United States v. Mathis

• Decision Date: 29 January 2014
• Docket Number: Nos. 12–6256,12–6354.,s. 12–6256
• Citation: 738 F.3d 719
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James MATHIS (12–6256) and Donald Fillers (12–6354), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

738 F.3d 719

UNITED STATES of America, Plaintiff–Appellee,

v.James MATHIS (12–6256) and Donald Fillers (12–6354), Defendants–Appellants.

Nos. 12–6256, 12–6354.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 5, 2013.

Decided and Filed: Dec. 23, 2013.

Rehearing and Rehearing En Banc Denied Jan. 29, 2014.

ARGUED:Robin R. Flores, Chattanooga, Tennessee, for Appellant in 12–6256. Leslie A. Cory, Chattanooga, Tennessee, for Appellant in 12–6354. Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Robin R. Flores, Chattanooga, Tennessee, for Appellant in 12–6256. Leslie A. Cory, Chattanooga, Tennessee, for Appellant in 12–6354. Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, Allen M. Brabender, United States Department of Justice, Washington, D.C., for Appellee.

Before: SILER, COLE, and COOK, Circuit Judges.

OPINION

COLE, Circuit Judge.

After a three-week jury trial, James Mathis and Donald Fillers were convicted of conspiracy, 18 U.S.C. § 371, and violations of the Clean Air Act, 42 U.S.C. § 7413(c). Fillers was also convicted of making a false statement, 18 U.S.C. § 1001(a)(2), and obstruction of justice, 18 U.S.C. § 1519. The district court denied Fillers's motion to suppress and Mathis's and Fillers's motions for a judgment of acquittal. It sentenced Mathis to 18 months' imprisonment and Fillers to 44 months' imprisonment. Mathis and Fillers raise several challenges to their convictions and sentences, but ultimately we affirm.

I. BACKGROUND

Donald Fillers (“Fillers”) and his brother Gary formed Watkins Street Project, LLC, in 2003 to develop an unused factory site in Chattanooga, Tennessee. They planned to demolish the factory and sell the salvageable materials, but they knew the site contained asbestos. Asbestos is a fibrous mineral formerly used as insulation,and some forms of asbestos crumble and release microscopic fibers into the air when disturbed. Inhalation of asbestos fibers can cause fatal and debilitating illnesses.

The Clean Air Act lists asbestos as a hazardous pollutant, and the Environmental Protection Agency has developed work-practice standards for the demolition of buildings that contain asbestos. The standards require the removal of all asbestos before any demolition that would dislodge the material. These standards also specify removal procedures. For example, asbestos materials must be wetted before removal, lowered to the ground rather than dropped, labeled, and disposed of at a site authorized to accept asbestos. Owners and operators of demolition activities must also give notice, including a description of the location and amount of asbestos, to the EPA ten days before demolition. The Clean Air Act makes it a crime for individuals to violate these standards.

Gary hired Alternative Actions, Inc., a certified asbestos surveying company, to estimate the amount of asbestos at the factory site and the cost of removal. The survey revealed a large amount of duct, pipe, and equipment insulation containing asbestos. Alternative Actions estimated that it would cost $214,650 to remove the contaminated material safely.

Fillers then hired Mathis Companies, Inc., a demolition company owned by James Mathis, to tear down the factory in exchange for some of the salvageable materials. Mathis was also required to use a certified contractor to remove the asbestos. Mathis requested a bid from SCI Remediation, which toured the site, reviewed the Alternative Actions survey, and estimated that it would cost $129,250 to remove the asbestos. Fillers believed that the removal could be done for much less—about $20,000 total—so he rejected the SCI bid and told Mathis that Watkins Street would find a different asbestos-removal company.

Fillers asked two other asbestos-removal companies to submit estimates. He provided the Alternative Actions survey to one company, which returned a bid of $126,542. Fillers provided an incomplete version of the survey to the other company, which ultimately decided not to bid. Gary then contacted ADC Systems, an asbestos-removal company managed by Halbert Warden and his father. Fillers told ADC that no asbestos survey had been prepared. Based on an “initial walk through,” ADC estimated the cost of removal at $28,900, and the Fillers brothers accepted the bid.

In August 2004, Mathis visited the Chattanooga–Hamilton County Air Pollution Control Bureau to submit the 10–day notice and permit application for demolition. The Bureau works with the EPA to enforce the Clean Air Act in Chattanooga. The estimated amount of asbestos in the notice was far less than in the Alternative Actions survey. Kathy Jones, the Bureau's air monitoring manager and asbestos coordinator, accepted the notice from Mathis and later contacted Fillers to verify the amount of asbestos and request a copy of the survey. Fillers did not send the survey, but instead provided a revised asbestos estimate that was still far less than the survey's estimate. Jones approved the application and sent permits to Warden, Mathis, and Gary.

ADC began removing the asbestos. ADC's initial contract was limited to the factory's boiler room, but Warden noticed “mass bunches of asbestos” outside the ADC work area. Warden mentioned the additional asbestos to Gary, and Watkins Street increased the scope of ADC's work order. This change, however, still did not cover all the asbestos at the site: Warden later testified that ADC removed “[m]aybe, like, 1/100th” of the asbestos listed in the Alternative Actions survey. After finishing the work they were authorized to perform, ADC left the site.

Watkins Street hired temporary laborers to remove debris and salvage materials from the site. These workers were not equipped with protective gear or trained to remove asbestos. Fillers helped supervise the team, which did not take special precautions with material (such as insulation) that likely contained asbestos. The workers used power tools to cut through pipes that were wrapped in insulation, threw debris out of windows so that it fell to the ground, removed insulation by hand, and otherwise disposed of insulation without wetting, containerizing, or labeling it.

Mathis and his company would then demolish each section the salvage team cleared. The salvage team worked in the afternoons and at night; the demolition team worked in the mornings. Mathis knew, however, that the salvage team was improperly removing asbestos because Warden told him as much when he returned to the site after ADC had finished its work. During this visit, Warden pointed out loose materials containing asbestos strewn about the site. Mathis replied, “Halbert, Don is not going to pay for anything else.” Warden later visited the site two more times, each time telling Mathis that there was asbestos “all over the ground.” Mathis responded that Fillers would not pay for further asbestos removal and that he was tired of arguing with Fillers about it. Mathis then continued demolishing the factory.

The demolition and salvage teams' work dispersed dust throughout much of the site and surrounding neighborhood. An employee of a nearby daycare facility later testified that the air in the area was so contaminated that the children at the daycare were unable to play outside.

In September 2005, an investigator from the Air Pollution Control Bureau, John Schultz, observed the site during a routine patrol. He later testified that the site “looked like a bomb had gone off,” and that there were “debris piles over the entire city block.” Because of disagreements between Mathis and Fillers, no one had worked on the site for at least a month. There were no signs, fences, or security guards to keep the public off of the site. Schultz thought the debris contained asbestos, so he briefly explored the demolition area. He returned the next day with Kathy Jones, who reported that “[t]he site appeared to be littered with suspect asbestos-containing materials.” They collected samples of the materials, which later tested positive for asbestos.

The Bureau then contacted the EPA, which sent an emergency response coordinator to the site. The EPA coordinator declared the site an imminent threat to human health and the environment and ordered Watkins Street to clean up the debris using a certified asbestos-removal company. Watkins Street completed the cleanup in October 2005.

The United States charged Mathis and Fillers, among others, with conspiracy to defraud the United States and to violate the Clean Air Act (count 1), substantive violations of the Clean Air Act (counts 2–4), and making false statements (counts 8 and 9). The United States also charged Fillers with other substantive violations of the Clean Air Act (counts 5–7) and obstruction of justice (count 11).

A jury convicted Mathis of conspiracy and two substantive violations of the Act: failure to file an accurate 10–day notice, and commencement of demolition prior to removing asbestos from the site. After a week-long sentencing hearing, the district court determined that Mathis's guidelines range was 27–33 months. The court sentenced Mathis to 18 months' imprisonment.

The jury convicted Fillers of conspiracy, six substantive violations of the Act, making false statements, and obstruction of justice. The substantive violations included the notice and removal violations, as well as failure to have present an individual trained in the work-practice standards during demolition, failure to wet the material containing asbestos during removal, failure to lower the material properly, and failure to containerize and timely dispose of the material. The district court determined that Fillers's guidelines range was 46–57 months, and it sentenced him to 44 months' imprisonment.

Mathis and Fillers now challenge their respective convictions and sentences. We have jurisdiction to hear the appeal under 28 U.S.C. §§ 1291 and 3742.

II. ANALYSIS

Fillers attacks his convictions...