U.S. v. Brittain

Decision Date30 April 1991
Docket NumberNo. 90-6202,90-6202
Citation931 F.2d 1413
CourtU.S. Court of Appeals — Tenth Circuit
Parties, 21 Envtl. L. Rep. 21,092 UNITED STATES of America, Plaintiff-Appellee, v. Raymond T. BRITTAIN, Defendant-Appellant.

Edward J. Shawaker, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C. (Richard B. Stewart, Asst. Atty. Gen., Washington, D.C., Timothy D. Leonard, U.S. Atty., Leslie M. Kaestner, Asst. U.S. Atty., Oklahoma City, Okl., Robert L. Klarquist, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., Kathleen A. Hughes, Special Asst. U.S. Atty., Oklahoma City, Okl., with him on brief), for plaintiff-appellee.

William J. Skepnek of Stevens, Brand, Lungstrum, Golden & Winter, Lawrence, Kan. (Thomas G. Blakley of Blakley, Henneke & Maxey, Enid, Okl., Steven L. Tolson of Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, Okl., with him on brief), for defendant-appellant.

Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

A jury convicted defendant-appellant, Raymond T. Brittain, of eighteen felony counts of falsely reporting a material fact to a government agency, 18 U.S.C. Sec. 1001, and two misdemeanor counts of discharging pollutants into the waters of the United States in violation of Secs. 301(a) & 309(c)(1) of the Federal Water Pollution Control Act of 1972 (Clean Water Act), codified at 33 U.S.C. Secs. 1311(a) & 1319(c)(1). Defendant appeals, contending: (1) the government did not establish materiality as required by 18 U.S.C. Sec. 1001; (2) he is not a "person" who discharged pollutants as contemplated by the Clean Water Act; and (3) the evidence is insufficient to prove that he discharged pollutants in violation of the Clean Water Act. We affirm.

I.

We first consider materiality under 18 U.S.C. Sec. 1001. The Clean Water Act prohibits the discharge of pollutants from any point source into the navigable waters of the United States unless such discharge complies with a permit issued by the EPA pursuant to the National Pollutant Discharge Elimination System (NPDES) or by an EPA authorized state agency. See 33 U.S.C. Secs. 1311(a) & 1342. NPDES permits impose limits on the point sources and amounts of discharged pollutants, and the EPA monitors compliance through monthly discharge monitoring reports from the permittee. See generally 33 U.S.C. Sec. 1342 (NPDES system); 40 C.F.R. Sec. 122 (1989) (NPDES regulations). Defendant, as public utilities director for the city of Enid, Oklahoma, had general supervisory authority over the operations of the Enid wastewater treatment plant and was responsible for filing the plant's discharge monitoring reports. Defendant directed the plant supervisor to falsify eighteen monthly discharge monitoring reports and the supporting laboratory records by recording 25 to 30 milligrams per liter of effluent for two specific pollutants regardless of the actual measurements at the point of discharge. Rec. vol. VII at 501-02. Defendant's convictions under 18 U.S.C. Sec. 1001 resulted from these falsifications.

Section 1001 prohibits any person from knowingly and willfully making a false statement regarding a material fact that is within the jurisdiction of a federal agency. See United States v. Irwin, 654 F.2d 671, 675-76 (10th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982). Defendant concedes sufficient evidence on all of the elements of Sec. 1001 except materiality. Therefore, we limit our discussion to whether defendant's false statements were of a material fact, a separate and distinct element of the offense. 1 Although materiality remains an essential element of the Sec. 1001 offense, we recently overruled our past decisions and determined that materiality is a question of law to be reviewed de novo. See United States v. Daily, 921 F.2d 994, 1004-06 (10th Cir.1990) (citing Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (Supreme Court ruled that materiality under 8 U.S.C. Sec. 1451(a) is a question of law)).

A false statement is material if it " 'has a natural tendency to influence, or [is] capable of influencing, the decision of the tribunal in making a determination required to be made.' " Gonzales v. United States, 286 F.2d 118, 122 (10th Cir.1960) (quoting Weinstock v. United States, 231 F.2d 699, 701-02 (D.C.Cir.1956)), cert. denied, 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961). See also Irwin, 654 F.2d at 677. Defendant contends that the government did not establish materiality because it did not demonstrate that his false statements were capable of influencing government action. He relies on a plant laboratory technician's personal diary offered by the government. The diary reflected the true levels of pollutant discharge to be below the falsely reported levels and within the plant's NPDES permit limits. Defendant also urges us to consider the testimony of Sharon Parrish, an expert witness for the government. Ms. Parrish testified that an EPA enforcement action would result if the discharge monitoring reports reflected pollutant discharges outside the NPDES permit limits. Rec. vol. V at 459-60. According to defendant, the government did not establish materiality since its only evidence reflected the actual levels of pollutant as within permit limits and enforcement action would result only if the levels exceeded permit limits. As authority, he cites United States v. Radetsky, 535 F.2d 556 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976).

Radetsky involved a Medicare fraud scheme whereby the defendant doctor attempted to obtain reimbursement from the government for medicinal drugs that he did not prescribe. We held, as matter of law, that the government could not establish materiality under 18 U.S.C. Sec. 1001 because the doctor's false reports were of drugs that were noncompensable under Medicare regulations. Radetsky, 535 F.2d at 572-74. The doctor's false reports therefore were incapable of influencing the government to reimburse. 2 Defendant contends that the circumstances of his case parallel those of Radetsky because the government's evidence, the laboratory technician's diary, reflected no need for EPA enforcement because it recorded the true levels of pollutants to be within NPDES permit limits. The record, however, reveals that defendant's reliance on Radetsky is misplaced.

Contrary to defendant's position, the lab technician's diary was not the only evidence the government produced as to the true levels of effluent. The record contains expert testimony to the effect that it was impossible for the treatment plant to meet its NPDES permit limitations during the indictment period, May 1985, to September 1986. Rec. vol. VII at 844. The government expert testified that he examined the plant in November 1986, and found it in a state of disrepair. When asked his opinion of the operation of the plant during the indictment period, the witness responded: "Well, they hadn't taken care of the plant. They hadn't ordered new parts and installed them when they were needed.... The place was just kind of a mess." Id. at 833. The expert testified in detail regarding the specific problems resulting from the plant's poor condition and why such problems rendered it impossible for the plant to meet its NPDES permit requirements during the indictment period. Id. 833-44. Furthermore, the laboratory technician's diary reflecting discharge levels within permit limits covered only two months of the indictment period. The expert testimony, on the other hand, considered the entire eighteen-month period. This expert testimony allowed the government to establish that defendant's false statements could have influenced an EPA enforcement decision. See 40 C.F.R. Sec. 122.41(a) (1990) ("Any [NPDES] permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action....").

In United States v. Wolf, 645 F.2d 23 (10th Cir.1981), we noted that "[s]ection 1001 is basically a provision directed to statements to obtain federal funds or direct governmental benefits [but] is of course not so expressly limited...." Id. at 25. As the Supreme Court has recognized, the statute also has a role "in protecting the integrity of official inquiries." Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969). See also Wolf, 645 F.2d at 26 ("[The falsified certificate] was required by the agency and was a basic part of the regulatory structure which depended on the accuracy and truth of such certificates."). The Ninth Circuit has noted that "[t]he NPDES program fundamentally relies on self-monitoring." Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491 (9th Cir.1987), vacated and remanded on other grounds, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988). The same court held that discharge monitoring reports showing exceedences were conclusive evidence of NPDES permit violations. Id. at 1492. Also, the legislative history of the Clean Water Act reveals that Congress sensed a need for accurate self-reporting:

One purpose of these new requirements [self-reporting requirements] is to avoid the necessity of lengthy fact finding, investigations, and negotiations at the time of enforcement. Enforcement of violations of requirements under this Act should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay.

7 S.Rep. No. 414, 92 Cong., 1st Sess. 64, reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3730. See also, Union Oil, 813 F.2d at 1492 (discussing S.Rep. No. 414).

Defendant's false statements served to undermine the integrity of the self-monitoring permit system. Our finding of materiality in this case, however, turns on the evidence that defendant's false statements had the tendency to influence or were capable of influencing an EPA enforcement action.

At the time of trial, March 1990, this...

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