U.S. v. Sellers

• Decision Date: 01 March 1991
• Docket Number: No. 90-1216,90-1216
• Citation: 926 F.2d 410
• Parties: , 21 Envtl. L. Rep. 20,787, 32 Fed. R. Evid. Serv. 1089 UNITED STATES of America, Plaintiff-Appellee, v. James Ralph SELLERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 410

926 F.2d 410

32 ERC 1881, 21 Envtl. L. Rep. 20,787,

32 Fed. R. Evid. Serv. 1089

UNITED STATES of America, Plaintiff-Appellee, v. James Ralph SELLERS, Defendant-Appellant.

No. 90-1216.

United States Court of Appeals Fifth Circuit.

March 1, 1991.

Rehearing Denied March 29, 1991.

Orbie S. Craft (Court-appointed), Craft, Brenemen & Wilson, Brandon, Miss., for defendant-appellant.

Ruth R. Harris, Asst. U.S. Atty., George Phillips, U.S. Atty., and James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, KING, and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

James Ralph Sellers (Sellers) appeals his conviction and sentence for sixteen counts of knowingly and willfully disposing of methylethylketone, a hazardous waste, without obtaining a permit, a violation of the Resource Conservation and Recovery Act ("RCRA"), codified at 42 U.S.C. Sec. 6928(d)(2)(A). Sellers contends that the district court erred (1) in its admission of certain testimony, (2) by its charge to the jury, and (3) in its application of the U.S. Sentencing Guidelines. Finding no error, we affirm the conviction and sentence.

I.

On March 5, 1989, residents in rural Jones County, Mississippi discovered sixteen 55-gallon drums of hazardous paint waste on an embankment of the Camp Branch Creek, which flows into the Leaf River. These drums were later determined to contain paint waste and methylethylketone (M.E.K.), a paint solvent, and one of the drums was found to be leaking. Sellers was indicted on October 16, 1989 on sixteen counts of violating 42 U.S.C. Sec. 6928(d)(2)(A) for disposing of sixteen drums of hazardous waste without a permit on or about March 4 or 5, 1989. Sellers was tried January 8 through 11, 1990 in front of a jury. On the issue of guilt or innocence, the jury heard testimony from 14 government witnesses and two defense witnesses. The government witnesses testified about the discovery of the drums, the circumstances surrounding the waste's origin in Port Violet, Louisiana, and the fact that Sellers had been paid $45 per drum to dispose of the waste. In addition, the government called James William Ward (Ward), who testified that he had assisted Sellers in loading the 55-gallon drums in Louisiana and transporting them to Jones County, Mississippi where Ward and Sellers unloaded them. Ward testified that Sellers did not tell him what was in the drums, but did tell Ward that it was flammable. Subsequently, Ward voluntarily came forward and told the police about his involvement in dumping the drums. Testimony by other witnesses established that Sellers did not have a permit as required for disposing of hazardous waste, nor did he take the waste to a licensed disposal area. The government's last witness in its case in chief, Douglas E. Bourgeois (Bourgeois), was allowed to testify over Sellers's objection. Bourgeois testified that he had a conversation with Sellers in late April or sometime in May in which Sellers stated that he had been hauling waste chemicals and discarding them in a rural area outside Petal, Mississippi. During the conversation, Sellers referred to M.E.K., which he knew as a solvent used primarily to clean paint equipment.

The crux of Sellers's defense was that he denied dumping the paint waste in question. He testified that it was Ward alone who had dumped the drums into Camp Branch Creek, although he admitted that his family owned property in Jones County near the site of the dumping.

After deliberation, the jury found Sellers guilty of all sixteen counts of the indictment. On March 14, 1990, Sellers was sentenced to 41 months imprisonment on each count, with the sentences to run concurrently. In addition, Sellers was sentenced to three years of supervised release and was ordered to make restitution to the State of Mississippi of $6,130.70, the amount required to clean up the hazardous waste site. Sellers also received a special assessment of $800. Sellers filed a timely notice of appeal.

II.

On appeal, Sellers makes three challenges to his conviction and sentence. Sellers contends that the district court erred 1) by admitting testimony that he contends is inadmissible under Fed.R.Evid. 403 and 404(b), 2) by failing to give the jury a requested charge regarding the knowledge required to violate Sec. 6928, and 3) by its application of the U.S. Sentencing Guidelines ("Guidelines" or "U.S.S.G.") in calculating Sellers's sentence. We address each contention in turn.

A. Admission of Testimony

Sellers first contends that the district court erred by admitting the testimony of Bourgeois. Sellers claims that Bourgeois testified that sometime in late April or May, 1989 Sellers stated that he was, at that time, hauling chemicals and dumping them outside of Petal, Mississippi. Sellers argues that this evidence was inadmissible under Fed.R.Evid. 403 and 404(b). ¹ We review a trial judge's admission of evidence under an "abuse of discretion" standard. United States v. Williams, 900 F.2d 823, 827 (5th Cir.1990).

Bourgeois's testimony, Sellers argues, fails to meet the two prong test we announced in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc). In Beechum, we articulated the test for when evidence of extrinsic offenses may be admitted. We stated:

First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403.

Sellers argues that Bourgeois's testimony was not relevant to any issue other than the defendant's character because Bourgeois testified that Sellers was hauling and dumping waste chemicals one and one-half to three months after the dumping charged in the indictment, and that Bourgeois did not clearly state the nature of the waste chemicals, or that those chemicals were listed as hazardous under the regulations.

Sellers also argues that the probative value of Bourgeois's testimony was substantially outweighed by the danger of unfair prejudice and confusion of the issues. His sole defense, he argues, was that he did not dump the materials but that his alleged accomplice dumped them. The trial judge, he argues, allowed the evidence to be admitted because it showed that Sellers knew that the charged conduct was illegal and that M.E.K. was a hazardous substance. Sellers argues that the district court made knowledge of these matters a non-issue, however, because it failed to require the jury to find that he knew the materials were hazardous.

Bourgeois's testimony prejudiced Sellers, he contends, because it made him appear to be a habitual waste dumper, when the charged conduct occurred in a single episode. Sellers also argues that because the district court admitted Bourgeois's testimony that we cannot tell whether the jury convicted Sellers of the acts for which he was indicted or for the extrinsic offense that Bourgeois reported. The court instructed the jury that the government must prove guilt of the offenses covered in the indictment, which alleged violations on March 4 or 5, 1989. The court then advised the jury that they were not bound by those dates, but could convict for offenses reasonably close to that date. Sellers argues that the jury might have believed that Sellers did not dump the barrels charged in the indictment and yet nevertheless have convicted him because they thought he was guilty of the activities testified to by Bourgeois.

The district court decided to admit the testimony of Bourgeois because the court viewed the testimony as an admission of Sellers's knowledge of the regulations, of the character and nature of M.E.K., and that M.E.K. is a hazardous material. While it is unclear from the testimony whether Sellers was referring to the charged March 4 dumping in his discussion with Bourgeois, or whether Sellers was referring to another dumping incident, it was admissible in either case. If Sellers was referring to the dumping for which he was charged, his statements would be admissible as an admission under Fed.R.Evid. 801(d)(2).

Even if Sellers was referring to another episode of dumping, the statement would be admissible to establish Sellers's knowledge that he was dumping M.E.K.--an element of a violation of Sec. 6928. Contrary to Sellers's argument, the government still had the burden to establish that Sellers knew that he was dumping waste, as discussed in Part II.B. of this opinion. In addition, this testimony showed that Sellers's dumping of the drums was not a mistake or accident. The probative value of this information to establish these elements outweighed the possible prejudice that would have resulted from the jury's knowledge of a separate dumping of M.E.K. by Sellers. This is not a case where a defendant was convicted by prejudicial evidence of other acts because he appeared to be a habitual offender when the government lacked evidence of the actual incident for which he was charged. Rather, this testimony is admissible either as an admission, or for the permissible purpose of establishing the extent of Sellers's knowledge of his acts. Thus, Sellers's argument is without merit.

B. Jury Charge

Sellers next contends that the district court erred in refusing to give a jury instruction requested by Sellers. In reviewing a challenge to a jury charge, we must determine whether the court's charge, as a whole, was a correct statement of the law. When the complaint is that the trial court refused to give a requested instruction, this court must determine whether this refusal was an abuse of discretion. United States v. Rochester, 898 F.2d 971, 978 (5th Cir.1990). The instruction is reviewed in the context of the trial as a whole to determine whether it correctly reflects the issues and the law. United States v....