US v. Johnson, 92-CR-39A.

• Decision Date: 26 May 1995
• Docket Number: No. 92-CR-39A.,92-CR-39A.
• Citation: 886 F. Supp. 1057
• Parties: UNITED STATES of America v. Richard I. JOHNSON, Sr., Richard I. Johnson, Jr., Joseph Rosinski and Joan Chuba, Defendants.
• Court: U.S. District Court — Western District of New York

886 F. Supp. 1057

UNITED STATES of America v. Richard I. JOHNSON, Sr., Richard I. Johnson, Jr., Joseph Rosinski and Joan Chuba, Defendants.

No. 92-CR-39A.

United States District Court, W.D. New York.

May 26, 1995.

Patrick H. NeMoyer, U.S. Atty. (Martin J. Littlefield, Asst. U.S. Atty., of counsel), Buffalo, NY, for the Government.

Rodney O. Personius, Buffalo, NY, for defendant Johnson, Sr.

Robert L. Boreanaz, Buffalo, NY, for defendant Johnson, Jr.

Mark J. Mahoney, Buffalo, NY, for defendant Rosinski.

David G. Jay, Buffalo, NY, for defendant Chuba.

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on March 11, 1992. Defendants filed motions to dismiss Counts II, III and portions of Count I of the Indictment, and also to suppress evidence seized pursuant to three search warrants.

On August 9, 1994, Magistrate Judge Foschio filed a Report and Recommendation recommending denial of defendants' motions to dismiss Counts II and III and portions of Count I, and denial of defendants' motion to suppress evidence seized pursuant to three search warrants, or for a hearing to defendants' objections to the Magistrate Judge's recommendation that evidence seized pursuant to the three certain search warrants should not be suppressed due to overbreadth, the Court finds, in addition to the reasons cited by the Magistrate Judge, that, under the circumstances, the warrants were sufficiently particular so as not to be overbroad.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the Court denies defendants' motions to dismiss Counts II and II, and portions of Count I; and also denies defendants' motion to suppress evidence seized pursuant to three search warrants, or for a hearing to determine whether the warrant is sustainable under the good faith exception.

IT IS SO ORDERED.

Aug. 9, 1994.

REPORT AND RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Hon. Richard J. Arcara on March 11, 1992 for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to § 636(b)(1)(B). It is currently before the court on the Defendants' motion to dismiss Counts II, III and portions of Count I of the Indictment, and the motion to suppress evidence seized pursuant to three search warrants. The Defendants' motions for pretrial discovery, severance, to strike surplusage, for hearings directed at the search warrants and for inspection of the Grand Jury instructions are addressed in a separate Decision and Order.

BACKGROUND and FACTS

The Defendants are charged, in a twenty-one count Indictment dated February 26, 1991, with violations of 18 U.S.C. §§ 1001 and 2, 42 U.S.C. § 6928(d), and 18 U.S.C. §§ 371, 2, 152, 1341 and 1623. Specifically, Richard I. Johnson, Sr., Richard I. Johnson, Jr. ("the Johnsons"), and Rosinski ("Rosinski") are charged in Count I with conspiracy to violate the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6928(d)(2) and 6928(d)(3), to make false statements to a government agency, specifically the United States Environmental Protection Agency ("EPA") in violation of 18 U.S.C. § 1001, and to willfully defraud the United States. At all times relevant to this Indictment, the Johnsons are alleged to have controlled a business known as Envirotek Ltd. ("Envirotek"), with offices at 849 Delaware Avenue, Buffalo, New York, and a plant/facility at 4000 River Road, Tonawanda, New York. See Indictment, at 4. Envirotek was held out to be a facility authorized to conduct the treatment, storage and disposal ("TSD") of hazardous wastes, and was operating pursuant to "interim status," as it had not been granted final authorization for a permit by either New York State or the EPA. See Indictment, at 4. As an "interim status" facility, Envirotek was permitted to transport, store, and treat hazardous wastes through the proper operation of certain distillation "stills," but not to dispose of them on site. See Indictment, para. 8, at 5. It is also alleged that Envirotek continued to have an excessive number of drums of hazardous waste at its River Road facility, and had entered into a Consent Order with the New York State Department of Environmental Conservation ("DEC") to limit the number of drums at the site, and to cease all "gate receipts" of hazardous wastes until Envirotek made a substantial reduction of such drums on site. See Indictment, para. 11, at 6.

In furtherance of the conspiracy, it is alleged that the Defendants committed several overt acts, as follows: (1) During 1982 and 1983, with the knowledge of the Johnsons, drums of hazardous waste were placed in pits on property adjacent to the River Road facility and covered with fly ash. See Indictment, at 7. (2) During 1984 and 1985, with the knowledge of the Johnsons and Rosinski, employees of Envirotek dumped the contents of drums containing hazardous waste into drains and onto property adjacent to the river Road facility. See Indictment, at 8. (3) Between 1982 and 1988, with the knowledge of the Johnsons, hazardous wastes from Envirotek distillation operations were disposed of directly onto the ground outside the building which housed the stills.¹See Indictment, at 8-9. (4) During 1985, with the knowledge of the Johnsons and Rosinski, hazardous waste was dumped in a warehouse annex at the River Road facility. See Indictment, at 9. (5) During February 1988 and July 1989, with the knowledge of Richard I. Johnson, Jr., hazardous wastes from In & Out Printing, Inc. and Motorola, Inc. were burned by an Envirotek employee. See Indictment, at 10. (6) During the spring of 1987, Rosinski illegally disposed of hazardous wastes by driving a tanker truck with its valve open on property immediately adjacent to the River Road facility. See Indictment, at 10. (7) Between 1982 and 1989, the Johnsons allowed the storage of more drums of hazardous waste at the River Road facility than approved by DEC regulators. See Indictment, at 10. (8) In March 1985 and on or about September 1, 1988, Richard I. Johnson, Sr. filed reports in response to a RCRA Facility Assessment ("RFA"), wherein he stated there had been no releases of hazardous waste from or at the Envirotek facility. See Indictment, at 10. (9) On or about January 24, 1989, Richard I. Johnson, Jr. in response to questions posed by on-site RCRA inspectors, stated that there had been no release of hazardous waste from the Envirotek facility. See Indictment, at 11. (10) On June 16, 1988, Richard I. Johnson, Sr., in a RCRA permit application, attached a lease for the River Road facility and falsely certified that the facility was owned by 4000 River Road Ltd., and that a valid lease existed between 4000 River Road Ltd. and Envirotek. Indictment, at 11.

In Count II, the Johnsons are accused of the illegal disposal of hazardous waste from a still (the "DCI still") from approximately 1984 until 1988. In Count III, the Johnsons are accused of the illegal disposal of contaminated solvent mixtures from another still (the "Brighton still") from approximately 1982 until 1988.

In Count IV, the Johnsons are accused of making false statements to the DEC in an application for a permit for a Treatment, Storage and Disposal ("TSD") facility, a matter within the jurisdiction of the EPA. In Count V, Richard I. Johnson, Sr. is accused of making false statements to the EPA in that he represented, in a RFA, that there had been no release of hazardous wastes or hazardous waste constituents from Envirotek operations. In Count VI, Richard I. Johnson, Jr. is accused of making false oral statements to agents of the EPA. In Count VII, Richard I. Johnson, Jr. is accused of treating hazardous wastes, from In & Out Printing, Inc., without a permit. In Count VIII, Richard I. Johnson, Jr. is accused of making false statements for the purpose of compliance with EPA regulations with regard to the hazardous wastes from In & Out Printing, Inc.

In Count IX, Richard I. Johnson, Jr. is accused of scheming to defraud In & Out Printing, Inc. by use of the United States Postal Service. In Count X, Richard I. Johnson, Sr. is accused of the unauthorized treatment of hazardous wastes from Motorola, Inc. In Count XI, Richard I. Johnson, Jr. is accused of making false statements for the purpose of compliance with EPA regulations with regard to the hazardous wastes from Motorola, Inc. In Count XII, Richard I. Johnson, Jr. is accused of mail fraud with regard to the handling of hazardous wastes from Motorola, Inc. In Counts XIII, XIV and XV, Richard I. Johnson, Jr. is accused of making false statements for the purpose of compliance with EPA regulations.

In Count XVI, the Johnsons and Defendant Chuba are accused of conspiracy to make false oaths in a bankruptcy proceeding, to commit bankruptcy fraud, and to make false declarations before a Grand Jury. In Count XVII, these Defendants are accused of fraudulently concealing property belonging to the bankrupt estate of Envirotek Ltd. In Count XVIII, the Johnsons are accused of withholding information from the bankruptcy trustee, including the total sales generated by Envirotek. In Count XIX, Richard I. Johnson, Jr. is accused of testifying falsely before a United States Grand Jury. In Counts XX and XXI, Richard I. Johnson, Sr. is accused of making a false oath in a bankruptcy proceeding on two separate occasions.

On March 12, 1992, Chuba filed a motion seeking severance. In an order filed March 31, 1992, this court adjourned the motion pending the completion of discovery. On March 25, 1992, Richard I. Johnson, Sr. and Rosinski filed discovery requests and a request for a bill of particulars. The Government filed its response to the discovery requests and a bill of particulars on April 2, 1992. On October 23, 1992, Rosinski filed a motion seeking severance....