Noble Cunningham was convicted of conspiring to transport hazardous waste and two counts of illegally transporting hazardous waste, along with one count of illegally disposing of hazardous waste. The district court sentenced him to 56 months for the conspiracy charge and 24 months for each of the other charges, to be served concurrently, along with three years of supervised release and ordered restitution. On appeal, Cunningham argued that his conviction should be overturned due to erroneous evidentiary rulings and improper jury instructions, and that his sentence should be vacated due to misapplication of sentencing guidelines. The appellate court affirmed both his convictions and sentence.
Cunningham operated R. D Chemical Company, which sold a machine that removed hexavalent chromium from electroplating rinse water using a barium compound. The process generated a hazardous sludge, RD-344, which Cunningham assured customers would be recycled. However, investigations by the Ohio EPA revealed about 496 drums of RD-344 improperly stored on his farm, many in deteriorating condition, leading to concerns about hazardous waste violations. Despite Cunningham's claims of recycling, the Ohio EPA suspected the material met criteria for hazardous waste under federal regulations.
On July 11, 1988, the Ohio EPA, represented by Scott Shane, requested that Cunningham demonstrate his recycling of RD-344. During a follow-up inspection on August 3, 1988, Cunningham attempted to prove RD-344 was not hazardous by handling the material directly, but inspectors remained unconvinced and requested documentation of his recycling efforts. Cunningham claimed that Damman Paint Company had been using RD-344 as a rust inhibitor, providing a receipt as evidence. However, at trial, Damman Paint's owner, Arnold Damman, indicated he had merely experimented with alternatives, undermining Cunningham's recycling claims.
Regulatory definitions were highlighted: according to 40 C.F.R. 261.2(e)(2), materials are deemed solid wastes if they are accumulated speculatively, which occurs if they are collected before recycling without evidence of potential recyclability or a feasible recycling means. Furthermore, 40 C.F.R. 261.1(c)(8) specifies that to avoid speculative accumulation, at least 75% of the accumulated material must be recycled or transferred for recycling within the calendar year.
On September 2, 1988, the Ohio EPA confirmed the presence of hazardous waste from RD-344 samples taken earlier, identifying it as both a characteristic and a listed waste due to EP toxicity for barium. During an October inspection, Cunningham falsely claimed to have spoken with EPA official Steve Silverman, who denied ever having any communication with Cunningham. In November, Cunningham mentioned a prospective sale of 100 tons of RD-344 to Rose Lab for manufacturing fire logs. Shane instructed him to notify the Ohio EPA of shipment details and compliance with hazardous waste regulations. Evidence presented at trial suggested that this transaction with Rose Lab was fraudulent, as their General Manager found the RD-344 unsuitable for their manufacturing needs.
Cunningham requested Bondurant to sign a letter on October 13, 1988, indicating Rose Lab's interest in purchasing RD-344, followed by a price confirmation letter on October 21, 1988, and an invoice for 100 tons at $20,000 dated November 4, 1988. Cunningham provided $5,000 in cash to Bondurant, who used it to purchase a bank check to falsely suggest a legitimate transaction between Rose Lab and R. D Chemical. In November 1988, Cunningham presented the check, invoice, and letters to Hille to demonstrate Rose Lab's purchase and recycling of RD-344. During a December 1988 visit, Cunningham produced a letter from Ohio EPA official Thomas Carlisle, claiming RD-344 was not hazardous waste, although the government later revealed Carlisle relied solely on Cunningham's information without independent verification.
In the spring of 1989, Bondurant allowed Cunningham to store RD-344 at Rose Lab despite no purchase occurring. Cunningham and his brother arranged for drivers to transport RD-344 containers from Ohio to Georgia, with Noble Cunningham overseeing the unloading at Rose Lab, which lacked the necessary permits for hazardous waste. On June 20, 1989, Shane discovered all RD-344 was gone from Cunningham's farm and learned the containers were at Rose Lab. Subsequently, Cunningham hired a driver to illegally dump RD-344 at Westview Sanitary Landfill, which also lacked the proper permits. Rose Lab filed for bankruptcy on June 1, 1989. Thomas Mimms, the property owner leased to Rose Lab, unsuccessfully attempted to contact Cunningham and R. D Chemical from August 1989 to June 1991 and ultimately disposed of the remaining RD-344 containers at a cost of approximately $148,000.
On July 15, 1993, a federal grand jury indicted Noble Cunningham on four felony counts: conspiring to transport hazardous waste (18 U.S.C. 371), knowingly transporting hazardous waste to Rose Lab (42 U.S.C. 6928(d)(1) and 18 U.S.C. 2), transporting hazardous waste to Westview Sanitary Landfill (42 U.S.C. 6928(d)(1) and 18 U.S.C. 2), and knowingly disposing of hazardous waste at Westview Sanitary Landfill (42 U.S.C. 6928(d)(2) and 18 U.S.C. 2).
In May 1997, Cunningham was convicted on four counts related to hazardous waste, with the jury rejecting his defense that RD-344 was not harmful and that he believed in good faith it was not hazardous waste. On September 19, 1997, he was sentenced to 56 months for Count One and 24 months for Counts Two through Four, to be served concurrently, along with three years of supervised release. Additionally, he was ordered to pay a $200 special assessment and restitution totaling $157,716.66 to Mimms and Westview Sanitary Landfill.
Cunningham is appealing his convictions, citing six erroneous evidentiary rulings and two jury instruction errors by the district court. He also seeks to vacate his sentence due to alleged improper application of two sentencing enhancements.
Regarding evidentiary rulings, the court reviews for abuse of discretion. Cunningham challenged the district court's refusal to allow questioning of Thomas Carlisle from the Ohio EPA about the chemical composition of chromium in RD-344 versus listed hazardous waste F006. The court found no abuse of discretion as Carlisle was not qualified to testify on this matter.
Cunningham also contested the limitation on questioning Terrell Rooks from the Georgia Department of Environmental Protection about a letter from ATEC Environmental Consultants, which stated that RD-344 was extremely insoluble. The court ruled the letter was hearsay, and Cunningham failed to demonstrate it met any hearsay exceptions, confirming no abuse of discretion.
Lastly, Cunningham argued against the refusal to present soil sample results from his farm taken in 1993, which allegedly showed no contamination. His attorney indicated that these results were from four years after the relevant events, but the court did not permit their admission.
The government contended that the core issue in the case revolves around whether the material shipped to Atlanta in 1989 was classified as hazardous waste, asserting that the condition of Cunningham's farm in Ohio is irrelevant since there were no charges related to storage. Cunningham's attorney highlighted that the government presented substantial evidence regarding the poor condition of the farm, which the court allowed, but Cunningham argued that such evidence unfairly suggested contamination and prejudiced the jury against him. He claimed that the 1993 test results, which showed no contamination, would have countered this impression. However, the court ruled against Cunningham's attempt to introduce these results, noting that the government had not introduced evidence to prove contamination but rather to challenge Cunningham’s recycling claims. The court also indicated that Cunningham failed to demonstrate how the 1993 test results would materially clarify or correct the government's evidence. Moreover, Cunningham did not adequately proffer that his expert would testify that the test results indicated proper storage and recycling practices by him in 1989 or that he did not contaminate the farm. During discussions, the court acknowledged the complexities of environmental contamination over time, suggesting that some substances could remain problematic long after disposal, while others might dissipate naturally. Cunningham's failure to provide a compelling proffer regarding expert testimony limited his ability to counter the government's narrative effectively.
Cunningham failed to establish a necessary link between the 1993 soil test results and the farm's condition in 1989, which led the appellate court to affirm the district court's decision to exclude that evidence. The appellate court emphasized that its role is to assess whether the district court abused its discretion, not to reevaluate evidence admissibility as if acting as trial judges. The broad discretion of trial courts in evidence admission means that an appellate court may uphold decisions even if it would have ruled differently under a de novo standard.
Regarding the limitation on questioning Joe Stillwell, the appellate court noted Cunningham's argument that the district court erred by disallowing Stillwell's opinion on whether RD-344 was hazardous. Stillwell, called by the government to testify about Rose Lab's assessment of RD-344, had claimed in a proffer that he believed the material was non-hazardous, even dismissing the EPA's classification as unfounded. However, the district court sustained the government's objection to this line of questioning, leading Cunningham to argue on appeal that Stillwell's testimony would counter government witnesses' claims about RD-344's environmental risks and support his belief in the material's safety. The court found that Stillwell's comments did not effectively counter the government's testimony, which did not assert that RD-344 had contaminated the farm or was soluble, but rather focused on improper recycling and the presence of barium. Therefore, the appellate court upheld the district court's decision to limit Stillwell's testimony.
Cunningham did not demonstrate the reliability of Stillwell's testimony according to the standards established in Daubert and Kumho Tire. The Supreme Court emphasized that trial judges must assess the scientific validity and applicability of an expert's reasoning and methodology to the case facts. In this instance, the government argued that Cunningham failed to provide a proper foundation for Stillwell's opinion, lacking evidence of its scientific reliability. After Cunningham proffered Stillwell's testimony, which included the basis for his opinion, the government cross-examined him and highlighted issues with his methodology, including reliance on an unproven testing method and unfamiliarity with relevant regulations. The district court upheld the government's objection to Cunningham questioning Stillwell, concluding that Cunningham did not show that Stillwell's reasoning was scientifically valid.
Additionally, the district court allowed the government to present results from the EP toxicity test performed by the EPA on the RD-344 samples, which indicated high barium levels. Although the court barred Cunningham from arguing the scientific validity of the EP toxicity test due to its subsequent changes, it instructed the jury that these changes occurred. The court clarified that the regulations in effect during the relevant time in 1989 would govern the case, despite the testing being conducted later under different methods.
The standards applied in 1989 must be used for evaluating evidence, specifically regarding the EP toxicity test, which cannot be compared to any later standards. Cunningham contended on appeal that he should have been able to introduce evidence questioning the validity of the EP toxicity test due to its replacement by the TCLP test. However, the rationale for the EPA adopting the TCLP test was not because the EP test was invalid, but rather because the TCLP test was faster and identified more hazardous materials. Congress directed the EPA to create a more effective test to ensure accurate predictions of hazardous waste leaching potential. Although the EP toxicity test was considered deficient, it was not deemed scientifically invalid, and the EPA permitted its continued use. The district court acted within its discretion in excluding Cunningham's challenge to the EP toxicity test's validity, as changes in regulations alone do not invalidate previous standards.
In another matter, during Cunningham's arrest, Deputy U.S. Marshal Jeff Balzer described Cunningham's evasive behavior, which the government argued indicated guilt. Cunningham claimed that the district court erred by not allowing him to question Balzer about a statement made during the arrest, where Cunningham expressed confusion about the charges against him, believing they were resolved due to his brother Oscar's release. The district court sustained the government's hearsay objection to this line of questioning.
Mr. Balzer's testimony regarding the defendant's absence of flight is considered crucial evidence, suggesting that the defendant did not exhibit consciousness of guilt, as he believed the case was resolved. Cunningham's attempt to introduce an exculpatory statement made at arrest is barred by United States v. Willis, which prohibits such statements without subjecting the defendant to cross-examination, as it contravenes the hearsay rule. Cunningham claims his statement fits the hearsay exception under Federal Rule of Evidence 803(3) for demonstrating his state of mind; however, the rule excludes statements of belief as proof of the fact believed, which applies to Cunningham’s situation.
Regarding jury instructions, Cunningham contends that the district court made errors warranting reversal of his convictions. He raises two specific objections, both of which are reviewed for abuse of discretion. First, he argues that the court's clarification of the term "recycling" misled the jury away from his good faith defense by not emphasizing that only a good faith belief was required. This claim is dismissed as meritless; the court's clarification was accurate and reinforced the need to interpret it within the context of all instructions. There was no jury request for clarification on the good faith defense, and thus, the court acted within its discretion. Second, Cunningham argues against the court's refusal to provide his proposed instruction on "reclaimed materials."
The district court instructed the jury on the definitions of "reclaimed" and "recycled" materials. A material is reclaimed if it is processed to recover a usable product or regenerated, while recycling includes using, reusing, or reclaiming materials. Cunningham's lawyer objected post-instruction, arguing that materials reclaimed from solid waste and used beneficially should not be classified as solid or hazardous waste. However, he had not submitted a written request for this instruction, which is required under Federal Rule of Criminal Procedure 30 and local rules. The district court overruled the objection, stating it acted within its discretion due to the lack of a proper written request. Even if the request had been timely, Cunningham would not have prevailed, as the court's instructions sufficiently covered the requested definition. The court later reinforced the jury's understanding of recycling through additional instruction, clarifying that recycling is defined as using, reusing, or reclaiming materials.
Cunningham also challenged his sentence, asserting that the district court misapplied the sentencing guidelines under U.S.S.G. 2Q1.2, related to the unlawful transportation of hazardous substances. He specifically contested two enhancements applied to his sentence. The standard for reviewing factual findings at sentencing is for clear error, while the interpretation of the Sentencing Guidelines is reviewed de novo.
An offense involving a continuous or repetitive discharge of a hazardous substance warrants a 6-level increase under U.S.S.G. 2Q1.2(b)(1)(A), while a general discharge leads to a 4-level increase under 2Q1.2(b)(1)(B). Cunningham's lawyer acknowledged evidence of continuous discharge, supporting the application of the 6-level enhancement. Application Note 5 clarifies that subsection (b)(1) presumes actual environmental contamination from such discharges. The guideline encompasses a variety of conduct involving different materials and contamination levels, allowing for adjustments in sentencing based on harm, substance nature, and duration of the offense.
Cunningham argued that the government must prove actual environmental contamination for the enhancement to apply, citing Note 5. However, the government contends that proving a discharge suffices, without the need for additional evidence of contamination. This interpretation has led to a split among circuits, with the Second and Fifth Circuits agreeing that actual contamination does not need to be proven. The court determined that, per this precedent, the government need only demonstrate a discharge for the enhancement to be applicable, concluding that the district court correctly applied the 6-level increase since Cunningham did not dispute the evidence of ongoing discharge.
Cunningham's lawyer acknowledged the presence of actual contact with hazardous waste, specifically RD-344, which was found in Ohio and disposed of in a landfill, leading to the district court enhancing Cunningham's sentence. The court applied a four-level enhancement under U.S.S.G. 2Q1.2(b)(3) due to substantial cleanup costs resulting from Cunningham's illegal transportation of hazardous waste. Although Cunningham did not dispute the cleanup costs, he claimed they were unrelated to contamination, arguing no actual contamination existed and that the waste was disposed of in a regular landfill after treatment. This argument was dismissed as meritless; the guideline's language does not restrict the enhancement to costs specifically for contamination cleanup but includes any cleanup related to the offense. The landowner in Georgia incurred over $147,000 in disposal costs, satisfying the guideline's criteria for substantial expenditure. The court affirmed the enhancement, concluding that the cleanup was indeed necessary and costly, regardless of the methods used by the removal company.
