USA. v. Pearson, PLAINTIFF-APPELLEE

• Citation: 274 F.3d 1225
• Decision Date: 18 December 2001
• Docket Number: No. 00-30086,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-30086
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. THOMAS PEARSON,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1225

274 F.3d 1225 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. THOMAS PEARSON, DEFENDANT-APPELLANT.

No. 00-30086

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 9, 2001

Filed December 18, 2001

[Copyrighted Material Omitted]

David B. Adler, Seattle, Washington, for the defendant-appellant.

Katrina C. Pflaumer, United States Attorney, Seattle, Washington, and Helen J. Brunner, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding D.C. No. CR-99-00048-02-R

Before: M. Margaret McKeown, William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges.

Rawlinson, Circuit Judge.

Appellant, Thomas Pearson ("Pearson"), was convicted of violating criminal provisions of the Clean Air Act ("CAA"), 42 U.S.C. §§§§ 7412 (f)(4) and (h), and 7413 (c)(1). Pearson appeals his conviction on several grounds. First, he contends the district court improperly instructed the jury regarding the elements of the charged offense. Next, Pearson asserts the district court prohibited him from presenting a defense by improperly sustaining objections to his testimony during direct examination. Finally, Pearson challenges the sentencing enhancements applied pursuant to §§§§ 2Q1.2(b)(1)(B) and 2Q1.2(b)(2) of the United States Sentencing Guidelines ("U.S.S.G.").

We affirm the district court's rulings.

FACTUAL BACKGROUND

In 1995, the Navy embarked on a project to remove asbestos-containing material, as part of an upgrade and renovation of the Central Heating Plant at the Whidbey Island Naval Air Station. The Navy contracted with Metcalf Grimm to carry out the renovations. Metcalf Grimm, in turn, subcontracted with Environmental Maintenance Service, Inc. ("EMS") to conduct both the asbestos abatement and the demolition work.

Work on the project took place in three phases, only the third of which is relevant to this appeal.¹ The third phase of the project involved the removal of asbestos from the main part of the boiler house, including the removal of asbestos from the boilers and associated equipment. While the project was being performed, a containment structure constructed from plastic sheeting was placed around the area designated for asbestos removal. The purpose of the containment structure is to prevent the release of asbestos fibers to the outside air. This goal is further accomplished by using negative air machines to create lower pressure within the containment area, thereby preventing the release of air from the containment area. Inside the containment area, asbestos removal was performed by workers with respiratory protection.

Asbestos work practice regulations promulgated pursuant to the CAA require that asbestos be adequately wet before removal. 40 C.F.R. §§ 61.141. The regulations also govern the proper handling of asbestos during its removal. See id.

Around June 17, 1996, Pearson was hired by EMS, in part because he was a certified asbestos supervisor. Witnesses testified at trial that Pearson was their supervisor for the entire period he worked on the project. According to witnesses, Pearson performed functions such as correcting time cards, instructing others on how much water to use, and conducting daily meetings to give instructions to the crew.

Pearson was charged with two counts of knowingly causing the removal of asbestos-containing materials without complying with the applicable work practice standards, in violation of the CAA, 42 U.S.C. §§§§ 7412(f)(4) and (h), and 7413 (c)(1). Each count carries a statutory maximum penalty of five years imprisonment. 42 U.S.C. §§ 7413(c)(1).

During trial, testimony was presented that the work practice standards were not followed, at Pearson's direction. Less than the appropriate amount of water was used to wet the asbestos. Additionally, dry asbestos was "all over the place." Containment walls were pulled away from the ceiling, with work continuing. Some of the negative air machines were clogged, and one Navy inspector testified that she saw bags of asbestos outside the containment area, with asbestos material on the exterior surface of the bags.

Pearson's defense was that he was not involved at any time with the removal of asbestos, either as a supervisor or as a worker. He asserted that he was only involved with the demolition phase of the project. Pearson was acquitted of Count 1 and convicted of Count 2, with the jury specifically finding that Pearson acted in a supervisory capacity.

Prior to sentencing, both Pearson and the Government submitted extensive memoranda to the court. At the sentencing hearing, the district court entertained a one-hour presentation from Pearson's counsel.

U.S.S.G. §§ 2Q1.2 sets a base offense level of 8 for a conviction under 42 U.S.C. §§ 7413. The district court applied a four-level enhancement under §§ 2Q1.2(b)(1)(B) for discharging hazardous materials into the environment, and a nine-level enhancement under U.S.S.G. §§ 2Q1.2(b)(2), for causing a risk of death or serious bodily injury. Finally, the district court applied a two-level enhancement under U.S.S.G. §§ 3B.1 for defendant's leadership role in the offense, and refused to grant a two-level reduction under U.S.S.G. §§ 3E1.1 for acceptance of responsibility. These calculations resulted in an adjusted offense level of 23.

The district court then applied three separate downward departures: (1) a two-level downward departure under Application Note 5 to U.S.S.G. §§ 2Q1.2 (degree of harm); (2) a five-level departure under Application Note 6 (degree of risk); and (3) a four-level departure for aberrant behavior. These departures resulted in a total offense level of 12, with a sentencing range of 10 to 16 months. Pearson was sentenced to 10 months incarceration to be followed by a three-year period of supervised release.

DISCUSSION

The CAA was passed to protect and enhance the quality of the Nation's air resources. 42 U.S.C. §§ 7401(b) (1995). To accomplish this goal, the CAA directs the Environmental Protection Agency ("EPA") to prescribe and enforce emission standards for the control of hazardous air pollutants. 42 U.S.C. §§ 7412(d). Where control is not feasible, the EPA is to promulgate work practice standards designed to achieve a reduction in emissions. Id. and §§ 7412 (h)(1). Under the CAA, asbestos is a hazardous air pollutant. 42 U.S.C.§§ 7412(a)(6), (b)(1). The EPA has determined that asbestos contamination cannot be feasibly addressed by promulgating emission standards. Thus, work practice standards were devised for the removal of asbestos-containing material during the demolition and renovation of affected buildings. 40 C.F.R.§§ 61.145.

40 U.S.C. §§ 7413(c) provides criminal penalties for a limited class of individuals who fail to follow the CAA's regulations. Individuals who may be criminally liable include the "owner or operator of a demolition or renovation activity" that involves "regulated asbestos-containing material." 40 C.F.R. §§ 61.145(a); see also United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir. 2001).² The owner or operator of a demolition or renovation activity is defined in the federal regulation as any person who "owns, leases, operates, controls or supervises" the facility being demolished or renovated, or supervises the demolition or renovation activity, or both. 40 C.F.R. §§ 61.141. This definition parallels that found in 42 U.S.C. §§ 7412, where "owner or operator " for purposes of that section is defined as "any person who owns, leases, operates, controls, or supervises a stationary source." Persons excluded from the definition of "a person" are employees carrying out their normal activities, acting under orders from their employer, except in the case of knowing and willful violations. 42 U.S.C. §§ 7413(h).

I. The Jury Instructions

Pearson contends the district court erroneously defined the term "supervisor" as it is used in the CAA. According to Pearson, a supervisor under the CAA must have a higher degree of control and authority than that defined by the district court. Pearson also asserts error based on instructing the jury that a supervisor's liability is dependent upon proof of a knowing violation. According to Pearson, this instruction prevented the jury from considering whether, as a supervisor, he could also be an employee carrying out his normal activities, and acting under orders from his employer. Finally, Pearson contends the district court failed to properly define the term"owner or operator" as it is used in the CAA.

We review the district court's interpretation of the statute, and whether the jury instructions misstated the elements of the offense de novo. See United States v. Middleton, 231 F.3d 1207, 1209 (9th Cir. 2000). If Pearson's theory of defense was conveyed, we will affirm, because he "is not entitled to any particular form of instruction." United States v. RomeroAvila, 210 F.3d 1017, 1023 (9th Cir. 2000) (quoting United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992)).

A. Supervisor Liability

Pearson contends the district court failed to properly define the term "supervisor" as it is used in the CAA.³ He alleges control and authority are hallmarks of the definition of the term "supervisor." Additionally, he posits that the definition of "supervisor" should include some degree of dominion. According to Pearson, the acts that would make someone a "supervisor" are responsibilities for reporting; applying for permits; designing the work plan; interfacing with multiple contractors and regulatory agencies; signing off on waste disposal manifests, designing and building the containment area; determining the number of negative air machines and the type of respiratory protective equipment; ordering and receiving supplies; and firing people for cause. In sum, Pearson contends he did not have...