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U.S. v. WASSERSON

United States District Court, E.D. Pennsylvania


January 12, 2004.

UNITED STATES OF AMERICA
v.
GARY WASSERSON

The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge

MEMORANDUM AND ORDER

On November 26, 2003, following a jury trial, Defendant Gary Wasserson was convicted of three violations of the Resource Conservation and Recovery Act ("RCRA"): transporting hazardous waste without a manifest in violation of 42 U.S.C. § 6928(d)(5) (Count I); transporting hazardous waste to an unpermitted facility in violation of 42 U.S.C. § 6928(d)(1) (Count II); and disposing of hazardous waste without a permit in violation of 42 U.S.C. § 6928(d)(2)(A) (Count III). Presently before this Court are Defendant's motions for a new trial on Counts I and n of the Indictment pursuant to Federal Rule of Criminal Procedure 33 and for judgment of acquittal on Counts I, n, and III pursuant to Federal Rule of Criminal Procedure 29(c). For the following reasons, this Court denies Defendant's motion for judgment of acquittal on Counts I and n but grants Defendant's motion for a new trial on Counts I and II and Defendant's motion for judgment of acquittal on Count III.

I. BACKGROUND

  Defendant Gary Wasserson was the President and Chief Executive Officer of Sterling Supply Company ("SSC"), which supplied dry cleaning products to dry cleaners in Philadelphia. On February 13, 2003, Mr. Wasserson was indicted for illegally disposing of certain chemicals and other hazardous waste in Philadelphia and York, Pennsylvania on September 7 and September, 1999. At trial, the Page 2 Government introduced evidence that Mr. Wasserson contracted with Charles Davis, a trash hauler listed in the phonebook, for the disposal of hazardous and non-hazardous waste that was located at the SSC warehouse. Subsequently, Charles Davis subcontracted with another trash hauler, Carlos Rivera, who transported the waste materials from the SSC warehouse and disposed of them at the Girard Point Transfer Station. The waste was thereafter transferred to Modern Landfill in York, Pennsylvania. After a jury trial lasting three days, Mr. Wasserson was found guilty on all three counts in the Indictment.

 II. LEGAL STANDARDS

  Defendant moves for a new trial on Counts I and n pursuant to Federal Rule of Criminal Procedure 33 due to improper jury instructions. As the Supreme Court explained in Neder v. United States, 527 U.S. 1 (1999), failure to properly instruct a jury on an element of an offense is subject to harmless error analysis. Under Neder, an instruction that omits an element of the offense is harmless if "it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Id. at 19 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Therefore, "[i]f, at the end of the examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . [the court] should not find the error harmless." Id.

  Additionally, Defendant moves for judgment of acquittal on Counts I, II and III pursuant to Federal Rule of Criminal Procedure 29(c) on the grounds of legally insufficient evidence. When deciding whether a jury verdict rests on legally sufficient evidence, a court will apply a "particularly deferential" standard of review. See United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). A court must neither weigh the evidence nor determine the credibility of witnesses; rather, a court must view all of the evidence in the light most favorable to the verdict winner. Id. The jury verdict will be sustained if "any rational trier of fact could have found the essential elements of the crime beyond a Page 3 reasonable doubt." Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)). Thus, a defendant asserting a claim of insufficient evidence faces "a very heavy burden." United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation omitted).

 III. DISCUSSION

  A. Motion for a New Trial

  Defendant has moved for a new trial pursuant to Federal Rule of Criminal Procedure 33 because the jury instructions improperly omitted the mental state element of "knowingly" from the charge on Counts I and II.*fn1 Before trial, this Court requested both parties to submit proposed jury instructions for review. The Government submitted both a hard copy and a disk copy of its proposed jury instructions. On the morning of the final day of trial, the Court reviewed the hard copy of the Government's proposed instructions with both parties and agreed upon a few revisions. Utilizing the disk provided by the Government, the Court proceeded to make the agreed-upon revisions and to print out a final version to be read to the jury. Unbeknownst to this Court and presumably either of the parties, the disk submitted by the Government was not faithful to the hard copy provided. In Count I, the hard copy version correctly instructed the jury that they must find "[t]hat the defendant knew the waste materials were transported without a manifest" while the disk version merely stated that the jury must find "[t]hat the waste materials were transported without a manifest." Similarly, in Count II, the hard copy correctly stated that the jury must find "[t]hat the waste materials were transported to a facility that the defendant knew did not have a RCRA permit to treat, store, or dispose of the wastes" Page 4 whereas the disk version merely stated that the jury must find "[t]hat the waste materials were transported to a facility that did not have a RCRA permit to treat, store, or dispose of the wastes."

  The Government does not contest that a new trial is warranted in light of this error. (Gov't's Resp. to Mot. for New Trial and J. of Acquittal at 7-8.) Both parties agreed that knowledge was an element of the offense that the Court was required to instruct. See United States v. Speach, 968 F.2d 795, 797 (9th Cir. 1992). In fact, Defendant's knowledge that the hazardous waste was transported without a manifest and his knowledge that it was delivered to an unpermitted facility were the only contested issues at trial; the omission of the knowledge element deprived Defendant of a jury determination of the most critical element of the charges against him. Because this Court cannot conclude that the jury verdict would have been the same absent this error, I grant Defendant's motion for a new trial of Counts I and II. See Neder, 527 U.S. at 19.

  B. Motion for Judgment of Acquittal

  Defendant also moves for judgment of acquittal on Counts I, II and III. As Count III requires a more detailed analysis than Counts I and n, the Court will address these issues in reverse order.

  1. Count III

  Count in of the Indictment charges that Defendant "knowingly caused and aided and abetted the removal of hazardous waste from SSC's Philadelphia warehouse and the disposal of the hazardous waste without a permit" in violation of 42 U.S.C. § 6928(d)(2)(A). Section 6928(d)(2)(A) subjects to criminal liability 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 subchapter or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C.A. § 1411 et seq.] Page 5

 42 U.S.C. § 6928(d)(2)(A) (2003).

  Defendant makes two arguments in support of his motion for judgment of acquittal on Count III. First, Defendant argues that he is entitled to judgment of acquittal because subsection (d)(2)(A) applies only to individuals who carry out the disposal of hazardous waste, not those who merely generate that waste. Alternatively, Defendant argues that he is entitled to judgment of acquittal because the evidence presented at trial was insufficient to establish that he engaged in any activity that required him or SSC to obtain a permit. The Government responds that when Mr. Wasserson caused the disposal of hazardous waste at an unpermitted facility, he "bec[ame] the operator of the hazardous waste facility because the hazardous waste disposal facility did not exist until the act of disposal occurred." (Gov't's Supplemental Trial Mem. at 3.) Thus, the argument proceeds, Mr. Wasserson became the person who was required to obtain a permit and violated § 6928(d)(2)(A) by disposing of hazardous materials without doing so.

  a. Application of 42 U.S.C. § 6928(d)(2)(A) to Generator of Hazardous Waste

  The first question presented is whether § 6928(d)(2)(A) applies to an individual who generates hazardous waste but does not carry out its disposal. After analysis of the plain language and structure of the statute, this Court holds that one who merely generates but does not carry out the disposal of hazardous waste cannot be convicted under subsection (d)(2)(A).

  Section 6928(d) contains seven subsections penalizing various activities. Two of those subsections, (d)(1) and (d)(2)(A), prohibit the handling of hazardous waste without a permit. Specifically, subsection (d)(1) prohibits any person from transporting or causing to be transported any hazardous waste to a facility lacking a permit, and subsection (d)(2)(A) prohibits any person from treating, storing, or disposing of hazardous waste without a permit. 42 U.S.C. § 6928(d) (2003). While Page 6 these two activities can be performed by the same actor, the plain language of these provisions reveals that Congress intended to criminalize two separate types of conduct: (1) the act of directing hazardous waste to an unpermitted facility; and (2) the act of handling and disposing of hazardous waste that occurs once the waste arrives at the unpermitted facility. See United States v. Fiorillo, 186 F.3d 1136, 1147 (9th Cir. 1999) (en banc). Thus, the plain language of the statute suggests that one who merely generates hazardous waste and provides for its transportation to an unpermitted facility but does not carry out its eventual disposal may be convicted under subsection (d)(1), but not under subsection

  Although there are no cases in this Circuit directly addressing the question presented here, dicta in a persuasive Ninth Circuit opinion supports the interpretation expressed above. In United States v. Fiorillo, the Ninth Circuit considered the obverse question, that is, whether recipients of hazardous waste could be convicted of "knowingly transport[ing] or caus[ing] to be transported any hazardous waste" in violation of § 6928(d)(1). Id., at 1 146. In holding that a mere recipient of hazardous waste could not be found guilty under this subsection, the Ninth Circuit engaged in a lengthy discussion of the relationship between subsections (d)(1) and (d)(2). Significantly, the Ninth Circuit stated:

The principal distinction is that subsection (d)(1) describes activities connected to the creation and shipping of hazardous waste, while subsection (d)(2) covers only the receipt and processing of the waste. Stated another way, subsection (d)(1) pertains to the direction of hazardous waste to a facility that lacks a permit, whereas subsection (d)(2) addresses activities occurring at the unpermitted facility.
Id. at 1 147. This distinction, evident in the language of the statute and clearly articulated by the Ninth Circuit, evinces Congress' intent that one who merely generates but does not carry out the disposal of hazardous waste does not incur liability under subsection (d)(2)(A).

  A comparison of the specific language utilized in these two subsections provides further Page 7 support for this Court's conclusion. Under subsection (d)(1), an individual is liable if he "transports or causes to be transported" any hazardous waste to an unpermitted facility. 42 U.S.C. § 6298(d)(1) (emphasis added). By employing the phrase "or causes to be transported," Congress extended liability to individuals who do not actually carry out the transportation themselves. In contrast, subsection (d)(2)(A) only criminalizes one who "treats, stores, or disposes of any hazardous waste without a permit. 42 U.S.C. § 6298(d)(2)(A). As the statute defines it, disposal means "the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water." 42 U.S.C. § 6903(3). If Congress had intended to extend criminal liability under subsection (d)(2)(A) to individuals who merely caused the disposal of hazardous waste, they would have employed the same language used in subsection (d)(1). See Fiorillo, 186 F.3d at 1148 (noting that "Congress does not use different language in different provisions to accomplish the same result").

  Finally, the fact that the Government's proffered interpretation would result in duplicate coverage for the same conduct provides added structural support for this Court's interpretation of RCRA. Count II charges Defendant with violation of § 6928(d)(1), which imposes criminal liability on any person who knowingly transports or causes to be transported any hazardous waste to a facility which does not have a permit. If a generator who did not actually dispose of the materials himself were able to be convicted under both subsection (d)(2)(A) and (d)(1), then he would be twice convicted for the same conduct, that is, knowingly causing hazardous materials to be disposed of at an unpermitted facility. See Fiorillo, 186 F.3d at 1148. Absent clear statutory language dictating such a result, this Court will not attribute such an intent to Congress.

  b. Insufficient Evidence

  Alternatively, Defendant contends that even if (d)(2)(A) were applicable to him, he is Page 8 nonetheless entitled to judgment of acquittal because the Government did not produce any evidence that SSC or Mr. Wasserson performed any activity requiring a permit. This Court agrees.

  Section 6925(a) requires each person "owning or operating an existing facility or planning to construct a new facility for the treatment, storage, or disposal of hazardous waste identified or listed under this subchapter to have a permit." 42 U.S.C. § 6925(a). Agent Myron Suchodolski of the Pennsylvania Department of Environmental Protection testified that his search of Department records revealed that neither Gary Wasserson nor SSC ever held a § 6925 permit. (R. 98-99.) On cross-examination, however, Agent Suchodolski admitted that he was unaware of whether SSC or Gary Wasserson ever performed activities that would subject them to the permitting requirement under § 6925(a). (Id. at 102.) In an effort to substantiate the jury's verdict on Count III, the Government cites case law standing for the proposition that persons other than the entity required to obtain a permit may be charged with illegal disposal of hazardous waste under § 6928(d)(2)(A) "when they are factually responsible for such conduct," (Gov't's Supplemental Trial Mem. at 1.) While the Government's reading of the proffered case law is accurate, the phrase "when they are factually responsible for such conduct" reveals its inapplicability to this case. In all of the cases the Government cites, either the generator or transporter himself per formed the disposal of the hazardous waste. See United States v. Kelly, 167 F.3d 1176 (7th Cir. 1999) (Defendant directed his employees to dump hazardous waste at auto salvage yard); United States v. Sellers, 926 F.2d 410 (5th Cir. 1991) (Defendant dumped drums of hazardous paint waste on embankment of creek in Mississippi); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) (Director of Public Works Department instructed employees to bury drums of paint at city's sewage treatment plant); United States v. Johnson & Towers, 741 F.2d 662 (3d Cir. 1984) (employees pumped waste chemicals into trench on plant's property which then flowed into nearby creek). In this case, the Government failed to present any evidence that Gary Wasserson or SSC Page 9 performed any disposal activities that would require either of them to procure a permit under § 6925(a). Rather, the Government's evidence revealed that Charles Davis and his subcontractor Carlos Rivera transported the hazardous materials and disposed of them at Girard Point transfer station. Therefore, there was insufficient evidence to support a jury finding that Mr. Wasserson violated subsection

  In summary, the text and structure of the statute leads this Court to conclude that Congress did not intend subsection (d)(2)(A) to apply to persons who did no more than generate and pro vide for the transportation of hazardous waste. Furthermore, even if Mr. Wasserson could be held liable under this provision, the Government failed to present sufficient evidence to justify a jury verdict in its favor.

  2. Counts I and II

  Defendant also moves for judgment of acquittal on Counts I and n because the evidence of Defendant's knowledge that the facility lacked a permit (Count II) and that he knew the waste was transported without a manifest (Count I) was insufficient as a matter of law. In essence, this Court ruled on this issue at the conclusion of Defendant's case by granting the Government's request for a willful blindness instruction. See United States v. Stewart, 185 F.3d 112, 126(3d Cir. 1999). In allowing the instruction, the Court found that there were sufficient grounds for the jury to conclude that the mental state requirement had been satisfied based upon the fact that "the defendant himself was subjectively aware of the high probability of the fact in question" and yet chose to deliberately ignore the obvious. United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985); see also United States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000).

  Ample evidence was presented at trial to support this Court's conclusion. First, despite knowledge of the regulatory requirements for disposing of hazardous waste, Mr. Wasserson utilized a trash hauler found in the yellow pages and never asked for any additional information regarding the Page 10 hauler's experience or ability to handle hazardous waste. Second, despite knowledge that a manifest was required, Mr. Wasserson never inquired whether his employee Charles Hughes prepared a manifest for the hazardous waste shipment. Finally, Mr. Wasserson personally contacted the waste hauler's office and dictated the terms of the contract, including language which purportedly shifted all legal responsibility for the hazardous waste shipment to the waste hauler. On the basis of this evidence, this Court finds that a reasonable jury could conclude that Mr. Wasserson knew that the waste was transported without a manifest and knew that it was disposed of at an unpermitted facility. Thus, this Court denies Defendant's motion for acquittal on Counts I and n.

 IV. CONCLUSION

  For the foregoing reasons, the Court grants Defendant's motion for a new trial on Counts I and II and Defendant's motion for judgment of acquittal on Count III and denies Defendant's motion for judgment of acquittal on Counts I and n. Page 11

  ORDER


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