United States v. James Mathis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0354p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 12-6256/6354

v.

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JAMES MATHIS (12-6256) and DONALD

Defendants-Appellants. N-

FILLERS (12-6354),

Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 1:09-cr-00144—Curtis L. Collier, Chief District Judge.

Argued: December 5, 2013

Decided and Filed: December 32, 2013

Before: SILER, COLE, and COOK, Circuit Judges.

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COUNSEL

ARGUED: Robin R. Flores, Chattanooga, Tennessee, for Appellant in 12-6256. Leslie

A. Cory, Chattanooga, Tennessee, for Appellant in 12-6354. Matthew T. Morris,

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF: Robin R. Flores, Chattanooga, Tennessee, for Appellant in 12-6256. Leslie

A. Cory, Chattanooga, Tennessee, for Appellant in 12-6354. Matthew T. Morris,

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, Allen M.

Brabender, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

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OPINION

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COLE, Circuit Judge. After a three-week jury trial, James Mathis and Donald

Fillers were convicted of conspiracy, 18 U.S.C. § 371, and violations of the Clean Air

Act, 42 U.S.C. § 7413(c). Fillers was also convicted of making a false statement,

1

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18 U.S.C. § 1001(a)(2), and obstruction of justice, 18 U.S.C. § 1519. The district court

denied Fillers’s motion to suppress and Mathis’s and Fillers’s motions for a judgment

of acquittal. It sentenced Mathis to 18 months’ imprisonment and Fillers to 44 months’

imprisonment. Mathis and Fillers raise several challenges to their convictions and

sentences, but ultimately we affirm.

I. BACKGROUND

Donald Fillers (“Fillers”) and his brother Gary formed Watkins Street Project,

LLC, in 2003 to develop an unused factory site in Chattanooga, Tennessee. They

planned to demolish the factory and sell the salvageable materials, but they knew the site

contained asbestos. Asbestos is a fibrous mineral formerly used as insulation, and some

forms of asbestos crumble and release microscopic fibers into the air when disturbed.

Inhalation of asbestos fibers can cause fatal and debilitating illnesses.

The Clean Air Act lists asbestos as a hazardous pollutant, and the Environmental

Protection Agency has developed work-practice standards for the demolition of

buildings that contain asbestos. The standards require the removal of all asbestos before

any demolition that would dislodge the material. These standards also specify removal

procedures. For example, asbestos materials must be wetted before removal, lowered

to the ground rather than dropped, labeled, and disposed of at a site authorized to accept

asbestos. Owners and operators of demolition activities must also give notice, including

a description of the location and amount of asbestos, to the EPA ten days before

demolition. The Clean Air Act makes it a crime for individuals to violate these

standards.

Gary hired Alternative Actions, Inc., a certified asbestos surveying company, to

estimate the amount of asbestos at the factory site and the cost of removal. The survey

revealed a large amount of duct, pipe, and equipment insulation containing asbestos.

Alternative Actions estimated that it would cost $214,650 to remove the contaminated

material safely.

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Fillers then hired Mathis Companies, Inc., a demolition company owned by

James Mathis, to tear down the factory in exchange for some of the salvageable

materials. Mathis was also required to use a certified contractor to remove the asbestos.

Mathis requested a bid from SCI Remediation, which toured the site, reviewed the

Alternative Actions survey, and estimated that it would cost $129,250 to remove the

asbestos. Fillers believed that the removal could be done for much less—about $20,000

total—so he rejected the SCI bid and told Mathis that Watkins Street would find a

different asbestos-removal company.

Fillers asked two other asbestos-removal companies to submit estimates. He

provided the Alternative Actions survey to one company, which returned a bid of

$126,542. Fillers provided an incomplete version of the survey to the other company,

which ultimately decided not to bid. Gary then contacted ADC Systems, an

asbestos-removal company managed by Halbert Warden and his father. Fillers told

ADC that no asbestos survey had been prepared. Based on an “initial walk through,”

ADC estimated the cost of removal at $28,900, and the Fillers brothers accepted the bid.

In August 2004, Mathis visited the Chattanooga-Hamilton County Air Pollution

Control Bureau to submit the 10-day notice and permit application for demolition. The

Bureau works with the EPA to enforce the Clean Air Act in Chattanooga. The estimated

amount of asbestos in the notice was far less than in the Alternative Actions survey.

Kathy Jones, the Bureau’s air monitoring manager and asbestos coordinator, accepted

the notice from Mathis and later contacted Fillers to verify the amount of asbestos and

request a copy of the survey. Fillers did not send the survey, but instead provided a

revised asbestos estimate that was still far less than the survey’s estimate. Jones

approved the application and sent permits to Warden, Mathis, and Gary.

ADC began removing the asbestos. ADC’s initial contract was limited to the

factory’s boiler room, but Warden noticed “mass bunches of asbestos” outside the ADC

work area. Warden mentioned the additional asbestos to Gary, and Watkins Street

increased the scope of ADC’s work order. This change, however, still did not cover all

the asbestos at the site: Warden later testified that ADC removed “[m]aybe, like,

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1/100th” of the asbestos listed in the Alternative Actions survey. After finishing the

work they were authorized to perform, ADC left the site.

Watkins Street hired temporary laborers to remove debris and salvage materials

from the site. These workers were not equipped with protective gear or trained to

remove asbestos. Fillers helped supervise the team, which did not take special

precautions with material (such as insulation) that likely contained asbestos. The

workers used power tools to cut through pipes that were wrapped in insulation, threw

debris out of windows so that it fell to the ground, removed insulation by hand, and

otherwise disposed of insulation without wetting, containerizing, or labeling it.

Mathis and his company would then demolish each section the salvage team

cleared. The salvage team worked in the afternoons and at night; the demolition team

worked in the mornings. Mathis knew, however, that the salvage team was improperly

removing asbestos because Warden told him as much when he returned to the site after

ADC had finished its work. During this visit, Warden pointed out loose materials

containing asbestos strewn about the site. Mathis replied, “Halbert, Don is not going to

pay for anything else.” Warden later visited the site two more times, each time telling

Mathis that there was asbestos “all over the ground.” Mathis responded that Fillers

would not pay for further asbestos removal and that he was tired of arguing with Fillers

about it. Mathis then continued demolishing the factory.

The demolition and salvage teams’ work dispersed dust throughout much of the

site and surrounding neighborhood. An employee of a nearby daycare facility later

testified that the air in the area was so contaminated that the children at the daycare were

unable to play outside.

In September 2005, an investigator from the Air Pollution Control Bureau, John

Schultz, observed the site during a routine patrol. He later testified that the site “looked

like a bomb had gone off,” and that there were “debris piles over the entire city block.”

Because of disagreements between Mathis and Fillers, no one had worked on the site for

at least a month. There were no signs, fences, or security guards to keep the public off

of the site. Schultz thought the debris contained asbestos, so he briefly explored the

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demolition area. He returned the next day with Kathy Jones, who reported that “[t]he

site appeared to be littered with suspect asbestos-containing materials.” They collected

samples of the materials, which later tested positive for asbestos.

The Bureau then contacted the EPA, which sent an emergency response

coordinator to the site. The EPA coordinator declared the site an imminent threat to

human health and the environment and ordered Watkins Street to clean up the debris

using a certified asbestos-removal company. Watkins Street completed the cleanup in

October 2005.

The United States charged Mathis and Fillers, among others, with conspiracy to

defraud the United States and to violate the Clean Air Act (count 1), substantive

violations of the Clean Air Act (counts 2–4), and making false statements (counts 8 and

9). The United States also charged Fillers with other substantive violations of the Clean

Air Act (counts 5–7) and obstruction of justice (count 11).

A jury convicted Mathis of conspiracy and two substantive violations of the Act:

failure to file an accurate 10-day notice, and commencement of demolition prior to

removing asbestos from the site. After a week-long sentencing hearing, the district court

determined that Mathis’s guidelines range was 27–33 months. The court sentenced

Mathis to 18 months’ imprisonment.

The jury convicted Fillers of conspiracy, six substantive violations of the Act,

making false statements, and obstruction of justice. The substantive violations included

the notice and removal violations, as well as failure to have present an individual trained

in the work-practice standards during demolition, failure to wet the material containing

asbestos during removal, failure to lower the material properly, and failure to

containerize and timely dispose of the material. The district court determined that

Fillers’s guidelines range was 46–57 months, and it sentenced him to 44 months’

imprisonment.

Mathis and Fillers now challenge their respective convictions and sentences. We

have jurisdiction to hear the appeal under 18 U.S.C. §§ 1291 and 3742.

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II. ANALYSIS

Fillers attacks his convictions and sentence with arguments in four areas:

warrantless search and seizure, admission of certain testimony at trial, sufficiency of the

evidence, and calculation of sentencing guidelines. Mathis joins Fillers with arguments

in the last three areas. We address each in turn.

A. Warrantless Search and Seizure

Fillers asks us to reverse the district court’s denial of his motion to suppress the

asbestos-containing samples. When considering a motion to suppress, we review a

district court’s findings of fact for clear error and its conclusions of law de novo. United

States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). We also consider the evidence “in

the light most likely to support the district court’s decision.” Id. (citation and internal

quotation marks omitted).

The district court adopted the magistrate judge’s report and recommendation,

which found that the Bureau employees’ warrantless search and seizure did not violate

the Fourth Amendment. Entry onto and search of the property was lawful, the

magistrate judge reasoned, because Fillers had no subjective expectation of privacy in

the site and because the site qualified as an “open field.” Seizure of the samples was

lawful, the magistrate judge concluded, under the plain view doctrine. We agree.

1. Warrantless Searches

When challenging the admission of evidence under the Fourth Amendment, it is

the defendant’s burden to show that he had a legitimate expectation of privacy in the

area searched or items seized. United States v. Mastromatteo, 538 F.3d 535, 544 (6th

Cir. 2008). If he does not meet this burden, the defendant lacks standing for his

challenge. Id. A legitimate expectation of privacy exists when a defendant, “by his

conduct, has exhibited an actual (subjective) expectation of privacy”—that is, has sought

“to preserve something as private”—and when his “subjective expectation of privacy is

one that society is prepared to recognize as reasonable.” Smith v. Maryland, 442 U.S.

735, 740 (1979) (internal quotation marks and brackets omitted).

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A defendant may exhibit a subjective (though not necessarily legitimate)

expectation of privacy when, for example, he places trash in an opaque garbage bag and

sets it on the street for the garbage collector to take to the dump, see California v.

Greenwood, 486 U.S. 35, 39 (1988); maintains “elaborate security around the perimeter

of [a] complex barring ground-level public views of these areas,” Dow Chem. Co. v.

United States, 476 U.S. 227, 229 (1986); erects a ten-foot fence to conceal his yard from

street-level views, California v. Ciraolo, 476 U.S. 207, 211 (1986); closes himself in a

phone booth to place a call, Katz v. United States, 389 U.S. 347, 352 (1967); stows a

zipped luggage bag in the bedroom closet of an apartment at which he was temporarily

staying, United States v. Waller, 426 F.3d 838, 844 (6th Cir. 2005); or hides cocaine in

a shoe box in the basement rafters of the duplex in which he lived, United States v. King,

227 F.3d 732, 754 (6th Cir. 2000) (Cole, J., concurring). Key to these cases is that the

defendant showed, not merely by his statements during litigation, but by his conduct,

that he sought to preserve something as private.

A defendant’s expectation of privacy in an open field, however, is not recognized

by society as reasonable. Oliver v. United States, 466 U.S. 170, 179 (1984). In other

words, “no expectation of privacy legitimately attaches to open fields.” Id. at 180. What

qualifies as an open field, however, is less clear. The Supreme Court has instructed that

an open field “need be neither ‘open’ nor a ‘field’ as those terms are used in common

speech.” Id. at 180 n.11. The term includes “any unoccupied or undeveloped area

outside of the curtilage.” Id. Curtilage is “the area around the home to which the

activity of home life extends,” id. at 182 n.12, and while business premises too enjoy

Fourth Amendment protections, see See v. City of Seattle, 387 U.S. 541, 543 (1967), we

have not decided whether there is such a thing as “business curtilage.” In Dow

Chemical, the Supreme Court found an industrial plant complex with numerous plant

structures spread over 2,000 acres to fall between open fields and curtilage, “but lacking

some of the critical characteristics of both.” 476 U.S. at 236. The Court ultimately held

that the areas “are not analogous to the ‘curtilage’ of a dwelling for purposes of aerial

surveillance.” Id. at 239. More recently, this court noted that “[t]here may be

circumstances in which the area adjoining a business structure is sufficiently private to

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enjoy a protection analogous to a home’s curtilage,” but “it is clear that areas that adjoin

a commercial building but are accessible to the public do not receive curtilage-like

protection.” United States v. Elkins, 300 F.3d 638, 653, 654 (6th Cir. 2002). In Elkins,

police officers walked down a path next to a commercial building and peered through

an opening in the building to see marijuana plants inside. Id. at 654. Despite a no

trespassing sign on the building, we found the area on which the officers stood to be an

“open field” because it was accessible to the public. Id.

United States v. Rapanos is also instructive. There the defendant, claiming a

Fourth Amendment right to do so, barred state environmental inspectors from entering

his 175-acre property to assess it for the presence of wetlands. 115 F.3d 367, 369 (6th

Cir. 1997). The court held that the following factors had no bearing on whether the

property was an open field: that the property was surrounded by a fence and a tall

hedgerow of cleared debris, that entry onto the land could be made only through a locked

gate, that the land had undergone “extensive alteration and development for one

economic purpose or another and was clearly ‘commercial property,’” and that the

landowner was present. Id. at 373. Indeed, the “rather typical presence of fences, closed

or locked gates, and ‘No Trespassing’ signs on an otherwise open field . . . has no

constitutional import.” Id. at 372; see also Oliver, 466 U.S. at 182 n.13 (“Certainly the

Framers did not intend that the Fourth Amendment should shelter criminal activity

wherever persons with criminal intent choose to erect barriers and post ‘No Trespassing’

signs.”). We found that Dow Chemical undermined entirely the contention that the open

fields doctrine could not apply to land that has been developed or prepared for

development. Rapanos, 115 F.3d at 373. “Nor is the government’s intrusion upon an

open field a ‘search’ in the constitutional sense because that intrusion is a trespass at

common law. The existence of a property right is but one element in determining

whether expectations of privacy are legitimate.” Oliver, 466 U.S. at 183; see also Air

Pollution Variance Bd. of Colo. v. W. Alfalfa Corp., 416 U.S. 861, 865 (1974) (finding

a state health inspector “well within the ‘open fields’ exception,” whether he was “within

or without the premises,” when he stood about two smokestack heights away from the

base of the stack to inspect its smoke). Underpinning the analysis of these cases is the

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Supreme Court’s command in Katz: “What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth Amendment protection.”

389 U.S. at 351.

The searches in this case did not violate the Fourth Amendment because Fillers

has not shown that he had a legitimate expectation of privacy in the property. First, the

magistrate judge correctly concluded that Fillers had not exhibited a subjective

expectation of privacy. Fillers claims an interest in keeping possession of the demolition

materials and excluding others from the site, but his actions undermine this contention.

Fillers did not post any signs, erect a fence or other barrier, hire a security guard, or

monitor the site to exclude others. On at least one side of the property, anyone could

simply step from the sidewalk onto the site as he or she pleased. And indeed, members

of the public walked across the site and picked through the debris. There was no

evidence of ongoing business, and the only building on the property was partially

demolished and unused. Fillers’s argument that the site’s demolition nature alone

evidences his subjective expectation of privacy is unavailing. As the magistrate judge

found, “[t]he evidence presented at the evidentiary hearing on defendants’ motions to

suppress is unequivocal that defendants took no actions whatsoever to maintain their

privacy in the Watkins Street Property.” The record fully supports this statement; Fillers

did not try to keep the property private. Accordingly, Fillers has not met his burden of

establishing a subjective expectation of privacy.

Second, even if Fillers had a subjective expectation of privacy, that expectation

was unreasonable. The site qualifies as an open field. Though typically found in more

rural areas, an open field need not be a “field.” See Oliver, 466 U.S. at 180 n.11. On the

date of the search, the site was unoccupied and undeveloped (as one might reasonably

understand “undeveloped” in an urban setting), consisting of a partially demolished

building and debris strewn throughout a paved lot. See id. (noting that the term “open

field” includes “any unoccupied or undeveloped area outside of the curtilage”). As in

Dow Chemical and Elkins, the property here is not sufficiently private to enjoy

protection analogous to a dwelling’s curtilage. See Dow Chemical, 476 U.S. at 236, 239;

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Elkins, 300 F.3d at 653, 654. Rather, it is easily accessible to the public. And Rapanos

teaches that the property’s commercial status has no bearing on whether the property is

an open field, despite Fillers’s claim to the contrary. Rapanos, 115 F.3d at 373. The

lower court did not err in finding the site an open field.

Futhermore, even if the property is not squarely an open field, any subjective

expectation of privacy in it by Fillers would still be unreasonable. As the Supreme Court

has held, the government has “greater latitude to conduct warrantless inspections of

commercial property” because “the expectation of privacy that the owner of commercial

property enjoys in such property differs significantly from the sanctity accorded an

individual’s home.” Donovan v. Dewey, 452 U.S. 594, 598–99 (1981). And most

importantly, Fillers knowingly exposed the entire site to public access by not doing

anything to exclude the public. See Katz, 389 U.S. at 351. Allinder v. Ohio, 808 F.2d

1180 (6th Cir. 1987), offered by Fillers without much analysis, does not counsel

differently. See id. at 1185 (noting that no case to date had used the open fields doctrine

to justify “a search of personal effects or of a commercial structure in a field”). The

property here was undeserving of Fourth Amendment protection; Fillers’s objection to

the warrantless searches therefore fails.

2. Warrantless Seizures

Warrantless seizures presumptively violate the Fourth Amendment, but under

certain circumstances an officer may seize evidence in plain view without a warrant.

Arizona v. Hicks, 480 U.S. 321, 326–27 (1987). Four factors must be satisfied: (1) the

item seized must be in plain view, (2) the item’s incriminating character must be

immediately apparent, (3) the officer must lawfully be in the place from where the item

can be plainly seen, and (4) the officer must have a lawful right of access to the item.

Horton, 496 U.S. at 136–37. Because the magistrate judge and district court did not

clearly err in finding that the seized pipe-wrap samples were lying on the site in plain

view, and because Fillers had no legitimate expectation of privacy in the site, supra,

Fillers is unable to convincingly challenge the first, third, and fourth prongs of the

warrantless seizure test.

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We consider four other factors, none necessary but each instructive, to assess the

“immediately apparent” prong: (1) the nexus between the seized item and the items

particularized in the warrant, (2) whether the intrinsic nature or appearance of the item

gives probable cause to believe it is associated with criminal activity, (3) whether the

officers, at the time of discovery of the item and with the facts then available, can

determine probable cause of the item’s incriminating nature, and (4) whether the officer

can recognize the incriminating nature of the item as the result of his instantaneous

sensory perception. Garcia, 496 F.3d at 510–11. We have held that “when an item

appears suspicious to an officer but further investigation is required to establish probable

cause as to its association with criminal activity, the item is not immediately

incriminating.” United States v. McLevain, 310 F.3d 434, 443 (6th Cir. 2002) (internal

quotation marks omitted). But probable cause does not require knowledge that evidence

is contraband. Id. at 441. Instead, “probable cause is a flexible, common-sense

standard. It merely requires that the facts available to the officer would warrant a man

of reasonable caution in the belief that certain items may be contraband or stolen

property or useful as evidence of a crime; it does not demand any showing that such a

belief be correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742

(1983) (internal citations and quotation marks omitted). In making the probable cause

determination, we look at the collective knowledge of the government agents. United

States v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990), abrogated on other grounds by

Horton v. California, 496 U.S. 128 (1990). Moreover, that an officer’s initial impression

was reinforced by subsequent investigation does not undermine the initial existence of

probable cause. See United States v. Rodriguez, 596 F.2d 169, 171, 175 (6th Cir. 1979)

(subsequent chemical testing for heroin); United States v. Byrd, 211 F.3d 1270, at *3

(6th Cir. 2000) (unpublished table opinion) (subsequent confirmation that child in

pornographic pictures was underage).

As the magistrate judge explained, John Schultz and Kathy Jones, the Bureau

employees, had probable cause to believe that Fillers had not properly contained the

asbestos when the buildings were demolished. Both Schultz and Jones were trained to

identify suspected asbestos-containing materials, and both knew that old

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buildings—such as the partially demolished one remaining on the property—typically

have asbestos wrap on pipes. Schultz and Jones saw pipe wrap material they recognized

as likely to contain asbestos. And because Fillers and his company had applied to the

Bureau for an asbestos removal permit, Schultz and Jones knew that the buildings on the

property contained asbestos in the pipe wrap. In other words, the Bureau employees

could immediately recognize the incriminating nature of the seized pipe-wrap samples,

and they had probable cause to believe the items were associated with criminal activity.

Further investigation later confirmed their beliefs, but probable cause was present before

the seizure. See Rodriguez, 596 F.2d at 171, 175. Accordingly, the plain view doctrine

permitted Schultz and Jones to seize the pipe-wrap samples without a warrant. Fillers’s

argument that the government may not use the open fields doctrine to justify the seizure

of property is misplaced, since the seizure is justified by the plain view doctrine.

We affirm the district court’s denial of Fillers’s motion to suppress.

B. Trial Testimony on Alleged Health Effects and Daycare Facility

Fillers challenges testimony about asbestos’s negative health effects, and both

Mathis and Fillers challenge testimony revealing the presence of a daycare facility near

the site.

1. Alleged Health Effects Testimony

Fillers contends that evidence of asbestos’s negative health effects should have

been excluded as irrelevant and unfairly prejudicial under Federal Rules of Evidence 402

and 403. He challenges statements made by three of the government’s twenty-three

witnesses. See Test. Pamela McIlvaine1; Test. Richard Jardine2; Test. Peggy Jean

1

Q: Are you familiar with a term called air sampling? What is that?

A: At a lot of work sites they set up air sampling. In a lot of ways that mitigates concerns of the

public, if they can show that air levels are at a certain level. Under the asbestos NESHAP, the

sampling that they talk about for the thorough sample inspection is bulk sampling, it’s not air

sampling. There’s not a safe level of asbestos exposure that’s been established. So there’s no

provisions under the asbestos NESHAP that says if you have air sampling that shows asbestos

in the air below a certain level that that’s okay. There isn’t a safe level.

...

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Forney.3 Fillers did not object when this testimony was introduced, so we review its

admission for plain error. United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000).

It was not plain error for the district court to permit these passing comments.

First, the statements arguably were relevant. McIlvaine’s and Jardine’s testimony helped

the jury understand part of the purpose of the asbestos regulations and work-practice

standards, and Forney’s testimony helped establish her credibility as the expert chemist

who confirmed that the samples contained asbestos. Second, the statements were not

unfairly prejudicial, given the likelihood that the jurors already knew that asbestos is

dangerous. And regardless, the district court was not clearly required to find that any

such danger of unfair prejudice substantially outweighed the probative value of this

testimony. Finally, any error in permitting this evidence was harmless because Fillers

has not shown that this testimony, in light of the other evidence, had a substantial or

Q: Please explain to the jury what asbestos is, generally.

A: Asbestos is a naturally occurring mineral, and the microscopic fibers are very, very small,

much smaller than a hair. You cannot see an individual fiber. And the reason that asbestos fibers

pose health concerns is, they’re so small, and they’re very long compared to how wide they are,

so the filtering mechanisms of your nose and your mouth won't filter out asbestos particles like

it will filter out general -- other dust and particulate particles. So these particles will get past your

nose and your mouth, and they’ll penetrate into your alveolae of your lungs, where the

microphages in your system can’t get rid of them. They will try to absorb them, and actually

form scar tissue around those fibers. And asbestosis -- I mean, asbestos exposure has been

associated with asbestosis, lung cancer, and mesothelioma.

2

Q: With regard to -- You mentioned the asbestos worker training course. What did you learn

in that course in your training?

A: Well, we learned a number of things, specifically how to go about doing an asbestos

abatement. There are specific techniques that you’re supposed to employ when you do that. Also

we learned the hazards associated with asbestos, how it actually -- a single fiber can enter the

alveola and very fine reaches of your lung air passageway, and it causes severe irritation and

quite a lot of distress. It can ultimately -- as one of my friends contracted mesothelioma, it can

cause death.

3

Q: How does a fume hood work?

A: It’s -- a fume hood is a box that is in front of me. There’s a filter in the back. The airflow

comes in front of my face, across the microscopes, and into the filter, so that I am protecting

myself, any fibers go back into the filter instead of front, towards me.

Q: And why are those precautions taken?

A: I do not want to breathe asbestos fibers. I would like to live to an old age without health

problems.

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injurious effect or influence on the jury’s verdict. See Fry v. Pliler, 551 U.S. 112, 116

(2007).

2. Daycare Facility Testimony

Both Mathis and Fillers argue that the district court erred when it denied their

motion at trial to exclude testimony revealing the presence of a daycare center next to

the site. They challenge the testimony of Bettye Spratling, who worked at the center, as

irrelevant, unfairly prejudicial, and needlessly cumulative. We review the district court’s

evidentiary ruling for an abuse of discretion. United States v. Blackwell, 459 F.3d 739,

752 (6th Cir. 2006).

The district court did not abuse its discretion when it permitted Spratling to

testify that she worked at a daycare facility next to the site, saw men throwing materials

into the back of a truck, and had to bring the center’s children inside because of dust

from the demolition activities. At trial, Fillers’s counsel conceded that Spratling’s

observations would be relevant. That Spratling worked at the daycare center was

arguably relevant to the jury’s understanding of the location from which she made her

observations and her response to the dust. Moreover, the jury had already heard about

the existence of the daycare center and the dust—in testimony Mathis and Fillers did not

challenge—rendering Spratling’s testimony on the same not unfairly prejudicial.

Finally, Spratling’s testimony was not needlessly cumulative because it reinforced and

corroborated the testimony of other witnesses regarding the dust and handling of

asbestos at the site. See Stapleton v. Wolfe, 288 F.3d 863, 868 (6th Cir. 2002). We do

not hold a “definite and firm conviction” that the district court committed a clear error

of judgment when it weighed the relevant factors and admitted Spratling’s testimony.

See United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003). And, like the alleged

health effects testimony, any error in permitting this evidence was harmless. See Fry,

551 U.S. at 116.

We therefore affirm the district court’s admission of the health effects and

daycare facility testimony.

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C. Sufficient Evidence for Convictions

Both Mathis and Fillers challenge the sufficiency of the evidence supporting all

counts of their convictions. We review sufficiency of the evidence challenges de novo

to determine “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We

review the denial of a Rule 29 motion based on sufficiency of the evidence under the

same standard. See United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012). “In

making this determination, however, we may not reweigh the evidence, reevaluate the

credibility of witnesses, or substitute our judgment for that of the jury.” United States

v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005).

1. Mathis

Conspiracy. The jury convicted Mathis of conspiracy, in violation of 18 U.S.C.

§ 371. To establish conspiracy, the government must prove the existence of an

agreement to act together in committing an offense and an overt act in furtherance of the

conspiracy. United States v. Milligan, 17 F.3d 177, 182 (6th Cir. 1994). The agreement

may be tacit, rather than explicit, and it may be inferred from circumstantial evidence.

United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009). “A defendant may be guilty

of conspiracy despite possessing limited knowledge of the conspiracy’s scope, details

and membership,” though he must know the purpose of the conspiracy. Milligan,

17 F.3d at 183.

Mathis’s conviction rested on two theories. First, the government alleged that

Mathis conspired to defraud the United States by agreeing with Fillers to file the false

10-day notice, which vastly understated the amount of asbestos at the site. Mathis acted

in furtherance of the conspiracy, the government claimed, by actually filing the notice

with estimates Mathis knew were false. Second, the government alleged that Mathis

conspired with Fillers and others to violate the Clean Air Act, acting in furtherance of

the conspiracy by directing his workers to start demolition before all asbestos had been

safely removed.

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Sufficient evidence ultimately supports both theories. In response to the first,

Mathis contends that he used the Alternative Actions survey to complete other parts of

the 10-day notice but left the asbestos estimate entry blank, and that Fillers or Herbert

Warden later provided the incorrect numbers to Jones. The government’s brief counters

that Jones testified that Mathis gave her the false estimates and “remained convinced”

of this fact on cross-examination, but this characterization of Jones’s testimony is

inaccurate. As the government conceded at oral argument, Jones was never positive that

Mathis gave her the false estimates. Most damning to the government’s case, Jones

stated on cross examination that “what I’ve tried to say all morning . . . is that I am not

sure who gave me those first set of numbers . . . .” Thus, a rational juror could not rely

on Jones’s testimony to prove beyond a reasonable doubt that Mathis gave her the false

estimates.

Nevertheless, the jury had sufficient circumstantial evidence to conclude that

Mathis either provided or purposely omitted the numbers, thus implicating him in the

conspiracy. Mathis admitted that he signed the notice, certifying that the information

provided was “true and complete” to the best of his knowledge. He told an EPA

criminal investigator that he used the Alternative Actions survey, which contained the

amounts and locations of asbestos at the entire site, “to assist him in completing” the

notice. Moreover, a juror could use Mathis’s later statements and actions, discussed

below, as further evidence that he agreed to mislead the government with the notice.

And though the indictment specifically charged Mathis with providing the false numbers

to Jones, any variance resulting from reliance on this omission theory did not affect a

substantial right of Mathis. See United States v. Beasley, 583 F.3d 384, 392 (6th Cir.

2009) (“[S]ubstantial rights of the defendant are affected only when the defendant shows

prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to

the indictment’s sufficiency to bar subsequent prosecutions.” (internal quotation marks

omitted)). A rational juror could infer beyond a reasonable doubt that Mathis, in an

attempt to mislead the government, either deliberately falsified the numbers in the notice

or deliberately left that section of the form blank.

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In response to the second theory, Mathis claims that he did not conspire to violate

the Clean Air Act because he believed ADC had removed all of the asbestos at the site,

and that it was safe to begin demolition. At trial, however, Warden testified that he

repeatedly told Mathis that there was asbestos “all over the ground” during the period

Mathis’s workers were demolishing the plant. Mathis did not alert the Bureau to this

fact or delay demolition. From this testimony, a rational juror could have found that

Mathis agreed with Fillers, albeit perhaps reluctantly, to oversee a demolition process

that violated the EPA’s asbestos-removal regulations. Mathis’s conspiracy conviction

thus must stand.

Clean Air Act Violations. Mathis challenges his convictions under 42 U.S.C.

§ 7413(c)(1), which criminalizes the knowing violation of the EPA’s work-practice

standards. The jury convicted Mathis of failing to file an accurate 10-day notice and of

starting demolition before all asbestos had been removed. See 40 C.F.R. § 61.145(b),

(c)(1). As discussed above, sufficient evidence exists to support Mathis’s conviction for

failing to file an accurate notice. The jury also had ample evidence to conclude that

Mathis knowingly violated the removal requirement. For example, Warden testified that

he told Mathis about asbestos-containing materials scattered throughout the property that

ADC was not hired to abate. Mathis replied that he “was tired of arguing with [Fillers],

that [Fillers] was not paying for no more asbestos removal.” A rational juror could infer

that Mathis knew asbestos was present when he began demolition. Accordingly this

conviction must also stand.

Rule 29 Arguments. Mathis separately challenges the district court’s denial of

his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29,

arguing that sufficient evidence did not support the conspiracy count. We review the

denial of a Rule 29 motion based on sufficiency of the evidence under the same standard

we apply to a challenge to the sufficiency of the evidence on appeal. See Clay, 667 F.3d

at 693. Thus, for the reasons described above, the district court did not err in denying

Mathis’s Rule 29 motion.

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Mathis also argues that the district court improperly took his Rule 29 motion

under advisement when he first presented it at the close of the government’s case. But

Federal Rule of Criminal Procedure 29(b) expressly allows a district court to “reserve

decision” on a Rule 29 motion “where the motion is made before the close of all the

evidence”—precisely what the district court did here. Mathis’s Rule 29 arguments are

therefore without merit.

Accordingly, we find that sufficient evidence supports all of Mathis’s

convictions.

2. Fillers

Conspiracy. Like Mathis, Fillers was convicted of conspiracy. Fillers argues

that there was insufficient evidence that a conspiracy existed and that he knowingly

joined it. Moreover, he contends, the district court erred by relying on his demolition

contract with Mathis as sufficient proof of an agreement to violate the law. Fillers also

claims that he was unaware of any Clean Air Act work-practice violations and that

Halbert Warden’s testimony implicating him should be rejected because it contradicted

Jones’s testimony.

Fillers’s arguments are unavailing. First, ample evidence exists, beyond his

contract with Mathis, that Fillers knowingly acted with others to unlawfully remove

asbestos from the site. At trial Fillers’s brother Gary testified that Fillers was the head

of Watkins Street Project. Warden, the abatement company manager, testified that Gary

told him Fillers “wanted no more asbestos taken out” and that Mathis told him Fillers

“was not paying for no more asbestos removal.” When Warden complained to Fillers

that others were improperly removing asbestos-containing material, Fillers told him “it

was none of [his] business.” And Fillers removed asbestos warning signs, telling

Warden “it was drawing attention and he did not want these up.” Second, the

government need not prove that Fillers knew he was violating the Clean Air Act, just

that he knew the materials contained asbestos and that his actions released asbestos into

the environment. See United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991). The

government produced sufficient evidence to support these points. Finally, that Warden’s

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testimony was inconsistent with Jones’s testimony on a few issues—none essential to

the government’s case—did not require the jury to reject either Warden’s or Jones’s

testimony in whole. See United States v. Bazazpour, 690 F.3d 796, 803 (6th Cir. 2012)

(“[A] jury may properly accept or reject testimony in whole or in part.” (internal

quotation marks omitted)). A rational juror could have inferred beyond a reasonable

doubt the existence of a conspiracy, which Fillers willingly joined, to remove asbestos

from the site illegally.

Clean Air Act Violations. The jury convicted Fillers of failing to file an accurate

10-day notice, starting demolition before all asbestos had been removed, failing to have

present during demolition an individual trained in the work-practice standards, and

mishandling asbestos in various ways. See 40 C.F.R. §§ 61.145(b) (notice requirement),

(c)(1) (removal requirement), (c)(2)–(6) (wetting and lowering requirements), (c)(8)

(trained individual requirement), 61.150 (disposal requirements).

Ample evidence exists again to support Fillers’s convictions. First, for reasons

discussed below, a rational juror could have found that Fillers knew the 10-day notice

contained a false estimate of asbestos. Second, there was substantial evidence to infer

that Fillers knew unabated asbestos remained on the site after demolition began. Fillers

possessed a copy of the Alternative Actions survey, which showed that the site contained

a substantially higher amount of asbestos than the amount ADC was hired to abate. And

Warden testified that Fillers hired him to abate only the asbestos in the boiler room and

around two additional pipes, despite Warden’s telling Fillers that other asbestos existed

outside of the boiler room. Third, Warden was not present when the other asbestos

material was removed, and Fillers has not argued that any other trained individual was

present during this removal. Finally, a number of witnesses testified that workers on the

site did not properly wet or otherwise handle asbestos materials. Fillers was at the site

every day during the demolition; a rational juror could infer beyond a reasonable doubt

that he knew of the improper handling. Simply put, sufficient evidence supported

Fillers’s convictions on the substantive Clean Air Act counts.

Nos. 12-6256/6354 United States v. Mathis, et al. Page 20

False Statement. The jury also convicted Fillers of making a false statement, in

violation of 18 U.S.C. § 1001(a)(2), when he gave an allegedly false asbestos estimate

to Kathy Jones, the Bureau employee. Fillers’s primary challenge to this conviction is

that he did not know the estimate, which was based on the limited ADC survey, was

false. But circumstantial evidence indicates that Fillers knew the contents of the

comprehensive Alternative Actions survey and, therefore, that using the ADC survey

would greatly understate the amount of asbestos present on the site. Fillers was present

at the initial walkthrough for the Alternative Actions survey. The survey was delivered

to Fillers’s brother and business partner Gary, and the Watkins Street Project operating

agreement required Fillers, as the company’s “chief manager,” to “supervise and direct

generally all of the business affairs of the [c]ompany.” And depending on who was

asking for it, Fillers provided the survey in whole, in part, or not at all, or denied its

existence. From these facts, a rational juror could conclude beyond a reasonable doubt

that Fillers knew the contents of the Alternative Actions survey, and thus that he made

a false statement when he told Kathy Jones the site contained much less asbestos than

estimated in the survey.

Obstruction of Justice. Fillers challenges his conviction under 18 U.S.C. § 1519,

which prohibits the knowing alteration, destruction, concealment, or falsification of any

document with the intent to impede, obstruct, or influence a federal investigation or

matter. The government alleged that Fillers obstructed justice when he knowingly gave

Schultz an incomplete version of the Alternative Actions survey, from which he had

removed several pages listing significant quantities of asbestos-containing material, to

impede a potential investigation. Fillers contends that he did not know the version was

missing pages and that, at any rate, Schultz’s investigation was not impeded.

The evidence from trial is sufficient under the Jackson standard to sustain

Fillers’s conviction on this count. Schultz’s copy of the Alternative Actions survey

indicated that he had received it from Fillers. While Schultz initially testified that he had

received all five pages of a spreadsheet contained in the survey, on cross and

redirect—after reviewing his incident report—Schultz stated and remained convinced

Nos. 12-6256/6354 United States v. Mathis, et al. Page 21

that he did not receive two of the five spreadsheet pages from Fillers. Those pages

contained locations and quantities of asbestos-containing materials on the site.

Moreover, Fillers had provided incomplete copies of the survey, and even denied its

existence, at other times. From these facts, a rational juror could find beyond a

reasonable doubt that Fillers intended to provide an incomplete version of the survey in

order to impede Schultz’s impending investigation.

We therefore find that sufficient evidence supports all of Fillers’s convictions.

D. Sentencing Guidelines Range

Mathis and Fillers challenge the district court’s application of two enhancements:

a six-level adjustment under U.S.S.G. § 2Q1.2(b)(1)(A) for engaging in an “ongoing

continuous, or repetitive discharge, release, or emission of a hazardous or toxic

substance or pesticide into the environment,” and a nine-level adjustment under

§ 2Q1.2(b)(2) for conduct “result[ing] in a substantial likelihood of death or serious

bodily injury.” We review the district court’s legal interpretation of the sentencing

guidelines de novo and its factual conclusions for clear error. United States v. Poulsen,

655 F.3d 492, 505 (6th Cir. 2011). A factual conclusion is clearly erroneous only if,

“although there may be some evidence to support the finding, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003). The district

court must find by a preponderance of the evidence that the enhancement applies.

Poulsen, 655 F.3d at 505.

1. Ongoing, Continuous, or Repetitive Release of a Hazardous

Substance

Mathis and Fillers contest the district court’s application of U.S.S.G.

§ 2Q1.2(b)(1)(A). That guideline requires a six-level enhancement if “the offense

resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a

hazardous or toxic substance . . . into the environment.” To trigger the provision, the

government must show that some amount of hazardous or toxic substance contaminated

Nos. 12-6256/6354 United States v. Mathis, et al. Page 22

the environment, but it need not show actual harm to the environment. See United States

v. Bogas, 920 F.2d 363, 368–69 (6th Cir. 1990) (interpreting U.S.S.G. § 2Q1.2 cmt. n.5);

see also United States v. Shurelds, 173 F.3d 430, at *5 (6th Cir. 1999) (per curiam)

(unpublished table opinion) (upholding application of enhancement where “evidence

indicates that asbestos made its way outside of the containment area”). Moreover, we

agree with the Ninth Circuit that direct evidence of a substance’s release into the

environment is not necessary; rather, “in most cases reasonable inferences from available

evidence will suffice to support a conclusion that illegal acts resulted in contamination.”

United States v. Technic Servs., Inc., 314 F.3d 1031, 1047 (9th Cir. 2002), overruled on

other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010).

Mathis and Fillers attack the district court’s factual conclusions, arguing that the

evidence did not sufficiently show that asbestos was released into the environment. We

disagree. The Alternative Actions survey indicated that the site contained far more

asbestos than ADC was hired to abate. Multiple witnesses testified that they saw

workers remove—or that they personally removed—material likely containing asbestos

without wetting it, instead “dump[ing] it out of the back side of the building” and

collecting it into trucks for removal. And materials lying on the ground at the site tested

positive for asbestos after demolition had occurred. To support its findings, the district

court did not rely on the mere presence of dust, which Mathis and Fillers claim was not

shown to contain asbestos. Nor do the tests showing that the air did not contain

asbestos—none conducted at the same time as the improper removal of

asbestos—require us to reverse the district court’s findings. We are not left with the

definite and firm conviction that the court made a mistake in concluding that asbestos

had been released into the environment. Its factual findings were therefore not clearly

erroneous, and its application of the § 2Q1.2(b)(1)(A) enhancement was proper.

2. Substantial Likelihood of Death or Serious Bodily Injury

Mathis and Fillers also disagree with the district court’s application of U.S.S.G.

§ 2Q1.2(b)(2). That guideline requires a nine-level enhancement if “the offense resulted

in a substantial likelihood of death or serious bodily injury.” The district court applied

Nos. 12-6256/6354 United States v. Mathis, et al. Page 23

this enhancement after hearing days of testimony and argument about the potential

health effects of asbestos exposure on the site’s salvage and demolition workers, and it

explained its application in a thorough memorandum. Mathis and Fillers contest the

court’s legal and factual conclusions.

Citing Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005),

the defendants argue that a court should not apply § 2Q1.2(b)(2) unless it finds that

someone suffered substantial exposure to a hazardous material for a substantial period

of time. But Lindstrom—a products liability case—explained how a plaintiff could show

that a product was a substantial factor in causing an injury, not how one could show that

conduct caused a substantial likelihood of an injury. See id. at 492. As the district court

properly recognized, the two inquiries are distinct. Much more on point is United States

v. Thorn, 317 F.3d 107 (2d Cir. 2003), aff’d, 446 F.3d 378, 383 (2006). We agree with

the Second Circuit’s reasoning: a district court should apply the § 2Q1.2(b)(2)

enhancement if the defendant’s offense made it considerably more likely that a person

would die or develop a serious bodily injury. See id. at 117. Actual death or serious

bodily injury need not occur to apply the enhancement. Id. Moreover, the district court

correctly found that a defendant’s conviction for violating a work-practice standard does

not automatically trigger § 2Q1.2(b)(2), though such violations may be relevant to

determining the likelihood of death or serious injury.

Mathis and Fillers further contend that the district court clearly erred in finding

that any exposure to asbestos, no matter how small, is unsafe. They also believe that the

evidence did not sufficiently show that workers were even exposed to asbestos. But

once again, the record does not leave us with the definite and firm conviction that the

district court made a mistake in its findings of fact. The court found that “no exposure

to asbestos is proven safe” and “any exposure to asbestos is potentially hazardous,” that

“workers were necessarily exposed to asbestos fibers released by” their improper

removal procedures, and that “members of the salvage crew were not only exposed to

asbestos fibers, but inhaled them.” Evidence put forth at trial and the sentencing hearing

supports each of these conclusions. Moreover, the court thoughtfully considered and

Nos. 12-6256/6354 United States v. Mathis, et al. Page 24

weighed the testimony from the parties’ experts, finding the government’s toxicologist

more persuasive. Though Mathis and Fillers strongly dispute that expert’s conclusions,

we see no clear error in the court’s assessment. See United States v. Yi, 704 F.3d 800,

806–07 (9th Cir. 2013) (finding no clear error where the district court “both considered

and permissibly gave little or no weight to the defense expert’s opinion” regarding the

potential harm of asbestos exposure). The district court properly applied the

§ 2Q1.2(b)(2) enhancement.

3. Minimal or Minor Role, and Alleged Enhancement for Acting

Without or in Violation of a Required Permit

Mathis separately argues that he deserved a reduction in his guidelines range

because he was a “minimal” or “minor participant in the criminal activity.” See U.S.S.G.

§ 3B1.2. A minimal participant is “plainly among the least culpable of those involved

in the” criminal activity, and a minor participant is “less culpable than most other

participants, but [one] whose role could not be described as minimal.” Id. cmt. nn. 4, 5.

Mathis bore the burden of proving by a preponderance of the evidence that he was

entitled to such a mitigating-role reduction. United States v. Salgado, 250 F.3d 438, 458

(6th Cir. 2001). He did not meet that burden here. At the very least, Mathis directed day

after day of demolition knowing the site still contained asbestos, and he signed the false

10-day notice that misled the Bureau. It was not clearly erroneous for the district court

to deny Mathis a mitigating-role reduction.

Mathis raises a final challenge to his sentence by claiming that “the trial court

appears to have applied” a 2-level enhancement under § 2Q1.2(b)(4) for the

“transportation, treatment, storage, or disposal [of a hazardous substance] without a

permit or in violation of a permit.” But the district court did not actually apply this

enhancement. Mathis’s PSR recommended not applying the enhancement, and the

government objected. At sentencing, after argument on the subject, the court

unequivocally denied the objection. Mathis does not argue that his sentence was

improperly calculated or that the district court applied the enhancement despite its

intention not to do so. This argument is therefore without merit.

Nos. 12-6256/6354 United States v. Mathis, et al. Page 25

III. CONCLUSION

We affirm the district court’s denial of Fillers’s motion to suppress the asbestos-

containing samples, the district court’s admission of the challenged health effects and

daycare facility testimony, Fillers’s and Mathis’s convictions, and the district court’s

sentencing decisions.