[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 24, 2001
________________________
THOMAS K. KAHN
CLERK
No. 99-11638
________________________
D.C. Docket No. 98-00023-CR-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTIAN A. HANSEN,
ALFRED R. TAYLOR, et al.,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Southern District of Georgia
_________________________
(August 24, 2001)
Before BIRCH and DUBINA, Circuit Judges, and HANCOCK*, District Judge.
PER CURIAM:
*
Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
Alfred R. Taylor, Christian A. Hansen, and Randall W. Hansen appeal their
convictions for conspiracy to commit environmental crimes, violating the Clean
Water Act, violating the Resource Conservation and Recovery Act, and violating
the Comprehensive Environmental Response, Compensation, and Liability Act.
On appeal, they each assert several alleged trial and sentencing errors. Finding no
merit to their claims, we AFFIRM.
I. BACKGROUND
Christian Hansen (“Hansen”) founded the Hanlin Group (“Hanlin”) in
1972, and served as its President, Chief Executive Officer, and Chairman of the
Board until early April 1993. R19-160. Hanlin operated an industrial plant in
Brunswick, Georgia, as LCP Chemicals-Georgia (“LCP”), R21-41, and Hansen
served as the plant manager for approximately two months in 1993. R19-166-67.
Randall Hansen (“Randall”), Hansen’s son, was hired as an executive vice
president in 1992. R21-193. He became Chief Executive Officer in April 1993
and served in that capacity until November 1993. R21-195. Alfred Taylor
(“Taylor”) began working for LCP in 1979, and became the Brunswick
operations manager in 1991. R21-243-44. He served as plant manager from
February until July 1993. R21-244-45.
2
Hanlin purchased the Brunswick plant in 1979.1 R21-41. The plant,
which is on a site adjacent to tidal marshes and Purvis Creek, operated
continuously year-round, manufacturing caustic soda, hydrogen gas, hydrochloric
acid, and chlor-alkali bleach. About 150 people worked at the plant in two “cell
buildings” or “cellrooms.” Each cellroom was about the size of a football field
and contained fifty mercury “cells,” the units used to produce the bleach, soda,
gas, and acid ultimately sold by LCP. R8-200-2. “The production process
generated hazardous wastes, including elemental mercury, mercury-contaminated
sludge (or “muds”),2 wastewater, chlorine contaminated wastewater, and
1
The site has been used by various companies for 50 years, and was unregulated by any
environmental regulations until the 1970s. The site was operated as an oil refinery from 1919 to
1937 by Atlantic Richfield [ARCO], as a manufacturing site from 1937 to 1955 by Dixie Paint
Company, and as a chlor-alkali facility from 1955 to 1979 by Allied Chemical. R16-85-86. Allied
Chemical used graphite anodes impregnated with PCBs during the chlor-alkali process, and buried
the contaminated anodes on the site. R21-54, 229. It is now a Superfund site, and is being cleaned
at the expense of the government and these earlier owners.
2
In a memorandum regarding mercury consumption, dated 4 October 1993, Taylor noted
that mercury “[c]onsumption was particularly high in 1988" and for 1990-1993. Govt. Ex. 19-5.
An attachment showed “excess” mercury from consumption of 243,102 pounds from 1986 to 1993.
Id.
The “mud” was spread onto the cellroom floors to dry, the mercury was recovered from
underneath and on top of the mud, and the mud was put into drums for disposal. R19-190-93. When
the wastewater covered the floors, the mud could not be stored until the water receded and it was
dried. Id. at 191. The drums were stored underneath the cellrooms. R20-62. The drums were
labeled and dated when the mud was first put into the drum “because [the plant] only had a ninety-
day storage period under [the] permit.” Id. at 62-63. There were “times” when the mud was
“redrumed” and again labeled for another ninety-days. Id. Hanson testified that Taylor was aware
of the muds in the drums. Id. at 62.
At Taylor’s direction, mud that accumulated in the wastewater stored in tank railcars was
“drained off to the wastewater treatment area.” R20-356-57.
3
extremely caustic wastes with high pH values.” Id. at 2-3; R16-112-14. The
wastes were subject to various environmental regulations, including wastewater
limitations on pH, mercury, and chlorine set forth in LCP’s National Pollutant
Discharge Elimination System (“NPDES”), and to regulations of the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6928(d)(2).
LCP constructed a wastewater treatment system in 1989 and 1990, and was
allowed, by NPDES permit, to discharge the treated wastewater into Purvis
Creek. Although LCP represented that the system would have a continuous
treatment capacity of 70 gallons per minute in the project description submitted
to the Georgia EPD, Govt. Ex. 10-3b at SW5 00001807, the filtration and storage
systems installed had a capacity of only 35 gallons per minute, R20-20-21; Govt.
Ex. 1-12. LCP did not notify the Georgia EPD of the lower wastewater treatment
capacity. R20-290. The plant was authorized to store wastewater which was
awaiting treatment in the wastewater treatment plant on the floor of the
cellrooms. R16-118; R21-145, 161. The cellrooms were constructed of concrete,
with a downward slope which diverted the wastewaters to a sump3 and then to the
wastewater treatment holding tanks. R19-33-34. If the cellroom became
incapable of holding the wastewater, it leaked out onto the ground and
3
A sump is a hole with a grate over it. R19-34
4
accumulated in a lake. R16-131-32. LCP also used “Bunker C” oil tanks for
additional wastewater storage. R19-291; R20-42-45. Due to accidental spills,
bleach sometimes accumulated on the Cellroom 1 floor. R19-258. During the
early 1990s, the maintenance at the plant began deteriorating. R20-177, 179.
Replacement parts were not made available, and wastewater began accumulating
around the plant. Id.
The operations were subject to Occupational Safety and Health
Administration (“OSHA”) regulations for the protection and safety of the
employees. The workers exposed to mercury vapors in the mercury cell process
were provided with liquids to drink in order to stay hydrated and deplete the
mercury, and their exposure was periodically monitored through an extensive
mercury urinalysis procedure. R20-145-46; R21-251-52. Employees who
showed exposure to excess mercury were not allowed to return to work until they
were seen by a medical physician, and were then relocated to other plant
locations away from the mercury cells.4 R20-146, 164-65, 168-69, 174; R21-
255, 258; R22-12, 24.
In August 1992, OSHA inspected the plant “due to an employee complaint
4
LCP retested and counseled any employee who tested above 150 micrograms per liter, and
employees with a confirmed result above 250 micrograms were removed from further exposure until
their level went below 150. R21-253-55.
5
about safety hazards associated with water on cell room floors.” Govt. Ex. 10-7i.
OSHA found this to be a “willful violation and demanded that no employees be
allowed to work in contact with the water while the equipment was energized,”
and “forced” LCP “to erect a boardwalk system above the water level around all
the equipment until the water c[ould] be eliminated permanently.” Id. LCP
added wooden elevated walkways in the cellrooms to prevent the workers from
having contact with the water on the floor and to reduce the workers’ risk of
electrical shock or chemical burns.5 R16-118; R21-145-46, 161. The chemicals
used in LCP’s operations were very alkaline and caustic and could irritate and
burn skin.6 R16-93; R19-43, 197; R20-188; R21-263-64. To minimize the
workers’ risk of skin irritations and burns, LCP held routine safety meetings,
encouraged and received safety inspections, and provided the employees with
5
The water occasionally rose high enough to splash onto or soak the walkways, and they
became slick. R20-181, 322. OSHA also required that LCP utilize a lockout procedure for
employees to work on a cell or pump because of the potential electrical hazards. R19-45; R20-190.
In the lockout procedure, an operator ensured that the electrical power was shut off before a
mechanic was permitted to begin work. R19-46-47; R20-190, 323.
6
One former employee, Duane Lorenzo Carver, testified that he received second and third
degree burns on his thighs from caustic that had soaked through his clothes. R19-182, 197. In
reference to a question regarding the conditions of the cellrooms in 1993, he said that, while digging
out the sump, he misstepped and fell into the sump hole, which was filled with wastewater, “about
chest deep.” R19-201-03, 227-228. Carver said that he showered immediately and suffered minor
burns on his stomach and legs. R19-203, 229. Carver was unable to recall the exact date, and
admitted the accident could have occurred any time between 1987 and 1993. R19-226. Carver
testified that, although the employees were told to report all accidents to management, he did not
report the accident, and thus did not receive any medical attention. R19-230.
6
training, protective equipment to preclude skin contact, and first aid stations and
showers to relieve inadvertent contact. R19-47, 194, 233-34, 246, 300-01; R20-
170, 181-82, 185, 188, 190-91; R21-249. All employees, including those
assigned to the cellrooms, were authorized to work elsewhere in the plant if they
were concerned about their safety. R19-302; R20-186-87, 320-2; R21-156.
In 1991, LCP’s parent corporation, Hanlin, filed a voluntary bankruptcy
petition with pre-petition obligations exceeding $100 million. R19-119; R21-194.
Shortly thereafter, Randall was hired as an executive vice president of LCP and
charged with “developing the business and financial plans necessary to turn around
the financial condition of the chemical business.”7 R21-193; R16-97. Randall
worked closely with Hanlin’s bankruptcy attorneys, the law firm of McCarter and
English, and the environmental law firm of Decher, Price and Rhoads. R19-140-
43; R21-194, 215.8 Randall also worked closely with LCP’s corporate
environmental manager and site environmental managers. R20-64-65; R21-210,
215. During the bankruptcy proceedings, available funds for maintenance, repair,
and environmental compliance were restricted. R19-50-52. Randall attempted to
7
Randall Hansen had worked for Hanlin in a financial capacity from 1986 until 1989.
8
During the bankruptcy proceedings, Hanlin set aside seven to ten thousand dollars per day
for professional fees. R19-147.
7
find additional funds by selling excess equipment and reducing the payroll but the
funds remained limited. Id. The ultimate decision-making for all major projects,
capital and extraordinary expenditures, and the sale of assets, were subject to the
approval of the Board and the bankruptcy creditor’s committee and court. R19-
121, 143-47, 174-75; R21-196. Although funds were requested to address the
cellrooms’ wastewater problem, the funds were usually not released. R21-259-60.
In February 1992, the Brunswick plant manager, James L. Johns, advised
Randall in writing that, without “extensive work,” to keep the wastewater
treatment system operable, they would be unable to “operate the plan for more than
a few days without ‘willfully’ violating EPD regulations which we will not do.”
Govt. Ex. 1-8a at HA 00024857.9 In April 1992, Randall visited the Brunswick
plant and met with plant manager James L. Johns for “an update on regulatory
compliance requirements.” Govt Ex. 10-7b. He indicated that he would provide
guidance on the approval of funds for a study for the NPDES permit, LCP’s
commitment regarding the 1 June 1992 Georgia EPD deadline for cellroom floor
repairs, and the possibility of a study or remediation plan for the “brine
impoundments.” Id. In June 1992, Randall was advised in writing that a
9
The memo was addressed “Production Reliability” and noted that “[l]ack of money has
limited the plant production capability and imposed substantial risk on maintaining acceptable
production levels.” Govt. Ex. 1-8a at HA 00024856. The wastewater treatment issues were one of
nine noted problems. Id., HA 00024856 and 57.
8
conference with OSHA on 8 May 1992 noted 26 serious violations and 11 non-
serious violations. Govt. Ex. 10-7d.
During the summer of 1992, the Brunswick plant management changed.10
R16-104-05. In August 1992, Taylor advised Randall that Brunswick was “unable
to meet current permit limitations,” that he anticipated “more restrictive”
limitations, and that the “[p]erformance of the waste water treatment system [was]
a serious threat to the continued operation of the plant.” Govt. Ex. 1-12. Taylor
said that while the “generation of waste water ha[d] greatly increased due to
leaking brine tanks, [poor condition of the] brine pumps [and] . . . brine filters,
heavy rainfall, the necessity to destroy bleach, and numerous operating problems,”
at the same time the capacity of the wastewater system was limited by the reduced
capacity of the filtration and storage systems, was “further reduced” by the “[l]ack
of maintenance,” and the system was “frequently shut down due to mechanical
problems and operator errors.” Id. In November 1992, Randall visited the
Brunswick plant to interview a candidate for plant manager, and spoke with the
acting manager, Hugh Croom. R19-30. At that time, Croom advised Randall of
10
J.L. Johns, the plant manager at the beginning of 1992, retired due to heart problems.
R16-104. During the six month search to replace Johns, Hugh Croom, the plant manager for the
LCP chlor-alkali plant in North Carolina, transferred to Brunswick and acted as plant manager. Id.
at 103-05. Croom returned to the North Carolina plant in January 1993, and admitted that problems
with the wastewater treatment plant and his concerns for maintaining a production rate and for the
safety of the employees and the community contributed to his desire to leave Brunswick. R16-134-
36.
9
problems with the caustic filters and the intentional dumping of caustic on the
cellroom floors by some unknown employee. R19-30-31, 56-58. Croom testified
that Randall “was just as concerned as we were about the problems” and authorized
Croom to hire a task force.11 R19-50, 58.
In February 1993, LCP offered the plant manager job to Taylor. R21-244.
During his tenure as manager, Taylor stressed safety and strict adherence with
LCP’s training and safety programs, and assured employees the right to refuse to
perform any activity if the employee felt it to be unsafe. R19-302-03. When the
wastewater overran the cellroom berms and streamed outside the building, the
overflow was reported to the EPD and to the LCP Board by letters signed by
Taylor. R20-25-27. The amounts reported in the letters were consistent with the
data that the plant had at that time. R20-27.
During the spring of 1993, Taylor attended a company meeting with Randall
and Croom in which they discussed the condition of the Brunswick plant and
possible solutions. R19-18-19. Taylor and Croom recommended “either shutting
the plant down or shutting it down long enough to salvage one cellroom and
rebuild the second cellroom, and then starting back up with just one cellroom.”
R19-20, 22. Taylor worked up “the figures and costs” and submitted it to Randall,
11
The dumping abated once the task force was hired and the valve area was monitored.
R19-58.
10
but Randall later advised them that “[t]hey won’t let me do it.” R19-22-23, 64. By
letters to EPD, Taylor reported that the plant had exceeded the maximum daily
allowable discharges seventeen times, and explained that the discharges were due
to “heavy rainfall,” “miscommunication between operations supervision,” “a slight
miscalculation,” and “storm, rainfall and process leaks.” Govt. Ex. 10-1d, e, g.
Taylor noted that the “waste water treatment operating efficiency and outfall
discharge” was “positive[ly] affect[ed]” by LCP’s decision not to replace a leaking
brine tank. Govt. Ex. 10-1g.
In April 1993, the Board of Directors, with the approval of the bankruptcy
court, removed Hansen as Chairman, President, and CEO of Hanlin after he
attempted to expel the outside directors from the board. R19-122-23, 160, 167-68.
The Board and the bankruptcy creditors’ committee asked Randall to serve as
LCP’s interim CEO and Chief Operating Officer [COO]. R19-160; R21-195, 200.
His primary focus was financial and, with the support of the bankruptcy creditors
committee and court, he sought to sell the company to a responsible party who
could operate the business and have the financial resources to deal with the various
environmental conditions. R19-147-48, 164, 174-75; R21-200-01, 219. In this
capacity, Randall received daily reports concerning the Brunswick plant’s
operations and problems. R16-97-98. After Hansen’s removal as CEO, he was no
longer a corporate officer and became a director and employee. R19-136, 160,
11
168. Sometime later, the Board sent Hansen to Brunswick to help run the plant.
R19-166-67.
Taylor reported five discharge violations in April, and indicated that two
violations were due to a problem in the wastewater treatment system that had been
corrected, one violation was attributable to rainfall, and one violation was due to
leaks which had been repaired. Govt. Ex. 10-1h. Taylor indicated that “[a]n upset
in the wastewater treatment system caused a release of ineffectively treated
wastewater” but that “the discharge was rerouted until the system resumed normal
operation.” Id. Taylor reported 16 discharge deviations in May 1993, which he
indicated were caused by an equipment failure which had been repaired,
“overloading the wastewater treatment system,” and rainfall. Govt. Ex. 10-1i. In
June, Taylor reported 21 excessive discharges which were attributable to “upsets”
and “operational problems” in the wastewater treatment system and equipment
failures. Govt. Ex. 10-1j and 10-1k. Hansen visited the plant in late June and
began working with Taylor. R19-167.
In July 1993, Taylor resigned as plant manager. R21-245. Upon Taylor’s
resignation, Hansen assumed the running of the plant and served as plant manger
from July through September 1993. R19-24, 167; R20-354. Taylor subsequently
returned to the plant as a full time employee as a process or project engineer on the
condition that he not have to “assume managerial type duties.” R21-246. He
12
remained involved in environmental issues, however, and in October 1993,
questioned the assistant production manager regarding the loss of mercury. R20-
325, 337-38.
The Georgia Environmental Protection Division notified LCP in writing in
June 1993 that it proposed revoking the NPDES permit to discharge treated
wastewater in Purvis Creek based on “continuous violations . . . since May 1992 of
pH, total residual chlorine, and mercury.” Govt. Ex. 13-1d at 1. It explained that,
although it had provided LCP “Notice of Violation” letters twice in 1992 and had
requested that LCP “take all necessary measures to come into compliance,” “these
violations have continued” and “significant noncompliance” was documented in 10
out of 13 months from May 1992 through May 1993. Id. The notification
summarized that there had been “no progress . . . in upgrading the plant or its
operation” since the noncompliance had begun to be a serious problem. Id. at 2;
R20-274-276. Randall submitted formal written comments on the revocation
stating that “LCP has already taken steps to improve the situation by installing
additional filter capacity, repairing or replacing equipment and reducing the load
on the system” and referring to a 23 July plan addressing future corrective
measures. Govt. Ex. 10-6 at 4.
In July and August 1993, Hansen directed the plant employees to begin
pumping the wastes into the large “bunker” tanks that had once been used to store
13
oil although he knew that the wastewater mixed with oil could not be run through
the wastewater treatment system,. R20-48, 183, 328-29, 350. The plant
environmental/safety manager reported the use of the tanks to Randall in July.
Govt. Ex. 10-7x. After the EPD moved to revoke the plant’s permit, Hansen
advised the employees to “increase the flow on the wastewater treatment system to
a level that was to keep the water from running out the [cellroom] door” and into
the lake. R20-358-59. During their respective terms as plant manager, Hansen and
Taylor were advised of and observed “water [] flow[ing] out the back door of the
cellroom” as a result of a break in the cellroom berms, and “overflow[ing] on the
ground.” R20-327-28, 335-36, 341. The employees complained to Hansen,
Taylor, and Randall about “the water condition, the deterioration of the plant with
the pipes, the leaks, and the safety equipment,” and, despite assurances that
conditions would improve “[a]s soon as [the plant] g[o]t some money,” the plant
did not get “any money” and conditions did not change. R21-146-50.
The NPDES permit was revoked on 23 September 1993. R20-275. LCP
filed an appeal which stayed the revocation. R20-275. Although EPD sought a
temporary restraining order, it was denied by the state court judge.12 R20-302-03.
12
By letter, the bankruptcy creditors’ committee advised the state judge of the bankruptcy
proceedings and “the likely consequences that would result from any closing of the Brunswick
plant.” R9-228, Ex. B at 1. The committee represented that “even if actual production at [the plant]
was to cease, Hanlin would have an obligation to continue to spend considerable amounts of money
at [the] plant in order to avoid the possibility of an environmental catastrophe.” Id. at 2. A possible
14
During this same period of time, Allied Signal and HoltraChem indicated
interest as buyers, and a financial agreement was worked out in which Allied
Signal would provide needed money, personnel, and raw materials or maintenance
parts for the plant, including an extra wastewater treatment facility. R9-228, Exs.
A & B; R19-149-51; R20-18, 80. As a part of the financial agreement, Allied
Signal loaned employee Mark White to LCP to serve as plant manager in October
1993.13 R19-152-53; R20-18. With the influx of Allied Signal’s resources,
conditions at the plant improved. R20-80. The purchase agreement eventually fell
through and shortly thereafter the facility closed. After the plant closed, Randall,
through the bankruptcy counsel, requested $1,500,000 in additional funds from the
bankruptcy court to deal with the environmental impact of closing but the request
was denied. R9-228, Ex. C at 2, 7, Feb. 8, 1994, letter from M. Patrick M.
Nuciarone.
The Georgia EPD turned the closed plant over to the U.S. Environmental
Protection Agency (EPA) for cleanup and EPA estimate that the cleanup will cost
more than $50 million. R20-380; R21-57. Taylor, as one of the ten LCP employees
approved by the EPA to participate in the site cleanup, assisted in the
environmental impact of shutting the plant down included “additional mercury leakage.” R20-147;
R19-83-84.
13
White continued at the plant as manager until the plant closed. R20-18.
15
decommissioning of the cellrooms and ran the water treatment plant built by the
EPA. R21-55-56. The cleanup was paid for by the government and Hanlin’s
predecessors at the site: Allied Signal (successor to Allied Chemical), ARCO, and
Georgia-Power Company. R21-39-40.
The government indicted Christian Hansen, Randall Hansen, Douglas Brent
Hanson, and Alfred R. Taylor for conspiracy to commit environmental crimes at the
site between 1 July 1985, and 1 February 1994, 18 U.S.C. § 371, (Count 1), and
various substantive crimes.14 R1-1-1. The charges included: violating the Clean
Water Act (“CWA”), 33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, by exceeding
the NPDES permit between June 1993 and January 1994 (Counts 2-21); violating
the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§
6928(d)(2)(A) and (e), and 8 U.S.C. § 2, by storing wastewater on the cellroom
floor and permitting some to escape into the environment between 29 May 1993
and 1 February 1994 (Counts 22-32), storing wastewater in the Bunker “C” tanks
between 23 July 1993 and 1 February 1994 (Count 33), and knowingly endangering
employees by exposing them to impermissibly stored wastes and wastewaters
between 29 May 1993 and 1 February 1994 (Count 34); violating the
Comprehensive Environmental Response, Compensation, and Liability Act
14
Two other plant employees, Duane Outhwaite and Christopher Dunn, were charged
separately and entered into plea agreements. R8-200-7 n. 5.
16
(“CERCLA”), 42 U.S.C. § 9603(b)(3), by failing to notify the U.S. government of
unpermitted releases of chlorine or wastewater into the environment between 21
July and 23 October 1993 (Counts 35-41); and violating the Endangered Species
Act, 16 U.S.C. § 1538(a)(1)(B), 1538(g), and 1540(b)(1), by taking an endangered
species, a Wood Stork, as a result of discharging mercury into the marsh, Purvis
Creek, and the Turtle River (Count 42). R1-1. Hansen was charged with Counts 1-
42, Randall was charged with Counts 1-34 and 42, Hanson was charged with
Counts 1-6, 10-22, 24, 26-32, and 34-42, and Taylor was charged with Counts 1-32,
and 34-42. Id. Hanson, the former environmental and health and safety LCP
manager, pled guilty to a CERCLA offense (Count 41) and the offense under the
Endangered Species Act (Count 42) and testified against Hansen, Randall, and
Taylor.15 R3-83; R20-6. At the conclusion of the defendants’ case, the district
judge granted their motion for acquittal as to Count 42 but denied the motion as to
all other charges. R6-123. Hansen was convicted of all counts, Randall was
convicted of all charged counts, and Taylor was convicted of Counts 1-3, 10-11, 22-
26, 29-32, 34-35, and 38-41. R22-214-15. Their renewed motions for acquittal and
motions for judgment notwithstanding the verdict and/or for a new trial were
denied. R7-145, 146, 153-54, 163; R8-200.
15
Hanson was sentenced to eighteen months of imprisonment, and one year of supervised
release on each count, concurrent. R8-123.
17
Hansen was sentenced to 108 months of imprisonment, a fine of $20,000, a
special assessment of $2,050, and two years of supervised release. R8-214.
Randall was sentenced to 46 months of imprisonment, a fine of $20,000, a special
assessment of $1,700, and two years of supervised release. R9-236. Taylor was
sentenced to 78 months of imprisonment, a special assessment of $1,000, and two
years of supervised release. R8-215. Each defendant appealed, and was allowed to
remain on bond pending appeal. R8-219, 221; R19-226, 238-40.
On appeal, Hansen raises four issues: (1) the district court erred in admitting
the government’s expert witness testimony; (2) the district court’s instructions
misstated the reasonable doubt standard, improperly applied the concept of
reasonable corporate officer, improperly defined the elements of knowing
endangerment, and effectively eliminated the mens rea requirement from each
statutory violation; (3) the evidence was insufficient to support his convictions; and
(4) the district court erred in concluding that it lacked the authority to depart from
the applicable sentencing guidelines. Randall argues that: (1) district court erred
by not granting his motion for judgment of acquittal because the evidence was
insufficient to support his conviction for knowing endangerment under the RCRA
and the government never proved causation on counts 2-33; (2) the district court’s
instructions were erroneous on the elements of the charged substantive offenses and
on the responsible corporate officer instruction as an alternative basis for criminal
18
liability; (3) the district court erroneously admitted high prejudicially and irrelevant
evidence; and (4) the district court erred by declining to depart downward. Taylor
maintains that the district court erred: (1) by not granting his motion for judgment
of acquittal and for a new trial based on insufficiency of the evidence; (2) in its
instruction concerning the wastewater treatment system; and (3) in sentencing him.
II. DISCUSSION
A. Admission of Expert Witness Testimony
Hansen argues that the district court erred in admitting testimony from
government expert witness Daniel Teitelbaum because the government failed to
disclose Teitelbaum’s checkered history of credibility and the court failed to
conduct a hearing regarding the testimony. Hansen also maintains that the district
court erred in admitting the testimony of Teitelbaum and government expert witness
Christopher Reh because the testimony was unreliable, irrelevant, and highly
prejudicial. The government responds that Hansen waived the arguments regarding
Teitelbaum’s testimony by failing to object to the testimony at trial.
The week before trial, Hansen moved for a Daubert16 hearing and to exclude
16
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). In Daubert,
the Court held that, when “[f]aced with a proffer of expert scientific testimony, . . . the trial judge
must determine . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will
assist the trier of fact to understand or determine a fact in issue.” Id. at 592, 113 S. Ct. at 2796.
19
the testimony of expert witnesses regarding certain allegedly scientific conclusions
and exhibits. R4-94-95; R6-110-1. Noting that the motion was directed to the
expert testimony regarding the effect of high mercury levels on endangered species
as charged in Count 42, the district court denied it, finding that the motion did “not
identif[y] the source, the substance, or most importantly the underlying
methodology of this testimony” and that, therefore, there was “no underlying
methodology or reasoning for the court to assess.” R6-110-1-2, 4.
During the trial, Teitelbaum confirmed that he had previously testified as an
expert witness, and explained that “it has been a regular portion of [his] practice
over the years.”17 R20-230-31. Hansen neither objected nor examined Teitelbaum
after the government moved to tender Teitelbaum as an expert, and the court
directed that the jury consider him an expert in his field. Id. at 232.
Teitelbaum testified regarding the plant employees’ potential exposure to
hazardous substances. Based on his review of “the large number of biological
samples,” “many interviews,” the “documents concerning the health and hygiene
program,” and other documents, he found “a substantial amount of spillage of
sodium hydroxide,” “numerous chlorine leaks,” and spills and leaks of hydrochloric
17
On cross-examination, Teitelbaum stated that this was the first time that he had testified
as “a consultant for the U.S. Attorney,” but explained that he had testified “for OSHA many times,”
“for the Department of Justice a number of times,” and for “the EPA.” R20-255-56. He was asked
whether he considered the government to be a “pretty good customer” for his services, and
responded that he did not “take any money from the government” for consulting services. Id. at 256.
20
acid at the plant. R20-233-35; see also 248-49. He noted that, because the sodium
hydroxide spillage had a very high pH and was quite caustic, contact with the
spillage could cause a first- to third-degree burn, or even be lethal. Id. at 233-34.
Teitelbaum explained that exposure to the chlorine leaks could cause “severe
injuries to eyes, upper airways, and lungs, and, under some circumstances, death.”
Id. at 234. He commented that hydrochloric acid was a “classic poison” which
would also cause burns and potential death. Id. at 234-35. Based on the biological
samples, he concluded that the employees were “in danger of death or serious
bodily injury.” Id. at 244-45, 248. Finally, Teitelbaum noted that the data showed
the mercury levels in the workers’ urine were “between two and five times the
acceptable level of excretion, based on the World Health Organization or the
NIOSH recommendations.” Id. at 244-45. No objections were raised to his
testimony. Id. at 232-63.
At sentencing, the probation officer noted that he had “discredit[ed]” one of
Hansen’s witnesses “because he was not even at the LCP Plant” and “did not have
firsthand knowledge to see this.” R13-26. Hansen’s attorney responded that,
based on the probation officer’s theory, Teitelbaum’s testimony should also be
discounted “because he never went to the plant before it was shut down.” Id. at 28.
The district judge commented that Teitelbaum “made a very credible witness. I
think the best witness that the Government had.” Id. at 29.
21
We review for abuse of discretion both the district court’s decisions
regarding the admission of expert testimony and reliability of an expert, Kuhmo
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1989), and
the denial of a Daubert hearing, United States v. Nichols, 169 F.3d 1255, 1263
(10th Cir. 1999). “Absent an objection, we can review the challenged evidence
only for plain error.” Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th Cir.
1995).
Scientific expert testimony is admissible if “(1) the expert is qualified to
testify competently regarding the matters he intends to address; (2) the methodology
by which the expert reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.” City of Tuscaloosa v.
Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998). In Daubert, the Supreme
Court suggested a flexible inquiry regarding the methodology considering such
factors as “whether it can be (and has been) tested,” whether it “has been subjected
to peer review and publication,” the known or potential rate of error,” “ the
existence and maintenance of standards controlling the technique’s operation, and
the degree it is accepted as reliable within the relevant scientific community.” 509
U.S. at 591, 593-94, 113 S. Ct. at 2795-96. Daubert hearings are not required, but
22
may be helpful in “complicated cases involving multiple expert witnesses.” City of
Tuscaloosa, 158 F.3d at 564-65 n. 21. A district court should conduct a Daubert
inquiry when the opposing party’s motion for a hearing is supported by “conflicting
medical literature and expert testimony.” Tanner v. Westbrook, 174 F.3d 542, 546
(5th Cir. 1999). Consistent with Daubert, the evidence must be scientifically related
to the disputed facts at issue in the case. Allison v. McGhan Med. Corp., 184 F. 3d
1300, 1312 (11th Cir. 1999).
Hansen’s motion for a Daubert hearing was neither addressed to the charges
to which Teitelbaum testified, or his testimony in general, nor supported by the
source, substance, or methodology of the challenged testimony. Hansen failed to
object to either Teitelbaum’s qualification as an expert or his testimony during trial.
Teitelbaum’s testimony was based on his review of biological samples, interviews,
and documents, and assisted the trier of fact in understanding the potential injuries
that could result from the conditions at the plant. The district judge did not abuse
his discretion by denying the motion or by admitting the testimony.
To the extent that Hansen raises a Brady18 claim that the government
suppressed exculpatory or impeachment evidence by failing to disclose
18
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) (“The suppression
by the prosecution of evidence favorable to the accused upon request violates due process where the
evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.”).
23
Teitelbaum’s “checkered” past, we find that it is without basis. In order to state
such a claim, a defendant must show (1) “that the government possessed evidence
favorable to the defendant (including impeachment evidence) . . .; (2) that the
defendant does not possess the evidence nor could he obtain it himself with any
reasonable diligence . . . ; (3) that the prosecution suppressed the favorable evidence
. . . ; and (4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been different.”
United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) (per curiam). In this
case, the evidence which Hansen alleges the government failed to disclose consists
of court opinions either disregarding or discrediting Teitelbaum’s testimony.
Although Hansen argues that the government knew of this discredited testimony
based on Teitelbaum’s previous testimony for the government, Hansen fails to show
that the government was in actual possession of the information or actually
suppressed it. Further, the information was available to Hansen through reasonable
diligence both before and during the trial.19 The cases were all available through
19
Hansen argues that Teitelbaum’s testimony was “discredited” in four cases: General
Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512 (1997), Sweger v. Texaco, Inc., Nos. 88-1781,
88-1834 and 88-2745 (10th Cir. Feb. 22, 1991); Land v. United States, 35 Fed. Cl. 345 (1996), and
National Bank of Commerce v. Associated Milk Producers, Inc., 22 F. Supp. 2d 942 (E.D. Ark.
1998). In General Elec. Co., the Court found that the district court did not abuse its discretion in
excluding the testimony of Teitelbaum (and other expert witnesses) because the studies on which
he relied were not sufficient to support his conclusion. 522 U.S. at 146-47, 118 S. Ct. at 519. In
Sweger, the court found that Teitelbaum’s testimony did not provide the necessary certainty to
establish causation. Sweger, slip op. at 1, 5-6. In Land, Teitelbaum appeared as the plaintiffs’
medical expert. 35 Fed. Cl. at 352 n. 7. The hearing officer found Teitelbuam’s “‘preliminary’
24
legal research and information on them could have been, but was not, addressed
during Teitelbaum’s testimony. Finally, the cases relied on by Hansen all relate to
Teitelbaum’s testimony in tort actions as to causation of a specific injury. They do
not, therefore, have probative value as to his testimony regarding potential health
effects of the chemicals or the employees’ risk of death or serious injury after
exposure to these chemicals. Hansen is unable to show a reasonable probability that
the information would have changed the outcome of the proceedings.
Christopher Reh, an employee of the National Institute for Occupational
Safety and Health (“NIOSH”), also testified for the government. R20-192. The
district judge qualified him as an expert in the field of industrial hygiene.20 Id. at
194. Reh explained that he was assigned to the Brunswick plant as the project
officer after NIOSH received “a valid request for a health hazard evaluation” from
one of the plant’s unions in 1987.21 Id. at 196. He said that, during the initial site
visit, he and his team met with Taylor, a plant engineer, and a few union
medical opinion” regarding the cause of the plaintiffs’ injuries to be “of little value because Dr.
Teitelbaum did not conduct physical examinations of the plaintiffs.” Id. In National Bank of
Commerce, the court found that Teitelbaum’s view of the causation of the plaintiff’s cancer was
“undercut by the inadequacy of . . . reliable scientific proof of causation.” 22 F.Supp. at 967.
20
Neither Hansen nor his codefendants questioned Reh regarding his background or his area
of expertise and raised no objections to Reh’s qualification. R20-194.
21
Reh indicated that they were requested to evaluate the health hazards associated with
mercury, chlorine, and hydrochloric acid. R20-199, 203; Govt. Ex. 40-1b.
25
representatives to discuss the request.22 Id. at 196-98. They visited the plant, and
observed “mercury in many places on the cellroom floor in cracks or crevices,” and
passively monitored mercury exposure in the workers’ “breathing zone.” Id. at
198-99. They found that the plant was not using the creatnine monitoring scale, but
were reporting mercury levels by “micrograms per liter.” Id. at 204. The monitors
found that mercury exposure exceeded the NIOSH and OSHA recommended
levels.23 Taylor’s objection to further testimony from Reh on the grounds of
relevance was overruled. Id. at 201. Reh and his team advised Taylor of their
findings by letter and recommended use of creatnine correction urine mercury
monitoring which would indicate the amount of mercury per gram of creatnine. Id.
at 201-03; Govt. Ex. 40-1b. From the results of the first visit, the team made a
second visit to conduct a more in-depth study in 1988. R20-202. During the
second visit, the team used an active sampling method to determine 28 workers’
breathing zone exposure levels, collected urine samples from 58 workers, and
administered questionnaires to and conducted physical examinations of 65 workers.
Id. at 205-07. Taylor was provided with a written interim report in 1988 and a final
22
The NIOSH team consisted of Reh, a medical doctor, and another industrial hygienist.
R20-198.
23
Reh explained that the NIOSH recommended exposure levels (“REL”) were 50
micrograms of mercury per cubic meter of air and that the OSHA permissible exposure levels
(“PEL”) are 100 micrograms of mercury per cubic meter of air. R20-200. He said that all of the
sixteen monitored workers showed RELs above 50, and eleven of the monitored workers had levels
above the PEL. Id. at 200-01.
26
report in 1991, both of which showed that workers had mercury levels above
recommended standards.24 Id. at 207-08, 210, 214; Govt. Exs. 40-1c and 1d.
The government offered Reh’s testimony to show that the workers were
placed “in imminent danger of death or serious bodily injury” and that Hansen,
Randall, and Taylor were aware of the workers’ exposure to hazardous substances.
This testimony supports both of those propositions. The district court did not abuse
its discretion by admitting the testimony of Reh.
B. Insufficiency of the Evidence
We review the denial of a motion for a new trial for abuse of discretion, and
the denial of a motion for judgment of acquittal de novo. United States v. Pistone,
177 F.3d 957, 958 (11th Cir. 1999) (per curiam). To uphold the denial of a motion
for judgment of acquittal, we “need only determine that a reasonable fact-finder
could conclude that the evidence established the defendant’s guilt beyond a
reasonable doubt.” Id. When considering the sufficiency of the evidence, we
“view the facts and draw all reasonable inferences therefrom in the light most
favorable to the government.” United States v. Slocum, 708 F.2d 587, 594 (11th
Cir. 1983).
24
Reh reported that they found that 29 of the tested 58 workers had urine mercury levels
which exceeded the World Health Organization recommended standard of 50. R20-208, 210. The
average level was 136 micrograms per gram of creatinine, with a range from 2 to 689. Id. at 210.
27
1. Position of authority
“To prove aiding and abetting, the government must demonstrate that a
substantive offense was committed, that the defendant associated himself with the
criminal venture, and that he committed some act which furthered the crime.”
United States v. Hamblin, 911 F.2d 551, 557 (11th Cir. 1990). “[T]he government
must show that the defendant shared the same unlawful intent as the actual
perpetrator” but does not need to prove that “the defendant was present at the scene
when the crime occurred, or that he was an active participant.” Id. at 557-58;
United States v. Pepe, 747 F.2d 632, 665 (11th Cir. 1984) (“aider and abettor . . .
need not even be present”). “Encouraging” a violation and “discouraging” the
reporting of the violation, United States v. Sinskey, 119 F.3d 712, 718 (8th Cir.
1997), and “personally attempting to avoid [a violation’s] detection by the [RCRA]
inspectors,” United States v. Self, 2 F.3d 1071, 1089 (10th Cir. 1993), have been
held sufficient to show that a defendant aided and abetted the commission of a
crime.
The indictment alleged that the defendants, “after learning that the Brunswick
facility was disposing of hazardous wastes . . . without a RCRA permit, continued
to operate the Brunswick facility in such a manner as to continue the disposal of
these hazardous wastes without expending adequate funds . . . to prevent the
disposal of such hazardous wastes into the environment.” R1-1-11. The jury was
28
instructed that the defendants were responsible for the acts of others that they
“wilfully directed,” “authorized,” or aided and abetted by “willfully joining together
with [another] person in the commission of a crime.” R22-181. The district court
denied Taylor’s motion to acquit or for a new trial on these charges finding that “the
Defendants worked for LCP in positions of responsibility and authority while . . .
the violations took place.” R8-200-23.
a. Hansen
Hansen maintains that the evidence failed to show that he was in a position of
authority after he was deposed as CEO in April 1993 until he began serving as plant
manager on 16 July 1993, and not after he was officially replaced as plant manager
by Allied employee Mark White on 18 October 1993. Therefore, he contends that
the district court erred in not granting his motion for judgment of acquittal as to the
18 counts that occurred after 18 October 1993 (Counts 6-9, 14-15, 19-21, 23, 25,
29, 30-32, 38-40), the two counts that occurred between April and July 1993
(Counts 2 and 10), and the count that arose on 22 October 1993 (Count 33).
The testimony at trial indicated that Hansen was aware that wastewater was
permitted to flow out the cellroom back door in June 1993,25 and directed the use of
the old Bunker C storage tanks for storage of wastewater, including the
inadequately treated wastewater from the treatment system, from July through
25
Testimony of LCP former assistant production manager James Dunn, R20-327-28, 341.
29
September 1993.26 Although the acts continued after Hansen left his decision-
making position, the acts occurred at his direction. This evidence was sufficient for
the jury to reasonably conclude beyond a reasonable doubt that his acts were in
furtherance of the violations. The district court did not err in denying Hansen’s
motion for judgment of acquittal or motion for new trial.
b. Randall
Randall claims that the government presented no evidence that he personally
treated, stored, or disposed of a hazardous waste, personally effected a CWA
violation, or instructed an agent to do so. He maintains that, under the laws of
bankruptcy and corporate governance, he lacked the authority to close the plant or
to allocate the funds for the needed capital improvements. He contends that LCP
needed the bankruptcy court’s approval to use the bankruptcy estate’s assets, or to
obtain a new debt, to perform the needed repairs at the Brunswick plant.
In February 1994, LCP applied to the bankruptcy court for the funds “to
shutdown” the plant and for new equipment, but the motion was denied. Def.
Randall Ex. 1, Amended Notice of Motion at 5; R9-228, Ex. C and 8 Feb letter.
26
Testimony of former LCP health and safety manager Douglas Brent Hanson, R20-48-49,
LCP maintenance handler and expeditor George Mower, R20-183, and LCP former production
manager Duane Outhwaite, R20-350. Outhwaite testified that the storage tanks were used for
wastewater overflow to keep the inadequately treated wastewater from “running out the door” and
to help prevent the deep pools of wastewater from forming on the cellroom floors. R20-350, 358.
30
Hanlin Board of Directors member James Mathis testified that Randall was
responsible for “run[ning] the day-to-day operations of the company” once he
became the interim CEO and COO. R19-160. He said that the Board was “very
interested in whether the environmental problems–whether we were in a position of
compliance with the environmental regulations. But the information that we had
indicated that, really, compliance was not a problem.” Id. at 164. He explained
that, as a result of the weekly reports on the plant’s operations, the Board believed
that “there were really no excursions of any significance going on”. Id. at 165.27
Mathis said that Randall “had the primary responsibility” for providing information
regarding the environmental compliance issues to the Board and that Hansen fed
“information to Randall in that regard.” Id. at 166. He agreed that the decision to
sell the plant would have been a board decision requiring the approval of the
bankruptcy court. Id. at 174-75.
LCP, as a debtor in possession, could “use the property of the estate in the
ordinary course of business,” but needed court approval to “use, sell, or lease, other
than in the ordinary course of business, property of the estate.” 11 U.S.C. §
363(c)(1) and (b)(1). It could obtain unsecured credit . . . in the ordinary course of
business,” but needed court approval “to obtain unsecured credit or to incur
27
Mathis testified that there were places on the report forms for the “number of excursions”
or environmental noncompliances which “were filled in with ‘zeros’ each time.” R19-165. He said
that they later learned that the zeros were clerical errors. Id.
31
unsecured debt other than” “in the ordinary course of business.” Id. at 364(a) and
(b). Bankruptcy does not insulate a debtor from environmental regulatory statutes.
In reviewing an injunction to clean up a hazardous waste site, the Supreme Court
commented:
[W]e do not suggest that [the debtor’s] discharge [in bankruptcy] will
shield him from prosecution for having violated the environmental
laws . . . or for criminal contempt for not performing his obligations
under the injunction prior to bankruptcy. . . . [W]e do not hold that the
injunction . . . against any conduct that will contribute to the pollution
of the site or the State’s wasters is dischargeable in bankruptcy . . .
Finally, we do not question that anyone in possession of the site . . .
must comply with the environmental laws . . . . Plainly, that person or
firm may not maintain a nuisance, pollute the waters of the State, or
refuse to remove the source of such conditions.
Ohio v. Kovacs, 469 U.S. 274, 284-85, 105 S. Ct. 705, 710-11 (1985). See also
Midatlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 407,
106 S. Ct. 755, 762 (1985) (A bankrupt debtor in possession “may not abandon
property in contravention of a . . . regulation that is reasonably designed to protect
the public health or safety from identified hazards.”).
Although Randall claims that his role as Executive Vice-President and acting
CEO was limited to financial matters, he also received daily reports about the
plant’s operations and environmental problems, R16-97-98, R21, 359, wrote and
received memos regarding specific plant operational problems, Govt. Ex. 104, 1-6f,
1-8a, 1-12, received monthly written environmental reports, Govt. Ex. 10-1o-10-
32
1nn, 10-7c-7d, 10-7f, and oral environmental reports, R21-64, 359. He admitted
that Hanlin’s bankruptcy was not an excuse for violating environmental laws. R21-
219-21. There is no indication that he asked the Hanlin Board or the bankruptcy
court to close the plant. The evidence indicates that he apparently misled them into
believing that environmental compliance was not a problem. After the Georgia
EPD attempted to revoke the plant’s NPDES permit in June 1993, Randall
contested the revocation, explaining that the plant’s CWA violations were due to a
lightning strike and equipment failures, and asserted that “LCP has already taken
steps to improve the situation.” Govt. Ex. 10-6. This evidence was sufficient for
the jury to conclude that Randall actions were in furtherance of the violations.
c. Taylor
Taylor argues that he should not be held responsible for the environmental
violations that occurred after he resigned as plant manager, specifically counts 2-3,
25, 29-32, 38-41. Taylor resigned as plant manager on 16 July 1993, R21-245, but
returned shortly thereafter as a project engineer and continued in that position until
the plant closed, R21-246-47, 317-18. As project engineer, Taylor was directly
involved in responding to the plant’s environmental and safety problems and, at
Hansen’s request, developed a list of short-term solutions to the problems with
estimated costs. R20-338; R21-247-48. Taylor’s proposed solutions were
33
subsequently funded. R21-247-48.
Although Taylor left his managerial position, he continued to work in a
position in which he directed or authorized acts of the employees on environmental
and safety problems.28 Testimony at trial indicated that, in October 1993, Taylor
was aware of the wastewater overflow from the cellrooms, the excess loss of
mercury, and the use of the tank cars for wastewater storage, and that he supervised
the release of the overflow.29 This evidence was sufficient for the jury to conclude
beyond a reasonable doubt that these acts were in furtherance of the violations. The
district court did not err in denying his motion for a new trial.
2. Hazardous substances or materials
28
Despite Taylor’s resignation as plant manager and his re-employment as project engineer,
he was considered to be in a management position. See R20-152 (D. Brent Hanson testified that
Taylor was his immediate supervisor both before and after his resignation and re-employment); id
at 335 (Dunn testified that Taylor “probably would have been plant manager” in late 1993), 337
(Dunn said that in “October of ‘93 I would assume [Taylor] was plant manager.”); id. at 312, Govt
Ex. 13-4 (19 January 1994 letter from Georgia EPD acting unit coordinator Susan Eason to “Plant
Manager” Taylor in which she referenced Taylor’s explanation for “NPDES excursions” at a 6
December 1993 meeting). But see Govt. Exs. 13-2ff, gg, hh, ii, and jj (letters from Mark S. White,
as “Plant Manager,” to EPD dated October-February 1994).
29
Testimony of James Dunn. R20-335-39. Taylor directed a memorandum addressing the
mercury losses and suggesting a solution to LCP employee Chris Dunn on 4 October 1993. Govt.
Ex. 19-5. Dunn responded “yes” when asked whether Taylor was aware of the overflow release
from the backdoor of the cellroom. R20-327-28. Dunn testified that Taylor observed the overflow
“on the ground.” Id. at 336. Dunn said that he told Taylor he was having trouble pumping the
waste into the tank cars and that mercury loss was due to “leaks coming out of the products or it was
tied up in hazardous waste muds.” R20-337, 339. By memorandum, Taylor proposed a flow plan
for the projected waste streams of “19 to 125 gallons per minute” when the wastewater treatment
system was only working at a 40 gallon per minute capacity. Id. at 340; Govt Ex. 19-4a. Wilbur
Outhwaite testified that Taylor advised that the employees needed to empty the wastewater from
the tank cars. R20-356.
34
Taylor and Hansen argue that the government failed to prove that the
untreated wastewater contained enough mercury and caustic to meet the
environmental laws’ definition of hazardous substances or materials, or that the
untreated wastewater was improperly stored.
a. Hazardous substances as defined
OSHA chemist Clinton Leroy Merrell testified that samples which were
submitted from LCP on 9 September 1992 tested as containing 8 to 30 parts per
million of mercury, and six to ten-percent caustic, with a pH of 14. R21-163, 165-
67; Govt Exs. 45-6, 45-9. Former LCP plant manager Hugh Leroy Croom testified
that, in January 1993, the untreated wastewater may have had “a high pH, and . . .
some mercury,” but would not have contained mercury sludge. R16-91, 131-32. He
said that the pH could be high enough to be a danger “at times” but that it did not
stay high and varied according to the spills. Id. at 132; R19-35-36. However, he
testified that muds containing mercury and caustic were washed onto the cellroom
floors every three or four days when the treatment system’s filters were back
washed. R16-127-28; R19-103. When asked whether the wastewater on the
cellroom floors would be considered a hazardous waste, Croom responded “[m]ost
of the time, probably it was.” R16-112-13; see also id. at 128 (Croom admitted that
wastes on the cellroom floor were listed as hazardous wastes).
Dr. Teitelbaum testified that a fall and submersion into caustic soda with a pH
35
of 14 would cause a third-degree burn over the entire body with a likelihood of
death. R20-241-42. LCP former employee Duane Carver testified that, some time
between 1987 and 1993, he stepped into the cellroom sump hole and went in up to
his waist. R19-226-28. He knew that the pH was “pretty high” because he quickly
felt it. Id. at 228. He showered and was able to get most of it off so that he “didn’t
get burned all the way” and did not seek medical attention. Id. at 229-30, 251.
Environmental Protection Agency regulatory expert Paul Peronaud explained
the hazardous waste classifications to the jury, R21-11-13, and the jury was
instructed as to various types of hazardous wastes, R22-199-200. 30
The Waste Water Treatment Operators Logs for the periods of the indictment
30
Specifically, the jury was instructed:
[T]he following wastes are listed as hazardous wastes under the Resource
Conservation and Recovery Act, that is, RCRA:
K-106 is wastewater treatment sludge from the mercury cell process in
chlorine production.
K-071 is brine purification muds from the mercury cell process in chlorine
production, where separately prepurified brine is not used.
And U-151 is simply mercury.
Now you are instructed that a solid waste exhibits the characteristic of
toxicity for mercury if, using the test methods set forth in the regulations, a
representative sample of the waste contains mercury at a concentration of equal to
or greater than 0.2 milligrams per liter.
Under the law, liquid wastes which are “corrosive” are identified as
hazardous wastes. A liquid waste is considered to be corrosive if a representative
sample of the waste is aqueous and has a pH less than or equal to 2 or greater than
or equal to 12.5.
I instruct you that when a hazardous waste listed under the regulations is
mixed with a solid waste, the resulting mixture is a hazardous waste if the reason for
the listing of the hazardous waste is that it is a toxic waste.
R22-199-200.
36
showed that the wastewater often contained more than 200 parts per billion of
mercury.31 Govt. Exs. 4, 5, 6-1. Former LCP employee Dunn testified that Taylor
directed the employees to “put a sign up” labeling the wastewater in the rail cars as
“[h]azardous waste materials.” R20-345. Taylor testified that the pH of the plant’s
wastewater was normally between seven and ten, and in concentration of eight to ten
percent. R21-262, 264.
A “hazardous waste” is defined as
a solid waste, or combination of solid wastes, which because of its
quantity, concentration, or physical, chemical, or infectious
characteristics may–
(A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating
reversible, illness; or
(B) pose a substantial present or potential hazard to
human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5). Hazardous wastes are categorized as either “listed” hazardous
substances or “characteristic” hazardous substances. 40 C.F.R. § 261.3(a); R21-11-
15. The “characteristic” hazardous substances are not per se hazardous but may be
31
LCP former employee Carver explained that the line for “Discharge HC (ppb)” showed
“the mercury level in the discharge water coming from the wastewater system.” R19-209. The
logs provided for thirteen readings per day, but readings were typically taken only twelve times per
day. Mercury levels were recorded as above 200 for nine readings on 17 April, six readings on 28
June, eight readings on 28 August, four readings on 29 August, three readings on 12 September, four
readings on 6 October, two readings on 9 October, three readings on 13 October, nine readings on
18 October, six readings on October 22, and nine readings on 5 November, 1993. Govt. Exs. 4, 5,
6-1. The logs show that the system was not working during readings on 17 April, 21 June, 27-28
June, 29 August, 12 September, 6-9 October, 12-13 October, and 18-21 October 1993. Id.
37
classified as hazardous if, because of a mixture with a hazardous substance, testing
proves that the substance exhibits characteristics of hazardous waste. 40 C.F.R. §§
261.3(a)(2)(i) and 261.20(a). Characteristics of hazardous waste include ignitability,
corrosivity, reactivity, and toxicity. 40 C.F.R. §§ 261.21, 261.22, 261.23, and
261.24. Wastewater containing mercury is classified as a characteristic hazardous
substance when the water contains 200 parts per billion or more of mercury. Id. at §
261.24 (a), Table. “Wastewater treatment sludge from the mercury cell process in
chlorine production” is listed as hazardous waste K106. Id. at § 261.32. Wastewater
containing caustic is classified as a characteristic hazardous substance when the
water “has a pH less than or equal to 2 or greater than or equal to 12.5.” Id. at §
261.22(a)(1). Once solid wastes are mixed with sludge or caustic, they are defined
as hazardous. Id. at § 261.3(a)(2)(iv).
Where there is no sampling of the actual wastes, the government may prove
the hazardous nature of the material by inventories, hazardous waste logs, internal
memoranda, and trial testimony. United States v. Baytank (Houston), Inc., 934 F.2d
599, 614 (5th Cir. 1991). The government is not required to prove that material is
hazardous by EPA testing. United States v. Self, 2 F.3d 1071, 1086 (10th Cir. 1993).
We find that the testimony of the former LCP employees and the wastewater logs
were sufficient for the jury to find that the untreated wastewater contained enough
mercury and caustic to meet the environmental laws’ definition of hazardous
38
substances or materials.
b. Storage of hazardous materials.
Taylor and Hansen maintain that the accumulation of wastewater on the
cellroom floors did not violate federal law because the wastewaters were not stored
there for the statutory requisite of 90 days. Croom testified that hazardous
wastewater was on the cellroom floors “[a]t times,” R16-114, and that hazardous
materials were shipped, turned over, or treated within 90 days, R19-41. In response
to a question as to whether wastewater on the cellroom floors was a regular
occurrence in 1992, he responded that it was in both cellrooms in 1992, but when he
left “it was just mostly in #2.” R16-114. Former LCP employee Roger Cooper
testified that on 28 June 1993, although wastewater was pumped to the railcars for
storage from cellroom two, the cellroom one floor was dry. R19-275-76, 281-82;
Govt. Ex. 6-1. He explained that they “tried to keep [the wastewater in cellroom
one] pumped over to #2 cellroom” because of the possibility that water would escape
from cellroom one as a result of cracks in its floor. R19-284-85. Dirt dikes were
constructed in the cellrooms to prevent the wastewater from leaking, but the dikes
were frequently breached. R19-256; R25-26. The cellrooms were often “full of
water” so that the employees had to wade into standing wastewater to repair the
pumps. R20-318; R19-205.
Hazardous waste generators are permitted to “accumulate hazardous waste on-
39
site for 90 days or less without a permit” if “the waste is placed” in tanks visibly
marked with “[t]he date upon which each period of accumulation begins” and clearly
labeled as “Hazardous Waste.” 40 C.F.R. § 262.34(a)(1)(ii), (2), and (3). A “tank”
is “a stationary device, designed to contain an accumulation of hazardous waste
which is constructed primarily of non-earthen materials . . . which provide structural
support.” 40 C.F.R. § 260.10.
There was no evidence that suggested that the cellrooms, in which earthen
berms were constructed to contain the wastewater, were marked with the date of
accumulation or labeled as containing hazardous wastes and thus qualified as
“tanks.” The testimony and logs indicate that the wastewater, which may have
abated in cellroom one during various periods of time, remained in cellroom two and
was present for more than 90 days. Therefore, the evidence was sufficient for the
jury to find that the wastewater was improperly stored.
3. Knowing Endangerment Under RCRA
Hansen, Randall, and Taylor argue that the evidence was insufficient to
convict them for knowing endangerment. They acknowledge that the government
may have shown that they “could have been aware” of the inherent dangers of
working in a chlor-alkali plant, but argue that it failed to show that they knew and
had an actual belief that the conduct which allegedly violated the environmental laws
was substantially certain to cause death or serious bodily injury to others.
40
Specifically, they maintain that, while the evidence showed that the employees were
exposed to mercury, the evidence did not show that they were endangered due to any
RCRA violation. They contend that the evidence of the employees’ exposure to
caustic was not sufficient to support the conviction for knowing endangerment.
They claim that the government did not show that they had actual knowledge that
their conduct in causing the RCRA violation was at that time substantially certain to
place the employees in imminent danger of death or serious bodily injury. They also
posit that there was no evidence that they were participants in any alleged
conspiracy.
For a conviction of knowing endangerment under the RCRA, the government
must prove that the defendants knowingly caused the illegal treatment, storage, or
disposal of hazardous wastes while knowing that such conduct placed others in
imminent danger of death or serious injury. 42 U.S.C. § 6928(e). A defendant acts
“knowingly” “if he is aware or believes that his conduct is substantially certain to
cause danger of death or serious bodily injury.” Id. at 6928(f)(1)(C). The
defendant must have possessed “actual awareness or actual belief.” Id. at
6928(f)(2)(A). Circumstantial evidence, “including evidence that the defendant took
affirmative steps to shield himself from relevant information,” may be used to prove
the defendant’s awareness or belief. Id. The knowing endangerment statute was
drafted to “assure to the extent possible that persons are not prosecuted or convicted
41
unjustly for making difficult business judgments where such judgments are made
without the necessary scienter” “however dire may be the danger in fact created.” S.
Rep. 96-172, at 37-38 (1979), reprinted in 1980 U.S.C.C.A.N. 5019, 5036-38. The
penalties imposed by the knowing endangerment section were “designed for the
occasional case where the defendant’s knowing conduct shows that his respect for
human life is utterly lacking and it is merely fortuitous that his conduct may not have
caused a disaster.” Id. at 38, 1980 U.S.C.C.A.N. at 5038. We have held that “[t]he
government need only prove that a defendant had knowledge of the general
hazardous character of the chemical” and knew “that the chemicals have the
potential to be harmful to others or to the environment.” United States v. Goldsmith,
978 F.2d 643, 645-646 (11th Cir. 1992) (per curiam) (internal quotations and citation
omitted). “[W]hile knowledge of prior illegal activity is not conclusive as to
whether a defendant possessed the requisite knowledge of later illegal activity, it
most certainly provides circumstantial evidence of the defendant’s later knowledge
from which the jury may draw the necessary inference.” Self, 2 F.3d at 1088.
The statute defines “serious bodily injury” as “(A) bodily injury which
involves a substantial risk of death; (B) unconsciousness; (C) extreme physical pain;
(D) protracted and obvious disfigurement; or (E) protracted loss or impairment of
the function of a bodily member, organ, or mental faculty.” 42 U.S.C. § 6928(f)(6).
A condition which may cause one of the statutorily defined conditions is sufficient
42
to show “serious bodily injury.” See United States v. Protex Industries, Inc., 874
F.2d 740, 743 (10th Cir. 1989) (finding that a serious bodily injury was suffered by
employees who contracted psychoorganic syndrome which may cause a mental
faculties impairment).
a. The Evidence of Endangerment
Former LCP employees testified that they suffered serious skin and
respiratory conditions from the wastewater on the cellroom floors.32 A November
1992 memorandum from Taylor to Randall showed Taylor’s concern for needed
repairs “to avert severe safety and environmental problems.” Govt. Ex. 1-5. The
urinalysis testing on employees showed “an increase” in the number with mercury
levels which exceeded the 150 action level from 1986 to 1993. R21-294-96. Taylor
admitted that most of the employees in the cellroom were removed to other plant
locations “before any medical condition occurred” but said that he did not see any
“reason to draw any correlation between” the rise in the number of employees
32
Hugh Croom explained that “when the pH was high [in the wastewater on the cellroom
floors] and somebody stepped over in it, it could easily burn their skin on their legs.” R16-121. He
volunteered that caustic could “peel the skin off” a person if he or she fell into it. R19-107. He said
that airborne mercury could cause problems because of the potential for accumulation in the body.
Id. at 108. Duane Carver testified that he received second- and third-degree burns on his thighs,
R19-182, 197, and that he and other employees shoveled mercury off the cellroom floors, R19-192.
He explained that there was “plenty” of mercury to see “under the mud and also beaded up on top
in the mud.” Id. He said that “[t]here would be so much [mercury] that it would be running off of
the mud” and that “[y]ou could get a shovelful and lean your shovel over, and the mercury would
just run off the shovel onto the floor.” Id. at 192-93. John Baker testified that the wastewater
“would cause severe burns.” Id. at 245.
43
exposed to excess mercury and the dumping of hazardous wastes and mercury. Id.
at 294, 296.33
Expert testimony and reports linked exposure to mercury and caustic to a
variety of serious health problems. The National Institute for Occupational Safety
and Health (NIOSH) report on sodium hydroxide caustic indicated that local contact
with caustic could result in “extensive damage to tissues, with resultant blindness,
cutaneous burns, and perforations of the alimentary tract,” with potential for
development of “squamous cell carcinomas.” Govt. Ex. 17-7b. The NIOSH report
on inorganic mercury warned of the effects of mercury and mercury vapors to the
central nervous system. Govt. Ex. 17-7c. Dr. Teitelbaum testified that exposure to
caustic could cause burns ranging from first- to third-degree and could be lethal, and
that exposure to mercury could cause mild tremors, personality changes, some
detectable neurological abnormalities, changes in kidney function to severe kidney
damage with potential death, and immune system problems. R20-229, 239-42. Dr.
Teitelbaum opined that the employees were “in danger of death or serious bodily
injury.” R20-248. The evidence was sufficient for the jury to find that the
defendants placed others in danger of death or serious bodily injury.
33
Taylor commented that “[j]ust because the trend happened to be the same on two
completely unrelated events, does not necessarily tie them together.” R21-296. He said that he
“noticed a similar trend on two completely unrelated events.” Id. at 297. He admitted “that the
mercury vapor levels in the workplace did increase” and that “drums of dried waste can be a source
of mercury.” Id. at 297-98.
44
b. The Evidence of Mens Rea
The evidence showed that Hansen, Randall, and Taylor knew that the
conditions of the plant were dangerous and that the conditions posed a serious
danger to the employees. LCP former employee Wilbur Duane Outhwaite testified
that he voiced his opposition to the use of the Bunker “C” storage with Hansen, and
that Hansen responded that it was “his decision to make, and he decided to use
them.” R20-350. LCP acting plant manager Hugh Croom discussed his concerns
regarding the dangerous conditions in the cellroom and the danger to the employees
with Randall. R16-129-30. Croom and LCP former employee Outhwaite testified
that Randall received daily reports from the plant managers concerning plant
operations and “safety problems.” R16-97-98; R20-359, 374. Randall was aware of
the water on the cellroom floor and “wouldn’t say that [he] wasn’t unaware of the
hazard,” but thought that the walkway was “an acceptable resolution” to
“eliminating the hazard to the employees while we worked to dry the cellroom
floor.” R21-224-25. He conceded that he was aware that the company was cited for
willful violation of OSHA safety regulations as a result of water on cellroom floors.
Id. at 225; Govt. Ex. 10-7i. Jesse Jones, a former LCP employee and a union
representative, met with Randall to discuss the employees’ safety issues, and
Randall promised the needed repairs. R21-148. He said that he discussed the safety
concerns, specifically “the water condition, the deterioration of the plant with the
45
pipes, the leaks, and the safety equipment[]” with Hansen and Taylor. Id. at 146.
Between 3 August 1993, and 4 February 1994, Randall was sent 22 reports listing
110 different violations of the NPDES standards. Govt. Exs. 10-1o-10-1nn. As
LCP’s environmental manager, Brent Hanson regularly advised Randall of the
plant’s environmental problems “[w]henever he was interested in things” and by
monthly reports. R20-64-65.
As early as 1988, NIOSH informed Taylor that the plant employees had
“extremely high” levels of mercury in their bodies which created “an unacceptably
high potential for health effects,” and that the mercury-contaminated wastes should
be kept in vapor-proof containers. Govt Ex. 40-1c at 2. Despite this, the employees’
exposure to high levels of mercury continued. In 1992, Taylor addressed his
concerns about “severe safety” problems in a memorandum to Randall. Govt. Ex. 1-
5. Taylor was aware that, during the spring of 1993, 23 cellroom employees were
removed from their duty in the cellrooms due to their high levels of mercury and that
the mercury level in the workplace increased. R21-294-95, 297. Taylor was aware
of and concerned by the mercury-contaminated waste which was stored in drums in
the cellrooms’ basement and which was emitting elevated levels of mercury fumes.
Id. at 298-303. He admitted that the mercury-contaminated mud on the cellroom
floors posed a health risk and needed to be monitored. Id. at 301-02. He testified
that, on occasion, he would get into the water wearing protective equipment to make
46
repairs and improvements to the pumps, and admitted that, if the wastewater got
onto bare skin and was caustic, “you would start to feel a little burning or a little heat
sensation” but that it could be neutralized by washing with the safety solution. Id. at
263-64. He said that such burns were “not unusual” in a caustic soda manufacturing
plant through employee carelessness and equipment failures. Id. at 264.
c. Consent to the Risks
The RCRA knowing endangerment provision can be affirmatively defended if
“the conduct charged was consented to by the person endangered and that the danger
and conduct charged were reasonably foreseeable hazards of–(A) an occupation, a
business, or a profession.” 42 U.S.C. § 6928(f)(3). The evidence showed that the
plant’s environmental violations seriously endangered the employees and were not
typical to chlor-alkali plants. Hugh Croom, the plant manager for the LCP chlor-
alkali plant in North Carolina, testified that the dangerous conditions in the
Brunswick plant were not present in the North Carolina plant because the North
Carolina plant had adequate waste treatment equipment and facility maintenance.
R16-108-09, 127-29; R19-32-34, 52, 107-09. 110-11. He said that he discussed his
concerns regarding the environmental issues, the wastewater treatment system
issues, and the dangers to the employees with Randall and with Taylor. R16-129-30.
LCP environmental manager Brent Hanson noted that, although covering mercury
with water to limit mercury vapors was an accepted practice within the chlor-alkali
47
industry, it was usually practiced “in a little more confined manner” than the
condition of the cellrooms, it was not an industry practice to allow such quantities of
mercury to accumulate on the cellroom floors, and he knew of no other chlor-alkali
plants that permitted such a condition to exist. R20-145, 153. Dr. Teitelbaum
testified that, although he did not think that “you can get a zero risk” in a chlor-alkali
plant, he thought “you can make chlor-alkali plants safe so that workers under
everyday conditions are extremely unlikely to be hurt.” R20-245.34
The employees also did not freely consent to conditions at the plant. They
complained to management, including Hansen, Randall, and Taylor, about the
dangerous working conditions, and refused to work in the cellrooms. Union
representative and former plant employee Jesse Jones testified that LCP suspended
nine employees who refused to “go underneath the cellroom to repair the pump”
because of the wastewater on the cellroom floor. R21-138-42. Jones said that he
discussed his concerns about the working conditions with Hansen, Randall, and
Taylor. R21-138-39, 146-48. Former employee Larry Barwick said that he
complained “to whoever would listen,” including the LCP management, about the
34
He noted that “the Swedish chlor-alkali industry . . . had air levels of 20 or below and
urine levels which almost never exceeded 30" in 1990, demonstrating that such an environment was
possible. R20-245. He explained that a safe environment could be promoted by the use of industrial
hygiene, including “engineering controls, protective equipment, substitution of materials in places
where you can substitute, and administrative controls as to how long and what kind of environments
people work in.” Id. at 246.
48
fumes35 and visible mercury in the cell buildings.36 R20-319-20. He refused to go
into the cellrooms, and was once sent home for the day based on his refusal. R20-
321. The evidence, therefore, was sufficient to show that the defendants knew that
the plant’s violations of the CWA and RCRA violations were inevitable, that the
plant was incapable of complying with environmental standards, and that the
employees were endangered while working within this environment without
consenting to the risk.
4. Conspiracy
Hansen, Randall, and Taylor argue that the district court erred by not granting
their motions for acquittal because the government never proved a conspiracy. They
maintain there was no showing of an agreement between them, the operation of the
plant was a legal act, and they did not pursue the objectives of the conspiracy.
Randall suggests that the evidence showed that he took affirmative steps to improve
compliance. Taylor contends that he was not involved in the operations at the
35
Barwick said that:
[T]he fumes from the acid burners were coming down and you couldn’t breathe
without wearing a respirator.
It would burn your skin. It would take the hair off of your arms. It would get
in your eyes, under your goggles. And everything–it had caustic. It had bleach.
It had acid fumes. . . . After probably the last year or year and a half, that was
probably a regular everyday thing almost, that you would get gas somewhere in [the
cell building]. R20-319-20.
36
Barwick testified that the mercury “was everywhere. . . the floors, the ledges, the beams,
any place you had to get up in to to change headers . . . You would have mercury on the beams.
You would have mercury on the floors. When you would take the headers apart, mercury would run
out of them.” R20-320.
49
Brunswick plant for a significant period of the “conspiracy” and authored several
memos to management expressing his concerns regarding the plant’s operation once
he began working there. He maintains that, after assuming the plant manager
position, he recommended shutting down the plant or at least one of the cellrooms
and, when those recommendations were rejected, he spent several months seeking
money for maintenance. He also argues that the evidence showed that he directed
that the reports be truthful and accurate.
To obtain a conviction under 18 U.S.C. § 371, “the government must show:
‘(1) the existence of an agreement to achieve an unlawful objective; (2) the
defendant’s knowing and voluntary participation in the conspiracy; and (3) the
commission of an overt act in furtherance of the conspiracy.’” United States v.
Harmas, 974 F.2d 1262, 1267 (11th Cir. l992) (quoting United States v. Cure, 804
F.2d 625, 628-30 (11th Cir. 1986)). “An agreement may be proved by either direct or
circumstantial evidence and a common scheme or plan may be inferred from the
conduct of the participants or from other circumstances.” United States v. Diaz, 190
F.3d 1247, 1254 (11th Cir. 1999). However, it is “essential” “that the object of the
agreement must be illegal.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir.
1998). “Each party to a continuing conspiracy may be vicariously liable for
substantive criminal offenses committed by a co-conspirator during the course and in
the furtherance of the conspiracy, notwithstanding the party’s non-participation in
50
the offenses or lack of knowledge thereof.” United States v. Mothersill, 87 F.3d
1214, 1218 (11th Cir. 1996) (citing Pinkerton v. United States, 328 U.S. 640, 646-47,
66 S. Ct. 1180, 1184 (1946)). In the usual Pinkerton case, it is not necessary for the
court to inquire into a particular conspirator’s individual culpability, “so long as the
substantive crime was a reasonably foreseeable consequence of the conspiracy.”
United States v. Alvarez, 755 F.2d 830, 849-50 (11th Cir. 1985). It is unnecessary
for the government to prove that each conspirator participated in all aspects of a
conspiracy, knew each phase or every detail of the conspiracy, or knew all of the
participants. United States v. Pedrick, 181 F.3d 1264, 1272 (11th Cir. 1999). A
conspirator may be convicted if he “participates in some affirmative conduct
designed to aid the success of the venture with knowledge that h[is] actions would
further the venture.” Id. A defendant may be convicted of conspiracy if he joined
the conspiracy after its inception and played only a minor role within it, United
States v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995), and he is presumed to be a
part of the conspiracy until all conspiracy activity ceases or he proves that he
withdrew. United States v. LeQuire, 943 F.2d 1554, 1563-64 (11th Cir. 1991). To
show withdrawal, a conspirator must show that he “has taken affirmative steps to
defeat the objectives of the conspiracy,” and “made a reasonable effort to
communicate these acts to his co-conspirators or disclosed the scheme to law
enforcement officers.” Id. at 1564.
51
The indictment charged that, from July 1985 to 1 February 1994, Hansen,
Randall, and Taylor “did knowingly and willfully combine, conspire, confederate
and agree together and with others” to knowingly act in violation of the
environmental laws by “continu[ing] to operate the Brunswick facility” after
learning that they were in violation, storing and disposing of hazardous wastes
without a permit, and submitting “incomplete, inaccurate, and misleading
information” in their reports to the various state and federal regulatory agencies.
R1-1-10-14. The evidence showed that the defendants admitting to sharing the
common goal to operate the plant until a buyer could be found. The jury could infer
from this goal and the defendants’ knowledge of the plant’s continuing problems
with worker safety and environmental compliance that they reached a tacit
agreement to operate the plant in violation of environmental laws. The defendants
knew of the violations from either personal observation or from information that
they received from the plant employees, and frequently communicated with each
other regarding operation of the plant despite the continuous environmental
concerns. The defendants failed to provide the corporate board with information
about the violations, and failed to accurately present the plant’s inability to comply
with the regulations to the Georgia EPD. Each of the substantive offenses were
foreseeable consequences of the agreement to continue operating the plant in
violation of the environmental statutes.
52
5. Knowledge of the Substantive Offenses
Randall argues that the district court erred in denying his motion for acquittal
because the government failed to show that he had the requisite “knowledge” of the
CWA and RCRA violations on the specific dates when they occurred. He contends
that his knowledge after the violations had occurred was not sufficient. The statutes
for the violations under which Randall was indicted contain explicit knowledge
requirements. For a conviction under 33 U.S.C. § 1319(d)(2)(A), the defendant must
be shown to have “knowingly” violated various sections of the CWA or permit
conditions or limitations. For a conviction under 42 U.S.C. § 6928(d)(2)(A), the
defendant must be shown to have “knowingly” treated, stored, or disposed of an
identified hazardous waste without a permit. We have held that the knowledge
element is satisfied where a defendant, who may not have “directly” caused a
hazardous waste violation but had “approved of previous dumpings as a way to meet
storage squeezes,”“effectively ordered” a subsequent violation when he instructed a
subordinate to “handle” hazardous waste. United States v. Greer, 850 F.2d 1447,
1451-52 (11th Cir. 1988).
Here, although Randall did not directly cause the violations, he knew that the
plant was violating its permit on an almost daily basis, accumulating wastes that it
could not treat, and was frequently releasing the wastes from the cellrooms as
needed to keep the plant operational. He received 22 written reports between 3
53
August 1993 and 4 February 1994 advising him of a total of 110 different violations
of the NPDES permit. He received frequent and sometimes daily oral and written
reports from the various plant managers of the plant’s operations and safety
concerns. He knew that the plant was incapable of complying with the
environmental standards and knew that the violations were inevitable. We conclude
that the evidence that Randall permitted the plant employees to process the
hazardous wastes as they had in the past despite his knowledge that the procedures
were in violation of environmental regulations was sufficient to show that Randall
acted “knowingly.”
C. Jury Instructions
Hansen, Randall, and Taylor argue that the district court’s jury instructions
misstated the reasonable doubt standard, improperly applied the concept of
responsible corporate officer, improperly defined the elements of knowing
endangerment, and effectively eliminated the mens rea requirement from each of
these statutory violations. Hansen contends that the instructions essentially
instructed the jury that they could convict him because of his job title.
“‘We review jury instructions de novo to determine whether they misstate the
law or mislead the jury to the prejudice of the objecting party.’” United States v.
Grigsby, 111 F.3d 806, 814 (11th Cir. 1997), quoting United States v. Chandler, 996
F.2d 1073, 1085 (11th Cir. 1993). We review the district court’s denial of a
54
requested instruction for abuse of discretion, because a defendant is entitled to an
instruction on a defense theory if it has some basis in the evidence and is supported
by law. Grigsby, 111 F.3d at 814. A defendant cannot challenge a jury instruction
on a ground not raised at trial unless he establishes “plain error” under
Fed.R.Crim.P. 52(b). United States v. Meester, 762 F.2d 867, 879-80 (11th Cir.
1985). If the requirements of Rule 52(b) are satisfied and the instruction was made
in error, is plain, and affected substantial rights, we “may then exercise [our]
discretion to notice a forfeited error, . . .only if . . .the error seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 466-68, 117 S. Ct. 1544, 1548-49 (1997) (internal citations
omitted). Under the invited error doctrine, we will generally not review an error
induced or invited by a party through the submission of an incorrect jury instruction
to the judge which passed on to the jury. United States v. Stone, 139 F.3d 822, 838
(11th Cir. 1998) (per curiam).
1. Reasonable Doubt Standard
Hansen and Randall maintain that the district judge misstated the essential
basis of the convictions by instructing that the government did not have to prove
guilt beyond a reasonable doubt. In his introduction to the jury instructions, the
district judge advised the jury that he would read them the jury charge and would
provide them each a copy of the charge for them to “refer to it at any time you think
55
is appropriate” when they were sent out to deliberate. R22-172. The district judge
then orally instructed the jury on reasonable doubt as follows:
So the Government always has the burden of proving a
Defendant guilty beyond a reasonable doubt. If it fails to do so, under
your oath, you would have to find that Defendant not guilty.
But while the Government’s burden is a heavy burden, it is not
necessary that the Defendant’s guilt be proved beyond a reasonable
doubt, because that is generally impossible. The law does not require a
mathematical certainty, only the exclusion of any reasonable doubt
concerning that Defendant’s guilt.
In that regard, a “reasonable doubt” is defined as a real doubt,
based upon reason and common sense after a careful and impartial
consideration of the entire evidence in this case, or the lack of evidence.
Proof beyond a reasonable doubt, in other words, is proof of such
a convincing character that you would be willing to rely or act upon it
without hesitation in a decision involving the most important of your
affairs. But you take a common sense view. . . .
You may not find a Defendant guilty unless you find that the
inferences you draw from the evidence are consistent with the theory of
his guilt and inconsistent with reasonable theories of innocence. If you
are convinced that a Defendant has been proved guilty beyond a
reasonable doubt, say so with a verdict of guilty. On the contrary, if you
have reasonable doubt, then under your oath, you would have to find
that Defendant not guilty.
R22-174-75 (emphasis added). No objection was made as to this instruction. R22-
206-09.37
37
The government argues that there may be an error in the transcript. Government brief at
23. There is no indication that this matter was submitted to and settled by the district court
consistent with the procedure outlined in Fed.R.App.P. 10(e).
The district judge provided the parties with an opportunity to “[s]tate [their] exceptions” after
the jury instructions were read. R22-206-09. Taylor’s counsel said he had been “listening
carefully to the charge” and had heard the word “water” used in the place of “wastes.” Id. at 208.
He then noted that the jury “will have it to read.” Id. Taylor’s counsel also observed that the word
“person” had been defined as an “individual corporate officer” instead of a “responsible corporate
officer;” the judge made a curative instruction. Id. at 208-09.
56
The passage, as provided to the jury in the written charge, read:
Thus, while the Government’s burden of proof is a strict or heavy
burden, it is not necessary that a Defendant’s guilt be proved beyond all
possible doubt. It is only required that the Government’s proof exclude
any “reasonable doubt” concerning a Defendant’s guilt.
R6-133-2.
“[W]e consider [a reasonable doubt] instruction as a whole to determine if the
instruction misleads the jury as to the government’s burden of proof.” Harvell v.
Nagle, 58 F.3d 1541, 1542 (11th Cir. 1995). The jury must be instructed that
defendant’s guilt must be proved by the government “beyond a reasonable doubt” on
each element of the charged offense, but the trial court is not required to define
reasonable doubt. Id. If the trial court defines reasonable doubt, the standard must be
explained correctly. Id. A district court’s failure to submit an element of the offense
to the jury, including an erroneous instruction on reasonable doubt, is a structural
error which defies the harmless-error analysis. Johnson, 520 U.S. at 468-69, 117 S.
Ct. 1544 at 1549-50. Although we have held that “an inadequate reasonable doubt
instruction cannot be cured by other circumstances at trial,” Nutter v. White, 39 F.3d
1154, 1158 (11th Cir. 1994) (reversing a conviction in which the instruction defined
reasonable doubt using the phrase “substantial doubt”), “[j]ury instructions are not
considered in isolation; rather we view them in the context of the entire . . .
proceeding.” Waters v. Thomas, 46 F.3d 1506, 1524 (11th Cir. 1995).
57
Here, the improper passage is immediately prefaced and followed by a correct
instruction, and the correct instruction was included in the written copy provided to
each juror. The judge stated the correct instruction numerous times, including each
element of each offense to be proven. See R22-172, 173, 182, 185, 187,189, 193-94,
199-201. The instruction, as written and as provided to the jury, was not inadequate
and presented the correct reasonable doubt standard. Viewing this instruction as a
whole and in the context of the entire proceeding, we find that it did not mislead the
jury as to the reasonable doubt standard. See United States v. Torres, 901 F.2d 205,
243 (2nd Cir. 1990) (rejecting a challenge to the language used in one sentence of a
reasonable doubt standard where a correct instruction was provided “immediately
after” the challenged language and provided at least five times in the instructions in
general and as to the specific offenses); but see Bloomer v. United States, 162 F.3d
187, 189, 194 (2nd Cir. 1998) (finding an improper reasonable doubt instruction
constitutionally deficient despite at least 17 proper instructions where there was no
curative instruction to alert the jury to disregard the incorrect instruction.)
2. Reasonable Corporate Officer
Hansen and Randall contend that the district judge undermined the jury’s fact-
finding function by directing that they treat the defendants as “responsible corporate
officers” (“RCO”). They maintain that the instruction as given permitted the jury to
58
convict them on the basis of their corporate positions instead of their individual
liability. They suggest that the district court’s separate RCO instruction allowed the
jury to believe that it applied equally to the conspiracy, CWA and RCRA charges.
The district judge instructed the jury:
Under the federal Clean Water Act, the definition of a “person”
specifically includes corporations and individual corporate officers. You
are instructed that the Defendants, Christian Hansen, Randall Hansen,
and Alfred Taylor are persons for purposes of the Clean Water Act.
R22-191. Taylor’s attorney objected that “[t]he statute says, ‘ . . . and responsible
corporate officers.’” R22-209. The district judge then explained “[w]herever I have
used the term ‘corporate officers,’ I mean responsible corporate officers.” Id.
In a CWA case, “the term ‘person’ means . . . any responsible corporate
officer.” 33 U.S.C. § 1319(c)(6). The RCRA counts require proof that each
defendant “knew” of the violations’ potential for harm and danger. 42 U.S.C. §
6928(e). In United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st
Cir. 1991), the First Circuit vacated a conviction under 42 U.S.C. § 6928(d)(1) after
finding that the district court’s instruction, which relied on the RCO doctrine in part
and which instructed “that the officer must have known or believed that the illegal
activity of the type alleged occurred” incorrectly permitted a finding of guilt without
a determination that the defendant possessed actual knowledge of the specific
violation. Id. at 51. The First Circuit reasoned that the RCO doctrine was
59
inapplicable where the defendant was charged under a statute that required explicit
knowledge. Id. 51-55. The Ninth Circuit has held that:
[U]nder the CWA, a person is a ‘responsible corporate officer’ if the
person has authority to exercise control over the corporation’s activity
that is causing the discharges. There is no requirement that the officer in
fact exercise such authority or that the corporation expressly vest a duty
in the officer to oversee the activity.
United States v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998). Explaining that “[t]he
relevant inquiry is whether the instructions as a whole are misleading or inadequate,”
the Ninth Circuit rejected the defendant’s argument that the RCO “instruction
allowed the jury to convict him without finding a violation of the CWA.” Id. at 1026.
The district judge had stated the elements needed for the government’s proof and told
the jury that the CWA “‘also holds accountable’” RCOs. Id. The Ninth Circuit
found the instructions not erroneous, reasoning that “the [RCO] instruction relieved
the government only of having to prove that defendant personally discharged or
caused the discharge of a pollutant” and that “[t]he government still had to prove that
the discharges violated the law and that defendant knew that the discharges were
pollutants.” Id. We find this issue meritless. The clarifying instruction given by
the district court was requested by the defendants. The district court’s instruction on
responsible corporate officer was not given as to the CWA counts, Counts 2-21, but
was given only as to Counts 22-34.
3. Knowing Endangerment
60
Hansen argues that the instructions authorized the jury to convict him of
knowing endangerment without making a determination that he knew of an imminent
danger. Hansen requested that the instruction include the “element of knowingly” on
“each element of the offense” to insure that the jury understood that the charges were
related to “individual, personal, knowing, knowledgeable, deliberate conduct.”
R22-53-55. The district judge noted that the preface to the instructions included
“knowingly” and agreed that he would add an instruction that “[t]he term knowingly
is applicable to each element of the offense.” Id. at 54, 56. Hansen’s attorney
responded “[t]hat would help, Judge.” Id. at 56. Later, the government requested
that the instructions for “willful” be limited to count 1 and that the instructions for
“knowingly” apply to the remaining counts. Id. at 70-71. Hansen’s attorney stated
that he “strongly disagree[d],”but the judge indicated that he would permit the
instruction, as clarified, to stand. Id. at 71. At the end of the charge conference,
Hansen’s attorney renewed his objection to the district judge’s failure to give the
knowing instruction as to each offense. Id. at 206-07. Because the instruction
required that the jury find that Hansen knew that the violations could cause imminent
danger, this argument is meritless.
4. Mens Rea Requirement
Hansen argues that the instructions permitted the jury to convict him of the
RCRA violations without making factual findings that he had knowledge of the
61
RCRA elements of hazardous materials, permit regulations, and the treatment,
storage, or disposal of hazardous wastes. He maintains that the instruction
reinforced the government’s position that Hansen should be convicted because LCP
was his company, and not based on the legally required relationship between Hansen
and the violations. During the charge conference, Randall’s attorney objected to an
instruction as to Counts 22-34, arguing that it should be limited to Counts 22-33,
because Count 34 had additional elements. R22-59-63, 65-66. He asked that an
instruction be added limiting liability to knowledge possessed by the defendant
himself, and the district judge responded “[a]ll right. All right. We will add that.”.
Id. at 61.
During closing argument, the government stated:
Chris Hansen is a hands-on manager. You heard discussions of
how he ran the plant. I would submit it was probably his way or the
highway. Does anybody doubt he would have known what was going
on at every place in the plant? He was there. He ordered the Bunker C
tanks to be filled.
R22-99-100. The district judge explained that:
a person acts knowingly if he acts intentionally and voluntarily,
realizing what he is doing, and not because of ignorance, mistake,
accident, or carelessness. Whether a Defendant acted knowingly may be
proven by the Defendant’s conduct and by all of the facts and
circumstances surrounding the case.
Id. at 188. Addressing the RCRA counts, the district judge instructed:
Each count charges the . . . Defendants, all of them, unlawfully
62
treated, stored, or disposed of one or more hazardous wastes without the
required permits.
Now in order to prove a Defendant guilty of those charges, the
prosecution must establish the following essential elements:
First, that on or about the date charged in Counts 22 through 34,
the Defendant under consideration knowingly treated, stored, or
disposed of one or more of the solid wastes listed in those counts;
Next, that such solid wastes were listed or identified under RCRA
as hazardous wastes; and
Third, that the wastes were treated, stored or disposed of at a
location which did not have either interim status or a RCRA permit
authorizing the treatment, storage or disposal of such wastes.
Id. at 192. The district judge also charged that “the Government must prove beyond a
reasonable doubt that the Defendant under consideration knew that substances
involved in the alleged offenses had the potential to harm others or the environment.”
Id. at 193. The district judge continued:
Now each Defendant may be found guilty of Counts 22 through
34 of the Indictment if you find that the Government has proven the
following beyond a reasonable doubt:
First, that the Defendant under consideration had a responsible
relationship to the violation–that is, that it occurred under his area of
authority and supervisory responsibility;
Second, that the Defendant had the power or the capacity to
prevent the violation; and
Third, that the Defendant acted knowingly in failing to prevent,
detect or correct the violation.
Id. at 200-01. Randall’s counsel renewed the objection that the instruction as to
Count 34 was erroneously included because it could not be based on constructive
knowledge. Id. at 207.
We have held that a defendant’s “knowledge [as to whether a site has a permit
63
or the disposal of hazardous waste] does not require certainty, and the jurors may
draw inferences from all of the circumstances, including the existence of the
regulatory scheme.” United States v. Hayes Int’l Corp., 786 F.2d 1499, 1505 (11th
Cir. 1986) (reviewing a conviction under 42 U.S.C. § 6928(d))(1)). As to Count 34,
RCRA’s knowing endangerment provision also requires proof that the hazardous
waste violation placed persons in “imminent danger of death or serious bodily injury”
and that the defendant had knowledge of that danger. 42 U.S.C. § 6928(e). Because
the instructions clearly set forth that a finding of “acted knowingly” was required for
a conviction, there was no error in the instruction.
5. Wastewater Treatment System
Hansen contends that the instructions allowed the jury to convict him under the
CERCLA release offenses without a finding that he knew the quantity of the
materials released or was meaningfully in charge at the time of the release. Taylor
argues that, because the instruction failed to include the definition of “tank,” it
allowed the jury to consider the cellroom as a part of the wastewater treatment
system. In his request for a charge as to Counts 35 through 40, Hansen asked that
the jury be instructed that it could not convict him unless he was the person in charge
at the time of the release and knew that the released hazardous materials exceeded the
64
applicable reportable quantity. R4-98, Request to Charge No. 23.38
The district judge instructed the jury:
Now Counts 35 through 41 charge the Defendants, Mr. Christian
Hansen and Mr. Taylor with violations of the Comprehensive
Environmental Response, Compensation, and Liability Act, which is
known by the acronym CERCLA, which requires the immediate
reporting of the release of a reportable quantity of a hazardous substance
into the environment.
...
To establish a violation of this Act, as alleged in Counts 35
through 41, the Government must prove the following elements beyond
a reasonable doubt as to each Defendant:
First, that the Defendant was one of the “persons in charge” of a
facility;
With respect to Counts 35 to 40, that a reportable quantity of
mercury contaminated wastewater–that is, more than one pound of
wastewater contaminated with mercury and other hazardous
substances–was released into the environment within a 24 hour period;
As to count 41, that a reportable quantity of chlorine–that is, in
excess of 10 pounds–was released into the environment within a 24 hour
period; and
That the Defendant under consideration failed to notify
immediately the National Response Center of the release of such
materials as soon as he had knowledge of the release.
CERCLA’s reporting requirements are not extended to all
employees involved in a release. The reporting requirements apply to
any person–even if of relatively low rank–who was in a position to
detect, prevent, and abate a release of the hazardous substances.
38
Specifically, Hansen requested that the charge read:
First, that on the date alleged in each respective count, Christian Hansen was
a “person in charge of a facility,” as that term is defined by law;
...
Fourth, that Mr. Hansen (1) knew that the described release had occurred, (2)
knew that the wastewater released contained a reportable quantity of mercury, and
(3) knew that the release was not allowed by any federal permit.
R4-98 at Charge 23.
65
...
A “person in charge’s” control over a facility need not be sole or
exclusive. There may be several “persons in charge” of the same
facility. It is only necessary that the individual have or share such
control of the facility where the release occurred.
R22-201-02.
In clarifying the definition of “operator” under CERCLA, the Supreme Court
instructs that “an operator is simply someone who directs the workings of, manages,
or conducts the affairs of a facility . . . specifically related to pollution, that is
operations having to do with the leakage or disposal of hazardous waste, or decisions
about compliance with environmental regulations.” United States v. Bestfoods, 524
U.S. 51, 66-67, 118 S. Ct. 1876, 1887 (1998). The district court’s instructions
required that the jury find that the defendant under consideration knew of the release
and knew that the release contained hazardous waste, and failed to report it.
There is no indication in the record that Taylor requested an instruction on the
definition of “tank.” Hansen requested an instruction on the existence of the
wastewater treatment exemption to the 90-day labeling and disposal period.39 R22-
68-69. The judge subsequently included such an instruction:
Tanks which are part of a wastewater treatment system that is
39
Hansen’s counsel explained that he “just want[ed] the jury to understand that if the water
is handled through the wastewater system, it’s exempt from the ninety-day labeling and all these
other things.” R22-69. The government counsel responded: “If it’s in a tank. It needs to be clear
that if it’s in a tank and it can be treated in a wastewater system–.” Id. The district judge asked that
the language be provided to him in writing, and Hansen’s counsel agreed to do so. Id.
66
subject to regulation under the CWA need not have a RCRA permit so
long as they are used for the treatment of wastewater. Therefore,
wastewater which is being held temporarily in such tanks is not subject
to these RCRA permitting requirements.
Id. at 199.
A “tank” is defined by the regulations as “a stationary device, designed to
contain an accumulation of hazardous waste which is constructed primarily of non-
earthen materials (e.g. wood, concrete, steel, plastic) which provide structural
support.” 40 C.F.R. § 260.10. Although Taylor maintains that the instruction would
have helped the jury understand that the cellroom was a tank and part of the
wastewater system, the evidence showed that the berms, used in the cellroom to
contain the wastewater, were constructed of dirt. R19-256. Taylor neither requested
a definition of “tank” in the instructions nor was prejudiced by the failure to of the
court to provide it.
E. Sentencing Guidelines
We review the district court’s factual findings for clear error and its
application of the law to those facts de novo. United States v. Quinn, 123 F.3d 1415,
1424 (11th Cir. 1997).
1. Downward Departure
a. Christian Hansen
Hansen argues that the district court erred by concluding that it lacked the
67
authority to depart under U.S.S.G. § 5K2.0. He maintains that, at a minimum, the
district court was ambiguous as to whether it believed that it had the authority to
grant a downward departure and that any ambiguity must be resolved in his favor.40
At sentencing, Hansen argued, inter alia, that he should be granted a downward
departure pursuant to U.S.S.G. § 5K2.0 because the factors of the case took it outside
of the heartland of cases to which the guidelines apply. R13-5-8. He argued that a
departure was warranted because the government agencies monitored and knew of
the environmental violations, and that this situation was not where Congress intended
to impose the high penalties for environmental violations. Id. at 6. After sentencing
Hansen, the district judge stated that he “d[id] not really find any actual basis for a
departure from the guidelines, even though I might, if I had discretion, found
otherwise.” Id. at 52.
We “generally may not review the merits of a district court’s refusal to grant a
downward departure, [but] may conduct a de novo review of a defendant’s claim that
the district court mistakenly believed it lacked the authority to grant such a
departure.” United States v. Mignott, 184 F.3d 1288, 1290 (11th Cir. 1999) (per
40
Amicus curiae The Washington Legal Foundation also raises the issue that Hansen’s
sentence must be vacated because the environment sentencing laws were unlawfully promulgated
and impose patently unreasonable sentences. However, this issue was not considered before the
district court and will not be considered on appeal. United States v. Allegheny-Ludlum Indus., 517
F.2d 826, 840 n. 13 (5th Cir. 1975) (noting that it would not consider issues briefed by amicus
curiae which were not raised in the district court).
68
curiam). Where the district court expresses ambivalence about its authority to depart
from the guidelines, we review the record to determine the district court’s
understanding. See United States v. Webb, 139 F.3d 1390, 1394-95 (11th Cir. 1998)
(noting that “our independent review of the sentencing transcript reveals that the
sentencing judge, at the very least, was bewildered and ambivalent as to whether the
guidelines authorized a downward departure” and that “on balance, . . . the record
more strongly suggests that the court believed that it was not authorized to depart
downward.”). If there is no indication that the district court misapprehended its
authority, “we assume that the sentencing court understood it had authority to depart
downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).
Hansen was sentenced after Randall. During Randall’s sentencing hearing, the
district judge acknowledged his authority to depart. R9-9. Hansen’s sentencing
transcript shows that the district judge permitted extensive discussion of whether the
circumstances of Hansen’s case were outside the heartland of cases to which the
guidelines had been applied, and that neither party argued that the district court
lacked the authority to depart downward. There is nothing in the record that shows
that the district court misapprehended its authority to depart downward. Therefore,
we assume the sentencing court understood its discretionary authority to grant a
downward departure but decided not to exercise that authority. Id. at 1195. Because
the district court understood that it had the authority to depart, we are unable to
69
review the district court’s denial of Hansen’s request for a downward departure.
b. Randall Hansen
Randall contends that the district court erred in not granting his requests for a
downward departure under §§ 5K2.0 and under 5K2.11. As to a departure under §
5K2.0, he argues that his case fell outside the heartland of other environmental
prosecutions and that he was at all times operating under the authority of the U.S.
Bankruptcy Court and upon the advice of his environmental counsel. As to a
departure under § 5K2.11, he maintains that the district court erred in concluding that
financial factors were not a “perceived greater harm” which could trigger a departure
and in not understanding that the record supported his belief that a greater
environmental, as well as economic, harm would occur at the site and in the
community if the plant failed to remain operational.41
At Randall’s sentencing, the district judge stated:
[T]he Court acknowledges that it does have authority to depart
from the guidelines pursuant to [§§ 5K2.0 and 5K.211] if it finds that the
41
Randall also argues that the sentencing guidelines, as applied to environmental crimes,
are arbitrary and were unlawfully promulgated. Randall did not raise this issue at the sentencing
hearing but addressed it in a supplemental memorandum in aid of sentencing. R9-228-8. Randall’s
sentencing hearing initially commenced on 2 June 1999, and was continued on 1 July 1999. On 1
July 1999, the hearing was called to order at 10:01 AM, and recessed at 10:24 AM. The
supplemental memorandum is not referenced at the sentencing hearing and was filed at 12:11 PM
on 1 July 1999. Therefore, it does not appear that this was considered by the district court. Because
the issue was not considered by the district court, it will not be considered by this court. Fed.
Deposit Ins. Corp. v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993).
70
circumstances of this case warrant such a departure.42
42
It appears that, although the district judge did not find that the circumstances warranted
a departure, he nonetheless considered Randall’s arguments. During the hearing, the district judge
continued:
As to the Defendant’s arguments concerning lesser harm, I’m not particularly
impressed with that. For the Court to consider a departure under this section
[§5K2.11], the Court would have to find either that the Defendant committed the
crime in order to avoid perceived greater harm or that the Defendant’s conduct does
not cause or threaten the harm or evil sought to be prevented by the laws prohibiting
the offenses at issue.
Now as to that first prong, the Defendant has failed to produce evidence,
other than his own statement, that closing the LCP plant would have caused a greater
harm than allowing it to continue operating in the unsafe manner. His argument, as
I understood it, is based upon financial reasons. As I recall, he stated that there was
compelling societal interest in keeping the plant open and its three hundred
employees working.
While sympathetic to the plight of the employees who would have, and
eventually did, lose their jobs, that does not, and I do not believe that it justifies
subjecting the employees and the community to the risk of operating an unsafe chlor-
alkali plant.
The Court finds that financial factors are not a perceived greater harm. And,
therefore, no downward departure is warranted in that instance.
As to the second prong, the guidelines permit a downward departure where
the conduct may not cause or threaten the harm or evil sought to be prevented by the
law prescribing the offense at issue.
The environmental laws for which the Defendant was convicted were enacted
to protect human life in the environment. Therefore, the Defendant’s conduct was
the type of conduct which the environmental laws sought to prevent. And as such,
the Court finds that the circumstances of this offense do not warrant a downward
departure under 5K2.11 of the guidelines.
R14-9-11.
As to the request for a departure under § 5K2.0, he stated:
[I]n order for the Court to find that the Defendant’s case falls outside the
heartland, the Court has to find that this is an unusual case where there is something
atypical about the Defendant or the circumstances surrounding the commission of the
crime. I simply cannot make such a finding.
I find that the circumstances of these offenses are those contemplated by the
Sentencing Commission in the formulation of the guidelines. And further, I find that
there are no factors which take this case outside the heartland of the environmental
guidelines. Accordingly, the Court finds that no departure is warranted under 5K2.0
of the guidelines.
Id. at 11.
71
R9-9. He set forth the requirements for a departure under the guidelines, but found
that no departure was warranted under either provision.
We may not review a district court’s refusal to grant a downward departure
unless the court mistakenly believed that it lacked the authority to grant such a
departure. Mignott, 184 F.3d at 1290. Despite Randall’s argument to the contrary,
the district judge indicated his understanding that financial factors could be a
“perceived greater harm” by weighing the harms associated with closing the plant
and putting 300 employees out of work against keeping the plant open as an unsafe
chor-alkali plant and keeping the employees working, but found that the financial
factors were not a harm greater than the harms associated with the operation of an
unsafe chlor-alkali plant. R14-9-11. Because the district court acknowledged that it
had the authority to depart, we lack the jurisdiction to review the decision.
b. Taylor
Taylor also argues that the district court erred by not granting him a downward
departure under §§ 5K2.0 and 5K2.11. As to the request for a departure under §
5K2.0, he maintains that his case fell outside the heartland of environmental cases.
As to the request for a departure under § 5K2.11, he contends that he believed that
closing the plant would cause a greater environmental harm that continuing
operations.
72
Taylor presented each of his issues at sentencing.43 R12-20-21. The district
judge asked the probation officer to comment on Taylor’s requests for a departure,
and to specifically address Taylor’s cooperation during the cleanup efforts. Id. at 21-
22. The probation officer responded that there were no grounds for a downward
departure.44 Id. at 41. The district judge commented:
I am equally bound by the guidelines and by the law. And I do not have
much discretion.
...
And I just cannot find a basis for departure under the guidelines,
inasmuch as the facts as found are of the kind contemplated by the
Sentencing Commission.
Id. at 42-43.
Because there is nothing in the record that indicates that the district court
misapprehended its authority to depart downward, we assume that the district court
understood its authority to depart and decided not to exercise its discretionary
43
Taylor adopted Hansen’s arguments for a departure, but added that, as to the request for
a departure under § 5K2.11, that they had “prevented a greater harm from merely shutting down the
plant without the proper decommissioning” based on their belief that “these problems, maintenance
problems, could be addressed, the jobs could be saved, and the business could continue.” R12-20-
21. He “also call[ed] the Court’s attention . . . to Mr. Taylor’s conduct following the
decommissioning of the plant.” Id.
44
The probation officer noted that Taylor’s cooperation should not be a factor since he was
a contract, paid employee. Id. at 24. In response to Taylor’s argument that “there’s a lesser harm
in keeping somebody employed than dumping hundreds of thousands of gallons of contaminated
water into a marsh,” he commented that “there was a tremendous amount of harm done to the
environment. . . They’re not looking at the effects. . . . [The] area was closed off by the Georgia
Environmental Protection department because the fish and the seafood in there w[ere] contaminated.
We will never know what damage this has all done.” Id. at 40.
73
authority. Therefore, we lack jurisdiction to address the district court’s decision not
to depart.
III. CONCLUSION
After reviewing the record and carefully considering the briefs and oral
argument, we conclude that the defendants’ convictions are supported by the
evidence, and that the district court did not err in the evidentiary rulings, the jury
instructions, or at sentencing. Accordingly, we AFFIRM.
74
United States v. Christian A. Hansen
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2001-08-24
Citations: 262 F.3d 1217
Copy CitationsCombined Opinion