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United States v. Henry

ELR Citation: 28 ELR 21048
Nos. 96-1775, 97-1400, 136 F.3d 12/46 ERC 1261/(1st Cir., 02/05/1998)

The court upholds the conviction of the owner of a contaminated soil recycling facility under Resource Conservation and Recover Act (RCRA) §3008(d)(1) for transporting hazardous waste to an unpermitted facility. The court first holds that the district court's definitional instruction as to what constitutes hazardous waste was correct as a matter of law. The court also holds that the delegation by Congress to the U.S. Environmental Protection Agency (EPA) of the legislative authority to define hazardous waste was permissible given the fact that there existed several constraints on EPA's exercise of this authority. First, RCRA sets forth a detailed procedure with which EPA must comply before it may exercise this legislative power and list the types and characteristics of hazardous waste. Second, in addition to requiring EPA to comply with these procedural steps, the statute specifies certain factors that EPA must consider in developing the criteria. Furthermore, the statute also constrains EPA's discretion by listing specific characteristics.

The court next holds that the district judge's questioning of a witness in this case was permissible. The trial judge has a perfect right to participate in the trial and to question witnesses. The limitations placed on this right are that the judge's questioning must be balanced; he cannot become an advocate or otherwise use his judicial powers to advantage or disadvantage a party unfairly. In this case, the judge's questioning of the witness was nothing more than the sort of occasional effort to clarify testimony that falls squarely within the scope of the district judge's right and responsibility to manage the progress of the trial. Any possible risk of prejudice to the defendant was abated by the clear instruction to the jury that it should ignore any impression that his questions might have made on them.

The court further holds that the district court committed no error in using the fraud and deceit sentencing guidelines rather than the guidelines governing environmental offenses. The court finds no fault in the district court's analysis that the main motivation for the criminal conduct was to obtain money. There is no indication that the defendant was on a crusade to engage in committing environmental crimes. Rather, it is clear that his objective was to make money, and in the process he engaged in an environmental crime, which was an incidental byproduct of his fraudulent conduct. The court then finds that when computing the offense level under the guidelines, the district court did not err by ignoring the possible benefit to the defrauded customers from the transportation of the soils from their sites. Finally, the court holds that there is no basis to disturb the district court's denial of the defendant's motion for a new trial based on newly discovered evidence.

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

Counsel for Appellant
Bjorn Lange, Ass't Federal Public Defender
Federal Public Defender's Office
125 Pearl St., 3d Fl., Boston MA 02110
(617) 424-0575

Before Selya and Boudin, JJ.