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U.S. v. WASSERSON

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 ...


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