Support Misdemeanor Conviction
Finally, Pruett challenges his conviction for negligent operation and
maintenance of the Pine Bayou treatment facility (Count 14). We find sufficient
evidence to support this conviction as well.
At trial, EPA inspector Patricia Willis testified about the normal operation
of a treatment facility and the handling of sludge. She testified that when she
visited Pine Bayou, there was no sludge in the “sludge drying bed,” where it is
usually located, and instead she found approximately four feet of sludge in the
“chlorine contact chamber,” which is used to treat wastewater with disinfectant
prior to discharge, and normally contains no sludge. This sludge was ultimately
discharged into the receiving stream near the Pine Bayou facility. Willis also
omitted). We find no “grievous ambiguity” in the “access” requirement sufficient to apply the
rule of lenity.
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testified that the discharge into the Pine Bayou creek originated from the
facility’s discharge pipe, and the creek received sludge from the facility itself.
Pruett acknowledged that in “normal operation, the [chlorine contact chamber]
would not be full of sludge,” but contested Willis’s estimate of the amount of
sludge in the chamber and her explanation for the sludge discharge in the creek.
Pruett’s expert, Charles Duthill, testified that sludge discharge at a facility like
Pine Bayou can be expected, and that the facility operated within permit
limitations.
The jury ultimately credited Willis’s testimony regarding the conditions
at Pine Bayou, and discounted Pruett’s and Duthill’s testimony. The evidence
demonstrated that Pruett was aware of the appropriate standard of care, but
allowed the facility to operate in a manner inconsistent with that standard, thus
resulting in the excess discharge. Although Pruett provided a different account
of the incident, the jury was “free to choose among all reasonable constructions
of the evidence.” United States v. Ibarra, 286 F.3d 795, 797 (5th Cir. 2002)
(citation and internal quotation marks omitted). Thus, the evidence was
sufficient to support Pruett’s conviction on Count 14.
B. Negligence Jury Instruction
1. Standard of Review
Where, as here, a jury instruction issue presents a question of statutory
interpretation, we review the issue de novo. See United States v. Ho, 311 F.3d
589, 605 (5th Cir. 2002).
2. Analysis
As noted above, 33 U.S.C. § 1319(c)(1)(A) imposes criminal penalties for
“negligent violations” of permit conditions. Appellants requested that the district
court give the jury a gross negligence definition based on § 2.02(2)(d) of the
Model Penal Code, and proposed the following instruction:
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A defendant acts negligently with respect to a violation of the CWA
when he should be aware that there is a substantial and
unjustifiable risk that the violation exists or will result from his
conduct. The risk must be of such a nature and degree that the
defendant’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that a
reasonable person would observe in the defendant’s situation.
Over Appellants’ objection, the court instead gave the following instruction:
Negligence is the failure to use reasonable care. Reasonable care is
that amount of care that a reasonably prudent person would use in
similar circumstances. Negligence may consist of doing something
which a reasonably prudent person would not do, or it may consist
of a failing to do something which a reasonably prudent person
would do. A reasonably prudent person is not the exceptionally
cautious or skillful individual, but a person of reasonable and
ordinary carefulness.
Appellants argue that the court’s ordinary negligence instruction was erroneous,
as § 1319(c)(1)(A) requires proof of gross negligence. Whether § 1319(c)(1)(A)
requires ordinary or gross negligence is a question of first impression in this
circuit.
We begin, as we must, with the statutory text. See Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“[T]he starting point
for interpreting a statute is the language of the statute itself.”). Section
1319(c)(1)(A) refers explicitly to “negligent” violations of the CWA. Negligence
is not an ambiguous term, and is understood to mean “[t]he failure to exercise
the standard of care that a reasonably prudent person would have exercised in
a similar situation.” BLACK ’S LAW DICTIONARY 1061 (8th ed. 2004). It is well
established that courts “applying criminal laws must generally follow the plain
and unambiguous meaning of the statutory language,” and “[o]nly the most
extraordinary showing of contrary intentions in the legislative history will
justify a departure from that language.” Salinas v. United States, 522 U.S. 52,
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57 (1997) (citation and internal quotation marks omitted); see GTE Sylvania,
Inc., 447 U.S. at 108. As we have found no such contrary intentions in the
statute’s legislative history, we are bound by § 1319(c)(1)(A)’s plain and
unambiguous language. We must therefore conclude that § 1319(c)(1)(A)
requires only proof of ordinary negligence. See Hartford Underwriters Ins. Co.
v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s
language is plain, the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to its terms.”)
(citations and internal quotation marks omitted).5
This conclusion is consistent with our interpretation of other criminal
statutes that require negligence. In United States v. O’Keefe, 426 F.3d 274 (5th
Cir. 2005), we addressed the proper interpretation of “negligence” in 18 U.S.C.
§ 1115, which provides: “[e]very captain . . . by whose misconduct, negligence, or
inattention to his duties on [a] vessel the life of any person is destroyed . . . shall
be . . . imprisoned not more than ten years . . . .” Id. at 277. The district court
rejected the defendant’s argument that gross negligence was required under the
statute, and this court affirmed. The O’Keefe court explained, “when the plain
meaning of the statute is clear on its face, courts are required to give effect to the
language of the statute according to its terms.” Id. at 279. The court then
evaluated § 1115, and found “nothing in the statute’s terms suggesting that the
words ‘misconduct, negligence or inattention,’ were ever meant to imply gross
negligence or heat of passion . . . .” Id. This rationale is equally applicable to
5
Where Congress has in fact intended to require gross negligence rather than
negligence, it has said so explicitly, as it did in 33 U.S.C. § 1321(b)(7)(D). This section of the
CWA provides for increased civil penalties “[i]n any case in which a violation of [33 U.S.C.
§ 1321(b)(3)] was the result of gross negligence or willful misconduct.” 33 U.S.C.
§ 1321(b)(7)(D). In contrast, § 1319(c)(1)(A) refers only to “[n]egligent violations.” Where
“Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23
(1983).
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§ 1319(c)(1)(A), and bolsters our conclusion that this subsection imposes an
ordinary negligence standard.
The Ninth and Tenth Circuits have likewise held that § 1319(c)(1)(A)
requires only ordinary negligence. In United States v. Hanousek, 176 F.3d 1116
(9th Cir. 1999), the Ninth Circuit rejected a similar argument to the one
Appellants advance here. The court relied upon the plain language of the statute
and reasoned that Congress could have imposed a heightened standard if it so
chose. Id. at 1120-21. The Tenth Circuit has reached a similar conclusion. See
United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005) (“Under the statute’s
plain language, an individual violates the CWA by failing to exercise the degree
of care that someone of ordinary prudence would have exercised in the same
circumstance . . . .”).6
Appellants rely largely upon our holding in United States v. Ahmad, 101
F.3d 386 (5th Cir. 1996), that the CWA is not a “public welfare” statute, and thus
requires criminal mens rea. Id. at 391. Ahmad, however, is not on point. There,
the court had to decide whether the “knowingly” requirement of § 1319(c)(2)(A)
applied to each element of the offense, or instead only to the “discharge” element.
Noting that the CWA is not a public welfare statute, the court determined that
the mens rea requirement applied to each non-jurisdictional element of the
6
While Appellants acknowledge Hanousek and Ortiz, they rely upon an unpublished
district court decision, United States v. Atlantic States Cast Iron Pipe Co., No. 03-852 (MLC),
2007 WL 2282514 (D.N.J. Aug. 2, 2007), to support their gross negligence argument. Such
reliance is misplaced. The Atlantic States court applied an ordinary negligence standard,
consistent with Hanousek, but in dicta criticized Hanousek’s reliance on the CWA’s reference
to “gross negligence” in certain civil provisions as incompatible with the Supreme Court’s
decision in Safeco Insurance Co. v. Burr, 551 U.S. 47 (2007). Id. at *14 n.17. In Burr, the
Supreme Court cautioned that “[t]he vocabulary of the criminal side of [a statute] is . . . beside
the point in construing the civil side.” 551 U.S. at 60. This concern does not, however,
undermine Hanousek. While Hanousek looked to a civil provision of the CWA when
considering whether Congress meant “gross negligence” instead of “negligence” in
§ 1391(c)(1)(A), it did so only to note the plain language differences in terms used, not to define
the term. Moreover, Hanousek did not rely solely upon this distinction to support its
interpretation of § 1391(c)(1)(A).
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offense. Id. The “public welfare” determination was relevant in that case because
a provision of the statute was silent on the mens rea requirement. See Staples
v. United States, 511 U.S. 600, 604-06 (1994). Here, in contrast, no investigation
into the public welfare issue is necessary because the statute explicitly requires
negligence.7
In sum, we find that § 1319(c)(1)(A) requires only proof of ordinary
negligence, and thus hold that the district court’s jury instruction was proper.
C. Evidentiary Rulings
1. Standard of Review
A district court’s evidentiary rulings are typically reviewed for abuse of
discretion. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). This
standard of review is “heightened in a criminal case, however, which demands
that evidence . . . be strictly relevant to the particular offense charged.” United
States v. Hernandez–Guevara, 162 F.3d 863, 869 (5th Cir. 1998) (citation and
internal quotation marks omitted). Error is not grounds for reversal unless it
“substantially prejudiced” the defendant’s rights. United States v. Lopez, 979
F.2d 1024, 1034 (5th Cir. 1992); see FED R. CRIM. P. 52(a); FED. R. EVID. 103(a).
2. Rule 404(b) Evidence
Appellants object to the large amount of uncharged conduct that the
district court admitted into evidence pursuant to Federal Rule of Evidence
404(b).8 Although they concede that the evidence was admissible to prove intent,
7
Appellants also incorrectly contend that, absent gross negligence, “the standard for
a civil violation of the CWA and a criminal violation based on negligence would be exactly the
same.” A civil violation of § 1319 does not in fact require proof of negligence. See 33 U.S.C.
§ 1319(b); see also Kelly v. EPA, 203 F.3d 519, 522 (7th Cir. 2000).
8
Two types of extrinsic offense evidence are at issue here: (1) evidence of permit
violations at wastewater treatment plants named in the indictment but occurring after the
time period charged in the indictment, and (2) evidence of permit violations at other
(unindicted) plants operated by Appellants. At trial, two witnesses testified exclusively as to
uncharged conduct and five others testified as to both charged and uncharged conduct.
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they contend that the evidence should have been excluded because it had little
probative value in light of the significant amount of charged conduct already at
issue. They further argue that even if the evidence had some probative value,
that value was substantially outweighed by the danger of undue prejudice.
Under Federal Rule of Evidence 404(b), “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character,” but
“[t]his evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” FED. R. EVID. 404(b)(1), (2). This court analyzes Rule 404(b)
admissions under the two-prong test first outlined in United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978). “First, the evidence of other crimes, wrongs,
or acts must be relevant to an issue other than the defendant’s character. . . .
Second, the evidence must possess probative value that is not substantially
outweighed by its undue prejudice.” United States v. Cockrell, 587 F.3d 674, 678
(5th Cir. 2009) (citation and internal quotation marks omitted). “In weighing the
probative value and unfair prejudice, this court must make a ‘commonsense
assessment of all the circumstances surrounding the extrinsic offense.’ Probative
value ‘must be determined with regard to the extent to which the defendant’s
unlawful intent is established by other evidence, stipulation, or inference.’” Id.
at 678-79 (quoting Beechum, 582 F.2d at 914). Other factors to be considered
include “‘the overall similarity of the extrinsic and charged offenses, and the
amount of time that separates the extrinsic and charged offenses’ as well as any
limiting instructions.” Id. at 679 (quoting United States v. Richards, 204 F.3d
177, 199-201 (5th Cir. 2000)).
The first part of the Beechum test is not disputed; Appellants concede that
the evidence was relevant to intent or absence of mistake. We find that the
second part of Beechum is also satisfied, as the probative value of the evidence
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is not substantially outweighed by its undue prejudice. Contrary to Appellants’
contention, the probative value of the uncharged acts evidence was not
“minimal.” Intent was a central matter in dispute at trial, as Appellants had
asserted that the various violations were isolated and accidental incidents. The
evidence of other violations refuted this defense.
In arguing that the uncharged conduct overwhelmed the charged conduct,
Appellants attempt to analogize their case to United States v. Fortenberry, 860
F.2d 628 (5th Cir. 1988). We see no basis for such an analogy. In that case, the
court found that evidence of uncharged conduct so dominated Fortenberry’s trial
that the prejudice it created “substantially outweighed” its probative value.
Fortenberry was charged with placing a small explosive device in an unoccupied
car, which caused minimal damage. At trial, the government introduced
extrinsic evidence involving three attacks with crossbow arrows, three incidents
of arson, and an act of vandalism with a rifle, but failed to prove that
Fortenberry was the perpetrator of these offenses. Id. at 632-33. These external
offenses were “highly prejudicial,” were “violent crimes,” were of “a magnitude
far greater than the charged offenses,” and “occupied more of the jury’s time
than the evidence of the charged offenses.” Id. at 632. Therefore, the court
concluded that, “this tail wagged the dog,” and ordered a new trial. Id. at 632,
636. This case is different. There is no dispute that Appellants were the
perpetrators of the offenses, and the uncharged offenses were the same type of
environmental crimes as the charged offenses. Although the evidence of
uncharged conduct was substantial, it did not overwhelm the charged conduct.
Finally, we see no indication that the extrinsic evidence played more to the
jury’s emotions than it did to the issue of intent. We have found this to be a
legitimate concern where “[t]he extrinsic offense . . . is . . . of a heinous nature;
[such that it] would . . . incite the jury to irrational decision by its force on
human emotion.” Beechum, 582 F.2d at 917. The testimony at issue here, mainly
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relating to the discharge of raw sewage and Pruett’s makeshift efforts to repair
ongoing problems, is not particularly emotionally charged or incendiary. To the
extent the evidence may have had an improper effect, the district court properly
“minimized the danger of unfair prejudice by instructing the jury regarding the
limited purposes for which it could consider the evidence.” United States v.
Charles, 366 F. App’x 532, 539 (5th Cir. 2010); see also United States v. Booker,
334 F.3d 406, 412 (5th Cir. 2003).
In sum, we conclude that the district court did not err in admitting the
Rule 404(b) evidence at issue here.
3. Negative Character Evidence
At trial, the government called Richard Crockett as a negative character
witness to provide evidence regarding Pruett’s character for truthfulness and
honesty, pursuant to Federal Rule of Evidence 608(a). Crockett had worked for
Pruett for about three months. Pruett argued that the testimony was
inadmissible under Federal Rule of Evidence 403 because the probative value of
Crockett’s opinion was outweighed by the risk of undue prejudice. Although the
district court was initially concerned that Crockett was a disgruntled former
employee, the court ultimately found no reason to exclude the testimony. On the
stand, Crockett was asked his opinion of Pruett’s truthfulness, and answered
only, “there is none.” On appeal, Pruett maintains that the evidence should have
been excluded under Rule 403 in light of Crockett’s past employment
relationship with Pruett. Pruett contends that this testimony was unfairly
prejudicial because his credibility was critical in the case, and the testimony cast
him as dishonest.
Under Rule 403, a court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice.” FED. R.
EVID. 403. The standard of review for an alleged Rule 403 violation is “‘especially
high’ and requires ‘a clear abuse of discretion’ for reversal.” United States v.
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Setser, 568 F.3d 482, 495 (5th Cir. 2009) (citation omitted); see also El–Mezain,
664 F.3d at 511 (“Given the significant deference this court shows to the district
court in Rule 403 matters, the district court’s rulings will not be disturbed.”).
We find that the district court did not abuse its discretion in admitting
Crockett’s testimony. Crockett worked with Pruett for three months and could
therefore offer a valid opinion as to Pruett’s truthfulness. If Pruett was
concerned about Crockett’s credibility and motivations, he could have inquired
into these issues on cross-examination. Pruett never did so.
4. Impeachment of Witness
At trial, the government called Columbus L. Smith to testify regarding
Appellants’ repeated failures to rectify overflows of raw sewage from a ditch at
the Donovan Woods and Daywood Subdivision. In response, Appellants sought
to impeach Smith’s testimony with evidence that he was convicted in 2004 of a
larceny in violation of 18 U.S.C. § 641. The district court ruled that Appellants
could not question Smith about this conviction because larceny is not a “crime
of dishonesty” under Federal Rule of Evidence 609(a)(2). Appellants now contend
that they should have been permitted to cross examine Smith on this subject. We
conclude that the district court properly precluded such cross examination.
Rule 609(a)(2), which applies when a party seeks to “attack[ ] a witness’s
character for truthfulness by evidence of a criminal conviction,” provides that
“for any crime regardless of the punishment, the evidence must be admitted if
the court can readily determine that establishing the elements of the crime
required proving—or the witness’s admitting—a dishonest act or false
statement.” FED. R. EVID. 609(a)(2). In Howard v. Gonzales, 658 F.2d 352 (5th
Cir. 1981), we held that the crime of theft was not a crime of dishonesty and was
not admissible under Rule 609(a)(2) to impeach a witness’s credibility. Id. at 358-
59. Appellants recognize Howard, but contend that we are no longer bound by
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it in light of subsequent amendments to Rule 609, which can now be read to
include larceny as a crime of dishonesty.
Since Howard, Rule 609 was substantively amended in 1990 and 2006.9
Relevant here, the advisory committee notes accompanying the 2006
amendments explain that “dishonesty and false statement,” means “crimes such
as perjury, subornation of perjury, false statement, criminal fraud,
embezzlement, or false pretense, or any other offense in the nature of crimen
falsi, the commission of which involves some element of deceit, untruthfulness,
or falsification bearing on the [witness’s] propensity to testify truthfully.” FED.
R. EVID. 609, advisory committee’s note (internal quotation marks omitted). The
notes direct a court to consider “the statutory elements of the crime” to
determine whether it is “one of dishonesty or false statement.” Id. Where the
deceitful nature of the crime is not apparent from the statute and the face of the
judgment, “a proponent may offer information such as an indictment, a
statement of admitted facts, or jury instructions to show that the factfinder had
to find, or the defendant had to admit, an act of dishonesty or false statement in
order for the witness to have been convicted.” Id.
The statute under which Smith was convicted, 18 U.S.C. § 641, provides:
Whoever embezzles, steals, purloins, or knowingly converts to his
use or the use of another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing of value of the
United States or of any department or agency thereof, or any
property made or being made under contract for the United States
or any department or agency thereof . . . . [shall be punished.]
The Fifth Circuit criminal pattern jury instructions state the elements of theft
under this section as follows: (1) the property at issue “belonged to the United
States government and had a value in excess of $1,000 at the time alleged;” (2)
9
The 1990 amendments made only two changes to Rule 609, neither of which we find
to be relevant here. See FED. R. EVID. 609, advisory committee’s note.
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the defendant stole the property for his own use or use of another; and (3) the
“defendant did so knowing the property was not his, and with intent to deprive
the owner of the use . . . of the [property].” 5th Cir. Criminal Pattern Jury
Instructions § 2.33. “Steal” or “convert” is defined as “the wrongful taking of
money or property belonging to another with intent to deprive the owner of its
use or benefit either temporarily or permanently.” Id. In light of the statutory
text and jury instructions, the crime for which Smith was convicted does not
have “a dishonest act or false statement” as an element. Nor do Appellants argue
that the manner in which Smith carried out his offense involved dishonesty or
a false statement. We therefore conclude that the amendments to Rule 609 do
not warrant a departure from this court’s precedent that the crime of larceny is
not admissible under Rule 609(a)(2). See, e.g., United States v. Entrekin, 624
F.2d 597, 598-99 (5th Cir. 1980) (shoplifting); Howard, 658 F.2d at 358-59.
The district court thus properly ruled that Smith’s prior conviction was not
admissible under Rule 609(a)(2).
D. Replacement of Juror
On the fifth day of the trial, Juror No. 8 informed the court that his car
had broken down and he had no alternative means of transportation to make the
fifty mile trip from his residence to the courthouse. The juror’s transportation
problems were confirmed in a conference call with the court and counsel.
Although the court initially suggested that a U.S. marshal could drive the juror
to and from the courthouse, defense counsel objected because such a transit
method could appear “heavy-handed.” The court then replaced the juror with an
alternate. Defense counsel objected to this as well, arguing that the trial was
well underway, and alternative transportation could have been arranged. On
appeal, Appellants contend that the juror was not “unable to perform” his duties
as provided by Federal Rule of Criminal Procedure 24(c), and the district court
therefore abused its discretion in dismissing the juror.
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Pursuant to Rule 24(c)(1), a district court may “replace any jurors who are
unable to perform or who are disqualified from performing their duties.” FED. R.
CRIM. P. 24(c)(1). “A district court’s decision to remove a juror is discretionary
whenever the judge becomes convinced that the juror’s abilities to perform his
duties become[ ] impaired.” United States v. Virgen–Moreno, 265 F.3d 276, 288
(5th Cir. 2001) (citation and internal quotation marks omitted). Further,
“[u]nless the court’s removal of the juror has prejudiced the defendant, [this
court] will not disturb the [district] court’s decision.” Id. Such prejudice is found
“if the juror was discharged without factual support or for a legally irrelevant
reason.” Id. (citation and internal quotation marks omitted).
In this case, the juror’s transportation problem was confirmed in a
conference call, and defense counsel objected to the court’s proposed resolution.
Without a viable means of transportation to the courthouse, the juror was
“unable to perform” his duties. FED. R. CRIM. P. 24(c). The district court was
therefore within its discretion to excuse the juror and replace him with an
alternate.
E. Sentencing Enhancement
At sentencing, the district court included in Pruett’s guideline range a two-
level enhancement pursuant to U.S.S.G. § 3B1.3, finding that Pruett abused a
position of private trust in a manner that specifically facilitated the commission
or concealment of the offense. On appeal, Pruett argues that the district court
erred in applying this enhancement. He concedes that he held a position of
private trust as president and chief executive officer of LLWC and LWC
Management, but argues that he did not abuse this position in a manner that
significantly facilitated the commission or concealment of the offense.10
10
The district court based its determination upon Pruett’s role as the “sole officer and
shareholder of LLWC and LWC [Management],” as well as his status as a permit holder.
“‘Public or private trust’ refers to a position of public or private trust characterized by
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A “district court’s application of section 3B1.3 is a sophisticated factual
determination that [an appellate court] review[s] for clear error.” United States
v. Miller, 607 F.3d 144, 147-48 (5th Cir. 2010). Under U.S.S.G. § 3B1.3, a two-
level increase in offense level is permitted if “[1] the defendant abused a position
of public or private trust, or used a special skill, [2] in a manner that
significantly facilitated the commission or concealment of the offense.” U.S.S.G.
§ 3B1.3; see United States v. Ollison, 555 F.3d 152, 165 (5th Cir. 2009). We define
significant facilitation by considering “whether the defendant occupied a
superior position, relative to all people in a position to commit the offense, as a
result of her job.” United States v. Kay, 513 F.3d 432, 459 (5th Cir. 2007)
(citation and internal quotation marks omitted). The application notes
accompanying § 3B1.3 explain:
For this adjustment to apply, the position of public or private trust
must have contributed in some significant way to facilitating the
commission or concealment of the offense (e.g., by making the
detection of the offense or the defendant’s responsibility for the
offense more difficult). This adjustment, for example, applies in the
case of an embezzlement of a client’s funds by an attorney serving
as a guardian, a bank executive’s fraudulent loan scheme, or the
criminal sexual abuse of a patient by a physician under the guise of
an examination.
U.S.S.G. § 3B1.3, cmt. 1.
We have found the second element of § 3B1.3 to be satisfied where the
defendant’s position made the criminal conduct easier to perform or where it
facilitated his crime. See, e.g., Miller, 607 F.3d at 150 (“Miller offers no argument
that her position [as the owner of a licensed durable medical equipment
professional or managerial discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference).” U.S.S.G. § 3B1.3, cmt. 1. We have found that a
president and chief executive officer of a company occupies a position of trust for purposes of
§ 3B1.3. See United States v. Dahlstrom, 180 F.3d 677, 685 (5th Cir. 1999). Because Pruett
does not challenge the district court’s findings on this issue, we need not consider whether
Pruett’s status as a NPDES permit holder also satisfies the position of trust requirement.
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provider] did not facilitate the commission of the offense; nor could she, since it
was her position as the owner . . . that enabled her to defraud the government
insurance programs with such ease.”); United States v. Reeves, 255 F.3d 208,
212-13 (5th Cir. 2001) (“Only after gaining his clients’ trust by posing as an
estate planner did [Reeves] advise them to invest in his codefendant’s company.
Had he not occupied the position of trust, the clients presumably would not have
followed his investment advice. Moreover, there is substantial evidence that
Reeves’s position as estate planner gave him unique access to clients’ financial
information, facilitating his fraudulent schemes.”).
Other circuits have affirmed the application of the § 3B1.3 enhancement
in § 1319 cases. In United States v. Snook, 366 F.3d 439 (7th Cir. 2004), the
defendant was an environmental manager of Clark Refining & Marketing, Inc.,
a petroleum refinery, and in this position was “given discretion to devise Clark’s
wastewater treatment and testing systems, as well as to decide when to conduct
such testing.” Id. at 445-46. Although the local water district “periodically
conduct[ed] its own testing, it was for the most part dependent on the data that
Clark reported,” and for “over three years Clark’s wastewater had numerous
violations that went undetected because Snook, in his unique position as
Environmental Manager, did not report them.” Id. at 446. The Seventh Circuit
concluded, “[g]iven the responsibility and discretion given to Snook in his
position as Environmental Manager in complying with the District’s regulations,
and his abuse of that position, the district court did not err in applying the
sentencing increase.” Id.; see also United States v. Kuhn, 345 F.3d 431, 437 (6th
Cir. 2003) (“[I]t is clear that the [§ 3B1.3] enhancement was properly applied.
Kuhn was a government employee, charged with the safe and efficient operation
of a wastewater treatment operation. He was convicted of knowingly causing
sewage sludge to be discharged into a navigable waterway and falsifying reports.
. . . Moreover, his high-level position with respect to his public function of
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wastewater treatment, contributed in some significant way to facilitating the
commission of his offense.”) (citation and internal quotation marks omitted).
In this case, the district court did not clearly err in concluding that Pruett
used his position as the president and chief executive officer of LLWC and LWC
Management to facilitate the commission of the offenses. The district court
correctly reasoned that Pruett was the sole “boss” of LLWC and LWC
Management, and controlled “all aspects of the businesses.” Indeed, in his
position, Pruett had discretion to decide what efforts should be undertaken to
comply with his permit obligations. Pruett was also responsible for overseeing
his facilities’ treatment and testing systems, as well as for maintaining accurate
records. Although the LDEQ and EPA conducted their own inspections, they
depended in large part upon Pruett to monitor his own operations. Pruett’s
position thus facilitated his offenses. We therefore conclude that the district
court did not clearly err in applying the § 3B1.3 enhancement.
F. Fines
The district court imposed the following fines on each Appellant, jointly
and severally: (1) $310,000 for Pruett, (2) $300,000 for LLWC, and (3) $240,000
for LWC Management. Appellants object to these fines on various grounds.
We “review sentencing decisions for unreasonableness.” United States v.
Booker, 543 U.S. 220, 264 (2005). “Though flexible, the reasonableness standard
is not unbounded. Both a district court’s post–Booker sentencing discretion and
the reasonableness inquiry on appeal must be guided by the sentencing
considerations set forth in 18 U.S.C. § 3553(a),” United States v. Smith, 440 F.3d
704, 706 (5th Cir. 2006), as well as the factors under 18 U.S.C. § 3572(a).
Under § 1319(c)(2), a court may impose a fine of “not less than $5,000 nor
more than $50,000 per day of violation.” 33 U.S.C. § 1319(c)(2). The district court
imposed a fine of $10,000 per knowing records violation, for a total of $60,000.
Pruett and LLWC argue that they should not have been fined six different times
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for the same records violation, and that the district court should have imposed
the statutory minimum per violation ($5,000) rather than $10,000. We conclude,
however, that the district court’s fine was reasonable. Section 1319(c)(2)
authorizes a fine to be imposed “per day of violation,” 33 U.S.C. § 1319(c)(2), and
the district court therefore did not err in imposing six separate fines
corresponding to knowing violations at the six separate facilities. Further, the
record demonstrates that the court fully considered the statutory factors
provided by 18 U.S.C. §§ 3553(a)(2) and 3572, and the fines are not unreasonable
in light of those factors. The choice between a $5,000 and $10,000 fine was well
within the district court’s discretion.
Appellants also argue that the district court should have imposed the
statutory minimum with respect to four days of knowing effluent limitation
violations at the Love Estates plant, rather than a $15,000 per day fine, because
the violations for those days would not have constituted violations under a new
permit issued after the incidents charged in the indictment. We disagree. The
district court considered Appellants’ arguments regarding the new permit, and
in response imposed a $15,000 fine for those dates instead of the $20,000 fine
imposed for the other discharge dates. It was reasonable for the district court to
decline Appellants’ request for an even lower fine. Appellants do not contend, nor
do we find, that the fines were unreasonable under the statutory factors. See 18
U.S.C. §§ 3553(a)(2), 3572.
In sum, we hold that the fines imposed upon Appellants were reasonable.
III. CONCLUSION
For the reasons stated above, Appellants’ convictions and sentences are
AFFIRMED.
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No. 11-30572
EDWARD C. PRADO, Circuit Judge, concurring:
I write separately to discuss the court’s review of the district court’s
application of the two-level abuse-of-trust enhancement to Pruett’s sentence
under U.S.S.G. § 3B1.3.
Standard of review is frequently viewed as a cursory statement that
precedes a court’s analysis of the relevant issues on appeal. But the maxim that
“standard of review decides cases” is crucial to understanding the actual work
of an appellate court.1 As Childress and Davis have written in their seminal
treatise on the matter, “Although standards of review often are baldly stated
without explicit reference to the relevant degree of deference, deference is always
the underlying notion.” Stephen Alan Childress & Martha S. Davis, 2 Federal
Standards of Review § 7.02 (4th ed. 2010). Viewed from the opposite side of the
coin, “a review standard describes the positive authority the appellate court
wields in its review function.” Id. § 1.01. Given its crucial importance in the
scheme of how an appellate court works, this court’s inattention to the proper
standard for review of sentencing enhancements is troubling. Such inattention
is rendered even more troubling upon recognizing that a central goal of our
federal sentencing regime is to provide for uniformity. See Koon v. United
States, 518 U.S. 81, 113 (1996); United States v. Goncalves, 613 F.3d 601, 608
(5th Cir. 2010).
As it pertains to the enhancement challenged by Pruett in this case,
United States v. Dial acknowledged the intra-circuit split as to the appropriate
standard of review for § 3B1.3 enhancements. 542 F.3d 1059, 1060 (5th Cir.
2008).
We review for clear error the district court’s application of § 3B1.3
to the facts, including its factual determination that Dial held a
1
Oddly enough in this case, the relevant standard of review is of little consequence
because under any standard, Pruett’s § 3B1.3 enhancement would be upheld.
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position of trust. See United States v. Smith, 203 F.3d 884, 893 (5th
Cir. 2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir.
1990). This court recently applied de novo review to whether the
defendant held a position of trust. See United States v. Kay, 513
F.3d 432, 460 (5th Cir. 2007)[, cert. denied, 129 S. Ct. 42 (2008)].
The panel in Kay, 513 F.3d at 460 & n. 125, relied on United States
v. Sudeen, 434 F.3d 384, 391 n. 19 (5th Cir. 2005), which based its
statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir.
2001), after observing that the standard of review would not affect
its decision.
De novo review appears foreclosed, however, by this circuit’s earlier
ruling that a “district court’s application of § 3B1.3 is a sophisticated
factual determination that will be affirmed unless clearly
erroneous.” [Ehrlich, 902 F.2d at 330.] Despite whatever
persuasiveness Kay and Sudeen may have, our rule of orderliness
directs that “‘one panel of this court cannot overrule the decision of
another panel.’” [Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997).]
Id. (footnotes omitted). Therefore, the standard of review used by the court in
this case—clear error—is the correct one,2 see supra Per Curiam Op. at 21, based
on earliest case controls, see Matter of Howard, 972 F.2d 639, 641 (5th Cir. 1992).
It is not just in the context of § 3B1.3 enhancements that we have been
inconsistent in our standard of review for Guidelines enhancements. I have
previously written about the intra-circuit split as to “whether the determination
that [U.S.S.G.] § 3C1.1’s [obstruction of justice] requirements are met is . . . a
question of fact” or a question of law and what the corresponding standard of
review is—a question that has also produced an inter-circuit split. See United
States v. Claiborne, __ F.3d __, No. 10-51189, 2012 WL 1021274, at *5 n.1 (5th
2
It is, however, worth noting that Dial has not cleared up all confusion in this circuit
about the proper standard of review for § 3B1.3 enhancements, as at least one panel post-Dial
has applied de novo review. See, e.g., United States v. Carr, 303 F. App’x 166, 170 (5th Cir.
2008).
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Cir. Mar. 28, 2011) (Prado, J., concurring). Broadly framed, the issue is whether
adjustments under Section 3 of the Guidelines are questions of law reviewed de
novo or questions of fact reviewed for clear error.
The First Circuit in United States v. Sicher, 576 F.3d 64 (1st Cir. 2009),
nicely summarizes the uncertainty (and split amongst the circuits) in this area
of sentencing law, with specific reference to § 3B1.3 enhancements.
While we have used the language of “de novo” review to apply to a
trial judge’s legal conclusion from the facts, we think this is more
like a mixed question of law and fact, with a sliding scale of review
depending on whether the trial judge’s conclusion is more
law-oriented or more fact-driven. Recently the D.C. Circuit,
recognizing that it had used different standards of review, stated
that “insofar as the district court applied the ‘abuse of trust’
Guideline to the facts of [the defendant’s] case, due deference is the
appropriate standard of review.” United States v. Tann, 532 F.3d
868, 875 n.* (D.C. Cir. 2008).
Several circuits state that they review the application of the
Guidelines de novo and the district court’s factual findings for clear
error. United States v. Spear, 491 F.3d 1150, 1153 (10th Cir. 2007);
United States v. Andrews, 484 F.3d 476, 478 (7th Cir. 2007); United
States v. Brave Thunder, 445 F.3d 1062[, 1065] (8th Cir. 2006);
United States v. Ebersole, 411 F.3d 517, 535–36 (4th Cir.2005);
United States v. Britt, 388 F.3d 1369, 1371 (11th Cir. 2004) (per
curiam), vacated on other grounds, 546 U.S. 930 (2005); see also
United States v. Brogan, 238 F.3d 780, 783 (6th Cir. 2001)
(reviewing de novo decision of a district court to apply § 3B1.3).
Other circuits have framed the standard of review somewhat
differently. See United States v. Dullum, 560 F.3d 133, 140 (3d
Cir.2009) (district court’s determination that defendant occupied a
position of trust reviewed de novo; the court’s determination that
defendant abused that position in a manner that significantly
facilitated the offense is a question of fact reviewed for clear error);
United States v. Hirsch, 239 F.3d 221, 227 (2d Cir. 2001) (same); see
also United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (“The
application of . . . § 3B1.3 is a sophisticated factual determination
reviewed under the clearly erroneous standard.” (quoting United
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States v. Fisher, 7 F.3d 69, 70–71 (5th Cir. 1993))); cf. United States
v. Thornton, 511 F.3d 1221, 1227 n. 4 (9th Cir. 2008) (“Before
Booker, we reviewed the application of the abuse of trust
enhancement—a mixed question of law and fact—de novo . . .
Although the same standard of review may well apply after Booker,
we need not decide the issue.” (citation omitted)).
Id. at 70 n.6.
Keeping the principles of deference that undergird standard of review in
mind, the district court’s determination that a defendant abused a position of
trust or obstructed justice seems to be similar to a jury’s determination of a
defendant’s guilt. The jury is given a set of legal principles to which they must
apply the facts as they find them. This is the same sort of inquiry that the
district court conducts: finding facts and then applying the law (in sentencing,
the Guidelines) to those facts. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008) (“[A] district court’s interpretation or application of the
Sentencing Guidelines is reviewed de novo, and its factual findings are reviewed
for clear error.” (internal quotation marks and ellipsis omitted)).
The hybrid nature of this process is reflected in the standard of review for
convictions by a jury. In reviewing the sufficiency of the evidence supporting a
jury’s verdict, we apply a deferential variant of de novo review. Our review is
de novo, but we view all of the evidence, resolve all credibility determinations,
and make all reasonable inferences in favor of the jury verdict. United States v.
Winkler, 639 F.3d 692, 696 (5th Cir. 2011). The deference is accorded because
of the jury’s fundamental role in our criminal justice system. See Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000).
Similar to the jury, the sentencing judge holds a special position in our
criminal justice system. See Booker v. United States, 543 U.S. 220, 249–55, 265
(2005) (discussing the need for individualized assessment by judges before
determining that the Guidelines could not operate as mandatory); see also Koon,
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518 U.S. at 113 (“It has been uniform and constant in the federal judicial
tradition for the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the punishment to
ensue.”). As a former district judge (for nineteen years), I know well that such
an individualized assessment is crucial to ensure that justice is a central
component of federal sentencing. However, insulating such determinations with
a standard such as clear error undercuts the goal of uniformity because often the
determination that clear error applies will functionally foreclose review by this
court. Therefore, consistent with Sicher’s description of these questions as
“mixed question[s] of law and fact,” 576 F.3d at 70 n.6, I think we ought to
revisit the standard of review we apply to enhancements, like that under
§ 3B1.3.
In doing so, the D.C. Circuit has crafted the best articulation of what the
standard of review should be: due deference. In standard of review,
Congress crafted a trichotomy: purely legal questions are reviewed
de novo; factual findings are to be affirmed unless “clearly
erroneous”; and we are to give “due deference” to the district court’s
application of the guidelines to facts. “Due deference” presumably
is meant to fall somewhere between de novo and “clearly erroneous,”
a standard of review that reflects an apparent congressional desire
to compromise between the need for uniformity in sentencing and
the recognition that the district courts should be afforded some
flexibility in applying the guidelines to the facts before them.
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994); see also Gall v. United
States, 552 U.S. 38, 51 (2007) (describing the standard of review for sentences
outside the advisory Guidelines ranges as being for “due deference”).
We, as a court, need to bring consistency and logic to our review of
sentencing enhancements. The scattershot approach that we have taken in this
29
Case: 11-30572 Document: 00511855989 Page: 30 Date Filed: 05/15/2012
No. 11-30572
realm threatens uniformity and does not adequately grapple with the difficult
issues of deference present in this area of the law.
30