United States v. Exec. Recycling, Inc.

• Decision Date: 21 May 2013
• Docket Number: Criminal Case No. 11–cr–00376–WJM.
• Citation: 946 F.Supp.2d 1130
• Parties: UNITED STATES of America, Plaintiff, v. EXECUTIVE RECYCLING, INC., Brandon Richter, and Tor Olson, Defendants.
• Court: U.S. District Court — District of Colorado

946 F.Supp.2d 1130

UNITED STATES of America, Plaintiff,

v.EXECUTIVE RECYCLING, INC., Brandon Richter, and Tor Olson, Defendants.

Criminal Case No. 11–cr–00376–WJM.

United States District Court,

D. Colorado.

May 21, 2013.

Lillian Louisa Alves, Robert Mark Russel, Suneeta Hazra, Tonya Shotwell Andrews, Valeria Neale Spencer, U.S. Attorney's Office, Denver, CO, for Plaintiff.

Cleo J. Rauchway, Pamela Robillard Mackey, Haddon, Morgan & Foreman, P.C., Denver, CO, for Defendants.

ORDER ON DEFENDANTS TOR OLSON'S AND BRANDON RICHTER'S MOTIONS FOR NEW TRIAL

WILLIAM J. MARTÍNEZ, District Judge.

In this action, the Government charges Defendants Executive Recycling, Brandon Richter, and Tor Olson with eleven counts of wire fraud (18 U.S.C. § 1343), two counts of mail fraud (18 U.S.C. § 1341), one count of a violation of the Resource Conservation and Recovery Act (“RCRA”) (42 U.S.C. § 6928(d)(4) and 6 C.C.R. 1007–3:262.53), one count of smuggling (18 U.S.C. § 554), and one count of obstruction of justice (18 U.S.C. § 1519). (ECF No. 1.) In summary form, the Government charged that Defendants (1) falsely represented to various businesses and government entities in Colorado that Defendants would dispose of the entities' electronic waste in an environmentally friendly manner and in compliance with all applicable local, state, and federal laws and regulations (Counts 1–13, hereafter referred to as the “Fraud Counts”); (2) illegally transported and exported a shipment of electronic waste that included cathode ray tubes (“CRTs”) containing lead (Counts 14–15, hereafter the “Exportation Counts”); and (3) destroyed evidence with the intent to impede the Government's investigation of them (Count 16). ( Id.)

After ten days of hearing evidence and three days of deliberation, the jury returned a mixed verdict. Defendant Brandon Richter was convicted on nine of sixteen counts (ECF No. 271–16) and Defendant Tor Olson was convicted on eight of sixteen counts (ECF No. 271–17). Both Defendants were convicted on seven Fraud Counts and one Exportation Count. Defendant Richter was convicted on Count 16 while Defendant Olson was acquitted on this count.

Before the Court are Defendant Richter's Motion for New Trial (ECF No. 279) and Defendant Olson's Motion for a New Trial (ECF No. 278) (together “Motions”). For the reasons set forth below, the Motions are denied.

I. LEGAL STANDARD

Rule 33(a) of the Federal Rules of Criminal Procedure provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). “[I]n deciding a motion for new trial, the court may weigh the evidence and consider the credibility of witnesses in determining whether the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.” United States v. Evans, 42 F.3d 586, 593 (10th Cir.1994) (quotation marks and citation omitted). “The Court's broad discretion empowers it to grant relief based not only on the sufficiency vel non of the evidence at trial but on any other circumstance that might render the trial ‘essentially unfair,’ including trial errors.” United States v. D'Amelio, 636 F.Supp.2d 234, 238 (S.D.N.Y.2009).

However, “[d]istrict courts view motions for new trials with disfavor.” United States v. Lamy, 521 F.3d 1257, 1266 (10th Cir.2008). “[A] litigant is entitled to a fair trial but not a perfect one, for there are no perfect trials.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (alteration, internal quotation marks, and citation omitted). “The jury's verdict must be allowed to stand unless the evidence weighs heavily enough against the verdict such that a miscarriage of justice may have occurred.” United States v. Sturdivant, 513 F.3d 795, 802 (8th Cir.2008) (“[T]he authority to grant a new trial should be exercised sparingly and with caution.”); see also Richins v. Deere & Co., 231 F.R.D. 623, 625 (D.N.M.2004) (an “alleged error by the trial court constitutes grounds for granting a new trial only where the trial court concludes that, absent the alleged error, a jury would likely have reached a contrary result.”).

II. ANALYSIS

Richter's Motion raises two alleged errors: (1) the Court's denial of counsel's mid-trial oral Motion to Withdraw; and (2) the Court's jury instruction on the definition of “waste”. (ECF No. 279.) Olson's Motion raises four alleged errors: (1) the Court's “waste” instruction; (2) admission of improper expert testimony; (3) failure to give two instructions requested by Defendants; and (4) the Court's ruling on two evidentiary issues. (ECF No. 279.) The Court will address each issue in turn below. Because the parties and the Court are intimately familiar with the factual and procedural history of this case, the Court will limit its discussion of the background to only that necessary for the instant analysis.

A. Mr. Richter's Counsel's Mid–Trial Motion to Withdraw

On December 9, 2012, the Sunday after the first full week of the jury trial of this matter, counsel for Brandon Richter filed a Motion to Withdraw. (ECF No. 250.) The Motion was premised on an alleged conflict between Mr. Richter's counsel's obligations to provide zealous representation for Mr. Richter and her obligations under a Joint Defense Agreement (“JDA”) which she had entered into with Mr. Olson's counsel. ( Id.)

The Court held argument on the Motion to Withdraw at the end of the sixth day of trial, December 10, 2012, and the Government filed its written opposition to the motion that evening. (ECF Nos. 256–57.) On the morning of the seventh day of trial, December 11, 2012, the Court held additional argument on the Motion to Withdraw and thereafter orally denied the Motion. (ECF No. 261.) The same afternoon, the Court issued a written order setting forth its basis for denying the Motion. (ECF No. 258.) The Court held that counsel had failed to show an actual conflict of interest and that the balance of the equities weighed in favor of denying the Motion to Withdraw. ( Id.)

In Mr. Richter's Motion for New Trial, he contends that the Court's denial of the Motion to Withdraw was error and that such error was so significant as to have denied him a fair trial. (ECF No. 279 at 3–5.) Richter asks that the Court grant him a new trial where he can be represented by conflict-free counsel. ( Id. at 5.)

The instant Motion raises no new arguments; it simply reiterates the same arguments previously raised during trial. The Court has reviewed the fourteen page written order denying the Motion to Withdraw that it issued on December 11, 2012 and sees no reason to reconsider its ruling or the bases set forth therein. Additionally, because Richter does not raise any new arguments here, the Court finds that further discussion is unnecessary. Rather, the Court incorporates herein its reasoning and findings set forth in its December 11, 2012 Order Denying Counsel for Executive Recycling and Brandon Richter's Motion to Withdraw. 908 F.Supp.2d 1156 (D.Colo.2012).

Mr. Richter's Motion for New Trial is denied to the extent it seeks a new trial based on any alleged conflict with his counsel.

B. Evidentiary Issues

Defendant Olson argues that the Court made at least three errors with respect to evidentiary issues during the trial: (1) admission of Exhibit 515; (2) failure to admit prior statements of Tor Olson; and (3) permitting the Government to call Edward Smith as a rebuttal witness. The Court will address each of these arguments below.

1. Exhibit 515

The Indictment in this case stated that Executive Recycling “appeared as the exporter of record in over 300 exports from the United States between 2005 and 2008”. (ECF No. 1 ¶ 6.) This allegation was based on hundreds of Shipper's Export Declarations (“SED”) that had been filed with the Department of Commerce and which listed Executive Recycling as the “U.S. Principal Party in Interest”. ( See ECF No. 131–1.)

Before the jury was brought in on the fifth day of trial, the Court heard argument about the admission of Exhibit 515, a summary chart prepared by the Government based on the information contained in the SEDs ¹ and which the Government sought to admit pursuant to Federal Rule of Evidence 1006. Exhibit 515 listed Executive Recycling as the “exporter” of a number of shipments. The Government sought to admit Exhibit 515 based on the testimony of Omari Wooden, an employee at the United States Census Bureau. Defendants objected to admission of Exhibit 515 on the basis that the SEDs contained double hearsay and were not reliable. The Court overruled the objection and read a limiting instruction ² before Exhibit 515 was shown to the jury.

Defendant Olson now argues that admission of Exhibit 515 was error because the SEDs which formed the basis for this summary exhibit were not themselves admissible as they contained double hearsay. (ECF No. 278 at 12.) “Double hearsay in the context of a business record exists when the record is prepared by an employee with information supplied by another person.” United States v. Gwathney, 465 F.3d 1133, 1141 (10th Cir.2006). At trial, it was undisputed that the information in the SEDs was entered into to the United States Customs Service's online Automated Export System by an entity other than Executive Recycling. Thus, it was undisputed that the SEDs contain double hearsay.

If the person who provides the information contained in a record is an outsider to the business and is not under a business duty to provide accurate information, then the reliability rationale that underlies the business records exception ordinarily does not apply. See United States v. Ary, 518 F.3d 775, 787 (10th Cir.2008) (“The essential component of the business records exception is that each actor in the chain of information is under a business duty or compulsion to provide accurate information. If any person in the process is not acting in...