U.S. v. Cooper

• Citation: 173 F.3d 1192
• Decision Date: 09 April 1999
• Docket Number: No. 97-50296,97-50296
• Parties: 99 Cal. Daily Op. Serv. 2623, 1999 Daily Journal D.A.R. 3397 UNITED STATES of America, Plaintiff-Appellee, v. Gordon Paul COOPER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1192

173 F.3d 1192

99 Cal. Daily Op. Serv. 2623, 1999 Daily

Journal D.A.R. 3397

UNITED STATES of America, Plaintiff-Appellee, v. Gordon Paul COOPER, Defendant-Appellant.

No. 97-50296.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1998.

Decided April 9, 1999.

Roger S. Hanson, Santa Ana, California, for the defendant-appellant.

Melanie K. Pierson, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-96-0804-JNK.

Before: CANBY and KLEINFELD, Circuit Judges, and PANNER, District Judge. ^*

PANNER, District Judge:

Gordon Paul Cooper appeals his convictions and sentence after a jury found him guilty of conspiracy, 18 U.S.C. § 371; aiding and abetting the unlawful disposal of sewage sludge, 33 U.S.C. §§ 1319(c)(2)(A) and 1342; and mail fraud, 18 U.S.C. § 1341. Cooper contends that he complied with federal regulations governing sewage sludge; that he cannot be criminally liable for violating a permit to which he was not a party; that the Clean Water Act is void for vagueness as applied; that the prosecution failed to disclose an exculpatory FBI report; that a government witness falsely testified that he had no agreement with the government; that the prosecutor committed misconduct during final argument; and that the district court improperly enhanced the sentence.

We affirm.

BACKGROUND

Cooper has been in the business of hauling sewage sludge for more than thirty years. In 1986, Cooper and Larry Vaughan incorporated Chino Corona Farms (CCF) in San Juan Capistrano, California. CCF transported, composted, and sold sewage sludge from several small cities.

Cooper was CCF's secretary-treasurer and Vaughan was its president. The district court described Cooper as the "nuts-and-bolts guy" who knew the business of handling sewage sludge, while Vaughan was the "bookkeeper partner" who stayed in CCF's office handling the finances.

The City of San Diego (the City) was shipping its raw sewage to a treatment site on Fiesta Island, where the sewage was partially dried but not composted. The City processed its sewage under a National Pollutant Discharge Elimination System (NPDES) permit issued by the California Regional Water Quality Board, San Diego In 1990, the City awarded CCF a contract to remove sewage sludge from Fiesta Island. CCF agreed to transport sewage sludge for about $20 per ton (later raised to about $24 at CCF's request) to Thermal, California, where CCF would compost the sludge. Because the City paid CCF by weight, the contract required that CCF submit weighmaster certificates (also called weigh or weight tickets) to verify the weight of sludge in each truckload. Weighmaster certificates are an official record of a truck's gross weight and the weight of its cargo. Valid weighmaster certificates are produced by a licensed scale and signed by the scale's operator. Cooper was convicted of mail fraud partly because CCF used false weighmaster certificates.

                Region (the Water Board).  The NPDES permit required that the City "give prior written notice ... of any change(s) planned in the discharger's [i.e., the City's] sludge use or disposal practice."   The NPDES permit also required that the City regularly report on its disposal of sewage sludge, describing the location, the rate of application in pounds per acre per year, and subsequent uses of the land
                

The contract required that CCF "obtain City approval to haul to the proposed site for which the required documentation has been submitted." CCF was required to submit bills of lading to show each truckload's ultimate destination. The contract did not refer to the City's NPDES permit.

CCF retained an attorney, James W. Anderson, who had experience on a Water Board, to determine whether CCF needed a permit to treat sewage sludge at its Thermal site. Anderson, who worked with Cooper, negotiated a memorandum of agreement with the governing Water Board. No permit was required. CCF voluntarily agreed to take precautions, such as building berms and drainage controls, to keep sewage sludge from entering surface or ground waters.

Soon after it began hauling for the City, CCF was overwhelmed by the volume of sewage sludge. CCF's site manager testified at trial that CCF received more sewage sludge each day at the Thermal site than it could compost in a month.

To prevent a further backlog of sewage sludge at the Thermal site, Cooper arranged to haul sludge directly from Fiesta Island to Mexicali, Mexico, without composting it at Thermal. In late spring 1992, after obtaining permission from authorities in Mexico, Cooper sought approval from the City and the Water Board. The City and Water Board accepted the Mexicali site because they decided they had no jurisdiction over it.

Cooper hired Manuel Mier, a citizen of Mexico, to supervise truckers hauling sludge from Fiesta Island to Mexicali. CCF paid Mier $500 a week plus expenses. Mier reported only to Cooper.

When CCF first hired a trucking company to haul sludge from Fiesta Island to its Thermal site, CCF paid by weight and required weighmaster certificates. According to Mier, however, that changed when CCF began hauling sludge to Mexicali. Mier testified that Cooper told him not to have the trucks weighed. Instead, Cooper instructed him to create phony weighmaster certificates using blank forms Cooper supplied. Mier was to write in a fabricated cargo weight so that the gross weight of the truck would be no more than 80,000 pounds, which Mier understood to be the maximum allowed by California law. Mier (or others who helped him) wrote in Mier's name and signature as the deputy weighmaster. Mier then used the false weighmaster certificates to prepare invoices for billing the City.

Mier also testified that he mailed or personally delivered completed weighmaster certificates and invoices to Cooper. Cooper testified that he often received envelopes from Mier, but never looked at the weighmaster certificates inside them.

In spring 1993, after Mexican authorities detained trucks carrying sewage sludge for CCF, Cooper decided that he needed a different site for sludge disposal. Cooper For his new site, Cooper chose a farm owned by Jay Mason near Seeley, California, in Imperial County. Mason had purchased hundreds of tons of composted sludge from CCF's Thermal site. Cooper did not notify the City or the Water Board of his new site. Cooper testified that he did telephone the EPA's regional "sludge coordinator" about obtaining a permit for the Mason farm operation, and was told that no permit was required. There was no documentation or follow-up correspondence concerning Cooper's telephone call to the EPA.

knew that in February 1993, effective February 1994, the United States Environmental Protection Agency (EPA) had issued new regulations governing the land application of sewage sludge. 40 C.F.R. Part 503. The new regulations provided that if sewage sludge met standards for pathogens, trace minerals, and "vector attraction" (i.e., attraction to rats or insects), the sludge could be applied directly to agricultural land as fertilizer with few restrictions. Cooper obtained an analysis of Fiesta Island sewage sludge, showing that the sludge met the new regulations' highest standards for sludge. Cooper concluded that the federal regulations authorized him to apply the sewage sludge directly to agricultural land.

The Planning Director for Imperial County, Urich Heuberger, testified that in spring 1993, CCF had asked about obtaining a conditional use permit for applying composted sewage sludge from CCF's Thermal site to certain agricultural land in the county. When Heuberger learned about the application of uncomposted sewage sludge at the Mason farm, he ordered CCF to stop applying sludge to county farm land without a permit.

By shipping sewage sludge directly from Fiesta Island to Mason's farm, CCF saved the expense of composting the sludge at the Thermal site, as well as the cost of shipping to and from Thermal. Cooper told Mason that rather than charge him for the sewage sludge, CCF would pay five dollars for each ton applied to his farm. Cooper assured Mason that he had permits for the sludge and that it was harmless.

Cooper arranged for trucks to leave Fiesta Island in the late afternoon so they arrived at the Mason farm during twilight. The sludge was immediately worked into the soil. Cooper testified that CCF hauled sludge at night to avoid traffic and to prevent sunlight from dissipating nitrogen.

During the several weeks in March and April 1993 that CCF shipped Fiesta Island sewage sludge to the Mason farm, Mier submitted weighmaster certificates to CCF indicating that the sludge was still being shipped to Mexicali. Mier testified that he did so under orders from Cooper. CCF sent the false weighmaster certificates to the City to support its invoices.

The owners of the two trucking companies that hauled sewage sludge for CCF to the Mason farm testified that Cooper paid them by the truckload, not by weight. Cooper did not ask them to weigh the truckloads. A foreman for one of the trucking companies testified that Cooper refused his offer to weigh trucks.

In late April 1993, acting on a tip from Russell Rodvold, the owner of a trucking company, city employees followed a truck hauling sewage sludge for CCF from Fiesta Island to the farm in Imperial County. When the City's auditors discovered that CCF had lied about the sludge's destination, they examined CCF's invoices and realized that the weighmaster certificates were false. The City Auditor found that out of about 1,500 weighmaster certificates submitted by CCF listing truckloads sent to Mexicali, about 425 truckloads, or 10,000 tons of sewage sludge, were dumped at the Mason farm.

When the City canceled its contract with CCF, Vaughan and others at CCF...