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United States v. Cunningham

Citation: 30 ELR 20202
No. No. 97-9137, 194 F.3d 1186/(11th Cir., 11/02/1999)

The court affirms a district court decision convicting a chemical company operator of illegally transporting and disposing of hazardous waste in violation of the Resource Conservation and Recovery Act. The court first holds that the district court did not abuse its discretion by excluding evidence offered by the operator. The witness that would have testified about the hazardous nature of the waste was not a toxicologist and a state environmental protection worker's letter concerning the waste's solubility was excludable hearsay. In addition, the result of soil samples taken from the operator's farm where the waste was stored would not have clarified or corrected the government's evidence. The government offered evidence of the operator's farm in order to establish that he was not recycling the waste, not to establish that he had contaminated the farm. Further, a lab employee's testimony regarding the solubility of the waste would not have countered or rebutted the government's testimony that the operator had not properly recycled the waste, and the operator failed to establish the scientific reliability of the proffered testimony. Moreover, the fact that the U.S. Environmental Protection Agency was using a different toxicity test from that being used when the waste was discovered did not allow the operator to challenge the toxicity test of the waste as invalid, and the operator's post-arrest statements were excludable hearsay because they could not be admitted without him subjecting himself to cross-examination.

The court next holds that the district court did not abuse its discretion in instructing the jury. The court properly answered the jury's question regarding the definition of "recycling" and took pains to ensure that it did not present a misleading picture by reminding the jury to consider the supplemental instruction in the context of all the jury instructions. Because the jury did not ask for clarification of the good-faith defense, the district court did not abuse its discretion by failing to reinstruct the jury on that issue as the operator claims. The district court also properly refused to give the operator's instruction regarding the definition of "reclaimed materials" because the operator's attorney did not make the request for this instruction in the proper form. Finally, the court holds that the district court properly enhanced the operator's sentence for illegally transporting hazardous waste under Sentencing Guideline §§ 2Q1.2(b)(1) and (b)(3), and, therefore, the operator's sentence should not be vacated.

[Counsel not available at this printing.]

Before Edmondson and Watson,* JJ.