United States v. El-Sherif
| Decision Date | 26 July 2018 |
| Docket Number | Case No. 17-20006-01-JAR |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. AHMED EL-SHERIF, Defendant. |
| Court | U.S. District Court — District of Kansas |
Defendant Ahmed El-Sherif was charged in a two-count Indictment with knowingly storing hazardous waste without a permit from March 2012 through October 2013, in violation of 42 U.S.C. § 6928(d)(2)(A), and obstruction of an agency proceeding, in violation of 18 U.S.C. § 1505. This case was tried to the Court beginning on February 1, 2018. This decision represents the Court's findings of fact and conclusions of law. As described more fully below, the Court finds Defendant guilty of Count 1 and not guilty of Count 2.
Before proceeding to the Court's findings of fact, the Court must resolve several evidentiary issues that remain following trial. These include a continuing objection under Federal Rule of Evidence 404(b) to evidence concerning radiation licensure issues that arose before the relevant period in the Indictment, a motion by Defendant in opposition to the testimony of the Government's proposed experts, and testimony of other witnesses regarding radiological testing, an inspection of an attic area at Defendant's business, and tax documents for Beta Chem (Defendant's laboratory). The Court addresses each issue in turn.
The Indictment charges Defendant with a violation of the Resource Conservation and Recovery Act ("RCRA") occurring from March 2012 through October 2013. At trial, the Government sought to admit evidence regarding issues Defendant had with his Kansas radiation materials license beginning in 2005. This evidence included testimony and video regarding site visits by the Kansas Department of Health and Environment ("KDHE") made to Defendant's laboratory, letters and orders from the KDHE directed to Defendant, and an application by Defendant for a renewed radioactive materials license.1 The Government also presented evidence regarding a prior investigation of Defendant's laboratory under RCRA.2 The Court admitted much of this evidence subject to Defendant's continuing objection under Fed. R. Evid. 404(b) and his continuing objection to relevance under Fed. R. Evid. 401 and 402. The Court now memorializes its rulings on Defendant's continuing objections below.
Rule 404(b) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Evidence of prior crimes or other bad acts of a defendant may, however, be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, or knowledge, but the prosecutor must give notice to the defendant before trial of the prosecutor's intent to use this evidence.3 Defendant argues that evidence of these earlier radioactive licensing issues constitutes Rule 404(b) evidence, and that this evidence is inadmissible because the Government did not provide notice to Defendant, as required by Rule 404(b).
Rule 404(b) evidence only limits evidence of "'other' crimes—those extrinsic to the charged crime."4 The Rule does not limit "intrinsic evidence," that is, "evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime."5 Evidence is intrinsic, and thus not subject to Rule 404(b), "when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged."6
The Court finds that evidence related to KDHE radiological surveys and radiation licensing issues that predate 2012 through 2013 are not subject to the requirements of Rule 404(b). As explained below, the KDHE performed the initial radiological survey at Beta Chem in 2005, which revealed widespread radiation contamination in the facility.7 This set off a series of events regarding Defendant's radiation materials license, including additional radiological surveys at Beta Chem, communications and a consent agreement between the KDHE and Defendant, orders of suspension and revocation, and ultimately the seizure of Beta Chem in 2013 because the radiation contamination had not been remediated.
One of the Government's primary arguments as to why the chemicals at issue in this case were waste is that the chemicals, and/or the containers they were stored in, had long been contaminated. Thus, evidence beginning in 2005 of the evolution of these radiation contamination issues is "essential to the context of the crime."8 Furthermore, as explained above, the radiation contamination issues that the KDHE identified in 2005 had not been resolved by the relevant period in the Indictment. The radiological issues that predate 2012 and 2013 are not a series of separate events that were cut off by remediation of the contamination, but instead are part of an unbroken chain of events that culminated in the Beta Chem facility being radiologically contaminated in 2012 and 2013. Therefore, the Court finds that evidence of these prior radiological issues is "inextricably intertwined" with evidence that the facility was contaminated during the relevant period in the Indictment. Accordingly, the Court overrules Defendant's continuing Rule 404(b) objection to this evidence.
Defendant also objects to evidence of past radiological contamination issues on relevance grounds.9 For the reasons explained above, the Court finds that this evidence is relevant to the issue of whether the chemicals at issue in this case were wastes during the relevant period in the Indictment. The Court therefore overrules Defendant's continuing objection based on relevance.
Defendant also objected at trial to evidence regarding communications that Kevin Snowden, a RCRA compliance officer at the United States Environmental Protection Agency ("EPA"), had with Defendant following an inspection of Beta Chem under RCRA in 2005.10 Defendant argues that these communications constitute Rule 404(b) evidence, and that they are inadmissible because the Government did not provide notice as required under Rule 404(b). The Court agrees that evidence of Defendant's acts and communications related to the prior RCRA inspection are subject to Rule 404(b). The prior RCRA investigation commenced in 2005 and ended in 2006. Thus, unlike the prior radiological inspections and investigation, which continued throughout the period in the Indictment, the results of the 2005 RCRA investigation and Defendant's acts and communications in relation to this investigation are not intrinsic to the RCRA violation at issue in this case. The Court therefore sustains Defendant's Rule 404(b) objection as it relates to Defendant's communicative acts related to the 2005 RCRA investigation.11 The Court will, however, consider evidence of communications by the EPA officials to Defendant regarding RCRA.
Before trial, Defendant filed a motion to limit the testimony of three of the Government's proposed experts: Dr. Richard Helmich, Dr. Edwin Buckner, and Douglas Ferguson.12 Defendant argued that (1) Dr. Helmich should not be able to testify about whether Defendant followed "good laboratory practices," (2) Dr. Buckner should not be allowed to testify regarding legal standards or elements under RCRA, and (3) Ferguson should not be permitted to testify about how Defendant's failure to properly contain volatile organic materials contaminated by radiation contributed to the significant levels of radiation contamination documented at Beta Chem, or about the challenges the EPA faced in properly disposing of contaminated hazardous waste.13 The Court initially considered Defendant's motion at a limine hearing on January 12, 2018. The Court granted the motion as it related to Dr. Buckner, and took the remainder under advisement.
At trial, the Court allowed Dr. Helmich to testify over Defendant's continuing objection regarding Defendant's laboratory practices based on photographs Dr. Helmich reviewed, and Dr. Helmich's opinions regarding whether these were good laboratory practices. After explaining that it was taking the scope of his testimony under advisement, the Court recognized Dr. Helmich as an expert in chemistry, good laboratory practices, and the storage of hazardous chemicals.14 Dr. Helmich testified specifically to certain laboratory conditions and storage practices he observed in photographs, including chemicals being stored in a fume hood work space, chemical containers being stored on their sides, the use of parafilm—a film similar to Saran wrap—as a lid, and storage of chemical containers in filing cabinets. Dr. Helmich expressed opinions on what he considers good laboratory practices, and how Beta Chem's storage methods failed to comply with these practices.
Having reviewed Dr. Helmich's testimony, the Court finds that his opinion testimony as to whether Defendant generally followed good laboratory practices is not relevant to the RCRA charge in Count 1. Therefore, the Court grants Defendant's motion as it relates to Dr. Helmich's opinion testimony on good laboratory practices. The Court will, however, consider Dr. Helmich's factual testimony and other evidence related to Defendant's storage methods. The manner in which Defendant stored chemicals and chemical containers is relevant to whether the chemicals were stored as waste under RCRA.
Ferguson testified to several issues related to the radiological inspections at Beta Chem and the Superfund15 removal action in 2014. Specifically, he testified that he performed a radiological survey on September 23, 2005, in which he observed elevated radiological contamination throughout the Beta Chem facility. Ferguson also testified about the cost of...
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