314 F.3d 1031 (9th Cir. 2002), 01-30057, U.S. v. Technic Services Inc.

Docket Nº:01-30057.
Citation:314 F.3d 1031
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. TECHNIC SERVICES, INC. and Rick Rushing, Defendants-Appellants.
Case Date:August 06, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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314 F.3d 1031 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

TECHNIC SERVICES, INC. and Rick Rushing, Defendants-Appellants.

No. 01-30057.

United States Court of Appeals, Ninth Circuit

Argued and Submitted August 6, 2002.

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Lawrence A. Pederson, Paul J. Nangle & Associates, Anchorage, AK, for the defendants-appellants.

James D. Oesterle, Special Assistant United States Attorney, Anchorage, AK, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief Judge, Presiding. D.C. No. CR-00-00023-A-HRH.

Before: B. FLETCHER, ALARC6N, and GRABER, Circuit Judges.

Opinion by Judge GRABER; Partial Dissent by Judge BETTY B. FLETCHER.

OPINION

GRABER, Circuit Judge.

Defendants Rick Rushing and Technic Services, Inc. (TSI), appeal their convictions for violating the Clean Air Act and the Clean Water Act, as well as the related sentences imposed. We reverse Rushing's conviction on Count 8 for lack of evidence, but otherwise affirm the convictions. With respect to the sentences, we vacate the enhancement to Rushing's sentence for abuse of trust, but in all other respects reject Defendants' arguments.

BACKGROUND

TSI is an Alaska corporation that performs asbestos-remediation services. At the relevant times, Rick Rushing served as its secretary/treasurer.

In 1995, TSI bid successfully on an asbestos-removal project at a pulp mill in Sitka, Alaska. The mill had closed in 1993 and was scheduled for demolition.

The project required asbestos removal in several buildings, but the trial focused mainly on activities in the powerhouse. The powerhouse was a large structure, containing several levels; drains in the basement floor led directly into Silver Bay, a navigable water of the United States. The powerhouse was in a state of disrepair. There were holes of all sizes in the walls and ceiling. TSI's primary contractual responsibility was to remove asbestos insulation on the pipes, boilers, and salvageable components at the mill.

TSI began work on the project in January 1996. After an inspection by the Occupational Safety and Health Administration and the Environmental Protection Agency (EPA), the project was stopped, or "red-tagged," temporarily in March 1996 because of noncompliance with regulatory standards. Soon thereafter the owner of the pulp mill hired Cle Wade to monitor

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TSI's compliance with those standards. TSI finished removing asbestos from the powerhouse in January 1997. Wade then certified the building as clean.

After the March 1996 inspection of the project revealed apparent violations of regulatory standards, the EPA continued to investigate TSI's operation of the remediation project. One of the EPA's concerns was that TSI was washing waste-water, through the drains in the floor of the powerhouse's basement, into Silver Bay. In response to the investigation, the president of TSI, Gary Hitchings, sent a letter to the EPA explaining how TSI was complying with regulatory requirements. The letter stated that it was submitted for settlement purposes, and it invoked the protections of Federal Rule of Evidence 408. Enclosed with the letter was a statement, signed by 13 employees, asserting that TSI was not washing wastewater into the powerhouse drains.

In 1998, before the powerhouse was demolished, the EPA contacted Wade and asked him to take another look at one of the pipes in the powerhouse from which TSI was to have removed asbestos. Wade found that asbestos remained on the pipe, a finding that the EPA's lab tests confirmed.

The Government then initiated this criminal prosecution against TSI and Rushing. A grand jury returned a nine-count indictment. Count 1 charged both Defendants with violations of "one or more of the practices required under Title 40, Code of Federal Regulations, Section 61.145 and Section 61.150." Title 42 U.S.C. § 7413(c)(1) criminalizes violations of Clean Air Act regulations. Count 2 charged both Defendants with discharging pollutants into Silver Bay, a navigable water, without having obtained a permit for the discharge, in violation of 33 U.S.C. § 1311.

Counts 3 through 9 applied only to Rushing. Count 3 charged him with corruptly attempting to "influence, obstruct, or impede" inspection and enforcement proceedings before the Department of Labor and the EPA by "altering, concealing and deactivating" personal air-monitoring devices worn by workers, or by causing others to do so, in violation of 18 U.S.C. § 1505. Counts 4 through 9 charged additional violations of 18 U.S.C. § 1505, stemming from allegations that Rushing solicited employees to sign the false statement that TSI was not washing wastewater into Silver Bay.

A jury convicted both Defendants on all counts. After a hearing, the district court sentenced Rushing to 57 months' incarceration, to be followed by three years of supervised release. The court fined him $520,000 for the Clean Water Act violation. The court imposed a $600,000 fine on TSI, including $520,000 for the Clean Water Act violation, and sentenced it to five years' probation.

This timely appeal ensued.

STANDARDS OF REVIEW

Claims of insufficient evidence are reviewed de novo. United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir. 2001). Viewing the evidence in the light most favorable to the prosecution, we must determine whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir. 2001) (quoting United States v. Shipsey, 190 F.3d 1081, 1088 (9th Cir. 1999)).

We also review de novo whether an indictment is multiplicitous. United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 1998).

The district court's formulation of jury instructions is reviewed for abuse

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of discretion. United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.), cert, denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000). Whether a jury instruction adequately covers a defendant's proffered defense is reviewed de novo. Id. Claims of legal error in instructions are reviewed de novo. United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir. 2001).

Likewise, we review for abuse of discretion the district court's decision to admit or exclude evidence. United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.), cert, denied, 531 U.S. 969, 121 S.Ct. 406, 148 L.Ed.2d 313 (2000).

With respect to sentencing, we review for abuse of discretion the district court's application of the sentencing guidelines to the facts. Antonakeas, 255 F.3d at 727. We review for clear error the district court's factual findings in the context of sentencing. United States v. Frega, 179 F.3d 793, 811 n. 22 (9th Cir. 1999). Because it involves a mixed question of fact and law, we review de novo the district court's application of the abuse-of-trust enhancement. United States v. Brickey, 289 F.3d 1144, 1153 (9th Cir. 2002).

DISCUSSION

Defendants bring numerous challenges to their convictions and sentences. We will organize our discussion of the convictions by count and then will turn to the sentencing issues.

A. Count 1

Count 1 of the indictment charged:

On or about January 3, 1996, and continuing to on or about October 30, 1996, at Sitka, Alaska, within the District of Alaska, defendants TECHNIC SERVICES, INC. and RICK RUSHING, who were owners and/or operators at the time of the demolition project at the Alaska Pulp Corporation facility located in Sitka, Alaska, knowingly violated, and caused to be violated, work practice standards, by causing more than 160 square feet and/or 280 linear feet of RACM1] to be stripped, removed, dislodged, cut, drilled, and disturbed without complying with one or more of the practices required under Title 40, Code of Federal Regulations, Section 61.145 and Section 61.150.

All in violation of Title 42, United States Code, Sections 7412(f)(4) and (h), and 7413(c)(1) and Title 18 United States Code, Section 2.

Paragraph 9 of the indictment specified precisely which work practices contained in 40 C.F.R. §§ 61.145 and 61.150 allegedly were violated and by what activities.

Title 42 U.S.C. § 7412 governs the establishment and enforcement of emission standards for pollutants. Section (f)(4) prohibits the release of air pollutants in violation of any applicable emission standard. 42 U.S.C. § 7412(f)(4). Section (h)(1) authorizes the Administrator of the EPA to promulgate "a design, equipment, work practice, or operational standard, or combination thereof," in lieu of an emission standard, if the Administrator concludes that it is unworkable to promulgate and enforce an emission standard for a particular pollutant. 42 U.S.C. § 7412(h)(1). For asbestos, the Administrator opted to promulgate work practice standards. 40 C.F.R, pt. 61, subpt. M. Title 40 C.F.R. § 61.145 provides the work practice standards for handling asbestos during "demolition and renovation" activities. Title 40 C.F.R. § 61.150 provides the work practice standards for disposal of asbestos waste materials.

Title 42 U.S.C. § 7413 outlines the various civil and criminal sanctions for violations

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of an emission standard or related regulations. Pertinent to this case, 42 U.S.C. § 7413(c)(1) provides:

Any person who knowingly violates any requirement or prohibition of . . . section 7412 of this title, . . . including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections or subchapters . . . shall, upon conviction, be punished by a fine pursuant to Title 18, or by imprisonment for not to exceed 5 years, or both.

1. Count 1 as "duplicitous"

Defendants argue on appeal that the district...

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