Petition for Writ of Certiorari — Cooper v. United States

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f. Court, U.S.

99 $315 AUG 231999

DFECE OE THE CLERK

In The

Supreme Court of the United States

GORDON PAUL COOPER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Rocer S. Hanson, Esa.

1517 East Fourth Street

Santa Ana, California 92701

(714) 953-0638

Attorney for the Petitioner;

Member of the Bar Supreme Court

of the United States

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Supremacy Clause of the United States

Constitution, Article VI, Clause 2, requires that federal

trial and appellate courts recognize the federal legislation

codified as 40 CFR 503, taking effect on February 19, 1993,

as to compliance by this petitioner, regulating and pro-

viding for the direct application of sewage sludge to land,

and whether, therefore, a United States citizen fully com-

plying with 40 CFR 503 can be convicted of an alleged

violation of 33 U.S.C. 1319(c)(2)(A) and 1342, aiding and

abetting the unlawful disposal of sewage sludge, an

important question of federal law that has not been, but

should be, settled by this Court?

2. Whether Federal Rule of Criminal Procedure 52 can

be invoked by a United States Court of Appeal to prevent

resolution of the issue of unlawful conviction of a federal

defendant by the knowing use of key, material perjury by

the Office of the United States Attorney, in violation of

Mooney v. Holohan, 294 U.S. 103 thru Alcorta v. Texas, 355

U.S. 28 thru Napue v. Illinois, 360 U.S. 264, 269 thru Miller

v. Pate, 386 U.S. 1 thru Giglio v. United States, 405 U.S. 150

thru United States v. Agurs, 427 U.S. 97, 103 n.8, the United

States Court of Appeals for the Ninth Circuit deciding an

important federal question that conflicts with relevant

decisions of this Court?

QUESTIONS PRESENTED - Continued

3. Whether the rule and command of Brady v. Maryland,

373 U.S. 83, 87 (1963) is violated by an Assistant United

States Attorney willfully suppressing a key material FBI

302 investigative report that proves government witness

perjury at a federal trial, the United States Court of

Appeals deciding this important federal question in a

way that conflicts with relevant decisions of this Court?

4. Whether the willful suppression of an immunity

agreement deal made to a key, material, critical govern-

ment witness requires reversal of a federal conviction

obtained, in large, from the testimony of that witness,

who was otherwise committing perjury known to the

United States Attorney, that witness denying any deal

had been made, and the Assistant United States Attorney

failing to correct the denial and/or voluntarily admit the

existence of the deal, the United States Court of Appeals

for the Ninth Circuit deciding an important federal ques-

tion in a way that conflicts with relevant decisions of this

Court, or, alternately an important question of federal

law that has not been, but should be, settled by this

Court?

5. Whether the attempt to collect for services lawfully

rendered in compliance with 40 CFR 503, disposal of

sewage sludge by direct application to land, constitutes

an intent to defraud, and thus to allow an elevation of 10

points in United States Sentencing Guidelines 2 F

1.1(b)(1)(K), for a federal defendant, an important ques-

tion of federal law that has not been, but should be,

settled by this Court?

TABLE OF CONTENTS

Questions Presented. ...........

ee ieee au ce ace eseudes

et eee Loe Un eens dred eaee vid akeeeacs

Opinion Below ....... TaN cee eed ese =

EE ee

United States Constitutional Provisions and Statutes

AG SEO EEE GE I ee ls] aN an

ARGUMENT I

ARTICLE VI, CLAUSE 2, UNITED STATES CON-

STITUTION, THE SUPREMACY CLAUSE,

REQUIRES THAT RECOGNITION BE GIVEN TO

THE SUBSEQUENTLY AND NEWLY ENACTED 40

CFR 503 AND ITS RELEVANT SECTIONS, WHICH

ALLOW THE DIRECT APPLICATION OF SEW.

AGE SLUDGE TO LAND THAT MEETS CERTAIN

CHEMICAL MAKEUP, AND REQUIRES REVER-

SAL OF A CRIMINAL CONVICTION FOR A

CHARGE OF UNLAWFUL DISPOSITION OF SEW-

AGE SLUDGE IN THIS CASE...................

TABLE OF CONTENTS - Continued

Page

ARGUMENT II

FEDERAL RULE OF CRIMINAL PROCEDURE 52

DOES NOT APPLY TO U.S. GOVERNMENT

ATTORNEY USE OF PERJURY IN FEDERAL TRI-

ALS, WHERE THAT PERJURY IS UNKNOWN TO

THE DEFENSE, BUT IS KNOWN, OR SHOULD BE

KNOWN, TO THE GOVERNMENT AND ITS

COUNSEL; THE U.S. COURT OF APPEALS

WRONGLY REFUSED TO APPLY THE COM-

MANDS OF UNITED STATES V. AGURS (1976) 427

U.S. 97, 103, AND CASES CITED THEREIN AT

FOOTNOTE 8, ASSERTING THAT THE RULE OF

“PLAIN ERROR” FORECLOSED APPELLATE

SCRUTINY OF THIS GOVERNMENT PERJURY

AND SUPPRESSION OF EVIDENCE BECAUSE

PETITIONER COOPER “DID NOT ARGUE AT

TRIAL THAT THE GOVERNMENT PRESENTED

PERFURED TESIIGIINY,..” 2 cc cccccscesecccccverns 17

ARGUMENT III

CERTIORARI SHOULD BE GRANTED TO SET

NATIONAL FEDERAL STANDARDS THAT MUST

GOVERN MANDATORY DISCLOSURE OF

“DEALS” BY ASSISTANT U.S. ATTORNEYS PRE-

SENTING KEY, MATERIAL EVIDENCE VIA

INDICTABLE FEDERAL CRIMINALS WHO

DENY, UNDER OATH, THAT ANY “DEAL” HAD

BEEN GIVEN TO THEM IN EXCHANGE FOR

THEIR TESTIMONY; SEE GIGLIO V. UNITED

STATES, 405 U.S. 150; DEMARCO V. UNITED

Dae ey Gar Crk a ene e se ckuehenecnsséantesess 24

TABLE OF CONTENTS - Continued

Page

ARGUMENT IV

CERTIORARI SHOULD BE GRANTED TO

RESOLVE AN ISSUE UNDER THE UNITED

STATES SENTENCING GUIDELINES 2 Ff

TO COLLECT FOR SEWAGE SLUDGE LAWFULLY

TRANSPORTED IN BEHALF OF A CITy AND

LAWFULLY APPLIED TO LAND UNDER FED-

ERAL LAW 40 CER 503 et. seq. CAN BE TERMED

AS AN INTENT TO DEFRAUD THAT SAME CITY

OUT OF OVER $500,000 AND THUS CAUSE AN

ELEVATION OF TEN POINTS IN THE U.S.S.G.,

AND A VERY ELEVATED FEDERAL PRISON

SNOT 6s e+i nvesceunsys seria reer 29

II Sos s5 ss'dvse decrees issas a eee 30

Appendix

(a) Opinion, U.S. Court of Appeals.............. A-1

(b) Order Denying Rehearing..................0 B-]

(d) FB.I. 302 Dated April 25, 1996 and October 22,

BPI: FEATS AS He vena day Peanut Re D-]

(e) CCF-City of San Diego Civil Contract.......__. E-1

TABLE OF AUTHORITIES

Page

Cases

Alcorta v. Texas, 355 U.S. 28 (1957) ............... 18, 23

Brady v. Maryland, 373 U.S. 83 (1963)............. 18, 22

DeMarco v. United States, 415 U.S. 449

SR cos 04055 64 pbksenneseusweaeernnee 12, 24, 26, 28

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)........ 18

Giglio v. United States, 405 U.S. 150 (1972)

$id d0Ne Wenuudeeseoneeneeusi pa eeeeened 12, 18, 24, 26, 28

Mesarosh v. United States, 352 U.S. 1 (1956)....... 22, 28

Reiter wv. Pale, 36 UZ. 3 CURE) « ccvcceceseceevesess 18

Miranda v. Arizona, 384 U.S. 436 (1966).............. 27

Mooney v. Holohan, 294 U.S. 103 (1935)....... 11, 18, 22

Napue v. Illinois, 360 U.S. 264 (1959).............. 18, 22

Pyle v. Kaneas, S17 US. ZEUS (CIDER 2c vcccevctenss 18, 22

United States v. Agurs, 427 U.S. 97 (1976)....11, 17, 18, 22

United States v. Cooper, 173 F.3d 1192 (9th Cir. 1999) ..... 1

United States v. Shaw, 3 F.3d 311 (9th Cir.

BOGE vce cveveuneecceweees eeneeeeeeeee 12, 13, 30

Unitep States LAws AND STATUTES

BB CPR FOG. ccc cvcccustsetscsesaesehwesepeneans passim

PETITION FOR WRIT OF CERTIORARI

To the Honorable William Rehnquist, Chief Justice of

the United States, and to the Honorable Associate Justices

of the United States Supreme Court:

Gordon Paul Cooper, petitioner, seeks a Writ of

Certiorari to the United States Court of Appeals

for the Ninth Circuit from the raling/opinion

entered April 9, 1999, rehearing /suggestion for

hearing En Banc denied May 28, 1999.

OPINION BELOW

The United States Court of Appeals for the Ninth

Circuit entered its published opinion, United States v.

Gordon Paul Cooper, 173 F.3d 1192 (9th Cir. 1999), on April

9, 1999. A timely petition for rehearing/suggestion for

hearing En Banc was denied on May 28, 1999. Copies of

these opinions and orders appear in the Appendix.

JURISDICTIONAL GROUNDS

(i) The United States Court of Appeals affirmed the

conviction by a published opinion, 173 F.3d 1192 (9th Cir.

1999) entered April 9, 1999. A copy of that opinion

appears at Appendix A-1.

(ii) The United States Court of Appeals entered an

order denying rehearing/suggestion for hearing En Banc

on May 28, 1999. A copy of that order appears at Appen-

dix B-1.

(iii) Jurisdiction to review by certiorari a decision of

a United States Circuit Court in a criminal case is pro-

vided under 28 U.S.C. 1254.

UNITED STATES CONSTITUTIONAL

PROVISIONS AND STATUTES INVOLVED

SUPREMACY CLAUSE, ARTICLE VI, CLAUSE 2:

This Constitution, and the laws of the United States

which shall be made in pursuance thereof; and all treaties

made, or which shall be made, under the authority of the

United States, shall be the supreme law of the land; and the

judges in every state shall be bound thereby, any thing in

the Constitution or laws of any state to the contrary

notwithstanding.

FIFTH AMENDMENT, U.S. CONSTITUTION:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offence to the 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.

FEDERAL RULE OF CRIMINAL PROCEDURE 52:

(a) Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights shall be

disregarded.

(b) Plain Error. Plain errors or defects affecting sub-

stantial rights may be noticed although they were not

brought to the attention of the Court.

—————————

CODE OF FEDERAL REGULATIONS 40 CER 503

(SEE APPENDIX C)

STATEMENT OF THE CASE

A. The Supremacy Clause, U.S. Constitution, Arti-

cle VI.

Petitioner Gordon Paul Cooper was an officer in

Chino Corona Farms (CCF), a southern California corpo-

ration that physically hauled sewage sludge from various

city sewage processing plants for disposal under regu-

lated conditions.

One of CCF’s clients was the City of San Diego,

California, who processed its sewage under a National

Pollutant Discharge Elimination System (NPDES) permit

issued by the State of California Regional Water Quality

Board.

The sewage sludge hauling for the City of San Diego

was administered via a 1990 written contract between the

City of San Diego and CCF. (See Appendix E for that

contract.) That contract did not reference or incorporate

the NPDES permit. The contract specifically provided

that all of San Diego’s sludge was “nonhazardous.”

The contract provided that CCF transport the non-

hazardous sewage sludge to land in Thermal, California,

where it was to be “composted,” i.e., periodically turned

over in “windrows” to cause aeration, and then later sold

and applied to farmland as a fertilizer. The transport to

the Thermal land occurred for a couple years, and the

huge amount of sewage sludge eventually exceeded abil-

ity to “compost” each new day’s arrival. Fortunately,

petitioner and CCF were able to obtain an agreement

with the Republic of Mexico to directly transport some of

the nonhazardous sewage sludge there for direct applica-

tion to Mexican farmland as a fertilizer, and in Spring,

1992, such an arrangement was commenced, with permis-

sion and knowledge of the City of San Diego and the

State Regional Water Board.

CCF hired a Mexican citizen, Manuel Mier, to secure

drivers and trucks to accomplish the daily trek from the

City of San Diego’s processing plant at “Fiesta Island”

directly to Mexico, with border crossing from Calexico,

California to Mexicali, B.C., Mexico, and thence inland to

the receiving farms.

This arrangement existed until February, 1993, when

the United States Congress passed National legislation

governing “Standards For The Use Or Disposal Of Sew-

age Sludge,” including provisions for the legal and lawful

and scientifically sound Direct Application of Sewage

Sludge to Land. While the entire 40 CFR 503 is lengthy,

relevant key excerpts from this federal legislation are set

forth in Appendix C to this petition.

Importantly, if the sewage sludge met, and was

within, i.e., below, certain ceiling concentrations of mat-

ters deemed to be “pollutants” set forth in 40 CFR 503.13,

the City of San Diego’s nonhazardous sewage sludge

could be directly applied to farmland without any per-

ceived intermediate process such as “composting” it. This

legislation, enacted February 19, 1993, specifically pro-

vided in 40 CFR 503.2(a) that “compliance with the stan-

dards in this part shall be achieved as expeditiously as

practicable, but in no case later than February 19, 1994.”

Petitioner Cooper, and CCF, with extensive experi-

ence in sewage sludge hauling, were aware of this impen-

ding legislation, and could and did immediately comply

with it since all of the nonhazardous sewage sludge

treated at the City of San Diego’s “Fiesta Island” process-

ing plant met the federal scientific requirements, i.e., all

of the recognized “pollutants” enumerated in 40 CFR

503.13 were below the allowed levels, and thus the sew-

age in question could be, and was, legally and lawfully

directly applied to farmland of a farmer, one Jay Mason,

in Imperial County, California, after February 19, 1993.

Several sections of the 40 CFR 503 federal legislation

which governed the allowance of direct application of

nonhazardous sewage sludge to land are of key rele-

vance: 503.13(b) provided, under its Direct Enforcibility

clause, that “No person shall use or dispose of sewage

sludge through any practice for which requirements are

established in this part except in accordance with such

requirements.” 503.4, dealing with “Relationship to other

regulations”, provided that disposal of sewage sludge via

recognized techniques previous to this enacted legislation

that now meet the requirements of 40 CFR 503 constituted

full compliance with the Clean Water Act, and under

503.5, while the “permitting authority may impose

requirements for the use or disposal of sewage sludge” in

addition to or more stringent than the requirements, that

must be shown to “be necessary to protect public health

and the environment from any adverse effect of a pollu-

tant in the sewage sludge.”

CCF fully analyzed the City of San Diego sewage

sludge prior to its direct application to California farm-

land on or after February 19, 1993, and it fully complied

with 40 CFR 503.13, as well as the “vector” and “patho-

gen” mandates of 503.15, 503.32(a) and 503. 33(b)(1) thru

(b)(8). All sewage sludge applied directly to the farmland

of farmer Jay Mason in Imperial County, California, was

legally and lawfully applied pursuant to the federal sci-

entific and chemical standerds of 40 CFR 503, and the

U.S. Court of Appeals, at A-5 and A-10-11, found that

“expert testimony” presented at trial established that the

Fiesta Island sewage sludge met federal standards for

direct land application. There were, therefore, no other

government standards necessary to “protect public health

and the environment.” Surely none were introduced by

the government at trial.

A final key area is contained in 40 CFR 503.10:

(a) This subpart applies to any person who

prepares sewage sludge that is applied to the

land, to any person who applies sewage sludge

to the land, to sewage sludge applied to the

land, and to the land on which sewage sludge is

applied, and

(b) Bulk Sewage Sludge. The general require-

ments in 503.12 and the management practices in

503.14 do not apply when bulk sewage sludge is

applied to the land if the bulk sewage meets the

pollutant concentrations in 503.13(b)(3), the Class

A Pathogen requirements in 503.32(a), and one of

the vector attraction reduction requirements in

503.33(b)(1) through (b)(8).

Since the City of San Diego nonhazardous sewage

sludge fully met all federal requirements in 40 CFR 503 to

directly apply it to land, the General Requirements in

503.12, and specifically its notice requirements at 40 CFR

503.12(j), did not have to be met:

Any person who applies bulk sewage

sludge subject to the cumulative pollutant load-

ing rates in 503.13(b)(2) on the land shall pro-

vide written notice, prior to the initial

application of bulk sewage sludge to a land

application site by the applier, to the permitting

authority for the State in which the bulk sewage

sludge will be applied and the permitting

authority shall retain and provide access to the

notice.

The notice shall include: (1) the location, by

either street address or latitude and longitude,

of the land application site. (2) The name,

address, telephone number, and National Pollu-

tant Discharge Elimination System permit

number (if appropriate) of the person who will

apply the sewage sludge.”

Petitioner Cooper was convicted of violating the

NPDES permit by failing to advise the City of the direct

deposit of sludge to the land.

Thus petitioner and CCF need not have first notified

the California State Regional Water Board, nor the City of

San Diego, prior to fully complying with the new federal

laws contained in 40 CFR 503 when the nonhazardous,

benign City of San Diego sewage sludge was applied to

the farmland of Imperial County.

At issue in this Petition for Certiorari is whether the

nationally and subsequently enacted governing legisla-

tion at 40 CFR 503, enacted and becoming effective on

February 19, 1993, became the supreme law of the land

pursuant to Article VI, clause 2, of the United States

Constitution, and whether, therefore, petitioner Cooper

could be convicted of “unlawful disposal of sewage

sludge” pursuant to 33 U.S.C. 1319(c)(2)(A) and 1342, and

“conspiracy” to do so under 18 U.S.C. 371 when he had

fully complied with the supreme law of the land, and, as

here, this sludge was nonhazardous.

The U.S. Ninth Circuit tersely held that the nationally

governing legislation 40 CFR 503 in no way superseded

the so called NPDES permit, the latter of which was never

incorporated in, or mentioned, or made a part of peti-

tioner’s contact to simply transport and dispose of the

sewage sludge generated by the City of San Diego. See

A-12-A-16 inclusive, Appendix A, opinion, U.S. Ninth

Circuit (173 F.3d 1192, __ (9th Cir. 1991)).

B. The mail fraud conviction, 18 U.S.C. 1341.

Petitioner and CCF obtained payment for the trans-

port of sewage sludge by tonnage removal and disposal.

Of necessity, therefore, each truckload was weighed, both

at the Fiesta Island processing plant by the City of San

Diego officers (skip-load weighing as the truck was

filled), and later at a commercial scale. These scale

receipts were mailed to the City of San Diego to obtain

payment. It is of significant interest that the City’s own

weighing processes at its Fiesta Island processing plant

closely verified the amounts billed to the City by CCF.

Matters went well until Mexican citizen Manuel Mier

was hired at $500/week to arrange for and supervise the

transportation of the sludge into the Republic of Mexico

during a period from Spring, 1992, through February 19,

1993, this latter date being the commencement of allow-

ing the direct application of the nonhazardous sewage

sludge to land under the newly enacted, nationally gov-

erning federal legislation at 40 CFR 503.

Mier was to be paid $5.00 per truckload to pay for the

commercial weighing of each truck. The petitioner and

CCF physically made these payments, believing that Mier

was honestly causing each truck to be weighed. Instead,

Mier privately arranged to have a print shop make up

false and phony weigh slips without petitioner Cooper

being aware of his fraud, and he thus was able to fill out

a false weight slip for each load and pocket the $5.00.

When the City learned of the deposit of the non-

hazardous sludge at the farm of Jay Mason, although that

deposit fully complied with the nationally governing 40

CFR 503 mandates, they refused to pay for some $566,000

in fees due to CCF, and the weight slips falsely printed by

Mier and personally filled out by him and later mailed to

the City by CCF were examined, disclosing that they

were sequentially numbered, a result incongruent with

the normal commercial scale weigh master certificates,

since other vehicles would, logically, be weighed in

between the trucks of CCF, thus destroying the numerical

tandem sequence.

Manuel Mier, apparently threatened with prosecution

by the FBI and the office of United States Attorney,

Southern District of California, became the key witness

for the government at petitioner’s trial, as to the 18 U.S.C.

1341 charges.

Mier, in a formal interview report to the FBI in

March, 1996, stated that he, Mier, did not know where the

“weigh slips” came from, but he, Mier, had personally

witnessed petitioner Cooper enter a then non-named

Mexicali print ship, Mier not entering, and a couple days

later, petitioner Cooper gave him a box of completed false

weigh slips. However, on April 4, 1996, AUSA Melanie

Pierson placed Mier before the U.S. Grand Jury, seeking

petitioner’s indictment, and permitted Mier to testify that

Mier and Cooper went into a then non-named print shop in

Mexicali, B.C., and they jointly ordered the phony “weigh

slips,” Mier translating English-Spanish for petitioner

Cooper, who is not bilingual. Having access to the March,

1996, FBI report stating a rather different scenario, AUSA

Pierson made no effort to correct the Mier testimony, vis-

a-vis the March, 1996, FBI report, one version of which

must be perjury. If the March 1996, report was perjured,

Mier is guilty of an 18 U.S.C. 1001 violation. If the Grand

Jury testimony was perjured, 18 U.S.C. 1623 was violated.

Apparently, following Mier’s cooperation with AUSA

Pierson before the grand jury, she derived from him that

the Mexicali print shop claimed to be the situs of printing

was called “Impremex,” located at 2088 Maderos, Mex-

icali, B.C. Mexico, and the FBI visited it on April 25, 1996,

learning from officials thereat that no such printing had

been done there. This report was suppressed from the

defense by AUSA Pierson, and was never disclosed until

after the trial was concluded. At trial, having in mind the

suppressed FBI report showing false the story of Mier

regarding the genesis of the “weigh slips,” AUSA

Melanie Pierson permitted Mier to tell a yet different

under oath tale of weigh slip origin: that he, Mier, peti-

tioner Cooper, and one “Barilla,” or “Padilla,” had jointly

gone to the now-named Imp :emex print shop and had

arranged for the printing ci the weigh slips. At this time

AUSA Pierson, representing the United States at trial, still

suppressed the April 25, 1996, FBI report showing that

the printing had not been done at “Impremex.”

No matter which of these 3 false stories the jury

might have accepted, all of them asserted that petitioner

Cooper was either personally, or jointly, involved in the

false printing, but the government attorney willfully sup-

pressed from the jury that the FBI had learned that it had

never occurred at all where Mier claimed it to have been

done. See FBI 302 reports, April 25, 1996 and October 19,

1996, Appendix D.

The United States Court of Appeals at A-16-A-20

asserts that it can not deal with this blatant governmental

perjury since petitioner and his lawyer failed to assert

perjury at trial, and thus the “plain error” doctrine of F.R.

Criminal Procedure 52 precluded dealing with the com-

manding law of United States v. Agurs, 427, U.S. 97, 103,

and footnote 8.

At issue is whether governmental suppressed evi-

dence proving perjury, that evidence of perjury being

first and only discovered after trial, allows the rule of

“plain error” to be invoked, or whether the long line of

cases uniformly condemning government perjury stem-

ming from Mooney v. Holohan, 294 U.S. 103 through United

States v. Agurs, 427 U.S. 97, 103, n.8 require the grant of

Certiorari to elucidate this Ninth Circuit misconception.

Plain error applied here as to prosecution perjury discov-

ered after trial appears to be a case of first impression.

C. The failure to reveal the “deal” or immunity

agreement, formal or informal, accorded to key

government witness Manuel Mier.

At A-19-A-20, C. Immunity Agreement, the U.S. Ninth

Circuit somehow forgives the failure of the government

to reveal that they had agreed to not indict, arrest, and

try Manuel Mier for his series of crimes, including 18

U.S.C. 1001, material false statements to the FBI, 18 U.S.C.

1623, material false testimony before a federal grand jury,

and obviously false trial testimony regarding printing of

the weigh slips, as well as his admitted personal falsifica-

tion of weigh slips, never having weighed the trucks at

any time after he assumed responsibility for the hauling

to Mexico and the February, 1993 hauling to the farm of

Jay Mason. At no time has Manuel Mier been arrested,

charged, indicted, or tried for these many crimes. It is

clear that the government, either formally or informally,

made an immunity agreement with Mier, suppressed it

from the defense at trial, and refused to either disclose it,

or correct Mier’s perjury when he denied any such agree-

ment. This technique, perhaps a new and innovative gov-

ernmental effort to escape the consequence of Giglio v.

United States, 405 U.S. 150 (1972) and DeMarco v. United

States, 415 U.S. 449 (1974), should cause the grant of

Certiorari to further elucidate the government's obliga-

tions under Giglio. This governmental technique creates,

apparently, a case of first impression, if not governed by

Giglio and DeMarco.

D. Sentencing Issues:

Under the U.S.S.G., and cases there interpreting, a

federal defendant can be charged with the larger of what

he actually defrauded someone out of, or what he intended

to defraud that party out of. See, e.g., United States v.

Shaw, 3 F.3d 311 (9th Cir. 1993).

At bar, the figure $566,000, the amount CCF billed the

City of San Diego for nonhazardous sewage sludge

removed after February 19, 1993, and lawfully (40 CFR

503) applied directly to the farmland of Jay Mason in

Imperial County, for which the City refused to pay CCF,

was deemed an “intended loss” for sentence enhance-

ments. Clearly, since the City refused to pay, the City

actually lost nothing.

This figure, a desire to get reimbursed for a fully

legitimate billing for nonhazardous sewage sludge truly

removed and lawfully deposited directly on the land

pursuant to 40 CFR 503, caused a ten-level sentencing

enhancement under U.S.S.G. 2F1.1(b)(1)(K). At A-25-

A-28, the U.S. Ninth Circuit, in its circuitry of reasoning,

held petitioner fully liable for an “intended loss” of

$566,000 to the City where, here, the nonhazardous sew-

age sludge was lawfully removed and disposed of pur-

suant to 40 CFR 503, and petitioner and CCF legitimately

billed for these services, petitioner being unaware of

Manuel Mier’s falsifications, and not learning of the per-

jury until after trial.

Certiorari should be granted to analyze and elucidate

the U.S.S.G. in “actual” v. “intended” losses. See United

States v. Shaw, 3 F.3d 311 (9th Cir. 1993). This appears to

be a case of first impression and should cause the grant of

certiorari.

ARGUMENT I

ARTICLE VI, CLAUSE 2, UNITED STATES CONSTITU-

TION, THE SUPREMACY CLAUSE, REQUIRES THAT

RECOGNITION BE GIVEN TO THE SUBSEQUENTLY

AND NEWLY ENACTED 40 CFR 503 AND ITS RELE-

VANT SECTIONS, WHICH ALLOW THE DIRECT

APPLICATION OF SEWAGE SLUDGE TO LAND THAT

MEETS CERTAIN CHEMICAL MAKEUP, AND

REQUIRES REVERSAL OF A CRIMINAL CONVIC-

TION FOR A CHARGE OF UNLAWFUL DISPOSITION

OF SEWAGE SLUDGE IN THIS CASE.

The advancement of scientific study and improve-

ments in the disposal of sewage sludge bore fruit in the

United States when, effective February 19, 1993, the Con-

gress enacted 40 CFR 503, STANDARDS FOR THE USE

OR DISPOSAL OF SEWAGE SLUDGE.

Petitioner attaches relevant sections of that legisla-

tion as Appendix C.

Importantly, the legislation provided that in 503.2(a),

“compliance with the standards in this part shall be

achieved as expeditiously as practicable, but in no case

later than February 19, 1994.”

Petitioner originally in 1990 operated under a civil

contract with the City of San Diego, California, said City

operating under an older National Pollutant Discharge

Elimination System permit (NPDES) to process its sewage.

That contract provided that petitioner’s company, Chino

Corona Farms (CCF), would subject the sewage to com-

posting on a reservation near Thermal, California. How-

ever, after several months of this operation, the huge

amount of sewage sludge being brought each day for

composting caused a backlog and in late Spring, 1992,

petitioner and CCF had the chance to transport some of

the excess sludge directly from the city’s sewage process-

ing plant at Fiesta Island, San Diego, to Mexicali, Mexico,

without composting it. In Mexicali, the sludge was used

as a fertilizer, and the City of San Diego acquiesced in

this Mexicali site because they decided that they had no

jurisdiction over it, and if the Mexican facility accepted it

for use as a fertilizer, no violations of laws of the United

States would ensue.

An important provision of the original contract

between the City of San Diego and CCF was:

“Contractor (CCF) hereby agrees to comply

with Title VII of the Civil Rights Act of 1964, as

amended, the California Fair Employment Prac-

tices Act, and any other applicable federal or state

laws and regulations hereinafter enacted, as well as

those requirements addressed by the City of San

Diego’s Equal Opportunity Program, recorded

with the City Clerk as Document RR-262633.”

That contract did not provide for criminal prosecu-

tion if it was breached, but instead went on to require:

“Contractor (CCF) understands that failure

to comply with the above cited laws and regula-

tions and/or falsely submitting information

under same laws and regulations may result in

termination of this contract and debarment from

awards of future city contracts for a period of

not less than one (1) nor more than two (2)

years.” (Govt. Trial Exhibit 2)

Returning, then, to the 40 CFR 503 legislation which

took effect 2-19-93, but which allowed a compliance

period of a year to the potential direct application of the

sewage sludge to land, it is important to note that this

was “federal law and regulation” enacted after the CCF-

City of San Diego contract, and after 2-19-93, petitioner

applied conforming, nonhazardous sewage sludge

directly to farmland in Imperial County, California.

Clearly the sewage sludge met the chemical require-

ments of Sections 503.10(a), (b)(1), 503.12, 503.13 (b)(3),

503.14, as found by the U.S. Ninth Circuit opinion at A-12:

“At trial, the district court allowed Cooper

to testify that he had relied on the federal regu-

lations, and to present expert testimony that the

Fiesta Island sewage sludge met federal stan-

dards for direct land application.”

Inasmuch as 40 CFR 503.10 (b)(1) provides:

“The general requirements in 503.12 and the

management practices in 503.14 do not apply

when bulk sewage sludge is applied to the land if the

bulk sewage sludge meets the pollutant concentra-

tions in 503.13(b)(3), the class A pathogen require-

ments in 503.32(a) and one of the vector attraction

reduction requirements in 503.33 (b)(1) through

(b)(8),”

as found by the U.S. Ninth Circuit supra, the sewage

sludge deposited after February 19, 1993, directly to the

farmland of Imperial County, California, met all chemi-

cal-pathogen-vector requirements, and thus the General

Requirements of 503.12 were waived, as were the man-

agement practices of 503.14.

The 40 CFR 503 federal legislation was newly

enacted, was lawfully complied with by petitioner on and

after Feb. 19, 1993, and it became the newly enacted law

of the land per the Supremacy Clause of Article VI of the

U.S. Constitution, which provides:

This Constitution, and the laws of the United

States which shall be made in pursuance thereof; and

all treaties made, or which shall be made, under

the authority of the United States, shall be the

supreme law of the land; and the judges in every

state shall be found thereby, any thing in the

Constitution or laws of any state to the contrary

notwithstanding.

Petitioner thus complied with the newly enacted law

of the land in 40 CFR 503 Sections 10, 12, & 14, and thus

was not in violation of the new law which now allowed

direct application of conforming sewage sludge to farm-

land as a fertilizer. Importantly the City need not have

been notified of the direct application.

Moreover, petitioner’s contract with the City of San

Diego set forth in Appendix “E,” specifically provided

that petitioner would comply with “any other applicable

federal laws and regulations hereinafter enacted.”

Certiorari should be granted to resolve that Article

VI, clause 2 of the U.S. Constitution permits, and indeed

requires, that the newly enacted, and chemical and scien-

tifically supported, federal law at 40 CFR 503 be accorded

full faith and credit as the law of the land. It is question-

able whether any thing other than a simple breach of

contract, of the CCF-City of San Diego Contract,

occurred, if that is even demonstrated, by petitioner’s

direct deposit of chemically benign sewage sludge to the

farmland of Imperial County California, after February

19, 1993.

Petitioner was convicted of an alleged violation of

the older NPDES permit by directly applying nonhazar-

dous, fully treated and conforming sewage sludge to

farmland without notifying the City. However, the subse-

quent national law under 40 CFR 503 excuses such notifica-

tion and allows said direct application.

Thus no federal law was violated by petitioner, and

federal law permitted petitioner’s direct application to

farmland.

Certiorari should be granted in this first interpreta-

tion of 40 CFR 503 and the supremacy clause of the

United States Constitution, a key and highly relevant

issue in the environmental legislation today.

ARGUMENT II

FEDERAL RULE OF CRIMINAL PROCEDURE 52

DOES NOT APPLY TO U.S. GOVERNMENT ATTOR-

NEY USE OF PERJURY IN FEDERAL TRIALS, WHERE

THAT PERJURY IS UNKNOWN TO THE DEFENSE,

BUT IS KNOWN, OR SHOULD BE KNOWN, TO THE

GOVERNMENT AND ITS COUNSEL; THE U.S.

COURT OF APPEALS WRONGLY REFUSED TO APPLY

THE COMMANDS OF UNITED STATES v. AGURS

(1976) 427 U.S. 97, 103, AND CASES CITED THEREIN

AT FOOTNOTE 8, ASSERTING THAT THE RULE OF

“PLAIN ERROR” FORECLOSED APPELLATE SCRU-

TINY OF THIS GOVERNMENT PERJURY AND SUP-

PRESSION OF EVIDENCE BECAUSE PETITIONER

COOPER “DID NOT ARGUE AT TRIAL THAT THE

GOVERNMENT PRESENTED PERJURED TESTI-

MONY.”

Very tundamental and inconsistent reasoning

allowed the U.S. Ninth Circuit to circumvent analysis of

clear government witness perjury by its use of rule 52,

Federal Rules of Criminal Procedure, i.e.:

FEDERAL RULE OF CRIMINAL PROCEDURE 32:

(a) Harmless error. Any error, defect, irreg-

ularity or variance which does not affect sub-

stantial rights shall be disregarded.

(b) Plain error. Plain errors or defects

affecting substantial rights may be noticed

although they were not brought to the attention

of the Court.

In fact, this clear government known perjury must be

evaluated by the continuous command of this court in

United States v. Agurs, 427 U.S. 97, 103:

The rule of Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215, arguably applies in

three quite different situations. Each involves

the discovery, after trial, of information which

had been known to the prosecution but

unknown to the defense.

In the first situation, typified by Mooney v. Holo-

han, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, the

undisclosed evidence demonstrates that the

prosecution’s case includes perjured testimony,

and that the prosecution knew, or should have

known, of the perjury. In a series of subsequent

cases, the Court has consistently held that a

conviction obtained by the knowing use of per-

jury is fundamentally unfair,5 and must be set

aside if there is any reasonable likelihood that the

false testimony could have affected the judgment of

the jury.”

8 Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214;

Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Miller v. Pate,

386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Giglio v. United States,

405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Donnelly v.

DeChristoforo, 416 U.S. 637, 94 S.Ct. 273, 38 L.Ed.2d 216.

The U.S. Ninth Circuit, in tersely dealing with this

key, material prejudicial perjury, and failure to correct it,

and the suppression of an F.B.I. report that proved it

perjured, stated at page A-9:

B. Perjured Testimony

[11] “If a prosecutor knowingly uses per-

jured testimony or knowingly fails to disclose

that testimony is false, the conviction must be

set aside if there is any reasonable likelihood

that the false testimony could have affected the

jury verdict.” Ortiz v. Stewart, 149 F.3d 923, 936

(9th Cir. 1998). Because Cooper did not argue at

trial that the government presented perjured

testimony, this court may review only if there

was plain error affecting substantial rights. Peo-

ple of Territory of Guam v. Veloria, 136 F.3d 648,

652 (9th Cir. 1998). If those conditions are met,

the appellate court may exercise its discretion to

review an error “only if... the error seriously

affects the fairness, integrity, or public reputa-

tion of judicial proceedings.” Id. (citing Johnson

v. United States, 520 U.S. 461, 467 (1997)).

[12] Here, even if we assume that Mier

committed perjury and the government knew of

it, the prejudice to Cooper was not great. Coo-

per’s attorney was able to impeach Mier exten-

sively with inconsistent statements. There was

no plain error.

Petitioner reviews these undisputed facts which

should show the significance and high materiality to this

perjury:

(1) Inter alia, petitioner was charged and convicted

of mail fraud occasioned by his company’s employees

mailing allegedly fraudulent “weigh slips” via the U.S.

Mails to the City of San Diego to secure, or attempt to

secure, payment for some $566,000 in fees due his corpo-

ration for actually hauling that much benign, nonhazar-

dous sewage sludge away from the City’s sewage

processing facility and depositing it, in full conformity

with the newly enacted 40 CFR 503 laws, directly on

farmland in Imperial County.

2. The government contended that petitioner will-

fully falsified the billing of this sewage sludge in a crimi-

nal agreement with the key chief government witness,

Manuel Mier, by causing the production and the mailing

of “weigh slips” for trucks that never had been weighed.

3. As stated at page A-9, the U.S. Ninth Circuit

found:

When the case went to trial, Mier was one of

the key witnesses against Cooper. On cross-

examination, the defense established that Mier

had told at least three conflicting stories about

how and where he had obtained the blank

weighmaster certificates used for the Mexicali

operation. First, in an FBI report from March

1996, Mier said that Cooper went to a print shop

in Mexicali by himself and later gave Mier a box

of weighmaster certificates. Second, testifying

before the grand jury in April 1996, Mier said

that he went into a print shop in Mexicali with

Cooper, translated for Cooper, and helped order

the weighmaster certificates. Third, at trial, Mier

testified that he went to a Mexicali print shop

with Cooper and another person (either “Bar-

illa” or “Padilla”), and that the three men

arranged for printing the certificates.

4. Irrespective of which one of these versions the

jury accepted, the true facts were that the F.B.I. had sent 3

agents to that print shop, and had learned that the print-

ing had not been done at that shop. This F.B.I. 302 report

of April 25, 1996, was suppressed from the defense at

trial, and was not discovered until current counsel

(appeal/certiorari) made inquiry of government trial

counsel, AUSA Melanie Pierson, why the F.B.I. had not

gone to that print shop and secured evidence that Mier

and petitioner had indeed had the printing of the weigh

slips done there. Upon this inquiry, AUSA Pierson ini-

tially disclosed the said F.B.I. report of April 25, 1996,

well after petitioner’s conviction.

It is clear that this report would have established key

government witness Manuel Mier a perjurer on any one

of the 3 different stories, all of which claimed to establish

petitioner as the securer of false weigh slips at that print

shop. (See appendix D for the April 25, 1996, F.B.I. 302

report suppressed from the defense, only disclosed after

trial, and for a companion 302, dated October 19, 1996,

establishing that the FBI had been told by Mier of the

identity, known to be false, of the situs of publishing).

While the U.S. Ninth Circuit addressed the “missing

document”, it, seemingly, was loathe to lay a perjury

finding on the heads of the government. It was to other-

wise claim that the suppressed FBI report was “not mate-

rial,” and because the defense was able to “impeach Mier

extensively,” there could be no added benefit to peti-

tioner and his counsel by use of an FBI report which

proved Mier a liar, with government knowledge, on any

one of the three stories, all of which claimed petitioner

had personally arranged for the false weigh slips. The

defense was, of course, that Mier had, apparently, with-

out petitioner’s knowledge, personally arranged for the

printing of the slips, had never caused the trucks to be

weighed, had received $5.00 per truck from petitioner,

and had pocketed the money. Indeed, petitioner

advanced $5.00 per each truck to be weighed, and fully

assumed that the lying government witness was causing

them to be weighed, because that was the only way that

petitioner could be paid for each ton of sewage sludge

removed from the City of San Diego.

The issue of the false weigh slips was, clearly, a trial

credibility issue between government perjurer Manuel

Mier and petitioner as to the mail counts, and, quite

plainly, the government, virtually solely via use of Mier,

illegally and unlawfully caused petitioner’s conviction.

This case travelled, therefore, under the U.S. v. Agurs-

Mooney v. Holohan-Brady v. Maryland canopy, which

requires this conviction to be set aside “if there is any

reasonable likelihood that the false testimony (and suppressed

FBI 302 report) could have affected the judgment of the jury.”

It is, clearly, not a F.R. Criminal Procedure 52 “plain

error” case, and certiorari should be granted to, once

again, make plain that government witness perjury will

not be tolerated. See, also, Mesarosh v. United States, 352

U.S. 1, 1 L.Ed.2d 1, 77 S.Ct. 1 (1956) for requirements

involving this Honorable Court’s Supervisory role over

the lower federal Courts.

The clearly applicable law, long ago, and consistently,

enunciated by this court, can be summarized from Napue

v. Illinois, 360 U.S. 264, 269 (1959):

First, it is established that a conviction

obtained through use of false evidence, known

to be such by representatives of the State, must

fall under the Fourteenth Amendment, Mooney

v. Holohan, 394 U.S. 103; Pyle v. Kansas, 317 U.S.

213; Curran v. Delaware, 359 F.2d 707. See New

York ex rel. Whitman v. Wilson, 318 U.S. 688, and

White v. Ragen, 324 U.S. 760. Compare Jones v.

;

Commonwealth, 97 F.2d 335, 338, with In re Saw-

yer’s Petition, 229 F.2d 805, 809. Cf. Mesarosh v.

United States, 352 U.S. 1. The same result obtains

when the State, although not soliciting false evi-

dence, allows it to go uncorrected when it

appears. Alcorta v. Texas, 355 U.S 28; United

States ex rel. Thompson v. Dye, 221 F.2d 763;

United States ex rel. Almeida v. Baldi, 195 F.2d 815;

United States ex rel. Montgomery v. Ragen, 86

F.Supp. 382. See generally annotation, 2 L.Ed.2d

1575.

The principle that a State may not know-

ingly use false evidence, including false testi-

mony, to obtain a tainted conviction, implicit in

any concept of ordered liberty does not cease to

apply merely because the false testimony goes

only to the credibility of the witness. The jury’s

estimate of the truthfulness and reliability of a

given witness may well be determinative of

guilt or innocence, and it is upon such subtle

factors as the possible interest of the witness in

testifying falsely that a defendant's life or lib-

erty may depend. As stated by the New York

Court of Appeals in a case very similar to this

one, People v. Savvides, 1 N.Y.2d 554, 557: 136

N.E.2d 853, 854-855; 154 N.Y.S.2d 885, 887:

“It is of no consequence that the false-

hood bore upon the witness’ credibility

rather than directly upon defendant's guilt.

A lie is a lie, no matter what its subject, and,

if it is in any way relevant to the case, the

district attorney has the responsibility and

duty to correct what he knows to be false

and elicit the truth. . . . That the district

attorney’s silence was not the result of guile

or a desire to prejudice matters little, for its

impact was the same, preventing, as it did, a

trial that could in any real sense be termed

fair.”

In reality, the issue of the false “weigh slips” was

simply a trial credibility issue between petitioner and

Manuel Mier, and government perjury and suppression

of evidence affecting Mier’s credibility must lead to the

conclusion that “there is a reasonable, likelihood that the

false testimony could have affected the judgment of the

jury,” a standard that the U.S. Ninth Circuit failed to

address due to their erroneous diversion to F.R. Criminal

Procedure 52.

Certiorari should be granted to enunciate, on a

national basis, whether F.R.Crim. Proc. 52 applies at all to

deny an appellate attack on prosecution witness perjury,

that perjury only being discovered, after trial and convic-

tion.

This appears to be a case of first impression in review

of federal convictions obtained in part by the knowing

use of perjury.

ARGUMENT III

CERTIORARI SHOULD BE GRANTED TO SET

NATIONAL FEDERAL STANDARDS THAT MUST

GOVERN MANDATORY DISCLOSURE OF “DEALS”

BY ASSISTANT U.S. ATTORNEYS PRESENTING KEY,

MATERIAL EVIDENCE VIA INDICTABLE FEDERAL

CRIMINALS WHO DENY, UNDER OATH, THAT ANY

“DEAL” HAD BEEN GIVEN TO THEM IN EXCHANGE

FOR THEIR TESTIMONY; SEE GIGLIO v. UNITED

STATES, 405 U.S. 150; DEMARCO v. UNITED STATES,

415 U.S. 449.

The government prosecuted petitioner Cooper on key

counts of his trial largely, and solely, via one Manuel

Mier, the person hired to supervise the hauling of sewage

sludge from San Diego into the Republic of Mexico in

1992. While petitioner was not prosecuted for illegal

transport of sewage sludge into Mexico, for the avowed

rationale of no jurisdiction as to any claim of illegal

deposit in a foreign country, petitioner was charged with

counts of 18 U.S.C. 1341, mail fraud, stemming from his

mailing of allegedly fraudulent “weigh slips” to the City

of San Diego to obtain payment for transporting of this

sewage sludge. As the Ninth Circuit opinion makes clear,

Manuel Mier “faced potential criminal prosecution in the

United States” for his several crimes, including 18 U.S.C.

1001, lying to the FBI as to the circumstances of how the

weigh slips were printed; 18 U.S.C. 1623, his lying to the

Grand Jury; and his admission, at trial, of falsely filling

out literally dozens and dozens of weigh slips without

causing the weighing of the trucks in 1992-1993.

The assistant U.S. Attorney in this case, Melanie K.

Pierson, had the FBI subpoena Mier from Mexico to San

Diego, California, on two separate occasions: (i) for his

April 4, 1996, testimony before the grand jury, and (ii) his

testimony at petitioner’s 1997 trial. On each occasion

AUSA Pierson knew of indictable crimes admittedly com-

mitted by Manuel Mier, and at both the grand jury and at

trial, willfully allowed Mier to commit perjury, knowing

that perjury to be occurring. At no time was Mier

arrested, charged, indicted, or tried for his admitted

crime of falsifying weigh slips, nor for his known crimes

of 18 U.S.C. 1001, lying to the FBI, 18 U.S.C. 1623, lying

before the grand jury, and his lying at the trial of this

petitioner.

When asked about any “deal,” Mier denied that such

a “deal” had been made to him. AUSA Pierson failed to

correct this perjury, for it is clear that AUSA Pierson and

her superior, the U.S. Attorney for the Southern District

of California, San Diego, had made a decision to not

charge Manuel Mier for any crime at all, in turn for his

known perjured testimony before the U.S. grand jury on

April 4, 1996, and for his 1997 trial testimony leading to

the convictions of this petitioner.

It is unconscionable to believe that the government

would bring Mexican citizen Mier into the United States

on two occasions, knowing him to be indictable for

already committed crimes, and then eliciting perjury

from him at petitioner’s trial, and failing to disclose that

the government had already decided that they were not

going to arrest him, charge him, indict him, or bring him

to trial for any of these crimes.

While the Assistant U.S. Attorney knew the truth, she

failed to disclose these facts to the trial jury, allowed Mier

to deny any “deal” had been made to him, and thus

violated the general tenets of Giglio v. United States, 405

U.S. 150, 154 (1972) and DeMarco v. United States, 415 U.S.

449 (1974). A new government ploy may readily be seen

to surface here — the government does not overtly tell a

prospective witness of his/her serious criminal viola-

:ons, and thus, as here, leads an ignorant foreigner to not

realize his extensive criminal behavior and potential

charges and indictments, and thus need never give him

an “overt” deal; but the lay jury is not made aware of this

decision, and is thus falsely led to believe the key mate-

rial government witness is telling the truth because he,

himself, is admitting to some criminal behavior, in spite

of, potentially awaiting to be charged with those crimes

upon his conclusion of testimony.

In view of the clear-cut indication that the govern-

ment had made a “deal” with Manuel Mier, even assum-

ing that their decision was not formally conveyed to Mier

(one would think that Mier should have at least received

warnings pursuant to Miranda v. Arizona (1966) 384 U.S.

436 before he was interrogated before the jury, confessing

his criminal behavior, if the government had decided to

prosecute him!!), the U.S. Ninth Circuit tersely held at

page A-19, C. Immunity Agreement:

“Cooper contends that the government

improperly failed to disclose an immunity

agreement with Mier. The government denies

that it had an agreement with Mier. This court

reviews de novo alleged violations of the gov-

ernment’s obligation to disclose leniency agree-

ments with prosecution witnesses. United States

v. Brady, 67 F.3d 1421, 1428 (9th Cir. 1995); see

Giglio v. United States, 405 U.S. 150, 154 (1972).

As the defense established at trial, Mier’s cred-

ibility was shaky at best. He faced potential criminal

prosecution in the United States, so it seems unlikely

that he would return to testify only because he

wanted to tell the truth. This, however, is at most

circumstantial evidence of an immunity agree-

ment with Mier. A defendant must present more

direct evidence of an agreement to justify rever-

sal on this ground. See United States v. Ramirez,

608 F.2d 1261, 1266-67 (9th Cir. 1979).”

The only problem with this highly questionable

“analysis” is that only two people knew and held the

truth - Mier and Assistant U.S. Attorney Pierson, and one

denied the agreement, the second remained mute; balanc-

ing this conspiracy of silence is the fact that Mier “faced

potential prosecution in the United States,” and was

never, never, never arrested, indicted, or tried, and in this

month of August, 1999, some 6 years later, he has never

been so charged, a grateful United States embracing his

perjury against petitioner with thanks and no criminal

charges. Where, as here, the defense is not privy to the

agreement, and it is suppressed, certiorari should be

granted to provide nationwide guidelines that require

disclosure of any inter-office U.S. Attorney agreement not

to prosecute an obvious criminal called as a government

witness, whether or not any overt agreement was con-

veyed to that perjuring witness or not.

A key and material re-examination and extension of

Giglio v. United States, 405 U.S. 150, 154 is in order.

In this resolution of suppression of a “deal,” the

United States Court of Appeals has decided an important

federal question in a way that conflicts with the general

scope of Giglio v. United States, 405 U.S. 150, 154 (1972), as

to call for this Court’s supervisory power, within the

meaning of Mesarosh v. United States, 352 U.S. 1, 1 L.Ed.2d

1, 77 S.Ct. 1 (1956).

Certiorari should be granted, as a significant and

misapprehended distortion of the Giglio-DeMarco man-

date is presented in this published opinion of the U.S.

Ninth Circuit.

ARGUMENT IV

CERTIORARI SHOULD BE GRANTED TO RESOLVE

AN ISSUE UNDER THE UNITED STATES SENTENC-

ING GUIDELINES 2 F 1.1(b)(1)(K), AN ISSUE OF

FIRST IMPRESSION THAT HAS NOT BEEN, BUT

SHOULD BE SETTLED BY THIS COURT: WHETHER

AN EFFORT TO COLLECT FOR SEWAGE SLUDGE

LAWFULLY TRANSPORTED IN BEHALF OF A CITY

AND LAWFULLY APPLIED TO LAND UNDER FED-

ERAL LAW 40 CFR 503 et seq. CAN BE TERMED AS

AN INTENT TO DEFRAUD THAT SAME CITY OUT

OF OVER $500,000 AND THUS CAUSE AN ELEVA-

TION OF TEN POINTS IN THE U.S.S.G., AND A VERY

ELEVATED FEDERAL PRISON SENTENCE?

While the United States Court of Appeals embraced

many different and separate elevations in the ultimate

sentence imposed on petitioner, one of these stands out —

an elevation of 10 points for the “intent” to defraud the

City out of over $500,000 in fees owed to petitioner’s

corporation, Chino Corona Farms, for the true removal of

that amount of sewage sludge and the deposit of it on

farmland of Imperial County, California in conformance

with and pursuant to the federal statutes which took

effect on February 19, 1993, 40 CFR 503, petitioner imme-

diately being able to comply with that statute.

The law of the environment is, of course, of great

interest today, and this petition raises issues which

should elucidate key and newly enacted federal laws

which effect all sewage disposal throughout the United

States. Petitioner has addressed the failure of the lower

federal courts to honor the Supremacy Clause in relegat-

ing 40 CFR 503 to a subservient position to a so-called

“permit”, where 40 CFR 503 specifically addresses that

NPDES permit in excusing the notification section of the

permit where, as here, the sewage sludge met the chemi-

cal, pathogen, and vector limits of 503.

Here the great and significant sentence imposed on

this petitioner for a crime that he did not commit because

of the superseding law is addressed, requiring an inter-

pretation of section 2 F 1.1 (b)(1)(K) of the guidelines, an

important question of federal law that has not been, but

should be, settled by this Court. A panel of the Ninth

Circuit, inter alia, has ruled that a federal defendant

convicted of a crime involving fraud can be sentenced

under the larger of what actually was taken vis-a-vis what

was intended to be taken. See, e.g., United States v. Shaw, 3

F.3d 311 (9th Cir. 1993). At bar, clearly the City of San

Diego was not defrauded out of anything, since they

refused to pay petitioner’s bills; the error stems from a

claim that petitioner’s effort to collect his lawfully earned

money is somehow an “intent to defraud”, and that he

should, therefore, be elevated 10 points in the sentencing

table.

This clear error requires a grant of Certiorari to inter-

pret this section, and others, of the U.S.S.G. that affected

the imposed sentence of 51 months.

CONCLUSION

For any one of the four key and de novo issues of this

Petition, all raising important questions of federal law

that has not been, but should be, settled by this court,

Certiorari should be granted to the United States Court of

Appeals for the Ninth Circuit.

Dated: August 20, 1999

Respectfully submitted,

Rocer S. HANSON

Counsel to Petitioner

Member of the Bar

United States

Supreme Court

A-1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 97-50296

UNitep States OF AMERICA, :

Plaintiff-Appellee, D.C. No.

96-0804-JNK

OPINION

Gordon Paut Cooper,

Defendant-Appellant.

eee eee eee

Appeal from the United States District Court

for the Southern District of California

Judith N. Keep, District Judge, Presiding

Argued and Submitted

May 8, 1998 - Pasadena, California

Filed April 9, 1999

Before: William C. Canby, Jr. and Andrew J. Kleinfeld,

Circuit Judges, and Owen M. Panner, District Judge.*

Opinion by Judge Panner

COUNSEL

Roger S. Hanson, Santa Ana, California, for the defen-

dant-appellant.

Melanie K. Pierson, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

* The Honorable Owen M. Panner, Senior United States

District Judge for the District of Oregon, sitting by designation

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OPINION

PANNER, District Judge:

Gordon Paul Cooper appeals his convictions and sen-

tence after a jury found him guilty of conspiracy, 18

U.S.C. § 371; aiding and abetting the unlawful disposal of

sewage sludge, 33 U.S.C. §§ 1319(c)(2)(A) and 1342; and

mail fraud, 18 U.S.C. § 1341. Cooper contends that he

complied with federal regulations governing sewage

sludge; that he cannot be criminally liable for violating a

permit to which he was not a party; that the Clean Water

Act is void for vagueness as applied; that the prosecution

failed to disclose an exculpatory FBI report; that a gov-

ernment witness falsely testified that he had no agree-

ment with the government; that the prosecutor

committed misconduct during final argument; and that

the district court improperly enhanced the sentence.

We affirm.

BACKGROUND

Cooper has been in the business of hauling sewage

sludge for more than thirty years. In 1986, Cooper and

Larry Vaughan incorporated Chino Corona Farms (CCF)

in San Juan Capistrano, California. CCF transported,

composted, and sold sewage sludge from several small

cities.

Cooper was CCF’s secretary-treasurer and Vaughan

was its president. The district court described Cooper as

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the “nuts-and-bolts guy” who knew the business of han-

dling sewage sludge, while Vaughan was the “book-

keeper partner” who stayed in CCF’s office handling the

finances.

The City of San Diego (the City) was shipping its raw

sewage to a treatment site on Fiesta Island, where the

sewage was partially dried but not composted. The City

processed its sewage under a National Pollutant Dis-

charge Elimination System (NPDES) permit issued by the

California Regional Water Quality Board, San Diego

Region (the Water Board). The NPDES permit required

that the City “give prior written notice .. . of any

change(s) planned in the discharger’s [i.e., the City’s]

sludge use or disposal practice.” The NPDES permit also

required that the City regularly report on its disposal of

sewage sludge, describing the location, the rate of appli-

cation in pounds per acre per year, and subsequent uses

of the land.

In 1990, the City awarded CCF a contract to remove

sewage sludge from Fiesta Island. CCF agreed to trans-

port sewage sludge for about $20 per ton (later raised to

about $24 at CCF’s request) to Thermal, California, where

CCF would compost the sludge. Because the City paid

CCF by weight, the contract required that CCF submit

weighmaster certificates (also called weigh or weight

tickets) to verify the weight of sludge in each truckload.

Weighmaster certificates are an official record of a truck’s

gross weight and the weight of its cargo. Valid weighmas-

ter certificates are produced by a licensed scale and

signed by the scale’s operator. Cooper was convicted of

mail fraud partly because CCF used false weighmaster

certificates.

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The contract required that CCF “obtain City approval

to haul to the proposed site for which the required docu-

mentation has been submitted.” CCF was required to

submit bills of lading to show each truckload’s ultimate

destination. The contract did not refer to the City’s

NPDES permit.

CCF retained an attorney, James W. Anderson, who

had experience on a Water Board, to determine whether

CCF needed a permit to treat sewage sludge at its Ther-

mal site. Anderson, who worked with Cooper, negotiated

a memorandum of agreement with the governing Water

Board. No permit was required. CCF voluntarily agreed

to take precautions, such as building berms and drainage

controls, to keep sewage sludge from entering surface or

ground waters.

Soon after it began hauling for the City, CCF was

overwhelmed by the volume of sewage sludge. CCF’s site

manager testified at trial that CCF received more sewage

sludge each day at the Thermal site than it could compost

in a month.

To prevent a further backlog of sewage sludge at the

Thermal site, Cooper arranged to haul sludge directly

from Fiesta Island to Mexicali, Mexico, without compost-

ing it at Thermal. In late spring 1992, after obtaining

permission from authorities in Mexico, Cooper sought

approval from the City and the Water Board. The City

and Water Board accepted the Mexicali site because they

decided they had no jurisdiction over it.

Cooper hired Manuel Mier, a citizen of Mexico, to

supervise truckers hauling sludge from Fiesta Island to

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Mexicali. CCF paid Mier $500 a week plus expenses. Mier

reported only to Cooper.

When CCF first hired a trucking company to haul

sludge from Fiesta Island to its Thermal site, CCF paid by

weight and required weighmaster certificates. According

to Mier, however, that changed when CCF began hauling

sludge to Mexicali. Mier testified that Cooper told him

not to have the trucks weighed. Instead, Cooper

instructed him to create phony weighmaster certificates

using blank forms Cooper supplied. Mier was to write in

a fabricated cargo weight so that the gross weight of the

truck would be no more than 80,000 pounds, which Mier

understood to be the maximum allowed by California

law. Mier (or others who helped him) wrote in Mier’s

name and signature as the deputy weighmaster. Mier

then used the false weighmaster certificates to prepare

invoices for billing the City.

Mier also testified that he mailed or personally deliv-

ered completed weighmaster certificates and invoices to

Cooper. Cooper testified that he often received envelopes

from Mier, but never looked at the weighmaster certifi-

cates inside them.

In spring 1993, after Mexican authorities detained

trucks carrying sewage sludge for CCF, Cooper decided

that he needed a different site for sludge disposal.

Cooper knew that in February 1993, effective February

1994, the United States Environmental Protection Agency

(EPA) had issued new regulations governing the land

application of sewage sludge. 40 C.F.R. Part 503. The new

regulations provided that if sewage sludge met standards

for pathogens, trace minerals, and “vector attraction”

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(i.e., attraction to rats or insects), the sludge could be

applied directly to agricultural land as fertilizer with few

restrictions. Cooper obtained an analysis of Fiesta Island

sewage sludge, showing that the sludge met the new

regulations’ highest standards for sludge. Cooper con-

cluded that the federal regulations authorized him to

apply the sewage sludge directly to agricultural land.

For his new site, Cooper chose a farm owned by Jay

Mason near Seeley, California, in Imperial County. Mason

had purchased hundreds of tons of composted sludge

from CCF’s Thermal site. Cooper did not notify the City

or the Water Board of his new site. Cooper testified that

he did telephone the EPA’s regional “sludge coordinator”

about obtaining a permit for the Mason farm operation,

and was told that no permit was required. There was no

documentation or follow-up correspondence concerning

Cooper's telephone call to the EPA.

The Planning Director for Imperial County, Urich

Heuberger, testified that in spring 1993, CCF had asked

about obtaining a conditional use permit for applying

composted sewage sludge from CCF’s Thermal site to

certain agricultural land in the county. When Heuberger

learned about the application of uncomposted sewage

sludge at the Mason farm, he ordered CCF to stop apply-

ing sludge to county farm land without a permit.

By shipping sewage sludge directly from Fiesta

Island to Mason’s farm, CCF saved the expense of com-

posting the sludge at the Thermal site, as well as the cost

of shipping to and from Thermal. Cooper told Mason that

rather than charge him for the sewage sludge, CCF would

pay five dollars for each ton applied to his farm. Cooper

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assured Mason that he had permits for the sludge and

that it was harmless.

Cooper arranged for trucks to leave Fiesta Island in

the late afternoon so they arrived at the Mason farm

during twilight. The sludge was immediately worked into

the soil. Cooper testified that CCF hauled sludge at night

to avoid traffic and to prevent sunlight from dissipating

nitrogen.

During the several weeks in March and April 1993

that CCF shipped Fiesta Island sewage sludge to the

Mason farm, Mier submitted weighmaster certificates to

CCF indicating that the sludge was still being shipped to

Mexicali. Mier testified that he did so under orders from

Cooper. CCF sent the false weighmaster certificates to the

City to support its invoices.

The owners of the two trucking companies that

hauled sewage sludge for CCF to the Mason farm testi-

fied that Cooper paid them by the truckload, not by

weight. Cooper did not ask them to weigh the truckloads.

A foreman for one of the trucking companies testified

that Cooper refused his offer to weigh trucks.

In late April 1993, acting on a tip from Russell Rod-

vold, the owner of a trucking company, city employees

followed a truck hauling sewage sludge for CCF from

Fiesta Island to the farm in Imperial County. When the

City’s auditors discovered that CCF had lied about the

Sludge’s destination, they examined CCF’s invoices and

realized that the weighmaster certificates were false. The

City Auditor found that out of about 1,500 weighmaster

certificates submitted by CCF listing truckloads sent to

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Mexicali, about 425 truckloads, or 10,000 tons of sewage

sludge, were dumped at the Mason farm.

When the City canceled its contract with CCF,

Vaughan and others at CCF immediately blamed Cooper

for the fiasco. A letter dated May 4, 1993, signed by

Cooper and addressed to Vaughan, CCF’s president,

stated:

Due to the problems with Contract # B1216/90

with the City of San Diego, problems which

have arisen directly through my actions, I

hereby tender my resignation as Director and

officer of Chino-Corona Farms, Inc., a California

corporation, efefective [sic] immediately.

I acknowledge that the decisions I made with

regard to the diversion of wet biosolids material

from the City of San Diego directly to agri-

cultural users in Imperial [C]ounty were my

own and done without the knowledge of the

other directors or officers of Chino-Corona

Farms, Inc.

At trial, Cooper testified that he did not write the letter

and that its statements were false. He said that he signed

the letter only because Vaughan told him the City would

pay CCF about $566,000 for outstanding invoices if

Cooper resigned. The letter did not save CCF. When the

City wouldn’t pay CCF, CCF couldn’t pay what it owed

the trucking companies, and it was forced out of busi-

ness.

The FBI investigated CCF. During a search of CCF’s

offices pursuant to a warrant, an FBI agent, Jennifer

Esposito, showed Cooper a copy of the City’s NPDES

permit. Esposito testified at trial that Cooper thumbed

cid eRe 5 aceite Mie Da 38

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through the NPDES permit and appeared familiar with it,

referring to it as a Water Board permit. Esposito testified

that Cooper said “he was aware that Chino Corona Farms

was required to report all sites where they dumped

sludge taken from Fiesta Island to the Regional Water

Quality Control Board and the City of San Diego.”

When the case went to trial, Mier was one of the key

Witnesses against Cooper. On cross-examination, the

defense established that Mier had told at least three con-

flicting stories about how and where he had obtained the

blank weighmaster certificates used for the Mexicali

operation. First, in an FBI report from March 1996, Mier

said that Cooper went to a print shop in Mexicali by

himself and later gave Mier a box of weighmaster certifi-

cates. Second, testifying before the grand jury in April

1996, Mier said that he went into a print shop in Mexicali

with Cooper, translated for Cooper, and helped order the

weighmaster certificates. Third, at trial, Mier testified

that he went to a Mexicali print shop with Cooper and

another person (either “Barilla” or “Padilla”), and that

the three men arranged for printing the certificates.

Mier conceded that he had signed weighmaster cer-

tificates knowing that they were false. The defense also

pointed out that Mier testified to the grand jury that he

had estimated truckload weights without Cooper's

knowledge on the assumption that Cooper would

approve. The defense showed that CCF reimbursed Mier

$5.00 for each truckload weighed, giving Mier an incen-

tive to use false weighmaster certificates and pocket up to

$200 a day. Mier admitted that during the Mason farm

project, he had driven a truck himself, earning $300 per

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truckload, even though as supervisor he should not have

been driving.

The detense was missing a document that would

have further impeached Mier: an FBI report stating that a

Mexicali print shop, identified by Mier as having pro-

duced the weighmaster certificates, had no records or

knowledge of the certificates. The defense did not learn

about the FBI report until after the trial.

Cooper testified at trial. He denied telling Mier to

make false entries in weighmaster certificates. Cooper

testified that he never looked at the weighmaster certifi-

cates before they were sent to the City with invoices. He

stated that anyone familiar with legitimate weighmaster

certificates would have noticed obvious discrepancies in

those submitted by Mier. For example, Mier’s certificates

gave weights in single pound increments, more accu-

rately than any truck scale. They were also numbered in

sequence, while certificates normally would have gaps in

the sequence because of other trucks being weighed.

Cooper denied seeking permission to transport sew-

age sludge to Mexicali. Witnesses from the City and

Water Board contradicted that testimony, and the pros-

ecution produced a letter from the Water Board, dated

June 1992, addressed personally to Cooper at CCF. The

letter stated that it was “in response to your verbal [i.e.,

oral] request for approval to transport sewage sludge to

Mexico.” Cooper also denied talking to Heuberger, the

planner for Imperial County.

Cooper denied telling Esposito, the FBI agent, that he

was familiar with the City’s NPDES permit. As the dis-

trict court summarized Cooper’s testimony, Cooper

wt Rae? Say ied Sal Nate ride

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blamed Mier and Vaughan for the false weighmaster cer-

tificates, while depicting himself as “just the dummy that

they all danced around.”

Besides Mier’s testimony, the prosecution presented

evidence and testimony that contradicted Cooper’s testi-

mony. Russell Rodvold, the trucking company owner

who later tipped off the City that CCF was shipping

sludge to the Mason farm, had hauled sludge for CCF to

the Thermal site when CCF was paying by weight. Rod-

vold testified that when he complained to Cooper that it

was taking too long to dump sludge, Cooper suggested

that Rodvold drive his trucks over the scales more than

once to generate false weighmaster certificates for addi-

tional payments. Rodvold refused, considering the prac-

tice fraudulent. At trial, Cooper admitted making the

suggestion.

The manager for another trucking company testified

that she was surprised to learn that CCF had used her

business address as the address of the certified scale on

weighmaster certificates. When she confronted Cooper,

he told her that he was aware of it and that she should

not worry. At trial, Cooper denied talking to the owner

about the certificate.

The jury convicted Cooper on all five counts of the

indictment. After a sentencing hearing, the district court

adopted the presentence report's recommendations and

sentenced Cooper to fifty-one months’ imprisonment.

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DISCUSSION

I. Preliminary Legal Issues

The district court denied Cooper’s motion to dismiss

the indictment. This court reviews the district court's

rulings on legal issues de novo. United States v. Lester, 85

F.3d 1409, 1410 (9th Cir. 1996).

A. Federal Regulations Do Not Supersede the

NPDES Permit

Cooper argues that he did not need approval from

the City or the Water Board to apply sewage sludge

directly to the Mason farm because federal regulations

preempted or superseded the notice requirements of the

City’s NPDES permit. At trial, the district court allowed

Cooper to testify that he had relied on the federal regula-

tions, and to present expert testimony that the Fiesta

Island sewage sludge met federal standards for direct

land application.

We agree with the district court that Cooper erro-

neously assumes that the federal sewage sludge regula-

tions relieved him of a duty to comply with the City’s

NPDES permit. By their own terms, the regulations do

not usurp local control over the disposal of sewage

sludge. See 40 C.F.R. § 503.5(b) (“Nothing in this part

precludes a State or political subdivision thereof... from

imposing requirements for the use or disposal of sewage

sludge more stringent than the requirements in this part

or from imposing additional requirements for the use or

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disposal of sewage sludge.”). The Clean Water Act pre-

serves local control. See 33 U.S.C. § 1345(e) (“The deter-

mination of the manner of disposal or use of sludge is a

local determination.”). The regulations encourage direct

land application of sewage sludge, but they do not

require that states or local governments allow it. See

Welch v. Board of Supervisors, 888 F.Supp. 753, 758 (W.D.

Va. 1995) (EPA’s “mere preference [for land application] is

vastly different from legislation forcing states and

localities to permit land application”). The district court

properly concluded that the federal regulations do not

supersede the NPDES permit.

B. Non-Permittees May Be Liable for Violating a

Permit

Cooper argues that he cannot be liable for violating

the City’s NPDES permit because he was not a party to

the permit. He contends that the government has crimi-

nalized conduct that at worst was a breach of CCF’s

contract with the City.

The Clean Water Act imposes criminal liability on

“[ajny person who knowingly violates . . . any permit

condition or limitation implementing any of such sections

[of the Act] in a permit issued under section 1342 of this

title.” 33 U.S.C. § 1319(c)(2)(A). For Cooper to be crimi-

nally liable, there first must be a valid NPDES permit.

The government presented evidence that the Water

Board, acting under authority delegated by the EPA,

properly issued the City’s NPDES permit. See 33 U.S.C.

§ 1342(b) (state or regional agency may administer

NPDES permits if state or regional regulatory scheme

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meets federal criteria); Russian River Watershed Protection

Comm. v. City of Santa Rosa, 142 F.3d 1136, 1138-39 (9th

Cir. 1998) (describing statutory authority for Water

Board).

The statute imposes criminal liability on “/a]ny person

who knowingly violates” a permit condition. 33 U.S.C.

§ 1319(c)(2) (emphasis added). The phrase “any person”

is broad enough to cover permittees and non-permittees

alike. See United States v. Brittain, 931 F.2d 1413, 1419 (10th

Cir. 1991); United States v. Iverson, 162 F.3d 1015, 1025 (9th

Cir. 1998) (“person” includes “any responsible corporate

officer,” 33 U.S.C. § 1319(c)(6), which includes a person

who “has authority to exercise control over the corpora-

tion’s activity that is causing the discharges”).

The government also had to establish beyond a rea-

sonable doubt that Cooper knowingly violated a condi-

tion of the NPDES permit. We need not resolve whether

our law requires the government to prove that Cooper,

who was not the permittee, knew of the permit and its

requirements. See United States v. Weitzenhoff, 35 F.3d

1275, 1284 n.5 (9th Cir. 1994) (as amended). Here, the

district court held the government to the higher standard,

instructing the jury that Cooper “must know his conduct

violates the City’s permit.”

Under this higher standard, there was ample evi-

dence of Cooper’s knowledge of the NPDES permit and

its application to his conduct. Municipal sources of sew-

age sludge must operate under NPDES permits. Cooper,

who had transported sewage sludge for thirty years and

considered himself an expert on the subject, could hardly

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be ignorant of NPDES permits. Cf. United States v. Interna-

tional Minerals & Chem. Corp., 402 U.S. 558, 565 (1971)

(persons dealing with “obnoxious waste materials” “must

be presumed” to be aware of applicable regulations).

Cooper obtained legal advice to determine whether a

permit was required when CCF was composting Fiesta

Island sewage sludge at its Thermal site. Cooper sought

approval from the City and the Water Board when he

wanted to transport sludge to Mexicali, evidence that he

knew about the NPDES permit and its application to him.

An FBI agent testified that when she showed Cooper the

City’s NPDES permit, he thumbed through it and said he

knew what it was. The evidence was sufficient to estab-

lish that Cooper knowingly caused a violation of the

City’s NPDES permit, making him criminally liable under

§ 1319(c)(2).

C. The Clean Water Act Provisions Are Not Vague

as Applied

Cooper argues that 33 U.S.C. §§ 1319 and 1342 are

void for vagueness as applied because the statutes do not

distinguish between different grades of sewage sludge,

which range from raw sewage to the more processed

sewage sludge at issue here.

This court reviews de novo whether a law is void for

vagueness. United States v. Hockings, 129 F.3d 1069, 1070

(9th Cir. 1997). “A criminal Statute is not vague if a

‘reasonable person of ordinary intelligence’ would under-

stand what conduct the statute prohibits.” Iverson, 162

F.3d at 1021 (quoting Easyriders Freedom F.1.G.H.T. v.

Hannigan, 92 F.3d 1486, 1493 (9th Cir. 1996)). “[W]here, as

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here, a criminal statute regulates economic activity, it

generally ‘is subject to a less strict vagueness test,

because its subject matter is more often narrow and

because businesses can be expected to consult relevant

legislation in advance of action.’” Id. (quoting United

States v. Doremus, 888 F.2d 630, 634 (9th Cir. 1989)). “[A]

scienter requirement may mitigate a law’s vagueness,

especially with respect to the adequacy of notice to the

complainant that his conduct is proscribed.” Village of

Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S.

489, 499 (1982).

The Clean Water Act defines “sewage sludge” as a

“pollutant.” 33 U.S.C. § 1362(6). A reasonable person who

read the statutory definition and the City’s NPDES per-

mit would not conclude that the federal regulations

encouraging land application of sewage sludge create an

ambiguity in the statutory definition. The district court

correctly concluded that § 1319(c)(2)(A) was not void for

vagueness as applied.

Cooper argues that CCF’s contract with the City

requires that CCF comply with later enacted federal regu-

lations. This argument is meritless. Cooper's actions did

not comply with the new regulations because the new

regulations did not supersede the City’s NPDES permit

requirements.

II. Use of Manuel Mier as a Witness

Cooper contends that the government’s use of Mier

as a witness requires reversal because (1) the government

failed to turn over an exculpatory FBI report concerning

Mier, violating its obligation under Brady v. Maryland, 373

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U.S. 83 (1963); (2) the government allowed Mier to com-

mit perjury; and (3) the government failed to disclose an

immunity agreement with Mier.

A. FBI Report

Cooper claims that the government violated his

rights under Brady by concealing an exculpatory FBI

report. The government contends that the FBI report was

available before trial for defense review, and that the

report was not material.

To prevail on his Brady claim, Cooper must show that

“(1) the evidence was exculpatory or impeaching; (2) it

should have been, but was not produced; and (3) the

suppressed evidence was material to his guilt or punish-

ment.” Paradis v. Arave, 130 F.3d 385, 392 (9th Cir. 1997)

(citing United States v. Steinberg, 99 F.3d 1486, 1489 (9th

Cir. 1996)). Evidence is material under Brady only if there

is a reasonable probability that the result of the proceed-

ing would have been different had it been disclosed to

the defense. United States v. Service Deli, Inc., 151 F.3d 938,

943 (9th Cir. 1998). “The question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995).

Here, the FBI report stated that an investigation of

the Mexicali print shop identified by Mier as the source

of weighmaster certificates revealed no evidence that the

print shop had ever printed for Cooper, Mier, or CCF. The

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report would have impeached Mier, a government wit-

ness, so the first part of the Brady test is met. Service Deli,

151 F.3d at 943.

The parties dispute whether the government prop-

erly disclosed the report. The district court was not able

to resolve the factual dispute.

Remand for an evidentiary hearing on disclosure is

unnecessary, however, because the FBI report was not

material. The defense was able to impeach Mier exten-

sively. The defense established both through cross-exam-

ining Mier and through direct examination of Strange

that Mier gave conflicting versions of events to FBI

agents, to the grand jury, and at trial. The defense showed

that Mier had an economic motive for falsifying the

weighmaster certificates. The defense was also able to

argue that Mier was lying when he denied the existence

of an agreement with the government. One additional

item of impeachment, showing that Mier lied about the

source of blank weighmaster certificates, could not dam-

age Mier’s credibility much more than it already had

been.

There was ample evidence of Cooper’s guilt even

without Mier’s testimony. Given the already extensive

impeachment of Mier and the independent evidence of

Cooper’s guilt, we conclude that the FBI report does not

“put the whole case in such a different light as to under-

mine confidence in the verdict.” Kyles, 514 U.S. at 435.

The government’s case did not rise or fall on Mier’s

credibility.

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B. Perjured Testimony

“If a prosecutor knowingly uses perjured testimony

or knowingly fails to disclose that testimony is false, the

conviction must be set aside if there is any reasonable

likelihood that the false testimony could have affected the

jury verdict.” Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir.

1998). Because Cooper did not argue at trial that the

government presented perjured testimony, this court may

review only if there was plain error affecting substantial

rights. People of Territory of Guam v. Veloria, 136 F.3d 648,

652 (9th Cir. 1998). If those conditions are met, the appel-

late court may exercise its discretion to review an error

“only if... the error seriously affects the fairness, integ-

rity, or public reputation of judicial proceedings.” Id.

(citing Johnson v. United States, 520 US. 461, 467 (1997)).

Here, even if we assume that Mier committed perjury

and the government knew of it, the prejudice to Cooper

was not great. Cooper’s attorney was able to impeach

Mier extensively with inconsistent statements. There was

no plain error.

C. Immunity Agreement

Cooper contends that the government improperly

failed to disclose an immunity agreement with Mier. The

government denies that it had an agreement with Mier.

This court reviews de novo alleged violations of the

government's obligation to disclose leniency agreements

with prosecution witnesses. United States v. Bracy, 67 F.3d

1421, 1428 (9th Cir. 1995); see Giglio v. United States, 405

U.S. 150, 154 (1972).

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As the defense established at trial, Mier’s credibility

was shaky at best. He faced potential criminal prosecu-

tion in the United States, so it seems unlikely that he

would return to testify only because he wanted to tell the

truth. This, however, is at most circumstantial evidence of

an immunity agreement with Mier. A defendant must

present more direct evidence of an agreement to justify

reversal on this ground. See United States v. Ramirez, 608

F.2d 1261, 1266-67 (9th Cir. 1979).

Ill. Prosecutorial Misconduct

Cooper contends that the prosecutor twice commit-

ted misconduct during closing argument. This court

reviews claims of prosecutorial misconduct for plain

error when the defendant did not object at trial, and for

abuse of discretion when the district court denied an

objection to closing argument. United States v. Etsitty, 130

F.3d 420, 424 (9th Cir. 1997), amended in part on other

grounds, 140 F.3d 1274 (9th Cir.), cert. denied, 119 S.Ct. 515

(1998). Cooper must show that it is “ ‘more probable than

not that the misconduct materially affected the verdict.’ ”

United States v. Peterson, 140 F.3d 819, 821 (9th Cir. 1998)

(quoting United States v. Hinton, 31 F.3d 817, 824 (9th Cir.

1994)).

In the first incident, the prosecutor stated during

closing:

What else did [Cooper] admit to you? Well, he

admitted that he knew that those invoices and

weight tickets contained false statements.

(Pause)

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He also admitted that he let known false state-

ments be sent to the City of San Diego.

Defense counsel objected, contending that the prosecutor

had misstated the evidence. The district court responded

that the jury would make its own evaluation of the evi-

dence.

When the prosecutor resumed her argument, she

explained that the “false statements .. . sent to the City”

referred to Cooper’s letter of resignation, which Cooper

had admitted contained false statements. Cooper argues

that he was prejudiced because the mail fraud counts

were not based on the letter of resignation. The indict-

ment, the evidence at trial, and final argument on the

mail fraud counts all focused on the false weighmaster

certificates, so the jury could not have been confused by

this reference to the resignation letter. See Hinton, 31 F.3d

at 824 (“The prosecution’s alleged misconduct must be

viewed in the context of the entire trial.”).

The prosecutor’s reference to Cooper’s testimony on

the weighmaster certificates is more troublesome. The

Prosecutor arguably implied that Cooper admitted know-

ing the weighmaster certificates were falsified before CCF

mailed them to the City. The jury should not have been

misled, however, because it heard Cooper testify emphat-

ically that he never looked at the certificates before they

were mailed, and that he did not learn the certificates

were false until after the City questioned their validity.

Any remaining prejudice was eliminated by the court’s

instruction.

A-22

Cooper also contends that the prosecutor committed

misconduct when she argued that if a hypothetical “eco-

terrorist” who ruptured a sewage pipe flowing into the

ocean would be responsible for causing a violation of an

NPDES permit, then Cooper should be responsible for

causing a violation the City’s permit by depositing sew-

age sludge on an unauthorized site. Defense counsel did

not object.

Considered in context, the prosecutor’s analogy was

not out of line. She was attempting to refute Cooper’s

argument that a non-permittee may not be criminally

liable for causing a violation of a permit. To the extent

that the term “ecoterrorist” could be prejudicial, the prej-

udice was not so egregious as to seriously affect the

fairness or integrity of the trial. See United States v.

Rewald, 889 F.2d 836, 862 (9th Cir. 1989) (prosecutor’s

reference to defendant as a nine-headed monster not

misconduct), amended in part on other grounds, 902 F.2d 18

(9th Cir. 1990).

IV. Sentencing Issues

This court reviews the district court’s findings of fact

at sentencing for clear error. United States v. Shannon, 137

F.3d 1112, 1119 (9th Cir.) (per curiam), cert. denied, 118

S.Ct. 2390 (1998). The court’s application of the law to the

facts is reviewed for abuse of discretion. United States v.

Barnes, 125 F.3d 1287, 1290 (9th Cir. 1997). This court

reviews the district court’s interpretations of the Sentenc-

ing Guidelines de novo. United States v. Blitz, 151 F.3d

1002, 1009 (9th Cir.), cert. denied sub nom. Marie v. United

States, 119 S.Ct. 567 (1998).

A-23

A. Obstruction of Justice

The district court found that Cooper had willfully

testified falsely on material facts, justifying a two-level

enhancement for obstruction of justice. U.S.S.G. § 3C1.1

(citations are to the Nov. 1995 edition). At sentencing, the

court stated that Cooper’s testimony “didn’t make any

sense — not only was he not convincing on it, but it didn’t

make any sense that it was all Vaughan and all Mier, and

he didn’t do anything, didn’t know anything. .. . And

then when you look in the right context, of all of those

denials that he made, . . . it was clearly testimony on very

material facts that was not . . . credible, was not accurate,

was not truthful.”

The district court may enhance a sentence for

obstruction of justice if the defendant's testimony was

false, material, and willful. Shannon, 137 F.3d at 1119

(citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)).

“Mere dispute or disagreement as to a defendant's per-

ception of facts, without more, should not give rise to a

charge of perjury in the context of sentencing.” Id. at 1119

n.3.

The district court saw Cooper testify and supported

the obstruction of justice enhancement with the proper

findings of fact. The record supports those findings. The

two-level upward enhancement for obstruction of justice

was not error.

B. Discharge of a Pollutant

The district court ruled that because the Clean Water

Act defines sewage sludge as a “pollutant,” 33 US<

A-24

§ 1362(6), Cooper should receive a six-level enhancement

for discharging a pollutant. See U.S.S.G. § 2Q1.3(b)(1)(A)

(enhancement for “ongoing, continuous, or repetitive dis-

charge, release, or emission of a pollutant into the envi-

ronment”). Cooper contends that the enhancement

doesn’t apply because the sewage sludge met the federal

regulatory requirements for land application.

The district court was correct that the statutory defi-

nition of “pollutant” controls. The federal regulations on

land application did not implicitly amend the statutory

definition. Cf. United States v. West Indies Transp., Inc., 127

F.3d 299, 315 (3d Cir. 1997) (rejecting contention that raw

sewage was not a pollutant because it was fully biode-

gradable), cert. denied, 118 S.Ct. 700 (1998). Under

Cooper’s direction, CCF dumped about 10,000 tons of

uncomposted sewage sludge on the Mason farm. That

dumping was “actual environmental contamination” as

required by the guidelines. See U.S.S.G. § 2Q1.3 appl. n. 4;

United States v. Ferrin, 994 F.2d 658, 664 (9th Cir. 1993)

(interpreting identically worded application note 5 to

U.S.S.G. § 2Q1.2 and holding that “a finding that the

hazardous waste came into contact with land... is the

appropriate predicate for an enhancement”). The

enhancement requires “actual environmental contamina-

tion,” not actual environmental harm. See Ferrin, 994 F.2d

at 664 (defining “contaminate” as “ ‘to soil, stain, or infect

by contact or association’ or ‘to make . . . impure by

admixture’ ”) (quoting Webster’s New Collegiate Dictionary

245 (1977)); United States v. Bogas, 920 F.2d 363, 368 (6th

Cir. 1990) (concluding that enhancement under U.S.S.G.

§ 2Q1.2 applied even though “[t]here may have been no

actual harm”). Cf. Welch v. Board of Supervisors, 888

A-25

F.Supp. 753, 756 (W.D. Va. 1995) (“the regulations also

make clear that land application of sewage sludge still

carries with it some risks; it is, after all, a pollutant.”).

The background note to U.S.S.G. § 2Q1.3 explains that it

“parallels § 2Q1.2 but applies to substances which are not

pesticides and are not designated as hazardous or toxic.”

Thus the guideline applied here is for nonhazardous pol-

lutants, and the parallel guideline is for designated haz-

ardous pollutants. A substance therefore can be classified

as a pollutant even though it is not designated as hazard-

ous. That this sludge may have been class A, nonhazar-

dous and permissible under appropriate conditions for

application to farmland, does not avoid application of the

guideline for nonhazardous pollutants.

C. Permit Violation

The district court applied a four-level enhancement

for “a discharge . . . in violation of a permit.” U.S.S.G.

§ 2Q1.3(b)(4). Cooper contends that the enhancement

should not apply because he was not required to secure a

permit. This court rejected a similar argument in Ferrin,

994 F.2d at 664-65. Here, as in Ferrin, Cooper was con-

victed of a crime whose elements include violating a

condition of a permit.

D. Amount of Loss

The presentence report calculated the intended loss

caused by Cooper’s conduct as $566,000, based on the

amount of money CCF billed the City for shipments of

sewage sludge to the Mason farm. The district court,

which adopted both the presentence report’s calculation

A-26

of loss and an alternative calculation suggested by the

prosecutor, imposed a ten-level enhancement for a loss of

more than $500,000. U.S.S.G. § 2F1.1(b)(1)(K).

The Sentencing Guidelines define loss as “the value

of money, property, or services unlawfully taken.”

U.S.S.G. § 2F1.1, appl. n.7. “[T]he loss need not be deter-

mined with precision. The court need only make a rea-

sonable estimate of the loss, given the available

information.” U.S.S.G. § 2F1.1, appl. n. 8; United States v.

Watson, 118 F.3d 1315, 1319 (9th Cir. 1997). “[I]ntended

loss is a proper measure to use in fraud cases.” Blitz, 151

F.3d at 1009.

Cooper contends that CCF, not the City, lost money.

He argues that because CCF did haul sludge from Fiesta

Island, the City benefited from CCF’s services. See Blitz,

151 F.3d at 1012 (because a defendant's services may have

some value although part of a fraudulent scheme, the

district court when calculating intended loss “should give

credit for any legitimate services rendered to the vic-

tims”).

The district court reasoned, however, that “removal

is not the sine qua non of whether [Cooper] should be

paid” because CCF was required to compost the sludge,

and was not authorized to dump sludge wherever it

pleased. The district court stated, “There has to be a

procedure [for hauling sewage sludge] that complies with

the law. And that’s why [Cooper] gets paid a lot of huge

dollars to remove this stuff.” (An auditor testified that

the City paid CCF about $8 million over the two-plus

years of the contract.)

A-27

‘ In United States v. Frank, 156 F.3d 332, 335-36 (2d Cir.

1998), cert. denied, 1999 WL 86965 (U.S. Mar. 22, 1999) (No.

98-1329), the Second Circuit dealt with a similar issue.

There, the defendants agreed to ship sewage sludge by

barge and dump it at sea 106 miles from shore. Instead,

the defendants dumped the sludge well short of the

required distance, and sent falsified invoices. The defen-

dants were convicted of mail fraud.

On appeal, the defendants argued that the evidence

was insufficient because “the municipalities got precisely

what they bargained for — sludge disposal - and that,

accordingly, the [defendants] neither intended nor caused

the municipalities any harm.” Id. at 335. The Second

Circuit rejected this argument, reasoning that the

defrauded municipalities paid defendants a premium for

the full 106-mile transport, and that the defendants’

“short-dumping” could have subjected the municipalities

to fines and the loss of permits.

Here, CCF’s removal of sludge from Fiesta Island had

some value to the City, but that value was offset by the

harm caused by CCF’s failure to compost and legally

dispose of the sludge. CCF’s actions exposed the City to

potential clean-up liability and to the loss of its NPDES

permit. See 33 U.S.C. §§ 1319, 1342(b)(7) (permit holder

subject to enforcement action for failure to comply with

conditions of permit). These costs, while almost impossi-

ble to quantify, cannot be dismissed as phantoms. The

district court noted that the City

should be able to control where [the sewage

sludge is] going to go — so [the City doesn’t] get

stuck with that legal mess — the time, the energy,

the legal fees, and the bad publicity . . . - can

A-28

you imagine how the people of Imperial

[County] would feel if they are told that the City

is illegally dumping its sewage waste on their

farmland? All sorts of political problems.

The district court faced a daunting task in attempting

to calculate the amount of the City’s loss. Using the

invoiced amount for the shipments of sludge to the

Mason farm was in this case a reasonable, if rough,

estimate of the intended loss. We cannot say that the

district court’s calculation was clearly erroneous.

E. More Than Minimal Planning

The district court applied a two-level enhancement for

more than minimal planning. U.S.S.G. § 2F1.1(b)(2)(A). At

sentencing, the court stated, “this was an ongoing scheme to

submit false weighmaster certificates to the City. It was

extensive. It was sophisticated.”

“ “More than minimal planning’ is deemed present in

any case involving repeated acts over a period of time,

unless it is clear that each instance was purely oppor-

tune.” U.S.S.G. § 1B1.1, appl. n.(f). The district court did

not clearly err in applying the enhancement.

F. Role in the Offense

The district court applied a two-level enhancement

because of Cooper’s role in the offense as a leader, man-

ager, or supervisor. U.S.S.G. § 3B1.1. The court found that

Cooper owned half of CCF, would have benefited more

than others from the offense, knew about the CCF’s day-

to-day activities, and located a farmer to accept sludge.

——

A-29

When a defendant supervises other participants, he

need exercise authority over only one of the other partici-

pants to merit the adjustment. United States v. Camper, 66

F.3d 229, 231 (9th Cir. 1995) (citing United States v. Barnes,

993 F.2d 680, 685 (9th Cir. 1993)). Here, the evidence

supported the district court’s finding that Cooper super-

vised at least one other participant. Cf. United States v.

Lopez-Sandoval, 146 F.3d 712, 717 (9th Cir. 1998). The court

did not err in applying the enhancement.

AFFIRMED.

b-1

APPENDIX “B”

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

May 28, 1999)

UNITED STATES OF ) No. 97-50296

AMERICA, ) D.C. No.

Plaintiff-Appellee, / CR-96-00804-JNK

v. ) ORDER

GORDON PAUL COOPER, ‘ (Filed

)

Defendant-Appellant.

)

Before: CANBY and KLEINFELD, Circuit Judges, and

PANNER!, District Judge.

The panel has voted to deny the petition for rehear-

ing. Judge Kleinfeld has voted to reject the suggestion for

rehearing en banc, and Judges Canby and Panner have so

recommended.

The full court has been advised of the suggestion for

rehearing en banc, and no active judge of the court has

requested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35 (b).

The petition for rehearing is DENIED and the sugges-

tion for rehearing en banc is REJECTED.

' The Honorable Owen M. Panner, Senior United States

District Judge for the District of Oregon, sitting by designation.

C-1

APPENDIX “C”

CODE OF FEDERAL REGULATIONS

Protection of

Environment

PARTS 425 TO 699

Revised as of July 1, 1995

[LOGO]

Relevant 40 C.F.R. 503 Law, Direct Application of Sewage

Sludge to Land

PART 503 - STANDARDS FOR THE USE OR DIS-

POSAL OF SEWAGE SLUDGE

Source: 58 FR 9387, Feb. 19, 1993, unless otherwise

noted.

Subpart A - General Provisions

§ 503.1 Purpose and applicability.

(a) Purpose. (1) This part establishes standards,

which consist of general requirements, pollutant limits,

management practices, and operational standards, for the

final use or disposal of sewage sludge generated during

the treatment of domestic sewage in a treatment works.

Standards are included in this part for sewage sludge

applied to the land, placed on a surface disposal site, or

fired in a sewage sludge incinerator. Also included in this

part are pathogen and alternative vector attraction reduc-

tion requirements for sewage sludge applied to the land

or placed on a surface disposal site.

C-2

(b) Applicability. (1) This part applies to any person

who prepares sewage sludge, applies sewage sludge to

the land, or fires sewage sludge in a sewage sludge

incinerator and to the owner/operator of a surface dis-

posal site.

(2) This part applies to sewage sludge applied to

the land, placed on a surface disposal site, or fired in a

sewage sludge incinerator.

§ 503.2 Compliance period.

(a) Compliance with the standards in this part shall be

achieved as expeditiously as practicable, but in no case later

than February 19, 1994. When compliance with the stan-

dards requires construction of new pollution control facil-

ities, compliance with the standards shall be achieved as

expeditiously as practicable, but in no case later than

February 19, 1995.

(b) The requirements for frequency of monitoring,

recordkeeping, and reporting in this part for total hydro-

carbons in the exit gas from sewage sludge incinerator

are effective February 19, 1994, or, if compliance with the

operational standard for total hydrocarbons in this part

requires the construction of new pollution control facili-

ties, February 19, 1995.

recordkeeping, and reporting in this part are effective on July

20, 1993.

C-3

§ 503.3

(b) Direct enforceability. No person shall use or dispose

of sewage sludge through any practice for which requirements

are established in this part except in accordance with such

requirements.

§ 503.5 Additional or more stringent requirements.

(a) Ona case-by-case basis, the permitting authority

may impose requirements for the use or disposal of sew-

age sludge in addition to or more Stringent than the

requirements in this part when necessary to protect pub-

lic health and the environment from any adverse effect of

a pollutant in the sewage sludge.

§ 503.8 Sampling and analysis.

(a) Sampling. Representative samples of sewage sludge

that is applied to the land, placed on a surface disposal site, or

fired in a sewage sludge incinerator shall be collected and

analyzed.

Subpart B - Land Application

§ 503.10 Applicability.

(a) This subpart applies to any person who prepares

sewage sludge that is applied to the land, to any person who

applies sewage sludge to the land, to sewage sludge applied to

the land, and to the land on which sewage sludge is applied.

(b)(1) Bulk sewage sludge. The general requirements in

§ 503.12 and the management practices in § 503.14 do not

apply when bulk sewage sludge is applied to the land if the bulk

C-4

sewage sludge meets the pollutant concentrations in

§ 503.13(b)(3), the Class A pathogen requirements in

§ 503.32(a), and one of the vector attraction reduction require-

ments in § 503.33 (b)(1) through (b)(8).

(c)(1) The general requirements in § 503.12 and the

management practices in § 503.14 do not apply when a bulk

material derived from sewage sludge is applied to the land if

the derived bulk material meets the pollutant concentrations in

§ 503.13(b)(3), the Class A pathogen requirements in

§ 503.32(a), and one of the vector attraction reduction require-

ments in § 503.33 (b)(1) through (b)(8).

§ 503.12 General requirements.

(a) No person shall apply sewage sludge to the land

except in accordance with the requirements in this subpart.

(j) Any person who applies bulk sewage sludge subject to

the cumulative pollutant loading rates in § 503.13(b)(2) to the

land shall provide written notice, prior to the initial applica-

tion of bulk sewage sludge to a land application site by the

applier, to the permitting authority for the State in which the

bulk sewage sludge will be applied and the permitting author-

ity shall retain and provide access to the notice. The notice

shall include:

(1) The location, by either street address or latitude and

longitude, of the land application site.

(2) The name, address, telephone number, and National

Pollutant Discharge Elimination System permit number (if

C-5

appropriate) of the person who will apply the bulk sewage

sludge.

§ 503.15 Operational standards - pathogens and vector

attraction reduction.

(a) Pathogens ~ sewage sludge. (1) The Class A patho-

gen requirements in § 503.32(a) or the Class B pathogen

requirements and site restrictions in § 503.32(b) shall be

met when bulk sewage sludge is applied to agricultural

land, forest, a public contact site, or a reclamation site.

D-1

APPENDIX D

FEDERAL BUREAU OF INVESTIGATION

Date of transcription 5/9/96

VICTOR TORRES-MOLINA, Sales Manager, Impremex,

S.A. Maderos 2088, Colonia Libertad, Mexicali, Baja Califor-

nia, telephone number 011-52-65-54-51-65, was interviewed

at his business place by Liaison Officer (LO) ALFONSO M.

VILLEGAS regarding any weighmaster certificates printed

for MANUEL MIER or GORDON COOPER.

LO VILLEGAS was accompanied by two Mexicali

Judicial State Police Agents, JOAQUIN RODRIGUEZ

TORRES and JAVIER MARTINEZ NAVARRETE.

TORRES-MOLINA stated that he has worked for

Impremex for the past fifteen (15) years and oversees all

sales arrangements for the print shop. TORRES-MOLINA

also identified his wife’s brother in law, ENRIQUE A.

ANAYA Q., as the owner of the business. TORRES-

MOLINA added that ANAYA has been unavailable due to

illness and has been away from the print shop since

March 1, 1996.

TORRES-MOLINA stated that he did not recognize

the names of MANUEL MIER, GORDON COOPER or

CHINO CORONA FARMS.

TORRES-MOLINA acknowledged that they did some

printing jobs in English, but not many. TORRES-MOLINA

was given the opportunity to view copies of the docu-

ments labelled: Chino-Corona Farms, Inc. Invoice

Number 0446; Calexico Scales Co, dated 04-11-93 and

Calexico, California Quality Scales, 2686. After viewing

the copies, TORRES-MOLINA said that those documents

D-2

had not been printed at Impremex. TORRES-MOLINA

also advised that they did not mark the documents they

printed in anyway.

TORRES-MOLINA also stated that they did not

retain the master copy of any documented they print.

TORRES-MOLINA allowed agents VILLEGAS,

RODRIGUEZ and MARTINEZ to view what available

past printing invoices they had to determine if MIER or

COOPER had ever placed a printing order. No invoices

made out to the subjects were found.

Investigation on 4/25/96 at Mexicali, BC, Mexico

File # 249-SD-52258

by LO Alfonso M. Villegas/Id Date dictated 4/30/96

TORRES-MOLINA also advised that he had never

heard of a print shop by the name of Emermex.

TORRES-MOLINA did not provide any other infor-

mation and the interview was concluded.

TORRES-MOLINA was identified from the interview

as follows:

Sex: Male

Race: White

DOB: 12/23/40

POB: Mexico

D-3

FEDERAL BUREAU OF INVESTIGATION

Date of Transcription 10/22/96

On October 19, 1996, MANUEL MIER, Hispanic male,

date of birth 3/23/60, who resides at Calle Ezquivel

Chavez #720, Mexicali, Baja California, Mexico, was

advised of the identity of the interviewing Agent and the

nature of the interview. He provided the following infor-

mation:

MIER advised that since the last time he spoke with

SA STRANGE he has not had any contact with GORDON

COOPER or anyone associated with Chino Corona Farms.

He further advised that he went to the print shop in

Mexicali where he went with GORDON COOPER during

the time he worked for Chino Corona Farms. He stated

that the print shop is called LITO IMPREMEX S.A.,

located on Madereros 2088, Mexicali, Colonia Libertad.

He provided SA STRANGE with a business card from

Enrique A Anaya Q., a salesman from this business. He

stated that he was positive that this was the same place

he and COOPER bought the Quality Scales weighmaster

certificates. He did not know where the Calexico Scales

weighmaster certificates were printed. He did state that

the only person he knew of who could have assisted

COOPER in having the other set of weighmaster certifi-

cates made was HUMBERTO PADILLA. MIER stated that

PADILLA and COOPER were associates during this oper-

ation and PADILLA would know where to get the certifi-

cates printed. MIER further advised that PADILLA is

currently working for the Mexican Electoral Board, which

D-4

ensures legitimate elections and voting practices in Mex-

ico. He doesn’t have PADILLA’s phone number, but occa-

sionaly sees him and MIER will attempt to contact him

soon and advise him to contact SA STRANGE as soon as

possible.

MIER was given a trial subpoena requesting his pres-

ence at the trial United States vs. GORDON COOPER

which is scheduled to begin on December 3, 1996. MIER

promised to be present for this trial.

Investigation on 10/19/96 at El Centro, CA

File # 249-SD-52258

by _SA David Strange Date dictated n/a

E-1

APPENDIX “E”

Purchasing Contract

Bid No. B1216/90

CONTRACT

THE CITY OF SAN DIEGO, a municipal corporation,

hereinafter called “City”, and

CHINO-CORONA FARMS, INC.

hereinafter called “Contractor”, agree as follows:

Contractor shall furnish and deliver services in accor-

dance with the specifications on file in the office of the

Purchasing Agent of City, all of which are expressly

referred to, incorporated by reference, adopted and made

a part of this contract as though fully set forth herein,

City’s requirements for REMOVAL AND DISPOSAL OF

AN ESTIMATED 120,000 TONS OF DIGESTED SLUDGE,

as may be required for the period of one (1) year begin-

ning August 1, 1990 through July 31, 1991, hereinafter

called “services.”

Contractor hereby agrees to comply with Title VII of

the Civil Rights Act of 1964, as amended, the California

Fair Employment Practices Act, and any other applicable

federal and state laws and regulations hereinafter enacted, as

well as those requirements addressed by the City of San

Diego’s Equal Opportunity Program, recorded with the

City Clerk as Document RR-262633. Contractor under-

stands that failure to comply with the above cited laws

E-2

and regulations and/or falsely submitting information

required under same laws and regulations may result in

termination of this contract and debarment from awards of

future City contracts for a period of not less than one (1) nor

more than two (2) years.

AMOUNT AWARDED: APPROXIMATELY 80,000 TONS

SEE PAGE 2a FOR PRICES.

SEE PAGE 3 FOR OPTIONS.

INSURANCE: See Page 8.

Terms: .05% 10 days

SEE ATTACHED PAGES FOR CONTRACT SPECIFICA-

TIONS.

Contractor shall perform services as required per

City’s purchase order therefor. The date of performance is

an essential condition of this contract and failure to per-

form within the agreed upon time shall be grounds for

termination by City.

City shall pay for Services at the aforesaid prices

within thirty (30) days following delivery thereof.

The failure of either party to insist upon strict perfor-

mance of any term of this contract in one or more

instances shall not be construed as a waiver of any such

term, and the same shall remain in full force and effect.

Contractor shall not assign this contract, or any right

or interest hereunder, without the prior consent in writ-

ing of City.

Dated July 12, 1990.

CHINO-CORONA FARMS, INC.

Contractor

By /s/ Larry Vaughn

Title President

THE CITY OF SAN DIEGO

By /s/ Ralph Shackelford

Purchasing Agent

I HEREBY APPROVE the form and legality of the

foregoing Contract this 24th day of July 1990.

JOHN W. WITT, City Attorney

By /s/ M. Jackson

Deputy

(461 Tons/Day)

Alternate IV - Composting Option A

EST. OTY. Cost Per Ten / Extension

120,000 tons $18.53 / $2,223,600

(230 Tons/Day)

Option B

COST PER TON EXTENSION

$20.78 $1,246,800

Disposal Site: (not specified in contract)

Type of Trucks to be used: 3 Axle Tractors Pulling 37’

Semi-end Dump Trailers

Number of Trucks available: 10

Bidder’s P.U.C. Permit Class and No.: 126605

E-4

SPECIFICATIONS

The City of San Diego requires the removal and ultimate

disposal of approximately 120,000 tons of digested

municipal sewage sludge as may be required for the

period of May 1, 1990 through April 30, 1991. The sludge

is currently stockpiled at the City of San Diego’s Fiesta

Island Sludge Drying Facility. The sludge has been certi-

fied “NON HAZARDOUS” by either the City of San

Diego’s Chemistry Laboratory, the County of San Diego’s

Health Services or both. The successful bidder, or bid-

ders, will be responsible for the loading, hauling, applica-

tion process and final disposal of the sludge product.

Disposal options may include any, or all, of the processes

referred to in the following alternatives:

Alternative I - Direct Burial in an Approved Sanitary

Landfill

Alternative II - Land Application

Alternative III -— Chemical Fixation/Stabilization

Alternative IV - Composting

Alternative V - _—_[ncineration/Cogeneration

Options II, III, and IV specifically exclude direct burial at

a land fill of any type; however, disposal as “daily cover”

or “final cover” in the reclamation of a landfill is an

acceptable disposal option.

The City recognizes the beneficial nature of sludge and

will encourage reuse, as much as possible, within cost

and regulatory constraints.

It is possible, should other options become available, that

no contract will be awarded at this time.

E-5

The City retains the right to cancel a contract should

new sludge disposal regulations be adopted that cause a

disposal option to become illegal or unworkable. There is

a strong possibility that this may occur in the case of the

land application and the composting alternative.

The successful bidder must coordinate his/her work so as

not to interfere with or jeopardize the routine operation

of the sludge drying facility or the operations of any

other contractor operating at the facility.

The process proposed must be in accordance with any

State of California Regulatory Agency or United States

Environmental Protection Agency rules and regulations

relating to said process. Bidder shall obtain written per-

mission from the above named agencies, as well as any

other regulatory agencies that may have jurisdiction, to

use City of San Diego sludge as proposed. This written

permission must be submitted with the bid. If written

permission is not provided at the time of bid opening,

bidder’s proposal will be declared invalid.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.