738 F.3d 681 (5th Cir. 2013), 12-31234, United States v. Tuma

Docket Nº:12-31234.
Citation:738 F.3d 681
Opinion Judge:CARL E. STEWART, Chief Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Emerson TUMA, Defendant-Appellant.
Attorney:Carol Mignonne Griffing, Assistant U.S. Attorney, U.S. Attorney's Office, Shreveport, LA, Leslie Elizabeth Lehnert, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee. Amy M. Adelson, Esq., Dershowitz, Eiger & Adelson, P.C., New York, NY, James Edgar Boren, Esq., Baton Rouge, LA, ...
Judge Panel:Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
Case Date:December 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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738 F.3d 681 (5th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Emerson TUMA, Defendant-Appellant.

No. 12-31234.

United States Court of Appeals, Fifth Circuit.

December 23, 2013

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Carol Mignonne Griffing, Assistant U.S. Attorney, U.S. Attorney's Office, Shreveport, LA, Leslie Elizabeth Lehnert, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.

Amy M. Adelson, Esq., Dershowitz, Eiger & Adelson, P.C., New York, NY, James Edgar Boren, Esq., Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

CARL E. STEWART, Chief Judge:

This is an appeal by Defendant-Appellant John Emerson Tuma (" Tuma" ) who was convicted of various crimes related to his involvement in disposing of untreated wastewater. Tuma appeals both his convictions and sentence. For the reasons provided herein, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

The Clean Water Act (" CWA" ) prohibits the discharge of pollutants 1 into the waters of the United States without a permit or in violation of a permit. 33 U.S.C. § 1311(a). In Louisiana, the Environmental Protection Agency (" EPA" ) has delegated the authority to issue and implement permits for these discharges to the State. The Louisiana Department of Environmental Quality (" LDEQ" ) requires entities discharging from wastewater treatment plants to obtain Louisiana Pollutant Discharge Elimination System (" LPDES" ) permits. The CWA also regulates the discharge of pollutants into sewer systems that discharge directly into sewage treatment plants operated by municipal governments known as publicly owned treatment works (" POTWs" ). POTWs must establish pretreatment programs setting requirements for industrial users discharging pollutants into the POTWs. 33 U.S.C. § 1342(b)(8); 40 C.F.R. §§ 403.1-403.20. Any person who knowingly discharges pollutants from a point source 2 into the waters of the United States or to a POTW in violation of the conditions of these permits or without a permit is subject to criminal sanctions. 33 U.S.C. § 1319(c)(2).

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Tuma owned Arkla Disposal Services, Inc. (" Arkla" ), a wastewater treatment facility in Shreveport, LA. At Arkla, the wastewater was supposed to pass through filtration systems and various tanks as part of its processing and purification before discharge. A series of these treatment and storage tanks were on Arkla's property and Arkla leased four off-site storage tanks. In September 2006, Tuma sold Arkla to CCS Midstream Services (" CCS" ). According to his employees, Tuma retained control of Arkla.

Arkla initially accepted only industrial waste, but later obtained authorization to accept and discharge exploration and production waste (" E & P" ). Louisiana authorized the plant to discharge to Shreveport's POTW from June 13, 2006 to the end of 2006 and again from July 1, 2007 until March 2, 2008. Arkla's permit set limits on the levels of pH, oil, grease, biochemical oxygen demand, and total suspended solids. It permitted daily discharge only from Tank B-1. The discharge had to be by batch, meaning that a sample would be taken of the water in Tank B-1 in the morning and no additional water could be added after the sample had been taken. The sample would be given to the Pretreatment Office which would approve or disapprove of the batch. Only an approved batch could then be discharged. From December 7, 2006 through June 30, 2007, an LDEQ compliance order authorized Arkla to discharge to the Red River subject to interim effluent discharge limitations contained in the compliance order.

Tank B-1 was filled with clean well or city water, sometimes mixed with unprocessed water, which was sampled, approved, and discharged to the POTW. The facility then discharged from other tanks illegally all day and night without any testing, sampling, or city approval to the POTW and the Red River. The key employees involved in these acts were Wayne Mallet, Todd Cage, and Tuma's son Cody Tuma (" Cody" ). These employees followed Tuma's instructions to illegally discharge the water, watch for regulators, bypass monitoring systems, and check the river for pollution. According to the employees' accounts, Tuma ran a sham plant.

In October 2007, Cage and another employee reported allegations of the misconduct to CCS, who opened an internal investigation. CCS determined that when Arkla began accepting E & P waste the volume of wastewater increased significantly and Tuma incentivized this large supply. Arkla had discharged untreated water to keep up with this supply. CCS fired both Tuma and Cody and reported its findings to the EPA, who opened its own investigation.

On February 24, 2011, Tuma was indicted with Cody, and charged with one count of conspiracy in violation of 18 U.S.C. § 371, one count of discharging untreated wastewater without complying with the requirements of the permit issued to Arkla in violation of 33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, two counts of discharging without a permit from an outfall at the plant to the Red River in violation of 33 U.S.C. § 1311(a), 1319(c)(2)(A) and 18 U.S.C. § 2, and one count of obstruction of an EPA investigation in violation of 18 U.S.C. §§ 2 and 1505. Cody entered a guilty plea to one count of a misdemeanor violation for discharging without a permit, and he testified against his father at trial. At trial, Cody, Cage, Mallet, plant employees, city inspectors, contractors, and an EPA engineer testified against Tuma. The defense presented the testimony of Tuma, a lawyer for Tuma's plant, employees of the lab that tested the B-1 Tank, and an employee of the plant. The jury convicted Tuma on all counts after an eight-day trial. The district court denied Tuma's motions

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for a new trial and to reconsider the verdict.

At Tuma's sentencing, the district court adopted the pre-sentence investigation report (" PSR" ) with the exception of a four-level enhancement under United States Sentencing Guidelines (" U.S.S.G." or " Guideline" ) § 2Q1.3(b)(3) for substantial expenditure for clean-up. The PSR yielded a Guideline range of 51 to 63 months of imprisonment based on a resulting offense level of 24 and a criminal history category I. The district court sentenced Tuma to the statutory maximum of 60 months for counts one and five and to 36 months for counts two through four, all running concurrently. The district court also sentenced Tuma to a three-year term of supervised release on all counts, running concurrently, a $100,000 fine, and a $500 payment to the Crime Victims Fund. Tuma timely appealed his convictions and sentence.

DISCUSSION

Tuma raises several constitutional and substantive challenges to his convictions. He also raises challenges to his sentence on multiple fronts. We address each claim in turn.

A. Tuma's Challenges to His Convictions

Tuma alleges that his constitutional rights were violated by a series of decisions made by the district court. Specifically, he challenges the district court's decisions to: 1) exclude evidence and testimony related to the lack of environmental harm caused by the discharges and about the plant's process; 2) deny Tuma's Federal Rule of Criminal Procedure 15(a) request to depose the foreign CEO of CCS; and 3) restrict the cross-examination of Cody and exclude certain defense witnesses. He also claims that the cumulative effect of these alleged errors requires reversal.3

1. Exclusion of Evidence and Testimony

The district court granted the government's motion in limine and excluded certain evidence from trial. First, the district court excluded evidence about the lack of environmental harm caused by the discharges because it was irrelevant.4 Such evidence was not required to prove any of the offenses and did not support any affirmative defense to the crimes charged. Second, the district court preliminarily excluded evidence about the plant's operation and processes because it was irrelevant. Ultimately, the district court allowed Tuma to discuss the plant's processes in his testimony. At trial, Tuma proffered several witnesses, including Charles Tubbs, who would have testified about the lack of environmental harm in an effort to discredit the government's witnesses. The district court after considering the proffers excluded the testimony. Tuma challenged the decision to exclude Tubbs in his motion for a new trial, which the district court also denied.

" We review a district court's evidentiary rulings for an abuse of discretion." United States v. George, 201 F.3d 370, 372 (5th Cir.2000). However, any error made in excluding evidence is subject to the harmless error doctrine and " does

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not necessitate reversal unless it affected the defendant's substantial rights." United States v. Shows, 307 Fed.Appx. 818, 823 (5th Cir.2009) (per curiam) (unpublished) (citing United States v. Lowery, 135 F.3d 957, 959 (5th Cir.1998)). In assessing any error, we " must consider the other evidence in the case and determine whether the improperly excluded evidence, if admitted, would have had a substantial impact on the jury's verdict." United States v. Alvarez Cala, 133 Fed.Appx. 89, 92 (5th Cir.2005) (per curiam) (unpublished) (internal quotation marks and citation omitted).

We conclude that even if the district court abused its discretion in excluding this evidence, Tuma has not shown that the error affected his substantial rights. Evidence of environmental harm is not an element of any of the charged offenses nor would...

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