Vidrine v. United States

TRIAL RULING

DOHERTY, District Judge.

I. Background

This matter involves claims brought by plaintiffs, Hubert P. Vidrine, Jr. and Tammy J. Vidrine, against defendant, the United States of America, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Hubert Vidrine asserts a claim for malicious prosecution; his wife, Tammy Vidrine, asserts a claim for loss of consortium. 1 The claims are based on the actions of investigative and law enforcement officers of the U.S. Government, acting in the scope of their employment. Trial of this matter was to the bench, commencing on June 7, 2011, and closing arguments being heard on June 24, 2011. 2

Plaintiffs claim on September 5, 1996, agents of the Federal Bureau of Investigation, the Environmental Protection Agency, the United States Marshal Service, the United States Coast Guard, and the Louisiana State Police executed a search warrant on Canal Refining Company, a facility for which Mr. Vidrine acted as manager. On December 14, 1999 (more than three years after execution of the search warrant), Mr. Vidrine was indicted on one count of knowingly storing hazardous waste on the property of Canal Refining Company, in violation of 42 U.S.C. § 6928 (d)(2). Shortly thereafter, Mr. Vidrine was taken into custody and subsequently released on bond. On September 17, 2003 (almost four years after the return on the indictment, more than seven years after the execution of the search warrant, and one month before the criminal trial was scheduled to commence), the Government filed a motion to voluntarily dismiss the indictment against Mr. Vidrine, stating, “Developments in this matter since the Indictment have revealed facts and circumstances which, in the interest of justice, warrant dismissal of the Indictment.” See U.S. v. Trinity Marine Baton Rouge, Inc., et al., W.D.La. (J. Melangon), Docket No. 6:99-cr-60053, Document No. 157. On September 18, 2003, the motion was granted by Judge Tucker Melangon, who presided over the criminal proceedings. 3

On July 23, 2007, plaintiffs filed this civil suit in this Court, based upon the foregoing events; extensive and acrimonious discovery ensued before the magistrate judge, a vigorous motion practice was pursued, and, ultimately, almost three weeks of testimony and over 15,000 documents were referenced or presented to the Court in one manner or another. Having heard all testimony, arguments of counsel, and reviewed all evidence, this Court now makes the following Ruling.

II. Jurisdiction

Jurisdiction in this matter is premised upon 28 U.S.C. § 1346 (b)(1) (“United *556 States as defendant”), which provides in pertinent part:

“[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

III. Stipulations and Admissions

Plaintiffs admit their damages cannot exceed $5,180,929.18, as that is the amount of damages asserted in their administrative claim. [See e.g. Doc. 244, p. 5] Additionally, at the trial of this matter, plaintiffs affirmed in open court that their claims for damages are limited to only those damages incurred between the years 2000 and 2010; thus, plaintiffs are not pursuing any claim for damages before 2000 or after 2010. Prior to and during trial, plaintiffs affirmed that although there likely existed probable cause to investigate whether or not a criminal offense had occurred or was occurring at Canal Refinery, at no time did there exist probable cause to indict Hubert Vidrine. Additionally, at the pretrial conference, all counsel stipulated the first three of the necessary six elements of a malicious prosecution claim, as identified by the applicable Louisiana law, had been met in this matter. See Sec. IV(B) (“Malicious Prosecution”), infra. At trial, the Plaintiffs stipulated Plaintiffs incurred $127,000.00 in attorney fees and costs in the defense of the underlying criminal prosecution. Finally, the parties stipulated to the following facts prior to trial [Doc. 244, p. 16]:

A. Plaintiffs are husband and wife. They live at 1375 Hwy 178, Opelousas, Louisiana, 70570, and thus are residents of the Western District of Louisiana.

B. The claims herein are brought against the United States pursuant to the Federal Tort Claims Act ( 28 U.S.C. § 2671 , et seq.) and 28 U.S.C. §§ 1346 (b)(1), for money damages.

C. Agents Phillips and Barnhill, and their immediate supervisors during the course of the events at issue in this case, were federal officers who investigated and assisted in the prosecution of Hubert Vidrine were employees of the United States Government, and the conduct at issue occurred while they were acting within the scope of their offices and employment.

D. Venue is proper in that all, or a substantial part of the acts and omissions forming the basis of these claims occurred in the Western District of Louisiana, and arose from the filing and prosecution of charges of criminal conduct against Mr. Vidrine by the United States Government and its agents, in United States v. Trinity Marine Baton Rouge, Inc., et al., Western District of Louisiana Case No. CR 99-60053.

E. Plaintiffs fully complied with the provisions of 28 U.S.C. § 2675 of the Federal Tort Claims Act, as a precondition to filing these claims.

F. This suit was timely filed, in that Plaintiffs timely served notice of their claims on both The Environmental Protection Agency and The United States Department of Justice on or about September 15, 2005.

G. The U.S. Department of Justice assumed responsibility for processing the claim on behalf of both agencies.

*557 H. By July 23, 2007, when the Government had still not completed its review of the claim, Plaintiffs proceeded to file their Original Complaint in this Court.

I. On August 13, 2007, after being served a copy of the Complaint, the government sent Plaintiffs a letter denying Plaintiffs’ claims.

J. This case is brought under the Federal Tort Claim Act for malicious prosecution by agents of the federal government. That claim for relief is governed by the underlying State Law of the State of Louisiana, where the alleged malicious prosecution took place.

K. The EPA-CID and FBI agents whose conduct is at issue, including Ivan Vikin, Keith Phillips, and Ekko Barnhill were at all relevant times “investigative or law enforcement officers” within the meaning of 28 U.S.C. § 2680 (h), and were employees of the United States Government, acting within the scope of their offices and employment.

L. Hubert Vidrine was indicted and prosecuted for violating 42 U.S.C. § 6928 (d)(2) between June 17, 1996 and September 5, 1996, in his capacity as refinery manager of Canal Refinery in Church Point, Louisiana, for knowingly storing hazardous waste, described as “an oily like” waste material contaminated with chlorinated solvents, in Tank 402 at Canal Refinery, without a Federal or State permit to store, treat, or dispose of hazardous waste under specified federal and state statutes and regulations.

M. With respect to those charges, there is no genuine issue that the following material facts were true between the dates alleged in the indictment:

1. Mr. Vidrine was performing the role of refinery manager.

2. Canal Refinery was located in Church Point, Louisiana.

3. Canal did not have a permit to store or process “hazardous waste.”

N. The government moved to dismiss all charges [in the underlying criminal matter] in September, 2003. The court [Judge Tucker Melancon] granted the Motion.

O. The Parties at trial will not ask any government witness to confirm or deny whether any individual served as a confidential witness or informant during the Environmental Protection Agency’s and the Federal Bureau of Investigation’s investigation of plaintiff Hubert Vidrine.

[Doc. 244, pp. 16-18]

IV. Applicable Law

A. Federal Tort Claims Act

“As the sovereign, the United States is immune from suit unless, and only to the extent that, it has consented to be sued.” Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 , 114 S.Ct. 996 , 127 L.Ed.2d 308 (1994)). One of the vehicles by which the United States has waived its sovereign immunity is the Federal Torts Claims Act. Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 374 (5th Cir.1987). Through the FTCA, the United States has consented to suits “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346 (b)(1).

*558 One notable exception to the FTCA is the “intentional tort” exception, which excludes from the FTCA “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680 (h). Although the FTCA contains an “intentional tort” exception (which excludes from the FTCA “[a]ny claim arising out of ... malicious prosecution ... ”), that same provision then waives sovereign immunity for certain intentional torts, including malicious prosecution, committed by “investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 2680 (h); see also Castro v. U.S., 560 F.3d 381, 386 (5th Cir.2009). “ ‘[Investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violation of Federal law.” Id. 4 ,

As noted, “[s]tate substantive law applies in suits brought under the FTCA, ... and we apply the law of the state in which the suit arises....” Cleveland ex rel. Cleveland v. U.S., 457 F.3d 397, 403 (5th Cir.2006); see also 28 U.S.C. § 1346 (b)(1), supra. However, certain categories of damages are prohibited under the FTCA, regardless of whether or not they are recoverable pursuant to state law. See 28 U.S.C. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”)

B. Malicious Prosecution

Louisiana recognizes a civil cause of action, “based on fault under C.C. 2315, in favor of one ‘whose liberty has been interfered with in an unwarranted manner’ ”; stated more simply, Louisiana recognizes the tort of “malicious prosecution.” Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).

“Like any other delict under C.C. 2315, such an ‘interference’ must be based on fault of the defendant which causes the damage complained of in order for the plaintiff to recover.” Id. The elements for a claim of malicious prosecution pursuant to Louisiana law are as follows: “(1) the commencement or continuance of an original criminal or civil judicial proceeding 5 ; (2) its legal causation by *559 the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.”

Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984); see also Miller v. East Baton Rouge Parish Sheriffs Department, 511 So.2d 446, 452 (La.1987). As noted, at the pre-trial conference, all counsel stipulated elements 1-3 are met, leaving only elements (4) the absence of probable cause for the criminal proceeding, (5) the presence of malice, and (6) damages. [Doc. 249, p. 1]

Pursuant to Louisiana law, a grand jury is to indict an individual when the jurors find that the evidence would justify a conviction absent an explanation or contradiction. La.C.Crim. Proc. Art. 443. This has been cited as a “more stringent” standard, which requires “stronger proof’ than a finding of probable cause for arrest. State v. Huff, 392 So.2d 1046 (La.1980).

The Louisiana Supreme has defined probable cause for arrest, in the context of a malicious prosecution case, as follows:

Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.

The appearances must be such as to lead a reasonable person to set the criminal process in motion; unfounded suspicion and conjucture [sic] will not suffice. Verification may be required to establish probable cause where the source of the information seems unworthy, or where further information about a serious charge would be readily available. The reputation of the accused, his opportunity to offer explanation, and the need for prompt action, if any, are all factors in determining whether unverified information furnishes probable cause.

Miller v. East Baton Rouge Parish Sheriff’s Dept., 511 So.2d 446, 452 (La.1987) (citations omitted). The crucial determination for determining probable cause is whether the investigative or law enforcement officers “had an honest and reasonable belief in the guilt of [the accused] at the time [they] pressed charges.” Jones at 1272 (citations omitted); see also Smith v. State Through Dept. of Admin., 694 So.2d 1184, 1188 (La.App. 1st Cir.1997). “In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. These are, however, simply additional pieces of evidence which comprise the entirety of the circumstances which it is the court’s duty to review.” Jones at 1272 .

With regard to malice, Louisiana courts have stated:

[M]alice does not submit readily to definition .... Any feeling of hatred, animosity, or ill will toward the plaintiff, of course, amounts to malice. But it is not essential to prove such ill will. Malice is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to “tie up the mouths” of witnesses in another action, or as an experiment to discover who might have committed the crime. Mal *560 ice may be inferred from the lack of probable cause or inferred from a finding that the defendant acted in reckless disregard of the other person’s rights.

Miller at 453 (citations omitted).

Of importance to this matter, Louisiana jurisprudence provides that when charges against an individual are dismissed “prior to trial, lack of probable cause and malice are presumed and the burden is on the defendant to prove he acted with probable cause and without malice.” Zerbe v. Town of Carencro, 884 So.2d 1224, 1231 (La.App. 3rd Cir.2004). 6 In this matter, all counsel agree under the facts, the presumption operates and the government has the burden of showing it acted on probable cause and without malice.

Finally, pursuant to Louisiana law, “Damages” are “presumed when the other five elements are established.” Jones at 1273 ; see also Cleveland, 457 F.3d at 403 ; 28 U.S.C. § 1346 (b)(1); 28 U.S.C. § 2647 .

C. Law Applicable to the Underlying Criminal Proceeding

The Indictment issued against Mr. Vidrine in the criminal proceeding alleged in pertinent part as follows:

Between on or about approximately June 17, 1996, and on or about September 5, 1996, in the Western District of Louisiana and elsewhere, HUBERT PAUL VIDRINE, JR., defendant herein in his capacity as refinery manager for “Canal” at Church Point, Louisiana, did knowingly store hazardous waste, namely an oily like waste material contaminated with chlorinated solvents, including but not limited to, Chloroform, 1, 2-Dichloroethane, Carbon Tetrachloride, and Tetrachloroethene, at storage Tank 402 on the property of “Canal” at Church Point, Louisiana, a location facility which did not have a Federal or a State permit to store, treat, or dispose of hazardous waste under Title 42, United States code, Sections 6925 or 6926.

All in violation of Title 42, United States Code, Section 6928 (d)(2). [ 42 U.S.C. § 6928 (d)(2) ].

According to the Government’s Response in Partial Opposition to Motion for Bill of Particulars:

Between on or about approximately June 17th 1996, and September 5th 1996, defendants herein, Trinity Marine Baton Rouge, Inc. and Frederick E. McKenzie 7 , did knowingly transport and cause the transportation of hazardous waste solvents without a uniform hazardous waste manifest to an unpermitted facility and defendant, Hubert Paul Vidrine, Jr., did knowingly store or caused to be stored hazardous waste at the Canal Refinery facility, Church Point, Louisiana, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96. (Emphasis added)

*561 [Pl. Ex. 024, at 666] 8 Thus, according to the government, the alleged criminal conduct of Hubert Vidrine, for which he was indicted began on August 13, 1996 and continued to September 4, 1996. [Pl. Ex. 024, at 666]

Title 42, United States Code, Section 6928 provides in pertinent part as follows:

(d) Criminal penalties

Any person who—

(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter—

(A) without a permit ...

shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both. 9

Stated more simply, Mr. Vidrine was indicted for knowingly storing hazardous waste on the Canal Refinery site without a hazardous waste permit between August 13, 1996 and September 4, 1996. It is undisputed that neither Mr. Vidrine, nor Canal Refinery, had the necessary permit to store hazardous waste during the relevant time frame. What is particularly relevant in this matter is: (1) whether Mr. Vidrine was storing “hazardous waste” at all, and (2) if so, whether Mr. Vidrine was knowingly storing such hazardous waste. 10

1. Used Oil vs. Hazardous Waste

Complicating this matter somewhat are the RCRA regulations themselves, particularly as they pertain to whether or not the alleged substance, in Canal Refinery Tank 402, was “hazardous waste,” as the government argues, or “used oil,” as plaintiffs argue, the differing categories invoking different regulations and different statutory application. 11

*562 The RCRA is a regulatory statute intended to protect public health and as such, it should be construed to effectuate its regulatory purpose. United States v. Johnson & Towers, Inc., 741 F.2d 662, 666 (3rd Cir.1984). Congress enacted the RCRA, 42 U.S.C. §§ 6901-6991 , to regulate the treatment, storage, and disposal of hazardous wastes by monitoring wastes from their creation until their permanent disposal. Matter of Commonwealth Oil Refining Co., 805 F.2d 1175, 1177 (5th Cir.1986). The purpose of the RCRA regulatory scheme is to provide “nationwide protection against the dangers of improper hazardous waste disposal.” H.R.Rep. No. 1491, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S. Code Cong. & Admin. News 6238, 6249.

U.S. v. Sellers, 926 F.2d 410, 416, n. 2 (5th Cir.1991).

In 1980, RCRA was amended by The Used Oil Recycling Act (“UORA”). The UORA “was intended to increase safe recycling and reuse of used oil.” 55 FR 11798 -01. The UORA “established that it is in the national interest to recycle used oil in a manner that both protects public health and the environment and conserves energy and materials.” Id. Section 7 of the UORA authorized the EPA to regulate recycled oil, whether or not the Agency classifies such oil as hazardous under subtitle C of RCRA. 12 U.S.C. § 6935 (a). In 1985, the EPA proposed to list most types of used oil, including recycled used oil, as a hazardous waste. Id. However, the following year, EPA determined it would not list used oil as a hazardous waste, because the EPA “believed that the listing would discourage recycling of used oil and could result in an increase in the amount of used oil that is disposed of or illegally dumped.” Id. In 1990, the EPA revised subtitle C of RCRA, subjecting additional wastes to regulatory control, and provided the following summary pertaining to its treatment of used oil:

Under today’s rule, used oil will be regulated as a hazardous waste only: (1) If it exhibits one or more of the hazardous waste characteristics defined in subpart C of 40 CFR part 261 (including the TC as finalized today) and (2) if it is disposed of (rather that recycled). On the other hand, used oil that exhibits one or more of the hazardous waste characteristics and is recycled is exempt from regulation ....

55 F.R. 11798 -01 (emphasis added) (a distinction that is quite relevant to the arguments presented to this Court). In 1992, the EPA stated, “The regulations in part 279 [“Standards for the Management of Used Oil”] apply to all used oils, regardless of whether or not they exhibit a hazardous waste characteristic.” 57 F.R. 41566 -01 (emphasis added). In part, this is because the EPA has found, on multiple occasions, “that used oil is frequently found to contain hazardous halogenated spent solvents.” 50 F.R. 49164 -01 (emphasis added), p. 175; see also Id. at 176 (“Since hazardous halogenated compounds — many of them hazardous waste— are frequently found in used oil....”) 12 *563 The EPA further declared Part 279 “cover [s] all used oil handlers and all types of used oils.” Id. (emphasis added). Furthermore, the “EPA presumes that all used oils are recyclable either as a fuel or a feedstock.” Id. (emphasis added).

RCRA, itself, defines “hazardous waste” (as pertinent to the issues before this Court) as follows:

(a) A solid waste 13 , as defined in § 261.2, is a hazardous waste if:

(1) It is not excluded from regulation as a hazardous waste under § 261.4(b); and

(2) It meets any of the following criteria:

(I) It exhibits any of the characteristics of hazardous waste identified in subpart C of this part. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under § 261.4(b)(7) and any other solid waste exhibiting a characteristic of hazardous waste under subpart C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred, or if it continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture. Further, for the purposes of applying the Toxicity Characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in Table 1 to § 261.24 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture.

(v) Rebuttable presumption for used oil. Used oil containing more than 1000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter) ....

40 C.F.R. § 261.3 (emphasis added) (“Definition of hazardous waste,”) that same sub-part of the hazardous waste regulations (i.e. Subpart A) goes on to list certain requirements for hazardous wastes that are to be recycled. See 40 C.F.R. § 261.6 . The same section then .states as follows:

Used oil that is recycled and is also a hazardous waste solely because it exhibits a hazardous characteristic is not subject to the requirements of parts 260 through 268 of this chapter, but is regulated under part 279 [“Standards for the Management of Used Oil”] of this chapter. Used oil that is recycled includes any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was originally used). Such term includes, but is not limited to, oil which *564 is re-refined, reclaimed, burned for energy recovery, or reprocessed.

40 C.F.R. § 261.6 (a)(4) (emphasis added).

As the Fifth Circuit has explained, “In general, part 279 governs the transportation and management of used oil and used oil residue.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 378 (5th Cir. 2000). “It excludes used oil that is to be used for energy recovery and certain other purposes from the hazardous waste regulations of part 261.” Id. (citing § 279.10). If used oil is intended for energy recovery, it is regulated by Part 279. If, however, used oil is solid hazardous waste, it is regulated by Part 261. Canal Barge at 378. “Solid waste may include discarded material, which is material that has often been abandoned.” Id. (citing § 261.2). If a solid waste contains certain characteristics set forth in § 261.3, it is deemed hazardous waste. Id. (explaining, “For example, solid waste that contains a certain level of contaminants, such as a benzene level greater than .5 ppm, constitutes hazardous waste. See id. § 261.24.”) 14

“Used oil” is defined as “any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities.” 40 C.F.R. § 279.1 ; see also 42 U.S.C.A. § 6903 . 15 Consequently, by definition “used oil is contaminated by physical or chemical impurities.” Part 279 provides in pertinent part:

This section identifies those materials which are subject to regulation as used oil under this part. This section also identifies some materials that are not subject to regulation as used oil under this part, and indicates whether these materials may be subject to regulation as hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter.

(a) Used oil. EPA presumes that used oil is to be recycled unless a used oil handler [here, such as Canal] disposes of used oil, or sends used oil for disposal [which did not occur]. Except as provided in § 279.11, the regulations of this part apply to used oil, and to materials identified in this section as being subject to regulation as used oil, whether or not the used oil or material exhibits any characteristics of hazardous waste identified in subpart C of part 261 of this chapter.

(b) Mixtures of used oil and hazardous waste—

(1) Listed hazardous waste.

(i) Mixtures of used oil and hazardous waste that is listed in sub-part D of part 261 of this chapter [“Lists of Hazardous Wastes”] are subject to regulation as hazardous waste under parts 260 *565 through 266, 268, 270, and 124 of this chapter, rather than as used oil under this part.

(ii) Rebuttable presumption for used oil. Used oil containing more than 1,000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, by showing that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter).... 16

(2) Characteristic hazardous waste.

Mixtures of used oil and hazardous waste that solely exhibit one or more of the hazardous waste characteristics identified in subpart C of part 261 of this chapter [“Characteristics of Hazardous Waste”] and mixtures of used oil and hazardous waste that is listed in subpart D solely because it exhibits one or more of the characteristics of hazardous waste identified in subpart C 17 are subject to:

(i) Except as provided in paragraph (b)(2)(iii) of this section, regulation as hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter rather than as used oil under this part, if the resultant mixture exhibits any characteristics of hazardous waste identified in sub-part C of part 261 of this chapter; or

(ii) Except as specified in § 279.10(b)(2)(iii) regulation as used oil under this part, if the resultant mixture does not exhibit any characteristics of hazardous waste identified under subpart C of part 261 of this chapter.

(iii) Regulation as used oil under this part, if the mixture is of used oil and a waste which is hazardous solely because it exhibits the characteristic of ignitability (e.g., ignitable-only mineral spirits), provided that the resultant mixture does not exhibit the characteristic of ignitability under § 261.21 of this chapter.

40 C.F.R. § 279.10 (“Applicability”) (emphasis added). In other words, although in no way clearly stated by the regulations, it would appear, mixtures of used oil and a listed hazardous waste are regulated as a hazardous waste under Part 260; mixtures of used oil and a characteristic hazardous waste are regulated as a hazardous waste only if they continue (subsequent to mixing) to exhibit one or more of the following *566 characteristics: ignitability, corrosivity, reactivity, and/or toxicity — however, mixtures of used oil and a solid waste that exhibit solely the characteristic of ignitability are regulated as used oil, as long as the mixture does not also exhibit the characteristic of ignitability. Id,.-, see also June 16, 2011 testimony of Romanowsky.

It must, additionally, be noted that plaintiffs argue (and support with directives issued by the EPA Office of Solid Waste and Emergency Response (“OSWER”)) that the term “mixture,” as used in the RCRA regulations, requires an intentional act of mixing, rather than contamination resulting from normal industry practices. 18 In other words, plaintiffs therefore argue used oil which contains a listed hazardous waste, or used oil containing a characteristic hazardous waste, should be regulated as used oil under Part *567 279, unless it can be shown that the hazardous waste was intentionally mixed with a hazardous waste, as opposed to having become contaminated during the oil’s use. 19 Under this argued interpretátion of the word “mixture,” if used oil is contaminated with more than 1000 ppm of a listed hazardous waste, plaintiffs argue, EPA will presume the oil was intentionally mixed with the hazardous waste, 20 but if *568 the oil is contaminated with less that 1000 ppm a different result should flow. Id. at § 279.10(b)(1)(ii).

The government argues, in essence, the used oil did not become contaminated during its “use”, but rather, it became contaminated during its storage at Trinity Marine, as the result of poor housekeeping at that barge cleaning facility. Under those circumstances, the government argues, the argued rebuttable presumption, either does not apply at all, as other regulations apply, or it has been shown “mixing” — with the, disputed, requisite degree of intent or purpose — occurred at Trinity sufficient to justify the application of the statute with which Vidrine was indicted. Again, plaintiff, on the other hand, argues the presumption does apply and no samples showed over 1000 ppm of halogens, and thus, Vidrine should not have, if for no other reason than this, been indicted.

It should be noted, the rebuttable presumption for used oil is additionally incorporated by reference in Subpart F of Part 279, which addresses Standards for Used Oil Processors and Re-Refiners, and states as follows:

(a) To ensure that used oil managed at a processing/re-refining facility is not hazardous waste under the rebuttable presumption of § 279.10(b)(l)(ii), the owner or operator of a used oil processing/re-refining facility must determine whether the total halogen content of used oil managed at the facility is above or below 1,000 ppm.

(b) The owner or operator must make this determination by: 21

(1) Testing the used oil; or

*569 (2) Applying knowledge of the halogen content of the used oil in light of the materials or processes used.

(c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. The owner or operator may rebut the presumption by demonstrating that the used oil does not contain hazardous waste (for example, by showing that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter) ....

40 C.F.R. § 279.53 (emphasis added).

As complex and unclear as the drafting and interplay of these regulations may appear, as will be discussed below, the issue at hand in not truly governed by these regulations.

2. Civil vs. Criminal Law

First, it should be noted civil violations could have been pursued under the civil enforcement division of the EPA or Louisiana DEQ. However, the government chose not to pursue civil penalties against Canal Refinery, but rather, chose to criminally prosecute Hubert Vidrine, the manager at Canal Refinery, which requires knowledge on his part — the civil penalties do not require knowledge. As the law clarifies,' this requisite knowledge, is factual knowledge; a mistake of or ignorance of the law not being a defense to a criminal prosecution under this statute. It is this pivotal legal distinction that defines the inquiry before this Court. Consequently, whether or not the used oil provisions or the hazardous waste provisions would have applied in Hubert Vidrine’s criminal case is not determinative to the inquiry before this Court. Whether or not Hubert Vidrine might have, erroneously or not, believed the used oil regulations with their 1000 ppm presumption applied or not, is not determinative of the issue before this Court: the jurisprudence is clear mistake of law, is not a defense; a mistake of fact, or ignorance of fact, could be a defense to the criminal proceedings. 22

Consequently, the true threshold inquiry before this Court is a factual one; ie., did Hubert Vidrine knowingly store material that could be found to be hazardous waste, under either set of regulations. Hubert Vidrine argues he did not, and further argues the government bears the burden of proof on this issue, and the government cannot carry its burden to show he did. The government argues Hubert Vidrine did know, or should be found to have known, as he engaged in “deliberate ignorance,” a legal nuance the government argues could have been employed to find probable cause within the criminal context.

V. Findings of Fact

At the outset, this Court notes determining the facts in this case has been complicated by conflicting testimony and the ab *570 sence of a certain key witness upon whom the government relied in plaintiffs underlying criminal prosecution. 23 The Court’s findings of fact are based upon a careful consideration of the various testifying witnesses’ credibility, the extensive documentary evidence placed into the record, the degree to which the latter corroborated the former, and the reasonable inferences drawn from the established facts.

As already noted, all agree the government bears the burden to overcome the presumption that probable cause was lacking, as well as the inference of malice, and depending on the findings of this Court on those two prongs, an additional presumption as to damages might or might not apply.

Consequently, this Court will first turn its attention to the first prong, the applicable presumption that probable cause did not exist in this matter.

A. Probable Cause

As all parties agree a presumption exists in this matter that there was a “lack of probable cause,” which the government must overcome 24 , therefore, the question before this Court becomes what evidence, if any, has the government put forth to establish the existence of probable cause as to the particular crime for which Hubert Vidrine was indicted.

The allegations contained in the Indictment regarding Mr. Vidrine are found in Count III. Count III alleges (as quoted earlier) that from June 17, 1996 to Sept. 5, 1996, Mr. Vidrine:

[D]id knowingly store hazardous waste, namely oily like waste material contaminated with chlorinated solvents, including, but not limited to Chloroform, 1, 2-Dichloroethane, Carbon Tetrachloride and Tetrachlorethane, at storage Tank 402 and on property of Canal, which did not have a federal or state permit to store ... hazardous waste under Title 42, U.S.C. § 6925 or 6926.

All in violation of 42 U.S.C. 6928(d)(2), Title 30, La. R.S. 2183(F)(1). 25

However, by way of the “Partial Response to Motion for Bill of Particulars,” the government provided further specificity of the charges against Vidrine:

(a.) Between on or about approximately June 17th, 1996 and September 5th, 1996, defendants herein, Trinity Marine Baton Rouge, Inc. and Frederick E. McKenzie, did knowingly transport and cause the transportation of hazardous waste solvents without a uniform waste manifest to an unpermitted facility and defendant, Hubert Paul Vidrine, Jr., did knowingly store or caused to be stored hazardous waste at the Canal Refinery facility, Church Point, Louisiana, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/28/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96.

(f.) ... The process generating chlorinated solvents as solid waste was Trinity’s barge cleaning operation. These chlorinated solvents are discarded commercial chemical products no longer useful for their original intended purposes. 26

*571 Accordingly, in the criminal proceedings, the allegations against Mr. Vidrine were that he knowingly stored hazardous waste (originating from Trinity Marine) at Canal Refinery, without a permit, on the following dates: 8/13/96; 8/14/96; 8/16/96; 8/16/96; 8/20/96; 8/23/96; 8/26/96; 8/26/96; 8/28/96; 8/29/96; 8/29/96; 8/30/96; 8/31/96; 9/3/96; 9/4/96.

At the civil trial before this Court, the determination of whether or not probable cause existed to indict Hubert Vidrine revolved around two issues: (1) whether or not the material Vidrine stored was properly characterized by the government as “hazardous waste”; and (2) if the material was hazardous waste, was there probable cause to believe Hubert Vidrine had knowingly stored such hazardous waste.

1. Whether the material stored in Canal Refinery’s Tank 402 constituted hazardous waste.

Both plaintiffs and defendant devoted much argument to the debate over which portion of the RCRA regulations applied in the criminal context. As will be discussed, Antifreeze Inc., and its owner John Broussard — with whom Canal and Trinity had done business around the time of the events contained in the Indictment against Mr. Vidrine, et al. — were indicted and convicted of crimes involving hazardous waste, which were wholly unrelated to the charges contained in the Indictment issued against Mr. Vidrine, Mr. McKenzie, and Trinity Marine. At trial before this Court, the government argued Broussard, i.e. Antifreeze, Inc., was, in effect, laundering hazardous waste in the following manner: Broussard would receive non-hazardous waste, have it sampled, often provide those clean samples to his customers, and once customer agreed to purchase the product, Broussard (who presumed, as was customary in this industry, his “regular” customers would not re-sample the product) would then mix hazardous waste into the product prior to delivering it to his customers. However, no evidence was presented at this trial that Trinity Marine engaged in such conduct, a fact the government’s own agents admitted during their testimony. 27

At the trial of this matter, plaintiffs’ expert, Peter Romanowsky, whom this Court found credible, testified it was his opinion the hazardous waste regulations relied upon by the government require a purposeful or intentional mixing. Agent Phillips, utilizing a tortured reading of the regulations and a highly selective application of the facts to the applicable RCRA regulations, in effect, argued poor housekeeping at Trinity equated to a purposeful mixing and thus, triggered application of the desired regulations. Of note, even among EPA personnel, as well as between the EPA and the Louisiana Department of Environmental Quality (“DEQ”), there existed an internal debate as-to whether or not the material for which Mr. Vidrine was indicted constituted “hazardous waste,” or “used oil,” 28 and thus, which regulations *572 might apply — a debate Agent Phillips, in effect, ignored.

While this Court is of the opinion that that which the government accused Mr. Vidrine of storing should be considered “used oil” and not “hazardous waste,” it need not delve into the morass that is the RCRA regulations further than it already has, because in this matter, for the reasons that follow, the Court finds probable cause did not exist to support knowledge on the part of Hubert Vidrine — the lynch pin to any possible criminal prosecution at issue. For the purposes of this Ruling, it is sufficient to note the question exists, and that the government, who must overcome the presumption that probable cause did not exist, and the presumption that malice did exist, failed to establish that this question of debate, as to the applicable law, was fairly presented by the EPA technical expert and case agent, i.e. Phillips, and later Guy Tidmore, to the Department of Justice (through the Assistant United States Attorney assigned to the case), the grand jury, or even to Agent Phillips’ own co-case agent, Agent Barnhill. This Court finds for the reasons noted below Phillips intentionally obscured and manipulated this legal issue.

2. Whether Hubert Vidrine knowingly stored the purported hazardous waste.

The Court will now turn its attention to the pivotal element in the criminal prosecution of Hubert Vidrine — knowledge — and whether the government overcame the presumption that probable cause did not exist that Hubert Vidrine knowingly stored any purported hazardous waste. 29 “The word ‘knowingly,’ ... means that the act was done voluntarily and intentionally, not because of mistake or accident.” 30 For the reasons that follow, the Court finds the government did not overcome that presumption, and addresses below the strongest evidence presented by the government on that issue.

a. Vikin’s investigation

The government relies heavily on the testimony of Agent Vikin, whom the Court found to be credible and competent, as well as the interviews and investigation he conducted, in support of their showing probable cause existed as to the crime for which Hubert Vidrine was indicted. 31 *573 However, for the reasons that follow, this Court finds that reliance to be misplaced,

i. AFI 32 /Broussard

Before discussing the purposes for which the government put forth AFI/Broussard evidence, a bit of background is in order. Canal Refinery first came onto the EPA’s radar during the investigation of AFI and John Broussard. At trial before this Court, EPA agents testified John Broussard, the owner of AFI, was, in effect, laundering hazardous waste, by mixing hazardous waste with other “clean” products, and thereafter, selling off the mixture represented as the “clean” product. EPA Agent Ivan Vikin was the lead agent in that investigation. FBI Agent Ekko Barnhill, then EPA Technical and Regulatory Expert Keith Phillips, and EPA Agent Rick Langlois were also involved in the investigation, including the execution of a search warrant at AFI. 33

On May 7, 1996, while executing a search warrant at AFI, the government found documentation (namely, bills of lading with designations such as “fuel oil” and “petroleum distillates”), which the government believed indicated Canal had purchased product which was this Broussard hazardous waste mixture, disguised as alternative feedstock (“AFS”), from AFI and John Broussard. Additionally, when the warrant at AFI was executed, a tanker truck was at AFI, being filled with AFI product, and the truck “was destined for Canal Refinery.” Obviously, this piqued the government’s interest, as it gave rise to the possibility that Canal was receiving hazardous waste, and perhaps was aware AFI and Broussard were laundering hazardous waste, and therefore, perhaps, Canal was potentially complicit in AFI and Broussard’s illicit scheme. 34

Consequently, on September 1, 1996, Agent Vikin executed a “Case Opening Checklist” on Canal Refining; there is no mention of Hubert Vidrine in that document. On September 4, 1996, Agent Vikin obtained a search warrant for Canal Refining Company, on the basis that he had “evidence of treatment, storage, and disposal of hazardous waste identified or listed under RCRA, without a permit.” 35 The application for the warrant states that Agent Vikin had “probable cause to believe that Canal and its employees violated RCRA by accepting and receiving hazardous waste without a uniform hazardous waste manifest from Anti-Freeze Inc. and Tiger Shipyard.” 36 In the section entitled “Facts Establishing Probable *574 Cause” (within the application for a search warrant for Canal), Agent Vikin stated that on May 7, 1996, a search warrant was executed at AFI. During the course of the search warrant, as well as during subsequent interviews of AFI employees, agents learned that AFI had sold “material” to Canal, and AFI had made 5 to 10 deliveries of material to Canal, beginning in 1995. 37 According to the AFI employees, the bills of lading accompanying the shipments of material from AFI to Canal represented the materials, as fuel oil. 38 Agent Vikin further attested, “During the search warrant executed at AFI, on May 7-10, 1996, a tanker trailer at AFI which had been loaded from tank # 14, was destined for Canal as fuel oil. 39 No hazardous waste manifest accompanied the tanker.” 40 (emphasis added).

On September 5, 1996, the search warrant obtained by Agent Vikin was executed at Canal Refinery. Agent Vikin, as lead EPA agent, was in charge of the search; FBI Agent Ekko Barnhill participated on behalf of the FBI as a cooperating agency, Keith Phillips participated as the EPA’s technical and regulatory agent, and numerous other law enforcement agents and agencies participated as well. It was during the execution of the search warrant at Canal, that government agents first discovered Trinity Marine’s connection to Canal. During execution of the search warrant at Canal, a truck, which, according to the government, was carrying “pipeline in *575 terface” arrived at the refinery. 41 Although the driver of the truck was an AFI employee, it was established the material in the truck came exclusively from Trinity Marine, and was brokered by Mel Campbell, and not John Broussard. 42 (Mr. Campbell was a chemical broker who had some not fully identified business arrangement with Broussard and AFI, not clearly established at trial. The evidence indicated Broussard and Campbell may have jointly had a trucking company, or Campbell may have leased tanker trucks belonging to AFI and, using an AFI driver, Campbell had the Trinity product transported to Canal. 43 )The material contained in the truck was sampled, and the sample, ultimately, was shown to contain chlorinated solvents/halogens, however, far beneath the 1000 ppm presumptive threshold for used oil.

At trial before this Court (as well as in the underlying grand jury sessions), in an attempt to show the existence of probable cause for the criminal indictment issued against Mr. Vidrine, the government, through, now, Agent Phillips, put forth an abundance of irrelevant, yet prejudicial, evidence relating to AFI and John Broussard. The government vehemently argued that at some unidentified point in time, Canal might have received material from AFI, which the government believed to be hazardous waste, and yet Vidrine was at no time indicted for storing material from AFI and/or John Broussard. Ultimately, the government’s suspicion regarding a possible connection between AFI’s criminal activity and Canal Refinery did not bear fruit 44 , and the allegations in the indictment brought against Mr. Vidrine were limited solely to material received *576 from Trinity Marine, and not AFI. This Court notes, notwithstanding the search warrant at Canal having been executed prior to the return of the indictment against AFI, neither Hubert Vidrine nor Canal was named in that indictment. Had the government believed sufficient evidence existed to indict Hubert Vidrine for matters relating to AFI, it could have made him a co-defendant in the case against Mr. Broussard and AFI, or included such charges in the indictment that ultimately issued against Hubert Vidrine— that did not occur. 45 Consequently, the Court finds the government’s evidence as to AFI and John Broussard is in no way relevant to the existence of probable cause with regard to the crime for which Hubert Vidrine was actually indicted. 46

ii. Vidrine’s conduct during the interviews conducted on the day of the search warrant

During the execution of the search warrant at Canal, Mr. Vidrine was interviewed by Agent Vikin and then technical and regulatory expert Phillips (as well as Sgt. Chris Viator of the Louisiana State Police) over the course of many hours. 47 The government argues Mr. Vidrine’s conduct during the search warrant, and his changing story as to sampling, as reflected in Agent Vikin’s notes and interview summary, as well as Vikin and Phillips’ testimony, supports a finding of probable cause that Hubert Vidrine knowingly stored hazardous waste. Vikin’s notes and interview summary reflect that during his interview, Mr. Vidrine told agents “every truck” that comes into Canal with pipeline interface is sampled and analyzed for the following constituents: sulfur, distillation properties, flash point, vapor pressure, and chlorinated solvents. When asked how Canal analyzes for chlorinated solvents, Vidrine stated that draeger tubes were utilized. According to the government, Vidrine subsequently revised his statement, clarifying that not all tanker trucks destined for Tank # 402 were sampled and analyzed; regular suppliers, such as Tidewater America, who were trusted *577 to supply pipeline interface free of chlorinated solvents, were not sampled upon every delivery. 48 The government argues Vidrine again revised his statement by stating that the analysis of tanker truck samples were not always run immediately; tanker trucks were consistently allowed to unload their contents into Tank # 402 pri- or to analysis. Vidrine stated “nobody in the industry has the man power to hold up a truck and sample/analyze it.” 49 Additionally, Vidrine, also, noted some samples from tanker trucks from various suppliers are composited then analyzed — ie. product from several tankers is mixed together and then sampled.

At trial, Mr. Vidrine testified on this topic as follows:

Q. ... Isn’t it true that on the day of the search warrant you told Agent Vikin that every shipment of product was tested for chlorinated solvents?

A. No.

Q. Isn’t it true that on the day of the search warrant you told Agent Vikin that once product was pulled from a tanker truck it was walked over to Canal’s lab which had two chemists?

WITNESS: I don’t recall.

Q. Do you recall revising your statement by saying that not all tanker trucks destined for Tank 402 were sampled and analyzed?

A. I don’t recall that conversation. I recall we talked about sampling and what my procedure was for sampling.

Q. Do you recall telling Agent Vikin that you sampled only trusted vendors?

A. No, I don’t recall that.

Q. Do you recall admitting to Agent Vikin that tanker trucks were consistently allowed to unload their contents into Tank 402 prior to analysis?

A. Those were not my words. There was something close to that effect but that wasn’t — I don’t believe — repeat what you said again, because I don’t believe—

Q. I don’t intend to give you'the impression that I’m quoting you. This is not a quote from you. I’m simply asking, isn’t it true that on the day of the search warrant you admitted that tanker trucks were consistently allowed to unload their contents into Tank 402 without testing.

A. Yes and I’ll tell you why. When a batch is tested, when we buy a batch of product, let’s say a compartment of something with several truckloads, we’ve got samples that are tested, and we know what the product is, and it’s already been tested. We do sample the trucks, the trucks every truck is supposed to be sampled. Now they are not stopped, in other words, they stop, a sample is taken, bring it to the lab and the truck is allowed to unload. Then we check the samples. We don’t let the truck sit for hours waiting. We let them unload while we check to make sure it’s consistent with the previous test that we tested of that product.

When samples are brought in before we buy the samples, before we buy a prod *578 uct, that samples is tested for quality control, our quality control specs. 50

The government, through the testimony of Agents Vikin and Phillips, argues Vidrine’s demeanor changed (ie. “as if he felt like a weight came off of him” 51 ) during this discussion about testing, leading the government to believe Vidrine had been caught in a deception of some kind. Although this Court found Agent Vikin to be quite credible, and will accept his observation that Vidrine’s demeanor shifted at that point, Agent Phillips and Mr. Vidrine’s testimony reflected that on the day of the search at Canal, there was a miscommunication between Vidrine and the government agents as to what tests were actually being run at Canal, the substances for which Canal was actually testing, and as to which tests the questions were directed at, at any given time. The miscommunication revolved primarily around the distinction between testing for chlorinated solvents and chlorides. This confusion, born out of chemistry, short hand references to technical matters, and conflicting understandings of the meanings attached to those references, was evident even within the testimony presented at trial, and thus, is not something which this Court finds is indicative of guilty knowledge or a deliberate attempt to deceive. 52 Thus, a change in demeanor upon recognition of the miscommunication, during a high stress interrogation, would not be unexpected or clearly indicative of “guilty knowledge” as the government argues.

At the time of the search warrant, as freely admitted by Hubert Vidrine at trial, Canal had not yet begun testing for chlorinated solvents, and the test kits for chlorinated solvents were located in Mr. Vidrine’s office. The testing that Mr. Vidrine was describing to the agents, was designed to analyze whether a given product was compatible with Canal’s equipment and transformer; the test was not designed to determine whether Canal was in compliance with the regulatory chlorinated compound threshold. 53 At some point during Mr. Vidrine’s interviews, Mr. Vidrine realized the officers were asking about chlorinated solvents, whereas he testified he had previously thought the agents were asking about chlorides. 54 Thus, the Court finds *579 the government’s reliance on Agent Vikin’s observation as to the possible change in the demeanor of Hubert Vidrine is misplaced, particularly when an equally plausible deduction is that after an excessively long interview 55 , riddled with confusion and miscommunication on technical matters, when Mr. Vidrine finally realized he and the agents were speaking about two different substances, he looked “as if he felt like a weight came off of him.”

In sum, the government argues Vidrine “changed his story” during his interview with Vikin and Phillips, which supports the government’s showing of probable cause as to Vidrine’s knowledge. However, the government’s own agent, upon whom the government now relies, who had full knowledge of that which occurred during the interviews with Hubert Vidrine, testified, and his chronology reflects, that notwithstanding Vidrine’s conduct and/or statements during the interviews, he (Agent Vikin) did not feel he had sufficient evidence to refer Vidrine to the Department of Justice for prosecution. Agent Vikin did not open a case file on Vidrine after the Canal search; he did not refer Hubert Vidrine to the AUSA when he referred Canal for prosecution 56 , and when asked why not, he candidly answered, “... I did not have evidence to prove that.” 57 This Court agrees,

iii. Conclusion of Vikin’s Investigation

In August of 1998, after handling the ongoing investigation for almost two years, Agent Vikin was promoted and transferred to North Carolina. Agent Vikin testified that during the majority of his supervision of the investigation, his focus was on AFI, and following “the AFI thread” to determine what entities had potentially accepted hazardous waste from AFI — his focus was not on Hubert Vidrine or Trinity Marine. 58 All the facts relied upon by Agent *580 Vikin to obtain the search warrant for Canal related to AFI and Tiger Shipyard. The referral letter prepared by Agent Vi-kin, requesting prosecutorial assistance, contains no mention of Hubert Vidrine. Agent Vikin testified that at the time he left his Louisiana duty station, he did not believe there was sufficient evidence to open a case file on Hubert Vidrine individually, or to refer Hubert Vidrine to the AUSA for prosecution. 59 Thus, the government’s reliance of Agent Vikin’s testimony to establish the existence of probable cause as to Hubert Vidrine for the crime for which he was indicted, this Court finds, is misplaced.

b. Langlois’ investigation

In August of 1998, after Agent Vikin was transferred to North Carolina, the ongoing investigation was temporarily assigned to EPA Resident Agent in Charge Ricky Langlois. The Court found Agent Langlois to be exceedingly credible, competent, and frank, he exhibited a refreshingly dignified candor. 60 Unfortunately, Agent Langlois only handled the investigation for a few months, as he, too, was in the process of being transferred.

Agent Langlois testified that while he was investigating the case, his focus, like Agent Vikin’s, had been on following the trail of material that had left AFI. 61 However, of great significance in this matter, is that while Agent Langlois was handling the investigation, he, along with FBI Agent Ekko Barnhill, interviewed a person by the name of Mike Franklin. (Mike Franklin would ultimately become — to Agents Phillips and Barnhill — -the “lynch pin” of their case against Hubert Vidrine. 62 ) Agent Langlois testified that in his opinion, Mike Franklin did not tell him anything that he, Langlois, did not already know. Agent Langlois further testified Franklin “did not resonate with him,” for a couple of reasons. First, Franklin told the agents he had test results showing one sample from a tank at Trinity Marine tested “over a thousand parts per million total halogens,” 63 and because Mr. Franklin was discussing “total halogen” content, he was likely discussing used oil rather than hazardous waste. Furthermore, Agent Langlois questioned whether Franklin was telling the truth, because Franklin did not provide the lab reports to back up his statement, when clearly the reports were essential to validate the technical nature of the allegations. Agent Langlois testified Franklin’s information was not a *581 “big deal” to him at the time, nor does it “resonate” with him to this day. 64 When viewed in its entirety, as evaluated by Agent Langlois, during his brief handling of the investigation, Agent Langlois did not uncover any new evidence which would support a finding different from Vikin’s, i.e. that there was not sufficient evidence to open a case file on Hubert Vidrine or to refer Hubert Vidrine for prosecution,

c. Phillips’ Investigation

In June of 1999, EPA Technical and Regulatory Expert Keith Phillips left his EPA post for approximately six months to attend training to become an investigative agent. He completed his training in December of 1998, and on January 4, 1999, he received his first assignment — Case Agent in charge of the investigation to which he had previously been the EPA Technical and Regulatory Expert — the “Canal Refining Investigation.” 65 It was at this point the focus of the investigation radically shifted, almost immediately, from “following the thread” from AFI perhaps to Canal, onto Hubert Vidrine, individually, and Trinity Marine, rather than AFI. Therefore, the question becomes what new evidence, if any, did Agent Phillips obtain, or what prior evidence did Agent Phillips reevaluate, that almost immediately, upon his taking over the case, justified this shift in focus and arguably provided newly promoted Agent Phillips with a belief probable cause existed to indict, prosecute, and continue to prosecute Hubert Vidrine for knowingly storing hazardous waste from Trinity, when clearly, the two agents who had handed off the ongoing investigation to Phillips, agents with far more criminal investigatory experience than he, had felt there was insufficient evidence to support such a belief, even as to material from AFI?

All parties agree there was probable cause to investigate Canal and Vidrine as to the AFI information, and all agree probable cause existed to support the search warrant executed at Canal, based on the AFI information. What is hotly contested, however, is whether or not probable cause ever existed to indict Hubert Vidrine, individually, for material received from Trinity, and not AFI, and thereafter, continue to prosecute him, individually, for the next four years. Although little, if anything, of true substance or relevance was added to the investigation once Phillips assumed command, an indictment, nonetheless, followed, resting primarily on selective information fed to the *582 prosecutor by Keith Phillips and upon Keith Phillips’ false testimony given before the grand jury, and Agent Phillips’ selective and filtered interpretation of the information provided by Mike Franklin. 66

i. Mike Franklin

As a threshold matter, in evaluating the information from Mike Franklin, this Court agrees with plaintiffs’ counsel that even if one were to accept Mike Franklin’s story on its face, in all its particulars— which this Court, for the reasons which follow, does not — the story does not provide probable cause to indict or continue to prosecute Hubert Vidrine.

Mike Franklin first became associated with Canal in the summer of 1995, when he made a sales call to Chuck McConnell, President of Canal. 67 At that time Franklin worked for Products Trading Corporation, brokering sales of hydrocarbons. 68 McConnell instructed Franklin to contact Hubert Vidrine, Canal’s plant manager, for discussion of any possible business transactions. Thereafter, Franklin contacted Vidrine and soon began doing business with Canal, which included the brokering sales of hydrocarbons to Canal and selling Canal’s refined products. 69

Of particular interest is the fact that on the day the search warrant was executed at Canal, September 6, 1996, Mike Franklin was present at the Canal refinery and remained there without clear purpose. 70 Mr. Vidrine testified Franklin came, went to lunch with Vidrine, asked to use the phone, and remained at Canal in an office located across the hall from Vidrine’s office, during much of the time Vidrine was being interviewed in his office. Vidrine further testified that Franklin could have easily heard what was being discussed during the interviews from that location. Although Franklin’s name and number appear in Agent Vikin’s notes taken during the search warrant, Vikin testified if Franklin was at Canal on the day of the search warrant, he was unaware of that fact. Agent Vikin testified the only time he heard mention of Mike Franklin on the day of the search warrant was when Vidrine mentioned his name while being interviewed. 71 However, Agent Barnhill testified to the grand jury that Mike Franklin was at the Canal Refinery on the day of the search warrant. 72

In November of 1998 (more than two years after the search of Canal), while the *583 investigation was under the control of Agent Langlois, Agent Langlois learned of Mike Franklin from Fred Marshall, the plant manager at Canal after it was sold to a new entity. Langlois testified Marshall told him “about a man [ie. Mike Franklin] who was brokering other additives, MTBE which was a fuel additive and he talked to this man and he made it a point to expound enough to give me the man’s name and it interested me.” On December 9, 1998, well after Mike Franklin had been present at Canal during the execution of the search warrant and questioning of Hubert Vidrine, Agent Langlois, along with Agent Barnhill, interviewed Mike Franklin. 73

(1) Franklin Reports of Interview

The 302 74 Agent Barnhill generated following the initial, December 9, 1998 interview of Franklin, reads in pertinent part:

[When FRANKLIN first met Vidrine,] VIDRINE gave [FRANKLIN] a “grand tour” of CANAL refinery. VIDRINE advised he wanted to buy “cheap product” and get CANAL off the ground and back onto its feet, adding that he had one (1) year to get CANAL running efficiently. VIDRINE was going to be able to do this by buying product low and selling it high. When [FRANKLIN] bought product from CANAL, VIDRINE would receive several cents per drum.

[FRANKLIN], working for TRANS GULF, began business with CANAL, shipping to CANAL from Houston, TX, a substance called Transmix. Transmix is mixture of diesel, gasoline, jet fuel, and other constituents....

Prior to the Transmix being shipped to CANAL, the Transmix was tested for chlorinated solvents. [FRANKLIN] knows that it is illegal to have greater than 1000 parts per million (ppm) of chlorinated solvents. Both [FRANKLIN] and [his partner] AUTENREITH tell VIDRINE that it is illegal to sell a product that has over 1000 ppm of chlorinated solvents. The lab used by TRANS GULF was PRECISION PETROLEUM LAB (PPL), Houston, TX, phone 713/680-9425.

In early 1996, prior to the search warrant executed on CANAL by Federal Agents, [FRANKLIN] traveled to TRINITY MARINE (TRINITY). VIDRINE had told [FRANKLIN] that TRINITY had product that [FRANKLIN] may want to purchase.

[FRANKLIN] thereafter traveled to TRINITY and met with FRED MCKENZIE, Superintendent at TRINITY. [FRANKLIN] subsequently obtained samples of the product TRINITY wanted to sell. These samples were given to PPL for testing. Results of the test showed one of the sampled products to be over 1000 ppm of chlorinated solvents.

[FRANKLIN] informed MCKENZIE in person that one of the sampled products tested over 1000 ppm of chlorinated solvents, and that he would not purchase *584 that product from TRINITY. [FRANKLIN] had also previously told over the phone that the tested product was over 1000 ppm of chlorinated solvents. MCKENZIE said that if [FRANKLIN] wanted to purchase the other products from TRINITY, then [FRANKLIN] would have to take the product in question that was over 1000 ppm. [FRANKLIN] advised MCKENZIE that he did want the other products, but did not want the product that sampled over 1000 ppm. MCKENZIE replied, “We’ll see”. [FRANKLIN] described the sampled product over 1000 ppm as “black, ambient and flashy ”.

[FRANKLIN] was shown an aerial photograph of TRINITY by the interviewing agents. [FRANKLIN] pointed to where he recalled the product sample over 1000 ppm to be taken from, describing ]£ of a large, grey barge close to the office and the bio barge. [FRANKLIN] estimated there to be 50,000-100,-000 gallons of product from where the sample containing over 1000 ppm was taken. Photocopy of the barge aerial photograph of TRINITY as shown to [FRANKLIN] is attached hereto.

A TRINITY employee, ANDREW (LNU), was present when the sample that tested over 1000 ppm was taken from the grey barge....

Later in 1996, prior to the search of Canal by Federal Agents, [FRANKLIN] observed tanker trucks marked TRINITY arriving at CANAL. [FRANKLIN] asked VIDRINE about the tanker trucks, and VIDRINE advised he had made a deal with someone else to transport product from TRINITY because [FRANKLIN] didn’t want to deal with it, with VIDRINE adding, “You didn’t want it.” Subsequently, [FRANKLIN] told VIDRINE that “You better cover your ass on this” by testing all the loads from TRINITY before accepting any product from TRINITY. [FRANKLIN] told VIDRINE that the test results from samples taken at TRINITY were over 1000 ppm for chlorinated solvents. [FRANKLIN] wanted to help VIDRINE. VIDRINE told [FRANKLIN] that he would not touch or use the “black, flashy stuff.” CANAL accepted a lot of loads of product from TRINITY....

Approximately one (1) month prior to the search of CANAL by Federal Agents, [FRANKLIN] sent VIDRINE color tubes so that VIDRINE could test the products CANAL received to ensure that the products did not exceed 1000 ppm total halogens. Prior to shipping the color tubes, [FRANKLIN] told VIDRINE to be careful about what he accepts because possessing waste that contained over 1000 ppm is illegal. The color test kit is a field test to determine if a product contains over 1000 ppm of total halogens. On one occasion, VIDRINE sent back to [FRANKLIN] a tanker of MTBE (Octane booster) because the product in the tanker did not pass the color tube test.

[FRANKLIN] telephonically spoke to VIDRINE the day after the execution of the Federal search warrant on CANAL. VIDRINE said that JOHN BROUS-SARD, Management, ANTI-FREEZE INC., a chemical brokerage company, had sent CANAL some “bad stuff’. VIDRINE did not confirm that he bought the black, flashy product from TRINITY. VIDRINE told [FRANKLIN] that ANTI-FREEZE INC. had sold CANAL the bad product. 75

*585 After the execution of the Federal search warrant and while VIDRINE was still employed with CANAL, [FRANKLIN] offered to buy Tank 402, separate the good product from the bad product, and dispose of the product legally. This offer was made to CANAL after [FRANKLIN’S] deal to buy CANAL fell through----

[FRANKLIN] recalled that a company named DIAMOND M, which deals in used oil, had put product into Tank 402. [FRANKLIN] talked to HAROLD LANGDON, who said that VIDRINE bought bad product and that the bad product was put into Tank 402. 76

VIDRINE left CANAL in 1997 and thereafter bought a new company. Through this company, VIDRINE began to undersell [FRANKLIN], thereby taking [FRANKLIN’S] business. [FRANKLIN] no longer gets along well with VIDRINE.

As background, VIDRINE started out his employment with CANAL as a welder, moving up to quality control. When AARON HORNSBY was fired, VIDRINE took over as Refinery Manager at CANAL. VIDRINE had “carte blanche” of CANAL, which [FRANKLIN] estimated to be a 4.5 million dollar operation. 77

This Court notes Agent Langlois, who was present at the initial Franklin interview, felt Franklin added nothing to the investigation and was skeptical of the information Franklin provided, because Franklin did not provide the test results upon which he relied. However, Agent Barnhill, on the other hand, created a special agency relationship with Franklin, which allowed and required her, according to FBI policy, to have complete control of all information, or lack thereof, that Franklin provided. That information, for reasons discussed below, was funneled to and through the agent in charge, newly minted EPA Agent Keith Phillips, with whom she became involved in an illicit sexual affair beginning in 1996. 78

*586 Phillips testified that what Franklin brought to the case that Vikin never had was “knowledge” on the part of Hubert Vidrine, yet Agent Langlois, who was present at the initial Franklin interview, clearly disagreed. 79 On January 4, 1999— the day Phillips was assigned as the case agent of the investigation, Phillips learned about Agents Barnhill and Langlois’ interview of Franklin, 80 In contrast with Agent Langlois, Mike Franklin did resonate with Agent Phillips; in contrast with Agent Langlois, Agent Phillips found Mike Franklin to be extremely credible. Within days of being assigned as the case agent to this investigation, this witness, whom the more experienced agent found to be suspect, became Agent Phillips’ “key witness” in his pursuit of an indictment and criminal prosecution of Hubert Vidrine. 81 Agent Phillips testified that two days after taking over the investigation as the case agent, Agent Phillips verbally presented Vidrine’s case to the United States’ Attorney’s Office suggesting prosecution of Vidrine. 82 When asked what he had learned within two days of being assigned to the case that he felt made it appropriate to present the case to the AUSA for prosecution, particularly as Agents Vikin and Langlois had believed there was insufficient evidence of probable cause to warrant a referral to the AUSA, Phillips responded, “would have been Mike Franklin’s testimony.” 83

Shortly after Agent Phillips became an investigator and was assigned as the lead case agent to this investigation, he and Agent Barnhill re-interviewed Mike Franklin. Agent Barnhill’s 302, dated January 22, 1999, reflects the following:

Subsequent to the sampling of product at TRINITY by [FRANKLIN], [FRANKLIN] advised MCKENZIE of the analytical report results as analyzed by PRECISION PETROLEUM LAB (PPL), Houston, TX. Specifically, that some of the product at TRINITY tested over 1000 parts per million (ppm) for chlorinated solvents. [FRANKLIN] advised MCKENZIE that he, [FRANKLIN], still wanted to purchase some of TRINITY’S product, but not the product that tested over 1000 ppm for chlorinated solvents. MCKENZIE advised he was looking for someone to purchase all of the product at TRINITY together, not separate. Additionally, MCKENZIE told [FRANKLIN] that another individual that TRINITY had been doing business with in the past, JOHN BROUSSARD, had expressed interest in purchasing all of the TRINITY product. 84 MCKENZIE advised [FRANKLIN] that he would recontact [FRANKLIN] at a later date regarding the sale of product to [FRANKLIN]. [FRANKLIN] was not recontacted regarding the product at TRINITY.

Additionally, with the same analytic report from PP1, [FRANKLIN] contacted CHUCK MCCONNELL, CANAL, and advised that the “black, flashy stuff’ as sampled from TRINITY was “bad”, explaining to MCCONNELL that the lab results showed a sample at TRINI *587 TY to contain over 1000 ppm of chlorinated solvents. MCCONNELL told [FRANKLIN], “I’ll alert VIDRINE”, or words to that effect. Later, [FRANKLIN] phoned MCCONNELL and explained to MCCONNELL how to use the Chloro-Tech tubes, which are used to detect chlorinated halogens. Also, [FRANKLIN] provided a Blue Book to VIDRINE on Feed Stocks, which details information regarding chlorinated solvents.

After VIDRINE left his job at CANAL, he opened his own business, HIGH TIDE, located in Opelousas, LA. VIDRINE acted as a broker for this company. VIDRINE now operates a gas station in Opelousas.

When [FRANKLIN] offered to buy CANAL after the Federal search warrant, a document was generated at AMERICAN INTERNATIONAL REFINING CORPORATION regarding the price offered by [FRANKLIN] to CANAL____ CANAL did not sell to [FRANKLIN].

Regarding Tank 402 located at CANAL, [FRANKLIN] was told by LANGDON, Vice-President of Marketing, CANAL, that the product in Tank 402 was “ready to go”. This was told to [FRANKLIN] after the execution of the Federal search warrant on CANAL. 85

On July 19,1999, Franklin was telephonically interviewed by Agent Barnhill. 86 Her Report reflects the following:

[FRANKLIN], who is in a position to testify, provided the following information.

[FRANKLIN] received a telephone call in June/July, 1996, from HUBERT VIDRINE telling [FRANKLIN] to go to TRINITY MARINE (TRINITY) and check on some product that TRINITY has available for sale. VIDRINE stated, “by the way, see if you can get your hands on the product from TRINITY”, or words to that effect. Additionally, VIDRINE did not want to have to deal with JOHN BROUSSARD/ANTIFREEZE INC. (AFI) directly to transport the product from TRINITY to CANAL. 87

[FRANKLIN] thereafter called TRINITY and spoke with FRED MCKENZIE, the barge cleaning facility manager. MCKENZIE told [FRANKLIN] to come over to TRINITY. [FRANKLIN] arrive [sic] the next day prior to lunch and subsequently took MCKENZIE and another TRINITY employee, ANDREW HANSON, to lunch. Upon return to TRINITY, the samples of the product which [FRANKLIN] was considering purchase of were already prepared. [FRANKLIN] advised that he would be back in touch with MCKENZIE in a few days upon receipt of the lab result of the samples. [FRANKLIN] thereafter took the samples and provided the samples to a lab in Houston, TX, called PRECISION PETROLEUM LAB (PPL).

When the sample analytical results were returned to [FRANKLIN] from PPL, 88 [FRANKLIN] contacted TRINITY and spoke with HANSON. [FRANKLIN] advised HANSON that some of the samples were over the limit *588 for halogens, and that some of the samples showed good product. MCKENZIE did not return [FRANKLIN]’s call regarding the sample results.

Shortly thereafter, [FRANKLIN] went back out to TRINITY and watched as HANSON collected samples from the barge holds containing product. 89 MCKENZIE did not come out to the barges while the samples were being taken but was aware that [FRANKLIN] was there because [FRANKLIN] had told MCKENZIE earlier in a phone conversation that he was coming out to take more samples. [FRANKLIN]then left and took the samples to PPL where they were analyzed. The analytical results were good on all the samples except one. 90 [FRANKLIN] recalled that the bad product came from a barge hold that contained 50,000 gallons of product. [FRANKLIN] recalled the barge to be the “1st barge”, and the holding tank opening to be 6" from the deck of the barge. [FRANKLIN] could identify the location if provided a diagram of the TRINITY barges. 91 The 50,000 figure was verbally provided by HANSON to [FRANKLIN].

[FRANKLIN], in trying to purchase all the product from TRINITY except the bad product, contacted MCKENZIE at MCKENZIE’S residence. MCKENZIE told [FRANKLIN] to call back to TRINITY the following Monday. Sometime later, [FRANKLIN] talked to MCKENZIE. [FRANKLIN] told MCKENZIE that [FRANKLIN] wanted all of the TRINITY product except the bad, contaminated product. MCKENZIE replied that he already had someone who was going to purchase the whole lot, the good product and the bad product, adding, “why do I have to deal with you”, or words to that effect. [FRANKLIN] told MCKENZIE that the product was “hot”, that it was over the limit for halogens. MCKENZIE replied that he had someone to take care of the bad stuff. 92

[FRANKLIN] thereafter contacted CANAL and spoke to VIDRINE. [FRANKLIN] advised VIDRINE that [FRANKLIN] wanted to buy the product from TRINITY for CANAL, but that not all of the product was good. [FRANKLIN] advised VIDRINE that some of the sampled product was determined through laboratory analysis to be over the limits for halogens. VIDRINE asked [FRANKLIN] if [FRANKLIN] was sure that [FRANKLIN] did not want to take all of the product at TRINITY, both the good and the bad product. *589 VIDRINE stated that maybe he, VIDRINE, could dilute it with other product at CANAL or mix it with something else. 93 [FRANKLIN] advised that diluting or mixing the bad product was not a solution. VIDRINE responded, “Well, if you can’t do it ... ok”, or words to that effect.

[FRANKLIN], who was doing business as a broker with POWER TRADING CORPORATION (POWER TRADING), was working in partnership with JOHN AUTENREITH. When the second set of analytical results were returned to [FRANKLIN]/POWER TRADING, AUTENREITH sent to CANAL/VIDRINE some testing tubes that would assist in identifying bad product containing halogens. It was explained to VIDRINE that for his own protection, every truck needed to be tested for halogens prior to being accepted by CANAL.

[FRANKLIN] made contact with VIDRINE on a daily basis, sometimes as often as 3 or 4 times per day. [FRANKLIN] sold most of CANAL’s refined products. VIDRINE had, at some point, advised [FRANKLIN] that he, VIDRINE, was going to try to save CANAL money by buying cheap feedstock and selling high. The refinery was going to be closed down if it did not show a profit.

About one (1) or two (2) weeks prior to the execution of the Federal search warrant on CANAL, [FRANKLIN] contacted VIDRINE because [FRANKLIN] had learned that VIDRINE had accepted a tanker of product from TRINITY. VIDRINE told [FRANKLIN] that he, VIDRINE, had to buy the product from TRINITY, adding, “we’re just going to try it out”, or words to that effect. VIDRINE advised [FRANKLIN] that, “we have tested it out and it was not over 1000 parts per million (ppm)”, or words to that effect, 94

[FRANKLIN] stated that he had previously faxed to VIDRINE the PPL analytical results of both the first and second sets of samples from TRINITY. 95 Additionally, [FRANKLIN] had faxed the same analytical results to MCKENZIE. However, [FRANKLIN] does not know if MCKENZIE read the fax. [FRANKLIN]reiterated that he/she had verbally advised MCKENZIE that the analytical results of the samples as received from TRINITY were over the limits for halogens and therefor unacceptable. 96

[FRANKLIN] advised that his/her relationship with VIDRINE had a “bitter end”. VIDRINE had lost his job at CANAL. [FRANKLIN] advised VIDRINE to open up his own business and ... [FRANKLIN] would help VIDRINE get started in brokering prod *590 ucts. Approximately one (1) week later, around 11/97, [FRANKLIN] found out that VIDRINE had taken over [FRANKLIN]’s own accounts. At that point, the relationship ended between [FRANKLIN] and VIDRINE. [FRANKLIN] stated that he/she paid VIDRINE all monies that was owed and they ended the relationship on even money terms. 97

(2) The Unraveling of the Franklin Story

The following exchange between plaintiffs’ counsel and Keith Phillips is illustrative of the limited value of the information Mike Franklin provided to Agents Phillips and Barnhill:

Q: [T]he first subject matter ... The first is going to be whether or not even if Franklin’s testimony had been admissible, even if you had been able to use Franklin’s testimony at trial, would you have with that have, had probable cause to go forward, all right? That’s the first subject.

A: It’s the subject matter of Mike Franklin’s analytical [i.e., alleged test results from alleged samples taken from Trinity],

Q: Okay. And your testimony that you told the Grand Jury you had them, and it turned out you didn’t really have them, right?

A: Correct.

Q: (By Mr. Cornwell) Even if you could have gotten the Franklin story into a trial, even if it had not been excluded because of its hearsay nature, even if you would have found the Franklin lab reports which you never did, would you even under those circumstances have had probable cause to indict or continue this prosecution? That’s the question.

A: Yes, we would.

Q: Okay. Then I want to go through that answer and ask you some pointed questions about it. We’ve already established that the Franklin allegation was that one compartment of the Kentucky barge contained over a thousand parts per million of chlorinated solvents, right?

A: Correct.

Q: And that he took several, allegedly took several samples, right?

A: Yes.

Q: (By Mr. Cornwell) If you look at [Exhibit P014-the 302s of Mike Franklin, at] Bates stamp 484 with the FBI number 13 on the right-hand lower corner.

Q: (By Mr. Cornwell) Okay. You see it says, “Results of the tests showed one of the sampled products to be over a thousand ...” And the next paragraph, “Franklin informed McKenzie in person that one of the sampled products tested over a thousand....”

A: Okay.

Q: All right. So what we’re dealing with is a story told to you by Franklin and for probable cause purposes we’re just going to go along as if it were the truth, okay. So what he said was that he had in effect, evidence that there was something somewhere on the premises of Trinity Marine with over a thousand parts of chlorinated solvents in it, right?

A: Yes.

Q: And you believed that, right?

*591 A: I had no reason not to.

Q: [I]t was a potential, but only a possibility because Franklin did not even profess to know whether the contents of that compartment had ever been shipped to Trinity [sic], did he?

A: No, I do not believe he did.

Q: Okay. He knew nothing about the specific shipments from Trinity to Canal, did he — Franklin, Franklin didn’t, did he?

A: No.

Q: [W]hen did Franklin say that he took a sample of one compartment and found it was over a thousand?

A: I believe that he said it was summer of '96.

Q: [T]here are reports reflecting that you-all thought, from what he was saying, it might have been June or July, somewhere in there, right?

A: That’s correct.....

Q: You remember you helped Parker [the AUSA] prepare the Bill of Particulars, right?

A: Yes.

Q: We’ve already established that. And then we already looked at them, and the August 13th was the earliest date. Does that now come back to mind?

A: That sounds right?

Q: So even if you had ever obtained a test result from the compartment, whatever it was that Franklin got his alleged thousand parts per million from, that same compartment may or may not have contained the same product a month or maybe two months later when the first alleged shipment from Trinity to Canal occurred, right?

A: Yes,....

Q: [N]ow, in fact, we also know that, again, just going on what Franklin said, while one compartment contained over a thousand, there certainly were other compartments in the same barge that did not — excuse me — that did not contain a thousand parts per million, right?

A: Yes.

Q: [E]ven the defendants’ lawyers readily admitted that Trinity had hazardous waste on its property, right?

A: I believe they did....

Q: [A]nd in fact they admitted that Trinity had a permit to process and dispose of or get rid of, in other words, to handle and deal with appropriately under the regulations hazardous waste. They had a hazardous waste permit didn’t they?

Q: Okay. And they also sold used oil from Kentucky barge’s IS and IP tanks to Canal for feedstock. Do you see that?

A: That’s what it states.

Q: The materials sent for re-refining, meaning sent to Canal, came from IS and IP, right?

A: That’s what it states.

Q: Okay. And they point out that not only did they believe this was nonhazardous waste, but they point out that the government never tested IS and IP to refute their allegations. Is that accurate?

A: As far as I know. Ivan Vikin was the case agent at that point in time, but I do not believe we ever tested the tanks.

*592 Q: Pm talking about the prosecution you were in charge for from January 4 of 1999, through September of 2003. Surely you know the answer to that question in light of the fact that was your case?

A: It was in 1999, but the reference here is 1996.

Q: I understand, sir, but your case was based on what Franklin said happened in 1996, and your indictment of Vidrine was based on shipments from Trinity from August 13 to September 4, 1996. So are you saying because it occurred in 1996 you don’t know the answer to my question?

A: Yes. I thought I said, as far as I know, we didn’t sample that.

Q: [M]y understanding from all the documents I’ve seen, at least, is that you-all thought the over a thousand part lab test that Franklin said he had came from 4P, and furthermore in response to the judge’s question that this eating problem where one of the compartments had become corroded and it began over time to have little perforations in it and some exchange of product went through those little holes, that was also down at that time same end of the barge where 4P is, wasn’t it?

A: I believe that’s correct.

Q: Okay. So what we have here is both a Franklin story and this corrosion problem you’re talking about occurring at one end of this huge barge and the Trinity people saying, we shipped Canal the petroleum distillates out of the total other end of the barge, IS and IP; isn’t that true? That’s what they said. That’s what the Trinity lawyers said?

A: If that’s in the document. Then, I agree.

THE COURT: I understood you to just have testified that Mr. Franklin at no time told you that he, Mr. Franklin, knew whether or not any materials were shipped to Trinity [sic] that, in fact, had come from the compartment where he allegedly took these samples; is that right?

A: Yes.

THE COURT: So Franklin did not tell you that the materials which he allegedly sampled in fact went to [Canal]. He didn’t know.

WITNESS: That’s correct. 98

Consequently, this Court finds, the evidence presented clearly indicates the Franklin samples, even if presumed to exist, were not pulled from the same hold that contained the product ultimately sent to Canal — or even from a hold where cross-contamination likely would or could have occurred. 99 Furthermore, assuming arguendo that Franklin actually had tested samples of Trinity product on two occasions, and assuming the samples Franklin tested came from the same hold as the product sent to Canal, and assuming that one of those samples contained more than the allowable amount of total halogens, the evidence establishes it is unlikely the product from which those samples were taken was the same product which was some one to three months later, sold to Canal and ultimately became the subject of the indictment. Furthermore, Mr. Vidrine’s undisputed testimony at trial was that Tank 402 — where product such as that obtained from Trinity would have been placed — had been completely drained as of August 13, 1999 (ie. at least one month after Frank *593 lin had allegedly collected samples from Trinity for testing). 100 Consequently, this Court finds whatever was in Tank 402 for which Hubert Vidrine was indicted, would not have been the same product Mike Franklin allegedly sampled, as Mike Franklin’s alleged samples from Trinity predated August 13, 1996 by a minimum of one month, and Tank 402 was drained one month after any such product was sampled.

Furthermore, according to the Bill of Particulars, Canal stored “hazardous waste” received from Trinity from August 13, 1996 (the date the tank was drained) until September 4, 1996. According to Franklin’s 302s, the first sample he claimed he received of Trinity product which he claimed was over the limit for total halogens was in “early 1996” 101 ; when Franklin was reinterviewed some seven months later, Agent Barnhill wrote in her report that the testing was in June or July of 1996 102 ; according to Franklin’s 302s, the barge hold from which the bad product came contained 50,000 gallons of product. 103 According to Andrew Hanson of Trinity Marine, the holds for used oil ranged from a 40,000 gallon capacity up to 80,000 gallons. 104 Hanson told Agents Barnhill and Phillips that Canal would receive approximately 2 truckloads a day of Trinity’s product, 5 to 6 days per week, with each truck containing 7,000 gallons of product. At that rate, it seems unlikely that the product Franklin allegedly tested in either “early 1996” or “June/July 1996” was the same' product that Canal purchased and stored after August 13, 1996— the date Tank 402 was drained — to September 4, 1996.

Additionally, according to Barnhill, Mr. Vidrine told Franklin that Canal had the Trinity product tested before it was accepted by Canal, and it was under 1000 ppm total halogens 105 ; the samples which were taken by Trinity as soon as they learned of the search warrant at Canal were all under 1000 ppm total halogens 106 ; the samples taken by the government from the tanker containing Trinity material at Canal on the day of the search warrant were under 1000 ppm total halogens; and the samples taken by the government from Tank 402 on the day of the search warrant were under 1000 ppm total halogens. 107 *594 No tests or test results verifying or corroborating the alleged Franklin samples and results were ever found to exist; to the contrary, all samples presented contradicted the unsupported Franklin allegations.

Finally, even if one were to assume Mike Franklin took samples of the same product from the same hold at Trinity that contained the product ultimately sent to Canal and that that product made its way into Tank 402 after it had been drained on August 13, 1996, and even if one were to assume Tank 402 was not drained as of August 13, 1996, and even if one were to assume Franklin’s sampled product remained in Tank 402 for a minimum of two to three months (i.e. the time between the latest date Franklin stated he took samples and the alleged storage events), and even if one were to assume Franklin’s lab results showed that the product had tested above 1000 ppm for total halogens, one cannot escape the fact that notwithstanding Agent Phillips assertion, Mike Franklin had no personal knowledge of any knowing violation on the part of Hubert Vidrine.

When asked about this at trial, Agent Phillips testified:

THE COURT: What, if anything, did Mr. Franklin tell you that would indicate that if he, in fact, did not know whether or not any of the shipments that went to Canal were in fact adulterated or contained over the 1,000 parts per million, that in fact Mr. Vidrine knew that.

A: It was Mr. Franklin’s position that Fred McKenzie [manager of Trinity] had told him.

THE COURT: Told whom.

A: Told Mr. Franklin that, if you want the material here on the Trinity, you have to take the good with the bad.

THE COURT: [W]hat, if anything, did Franklin say that would have led you to believe that Vidrine knew that he had gotten product that was over the 1,000 parts per million because that was the problem that Franklin had told you about, not any TCL, or toxicity characteristics, but thousand parts per million.

A: Correct.

A: He [Franklin] told Vidrine that Fred McKenzie told me to take — I could — if I wanted the good, I had to take the bad, and so I walked away from it.

THE COURT: So I walked away from it.

A: He didn’t try to broker the material.

THE COURT: Okay. So at this point, we still don’t have anything going to Canal.

A: No.

THE COURT: When did that change? A: When that material [from Trinity] started coming into Canal which was brokered by John Broussard? 108

A: Franklin learned of that and questioned Mr. Vidrine, ‘Why are you taking this? I told you that if you took the good you had to take the bad.” Vidrine’s response to Franklin was, “We’re only taking the good.”

THE COURT: Okay, so my question to you then is, what, if anything, did Franklin tell you that showed that Vidrine knew he was getting the bad?

*595 THE WITNESS: That’s — that’s what we had.

THE COURT: Really. So you had— Franklin did not tell you that he had told Vidrine—

THE WITNESS: Oh he did.

THE COURT: Please listen — that he had told Vidrine that, in fact, the materials from Trinity, all the materials or the materials that you’re getting would be adulterated, correct? He didn’t tell him that.

THE WITNESS: No.

THE COURT: Franklin did not say that McKenzie told Vidrine, correct, that it was adulterated, or it was going to be over a thousand parts per million, correct?

THE WITNESS: That’s correct.

THE COURT: McKenzie didn’t say he had told Vidrine that, that you had to take the good with bad, correct?

THE WITNESS: No.

THE COURT: So far we have nobody telling Vidrine that, and when — what Franklin did tell you is that, when Franklin was — when Franklin allegedly asked Vidrine, when another broker had been able to cut a deal, whatever that deal was, “Why are you taking it; I told you we had to get the good with the bad,” Vidrine’s response was, “No, our deal is, we only got the good.” Is that what you’re telling me?

THE WITNESS: That’s what I’m telling you.

THE COURT: And in a nutshell that’s what you had to show knowledge on the part of Vidrine that he was getting— that he knowingly was receiving and storing hazardous waste?

THE WITNESS: That was not the only. The other issue is the reputation of barge cleaning facilities, as I discussed yesterday, that the industry knew, as a rule—

THE COURT: I’m not interested in the industry at this point. I’m interested in Mr. Vidrine.

THE WITNESS: Mr. Vidrine should have known that barge cleaning operations produce adulterated material.

THE COURT: Why?

THE WITNESS: It was common knowledge in his industry and alternate feedstocks. 109

Thus, even Phillips admitted at trial that Franklin had not provided evidence of Vidrine’s actual knowledge, as would be required under the criminal statute for which Mr. Vidrine was indicted. Furthermore, as of at least March 3, 2000, Phillips, the government’s lead investigator, was aware the samples taken by the government from Tank 402 at Canal on the date of the search warrant did not corroborate Franklin’s assertions, as those samples were far beneath the 1000 ppm threshold level.

(3) Additional Credibility Issues re: Franklin

Of particular relevance to this Court is the fact that in none of Agent Barnhill’s reports to her supervisors, nor in any of the 302s she drafted reflecting her interviews of Mike Franklin, does Agent Barn-hill mention that Mike Franklin, whom the government agents considered to be their key witness, had failed to provide the lab reports upon which the case turned, nor that a plethora of subpoenas had failed to produce any such lab reports. 110 - Agent *596 Barnhill testified that although it was her custom to include all negative information in her 302s, she inexplicably did not do so with Franklin, on any matter.

Phillips’ notes and reports, like Barn-hill’s, were also devoid of any mention of Mike Franklin and the problems associated with this “key witness.” In point of fact, Phillips’ documents were devoid of any mention whatsoever of Mike Franklin. Although Agent Phillips testified his omission was the result of the unique agency relationship created by Agent Barnhill between the FBI and Mike Franklin, a fact Agent Barnhill corroborated and Agent Langlois affirmed, both Agent Phillips and Agent Langlois testified verbal reports should have been provided. The government presented no witness or evidence, beyond Phillips unsubstantiated assertion, of any such verbal reports, nor any evidence that notice of Franklin or his credibility problems was provided to Phillips’ supervisor. Thus, there is no evidence that Agents Barnhill or Phillips ever indicated to their superiors the inherent escalating proof of the weakness of the Franklin story. 111

Agent Barnhill testified Mike Franklin told her during an interview that he had notes of a conversation he had with Vidrine — a conversation Barnhill, Phillips and the government argue is pivotal to a finding of knowledge on the part of Vidrine. Barnhill testified Franklin told her he would fax his notes of that conversation to her. However, some seven days later, when Agent Barnhill ultimately drafted the 302 memorializing that interview, Franklin had still not sent the promised notes to Barnhill. More troubling is the fact that information regarding Franklin’s statement that he had notes of a conversation with Vidrine showing knowledge on the part of Vidrine, as well as Franklin’s failure to send a copy of those notes to Agent Barnhill, is mysteriously missing from Agent Barnhill’s 302. Again, this is yet another failure by Mike Franklin to deliver corroboration of his allegations, another example of the indifference of the government to that fact during the investigation and prosecution of Hubert Vidrine, and another example of the only reporting agent’s failure to report Franklin’s inability to corroborate his alleged information to the very supervisors who were to oversee the investigation. 112

Additionally, Mike Franklin had an eighteen year cocaine habit 113 , a history of *597 psychiatric treatment, several arrests involving narcotics, and had had several liens filed against him. This information was available to Phillips throughout much of the investigation. 114 Agent Barnhill’s 302s and reports to her superiors fail to document any of this information, and as noted, Agent Phillips’ reports were devoid of any mention of his self proclaimed key witness.

It should be noted Agent Phillips and Agent Barnhill also knew Mike Franklin held a grudge against Hubert Vidrine, as Mr. Vidrine had become a direct competitor of Franklin’s and had taken business from Franklin. Barnhill’s 302s reflect that in 1997, after Vidrine left Canal, Vidrine began to undersell Franklin, thereby taking some of Franklin’s business. Additionally, in contrast to that which Franklin told agents, Vidrine testified Franklin did owe him money from some business deals they had done together when Vidrine first started his own brokerage business.

Also, after the execution of the federal search warrant at Canal and its negative impact upon Canal, yet while Vidrine was still employed by Canal, Franklin attempted to purchase Canal. When he was unable to obtain the financing, he then offered to buy Tank 402, separate “the good product” from “the bad product,” and dispose of the product legally. In other words, Franklin offered to “make a deal” similar to that which he had allegedly walked away from previously, he attempted to purchase a weakened Canal, and he saw Vidrine as a competitor.

On January 23, 2001, following a hearing presenting the problems and absences in the Franklin story, the presiding judge in the criminal case barred Franklin’s testimony — a development the AUSA characterized as a “mortal wound.” Yet again, this information is not reported by Agent Barnhill at all, and not reported by Agent Phillips until seven months later. Nevertheless, the prosecution of Hubert Vidrine continued in vain in its continuing failed attempt to locate Franklin’s fictitious lab reports, which had not surfaced in the three years since agents had first contacted Franklin. In a last ditch effort to locate the phantom reports, on August 21, 2003, the government hypnotized Mike Franklin. The information Franklin provided under hypnosis, like most other information he provided, bore no fruit. The reports were never located; evidence of their existence was never found; information given could not be verified.

(4) Phillips Testimony regarding Franklin before the Grand Jury

First, one cannot lose sight of the fact that Mike Franklin never testified before the grand jury. Rather, at the first grand jury hearing held on July 14, 1999, Keith Phillips conveyed what he chose as the primary points of the Mike Franklin narrative to the grand jury, notwithstanding Phillips had not been present at the initial Franklin interview. However at the September grand jury session, Agent Phillips went even further, in describing that which he selected from the Franklin story. On this occasion, Agent Phillips, while under oath, testified falsely to the grand jury on the central damning point: he testified to the grand jury that he had reviewed Franklin’s reports (which were never found), and Franklin’s reports showed the Trinity product “contained chlorinated solvents” (neglecting to mention Franklin actually said “over 1000 ppm chlorinated solvents.” 115

*598 As of August 11, 1999, Agent Phillips had numerous lab reports in his possession, obtained by way of grand jury subpoena, from Precision Petroleum Labs, the lab to which Franklin said he had sent the Trinity samples to be tested, as well as from other potential labs. 116 Prior to the September 1999 grand jury session, Agents Phillips and Barnhill met with Franklin to review the subpoenaed test results, and, according to Agent Barnhill, Franklin advised the agents the subpoenaed test results were not the lab reports of the samples at issue. 117 Nevertheless, on December 14, 1999, Agent Phillips testified falsely for a second time to the grand jury, again claiming to have seen the Franklin test results, and again, stating the reports showed Trinity’s product was “contaminated with chlorinated solvents.” 118

At trial of this matter, Agent Phillips attempted to explain his behavior by stating he had thought the reports obtained by subpoena from PPL were the Franklin reports. Agent Phillips testified:

A: I do not remember when we first asked him for those lab reports.

Q: Do you remember that he, at least, was asked for it one or more times before you sent out Grand Jury subpoenas?

A: I know in my, I guess it was, July 1999 Grand Jury testimony that we believed we had them. We had an analytical from Petroleum Precision Laboratory which ... I ... believed to be the analytical data.

THE COURT: Uh-huh. And when did you realize it wasn’t [the Franklin lab report]?

A: At some point Michael Franklin himself pointed out that was not the right analytical data. It would have been sometime after the Grand Jury testimony.

THE COURT: You didn’t show it to your witness, Mr. Franklin, before he went in to testify before the Grand Jury about this lab report? You didn’t show *599 him the purported lab report and talk -with him about it before you sent him into the Grand Jury?

A: We did not send him into the Grand Jury.

THE COURT: He did not testify?

A: No, ma’am.

THE COURT: Well, you testified there?

A: Yes, ma’am.

THE COURT: About something you had not asked him about as to whether these were the lab reports?

A: I do not remember if we asked him or not, Your Honor.

THE COURT: No I’m asking whether you asked him.

A: I don’t know.

THE COURT: You were the one who was going before the Grand Jury and under oath.

A: Correct.

THE COURT: Were testifying to what you had personal knowledge thereof?

A: Absolutely.

THE COURT: And you, I’m assuming, testified as to the existence of those reports to the Grand Jury, correct.

A: That’s correct.

THE COURT: Uh-huh. And you could not have, in fact, seen the actual lab reports because they were never found, right.

A: We had — no.

THE COURT: Right?

A: Yes.

THE COURT: And what you thought you had you went and testified about without talking to Mr. Franklin about it?

A: I do not remember if we talked to him or not.

THE COURT: Well, that raises the next point. If you talked to him about it and showed it to him, it would seem he would have told you these are not the right ones because you are telling me he said that at some point in time.

A: Yes, ma’am, that’s correct.

THE COURT: Uh-huh. And if you showed it to him and he said they were the right ones, that would be a whole ‘nother issue.

A: That’s correct.

THE COURT: So you’re telling this Court that these documents that never — it turned out they never existed, but that there were some “analytieals” that you are telling this Court you believed to be the Franklin documents.

A: That’s correct.

THE COURT: You went and testified under oath before the Grand Jury without ever having spoken to Franklin and asked him about those documents and what they meant, where they were, are these the right ones. You don’t remember.

A: I do not remember the chronology of events leading up to that.

THE COURT: But do you agree with me that you have now said that Mr. Franklin at some point told you, no, those aren’t the right ones. Correct?

A: That is correct.

THE COURT: It would seem to be a reasonable presumption, then, or a reasonable inference you didn’t ask him about those before you went to the Grand Jury or he would have told you then, unless there’s something I’m missing. Please enlighten the Court if possible.

A: I would have to say you’re correct.

THE COURT: Yeah. And you went in and testified about something asserting you had personal knowledge of it when in fact you did not, yes?

A: It would appear so. 119

*600 This Court notes upon review of the lab reports Agent Phillips referenced, that even a cursory review by the most unseasoned rookie would have shown the proclaimed error. Agent Phillips testified after he had received the subpoenaed reports, there were two which he thought were the pertinent Franklin reports. However, even the briefest of reviews would have shown one of the two reports Phillips referenced did not show the sampled product to contain over 1000 ppm total halogens as Franklin had alleged, and the other was of a sample taken after the time frame for which Mr. Vidrine was indicted. Hence, on their face, neither could have been mistaken for the absent Franklin reports. 120 Furthermore, even if the Court accepts Phillips prior testimony that at the September grand jury session he had not had sufficient time to review the subpoenaed documents, setting aside the recklessness of such a statement in a court of law, he nevertheless had more than three months to review those documents prior to the December grand jury session — yes still made the same “mistake.”

This Court, for the reasons noted above and those which follow, finds Agent Phillips wholly without credibility in toto on any matter before this Court, but in particular on this point — the documents, on their face belie Agent Phillips’ testimony. This Court finds, based upon the evidence presented in this case, including Agent Phillips’ testimony, that Agent Phillips’ grand jury testimony likely raised the specter of perjury not once, but on two separate occasions: (1) his testimony before the Grand Jury in September 1999, when he testified he had seen the Franklin test results, and testified as to the contents and results of the non-existent reports, when in fact he had not; and (2) his testimony before the grand jury on December 14, 1999, when he, again, testified he had in hand and had reviewed the Franklin test results when, in fact, he had not. And again, Agent Barnhill testified Franklin had previously advised the agents the argued reports were not the reports to which he had alluded. 121

Agent Phillips testified he was mistaken when testifying before the grand jury, a fact he realized only after testifying to the grand jury. However, this Court found that particular testimony to be wholly without credibility, and not supported by the record. Furthermore, this Court finds Agent Phillips’ failure to verify his assumptions with Mike Franklin when Franklin was readily available, is at best, illustrative of reckless disregard, or at worst, intentional disregard for the oath he took as an EPA agent and the oath he took before the grand jury.

ii. Conclusion of that which the Franklin information added to the prosecution

Mike Franklin was a broker within this peculiar niche (the buying and selling of alternative feedstock) of the oil industry. He was a salesman, in competition with other salesmen, in the pursuit of a finite product in a shrinking market. By the time Mike Franklin came on the radar of law enforcement agents investigating this matter, he had already become a competitor of, and lost the competition, to Hubert Vidrine.

Had the AUSA had been given all the facts by Phillips and Barnhill (both good and bad, and excluding half-truths), or had the 302s been more complete and timely provided to the AUSA, and had a reason *601 able interpretation of the applicable regulations been provided to the AUSA and the grand jury by Phillips, and had Agent Phillips testified truthfully to the grand jury, this Court finds a very different result likely would have ensued: Hubert Vidrine would not have been indicted. For reasons that will never be known by anyone other than Agent Phillips, Agent Phillips was not content to merely “gather the facts and let the facts themselves either support or not support the indictment” as he testified one should do. 122 Rather, Agent Phillips, either deliberately, or with reckless disregard for the truth, provided false testimony to the grand jury in order to secure an indictment against Hubert Vidrine, on at least two occasions, and permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations.

The facts, themselves, did not change; the law, itself, did not change. What changed was Phillips’ ability to continue to hide his “over speaking,” his “misleading,” his false testimony to the Grand Jury, and the glaring omissions of pertinent information. “The mere presence of chlorinated solvents” is not illegal as Phillips testified; Mike Franklin and Agent Phillips did not have test results showing Trinity had hazardous waste on its premises it was attempting to sell as used oil; Mike Franklin never told investigators he had a test showing “the presence of chlorinated solvents with the characteristic of toxicity” on Trinity Marine’s premises; Mike Franklin had no personal knowledge of knowledge on the part of Hubert Vidrine. With only the smallest bit of objective detective work, Agent Phillips could and should have known (and indeed, likely did know) that Mike Franklin’s story was neither credible nor trustworthy. 123 The investigation revealed conflicts of interest, unpleasant business competition, financial problems (perhaps stemming from an almost two decade long cocaine habit), and possible contamination of Franklin’s alleged information due to Franklin’s presence during the search at Canal. 124 What ultimately secured an indictment against Hubert Vidrine was not Mike Franklin, as Keith Phillips testified — it was Keith Phillips’ and Phillips’ “tweaking” of the Mike Franklin story to create facts, as Agent Phillips wanted to see them. Given the inherent problems, omissions and glaringly obvious weakness of Mike Franklin and his information, Agent Phillips and Barnhill’s omission of those problems, and Phillips’ dogged pursuit of Hubert Vidrine, this Court is left with the question, “Why?” (That question will be discussed in full detail below when this Court explores the issue of malice.) For now, it is sufficient to note the conduct.

Again, the Court returns to the fact that Canal Refining and Hubert Vidrine (as an *602 employee of Canal Refinery) were in the legal and legitimate business of buying alternative feed stock, including used oil, which by its nature, and as contemplated by the regulations, is expected to contain certain amounts of halogens (which include chlorinated solvents), thus, a finding of chlorinated solvents, in and of itself, is not violative of the law. One source of used oil for Canal was the barge cleaning industry (namely, Trinity Marine), which was also in the legal and legitimate business of emptying and cleaning barges used to transport various material, including oil, and thereafter recycling that used oil by selling it to re-refiners such as Canal — a practice explicitly encouraged by the EPA. Although Agent Vikin, whom this Court found to be credible, testified that as an industry, the barge cleaning industry had a poor enforcement record, nonetheless, the industry itself was a legal and legitimate industry.

Again, “Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.” Miller; 511 So.2d at 452 (emphasis added). Unfounded suspicion and conjecture will not suffice. Id. Verification is required to establish probable cause if the source of the information seems unworthy. Id. (emphasis added). 125 In light of the foregoing, this Court finds Mike Franklin in no way provided probable cause to indict, or continue to prosecute, Hubert Vidrine.

d. “Deliberate Ignorance” of Vidrine

With the exception of Agent Phillips’ testimony that Mike Franklin provided the crucial element of knowledge on the part of Hubert Vidrine, which, for the reasons provided this Court finds to be wholly without merit or credibility, the government presented no persuasive evidence of direct knowledge on behalf of Mr. Vidrine. To overcome this essential void in its case, the government has argued that had the criminal matter gone to trial, the government could and would have proven knowledge on the part of Hubert Vidrine, through the use of the “deliberate ignorance” jury instruction. 126 The Fifth Circuit Criminal Pattern Jury Instructions define “deliberate ignorance” as follows:

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. 127

As stated by the Fifth Circuit in U.S. v. Lara-Velasquez 128 :

The term deliberate ignorance “denotes a conscious effort to avoid positive knowledge of a fact which is an element of an offense charged, the defendant *603 choosing to remain ignorant so he can plead lack of positive knowledge in the event he should be caught.” The hey aspect of deliberate ignorance is the conscious action of the defendant — the defendant consciously attempted to escape confirmation of conditions or events he strongly suspected to exist. As one opinion has colloquially noted, deliberate ignorance is reflected in a criminal defendant’s actions which suggest, in effect, “Don’t tell em, I don’t want to know.” The purpose of the deliberate ignorance instruction is to inform the jury that is may consider evidence of the defendant’s charade of ignorance as a circumstantial proof of guilty knowledge. “[T]he instruction is nothing more than a refined circumstantial evidence instruction properly tailored to the facts of a ease____”

A deliberate ignorance instruction should be used sparingly. See United States v. Chen, 913 F.2d 183 (5th Cir.1990).

The government argues that because Vidrine was responsible for the purchase of all feedstock for Canal since 1995, he had to have known what he was doing — in other words, the government argues Mr. Vidrine was “deliberately indifferent” to the fact that he was accepting hazardous waste. More specifically, the government argues that in March, April, and May of 1996, Canal had been losing money for a couple of years; that Vidrine was responsible for Tank 402, which was used to store AFS prior to the manufacture of high sulfur diesel; and that high sulfur diesel was the big “money maker” for Canal — thus arguing Vidrine had a motive to accept used oil that was “cheap,” due to its adulteration with hazardous waste, to get Canal “back on its feet.” 129 For the reasons that follow, the Court finds a “deliberate ignorance” jury charge does not overcome the government’s inability to show knowledge on the part of Hubert Vidrine. This Court will now address the evidence the government argues supports the application of the deliberate ignorance charge,

i. Fred McKenzie

As briefly noted earlier, Agent Phillips testified that Fred McKenzie actually told Mike Franklin (and not Hubert Vidrine) that if he, Franklin, wanted Trinity Marine’s used oil, he had to “take the good with the bad.” The only 302 that mentions anything about taking both good and bad product, is the final Barnhill 302 from July of 1999;

[FRANKLIN] told MCKENZIE that [FRANKLIN] wanted all of the TRINITY product except the bad, contaminated product. MCKENZIE replied that he already had someone who was going to purchase the whole lot, the good product and the bad product, adding, “why do I have to deal with you”, or words to that effect. 130

While the government vehemently argues this statement meant McKenzie, and thus, Trinity, was attempting to illegally dispose of purported hazardous waste, equally plausible readings are that McKenzie was looking for a buyer with a hazardous waste permit, so that he could buy all the product — -both hazardous and non-hazardous— or that he was referencing other problems with the used oil, not relating to hazardous waste.

The government had multiple witnesses who advised agents that in their opinion, *604 any statement by McKenzie that a buyer must “take the good with the bad” was not a reference to hazardous waste, but rather, was a reference to used oil that did not meet the specifications of a customer. In other words, Trinity Marine — who had a hazardous waste permit, and thus, presumably had been deemed by the applicable government agencies as sufficiently knowledgeable and prudent in the handling of hazardous waste — was not attempting to illegally dispose of its hazardous waste, but rather, was not going to separate its used oil into separate batches to meet the various specifications of different refineries and those refineries’ equipment.

For example, the government relies upon a facsimile from David Deshotels of U.S. Filter to Fred McKenzie, dated August 12, 1997, addressing potential hazardous waste contained on the Kentucky barge, as well as an interview of David Deshotels, to bolster its claim that Trinity was attempting to dispose of its hazardous waste and Hubert Vidrine should have known this fact. 131 Essentially what these two documents show is that in 1997, while Trinity was selling off its used oil (because it was in the process of closing its barge cleaning facility), U.S. Filters, a buyer of used oil, collected samples of Trinity’s product to determine whether it wished to purchase that material. One of the samples tested by U.S. Filter showed a “high concentration of total halogens.” 132 Another sample showed a high concentration of water, which is not a violation of the hazardous waste or used oil regulations, but rather is a factor that can make used oil “bad” for the specifications of a given refinery. In fact, Agent Phillips’ own memorandum of the Deshotels interview states:

DESHOTELS stated McKenzie told him he would ‘have to take it all or nothing’ but did not understand McKenzie to mean the oils containing high concentrations of total halogens.

DESHOTELS stated he agreed to take all the oil except the oil containing high concentration of total halogens. 133

When U.S. Filter subsequently returned to Trinity to pick up the used oil, one of the three tankers was rejected, due to the oil containing more water than the samples had represented. 134 McKenzie had U.S. Filter pump the rejected oil back into Trinity’s barge. 135

First, the foregoing post-date the alleged criminal acts for which Mr. Vidrine was indicted by almost one year, and second, Trinity’s Kentucky barge remained in use after the search warrant was executed at Canal, and during that time it was still being filled and emptied. 136 Consequently, any hazardous material that might or might not have been found on the Kentucky Barge almost one year after the storage events in question, at a facility that was licensed to handle hazardous waste, is no way indicative of whether or not Hubert Vidrine was knowingly storing hazardous waste, without a permit, at the Canal refinery, from August 13, 1996 through September 4,1996.

Additionally, Andrew Hanson, Environmental and Safety Coordinator at Trinity Marine, who worked directly under the supervision of Fred McKenzie, testified on this topic before the grand jury. Hanson’s testimony reads as follows:

*605 Q Now, there came a point in time, this vendor [Franklin] is trying to do business with Trinity, and I have reason to believe. that the vendor said words to the effect, to not you necessarily unless you tell me he did, but to Fred McKenzie words to the effect that “I’ll take the good stuff, I’m not going to take the petroleum distillate that has chlorinated solvents in it, because, you know, that’s — ”

Q A Waste.

Q —“waste. I’m not going to take that.”

And the grand jury has heard, or will hear, testimony to the effect that management with Trinity said words to the effect, “You take it all or you take none at all.”

And of course, that suggested to the vendor that you take the good stuff with the bad.

However, you have a perspective on that, and you need to share that with the grand jury. I think your perspective is is that Fred McKenzie may have meant you take the good stuff, the medium stuff, and the stuff that’s not so good, but not hazardous waste. So you have to take the good with the not so good, you have to take the better with the poorer. But to your way of thinking, when he said that— were you there when he said “all or nothing”?

A I was not there when he said it to any vendor. He had said it to me that that was the course he was pursuing in obtaining a vendor to handle the material.

Q But you took that to mean, from your perspective, that some of the stuff you had was real good stuff, some was fair stuff, and some was— is marginal stuff, but it’s all stuff that you can sell.

The next category of stuff is that hazardous waste, which you must dispose of by manifesting it and taking it to disposal areas, correct?

A Talking about good — by levels, I’m talking, referring to price, not quality.

Q and so when Fred has said to you, Fred McKenzie, “all or nothing,” you don’t take him to include the hazardous waste in that “all or nothing.” Because essentially, if that’s what he meant to do, what would your position have been?

A I would have quit. 137

In light of the foregoing, the Court finds if McKenzie told Franklin he would have to take all of Trinity’s used oil, both “the good and the bad,” it is more likely than not he was referring to product that would not meet a buyer’s specifications — not that an unpermitted buyer would have to illegally accept Trinity’s hazardous waste as well as its used oil. Most importantly however, again, the statement McKenzie allegedly made to Franklin still does not impart knowledge or deliberate indifference on behalf of Hubert Vidrine, as the government argues.

*606 ii. Andrew Hanson

The government argues Andrew Hanson’s grand jury- testimony supports its showing of probable cause and Hubert Vidrine’s deliberate ignorance, particularly as it provides corroboration of Franklin’s statement that one sample taken at Trinity Marine tested positive for over 1000 ppm chlorinated solvents. First, from this Court’s review of Hanson’s grand testimony, it actually indicates Hanson had no specific recollection of Mike Franklin coming out to Trinity to buy product or take samples. 138 Rather, those were facts assumed by the prosecutor in his questioning of Hanson, likely due to information tunneled to him by Barnhill and Phillips.

Next, Hanson testified to the grand jury that at some point in time, Hanson did realize that chlorinated solvents in the 4 starboard hold of the Kentucky barge had eaten through the walls of that hold and leaked into at least two of the surrounding holds containing petroleum distillates. 139 However, as previously discussed, the evidence indicates that, in fact, had Franklin pulled samples, they would not have been pulled from the same hold that contained the product ultimately sent to Canal — or even from a hold where cross-contamination likely would or could have occurred. Additionally, Hanson testified when he learned of the search warrant executed at Canal, he was “fairly sure” he resampled all tanks from which material was pulled to send to Canal, and to his recollection, the test results came back showing no signs of chlorinated material. 140 Hanson further testified it would have been difficult for someone at Trinity to have clandestinely smuggled out chlorinated solvents mixed with petroleum distillates without his having known about it, and he had no such knowledge. 141 Finally, as already discussed, Hanson testified if and when McKenzie told Franklin he had to take all product — both good and bad — he would not have been referring to hazardous waste, but rather, all used oil, whether or not it met the particular specifications of a particular refinery.

iii. Harold Langdon

The government, also, argues Harold Langdon, Vice President of Marketing and Administration at Canal, not only supports deliberate ignorance, but also provides corroboration of the Franklin story. Agent Barnhill’s December 302 of Franklin reads: “[FRANKLIN] talked to HAROLD LANGDON, who said that VIDRINE bought bad product and that the bad product was put into Tank 402.” Again, the evidence revealed that in the refinery business, references to “bad product” typically refer to product that does not conform to a given refinery’s specifications, for a variety of reasons, and can lead to a shut down of the refinery’s equipment. For example, in the refinery business, “bad product” can refer to product with a high salt content, a high viscosity, excess gravity, excess water, etc. Consequently, the statement contained in Barnhill’s 302, which itself constitutes, at best, her memo *607 ry of hearsay within hearsay, does not necessarily correlate with Franklin’s allegation of the presence of more than 1000 ppm chlorinated solvents in one of the multiple samples he allegedly took and had tested at least one month prior to the alleged conduct for which Hubert Vidrine was indicted. Additionally of note, Harold Langdon was interviewed by Agent Phillips, and Agent Phillips’ Investigation Summary Report reveals no reference to Langdon having stated Vidrine bought bad product and put it in Tank 402. Of further interest, Phillips’ report states: “Langdon had little interaction with Vidrine other than discussions concerning supply and marketing.” 142

iv. Frank Bourque

The government, also, relies upon the interview of Frank Bourque, an AFI employee, to show “deliberate ignorance.” Specifically, the government relies upon the following statements in Agent Barn-hill’s memorandum memorializing that interview: “BOURQUE stated that VIDRINE knew what sort of material CANAL was receiving from TRINITY. ‘It was all about money’, or words to that effect. BOURQUE added, "Where they (CANAL) could save that buck, they would save it’, or words to that effect.” 143 The Court finds the foregoing does not support the government’s assumption that because Vidrine acted to save his company money, he set out to purchase illegal AFS to further that endeavor. Moreover, the foregoing does not provide knowledge, direct or otherwise, that Vidrine knew the used oil he was receiving had, perhaps, been adulterated with hazardous waste by Trinity. The Court finds the government overreaches in its argument. Furthermore, the Court finds when read in its entirety, the Bourque interview actually undercuts the government’s argument regarding knowledge — deliberate or otherwise.

Agent Barnhill’s 802 of Bourque reads in pertinent part:

In developing the deal to transport material from Trinity to Canal, John Broussard dealt with Fred McKenzie at Trinity regarding what materials were available, and Campbell dealt with Hubert Vidrine at Canal regarding what materials Canal would accept.

Whiting was the full time driver of the AFI tanker used to transport between Trinity and Canal. When Whiting was to transport a load between trinity and Canal, he would receive from the AFI office Bills of Lading that would already be filled out. ... It would already be known by John Broussard what material was to be picked up that day from Trinity....

At Trinity, only Trinity employees were allowed to pump the Trinity material into the AFI tanker. A sample was then taken from the top and the bottom of the tanker by a Trinity employee. If no sample was provided, Whiting would pull the sample himself. Upon arrival at Canal, a Canal employee would sometimes pull a sample from the tanker, depending on the Bill of Lading. If the material being brought in from Trinity was listed as ethanol, then a sample was always pulled at Canal. If the material from Trinity was listed as petroleum distillates, then a sample was often not pulled at Canal and the tanker went immediately to off load at a special storage tank.

Bourque recalled that on many occasions, the material from Trinity was not what McKenzie had said it to be. At times, the material AFI was told to be petroleum distillates was found to con *608 tain water and sludge. Some of Trinity’s materials were not accepted by Canal. When that occurred, the material in the AFI tanker was brought to AFI to be stored. Bourque sated that he was told by John Broussard, “We have to take the bad with the good”, or words to that effect. Bourque added that if the bad was not taken by AFI, then AFI would not get the good material.

Bourque advised that Vidrine accepted almost anything. If a load was rejected at Canal, it was done due to sludge or a high water percentage in the ethanol. Canal would accept anything else. Quantity, not quality, was important. Bourque states, “It would have to be horribly bad off for them not to accept it. Canal would hide it in something else”, or words to that effect.

Bourque recalls that approximately every other return trip from unloading material at Canal from Trinity, Whiting would bring a sample from that load to AFI. This sample, which John Broussard was told by Trinity to be petroleum distillates, was tested at AFI and found to contain constituents to include benzine, toluene, and xylene. Chlorinated solvents were identified by John Broussard as being present in the sample according to the smell. Through these test results at AFI of Trinity material, Bourque thought that the material should have been disposed of, not sold, by Trinity. Bourque stated, “Trinity was doing anything it took to get the barges striped [sic]”, or words to that effect.

Bourque recalls the day of the federal search warrant on Canal because Whiting returned to AFI with a tanker load of material from Trinity that was turned away from Canal and not permitted to unload----

... However, Bourque recalls that on possibly two (2) occasions, the tanker did not go directly to Canal from Trinity, but instead returned to AFI from Trinity to get “topped off’ with either ethanol or a red oil substance. John Broussard used petroleum distillates to top off the tanker. Bourque does not believe that John Broussard used chlorinated solvents to top off the tanker. Bourque added, “I see everything put into the tankers”, or words to that effect. Bourque did not observe John Broussard use known chlorinates to top off the tanker.

Bourque is not aware of any time when AFI loaded the tanker with any material from AFI prior to the tanker leaving for Trinity to receive a load for Canal. On the day of the federal search warrant, wherein the load from Trinity to Canal was returned to AFI, the entire load was pulled straight from Trinity and was not brought by AFI to be topped off.

Campbell always dealt with Vidrine. 144

Thus, the Bourque information shows Mr. Vidrine dealt with Mel Campbell, not John Broussard, again undercutting Agent Phillips’ testimony to this Court and his testimony at length to the grand jury about John Broussard and AFI, and his argument that he gave that testimony to the grand jury because he wanted the grand jury to “know who Mr. Vidrine was doing business with” 145 ; it provides further support for Vidrine’s statement to Agent Vikin that trucks from trusted vendors were not always sampled for compatibility with Canal’s refinery equipment immediately, but rather, were allowed to unload prior to Canal testing the eompati *609 bility of the product; it provides further support for the proposition that in the refinery industry, “bad product” typically refers to product that is incompatible with a refinery’s equipment and does not refer to product adulterated with chlorinated solvents; it specifícally states Broussard was not laundering his hazardous waste in the Trinity material destined for Canal; and it contains no indication that Vidrine knew he was storing purported hazardous waste, rather than used oil, at Canal Reñnery.

v. Randall Whiting

The government cites the following information from Randall Whiting, the full time driver of the AFI tanker used to transport product between Trinity and Canal, in support of its showing of Vidrine’s deliberate ignorance and of probable cause. 146 Specifically, the government argues Whiting told agents about a contract between Broussard and Trinity; that Whiting told agents when product was being transferred from Trinity’s hose to the AFI tanker, Whiting observed the product to be blackish-grey in color and smelling of chemicals; that Whiting stated no samples were pulled at Canal from the AFI truck prior to the off-loading of product; and that Whiting told agents he did not make any stops to pick up other product en route from Trinity to Canal.

First, yet again, there is no evidence Whiting shared any of the foregoing information with Vidrine. Furthermore, there is no evidence Hubert Vidrine smelled the material, or that Mr. Whiting had the expertise to discern the difference between used oil, which might or might not be violative of the regulations, and various other petroleum substances perhaps mixed with hazardous waste, via his sense of smell. 147 Furthermore, as to Canal pulling samples from Whiting’s load, when one reviews the actual source of this information, it reads as follows:

At CANAL, no samples were pulled from the AFI truck prior to the AFI truck off loading product into the CANAL tank. WHITING stated that at times when he, as an AFI tanker driver, trucked products in to CANAL from other facilities besides TRINITY, a sample would be pulled by CANAL prior to the product being off loaded into CANAL tanks. 148

The foregoing is in conformity with that which Vidrine told investigators at his initial interview: the testing Canal was doing at that time was not to check for chlorinated solvents or other halogens, but rather, was designed to determine whether or not product was consistent with the specifications of Canal’s refinery. Before purchasing product, Canal had the product tested for the foregoing purposes. If the product was purchased from a trusted vendor, it was not always re-sampled immediately upon delivery. 149 And again, although the Trinity material was transported from Trinity to Canal on a tuck owned by AFI, it is undisputed the material did not come from, or stop at AFI. 150 Thus, the Whiting *610 information does not support the government’s argument.

vi. Financial motives

In addition to Bourque, the government also relies on Mike Franklin and Michael Fruge to show the existence of deliberate ignorance as to Hubert Vidrine, arguing that for Vidrine, it was “all about the money.” In Franklin’s July interview, Barnhill records that Franklin advised her that at some unidentified point in time, Vidrine told Franklin he was going to try to save Canal money by buying cheap feedstock and selling high, because the refinery was going to be closed down if it did not show profit. 151 This in no way shows intent to break the law, rather it shows an aggressive business strategy which, on its face, in no way indicates illegal intent. Similarly, the government relies upon the interview of Michael G. Fruge, a Process Manager at Canal who was supervised by Vidrine, to show “high sulfur diesel is the big ‘money maker’ for Canal.” 152 Again, the Court finds the fact that Vidrine was a business man who tried to save his company money does not mean he set out to purchase illegal AFS to further that endeavor, and more importantly, these statements do not provide knowledge, direct or otherwise, that Vidrine knew the used oil he was receiving had been adulterated with hazardous waste as the government argues. Moreover, a review of the entire Fruge memorandum reveals, like so many others in this case, that Fruge actually undercuts the government’s allegations against Hubert Vidrine. 153 The Court again finds the government overreaches in its argument.

The government argues Agent Barnhill’s interview of Aaron Hornsby supports their argument of deliberate ignorance. Agent Barnhill’s memorandum reflects the following:

[W]hen feed stock is bought at 20 cents a gallon there is something wrong with it. Common sense tells a person there is a reason why it is cheap. Santa Clause died a long time ago. Another refinery is not going to give you good feedstock at cheap price. Why would they? The AFS [Alternate Fuel Stock] had a pungent egg smell to it. The AFS did not smell like crude oil, “or words to that effect.” 154

Much like Mike Franklin, the evidence in the record showed Aaron Hornsby also had great reason to bear animosity toward Hubert Vidrine. The testimony at trial indicated Mr. Hornsby had an alcohol problem, that at some point prior to being fired by Canal, Hornsby was no longer allowed to deal with Canal’s AFS, as that job was given to Vidrine. After Hornsby was fired, he was replaced by Hubert Vidrine, whom Hornsby had previously supervised. Hornsby’s animosity toward Vidrine is further bolstered by Barnhill’s testimony at the grand jury that Franklin told her that Vidrine told him that Vidrine thought Hornsby’s son may have “plant *611 ed” hazardous waste in Tank 402. Additionally, it appears other employees at Canal were aware of Hornsby’s animosity toward Vidrine, as reflected by the following information contained in Agent Phillips’ March 2000 Investigative Summary Report regarding his interview of Ben Harmon, a former laboratory assistant at Canal:

Harmon advised SA Phillips that Aaron Hornsby’s wife had ties to the Kennedy family in Washington D.C. and that ‘the issue of Vidrine handling hazardous waste was a conspiracy between the Hornsby’s with the help of the Kennedy’s to get even with Hubert Vidrine for taking Hornsby’s job as refinery manager’, or words to that effect. 155

Nonetheless, Hornsby’s information, even if found to be reliable, which is in great question, would not support the government’s argument that the deliberate ignorance instruction should apply.

vii. Chuck McConnell

The government additionally points to Agent Phillips’ Investigative Activity Report regarding Chuck McConnell, Hubert Vidrine’s boss, in support of its argument that because Vidrine was buying “cheap product,” he was choosing to be deliberately ignorant of the fact that what he bought from Trinity was (according to the government) hazardous waste and not used oil:

McConnell stated he had questioned Vidrine about the cost of the AFS due to the low price. However, McConnell advised that the cost fluctuated depending on what the market would bear. McConnell stated that 20 to 30 cents a gallon for AFS was cheap. If the price seemed to [sic] low, he would question Vidrine about what was being brought into the refinery as feed stock. 156 McConnell stated that he had questioned Vidrine if, he Vidrine, was receiving certified analyses on the AFS. McConnell advised Vidrine had indicated the refinery was receiving certified analyses on AFS.

... McConnell advised that if Hornsby felt something was too cheap and therefore unsuitable for AFS, Canal would have stopped purchasing material. 157

First, it should be noted that according to Bourque, Canal was actually paying 30$ per gallon for the used oil from Trinity. 158 Second, no evidence was presented as to what the government felt was the average cost of used oil in 1996. The Court finds the government’s reliance on Hornsby and McConnell is misplaced, as the price of the Trinity material was not 20$, but 30$, and there is no evidence (other than hearsay) that 30$ per gallon, or even 20$ per gallon, was so far beneath the average market price of used oil in 1996 that Vidrine should have known the product from Trinity had, allegedly been adulterated with hazardous waste by Trinity Marine.

The government additionally argues three months prior to the search warrant at Canal, McConnell requested Vidrine implement a procedure to identify the presence of chlorinated solvents in AFS received at the refinery, due to “a discussion with a chemical broker concerning the presence of chlorinated solvents in AFS.” 159 When testing still had not begun in August, McConnell wrote a memo to *612 Vidrine, dated August 16, 1996, stressing the need for the testing. 160 The memo, entitled, “Alternate Feedstock Quality Control,” states in pertinent part: “[W]e added a check for chlorinated hydrocarbons on each truckload delivered to Canal. Presence of chlorinated hydrocarbons is automatic failure and rejection of the load .... If this procedure does not match Canal’s procedure in place now, please let me know immediately.” 161

Mr. Vidrine readily admits his boss issued a memo reflecting an instruction to him that he begin testing all loads for “chlorinated hydrocarbons.” In fact, Mr. Vidrine testified that it was he who advised his boss that the presence of chlorinated solvents could be problematic. Mr. Vidrine testified that at some point prior to ordering the CHLOR-D-TECT kits, he had learned from Mike Franklin that a company called Enjet “had gotten into legal trouble” due to chlorinated solvents, and he had advised Mr. McConnell that Canal should start testing for chlorinated solvents. Thereafter, the testing equipment was ordered. However, due to Canal’s credit problems and the test kits having been sent to the wrong building, the testing for chlorinated solvents did not begin before the search warrant was executed. 162 The Court finds this internal instruction, contained in the memorandum from Mr. McConnell, was just that — an internal company procedure — it does not evidence knowledge on Mr. Vidrine’s part that the used oil he was storing was actually hazardous waste.

viii. “Reputation” of barge cleaning operations

The last significant argument in support of knowledge and deliberate ignorance made by the government was, essentially, that it is “common knowledge” that “barge cleaning operations produce adulterated material.” According to Agent Phillips, Trinity (like most barge cleaning companies) 163 utilized sloppy housekeeping pro *613 cedures, such as using non-dedicated hoses to clean barges, which could have allowed chlorinated solvents to migrate into Trinity’s used oil. Agent Phillips’ testimony about this issue was as follows:

THE COURT: And in a nutshell that’s what you had to show knowledge on the part of Vidrine that he was getting— that he knowingly was receiving and storing hazardous waste?

WITNESS: That was not the only. The other issue is the reputation of barge cleaning facilities....

WITNESS: Mr. Vidrine should have known that barge cleaning operations produce adulterated material.

THE COURT: Why?

WITNESS: It was common knowledge in his industry and alternate feedstocks.

WITNESS: I’m not an expert but I do, — I did learn the barge cleaning facility operations in the course of the investigation.

THE COURT: But even with that, ... there was nothing to show that Mr. Vidrine knew he was getting adulterated product.... [S]o what you’re telling me is that, because after the fact you decided that these people didn’t — the Trinity barge cleaning people were not honorable, that Mr. Vidrine should have known he was getting bad product? That’s your knowledge on his part?

THE WITNESS: Yes. 164

This Court disagrees with the government: All the foregoing testimony indicates is that Keith Phillips, who by his own admission is not an expert on barge cleaning operations, is of the opinion that everyone in the refinery business knows, or should have known, that all barge cleaning facilities only produce materials adulterated with hazardous waste. The Court finds this testimony, as it relates to probable cause as to Hubert Vidrine’s knowledge, to be so absurd as to warrant no further explanation.

3. Conclusion — Probable Cause

This Court ends its evaluation of probable cause with the conclusion that even if it had found Mike Franklin to be a credible source of information, which it does not, and even had Agent Phillips provided truthful testimony to the grand jury, which he did not, probable cause would not have existed to have indicted Hubert Vidrine for knowingly storing hazardous waste, originating from Trinity Marine, without a permit, beginning on August 13, 1996. Again, however, as the indictment was dismissed prior to trial, under applicable Louisiana law, the presumption exists that there was no probable cause, and the government has failed to overcome that presumption. However, for the reasons provided, this Court finds the presumption would not have proved necessary for plaintiffs to prove their case, as this Court finds the evidence presented to establish probable cause to indict Hubert Vidrine did not and does not exist. Furthermore, this Court finds a “deliberate ignorance” instruction would not have cured the defects in the government’s case, as there was no basis to present that instruction to the jury, based upon the evidence presented to this Court.

This Court finds, at best, at the end of the day, Agent Phillips set out to obtain an indictment and prosecution of Hubert Vidrine, based on what he perceived to be, at best, evidence of “Other Crimes, Wrongs, or Acts.” See Fed.R.Evid. 404(b). However, again, at best, what the government proved at this trial, was that at some point after October 10, 1996 (at the earliest and being generous to the government), Canal *614 probably should have more closely scrutinized any product it may or many not have received from John Broussard and AFI. 165 But again, one cannot lose sight of the fact Hubert Vidrine was not indicted for any material or product Canal might have received from AFI and John Broussard. Not only do the crimes for which Broussard and AFI were ultimately convicted have nothing whatsoever to do with the indictment issued against Hubert Vidrine, the indictment against Broussard and AFI did not issue until after the storage events for which Vidrine was indicted, and thus, the omission of Canal in the indictment of AFI and John Broussard, and the omission of product received from John Broussard and AFI in the Vidrine indictment, are rather telling. Accordingly, the Court finds probable cause did not exist to indict, nor did it exist at anytime thereafter to continue to prosecute Hubert Vidrine. Accordingly, the Court finds the government has failed to carry its burden to overcome the presumption of an absence of probable cause.

B. Malice

The Court now turns its attention to malice, the legal issue inherent within the question of “why?” As previously noted, pursuant to Louisiana law, when an indictment is dismissed, a presumption of a lack of probable cause arises, which allows malice to be inferred, and thus the burden shifts to the defendant to show an absence of malice. Zerbe , at 1231. 166

With regard to malice, the Louisiana Supreme Court has stated:

[M]alice does not submit readily to definition----Any feeling of hatred, animosity, or ill will toward the plaintiff, of course, amounts to malice. But it is not essential to prove such ill will. Malice is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to “tie up the mouths” of witnesses in another action, or as an experiment to discover who might have committed the crime. Malice may be inferred from the lack of probable cause or inferred from a finding that the defendant acted in reckless disregard of the other person’s rights.

Miller at 453 (citations omitted, emphasis added). All parties agree the presumption is at play, and the government has the burden to overcome the inference of malice.

After hearing all argument of counsel, and receiving all evidence and testimony, the Court finds the government has failed to overcome the inference of malice, as it finds probable cause was lacking and specifically finds Agent Phillips acted with malice, as defined, for the reasons that follow.

1. Keith Phillip’s false statements and inaccurate testimony permeated the criminal case, as well as this civil case

The most egregious conduct of Mr. Phillips is his repeated disregard of the oath he took, on multiple occasions, to tell the truth. His testimony before the grand jury on Sept. 14, 1999 and Dec. 14, 1999, particularly as it relates to the Franklin “analytical” or test results, is particularly troubling. Even if this Court were to find Phillips’ testimony that he was mistaken to be credible — which, when *615 judged against the test reports themselves and Agent Barnhill’s testimony, it does not — at a minimum, that “mistake” would not have occurred but for Phillips’ “reckless disregard for other persons’ rights.” Miller at 453 . Phillips testified he had seen the Franklin analyticals, and they were positive for “chlorinated solvents.” As explained above, the two potential reports Phillips had in his possession in August of 1999 clearly and obviously, on their face, could not have been those Franklin test results. Of the two reports, one showed the sample to be under 1000 ppm (Franklin consistently and exclusively said his were over 1000 ppm), and the other is clearly dated as the day after the search at Canal, in which Phillips participated (Franklin’s statement was his results predated the search at Canal.) Furthermore, a simple conversation with Mike Franklin could have settled the issue, a conversation both Barnhill and Phillips admit, at some point, occurred.

Thus, the documents Phillips now relies upon to ameliorate his false testimony are of no benefit to him. Although the alleged Franklin test results were never found, Phillips testified not once, but twice, under oath, that he had seen those tests and their contents. Had Phillips actually looked at the PPL test reports, it is clear they could not be the Franklin reports. Furthermore, had he merely inquired of Franklin, prior to testifying about those reports, Franklin himself would have told Phillips the PPL reports were not his missing reports. As previously noted, Agent Barnhill, whom this Court found to be far more credible than Agent Phillips, testified Mike Franklin had indeed told her and Agent Phillips, prior to the July or certainly December grand jury session, that the subpoenaed reports were not the applicable reports; Phillips himself admitted Franklin told him as much at some point in time.

Phillips admitted to this Court that Franklin always referred to the test results as being “over 1000 ppm.” 167 Nevertheless, at the September 14, 1999 grand jury session, Agent Phillips testified:

Q. All right. So he had the material tested. And the Grand Jury has subpoenaed the records form the lab that he sent it to be tested to?

A. Yes, sir.

Q. And you’ve reviewed those records for the Grand Jury’s benefit. And those lab results are, essentially, what?

A. They indicate that the material, at least, in part, was contaminated with chlorinated solvents. 168

Q. You have Franklin’s test that came back in June positive?

A. That’s correct. 169

And again at the December 14,1999 grand jury session:

Q. And you’ve obtained the samples — the test results of what Mike Franklin took in the summer of 1996. The came back positive for chlorinated solvents, correct?

A. That is correct. 170

In other words, Agent Phillips, clearly, was not content to merely “gather the *616 facts and let the facts themselves either support or not support the indictment” 171 , but rather, shaded and colored those facts, and in no way checked or reviewed any possible assumptions he might have chosen to make. Rather, he provided unsubstantiated and false testimony, that could have easily been recognized as false, had he simply reviewed the contents of the reports or spoken to his star witness, Franklin. But instead, Phillips chose to manipulate the “facts,” as provided by Franklin, by changing the languaging in significant fashion by, for example, shifting the language from “test results showing over 1000 ppm chlorinated solvents” as Franklin indicated (which suggest the regulations relating to used oil) to “positive for chlorinated solvents” (which suggests the hazardous waste regulations) — i.e. one suggesting possible violations, the other not. This is extremely relevant to this matter, as Agent Phillips knew there were no test results showing material “over 1000 ppm,” because the government’s own lab results showed the samples taken at Canal on the day of the search were well under 1000 ppm. The Court finds Agent Phillips’ testimony before the grand jury, in and of itself, supports a finding of malice.

At best, Agent Phillips’ failure to verify with Franklin he had the proper test results (or testifying in total disregard to Franklin’s having told him the contrary), his testifying he had reviewed the test results (even if that was a “mistake” as Phillips argued at this trial), and his coloring of his testimony as to that which he was told by Franklin constituted a reckless disregard for Hubert Vidrine’s rights merely by the extent of its sloppiness. Keith Phillips testified before this Court:

THE COURT: Pm not asking about his conversation, and I’m not asking a thing about Howard Parker. I’m asking about you, Special Agent Phillips, who went into a Grand Jury and testified, after having taken an oath, whether or not, before you testified to the Grand Jury, that you, in fact, had a lab report in hand if you looked at the lab reports — did you look at them?

WITNESS: As far as I know I did, Your Honor.

THE COURT: Okay. And you’re telling me that the first one couldn’t apply, right?

WITNESS: It was a clean — our logic was it was the clean material.

THE COURT: Yeah. So the only other one is this one that has the date of after the search warrant was issued.

WITNESS: Correct.

THE COURT: Did you look at that one before you went and testified?

WITNESS: I’m sure I did, Your Honor.

THE COURT: Okay. Can you in any way tell me how you didn’t catch it then?

WITNESS: How I what?

THE COURT: Did not catch this date and something being amiss?

WITNESS: No, ma’am, I cannot. 172

The PPL subpoenas clearly did not produce the Franklin tests, nor did the additional subpoenas issued to all potential labs within the region where Franklin could have taken the alleged samples produce the Franklin tests. And yet, Phillips testified before the grand jury he had reviewed those test results and what their contents were. Thus, when Phillips testified, Phillips knew, or clearly should have known, that he did not have the Franklin results about which he was giving testimony. Accordingly, only one conclusion can be drawn: Phillips either acted with intentional mal *617 ice and ill will, or with an alarming reckless disregard for the rights of Hubert Vidrine and the oaths that he took.

Agent Barnhill, Phillips co-agent with whom he was engaged in a clandestine sexual affair, testified she never believed the PPL reports were the missing Franklin reports, because Franklin had told her and Agent Phillips, certainly by the December 14, 1999 grand jury session, that the reports the government had obtained were not the “smoking gun” reports Franklin had discussed with agents on numerous occasions. Furthermore, as to the subpoenaed PPL report dated September 6, 1996, Agent Barnhill testified she did not even need Franklin to tell her that was not the proper report:

THE WITNESS: I don’t know that I considered the doc

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