United States v. Pruett

• Citation: 681 F.3d 232,74 ERC 1641,88 Fed. R. Evid. Serv. 508
• Decision Date: 15 May 2012
• Docket Number: No. 11–30572.,11–30572.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. J. Jeffrey PRUETT; Louisiana Land & Water Company; LWC Management Company, Incorporated, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

681 F.3d 232

74 ERC 1641

88 Fed. R. Evid. Serv. 508

UNITED STATES of America, Plaintiff–Appellee,

v.J. Jeffrey PRUETT; Louisiana Land & Water Company; LWC Management Company, Incorporated, Defendants–Appellants.

No. 11–30572.

United States Court of Appeals,Fifth Circuit.

May 15, 2012.

Josette Louise Cassiere, Asst. U.S. Atty. (argued), Earl M. Campbell, Shreveport, LA, John Luther Smeltzer, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Thomas C. Walsh, Jr., Alexandria, LA, for Plaintiff–Appellee.

Michael Allyn Stroud (argued), Wiener, Weiss & Madison, A.P.C., Shreveport, LA, for Defendants–Appellants.

Appeals from the United States District Court for the Western District of Louisiana.

Before KING, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:

Defendants–Appellants J. Jeffrey Pruett, Louisiana Land & Water Co., and LWC Management, who own and operate numerous wastewater treatment facilities, were charged with knowingly violating the Clean Water Act. After a ten-day trial, Defendants–Appellants were convicted on multiple counts. They now appeal their convictions and sentences. For the reasons stated herein, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant–Appellant J. Jeffrey Pruett (“Pruett”) was the president and chief executive officer of Defendants–Appellants Louisiana Land & Water Co. (“LLWC”) and LWC Management Co., Inc. (“LWC Management”). Pruett, through LLWC and LWC Management, was responsible for the operation of twenty-eight wastewater treatment facilities in northern Louisiana.

Pruett's facilities treated and discharged wastewater, known as “effluent.” Under the Clean Water Act (“CWA”), 33 U.S.C. § 1342, Pruett was required to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for each wastewater treatment facility that he operated. Pruett obtained the required permits through the Louisiana Department of Environmental Quality (“LDEQ”), which administers the NPDES program in Louisiana. Among other things, the NPDES permits imposed “effluent limitations” on the discharge of certain pollutants from treatment facilities. Pruett was required to collect samples to ensure that effluent discharges from his facilities were within permit limits, and to regularly submit the test results, called Discharge Monitoring Reports, to the LDEQ. Pruett was also required to maintain detailed records of his monitoring activities and provide inspectors access to his records.

In November 2007, the Environmental Protection Agency (“EPA”) and the LDEQ began a series of inspections at Pruett's facilities. Inspectors discovered violations at many of these facilities, six of which are at issue here: (1) Bayou Galion, (2) Charmingdale, (3) Donovan Woods and Daywood, (4) Fleetwood Park, (5) Love Estates, and (6) Pine Bayou. After discovering these violations, the government initiated a criminal prosecution against Pruett, LLWC, and LWC Management. The seventeen-count indictment charged four broad categories of offenses, all in violation of 33 U.S.C. §§ 1311(a), 1342, and 1319(c)(2)(A): (1) failure to provide proper operation and maintenance of the facilities; (2) failure to maintain monitoring results as required by the permits; (3) discharge in excess of effluent limitations; and (4) unpermitted discharge. Several counts were dismissed on the government's motion.

Following a ten-day trial during which the government presented twenty witnesses, the jury was instructed that for each offense it could return a verdict of (1) guilty of a knowing violation (a felony), (2) guilty of a negligent violation (a misdemeanor), or (3) not guilty. The jury returned the following verdict: (1) a guilty verdict against all Appellants for a knowing violation of effluent limitations at Love Estates (Count 13), (2) a guilty verdict against Pruett and LLWC for a knowing violation of the record keeping requirement at all facilities (Counts 2, 5, 8, 11, 12, and 15), and (3) a guilty verdict against Pruett for a negligent violation of operation and maintenance requirements at Pine Bayou (Count 14). The Appellants were acquitted on all remaining counts.

Pruett was sentenced to twenty-one months incarceration on the felony convictions and twelve months on the misdemeanor conviction, to run concurrently, and a fine of $310,000. LLWC was fined $300,000 and LWC Management was fined $240,000, with the fines imposed on a joint and several basis against all Appellants. This appeal followed.

II. DISCUSSION

Appellants challenge the sufficiency of the evidence, the jury instruction on negligence, certain evidentiary rulings, and the mid-trial dismissal of a juror. They also appeal the sentences imposed by the district court. We address each issue in turn.

A. Sufficiency of the Evidence1. Standard of Review

As Appellants properly moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, they preserved their sufficiency of the evidence claim for appellate review. We review Appellants' challenge de novo. See United States v. Ollison, 555 F.3d 152, 158 (5th Cir.2009). In assessing a challenge to the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). “When there is a conflict over testimony, the court will defer to the fact finder's resolution with respect to the weight and credibility of the evidence. To be sufficient, the evidence need not exclude every reasonable hypothesis of innocence, so long as the totality of the evidence permits a conclusion of guilt beyond a reasonable doubt.” United States v. Hicks, 389 F.3d 514, 533 (5th Cir.2004) (citations omitted).

2. Sufficiency of Evidence to Support Felony Convictions

Under the CWA, the “discharge of any pollutant by any person shall be unlawful,” except when, inter alia, that discharge is in compliance with the permitting requirements of § 1342. See 33 U.S.C. § 1311(a). Section 1319 prescribes both civil and criminal penalties for violations of these requirements. Criminal penalties are divided into “[n]egligent violations” (misdemeanors) and “[k]nowing violations” (felonies). 33 U.S.C. § 1319(c)(1)(A),¹(c)(2)(A).²

Appellants appeal their felony convictions with respect to certain effluent and record keeping violations. We find that the government presented sufficient evidence to support the convictions.

i. Effluent Violations

Appellants appeal their felony convictions with respect to Count 13, which alleged that from May 2005 to August 2008, Appellants knowingly discharged pollutants at the Love Estates treatment facility in excess of effluent limitations set forth in their NPDES permit. On appeal, they concede that the government produced sufficient evidence to prove that the violations occurred, but argue that the government did not produce sufficient evidence of their intent. The government responds that it demonstrated the requisite intent through “the near constancy and extended duration of the Love Estates violations” over a four-year period.

In general, “[t]he intent necessary to support a conviction can be demonstrated by direct or circumstantial evidence that allows an inference of unlawful intent, and not every hypothesis of innocence need be excluded.” United States v. Aggarwal, 17 F.3d 737, 740 (5th Cir.1994). Prior acts may be introduced to prove intent. Fed.R.Evid. 404(b); see United States v. El–Mezain, 664 F.3d 467, 549–50 (5th Cir.2011). In United States v. Greuling, No. 95–50705, 1996 WL 460109 (5th Cir. Aug.1, 1996), we found sufficient evidence to support a factory owner's conviction under 33 U.S.C. § 1319(c)(2)(A) for knowingly discharging pollutants into a city sewer system. There, the government had presented evidence of Greuling's substantial experience in the industry, his knowledge of inadequate factory conditions, the repeated citations and reports of excess discharges at the factory, and his failure to allocate money to repair the factory. Id. at *2–3. Similar evidence exists here. Pruett worked in the industry since 1986 and was familiar with his permit obligations. The government presented evidence demonstrating that the effluent violations at Love Estates were constant up to and including the period charged in the indictment (a period of approximately four years).³ At some points, the discharges at Love Estates were double or triple the levels allowed by the permit. The government also introduced testimony from an inspector that Pruett had installed an unorthodox makeshift measure (an old rail car) at the Love Estates facility, even though Pruett knew that the rail car was not authorized for water treatment purposes.

In light of this evidence, which we must view in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that Appellants knowingly violated the permit limitations at Love Estates. Therefore, there was sufficient evidence to support the Appellants' convictions on Count 13.

ii. Records Violations

Pruett and LLWC also challenge the sufficiency of the evidence with respect to Counts 2, 5, 8, 11, 12, and 15, which alleged violations of record keeping requirements. We find sufficient evidence to support the convictions.

Under 33 U.S.C. § 1319(c)(2)(A), it is a felony to knowingly violate “any permit condition or limitation implementing” the CWA. Among other things, Pruett's NPDES permits required him to ensure that

[inspectors] [h]ave access to and copy, at reasonable times, any records that the department or its authorized representative determines are necessary for the enforcement of this permit. For records maintained in either a central or private office that is open only during normal office hours and is closed at...