Appendices — Hansen v. United States

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Aug. 24, 2001]

No. 99-11638

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTIAN A. HANSEN, ALFRED R. TAYLOR, ef al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 98-00023-CR-2-1

Before BIRCH and DUBINA, Circuit Judges, and

HANCOCK , District Judge.

PER CURIAM:

Alfred R. Taylor, Christian A. Hansen, and Randall W.

Hansen appeal their convictions for conspiracy to commit

environmental crimes, violating the Clean Water Act,

violating the Resource Conservation and Recovery Act, and

violating the Comprehensive Environmental Response,

Compensation, and Liability Act. On appeal, they each assert

several alleged trial and sentencing errors. Finding no merit

to their claims, we AFFIRM.

* Honorable James H. Hancock, U.S. District Judge for the Northern

District of Alabama, sitting by designation.

I. BACKGROUND

Christian Hansen (“Hansen”) founded the Hanlin Group

(“Hanlin”) in 1972, and served as its President, Chief

Executive Officer, and Chairman of the Board until early

April 1993. R19-160. Hanlin operated an industrial plant in

Brunswick, Georgia, as LCP Chemicals-Georgia (“LCP”),

R21-41, and Hansen served as the plant manager for

approximately two months in 1993. RI9-166-67. Randall

Hansen (‘Randall’), Hansen’s son, was hired as an executive

vice president in 1992. R21-i93. He became Chief

Executive Officer in April 1993 and served in that capacity

until November 1993. R2t-195. Alfred Taylor (“Taylor”)

began working for LCP in 1979, and became the Brunswick

operations manager in 1991. R21-243-44. He served as plant

manager from February until July 1993. R21-244-45.

Hanlin purchased the Brunswick plant in 1979.’ R21-41.

The plant, which is on a site adjacent to tidal marshes and

Purvis Creek, operated continuously year-round, manufactur-

ing caustic soda, hydrogen gas, hydrochloric acid, and chlor-

alkali bleach. About 150 people worked at the plant in two

“cell buildings” or “cellrooms.” Each cellroom was about the

size of a football field and contained fifty mercury “cells,” the

units used to produce the bleach, soda, gas, and acid

ultimately sold by LCP. R8-200-2. “The production process

generated hazardous wastes, including elemental mercury,

' The site has been used by various companies for 50 years, and was

unregulated by any environmental regulations until the 1970s. The site

was operated as an oil refinery from 1919 to 1937 by Atlantic Richfield

[ARCO], as a manufacturing site from 1937 to 1955 by Dixie Paint

Company, and as a chlor-alkali facility from 1955 to 1979 by Allied

Chemical. R16-85-86. Allied Chemical used graphite anodes impregnated

with PCBs during the chlor-alkali process, and buried the contaminated

anodes on the site. R21-54, 229. It is now a Superfund site, and is being

cleaned at the expense of the government and these earlier owners.

mercury-contaminated sludge (or “muds”),” wastewater,

chlorine contaminated wastewater, and extremely caustic

wastes with high pH values.” /d. at 2-3: R16-] 12-14. The

wastes were subject to various environmental regulations,

including wastewater limitations on pH, mercury, and

chlorine set forth in LCP’s National Pollutant Discharge

Elimination System (“NPDES”), and to regulations of

the Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. § 6928(d)(2).

LCP constructed a wastewater treatment system in 1989

and 1990, and was allowed, by NPDES permit, to discharge

the treated wastewater into Purvis Creek. Although LCP

represented that the system would have a continuous

treatment capacity of 70 gallons per minute in the project

description submitted to the Georgia EPD, Govt. Ex. 10-3b at

SWS 00001807, the filtration and Storage systems installed

had a capacity of only 35 gallons per minute, R20-20-21:

Govt. Ex. 1-12. LCP did not notify the Georgia EPD of the

” In a memorandum regarding mercury consumption, dated 4 October

1993, Taylor noted that mercury “[c]onsumption was particularly high in

1988” and for 1990-1993. Govt. Ex. 19-5. An attachment showed

“excess” mercury from consumption of 243,102 pounds from 1986 to

1993. Id

The “mud” was spread onto the cellroom floors to dry, the mercury

was recovered from underneath and on top of the mud, and the mud was

put into drums for disposal. R19-190-93. When the wastewater covered

the floors, the mud could not be stored until the water receded and it was

dried. /d at 191. The drums were stored underneath the cellrooms.

R20-62. The drums were labeled and dated when the mud was first put

into the drum “because [the plant] only had a ninety-day storage period

under [the] permit.” /d at 62-63. There were “times” when the mud was

“redrumed” and again labeled for another ninety-days. /d Hanson

testified that Taylor was aware of the muds in the drums. /d at 62.

At Taylor’s direction, mud_ that accumulated in the wastewater

stored in tank railcars was “drained off to the wastewater treatment area.”

R20-356-57.

lower wastewater treatment capacity. R20-290. The plant

was authorized to store wastewater which was awaiting

treatment in the wastewater treatment plant on the floor of the

cellrooms. R16-118; R21!-145, 161. The cellrooms were

constructed of concrete, with a downward slope which

diverted the wastewaters to a sump” and then to the

wastewater treatment holding tanks. R19-33-34. If the

cellroom became incapable of holding the wastewater, it

leaked out onto the ground and accumulated in a lake. R16-

131-32. LCP also used “Bunker C” oil tanks for additional

wastewater storage. RI9-291; R20-42-45. Due to accidental

spills, bleach sometimes accumulated on the Cellroom |

floor. RI9-258. During the early 1990s, the maintenance at

the plant began deteriorating. R20- 177, 179. Replacement

parts were not made available, and wastewater began

accumulating around the plant. /d.

The operations were subject to Occupational Safety and

Health Administration (“OSHA”) regulations for the

protection and safety of the employees. The workers exposed

to mercury vapors in the mercury cell process were provided

with liquids to drink in order to stay hydrated and deplete the

mercury, and~ their exposure was periodically monitored

through an extensive mercury urinalysis procedure. R20-145-

46; R21-251-52. Employees who showed exposure to excess

mercury were not allowed to return to work until they were

seen by a medical physician, and were then relocated to other

plant locations away from the mercury cells. R20-146, 164-

65, 168-69, 174; R21-255, 258; R22-12, 24.

> A sump is a hole with a grate over it. R19-34

* LCP retested and counseled any employee who tested above 150

micrograms per liter, and employees with a confirmed result above 250

micrograms were removed from further exposure until their level went

below 150. R21-253-55.

In August 1992, OSHA inspected the plant “due to an

employee complaint about safety hazards associated with

water on cell room floors.” Govt. Ex. 10-7i. OSHA found

this to be a “willful violation and demanded that no

employees be allowed to work in contact with the water while

the equipment was energized,” and “forced” LCP “to erect a

boardwalk system above the water level around all the

equipment until the water c{[ould] be eliminated

permanently.” Jd. LCP added wooden elevated walkways in

the cellrooms to prevent the workers from having contact

with the water on the floor and to reduce the workers’ risk of

electrical shock or chemical burns.> R16-118; R21-145-46,

161. The chemicals used in LCP’s operations were very

alkaline and caustic and could irritate and burn skin.© R16-

93; R19-43, 197; R20-188; R21-263-64. To minimize the

workers’ risk of skin irritations and burns, LCP held routine

safety meetings, encouraged and received safety inspections,

and provided the employees with training, protective

* The water occasionally rose high enough to splash onto or soak

the walkways, and they became slick. R20-181, 322. OSHA also

required that LCP utilize a lockout procedure for employees to work on a

cell or pump because of the potential electrical hazards. R19-45; R20-190.

In the lockout procedure, an operator ensured that the electrical power was

shut off before a mechanic was permitted to begin work. R19-46-47:

R20-190, 323.

° One former employee, Duane Lorenzo Carver, testified that he

received second and third degree burns on his thighs from caustic that had

soaked through his clothes. R19-182, 197. In reference to a question

regarding the conditions of the cellrooms in 1993, he said that, while

digging out the sump, he misstepped and fell into the sump hole, which

was filled with wastewater, “about chest deep.” R19-201-03, 227-228.

Carver said that he showered immediately and suffered minor burns on his

stomach and legs. R19-203, 229. Carver was unable to recall the exact

date, and admitted the accident could have occurred any time between

1987 and 1993. R19-226. Carver testified that, although the employees

were told to report all accidents to management, he did not report the

accident, and thus did not receive any medical attention. R19-230.

equipment to preclude skin contact, and first aid stations and

showers to relieve inadvertent contact. R19-47, 194, 233-34,

246, 300-01; R20-170, 181-82, 185, 188, 190-91; R21-249.

All employees, including those assigned to the cellrooms,

were authorized to work elsewhere in the plant if they

were concerned about their safety. R19-302; R20-186-87,

320-2; R21-156.

In 1991, LCP’ s parent corporation, Hanlin, filed a

voluntary bankruptcy petition with pre-petition obligations

exceeding $100 million. R19-119; R21-194. Shortly

thereafter, Randall was hired as an executive vice president of

LCP and charged with “developing the business and financial

plans necessary to turn around the financial condition of the

chemical business.” ’ R21-193; R16-97. Randall worked

closely with Hanlin’s bankruptcy attorneys, the law firm of

McCarter and English, and the environmental law firm of

Decher, Price and Rhoads. RI19-140-43; R21-194, 215.°

Randall also worked closely with LCP’s corporate environ-

mental manager and site environmental managers. R20-64-

65; R21-210, 215. During the bankruptcy proceedings,

available funds for maintenance, repair, and environmental

compliance were restricted. RI9-50-52. Randall attempted to

find additional funds by selling excess equipment and

reducing the payroll but the funds remained limited. /d. The

ultimate decision-making for all major projects, capital and

extraordinary expenditures, and the sale of assets, were

subject to the approval of the Board and the bankruptcy

creditor’s committee and court. R19-121, 143-47, 174-75;

R21-196. Although funds were requested to address the

cellrooms’ wastewater problem, the funds were usualiy not

released. R21-259-60.

” Randall Hansen had worked for Hanlin in a financial capacity from

1986 until 1989.

* During the bankruptcy proceedings, Hanlin set aside seven to ten

thousand dollars per day for professional fees. R19-147.

In February 1992, the Brunswick plant manager, James L.

Johns, advised Randall in writing that, without “extensive

work,” to keep the wastewater treatment system operable,

they would be unable to “operate the plan for more than a few

days without ‘willfully’ violating EPD regulations which we

will not do.” Govt. Ex. 1-8a at HA 00024857.’ In April

1992, Randall visited the Brunswick plant and met with plant

manager James L. Johns for “an update on regulatory

compliance requirements.” Govt Ex. [0-7b. He indicated

that he would provide guidance on the approval of funds for a

study for the NPDES permit, LCP’s commitment regarding

the | June 1992 Georgia EPD deadline for cellroom floor

repairs, and the possibility of a study or remediation plan for

the “brine impoundments.” /d. In June 1992, Randall was

advised in writing that a conference with OSHA on 8 May

1992 noted 26 serious violations and I! non-serious

violations. Govt. Ex. 10-7d.

During the summer of 1992, the Brunswick plant

management changed.’ R16-104-05. In August 1992,

Taylor advised Randall that Brunswick was “unable to meet

Current permit limitations,” that he anticipated “more

restrictive” limitations, and that the “(performance of the

” The memo was addressed “Production Reliability” and noted that

“[l]ack of money has limited the plant production capability and imposed

substantial risk on maintaining acceptable production levels.” Govt. Ex.

I-8a at HA 00024856. The wastewater treatment issues were one of nine

noted problems. /d., HA 00024856 and 57.

'° J.L. Johns, the plant manager at the beginning of 1992, retired due

to heart problems. R16-104. During the six month search to replace

Johns, Hugh Croom, the plant manager for the LCP chlor-alkali plant in

North Carolina, transferred to Brunswick and acted as plant manager. /d

at 103-05. Croom returned to the North Carolina plant in January 1993,

and admitted that problems with the wastewater treatment plant and his

concerns for maintaining a production rate and for the safety of the

employees and the community contributed to his desire to leave

Brunswick. R16-134-36,

waste water treatment system [was] a serious threat to the

continued operation of the plant.” Govt. Ex. 1-12. Taylor

said that while the “generation of waste water ha[d] greatly

increased due to leaking brine tanks, [poor condition of the]

brine pumps [and] . . . brine filters, heavy rainfall, the

necessity to destroy bleach, and numerous operating

problems,” at the same time the capacity of the wastewater

system was limited by the reduced capacity of the filtration

and storage systems, was “further reduced” by the “[lJack of

maintenance,” and the system was “frequently shut down due

to mechanical problems and operator errors.” \/d. In

November 1992, Randall visited the Brunswick plant to

interview a candidate for plant manager, and spoke with the

acting manager, Hugh Croom. R19-30. At that time, Croom

advised Randall of problems with the caustic filters and the

intentional dumping of caustic on the cellroom floors by

some unknown employee. R19-30-31, 56-58. Croom

testified that Randall “was just as concerned as we were about

the problems” and authorized Croom to hire a task force."

R19-50, 58.

In February 1993, LCP offered the plant manager job to

Taylor. R21-244. During his tenure as manager, Taylor

stressed safety and strict adherence with LCP’s training and

safety programs, and assured employees the right to refuse

to perform any activity if the employee felt it to be unsafe.

R19-302-03. When the wastewater overran the cellroom

berms and streamed outside the building, the overflow was

reported to the EPD and to the LCP Board by letters signed

by Taylor. R20-25-27. The amounts reported in the letters

were consistent with the data that the plant had at that

time. R20-27.

'' The dumping abated once the task force was hired and the valve area

was monitored. R19-58.

During the spring of 1993, Taylor attended a company

meeting with Randall and Croom in which they discussed the

condition of the Brunswick plant and possible solutions.

R19-18-19. Taylor and Croom recommended “either shutting

the plant down or shutting it down long enough to salvage

one cellroom and rebuild the second cellroom, and then

Starting back up with just one cellroom.” R19-20, 22. Taylor

worked up “the figures and costs” and submitted it to

Randall, but Randall later advised them that “[t]hey won’t let

me do it.” R19-22-23, 64. By letters to EPD,-Taylor reported

that the plant had exceeded the maximum daily allowable

discharges seventeen times, and explained that the discharges

were due to “heavy rainfall,” “miscommunication between

Operations supervision,” “a slight miscalculation,” and

“storm, rainfall and process leaks.” Govt. Ex. 10-Id, e, g.

Taylor noted that the “waste water treatment operating

efficiency and outfall discharge” was “positive[ly] affect[ed]”

by LCP’s decision not to replace a leaking brine tank. Govt.

Ex. 10-1g.

In April 1993, the Board of Directors, with the approval of

the bankruptcy court, removed Hansen as Chairman,

President, and CEO of Hanlin after he attempted to expel the

outside directors from the board. R19-122-23, 160, 167-68.

The Board and the bankruptcy creditors’ committee asked

Randall to serve as LCP’s interim CEO and Chief Operating

Officer [COO]. R19-160; R21-195, 200. His primary focus

was financial and, with the Support of the bankruptcy

creditors committee and court, he sought to sell the company

to a responsible party who could operate the business and

have the financial resources to deal with the various

environmental conditions. R19-147-48, 164, 174-75; R21-

200-01, 219. In this Capacity, Randall received daily reports

concerning the Brunswick plani’s Operations and problems,

R16-97-98. After Hansen’s removal as CEO, he was no

longer a corporate officer and became a director and

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employee. R19-136, 160, 168. Sometime later, the Board

sent Hansen to Brunswick to help run the plant. R19-166-67.

Taylor reported five discharge violations in April, and

indicated that two violations were due to a problem in the

wastewater treatment system that had been corrected, one

violation was attributable to rainfall, and one violation was

due to leaks which had been repaired. Govt. Ex. 10-1th.

Taylor indicated that “[a]n upset in the wastewater treatment

system caused a release of ineffectively treated wastewater”

but that “the discharge was rerouted until the system resumed

normal operation.” /d. Taylor reported 16 discharge

deviations in May 1993, which he indicated were caused by

an equipment failure which had been repaired, “overloading

the wastewater treatment system,” and rainfall. Govt. Ex. 10-

li. In June, Taylor reported 21 excessive discharges which

were attributable to “upsets” and “operational problems” in

the wastewater treatment system and equipment failures.

Govt. Ex. 10-lj and 10-1k. Hansen visited the plant in late

June and began working with Taylor. R19-167.

In July 1993, Taylor resigned as plant manager. R21-245.

Upon Taylor’s resignation, Hansen assumed the running of -

the plant and served as plant manger from July through

September 1993. R19-24, 167; R20-354. Taylor subsequently

returned to the plant as a full time employee as a process or

project engineer on the condition that he not have to “assume

managerial type duties.” R21-246. He remained involved in

environmental issues, however, and in October 1993,

questioned the assistant production manager regarding the

loss of mercury. R20-325, 337-38.

The Georgia Environmental Protection Division notified

LCP in writing in June 1993 that it proposed revoking the

NPDES permit to discharge treated wastewater in Purvis

Creek based on “continuous violations . . . since May 1992

of pH, total residual chlorine, and mercury.” Govt. Ex. 13-id

at 1. It explained that, although it had provided LCP “Notice

lla

of Violation” letters twice in 1992 and had requested that

LCP “take all necessary measures to come into compliance,”

“these violations have continued” and “significant noncom-

pliance” was documented in 10 out of 13 months from May

1992 through May 1993. /d. The notification summarized

that there had been “no Progress . . . in upgrading the plant or

its operation” since the noncompliance had begun to be a

serious problem. /d. at 2: R20-274-276. Randall submitted

formal written comments on the revocation stating that “LCP

has already taken steps to improve the situation by installing

additional filter capacity, repairing or replacing equipment

and reducing the load on the system” and referring to

a 23 July plan addressing future corrective measures. Govt.

Ex. 10-6 at 4.

In July and August 1993, Hansen directed the plant

employees to begin pumping the wastes into the large

“bunker” tanks that had once been used to store oil although

he knew that the wastewater mixed with oil could not be run

through the wastewater treatment system. R20-48, 183, 328-

29, 350. The plant environmental/safety manager reported

the use of the tanks to Randall in July. Govt. Ex. 10-7x.

After the EPD moved to revoke the plant’s permit, Hansen

advised the employees to “increase the flow on the

wastewater treatment system to a level that was to keep the

water from running out the [cellroom] door” and into the

lake. R20-358-59, During their respective terms as plant

manager, Hansen and Taylor were advised of and observed

“water [] flow[ing] out the back door of the cellroom” as a

result of a break in the cellroom berms, and “overflow[ing]

on the ground.” R20-327-28, 335-36, 341. The employees

complained to Hansen, Taylor, and Randall about “the water

condition, the deterioration of the plant with the pipes, the

leaks, and the safety equipment,” and, despite assurances that

conditions would improve “[a]s soon as [the plant] g[o]t some

money,” the plant did not get “any money” and conditions did

not change. R21-146-50.

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The NPDES permit was revoked on 23 September 1993.

R20-275. LCP filed an appeal which stayed the revocation.

R20-275. Although EPD sought a temporary restraining

order, it was denied by the state court judge. 2 R20-302-03.

During this same period of time, Allied Signal and

HoltraChem indicated interest as buyers, and a financial

agreement was worked out in which Allied Signal would

provide needed money, personnel, and raw materials or

maintenance parts for the plant, including an extra wastewater

treatment facility. R9-228, Exs. A & B; R19-149-51; R20-

18, 80. As a part of the financial agreement, Allied Signal

loaned employee Mark White to LCP to serve as plant

manager in October 1993.'° R19-152-53; R20-18. With the

influx of Allied Signal’s resources, conditions at the plant

improved. R20-80. The purchase agreement eventually fell

through and shortly thereafter the facility closed. After the

plant closed, Randall, through the bankruptcy counsel,

requested $1,500,000 in additional funds from the bankruptcy

court to deal with the environmental im -: of closing but the

request was denied. R9-228, Ex.’ . 2, 7, Feb. 8, 1994,

letter from M. Patrick M. Nuciarorie.

The Georgia EPD turned the closed plant over to the U.S.

Environmental Protection Agency (EPA) for cleanup and

EPA estimate that the cleanup will cost more than $50

'2 By letter, the bankruptcy creditors’ committee advised the state

judge of the bankruptcy proceedings and “the likely consequences

that would result from any closing of the Brunswick plant.” R9-228,

Ex. B at 1. The committee represented that “even if actual production at

[the plant] was to cease, Hanlin would have an obligation to continue to

spend considerable amounts of money at [the] plant in order to avoid the

possibility of an environmental catastrophe.” /d at 2. A possible

environmental impact of shutting the plant down included “additional

mercury leakage.” R20-147; R19-83-84.

'? White continued at the plant as manager until the plant closed.

R20-18. Z

~~ ee ee ee ee ae oe a eee 7

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million. R20-380; R21-57. Taylor, as one of the ten LCP

employees approved by the EPA to participate in the site

cleariup, assisted in the decommissioning of the cellrooms

and ran the water treatment plant built by the EPA. R21-55-

56. The cleanup was paid for by the government and

Hanlin’s predecessors at the site: Allied Signal (successor to

Allied Chemical), ARCO, and Georgia-Power Company.

R21-39-40,

The government indicted Christian Hansen, Randall

Hansen, Douglas Brent Hanson, and Alfred R. Taylor for

conspiracy to commit environmental crimes at the site

between | July 1985, and 1 February 1994, 18 U.S.C. § 371,

(Count 1), and various substantive crimes.'* R1-]-]. The

charges included: violating the Clean Water Act (“CWA”),

33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, by exceeding

the NPDES permit between June 1993 and January 1994

(Counts 2-21); violating the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. §§ 6928(d)(2)(A) and

(e), and 8 U.S.C. § 2, by storing wastewater on the cellroom

floor and permitting some to escape into the environment

between 29 May 1993 and | February 1994 (Counts 22-32),

storing wastewater in the Bunker “C” tanks between 23 July

1993 and 1 February 1994 (Count 33), and knowingly

endangering employees by exposing them to impermissibly

stored wastes and wastewaters between 29 May 1993 and |

February 1994 (Count 34); violating the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. § 9603(b)(3), by failing to notify the

U.S. government of unpermitted releases of chlorine or

wastewater into the environment between 2] July and 23

October 1993 (Counts 35-41); and violating the Endangered

Species Act, 16 U.S.C. § 1538(a)(1)(B), 1538(g), and

'* Two other plant employees, Duane Outhwaite and Christopher

Dunn, were charged Separately and entered into plea agreements.

R8-200-7 n. 5,

ee ds abtaabtthe Doi Kat eo at

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1540(b)(1), by taking an endangered species, a Wood Stork,

as a result of discharging mercury into the marsh, Purvis

Creek, and the Turtle River (Count 42). Rl -l. Hansen was

charged with Counts 1-42, Randall was charged with Counts

1-34 and 42, Hanson was charged with Counts 1-6, 10-22, 24,

26-32, and 34-42, and Taylor was charged with Counts 1-32,

and 34-42. Jd. Hanson, the former environmental and health

and safety LCP manager, pled guilty to a CERCLA offense

(Count 41) and the offense under the Endangered Species Act

(Count 42) and testified against Hansen, Randall, and

Taylor.'° R3-83; R20-6. At the conclusion of the defendants’

case, the district judge granted their motion for acquittal as to

Count 42 but denied the motion as to all other charges.

R6-123. Hansen was convicted of all counts, Randall was

convicted of all charged counts, and Taylor was convicted of

Counts 1-3, 10-11, 22-26, 29-32, 34-35, and 38-41. R22-214-

15. Their renewed motions for acquittal and motions for

judgment notwithstanding the verdict and/or for a new trial

were denied. R7-145, 146, 153-54, 163; R8-200.

Hansen was sentenced to 108 months of imprisonment, a

fine of $20,000, a special assessment of $2,050, and two

years of supervised release. R8-214. Randall was sentenced

to 46 months of imprisonment, a fine of $20,000, a special

assessment of $1,700, and two years of supervised release.

R9-236. Taylor was sentenced to 78 months of imprisonment,

a special assessment of $1,000, and two years of supervised

release. R8-215. Each defendant appealed, and was allowed

to remain on bond pending appeal. R8-219, 221; R19-226,

238-40.

On appeal, Hansen raises four issues: (1) the district court

erred in admitting the government’s expert witness testimony;

(2) the district court’s instructions misstated the reasonable

15 Hanson was sentenced to eighteen months of imprisonment, and one

year of supervised release on each count, concurrent. R8-123.

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doubt standard, improperly applied the concept of reasonable

corporate officer, improperly defined the elements of

knowing endangerment, and effectively eliminated the mens

rea requirement from each statutory violation; (3) the

evidence was insufficient to support his convictions; and (4)

the district court erred in concluding that it lacked the

authority to depart from the applicable sentencing guidelines.

Randall argues that: (1) district court erred by not granting his

motion for judgment of acquittal because the evidence was

insufficient to support his conviction for knowing endanger-

ment under the RCRA and the government never proved

causation on counts 2-33; (2) the district court’s instructions

were erroneous on the elements of the charged substantive

offenses and on the responsible corporate officer instruction

as an alternative basis for criminal liability; (3) the district

court erroneously admitted high prejudicially and irrelevant

evidence; and (4) the district court erred by declining to

‘depart downward. Taylor maintains that the district court

erred: (1) by not granting his motion for judgment of acquittal

and for a new trial based on insufficiency of the evidence; (2)

in its instruction concerning the wastewater treatment system;

and (3) in sentencing him.

[l. DISCUSSION

A. Admission of Expert Witness Testimony

Hansen argues that the district court erred in admitting

testimony from government expert witness Daniel Teitelbaum

because the government failed to disclose Teitelbaum’s

checkered history of credibility and the court failed to

conduct a hearing regarding the testimony. Hansen also

maintains that the district court erred in admitting the

testimony of Teitelbaum and government expert witness

Christopher Reh because the testimony was unreliable,

irrelevant, and highly prejudicial. The government responds

that Hansen waived the arguments regarding Teitelbaum’s

testimony by failing to object to the testimony at trial.

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The week before trial, Hansen moved for a Daubert ”

hearing and to exclude the testimony of expert witnesses

regarding certain allegedly scientific conclusions and

exhibits. R4-94-95; R6-110-1. Noting that the motion was

directed to the expert testimony regarding the effect of high

mercury levels on endangered species as charged in Count 42,

the district court denied it, finding that the motion did “not

identif[y] the source, the substance, or most importantly the

underlying methodology of this testimony” and _ that,

therefore, there was “no underlying methodology or reason-

ing for the court to assess.” R6-110-1-2, 4.

During the trial, Teitelbaum confirmed that he had

previously testified as an expert witness, and explained that

“it has been a regular portion of [his] practice over the

years.”'’ R20-230-31. Hansen neither objected nor examin-

ed Teitelbaum after the government moved to tender

Teitelbaum as an expert, and the court directed that the jury

consider him an expert in his field. /d. at 232.

Teitelbaum testified regarding the plant employees’

potential exposure to hazardous substances. Based on his

review of “the large number of biological samples,” “many

interviews,” the “documents concerning the health and

'© Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S. Ct. 2786

(1993). In Daubert, the Court held that, when “[flaced with a proffer of

expert scientific testimony, . . . the trial judge must determine. . . whether

the expert is proposing to testify to (1) scientific knowledge that (2) will

assist the trier of fact to understand or determine a fact in issue.” /d.

at 592 113 S. Ct. at 2796.

'? On cross-examination, Teitelbaum stated that this was the first time

that he had testified as “a consultant for the U.S. Attorney,” but explained

that he had testified “for OSHA many times,” “for the Department of

Justice a number of times,” and for “the EPA.” R20-255-56. He was

asked whether he considered the government to be a “pretty good

customer” for his services, and responded that he did not “take any money

from the government” for consulting services. /d. at 256.

17a

hygiene program,” and other documents, he found “a sub-

Stantial amount of spillage of sodium hydroxide,” “numerous

chlorine leaks,” and spills and leaks of hydrochloric acid at

the plant. R20-233-35; see also 248-49. He noted that,

because the sodium hydroxide spillage had a very high pH

and was quite’caustic, contact with the spillage could cause a

first- to third-degree burn, or even be lethal. /d. at 233-34.

Teitelbaum explained that exposure to the chlorine leaks

could cause “severe injuries to eyes, upper airways, and

lungs, and, under some circumstances, death.” /d. at 234. He

commented that hydrochloric acid was a “classic poison”

which would also cause burns and potential death. /d. at 234-

35. Based on the biological samples, he concluded that the

employees were in danger of death or serious bodily injury.”

Id. at 244-45, 248. Finally, Teitelbaum noted that the data

showed the mercury levels in the workers’ urine were

“between two and five times the acceptable level of excretion,

based on the World Health Organization or the NIOSH

recommendations.” /d. at 244-45. No objections were raised

to his testimony. /d. at 232-63.

At sentencing, the probation officer noted that he had

“discredit[ed]” one of Hansen’s witnesses “because he was

not even at the LCP Plant” and “did not have firsthand

knowledge to see this.” R13-26. Hansen’s attorney

responded that, based on the probation officer’s theory,

Teitelbaum’s testimony should also be discounted “because

he never went to the plant before it was shut down.” /d

at 28. The district judge commented that Teitelbaum “made a

very credible witness. I think the best witness that the

Government had.” /d. at 29.

We review for abuse of discretion both the district court’s

decisions regarding the admission of expert testimony and

reliability of an expert, Kuhmo Tire Co. Ltd. v. Carmichael,

526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1989), and the

denial of a Daubert hearing, United States v. Nichols, 169

18a

F.3d 1255, 1263 (10th Cir. 1999). “Absent an objection,

we can review the challenged evidence only for plain

error. Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th

Cir. 1995).

Scientific expert testimony is admissible if “(1) the expert

is qualified to testify competently regarding the matters he

intends to address; (2) the methodology by which the expért

reaches his conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3) the

testimony assists the trier of fact, through the application of

scientific, technical, or specialized expertise, to understand

the evidence or to determine a fact in issue.” City of

Tuscaloosa v. Harcros Chems, Inc., 158 F.3d 548, 562 (11th

Cir. 1998). In Daubert, the Supreme Court suggested a

flexible inquiry regarding the methodology considering such

factors as “whether it can be (and has been) tested,” whether

it “has been subjected to peer review and publication,’’ the

known or potential rate of error, “the existence and

maintenance of standards controlling the technique’s

operation, and the degree it is accepted as reliable within the

relevant scientific community.” 509 U.S. at 591, 593-94, 113

S. Ct. at 2795-96. Daubert hearings are not required, but may

be helpful in “complicated cases involving multiple expert

witnesses.” City of Tuscaloosa, 158 F.3d at 564-65 n. 21. A

district court should conduct a Daubert inquiry when the

opposing party’s motion for a hearing is supported by

“conflicting medical literature and expert testimony.” Tanner

vu. Westbrook, 174 F.3d 542, 546 (Sth Cir. 1999). Consistent

with Daubert, the evidence must be scientifically related to

the disputed facts at issue in the case. Allison v. McGhan

Med. Corp., 184 F. 3d 1300, 1312 (11th Cir. 1999).

Hansen’s motion for a Daubert hearing was neither

addressed to the charges to which Teitelbaum testified, or his

testimony in general, nor supported by the source, substance,

or methodology of the challenged testimony. Hansen failed

a ee ee

19a

to object to either Teitelbaum’s qualification as an expert or

his testimony during trial. Teitelbaum’s testimony was based

on his review of biological samples, interviews, and

documents, and assisted the truer of fact in understanding the

potential injuries that could result from the conditions at the

plant. The district judge did not abuse his discretion by

denying the motion or by admitting the testimony.

To the extent that Hansen raises a Brady '* claim that the

government suppressed exculpatory or impeachment

evidence by failing to disclose Teitelbaum’s “checkered”

past, we find that it is without basis. In order to state such a

claim, a defendant must show (1) “that the government

possessed evidence favorable to the defendant (including

impeachment evidence). . .; (2) that the defendant does not

possess the evidence nor could he obtain it himself with any

reasonable diligence. . . (3) that the prosecution suppressed

the favorable evidence. .- ; and (4) that had the evidence been

disclosed to the defense, a reasonable probability exists that

the outcome of the proceedings would have been different.”

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989)

(per curiam). In this case, the evidence which Hansen alleges

the government failed to disclose consists of court opinions

either disregarding or discrediting Teitelbaum’s testimony.

Although Hansen argues that the government knew of this

discredited testimony based on Teitelbaum’s previous test-

imony for the government, Hansen fails to show that the

government was in actual possession of the information or

actually suppressed it. Further, the information was available

to Hansen through reasonable diligence both before and

'® Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. | 194, 1196-97 (1963)

(“The suppression by the prosecution of evidence favorable to the accused

upon request violates due process where the evidence is material to guilt

or to punishment, irrespective of the good faith or bad faith of the

prosecution.”).

20a

during the trial.'? The cases were all available through legal_

research and information on them could have been, but was

not, addressed during Teitelbaum’s testimony. Finally, the

cases relied on by Hansen all relate to Teitelbaum’s testimony

in tort actions as to causation of a specific injury. They do

not, therefore, have probative value as to his testimony

regarding potential health effects of the chemicals or the

employees’ risk of death or serious injury after exposure to

these chemicals. Hansen is unable to show a reasonable

probability that the information would have changed the

outcome of the proceedings.

Christopher Reh, an employee of the National Institute for

Occupational Safety and Health (“NIOSH”), also testified for

the government. R20-192. The district judge qualified him

as an expert in the field of industrial hygiene.’ Id. at 194.

'? Hansen argues that Teitelbaum’s testimony was “discredited” in four

cases: General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512

(1997), Sweger v. Texaco, Inc., Nos. 88-1781, 88-1834 and 88-2745

(10th Cir. Feb. 22, 1991); Land v. United States, 35 Fed. Cl. 345 (1996),

and National Bank of Commerce v. Associated Milk Producers, Inc., 22 F.

Supp. 2d 942 (E.D. Ark. 1998). In General Elec. Co., the Court found

that the district court did not abuse its discretion in excluding the

testimony of Teitelbaum (and other expert witnesses) because the studies

on which he relied were not sufficient to support his conclusion. 522 U.S.

at 146-47, 118 S. Ct. at 519. In Sweger, the court found that Teitelbaum's

testimony did not provide the necessary certainty to establish causation.

Sweger, slip op. at 1, 5-6. In Land, Teitelbaum appeared as the plaintiffs’

medical expert. 35 Fed. Cl. at 352 n. 7. The hearing officer found

Teitelbuam’s “'preliminary’ medical opinion” regarding the cause of the

plaintiffs’ injuries to be “of little value because Dr. Teitelbaum did not

conduct physical examinations of the plaintiffs.” /d. In National Bank of

Commerce, the court found that Teitelbaum’s view of the causation of the

plaintiffs cancer was “undercut by the inadequacy of . . . reliable scientific

proof of causation.” 22 F. Supp. at 967.

” Neither Hansen nor his codefendants questioned Reh regarding his

background or his area of expertise and raised no objections to Reh’s

qualification. R20-194.

ee ee en

2la

Reh explained that he was assigned to the Brunswick plant as

the project officer after NIOSH received “a valid request for a

health hazard evaluation” from one of the plant’s unions in

1987.7! Jd. at 196. He said that, during the initial site visit,

he and his team met with Taylor, a plant engineer, and a few

union representatives to discuss the request.” /d. at 196-98.

They visited the plant, and observed “mercury in many places

on the cellroom floor in cracks or crevices,” and passively

monitored mercury exposure in the workers’ “breathing

zone.” /d. at 198-99. They found that the plant was not using

the creatnine monitoring scale, but were reporting mercury

levels by “micrograms per liter.” /d. at 204. The monitors

found that mercury exposure exceeded the NIOSH and

OSHA recommended levels.”° Taylor’s objection to further

testimony from Reh on the grounds of relevance was

overruled. /d. at 201. Reh and his team advised Taylor of

their findings by letter and recommended use of creatnine

correction urine mercury monitoring which would indicate

the amount of mercury per gram of creatnine. /d. at 201-03:

Govt. Ex. 40-lb. From the results of the first visit, the team

made a second visit to conduct a more in-depth study in 1988.

R20-202. During the second visit, the team used an active

sampling method to determine 28 workers’ breathing zone

exposure levels, collected urine samples from 58 workers,

and administered questionnaires to and conducted physical

*' Reh indicated that they were requested to evaluate the health hazards

associated with mercury, chlorine, and hydrochloric acid. /d R20-199.

203; Govt. Ex. 40-Ib.

* The NIOSH team consisted of Reh. a medical doctor, and another

industrial hygienist. R20-198.

* Reh explained that the MOSH recommended exposure levels

(“REL”) were 50 micrograms of mercury per cubic meter of air and that

the OSHA permissible exposure levels (“PEL”) are 100 micrograms of

mercury per cubic meter of air. R20-200. He said that all of the sixteen

monitored workers showed RELs above 50, and eleven of the monitored

workers had levels above the PEL. /d at 200-01.

22a

examinations of 65 workers. /d. at 205-07. Taylor was

provided with a written interim report in 1988 and.a final

report in 1991, both of which showed that workers had

mercury levels above recommended standards.”* /d. at 207-

08, 210, 214; Govt. Ex. 40-Ic and Id.

The government offered Reh’s testimony to show that the

workers were placed “in imminent danger of death or serious

bodily injury” and that Hansen, Randall, and Taylor were

aware of the workers’ exposure to hazardous substances.

This testimony supports both of those propositions. The

district court did not abuse its discretion by admitting the

testimony of Reh.

B. Insufficiency of the Evidence

We review the denial of a motion for a new trial for abuse

of discretion, and the denial of a motion for judgment of

acquittal de novo. United States v. Pistone, 177 F.3d 957,

958 (11th Cir. 1999) (per curiam). To uphold the denial of a

motion for judgment of acquittal, we “need only determine

that a reasonable fact-finder could conclude that the evidence

established the defendant’s guilt beyond a reasonable doubt.”

Id. When considering the sufficiency of the evidence, we

“view the facts and draw all reasonable inferences therefrom

in the light most favorable to the government.” United States

v. Slocum, 708 F.2d 587, 594 (11th Cir. 1983).

1. Position of authority

“To prove aiding and abetting, the government must

demonstrate that a substantive offense was committed, that

the defendant associated himself with the criminal venture,

and that he committed some act which furthered the crime.”

* Reh reported that they found that 29 of the tested 58 workers had

urine mercury levels which exceeded the World Health Organization

recommended standard of 50. R20-208, 210. The average level was 136

micrograms per gram of creatinine, with a range from 2 to 689. /d. at 210.

23a

United States v. Hamblin, 911 F.2d 55 l, 557 (11th Cir. 1990).

“[T]he government must show that the defendant shared the

same unlawful intent as the actual perpetrator” but does not

~need to prove that “the defendant was present at the scene

when the crime occurred, or that he was an active

participant.” Jd. at 557-58; United States v, Pepe, 747 F.2d

632, 665 (11th Cir. 1984) (“aider and abettor. . . need not

even be present”). “Encouraging” a violation and

“discouraging” the reporting of the violation, United States vy.

Sinskey, 119 F.3d 712, 718 (8th Cir. 1997), and “personally

attempting to avoid [a violation’s] detection by the [RCRA]

inspectors,” United States v. Self, 2 F.3d 1071, 1089 (10th

Cir. 1993), have been held sufficient to show that a defendant

aided and abetted the commission of a crime.

The indictment alleged that the defendants, “after learning

that the Brunswick facility was disposing of hazardous

wastes. . . without a RCRA permit, continued to operate the

Brunswick facility in such a manner as to continue the

disposal of these hazardous wastes without expending

adequate funds. . . to prevent the disposal of such hazardous

wastes into the environment.” RI-1-11. The jury was

instructed that the defendants were responsible for the acts of

others that they “willfully directed,” “authorized,” or aided

and abetted by “willfully joining together with [another]

person in the commission of a crime.” R22-181. The district

court denied Taylor’s motion to acquit or for a new trial on

these charges finding that “the Defendants worked for LCP in

positions of responsibility and authority while. . . the

violations took place.” R8-200-23.

a. Hansen

Hansen maintains that the evidence failed to show that he

was in a position of authority after he was deposed as CEO in

April 1993 until he began serving as plant manager on 16

July 1993, and not after he was Officially replaced as plant

manager by Allied employee Mark White on 18 October

24a

1993. Therefore, he contends that the district court erred in

not granting his motion for judgment of acquittal as to the

18 counts that occurred after 18 October 1993 (Counts 6-9,

14-15, 19-21, 23, 25, 29, 30-32, 38-40), the two counts that

occurred between April and July 1993 (Counts 2 and 10), and

the count that arose on 22 October 1993 (Count 33).

The testimony at trial indicated that Hansen was aware that

wastewater was permitted to flow out the cellroom back door

in June 1993,”° and directed the use of the old Bunker C

storage tanks for storage of wastewater, including the

inadequately treated wastewater from the treatment system,

from July through September 1993.7 Although the acts

continued after Hansen left his decision-making position, the

acts occurred at his direction. This evidence was sufficient

for the jury to reasonably conclude beyond a reasonable

doubt that his acts were in furtherance of the violations. The

district court did not err in denying Hansen’s motion for

judgment of acquittal or motion for new trial.

b. Randall

Randall claims that the government presented no evidence

that he personally treated, stored, or disposed of a hazardous

waste, personally effected a CWA violation, or instructed an

agent to do so. He maintains that, under the laws of

bankruptcy and corporate governance, he lacked the authority

to close the plant or to allocate the funds for the needed

2° Testimony of LCP former assistant production manager James Dunn,

R20-327-28, 341.

Hanson, R20-48-49, LCP maintenance handler and expeditor George

Mower, P20-1 83, and LCP former production manager Duane Outhwaite,

R20-350. Outhwaite testified that the storage tanks were used for

wastewater overflow to keep the inadequately treated wastewater from

“running out the door” and to help prevent the deep pools of wastewater

from forming on the cellroom floors. R20-350, 358.

SS ee ee ee ee

bs = 1? a

25a

capital improvements. He contends that LCP needed the

bankruptcy court’s approval to use the bankruptcy estate’s

assets, or to obtain a new debt, to perform the needed repairs

at the Brunswick plant.

In February 1994, LCP applied to the bankruptcy court for

the funds “to shutdown” the plant and for new equipment, but

the motion was denied. Def. Randall Ex. 1, Amended Notice

of Motion at 5; R9-228, Ex. C and 8 Feb letter. Hanlin Board

of Directors member James Mathis testified that Randall was

responsible for “run{ning] the day-to-day operations of the

company” once he became the interim CEO and COO. R19-

160. He said that the Board was “very interested in whether

the environmental problems-whether we were in a position of

compliance with the environmental regulations. But the

information that we had indicated that, really, compliance

was not a problem.” /d. at 164. He explained that, as a result

of the weekly reports on the plant’s operations, the Board

believed that “there were really no excursions of any

significance going on”. /d. at 165.°’ Mathis said that Randall

“had the primary responsibility” for providing information

regarding the environmental compliance issues to the Board

and that Hansen fed “information to Randall in that regard.”

Id. at 166. He agreed that the decision to sell the plant would

have been a board decision requiring the approval of the

bankruptcy court. /d. at 174-75,

LCP, as a debtor in possession, could “use the property of

the estate in the ordinary course of business,” but needed

court approval to “use, sell, or lease, other than in the

ordinary course of business, property of the estate.” 11

U.S.C. § 363(c)(1) and (b\(1). It could obtain unsecured

”” Mathis testified that there were places on the report forms for the

“number of excursions” or environmental noncompliances which “were

filled in with ‘zeros’ each time.” R19-165. He said that they later leamed

that the zeros were clerical errors. /d

26a

credit. . . in the ordinary course of business,” but needed court

approval “to obtain unsecured credit or to incur unsecured

debt other than” “in the ordinary course of business.” /d. at

364(a) and (b). Bankruptcy does not insulate a debtor from

environmental regulatory statutes. In reviewing an injunction

to clean up a hazardous waste site, the Supreme Court

commented:

[W]e do not suggest that [the debtor’s] discharge [in

bankruptcy] will shield him from prosecution for having

violated the environmental laws . . . or for criminal

contempt for not performing his obligations under the

injunction prior to bankruptcy. . . [W]e do not hold that

the injunction . . . against any conduct that will

contribute to the pollution of the site or the State’s

wasters is dischargeable in bankruptcy. . . Finally, we do

not question that anyone in possession of the site. . .

must comply with the environmental laws. . . Plainly,

that person or firm may not maintain a nuisance, pollute

the waters of the State, or refuse to remove the source of

such conditions.

Ohio v. Kovacs, 469 U.S. 274, 284-85, 105 S. Ct. 705, 710-11

(1985). See also Midatlantic Nat’l Bank v. New Jersey Dept.

of Envtl. Protection, 474 U.S. 494, 407, 106 S. Ct. 755, 762

(1985) (A bankrupt debtor in possession “may not abandon

property in contravention of a . . . regulation that is

reasonably designed to protect the public health or safety

from identified hazards.’’)

Although Randall claims that his role as Executive Vice-

President and acting CEO was limited to financial matters, he

also received daily reports about the plant’s operations and

environmental problems, R16-97-98, R21; 359, wrote and

received memos regarding specific plant operational

problems, Govt. Ex. 104, 1-6f, 1-8a, 1-12, received monthly

written environmental reports, Govt. Ex. 10-lo-l0-Inn, 10-7c-

7d, 10-7f and oral environmental reports, R21-64, 359. He

;

27a

admitted that Hanlin’s bankruptcy was not an excuse for

violating environmental laws. R21-219-21. -There is no

indication that he asked the Hanlin Board or the bankruptcy

court to close the plant. The evidence indicates that he

apparently misled them into believing that environmental

compliance was not a problem. After the Georgia EPD

attempted to revoke the plant’s NPDES permit in June 1993,

Randall contested the revocation, explaining that the plant’s

CWA violations were due to a lightning strike and equipment

failures, and asserted that “LCP has already taken steps to

improve the situation.” Govt. Ex. 10-6. This evidence was

sufficient for the jury to conclude that Randall actions were in

furtherance of the violations.

i c. Taylor

Taylor argues that he should not be held responsible for the

environmental violations that occurred after he resigned as

plant manager, specifically counts 2-3, 25, 29-32, 38-41.

Taylor resigned as plant manager on 16 July 1993, R21-245,

but returned shortly thereafter as a project engineer and

continued in that position until the plant closed, R21-246-47,

317-18. As project engineer, Taylor was directly involved in

responding to the plant’s environmental and safety problems

and, at Hansen’s request, developed a list of short-term

solutions to the problems with estimated costs. R20-338;

R21-247-48. Taylor’s proposed solutions were subsequently

funded. R21-247-48.

Although Taylor left his managerial position, he continued

to work in a position in which he directed or authorized acts

of the employees on environmental and safety problems.”

™ Despite Taylor’s resignation as plant manager and his re-

employment as project engineer, he was considered to be in a

management position. See R20-152 (D. Brent Hanson testified that

Taylor was his immediate supervisor both before and after his resignation

and re-employment); id at 335 (Dunn testified that Taylor “probably

28a

Testimony at trial indicated that, in October 1993, Taylor was

aware of the wastewater overflow from the cellrooms, the

excess loss of mercury, and the use of the tank cars for

wastewater storage, and that he supervised the release of the

overflow.” This evidence was sufficient for the jury to

conclude beyond a reasonable doubt that these acts were in

furtherance of the violations. The district court did not err in

denying his motion for a new trial.

2. Hazardous substances or materials

Taylor and Hansen argue that the government failed to

prove that the untreated wastewater contained enough

mercury and caustic to meet the environmental laws’

definition of hazardous substances or materials, or that the

untreated wastewater was improperly stored.

would have been plant manager” in late 1993), 337 (Dunn said that in

“October of ‘93 | would assume [Taylor] was plant manager.”); id. at 312,

Govt Ex. 13-4 (19 January 1994 letter from Georgia EPD acting unit

coordinator Susan Eason to “Plant Manager” Taylor in which she

referenced Tayltor’s explanation for “NPDES excursions” at a 6 December

1993 meeting). But see Govt. Exs. 13-2ff, gg, hh, ii, and jj (letters

from Mark S. White, as “Plant Manager,” to EPD dated October-

February 1994).

”? Testimony of James Dunn. R20-335-39. Taylor directed a

memorandum addressing the mercury losses and suggesting a solution to

LCP employee Chris Dunn on 4 October 1993. Govt. Ex. 19-5. Dunn

responded “yes” when asked whether Taylor was aware of the overflow

release from the backdoor of the cellroom. R20-327-28. Dunn testified

that Taylor observed the overflow “on the ground.” /d. at 336. Dunn said-

that he told Taylor he was having trouble pumping the waste into the tank

cars and that mercury loss was due to “leaks coming out of the products or

it was tied up in hazardous waste muds.” P20-337,339. By

memorandum, Taylor proposed a flow plan for the projected waste

streams of “19 to 125 gallons per minute” when the wastewater treatment

system was only working at a 40 gallon per minute capacity. /d. at 340;

Govt Ex. 19-4a. Wilbur Outhwaite testified that Taylor advised that the

employees needed to empty the wastewater from the tank cars. P20-356.

29a

a. Hazardous substances as defined

OSHA chemist Clinton Leroy Merrell testified that

samples which were submitted from LCP on 9 September

1992 tested as containing 8 to 30 parts per million of

mercury, and six to ten-percent caustic, with a pH of 14.

R21-163, 165-67; Govt. Exs. 45-6, 45-9. Former LCP plant

manager Hugh Leroy Croom testified that, in January 1993,

the untreated wastewater may have had “a high pH, and.. .

some mercury,” but would not have contained mercury

Sludge. R16-91, 131-32. He said that the PH could be high

enough to be a danger “at times” but that it did not stay high

and varied according to the spills. Jd. at 132; R19-35-36.

However, he testified that muds containing mercury and

Caustic were washed onto the cellroom floors every three or

four days when the treatment System’s filters were back

washed. R16-127-28; R19-103. When asked whether the

wastewater on the cellroom floors would be considered a

hazardous waste, Croom responded “[mJost of the time,

probably it was.” R16-1 12-13 see also Id. at 128 (Croom

admitted that wastes on the cellroom floor were listed as

hazardous wastes).

Dr. Teitelbaum testified that a fall and submersion into

caustic soda with a pH of 14 would cause a third-degree burn

over the entire body with a likelihood of death. R20-24 1-42.

LCP former employee Duane Carver testified that, some time

between 1987 and 1993, he stepped into the cellroom sump

hole and went in up to his waist. R19-226-28. He knew that

the pH was “pretty high” because he quickly felt it. /d. at

228. He showered and was able to get most of it off so that

he “didn’t get burned all the way” and did not seek medical

attention. /d. at 229-30, 251.

Environmental Protection Agency regulatory expert Paul

Peronaud explained the hazardous waste Classifications to the

30a

jury, R21-11-13, and the jury was instructed as to various

types of hazardous wastes, R22-199-200.°

The Waste Water Treatment Operators Logs for the periods

of the indictment showed that the wastewater often contained

more than 200 parts per billion of mercury.*' Govt. Exs. 4, 5,

°° Specifically, the jury was instructed:

[Tjhe following wastes are listed as hazardous wastes under the

Resource Conservation and Recovery Act, that is, RCRA:

K- 106 is wastewater treatment sludge from the mercury cell

process in chlorine production.

K-071 is brine purification muds from the mercury cell process

in chlorine production, where separately prepurified brine is not

used.

And U-151 is simply mercury.

Now you are instructed that a solid waste exhibits the

characteristic of toxicity for mercury if, using the test methods set

forth in the regulations, a representative sample of the waste

contains mercury at a concentration of equal to or greater than 0.2

milligrams per liter.

Under the law, liquid wastes which are “corrosive” are identified

as hazardous wastes. A liquid waste is considered to be corrosive if

a representative sample of the waste is aqueous and has a pH less

than or equal to 2 or greater than or equal to 12.5.

I instruct you that when a hazardous waste listed under the

regulations is mixed with a solid waste, the resulting mixture is a

hazardous waste if the reason for the listing of the hazardous waste

is that it is a toxic waste.

P22-199-200.

*' LCP former employee Carver explained that the line for

“Discharge HC (ppb)” showed “the mercury level in the discharge water

coming from the wastewater system.” R19-209. The logs provided for

thirteen readings per day, but readings were typically taken only twelve

times per day. Mercury levels were recorded as above 200 for nine

readings on 17 April, six readings on 28 June, eight readings on 28

August, four readings on 29 August, three readings on 12 September, four

readings on 6 October, two readings on 9 October, three readings on 13

October, nine readings on 18 October, six readings on October 22, and

3la

6-1. Former LCP employee Dunn testified that Taylor

directed the employees to “put a sign up” labeling the

wastewater in the rail cars as “({hjazardous waste materials.”

R20-345. Taylor testified that the pH of the plant’s

wastewater was normally between seven and ten, and in

concentration of eight to ten percent, R21 -262, 264.

A “hazardous waste” is defined as a solid waste, or

combination of solid wastes, which because of its

quantity, concentration, or physical, chemical, or

infectious characteristics may—

(A) cause, or significantly contribute to an increase

in mortality or an increase in serious irreversible, or

incapacitating reversible, illness: or

(B) pose a substantial present or potential hazard

to human health or the environment when improperly

treated, stored, transported, or disposed of or

otherwise managed.

42 U.S.C. § 6903(5). Hazardous wastes are categorized as

either “listed” hazardous substances or “characteristic”

hazardous substances. 40 C.F.R. § 261.3(a); R21-11-15. The

“characteristic” hazardous substances are not per se hazard-

ous but may be classified as hazardous if, because of a

mixture with a hazardous substance, testing proves that the

substance exhibits characteristics of hazardous waste. 40

C.F.R. §§ 261.3(a)(2)(i) and 261.20(a).. Characteristics of

hazardous waste include ignitability, corrosivity, reactivity,

and toxicity. 40 C.F.R. §§ 261.21, 261.22, 261.23, and

261.24. Wastewater containing mercury is classified as a

characteristic hazardous substance when the water contains

200 parts per billion or more of mercury. /d. at §261.24 (a),

nine readings on 5 November, 1993. Govt. Exs. 4, 5, 6-1. The logs show

that the system was not working during readings on 17 April, 21 June, 27-

28 June, 29 August, 12 September, 6-9 October, 12-13 October, and 18-

21 October 1993. /d .

32a

Table. “Wastewater treatment sludge from the mercury cell

process in chlorine production” is listed as hazardous waste

K106. Jd. at § 261.32. Wastewater containing caustic is

classified as a characteristic hazardous substance when the

water “has a pH less than or equal to 2 or greater than or

equal to 12.5.” Jd. at § 261 .22(a)(1). Once solid wastes are

mixed with sludge or caustic, they are defined as hazardous.

Id. at § 261.3(a)(2){iv).

Where there is no sampling of the actual wastes, the

government may prove the hazardous nature of the material

by inventories, hazardous waste logs, internal memoranda,

and trial testimony. United States v. Baytank (Houston), Inc.,

934 F.2d 599, 614 (Sth Cir. 1991). The government is not

required to prove that material is hazardous by EPA testing.

United States v. Self, 2 F.3d 1071, 1086 (10th Cir. 1993). We

find that the testimony of the former LCP employees and the

wastewater logs were sufficient for the jury to find that the

untreated wastewater contained enough mercury and caustic

to meet the environmental laws’ definition of hazardous

substances or materials.

b. Storage of hazardous materials.

Taylor and Hansen maintain that the accumulation of

wastewater on the cellroom floors did not violate federal law

because the wastewaters were not stored there for the

statutory requisite of 90 days. Croom testified that hazardous

wastewater was on the cellroom floors “[a]jt times,” R16-114,

and that hazardous materials were shipped, turned over, or

treated within 90 days, R19-41. In response to a question as

to whether wastewater on the cellroom floors was a regular

occurrence in 1992, he responded that it was in both

cellrooms in 1992, but when he left “it was just mostly in #2.”

R16-114. Former LCP employee Roger Cooper testified that

on 28 June 1993, although wastewater was pumped to the

railcars for storage from cellroom two, the cellroom one floor

was dry. R19-275-76, 28 1-82; Govt. Ex. 6-1. He explained

en et. SUN s_ ipa ke oe ae Tl 7

33a

that they “tried to keep [the wastewater in cellroom one]

pumped over to #2 cellroom” because of the possibility that

water would escape from cellroom one as a result of cracks in

its floor. R19-284-85. Dirt dikes were constructed in the

cellrooms to prevent the wastewater from leaking, but the

dikes were frequently breached. R19-256; R25-26. The

cellrooms were often “full of water” so that the employees

had to wade into Standing wastewater to repair the pumps.

R20-318; R19-205.

Hazardous waste generators are permitted to “accumulate

hazardous waste on-site for 90 days or less without a permit”

if “the waste is placed” in tanks visibly marked with “[t]he

date upon which each period of accumulation begins” and

clearly labeled as “Hazardous Waste.” 40 C.F.R.

§ 262.34(a)(I)(ii), (2), and (3). A “tank” is “a Stationary

device, designed to contain an accumulation of hazardous

waste which is constructed primarily of non-earthen materials

. .. which provide structural support.” 40 C.F.R. § 260.10.

There was no evidence that suggested that the cellrooms, in

which earthen berms were constructed to contain the

wastewater, were marked with the date of accumulation or

labeled as containing hazardous wastes and thus qualified as

“tanks.” The testimony and logs indicate that the wastewater,

which may have abated in cellroom one during various

periods of time, remained in cellroom two and was present

for more than 90 days. Therefore, the evidence was sufficient

for the jury to find that the wastewater was improperly stored.

3. Knowing Endangerment Under RCRA

Hansen, Randall, and Taylor argue that the evidence was

insufficient to convict them for knowing endangerment.

They acknowledge that the government may have shown that

they “could have been aware” of the inherent dangers of

working in a chlor-alkali plant, but argue that it failed to show

that they knew and had an actual belief that the conduct

34a -

which allegedly violated the environmental laws was

substantially certain to cause death or serious bodily injury to

others. Specifically, they maintain that, while the evidence

showed that the employees were exposed to mercury, the

evidence did not show that they were endangered due to any

RCRA violation. They contend that the evidence of the

employees’ exposure to caustic was not sufficient to support

the conviction for knowing endangerment. They claim that

the government did not show that they had actual knowledge

that their conduct in causing the RCRA violation was at that

time substantially certain to place the employees in imminent

danger of death or serious bodily injury. They also posit that

there was no evidence that they were participants in any

alleged conspiracy.

For a conviction of knowing endangerment under the

RCRA, the government must prove that the defendants

knowingly caused the illegal treatment, storage, or disposal

of hazardous wastes while knowing that such conduct placed

others in imminent danger of death or serious injury.

42 U.S.C. § 6928(e). A defendant acts “knowingly” “if he is

aware or believes that his conduct is substantially certain to

cause danger of death or serious bodily injury.” /d. at

6928(f)(I(C). The defendant must have possessed “actual

awareness or actual belief.” Jd. at 6928(f)(2)(A). Circum-

stantial evidence, “including evidence that the defendant took

affirmative steps to shield himself from relevant infor-

mation,” may be used to prove the defendant’s awareness or

belief. /d. The knowing endangerment statute was drafted to

“assure to the extent possible that persons are not prosecuted

or convicted unjustly for making difficult business judgments

where such judgments are made without the necessary

scienter” “however dire may be the danger in fact created.”

S. Rep. 96-172, at 37-38 (1979), reprinted in 1980

U.S.C.C.A.N. 5019, 5036-38. The penalties imposed by the

knowing endangerment section were “designed for the

occasional case where the defendant’s knowing conduct

35a

shows that his respect for human life is utterly lacking and it

is merely fortuitous that his conduct may not have caused a

disaster.” /d. at 38, 1980 U.S.C.C.A.N. at 5038. We have

held that “(t]he government need only prove that a defendant

had knowledge of the general hazardous character of the

chemical” and knew “that the chemicals have the potential to

be harmful to others or to the environment.” United States v.

Goldsmith, 978 F.2d 643, 645-646 (Ilth Cir. 1992) (per

curiam) (internal quotations and citation omitted). “(While

knowledge of prior illegal activity is not conclusive as to

whether a defendant possessed the requisite knowledge of

later illegal activity, it most certainly provides circumstantial

evidence of the defendant’s later knowledge from which the

jury may draw the necessary inference.” Se/f, 2 F.3d at 1088.

The statute defines “serious bodily injury” as “(A) bodily

injury which involves a substantial risk of death; (B)

unconsciousness; (C) extreme physical pain; (D) protracted

and obvious disfigurement; or (E) protracted loss or

impairment of the function of a bodily member, organ, or

mental faculty.” 42 U.S.C. § 6928(f)(6). A condition which

may cause one of the statutorily defined conditions is

sufficient to show “serious bodily injury.” See United States

v. Protex Industries. Inc., 874 F.2d 740, 743 (10th Cir. 1989)

(finding that a serious bodily injury was suffered by

employees who contracted psychoorganic syndrome which

may Cause a mental faculties impairment).

a. The Evidence of Endangerment

Former LCP employees testified that they suffered serious

skin and respiratory conditions from the wastewater on the

cellroom floors.” A November 1992 memorandum from

* Hugh Croom explained that “when the pH was high [in the waste-

water on the cellroom floors} and somebody stepped over in it, it could

easily burn their skin on their legs.” R16-121. He volunteered that caus-

tic could “peel the skin off” a person if he or she fell into it. R19-107.

—<—<— ee

SM seria ar an reer ta 6 8 a teen ee ag cee

36a

Taylor to Randall showed Taylor’s concern for needed repairs

“to avert severe safety and environmental problems.” Govt.

Ex. 1-5. The urinalysis testing on employees showed “an

increase” in the number with mercury levels which exceeded

the 150 action level from 1986 to 1993. R21-294-96. Taylor

admitted that most of the employees in the cellroom were

removed to other plant locations “before any medical

condition occurred” but said that he did not see any “reason

to draw any correlation between” the rise in the number of

employees exposed to excess mercury and the dumping of

hazardous wastes and mercury. /d. at 294, 296.”

Expert testimony and reports linked exposure to mercury

and caustic to a variety of serious health problems. The

National Institute for Occupational Safety and Health

(NIOSH) report on sodium hydroxide caustic indicated that

local contact with caustic could result in “extensive damage

to tissues, with resultant blindness, cutaneous burns, and

perforations of the alimentary tract,” with potential for

development of “squamous cell carcinomas.” Govt. Ex. 17-

He said that airborne mercury could cause problems because of the

potential for accumulation in the body. /d. at 108. Duane Carver testified

that he received second- and third-degree burns on his thighs, R19-182,

197, and that he and other employees shoveled mercury off the cellroom

floors, R19-192. He explained that there was “plenty” of mercury to see

“under the mud and also beaded up on top in the mud.” /d. He said that

“{t]here would be so much [mercury] that it would be running off of the

mud” and that “[yJou could get a shovelful and lean your shovel over, and

the mercury would just run off the shove] onto the floor.” /d. at 192-93.

John Baker testified that the wastewater “would cause severe burns.”

Id. at 245.

*® Taylor commented that “{j]ust because the trend happened to be the

same on two completely unrelated events, does not necessarily tie them

together.” R21-296. He said that he “noticed a similar trend on two

completeiy unrelated events.” /d. at 297. He admitted “that the mercury

vapor levels in the workplace did increase” and that “drums of dried waste

can be a source of mercury.” /d. at 297-98.

37a

7b. The NIOSH report on inorganic mercury warned of the

effects of mercury and mercury vapors to the central nervous

system. Govt. Ex. 17-7c. Dr. Teitelbaum testified that

exposure to caustic could cause burns ranging from first- to

third-degree and could be lethal, and that exposure to mercury

could cause mild tremors, personality changes, some

detectable neurological abnormalities, changes in kidney

function to severe kidney damage with potential death, and

immune system problems. R20-229, 239-42. Dr. Teitelbaum

opined that the employees were in danger of death or serious

bodily injury.” R20-248. The evidence was sufficient for the

jury to find that the defendants placed others in danger of

death or serious bodily injury.

b. The Evidence of Mens Rea

The evidence showed that Hansen, Randall, and Taylor

knew that the conditions of the plant were dangerous and that

the conditions posed a serious danger to the employees. LCP

former employee Wilbur Duane Outhwaite testified that he

voiced his opposition to the use of the Bunker “C” storage

with Hansen, and that Hansen responded that it was “his

decision to make, and he decided to use them.” R20-350.

LCP acting plant manager Hugh Croom discussed his

concerns regarding the dangerous conditions in the cellroom

and the danger to the employees with Randall. R16-129-30.

Croom and LCP former employee Outhwaite testified that

Randall received daily reports from the plant managers

concerning plant operations and “safety problems.” R16-97-

98; R20-359, 374. Randall was aware of the water on the

cellroom floor and “wouldn’t say that [he] wasn’t unaware of

the hazard,” but thought that the walkway was “an acceptable

resolution” to “eliminating the hazard to the employees while

we worked to dry the cellroom floor.” R21-224-25, He

conceded that he was aware that the company was cited for

willful violation of O@4A safety regulations as a result of

water on cellroom ficwrs. /d. at 225; Govt. Ex. 10-7i. Jesse

38a

Jones, a former LCP employee and-a union representative,

met with Randall to discuss the employees’ safety issues, and

Randall promised the needed repairs. R21-148. He said that

he discussed the safety concerns, specifically “the water

condition, the deterioration of the plant with the pipes, the

leaks, and the safety equipment{]” with Hansen and Taylor.

Id. at 146. Between 3 August 1993, and 4 February 1994,

Randall was sent 22 reports listing 110 different violations

of the NPDES standards. Govt. Exs. 10-lo-10-Inn. As

LCP’s environmental manager, Brent Hanson regularly

advised Randall of the plant’s environmental problems

“[w]henever he was interested in things” and by monthly

reports. R20-64-65.

As early as 1988, NIOSH informed Taylor that the plant

employees had “extremely high” levels of mercury in their

bodies which created “an unacceptably high potential for

health effects,” and that the mercury-contaminated wastes

should be kept-in vapor-proof containers. Govt Ex. 40-lc

at 2. Despite this, the employees’ exposure to high levels of

mercury continued. In 1992, Taylor addressed his concerns

about “severe safety” problems in a memorandum to Randall.

Govt. Ex. 1-5. Taylor was aware that, during the spring of

1993, 23 cellroom employees were removed from their duty

in the cellrooms due to their high levels of mercury and

that the mercury level in the workplace increased. R21-294-

95, 297. Taylor was aware of and concerned by the mercury-

contaminated waste which was stored in drums in the

cellrooms’ basement and which was emitting elevated levels

of mercury fumes. /d. at 298-303. He admitted that the

mercury-contaminated mud on the cellroom floors posed a

health risk and needed to be monitored. /d. at 301-02. He

testified that, on occasion, he would get into the water

wearing protective equipment to make repairs and

improvements to the pumps, and admitted that, if the

wastewater got onto bare skir. and was caustic, “you would

start to feel a little burning or a little heat sensation” but that

PREBLE EIR IS OW 8 LBD aio Pw se A eo aw

Sot Ae RE BETO RON TO RIE: eee her OE De

39a

it could be neutralized by washing with the safety solution.

Id. at 263-64. He said that such burns were “not unusual” in

a caustic soda manufacturing plant through employee

carelessness and equipment failures. /d. at 264.

c. Consent to the Risks

The RCRA knowing endangerment provision can be

affirmatively defended if “the conduct charged was consented

to by the person endangered and that the danger and conduct

charged were reasonably foreseeable hazards of-A) an

occupation, a business, or a profession.” 42 U.S.C.

§ 6928(f)(3). The evidence showed that the plant’s

environmental violations seriously endangered the employees

and were not typical to chlor-alkali plants. Hugh Creom, the

plant manager for the LCP chlor-alkali plant in North

Carolina, testified that the dangerous conditions in the

Brunswick plant were not present in the North Carolina plant

because the North Carolina plant had adequate waste

treatment equipment and facility maintenance. R16-108-09,

127-29; R19-32-34, 52, 107-09, 110-11. He said that he

discussed his concerns regarding the environmental issues,

the wastewater treatment system issues, and the dangers to

the employees with Randall and with Taylor. R16-129-30.

LCP environmental manager Brent Hanson noted that,

although covering mercury with water to limit mercury

vapors was an accepted practice within the chlor-alkali

industry, it was usually practiced “in a little more confined

manner” than the condition of the cellrooms, it was not an

industry practice to allow such quantities of mercury to

accumulate on the cellroom floors, and he knew of no other

chlor-alkali plants that permitted such a condition to exist.

R20-145, 153. Dr. Teitelbaum testified that, although he did

not think that “you can get a zero risk” in a chlor-alkali plant,

he thought “you can make chlor-alkali plants safe so that

40a

workers under everyday conditions are extremely unlikely

to be hurt.” R20-245.”"

The employees also did not freely consent to conditions at

the plant. They complained to management, including

Hansen, Randall, and Taylor, about the dangerous working

conditions, and refused to work in the cellrooms. Union

representative and former plant employee Jesse Jones

testified that LCP suspended nine employees who refused to

“go underneath the cellroom to repair the pump” because of:

the wastewater on the cellroom floor. R21-138-42. Jones

said that. he discussed his concerns about the working

conditions with Hansen, Randall, and Taylor. R21-138-39,

146-48. Former employee Larry Barwick said that he

complained “to whoever would listen,” including the LCP

management, about the fumes*’ and visible mercury in the

cell buildings.*° R20-319-20. He refused to go into the

*4 He noted that “the Swedish chlor-alkali industry . . . had air levels of

20 or below and urine levels which almost never exceeded 30” in 1990,

demonstrating that such an environment was possible. P20-245. He

explained that a safe environment could be promoted by the use of

industrial hygiene, including “engineering controls, protective equipment,

substitution of materials in places where you can substitute, and

administrative controls as to how long and what kind of environments

people work in.” /d. at 246.

>> Barwick said that:

[T]he fumes from the acid burners were coming down and you

couldn’t breathe without wearing a respirator.

It would burn your skin, it would take the hair off of your arms.

It would get in your eyes, under your goggles. And everything-it

had caustic. It had bleach. It had acid fumes... After probably the

last year or year and a half, that was probably a regular everyday

thing almost, that you would get gas somewhere in [the cell

building]. P20-319-20.

*° Barwick testified that the mercury “was everywhere . . . the floors,

the ledges, the beams, any place you had to get up in to to change headers

... You would have mercury on the beams. You would have mercury on

4la

cellrooms, and was once sent home for the day based on his

refusal. R20-321. The evidence, therefore, was sufficient to

show that the defendants knew that the plant’s violations of

the CWA and RCRA violations were inevitable, that the plant

was incapable of complying with environmental standards,

and that the employees were endangered while working

within this environment without consenting to the risk.

4. Conspiracy

Hansen, Randall, and Taylor argue that the district court

erred by not granting their motions for acquittal because the

government never proved a conspiracy. They maintain there

was no showing of an agreement between them, the operation

of the plant was a legal act, and they did not pursue the

objectives of the conspiracy. Randall suggests that the

evidence showed that he took affirmative steps to improve

compliance. Taylor contends that he was not involved in the

operations at the Brunswick plant for a significant period of

the “conspiracy” and authored several memos to management

expressing his concerns regarding the plant’s operation once

he began working there. He maintains that, after assuming

the plant manager position, he recommended shutting down

the plant or at least one of the cellrooms and, when those

recommendations were rejected, he spent several months

seeking money for maintenance. He also argues that the

evidence showed that he directed that the reports be truthful

and accurate. -

To obtain a conviction under 18 U.S.C. §371, “the

government must show: ‘(1) the existence of an agreement to

achieve an unlawful objective; (2) the defendant’s knowing

and voluntary participation in the conspiracy; and (3) the

commission of an overt act in furtherance of the conspiracy.”

the floors. When you would take the headers apart, mercury would run

out of them.” R20-320.

42a

United States v. Harmas, 974 F.2d 1262, 1267 (11th Cir.

1992) (quoting United States v. Cure, 804 F.2d 625, 628-30

(11th Cir. 1986)). “An agreement may be proved by either

direct or circumstantial evidence and a common scheme or

plan may be inferred from the conduct of the participants or

from other circumstances.” United States v. Diaz, 190 F.3d

1247, 1254 (11th Cir. 1999). However, it is “essential” “that

the object of the agreement must be illegal.” United States v.

Toler, 144 F.3d 1423, 1426 (1th Cir. 1998). “Each party to a

continuing conspiracy may be vicariously liable for

substantive criminal offenses committed by a co-conspirator

during the course and in the furtherance of the conspiracy,

notwithstanding the party’s non-participation in the offenses

or lack of knowledge thereof.” United States v. Mothersill,

87 F.3d 1214, 1218 (11th Cir. 1996) (citing Pinkerton v.

United States, 328 U.S. 640, 646-47, 66 S. Ct. 1180, 1184

(1946)). In the usual Pinkerton case, it is not necessary for

the court to inquire into a particular conspirator’s individual

culpability, “so long as the substantive crime was a reason-

ably foreseeable consequence of the conspiracy.” United

States v. Alvarez, 755 F.2d 830, 849-50 (11th Cir. 1985). It is

unnecessary for the government to prove that each

conspirator participated in all aspects of a conspiracy, knew

each phase or every detail of the conspiracy, or knew all of

the participants. United States v. Pedrick, 181 F.3d 1264,

1272 (11th Cir. 1999). A conspirator may: be convicted if he

“participates in some affirmative conduct designed to aid the

success of the venture with knowledge that h[is] actions

would further the venture.” /d. A defendant may be

convicted of conspiracy if he joined the conspiracy after its

inception and played only a minor role within it, United

States v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995), and

he is presumed to be a part of the conspiracy until all

cozspiracy activity ceases or he proves that he withdrew.

United States v. LeQuire, 943 F.2d 1554, 1563-64 (11th Cir.

1991). To show withdrawal, a conspirator must show that he

43a

“has taken affirmative steps to defeat the objectives of the

conspiracy,” and “made a reasonable effort to communicate

these acts to his co-conspirators or disclosed the scheme to

law enforcement officers.” Jd. at 1564.

The indictment charged that, from July 1985 to 1 February

1994, Hansen, Randall, and Taylor “did knowingly and

willfully combine, conspire, confederate and agree together

and with others” to knowingly act in violation of the

environmental laws by “continu[ing] to operate the

Brunswick facility” after learning that they were in violation,

storing and disposing of hazardous wastes without a permit,

and submitting “incomplete, inaccurate, and misleading

information” in their reports to the various state and federal

regulatory agencies. R1-1-10-14. The evidence showed that

the defendants admitting to sharing the common goal to

operate the plant until a buyer could be found. The jury could

infer from this goal and the defendants’ knowledge of the

plant’s continuing problems with worker safety and

environmental compliance that they reached a tacit agreement

- to operate the plant in violation of environmental laws. The

defendants knew of the violations from either personal

observation or from information that they received from the

plant employees, and frequently communicated with each

other regarding operation of the plant despite the continuous

environmental concerns. The defendants failed to provide the

corporate board with information about the violations, and

failed to accurately present the plant’s inability to comply

with the regulations to the Georgia EPD. Each of the

substantive offenses were foreseeable consequences of the

agreement to continue operating the piant in violation of the

environmental statutes.

5. Knowledge of the Substantive Offenses

Randall argues that the district court erred in denying his

motion for acquittal because the government failed to show

44a

that he had the requisite “knowledge” of the CWA and RCRA

violations on the specific dates when they occurred. He

contends that his knowledge after the violations had occurred

was not sufficient. The statutes for the violations under

which Randall was indicted contain explicit knowledge

requirements. For a conviction under 33 U.S.C. § 131

9(d)(2)(A), the defendant must be shown to have

“knowingly” violated various sections of the CWA or permit

conditions or limitations. For a conviction under 42 U.S.C.

§ 6928(d)(2)(A), the defendant must be shown to have

“knowingly” treated, stored, or disposed of an identified

hazardous waste without a permit. We have held that the

knowledge element is satisfied where a defendant, who may

not have “directly” caused a hazardous waste violation but

had “approved of previous dumpings as a way to meet storage

squeezes,” “effectively ordered” a subsequent violation

when he instructed a subordinate to “handle” hazardous

waste. United States v. Greer, 850 F.2d 1447, 1451-52

(11th Cir. 1988).

Here, although Randall did not directly cause the

violations, he knew that the plant was violating its permit on

an almost daily basis, accumulating wastes that it could not

treat, and was frequently releasing the wastes from the

cellrooms as needed to keep the plant operational. He

received 22 written reports between 3 August 1993 and 4

February 1994 advising him of a total of 110 different

violations of the NPDES permit. He received frequent and

sometimes daily oral and written reports from the various

plant managers of the plant’s operations and safety concerns.

He knew that the plant was incapable of complying with the

environmental standards and knew that the violations were

inevitable. We conclude that the evidence that Randall

permitted the plant employees to process the hazardous

wastes as they had in the past despite his knowledge that the

procedures were in violation of environmental regulations

was sufficient to show that Randall acted “knowingly.”

45a

C. Jury Instructions

Hansen, Randall, and Taylor argue that the district court’s

_ jury instructions misstated the reasonable doubt standard,

improperly applied the concept of responsible corporate

officer, improperly defined the elements of knowing

endangerment, and effectively eliminated the mens rea

requirement from each of these statutory violations. Hansen

contends that the instructions essentially instructed the jury

that they could convict him because of his job title.

““We review jury instructions de novo to determine

whether they misstate the law or mislead the jury to the

prejudice of the objecting party.”’ United States v. Grigsby,

111 F.3d 806, 814 (11th Cir. 1997), quoting United States v.

Chandler, 996 F.2d 1073, 1085 (11th Cir. 1993). We review

the district court’s denial of a requested instruction for abuse

of discretion, because a defendant is entitled to an instruction

on a defense theory if it has some basis in the evidence

and is supported by law. Grigsby, 111 F.3d at 814. A

defendant cannot challenge a jury instruction on a ground not

raised at trial unless he establishes “plain error” under

Fed.R.Crim.P.52(b). United States v. Meester, 762 F.2d 867,

879-80 (11th Cir. 1985). If the requirements of Rule 52(b)

are satisfied and the instruction was made in error, is plain,

and affected substantial rights, we “may then exercise [our]

discretion to notice a forfeited error, . . . only if the error

seriously affect[ed] the fairness, integrity, or public reputation

of judicial proceedings.” Johnson v. United States, 520 U.S.

461, 466-68, 117 5. Ct. 1544, 1548-49 (1997) (internal

Citations omitted). Under the invited error doctrine, we will

generally not review an error induced or invited by a party

through the submission of an incorrect jury instruction to the

judge which passed on to the jury. United States v. Stone,

139 F.3d 822, 838 (11th Cir. 1998) (per curiam).

46a

1. Reasonable Doubt Standard

Hansen and Randall maintain that the district judge

misstated the essential basis of the convictions by instructing

that the government did not have to prove guilt beyond a

reasonable doubt. In his introduction to the jury instructions,

the district judge advised the jury that he would read them the

jury charge and would provide them each a copy of the

charge for them to “refer to it at any time you think is

appropriate” when they were sent out to deliberate. R22-172.

The district judge then orally instructed the jury on

reasonable doubt as follows:

So the Government always has the burden of proving

a Defendant guilty beyond a reasonable doubt. If it fails

to do so, under your oath, you would have to find that

Defendant not guilty.

But while the Government ‘s burden is a heavy

burden, it is not necessary that the Defendant’s guilt be

proved beyond a reasonable doubt, because that is

generally impessible. The law does not require a

mathematical certainty, only the exclusion of any

reasonable doubt concerning that Defendant’s guilt.

In that regard, a “reasonable doubt” is defined as a

real doubt, based upon reason and common sense after a

careful and impartial consideration of the entire evidence

in this case, or the lack of evidence.

Proof beyond a reasonable doubt, in other words, is

proof of such a convincing character that you would be

willing to rely or act upon it without hesitation in a

decision involving the most important of your affairs.

But you take a common sense view. .. .

You may not find a Defendant guilty unless you find

that the inferences you draw from the evidence are

consistent with the theory of his guilt and inconsistent

47a

with reasonable theories of innocence. If you are

convinced that a Defendant has been proved guilty

beyond a reasonable doubt, say so with a verdict of

guilty. On the contrary, if you have reasonable doubt,

then under your oath, you would have to find that

Defendant not guilty.

R22-174-75 (emphasis added). No objection was made as to

this instruction. R22-206-09.*7

The passage, as provided to the jury in the written charge,

read: e

Thus, while the Government’s burden of proof is a

Strict or heavy burden, it is not necessary that a

Defenddnt’s guilt be proved beyond all possible doubt.

It is only required that the Government’s proof exclude

any “reasonable doubt” concerning a Defendant’s guilt.

R6-133-2.

“[W]e consider [a reasonable doubt] instruction as a whole

to determine if the instruction misleads the jury as to the

government’s burden of proof.” Harvell v. Nagle, 58 F.3d

1541, 1542 (11th Cir. 1995). The jury must be instructed that

defendant’s guilt must be proved by the government “beyond

a reasonable doubt” on each element of the charged offense,

*” The government argues that there may be an error in the transcript.

Government brief at 23. There is no indication that this matter was

submitted to and settled by the district court consistent with the procedure

outlined in Fed.R.App.P. 10(e).

The district judge provided the parties with an opportunity to “[s]tate

[their] exceptions” after the jury instructions were read. R22-206-09.

Taylor’s counsel said he had been “listening carefully to the charge” and

had heard the word “water” used in the place of “wastes.” /d. at 208. He

then noted that the jury “will have it to read.” /d Taylor’s counsel also

observed that the word “person” had been defined as an “individual

corporate officer” instead of a “responsible corporate officer;” the judge

made a curative instruction. /d. at 208-09.

48a

but the trial court is not required to define reasonable doubt.

Id. \f the trial court defines reasonable doubt, the standard

must be explained correctly. /d. A district court’s failure to

submit an element of the offense to the jury, including an

erroneous instruction ox: reasonable doubt, is a structural error

which defies the harmless-error analysis. Johnson, 520 U.S.

at 468-69, 117 S. Ct. 1544 at 1549-50. Although we have

held that “an inadequate reasonable doubt instruction cannot

be cured by other circumstances at trial,” Nutter v. White, 39

F.3d 1154, 1158 (11th Cir. 1994) (reversing a conviction in

which the instruction defined reasonable doubt using the

phrase “substantial doubt”), “[jjury instructions are not

considered in isolation; rather we view them in the context of

the entire... proceeding.” Waters v. Thomas, 46 F.3d 1506,

1524 (11th Cir. 1995).

Here, the improper passage is immediately prefaced and

followed by a correct instruction, and the correct instruction

was included in the written copy provided to each juror. The

judge stated the correct instruction numerous times, including

each element of each offense to be proven. See R22-172,

173, 182, 185, 187, 189, 193-94, 199-201. The instruction, as

written and as provided to the jury, was not inadequate and

presented the correct reasonable doubt standard. Viewing

this instruction as a whole and in the context of the entire

proceeding, we find that it did not mislead the jury as to the

reasonable doubt standard. See United States v. Torres, 901

F.2d 205, 243 (2nd Cir. 1990) (rejecting a challenge to the

language used in one sentence of a reasonable doubt standard

where a correct instruction was provided “immediately after”

the challenged language and provided at least five times in

the instructions in general and as to the specific offenses); but

see Bloomer v. United States, 162 F.3d 187, 189, 194 (2nd

Cir. 1998) (finding an improper reasonable doubt instruction

constitutionally deficient despite at least 17 proper instruct-

tions where there was no curative instruction to alert the jury

to disregard the incorrect instruction.)

49a

2. Reasonable Corporate Officer

Hansen and Randall contend that the district judge

undermined the jury’s fact-finding function by directing that

they treat the defendants as “responsible corporate officers”

(“RCO”). They maintain that the instruction as given

permitted the jury to convict them on the basis of their

corporate positions instead of their individual liability. They

suggest that the district court’s separate RCO instruction

allowed the jury to believe that it applied equally to the

conspiracy, CWA and RCRA charges.

The district judge instructed the jury:

Under the federal Clean Water Act, the definition of a

“person” specifically includes corporations and

individual corporate officers. You are instructed that the

Defendants, Christian Hansen, Randall Hansen, and

Alfred Taylor are persons for purposes of the Clean

Water Act.

R22-191. Taylor’s attorney objected that “(t]he statute

says, ‘. . , and responsible corporate officers.”’ R22-209.

The district judge then explained “[wJherever I have used

the term ‘corporate officers,’ | mean responsible corporate

officers.” Id. :

In a CWA case, “the term ‘person’ means . . . any

responsible corporate officer.” 33 U.S.C. § 1319(c)(6). The

RCRA counts require proof that each defendant “knew” of

the violations’ potential for harm and danger. 42 U.S.C.

§ 6928(e). In United States v. MacDonald & Watson Waste

Oil Co., 933 F.2d 35 (1st Cir. 1991), the First Circuit vacated

a conviction under 42 U.S.C. § 6928(d)(1) after finding that

the district court’s instruction, which relied on the RCO

doctrine in part and which instructed “that the officer must

have known or believed that the illegal activity of the type

alleged occurred” incorrectly permitted a finding of guilt

without a determination that the defendant possessed actual

50a

knowledge of the specific violation. /d. at 51. The First

Circuit reasoned that the RCO doctrine was inapplicable

where the defendant was charged under a statute that

required explicit knowledge. /d. 51-55. The Ninth Circuit

has held that:

[U]nder the CWA, a person is a ‘responsible corporate

officer’ if the person has authority to exercise control

over the corporation’s activity that is causing the

discharges. There is no requirement that the officer in

fact exercise such authority or that the corporation

expressly vest a duty in the officer to oversee the

activity.

United States v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998).

Explaining that “[t]he relevant inquiry is whether the

instructions as a whole are misleading or inadequate,” the

Ninth Circuit rejected the defendant’s argument that the RCO

“instruction allowed the jury to convict him without finding a

violation of the CWA.” Id. at 1026. The district judge had

stated the elements needed for the government’s proof and

told the jury that the CWA “‘also holds accountable”’ RCOs.

Id. The Ninth Circuit found the instructions not erroneous,

reasoning that “the [RCO] instruction relieved the

government only of having to prove that defendant personally

discharged or caused the discharge of a pollutant” and that

“(t]he government still had to prove that the discharges

violated the law and that defendant knew that the discharges

were pollutants.” Jd. We find this issue meritless. The

clarifying instruction given by the district court was requested

by the defendants. The district court’s instruction on

responsible corporate officer was not given as to the CWA

counts, Counts 2-21, but was given only as to Counts 22-34.

3. Knowing Endangerment

Hansen argues that the instructions authorized the jury to

convict him of knowing endangerment without making a

Sla

determination that he knew of an imminent danger. Hansen

requested that the instruction include the “element of

knowingly” on “each element of the offense” to insure that

the jury understood that the charges were related to

“individual, personal, knowing, knowledgeable, deliberate

conduct.” R22-53-55. The district judge noted that the

preface to the instructions included “knowingly” and agreed

that he would add an instruction that “[t]he term knowingly is

applicable to each element of the offense.” Jd. at 54, 56.

Hansen’s attorney responded “[t]hat would help, Judge.” Id.

at 56. Later, the government requested that the instructions

for “willful” be limited to count | and that the instructions for

“knowingly” apply to_the remaining counts. Jd. at 70-71.

Hansen’s attorney stated that he “strongly disagree[d],”’but

the judge indicated that he would permit the instruction, as

clarified, to stand. Jd. at 71. At the end of the charge

conference, Hansen’s attorney renewed his objection to the

district judge’s failure to give the knowing instruction as to

each offense. Jd. at 206-07. Because the instruction required

that the jury find that Hansen knew that the violations could

cause imminent danger, this argument is meritless.

4. Mens Rea Requirement

Hansen argues that the instructions permitted the jury to

convict him of the RCRA violations without making factual

findings that he had knowledge of the RCRA elements of

hazardous materials, permit regulations, and the treatment,

Storage, or disposal of hazardous wastes. He .,aintains that

the instruction reinforced the government’s position that

Hansen should be convicted because LCP was his company,

and not based on the legally required relationship between

Hansen and the violations. During the charge conference,

Randall’s attorney objected to an instruction as to Counts 22-

34, arguing that it should be limited to Counts 22-33, because

Count 34 had additional elements. R22-59-63, 65-66. He

asked that an instruction be added limiting liability to

52a

knowledge possessed by the defendant himself, and the

district judge responded “{ajJll right. All right. We will add

that.”. /d. at 6l.

During closing argument, the government stated:

Chris Hansen is a hands-on manager. You heard

discussions of how he ran the plant. I would submit it

was probably his way or the highway. Does anybody

doubt he would have known what was going on at every

place in the plant? He was there. He ordered the Bunker

C tanks to be filled.

R22-99-100. The district judge explained that:

a person acts knowingly if he acts intentionally and

voluntarily, realizing what he is doing, and not

because of ignorance, mistake, accident, or

carelessness. Whether a Defendant acted knowingly

may be proven by the Defendant’s conduct and by all

of the facts and circumstances surrounding the case.

Id. at 188. Addressing the RCRA counts, the district judge

instructed:

Each count charges the . . . Defendants, all of them,

unlawfully treated, stored, or disposed of one or more

hazardous wastes without the required permits.

Now in order to prove a Defendant guilty of those

charges, the prosecution must establish the following

essential elements:

First, that on or about the date charged in Counts 22

through 34, the Defendant under consideration know-

ingly treated, stored, or disposed of one or more of the

solid wastes listed in those counts;

Next, that such solid wastes were listed or identified

under RCRA as hazardous wastes; and

53a

Third, that the wastes were treated, stored or disposed

of at a location which did not have either interim status

or a RCRA permit authorizing the treatment, storage or

disposal of such wastes.

Id. at 192. The district judge also charged that “the

Government must prove beyond a reasonable doubt that the

Defendant under consideration knew that substances involved

in the alleged offenses had the potential to harm others or the

environment.” /d. at 193. The district judge continued:

Now each Defendant may be found guilty of Counts

22 through 34 of the Indictment if you find that the

Government has proven the following beyond a

reasonable doubt:

First, that the Defendant under consideration had a

responsible relationship to the violation-that is, that -it

occurred under his area of authority and supervisory

responsibility;

Second, that the Defendant had the power or the

capacity to prevent the violation; and

Third, that the Defendant acted knowingly in failing

to prevent, detect or correct the violation.

Id. at 200-01. Randall’s counsel renewed the objection that

the instruction as to Count 34 was erroneously included

because it could not be based on constructive knowledge.

Id. at 207.

We have held that a defendant’s “knowledge [as to whether

a site has a permit or the disposal of hazardous waste] does

not require certainty, and the jurors may draw inferences from

all of the circumstances, including the existence of the

regulatory scheme.” United States v. Hayes Int’l Corp., 786

F.2d 1499, 1505 (11th Cir. 1986) (reviewing a conviction

under 42 U.S.C. § 6928(d))\(l)). As to Count 34, RCRA’s

knowing endangerment provision also requires proof

‘

54a

that the hazardous waste violation placed persons in

“imminent danger of death or serious bodily injury” and

that the defendant had knowledge of that danger.

42 U.S.C. § 6928(e). Because the instructions clearly set

forth that a finding of ‘acted knowingly” was required for a

conviction, there was no error in the instruction.

5. Wastewater Treatment System

Hansen contends that the instructions allowed the jury to

convict him under the CERCLA release offenses without a

finding that he knew the quantity of the materials released or

was meaningfully in charge at the time of the release. Taylor

argues that, because the instruction failed to include the

definition of “tank,” it allowed the jury to consider the

cellroom as a part of the wastewater treatment system. In his

request for a charge as to Counts 35 through 40, Hansen

asked that the jury be instructed that it could not convict him

unless he was the person in charge at the time of the release

and knew that the released hazardous materials exceeded

the applicable reportable quantity. R4-98, Request to Charge

No. 23.

The district judge instructed the jury:

Now Counts 35 through 41 charge the Defendants,

Mr. Christian Hansen and Mr. Taylor with violations of

*8 Specifically, Hansen requested that the charge read:

First, that on the date alleged in each respective count, Christian

Hansen was a “person in charge of a facility,” as that term is

defined by law;

Fourth, that Mr. Hansen (1) knew that the described release had

occurred, (2) knew that the wastewater released contained a

reportable quantity of mercury, and (3) knew that the release was

not allowed by any federal permit.

R4-98 at Charge 23.

S5a

the Comprehensive Environmental Response, Compen-

sation, and Liability Act, which is known by the

acronym CERCLA, which requires the immediate

reporting of the release of a reportable quantity of a

hazardous substance into the environment.

To establish a violation of this Act, as alleged in

Counts 35 through 41, the Government must prove thé

following elements beyond a reasonable doubt as to each

Defendant:

First, that the Defendant was one of the “persons in

charge” of a facility;

With respect to Counts 35 to 40, that a reportable

quantity of mercury contaminated wastewater-that is,

more than one pound of wastewater contaminated with

mercury and other hazardous substances-was released

into the environment within a 24 hour period;

As to count 41, that a reportable quantity of chlorine-

that is, in excess of '0 pounds-was released into the

environment within a 24 hour period; and

That the Defendant under consideration failed to

notify immediately the National Response Center of the

release of such materials as soon as he had knowledge of

the release.

CERCLA’s reporting requirements are not extended

to all employees involved in a release. The reporting

requirements apply to any person-even if of relatively

low rank-who was in a position to detect, prevent, and

abate a release of the hazardous substances.

A “person in charge’s” control over a facility need not

be sole or exclusive. There may be several “persons in

56a

charge” of the same facility. It is only necessary that the

individual have «» share such control of the facility

where the release occurred.

R22-201-02.

In clarifying the definition of “operator” under CERCLA,

the Supreme Court instructs that “an operator is simply

someone who directs the workings of, manages, or conducts

the affairs of a facility... specifically related to pollution, that

is operations having to do with the leakage or disposal of

hazardous waste, or decisions about compliance with

environmental regulations.” United States v. Bestfoods, 524

U.S. 51, 66-67, 118 S. Ct. 1876, 1887 (1998). The district

court’s instructions required that the jury find that the

defendant under consideration knew of the release and knew

that the release contained hazardous waste, and failed to

report it.

There is no indication in the record that Taylor requested

an instruction on the definition of “tank.” Hansen requested

an instruction on the existence of the wastewater treatment

exemption to the 90-day labeling and disposal period.” R22-

68-69. The judge subsequently included such an instruction:

Tanks which are part of a wastewater treatment

system that is subject to regulation under the CWA need

not have a RCRA permit so long as they are used for the

treatment of wastewater. Therefore, wastewater which

*? Hansen’s counsel explained that he “just want[ed] the jury to

understand that if the water is handled through the wastewater system, it’s

exempt from the ninety-day labeling and all these other things.” R22-69.

The government counsel responded: “If it’s in a tank. It needs to be clear

that if it’s in a tank and it can be treated in a wastewater system-.” /d. The

district judge asked that the language be provided to him in writing, and

Hansen’s counsel agreed to do so. /d.

FANE iE TRADES a OIE tee AE Vt 2 ae aang al Ri baa ene aa

S7a

is being held temporarily in such tanks is not subject to

these RCRA permitting requirements.

Id. at 199.

A “tank” is defined by the regulations as ‘“* stationary

device, designed to contain an accumulation of hazardous

waste which is constructed primarily of non-earthen materials

(e.g. wood, concrete, steel, plastic) which provide structural

support.” 40 C.F.R. § 260.10. Although Taylor maintains

that the instruction would have helped the jury understand

that the cellroom was a tank and part of the wastewater

system, the evidence showed that the berms, used in the

cellroom to contain the wastewater, were constructed of dirt.

R19-256. Taylor neither requested a definition of “tank” in

the instructions nor was prejudiced by the failure to of the

court to provide it.

D. Sentencing Guidelines

We review the district court’s factual findings for clear

error and its application of the law to those facts de novo.

United States v. Quinn, 123 F.3d 1415, 1424 (11th Cir. 1997).

1. Downward Departure

a. Christian Hansen

Hansen argues that the district court erred by concluding

that it lacked the authority to depart under U.S.S.G. § 5K2.0.

He maintains that, at a minimum, the district court was

ambiguous as to whether it believed that it had the authority

to grant a downward departure and that any ambiguity must

be resolved in his favor.””

* Amicus curiae The Washington Legal Foundation also raises the

issue that Hansen’s sentence must be vacated because the environment

sentencing laws were unlawfully promulgated and impose patently

unreasonable sentences. However, this issue was not considered before

the district court and will not be considered on appeal. United States v.

58a

At sentencing, Hansen argued, inter alia, that he should be

granted a downward departure pursuant to U.S.S.G. § 5K2.0

because the factors of the case took it outside of the heartland

of cases to which the guidelines apply. R13-5-8. He argued

that a departure was warranted because the government

agencies monitored and knew of the environmental

violations, and that this situation was not where Congress

intended to impose the high penalties for environmental

violations. /d. at 6. After sentencing Hansen, the district

judge stated that he “d[id] not really find any actual basis for

a departure from the guidelines, even though I might, if I had

discretion, found otherwise.” /d. at 52.

We “generally may not review the merits of a district

court’s refusal to grant a downward departure, [but] may

conduct a de novo review of a defendant’s claim that the

district court mistakenly believed it lacked the authority to

grant such a departure.” United States v. Mignott, 184 F.3d

1288, 1290(1 1th Cir. 1999) (per curiam). Where the district

court expresses ambivalence about its authority to depart

from the guidelines, we review the record to determine the

district court’s understanding. See United States v. Webb,

139 F.3d 1390, 1394-95 (11th Cir. 1998) (noting that ‘our

independent review of the sentencing transcript reveals that

the sentencing judge, at the very least, was bewildered and

ambivalent as to whether the guidelines authorized a

downward departure” and that “on balance, . . . the record

more strongly suggests that the court believed that it was not

authorized to depart downward.”). If there is no indication

that the district court misapprehended its authority, “we

assume that the sentencing court understood it had authority

to depart downward.” United States v. Chase, 174 F.3d 1193,

1195 (11th Cir. 1999).

Allegheny-Ludlum Indus., 517 F.2d 826, 840 n. 13 (Sth Cir. 1975)

(noting that it would not consider issues briefed by amicus curiae which

were not raised in the district court). _

59a

Hansen was sentenced afier Randall. During Randall’s

sentencing hearing, the district judge acknowledged his

authority to depart. R9-9. Hansen’s sentencing transcript

shows that the district judge permitted extensive discussion of

whether the circumstances of Hansen’s case were outside the

heartland of cases to which the guidelines had been applied,

and that neither party argued that the district court lacked the

authority to depart downward. There is nothing in the record

that shows that the district court misapprehended its authority

to depart downward. Therefore, we assume the sentencing

court understood its discretionary authority to grant a

downward departure but decided not to exercise that

authority. /d. at 1195. Because the district court understood

that it had the authority to depart, we are unable to review the

district court’s denial of Hansen’s request for a downward

departure.

b. Randall Hansen

Randall contends that the district court erred in not

granting his requests for a downward departure under

§§5K2.0 and under 5K2.1 1. As to a departure under

§ 5K2.0, he argues that his case fell outside the heartland of

other environmental prosecutions and that he was at all times

operating under the authority of the U.S. Bankruptcy Court

and upon the advice of his environmental counsel. As to a

departure under § 5K2.11, he maintains that the district court

erred in concluding that financial factors were not a

“perceived greater harm” which could trigger a departure and

in not understanding that the record supported his belief that a

greater environmental, as well as economic, harm would

occur at the site and in the community if the plant failed to

remain operational.*'

*" Randall also argues that the sentencing guidelines, as apnlied to

environmental crimes, are arbitrary and were unlawfully promulgated.

Randall did not raise this issue at the sentencing hearing but addressed it

60a

At Randall’s sentencing, the district judge stated:

[T]he Court acknowledges that it does have authority

to depart from the guidelines pursuant to [§§ 5K2.0 and

5K.211] if it finds that the circumstances of this case

warrant such a departure.”

in a supplemental memorandum in aid of sentencing. R9-228-8.

Randall’s sentencing hearing initially commenced on 2 June 1999, and

was continued on | July 1999. On 1 July 1999, the hearing was called to

order at 10:01 AM, and recessed at 10:24 AM. The supplemental

memorandum is not referenced at the sentencing hearing and was filed at

12:11 PM on I July 1999. Therefore, it does not appear that this was

considered by the district court. Because the issue was not considered by

the district court, it will not be considered by this court. Fed. Deposit Ins.

Corp. v. Verex Assurance Inc., 3 F.3d 391, 395 (11th Cir. 1993).

* It appears that, although the district judge did not find that the

circumstances warranted a departure, he nonetheless considered Randall’s

arguments. During the hearing, the district judge continued:

As to the Defendant’s arguments concerning lesser harm, I’m not

particularly impressed with that. For the Court to consider a

departure under this section [§5K2.11], the Court would have to

find either that the Defendant committed the crime in order to avoid

perceived greater harm or that the Defendant’s conduct does not

cause or threaten the harm or evil sought to be prevented by the

laws prohibiting the offenses at issue.

Now as to that first prong, the Defendant has failed to produce

evidence, other than his own statement, that closing the LCP plant

would have caused a greater harm than allowing it to continue

operating in the unsafe manner. His argument, as | understood it, is

based upon financial reasons. As I recall, he stated that there was

compelling societal interest in keeping the plant open and its three

hundred employees working.

While sympathetic to the plight of the employees who would

have, and eventually did, lose their jobs, that does not, and I do not

believe that it justifies subjecting the employees and the community

to the risk of operating an unsafe chlor-alkali plant.

SSG ECE RE re Cpa

Sagecaeyate

‘ie

—

R9-9. He set forth the requirements for a departure under the

guidelines, but found that nc departure was warranted under

either provision.

We may not review a district court’s refusal to grant a

downward departure unless the court mistakenly believed that

it lacked the authority to grant such a departure. Mignott, 184

F.3d at 1290. Despite Randall’s argument to the contrary, the

The Court finds that financial factors are not a perceived greater

harm. And, therefore, no downward departure is warranted in that

instance.

As to the second prong, the guidelines permit a downward

departure where the conduct may not cause or threaten the harm or

evil sought to be prevented by the law prescribing the offense at

issue.

The environmental laws for which the Defendant was convicted

were enacted to protect human life in the environment. Therefore,

the Defendant’s conduct was the type of conduct which the

environmental laws sought to prevent. And as such, the Court finds

that the circumstances of this offense do not warrant a downward

departure under 5K2.1I of the guidelines.

R14-9-11,

As to the request for a departure under § 5K2.0, he stated:

[I]n order for the Court to find that the Defendant’s case falls

outside the heartland, the Court has to find that this is an unusual

case where there is something atypical about the Defendant or the

circumstances surrounding the commission of the crime. | simply

cannot make such a finding.

I find that the circumstances of these offenses are those

contemplated by the Sentencing Commission in the formulation of

the guidelines. And farther, I find that there are no factors which

take this case outside the heartland of the environmental guidelines.

Accordingly, the Court finds that no departure is warranted under

5K2.0 of the guidelines.

Id. at 11.

62a

district judge indicated his understanding that financial

factors could be a “perceived greater harm” by weighing the

harms associated with closing the plant and putting 300

employees out of work against keeping the plant open as an

unsafe chlor-alkali plant and keeping the employees working,

but found that the financial factors were not a harm greater

than the harms associated with the operation of an unsafe

chlor-alkali plant. R14-9-11. Because the district court

acknowledged that it had the authority to depart, we lack the

jurisdiction to review the decision.

c. Taylor

Taylor also argues that the district court erred by not

granting him a downward departure under §§ 5K2.0 and

5K2.11. As to the request for a departure under § 5K2.0, he

maintains that his case fell outside the heartland of

environmental cases. As to the request for a departure under

§ 5R2.11, he contends that he believed that closing the

plant would cause a greater environmental harm that contin-

uing operations.

Taylor presented each of his issues at sentencing.” R12-

20-21. The district judge asked the probation officer to

comment on Taylor’s requests for a departure, and to

specifically address Taylor’s cooperation during the cleanup

efforts. /d. at 21-22. The probation officer responded that

* Taylor adopted Hansen’s arguments for a departure, but added that,

as to the request for a departure under § 5K2. 11, that they had “prevented

a greater harm from merely shutting down the plant without the proper

decommissioning” based on their belief that “these problems,

maintenance problems, could be addressed, the jobs could be saved, and

the business could continue.” R12-20-21. He “also call[ed] the Court’s

attention . . . to Mr. Taylor’s conduct following the decommissioning of

the plant.” /d.

63a

there were no grounds for a downward departure. “*/d. at 41.

The district judge commented:

[ am equally bound by the guidelines and by the law.

And | do not have much discretion.

And I just cannot find a basis for departure under the

guidelines, inasmuch as the facts as found are of the kind

contemplated by the Sentencing Commission.

Id. at 42-43.

Because there is nothing in the record that indicates that the

district court misapprehended its authority to depart down-

ward, we assume that the district court understood its

authority to depart and decided not to exercise its discretion-

ary authority. Therefore, we lack jurisdiction to address the

district court’s decision not to depart.

Ill. CONCLUSION

After reviewing the record and carefully considering the

briefs and oral argument, we conclude that the defendants’

convictions are supported by the evidence, and that the

district court did not err in the evidentiary rulings, the jury

instructions, or at sentencing. Accordingly, we AFFIRM.

“* The probation officer noted that Taylor’s cooperation should not be a

factor since he was a contract, paid etnployee. /d. at 24. in response to

Taylor’s argument that “there’s a lesser harm in keeping somebody

employed than dumping hundreds of thousands of gallons of

contaminated water into a marsh,” he commented that “there was a

tremendous amount of harm done to the environment... They’re not

looking at the effects. . . . [The] area was closed off by the Georgia

Environmental Protection department because the fish and the seafood in

there w[ere] contaminated. We will never know what damage this has all

done.” /d. At 40.

64a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Oct. 26, 2001}

No. 99-11638-DD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTIAN A. HANSEN,

ALFRED R. TAYLOR,

RANDALL W. HANSEN,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC (Opinion ,

lithCir., 19 __, F.2d ).

Before: BIRCH and DUBINA, Circuit Judges, and

HANCOCK’, District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

* Honorable James H. Hancock, U.S. District Judge for the Northern

District of Alabama, sitting by designation.

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en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing En

Banc are DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

ORD-42

(6/95)

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APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Nov. 20, 2001]

No. 99-11638-DD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTIAN A. HANSEN,

ALFRED R. TAYLOR,

RANDALL W. HANSEN,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Georgia

ORDER:

( ) The motion of Appellants, Randall and Christian

Hansen, for (x) stay (_ ) recall and stay of the issuance

of the mandate pending petition for writ of certiorari

is DENIED.

(X) The motion of Appellant, Randall and Christian

Hansen, for (x) stay ( ) recall and stay of the issuance

of the mandate pending petition for writ of certiorari

is GRANTED to and including January 24, 2002, the

stay to continue in force until the final disposition of

the case by the Supreme Court, provided that within

the period above mentioned there shall be filed with

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the Clerk of this Court the certificate of the Clerk of

the Supreme Court that the certiorari petition has been

filed. The Clerk shall issue the mandate upon the

filing of a copy of an order of the Supreme Court

denying the writ, or upon expiration of the stay

granted herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within

that time.

( ) The motion of Appellant, Randall and Christian

| Hansen, for a further stay of the issuance of

: the mandate is GRANTED to and _ including

, under the same condi-

tions as set forth in the preceding paragraph.

( ) JT IS ORDERED that the motion of Appellant,

Randall and Christian Hansen, for a further stay of the

issuance of the mandate is DENIED.

/s/ Stanley F. Birch

STANLEY F. BIRCH

UNITED STATES CIRCUIT JUDGE

ORD-45

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APPENDIX D

Resource Conservation and Recovery Act

42 U.S.C. § 6928(d), (e), and (f)

(d) Criminal penalties

Any person who—

(1) knowingly transports or causes to be transported

any hazardous waste identified or listed under this sub-

chapter to a facility which does not have a permit under

this subchapter, or pursuant to title | of the Marine

Protection, Research, and Sanctuaries Act (86 Stat.

1052) [33 U.S.C. § 1411 et seq. ],

(2) knowingly treats, stores, or disposes of any haz-

ardous waste identified or listed under this subchapter—

(A) without a permit under this subchapter or

pursuant to title | of the Marine Protection, Research,

and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. § 1411

et seq.|; or

(B) in knowing violation of any material condition

or requirement of such permit; or

or requirement of any applicable interim status

regulations or standards;

(3) knowingly omits material information or makes

any false material statement or representation in any

application, label, manifest, record, report, permit, or

other document filed, maintained, or used for purposes

of compliance with regulations promulgated by the

Administrator (or by a State in the case of an authorized

State program) under this subchapter;

(4) knowingly generates, stores, treats, transports,

disposes of, exports, or otherwise handles any hazardous

waste or any used oil not identified or listed as a

hazardous waste under this subchapter (whether such

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activity took place before or takes place after November

8, 1984) and who knowingly destroys, alters, conceals,

or fails to file any record, application, manifest, report,

or other document required to be maintained or filed for

purposes of compliance with regulations promulgated by

the Administrator (or by a State in the case of an

authorized State program) under this subchapter;

(5) knowingly transports without a manifest, or causes

to be transported without a manifest, any hazardous

waste or any used oil not identified or listed as a

hazardous waste under this subchapter required by

regulations promulgated under this subchapter (or by a

State in the case of a State program authorized under this

subchapter) to be accompanied by a manifest;

(6) knowingly exports a hazardous waste identified or

listed under this subchapter (A) without the consent of

the receiving country or, (B) where there exists an

international agreement between the United States and

the government of the receiving country establishing

notice, export, and enforcement procedures for the

transportation, treatment, storage, and disposal of haz-

ardous wastes, in a manner which is not in conformance

with such agreement; or

(7) knowingly stores, treats, transports, or causes to

be transported, disposes of, or otherwise handles any

used oil not identified or listed as a hazardous waste

under this subchapter—

(A) in knowing violation of any material condition

or requirement of a permit under this subchapter; or

(B) in knowing violation of any material condition

or requirement of any applicable regulations or

standards under this chapter;

shall, upon conviction, be subject to a fine of not more

than $50,000 for each day of violation, or imprisonment

not to exceed two years (five years in the case of a

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violation of paragraph (1) or (2)), or both. If the convic-

tion is for a violation committed after a first conviction

of such person under this paragraph, the maximum

punishment under the respective paragraph shall be

doubled with respect to both fine and imprisonment.

(e) Knowing endangerment

Any person who knowingly transports, treats, stores, dis-

poses of, or exports any hazardous waste identified or listed

under this subchapter or used oil not identified or listed as a

hazardous waste under this subchapter in violation of

paragraph(1), (2), (3), (4), (5), (6), or (7) of subsection (d) of

this section who knows at that time that he thereby places

another person in imminent danger of death or serious bodily

injury, shall, upon conviction, be subject to a fine of not more

than $250,000 or imprisonment for not more than fifteen

years, or both. A defendant that is an organization shall, upon

conviction of violating this subsection, be subject to a fine of

not more than $1,000,000.

(f) Special rules

For the purposes of subsection (e) of this section—

(1) A person’s state of mind is knowing with respect

to-—

(A) his conduct, if he is aware of the nature of

his conduct;

(B) an existing circumstance, if he is aware or

believes that the circumstance exists; or

believes that his conduct is substantially certain to

cause danger of death or serious bodily injury.

(2) In determining whether a defendant who is a

natural person knew that his conduct placed an-

other person in imminent danger of death or serious

bodily injury—

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(A) the person is responsible only for actual

awareness or actual belief that he possessed; and

(B) knowledge possessed by a person other than

the defendant but not by the defendant himself may

not be attributed to the defendant;

Provided, That in proving the defendant’s possession of

actual knowledge, circumstantial evidence may be used,

including evidence that the defendant took affirmative

steps to shield himself from relevant information.

(3) It is an affirmative defense to a prosecution that

the conduct charged was consented to by the person

endangered and that the danger and conduct charged

were reasonably foreseeable hazards of—

(A) an occupation, a business, or a profession; or

(B) medical treatment or medical or scientific ex-

perimentation conducted by professionally approved

methods and such other person had been made aware

of the risks involved prior to giving consent.

The defendant may establish an affirmative defense under

this subsection by a preponderance of the evidence.

(4) All general defenses, affirmative defenses, and

bars to prosecution that may apply with respect to other

Federal criminal offenses may apply under subsec-

tion (e) of this section and shall be determined by the

courts of the United States according to the principles of

common law as they may be interpreted in the light of

reason and experience. Concepts of justification and

excuse applicable under this section may be developed

in the light of reason and experience.

(5) The term “organization” means a legal entity,

other than a government, established or organized for

any purpose, and such term includes a corporation,

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company, association, firm, partnership, joint stock

company, foundation, institution, trust, society, union, or

any other association of persons.

(6) The term “serious bodily injury” means—

(A) bodily injury which involves a substantial risk

of death;

(B) unconsciousness;

(D) protracted and obvious disfigurement; or

(E) protracted loss or impairment of the function of

a bodily member, organ, or mental faculty.

Clean Water Act

33 U.S.C. § 1319(c)

(1) Negligent violations

Any person who—

(A) negligently violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or

any permit condition or limitation implementing any of

such sections in a permit issued under section 1342 of

this title by the Administrator or by a State, or any

requirement imposed in a pretreatment program ap-

proved under section 1342(a)(3) or 1342(b)(8) of this

title or in a permit issued under section 1344 of this title

by the Secretary of the Army or by a State; or

(B) negligently introduces into a sewer system or into

a publicly owned treatment works any pollutant or

hazardous substance which such person knew or rea-

sonably should have known could cause personal injury

or property damage or, other than in compliance with all

applicable Federal, State, or local requirements or

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permits, which causes such treatment works to violate

any effluent limitation or condition in any permit issued

to the treatment works under section 1342 of this title by

the Administrator or a State;

shall be punished by a fine of not less than $2,500 nor

more than $25,000 per day of violation, or by

imprisonment for not more than | year, or by both. If a

conviction of a person is for a violation committed after a

first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $56,000 per

day of violation, or by imprisonment of not more than 2

years, or by both.

(2) Knowing violations

Any person who— y

(A) knowingly violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or

any permit condition or limitation implementing any of

such sections in a permit issued under section 1342

of this title by the Administrator or by a State, or

any requirement imposed in a pretreatment program

approved under section 1342(a)(3) or 1342(b)(8) of this

title or in a permit issued under section 1344 of this title

by the Secretary of the Army or by a State; or

(B) knowingly introduces into a sewer system or into

a publicly owned treatment works any pollutant or

hazardous substance which such person knew or rea-

sonably should have known could cause personal injury

or property damage or, other than in compliance with all

applicable Federal, State, or local requirements or per-

mits, which causes such treatment works to violate any

effluent limitation or condition in a permit issued to the

treatment works under section 1342 of this title by the

Administrator or a State;

shall be punished by a fine of not less than $5,000

nor more than $50,000 per day of violation, or by

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imprisonment for not more than 3 years, or by both. If a

conviction of a person is for a violation committed after a

first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $100,000

per day of violation, or by imprisonment of not more than 6

years, or by both.

Conspiracy

18 U.S.C. § 371

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to effect

the object of the conspiracy, each shall be fined under this

title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the pun-

ishment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.

ima

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APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA _~

BRUNSWICK DIVISION

CRIMINAL ACTION NO. CR298-23

UNITED STATES OF AMERICA

CHRISTIAN A. HANSEN,

RANDALL W. HANSEN,

and ALFRED R. TAYLOR

COURT’S INSTRUCTIONS TO THE JURY

Members of the Jury:

It is now my duty to instruct you on the rules of law that

you must follow and apply in deciding this case. When I

have finished, you will go to the jury room and begin your

discussions—what we call your deliberations.

It will be your duty to decide whether the Government has

proved beyond a reasonable doubt the specific facts necessary

to find each Defendant under consideration guilty of the

crimes charged in the Indictment. \

You must make your decision only on the basis of the

testimony and other evidence presented here during the

trial. You must not be influenced in any way either by

sympathy or prejudice for or against any of the Defendants or

the Government.

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You must also follow the law as | explain it to you,

whether you agree with that law or not. You must follow all

of my instructions as a whole. You may not single out, or

disregard, any of my instructions to you on the law.

The Indictment or formal charge against any Defendant is

not evidence of guilt. Indeed, every Defendant is presumed

by the law to be innocent. The law does not require a

Defendant to prove innocence or produce any evidence at all.

If a Defendant elects not to testify, you should not consider

that in any way during your deliberations. The Government

has the burden of proving a Defendant guilty beyond a

reasonable doubt, and if it fails to do so, you must find that

particular Defendant not guilty.

Thus, while the Government’s burden of proof is a strict or

heavy burden, it is not necessary that a Defendant’s guilt be

proved beyond all possible doubt. It is only required that the

Government’s proof exclude any “reasonable doubt” concern-

ing a Defendant’s guilt.

A “reasonable doubt” is a real doubt, based upon reason

and common sense, after careful and impartial consideration

of all the evidence in the case. Proof beyond a reasonable

doubt, therefore, is proof of such a convincing character that

you would be willing to rely and act upon it without

hesitation in the most important of your own affairs.

You may not find a Defendant guilty unless you find that

the inferences you draw from the evidence are consistent with

the theory of his guilt and inconsistent with reasonable

theories of his innocence. If you are convinced that a

Defendant has been proved guilty beyond a reasonable doubt,

say SO with a verdict of guilty. If you are not convinced, say

SO with a verdict of not guilty.

As | said earlier, you must consider only the evidence that I

have admitted in the case. The term “evidence” includes the

testimony of the witnesses and the exhibits admitted in the

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record. Remember that anything the lawyers say is not

evidence in the case. It is your own recollection and inter-

pretation of the evidence that controls. What the lawyers say

is not binding upon you.

Also, you should not assume from anything that I may

have said that I have any opinion concerning any of the issues

in this case. Except for my instructions to you on the law,

you should disregard anything I may have said during the trial

in arriving at your own decision concerning the facts.

In considering the evidence, you may make deductions and

reach conclusions which reason and common sense lead you

to make, and you should not be concerned about whether the

evidence is direct or circumstantial. :

“Direct evidence” is the testimony of one who asserts

actual knowledge of a fact, such as an eyewitness. “Circum-

stantial evidence” is proof of a chain of facts and circum-

stances tending to prove, or disprove, any fact in dispute. The

law makes no distinction between the weight you may give to

either direct or circumstantial evidence.

Now, in saying that you must consider all of the evidence,

I do not mean that you must accept all of the evidence as true

or accurate. You should decide whether you believe what

each witness had to say, and how important that testimony

was. In making that decision, you may believe or disbelieve

any witness, in whole or in part. Also, the number of wit-

nesses testifying concerning any particular dispute is not

controlling.

In deciding whether you believe or do not believe any

witness, I suggest that you ask yourself a few questions: Did

the witness impress you as one who was telling the truth?

Did the witness have any particular reason not to tell the

truth? Did the witness have a personal interest in the

outcome of the case? Did the witness seem to have a good

memory? Did the witness have the opportunity and ability to

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observe accurately the things he or she testified about? Did

the witness appear to understand the questions clearly and

answer them directly? Did the witness’s testimony differ

from other testimony or other evidence?

You should also ask yourself whether there was evidence

tending to prove that a witness testified falsely concerning

some important fact, or whether there was evidence that, at

some other time, a witness said or did something, or failed to

say or do something, which was different from the testimony

the witness gave before you during the trial. If you find that a

witness has testified falsely concerning any material matter,

you have the right to distrust that witness’s testimony

concerning other matters.

You should keep in mind, of course, that a simple mistake

by a witness does not necessarily mean that the witness was

not telling the truth as he or she remembers it, because people

naturally tend to forget some things or remember other things

inaccurately. So, if a witness has made a misstatement, you

need to consider whether it was simply an innocent lapse of

memory or an intentional falsehood. The significance of that

may depend on whether it has to do with an important fact or

with only an unimportant detail.

A Defendant has a right not to testify. If a Defendant does

testify, however, you should decide in the same way as that

of any other witness whether you believe the Defend-

ant’s testimony.

The testimony of some witnesses may be considered with

more caution than the testimony of other witnesses. It is

legitimate for the attorneys to attack or question the

credibility of any witness on the ground that his or her

testimony may be colored by a personal or professional

interest in the case.

In this case, the Government called as one of its witnesses

a person named as a co-Defendant in the Indictment. The fact

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that a witness has pleaded guilty to the crime charged in the

Indictment is not evidence, in and of itself, of the guilt of any

other person. The Government has ‘entered into a plea ’

agreement with that witness, providing for the possibility of a

lesser sentence than that to which he would otherwise be

exposed. Such “plea bargaining,” as it is called, has been

approved as lawful and proper, and is expressly provided for

in the rules of this Court. However, a witness who hopes to

gain more favorable treatment may have a reason to make a

false statement because the witness wants to strike a good

bargain with the Government. So, while witnesses of this

kind may be entirely truthful when testifying, you should

consider such testimony with more caution than the testimony

of other witnesses. You may apply similar reasoning to the

testimony of witnesses who have been promised immunity

from prosecution.

When knowledge of a technical subject matter might be

helpful to the jury, a person having special training or experi-

ence in that technical field is permitted to state an opinion

concerning those technical matters. Merely because an expert

witness has expressed an opinion, however, does not mean

that you must accept that opinion. The same as with any

other witness, it is up to you to decide whether to rely upon it.

There have been admitted in evidence certain exhibits vari-

ously referred to as schedules or summaries. Strictly speak-

ing, the exhibits are not actual evidence, but they were

admitted as summaries of other evidence in the case and

they are admitted only for your assistance and convenience

in considering the other evidence which they purport to

summarize.

Exhibits of this nature are permitted where they are based

upon voluminous records or documents already in evidence,

in order to assist you in determining the ultimate facts or

results shown by such records and dor :ments.

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But you are reminded that it is the records, and documents

which are the evidence, and the summaries are admitted only

to assist you in considering that evidence. For this purpose,

you are entitled to consider them.

The guilt of a Defendant in a criminal case may be proved

without evidence that the Defendant personally did every act

involved in the commission of the crime charged. The law

recognizes that, ordinarily, anything a person can do for one’s

self may also be accomplished through direction of another

person as an agent, or by acting together with, or under the

direction of, another person or persons in a joint effort.

So, if the acts or conduct of an agent, employee, or other

associate of the Defendant are willfully directed or authorized

by the Defendant, or if the Defendant aids and abets another

person by willfully joining together with that person in the

commission of a crime, then the law holds the Defendant

responsible for the conduct of that other just as though the

Defendant had personally engaged in such conduct.

A Defendant is responsible for acts he performs or causes

to be performed on behalf of a corporation, just as though that

act were performed on his own behalf.

However, a Defendant who is an officer, director, em-

ployee, or agent of a corporation is not criminally responsible

for the illegal acts of another officer, director, employee, or

agent performed on behalf of that corporation merely because

of his status as an officer, director, employee, or agent of

the corporation.

Before any Defendant can be held criminally responsible

for the conduct of others it is necessary that the Defendant

willfully associate in some way with the crime, and willfully

participate in it. Mere presence at the scene of a crime and

even knowledge that a crime is being committed are not

sufficient to establish that a Defendant either directed or

ee ee

8la

aided and abetted the crime. You must find beyond a

reasonable doubt that the Defendants were willful participants

and not merely knowing spectators.

It is your duty to give separate, personal consideration to

each individual Defendant. When you do so, you should

analyze what the evidence in the case shows with respect

to that individual, leaving out of consideration entirely

any evidence admitted solely against another Defendant or

Defendants. Each Defendant is entitled to have his case

determined from evidence as to his own acts and statements

and conduct, as well as any other evidence in the case which

may be applicable to him.

At this time, I will explain the Indictment, which charges

42 separate offenses, called “Counts.” I will not read it to

you at length because you will be given a copy of the

Indictment for reference during your deliberations.

As it is used in these instructions, the term “LCP plant”

means LCP Chemical Company’s chlor-alkali production

facility in Brunswick, Georgia.

Conspiracy Charge

Count One of the Indictment charges that the Defendants,

Christian Hansen, Randall W. Hansen, and Alfred R. Taylor,

knowingly and willfully conspired together:

A. to knowingly discharge pollutants from the outfall

weir of the LCP plant in violation of the NPDES

permit—that is, to knowingly discharge mercury and

chlorine in quantities that exceeded the limits contained

in the permit, and to knowingly discharge waste-

water that violated the pH parameters contained in the

permit into Purvis Creek, all in violation of the Clean

Water Act;

B. to knowingly dispose of and store hazardous wastes

without a RCRA permit; that is, to dispose of waste

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mercury, mercury contaminated brine muds, mercury

contaminated wastewater, caustic wastewater, mercury

contaminated residue from caustic filter backwash,

mercury contaminated solids, and wastewater treatment

sludge into and on the land without a permit and also to

store such wastes without a permit at various locations at

the LCP plant, all in violation of the Resource

Conservation and Recovery Act, or RCRA;

C. to knowingly endanger other persons through the

unpermitted treatment, storage, and disposal of hazard-

ous wastes; to knowingly fail to notify immediately the

appropriate regulatory authorities upon receiving knowl-

edge of the release of a reportable quantity of a

hazardous substance, including chlorine gas, sodium

hypochlorite bleach, mercury contaminated wastewater,

and caustic wastewater with a pH value of 12.5 or

greater, into the environment, all in violation of the

Comprehensive Environment Response, Compensation,

and Liability Act, or CERCLA; and

D. to defraud the United States by impeding, impairing,

obstructing, and defeating the lawful functions of the

EPA and the United States Occupational Safety and

Health Administration (OSHA).

Title 18, United States Code, Section 371, makes it a

separate Federal crime or offense for anyone to conspire or

agree with someone else to do something which, if actually

carried out, would amount to another Federal crime or

offense. So, under this law, a “conspiracy” is an agreement

or a kind of partnership in criminal purposes in which each

member becomes the agent or partner of every other member.

In order to establish a conspiracy offense, it is not

necessary for the Government to prove that all of the people

named in the Indictment were members of the scheme, or that

those who were members had entered into any formal type of

agreement, or that the members had planned together all of

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the details of the scheme or the “overt acts” that the

Indictment charges would be carried out in an effort to

commit the intended crime.

Also, because the essence of a conspiracy offense is the

making of the agreement itself, followed by the commission

of any overt act, it is not necessary for the Government to

prove that the conspirators actually succeeded in accom-

plishing their unlawful plan.

What the evidence in the case must show beyond a

reasonable doubt is:

First: that two or more persons, in some way or

manner, came to a mutual understanding to try

to accomplish a common and unlawful plan, as

charged in the Indictment;

Second: that the Defendants, knowing the unlawful

purpose of the plan and intending to further its

accomplishments willfully joined in it;

Third: _ that one of the conspirators, during the exis-

tence of the conspiracy, knowingly committed

at least one of the overt acts described in the

Indictment; and

Fourth: that such overt act was knowingly committed

at or about the time alleged in an effort to

carry out or accomplish some object of the

conspiracy.

An “overt act” is any transaction or event, even one which

may be entirely innocent when considered alone, but which is

knowingly committed by a conspirator in an effort to accom-

plish some object of the conspiracy.

If a Defendant enters into a conspiracy agreement but later

has a change of mind and withdraws from that agreement

before anyone has committed an overt act, as previously

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defined, then the crime was not complete at that time and the

Defendant who withdrew cannot be convicted. That Defend-

ant would be not guilty of the alleged conspiracy offense.

However, in order for you to decide that a Defend-

ant withdrew from a conspiracy, you must find that the

Defendant took affirmative action to disavow or defeat the

purpose of the conspiracy. As just explained, the Defendant

must have taken such action before any member of the

scheme had committed any overt act.

A person may become a member of a conspiracy without

knowing all of the details of the unlawful scheme, and

without knowing who all of the other members are. So, if

you find that a Defendant has a general understanding of the

unlawful purpose of the plan and knowingly and willfully

joins in that plan on even one occasion, you may convict that

Defendant for conspiracy even though that Defendant did not

participate before, and even though that Defendant played

only a minor part.

A Defendant who has been found guilty of conspiracy may

then be found guilty for reasonably foreseeable acts or

offenses committed by co-conspirators during the time that

the Defendant under consideration was a knowing, willful

member of the conspiracy.

Of course, mere presence at the scene of a transaction or —

event, or the mere fact that certain persons may have

associated with each other, and may have assembled together

and discussed common aims and interests, does not neces-

sarily establish proof of a conspiracy. Also, a person who has

no knowledge of a conspiracy, but who happens to act in a

way which advances some purpose of one, does not thereby

become a conspirator. To convict a Defendant for conspir-

acy, you must be convinced beyond a reasonable doubt that

the Defendant intended to accomplish the unlawful purpose

of the conspiracy.

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With respect to the conspiracy count, the term “willfully”

means voluntarily and purposely, with specific intent or

purpose to do something that the law forbids. You may

consider the evidence of a Defendant’s acts and words, along

with all the other evidence, in deciding whether a Defendant

acted willfully.

With respect to the remaining counts, the Government

must prove that each Defendant under consideration acted

knowingly. A person acts knowingly if he acts intentionally

and voluntarily, realizing what he is doing, and not because of

ignorance, mistake, accident, or carelessness. Whether a

Defendant acted knowingly may be proven by the Defend-

ant’s conduct and by all of the facts and circumstances

surrounding the case.

It is not necessary for the Government to prove that a

Defendant knew that a particular act or failure to act was a

violation of law or that a Defendant had any specific

knowledge of the particular regulatory limits imposed under

the Clean Water Act (CWA), or the Comprehensive Environ-

mental Response Compensation and Lability Act (CERCLA),

or the Resource Conservation and Recovery Act (RCRA).

With regard to the conspiracy alleged in this case, the

Indictment charges that the Defendants conspired to commit

numerous separate, substantive crimes or offenses.

In such a case, it is not necessary for the Government to

prove that the Defendant under consideration willfully

conspired to commit all of those substantive offenses. It is

sufficient for conspiracy if the Government proves, beyond a

reasonable doubt, that the Defendant under consideration

willfully conspired with someone to commit one of those

offenses. But, in that event, in order to return a verdict

of guilty on the conspiracy count, you must unanimously

agree upon which of the offenses the Defendant conspired

to commit.

86a

Clean Water Act Charge

Counts 2 through 21 of the Indictment charge the

Defendants with violations of the Clean Water Act, Title 33,

United States Code, Section 1319(c)(2). Section 1319(c)(2)

provides that any person who knowingly violates any permit

condition or limitation, in a permit issued pursuant to

the National Pollutant Discharge Elimination System, or

“NPDES,” is guilty of an offense against the United States.

In other words, any person who knowingly discharges

pollutants in violation of the conditions or in excess of the

limits of a NPDES permit has committed an offense against

the United States.

In order to prove a Defendant guilty of violating the Clean

Water Act as charged in Counts 2 through 21, the

Government must establish the foliowing elements:

(1) that on or about the date set forth in the Indictment,

the Defendant under consideration knowingly:

(2) violated, or caused to be violated, a permit

condition

(3) set forth ina NPDES permit:

A. For counts 2 through 9, that mercury in excess

of the daily average discharge limit allowed by

the permit was discharged.

B. For counts 10 through 15, that mercury in

excess of the daily maximum discharge limit

allowed by the permit was discharged.

C. For counts 16 through 21, that chlorine in

excess of the daily maximum discharge limit

allowed by the permit was discharged.

The term “knowingly,” as I stated, is applicable to each

element of the offense. The term “discharge of a pollutant” is

87a

defined in the Clean Water Act as any addition of any

pollutant from any point source to navigable waters of the

United States.

The law provides that the term “pollutant” includes solid

waste, chemical wastes, and industrial waste discharged into

waters of the United States.

The term “point source” is defined in the Clean Water Act

to mean any discernible, confined and discrete conveyance,

including but not limited to, any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure or container . . . from which

pollutants are or may be discharged.”

The term “waters of the United States” includes:

1. All waters which are currently used, or were used in

the past, or may be susceptible to use in interstate or

foreign commerce, including all waters which are

subject to the ebb and flow of the tide; and

2. All other waters including any such waters from

which fish or shellfish are or could be taken and sold

in interstate or foreign commerce;

3. Wetlands adjacent to waters otherwise identified as

waters of the United States.

Under the federal Clean Water Act, the definition of

“person” specifically includes corporations and individual

corporate officers. You are instructed that the Defendants,

Christian A. Hansen, Randall W. Hansen, and

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