U.S. v. Greer, 86-3526

• Decision Date: 01 August 1988
• Docket Number: No. 86-3526,86-3526
• Citation: 850 F.2d 1447
• Parties: , 18 Envtl. L. Rep. 21,387 UNITED STATES of America, Plaintiff-Appellant, v. Arthur J. GREER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1447

850 F.2d 1447

28 ERC 1254, 18 Envtl. L. Rep. 21,387

UNITED STATES of America, Plaintiff-Appellant, v. Arthur J. GREER, Defendant-Appellee.

No. 86-3526.

United States Court of Appeals Eleventh Circuit.

Aug. 1, 1988.

Paul J. Moriarty, Asst. U.S. Atty., Tampa, Fla., Vicki L. Plaut, U.S. Dept. of Justice, Land & Natural Resources Div., Robert Klarquist, Washington, D.C., for plaintiff-appellant.

James M. Russ, Orlando, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and HATCHETT, Circuit Judges, and LYNNE ^*, Senior District Judge.

TJOFLAT, Circuit Judge:

In this case, a jury returned verdicts of guilty against the defendant on seventeen counts. Citing insufficiency of the evidence, the trial judge entered judgments of acquittal with respect to two of those counts. The Government now appeals those judgments. We hold that we have jurisdiction to entertain the Government's appeal, and that the district court erred in entering the judgments of acquittal.

I.

In December 1985, a federal grand jury returned a thirty-three-count indictment against Arthur J. Greer, charging him with violations of various federal laws in connection with his operation of a waste recycling and transportation business based in Orlando, Florida. This appeal concerns only two of the counts, counts sixteen and seventeen. Count sixteen charged Greer with having caused a dumping of hazardous waste in violation of 42 U.S.C. Sec. 6928(d)(2)(A) (1982); ¹ count seventeen charged Greer with having failed to report that dumping in violation of 42 U.S.C. Sec. 9603(b)(3) (1982). ²

Trial was before a jury. After he had put on his case, Greer moved the district court pursuant to Fed.R.Crim.P. 29(a) to enter judgments of acquittal on all counts. As permitted by Fed.R.Crim.P. 29(b), the court deferred ruling on the motion, reserving its decision pending return of the jury's verdicts.

Counsel made their closing arguments and the district court charged the jury. The jury returned verdicts of guilty on counts one through nine and twelve through nineteen. The district court thereafter ruled on Greer's Rule 29(a) motion and entered judgments of acquittal as to counts sixteen and seventeen. In the court's opinion, the Government's proof did not establish Greer's guilt beyond a reasonable doubt. The Government moved the court to reconsider its rulings, but the court denied the motion, stating that "[b]ased on the speculative evidence presented during trial, proof was not adduced beyond a reasonable doubt as to counts 16 [and] 17." The Government now appeals.

II.

We first address Greer's contention that we lack jurisdiction to entertain the Government's appeal. The Government urges that we have jurisdiction under 18 U.S.C. Sec. 3731 (Supp. II 1984), which provides that

[i]n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Greer's argument that we lack jurisdiction to hear the Government's appeal is twofold. First, he argues that section 3731, because it refers only to appeals from orders "dismissing an indictment," does not apply where, as here, the appeal is from a judgment of acquittal. Second, he argues that entertaining the Government's appeal would violate his rights under the double jeopardy clause of the United States Constitution.

While Greer's statutory argument may be attractive in the abstract, the Supreme Court has interpreted section 3731 as allowing government appeals in criminal cases "whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 567 n. 4, 97 S.Ct. 1349, 1352 n. 4, 51 L.Ed.2d 642 (1977). ³ Thus, Greer's jurisdictional attack must succeed or fail on the basis of his constitutional argument. See United States v. Martinez, 763 F.2d 1297, 1309 (11th Cir.1985).

To be sure, the Supreme Court has never directly decided whether the double jeopardy clause bars appeal from the kind of acquittals involved in this case, that is, postverdict judgments of acquittal based on the insufficiency of the evidence. But this court has held on more than one occasion that such an appeal is not barred. See United States v. Burns, 597 F.2d 939, 940 (5th Cir.1979); ⁴ see also United States v. Hayes Int'l Corp., 786 F.2d 1499, 1500 (11th Cir.1986); United States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2173, 64 L.Ed.2d 801 (1980). Because the policy behind the double jeopardy clause is to prevent multiple prosecutions, see Wilson, 420 U.S. at 342-44, 95 S.Ct. at 1021-22, "the test for whether a government appeal of a judgment of acquittal is barred by the Double Jeopardy Clause is whether there will be any proceeding after a successful appeal that will require the resolution of further factual issues by the trier of fact." Martinez, 763 F.2d at 1309. Thus, in Burns we reasoned that an appeal from a postverdict judgment of acquittal based on the insufficiency of the evidence presents no double jeopardy problem because reversal would not result in further factfinding proceedings; the district court would simply reinstate the jury's guilty verdict and enter judgment upon that verdict. ⁵ Burns, 597 F.2d at 940-41. This precedent controls unless overruled by this court sitting en banc or unless invalidated by an intervening Supreme Court decision. Neither of these scenarios has come to pass, and we are consequently precluded from revisiting the issue here. We therefore turn to the merits of the Government's appeal.

III.

We begin with the Government's appeal with respect to count sixteen of the indictment. As already noted, that count charged Greer with having caused a dumping of hazardous waste in violation of 42 U.S.C. Sec. 6928(d)(2)(A) (1982). ⁶ Specifically, the indictment charged that "[o]n or about August 12, 1982, in the Middle District of Florida, Arthur J. Greer did knowingly dispose of or cause to be disposed of a hazardous waste, that is, a mixture of approximately 1,000 gallons of hazardous waste primarily containing 1, 1, 1 trichloroethane, ... [i]n violation of Title 42, United States Code, Section 6928(d)(2)(a)."

Where, as here, the jury returns a verdict of guilty and the district court sets aside that verdict by entering a judgment of acquittal based on the insufficiency of the evidence, the decision of the district court "is entitled to no deference." United States v. Hayes Int'l Corp., 786 F.2d 1499, 1500 (11th Cir.1986). Our task is to decide "whether the evidence, examined in a light most favorable to the Government, was sufficient to support the jury's conclusion that the defendant was guilty beyond a reasonable doubt." United States v. Varkonyi, 611 F.2d 84, 85-86 (5th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2173, 64 L.Ed.2d 801 (1980). All credibility choices must be made in support of the jury's verdict. United States v. Gianni, 678 F.2d 956, 958-59 (11th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982); United States v. Burns, 597 F.2d 939, 941 (5th Cir.1979).

Because the district court did not indicate in what respect it found the evidence insufficient to support the jury's verdicts, we must examine the proof adduced with regard to each element of the crimes charged. The trial judge instructed the jurors that, in order for them to find Greer guilty of the crime charged in count sixteen, the Government would have to prove: ⁷

(1) that Greer "knowingly disposed of or caused others to dispose of a chemical waste ... on or about August 12, 1982";

(2) that the material so disposed was "a chemical waste primarily containing 1,1,1-trichloroethane";

(3) that Greer "knew that the chemical waste had the potential to be harmful to others or to the environment, and, in other words, it was not an innocuous substance like water";

(4) that "1,1,1-trichloroethane was listed or identified by the United States [Environmental Protection Agency] as a hazardous waste pursuant to [42 U.S.C. Sec. 9601(14) (1982) ]"; and

(5) that Greer "had not obtained a permit from [the Environmental Protection Agency] authorizing the disposal under [42 U.S.C. Sec. 6925 (1982) ]."

As to the fourth and fifth elements, there can be no question that the evidence adduced at trial was sufficient to support the jury's conclusion that the Government carried its burden of proof. Accordingly, we will limit our discussion to the first three elements.

The Government's evidence established that Greer operated a waste recycling and transportation business in Orlando, Florida. In connection with that business, Greer stored and recycled wastes at a site located on Forsyth Road in Orlando. Several witnesses testified that Greer was actively involved in the daily operation of the business; he reported for work each day to an office building situated on the Forsyth Road site and he had regular contact with and monitored the activities of the employees who labored at that site.

At the time of the alleged dumping, Edward L. Fountain was employed by Greer as plant manager at the Forsyth Road site. Fountain testified at trial that one of his primary responsibilities as plant manager was to "keep the drum count down." He explained that Greer was forbidden under a local ordinance from storing more than 1300 drums of waste on the Forsyth Road site. To keep the drum count below 1300, Fountain would occasionally dump incoming wastes directly onto the ground; he testified that in doing so, he was continuing a practice in which previous plant managers had routinely engaged. According to Fountain, Greer approved of...