67 F.3d 309 (9th Cir. 1995), 93-50610, U.S. v. Asrar
| Citation | 67 F.3d 309 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Rafat ASRAR and Tariq Ahmad, Defendants-Appellants. |
| Case Date | October 03, 1995 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
Page 309
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Sept. 11, 1995.
Appeal from the United States District Court for the Central District of California, No. CR-92-00201-RSWL; Ronald S.W. Lew, District Judge, Presiding.
C.D.Cal.
AFFIRMED IN PART, REVERSED IN PART.
Before: BROWNING, PREGERSON, Circuit Judges, and TANNER, [*] District Judge.
MEMORANDUM [**]
Rafat Asrar appeals his conviction after a jury trial, and sentence under the Sentencing Guidelines for conspiracy (18 U.S.C. § 371), arson (18 U.S.C. § 844(i)), mail fraud (18 U.S.C. § 1341, 2), and perjury (18 U.S.C. § 1623). Tariq Ahmad appeals his jury conviction and sentence for the same offenses, along with proceeds of criminal activity (18 U.S.C. § 1957), criminal forfeiture (18 U.S.C. § 982), and transportation and export of hazardous waste and related offenses (42 U.S.C. § 6928). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part and reverse in part.
I. JURY INSTRUCTIONS ON AHMAD'S HAZARDOUS WASTE COUNTS
Ahmad contends that the jury instructions on the hazardous waste counts were erroneous because they misstated the statutory definition of hazardous waste. We review de novo whether a jury instruction misstates the elements of a statutory crime. United States v. Blinder, 10 F.3d 1468, 1477 (9th Cir.1993).
Ahmad was convicted of four counts of illegally transporting and exporting hazardous waste in violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. Under the RCRA, the definition of "hazardous waste" includes "solid waste" that may pose a substantial hazard when improperly disposed of. 42 U.S.C. § 6903(5)(b). The regulations promulgated under the RCRA define solid waste as "discarded material" that is "abandoned." 40 C.F.R. § 261.2(a)(2)(i). The regulations state further that material is "abandoned" if it is "being disposed of" or if it is "being ... stored ... before or in lieu of ... being disposed of." 40 C.F.R. §§ 261.2(b)(1) and (3).
Jury instruction number fifty defined "hazardous waste" as including "abandoned material." "Abandoned material" was then defined as "any material which is disposed of or intended to be disposed of...." Attachment to Ahmad's Supplemental Brief.
Ahmad contends that hazardous material only becomes "waste" if it is actually disposed of. Ahmad asserts that what he intended to do with this material is irrelevant.
Under Ahmad's definition, the material that he shipped to Pakistan, although hazardous, would only be transformed into "hazardous waste" if he physically disposed of it. Ahmad therefore claims that jury instruction number fifty, which defined hazardous waste as including hazardous material "intended to be disposed of," was erroneous.
Counter to what Asrar argues, the intent of a person possessing hazardous material certainly is relevant to whether that material is waste under the RCRA. Neither the statute nor the regulations require that the material actually be disposed of before it becomes "hazardous waste." The trier of fact must determine whether the possessor of the hazardous material is in the process of disposing of the material or is storing the material in preparation for or in lieu of disposing of it. The intended use of the material thus may determine whether it is waste. See American Mining Congress v. United States EPA, 824 F.2d 1177, 1186 (D.C.Cir.1987) (a material that is "destined for beneficial reuse or recycling in a continuous process by the generating industry itself" is not discarded and thus is not waste.)
In sum, if Ahmad intended to dispose of the material then it was either "being disposed of" or "being stored before or in lieu of being disposed of." The chemicals thus met the statutory and regulatory definition of hazardous waste. The jury instructions were correct in defining hazardous waste as "any material which is disposed of or intended to be disposed of...."
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT AHMAD'S CONVICTIONS FOR ILLEGALLY TRANSPORTING AND EXPORTING HAZARDOUS WASTE
Asrar argues that there was insufficient evidence to support his convictions for the transport and export of hazardous waste because he intended to use, not discard, the hazardous material.
We will uphold a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
As discussed above, under the RCRA and regulations "hazardous waste" includes hazardous material that is being disposed of or is being stored before or in lieu of being disposed of.
There was ample evidence presented in this case from which a reasonable juror could conclude that Ahmad intended to dispose of, not re-use, the chemicals. For example, Ahmad made an insurance claim for costs of disposing of the chemicals, including shipment to Pakistan. Govt.ER at 1946-48. There was testimony that Ahmad had stated that he intended to dump the chemicals down mine shafts owned by his family in Pakistan. Govt.ER at 1542. In fact, the chemicals were shipped to Pakistan, Govt.ER at 1525, but the Pakistani government refused to allow them into the country. Govt.ER at 1557-58, 1561-62. Evidence was also presented that, at the time Ahmad shipped the chemicals to Pakistan, his alleged chemical lab in Karachi consisted of only a shell of a building with a sign posted outside. Govt.ER at 1389-94, 1567-68.
Although Ahmad presented evidence that he intended to re-use the chemicals at his laboratory in Pakistan, the jury evidently did not believe this claim, 1 and instead chose to believe the government's theory, which was clearly supported by the evidence. There was sufficient evidence to support Ahmad's convictions for illegally transporting and exporting hazardous waste in violation of 42 U.S.C. § 6928.
III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT AHMAD'S CONVICTION FOR KNOWINGLY TRANSPORTING HAZARDOUS WASTE TO AN UNPERMITTED LOCATION
Ahmad was charged with and convicted of knowingly transporting hazardous waste from the premises of his laboratory, Shankman Laboratories, to Castelazo & Associates ("Castelazo"), a facility that does not have a permit, in violation of 42 U.S.C. § 6928(d)(1). Ahmad argues that the evidence presented was insufficient to prove Ahmad's knowledge that Castelazo, a freight forwarding company, did not have permit.
Ahmad was familiar with the chemical business. He had used a hazardous waste manifest in the past for transport of waste to permitted facilities. Govt.ER at 1512-15. Ahmad did not provide the required manifest to the driver who picked up the chemicals and transported them to Castelazo. Govt.ER at 1145-46. In fact, Ahmad did not tell the driver who picked up the chemicals that they were hazardous and did not provide the driver with any documentation of what the shipment contained. Govt.ER at 1145-46, 1193.
The shipment was packed hurriedly in flimsy containers that were unsafe for transporting hazardous materials. Govt.ER at 1141, 1191-92. Moreover, there was testimony that Ahmad grossly misrepresented to Castelazo the amount and type of hazardous material that he wanted them to arrange to have shipped to Pakistan. Govt.ER at 1138-41.
Based on this evidence, a rational juror could conclude that Ahmad knew that Castelazo did not have the required RCRA permit. There was sufficient evidence to support Ahmad's conviction of violating 42 U.S.C. § 6928(d)(1).
IV. LIMITATION ON AHMAD'S CROSS-EXAMINATION OF JAVAID KHAN
Ahmad argues that the district court restricted defense counsel's cross-examination of witness Javaid Khan in violation of the confrontation clause.
We review a district court's decision to limit cross-examination of a witness for abuse of discretion. United States v. Dischner, 974 F.2d 1502, 1514 n. 12 (9th Cir.1992), cert. denied, 113 S.Ct. 1290 (1993). Whether limitations on cross-examination are so severe as to constitute a violation of the confrontation clause is a legal question subject to de novo review. United States v. Vargas, 933 F.2d 701, 704 (9th Cir.1991). Because a district court has great discretion in limiting cross-examination, "a reviewing court normally will hold that the district court violated the confrontation clause only if it concludes that the district court denied the jury 'sufficient information to appraise the biases and motivations of the witness.' " United States v. Jenkins, 884 F.2d 433, 436 (9th Cir.), cert. denied, 493 U.S. 1005 (1989) (quoting United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir.1984), cert. denied, 474 U.S. 822 (1985)).
Ahmad argues that the district court impermissibly restricted his ability to cross-examine Javaid Khan on the details of a meeting at Shankman Labs where Ahmad showed Khan how to start a fire. Khan testified on direct examination as follows.
On November 16, 1989, Ahmad pulled aside Khan and Ahmad's brother, Mobashir, at the laboratory. Ahmad filled a beaker with a solvent and heated the solvent on a hot plate for about one minute. Khan did not know what solvent was used during the demonstration. When the solvent began to bubble and the solvent caught fire inside the beaker, Ahmad knocked the beaker to the floor, and flames erupted on the floor. Ahmad stamped the fire out with his feet. Ahmad then stated that "all you need to do is to start a small fire" and the fire company "will take care of the rest." Govt.ER at 368.
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