# Petition for Writ of Certiorari — Elias v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1702%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 812 ## Text p>), Supreme Coun, U.S. @) FILED 911502 apr -4 2009 No. ___OWI@E OF THE Geax In The Supreme Court of the United States + ALLAN ELIAS, Petitioner, Vs. UNITED STATES OF AMERICA, Respondent. ¢ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit ¢ PETITION FOR WRIT OF CERTIORARI * JOHN M. Cotvin Counsel of Record Darre__ D. HALLETT Scott A. SCHUMACHER CuHicoine & Ha ttetrt, PS. 1011 Western Avenue, Suite 803 Seattle, WA 98104 (206) 223-0800 E-mail to: jcolvin@chicoine-hallett.com Counsel for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED 1. Whether the District Court lacked jurisdiction over the Resource Conservation and Recovery Act (RCRA) criminal charges because the federal RCRA laws had been replaced and supplanted by Idaho’s own haz- ardous waste laws, pursuant to 42 U.S.C. § 6926(b)? 2. Whether the Government must prove that a sam- ple from a large body of material is representative of the entire body in order to prove that a characteristic waste is a hazardous waste, subject to RCRA regulation? 3. Whether the Government’s departure from a longstanding and consistently applied administrative practice, which would have determined that the material at issue was not a hazardous waste, violates the Constitu- tional fair notice requirement? 4. Where the defendant has shown jury tampering to have occurred during trial, is it the Government's burden to show no juror prejudice, or is it the defendant's burden to show actual juror prejudice? il TABLE OF CONTENTS Page QUESTIONS PRESENTED... The legislative history of RCRA confirms that it was Congress’ intent that States be afforded the opportunity to handle enforcement of waste management rules. “(T]he States are to have primary enforcement authority and if at any time a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the Federal minimum requirements for both administering and enforcing the law.” (Emphasis supplied.) H.R. Rep. No. 94-1491 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6262 © See also, Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001), cert. denied, January 22, 2002, (analysis of the contours of the federal/state partnership created under the Surface Mining Control and Reclamation Act, which contains analogous State primacy provisions). 11 40 C.F.R. § 271.16. After the EPA approved Idaho's haz- ardous waste management program in 1990, Idaho oper- ated its program, including the civil and criminal enforcement provisions (See 40 C.F.R. § 272.651(b)(2)), “in lieu of the Federal program under this Subchap- ter . . . and to issue and enforce permits .. . .”7 The Ninth Circuit’s reading of § 6926(b) to provide for a continued general federal enforcement role over state permitting violations is squarely contrary to the Eighth Circuit’s opinion in Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999) (App:145), which held: While the EPA is correct that the “in lieu of” language refers to the program itself, the admin- istration and enforcement of the program are inexorably intertwined. The RCRA gives authority to the states to create and implement their own hazardous waste pro- gram. The plain “in lieu of” language contained in the RCRA reveals a congressional intent for an authorized state program to supplant the federai hazardous waste program in all respects, including enforcement. ” Congress provided the federal government with certain limited powers, even in authorized States, to ensure that such States meet RCRA’s goals of protecting human health and the environment. See Washington v. EPA, 752 F.2d 1465, 1466-1467 (9th Cir. 1985) (setting forth limited powers retained by EPA post-authorization). Also see Wyckoff Company v. EPA, 796 F.2d 1197 (9th Cir. 1986) (42 U.S.C. § 6934, which provides EPA with emergency oversight powers, survives authorization). 12 191 F.3d at 899 (App. 152).8 The issue as to the extent of federal enforcement authority subsequent to State autho- rization is also currently pending before the Tenth Circuit in United States v. Power Engineering, et al., Docket No. 01-1217 (oral argument held March 20, 2002). The Ninth Circuit construed the phrase “without a permit under this subchapter” (an element of the offense in this case) to include both federal permits and state per- mits issued under § 6926(b) state authorized programs. 269 F.3d at 1012. This is contrary to the Second Circuit's interpretation of the federal jurisdiction afforded under virtually identical language in the “citizen suit” provi- sions of 42 U.S.C. § 6972(a)(1)(A). In Dague v. City of Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991), rev’d in part on other grounds, 505 U.S. 557 (1992), the Second Circuit considered whether permitting requirements under authorized State programs constituted requirements effective “pursuant to this chapter” for purposes of the federal jurisdiction afforded under § 6972(a)(1)(A), and concluded that no federal jurisdiction was available under § 6972(a)(1)(A) because the programs adopted by the States were not “pursuant to this [federal RCRA] chapter.”? The Second Circuit held the phrase “pursuant ® The District Court in Harmon noted that the “concept of co-existing enforcement powers is inconsistent with EPA’s delegation of authority and legislative history.” Harmon Industries, Inc. v. Browner, 19 F. Supp.2d 988, 995 (W.D. Mo. 1998). % While most courts have held that there is no federal jurisdiction over citizen suits after state authorization, some courts have held that federal jurisdiction continues. Compare Thompson v. Thomas, 680 F. Supp. 1, 3 (D.D.C. 1987); Clorox Co. v. 13 to this chapter” excludes state permitting programs, while the Ninth Circuit ruled that the virtually identical phrase “under this subchapter” includes State permitting programs. Supreme Court review of this issue is also important because it affects a vast number of businesses that pro- duce hazardous waste, which are potentially subject to federal criminal or civil penalties. 1. The Statutes Charged In This Case Are Predicated On Permitting Violations “Under This [RCRA] Subchapter.” Because Federal Law Was Supplanted Pursuant To § 6926, There Could Be No Violation Of Permitting Requirements “Under This [RCRA] Subchapter” In Idaho. With respect to which laws must be enforced, and who is to enforce those laws, § 6926 provides that, after EPA approval of a State plan, a State is authorized to administer and enforce the State’s hazardous waste man- agement law, in lieu of the “federal program under this subchapter.” The “subchapter” referred to is subchapter III of Chapter 82, which includes not only the substantive provisions, but also § 6928(d)(2) and (e), the violations charged in this case. Chromium Corp., 158 F.R.D. 120, 123-124 (N.D. III. 1994); Orange Environment, Inc. v. County of Orange, 860 F. Supp. 1003, 1020 (S.D. N.Y. 1994); City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971, 978-979 (S.D. Ohio 1993) with Sierra Club v. Chemical Handling Corp, 824 F. Supp. 195 (D. Colo. 1993) and Glazer v. American Ecology Environmental Services Corp., 894 F. Supp. 1029, 1039 (E.D. Tex. 1995). 14 That § 6928(d)(2) is applicable only to violations of permitting requirements under federal.law and regula- tions is confirmed by examining the language of the criminal statute in juxtaposition with the language of the State opt-out provision (§ 6926). Section 6928(d)(2)(A) makes it a crime to dispose of hazardous waste “without a permit under this subchapter,” and § 6926(b) provides that approved State programs, including the State’s enforcement provisions, operate in lieu of the federal program “under this subchapter.” Because Congress used an identical phrase (“under this subchapter”) in two stat- utes in the same act, that phrase must be afforded the Same meaning in both places. See Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159 (1993). Just as the remainder of the laws and regulations that constitute the federal program under Subchapter III are supplanted by State “equivalents” under § 6926(b), the federal permit- ting crime at issue here (§ 6928(d)(2)(A)), keyed to viola- tions of Subchapter III of RCRA, likewise, has no applicability if a State program, including required enforcement provisions, has supplanted the federal Sub- chapter III program. 2. State Authorized Programs Do Not “Arise Under Federal Law,” Nor Are They Enacted Pursuant To The Delegation Of Federal Authority. Disposing Of Waste Without An Idaho Permit Does Not Amount To A Viola- tion “Under This [Federal] Subchapter [III]” For Purposes Of § 6928(d)(2)(A). In Department of Energy v. Ohio, 503 U.S. 607, 624 (1992) (“DOE”), this Court ruled that penalties imposed ee ee ee eee eS 15 pursuant to State environmental statutes approved by the EPA and supplanting federal law, were not penalties “arising under federal law.” DOE, 503 U.S. at 624-625.10 The Court noted that even when a State’s exercise of power is expressly enabled by federal law, the rights and liabilities created thereunder by State law do not “arise under federal law.” DOE, 503 U.S. at 625-626. Section 6928(d)(2)(A) proscribes disposal of hazard- ous waste “without a permit under this subchapter.” In this case, any permitting requirement was imposed by Idaho law. As DOE teaches, Idaho substantive environ- mental law does not “arise under” federal RCRA law. Idaho permitting requirements are not imposed “under this [federal] subchapter” for purposes of § 6928(d)(2)(A). Thus, disposal of waste without a permit required by Idaho law is not a federal crime under § 6928(d)(2)(A).11 If the State permitting programs were programs “under the [federal] subchapter,” they would presumably be programs enacted pursuant to delegated authority. 10 Had the Ohio State “Clean Water Act” penalties arisen “under federal law,” the federal agencies would have been obligated to pay them. The CWA and RCRA have similar state authorization provisions. DOE, 503 U.S. at 611. 11 In a case decided prior to DOE, the First Circuit concluded that a State program was a program “under this [federal] subchapter.” United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 44-45 (1st Cir. 1991). This decision is contrary to the teaching of DOE, which holds that penalties imposed by State programs are not penalties “arising under” federal RCRA law. Moreover, MacDonald failed to address the “in lieu of” language, and its effect upon § 6928 enforcement authority. 16 However, all of the courts to address the question of whether RCRA has “delegated” rulemaking authority to the States have concluded that “State permit programs are ‘not a delegation of Federal authority,’ but instead are independent State laws which ‘function . . . in lieu of the federal program.’ ” State of California v. U.S. Dep't of the Navy, 845 F.2d 222, 225 (9th Cir. 1988). Indeed, such a delegation would violate fundamental principles of the Constitutional framework. See e.g., Manus River Preserva- tion Committee v. EPA, 541 F.2d 899, 903 (2d Cir. 1976) (“By the contemplation of minimum federal standards [of the Clean Water Act], however, Congress did not intend to relegate the States to the status of enforcement agents for the executive branch of the federal government.”)}2 Had this case been brought under Idaho law, Elias would have faced a maximum sentence of one year for 12 If authorized States were merely established and enforcing their idiosyncratic versions of federal law pursuant to a Congressional “delegation” of authority, such a system would be an impermissible delegation of federal executive power to the States: The Constitution does not leave to speculation who is to administer the laws enacted by Congress. . . . The insistence of the Framers upon unity in the Federal Executive — to insure both vigor and accountability — is well known. That unity would be shattered, and the power of the President subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws. Printz v. United States, 521 U.S. 898, 922-923 (1997). If the State programs were viewed as creatures of federal law, subject to enforcement by the States, as well as the EPA and the DOJ, the unity of the Federal Executive would be fragmented. 17 each violation, rather than the five and fifteen year max- ima of § 6928. Idaho Code § 39-4415. If § 6928(d)(2) and (e) continue to exist in a State with an authorized State program, prosecutors would be free to charge violations of the same substantive State law at the-State and/or federal level. That is, nothing would prevent federal authorities from prosecuting a RCRA offense following a State acquittal or conviction, and vice-versa. Congress cannot have intended that the same conduct, in violation of the same substantive law, potentially gives rise to two independent prosecutions with disparate penalties. B. The Court Should Accept Review To Determine The Scope Of The Government's Requirement To Prove “Representativeness” In Civil And Criminal Environmental Cases. The Ninth Circuit’s holding that no proof of repre- sentativeness is required in cases of disposal violations is a radical departure from the standard that has been applied by the EPA, industry, and the courts with respect to all “characteristic wastes” for more than 20 years.}3 Prior cases and rulings have consistently required proof that a sample taken from a larger volume of materic! adequately represents the average properties of the larsye 13 The regulations provide that solid wastes will be “hazardous waste” if either (1) the waste contains a threshold amount of a specific “listed” chemical, or (2) the waste exhibits one of four defined “characteristics” - ignitability, corrosivity, toxicity and reactivity. 40 C.F.R. §§ 261.3(a)(2); 261.10, 261.20-24. The term “representative sample” is employed in connection with all of the “characteristic wastes” identified in § 261.21 through § 261.24. 18 volume, whether for storage or disposal, and whether offered by the Government or the regulated party. The Ninth Cireuit’s ruling exposes regulated industries to vastly expanded civil and criminal liability. Because there is an overriding need for national uniformity on this issue, review by this Court is appropriate. Pursuant to 40 C.F.R. § 261.23, a waste is a reactive cyanide waste “if a representative sample of the waste has any of the following characteristics . . . (5) It is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment.” (Emphasis supplied.) The regulations define “representa- tive sample” to mean “a sample of a universe or whole (e.g., waste pile, lagoon, ground water) which can be expected to exhibit the average properties of the uni- verse or whole.” 40 C.F.R. § 260.10 (emphasis supplied). The Government did not offer evidence that a “represen- tative sample” of the material, whether the material in the tank or that on the ground, was a reactive hazardous waste under 40 C.F.R. § 261.23(a)(5), thereby failing to prove an essential element of its case: that a representa- tive sample of the material was a “hazardous waste.”!4 14 Because no effort was made to obtain a representative sample, the court abused its discretion by allowing Lowry’s test results into evidence. These results were irrelevant to the jury’s inquiry as to whether the material was, on average, a hazardous cyanide-bearing reactive waste. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (expert testimony admitted only if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”). 19 Noting that there was evidence showing the required level of cyanide reactivity in one sample, a portion of which was taken from outside the tank,!5 the Ninth Cir- cuit reasoned that the Government was not required to prove that this one sample was “representative” of the whole body of material inside or outside the tank because the sample itself, having the requisite level of reactivity, had been disposed of, constituting a violation. 269 F.3d at 1013-1014.16 The Ninth Circuit further held that there are two different standards: one if the Government is trying to prove that a hazardous waste has been disposed of or stored in violation of the law (where representativeness need not be proven), and another for waste generators trying to prove that their waste is not a hazardous waste. 269 F.3d at 1014. 15 The “composite” sample relied upon by the Ninth Circuit was taken from a three-foot area, within and without the tank, near a hole at one end of a 25,000-gallon tank, which contained several tons of heterogeneous material, one or more tons of which had been removed and was on the ground. While the Ninth Circuit indicated that “one sample” was taken from outside the tank, this is incorrect. A portion of the composite sample tested came from outside the tank, and there is no indication in the record whether the cyanide was in this portion, from a portion within the tank, or equally distributed. 16 If the few grams of cyanide-bearing waste tested had been the only material stored or disposed of, Elias would be exempt from regulation as a “small-quantity [waste] generator,” and he could not be prosecuted for storage or disposal of this limited quantity of material without a permit. 42 U.S.C. § 6921(d)(4) and 40 C.F.R. § 261.5. It is only if these samples are shown to be representative of the larger amounts of material actually stored or disposed of can the Government demonstrate an actionable permitting violation. 20 The Ninth Circuit’s holding is in direct conflict with the literal language of the regulations, as well as the holdings of every court to have addressed the issue of whether “grab” samples constitute sufficient evidence of regulatory violations. For example, in United States v. WCI Steel, 72 F. Supp.2d 810, 821 (N.D. Ohio 1999), where the government argued that there was no need to prove that samples reflect the average properties of the whole, the court held: As to this issue, the United States’ argument would turn 40 CFR § 261.22 and 40 CFR 260.10 on its head. 40 CFR § 261.22 says corrosivity is determined based upon a ‘representative sample of the waste.’ 40 CFR § 260.10 says the sample must reflect ‘the average properties of the uni- verse or whole.’ In arguing that this Court disre- gard the ponds as a whole, the United States pushes aside its own regulation. The key issue is what sampling method will produce a ‘representative sample’ of the ponds, and whether the methods used here produce a sufficiently reliable picture of the average prop- erties of the ponds as a whole. Likewise, In-the Matter of Hallar Enterprises, Inc., 1999 WL 118257 (EPA 1999), which the Ninth Circuit curiously cites in support of the proposition that “not every inch of the tank need be inspected,” 269 F.3d at 1014, the Hallar court actually held: Irrespective of whether SW-846 is mandatory or merely advisory, the necessity for a scientifically acceptable method of sampling is not thereby affected. For example, if the waste in the tanks had become stratified, it is questionable whether 21 a sample drawn from a single point would be representative of the contents of the tank. Accord, Renaud v. Martin Marietta Corp., 972 F.2d 304, 308 (10th Cir. 1992) (“Simply put, no one has any idea whether this [single] sample is representative of the ‘nor- mal’ contaminant concentration.”) As authority for its holding, the Ninth Circuit relied entirely upon an EPA administrative case, In re Electric Services Co., 1 E.A.D. 947 (Env.App.Bd. 1985). However, Electric Services dealt with an uncontrolled discharge of Polychlorinated Biphenyls (“PCBs”). Unlike characteristic wastes, with respect to PCBs, the EPA has no burden to prove that an uncontrolled discharge is representative of a larger universe or whole. Any uncontrolled discharge of PCBs would form the basis of a violation. See 40 C.FR. § 761.123. Indeed, Electric Services expressly distinguished cases where a “representative sample” must be established from those where a single instance of a contaminant, e.g. PCBs, establishes a violation: [W]e use representative samples to show the quality or condition of a larger body from which the sample is taken. Thus, if proof of a violation depends on producing evidence that accurately describes some quality or condition of the larger body (for example, its PCB concentration level), a representative sample is essential, for no infer- ences about the larger body can be drawn from a mere grab sample. In the present case, how- ever, proof of the disposal violations does not hinge on accurately describing the condition or quality of some larger body. Instead, it hinges on proof of an uncontrolled discharge of PCBs. 22 Under such circumstances, the sample itself is the uncontrolled discharge, the improper dis- posal, or, so to speak, the corpus delicti. Id. (emphasis supplied). Accordingly, Electric Services provides no support for the Ninth Circuit’s novel proposition that representativeness need not be proven in a disposal case. C. The Supreme Court Should Review This Case To Determine To What Extent An Agency’s Departure From Past Practices Violates The Fair Notice Requirement. The Ninth Circuit’s complete disregard of the long- standing and consistently applied testing protocol for determining cyanide reactivity is squarely contrary to decisions in the D.C. Circuit, requiring, especially in cases involving highly regulated industries, that settled administrative practice be taken into account in deter- mining whether there was “fair notice” that defendant's conduct was in violation of the law. The D.C. Circuit has ruled that what must be considered in the “fair notice” analysis for both civil and criminal penalties includes not only the statute and regulations, but also the agency’s interpretations:.- ‘ If, by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good faith would be able to identify, with “ascertainable certainty,” the standard with which the agency expects parties to conform, then the agency has fairly notified a petitioner of the agency’s interpretation. | 23 General Electric Company v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (“GE”) (emphasis supplied). See also Rollins Environmental Services v. EPA, 937 F.2d 649, 653 (D.C. Cir. 1991); Meehan v. Macy, 392 F.2d 822, 838-839 (D.C. Cir. 1968) (if an agency affirmatively acquiesces to a given standard over time, it cannot take action against a person whose conduct passes the formerly accepted standard). It is undisputed that, prior to this accident, the SW-846 test was routinely used by the EPA for all regula- tory purposes. Supreme Court review is thus needed to resolve whether and to what extent agency practices must be taken into account for purposes of “fair notice.” 1. The Due Process Clause Requires “Fair Notice” To Be Measured By Objective Stan- dards. Under the due process clause, a criminal statute that either “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617 (1954), or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972), is void for vagueness. Where statu- tory violations are based upon the violation of a regula- tion, and where the regulation at issue is not sufficiently clear to warn a party about what conduct is prohibited, there is no fair notice and the Government may not impose civil or criminal liability. GE, 53 F.3d at 1328-1329. The fair notice requirement is determined by objec- tive standards, United States v. Kozminski, 487 U.S. 931, 949-50 (1987), and the test is not whether the operator 24 actually had prior notice of a specific prohibition or requirement, but whether a reasonably prudent person familiar with the industry would have recognized the specific prohibition or requirement. Stillwater Mining Co. v. F.M.S.H.R.C., 142 F.3d 1179, 1182 (9th Cir. 1998). If the legal standards are unclear, “defendants’ actual intent is irrelevant.” United States v. Garber, 607 F.2d 92, 98 (5th Cir. 1979). 2. Because Material That Passed The SW-846 Test For Cyanide Was Consistently Treated By The EPA As Non-Hazardous, The Gov- ernment Cannot Prosecute Elias For Storage Or Disposal Of Material That Meets That Standard. The cyanide-bearing material involved here was sub- ject to regulation only if it was a “reactive waste.” In contrast to each of the other three “characteristic wastes,” the EPA’s definition of “reactive waste” does not employ a scientific test, but relies instead on a narrative defini- tion.” A cyanide-bearing waste is hazardous if: a representative sample of the waste .. . (5) is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment. 40 C.ER. § 261.23(a). 7 By contrast, the regulations define the other “characteristics” using specific numeric thresholds, and specific testing protocols. 25 When the regulations defining reactive wastes were finalized, the EPA recognized that the narrative definition offered no numerical test for generators to determine whether their wastes were “reactive,” agreeing with com- mentators who argued that the two test methods set out in the proposed regulations were unreliable and difficult to interpret. 45 FR 33109-33110 (May 19, 1980). However, in 1985, the EPA promulgated an interim test and a numeric threshold for determining whether a material that contained cyanide was a “reactive hazardous waste” and published the test and threshold in EPA Publication SW-846, which is incorporated by reference in the EPA’s regulations at 40 C.F.R. § 260.11. The preamble to the Third Edition of SW-846 provides: This manual provides a unified, up-to-date source of information on sampling, analytical and QC procedures related to compliance with the RCRA regulations. It brings together in one reference document all of these procedures that have been approved by the Agency for use in the RCRA regulatory program and in determin- ing compliance with the RCRA requirements. While use of the SW-846 test for releasable cyanide is not mandated by the regulation governing reactive waste, it has been systematically employed by industry and the EPA to determine whether a permit is required and/or whether cyanide-bearing material can be “de-listed” as a “hazardous waste.” (CR:98 at 22.) For example, the EPA’s records show 12 companies, including Bethlehem Steel and USX, whose wastes were de-listed using the SW-846 sulfide/cyanide test. (CR:98 at 22.) (App:192-194.) EPA’s steadfast adherence to the SW-846 test as the authorized standard for all other purposes forecloses upon the Gov- ernment’s use of an alternative in this case. 26 After a tragic accident, the Government should not be able to unilaterally drop its longstanding testing pro- tocol when that test fails to identify a certain material as hazardous, and proffer a “new and improved” test solely in order to convict Elias. The decoupling of the deter- mination of cyanide reactivity levels from prior agency practice sanctioned by the Ninth Circuit in this case encourages arbitrary and discriminatory enforcement: Elias was convicted for storing and disposing of waste that others have disposed of (as “non-hazardous”) with EPA’s blessing. D. The Court Should Accept Review To Determine Whether, When Jury Tampering Is Found To Have Occurred, It Is The Government’s Burden To Show No Reasonable Possibility Of Preju- dice, Or Whether It Is The Defendant’s Burden To Establish Prejudice. The holding by the Ninth Circuit that Elias failed to meet his burden in establishing juror bias in a case involv- ing jury tampering is consistent with the holding of the Fifth Circuit in United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998), which held that the District Court had discre- tion to allocate the burden of demonstrating prejudice to a defendant in a jury tampering case.1® However, these 8 The Fifth Circuit in Sylvester recognized the holding of Remmer, but believed that the rule regarding the allocation of the burden had been modified by the intervening Supreme Court decisions in United States v. Olano, 507 U.S. 725, 729-30 (1993) and Smith v. Phillips, 455 U.S. 209, 212 (1982). 143 F.3d at 934. The D.C. Circuit in United States v. Williams-Davis, 90 F.3d 490, 496-7 (D.C. Cir. 1996), and the First Circuit in United States 27 decisions are in conflict with the holdings of several other Courts of Appeals. See United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996); Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984); United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973), as well as the Ninth Circuit’s holding in United States v. Dutkel, 192 F.3d 893 (9th Cir. 1998). This Court should grant Certiorari to resolve the conflict. In the foundational jury tampering case of Remmer v. United States, 347 U.S. 227, 229 (1954), this Court held that: any private communication, contact, or tamper- ing, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . .. The presumption is not conclu- sive, but the burden rests heavily upon the Govern- ment to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. 347 U.S. at 229 (emphasis supplied). The evidence shows that two jurors believed from the middle of trial and throughout deliberations that Elias made a suggestion of bribery to one of the other jurors. In light of the heinous nature of the statement attributed to Elias,!9 there is at least a reasonable possibility that this v. Gomes, 177 F.3d 76, 83 (1st Cir. 1999), though not tampering cases, also suggested that the subsequent Supreme Court cases may have changed the rules relating to the allocation of the burden. 19 There is certainly a reasonable possibility that the two jurors’ perception of what Elias had said, whether understood 28 perception affected the verdict. This Court should grant Certiorari to resolve the conflict between the Fifth and Ninth Circuits, which place the burden of demonstrating prejudice in a jury tampering case with the Defendant, and the Fourth, Sixth, and Seventh Circuits, which allo- cate the burden of demonstrating no prejudice to the Government. Vill. CONCLUSION This Court should grant a Writ of Certiorari. Respectfully Submitted this 4th day of April, 2002. Cuicoine & HA ttett, PS. JoHN M. Cotvin Counsel of Record Darre_t D. HALLett Scott A. SCHUMACHER 1011 Western Avenue, Suite 803 Seattle, WA 98104 (206) 223-0800 E-mail to: jcolvin@chicoine-hallett.com to have been made with a smile or not, would prejudice them against Elias. “Even the words, ‘I don’t want to take a bribe and will not take one’ said with a wink and a smile might well be interpreted to mean exactly the opposite.” United States v. laconetti, 406 F. Supp. 554, 559 (E.D. N.Y. 1976). TABLE OF CONTENTS Opinion of Court of Appeals, United States v. Elias, wee Poe TS CO Ce BD). ow onc etc eeens A-1 Unpublished Memorandum Decision of Court of Appeals, United States v. Elias, (9th Cir. October PA MED Aa USS eS ean den 5 43k Nd dense een epaNbacus A-38 Judgment in a Criminal Case, United States v. Elias, United States District Court, Docket No. eer ree Ter etree eer A-45 Memorandum Decision and Order, Dated March 16, 2000, United States v. Elias, United States District Court, Docket No. 4:98CR0070-E-BLW...A-58 Memorandum Decision and Order, Dated April 26, 2000, United States v. Elias, United States District Court, Docket No. 4:98CR0070-E-BLW...A-70 Memorandum Decision and Order, Dated March 18 1999, United States v. Elias, United States District Court, Docket No. 4:98CR0070-E-BLW...A-80 Memorandum Decision and Order, Dated Decem- ber 9, 1999, United States v. Elias, United States District Court, Docket No. 4:98CR0070-E-BLW...A-92 Memorandum Decision, Dated January 6, 2000, United States v. Elias, United States District Court, Docket No. 4:98CRO070-E-BLW.......... A-107 Findings of Fact, Conclusions of Law, and Order, Dated January 25, 2000, United States District Court, Docket No. 4:98CR0070-E-BLW.......... A-113 Order Denying Petition for Rehearing, Dated Jan- BM aa Wbca sc cbdpanay eanw ska Kun dies os a0es A-127 og a Pare rere Tee yer eee ee eee EEC ee A-128 i vies os ca acaane 4-133 ii TABLE OF CONTENTS - Continued Page O84. Bs iis dk ee ee ee A-141 Oe Solas 0 UN bk on a ie ee A-142 Jury Instruction No. 26, United States v. Elias, United States District Court, Docket No. SPE si os nos cdnscnteacvendiaee A-144 Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th POPE T PPT TOTTT TCC PEP ee ee! Or A-145 Defendant’s Supplemental Reply in Support of Motion for Dismissal of Counts I through III on Void for Vagueness Grounds, United States v. Elias, United States District Court, Docket No. 8 ere Pree re pry ee A-165 A-1 United States Court of Appeals, Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. , Allen ELIAS, Defendant-Appellant. No. 00-30145. Argued and Submitted June 5, 2001 Filed Oct. 23, 2001 As Amended Dec. 21, 2001. Scott A. Schumacher, John M. Colvin, and Darrell D. Hallett (argued), Chicoine & Hallett, P.S., Seattle, Wash- ington, for the defendant-appellant. Lois J. Schiffer, Assistant Attorney General, Environ- ment and Natural Resources Division, Betty Richardson, United States Attorney, and Jeffrey C. Dobbins (argued), Attorney, United States Department of Justice, for the plaintiff-appellee. Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. CR-98-00070-BLW. Before: WALLACE, HALL, and T.G. NELSON, Circuit Judges. T.G. NELSON, Circuit Judge: After a three-and-a-half-week trial, a jury convicted Allen Elias of four offenses, the most serious of which was disposing of hazardous waste without a permit, knowing that his actions placed others in imminent dan- ger of death or serious bodily injury in violation of 42 U.S.C. § 6928(e). Elias appeals on numerous grounds. We A-2 address several of them here and the remainder in a memorandum disposition filed contemporaneously. I. BACKGROUND A. Offense Conduct Allen Elias owned Evergreen Resources, a fertilizer company located near Soda Springs, Idaho. In August 1996, Elias decided to transfer sulfuric acid from two railroad cars into a stationary 25,000-gallon tank that he had transported to Evergreen from his previous business, AEI. At AEI, Elias had used the thirty-six-foot-long, eleven-foot-high tank as a storage tank for byproducts of a cyanide leaching process he had patented. Elias real- ized that his process resulted in the transfer of cyanide- laced solids into the tank. He admitted, moreover, that there were one to two tons of cyanide-laced sludge left in the tank when he shipped it to Evergreen in the early 1990s. This sludge did not preclude Elias from using the tank for some purposes. In 1996, however, Elias decided that the sludge, which was hardened and more than a foot deep, had to be cleaned out of the tank before he could store the sulfuric acid in it. On August 26, 1996, Elias ordered four of his employees, Bryan Smith, Gene Thornock, Darrin Weaver, and Scott Dominguez, to enter the tank and wash the sludge out a valve opening in the end. Despite Smith’s repeated requests, Elias failed to provide any safety equipment for this task. Consequently, Dominguez and A-3 Weaver entered the tank wearing only their regular work clothes. After about fifteen minutes, they realized that the sludge could not be washed out the small hole in the end of the tank, and they exited. Both complained of sore throats and nasal passages. The next morning, on August 27, 1996, Elias met with his employees, who told him of the difficulties of the day before and the health effects they suffered. Smith again insisted on the necessary safety equipment. Elias said he would get it, but told his employees to proceed anyway and that he expected the tank to be cleaned out that morning. Although he instructed his employees to “do it by the book,” Elias provided none of the safety equip- ment or training needed for them to do so. After cutting a bigger hole in the end of the tank, Dominguez and Weaver again entered the tank with no safety equipment. About 45 minutes later, after they had emptied about one-third of the sludge through the hole onto the ground, Weaver shouted that Dominguez had collapsed. Thornock and Smith unsuccessfully tried to get Dominguez out of the tank, which had only a 22-inch manhole at the top. When firefighters got to Dominguez, he was in severe respiratory distress and in danger of dying. After extricating Dominguez, the fire chief asked Elias whether cyanide could be in the tank. Elias insisted that he had no knowledge of anything in the tank other than water and sludge, which the fire chief understood to mean mud. After Dominguez was rushed to the hospital in Soda Springs, the treating physician there concluded that the A-4 most likely cause of his condition was cyanide poisoning. He called Elias and asked him whether there was a possibility that there was cyanide in the tank, to which Elias again replied no. The doctor nonetheless asked the LifeFlight helicopter from Pocatello to bring a cyanide antidote kit to Soda Springs. After the doctor adminis- tered it, Dominguez responded positively. Blood drawn while Dominguez was in the Soda Springs hospital revealed extremely toxic levels of cyanide in his body. The day Dominguez was injured Elias told investiga- tors that he had completed a confined space entry permit, although it was “handwritten” and “not very formal.” He declined, however, to actually provide the permit to investigators at that time. Early the next morning, Elias visited an acquaintance at a nearby company, Kerr- McGee Corp., where he inquired about the requirements for confined space entries and departed with a copy of Kerr-McGee’s safety manual, which spelled out the requirements for a confined space entry permit. The per- mit Elias eventually provided investigators stated that it was issued on August 27, 1996, at 10:30 am. Weeks after Dominguez was injured, Elias ordered a new employee to move and bury the same sludge, again without safety precautions. B. District Court Proceedings Based on this conduct, a grand jury returned a four- count indictment against Elias. In Count I, the indictment charged that Elias had stored or disposed of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily A-5 injury in violation of 42 U.S.C. § 6928(e), the Resource Conservation and Recovery Act (“RCRA”). Counts II and III, which stemmed from events that transpired: after Dominguez was injured, charged him with improper dis- posal of hazardous waste without a permit in violation of 42 U.S.C. § 6928(d). Count IV charged Elias with a viola- tion of 18 U.S.C. § 1001 for making material misstate- ments relating to the confined space entry permit that he alleged was prepared on August 27, 1996. On May 7, 1999, the jury convicted Elias on all four counts. In June 1999, prior to sentencing, counsel for the Government spoke with Boyd Greenlee, the jury foreper- son. Greenlee told them that Elias had spoken to one of the alternate jurors and asked what it would take to get him off. Counsel for the Government apprized both the court and Elias’s counsel of Greenlee’s revelation, caus- ing a full evidentiary inquiry to ensue. In October 1999, Elias moved for a new trial based on juror bias and perceived jury tampering. The district court denied Elias’s motion, having concluded, based on two evidenti- ary hearings, that because everyone involved thought the incident was a joke, no risk of bias infected the jury’s deliberations. In October 1999, Elias also moved to dismiss the three RCRA counts in his indictment, asserting that the United States had ceded its criminal enforcement author- ity to the State of Idaho when the Environmental Protec- tion Agency (“EPA”) authorized it to manage a hazardous waste program under RCRA. Initially, the district court agreed in part and granted Elias’s motion to dismiss Counts II and III. As a result of both parties’ motions for A-6 reconsideration, the district court reversed its earlier rul- ing and reinstated Counts II and III. The district court held, however, that those counts should be amended in order to list Idaho law rather than federal law as a basis for the charges. On April 28, 2000, the district court sentenced Elias to 204 months in prison and ordered him to pay $6.3 million in restitution. Elias appeals. II. ANALYSIS A. Federal Enforcement of RCRA’s Criminal Sanctions Elias argues that Counts I, II, and III of his indict- ment must be dismissed because they alleged! federal RCRA violations, and when the EPA authorized Idaho’s hazardous waste program, that program replaced and supplanted federal RCRA law, effectively stripping the United States of enforcement authority. Elias derives sup- port for his argument from 42 U.S.C. § 6926. That section, which governs “Authorized State hazardous waste pro- grams,”? provides in relevant part: Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter may develop and . . . submit to the [EPA] Administrator an application . . . for authorization of such program. . . . [If the Administrator approves the program,] [s]uch 1 As noted above, the district court ordered post-trial that the indictment be amended to reflect violations of Idaho law. 2 42 U.S.C. § 6926. A-7 State is authorized to carry out such program in lieu of the Federal program under this subchap- ter in such State and to issue and enforce per- mits for the storage, treatment, or disposal of hazardous waste... . 3 Because Idaho’s hazardous waste program was con- cededly EPA-authorized at all relevant times, the crucial sentence for our purposes is the second one: “Such State is authorized to carry out such program in lieu of the Federal program under this subchapter. . . . “4 Our task is to reconcile this “in lieu of” language with the language of 42 U.S.C. § 6928, the RCRA “Federal enforcement” provision enacted the same year. As its title implies, § 6928 authorizes federal criminal and civil enforcement and penalties.5 Elias argues that, pursuant to § 6926, Idaho’s autho- rized hazardous waste program displaced the federal program, leaving no federal crimes and ousting the fed- eral court of jurisdiction. The linchpin of this argument, which the First Circuit flatly rejected in United States v. MacDonald & Watson Waste Oil Co.,® “is that the term ‘program’ in § 6926 incorporates the exclusive respon- sibility to enforce criminal provisions penalizing the dis- posal of hazardous wastes.”” Because construing RCRA 3 42 U.S.C. § 6926(b). 4 Id. 5 The portions of 42 U.S.C. § 6928 relevant to this appeal are reproduced in the appendix to this opinion. 6 933 F.2d 35 (1st Cir. 1991). 7 Id. at 44. A-8 in this manner contravenes Chevron’s® dictates as well as RCRA’s plain language and legislative history, we reject Elias’s argument. This case bears a striking resemblance to Wyckoff Co. v. EPA.® The Wyckoff defendants unsuccessfully sought to enjoin the EPA from bringing a civil enforcement act against them. On appeal, they argued that because § 6926 “authorizes state programs to be carried out ‘in lieu of the Federal program,’ Congress intended to revoke the EPA’s power to issue [civil compliance orders] where an authorized state program is in effect.”1° We rejected that contention, noting that the EPA did not interpret RCRA to cede exclusive enforcement authority to states and that, under Chevron, “[i]f the EPA’s interpretation of [§ 6926’s ‘in lieu of’ provision] is reasonable, we must defer to the agency’s interpretation even if the agency could also have reached another reasonable interpreta- tion, or even if we would have reached a different result had we construed the statute initially.”11 We concluded that the EPA’s interpretation was reasonable because we could “discern no clear congressional intent that [§ 6926] be read to disable the EPA from issuing orders under [§ 6934]!2 wherever an authorized state hazardous waste ‘ 8 Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 9 796 F.2d 1197 (9th Cir. 1986). 10 Id. at 1199. 11 Id. at 1200 (internal quotation omitted). 2 A Section 6934 gives the EPA the authority to order the owner or operator of a facility to conduct “monitoring, testing, analysis, and reporting” so the EPA can ascertain the nature and A-9 program operates ‘in lieu of the Federal program’ ”}3 and because “[t]he EPA’s conclusion that its power to issue orders under [§ 6934] survives in those states where an authorized state program is operating is plainly consis- tent with a straightforward reading of the Act.”14 Wyckoff controls here. But even if it did not, we would arrive at the same conclusion the second time around. As District Judge Timlin cogently argued in United States v. Flanagan, § 6928’s plain text supports the EPA’s interpretation that its enforcement power survives authorization of state programs: Section 6928(a) allows the EPA to exercise civil enforcement powers even where a state program is in effect. This demonstrates “that Congress did not intend, by authorizing a state program extent of hazards posed by certain hazardous waste facilities. 42 U.S.C. § 6934(a)(2). 13. Wyckoff, 796 F.2d at 1200. 14 Id. at 1201. Here, as in Wyckoff, the EPA’s interpretation is abundantly clear. The EPA rule authorizing Idaho’s program states that “[t]he Agency retains the authority under [§ 6928] of RCRA to undertake enforcement actions in authorized states,” and that “[w]ith respect to such enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities . . . rather than the authorized State analog to these requirements. Therefore, the Agency does not intend to codify such authorized Idaho enforcement authorities.” Hazardous Waste Management Program Codification of Approved State Hazardous Waste Program for Idaho, 55 Fed.Reg. 50327-01 (December 6, 1990). 15 126 F.Supp.2d 1284 (C.D.Cal.2000). Like Elias, the Flanagan defendants were indicted for criminal RCRA violations including treating or storing hazardous waste without a permit. Id. at 1285. A-10 ‘in lieu of a Federal program,’ to preempt fed- eral regulation entirely.” Similarly, Congress intended other criminal enforcement provisions of Section 6928(d) to survive authorization of state programs, which at least indicates a gen- eral congressional intent to maintain Federal involvement in criminal enforcement post- authorization. See Section 6928(d)(3), (4) & (5) (criminalizing non-compliance with “regula- tions promulgated by the Administrator (or by a State in the case of an authorized State program) under this subchapter.”).16 In support of his contrary conclusion, Elias cites the Eighth Circuit’s decision in Harmon Industries, Inc. v. Browner.!” Browner ‘s statement that “[t]he plain ‘in lieu of’ language contained in the RCRA reveals a congres- sional intent for an authorized state program to supplant the federal hazardous waste program in all respects including enforcement” lends credence to his argument.18 Reliance on Browner, however, is suspect. In Browner, the EPA sought civil penalties against the defendant. While its administrative enforcement action was pending, a State court approved a consent decree between the state and the defendant releasing the defendant from any claim for monetary penalties.19 The district court held that this release was binding upon the EPA because the state was authorized pursuant to § 6926(b) to operate its own program and because “ ‘[a]ny action taken by a State 16 Id. at 1287-88 (quoting Wyckoff, 796 F.2d at 1200). 17 191 F.3d 894 (8th Cir. 1999). 18 Id. at 899. 19 Id. at 897. A-11 under a hazardous waste program authorized under [RCRA] [has] the same force and effect as an action taken by the [EPA] under this subchapter.’ ”2° The Eighth Circuit agreed.21 We agree with Flanagan, however, that “Browner is not about if, but about when, the United States can bring a civil enforcement action in federal court after it has authorized a state program.”?2 Even Browner conceded that “[RCRA] manifests a con- gressional intent to give the EPA a secondary enforce- ment right in those cases where a state has been authorized to act that is triggered . . . if the state fails to initiate an enforcement action.”23 Flanagan ‘s summation is correct: “[T]he position of the Eighth Circuit in Browner is not that the federal government loses its civil enforce- ment power aftef a state program is authorized. The Eighth Circuit concludes only that the federal govern- ment loses its primary role in enforcing hazardous waste regulations.”24 Thus understood, Browner does not sup- port Elias’s contention that federal law is supplanted or that the United States lacks power to try him.?5 Legislative history also supports the EPA’s conten- tion that RCRA’s criminal enforcement provisions are 20 Id. at 897-98 (quoting 42 U.S.C. § 6926(d)) (alterations in original). 21 Id. at 900. 22 Flanagan, 126 F.Supp.2d at 1289. 23 Browner, 191 F.3d at 899. 24 Flanagan, 126 F.Supp.2d at 1289 n. 3. 25 Browner is also suspect for its marked lack of Chevron deference. A-12 meant to apply within states having authorized pro- grams, as the First Circuit held in MacDonald: Prior to the 1984 RCRA Amendments - when, as today, RCRA provided for state programs which, when federally approved, would be car- ried out “in lieu” of the federal program, and which authorized the state to issue and enforce permits — the federal penal statute preceding § 6928(d) was worded so as to apply in so many words to violations both of federal and state permitting programs. Thus, the earlier version provided: Any person who knowingly - (1) transports any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under section 3005 of this title (or section 300676 of this title in case of a State program), shall, upon conviction, be subject to a fine of not more than $25,000 for each day of violation, or to imprisonment not to exceed one year, or both. The 1984 amendments increased the applicable criminal penalties and simply substituted “under this subchapter” for the references to the specific subsections under which permits, fed- eral and state, may be granted. The new lan- guage, “without a permit under this subchapter,” subsumed both state and federal permits, as both types are provided for within “this subchapter.” The latter did not, therefore, in any way narrow the scope of federal crim'nal 26 Section 3006 of RCRA is codified at 42 U.S.C. § 6926. A-13 jurisdiction. Nor did the legislative record hint at any intention by Congress to narrow the scope of federal criminal jurisdiction. To the contrary, Congress manifested its desire to retain a strong federal presence.?” Had Congress intended to impose a hitherto unknown limita- tion upon the scope of its laws criminalizing permit violations, its intentions would surely have been manifested; for example, § 6928(d) would have been reworded to indicate that it applied only to persons in states lacking an authorized state program.?8 For these reasons, we conclude that, under RCRA, the federal government retains both its criminal and its civil enforcement powers. Contrary to the district court’s conclusion, this is true even where a state law counter- part exists, for many of these “counterparts” provide only misdemeanor punishments where federal law prescribes a felony. We believe RCRA only contemplates that the federal permitting scheme is supplanted by authorized state ones.*? Thus, the federal proscription against trans- porting hazardous waste without a permit remains, as 27 Here the MacDonald opinion refers to H.R. Conf. Rep. No. 98- 1133, 98th Cong., 2d Sess., Oct. 3, 1984 at 110, reprinted in 1984 U.S. Cong. & Admin. News 5681 and S.Rep. No. 98-284, 98th Cong., 1st Sess., Oct. 28, 1983 at 45, which states that “The Federal government’s ability to obtain criminal penalties against generators and other persons who knowingly cause the transportation of hazardous waste to an unpermitted facility is essential to the regulatory-scheme.” MacDonald, 933 F.2d at 45. 28 MacDonald, 933 F.2d at 44-45 (internal quotation marks and citations omitted). 29 See United States Dep’t of Energy v. Ohio, 503 U.S. 607, 611, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (noting that “permit program [s]” run by EPA are “subject to displacement by an A-14 does the federal penalty for it. What changes, and what is supplanted by state law, is the definition of hazardous waste and the sovereign from whom generators must obtain the necessary permit originally - in this case, Idaho. Although the district court’s reasoning diverged, it arrived at the same result. We therefore affirm the district court’s refusal to dismiss Counts I, II, and III. Although we agree with the Government that the district court erred when it ordered post-trial that Elias’s indictment be amended to reflect that he was charged in Counts II and III under Idaho Code § 39-4408(1), we hold that the error was harmless.3! Neither party was misled, the trial was conducted on the basis of federal law, and in any subse- quent prosecution, the judgment of conviction, which states violations of federal law, would control. adequate state counterpart”). Elias’s argument that Ohio implicitly overruled MacDonald is not persuasive. Whether displacement of the EPA’s permit program also functions to displace federal criminal enforcement under § 6928(d) was not an issue presented to or resolved by the Ohio court. 30 This interpretation does not render the “in lieu of” language meaningless. “Once the EPA authorizes a state program pursuant to Section 6926(b): (1) the EPA ceases issuing permits pursuant to its permit program; (2) the EPA’s regulations, for example those respecting the characterization of solid wastes as hazardous and non-hazardous, are supplanted; and (3) the state assumes its position as the primary enforcement authority.” Flanagan, 126 F.Supp.2d at 1292. 31 Neither that section nor its federal analog, 42 U.S.C. § 6925(a), are criminal offenses of which one may be convicted. A-15 B. Representativeness of the Sample To obtain convictions on Counts I, II, and III, the Government had to prove that Elias transported or dis- posed of “hazardous waste.”52 The governing regulations provide that “hazardous waste” includes wastes that exhibit the characteristic of reactivity*> and that “[a] solid waste exhibits the characteristic of reactivity if a repre- sentative sample of [it] . . . is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment.”>4 A “representative sample” is “a sam- ple of a universe or whole (e.g., waste pile, lagoon, ground water) which can be expected to exhibit the aver- age properties of the universe or whole.”35 Elias argues that there was insufficient evidence for the jury to convict him of disposing of “hazardous waste” because the Government presented no evidence that the samples it took from a three-foot radius inside the tank and from outside the tank exhibited the average proper- ties of the entire tank. This analysis misses the mark for two reasons. First, it assumes that to prove Elias guilty of disposing of hazardous waste, the Government had to 32 See 42 U.S.C. § 6928(d) and (e). 33 40 C.F.R. §§ 261.3(a)(2), 261.20-24. 34 40 C.ER. § 261.23. 35 40 C.RR. § 260.10. A-16 prove that the entire tank was hazardous. That is incor- rect. As the EPA’s Environmental Appeals Board explained in In re Electric Service Co.,36 proof of the disposal violations does not hinge on accurately describing the condition or quality of some larger body. Instead, it hinges on proof of an uncontrolled discharge. . . . Under such circumstances, the sample itself is the uncon- trolled discharge, the improper disposal, or, so to speak, the corpus delicti. Therefore, the viola- tions may be established by simply proving two - things: (1) that the samples themselves contain [reactive cyanide]; and (2) that the [reactive cya- nide] w[as] not disposed of properly, a conclu- sion which may be inferred from where the [samples] were found.37 In this case, EPA investigators took at least one sam- ple from sludge located outside the tank. By definition, therefore, this sludge sample had been disposed of.3® It was reactive and tested positive for cyanide. No further evidence is necessary. Thus, whether this hazardous sludge sample bears the same characteristics of the tank waste Dominguez had not yet gotten to before he col- lapsed is legally beside the point. 36 1 E.A.D. 947 (Env.App. Bd.1985), available at 1985 WL 57155. ; 37 Id. 38 See 40 C.F.R. § 260.10 (“Disposal means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land . . . so that such solid waste or hazardous waste or any constituent thereof may enter the environment... . ”). A-17 On a more basic level, we think Elias’s hypertechni- cal interpretation contravenes common sense. As the Government’s witness, Dr. Lowery, explained, if the Gov- ernment or a waste generator is trying to prove the negative, i.e., that cyanide is not present, relying on just one or two samples would be dangerous. Rather, the generator would need to do the more extensive sampling contemplated by the regulations to guard against obtain- ing a false negative from potentially striated waste. By contrast, if the Government is trying to prove a positive, i.e., that there is cyanide within, “it’s not necessary to go to every inch of the tank to see if there’s more cyanide there.” This explanation, which the EPA has advanced else- where,?? makes perfect sense. If a sample from one part of the tank contains wastes reactive enough to cause brain damage to someone, there can be no conceivable purpose in sending other people into the tank to extract more samples. Indeed, under these circumstances, retrieving additional samples would actually disserve RCRA’s objectives.4° The district court did not err. C. Constitutionally Adequate Notice 1. The governing regulation. Elias also contends that the EPA regulation that defines what constitutes reactive hazardous waste is so 39 See In re Hallar Enterprises, Inc., Docket No. RCRA- VI-815- H, 1999 WL 118257(EPA). 40 See 42 U.S.C. § 6902(a) (noting that RCRA’s objective is to “promote the protection of health and the environment”). A-18 vague as to deprive him of fair notice that his acts were proscribed and thus renders his convictions on these counts unconstitutional. The regulation, 40 C.F.R. § 261.23, provides as follows: A solid waste exhibits the characteristic of reac- tivity [and is thus hazardous waste] if a repre- sentative sample of the waste .. . (5) is a cyanide . . . bearing waste which, when exposed to pH conditions between 2 and 12.5, can gener- ate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment.*! We review de novo whether this regulation is uncon- stitutionally vague.42 The general rule is that “[a] criminal statute is not vague if it provides adequate notice in terms that a rea- sonable person of ordinary intelligence would under- stand that [his] conduct is prohibited.”43 However, “if the statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the chal- lenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or 41 40 C.ER. 261.23(a). 42 United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993). 43 United States v. Martinez, 49 F.3d 1398, 1403 (9th Cir.1995) (superseded by statute on other grounds). A-19 other special meaning, well enough known to enable those within its reach to correctly apply them.”44 Title 40 C.F.R. § 261.23 indeed applies to “a select group of persons having specialized knowledge.” Accordingly, to analyze whether this regulation is uncon- stitutionally vague, we must ask whether persons like Elias, whose businesses involve use, storage, and dis- posal of hazardous wastes, would have understood that the tank waste was reactive and thus hazardous. Because “in determining the sufficiency of the notice[,] a statute must of necessity be examined in the light of the conduct with which a defendant is charged,”45 the question becomes whether a reasonable person in the industry who knew the tank once contained cyanide and who had previously received health complaints from employees working in and around it would have known that the tank materials “presented a danger to human health or the environment.”4¢ The district court considered this question carefully in response to Elias’s motion to dismiss Counts I-III on void for vagueness grounds. After an evidentiary hearing on the motion, the court concluded that a reasonable 44 Weitzenhoff, 35 F.3d at 1289 (internal quotation marks omitted) (“Weitzenhoff and Mariani were knowledgeable in the wastewater field and can be expected to have understood what the permit meant. In particular, they should have known that it did not give them license to dump thousands of gallons of partially treated sewage into the ocean on a regular basis.”). 45 United States v. E.C. Invs., Inc., 77 F.3d 327, 331-32 (9th Cir. 1996) (internal quotations marks, alteration, and citation omitted). 46 40 C.F.R. 261.23(a)(5). A-20 person in the defendant’s circumstances would have known of the “hazardous” nature of a substance without a numerically-quantified, test-based standard. We concur. As the district court noted, the reactivity definition set forth in 40 C.F.R. § 261.23(a)(5) closely parallels the top three reactive classes of the National Fire Protection Agency, tracks the definition of reactive wastes used by the Chemical Manufacturers Association, and is substan- tially similar to the classification system used by the United States Navy. The observation sandwiched in the middle seems most pertinent. If the people who make cyanide define reactivity (and thus hazardousness) this way, people who use it may be expected to do so also. We have, moreover, sanctioned similar language before. For example, in United States v. Kennecott Copper Corp.,4” we held that a law prohibiting “[t]he discharge of oil . . . into or upon the navigable waters of the United States . . . in harmful quantities” was not unconstitu- tionally vague.*® We noted that its language, which was neither highly technical nor obscure, was sufficient to put persons on notice of potential criminal liability.49 We see no reason why, if persons using or transporting oil can be charged with knowing what constitutes a “harmful quan- tity,” persons using cyanide may not be charged with knowing how much cyanide, under certain conditions, may prove “harmful to human health or the environ- ment.” 47 523 F.2d 821 (9th Cir. 1975) (omissions in original). 48 Id. 49 Id. at 823. a A-21 2. The SW-486 interim testing protocol. The district court concluded that it would be prefer- ‘able to have some numerically-quantified, test-based standard for determining whether a substance releasing cyanide gas should be deemed hazardous but that this is not possible given the variety of situations and circum- stances in which cyanide may exist and pose a hazard. Elias contends that quantifying reactivity is possible, and that, during the period in question, the EPA embraced a test that did precisely that. The test methodology to which Elias refers was first mentioned in an internal EPA memorandum dated July 12, 1985.59 This memorandum from the Director of the Characterization and Assessment Division to Solid Waste Branch Chiefs provided as fol- lows: Over the past year, we have received many inquiries about how to evaluate wastes for reac- tivity (§ 261.23(a)(5)). We have initiated a number of studies in this area, and expect to propose a quantitative threshold for toxic gas generation reactivity in December of this year. On an interim basis, however, we feel strongly that wastes releasing more than the following levels of toxic gas should be regulated as haz- ardous wastes: Total Available Cyanide: 250 mg HCN/Kg waste 50 Memorandum from Eileen Claussen, Director, Environmental Protection Agency Characterization & Assessment Division to Solid Waste Branch Chiefs on “Interim Thresholds for Toxic Gas Generation Reactivity (261.23(a)(5)),” (July 12, 1985). A-22 The available cyanide . . . should be measured using the attached draft testing method. Work currently being done . . . may result in signifi- cant changes in the subsequent proposed test. However, pending the conclusion of investiga- tions, we recommend use of this draft pro- cedure.5! December of 1985 came and went without the EPA ever finalizing a quantitative testing methodology. How- ever, the interim threshold (250 mg HCN/Kg waste) and the draft testing methodology was republished in EPA publication SW-846, which is entitled “Test Methods for Evaluating Solid Waste, Volume IC: Laboratory Manual Physical/Chemical Methods.”52 Although the manual was “intended to provide a unified, up-to-date source of information on sampling and analysis related to compli- ance with RCRA regulations,” it also warned that it could not always be used “in rote fashion.”53 It explained that some “situations . . . will require a combination of techni- cal abilities, using the manual as guidance rather than in a step-by-step, word-by-word fashion,” and that this “burden on the user . . . is unavoidable because of the variety of sampling and analytical conditions found in hazardous waste.”%4 51 Id. 52 Environmental Protection Agency, Office of Solid Waste and Emergency Response, Test Methods for Evaluating Solid Waste; Volume IC: Laboratory Manual Physical/Chemical Methods, SW-846, § 7.3.3 (1986). 53 Id. at 1. 34 Id. A-23 The interim threshold and draft testing methodology remained in the SW- 846 manual for thirteen years, until growing dissatisfaction with it prompted the EPA to remove it.5> It is undisputed that Elias did not know of the interim test’s existence in 1996, when he ordered his employees to clean the tank. Nonetheless, Elias argues that because the waste in his tank would have passed the SW-486 test with flying colors and that without that test, the regulation gives him no guidance at all, he lacked fair notice that the material in the tank was in fact “hazard- ous.” We reject this argument. As noted above, at the end of the day, the question is whether a reasonable person who knew cyanide had previously been stored in the tank and who was aware of previous health complaints by those working with or near the substance would have known that the sludge in Elias’s tank was dangerous to human health. The uncontroverted evidence is that they would have - despite the apparent vagueness of the terminology, those in the industry apparently understand what it means. Thus, even without the guidance of the 55 See, e.g., Joe Lowery, Chief, Chemistry Branch, Environmental Protection Agency, “Releasable Cyanide; Dysfunctional Regulation” (paper presented at 8th Annual Waste Testing & Quality Assurance Symposium, Arlington, VA, July 13-17, 1992, urging withdrawal or modification of SW- 846 guidance); Memorandum from Diana Love, Director, EPA National Enforcement Investigations Center to David Brussard, Director, EPA Hazardous Waste Identification Division, OSWER (Feb. 18, 1998) (urging the Office of Solid Waste to withdraw guidance); Memorandum from David Brussard to Diana Love (April 1998) (withdrawing guidance). A-24 SW-486 test, 40 C.F.R. § 261.23(a)(5) is not unconstitu- tionally vague. Even if we presume that, unlike Elias, a reasonable person in the industry would have known of the interim testing protocol, it does not follow that he or she would have been so confused by the interplay between the regulation and the SW-486 test as to lack fair notice of what is hazardous. As the district court concluded, the interim threshold did not provide a “safe harbor” for waste that emitted toxic gas below the threshold level. It did not purport to tell waste generators a level below which their substances were non-hazardous; it simply told them a level above which they definitely were: “On an interim basis . . . we feel strongly that wastes releasing more than the following levels of toxic gas should be regulated as hazardous wastes.” D. Mens Rea Instruction Elias argues that we must reverse his convictions because Jury Instruction 26 misstated the mens rea appli- cable to his offenses. Whether a jury instruction misstated elements of a statutory crime is a question of law the court normally reviews de novo.5”? However, 56 Memorandum from Eileen Claussen, Director, Environmental Protection Agency Characterization & Assessment Division to Solid Waste Branch Chiefs on “Interim Thresholds for Toxic Gas Generation Reactivity (261.23(a)(5)),” (July 12, 1985). 57 United States v. Armstrong, 909 F.2d 1238, 1243 (9th Cir. 1990). A-25 [dje novo review .. . is only available when a proper objection has been made in the district court. Federal Rule of Criminal Procedure 30 prohibits a party from assigning error unless that party objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which that party objects and the grounds of that objection. Elias failed to make such a distinct objection. He did object to the court’s failure to give his proposed jury instructions and “to the Court’s instructions that are being given to the extent they are inconsistent with the ones that we have submitted.”59 As this court held in United States v. Klinger,6° however, such a global objection is simply not enough: “Rule 30 . . . requires that a defen- dant object with adequate specificity - an objection must state distinctly the matter to which the party objects as well as the grounds of the objection. A defendant’s mere proposal of an alternate instruction does not satisfy Rule 30’s standard of specificity.”©1 Because Elias failed to 58 Id. at 1243 (internal quotation marks omitted). _ 59 Elias’s counsel then went on to make several specific objections to particular instructions and/or omissions. Ironically, the Government specifically objected to Jury Instruction 26, arguing that the court should have included even more language than it ultimately did. It did so, moreover, immediately before Elias had an opportunity to state his objections. 60 128 F.3d 705 (9th Cir. 1997). 61 Id. at 710 (internal quotation marks, alteration, and citations omitted). The court stated that “Klinger’s mere proposal of an alternate definition of ‘knowingly’ was inadequate to preserve the challenge he now makes on appeal.” Id. at 711. A-26 properly object to Jury Instruction 26, we review his objection to it for plain error.%2 The instruction provided as follows: In determining whether the defendant knew that his conduct placed another person in immi- nent danger of death or serious bodily injury, you are instructed that 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 (C) a result of his conduct, if he is aware or believes that his con- duct is substantially certain to cause danger of death or serious bodily injury. The government does not need to show that the defendant actually intended to harm or endan- ger any person. Elias objects to the very last sentence. He asserts that telling the jury he did not have to “actually intend[ ]” harm likely confused the jury because, according to his reading of the Restatement (Second) of Torts, “knowledge that there is a ‘substantial certainty’ that a given result will occur as a result of one’s conduct is equated under the tort law with ‘intention’ to achieve that result.”©3 He notes, too, that according to La Buy’s Manual of Jury Instructions in Federal Criminal Cases, the law has long recognized that “[i]Jn determining defendant’s intention, the law assumes that every person intends the natural 62 Id. at 710. 63 Restatement (Second) of Torts § 825, § 8A. A-27 consequences of his voluntary acts or omissions.”® Thus, Elias argues that the last part of Jury Instruction 26 told the jury that the Government did not have to prove the very thing the first part told them it did. Although there is potential for confusion here, it does not rise to the level of plain error because it is confusion that would only afflict law students or lawyers. The jury was not instructed on the Second Restatement of Torts. Nor was it apprized of the principle that intent equals the natural consequences of voluntary acts. Indeed, intent was not defined at all.© For this reason, we must assume that the jury understood “intend” to mean what the dic- tionary says it does: “to have in mind as a design or purpose.”6 So understood, there is no conflict between the two parts of the instruction. The first part set the bar. The jury had to find that Elias believed his conduct was “substantially certain to cause danger or death or serious bodily injury.” The second part told the jury that Elias didn’t have to have ordered his workers into the tank for the “design or purpose” of hurting them. In other words, harming the workers did not have to have been Elias’s objective in order for him to be guilty as charged. While this instruction is not a model of clarity, and we would not advise its use in the future, it was not plainly erro- neous. 64 W. La Buy, Manual of Jury Instructions in Federal Criminal Cases § 403 (1963), reprinted in 33 F.R.D. 523 (1963). 65 Elias did not request a specific definition of intent. 66 Webster’s Third New Int’l Dictionary 1175 (1986). A-28 E. Juror Bias and Perceived Jury Tampering The jury convicted Elias on May 7, 1999. On June 16, 1999, the Government prosecutors conducted a telephone conference with the jury foreperson, Boyd Greenlee, to discuss the trial. During that conference, Greenlee told the prosecutors that during the trial, he had heard from another juror, whom the parties later determined was alternate juror Scott, that Elias had approached her and asked her what it would take to buy her off. The prosecu- tors immediately informed the court of Greenlee’s state- ments and notified defense counsel. On July 2, 1999, the district court held the first of two evidentiary hearings on this matter. The hearing occurred in chambers with each of the available jurors called one at a time, placed under oath, and questioned by the court. During the court’s questioning, Greenlee stated that dur- ing the “middle of the trial,” another juror told her fellow jurors, including him, that Elias had “approached” her and asked her “what would it take to turn her decision.” At another point in the court’s questioning, Greenlee paraphrased the juror’s accusation against Elias a bit differently: “She mentioned that [Elias] said what would it take to win your vote.” When asked by the court, “what was your understanding as to the tone or nature of Mr. Elias’ remark?” Greenlee responded, “I kind of think maybe he was just joking. I wasn’t there, so I didn’t hear. This is just hearsay.” Seeking to clarify, the court asked Greenlee whether his understanding was that Elias’s remark was “somewhat in jest,” to which Greenlee rep- lied that it was and that the juror who related it to him A-29 also perceived it that way: “I think she didn’t really feel totally uncomfortable about it.” Although none of the other jurors questioned by the court during the July 2, 1999, hearing recalled hearing Scott recount to them that Elias had approached her and asked her what it would take to “win” or “turn” her vote, the court erred on the side of caution and decided to have a more thorough evidentiary hearing, where counsel for both sides could examine the jurors. To accommodate all jurors, that hearing took place on January 3 and January 7, 2000. During the second hearing, juror Scott testified that she had one chance meeting with Elias in the federal court parking lot, during which he had done nothing more than greet her. She did not recall whether she told other jurors about this greeting; she was adamant, how- ever, that Elias had said nothing more than words to the effect of “hello” and that she had no recollection of him saying, jokingly or otherwise, anything along the lines of “what do I have to do to win your vote” or “what does a guy have to do to get out of this?” The district court found juror Scott “very c.:edible on this point.” Greenlee also testified at the second hearing. He con- firmed his previous testimony that a juror, whom he now remembered was juror Scott, related an incident to him and others in which Elias asked her what it would take to win her vote or sway her decision. Greenlee also testified that Scott indicated to him that Elias said this “jokingly” and was “not serious” and that he understood the pur- ported comment that way as well. He asserted that after Scott revealed the encounter, “there was really nothing A-30 much said about it after that; that is about the extent of the conversation.” The court then asked Greenlee whether what Scott told him about her contact with Elias distracted him or made it difficult for him to concentrate on the evidence as he was listening to it in the courtroom. Greenlee replied, “No, it did not.” Burkhart was the only other juror to aver that he had heard reports of Scott’s contact with Elias. Like Greenlee, however, Burkhart testified that he understood that Elias made the remark to Scott in a joking or jovial manner and that the jurors did not discuss the incident after Scott related it. Burkhart also testified that Elias’s alleged remark did not scare him or distract him from the evi- dence and that at the time he heard the information from alternate juror Scott, he was able to remain fair and impartial in the case. After hearing testimony from all jurors, the district court, in an order laying out detailed findings of fact, denied Elias’s motion for a new trial based on jury tam- pering, juror misconduct, or juror bias. Among the court’s most important findings were the following: Elias said nothing to Scott beyond a brief greeting or acknowledg- ment; specifically, he did not ask her anything along the lines of “what it would take to win [her] vote;” Scott told her fellow jurors of this greeting; Greenlee “misin- terpreted Scott’s comments to mean that Elias had asked Scott what it would take to ‘win’ or ‘turn’ her vote;” Burkhart misinterpreted Scott’s comments to mean that Elias had asked Scott “what does a guy have to do to get out of this;” and finally, that b~th Greenlee and Burkhart interpreted Scott’s comments to mean that Elias had made his comments to her in a joking manner. The court A-31 concluded that no juror believed Elias had tampered with the jury and that Elias had not shown any jurors were biased against. him. — Elias argues that under Federal Rule of Evidence 606(b), it was improper for the judge to inquire into the juror’s perceptions of the incident. However, in the con- text of a hearing about possible juror tampering, we have rejected the argument that “juror testimony about the effect of extraneous information or improper contacts on a juror’s state of mind is prohibited.”®” We distinguished between testimony regarding the affected juror’s mental processes in reaching the verdict - which is barred by Rule 606(b)-and testimony regarding a juror’s more general fear and anxi- ety following a tampering incident, which is admissible for the purposes of determining whether there is a “reasonable possibility that the extraneous contact affected the verdict.” Under this rationale, it was proper for the district court to question the jurors regarding their thoughts about the alleged tampering by Elias. While the judge ultimately found that there was in fact no tampering incident, this does not affect our decision to apply Henley because, at the time of the hearings, the allegation of tampering was both specific and serious. Thus, we hold that the evidentiary hearings did not result in impermis- sible inquiry into the jury’s deliberative processes in vio- lation of Federal Rule of Evidence 606(b). 67 United States v. Henley, 238 F.3d 1111, 1117 (9th Cir. 2001) 68 Id. at 1118, quoting United States v. Cheek, 94 F.3d 136, 144 (4th Cir. 1996). A-32 “Because the district court held extensive evidentiary hearings and made findings of fact, we review the find- ings of fact to determine whether they are ‘clearly erro- neous.’ “°? There is no evidence that they are. By far, the most difficult thing to understand is how, if Scott merely said that Elias had greeted her, two people came to believe he had suggested a bribe, jokingly or otherwise. There is no satisfactory explanation. The fact remains, however, that both jurors testified that whatever they thought Elias had said, he had said jokingly. They testi- fied that it did not preoccupy them at the time, frighten them, or distract them from focusing on the evidence. In light of this, the district court’s conclusion that Elias had not borne his burden” of showing juror bias appears correct. Accordingly, we affirm the district court’s denial of Elias’s motion for a new trial. °° Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 911 (9th Cir. 2000). 7° See United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir. 1999) (“A defendant bears the burden of showing that a juror was actually biased against him or her and that the district court abused its discretion or committed manifest error when it failed to excuse the juror for cause.”) (internal quotation marks and alteration omitted). See also Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1998) (en banc) (reviewing state court’s ruling on juror bias, en banc court stated that “[s]o long as the fact-finding Process is objective and reasonably explores the issues presented, the state trial judge’s findings based on that investigation are entitled to a presumption of correctness.”) A-33 F. Restitution Order The district court ordered Elias to pay $6.3 million in restitution to Dominguez. Elias argues that this consti- tutes plain error”! because 18 U.S.C. § 366372 only autho- rizes imposition of restitution for violations of Title 18 and certain other provisions not applicable here, whereas his crimes were violations of Title 42. Because Elias is correct, we vacate the sentence in that respect and remand for entry of an amended judgment. The jury convicted Elias of four counts. The first of these listed only 42 U.S.C. § 6928(e) as the redevant stat- ute, so it cannot possibly support the imposition of resti- tution. By contrast, Counts II and III listed violations of both 18 U.S.C. § 2 and 42 U.S.C. § 6928(d)(2)(a). The reference to 18 U.S.C. § 2 likely explains why the district court thought imposing restitution was proper. In United States v. Snider,73 however, this court held that “[t]he mention of [18 U.S.C. § 2] does not bring the restitution order within the ambit of [18 U.S.C. § 3663]” because “Section 2 does not establish ‘an offense’ of which a 71 Elias failed to raise this issue before the trial court. 72 This section provides in relevant part: The court, when sentencing a defendant convicted of an offense under this title, section 401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act .. . or section 46312, 46502, or 46504 of title 49 ...may order... that the defendant make restitution to any victim of such offense. .. . 73 957 F.2d 703 (9th Cir. 1992). Sain acc Ee A-34 defendant may be convicted; it merely determines which offenders may be punished as principals.”74 The Government asserts that even if the restitution order cannot be upheld on the basis of Counts II and III, it may be upheld on the basis of Count IV, the material misstatement count that alleged a violation of 18 U.S.C. § 1001. Although, as a theoretical matter, § 1001 offenses may support the imposition of restitution,75 Elias’s § 1001 offense cannot support the court’s order of restitution for Dominguez because Dominguez was not a victim of that particular crime.”6 Elias did not harm Dominguez by lying; he harmed him by knowingly exposing him to hazardous waste. This latter offense is one of the few for which Congress has not sanctioned the imposition of restitution. Perhaps this case will change that. At present, however, we conclude that the law does not sanction the imposition of restitution in this instance. Il. CONCLUSION For the reasons stated above, we AFFIRM in part, VACATE in part, and REMAND the case to the district court with instructions to amend the sentence by deleting the restitution provision. The district court may consider further amending the sentence by imposing a term of 74 Id. at 706. 7° See, e.g., United States v. Hoover, 175 F.3d 564, 569 (7th Cir. 1999). 76 See United States v. Rodrigues, 229 F.3d 842, 845 (9th Cir. 2000). A-35 supervised release with a condition requiring restitution, pursuant to U.S. Sentencing Guidelines § 5E1.1(a)(2) (1995). In fulfilling the mandate of this remand, the court may hold such hearings and enter such orders as it deems appropriate. In all other respects, the judgment and sen- tence shall remain as written. AFFIRMED in part, VACATED in part, and ~ REMANDED. APPENDIX 42 U.S.C. § 6928. Federal enforcement (a) Compliance orders. (1) Except as provided in paragraph (2), when- ever on the basis of any information the Admin- istrator determines that any person has violated or is in violation of any requirement of this subchapter, the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance imme- diately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or per- manent injunction. (d) Criminal penalties. Any person who... (2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter . . . (A) without a permit under this subtitle... A-36 (3) knowingly omits material information or makes any false material statement or represen- tation in any application, label, manifest, record, report, permit, or other document filed, main- tained, 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, trans- ports, disposes of, exports, or otherwise handles any hazardous waste or any used oil not identi- fied or listed as a hazardous waste under this subchapter . . . and who knowingly destroys, alters, conceals, or fails to file any record, appli- cation, 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 subchap- ter; (5) knowingly transports without a manifest, or causes to be transported without a manifest, any hazardous waste or any used oil not identi- fied 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 sub- chapter) to be accompanied by a manifest... . shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both. If the conviction is for a viola- tion committed after a first conviction of such person under this paragraph, the maximum A-37 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, disposes 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 imprison- ment for not more than fifteen years, or both.”” 77 42 U.S.C. § 6928. A-38 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT - UNITED STATES OF No. 00-30145 erry D.C. No. Plaintiff-Appellee, CR-98-00070-BLW ALLEN ELIAS, (Filed | | | V. | MEMORANDUM* | | Defendant-Appellant. | Oct. 23, 2001) | Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding. Argued and Submitted June 5, 2001 Seattle, Washington Before: WALLACE, HALL, and T.G. NELSON, Circuit Judges. Because the facts of this case are recounted in the opinion filed contemporaneously, we do not repeat them here. I. KNOWING ENDANGERMENT The evidence at trial showed the following: Elias put cyanide in the tank sometime in the 1980s; he knew that * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. oe REN ET ONY NTR, A-39 one to two tons of sludge remained in the tank when he | transported it years later; OSHA had informed Elias that his failure to have a cyanide antidote kit, his failure to continuously monitor for cyanide with appropriate equipment, his violations of closed entry permits, and his failure to properly train and equip his employees caused a “substantial probability of death or serious physical harm” on other occasions; nonetheless, Elias failed to provide any training or the safety equipment he knew he should provide; after Dominguez collapsed, Elias denied any knowledge that cyanide might be in the tank; after Dominguez’s injury, Elias persisted in endangering employees by having them acknowledge training that they never undertook and by instructing another man to bury the sludge that harmed Dominguez without the benefit of safety equipment. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Elias knowingly exposed his employees to hazardous waste that he knew with substantial certainty would cause death or serious bodily injury.’ Il. THEORY OF DEFENSE INSTRUCTIONS The district court did not err in refusing to give Elias’s proposed instruction regarding assumption of risk because no evidence supported it. One cannot logically infer from the fact that at least two coworkers knew or suspected that the tank was dangerous that Dominguez 1 See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining standard of review). A-40 knew that there was potentially deadly cyanide in the tank and that he ncnetheless consented to entering it, particularly in view of his direct testimony to the con- trary. The empty container instruction was similarly unwarranted. A “container” is “any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled.”2 In contrast, a “tank” is “a stationary device, designed to contain an accumulation of hazardous wastes which is constructed primarily of non- earthen materials ... which provide structural support.”* The district court sensibly concluded that the fact that this 36 x 11 ft, 25,000-gallon tank had been moved did not necessarily mean the tank was portable and thus a “con- tainer.” Contrary to Elias’s assertion, the EPA's OSWER Directive 9441.19185 supports the district court’s decision rather than undermines it. The OSWER directive only concluded that the “tanks” at issue there were “con- tainers” because those tanks were tank cars.* Moreover, even if Elias’s tank could be characterized as a “con- tainer,” the instruction he sought would not have been warranted because there was no evidence that it was “empty” within the meaning of 40 C.F.R. § 261.7(b). Finally, the district court did not err in failing to instruct the jury that 40 C.F.R. § 261.4(b)(7) exempts from RCRA regulations waste resulting from extraction and 2 40 C.ER. § 260.10. 3 Id. 4 OSWER Directive 9441.1985(41), Dec. 12, 1985, 1985 WL 286839 (OSWER). A-41 beneficiation of ores and minerals. By its terms, that exemption only applies to primary mineral production where the feedstock contains less than 50 percent scrap materials.5 It does not apply to secondary production of mineral commodities like recovery from flue dust, which is what AEI did. Ill. PRIOR BAD ACTS EVIDENCE® Contrary to Elias’s contention, the OSHA inspector’s testimony, as well as the testimony from several of Elias’s employees, is relevant to offense elements. It tends to show that Elias had long ago been put on specific notice of the risks associated with confined spaces and the han- dling of cyanide. This, in turn, provides circumstantial evidence that Elias knew the tank was in fact dangerous. The evidence, in other words, was admissible to show intent, knowledge, or absence of mistake or accident.’ IV. STATEMENTS BY THE EPA ENGINEER During Elias’s direct examination of EPA engineer Michael Silverman, the Government objected based on hearsay and lack of personal knowledge. The gist of the 5 40 C.ER. § 261.4(b)(7)(iii)(A). 6 Review of Elias’s claim that evidence of prior bad acts was improperly admitted is complicated by the fact that, rather than drawing this court’s attention to specific statements, Elias simply directs us to 171 pages in the transcript containing testimony from several different witnesses. 7 Fed. R. Evid. 404(b). A-42 objection was that Silverman was simply repeating what Elias had told him during an inspection. The court sus- tained the objection: I’m not going to preclude any inquiry of the witness, but Rule 602 requires that as a condi- tion to any witness’ testimony, that a foundation be established of personal knowledge and unless such questions are phrased that way, I will sustain the objection as violative of Rule 602 and if the basis of knowledge relies upon hear- say, I will sustain the objection pursuant to Rule 801, 802. So, with that limitation, I’m not going to exclude the witness from testifying, but it needs to be clear that this was based upon observation and not based upon hearsay. To this Elias’s counsel replied, “I understand, Your Honor.” Counsel did not object to the exclusion of the evidence and did not advance the argument that the information sought was not hearsay or was otherwise admissible. Under these circumstances, the Government is correct that this court reviews for plain error.§ There is 10 such error here. Counsel gave no indica- tion at the time that the exclusion of the testimony would “seriously affect the fairness, integrity or public reputa- tion of judicial proceedings, or . . . would amount to a miscarriage of justice.”? Given the ample evidence that 8 See United States v. Sarno, 73 F.3d 1470, 1490 (9th Cir. 1995) (reviewing for plain error where defendant failed to object when court sustained an objection and struck testimony as irrelevant). 9 United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (internal quotation marks and alteration omitted). A-43 Elias knew that there was dangerous cyanide sludge in the tank, any error was not plain. V. EVIDENCE OF MATERIAL MISSTATEMENT Viewing the evidence in the light most favorable to the prosecution, there is evidence from which a rational trier of fact could have found that Elias made a material misstatement to OSHA investigators by representing that he completed a confined space entry permit on August 27, 1996, when he did not in fact complete it until after that date.1° The permit Elias signed states that it was “issued” on August 27, 1996, at 10:30 a.m. After Domi- nguez was injured, Elias told investigators that he had completed a permit that day, though he described it as “handwritten” and “not very formalized.” Elias declined, however, to actually provide the permit to investigators on that day, or even on the next day. Most damaging, however, was a Kerr-McGee Corporation manager’s testi- mony that early on the morning of August 28, Elias visited him, inquired about the requirements for confined space entries, and departed with Kerr-McGee’s safety manual, which spelled out the requirements for a con- fined space entry permit. Although this evidence is cer- tainly not overwhelming, it is legally sufficient. VI. SENTENCE Under U.S.S.G. § 3D1.1, offense levels for multiple counts are consolidated into a single “combined offense 10 Jackson, 443 U.S. at 319. A-44 level.” In this case, that level was 36, yielding a sentenc- ing range of 188-235 months. In turn, U.S.S.G. § 5G1.2, which governs “Sentencing on Multiple Counts of Con- viction,” provides that where, as here, the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment [the combined offense level dic- tates], then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punish- ment. In all other respects, sentences on all counts shall run concurrently. ... 1 The district court followed this guideline. Because the statutory maximum for each of the individual counts of conviction was less than the combined sentence, it imposed the statutory maximum, with the concurrent/consecutive nature of those sentences determined according to U.S.S.G. § 5G1.2(d). That Elias’s material misstatement conviction, standing alone, would only have warranted a 12-18 month sentence is immaterial. Elias simply overlooks the fact that when offenses are grouped into a combined offense level, it is that level — and not the individual offense levels — that dictates his ultimate sentence.!2 AFFIRMED in part, VACATED in part, and REMANDED. 11 U.S.S.G. 5G1.2(d). 12 See USSG §§ 3D1.1 and 3D1.4. A-45 Unitep States District Court District of Idaho UNITED STATES JUDGMENT IN A OF AMERICA CRIMINAL CASE Vv (For Offenses Committed ; On or After Allan Elias November 1, 1987) (Filed May 5, 2000) Case Number: 4:98CR00070-001 Craig Jorgensen Defendant’s Attorney THE DEFENDANT: [ ] [ ] pleaded guilty to count(s) pleaded nolo contendere to count(s) which was accepted by the court. X was found guilty on count(s) 1, 2, 3, and 4 after a plea of not guilty. Title & Nature of Date Count Section Offense Concluded Number(s) & USC. Knowing 08/27/1996 1 Section Endangerment 6928(e) 18 U.S.C. _ Disposal of 09/30/1996 2 and 3 Section 2 & Hazardous Waste 42 U.S.C. without a Permit Section 6928 (d)(2)(A) A-46 The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. [ ] The defendant has been found not guilty on count(s) X Count(s) 5 X is [ ] are dismissed on the motion of the United States. IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Defendant’s Soc. Sec. 04/28/2000 114-28-0755 Date of Imposition of Defendant’s DOB Judgment 01/16/1938 /s/ B. Lynn Winmill Defendant’s USM No.: ling of Judicial 94520-023 — Defendant’s Residence B. Lynn Winmill, United Address: States District Judge 680 E 3rd N Name and Title of Judicial Soda Springs, ID 83276 Officer 5/5/00 Date Defendant’s Mailing Address: Same as Above A-47 ADDITIONAL COUNTS OF CONVICTION Date Title & Nature of Offense Count Section Offense Concluded Number(s) 18 U.S.C. False Statements 09/30/1996 4 Section 1001 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total total term of 204 months __, consisting of a term of 180 months on count 1; a term of 24 months on each of counts 2 and 3 to be served consecutive to count 1, but concurrent to each other; and a term of 60 months on count 4 of which 36 months are to be served concur- rent to count 1 and 24 months to be served consecutive to Count 1 and concurrent to counts 2 and 3. X The court makes the following recommendations to the Bureau of Prisons: that the defendant be placed in a facility in the State of California, close to his family. X The defendant is remanded to the custody of the United States Marshal. [ ] The defendant shall surrender to the United States Marshal for this district: [ ] at [ ] am. [ ] p.m. on [ ] as notified by the United States Marshal. [ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: [ ] before 2 p.m. on A-48 [ ]. as notified by the United States Marshal. [ ] as notified by the Probation or Pretrial Services Office. RETURN I have executed this judgment as follows: Defendant delivered on to at , with a certified copy of this judgment. UNITED STATES MARSHAL By Deputy U.S. Marshal SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of 3 years ‘ consisting of 3 years on each count to be served concur- rently. The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state, or local crime. NAA DIP ESE LA ADAIR RIE MH I 3 he sa a ——— or A-49 The defendant shall not illegally possess a controlled substance. For offenses committed on or after September 13, 1994: The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as directed by the probation officer. X The above drug testing condition is suspended based on the court’s determination that the defen- dant poses a low risk of future substance abuse. (Check, if applicable.) X The defendant shall not possess a firearm as defined in 18 U.S.C. § 921. (Check, if applicable.) If this judgment imposes a fine or a restitution obligation, it shall be a condition of supervised release that the defendant pay any such fine or resti- tution that remains unpaid at the commencement of the term of supervised release in accordance with the Schedule of Payments set forth in the Criminal Mon- etary Penalties sheet of this judgment. The defendant shall comply with the standard condi- tions that have been adopted by this court (set forth below). The defendant shall also comply with the addi- tional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION - 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) A-50 the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; the defendant shall support his or her dependents and meet other family responsibilities; the defendant shall work regularly at a lawful occu- pation unless excused by the probation officer for schooling, training, or other acceptable reasons; the defendant shall notify the probation officer ten days prior to any change in residence or employ- ment; the defendant shall refrain from excessive use of alcohol; the defendant shall not frequent places where con- trolled substances are illegally sold, used, distrib- uted, or administered; the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; the defendant shall notify the probation officer within seventy-two hours of being arrested or ques- tioned by a law enforcement officer; the defendant shall not enter into any agreement to act as an informer or a special agent of a law A-51 enforcement agency without the permission of the court; 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occa- sioned by the defendant's criminal record or per- sonal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such noti- fication requirement. SPECIAL CONDITIONS OF SUPERVISION 1) Defendant shall comply with the rules and regula- tions of the Probation Department. 2) Defendant shall pay any special assessment and resti- tution that is imposed by this judgement and that remains unpaid at the commencement of supervised release as a condition of supervision. Payments to be on a monthly payment scheduled to be established and may be periodically modified by the probation officer, pro- vided the entire financial penalty is paid no later than the termination of term of supervised release. Payments to be made to Clerk of the Court, District of Idaho, 550 W. Fort St., MSC 039, Boise, ID 83724. Clerk shall disburse restitu- tion payments to the victim(s). 3) Defendant shall provide the probation officer with access to any requested financial information. Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule. A-52 4) Defendant shall not possess a firearm or other dan- gerous weapon. 5) Defendant shall submit to a search of his person, place of residence, or automobile at the direction of the U.S. Probation Officer and submit to seizure of any con- traband found therein. Special conditions of supervised release shall supersede any standard condition that is inconsistent with the spe- cial conditions. CRIMINAL MONETARY PENALTIES The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of payments set forth on Sheet 5, Part B. Assessment Fine Restitution Totals: $ 400.00 $ $ 6,300,836.00 [ ] If applicable, restitution amount ordered pursuant to plea agreement..... $ FINE The above fine includes costs of incarceration and/or supervision in the amount of $ The defendant shall pay interest on any fine of more than $2,500, unless the fine is paid in full before the fifteenth day after the date of judgment, pursuant to 18 U.S.C. § 3612(f). All of the options on Sheet 5, Part B may be subject to penalties for default and delinquency pur- suant to 18 U.S.C. § 3612(g). A-53 [ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that: [ ] The interest requirement is waived. [ ] The interest requirement is modified as fol- lows: RESTITUTION + The only jurors who remem- ber Scott saying anything at all - jurors Greenlee, Burkhart, Barrus, and Conley - all testified that Scott’s comments were never discussed again. The comments were so insignificant to Burkhart that he did not recall them at the July 2, 1999, hearing. 43. Thus, no juror actually suspected that Elias had made “an effort to influence the jury’s verdict by threatening or offering inducements to one or more of the jurors.” Dutkel, 192 F.3d at 895. And in the language of Owen, no juror had a erroneous assump- tion that Elias was tampering with another juror. 44. Jurors are competent witnesses to testify about tam- pering under Rule of Evidence 606(b) because tam- pering constitutes an “outside influence,” an express exception to the Rule’s general proscription against inquiring into the jury’s deliberative process. 5 Dutkel states that under Rule 606(b), “the court may not inquire into any juror’s mental processes, but rather must focus on conduct.” Dutkel, 192 F.3d at 899 (emphasis added). The Court here focuses on conduct, not mental processes connected with the deliberative process. A-122 45. Jurors are likewise competent under Rule 606(b)’s | “outside influence” exception to testify whether any alleged tampering statements were made seriously or in jest. See, e.g., Remmer v. United States, 350 U.S. 377 (1956) (considering evidence in “suspected” tam- pering case that a juror was “disturbed and trou- bled” by an approach made by a third party that the juror suspected was done at the behest of the defen- dant);® United States v. Dutkel, 192 F.3d 893, 898 (9th Cir. 1999) (considering testimony in a tampering case from jurors that a fellow juror was “distracted and expressed fear about his family.”); see generally, United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993) (in a case not discussing Rule 606(b), the Circuit found “particularly instructive” a case requiring a new trial because some jurors testified they were “frightened” by an improper contact, and cited with approval another case denying a new trial where jurors viewed the contact as a “harmless prank.”).” 6 While Remmer was decided before Rule 606(b) was in effect, the common law proscriptions against a juror’s testimony, in effect during Remmer, were very similar to Rule 606(b). See 27 Wright & Gold, Federal Practice and Procedure, § 6071 (1990). The Court considers Remmer a “suspected” tampering case because the juror in Remmer was approached by a third-party, not the defendant, in a manner that would raise a suspicion that the third-party was acting at the behest of the defendant in trying to influence jurors. 7 The testimony regarding jesting was fixed as of the time Greenlee and Burkhart heard Scott’s comments. This was a date many days prior to deliberations. The Court did not consider any testimony regarding what effect Scott’s comments had on any juror’s deliberations, as such testimony would be clearly barred by Rule 606(b). The Court only considered testimony regarding what was said and the context in which the conversation occurred; that is, the time, place, location, and tone (serious or jesting) of the comments as understood by the listeners at the time they heard the comments. 46. 47. 48. 49. 50. ~ 10 52. 53. 54. A-123 Assuming that the Government had the burden of proof of dispelling a presumption of prejudice under Dutkel, the Government has carried that burden. A closely related issue to the “suspected” tampering issue is the juror bias issue. ~ The existence of juror bias violates a defendant's Sixth Amendment right to a fair and impartial jury if it results in the denial of a fair trial. See Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986). “The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice.” Dyer v. Calderon, 151 F.3d 970, 973, n. 2 (9th Cir. 1998) (en banc), cert denied, 119 S.Ct. 575 (1998). The defendant has the burden of showing actual or implied bias. See United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir. 1999). Implied bias is reserved for the “extraordinary” or “rare” case. Dyer, 151 F.3d at 981, 984. “If only one juror was unduly biased or improperly influenced, [the defendant] was deprived of his Sixth Amendment right to an impartial panel.” Dick- son v. Sullivan, 849 F.2d 403, 408 (9th Cir. 1988). The Court finds that Elias has not carried his burden of showing that any juror was biased against him. Greenlee and Burkhart interpreted Scott’s comments to mean that Elias was joking. Thus, they did not think that Elias was attempting to influence Scott's vote as a juror. Elias asserts that “Greenlee created out of whole cloth a belief that the defendant tried to bribe a juror,” and concludes that “Greenlee must therefore be biased against Mr. Elias.” See Defense Reply Brief at 55. 56. of. A-124 2. But Burkhart heard almost the same thing, making it very unlikely that Greenlee created this scenario “out of whole cloth.” It is much more likely that Greenlee and Burkhart misinterpreted Scott’s com- ments, and did not internally foment their beliefs out of a bias against Elias. And as explained above, neither Greenlee nor Burkhart believed that Elias tried to bribe Scott - they both thought Elias was joking. In addition, Greenlee’s failure to reveal a single DUI — over 15 years old at the time of voir dire - does not bring this case anywhere near Dyer. In Dyer, the Circuit was faced with a juror who had lied repeat- edly in a blatant attempt to be chosen to serve on the jury being selected. The Circuit found her biased, and analyzed the case as follows: “Few voir dires are impeccable, and most irregularities can be shrugged off as immiaterial to the fairness of the trial. But the magnitude of [the juror’s] lies and her remarkable display of insouciance - her expressed feeling that only she would decide what matters — fatally under- mine our confidence in her ability to fairly decide [defendant's] fate. The facts here add up to that rare case where we must presume juror bias.” Id. at 984. Greenlee’s failure to reveal a 15 year-old DUI does not make this a “rare case where [the Court] must presume juror bias,” id., especially in light of Green- lee’s credible explanation that he thought his record was expunged and was not trying to mislead the Court. Elias asserts that this is an extrinsic evidence case governed by Dickson. Under Dickson, “a defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is a reasonable possibility that the extrinsic material could have 58. 59. 60. 61. 62. A-125 affected the verdict.” Dickson, 849 F.2d at 405 (inter- nal quotations omitted). Elias asserts that “[t]he extrinsic material involved in this case is the per- ceived belief that the defendant asked a juror ‘what will it take to buy your vote?” See Defendant's Brief at 9. Dickson goes on to hold that the inquiry is objective in nature: “[A] trial judge should not investigate the subjective effects of any [extrinsic evidence] upon the jurors. Rather, the trial court’s factual inquiry is limited to determining the extent, if at all, to which the jurors saw or discussed the extrinsic evidence.” Id. at 406. As Elias points out, “Dickson did not even involve Rule 606,” but was based instead on the Sixth Amendment. See Defendant's Brief at 10. The trial court is allowed by Dickson to inquire into “the nature of the extraneous information,” and “how” the “material was actually received.” Id. at 406. In other words, the Court may inquire into both the content of the communication and the context in which it was received: What words were spoken and how were they spoken? Inquiry into this area does not intrude into the subjective effect of the words upon the juror’s deliberations; it merely gives the Court the full picture of the “nature” of the extrinsic evidence. See United States v. Caporale, 806 F.2d 1487, 1503 (11th Cir. 1986) (finding no prejudice when juror testified that extrinsic comments were made “in a joking context.”). Thus, the Court finds that Dickson does not prohibit the Court from inquiring into whether any extrinsic statements were made in a joking or serious manner. This does not automatically render nonprejudicial any extrinsic comment that was made in a joking 63. 64. A-126 manner. As Elias points out, “[e]ven the words, ‘I don’t want to take a bribe and will not take one’ said with a wink and a smile might well be interpreted to mean exactly the opposite.” See Defendant's Brief at 12 (citing United States v. Iaconetti, 406 F.Supp. 554, 559 (E.D.N.Y. 1976)). Nevertheless, the Court finds that in the circum- stances of this case, there is no reasonable possibility that Greenlee’s and Burkhart’s misunderstanding of Scott’s comments could have affected their delibera- tions. Greenlee and Burkhart interpreted Scott to mean that Elias was joking when he said “what will it take to win your vote,” and it was never discussed again. Greenlee and Burkhart were not distracted or unable to concentrate on the evidence. Other jurors saw no evidence in the pre-deliberation conduct of Greenlee and Burkhart that they were frightened or distracted. For these reasons, the Court finds that Dickson does not mandate a new trial in this case. The Motion for New Trial will therefore be denied. ORDER In accordance with the Findings of Fact and Conclu- sions of Law set forth above, NOW THEREFORE IT IS HEREBY ORDERED, that the motion for new trial (docket no.206) is hereby DENIED. Dated this 25th day of January, 2000. /s/ B. Lynn Winmill B. LYNN WINMILL CHIEF JUDGE UNITED STATES DISTRICT COURT A-127 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES No. 00-30145 OF AMERICA, D.C. No. Plaintiff-Appellee, | CR-98-00070-BLW v. | ORDER ALLEN ELIAS, | (Filed Jan. 4, 2002) Defendants-Appellant. | | Before: WALLACE, HALL, and T.G. NELSON, Circuit Judges. The panel has voted to deny Appellant’s petition for rehearing. Judge Nelson voted to deny the petition for rehearing en banc and Judge Wallace and Judge Hall so recommend. The full court has been advised of tHe petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing and the petition for rehear- ing en banc are denied. A-128 42 USC Sec. 6926 TITLE 42 - THE PUBLIC HEALTH AND WELFARE CHAPTER 82 - SOLID WASTE DISPOSAL SUBCHAPTER III - HAZARDOUS WASTE MANAGEMENT Sec. 6926. Authorized State hazardous waste programs (a) Federal guidelines Not later th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1702%3A1. Public record. Not legal advice.