U.S. v. Kuhn

• Decision Date: 01 October 2003
• Docket Number: No. 02-1031.,02-1031.
• Citation: 345 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael J. KUHN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

345 F.3d 431

UNITED STATES of America, Plaintiff-Appellant, v. Michael J. KUHN, Defendant-Appellee.

No. 02-1031.

United States Court of Appeals, Sixth Circuit.

Argued: May 6, 2003.

Decided and Filed: October 1, 2003. Pursuant to Sixth Circuit Rule 206

Jennifer J. Peregord (argued and briefed), United States Attorney, Detroit, Michigan, for Appellant.

William A. Brisbois (argued and briefed), Brisbois & Brisbois, Saginaw, Michigan, for Appellee.

Before: BOGGS, Chief Circuit Judge; GUY and DAUGHTREY, Circuit Judges.

OPINION

BOGGS, Chief Circuit Judge.

Michael J. Kuhn was sentenced to six months at a halfway house and six months of supervised release following his conviction for improperly discharging a pollutant into navigable waters, causing an employee to falsify test results in records submitted to the government, and signing and submitting a report to the government that he knew contained false test results. The government now appeals a four-level downward departure granted by the district court to Kuhn. For the reasons set forth below, we reverse, and remand the case for resentencing.

Kuhn was the Superintendent of the Bay City, Michigan, Wastewater Treatment Plant (the Plant). The wastewater that comes into the Plant goes through a number of stages before being released into the Saginaw River. On or about August 25, 1996, during the midnight shift, staff at the Plant began cleaning the chlorine contact chamber, which is the penultimate stage of the process. The Plant had a National Pollutant Discharge Elimination System (NPDES) permit that governed its operation under the Clean Water Act (CWA). The plant was obligated to notify the Michigan Department of Environmental Quality (DEQ) within five days of any accidental spill or bypass of the treatment system. At the end of August 1996, sludge from the chlorine contact chamber was illegally pumped into a ditch while the chlorine contact chamber was being cleaned. This was done on Kuhn's orders. In November 1996, Kuhn had the soil from the ditch excavated and hauled away.

Pursuant to the Plant's NPDES permit, the Plant was required to submit monthly discharge monitoring reports to the DEQ. As superintendent, Kuhn certified the accuracy of the information in these reports. The reports contained data regarding laboratory findings charting both the material coming into the Plant ("influent") and the material being discharged from the Plant ("effluent"). A Plant technician drew Kuhn's attention to very high numbers for BOD-5¹ on a sample drawn May 3, 1997. Kuhn asked the technician to change the results, and the technician refused. The technician made a copy of the original printout, suspecting that the numbers might be altered in the final report to the DEQ. Later, another technician gave the final report for the month of May to Kuhn for his review and signature. He told her that the test results for suspended solids, total phosphorous, and BOD-5 for May 3 must be wrong and asked her to change the numbers to the averages for the month. She refused. However, when she checked the final report, the data for May 3 had been changed to the monthly averages.² Kuhn then asked yet another technician to change the test results, which he did. The technician wrote a memo memorializing the fact that he had changed the test results at Kuhn's direction. Kuhn signed the final, altered report on June 10, 1997, and submitted it to the DEQ.

Kuhn was subsequently indicted in a four-count indictment that charged: first, that between August 23 and 30, 1996, Kuhn knowingly caused plant workers to dispose of sewage sludge improperly, which resulted in the sludge flowing into a ditch on the plant property and then into the Saginaw River, a navigable waterway, in violation of 33 U.S.C. § 1345(a) and 18 U.S.C. § 2; second, that between the same dates he knowingly caused the sewage sludge to be discharged from the ditch into the Saginaw River, in violation of 33 U.S.C. § 1311(a) and 18 U.S.C. § 2; third, that on June 9, 1997, he caused an employee to assist in falsifying test results that were included in records that, under the CWA, were required to be filed, in violation of 33 U.S.C. § 1319(c)(4) and 18 U.S.C. § 2; and fourth, that on June 10, 1997, he signed and submitted to the DEQ a discharge monitoring report, required by the CWA, which he knew contained the false test results, in violation of 33 U.S.C. § 1319(c)(4).

After a three-week jury trial, the jury returned a verdict of guilty on all counts. Kuhn filed a post-verdict motion for judgment of acquittal. The district court granted this motion in part, dismissing count two on double jeopardy grounds. The presentence report (PSR) calculated Kuhn's sentencing range at 30-37 months, with a total offense level of nineteen. This number was reached by finding a base offense level of six for count one (U.S.S.G. § 2Q1.3(a)). The PSR then recommended two four-level increases for specific offense characteristics: pursuant to § 2Q1.3(b)(1)(B), due to the offense involving a discharge or release of a pollutant; and pursuant to § 2Q1.3(b)(4), due to the offense involving a discharge without a permit or in violation of a permit. The PSR recommended two additional two-level increases: pursuant to § 3B1.1(c) for Kuhn's role as an organizer, leader, manager, or supervisor in a criminal activity; and pursuant to § 3B1.3 due to his abuse of a position of public trust in a manner that significantly facilitated the commission or concealment of this offense. This resulted in a recommended adjusted offense level of eighteen for count one.

For counts three and four, the PSR recommended a base offense level of six (§ 2Q1.3(a)) with the same two increases for leadership role and abuse of a position of public trust. This resulted in a recommended adjusted offense level of ten for counts three and four. According to the grouping rules, found at § 3D1.4, one offense level was added to the group with the highest adjusted offense level. Therefore, the recommended combined adjusted offense level was nineteen.

At the sentencing hearing, the defense objected to the addition of the increases for the two specific offense characteristics. The court overruled this objection, finding that application of the two specific offense characteristics did not constitute double-counting. Next, the government objected to the PSR's omission of its requested 11-level enhancement pursuant to § 2Q1.3(b)(2) because the offense resulted in a substantial likelihood of death or serious bodily injury. The court overruled the government's objection. Next, the government objected to the PSR's failure to include a two-level increase for obstruction of justice, pursuant to § 3C1.1 and application note 4(b), based on Kuhn's false testimony given at trial. The court overruled the government's objection.

The defense did not object to the two two-level increases for Kuhn's leadership role and abuse of a position of public trust. The defense, however, did move for a downward adjustment or departure, based on § 2Q1.3, application notes 4 and 7, which advise the court that upward and downward departures are appropriate depending upon the harm or risk associated with the offense. The court departed downward two levels with regard to each offense characteristic, for a total of four levels subtracted from the adjusted offense level for count one. The court explained that testing of the affected areas did not indicate any presence of PCBs, that the chlorine contact chamber was the last stage that polluted water reached before it was released into the environment, and that there were serious questions in the court's mind "as to whether any of the contents of that ditch ever made it into the Saginaw River."

At this point, the adjusted offense level for count one stood at fourteen. The court then calculated that, pursuant to § 3D1.4, two levels were to be added to that for grouping purposes. This resulted in a combined offense level of sixteen. The defense then moved for a downward departure based on Kuhn's acts of a charitable or public service nature within the community.

The court denied the motion, but went on to state that it doubted that a 21- to 27-month term of incarceration "serves the ends of justice in this case." The court stated that it questioned the two two-level adjustments for role in the offense and abuse of a position of public trust. It stated that "the offense in this case did not necessarily entail an abuse of trust that was separate and apart from the defendant's position that permitted him to be a leader or organizer of the activity." Therefore, the court concluded, scoring the two adjustments in a single case constituted an over-counting. Moreover, the court stated that, although applying the two specific offense characteristics did not constitute double-counting, it "put undue weight on the offense characteristics for this specific offense," because the offense for which Kuhn was convicted consisted of a single discharge. The court also noted that it felt that the sentence in the case

ought to be fashioned around the fact that the discharge in this case resulted from essentially a single incident that occurred over a day or two, and was motivated by the defendant's desire to make the plant more efficient so that it would perform the function of enhancing the environmental quality as opposed to degrading it.

Therefore, the court departed downward by four additional levels.

In its judgment, the court added more reasons for granting the additional four-level downward departure, indicating that "[t]he circumstances of this case, including the defendant's motivation and purpose, takes this case out of the `heartland' of offenses contemplated by the Sentencing Guidelines." First, the court reiterated that Kuhn "was motivated by a desire to clean up and improve the efficient operation of the Bay City Wastewater Treatment Plant." Apparently, the court concluded...