Summary
In Elias, the Court considered whether to admit evidence of a witness's withheld judgment on a drug conviction after the witness completed probation and had the charges against him dismissed.
Summary of this case from Miller v. Lemhi Cnty.Opinion
CR No. 98-00070-E-BLW
April 20, 1999
MEMORANDUM DECISION AND ORDER
The Court has before it several pre-trial motions. The Court held a hearing on these pending motions on April 13, 1999. At the conclusion of that hearing the Court took several motions under advisement. This Memorandum Decision and Order shall constitute the Court's ruling on these motions and its reason therefore. The Court would note, however, that all rulings contained herein are provisional, depending upon the course of the trial.
I. The United States motion in limine to exclude evidence that Defendant did not know that his actions violated RCRA, or that he believed in good faith that he was complying with the law.
The Government moves in limine to preclude evidence of ignorance of the law as to specific elements of the charged offense, and to preclude the Defendant from raising a "good faith defense" contending that both a defense theory of ignorance of the law and good faith do not comport with the mens rea requirements of the charged offense. In order to prove a violation of 42 U.S.C. § 6928, the Government must show, (1) that the defendant knowingly disposed of, or commanded others to dispose of, wastes; (2) that the defendant knew that the waste had the potential to be harmful to others or to the environment; (3) that the waste was listed or identified by the United States Environmental Protection Agency as hazardous waste pursuant to the Resource Conservation and Recovery Act; and (4) that the defendant had not obtained a permit from either the EPA or appropriate state agency authorizing disposal of the waste. See United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989), cert. denied, 493 U.S. 1083 (1990). While knowledge attributed to the Defendant must be shown for the first of these two elements, there is no requirement of specific mens rea for the latter two elements. Id. The Government must show that the Defendant knew he was storing and disposing of waste material, and that he knew that the waste material was potentially harmful to others or the environment, However, they do not need to show that he knew that his waste was defined as hazardous under RCRA, that he needed a RCRA permit to store and dispose of that waste, or that he knew he was breaking the law.
The Defendant seems to argue that, due to the complexity of RCRA, the Government must show knowledge of illegality in a RCRA case based upon recent Supreme Court cases. See Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985). The Defendant's position is that cases holding that knowledge of illegality is not required are badly decided and should not be followed. However, the cases cited have not altered the traditional rule that ignorance of the law is no excuse, but have only stated that knowledge is required where the statute specifically imposes that type of requirement. See Bryan v. United States, 524 U.S. 184, 195-96 (1998). This is consistent with the position of the Ninth Circuit. See United States v. Weitzenhoff, 35 F.3d 1275, 1283-86 (9th Cir. 1993). Therefore, the Government's motion should be granted. The defendant may present evidence and argue that he did not know or believe that the sludge was waste material or potentially harmful, but he may not present evidence or argue that he believed he was in compliance with RCRA, or that his conduct was lawful.
II. The United States motion in limine to exclude evidence of the Withdrawn EPA Guidance
The Government moves to exclude evidence of tests of the material in this case, conduct by the EPA, pursuant to SW-486 test protocols, and utilizing the interim thresholds for toxic gas generation reactivity proffered and subsequently revoked by the EPA. The Government's position is that such test is unreliable and irrelevant to this case, It is undisputed that the Defendant did not conduct the SW-486 test protocols, and was not aware of the interim threshold guidelines.
The EPA's testing which indicated that the sludge in this case did not exceed the interim thresholds may be considered by the jury on the question of whether the sludge constituted a hazardous reactive waste under the EPA's standards. In a prior decision on the Defendant's motion to dismiss, this Court concluded that the interim threshold did not establish a "safe harbor" but only identified those substances which were clearly subject to regulation under all circumstances and in all conditions. Thus, evidence that a substance is below the threshold is not conclusive on the question of whether it constitutes a hazardous reactive waste. However, it may provide some evidence on that issue and is therefore relevant. Nevertheless, the Defendant will not be permitted to argue that the substance was not reactive because it did not exceed the interim threshold, since that would be inconsistent with the Court's earlier decision.
III. The United States motion in limine to exclude evidence concerning the civil suit against the Defendant.
The Government attempts to exclude evidence of a civil suit, filed by Scott Dominguez against the Defendant in the instant action, as irrelevant. Generally, evidence of a civil suit does not have any independent relevance in this proceeding. However, if Mr. Dominguez were to testify in this case, such evidence would be admissible as it pertains to bias and credibility of Mr. Dominguez.
IV. The United States motion in limine to exclude arguments concerning sentencing and opinions of counsel
The Government attempts to exclude argument of counsel concerning potential sentence that may be imposed and opinion evidence of counsel in this case. Such items would be irrelevant to the pending case, and evidence or argument of such will be excluded.
V. The United States' Notice of Rule 404(b) evidence
The Defendant objects to the Government's notice of intent to introduce evidence, pursuant to Fed.R.Evid. 404(b), contending such evidence is inadmissable. Evidence of collateral bad acts, or 404(b) evidence, while generally inadmissable to prove character, may be used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998). In order to be admissible, the evidence must tend to prove a material issue, be similar to the offense charged, be based on sufficient evidence, be not too remote in time, and be more probative than prejudicial. See United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.), cert. denied, 119 S.C.. 267 (1998).
According to the Govermnent's Rule 404(b) notice, the evidence which the Government seeks to admit can be divided into two categories. First, the Government seeks to admit evidence of the work conditions which the Defendant maintained at AEI and Evergreen Resources. This evidence will be presented by employees, who will testify of the work conditions and of employee injuries which resulted from those conditions, and by OSHA inspectors, who will describe the work conditions and testify as to various regulatory sanctions which were imposed. Second, the Government seeks to admit evidence of prior waste disposal practices employed at AEI and Evergreen Resources. Subject to limitations described below, the Court concludes that the evidence of work conditions, employee injuries, and OSHA citations described by the Government in their Rule 404(b) notice may be admitted at trial. However, evidence of prior waste dumping practices will not be admitted, except under those limited circumstances where it may be relevant to show the Defendant's knowledge or intention in disposing of waste products from the 25,000 gallon storage tank.
The Government contends that evidence of the work conditions which existed in August of 1996 is admissible as direct evidence, without reliance on Rule 404(b). In general, the Court agrees. Evidence of lack of safety training, the nature of the working conditions, and the inadequate personal protective equipment at the Evergreen Resources facility would all seem to be independently relevant in establishing whether the owner of that facility placed his workers in imminent danger of death or serious bodily injury, and knowingly disregarded the risks associated with the confined space entries which resulted in Mr. Dominguez's injuries.
Evidence of unsafe working conditions on prior occasions, however, can only be justified if it complies with the requirements of Rule 404(b). The critical question here is whether such evidence is relevant to show that the Defendant knowingly endangered his employees in August of 1996. Any evidence that provided the Defendant with notice of the dangers associated with confined space entries and the handling of hazardous wastes, the two circumstances which combined to cause the injuries to Mr. Dominguez, would seem to be relevant to establish knowledge, intent, and the absence of mistake or accident. For this reason, the Court concludes that working conditions and practices at facilities operated by the Defendant will be admissible under Rule 404(b) if the evidence establishes that the Defendant knew, or had reason to know, that such conditions resulted in injuries to his workers or in administrative action by OSHA or other regulatory agencies. On the other hand, evidence of unsafe working conditions at the Defendant's facilities which did not result in injury or administrative action, would not be probative of the Defendant's knowledge or intent, and would not negate an argument that Mr. Dominguez's injuries were the result of an accident or mistake. Such evidence would be relevant only to show the Defendant's propensity to maintain an unsafe work environment, which is the precise danger to which Rule 4.04 is addressed.
Circumscribed in this fashion, the evidence which the Government seeks to admit would appear to satisfy the five-pronged test adopted by the Ninth Circuit for gauging the admissibility of Rule 404(b) evidence. First, it addresses a material issue in the case, i.e., whether the Defendant knowingly endangered his employees on August 27, 1996. Second, It is evidence which is similar to the offense charged since it involves the same type of conduct as created the alleged endangerment charged in Count One of the Indictment. Moreover, the requirement of similarity is somewhat relaxed when it is offered, as here, to prove the Defendant's knowledge. See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992). Third, it appears to be based on substantial evidence, since the employees and regulatory officers will offer direct testimony of the circumstances and nature of the work conditions, employee injuries, and regulatory actions. Fourth, the evidence does not appear to be too remote in time, since the evidence will apparently be limited to events going back no more than seven years prior to the injuries to Mr. Dominguez. Finally, the Court has analyzed the proposed evidence under the balancing test of Rule 403, and concludes that none of the considerations suggested by that Rule require its exclusion.
The Court has some concern that the similarity requirement may be more difficult to satisfy where the injuries suffered by the Defendant's employees were substantially different from the injuries suffered by Mr. Dominguez on August 27. For example, the Court understands that some of the workers injuries involved fractures and direct physical injury rather than being overcome by cyanide gas. However, as noted above, the similarity requirement is relaxed when the Rule 404(b) evidence is offered to establish knowledge. Moreover, the Court cannot say that the Defendant's knowledge of the physical dangers associated with working in a confined space is not relevant here, where the difficulties likely to be encountered in extracting an injured worker would seem to be a factor in measuring the peril faced by a worker overcome by cyanide gas.
Turning to the Government's contention that evidence of prior waste disposal practices is admissible under Rule 404(b), the Court concludes that only limited evidence of such practices is admissible. The Government has given notice that it intends to offer evidence of the following waste disposal activities: (a) routine discharging of waste down drains at AEI, including cyanide waste; (b) dumping of contaminated materials from AEI at Evergreen Resources; (c) routine dumping of various waste materials in the "boneyard" area at Evergreen Resources, (d) discharging phosphoric acid from the 25,000 gallon steel tank on the ground adjacent to the railroad tracks at Evergreen Resources; and (e) numerous acid spills at Evergreen Resources. The Government contends that such evidence is admissible under Rule 404(b) to show knowledge, intent, and a common plan or scheme. To the extent that such evidence can truly be said to evidence the Defendant's knowledge or intent, it may be admissible. However, the Court concludes that it cannot be admitted to show that the Defendant's conduct, as charged in the Indictment, is part of a common plan or scheme.
At trial, the Government must establish that the Defendant knew the material in the storage tank was waste, that it had the substantial potential to be harmful to others or the environment, and that he knowingly caused it to be disposed at Evergreen Resources. Some evidence of prior waste disposal practices may well be relevant to the Defendant's knowledge. For example, evidence that the Defendant had dumped materials from this particular tank on the ground would seem relevant in establishing that the Defendant perceived that the tank's contents were waste products. Likewise, evidence that the Defendant attempted to conceal or under-report the quantity and nature of materials dumped from the storage tank, or intimidated employees into silence on those issues, would seem relevant in establishing that the Defendant knew of the contents' potential for harm. On the other hand, general evidence of past waste disposal practices at AEI, and Evergreen Resources, unrelated to the contents of this tank, would not appear to be relevant to establish the requisite intent or knowledge which is an element of the offenses charged here.
The Government also contends that the past waste disposal practices is relevant to show a common plan or scheme. The Court is unpersuaded. In general, evidence of prior bad acts is admissible to show a common plan or scheme under Rule 404(b) where the accused disputes that he committed the charged acts. To be allowed, the prior bad acts must be sufficiently similar to support an inference of identity, such as unique or peculiar conduct which may constitute a personal signature. See United States v, Perkins, 937 F.2d 1397 (9th Cir. 1991). However, because of the danger that such evidence may be nothing more than propensity evidence, the Rule 404(b) standard is particularly stringent when the evidence is offered only for this purpose.
Here, there is no question who performed the acts which give rise to the charges contained in the Indictment. Rather, the only issue in the case focuses on the Defendant's knowledge and intent. Evidence of prior waste dumping practices would have no relevance in establishing that the Defendant committed the acts recited in the Indictment, since that is not a disputed issue in the case. To admit such evidence to establish a common plan or scheme would result in its admission as propensity evidence. This is precisely the use of such evidence that is prohibited by Rule 404. Thus, evidence of prior waste disposal practices will not be admitted, except to the extent that the Government can persuade the Court that specific instances of such prior conduct is relevant to an issue which is material to the charges contained in the Indictment.
VI. The United States motion in limine to exclude statements obtained by fraud or duress.
The Government seeks to exclude evidence obtained by the Defense by serving Daren Schwartz with a subpoena in the related civil action, and inducing him to participate in an interview in lieu of appearing at a deposition. Given the substantial powers which the Government has to obtain evidence and information by use of a threatened grand jury subpoena, the Court has difficulty in finding that such activities on the part of the Defense constituted "fraud or duress." Accordingly, the Government's motion will be denied. On the other hand, the Court cautions the Defense that such evidence may only be used to impeach Mr. Schwartz in accordance with the Federal Rules of Evidence, since the Court has not approved the taking of any depositions in this proceeding as provided for in the Federal Rules of Criminal Procedure.
VII. The United States motion in limine to exclude evidence of prior criminal convictions under F.R.E. 609
The Government seeks to preclude evidence of prior criminal charges against various witnesses it intends to call. The Court will consider the admissibility of each criminal charge as it relates a particular witness. First the Government seeks to preclude evidence of charges of burglary against Gene Thornock that were dismissed in 1984. Such evidence is inadmissible, both because the events in question occurred more than 10 years ago, F.R.E. 609(b), and because an arrest, without a conviction, cannot be used to impeach a witness. See Medrano v. City of Los Angeles, 973 F.2d 1499, 1507 (9th Cir. 1992).
The Government next seeks to preclude the admission of Brian Smith's conviction of a misdemeanor possession of marijuana charge in 1989. The Government's request will be granted because misdemeanor convictions for drug use and possession are not admissible for impeachment purposes under F.R.E. 609. See Medrano, 973 F.2d at 1507.
The Government contends that two petit theft convictions of Sean Stevens should not be admitted for impeachment under F.R.E. 609. The Court agrees. A petty theft conviction would, at first blush, appear to be the type of crime involving dishonesty which would make a misdemeanor conviction admissible for impeachment purposes under Rule 609, However, the Ninth Circuit has held otherwise. See Medrano, 973 F.2d at 1507. Accordingly, the Defense is precluded from impeaching Mr. Stevens with his misdemeanor petit theft conviction.
The government also requests that the Court preclude the Defense from using, for impeachment purposes, the 1993 conviction of Roger Parker for various drug-related offenses, and the 1993 conviction of Frederick Mancini for a felony assault charge. Rule 609(a)(1) directs that such evidence shall be admitted subject to Rule 403. The Court has engaged in the balancing test set forth in Rule 403 and concludes that the probative value of such evidence, for impeachment purposes, is not outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time. Accordingly, those convictions may be used by the Defense to impeach the Mr. Parker and Mr. Mancini.
Finally, the Government seeks to preclude the admission of evidence relating to the 1994 charges of delivery of a controlled substance which were brought against Scott Dominguez. These charges resulted in Mr. Dominguez receiving a withheld judgment. Under Idaho law, a withheld judgment is not a conviction. See State v. Client, 96 Idaho 646, 650, 534 P.2d 476 (1975). The Court is advised that the charges against Mr. Dominguez were recently dismissed, because of his successful completion of probation. See Idaho Code § 19-2604. In this regard, Rule 609(c) provides that evidence of a conviction is not admissible to impeach a witness "if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted." Although the defendant's successful completion of probation was necessary for him to obtain a dismissal of the charges, the same relief could have been obtained even if he had been convicted, his sentence had been suspended, and he was placed on probation. Id. The Court is unwilling to conclude that any person who has received a suspended sentence or withheld judgment and has had subsequently had the charges dismissed pursuant to Idaho Code § 19-2604 has received a "certificate of rehabilitation" or "other equivalent procedure based on a finding of rehabilitation."
On the other hand, Mr. Dominguez's receipt of a withheld judgment, Idaho's recognition that such a sentence is not a conviction, his successful completion of probation, and the fact that a drug conviction does not inherently call into question a witness's veracity or honesty, causes the Court to conclude that the probative value of Dominguez's conviction is substantially outweighed by the potential for unfair prejudice, confusion of the issues, and misleading the jury. It will be the Courts practice, therefore, to exclude evidence of a charge resulting in a withheld judgment, pursuant to Rule 609, where the charge does not inherently call into question the witness's veracity or honesty. Accordingly, the Government's request to exclude Mr. Dominguez's 1994 drug conviction will be granted.
VIII. Defense motion in limine to exclude evidence of payments to the Defendant by Kerr McGee.
Based upon argument and related briefing, it appears that Government would offer this evidence to show that Elias had the financial ability to pay for safety equipment. However, until the Defendant makes the ability to pay for safety equipment an issue in this case, such evidence would be irrelevant, and the motion should be granted as to this issue.
IX. Defense motion in limine to exclude evidence relating to tax laws and the Defendant.
It does not appear that the Government opposes this motion, and such will be granted accordingly.
X. Defendant motion to exclude testimony by Scott Dominguez
The Defendant moves to exclude testimony of Scott Dominguez, questioning his competency to testify, and the prejudicial effect of such testimony. However, It appears that the Government will offer Dominguez's testimony as substantive evidence, and not just to display his injuries. Furthermore, based on the affidavits filed, it appears that he is competent to testify. although the Court will, upon request, grant the Defendant a hearing outside the presence of the jury to determine competence.
XI. Defense motion in limine to exclude evidence of the screening tests taken by Pocatello Fire Department HazMat team on August 27, 1996.
Such results will only be admitted if a proper foundation is laid for their admission. Accordingly:
Order
NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the Government's Motion in Limine (Docket No. 106) shall be, and the same is hereby, GRANTED in part, and DENIED in part, consistent with the above memorandum decision.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the Defendant's Motion in Limine (Docket No. 116) shall be, and the same is hereby, GRANTED in part, and DENIED in part, consistent with the above memorandum decision.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the Government's Motion in Limine — Rule 609 (Docket No. 120) shall be, and the same is hereby, GRANTED in part, and DENIED in part, consistent with the above memorandum decision.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the Government's Motion in Limine to Prohibit Use of Statements Obtained by Fraud or Duress (Docket No. 122) shall be, and the same is hereby, DENIED, consistent with the above memorandum decision.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the Defendant's Second Motion in Limine (Docket No. 129) shall be, and the same is hereby, GRANTED, consistent with the above memorandum decision.