Petition for Writ of Certiorari — Rutana v. United States

es Supreme Court, U.S.

1-168 FILED

No. ; SUL 24 1991

"perro Tae GuemK |

IN THE

Supreme Court of the United States

October Term, 1991

nis JOHN W. RUTANA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CourRT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHARLES E. DUNLAP

Counsel of Record

700 Wick Building

34 Federal Plaza West

Youngstown, Ohio 44503

(216) 744-0022

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

i.

QUESTIONS PRESENTED |

1. Where 18 U.S.C. 3742 states that the United

States must obtain the personal approval of the Solicitor

General before appealing a sentence imposed upon a

Defendant, and the United States fails to obtain such

approval, can the Court of Appeals choose to ignore the

statute when such failure is challenged by an Appellee

and apply the rule prospectively and not to the case

before the Court?

2. Where the Federal Sentencing Guidelines are

void of any reference to how an Employer-Defendant’s

sentence will impact the socio-economic status of his/her

employees, can the District Court deviate from the

Guidelines when it finds that such sentence will

adversely affect those employees livelihood?

ii.

PARTIES TO THE PROCEEDINGS

The parties to this proceeding are those contained in

the caption of the case, to wit: John W. Rutana,

President of Finishing Corporation of America, and the

United States Government.

SOE TERT ie ETOP OB

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................

PARTIES TO THE PROCEEDING..............

Gk xb hoo vee sees Cee oan ee

EE ee eee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................

STATEMENT OF THE CASE ..................

REASONS FOR GRANTING THE WRIT........

i reece kW bes eee sdvbaceses

APPENDICES:

A. Judgment and Opinion of the United States

Court of Appeals for the Sixth Circuit Dated

CE

B. Judgment of the United States District Court

for the Northern District of Ohio Dated

as cis tons s sneer vee

C. Opinion of the United States Court of Appeals

for the Sixth Circuit Dated August 23, 1990 .. A20

iv.

TABLE OF AUTHORITIES

Cases

McAninch v. Traders Nat'l Bank, 1779 F.2d

ES 0&5 ORE ee ako ees 11

Simpson uv. Norwesco, Inc. 583 F.2d 1007

GN cus 50 0usds eeu vavedecerere Neare ca ees 11

United States v. Gurgiolo, 894 F.2d 56

SE 4.5 a0 eos KO CRE ERE RTT CEES eae) 10,11

United States v. Hayes, 899 F.2d 515, 517

ee dao sae idence ekaee eee ee eaerae es 10

United States v. Rodriguez, 882 F.2d 1059

SED 6k see eka van eve Seeiyuewanen ee 14,15

United States v. Ryan, 866 F.2d 604 (3rd

ek his a. 8 akon Ws Rosanne ee eee 14,15

United States v. Smith, 910 F.2d 326 (6th

a ea ake ta ae ta wena ees areoeeees 9,10

Constitution and Statutes

Res es I rh ae edie cis G4 ous obey el 4

We Sg SES SEU Fi Woes cwcacew decides es bx 4

er EE To Soe a ke vb 0004 60h eke esa Es 4

ree 4,5,9,10,11,16

Other Authorities

Federal Sentencing Guidelines, Section 5H1.10..... 4,6

S. Rep. No. 98-225, 98th Congress, Ist Sess.

(1983), reprinted in 1984 U.S. Code Cong. &

Admin. News 3234-3235. .v-. 0.00 ccTeccescccees 14,15

No.

IN THE

Supreme Court of the United States

October Term, 1991

JOHN W. RUTANA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

John W. Rutana, the Petitioner herein, prays that a

Writ of Certiorari issue to review the Judgment of the

United States Court of Appeals for the Sixth Circuit

entered in the above entitled case on May 8, 1991.

2

OPINIONS BELOW

The Opinion of the Sixth Circuit Court of Appeals is

reported at ____——s«*F.2d ___—_ss«, and is printed in

Appendix A hereto, infra, page A3. The Journal Entry of

the Judgment of the United States District Court for the

Northern District of Ohio is printed in Appendix B

hereto, infra, page A12. The Opinion of the Sixth Circuit

Court of Appeals rendered on August 23, 1990,

Appendix C, infra, page A20.

3

JURISDICTION

The Judgment of the United States Court of Appeals

for the Sixth Circuit was entered on May 8, 1991. The

Jurisdiction of the Supreme Court is invoked under 28

United States Code Section 1254 (1). The United States

District Court had jurisdiction over this case under 18

U.S.C. Section 3231.

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth

Amendments to the United States Constitution; Title 18

United States Code Sections 3553 (b) and 3742 (b); and

Section 5H1.10 of the Federal Sentencing Guidelines.

United States Constitution, Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law;

nor shall private property be taken for public use,

without just compensation.

United States Constitution, Amendment XIV:

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

18 U.S.C. 83553 (b):

(b) Application of guidelines in imposing a

sentence. The court shall impose a sentence of the

kind, and within the range, referred to in subsection

(a)(4) unless the court finds that there exists an

5

aggravating or mitigating circumstance of a kind, or

to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the

guidelines that should result in a sentence different

from that described. In determining wheth= a

circumstance was adequately taken into

consideration, the court shall consider only the

sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission. In the

absence of an applicable sentencing guideline, the

court shall impose an appropriate sentence, having

due regard for the purposes set forth in subsection

(a)(2). In the absence of an applicable sentencing

guideline in the case of an offense other than a petty

offense, the court shall also have due regard for the

relationship of the sentence imposed to sentences

prescribed by guidelines applicable to similar

offenses and offenders, and to the applicable policy

statements of the Sentencing Commission.

18 U.S.C. 33742 (b):

(b) Appeal by the Government. The

Government with the personal approval of the

Attorney General or the Solicitor General, may file a

notice of appeal in the district court for review of an

otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect

application of the sentencing guidelines issued by

the Sentencing Commission pursuant to 28 U.S.C.

994(a);

(3) is less than the sentence specified in the

—applicable guideline range to the extent that the

sentence includes a lesser fine or term of

imprisonment, probation, or supervised release

than the minimum established in the guideline

range, or includes a less limiting condition of

6

probation or supervised release under section

3563(b)(6) or (b)(11) than the minimum established

in the guideline range; or

(4) was imposed jor an offense for which there is

no sentencing guideline and is plainly

unreasonable.

United States Sentencing Guidelines:

SENTENCING COMMENTARIES

Part H—SPEciFIC OFFENDER CHARACTERISTICS

Introductory Commentary

Congress has directed the Commission to consider

whether certain specific offender characteristics ‘‘have

any relevance to the nature, extent, place of service, or

other incidents of an appropriate sentence” and to take

them into account only to the extent they are determined

relevant by the Commission. 28 U.S.C. §994d).

85H1.10 Race, Sex, National Origin, Creed, Religion

and Socio-Economic Status (Policy Statement)

These factors are not’ relevant in_ the

determination of a sentence.

7

STATEMENT OF THE CASE

Petitioner, John W. Rutana, is the majority

shareholder of Finishing Corporation of America

(hereinafter FCA) and operating officer and sole owner of

Viking Manufacturing Company.

FCA had been in operation since 1981. This

operation was a chemical anodizing plant. In 1988 the

EPA and FBI began investigating FCA. This

investigation surrounded the discovery of certain

pollutants in the City of Campbell’s waste water

treatment facility. The investigation led to the discovery

that these pollutants were being drained into pipes

leading to the Campbell Waste Water Treatment Facility

by FCA.

Rutana was charged in twenty-two counts of a Forty

Count Federal Indictment, filed on May 31, 1989. He

was charged in Counts 1 through 18 with violations of 33

U.S.C. Sections 1317 (d) and 1319 (c)(2)(a) (knowingly

discharging pollutants), Counts 19 and 20 with violations

of 33 U.S.C. Sections 1317 (d) and 1319 (c)(3) (knowingly

discharging pollutants with knowledge that said

discharging would place persons in imminent danger of

injury) and Counts 39 and 40 of making false statements

in a matter within the jurisdiction of the United States

Environmental Protection Agency.

On October 2, 1989 Rutana pled guilty to the 18

Clean Water Act violations (Counts 1 to 18). Counts 19,

20, 39 and 40 were dismissed by agreement with the

Government. In addition, the Government agreed to

recommend that any terms of incarceration imposed

upon the Petitioner run concurrently with each other.

8

The matter came before the Trial Court for

sentencing on March 2, 1990. A Presentence Report had

previously been filed. The Court accepted Presentence

Report’s Facts and Findings at the hearing. The Court

imposed a fine on Mr. Rutana of Ninety Thousand

Dollars ($90,000.00), placed him on five (5) years

probation and sentenced him to One Thousand (1000)

hours of community service in the area of studying

pollution problems and working out solutions to the

same.

The Presentence Report calculated Mr. Rutana’s

offense level at eighteen (18). Applying Section 2Q1.2 of

the sentencing guidelines, mishandling of hazardous or

toxic substances for a base level of eight (8). Six (6)

additional points were then added pursuant to Section

2Q1.2 (b\1)A) for repetitive discharge. Four (4)

additional points were then added for disruption of a

public utility pursuant to Section 2Q1.2 (b)(3). Two

points were then added for a leadership role. Finally, two

points were subtracted for the acceptance of

responsibility.

Under a sentence level of eighteen (18) Mr. Rutana

was to be imprisoned for a period of 27 to 33 months.

However, the Trial Court departed from the Guidelines

down to a level of six (6). The District Court departed

from the Guidelines on the basis that if Mr. Rutana were

imprisoned as the Guidelines called for, then Viking

Manufacturing which employed approximately thirty (30)

persons would be closed. The Court felt that any

imprisonment of Rutana would force his employees out

of work. Thus the Court’s departure was not based on

Rutana’s social or economic status, but was based on the

economic and social impact it would have on those

9

persons who relied on Rutana for their employment.

Fiorini and Barnes, who were also indicted, received

probation.

The Government then filed its Notice of Appeal to

the Sixth Circuit on April 13, 1990. However, the

Government failed to get the necessary authorization of

the Solicitor General to file its Appeal. This

authorization is made mandatory by 18 U.S.C. 3742 (b).

On April 17, 1990 the Solicitor General stated in a

written Memorandum that he had orally given the

Government the consent to appeal. On April 19, 1990 the

Government filed such authorization.

On July 12, 1990 Rutana filed a Motion to Dismiss

this Appeal based upon the failure of the United States

to include a written authorization of the Solicitor General

simultaneous with the filing of the Notice of Appeal.

On August 23, 1990 the Sixth Circuit denied

Rutana’s Motion to Dismiss. The Court stated that the

Solicitor General’s belated certification of written

approval was sufficient. The Court then directed the

Government to the Court’s Opinion in United States uv.

Smith, 910 F.2d 326 (6th Cir. 1990) which

prospectively imposed a rule to be followed in these

types of Appeals.

On Appeal the Sixth Circuit reversed and remanded

the case for resentencing. The Court stated that

economic hardships were not factors for deviation and did

not warrant a downward departure from the Guidelines.

The Court stated that economic factors were addressed

in the guidelines.

10

REASONS FOR GRANTING THE WRIT

Question No. 1:

In overruling the Defendant’s Motion to Dismiss the

Government’s Appeal for failure to follow the mandates

of 18 U.S.C. 3742 (b), the Court of Appeals stated that

certification of the Solicitor General’s written approval

was sufficient in the Defendant’s case. The Court then

referred the Government to its recent opinion in United

States v. Smith, 910 F.2d 326 (6th Cir. August 6, 1990).

In Smith the Court enunciated a rule to be followed

prospectively in cases concerning the interpretation of 18

U.S.C. Section 3742 (b). In Smith, the Court stated:

‘... This court will impose by the exercise of its

supervisory authority, prospectively, the

requirement that written proof of the personal

approval of either the Attorney General or Solicitor

General be provided no later than the filing of the

Government’s Appellate Brief and that the personal

approval be dated no later than the day on which

the Notice of Appeal was filed by the Government.

Id. at 328.

Three previous rulings by the Sixth Circuit,

including one published decision, United States v. Hayes,

899 F.2d 515, 517 n.1 (1990), stated that the Court

lacked jurisdiction to hear an Appeal when the

Government failed to obtain the personal approval of the

Solicitor General prior to filing its Appeal.

In support of the Smith decision, the Sixth Circuit

cited to the Third Circuit decision of United States v.

Gurgiolo, 894 F.2d 56 (1990). In Gurgiolo, the Defendant

moved to dismiss the Government’s Appeal on the

grounds that the Government did not get the ‘‘personal

approval of the Attorney General or Solicitor General’.

11

However, in Gurgiolo, the Government had obtained

prior approval from the Deputy Solicitor General acting

in the Solicitor General’s place. The Third Circuit likened

the Government’s failure to indicate approval ‘“‘to an

error in the caption of the pleadings .. .”” which could not

invalidate the Appeal under Fed. R. App. P. 3 (c).

The Court based this decision on the policy of liberal

construction of Notices of Appeal. See Simpson uv.

Norwesco, Inc., 583 F.2d 1007 (1978); McAninch uv.

Traders Nat'l Bank, 779 F.2d 466 (1985). Under such

policy a Court will disregard any slight error in a Notice

of Appeal “in situations where intent is apparent and

there is no prejudice to the adverse party’. Id. at 467

n.2. However, the policy of liberai construction does noi

meet the needed criteria in the present case.

Petitioner Rutana was sentenced on March 14, 1990.

The Government did not appeal until April 13, 1990. By

this time the Petitioner had begun serving his sentence

and had no reason to believe the Government would

appeal. Thus, the Government’s intent to appeal the case

was not apparent. Further, such Appeal would adversely

impact the Petitioner as he had already begun serving the

sentence imposed upon him. Additionally, the Petitioner

contends that the Court’s ruling is double-edged. That is

to say that if the Petitioner had missed a deadline for

filing in the Court or had not properly followed an

appellate procedure, he most likely would have been

penalized by the Court, not rewarded as the Government

was.

Finally, the Sixth Circuit’s ruling against Petitioner

flies directly in the face of the legislative intent of 18

U.S.C. 3742 (b). In the Committee notes to Public Law

98-473 which authorized 18 U.S.C. Section 3742 (b)

12

Congress explicitly stated “the Government may petition

for review of-a sentence only with the personal approval

of the Attorney General or the Solicitor General in order

to assume that such appeals are not routinely filed for

every sentence below the guidelines.’’ 1984 U.S. Code

Congressional and Administrative News 3337. It is

apparent that the Congress intended for this approval to

be had prior to the Appeal being filed, and such proof of

approval to accompany the filing of the Notice of

Appeal. Congress intended to prohibit a retroactive

approval such as was present in this case.

By allowing the Government to obtain the approval

of the Solicitor General as it did, the Sixth Circuit

basically denied Mr. Rutana’s procedural due process

rights.

13

Question No. 2:

The Government’s basis for its Appeal was the fact

that the sentence which the District Court imposed upon

the Petitioner was below and outside of the Federal

Sentencing Guidelines. The Sixth Circuit stated at page

six (6) of its Opinion:

Thus, the District Judge clearly relied upon

Rutana’s ownership of another business which, he

concluded, might fail if Rutana were to be

incarcerated.

Our de novo review leads us to a conclude (sic) that

the circumstance expressly relied upon by the

District Court does not make this case sufficiently

unusual to warrant a downward departure from the

Guidelines. The Guidelines specifically state that the

Defendant’s socio-economic status is not relevant in

the determination of a sentence. U.S.S.G. Section

5H1.10; Brewer, 899 F. 2d at 508.

This is where the Appeals Court made its crucial

mistake. The Petitioner has contended throughout this

lengthy process that it was not his socio-economic status

which the Trial Court considered, but it was the impact

that sending the Petitioner to jail would have on others

which the Court considered.

The Sentencing Guidelines do not take into

consideration what impact the incarceration of a

Defendant would have on the economic well-being of

persons who depend on the Defendant for their

livelihood. Section 1B1.4 of the Guidelines states:

In determining ... whether a departure from the

Guidelines is warranted, the Court may consider,

without limitation, any information concerning the

background, character and conduct of the

Defendant, unless otherwise prohibited by law.

14

The Federal Courts of Appeals have stated that the

District Courts have very great discretion in deciding

whether to depart from the guidelines. This discretion is

mandated in part because the Sentencing Commission

seeks to monitor such departures and, over time, create

more accurate guidelines. United States v. Rodriguez

(6th Cir. 1989), 882 F.2d 1059; United States v. Ryan

(3rd Cir. 1989), 866 F.2d 604.

Further support of the discretion of the Trial Court

can be found in the Senate Report which introduced the

Comprehensive Crime Control Act. This report is

included in the joint resolution of Congress which set out

the details of the Comprehensive Crime Control Act of

1984.

Pertinent parts of the Senate Report contained in the

joint resolution state as follows:

The sentencing guidelines system will not remove all

of the Judge’s sentencing discretion. Instead, it will

guide the Judge in making his decision on the

appropriate sentence. If the Judge finds an

aggravating or mitigating circumstance present in

the case that was not adequately considered in the

formulation of the guidelines and that should result

in a sentence different from that recommended in the

guidelines, the Judge may sentence the Defendant

outside the guidelines ... The bill requires the

Judge, before imposing sentence, to consider the

history and characteristics of the offender, the

nature and circumstances of the offense, and the

purposes of sentencing. He is then to determine

which sentencing guidelines and policy statements

apply to the case. Either he may decide that the

guideline recommendation appropriately reflects the

offense and offender characteristics and impose

sentence according to the guideline recommendation

or he may conclude that the guidelines fail to reflect

15

adequately a pertinent aggravating or mitigating

circumstance and impose sentence outside the

guidelines .... The Committee does not intend that

the guidelines be imposed in a mechanistic fashion.

It believes that the sentencing Judge has an

obligation to consider all the relevant factors in a

case and to impose a sentence outside the guidelines

in an appropriate case.

S. Rep. No. 98-225, 98th Congress, lst Sess. (1983),

reprinted in 1984 U.S. Code Cong. & Admin. News 3234-

3235.

As can be seen from the above quoted language, the

congressional intent of Congress was to allow a

sentencing Judge to deviate from the guidelines when he

finds a mitigating circumstance not taken into

consideration by the guidelines. In the instant case, the

Trial Court was, and is, all too aware of the economic

straits which the people in the Northeastern Ohio region

face. The Trial Court also properly considered the fact

that sending Mr. Rutana to jail would almost certainly

have an adverse affect on the lives of 30 other innocent

families. The Judge, in his wise discretion, determined

that keeping Mr. Rutana out of jail and running Viking

Manufacturing was a far greater need than sentencing

Mr. Rutana to prison. The basis for the Trial Court’s

decision had nothing to do with Mr. Rutana’s socio-

economic status. It was the result of the Trial Court’s

determination of the adverse impact on the socio-

economic status of 30 innocent families who rely on Mr.

Rutana for employment. This factor was clearly not

included within the Guidelines. The Trial Court’s decision

also falls in line with the various Courts of Appeals’

rulings that such departures will be monitored by the

Sentencing Commission in order that more accurate

guidelines be established. Rodriguez, supra; Ryan, supra.

16

CONCLUSION

The United States Government failed in its attempt

to comply with 18 U.S.C. 3742 (b) when it decided to

appeal the Trial Court’s decision. Such failure resulted in

the Court of Appeals having no jurisdiction to hear the

present case. The Sixth Circuit, however, decided to

ignore the statutory language and allow the Government

to file the Solicitor General’s approval after the appeal

had been filed. Such decision constitutes a denial of the

Defendant’s procedural rights to due process.

The Sentencing Guidelines allow for deviation when

a sentencing Judge deems it proper. This case contained

certain elements which the Sentencing Guidelines did not

take into consideration. The Trial Court properly

deviated from the guidelines. The Sixth Circuit erred by

reversing and remanding the District Court’s Decision.

The Appellate Courts have been remanding too many

cases for resentencing within the guidelines. The

congressional comments behind the guidelines show that

the intended procedure is to allow the District Court

Judge to deviate from the guidelines if his discretion

deems it wise. The Commission would then look at such

deviations and revise the guidelines accordingly.

Wherefore for the foregoing reasons, and because of

the societal interest involved in this Petition, the

Defendant respectfully requests this Court to grant his

Wnit of Certiorari.

Respectfully submitted,

CHARLES E. DUNLAP

Counsel of Record

700 Wick Building

34 Federal Plaza West

Youngstown, Ohio 44503

(216) 744-0022

Counsel for Petitioner

Al

APPENDIX A

Judgment of the United States Court

of Appeals for the Sixth Circuit

(Filed May 8, 1991)

No: 90-3343

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

JOHN W. RUTANA,

Defendant-Appellee.

Before: KENNEDY, and Norris, Circuit Judges; MILES,

Senior District Judge

JUDGMENT

ON APPEAL from the United States District Court

for the Northern District of Ohio at Cleveland.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

A2

ON CONSIDERATION WHEREOF, it is ordered

that the judgment of the district court is reversed and

remanded for resentencing.

ENTERED BY ORDER

OF THE COURT

/s/ LEONARD GREEN

Clerk

Issued as Mandate: May 31, 1991

COSTS: None

Er er ree eer er $

EE Pr ree Pa $

A3

Opinion of the United States Court

of Appeals For the Sixth Circuit

(Filed May 8, 1991)

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

No. 90-3343

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ON APPEAL from the

4 United States District

JOHN W. RUTANA, Court for the Northern

Defendant-Appellee. | District of Ohio

Decided and Filed May 8, 1991

Before: KENNEDY and NORRIS, Circuit Judges; and

MILES, Senior District Judge”

MILES, Senior District Judge. The United States

appeals the district court's downward departure from the

guidelines in sentencing John W. Rutana on 18 counts of

knowing discharge of pollutants into a public sewer

system in violation of the Federal Water Pollution Control

(Clean Water) Act, 33 U.S.C. §1251 ef seg. For the

following reasons, we reverse and remand the case to the

district court for resentencing.

*The Honorable Wendell A. Miles, Senior United States District

Judge for the Western District of Michigan, sitting by designation.

A4

I

John Rutana was a part-owner and chief executive

officer of a now-bankrupt corporation known as Finishing

Corporation of America ("FCA"). In late 1985, FCA

began operating a metal finishing plant in Campbell,

Ohio. The plant was located directly across the street

from the city of Campbell's Waste Water Treatment Plant

(“CWWTP").

FCA's plant was constructed with a plastic discharge

pipe, which was intended to transport sulfuric and nitric

acids. This pipe led into a city sewer line, which in turn

led directly into CWWTP.' During late 1986 and early

1987, CWWTP, which had recently been renovated,

began experiencing problems associated with chemical

waste water discharges coming from the FCA plant.

CWWTP's manager notified Rutana of these problems,

which included two massive “bacteria kills” at CWWTP.

In addition,the Ohio Environmental Protection Agency

sent a letter to FCA, which, among other things,

contained a copy of the federal regulations pertaining to

chemical waste water discharges. No additional problems

associated with FCA's activities were documented for

approximately one year thereafter.

Although Rutana and John C. Barnes, FCA's plant

manager, claimed to have met in February, 1987 to devise

a “mixing plan" to neutralize the acid and alkaline

discharges, the ineffectiveness of this alleged plan became

apparent in March, 1988, when CWWTP's problems

associated with the FCA discharges resumed. A federal

investigation ensued. Despite repeated attempts by the

City of Campbell and the Ohio EPA to get FCA to take

action to stop the discharges, and despite Rutana's

obvious awareness of the problem, at least 18 separate

instances of illegal discharges were documented during

1988. Two of these discharges resulted in injury to a

‘The CWWTP. discharges into the Mahoning River, a source of

drinking water for a number of communities.

A5

CWWTP employee, who was burned while trying to

sample the substances coming into the treatment plant

from FCA. After federal agents threatened to obtain an

injunction to prevent further discharges, Rutana

voluntarily agreed to close the FCA plant, although at

least one illegal discharge occurred in December, 1988

after the plant was supposedly closed.

On May 31, 1989, Rutana was indicted by a grand jury

on 18 counts of “knowingly discharging and causing to be

discharged pollutants which caused corrosive structural

damage and which had a pH of less than 5.0 into a public

sewer system and, thereby, into the Campbell, Ohio

Waste Water Treatment Plant . . . in violation of national

pretreatment standards,” all in violation of 33 U.S.C.

§1317(d) and §1319(c)(2)(A); on two counts of knowing

endangerment of CWWTP employees, in violation of 33

U.S.C. §1319(c)(3); and on two counts of making false

statements in a matter within the jurisdiction of the United

States Environmental Protection Agency in violation of 18

U.S.C. §1001.2 Also indicted were FCA itself and

Barnes, both on 18 counts of knowing violation of

pretreatment standards and on two counts of knowing

endangerment.3 Dr. Richard Fiorini, a minority

shareholder of FCA, was indicted on 18 counts of

negligent violation of pretreatment standards, under 33

U.S.C. §1319(c)(1).

' On October 2, 1989, pursuant to a plea agreement,

Rutana pled guilty to the 18 Clean Water Act violations,

and the remaining charges were dismissed. Rutana's co-

defendants also pled guilty pursuant to plea agreements

with the government.

2These latter two counts were based upon two instances in which

Rutana allegedly lied to authorities about having contracted to clean

up the discharges.

3Pursuant to a superseding information, Barnes was later charged

with 17 counts pn negligent, rather than knowing violation of the

Clean Water Act.

A6

A presentence report was prepared by the probation

officer. Under 33 U.S.C. §1319(c)(2), the maximum

penalty which could have been imposed upon Rutana for

each violation was three years imprisonment and a

$50,000 per day fine. The presentence report calculated

that the guidelines indicated a term of imprisonment of 27

to 33 months, based upon an offense level of 18 and a

criminal history category I (Rutana had no prior offenses).

United States Sentencing Commission, Guidelines Manual

(hereinafter “U.S.S.G."), Ch. 5, Part A_ (Nov.

1989)(Sentencing Table).4 The report's calculation of the

offense level, which is not disputed on appeal, is as

follows:

(1) Base offense level of eight (8) for mishandling

of hazardous or toxic substances, under U.S.S.G.

§2Q1.2(a).

(2) Increase by six (6) levels, for repetitive

discharge, under U.S.S.G. §2Q1.2(b)(1)(A).

(3) Increase by four (4) levels, for disruption of a

public utility, under U.S.S.G. §2Q1.2(b)(3).

(4) Increase by two (2) levels, for playing a

leadership role in the activity, under U.S.S.G.

§3B1.1(c).

(5) Decrease by two (2) levels, for acceptance of

responsibility, under U.S.S.G. §3E]1.1(a).

In detailing Rutana's employment record, the report noted

that Rutana was also the owner and chief operating officer

of another business, Viking Manufacturing Company,

which employed 26 people. The probation officer also

noted that neither the government nor defense counsel had

“The events giving rise to counts one through eighteen of the

indictment occurred between May 26, 1988 and mber 9, 1988.

The sentencing guidelines were therefore applicable.

A7

presented him with factors to warrant a departure from the

guidelines.

A sentencing hearing was held on March 2, 1990, at

which all four defendants were sentenced. The district

judge indicated that he accepted the facts and findings

contained in the presentence report on Rutana.

Nevertheless, the district court departed downward from

level 18 to level 6, sentencing Rutana to five years

probation, combined with 1,000 hours of community

service. In addition, the court imposed a fine on Rutana

in the amount of $90,000 (or, $5,000 per violation), and a

special assessment in the amount of $950. The

government's appeal followed.® 3

This circuit has established a three-step procedure to be

used in reviewing downward departures from the

guidelines. First, we determine whether the case is

sufficiently “unusual” to warrant departure. United States -

v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied,

__ U.S. __, 111 S.Ct. 127 (1990).

Second, we - determine whether _ the

circumstances, if conceptually proper, actually

exist in the particular case. That assessment

involves factfinding and the trier’s determinations

may be set aside only for clear error. See 18

U.S.C. § 3742(d).

Third, once we have assured ourselves that the

sentencing court considered circumstances

appropriate to the departure equation and that those

factors enjoyed adequate record support, the

direction and degree of departure must, on appeal,

5This court has jurisdiction over the appeal pursuant to 18 U.S.C.

§3742(b), despite the government's belated submission of certification

of written roval of the Solicitor General. United States v. Smith,

910 F.2d 326, 328 (6th Cir. 1990).

A8

be measured by a standard of reasonableness. 18

U.S.C. § 3742(e)(2); et al.

Id. at 506 (quoting United States v. Diaz-Villafane, 874

F.2d 43, 49 (Ist Cir.), cert. denied, __-:;U.S. ___, 110

S.Ct. 177 (1989)).

In sentencing Rutana, the district judge gave the

following explanation for his downward departure from

the guidelines:

The presentence report has a guideline range of

18, Category One, which is 27 to 306 months.

This Court for the reasons stated now, and because

this defendant has a business employing some

people and may put them out of work, and I'm

going to depart downward to an Offense Level of

6, Category One.

Thus, the district judge clearly relied upon Rutana's

ownership of another business which, he concluded, might

fail if Rutana were to be incarcerated.

Our de novo review leads us to a conclude that the

circumstance expressly relied upon by the district court

does not make this case sufficiently unusual to warrant a

downward departure from the guidelines. The guidelines

specifically state that a defendant's socioeconomic status

is not relevant in the determination of a sentence.

U.S.S.G. §5H1.10; Brewer, 899 F.2d at 508.

Furthermore, even assuming that Rutana's imprisonment

would lead to the failure of his business and the loss of his

employees’ jobs, this fact does not distinguish Rutana

from other similar offenders. "“"(T)here must be

something ‘special’ about a given offender, or the

accouterments of the crime committed, which

distinguishes the case from the mine-run for that

offense.'" United States v. McDowell, 902 F.2d 451, 455

SThis reference to 27 to 30 months appears to be a misstatement by

the district judge; the guidelines range was in fact 27 to 33 months.

A9

(6th Cir. 1990)(quoting United States v. Aguilar-Pena,

887 F.2d 347, 350 (ist Cir. 1989)). We find nothing

special about an industrial polluter who also happens to be

an employer. The very nature of the crime dictates that

many defendants will likely be employers, whose

imprisonment may potentially impose hardship upon their

employees and families. In sum, Rutana's status as a

business owner oy does not distinguish his case from

the “mine-run" of cases involving the discharge of

prohibited effluents into the environment, and is not a

legally sufficient basis for downward departure.

The district court appears to have relied upon other

factors in its downward departure, factors which it did not

articulate during its sentencing of Rutana. Fiorini and

Bames, who were sentenced immediately preceding

Rutana at the same hearing, also received downward

departures to probation, although the district court gave

different reasons for these departures. In sentencing each

of these co-defendants, the district judge expressed the

opinion that the minimum fine, which he believed to be

mandatory for each count, was “harsh” in combination

with the term of imprisonment called for by the

guidelines. In sentencing Barnes, the district court also

expressed some concern that FCA did not have the

economic “wherewithal” to comply with changing federal

effluent standards.

The imposition of a “harsh” fine is not a proper basis

for departure from the guidelines. The guidelines have

already taken fines, even large ones, into consideration.

See U.S.S.G. §SE1.2(c)(3) (specifying minimum fine of

$6,000 and a maximum fine of $60,000 for offense levels

18 and 19).7 Economic considerations likewise do not

provide a basis for downward departure. U.S.S.G. Ch.1,

Pt.A.4(b) (economic hardship may not be considered as

grounds for departure); U.S.S.G. §5K2.12, p.s.

7Furthermore, as we note infra in Part Ill, the district court's

imposition of Rutana's fine was based on an erroneous assumption

that the relevant statute mandated a fine for each count.

Al0

(economic pressures pen a business do not warrant a

decrease in sentence).8

Rutana argues that because his sentence is now

“uniform” with those of Barnes and Fiorini, resentencing

him could result in the type of disparity which the

guidelines were intended to prevent. See 18 U.S.C.

§3553(a)(6) (sentencing court must consider, among other

factors, the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

found guilty of similar conduct). However, departure in

order to achieve conformity among co-defendants is not

appropriate where there is a basis for disparity. United

States v. Nelson, 918 F.2d 1268, 1273 (6th Cir. 1990).

The record indicates that there is indeed some basis for

disparity. Both Fiorini and Barnes pled guilty to

negligent, rather than knowing, violations of the Clean

Water Act. U.S.S.G. §2Q1.2 assumes knowing conduct,

and downward departure may be warranted in cases

involving negligent violations. U.S.S.G. §2Q1.2,

comment. (n.4). In addition, both Fiorini and Barnes

received decreases of four levels for their “minimal

participant” roles in the offenses, while Rutana received

an increase of two levels for his leadership role. Rutana's

situation was not the same as that of his co-defendants,

and we decline to hold as a matter of law that his sentence

should be the same.

iil

We appreciate the difficult task of the sentencing judge,

and do not wish to displace his discretion in resentencing

Mr. Rutana. In our decision, we have simply indicated

those factors which are improper bases for departure.

However, we stress that in imposing sentence, the district

8 Federal effluent limitations are established with economic

considerations in mind. See 33 U.S.C. §1317(a)(2)("Each toxic

pene - . Shall be subject to effluent limitations resulting from the

lication. ‘of the best available technolog a

leva rox #1 4 me Effluent standards are reviewed ropriate,

pa revi east every three years. 33 U.S.C. sBIWwOr

All

court should not only eliminate consideration of those

factors which the guidelines have already taken into

account or expressly deemed irrelevant; he should also

consider “the full panoply” of relevant sentencing factors,

aggravating as well as mitigating. Brewer, 899 F.2d at

511. We remind the district court that the burden of

persuading the sentencing court that a downward

departure is warranted rests with the defendant. United

States v. Bogas, 92° F.2d 363, 369 (6th Cir. 1990).

Furthermore, the court must state the specific reason(s)

for any departure. Jd; United States v. Fitzwater, 896

F.2d 1009, 1011 (6th Cir. 1990).

Finally, in resentencing, the district court should also

reconsider whether to fine Rutana on all 18 counts of his

conviction. In setting the fine, the district court was

acting under the erroneous impression that the $5,000 per

count fine was a mandatory minimum. While the total

amount of Rutana’s fine was technically proper, and while

the guidelines state that some fine shall be imposed in all

cases, see U.S.S.G. §5E1.2(a), the statute under which

Rutana was sentenced does not require a fine for each

violation. Rather, 33 U.S.C. §1319(c)(2) gives the

sentencing court the option of imposing a fine or

imprisonment, or both.9 Although the government did

not object below to the district court's erroneous approach

in imposing Rutana's fine, we nonetheless deem

reconsideration of the fine to be necessary, particularly in

light of the need for the combined sentence to serve the

purposes stated in the guidelines. REMAND this case to

the district court for resentencing.

933 U.S.C. $1319(c)(2) rovides that violations such as Rutana’s

“shall be punished by a fine of not less than $5,000 nor more than

$50,000 per day of violation, or by imprisonment for not more than 3

years, or by both.”

Al2

APPENDIX B

United States District Court’s Judgment

of Conviction and Sentencing Order

of John W. Rutana

(Filed March 14, 1990)

Case No. 4:89CRO0158

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

FINISHING CORPORATION OF AMERICA,

INC., JOHN W. RUTANA, RICHARD J.

FIORINI, JOHN C. BARNES,

Defendants.

JUDGMENT OF CONVICTION AND SENTENCING

ORDER OF DEFENDANT,

JOHN W. RUTANA

JUDGE ALVIN I. KRENZLER

This matter came on for sentencing on March 2,

1990. The defendant, John W. Rutana, was charged in

twenty-two counts of a forty-count indictment, filed on

May 31, 1989. He was charged in Counts 1 through 18

with violations of 33 U.S.C. §$1317(d) and 1319(c)(2)(A)

(knowingly discharging pollutants), and in Counts 19 and

20 with violations of 33 U.S.C §§1317(d) and 1319%c)(3)

Al3

(knowingly discharging pollutants with knowledge that

said discharge would place persons in imminent danger

of injury or death).

At the arraignment the Court accepted a plea of not

guilty to the charges against the defendant and set the

matter for trial.

Prior to trial, the defendant informed the Court that

he wished to change his plea from not guilty to guilty to

Counts 1 through 18 in the indictment. The matter was

set for a change-of-plea hearing on October 2, 1989. At

this hearing, the defendant was present with his retained

counsel, Charles Dunlap, Esq. Representing the

government was Gregory Sasse, Assistant United States

Attorney. The defendant was given his constitutional

rights and informed of those rights which he would

waive if the Court accepted his guilty plea. The Court

advised the defendant that, pursuant to the Sentencing

Reform Act of 1984, the United States Sentencing

Commission issued Sentencing Guidelines for judges to

follow in determining the sentence in a criminal case. The

defendant acknowledged that he had reviewed the

Sentencing Guidelines with his counsel. The defendant

acknowledged that he understood the effect of the

Sentencing Guidelines. The Court then informed the

defendant of the maximum sentence he could receive if

the Court accepted his guilty plea. The defendant stated

that no threats or promises had been made to him, and

that he voluntarily desired to enter a plea of guilty to

Counts 1 through 18 of the indictment.

The Court was notified that an oral Fed. R. Crim. P.

11 plea agreement had been entered into between the

defendant and the government. Pursuant to this

agreement, the defendant agreed to plead guilty to

Counts 1 through 18 of the indictment. In exchange for

Al4

his plea of guilty to Counts 1 through 18 of the

indictment, the government agreed to move to dismiss

Counts 19, 20, 39 and 40 of the indictment at the time of

sentencing. In addition, the government agreed to

recommend that any terms of incarceration imposed

upon the defendant run concurrently with each other.

Finally, the government and the defendant entered into a

non-binding joint resolution to the effect that

§§2Q1.2(b)(1)(A) and (b)(3) of the Sentencing Guidelines

would apply to the calculation of the defendant's

sentence and that §$2Q1.2(b)(2) would not apply.

The government presented a factual basis for the

guilty plea. The defendant stated that the facts as

presented were true, that no contrary evidence would be

presented at trial, and that he was in fact guilty of the

charges in Counts 1 through 18 of the indictment. After

determining that the factual basis was sufficient to

support a conviction and that the plea was knowingly

and voluntarily made, the Court accepted the plea

agreement and the defendant’s plea of guilty to Count 1

through 18 of the indictment (violations of 33 U.S.C.

§§1317 (d) and 1319 (c)(2)(A)).

The Court then continued the matter for sentencing

pending the preparation and receipt of a presentence

report from the Federal Probation Department.

At the sentencing, defendant was present and was

represented by his retained counsel, Charles Dunlap,

Esq. Representing the government was Gregory Sasse,

Assistant United States Attorney. Defendant, through

his counsel renewed his Motion for a Continuance of the

Sentencing. The Court overruled the defendant’s motion

for a continuance.

Al5

The Court, addressing both the defendant and

counsel for the defendant, asked whether they had had

an opportunity to review the presentence report and

whether there were any inaccuracies, corrections,

additions or deletions to be made to the presentence

report. The defendant and counsel for the defendant

stated that the presentence report was accurate with the

exception of a fact relating to the value of stock owned

by the defendant. Specifically, the presentence report at

page 19, paragraph 61, states that defendant owns

$30,000.00 worth of stock. Defendant stated that the

amount should be $3,000.00 worth of stock. The Court

stated that if the presentence report was inaccurate in

this regard, it would amend the presentence report. The

Court then accepted the presentence report. The Court

then provided counsel for the defendant and the

defendant himself with an opportunity to make a

statement in the defendant’s behalf and to present any

information in mitigation of punishment. Counsel for the

government was given an equivalent opportunity to

address the Court.

The Court then sentenced the defendant, John W.

Rutana, to five years probation, with the special

condition that defendant perform 1,000 hours of

community service, preferably in the area of studying

pollution problems and working out solutions to the

same. In addition, the Court fined the defendant

$90,000.00. In sentencing the defendant, the Court

departed from the Sentencing Guidelines offense level of

18 to offense level 6, category 1. The defendant was also

ordered to pay a special assessment of $50.00 per count

for a total of $900.00 into the Crime Victim’s Fund, as

required by 18 U.S.C. §3013.

Al6

Counsel for the government, pursuant to the Fed. R.

Crim. P. 11 plea agreement, then moved to dismiss

Counts 19, 20, 39, and 40 of the indictment. The Court

granted the government’s motion and dismissed Counts

19, 20, 39 and 40 of the indictment.

The Court informs the defendant of his right to

appeal his sentence pursuant to Fed. R. Crim. P. 32. The

Court also informs the defendant that if he is financially

unable to obtain counsel for the purpose of appeal, the

Court will appoint counsel to represent him.

Accordingly, the Court enters a judgment of

conviction against the defendant, John W. Rutana, for

violation of 33 U.S.C. §§1317(d) and 1319 (c)(2)(A)

(knowingly discharging pollutants).

IT IS SO ORDERED.

/s/ ALVIN I. KRENZLER

United States District Judge

Charles Dunlap

U.S. Marshall

Probation

U.S. Attorney

Al7

Judgment Including Sentencing of

the United States District Court

(Filed March 14, 1990)

Case Number 4:89CR0158

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

UNITED STATES OF AMERICA,

v.

JOHN W. RUTANA,

(Name of Defendant)

Charles Dunlap

Defendant's Attorney

JUDGMENT INCLUDING SENTENCE UNDER

THE SENTENCING REFORM ACT

THE DEFENDANT:

[x] pleaded guilty to count(s) one through eighteen (1-

18).

[ ] was found guilty on count(s) after

a plea of not guilty.

Accordingly, the defendant is adjudged guilty of

such count(s), which involved the following offenses:

Title & Section Nature of Offense Count Number(s)

33:1317(d) knowingly discharging (1-18)

33:131%c)(2)(A) pollutants

Al18

The defendant is sentenced as provided in pages 2

through 4 of this Judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

[x]

[x]

the

The defendant has been found not guilty on count(s)

and is discharged as to such count(s).

Count(s) 19, 20, 39 and 40 (is) (are) dismissed on the

motion of the United States.

The mandatory special assessment is included in the

portion of this Judgment that imposes a fine.

It is ordered that the defendant shall pay to the

United States a special assessment of $

which shall be due immediately.

It is further ordered that the defendant shall notify

United States Attorney for this district within 30

days of any change of residence or mailing address until

all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Defendant's Soc. Sec. Number:

270-32-5354 March 2, 1990

Date of Imposition of Sentence

Defendant's mailing address:

8531 Van Drive /s/ ALVIN I. KRENZLER

Poland, OH 44514 Signature of Judicial Officer

Alvin I. Krenzler,

U.S. District Judge

Name & Title of Judicial Officer

Defendant's residence address:

same as above 3-14-90

Date

Al9

PROBATION

The defendant is hereby placed on probation for a

term of five (5) years.

While on probation, the defendant shall not commit

another Federal, state, or local crime and shall comply

with the standard conditions that have been adopted by

this court (set forth on the following page). If this

Judgment imposes a fine or a restitution obligation, it

shall be a condition of probation that the defendant pay

any such fine or restitution. The defendant shall comply

with the following additional conditions:

The defendant shall perform 1,000 hours of

community service, preferably in the area of

studying pollution problems and working out

solutions to the same., as directed by the Federal

Probation Department.

* *+ *+ *& *

FINE WITH SPECIAL ASSESSMENT

The defendant shall pay to the United States the

sum of $90,900.00, consisting of a fine of $90,000.00 and

a special assessment of $900.00.

{ ] These amounts are the totals of the fines and

assessments imposed on individual counts, as

follows:

special assessment of $50.00 per count for a total of

$900.00 (1-18)

This sum shall be paid [ [ immediately.

[x] as follows:

As directed by the Federal Probation Department.

{ } The Court has determined that the defendant does

not have the ability to pay interest. It is ordered

that:

[ | The interest requirement is waived.

[ ] The interest requirement is modified as follows:

A20

APPENDIX C

Order of the United States Court

of Appeals For the Sixth Circuit

(Filed August 23, 1990)

No. 90-3343

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

JOHN W. RUTANA,

Defendant-Appellee.

ORDER

BEFORE: Jones and NELSON, Circuit Judges; and

SILER, Chief District Judge*

The United States appeals, pursuant to 18 U.S.C.

$3742, the sentence imposed upon the defendant for

violations of the federal Clean Water Act. The defendant

now moves for dismissal of the appeal on grounds that

the government failed to timely certify that the

Attorney General or Solicitor General had personally

approved the notice of appeal. The government has

responded in opposition.

* The Honorable Eugene E. Siler, Jr., Chief District Judge for the

Eastern District of Kentucky, sitting by designation.

A21

The judgment of sentence was entered on March 16,

1990. On April 13, 1990, the government filed a timely

notice of appeal from the sentence. On April 19, 1990,

the government served upon the defendant an

authorization to file the notice of appeal. That

authorization, signed by the Solicitor General on April

17, indicates that on April 12, 1990, he authorized the

filing of the notice of appeal.

The government, “with the personal approval of the

Attorney General or Solicitor General’’ may appeal a

sentence pursuant to 18 U.S.C. §3742(b). We conclude

that the certification of written approval is sufficient in

this case. The government is, however, referred to this

court’s opinion in United States v. Smith, ‘F.2d

, No. 89-2346, slip op. at 4 (6th Cir. August 6,

1990), which imposes, prospectively, a rule to be followed

in these appeals. We also note that the government has

not yet filed the certification with this Court, although it

has filed its brief. The government is directed to file a

copy of the certification with the clerk of the court

within 14 days of the entry of this order.

It is therefore ORDERED that the motion to

dismiss is denied. The government shall file a copy of its

certification of the Solicitor General’s approval of the

appeal within 14 days of the entry of this order.

ENTRY OF ORDER

OF THE COURT

/s/ LEONARD GREEN

Clerk