U.S. v. Holden

• Decision Date: 24 February 2009
• Docket Number: No. 07-5574.,No. 07-5573.,07-5573.,07-5574.
• Citation: 557 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Michael HOLDEN (07-5573) and James Larry Holden (07-5574), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

557 F.3d 698

UNITED STATES of America, Plaintiff-Appellee, v. James Michael HOLDEN (07-5573) and James Larry Holden (07-5574), Defendants-Appellants.

No. 07-5573.

No. 07-5574.

United States Court of Appeals, Sixth Circuit.

Argued: January 22, 2009.

Decided and Filed: February 24, 2009.

ARGUED:

Jude T. Lenahan, Federal Public Defender's Office, Nashville, Tennessee, Dan R. Alexander, Law Office, Nashville, Tennessee, for Appellants. Heather G. Childs, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

Jude T. Lenahan, Federal Public Defender's Office, Nashville, Tennessee, Dan R. Alexander, Law Office, Nashville, Tennessee, for Appellants. Heather G. Childs, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This appeal involves convictions arising out of an investigation into false reporting of pollutant levels in wastewater discharged by a water treatment facility in Mount Pleasant, Tennessee. Mike Holden, the operator of the plant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of the Environmental Protection Agency ("EPA") in violation of 18 U.S.C. §§ 2, 1001(a), and of falsifying documents with the intent to impede an investigation within the jurisdiction of the EPA in violation of 18 U.S.C. §§ 2, 1519. His father, Larry Holden, the Superintendent of Public Works for Mount Pleasant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of the EPA.

The Holdens challenge their convictions on four grounds. First, they argue that the district court abused its discretion by excluding evidence that Marty Roddy had been treated for marijuana dependency in 1992. Second, they argue that the district court committed plain error by admitting into evidence a negative evaluation of the plant from before the charged period. Third, they argue that the district court abused its discretion by refusing to admit statements by Mike Holden under the "rule of completeness." Fourth, they argue that the evidence presented at trial was insufficient to find James Larry Holden guilty beyond a reasonable doubt.

We find that no reversible error occurred at trial, and we thus AFFIRM.

I.

The Clean Water Act, 33 U.S.C. § 1251 et seq., makes it illegal to discharge a pollutant into the navigable waters of the United States except as authorized by the EPA or the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1362(12)(A). As part of its National Pollutant Discharge Elimination System, 33 U.S.C. § 1342, the EPA has authorized the Tennessee Department of Environment and Conservation ("TDEC") to issue discharge permits under the Act. TDEC issued a permit to the wastewater treatment facility in Mount Pleasant, Tennessee, that allowed the plant to discharge treated wastewater into Sugar Fork Creek if the plant complied with certain conditions. This permit imposed strict daily limits on the amount of pollutants that the facility could discharge, and required the plant to regularly test the pollutant levels of its outflow, keep detailed records of its test results, and make monthly compliance reports to TDEC.

Mike Holden was the longtime operator of the Mount Pleasant facility, and was certified as a Grade IV wastewater treatment operator, the highest certification level. As operator of the facility, Mike Holden was responsible for testing pollutant levels, keeping records, reporting to TDEC, and certifying the accuracy of these reports. Marty Roddy assisted Mike Holden in running the facility. Roddy was not certified as a wastewater treatment operator, but Mike Holden informally trained him how to collect the data and samples necessary to meet the reporting requirements of the permit program, and eventually put him in charge of sample collection and testing. Mike Holden used the results Roddy gave him to make compliance reports to TDEC, and he certified the reports to be true. During all relevant times, Larry Holden was the Superintendent of Public Works of Mount Pleasant. The plant fell under his administrative supervision, and he visited the plant on a regular basis to monitor its operation.

The Mount Pleasant facility had a history of compliance problems, and eventually the test results reported by the plant aroused suspicion with TDEC. The reported pollutant levels of the plant's outflow did not vary with its inflow (as one might expect); neither did the amount of chlorine the plant used in treating its wastewater. This prompted TDEC and the EPA to perform a joint audit of the plant in August 2003. Inspectors found the plant's testing lab in disrepair, littered with broken equipment, and showing little evidence of use. Further, the lab's testing records were incomplete from January 2001 through June 2003, and they lacked the data necessary to perform required tests and generate the results submitted in the monthly reports. In an effort to determine whether the plant was violating the terms of its permit, TDEC began independent spot-testing of the fecal coliform¹ levels of water discharged by the plant. These tests revealed massive disparities between the plant's reports and the actual levels of fecal coliform in the plant's outflow. In four spot tests conducted in late 2003, the plant reported levels of fecal coliform of 23, 27, 28, and 27 units per 100 milliliters of water; however, TDEC tests revealed the actual levels of fecal coliform in the plant's outflow to be 20,000, 600,000, 1,700, and 6,000 units each. The plant's permit allowed a discharge of no more than 1000 units per day.

Based upon these findings, the Tennessee Bureau of Investigation obtained a search warrant and searched the plant on April 8, 2004. This search revealed that the testing records previously found to be blank had been filled in. During this search, the Holdens arrived at the plant. Larry Holden confronted investigators and told them he would be taking the matter to the governor. Mike Holden told investigators that Marty Roddy was responsible for testing and that he had no knowledge of any wrongdoing. He admitted that he knew he was not adequately supervising Roddy, that the numbers being reported were "crazy," that he could not explain why the records were blank, and that "if it were up to him, he would report the correct numbers." Later, Marty Roddy told investigators that he had filled in the records at the instruction of Mike and Larry Holden shortly after the audit. At this time, the plant was processing between 3 and 4 million gallons of waste water a day—far in excess of its capacity of 1.2 million gallons. As a result, large amounts of untreated wastewater were being released into Sugar Fork Creek.

On July 17, 2005, Mike Holden and Marty Roddy were indicted for falsely reporting test results in violation of 18 U.S.C. 1001(a). A superceding indictment was issued on September 7, 2005. It added Larry Holden as a defendant and an additional charge, falsifying documents with the intent to impede an EPA investigation in violation of 18 U.S.C. §§ 2 and 1519. Marty Roddy pleaded guilty to count one and cooperated with the government. He was sentenced to six months home detention.

Mike Holden and Larry Holden went to trial. Mike Holden testified that he did not know that Roddy was not collecting data or testing pollutant levels, and that he blindly signed off on the results Roddy gave him. Larry Holden admitted that he knew the plant was operating at above capacity, but denied any involvement in the filing of reports. Roddy testified that from 2001 to 2004, the plant failed to test discharged water for pollutants about 80% of the time, and that when testing was done, Mike Holden provided him with water collected from a different creek nearby, or instructed him to adjust the numbers on the monthly reports to fall within permitted levels. Based on this testimony, the United States argued that either the Holdens had actual knowledge of the false reporting or that they had been deliberately indifferent to it.

On September 25, 2006, Mike Holden was convicted of both false reporting and falsifying documents; Larry Holden was convicted only of false reporting. Mike Holden was sentenced to 32 months in prison, and Larry Holden was sentenced to 24 months. They now appeal their convictions.

II.

1. The Admissibility of Evidence of Marty Roddy's Treatment for Marijuana Dependency

At trial, the Holdens sought to impeach Marty Roddy with evidence that he had been treated for marijuana dependency in 1992. Roddy's treatment record indicated both that his heavy marijuana use had caused him short-term memory loss and that he had not been truthful about the extent of his use. The Holdens argued that this evidence should be admitted to impeach Roddy's character for truthfulness and his memory. The district court ruled that the defense could only introduce evidence of drug use as it related to Roddy's ability to perceive the events that were the subject of his testimony and testify about them at trial. It thus excluded evidence of Roddy's treatment because it occurred nine years prior to the charged conduct. In doing so, the court explained that the treatment was "too remote in time" to be probative and "lack[ed] a causal relationship" with Roddy's testimony at trial.

The Holdens contend that the district court abused its discretion by refusing to allow Roddy's prior treatment into evidence under Fed.R.Evid. 608(b) or Fed.R.Evid. 612, and that in doing so it violated the Confrontation Clause of the Sixth Amendment. We review a district court's evidentiary decisions for abuse of discretion. United States v. McDaniel, 398 F.3d 540, 544 (6th Cir.2005). It is an abuse of discretion for a district court to commit legal error or find clearly erroneous facts. Id.

A. Rule 608(b)

FRE 608(b)(1...