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United States v. Slade

Citation: 23 ELR 20494
No. No. 92-1176, 980 F.2d 27/(1st Cir., 11/24/1992)

The court holds that a waste oil company manager, who was guilty of knowingly causing the transport of hazardous waste to an unpermitted facility in violation of § 3008(d)(1) of the Resource Conservation and Recovery Act (RCRA), is estopped from raising as an issue for the first time on appeal the theory that her misunderstanding regarding the significance of soil-sample labels constituted new evidence sufficient for a court to grant a new trial. Applying the "raise or waive" rule, the court finds that although the individual's arguments before both the trial court and itself involved testimony of the same witness, they were significantly different. The court holds that because the manager did not develop her current argument in the lower court, it was not preserved for appeal, and thus, she was unable to raise it on appeal simply because the general issue was before the court. The passing mention of soil-sample labels in the defendant's motion for a new trial, following her conviction on two counts of knowingly causing hazardous waste to be transported to an unpermitted facility in violation of RCRA, did not suffice to acquaint the district court with the labels' validity as new evidence and to preclude waiver of that issue. Finally, the court refuses to invoke the miscarriage-of-justice exception to the raise or waive rule, because it was unlikely that the additional evidence would have compelled her victory at trial.

Counsel for Appellee
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant/Appellant
Evan Slavitt
Hinckley, Allen, Snyder & Comen
One Financial Ctr., Boston MA 02111
(617) 345-9000

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.