210 F.3d 390 (10th Cir. 2000), 98-7095, U.S. v. Hines

Docket Nº:98-7095, 98-7097.
Citation:210 F.3d 390
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl Eugene HINES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel Robert MARTIN, Defendant-Appellant.
Case Date:April 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 390

210 F.3d 390 (10th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carl Eugene HINES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel Robert MARTIN, Defendant-Appellant.

Nos. 98-7095, 98-7097.

United States Court of Appeals, Tenth Circuit

April 5, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

2000 CJ C.A.R. 1797

Before BRORBY, PORFILIO, and LUCERO, Circuit Judges.

ORDER AND JUDGMENT [*]

LUCERO.

These appeals arise from the same trial in which both appellants were jointly accused and convicted. 1 We combine them here for ease of disposition. We must determine whether appellants' convictions for violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992, should be overturned because the government failed to prove that they "knowingly" committed the environmental crimes. We must also decide whether the district court erred in denying appellant Carl Eugene Hines's motion to sever his RCRA counts from his drug conspiracy counts, and in failing to declare a mistrial for allegedly prejudicial remarks by several witnesses and by his co-defendant's counsel, and whether, in the case of appellant Daniel Robert Martin, the district court improperly admitted firearm and drug evidence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Hines owned a business in Marshall County, Oklahoma, named H & J Auto. Danny Jones, the Marshall County emergency manager director, noticed numerous fifty-five gallon drums standing outside H & J Auto and informed Hines that the barrels were a "danger," and that Hines had "to get rid of them properly." (R. at 66.) Jones later filed a complaint with the Oklahoma Department of Environmental Quality ("ODEQ") about the barrels, stating they were leaking and the owner would not retrieve them. ODEQ investigator Kelly Davis went to H & J on February 4, 1997, to inspect and discovered approximately 34 barrels behind the H & J building. The barrels were old and rusted. Some were leaking; some were bulging, indicative of hazardous waste; some contained methylethyl ketone labels; and some emitted a strong paint-thinner-like odor. Hines told Davis that another business, Bullard Oil, had left the barrels there and that he had no knowledge of how or why the barrels were placed in his salvage yard. Davis told Hines the barrels had characteristics of hazardous waste and that he should stay away from them pending further investigation.

The ODEQ investigated and determined Bullard Oil had not placed the barrels at H & J Auto. It then notified Hines that he was the party responsible for the clean-up. ODEQ inspector Johnson returned to H & J on February 14, 1997, to test the material inside the barrels, but they had disappeared. Hines told Johnson that Bullard Oil had removed them. Later, when recounting this story to a friend, Hines laughed and said, "You should have seen the look on her face." (R. at 73-74.)

Shortly after ODEQ investigator Davis's visit to H & J Auto, Hines instructed his friend Martin, and two other associates, Victor Lucas and Billy Jack Orange, to remove the barrels. Hines assisted Lucas and Orange with loading the barrels onto a truck trailer. Martin told Lucas and Orange to first attempt to take the barrels to the house of one Ronnie Hickman, but if Hickman would not take the barrels, to take them to Martin's home and place them in his carport. Hickman took only a few of the barrels, but would not allow Lucas and Orange to set them on the ground, stating he was afraid the barrels would ruin his water supply. Lucas testified he thought Hickman's concern was "extremely realistic," because the barrels were "old and rotten and rusted out, had holes in them ... [and] were going to leak." (R. at 1618.)

Lucas and Orange unloaded the barrels in Martin's carport late that night. Martin then paid a neighbor $80 to haul some of the barrels from his carport and dump them in a vacant lot near Martin's home. Hines told his associates to say nothing about moving the barrels and instructed them to state, if asked, that they had gone away for the weekend and the barrels were gone when they came back. (Id. at 1619-20.)

When the ODEQ learned the barrels had disappeared from Hines's salvage yard at H & J Auto, investigators from the Environmental Protection Agency ("EPA") and the Federal Bureau of Investigation ("FBI") launched an investigation into their disappearance. Eventually investigators discovered the barrels in Martin's carport and neighboring lot. The FBI then informed the local county sheriff, Decco Baxter, of the investigation. The materials in the barrels were tested by ODEQ and found to contain hazardous waste, as defined by regulations promulgated pursuant to RCRA.

In addition to participating in the foregoing activities, Hines was the leader of an extensive conspiracy to manufacture and distribute methamphetamine. All of the individuals involved in moving the barrels containing hazardous waste from Hine's salvage yard were also all involved with Hines in the drug conspiracy. The county sheriff, Decco Baxter, who was a methamphetamine addict, also participated in the drug conspiracy. In exchange for methamphetamine and money from Hines, Baxter agreed to protect Hines from local law enforcement. When the FBI notified Baxter of their investigation into the missing barrels, Baxter, Hines and Martin concocted a false story in an attempt to divert the FBI's suspicion away from Hines.

Baxter filed a false report with the FBI two days after the FBI notified him of its investigation of the barrels. The report claimed Martin had called and asked to meet with Baxter alone. Baxter reported that, at that meeting, Martin confessed to stealing the barrels from Hines. Baxter also indicated Martin had reported looking into Hines's house and seeing what appeared to be methamphetamine in a clear plastic bag and a set of scales. Baxter claimed in the report to have then gone to Hines's house, obtained Hines's consent to search the premises, and discovered only a bag of cooking flour and a calculator.

The FBI did not deem Baxter's report to be credible and became suspicious of his involvement. Eventually, Baxter was arrested and confessed his report was a fabrication by Hines and Martin for the purpose of exculpating Hines from suspicion of criminal activity with respect to both hazardous waste violations and drug conspiracy. Hines and Martin were also charged. Martin was released on bail, fled, and was ultimately captured in Tennessee while in possession of drugs and firearms. Baxter and Orange pled guilty and testified for the government at Hines and Martin's trial.

Hines was convicted of illegally transporting hazardous waste to an unpermitted facility, in violation of 42 U.S.C. § 6928(d)(1) and 18 U.S.C. § 2; illegally transporting hazardous waste without a manifest, in violation of 42 U.S.C. § 6928(d)(5) and 18 U.S.C. § 2; and conspiring to transport hazardous waste, in violation of 18 U.S.C. § 371. He was...

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