Appendix — Sigmond v. United States

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In The

Supreme Court Of Che United State

OCTOBER TERM, :

Supreme Court, U.S.

g8-2081; *''*”

JUN 15 1964

ALEXANDER L. STEVAS

CLERK

LEIF R. SIGMOND, Petitioner

vs.

UNITED STATES OF AMERICA

ee * aT

Appendix To

Petition Of Leif R. Sigmond For Writ Of

Certiorari To The United States Court

Of Appeals For The Third Circuit

Kenneth J. McGuire, Esq.

Stein, Bliablias, McGuire & Pantages

Attorneys for Petitioner, Leif R. Sigmond

11 Commerce Street

Newark, New Jersey 07102

(201) 622-3100

Print Masters, Route 22, Union, New jersey 07083 (201) 964-7766

Appendix

Table of Contents - Appendix

Judgment Order of the United

States Court of Appeals for

the Third Circuit dated

April 16, 1984.

Judgment and Probation/

Commitment Orders dated May

23, 1983.

Opinion of Hon. Dickinson R.

Debevoise dated November 16,

1982.

Constitutional provisions,

statutes and rules

Order dated November 29, 1982

Transcript of Proceedings -

Sentence dated May 23, 1983

Order dated April 3, 1981

Subpoena dated January 11,

1983

Transcript of Testimony of

Gregory Sakowicz before

Subcommittee on Oversight and

Investigations. of the

Committee on Energy and

Commerce dated June 9, 1981.

Oral Opinion of Hon. Dickison

R. Debevoise dated November 1,

1982

Affidavit of Wayne Smith

Affidavit of Richard Childs

Affidavit of Nicholas M. Russo

Appendix N.

Appendix 0O.

Appendix P.

Appendix Q.

Appendix R.

Appendix S.

Criminal Search Warrants dated

July 10, 1978, July 27, 1978,

and September 11, 1978

Notice of Motion to Dismiss

Indictment, For Suppression,

For a Bill of Particulars and

For Other Relief dated October

15, 1982

Judgments filed March 18,

1983.

Transcript of Proceedings -

Trial dated March 11, 1983

Affidavit of Justin P. Walder

dated March 29, 1983.

Federal Grand Jury Subpoena

dated June 25, 1981.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 83-5442, 83-5461, 83-5462

UN1TED STATES OF AMERICA

MACK BARNES Appellant in No. 83-5442

HERBERT G. CASE, JR., Appellant in

No. 83-5461

LEIF R. SIGMOND, Appellant in No. 83-5462

On Appeal from the United States

District Court for the District of

New Jersey

(Crim. Nos. 82-200-02, 01, & 03)

(Honorable Dickinson R. Debevoise)

Argued April 10, 1984

Before: ADAMS, BECKER and VAN DUSEN,

Circuit Judges

JUDGMENT ORDER

After considering the contentions

raised by appellants, namely, that (1) the

suppressed state court materials used in

the federal prosecution violated the

Fourth Amendment; (2) the alleged criminal

conduct was not properly prosecuted under

the mail fraud statute; (3) the court

below erred in refusing to order the

government to introduce chemical analysis

of the materials alleged to have been

illegally dumped; (4) the trial court

erred in refusing discovery on point

three; (5) they were prejudiced by the

variance between the indictment and the

proof introduced at trial; (6) the trial

court's apparent reliance on race in the

sentencing proceedings violated the equal

protection clause; (7) it was error to

admit a private diary into evidence; (8)

the trial court erred in instructing the

jury on a missing witness charge despite

the lack of such a request for charge from

the defendants; (9) the trial court erred

in refusing to enforce all of the

defendants' subpoenas; (10) the trial

court erred in the supervision and

instruction to the jury; and (11)

A-2.

defendant Barnes was prejudiced by the

inadvertent appending of material not in

evidence t» documentary evidence submitted

by the prosecution and inspected by the

jury, it is

- ADJUDGED AND ORDERED that the judgment

of the district Court be and is hereby

affirmed.

BY THE COURT,

Circuit Judge

ATTEST:

Sally Mrvos, Clerk

DATED: April 16, 1984

APPENDIX B

United States of United States District

American Vs. Court for the District

LEIF R. SIGMOND of New Jersey

Docket No. Criminal

Filed: 82-200

at 11:00 a.m.

Allyn Z. Lite

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in

person on this date ---May 23, 1983

COUNSEL:

With Counsel - Dino Bliablias, Esq.

PLEA:

Not Guilty

FINDING & JUDGMENT:

There being a verdict of guilty.

Defendant has been convicted as

charged of the offense(s) of

conspiracy (Count 1); use of mails in

scheme to defraud (Counts 2, 3, 4, 7

through 12, 15, 16 & 17).

SENTENCE OR PROBATION ORDER:

The court asked whether defendant had

anything to say why judgment should

not be pronounced. Because no

sufficient cause to the contrary was

shown, or appeared to the court, the

court adjuged the defendant guilty as

charged and convicted and ordered

that: The defendant is hereby

committed to the custody of the

Attorney General or his authorized

B-1.

representative for imprisonment for a

period of two (2) years and six (6)

months on Count 1 and the defendant to

pay a fine of $10,000.00; imposition

of sentence suspended on each of

counts 2, 3, 4, 7, 8, 9, 10, 11, 12,

15, 16 and 17 and the defendant placed

on probation for a period of five (5)

years on each count to run

concurrently with each other, said

probation to commence upon full and

complete discharge from custodial

sentence imposed on Count 1.

SPECIAL CONDITIONS OF PROBATION:

IT IS FURTHER ORDERED that execution

of sentence be and is hereby stayed

pending appeal.

ADDITIONAL CONDITIONS OF PROBATION:

In addition to the special conditions

of probation imposed above, it is

hereby ordered that the general

conditions of probation set out on the

reverse side of this judgmenc be

imposed. The court may change the

conditions of probation, reduce or

extend the period of probation, and at

any time during the probation period

or within a maximum probation period

of five years permitted by law, may

issue a warrant and revoke probation

for a violation occurring during the

probation period.

COMMITMENT RECOMMENDATION:

The court orders commitment to the

custody of the Attorney General and

recommends,

It is ordered that the Clerk deliver a

certified copy of this judgment and

commitment to the U.S. Marshal or other

qualified officer.

Signed by U.S. District Judge

/LS

DICKINSON R. DEBEVOISE

Dated: 5/25/83

B-3.

United States of United States District

American Vs. Court for the District

HERBERT G. CASE, of New Jersey

JR. Docket No. Criminal

82-200

Filed:

May 25, 1983

at 11:00 a.m.

Allyn Z. Lite

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in

person on this date ---May 23, 1983

COUNSEL:

With Counsel - Justin Walder, Esq.

PLEA:

Not Guilty

FINDING & JUDGMENT:

There being a verdict of guilty.

Defendant has been convicted as

charged of the offense(s) of

conspiracy (Count 1); use of mails in

scheme to defraud (Counts 2, 3, 4, 7

through 12, 15, 16, 17, 19, 20 & 21).

SENTENCE OR PROBATION ORDER:

The court asked whether defendant had

anything to say why judgment should

not be pronounced. Because no

sufficient cause to the contrary was

shown, or appeared to the court, the

court adjuged the defendant guilty as

charged and convicted and ordered

that: The defendant is hereby

B4.

committed to the custody of the

Attorney General or his authorized

representative for im risonment for a

period of eighteen (18) months on

Count 1 and that the defendant do pay

a fine of $2,000.00; imposition of

sentence suspended on each of Counts

2,3,4,7,8,9, 10,11, 12,15, 16,17,19,20

and 21 and defendant placed on

probation on each count for a period

of five (5) years to run concurrently

with each other, said probation to

commence upon full and complete

discharge from custodial sentence

imposed on Count 1.

SPECIAL CONDITIONS OF PROBATION:

IT IS FURTHER ORDERED that execution

of sentence be and is hereby stayed

pending appeal.

ADDITIONAL CONDITIONS OF PROBATION:

In addition to the special conditions

of probation imposed above, it is

hereby ordered that the general

conditions of probation set out on the

reverse side of this judgment be

imposed. The court may change the

conditions of probation, reduce or

extend the period of probation, and at

any time during the probation period

or within a maximum probation period

of five years permitted by law, uly

issue a warrant and revoke probation

for a violation occurring during the

probation period.

COMMITMENT RECOMMENDATION:

The court orders commitment to the

custody of the Attorney General and

recommends,

It is ordered that the Clerk deliver a

certified copy of this judgment and

commitment to the U.S. Marshal or other

qualified officer.

Signed by U.S. District Judge

/LS

DICKINSON R. DEBEVOISE

Dated: 5/25/83

United States of United States District

American Vs. Court for the District

MACK BARNES of New Jersey

Docket No. Criminal

Filed: 82-200

May 25, 1983

at 11:00 a.m.

Allyn Z. Lite

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in

person on this date ---May 23, 1983

COUNSEL:

With Counsel - Anthony Mautone, Esq.

PLEA:

Not Guilty

FINDING & JUDGMENT:

There being a verdict of guilty.

Defendant has been convicted as

charged of the offense(s) of

conspiracy (Count 1); use of mails in

scheme to defraud (Counts 2, 3, 4, 7

through 12, 15, 16, 17, 20 & 21).

SENTENCE OR PROBATION ORDER:

The court asked whether defendant had

anything to say why judgment should

not be pronounced. Because no

sufficient cause to the contrary was

shown, or appeared to the court, the

court adjuged the defendant guilty as

charged and convicted and ordered

that: The defendant is hereby

committed to the custody of the

B-7 ”

Attorney General or his authorized

representative for imprisonment for a

period of six (6) months on Count 1

and that the defendant do pay a fine

of $500.00; imposition of sentence

suspended on each of Counts

2,3,4,7,8,9,10,11,12,15,16,17,20 and

21 and the defendant placed on

probation for a period of five (5)

years on each count to run

concurrently with each other, said

probation to commence upon full and

complete discharge from custodial

sentence imposed on Count 1.

SPECIAL CONDITIONS OF PROBATION:

IT IS FURTHER ORDERED that execution

of sentence be and is hereby stayed

pending appeal.

ADDITIONAL CONDITIONS OF PROBATION:

In addition to the special conditions

of probation imposed above, it is

hereby ordered that the general

conditions of probation set out on the

reverse side of this judgment be

imposed. The court may change the

conditions of probation, reduce or

extend the period of probation, and at

any time during the probation period

or within a maximum probation period

of five years permitted by law, may

issue a warrant and revoke probation

for a violation occurring during the

probation period.

COMMITMENT RECOMMENDATION:

The court orders commitment to the

custody of the Attorney General and

recommends,

It is ordered that the Clerk deliver a

certified copy of this judgment and.

commitment to the U.S. Marshal or other

qualified officer.

Signed by U.S. District Judge

/LS

DICKINSON R. DEBEVOISE

Dated: 5/25/83

ret

APPENDIX C

NOT

FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA :

Criminal

Vv. Action No.

82-200.

HERBERT G. CASE, JR.,

MACK BARNES, LEIF R.

SIGMOND, and SCIENTI- : OPINION

FIC

INC.

CHEMICAL PROCESSING,

Defendants.

DEBEVOISE, District Judge.

Appearances:

Charles S. Crandall, Esquire

Assistant United States Attorney

A. Patrick Nucciarone, Esquire

Assistant United States Attorney

Office of the United States Attorney

Fraud and Public Protection Division

970 Broad Street, Room 502

Newark, New Jersey 07102

‘Attorneys for the United States)

Justin P. Walder Esquire

Walder, Steiner & Sondak, Esquires

17 Academy Street

Newark, New Jersey 07102

(Attorneys for Defendant Case)

Anthony R. Mautone, Esquire

Minichino & Mautone, Esquires

2 Peach Tree Hill Road

Box 475

Livingston, New Jersey 07039

C-1.

(Attorneys for Defendant Barnes)

Dino D. Bliablias, Esqulre

Stein, Bliablias & McGuire, Esquires

11 Commerce Street

Newark, New Jersey 07102

(Attorneys for Defendant Sigmond)

C-2.

At the conclusion of the November 1,

1982 hearing on defendants' various

motions, I reserved two matters for

subsequent disposition. First,

defendants had moved to dismiss the

indictment for the asserted reason that no

proofs had been presented to the grand

jury that there had been a use of the

mails. I denied the motion but undertook

to examine pertinent portions of the grand

jury record and to reconsider my ruling if

it appeared that the grand jury did not

have evidence before it on the basis of

which it could have concluded that there

was probable cause to believe that the

mails had been used in furtherance of the

alleged fraudulent scheme. Second, I

reserved decision on defendants’ motions

for a bill of particulars.

As to the evidence before the grand

jury, I have examined it in sufficient

detail to find that there was evidence to

enable the grand jury to conclude that

there had been a requisite use of the

mails in connection with the offense

charged in each Count of the

indictment. Thus, there is no reason to

alter my earlier denial of defendants'

motions to dismiss the indictment on this

ground.

On October 15, 1982 defendants moved

for a bill of particulars as to six

matters. On October 19, 1982 defendant

Case moved for particulars as to sixty-two

(62) numbered matters, many of the

numbered matters containing from seven to

eighteen lettered sub-items. |

The purpose of a bill of particulars

is to enable a defendant to prepare his

defense, tc avoid surprise at the trial,

and to protect a defendant against a

second prosecution. United States v.

Addonizio, 451 F.2d 49 (3d Cir. 1972),

cert. denied, 405 U.S. 936 (1972). In

C4.

part to obtain the same ends, the Court in

this District routinely enters a discovery

order the Court at the time of

arraignment. That was done in this case

and as a result each defendant became

entitled to copies of his statements

within the possession of the Government,

reports of physical or mental examinations

and of scientific tests or experiments

made in connection with the case in the

Government's possession, the defendant's

grand jury testimony, defendant's

documents or other property in the

Government's possession, defendant's prior

criminal record and Brady material. In

addition, the Government was required to

pre-mark all exhibits it intends to

introduce as part of its direct case and

to permit defendants' attorneys to inspect

and copy these exhibits thirty (30) days

prior to trial. I am informed that the

Government has complied with the

requirements of the discovery order.

C-5.

This case must, of necessity, depend

in large measure upon documentary evidence

showing shipments, billings, payments,

reports to governmental agencies. These

documents should show what hazardous

wastes defendants claimed to have picked

up and disposed of and the dates and

places of asserted disposal. They came

from Scientific Chemical Processing

Company, Inc. ("SCP") and have been made

available to defendants for examination

and copying. Further, the Government has

made available to defendants for

inspection and copying the records of the

chemical waste generators relevant to this

case. These records disclose information

about the wastes actually shipped. From

these documents and from the Government's

exhibits which have also been made

available to defendants, much of the

information they seek in their bill. of

particulars is available to then.

C-6.

Turning to the motion for a bill of

particulars filed on October 15, 1982,

paragraphs 1 and 4 of Schedule A to that

motion ask as to each incident of unlawful

dumping referred to in paragraphs 15 and

17, respectively, of Count One of the

indictment, for "the exact citation of

each and every federal or state statute,

regulation or other authority [by] [under]

which the dumping was alleged to have been

made unlawful". The Government asserts

that through discovery it has already

provided defendants with copies of the

rules of the Passaic Valley Sewerage

Commissioners ("Passaic Valley") which are

alleged to have been violated. The

Government does not claim to have

furnished copies of statutes and

regulations governing disposition of

hazardous wastes other than through the

facilities of Passaic Valley.

C-7.

I think it is appropriate that the

Government advise the-defendants of the

specific statutes and regulations which it

claims were violated. This information

need not be tied to particular paragraphs

or Counts of the indictment, but the

Government should list each such statute

and regulation. An order will be entered

requiring the Government to furnish

particulars in this regard.

Paragraphs 2, 3, 5 and 6 of Schedule A

of defendants' motion seek details as to

the chemical composition of each substance

alleged to have been dumped and the volume

and chemicai concentration of the

substances which were dumped. This

‘ information need not be furnished by way

of particulars. An examination of the

records referred to above will provide

defendants with all that they need to

prepare their defense in this regard.

C-8.

ee a Sa

Defendant Case's motion for

particulars filed October 19, 1982

constitutes a twenty-four page demand for

everything that ingenious counsel could

conjure up, without regard to whether the

information sought has already been

furnished, or whether it is the subject of

the earlier discovery order, or whether it

exists at all, or whether it is a proper

subject for particulars.

I have examined with care each

demand. Except to the extent that the

information requested is the subject of

the discovery order, the motion will be

denied in its entirety for the following

reasons:

1. The information sought is already

the subject of a discovery order and, to

the extent it exists, has been furnished

to Case, e.g., Requests Nos. 1, 2, 3, 6,

7, 12 (to the extent the records were the

property of SCP), 15.

2. The information sought-is beyond

that which is authorized by statute or by

the Federal Rules of Criminal Procedure,

e.g., Request Nos. 4, 5, 8, 9, 10, 11

(Rule 16(a)(1)(A)), 36 (Rule 16(a)(1)(B)).

3. The Government having informed

defendants that no electronic surveillance

or wiretaps were used in its

investigation, and defendant Case having

made no showing that his own rights were

violated, the Government is not required

to describe the method by which it

obtained its evidence or conducted its

investigation, Request Nos. 18, 38, 41,

42, 43, 49.

4. The Government is not required to

specify in advance what evidence it

intends to offer at trial or what

witnesses it proposes to call, e.g.,

Requests Nos. 19, 20, 21, 22, 23, 24, 25,

27, 28, 29, 30, 33, 37.-

C-10.

5. Defendant Case having made no >

showing of a compelling or particularized

need, he is not entitled to information

concerning grand jury proceedings which

are normally protected by the rule of

secrecy, e.g., Requests Nos. 44, 46, 48.

6. As in the case of mest of the

particulars sought in the October 15, 1982

motion, specification of minute details

concerning illegal dumping and other acts

charged in the indictment are not

necessary for a proper defense of the

case, as substantial information has been

made available to defendants through the

records to which they have access, and

even were the records not available, the

details sought are not normally

discoverable through a demand for

particulars, e.g., Requests Nos. 45, 50,

51, 54, 55, 56, 57, 58, 59, 60, 61, 62.

In summary, (i) there is no reason to

modify my determination that defendants’

G11.

motion to dismiss the indictment should be

denied; (ii) the Government will be

required to specify each statute and

regulation which it alleges defendants

violated, and otherwise defendants' motion

for a bill of particulars, filed October

15, 1982, will be denied; and (iii)

defendant Case's motion for a bill of

particulars, filed October 19, 1982, will

be denied in its entirety, but such denial

shall not affect the Government's

continuing obligation to comply with the

discovery order filed July 8, 1982.

The Government is requested to prepare

a form of order implementing my November

1, 1982 rulings and the rulings set forth

in this opinion.

Dated: November 16, 1982

Dickinson R. Debevois

United States District

Judge

C-12.

APPENDIX D

1. UNITED STATES CONSTITUTIONAL

PROVISIONS

Section 6, Clause 1. Compensation of

members; privilege from arrest

The Senators and Representatives

shall receive a Compensation for their

Services, to be ascertained by Law, and

paid out of the Treasury of the United

States. They shall in all Cases, except

Treason,Felony and Breach of the Peace, be

privileged from Arrest during their

Attendance at the Session of their

respective Houses, and in going to and

returning from the same; and for any

Speech of Debate in either House, they

Shall not be questioned in any other

Place.

AMENDMENT IV-SEARCHES AND SEIZURES

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

D-1.

cause, supported by Oath or affirmation,

and particulary describing the place to be

searched, and the persons or things to be

seized.

AMENDMENT V-CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION FOR PROPERTY

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 offense 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.

D-2.

ee ee eae oT

ee eee ee

2. UNITED STATES STATUTES

18 U.S.C Section 317.

Conspiracy to commit offense or to

defraud United States

If two or more prsons conspire either

to commit any offense against the United

States, or to defraud the United Staes, or

any agency thereof in any manner cr for

any purpose, and one or more of such

persons do any act to effect the object of

the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more

than five years, or both.

If, however, the offense, the

commission of which is the object of the

conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not

exceed the maximum punishment provided for

such misdemeanor. June 25, 1948, c. 645,

62 Stat. 701.

18 U.S.C. Section 1341.

Frauds and swindles

Whoever, having devised or intending

to devise any scheme or artifice to

D-3.

defraud, or for obtaining money or

property by means of false or fraudulent

pretenses, representations, or promises,

or to sell, dispose of, loan, exchange,

alter, give away, distrbute, supply, or

furnish or procure for unlawful use any

counterfeit or spurious coin, obligation,

security, or other article, or anything

represented to be or intimated or held out

to be such counterfeit or spurious

article, for the purpose of executing such

scheme or artifice or attempting so to do,

places in any post office or authorized

depository for mail matter, any matter or

thing whatever to be sent or delivered by

the Post Office Department, or takes or

receives therefrom, any such matter or

thing, or knowingly causes to be delivered

by mail according to the direction

thereon, or at the place at which it is

directed to be delivered by the person to

whom it is addressed, any such matter or

D—4.

thing, shall be fined not more than $1,000

or imprisoned not more than five years, or

both. June 25, 1984, c. 645, 62 Stat.

763; May 24, 1949, ¢c. 139, Sect. 34, 63

Stat. 94.

3. FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 7(f) Bill of Particulars.

The court may direct the filing of a bill

of particulars. A motion for a bill of

particulars may be made before arraignment

or within ten days after arraignment or at

such later time as the court may permit.

A bill of particulars may be amended at

any time subject to such conditions as

justice requires. As amended Feb. 28,

1966, eff. July 1, 1966; Apr. 24, 1972,

eff. Oct. 1, 1972.

Rule 12. Pleadings and Motions before

Trial; Defenses and Objections

(a) Pleadings and Motions.

Pleadings in criminal proceedings shall be

the indictment and the information, and

the pleas of not guilty, guilty and nolo

D-5.

contendere. All other pleas, and

demurrers and motions to quash are

abolished, and defenses and objections

raised before trial which heretofore could

have been raised by one or more of them

shall be raised only by motion to dismiss

or to grant appropriate relief, as

provided in these rules.

(b) Pretrial Motions. Any defense,

objection, or request which is capable of

determination without the trial of the

general issue may be raised before trial

by motion. Motions may be written or oral

at the discretion of the judge. The

following must be raised prior to trial:

(1) Defenses and objections based on

defects in the institution of the

prosecution; or

(2) Defenses and objections based on

defects in the indictment or

information (other than that it fails

to show jurisdiction in the court or

D-6.

to charge an offense which objections

shall be noticed by the court at any

time during the pendency of the

proceedings); or

(3) Motions to suppress evidence; or

(4) Requests for discovery under Rule

16; or

(5) Requests for a severance of

charges or defendants under Rule 14.

(ec) Motion Date. Unless otherwise

provided by local rule, the court may, at

the time of the arraignment or as soon

thereafter as practicable, set a time for

the making of pretrial motions or requests

and, if required, a later date of hearing.

(d) Notice by the Government of the

Intention to Use Evidence.

(1) At the Discretion of the

Government. At the arraignment or as

soon thereafter as is practicable, the

government may give notice to the

defendant of its intention to use

D-7.

specified evidence at trial in order

to afford the defendant an opportunity

to raise objections to such evidence

prior to trial under subdivision (b)

(3) of this rule.

(2) At the Request of the

Defendant. At the arraignment or as

soon thereafter as is practicable the

defendant may, in order to afford an

opportunity to move to suppress

evidence under subdivision (b)(3) of

this rule, request notice of the

government's intention to use (in its

evidence in chief at trial) any

evidence which the defendant may be

entitled to discover under Rule 16

subject to any relevant limitations

prescribed in Rule 16.

(e) Ruling on Motion. A motion made

before trial shall be determined before

trial unless the court, for good cause,

orders that it be deferred for

D-8.

determination at the trial of the general

issue or until after verdict, but no such

determination shall be deferred if a

party's right to appeal is adversely

affected. Where factual issues are

involved in determining a motion, the

court shall state its essential findings

on the record.

(f) Effect of Failure to Raise

Defenses or Objections. Failure by a

party to raise defenses or objections or

to make requests which must be made prior

to trial, at the time set by the court

pursuant to subdivision (c), or prior to

any extension thereof made by the court,

shall constitute waiver thereof, but the

court for cause shown may grant relief

from waiver.

(g) Records. A verbatim record

shall be made of all proceedings at the

hearing, including such findings of fact

and conclusions of law as are made orally.

D-9.

(h) Effect of Determination. If the

court grants a motion based on a defect in

the institution of the prosecution or in

the indictment or information, it may also

order that the defendant be continued in

custody or that his bail be continued for

a specified time pending the filing of a

new indictment or information. Nothing in

this rule shall be deemed to affect the

provisions of any Act of Congress relating

to periods of limitations.

As amended Apr. 22, 1974, eff. Dec. 1

19753; July 31, 1975, Pub. L. 94-64 Sect.

3(11), (12), 89 Stat. 372.

(i) Production of Statements at

Suppression Hearing. Except as herein

provided, rule 26.2 shall apply at a

hearing on a motion to suppress evidence

under subdivision (b)(3) of this rule.

For purposes of this subdivsion, a law

enforcement officer shall be deemed a

witness called by the government, and upon

D-10.

a claim of privilege the court shall

excise the portions of the statement

containing privileged matter.

Rule 35. Correction or Reduction of

Sentence

(a) Correction of Sentence. The

court may correct an illegal sentence at

any time and may correct a sentence

imposed in all illegal manner within the

time provided herein for the reduction of

sentence.

(b) Reduction of Sentence. The

court may reduce a sentence within 120

days after the sentence imposed or

probation is revoked, or within 120 days

after receipt by the court of a mandate

issued upon affirmance of the judgment or

dismissal of the appeal, or within 120

days after entry of any order or judgment

of the Supreme Court denying review of, or

having the effect of upholding, a judgment

of conviction or probation revocation.

D-11.

Changing a sentence from a sentence of

incarceration to a grant of probation

shall constitute a permissible reduction

of sentence under this subdivision.

(As amended Apr. 30, 1979, eff. Aug. 1

1979; Apr. 28, 1983, eff. Aug. 1, 1983).

Rule 41. Search and Seizure

(a) Authority to Issue Warrant. A

search warrant authorized by this rule may

be issued by a federal magistrate or a

judge of a state court of record within

the district wherein the property or

person sought is located, upon request of

a federal law enforcement officer or an

attorney for the government.

(b) Property or Persons Which May be

Seized with a Warrant. A warrant may be

issued under this rule to search for and

seize any (1) property that constitutes

evidence of the commission of a criminal

offense; or (2) contraband, the fruits of

crime, or things otherwise criminally

D-12.

possessed; or (3) property designed or

intended for use or which is or has been

used as the means of committing a criminal

offense; or (4) person for whose arrest

there is probable cause, or who is

unlawfully restrained.

(ec) Issuance and Contents.

(1) Warrant Upon Affidavit. A

warrant other than a warrant upon oral

testimony under paragraph (2) of this

subdivision shall issue only on an

affidavit or affidavits sworn to

before the federal magistrate or state

judge and establishing the grounds for

issuing the warrant. If the federal

magistrate or state judge is satisfied

that grounds for the application

exists or that there is probable cause

to believe that they exist, he shali

issue a warrant identifying the

property or person to be seized and

naming or describing the person or

D-13.

place to be searched. The finding of

probable cause may be based upon

hearsay evidence in whole or in

part. Before ruling on a request for

a warrant the federal magistrate or

state judge may require the affiant to

appear personally and may examine

under oath the affiant and any

witnesses he may produce, provided

that such proceeding shall be taken

down by a court reporter or recording

equipment and made part of the

affidavit. The warrant shall be

directed to a civil officer of the

United States authorized to enforce or

assist in enforcing any law thereof or

to a person so authorized to enforce

or assist in enforcing any law thereof

or to a person so authorized by the

President of the United States. It

shall command the officer to search,

within a specified period of time not

D-1 4,

to exceed 10 days, the person or place

named for the property or person

specified. The warrant shall be

served in the daytime, unless the

issuing authority, by appropriate

povision in the warrant, and for

reasonable cause shown, authorizes its

execution at times other than

daytime. It shall designate a federal

magistrate to whom it shall be

returned.

(2) Warrant upon oral testimony--

(A) General Rule- If the

circumstances make it reasonable to

dispense with a written affidavit, a

Federal Magistrate may issue a

warrant based upon sworn oral

testimony communicated by telephone

or other appropriate means.

(B) Application - The person who is

requesting the warrant shall prepare

a document to be known as a

D-15.

duplicate original warrant and shall

read such duplicate original

warrant, verbatim, to the Federal

magistrate. The Federal magistrate

shall enter, verbatim, what is so

read to such magistrate on a

document to be known as the original

warrant. The Federal magistrate may

direct that the warrant be modified.

magistrate is satisfied that the

circumstances are such as to make it

reasonable to dispense with a

written affidavit and that grounds

for the application exist or that

there is probable cause to believe

that they exist, the Federal

magistrate shall order the issuance

of a warrant by directing the person

requesting the warrant to sign the

Federal magistrate's name on the

duplicate original warrant. The

D-16.

Federal magistrate shall immediately

Sign the original warrant and enter

on the face of the original warrant

the exact time when the warrant was

ordered to be issued. The finding

of probable cause for a warrant upon

oral testimony may be based on the

same kind of evidence as is

sufficient for a warrant upon

affidavit.

(D) Recording and certification of

testimony. When a caller informs

the Federal magistrate that the

purpose of the call is to request a

warrant, the Federal magistrate

shall immediately place under oath

each person whose testimony forms a

basis of the application and each

person applying for that warrant.

If a voice recording device is

available, the Federal magistrate

shall record by means of such device

D-17.

all of the call after the caller

informs the Federal magistrate that

the purpose of the call is to

request a warrant. Otherwise a

stenographic or longhand verbatim

record shall be made. If a voice

recording device is used or a

stenographic record made, the

Federal magistrate shall have the

record transcribed, shall certify.

the accuracy of the transcription,

and shall file a copy of the

original record and the

transcription with the court. If a

longhand verbatim record is made,

the Federal magistrate shall file a

signed copy with the court.

(E) Contents. The contents of a

warrant upon oral testimony shall be

the same as the contents of a

warrant upon affidavit.

D-18,

(F) Additional rule for

execution. The person who executes

the warrant shall enter the exact

time of execution on the face of the

duplicate original warrant.

(G) Motion to suppress precluded.

Absent a finding of bad faith,

evidence obtained pursuant to a

warrant issued under this paragraph

is not subject to a motion to

suppress on the ground that the

circumstances were not such as to

make it reasonable to dispense with

a written affidavit.

(d) Execution and Return with

Inventory. The officer taking property

under the warrant shall give to the person

from whom or from whose premises the

property was taken a copy of the warrant

and a receipt for the property taken or

shall leave the copy and receipt at the

place from which the property was taken.

D-19.

The return shall be made promptly and

shall be accompanied by a written

inventory of any property taken. The

inventory shall be made in the presence of

the applicant for the warrant and the

person from whose possession of the

applicant for the warrant and the person

from whose possession or premises the

property was taken, if they are present,

or in the presence of at least one

credible person other than the applicant

for the warrant or the person from whose

possession or premises the property was

taken, and shall be verified by the

officer. The Federal magistrate shall

upon request deliver a copy of the

inventory to the person from whom or from

whose premises the property was taken and

to the applicant for the warrant.

(e) Motion for Return of Property. A

person aggrieved by an unlawful search and

seizure may move the district court for

D-20.

the district in which the property was

seized for the return of the property on

the ground that he is entitled to lawful

possession of the property which was

illegally seized. The judge shall receive

evidence on any issue of fact necessary to

the decision of the motion. If the motion

is granted the property shall be restored

and it shall not be admissible in evidence

at any hearing or trial. If a motion for

return of property is made or comes on for

hearing in the district of trial after an

indictment or information is filed, it

shall be treated also as a motion to

suppress under Rule 12.

(f) Motion to Suppress. A motion to

suppress evidence may be made in the court

of the district of trial as provided in

Rule 12.

(g) Return of Papers to Clerk. The

federal magistrate before whom the warrant

is returned shall attach to the warrant a

D-21.

copy of the return, inventory and all

other papers in connection therewith and

shall file them with the clerk of the

district court for the district in which

the property was seized.

(h) Seope and Definition. This rule

does not modify any act, inconsistent with

it, regulating search, seizure and the

issuance and execution of search warrants

in circumstances for which special

provision is made. The term "property" is

used in this rule to include documents,

books, papers and any other tangible

objects. The term "daytime" is used in

this rule to mean the hours from 6:00 a.m.

to 10:00 p.m. according to local time.

The phrase "federal law enforcement

officer" is used in this rule to mean any

government agent, other than an attorney

for the government as defined in Rule

54(c), who is engaged in the enforcement

of the criminal laws and is within any

D-22.

ss Sac lan, i ia aa ati

category of officers authorized by the

Attorney General to request the issuance

of a search warrant.

(As amended Apr. 25, 1976, eff. Aug 1,

1976; July 30, 1977, Pub.L. 95-78, Sect.

2(d), 91 Stat. 320; Apr. 30, 1979; eff.

Aug. 1, 1979).

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error,

defect, irregularity or variance which

does not affect substantial rights shall

be disregarded.

(bo) Plain Error. Plain errors or

defects affecting substantial rights may

be noticed although they were not brought

to the attention of the court.

4. FEDERAL RULES OF EVIDENCE

Rule 606. Competency of Jurors as Witness

(a) At the trial. A member of the

jury may not testify as a witness before

that jury in the trial of the case in

which he is sitting as a juror. If he is

D-23.

called so to testify, the opposing party

shall be afforded an opportunity to object

out of the presence of the jury.

(b) Inquiry into validity of verdict

or indictment. Upon an inquiry into the

validity of a verdict or indictment, a

juror may not testify as to any matter or

Statement occurring during the course of

the jury's deliberations or to the effect

of anything upon his or any other juror's

mind or emotions as influencing him to

assent to or dissent from the verdict or

indictment or concerning his mental

process in connection therewith, except

that a juror may testify on the question

whether extraneous prejudicial information

was improperly brought to the jury's

attention or whether any outside influence

was improperly brought to bear upon any

juror. Nor may his affidavit or evidence

of any statement by him concerning a

matter about which he would be precluded

D-24.

from testifying be received for these

purposes.

(As amended Pub.L. 94-149, Sect 1( 10),

Dec.12, 1975, 89 State 805).

Rule 803(1) Bae

Hearsay Exceptions; Availability of

Declarant Immaterial

The following are not excluded by the

hearsay rule, even though the declarant is

available as a witness:

(1) Present sense impression. A

statement describing or explaining an

event or condition made while the

declarant was perceiving the event or

condition, or immediately thereafter.

D-25.

APPENDIX E

APN:sg

UNITED STATES

DISTRICT COURT

DISTRICT OF

NEW JERSEY

UNITED STATES OF AMERICA Hon. Dickinson

R. Debevoise

Ve 3

Criminal No.

HERBERT G. CASE, JR. : 82-200

ET AL.

: ORDER

The defendants Herbert G. Case, Jr.,

by his attorneys, Walder, Sondak, Berkeley

& Brogan, Esqs, Mack Barnes, by his

attorneys, Minichino, Mautone and

Colasanti, Esqs., and Lief Sigmond, by his

attorneys, Stein, Bliablias, McGuire &

Pantages, Esqs. having brought this matter

before the Court by way of pretrial

motions for a bill of particulars and for

dismissal, suppression of evidence and

severance, the defendant Scientific

Chemical Processing, Inc. having neither

entered an appearance nor filed any

motions, the Court having considered the

E-1.

briefs and supporting documents and the

argument of counsel as well as documents

produced during oral argument, and for

good cause;

IT IS on this 29th day of November

1982,

ORDERED that for the reasons stated

from the bench on Monday, November 1, 1982

and set forth in the Court's opinion of

November 16, 1982:

1. Defendants' joint motion for

dismissal of the indictment be and hereby

is denied;

2. Defendants' joint motion for the

Suppression of evidence be and hereby is

denied;

3. Defendants' joint motion to

dismiss Counts 4 through 7 and 9 through

14 be and hereby is denied;

4, Defendants' joint motion to force

the government to elect among Counts 2

through 21 be and hereby is denied;

E-2.

5. Defendants’ joint motion to sever

Counts 2 through 21 of the indictment be

and hereby is denied;

6. Defendant Case's motion for a

severance be and hereby is denied;

7. The United States delete the

surplus language "the citizens of the

State of New Jersey" from the indictment;

and

8. Defendants' joint motion for an

order requiring the government to furnish

a bill of barticulars be and hereby is

denied except as to the following: The

government shall furnish a bill of

particulars which further defines the

allegations of unlawful dumping in the

indictment by. specifying the statutes and

regulations which it claims defendants

violated.

9. Defendant Case's motion an order

requiring the government to furnish a bill

of particulars be and hereby is denied.

E-3.

Dickinson R. Debevoise,

Judge

United States District

Court

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Criminal No.82 200

UNITED STATES OF

AMERICA Transcipt of

Proceedings

Vv.

SENTENCE

HERBERT G. CASE, JR.,

MACK BARNES, LEIF R. Newark, NJ

SIGMOND and SCIENTIFIC

CHEMICAL PROCESSING

COMPANY, INC.,

May 23; 1983

Defendants.

BEFORE:

HON. DICKINSON R. DEBEVOISE, U.S.D.Jd.

Appearances:

W. HUNT DUMONT, UNITED STATES ATTORNEY

BY: A PATRICK NUCCIARONE, Assistant U.S.

Attorney

CHARLES S. CRANDALL, Assistant U.S.

Attorney

For the Government

JUSTIN P. WALDER, ESQ.

For Defendant Case

ANTHONY R. MAUTONE, ESQ.

For Defendant Barnes

DINO D. BLIABLIAS, ESQ.

For Defendant Sigmond

F-l.

* # #

in this industry in this state that

they are facing the

possibility of incarceration, and the

days when having to deal

with the DEP or the EPA for not abiding

by the regulations of

those agencies were merely a cost of

doing business are over

and they are over for all times.

That's all I have to say.

THE COURT: Thank you, Mr.

Nucciarone.

It now becomes necessary to impose

sentence in

this case. Before I turn to the

individual defendants, I

think it can be stated we are

confronted with the tragic and

unfortunate situation of having three

individual defendants,

F-2,

who in their personal lives, family

lives, communty lives,

have led an exemplary existence, beyond

criticism, and, in

fact, much to be praised, much to merit

emulation.

On the other hand, the jury has

found that these

three individuals and the corporation

with which they were

affiliated committed extremely serious

offenses against the

environment.

These are offenses which were

perpetrated over a period,

lengthy period of time. They are

offenses which have

unknown effects in the future, causing

community harm which is

beyond calculation.

F-3.

23 The sentencing in this case,

therefore, involves

24 weighing the undoubted virtues of the

defendants as

25 individuals in other spheres of

activities and the necessity

F-4,

that the kinds of conduct that led to

this trial and to the

necessity to engage in a sentencing

hearing not be encouraged,

and that the community have an

unmistakable message that this

kind of behavior will have serious

consequences.

Reference has been made to others

involved in

this offense, namely, Mr. Perno, Mr.

Borden, Mr. Heflich.

These sentences really are not

comparable. The sentences

there, in the case of Mr. Perno and Mr.

Borden, took into

account the fact that they recognized

the offenses and very

early began to do what they could to

undo it.

F-5.

That has not been the case here.

We have gone

through trial, as the defendants had

every right to do, but

nevertheless, I cannot weigh and

balance the cooperation which

I could weigh in the case of the others

who were mentioned.

That is an important consideration to

me always. I can only

weigh here what the consequences will

be with respect to the

community perception of these offenses

and the consequences to

the individuals.

What I have done in each case --

and I've

evaluated each separately -- is to give

the minimum prison

sentence -- and there will be prison

sentences in each case.--

F-6.

to give the minimum prison sentence

which I could give

consistent with the public notice and

interpretation of the

sentences. To follow the course of

alternative sentences,

cleaning up the premises or engaging in

an environmental

F-7.

1 project would not have effect.

3 rehabilitation in the sense of

impressing on them the

4 seriousness of the offense, the

community does need to have

5 unmistakable message, and that it is

what the sentences are

6 intended to do.

T No defendant need stand up as I

deal with him.

8 I'll just run through these one at a

tine.

. I refer first to Mr. Leif R.

Sigmond. I received

10 numerous moving letters from his

family, friends, business

11 associates, from teachers, others who

have known him attesting

F-8.

to his character, his qualities, his

strong family ties, good

friendship. However, in the case of

Mr. Sigmond I must accept

the fact that the evidence showed that

he was the primary

person in charge of running this

corporation. It was his

corporation. Though he may have been

absent from the business

from time to time, or even fairly

extended periods of time, he

nevertheless was totally in command and

in control in the

method in which it was conducted and in

the activities which

were the occasion for the indictment

which led to the

conviction here.

I should add with respect to the

jury verdict, it

F-9.

23 was the verdict. I have found on

previous occasions

24 there was ample evidence to support

that verdict.

25 Taking into account the various

factors, the

F-10.

sentence in the case of Mr. Sigmond to

be: It is adjudged the

defendant is hereby committed to the

custody of the Attorney

General, or his authorized

representative for imprisonment for

a term of two years and six months and

fined the sum of

$10,000 on Count 1 of the indictment.

Imposition of sentence

on Counts 2 through 4, 7 through 12, 15

through 17 of the

indictment is hereby suspended and the

sotensads is placed on

probation for a period of five years to

commence upon the full

and complete discharge of the custody

sentence imposed on

Count 1.

Turning to Mr. Case, again, I have

this letter.

F-11.

12 It is a very thoughtful, extended

presentation of his

13 position, his views, his background. I

have had numerous

14 letters, eloquent letters from members

of his family, letters

15 from friends, other associates and

teachers and I took these

16 letters, as I did all the letters, very

much into account.

17 I hope in all cases, Mr. Case and

the others,

18 that after the term of incarceration

they will be able to

19 return and pick up these very positive

areas of their lives

20 with this behind them.

21 These letters attest to the fine

character and

22 qualities, strong family persons,

traditions of community

F-12.

service, again, which I have to weigh

against the terrible

effects of what was done in this case.

In the case of Mr. Case, I find

that he was not

F-13.

1 as responsible in the corporate actions

as Mr. Sigmond. he

2 had a lesser role, albeit the major

role, and one which had

3 considerable elements of

responsibility, even though he was

4 more involved with sales than in the

day-to-day operation of

5 disposing of the materials which were

brough to the company's

6 two premises. He certainly knew what

was happening and was

7 operating with that knowledge.

8 Therefore, the sentence will be,

with respect to

9 Mr. Case: It is adjudged the defendant

is hereby committed to

10 the custody of the Attorney General or

his authorized

11 representative for imprisonment for a

term of 18 months, and

F-14,

- 19

fined the sum of $2,000 on Count 1 of

the indictment.

Imposition of sentence on Counts 2

through 4, 7

through 12, 15 through 17, 20 and 21 of

the indictment is

hereby suspended and the defendant is

placed on probation for

a period of five years, to commence on

the full and complete

discharge from the custody sentence

imposed on Count 1.

Turning to Mr. Mack Barnes. Mr.

Barnes I find is

in a somewhat different position than

the other defendants,

both as to background and as to role in

the company here.

He is a black man born in the south

before the

F-15.

time when civil rights activities had

changed the face of the

south. He was educated. He had

honorable service in the

United States Army. Like the other

defendants, he is

honorably supporting a family.

F-16.

I've had setéers with respect to

him, not as

many, but I think sometimes the quality

of a letter and not

the number is significant, and he, like

the others, is capable

of and has engaged in productive work

other than the work

involved in this particular case.

I don't find that Mr. Barnes' role

in the company

was as controlling as that of Mr. Case

and Mr. Sigmond. He

was perfectly aware of what was going

on, and, in fact, was

instrumental in conducting it, but

nevertheless it was of a

much lower level responsibility. His

attorney characterized

hi# as simply a paid worker. I think

he was more than that.

F-17.

He was running the trucking operation

to a very major extent,

but nevertheless he was not at the

executive level of the

others and I think this must be taken

into account.

He had fewer of the advantages in

life than the

other two defendants. I think this

must be taken into account

in the sentencing process.

The sentence in the case of Mr.

Barnes will be:

It is adjudged the defendant is hereby

committed to the

custody of the Attorney General or his

authorized

representative for imprisonment for a

term of six months, and

fined the sum of $500 on Count 1 of the

indictment.

F-18.

23 Imposition of sentence on Counts 2

through 4, 8

24 through 12, 15 through 17, 20 and 21 of

the indictment is

25 hereby suspended. The defendant is

placed on probation for a

F-19.

1 period of five years, to commence upon

full and complete

2 discharge from the custody sentence

imposed on Count 1.

3 As to the corporation, I think

there is no need

4 for any discussion. The corporation

has not appeared at any

5 time during these proceedings. It can

only be sentenced on a

6 monetary basis which may be somewhat

illusory, since its

7 existence is in doubt. But its

sentence will be: It is

8 adjudged that the defendant corporation

pay a fine to the

9 United States in the sum or $10,000 on

Count 1 of the

10 indictment. The defendant corporation

pay a fine to the

F-20.

14.

United States in the sum of $500 on

each of Counts 2, 3, 4, 7,

8, 9, 10, 11 and 12, and that the

defendant corporation pay a

fine to the United States in the sum of

$500 on each of Counts

15, 16, 17, 19, 20 and 21. Therefore,

it is the intent of the

Court that the sentence be a total fine

in the amount of

$17,500.

I would advise each of the

individual defendants

that he has a right to appeal. The

appeal must be filed

within ten days of the entry of this

judgment. If any

defendant at this point is unable to

afford the services of an

attorney, an attorney will be appointed

for him in the Court

F-21.

of Appeals, and the Clerk of Court

will, upon request, file a

notice of appeal on behalf of that

defendant.

In conclusion. I would simply

State that I hope

that both aspects of these sentence

will be realized, that

F=-22.

1 the community will recognize the

seriousness of this kind of

2 activity, and ultimately, that these

defendants will be able

3 to undergo punishment which has been

meted out without

4 destroying themselves, their

families. They are strong

5 individuals, all three of them. Their

families are strong

6 families. I think more than is the

case in most sentences

7 which I've had to impose, I think the

personal strengths and

8 the family strength and the friendship

strength is there to

9 accept this and move on to a life with

this behind them and a

10 new and constructive era for each.

11 MR. WALDER: Judge, I think

inadvertently your

F-23.

imposition of Mr. Case's sentence, you

skipped Count 19, which

I would assume you were going to

suspend as you did the

predecessor counts other than Count i.

THE COURT: Yes, 19 should have

been mention.

That is included. Did I miss any

others?

MR. WALDER: That's the only one

that I notice.

THE COURT: Any other applciations

MR. BLIABLIAS: Yes, your Honor’.

would like to

make application for bail pending

appeal.

My understanding that there is

presently bail in

the form of a personal recognizance

which can be, I'm advised,

F-~24.

52°

continued for purposes of appeal.

Therefore, I would like to

apply to have present bail on behalf of

Mr. Sigmond be

continued pending his opportunity to

perfect his appeal.

F-25.

MR. WALDER: I would like to make

the same

application for Mr. Case.

MR. MAUTONE: I would join in that

application.

I understand that you have ten days

under the federal system

to file the notice of appeal.

THE COURT: Yes. Any objection?

MR. NUCCIARONE: There is no

objection, your

Honor.

THE COURT: Bail will be continued

pending

appeal. I have not made any

arrangements for personal

surrender at this time. If an appeal

is not taken, let me

know and arrangements will be made.

Thank you very much.

F-26.

MR. NUCCIARONE: Your Honor, just

for

clarification, with respet to each of

the substantive counts

the five-year probationary term was

imposed as to each and

every one, but concurrent with each and

every other one?

THE COURT: Yes, one five-year

probation tern.

MR. NUCCIARONE: Thank you.

THE COURT: Yes, all right. Thank

you.

F-27.

APPENDIX G

JAMES ZAZZALI

Attorney General of New Jersey

By: John S. Furlong

Deputy Attorney General

Division of Criminal Justice

13 Roszel Road

Princeton, New Jersey 08540

(609) 452-9500, Extension 322

SUPERIOR COURT

OF NEW JERSEY

COUNTY OF ESSEX

LAW DIVISION -

CRIMINAL

INDICTMENT NO.

SGJ 51-78-2

STATE OF NEW JERSEY, )

Plaintiff, )

Vv. ) ORDER

SCIENTIF1C CHEMICAL )

PROCLSSING, INC., )

Defendant. )

This matter having been opened to the

court on May 2, 1980, Ralph DeRose, Esq.

and Donald Rinaldi, Esq. appearing on

behalf of Defendant Scientific Chemical

Processing, Inc., Steven Greenstein, Esq.,

appearing on behalf of Defendant Case,

Dino Bliabliaes, Esq., appearing on behalf

of Defendant Sigmond, Michael Pedicini,

G-1.

Esq., appearing on behalf of Defendant

Barnes, Michael Rodburg, Esq. of counsel

to defendants, and Deputy Attorneys

General Gregory Sakowicz, Charles Buckley,

and James O'Halloran appearing on behalf

of the State of New Jersey, the Court

having heard the arguments of counsel and

having previously denied this motion to

suppress evidence on May 2, 1980, and the

Court now acting sua sponte, having

reconsidered the arguments of counsel;

It Is ORDERED on this 3rd day of

April, 1981, that the order of the Court

entered May 2, 1980 be and hereby is

vacated, and that the motion to suppress

evidence be and hereby is granted.

WILLIAM H. WALLS, J.S.C.

G-2.

APPENDIX H

UNITED STATES DISTRICT COURT

FOR THE DISTRICT?

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

Herbert G. Case, et al

To Chief Counsel/Staff Director,

Custodian of Records or any other

person authorized to identify

documents to be produced.

United States House of

Representatives, 2125 Rayburn, House

Office Building, Washington, D.C.

20215

You are hereby commanded to appear in the

United States District Court for the

District of New Jersey at the U.S.

Courthouse & Post Office Building in the

city of Newark, NJ on the 17th day of

January, 1983 at 10:00 o'clock a.m. and

bring with you (See attached)

H-l.

This subpoena is issued upon application

of the defendant Herbert G. Case.

Jan. 11, 1983

By: l/s

Deputy Clerk

l/s

Barry A. Kozyra

Attorney for Defendant

17 Academy Street

Newark, NJ

RETURN

Received this subpoena at 1300, 19th St.

N.W. on Jan. 17, 1983 and on Jan. 17, 1983

at 3:48 p.m. served it on the within named

Sharon E. Davis by delivering a copy to

her and tendering to her the fee for one

day's attendance and the mileage allowed

H-2.

APPENDIX I

HAZARDOUS WASTE MATTERS:

A CASE STUDY OF

LANDFILL SITES

HEARING

BEFORE THE

SUBCOMMITTEE ON

OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON ENERGY AND COMMERCE

HOUSE OF REPRESENTATIVES

NINETY-SEVENTH CONGRESS

FIRST SESSION

JUNE 9, 1981

SERIAL NO. 97-43

PRINTED FOR THE USE OF THE

COMMITTEE ON ENERGY AND COMMERCE

I-1.

TESTIMONY OF GREGORY SAKOWICZ

MR. SAKOWICZ. I have been asked to

appear today to testify before this

subcommittee regarding the regulatory

enforcement role of the Division of

Criminal Justice with respect to the Lone

Pine landfill in New Jersey. In that

regard, I wish to advise that the Division

of Criminal Justice does not have any

regulatory function in respect to the Lone

Pine landfill, or any other landfill.

However, I am prepared to discuss the

Division of Criminal Justice‘s enforcement

role with respect to the Lone Pine

landfill.

On July 13, 1978, following a covert

investigation into the the disposal

practices of a Scientific Chemical

Processing, Inc., a waste treatment

facility, criminal search warrants were

executed upon the premises.

I-2.

During the course of the

investigation of this waste treatment

facility, representatives from the

Division of Criminal Justice iearned that

a certain individual had removed

approximately 50,000 drums from the SCP

site at the rate of $5 per drum.

The individual who made this

allegation did not know the location to

which the drums of chemical waste had been

taken. It was his opinion that the drums

were being taken to a landfill in the

southern part of New Jersey and that the

drums were in fact being buried. It was

also revealed at this time that the driver

of a trucking company would, on occasion,

place a telephone call from the waste

treatment facility to the landfill which

was to accept this material. It was

further revealed that the telephone calls

would be made for the purpose of either

(1) determining whether or not any

I-3.

inspectors were at the landfill at that

time and/or (2) requesting that the

landfill stay open until the truckload of

drums would arrive.

With this information now available,

Ssubpenas were issued for the telephone

toll records of the subject company.

Under receipt of these records, it was

learned that several calls had been placed

to the Lone Pine Landfill in Freehold,

N.J. Following this, state investigators

from the division of criminal justice

conducted a reconnaissance of the Lone

Pine Landfill, on November 3, 1978.

Additionally, another State

investigator conducted an aerial

reconnaissance on November 8, 1978. These

reconnaissances were made for the purpose

of establishing ground level surveillance

points. Both the observations of the land

based investigators and that investigator

conducting the aerial surveillance

I+.

indicated that a potential existed that

the Lone Pine Landfill had been, or was

being used for the disposal of some type

of liquid material.

Following several days of ground

level surveillance at the site, it was

determined that a specific carter had been

observed transporting tankers to the Lone

Pine Landfill. Mobile surveillances of

these vehicles established that the

material being transported originated from

two locations. A manufacturing plant in

the local area of the landfill and from a

municipal sewage treatment plant in New

Jersey.

With this information now available,

I contacted the New Jersey Department of

Environmental Protection in order that

more specific information could be secured

concerning the Lone Pine Landfill. On

November 21, 1978, I was advised that the

Lone Pine Landfill had been the site of a

I-5.

fire during May or June 1978 and that the

fire did include, in part, materials of a

chemical nature and that the department of

environmental protection had imposed a

fine with regard to this fire.

Following this telephone

conversation, representatives from the

division of criminal justice spoke to the

department of environmental protection to

determine what materials could legally be

accepted by the Lone Pine Landfill and to

determine what materials were being

transported from the two aforementioned

generators: the sewage treatment facility

* and the local manufacturing plant. We

were told that the Lone Pine Landfill

could legally accept these materials.

On November 29, 1978, I submitted a

memorandum to my supervisors requesting

that some arrangements be made for the

review of the department of environmental

protection files concerning the Lone Pine

1-6.

Landfill. On December 19, 1978, I

contacted Director Tylutki of the New

Jersey Department of environmental

protection's Solid Waste Administration

regarding arrangements to review the

department of environmental protection

files on Lone Pine.

Director Tylutki told me that the

landfill experienced a "significant

chemical fire" in June and that, at that

time, the landfill was illegally accepting

chemical waste. According to Director

Tylutki, the owner of the landfill placed

all the blame and responsibility on the

landfill's manager who allegedly fled to

Florida. I was told by Director Tylutki

that there are pending administrative

orders against Lone Pine for purposes of

cleaning up its area and that the solid

waste administration was considering the

closure of this landfill.

Later that date, a state investigator

met with the department of environmental

protection representatives and was allowed

access to the department of environmental

protection file and received photocopies

of pertinent materials.

On January 8, 1979, after a review of

the pertinent materials by the

investigator, I discussed these materials

with him in order to plan a course of

action. Upon review and discussion it was

determined that in addition to

establishing the fact that a fire had

occurred on the landfill on June 23, 1978,

there was information in the file

providing a summary of what had transpired

at that landfill from June 21, 1978 until

November 2, 1978. The files contained a

handwritten memo from a department of

environmental protection inspector, dated

June 23, 1978. This handwritten report

indicated that approximately 47 drums of

1-8.

material had been located, that the

vegetation in certain areas was dead and

that observations were made concerning a

"recently covered chemical pool".

On June 23, 1978, the Federal

Environmental Protection Agency responded

to the side of the fire and took water

samples for analysis. On June 25, a

department of environmental protection

inspector responded to the Lone Pine

landfill and had a conversation with a

bulldozer operator who claimed to have

knowledge concerning drums being brought

into the Lone Pine landfill. This

environmental protection inspector's

memorandum indicates that the bulldozer

operator identified the first name of an

individual and a specific geographical

area from which this person came and named

two other carters as being involved in the

transporting of chemicals to Lone Pine.

I-9 .

The documentation also indicated that

the department of environmental protection

inspection personnel conducted nocturnal

Surveillances at the Lone Pine site on

June 27 and 28, 1978, and July 1, 1978.

These surveillances did not reveal any

additional evidence of illegal dumping

activities.

. After a review of the department of

environmental protection files,

representatives of the division of

criminal justice met with inspectors from

the department of environmental protection

solid waste administration to discuss the

Satorention contained in those reports.

It was of particular interest to all

concerned to identify the carters who were

mentioned by the bulldozer operator.

Based upon these discussion with the

department of environmental protection, a

suspect individual was identified.

Additionally, it was believed that two of

I-10.

the three carters were identified.

Following this, state investigators

established surveillances of two entities

at two separate locations. It was

determined that surveillances would be

established because even though chemical

waste was no longer going to Lone Pine

landfill, it was possible that these

entities might be transporting chemical

waste to other locations which, if they

were taking this chemical waste knowingly

and ielanelie. would become targets of an

investigation. It was also trought that

if we were able to apprehend these carters

actually dumping chemical waste at another

location, then it would be possible to

exert pressure in order to determine what

had actually occurred with these carters

at the Lone Pine Landfill.

It should be noted that a review of

the records of the waste treatment

facility mentioned at the outset of my

I-11.

statement indicated that one of the

suspect carters had transported chemical

waste from the waste treatment facility

only until May 1, 1978 which was the date

that New Jersey instituted its special

waste manifest system.

Surveillances were established on the

two carters which had been identified.

These surveillances occurred over the

course of several days. However, little

information of evidential value was

learned.

With regard to the efforts expended

to locate the aforementioned bulldozer

operator employed during June 1978 at Lone

Pine landfill, it is my recollection the

inspector from the department of

environmental protection, who had the

initial conversation with the operator in

June 1978 did have followup conversations

with the operator in June 1978. At a date

uncertain during the course of the

I-12.

investigation, the inspector advised me

that he had in fact spoken to and

identified the bulldozer operator. It was

represented to me by this inspector that

the bulldozer operator did not have

specific information regarding chemicals

being brought to Lone Pine.

Because there was no indication in

early 1979.that the landfill was currently

accepting chemical waste, efforts of the

investigators assigned to toxic waste

matters were directed to other

investigations. However, the Lone Pine

file was kept open for further development

as time allowed.

Specifically efforts were directed

toward surveéillances of the Iron Oxide

Corp. in Elizabeth, N.J. Following 4

weeks of intensive surveillance

activities, criminal search warrants were

executed at Iron Oxide on April 10,

1979. Additionally, arrests by

I-13.

investigators of the toxic waste unit were

made at Price's landfill in Atlantic

County, N.J., when employees on the

Lightman Drum Co. illegally offloaded

drums of chemical waste on November 15,

1978. I should add it was also into a

landfill which is experiencing pollution

problems. These investigations resulted

in criminal indictments against 4

corporations and 10 individuals. The

corporations were Chemline, Iron Oxide

Corp., Perk Chemical and Lightman Drum

Co., Ine. It should be noted that until

July 1, 1979, the total complement of the

toxic waste investigation unit of the

division of criminal justice was comprised

of one attorney, one auditor and two field

investigators.

On August 14, 1979, Lester Jargowski,

Monmouth County health officer, contacted

the division of criminal justice to

apprise it of the fact that the

I-14.

unidentified entity had disposed chemical

waste on State property in the Turkey

Swamp game preserve near Freehold, N.d.

Turkey Swamp is located immediately across

the road from the Lone Pine landfill. The

access roads to both Turkey Swamp and Lone

Pine landfill are identical. Based upon

this new allegation of dumping at both

Lone Pine and Turkey Swamp, nocturnal

surveillances were established at Turkey

Swamp during the month of August 1979.

After several surveillances, Mr.

Jargowski advised us that the possible

illegal chemical disposal had drawn quite

a bit of attention in the local areas in

terms of both media and governmental

agencies. It is possible that due to this

notoriety, our surveillance was not

productive. The criminal investigative

file of Turkey Swamp was closed by the

division of criminal justice. It was

reopened when Lester Jargowski advised us

I-15.

that it was possible to install remote

sensing devices at the Turkey Swamp area.

MR. GEORGE: Mr. Sakowicz, if you

would hold up for a few minutes, we are

going to have to adjourn for a vote on the

floor. It won't take more than 10

Minutes, and we will reconvene at that

time.

(Brief recess).

MR. GEORGE: The subcommittee will

come to order.

I would like to invite you to

proceed, Mr. Sakowicz.

MR. SAKOWICZ: Immediately prior to

the break I had just mentioned that after

conducting several days of nocturnal

surveillance at Turkey Swamp, we closed

our investigation. I should add that the

information provided by Mr. Jargowski was

that this site was being used on a

sporadic basis by dumpers. This was not a

case where if you waited every night you

would see someone come in.

I-16.

The remote sensing equipment was set

up in Turkey Swamp during April 1980. The

investigative unit within the New York

Inter-Agency Hazardous Waste Task Force

coordinated with Mr. Jargowski with regard

to this sensing equipment. It should be

noted that investigative personnel did

respond to this site when the monitoring

equipment was activated. Both

representatives from the inter-agency task

force and Mr. Jargowski responded to the

Turkey Swamp on May 10, 1980.

Two days after this incident on May

12, 1980, Mr. Jargowski contacted the

division of criminal justice to advise us

that he had subsequently learned the

address of this ex-bulldozer operator and

had in fact spoken to him. Mr. Jargowksi

advised this State investigator that the

individual did not have any knowledge of

drums being buried within the parimeters

of the Lone Pine landfill. This

individual was employed to bring clean

fill into the active areas of the Lone

Pine landfill so that it could be used as

ground cover.

Allegedly, while scraping the clean

fill from land contiguous to the landfill,

this individual uncovered some drums. At

that time, the State investigator

discussed with Mr. Jargowski the

possibility of this bulldizer operator

being the same person who had been on the

Site the day of the fire. Mr. Jarkowski

advised him that these were in fact two

distinct individuals.

When Mr. Jarkowski provided the

investigator with the address of this

individual, the investigator responded to

that location that date. In total, the

investigator made three attempts to speak

with this individual. Additionally, this

State investigator spoke with neighbors in

the area who professed to have no

I-18.

knowledge of the individual. Based upon

the fact that Mr. Jargowski had spoken

with this individual and that he

apparently had no relevant information, no

further efforts were made to locate this

person.

Returning now to the Turkey Swamp

matter, contact was maintained with Mr.

Jargowski until July 17, 1980, when it was

reported to the New Jersey Inter-Agency

Task Force by Mr. Jargowski that he had

inspected a Turkey Swamp area. Since

these inspections did not reveal any

evidence of chemical waste dumping into or

about the pond area, nor waste tanker

track impressions, the investigation into

Turkey Swamp was ceased and the sensing

devices were in fact removed.

For purposes of setting forth the

workload of those few investigators

assigned to toxic waste matters, I would

like to set forth some of the actions and

I-19.

investigations undertaken by those

investigators for the time period

involved.

Criminal search warrants were

executed at the SCP, Inc. facility in

Newark, NJ on July 13, July 27, and

September 11, 1978.

Arrests made and search executed at

Price's landfill on November 15, 1978.

Return of indictment against Scientific

Chemical Processing on February 13, 1979.

Execution of criminal search warrants

at Iron Oxide Corp. in Elizabeth on April

10, 1979.

The New Jersey Inter-Agency Strike

Force officially began operations on July

- 1979. It wasn't until July 1980,

however, until all personnel were hired

for that activity.

MR. GORE: Search warrants executed

on vehicle containing drums of chemical

waste on July 23, 1979. Excuse me. You

I-20 a

said it wasn't until July 1980. Your text

reads January.

MR. SAKOWICZ. We started hiring

investigators and personnel in July

1979. The actual date the task force took

effect was July 1, 1979.

MR. GORE: But the next sentence says

"Tt wasn't until January 1980 that all

personnel were hired."

MR. SAKOWICZ: All personnel.

MR. GORE. All right.

MR. SAKOWICZ. We did not hire all of

the investigators and support personel

until January 1980.

MR. GORE: Go ahead.

MR. SAKOWICZ. That was the official

date when the State police detectives were

assigned to the task force.

Search warrants were executed at

Duane Marine Corp. on August 9, 1979.

Search warrants executed at Sepan

Chemical Co., Municipal Sanitary Landfill

I-21.

Authority, and Modern Industrial Waste

Corporation on September 12, 1979.

Assistance provided to Pennsylvania

Attorney General's Office with regard to

their execution of search warrants at

Hudson Oil on September 14, 1979.

Search warrants executed on a Jersey

Sanitation roll-off in East Brunswick on

October 19, 1979.

Search warrants executed at Jersey

Sanitation and Samsom Tank Cleaning on

October 11, 1979.

The foregoing is a summary of some

major activities undertaken by the

investigative personnel assigned to

hazardous waste investigations. It should

be noted that during this time, a

multitude of other matters required the

time and energy of investigative personnel

assigned to toxic waste unit.

The investigative file concerning

Lone Pine landfill was officially closed

I-22.

within the Division of Criminal Justice on

March 6, 1980. This decision to

officially close the Lone Pine file was

made based upon existing priorities and

the likelihood, or lack thereof, of

retroactively building a criminal case

against the Lone Pine landfill.

Additionally, the Lone Pine landfill

was the subject of civil litigation at

this time. Therefore, if additional facts

came to light during the discovery phase

of this litigation, it could then be

transmitted back to the task force for its

consideration.

The primary decision to close the

criminal file on this matter was based

upon available manpower resources. During

the 2 months immediately proceeding this

closure, the investigative personnel

assigned to this unit were involved in the

following action: indictment against

Joseph Attanasi for attempted bribery of a

1-23.

police officer; indictment returned

against Jerome Lightman Attanasi Drum and

William Holbrook; emergency response to

discharge a tanker in North Jersey;

execution of search warrants at Madison

Industry on Februay 6, 1980; indictment of

Iron Oxide Corp., Chemline and Perk

Chemical Co. on February 19, 1980.

During the period of closeout,

evidence was being presented with regard

to the activities of Samsom Tank Cleaning,

Jersey Sanitation and Chelsea Terminals.

This indictment was returned on April 20,

1980. As the committee can plainly see,

the investigative unit of the New Jersey

Inter-Agency Task Force is involved ina

myraid of investigation which often

requires that actions be taken during the

Same period of time. Consequently

reasoned decisions must be made so that

the limited resources of the investigative

unit could be directed to those

investigations which in the opinion of the

task force members are deemed to be most

appropriate.

On April 19, 1981, the Action

Committee of the New Jersey Inter-Agency

Task Force convened its scheduled

meeting. At that time, it was resolved

that for purposes of any continued

criminal investigation of the Lone Pine

lanfill, the office of the U.S. Attorney

would assign an Assistant U.S. Attorney to

coordinate the investigation and that the

Division of Criminal Justice would assign

a toxic investigator to work with the

Office of the U.S. Attorney to develop a

case. It was also resolved at that time

that the appropriate action would be taken

by either a Federal grand jury and the

State grand jury if the information

developed and warranted such action.

I am aware, of course, being sent by

this committee through the U.S. Attorney's

I-25.

Office requesting an investigation into

this matter. We have acted upon that.

This completes my statement on the

role of the Division of Criminal Justice

with respect to Lone Pine and with respect

to the investigative unit of the New

Jersey Task Force for the appropriate

period of time.

MR. GORE. Thank you very much.

We would now like to hear from Mr.

Richard Dewling. If you could summarize

your statement by focusing on the most

relevant portions to the inquiry, we would

appreciate it.

I-26.

Appendix J

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA : CR.82-200

v. : ORAL OPINION

HERBERT G. CASE, JR., :

et al.,

Defendant.

November 1, 1982

Trenton, New Jersey

BEFORE:

The Honorable DICKINSON R. DEBEVOISE,

U.S.D.d.

APPEARANCES:

W. HUNT DUMONT, ESQ.,

United States Attorney

For the Government

By: CHARLES S. CRANDALL, ESQ., AUSA

-and-

A. PATRICK NUCCIARONE, ESQ., AUSA

JUSTIN WALDER, ESQ.

-and-

BARRY KOZYRA, ESQ.,

For Defendant Case

ANTHONY R. MAUTONE, ESQ.,

For Defendant Barnes

DINO D. BLIABLIAS, ESQ.,

For Defendant Sigmond

THE COURT: Defendants Herbert G.

Case, Jr., Mack Barnes,

Leif R. Sigmond, and Scientific

Chemical Processing Company,

Inc., which I shall refer to as SCP,

have been indicted for

conspiracy to commit mail fraud (Count

1) and for 20 substan-

tive violations of the Federal mail

fraud statutes (Counts 2

through 21).

SCP was in the business of

transporting, treating,

recovering and disposing of industrial

wastes. During the

10 period between June 1977 and October

1978, the period.

11 covered by the indictment, SCP

maintain facilities at 411

J=-2 e

Wilson Avenue in Newark and at 216

Paterson Plank Road in

Carlstadt, New Jersey. The Government

alleges that beginning

on May 1, 1978 both SCP facilities

received temporary operat-

ing authorization from the New Jersey

Department of Environ-

mental Protection, which I shall refer

to as the DEP. The

Government further alleges that SCP's

Newark facility, which

was located within the Passaic Valley

Sewerage Commission

district, was authorized only to

dispose of certain wastes

into the sewer system and was not

authorized to dump un-

treated waste into that systen.

The indictment charges that

defendants engaged in a

J-3.

23 conspiracy which involved a continuing

course of fraudlent

;

24 conduct on their part, including: (1)

false representations

25 to generators of hazardous industrial

chemical wastes that

these wastes would be lawfully

disposed of; (2) contracts

and agreements designed to induce

generators to do business

with defendants; (3) false statements

to Passaic Valley and

DEP designed to conceal defendants'

actual conduct; (4) the

payment of bribes to effect part of

the scheme, and (5) il-

legal dispositions of industrial

chemical wastes.

Defendants have filed a number of

motions. This opin-

ion will deal with all the motions

except those seeking a

bill of particulars and further

discovery, which will be

diposed of in another opinion.

The first motion was made on

behalf of all individual

defendants and is to dismiss the

indictment for improperly

indicting defendants under 18 U.S.C.

§§1341 and 1342.

Defendants' argument is when

Congress passes specific

legislation dealing with a new subject

and makes specified

conduct criminal, resort may no longer

be had to the mail

fraud statute for prosecution. U.S.

v. Maze, 414 U.S. 395

(1974).

Here, according to defendants, the

essence of the of-

fense charged is illegal dumping of

chemical waste into

the lower Hudson Bay and at Lone Pine

Landfill. This

conduct is covered specifically by the

Federal Water Pollu-

NINN rt TMI ROR ERE AIEIDAS Hae 1 MARAE MUD Ro BF

23 tion Control Act, 33 U.S.C., §1251, et

seq., which has

24 criminal and civil sanctions.

25 It is unnecessary to rule upon the

validity or scope of

J-7 ©

the principle of law upon which

defendants rely, namely that

the mail fraud statute cannot be

utilized where the under-

lying offense is the subject of

specific legislation. See

e.g. U.S. v. Henderson, 386 F. Supp.

1048 (S.D.N.Y. 1974),

U.S. v. Computer Science Corp., 511 F.

Supp. 1125 (E.D. Va.

1981).

Whatever its validity and scope,

that rule is simply

inapplicable here. The indictment

does not charge an offense

defined by the Federal Water Pollution

Control Act. It

charges an elaborate ongoing fraud.

To be sure, one of the

results of the fraudulent scheme

alleged in the indictment

J-8.

is the illegal pollution of waters

covered by the Federal

Water Pollution control Act. So the

essence of the charge

is the fraudulent scheme, not water

pollution.

In Henderson, the indictment

contained two counts

charging an attempt to evade and

defeat payment of income

taxes, three counts charging use of

the mails in furtherance

of a scheme to defraud, and two counts

charging subscribing

to false and fraudulent statements

which defendant did not

believe to be true. As the Court

pointed out, the scheme

to defraud under the mail fraud counts

involve the same

fraudulent conduct as was involved in

the income tax fraud

counts. A totally different situation

is involved in the

present case. In the first place, the

indictment does not

contain both mail fraud and pollution

counts. More

)

J-10.

important, unlike Henderson, the

offenses charged in the

indictment under the mail fraud

statute are totally dissimi-

lar to the offenses defined in the

Water Pollution Control

Act. Fraud is the essence of this

indictment; befouling

water is the essence of the Water

Pollution Control Act.

The criminal penalties imposed by the

two statutes reflect

the differences in the seriousness of

the crimes charged.

Therefore, defendants' motion on this

ground will be denied.

The second motion was brought on

behalf of all indiv-

idual defendants to suppress evidence

illegally seized by

J-11.

11 the State of New Jersey and the fruits

thereof and for a

12 hearing thereon.

13 Defendants argue and point out

ee et ee

quite correctly that the

14 defendant has the right to have all

evidence obtained from

15 an illegal search and seizure

suppressed. This rule is

16 applied to prevent evidence obtained

by state officers in

17 an unreasonable search and seizure |

from being used against .

18 a defendant in a Federal criminal .

trial.

19 Elkins v. United States, 364 U.S.

206 (1960).

20 Defendants assert that in this

case evidence was

21 seized pursuant to warrants which a

state court found were

J-12.

not based on probable cause. The

evidence was subsequently

turned over by the State to Federal

authorities.

It is clear that the corporate

officers, such as defend-

ants, who maintained their place of

employment at the

J-13.

corporation's offices have standing,

that is a sufficient

expectation of privacy, to challenge a

search of those of-

fices. The three defendants were all

directors, officers

and owners of a closely held

corporation and have the bene-

fit of this ruling.

The issue of probable cause is

discussed in United

States v. Nilsen, 482 F. Supp 1335

(D.N.J. 1980). The

Court reviewing this, that is the

Federal Court reviewing

this issue need only consider facts

set forth in the affi-

davit furnished to support the

application for the search

Warrants as in the first instance in

deciding if there was

. =

eee te

probable cause.

It is defendants' contention that

the activities de-

tailed in the affidavits from which

the search warrants were

issued by the State Court in this case

were entirely inno-

cent and consistent with SCP's

business, and the events

described were 18 days or more prior

to the searches. When

a court concludes that the information

contained is not

current, the evidence seized must be

exlcuded. Rugendorf v.

United States, 376 U.S. 528, rehearing

den. 337 U.S. 940

(1964). In U.S. v. Johnson, 561 F.2d

285 (10th Cir. 1972),

the court noted that when facts

recited indicate activity

J-15.

of a protracted and continuous nature,

a course of conduct,

the passage of time becomes less

Significant.

Defendants' argument, according to

the Government, is

J-16.

based on factually inaccurate

premise. The Government has

submitted affidavits tending to show

that the Federal invest-

gation of Lone Pine Landfill began

April 1981 and was

based on information received from

informant totally

independent of the State

investigation. In response to the

information, a Grand Jury subpoena

issued to SCP for

production of records and the

company's attorney, Donald J.

Rinaldi, Esq., who had represented

in the 1978 State

was

SCP

proceedings, allowed the Government to

examine them and gave

his permission to use them in the

Federal investigation.

Defendants answer this contention

by insisting that the

information was furnished to the

Government concerning Lone

Pine before the Government began its

investigation of Lone

Pine and further argued that the

consent given by Mr. Rinaldi

was on behalf of the corportion and

not on behalf of the

individual defendants, and that Mr.

Rinaldi was unaware that

the Federal and State Government Task

Force on Pollution had

agreed to cooperate at the time or

prior to the time when

the subpoena was issued.

The Government's contention

basically is, first, that

SCP's consent and failure to contest

the Grand Jury sub-

J-18.

poena dissipates any possible taint in

the State proceeding;

(2) it would be inappropriate to

Suppress the evidence in

view of the unrelated nature of the

Lone Pine Landfill

investigation to the earlier State

investigation; and (3)

J-19.

suppression is unwarranted because

probable cause did

exist for the New Jersey search of the

SCP Newark plant.

MR. WALDER: You said did exist?

I think you meant did

not.

THE COURT: I welcome that when

you are correcting me.

I have examined carefully the

records which defendants

submitted in connection with the

issuance of the 1978 search

warrant by Judge Scalera, then the

Criminal Assignment Judge

of Essex County, and now the

Assignment Judge of that county.

After making that inquiry, I find it

difficult to comprehend

why after briefing and argument and an

initial refusal to

“Te

suppress this evidence, Judge Walls,

acting sua sponte,

decided to enter an order suppressing

the evidence. The

nocturnal activities at SCP's Newark

plant and the other

facts recited in the affidavits

supporting the issuance of

the warrant certainly at first blush

Suggest the issuance

of probable cause to me.

In addition to the nighttime

activity which was recited

by the persons giving affidavits in

support of the search

warrant, affidavits with respect to

trucks drawing up to

the premises at Newark SCP, of piping

waste material into

the sewers and testing the sewers both

above and below the

J-21.

23 point where the piping was being done

with noxious fumes

24 and odors coming from the sewers below

the point of dis-

25 charge into the sewers while not being

found above the

J-22.

point of discharge. These and

numerous other circumstances

taken in conjunction with the issuance

of the warrant seemed

to me to provide, to have provided

probable cause for the

issuance of these warrants and were I

Judge Walls, I would

not have arrived at the same

conclusion that he arrive at.

I would have followed the original

determination of Judge

Sealera who authorized the issuance of

the warrants on the |

basis of the facts presented to him

which are contained in

the reocrds in this case.

Further, the circumstances under

which the Government

obtained the documents were entirely

proper, and I think they

J-23.

are unaffected by any taint which may

have existed when the

State obtained the doucments. These

are not the product of

an unlawful State search turned over

to Federal authorities

on a Silver platter proscribed in

Elkins, supra. The docu-

ments were obtained through the lawful

use of the Federal

Grand Jury process. They involved an

offense which the

Federal Government began

investigating, I conclude, inde-

pendently of the State pollution

investigation and which

followed by years the State

investigation out of which the

search warrants had originally been

issued. They were

sae Ril ie i lit a i ot

produced with the consent of SCP

counsel on behalf of the

corporation, and I cannot believe that

its consent would

have been any different had he known

that the Federal and

State authorities had been working in

conjunction, since

there was some limit on the use to

which the Government

could put the information which it

obtained, and it is

logical to think law-enforcement

officials would exchange

information.

If the attorney for SCP had not

given his consent,

there was nothing to prevent the

Government from pursuing

the subpoena which is at issue to

obtain the documents for

the Federal Grand Jury investigating

Lone Pine Landfill

situation. Thus, I think there is

nothing to support that

when the Government obtained the

attorney's permission it

was any way limited to the use which

it could put the docu-

ments which it inspected.

The defendants' motion for

suppression and for a fur-

ther hearing will be denied.

As to the third motion, which is

brought by ali of the

defendants, this is a motion to

dismiss Counts 4 through 7

and 9 through 14 for the reasons that

the acts alleged are

outside the scope of 17 U.S.C. 1341

and 1342.

These counts allege a scheme to

defraud and the mailing

of an invoice to one of four different

companies for the

purpose of executing the scheme or

artifice. On the basis

of the indictment, mailings must have

been made for the pur-

J<27.

"fe

pose of executing the fraud. U.S. vy.

Tarnopol, 561 F. 2d

466 (3d Cir. 1977).

Here, according to the defendant,

the fraud charged is

J-28.

not to obtain money, but to defraud

"regarding the trans-

portation, treatment, recovery and

disposal of industrial

chemical wastes."

The test to be applied is set

forth in United States v.

Brown, 583 F. 2d 659 (3d Cir. 1978);

cert. den. 440 U.S. 909

(1979).

@. «eo oe hf the: aeiling: i& a: pert

of executing the fraud

or is clearly related to the scheme, a

mail fraud charge

will lie, even though the mailing was

also related to a

business purpose." At 668.

The indictment alleges SCP falsely

represented to gen-

erators that their wastes would be

lawfully transported and

J-29.

disposed of. Thus, the invoices were

bills for services

which, contrary to defendants'

representations, were not

performed and were designed to procure

payment for fraudu-

lent activity. As such, they meet the

Brown test as being

clearly related to the fraudulent

scheme even though they

were related to a business purpose

also.

Defendants' motion to dismiss

Counts 4 through 7 and

9 through 14 on this ground is denied.

The defendants' fourth motion is

made on behalf of all

of the defendants to require the

Government to elect upon

which counts of the indictment to

proceed for the reason

J-30.

- Se ee eee

24 that the indictment charges duplicate

mailings.

25 Counts 19 through 21 charge

mailings of special waste

J-31. :

manifests to DEP; Counts 8, 16, 17, 18

charge mailings of

virtually identical letters to SCP

customers; Counts 4

through 7 and 10 through 14 charge

mailings of invoices to

customers, three to Grumman Aerospace

Corporation, three to

Rohm and three to Nepera. It is clear

that duplicate charges

and excess mailings should not be

charged in a single

indictment. Here is separate mailing

is in furtherance of

the scheme to defraud constituting a

separate violation of

18 U.S.C. 1341. U.S. v. Joyce, 449

F. 2d 9 (7th Cir. 1974),

cert. den. 419 U.S. 1031 (1974).

Clearly the indictment in this

case does not allege the

J-32.

duplicate mailings. Each was a

different mailing alleged to

be in furtherance of the overall

scheme.

Defendants' motion to require the

Government to elect

between them will be denied.

Motion No. 5 was filed on behalf

of ail defendants for

a separate trial and on each of Counts

2 through 21 or for

an order requiring the Government to

elect upon which counts

to proceed.

In deciding whether to sever

counts, a court must bal-

ance the possibility of prejudice

against the governmental

interest and trial economy.

According to the defendants,

prejudice will arise from

J-33.

24 the trial of all these counts

together, from embarrassment

25 in presenting separate defenses,

jury's use of evidence of |

J-34.

gone crime to convict in another, the

fact the jury may ac-

cummulate the evidence to convict when

it would not do so if

counts were tried separately, and

hostility engendered by

charging several crimes.

Defendants seek to apply the

analysis applicable to

Rule 403 and Rule 404(b) to this

motion.

To suggest that each of the

substantive mail fraud

counts should be tried separately

borders on the absurd.

Each is dependent on proof of the same

fraudulent scheme.

Each simply alleges a separate mailing

in furtherance of the

scheme, and each may unquestionably be

proved as an overt

J-35.

“47

act in connection with the conspiracy

charge contained in

Count 1.

There is no basis for concluding

that defendants would

be prejudiced in any way by the

joinder of these counts.

The jury is perfectly capable of

understanding that one

underlying fraudulent scheme is

alleged and that each mail-

ing made pursuant to the scheme is a

separate defense under

the statute. A jury is also perfectly

capable of understand-

ing that as to Counts 2 through 21 the

Government must not

only prove the underlying fraudulent

scheme but also the

particular mailing involved.

J-36.

Proper judical administration

compels trying these

counts together, and there is no

countervailing prejudice.

Defendants' motion for a separate

trial will be denied.

J-37.

Motion No. 6 relates to the bill

of particulars.

Motion No. 7 was brought on behalf

the Defendant

Case and is a motion to dismiss the

indictment on multiple

grounds.

First Case alleges the Government

had advised that

it has no envelopes to establish

mailings nor has it disclosed

it has any other proofs to establish

mailings. SCP fre-

quently, according to Defendant Case,

hand-delivered its

correspondence. The SCP employees who

were questioned before

the Grand Jury were not asked about

hand-delivery as opposed

to mailing. Therefore, the United

States presented no proofs

J-38.

to the Grand Jury as to the mailings.

According to Defendant Case, there

should be disclosure

of what went on before the Grand Jury

to fill the void under

Federal Rules of Criminal Procedure

6(e)(3)(C)(ii) or else

an in camera inspection by the Court.

Secondly, Defendant Case states

the Government fails to allege an

object of

the alleged scheme to defraud. There

must be a deprivation

of property rights or intangible

rights but here no count

alleges either.

In effect, the indictment does not

state what the vic-

tims were defrauded of.

J-39.

Thirdly, Defendant Case urges that

the Government

charges a scheme to defraud the

citizens of New Jersey for

unspecified, intangible rights, as

well as the New Jersey

J-40.

DEP, Passaic Valley Sewerage Authority

and generators of

industrial chemical waste.

The mail fraud statute requires

some fiduciary nexus

between those defrauded where

intangible rights have been

affected. U.S. v. Margiotta, No. 82-

1025, slip opinion

(2d Cir. July 27, 1982). In that case

the political party

leader played such a dominant role in

municipal and county

government that he could be found to

have a fiduciary duty

to the citizens of the municipality

and the county

Finally, Defendant Case urges that

the use of the mails

was not essential to the scheme or

artifice to defraud but

was merely employed for the sake of

convenience, again

citing U.S. v. Tarnopol.

In each case, according to the

Defendant Case, the

question is whether the mailings were

sufficiently closely

related to the scheme to bring the

conduct within the mail

fraud statutes.

Turning to the first ground, proof

of the use of the

mails, the fact that the Government

has no envelopes to

establish mailings or that SCP's

employees who testified

before the Grand Jury were not asked

about mailings is not

sufficient justification to conclude

that the Grand Jury

did not have before it proof that the

matter relied on as

mailings were in fact mailed. There

are a number of other

ways in which that element of the

offense can be proved.

J-43.

If there is an absence of the proof at

the trial, some or

all of the counts can be dismissed.

It is not ground to

permit disclosure of Grand Jury

proceedings or dismissal.

However, I will examine in camera

Grand Jury testimony

provided by the Assistant United

States Attorney in order to

determine that there was in fact

evidence of mailing pre-

sented to the Grand Jury, but unless I

find to the contrary

after such examination, this will not

constitute a grounds

for dismissal.

As to the object of the

conspiracy, that is clearly

alleged, which is namely to make false

statements to induce

eee eee ee

generators and public entities to

believe the defendants

were disposing of hazardous wastes

legally, all so that

defendants could continue their

business and continue to

charge the generators. The object of

the conspiracy is

properly alleged.

As to the scheme to defraud

citizens of New Jersey,

there is a plain and direct nexus

between defendants and

the three categories of entities which

are alleged to have

been the victims of the fraud; namely,

the generators with

whom defendants contracted, the

Passaic Valley Sewerage

Commission whose facilities it sued to

dispose of industrial

J-45.

wastes, and the DEP from which SCP

received its permit,

which regulated SCP's operations, and

to which SCP reported

after the hazardous waste manifest

system went into effect.

J-H6.

Only with respect to the fraud

against the citizens of

New Jersey does the nexus become more

doubtful. U.S. v.

Margiotta, supra, Judge Kaufman, noted

that a public offi-

cial may be prosecuted under 18 U.S.C.

§1341 when his

alleged scheme to defraud has as its

sole object the

deprivation of intangible and abstract

political and civil

rights of the general citizen. Slip

opnion at 4164.

In that case an influential

political party leader

holding no public office was charged

with mail fraud for

arranging for the hiring of a

particular insurance broker

J-47.

by a municipality and county in

consideration of the broker

distributing 50 percent of his

commission as directed by

the party leader. The court stated

that the case raised

the question whether such a person

owes a fiduciary duty to

the citizenry not to deprive it of

certain political rights

so as to lay the basis for a mail

fraud prosecution. The

clear implication was that if a person

were neither a public

official nor a person participating

substantially in the

operation of the government, he would

not owe a fiduciary

duty to cle public at large not to

deprive it of certain

J-48.

intangible political rights. Thus he

would not owe duties

to the public which might lay the

basis for mail fraud

prosecution.

In the present case, defendants

were not public offi-

cials nor did they participate

substantially in the

J-49.

operation of the government. They

Simply dealt with certain

government agencies.

Consequently, if the indictment

charged only the defend-

ants conducted a fraudulent scheme,

the object of which was

to deprive the citizens of New Jersey

of their right not to

have the state water polluted in

violation of the laws, the

indictment might well be subject to

dismissal under the

principle of the Margiotta case.

However, the indictment also

charges fraud on two

governmental agencies and on

generators of hazardous waste.

Insofar as they are concerned, the

indictment alleges a

J-50.

nexus between the defendants and the

defrauded entities

which supports a Section 1341 charge.

The fraud on the public

allegations of the indictment

may be viewed as rhetorical

surplusage. That language should

be stricken from the indictment, and

the Government will be

instructed not to argue to the jury

fraud on the public as

distinguished from fraud on public

entities. With that

wasabi: defendants' motion to

dismiss on object of the

conspiracy grounds will be denied.

Defendant Case moves for a

severance from the other

defendants. He contends that except

for three special

23 waste manifests signed by Barnes and

certain unspecified

24 deliverance to Lone Pine, no unlawful

agreement is alleged

25 to exist between him and Barnes, and

Case anticipates the

J-52.

Government will attempt to prove

relationship between Barnes

and Sigmond not involving Case. Case

also anticipates the

Government will attempt to prove Rule

405(b) offenses as

to Barnes.

He urges that evidence related to

a different time span

will be prejudicial as will joinder of

Case with persons

with whom he has had no unlawful

relationship.

Finally he contends no facts are

alleged which suggest

unlawful conspiracy between him and

Barnes and thus multiple

conspiracies are involved as

prohibited in Kotteokus v.

United States, 328 U.S. 750 (1945) and

U.S. v. Camiel,

J-53.

No. 81-2933 (3d Cir. September 7,

1982).

No basis has been established to

sever Case's trial

from the trial of the other

defendants.

Rule 8(b) of the Federal Rules of

Criminal Procedure

Says that it is proper to charge in a

Single indictment

persons alleged to have participated

in the same acts or

transactions. That is clearly the

case here. In a con-

Spiracy charge defendants should be

tried together.

Under Rule 14 as severance may be

granted if prejudice

is shown.

There is nothing to show

prejudice. There is nothing to

J-54.,

show that there were separate

conspiracies involving some but

not all of the defendants. Thus,

Kotteokus v. United States,

supra, and U.S. v. Camiel, supra, are

not applicable.

J-55. :

1 Even if, as Case suggests, he was

not part of the con-

2 Spiracy during the entire time of its

existence, that is not

3 a reason to sever.

4 If the United States offers proof

of prior crimes under

5 404(b) against co-defendants, I can

attend to that at the

6 time of the offer and determine under

Rule 403 whether there

7 would be undue prejudice.

8 If there would be, the evidence

can be excluded, and if

+ not, it would be admitted.

10 The present showing or rather lack

of showing coes not

11 require a severance.

12 Case's motion for a severance will

be denied, as the

consideration of sound judicial

administration requires a

joint trial and there is no prospect

of undue prejudice

that has been established.

Motion 9 is fer a bill of

particulars.

I am going to give you a letter on

the motions for a

bill of particulars rather than argue

them out. If you want

to add anything, let me have it in the

next few days.

Otherwise I will just give you a

disposition by mail, not

by deliver.

APPENDIX K

SUPERIOR COURT OF

NEW JERSEY

COUNTY OF ESSEX

STATE OF NEW JERSEY $

:SS. AFFIDAVIT

COUNTY OF ESSEX :

I, WAYNE SMITH, Police Officer for

the Newark Police Department, of full age,

being duly sworn on my oath according to

law deposes and says:

1. On June 22, 1978, at 8:16 p.m.,

while assigned to mobile patrol unit

number 317, I was dispatched to 411 Wilson

Avenue, Newark, in response to a burglar

alarm for a suspected break and entry.

2. Upon arrival at 411 Wilson

Avenue, I met Robert W. Flett who was a

guard on the premises. Because it was a

silent alarm, Robert W. Flett was not

aware of the alarm. I told him about the

alarm at this time. I thought it strange

that Mr. Flett was wearing a "gas mask" as

used by the armed forces.

3. Mr. Flett and myself went to the

area where the alarm was located; I

observed that the ceiling of this location

had been broken into and that the door to

this office area was unlocked.

4, Mr. Flett told me that (1) the

office area was secured and locked at the

end of the work day at approximately 5:00

p.m. and (2) the ceiling was not broken as

it was at this time.

5. I then commenced a search of the

building complex for the suspect. I was

accompanied by Robert W. Flett.

6. During our search of the building

complex, I observed several hundred 55

gallon drums in the front building. I

observed that these barrels were filled.

7. During the search for the

Suspect, I observed an area located

between the front building and a green

one-story garage like structure to the

rear of this building. I observed a hose,

K=2,

a ' — =

are

her 2

approximately 3" in diameter, leading from

the outside rear wall of this green

building to a hole, approximately 3 feet

by 4 feet.

8. I observed water running into

this hole from another direction through a

drain ditch cut into the floor. Because

of this, I believe that this hole led to

the sewers.

9. I have been assigned to the 317

district which covers 411 Wilson Avenue

and the surrounding area for approximately

three years.

10. On numerous occasions, I smelled

pungent odors in the area of 411 Wilson

Avenue.

11. Because of my prior employment

as a senior lab technician at Engelhardt

Industries in Newark, I determined that

the odors were from chemicals.

12. On various occasions, I observed

a connection between tanker trucks coming

K-3.

to 411 Wilson Avenue during night time

hours and the pungent odors which I

detected coming from the manhole cover in

front of 411 Wilson Avenue and the manhole

cover immediately to the East of the first

manhole cover.

13. On these occasions, I also

checked the manhole cover immediately to

the West of 411 Wilson Avenue; it did not

have the same chemical odors as the

manhole covers to the East of 411 Wilson

Avenue as described in paragraph #12.

14. I made the observations

described in paragraphs #12 and #13 on the

following dates:

January 26, 1978 11:00 p.m.

January 27, 1978 6:50 p.m.

February 1, 1978 5:00 a.m.

February 3, 1978 12:30 a.m.

February 19, 197812:50 a.m.

March 23, 1978 5:50 p.m.

April 26, 1978 3:00 a.m. (approx.)

K-4,

Wayne Smith

Police Officer

Sworn and subscribed to

before me this day

of July, 1978.

K-5.

APPENDIX L

SUPERIOR COURT OF

NEW JERSEY

LAW DIVISION:

CRIMINAL

ESSEX COUNTY

STATE OF NEW JERSEY )

)ss. AFFIDAVIT OF

COUNTY OF ESSEX ) SEARCH WARRANT

Search Warrant

#AG7-10-77

Investigator RICHARD CHILDS, of full

age, being duly sworn according to law,

upon his oath deposes and says:

I am a duly constituted State Invest-

igator in the Office of the New Jersey

Attorney General, Division of Criminal

Justice. I have been a Law Enforcement

Officer for a period of apprxoimately ten

(10) years divided between the Newark

Police Department and the Economic Crime

Section of the Division of Criminal

Justice. Throughout this period, I have

been involved in matters involving major

crimes, investigative auditing, embezzle-

ments, frauds and economic crimes.

I want to sain (A) the buildings

located at 411 Wilson Avenue, Newark, New

Jersey, (B) the yard area, which is en-

closed by a fence, located to the side and

rear of the said building complex located

at 411 Wilson Avenue, Newark, New Jersey

. complex and yard area, who are assisting

in and within close proximity to the off-

loading of chemicals at the locations

enumerated above in objects "A" and "BN",

and (D) any tanker and truck which is

engaged in the offloading of chemicals at

the time when warrants are executed.

I want to search the above buildings,

trucks and yard area because I believe

that chemical wastes are being pumped into

the public sewer systems contrary to the

law. I believe that tanker trucks are

being used to offload these chemicals

directly into the sewer by means of hoses

and/or pipes connecting the tanker truck

to an interior portion of the building

complex where an open hole leading to a

sewer is located. I believe this to be a

public nuisance, in violation of N.J.S.A.

2A:85-1.

III

That the facts tending to establish

the grounds for this application and the

probable cause of my belief as aforesaid,

are as follows:

1. I eonducted a surveillance of the

Scientific Chemical Processing facility

located at 411 Wilson Avenue in Newark,

New Jersey, on Tuesday, June 13, 1978 from

7:00 o'clock a.m. to 5:00 o'clock a.m.

Wednesday, June 14, 1978. This was a

mobile and ambulatory surveillance.

2. At 7:15 p.m. on June 13, 1978, I

observed a cab and tanker enter the Scien-

tific Chemical Processing facility (here-

inafter referred to a "facility"). It was

a silver tanker in color.

L-3.

;

3. At 7:25 p.m. I positioned myself

to the rear of the "facility" and with

binoculors observed the silver tanker

Standing alongside a two story, brick

building which was greenish in color and

is labeled "A" on the attached photograph.

This green building is located in the

easterly portion of the building complex.

4, I observed that the cab which was

pulling the tanker had the name

"Scientific Chemical, Carlstadt, New

Jersey" printed on the door. The silver

tanker bore number 365005 on its rear

surface.

5. I observed the top vents of the

tanker in an open position and a hose from

the tanker running from the tanker, along

the ground and then to another section of

the building complex.

6. I observed that the building

complex is a grouping of various

structures apparently joined in a row-like

fashion. One portion of the complex is

the two-story greenish hued building

referred to in paragraph 3 above. Another

portion is a one-story garage-like

structure, also of greenish hue, with

garage doors facing the rear of the main

building complex into the yard area of the

facility.

7. $$.|. remained in the area, keeping

the rear of the building complex under

surveillance until approximately 8:30 p.m.

on this date, June 13, 1978. I observed

the tanker and cab, heretofore described

in paragraph number 4 above, remain in the

same position as described in paragraph 3

above.

8. I have reviewed temporary operat-

ing authorizations issued by the New

Jersey Department of Environmental Protec-

tion to Scientific Chemical Processing,

Inc. Permits were issued on May 9, 1978

for two locations: 411 Wilson Avenue in

L-5.

Newark and 216 Paterson Plant Road in.

Carlstadt, New Jersey.

9. The operating authorizations are

to conduct special waste facilities to

transfer, store, reprocess, reclaim, re-

cover, blend and treat chemical wastes.

10. Based upon my observations and

the statements set forth in the accompany-

ing affidavits of Investigator Nicholas

Russo and Police Officer Wayne Smith,

whose affidavits are made part of this

application for the issuance of search

warrants, I have probable cause to believe

that tanker trucks are illegally disposing

of chemical wastes under cover of darkness

into the sewers transversing the City of

Newark.

Search warrants are sought for the

following entities:

A. BUILDING COMPLEX

L-6.

The building complex is located at

411 Wilson Avenue in Newark, New Jersey;

this complex is situated on the northerly

side of Wilson Avenue subjacent to the

Wilson Avenue underpass. The complex is

composed of contiguous buildings and are

of red brick composition and are two-

stories each. The complex is marked with

the number 411 positioned above the second

story windows on the most easterly portion

of the complex. The complex has four (4)

entrance doors facing Wilson Avenue. The

rear of the building complex is predomi-

nantely composed of contiguous buildings,

two-stories in height and of red brick

composition toward the easterly section is

a two-story aqua structure of concrete

composition which protrudes northerly from

the main complex but which appears to be

attached to the main red brick complex

heretofore described to the west of this

two-story aqua structure is a one-story

L-7.

garage like structure which is also aqua

in color. Located on the north face of

this garage-like structure is an opening

the approximate size of a garage entrance

way. To the west of this garage door

opening is a pedestrian entrance door

leading to the inside of this one-story

aqua structure.

Although there are four (4) entrance

ways facing the Wilson Avenue overpass, it

is known that the interior portions of the

building complex is a warehouse-like fac-

ility with large areas of open storage not

directly correlated to each entrance door.

B. YARD AREA

The yard area located to the

northerly and westerly directions immedi-

ately contiguous to the building complex

known as 411 Wilson Avenue in Newark. The

yard area is enclosed by a cyclone fence

approximately eight (8) feet in height.

The fence is topped with three (3) strands

L-8.

of barbed wire. The yard area has pro-

perty facing Wilson Avenue approximately

500 feet in length; it has a depth of

approximately 700 feet in length; it is

irregularly rectangular in shape. Within

this yard area are located various ware-

house-like structures, yard vehicles (in-

cluding tankers, trucks, forklifts and

other motorized vehicles).

C. TANKER VEHICLES

Any and all tanker vehicles parked

near the two (2) green-hued buildings

described in paragraph IV (A) above. On

June 13, 1978, I observed a large silver

tanker with an estimated capacity of 8,000

gallons which bore identification number

365005 and which was being pulled by a cab

bearing the name "Scientific Chemical,

Carlstadt, New Jersey".

It is requested that authorization be

given to search this silver tanker and

cab, as well as any other tanker or

L-9.

tankers which park near the green hued

buildings which are believed to be the

specific areas where chemical offloading

is occurring.

D. INDIVIDUALS

Those individuals who are within the

area of the green hued buildings when a

tanker vehicle is connected to the hose

and/or pipe heretofore described.

Any individual who is either a driver

or passenger of a tanker vehicle which is

connected to the hose and/or pipe hereto-

fore described.

I am making application for search

warrants in order to seize the following

items:

(1) Samples of substances being

transported and/or stored in

tanker vehicles.

(2) Bills of lading, New Jersey

Department of Environmental

Protection manifest reports

and other documentary

evidence which would indicate

the types of substances being

L-1 0.

transported, stored, refined,

reprocessed, treated or re-

covered by Scientific

Chemical Processing.

(3) Bills of lading, vendor con-

tracts, invoices, and other

documentary evidence showing

the ultimate disposition of

chemical wastes being

accepted by Scientif Chemical

Processing and other subsid-

iaries and subdivisions which

at this stage are unknown.

(4) Samples of substances being

discarded into the sewers of

Newark.

I have observed that the complained

of activity occurs during the evening and

nocturnal hours. I personally observed

the suspect activity on June 13, 1978 at

approximately 7:25 p.m. The accompanying

affidavit of Police Officer Wayne Smith

states that he has observed the complained

of activity on many occasions usually

during the periods of dusk and darkness.

In that the suspected illegal activ-

ity occurs during the non-daylight hours,

it is requested that the Court authorize

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the execution of the search warrants at

any hour of the day or night.

Wherefore deponent prays that search

warrants may be issued authorizing a

search of the aforesaid persons, vehicles,

premises and such persons as may be in and

upon such premises and vehicles in the

manner provided by law.

Richard Childs,

Investigator

Sworn and subscribed to

before me this day

of , 1978.

Judge of the Superior Court

L=12.

APPENDIX M

an.

SUPERIOR COURT OF

NEW JERSEY

COUNTY OF ESSEX

STATE OF NEW JERSEY )

) SS. AFFIDAVIT

COUNTY OF ESSEX )

I, Nicholas M. Russo, Investigator

for the New Jersey Attorney General

Office, Division of Criminal Justice, of

full age, being duly sworn on my oath

according to law, deposes and says:

1. I conducted a surveillance of the

Scientific Chemical Processing Facility

located at 411 Wilson Avenue in Newark,

New Jersey on Tuesday from 7:00 o'clock

a.m., June 13, 1978 and to 5:00 o'cl ck

a.m., Wednesday, June 14, 1978. This was

a mobile and ambulatory surveillance.

2. Betweer 7:40 p.m. and 7:46 p.m.,

I walked Wilson Avenue for the length of

the building complex known to house

Scientific Chemical Processing and known

M-1.

to me as 411 Wilson Avenue.

3. I observed a manhole cover

directly in front of 411 Wilson Avenue and

in close proximity to the most easterly

entrance door.

4, At 7:41 p.m. and 7:43 p.m., while

standing near this manhole cover, I heard

what seemed to be the sounds of gushing

liquids coming from the manhole cover. I

detected the odor of chemicals coming

directly from the manhole cover.

Nicholas M. Russo,

Investigator

Sworn and subscribed to

before me this day of

July, 1978.

as a

APPENDIX N

SUPERIOR COURT OF

NEW JERSEY

LAW DIVISION

ESSEX COUNTY

STATE OF NEW JERSEY )

)SS CRIMINAL SEARCH

COUNTY OF ESSEX ) WARRANT

To Investigator Richard Childs, any

officer of the New Jersey Division of

Criminal Justice, any officer of the

Newark Police Department or any officer of

any law enforcement agency having juris-

diction.

1. This matter being opened to the

Court by Richard Childs on application for

the issuance of search warrants for the

building complex described below and the

Court having reviewed the affidavits of

Richard Childs, Investigator Nicholas

Russo and Police Officer Wayne Smith and

being satisfied therefrom that located

thereon are:

(1) Samples of substances being

transported and/or stored in

tanker vehicles.

N-1.

(2)

(3)

(4)

and that

issuance

Bills of lading, New Jersey

Department of Environmental Pro-

tection manifest reports and