United States v. Ronald Snook , 366 F.3d 439 ( 2004 )

ILANA DIAMOND ROVNER, Circuit Judge.

A jury found Ronald Snook guilty of one count of conspiring to defraud the federal government by violating the Clean Water Act, 18 U.S.C. § 371, 33 U.S.C. §§ 1317(d) and 1319(c)(2)(A), and five counts of concealing material information regarding a matter within the jurisdiction of the federal government, 18 U.S.C. § 1001(a)(1). He was sentenced to concurrent terms of 21 months’ imprisonment, concurrent terms of two years of supervised release, a $1,000 fine, and $600 in special assessments. On appeal he challenges two evidentiary rulings, allegedly improper statements by the prosecution during closing arguments, and a two-level increase in his offense level for abusing a position of trust, U.S.S.G. § 3B1.3. We affirm in all respects.

Between 1994 and 1997 Snook was the “Environmental Manager” at Clark Refining & Marketing, Inc., a petroleum refinery in Blue Island, Illinois. Prior to being Environmental Manager, Snook had worked at Clark since 1989 as an “Environmental Specialist.” Prior to that he was a partner of an environmental consulting firm. As Environmental Manager at Clark, two of his duties included ensuring the refinery’s compliance with environmental regulations and overseeing its wastewa-ter treatment system. Each day, Clark discharged on average over a million gallons of processed wastewater into a sewer system that flowed into a water treatment plant of the Metropolitan Water Reclamation District of Greater Chicago (District). Relevant to this appeal are the District’s (EPA-approved) regulations of Clark’s wastewater discharges.

The District’s Sewage and Waste Control Ordinance prohibits Clark from discharging water with (1) a concentration of pollutants such as fats, oils, and greases of greater than 100 milligrams per liter or (2) a pH level lower than 5 or greater than 10. The ordinance requires dischargers such as Clark to self-monitor their compliance and submit reports (RD-115 reports) documenting compliance semiannually to the District. In addition, the District conducts its own periodic testing of dischargers; if it finds that wastewater violates required limits, it will issue an order to cease and desist. In such cases, dischargers such as Clark are required to submit reports (RD-114 reports) documenting that their waste-water is back in compliance. Further, and most relevant here, for both types of reports dischargers must submit all of their self-monitoring data even if it was taken in addition to the minimum requirements, and dischargers must notify the District within 24 hours whenever they become aware of any violations.

In July 2000, Snook was indicted for conspiring along with Elva Carusiello, an Assistant Manager at Clark, and Environmental Monitoring and Technologies, Inc. (EMT), a company Clark hired to test its wastewater, to selectively report testing results to the District and for failing to report violations. The indictment alleged that between 1994 and 1997 Clark had EMT test its wastewater on numerous occasions and many of the tests revealed violations; yet Snook submitted a number of RD-114 and RD-115 reports on behalf of Clark that indicated results for only six days (the minimum required) on which Clark’s wastewater satisfied applicable standards, and he omitted any results that showed violations. In addition, the indictment alleged that Snook falsely told an inspector for the EPA that the selectively reported data was the only data Clark had collected. In January 2002, a jury found Snook guilty of conspiracy and concealing material information regarding a matter within the jurisdiction of the EPA.

I.

On appeal, Snook’s primary argument is that the district court erred in excluding evidence purporting to show that Clark had selectively reported results pri- or to Snook becoming Environmental Manager and that EMT selectively reported results for other clients in the past. Snook contends that this evidence was relevant to his state of mind, showing that he believed selective reporting was the established practice at Clark and that it was legal. The district court concluded that absent any evidence that Snook was even aware of these practices, any minimal probative value the evidence might have was outweighed by its potential to be misleading, prejudicial, or confusing. Fed. R. Evid. 403. We review the district court’s decision for abuse of discretion and will affirm it so long as it was reasonable. United States v. Thomas, 321 F.3d 627, 630 (7th Cir.2003).

First, a preliminary matter. Although Snook argues that the evidence was relevant to all six counts, his beliefs about whether selective reporting was legal were irrelevant to count one. To convict Snook for conspiring to violate the Clean Water Act, which, in relevant part, imposes criminal penalties for “[kjnowing violations,” 33 U.S.C. § 1319(c)(2)(A), the government needed to prove only that Snook had knowledge of the underlying facts and not that he knew the conduct was illegal. United States v. Wilson, 133 F.3d 251, 262 (4th Cir.1997); United States v. Sinskey, 119 F.3d 712, 715-17 (8th Cir.1997); see also United States v. Ho, 311 F.3d 589, 605-06 (5th Cir.2002) (Clean Air Act), cert. denied, 539 U.S. 914, 123 S.Ct. 2274, 156 L.Ed.2d 129 (2003).

As to the remaining counts, Snook’s beliefs about whether he had to report all data and violations were relevant, but we agree with the district court that this proffered evidence was too remote — absent some evidence Snook knew about it. And even if Snook did know about the alleged past practices of Clark or EMT, the evidence still might have been properly excluded absent further evidence that he was told, trained, or otherwise led to believe that selective reporting was the proper procedure. (Perhaps he was aware of the practices and told they were illegal or was told or trained to do otherwise.) Thus the district court’s apt description that “[ujnless there’s some link-up to this defendant, all we’re dealing with is what I believe are various inferences upon inferences of speculation.” Therefore, given Snook’s lack of evidence that he was aware of theses practices or that he was ever told they were legal, the district court did not abuse its discretion in excluding this evidence.

II.

Snook next argues that the district court erred in allowing the government to present “other acts” evidence. Fed. R. Evid. 404(b). A former EMT technician testified that in either 1992 or 1993 he returned samples of what he believed to be hazardous materials to Clark, and Snook told him to dispose of the materials at or near a canal dock. Snook argued that this was improper evidence offered to show his propensity to violate environmental laws; the government argued that it showed motive, intent, and plan, see Fed. R. Evid. 404(b), i.e., Snook’s motive, intent, or plan to save money for Clark by not complying with proper procedures. The district court admitted the testimony but instructed the jury to regard it only as to Snook’s intent, motive, knowledge, or plan.

The technician’s testimony was rather ambiguous, and therefore of limited probative value: for example, he could not be sure whether the samples actually contained hazardous materials, whether he actually showed the samples to Snook, or whether Snook was referring him to a proper disposal area located near the dock. But we need not decide whether this testimony was erroneously admitted, because even if it was, it was harmless due to the district court’s limiting instruction and, more importantly, the overwhelming evidence of Snook’s guilt. See, e.g., United States v. Rollins, 301 F.3d 511, 520 (7th Cir.2002). First, the government offered a number of documents including both (1) reports prepared and signed by Snook that revealed only favorable data, and (2) more complete reports prepared for Clark from the same period showing numerous violations that were not turned over to the District. (And Snook never challenged the fact that he engaged in selective reporting.) Second, an EMT employee, Nick Preys, testified that Snook (1) contacted him to perform testing for Clark; (2) instructed him to provide two types of reports: one with all testing data, and one with only data showing passing results for six separate days during the testing period; and (3) later instructed Preys to prepare RD-115 reports for Clark using only passing data. Third, Snook’s assistant, Carusiello, testified that Snook showed her portions of the District’s reporting ordinance and acknowledged to her that violations needed to be reported within 24 hours. Fourth, the government submitted correspondence from Snook to the District in which he acknowledged that all data must be submitted and violations reported. Fifth, an EPA investigator testified that Snook repeatedly told him that the selectively reported data was all that Clark had collected. Sixth, two environmental experts testified that the reporting requirements were common knowledge among those in the environmental field. Finally, the government established that Snook had worked for a number of years in the environmental field. Given this evidence, we fail to see how Snook was prejudiced by the technician’s testimony.

III.

Snook also argues that on three occasions during closing argument the government improperly commented on his decision not to testify at trial. First, after summarizing the government’s case, the prosecutor asked, “[a]nd what is the defendant’s response?” Second, after referring to statements made in Snook’s opening statement, the prosecutor stated, “I’ve heard nothing, nothing that backs up those representations.” Third, in discussing the conspiracy count, the prosecutor stated that “[a]ll you have to find is that [Snook] agreed not to report violations, and the evidence is basically uncontroverted in that instance.”

The Fifth Amendment prohibits prosecutors from inviting jurors to draw adverse inferences from a defendant’s decision not to testify by commenting, either directly or indirectly, on that decision. United States v. Mietus, 237 F.3d 866, 871 (7th Cir.2001); United States v. Robbins, 197 F.3d 829, 835 (7th Cir.1999). Indirect comments are improper if either the prosecutor manifestly intended to refer to the defendant’s silence or a jury would naturally and necessarily take the comments to be a remark on that silence. Mietus, 237 F.3d at 871. Comments that government evidence is unrebutted are improper only if the defendant was the only person who could have rebutted the evidence. Id. If the prosecutor’s statements are improper, we determine whether the defendant was prejudiced, or whether the statements rendered the trial so unfair as to deny the defendant due process. Robbins, 197 F.3d at 836.

The context of the first two statements reveals that the prosecutor was commenting on Snook’s case rather than on his decision not to testify. The first statement (“And what is the defendant’s response?”) came as a transition after a summary of the government’s case and just before a summary of the case put on by Snook. The second statement (“I’ve heard nothing, nothing that backs up those representations.”) was a response to statements made by Snook’s counsel that the evidence would show that selective reporting was the established procedure at Clark and the one taught to Snook (this referred to the excluded evidence discussed above in part I). And following both statements, the district court reminded the jury that the government and not Snook had the burden of proof. See United States v. Wilson, 237 F.3d 827, 835 (7th Cir.2001) (juries assumed to follow instructions). Because these statements were comments on the weakness of Snook’s case rather than his silence, they were not improper. See United States v. Xiong, 262 F.3d 672, 675 (7th Cir.2001) (prosecutor may comment on weakness of defendant’s case).

The third statement is a closer call. The prosecutor’s comment that Snook’s decision to selectively report was “basically uncontroverted” would be inappropriate if Snook were the only person who could refute the point. But this was not the case. Snook’s counsel could have, for example, tried to show that the documents Snook submitted did report all the available data or that others submitted the data without his knowledge. Moreover, Snook never challenged whether he selectively reported; his theory was that he believed it to be legal. So the prosecutor was more likely referring to this fact rather than Snook’s silence. Consistent with this is the prosecutor’s statement immediately before that, on the conspiracy count, the government need not prove Snook knew the practice was illegal. But even if this, or the other two statements, crossed the line and were improper, Snook was not prejudiced because of the overwhelming evidence of his guilt, as discussed above. See Mietus, 237 F.3d at 873; Xiong, 262 F.3d at 676.

rv.

Finally, Snook challenges the district court’s decision to impose a two-level increase in offense level for abusing a position of trust. U.S.S.G. § 3B1.3. The increase is appropriate when a defendant occupies a position of trust and abuses that trust to significantly facilitate a crime. United States v. Cruz, 317 F.3d 763, 766 (7th Cir.2003); United States v. Mabrook, 301 F.3d 503, 510 (7th Cir.2002). No formal labels or categories dictate when a defendant occupies such a position; instead we look to the relationship between the defendant and the victim and the level of responsibility the defendant was given. Mabrook, 301 F.3d at 510. We review the district court’s interpretation of the Guidelines de novo, and we review the district court’s finding that the defendant occupied and abused a position of trust for clear error. Cruz, 317 F.3d at 765-66; Mabrook, 301 F.3d at 510.

The district court imposed the increase after finding that Snook occupied and abused a position of trust with respect to his victims, the District and the public, based on the responsibilities given to Snook in his job and under the statute, and his potential to affect health and safety. Snook contends that he occupied a position of trust with respect to Clark but not to the District or the public. We disagree. The Clean Water Act is public-welfare legislation and the victims of violations are the public. United States v. Technic Servs., Inc., 314 F.3d 1031, 1049 (9th Cir.2002). As Environmental Manager at Clark, Snook was given discretion to devise Clark’s wastewater treatment and testing systems, as well as to decide when to conduct such testing. And although the District did periodically conduct its own testing, it was for the most part dependent on the data that Clark reported.’ The facts here illustrate this point effectively — for over three years Clark’s wastewater had numerous violations that went undetected because Snook, in his unique position as Environmental Manager, did not report them. Moreover, unlike other self-reporting situations (taxpayers, for example), the regulations here apply to matters that directly and significantly affect the public’s health and safety. See United States v. Gonzalez-Alvarez, 277 F.3d 73, 81-82 (1st Cir.2002) (abuse-of-trust increase applied to dairy farmer for not complying with regulations); United States v. White, 270 F.3d 356, 372-73 (6th Cir.2001) (employee at water-treatment plant); United States v. Turner, 102 F.3d 1350, 1360 (4th Cir.1996) (owners and operators of coal mine); but see Technic, 314 F.3d at 1049-52 (not applied to private contractor hired to clean up asbestos). Given the responsibility and discretion given to Snook in his position as Environmental Manager in complying with the District’s regulations, and his abuse of that position, the district court did not err in applying the sentencing increase.

Affirmed.