United States v. Hartsell

Filed: October 16, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-5796(L)
(CR-93-186-P)
United States of America,
Plaintiff - Appellee,
versus
Gene Wesley Hartsell, etc., et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed October 6, 1997, as
follows:
On page 17, first full paragraph, line 17 -- a closing
parenthesis is added after "4th Cir. 1979."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5796
GENE WESLEY HARTSELL, a/k/a Gene
Wesley Gabe Hartsell,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5797
KEITH NORLAND EIDSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5804
CHEROKEE RESOURCES, INCORPORATED,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-186-P)
Argued: February 2, 1996
Decided: October 6, 1997
Before ERVIN and MOTZ, Circuit Judges, and BLAKE,
United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Motz and Judge Blake joined.
_________________________________________________________________
COUNSEL
ARGUED: Dale Stuart Morrison, LAW OFFICES OF DALE S.
MORRISON, Charlotte, North Carolina, for Appellants Eidson and
Cherokee Resources; Edward Anthony Fiorella, Jr., HARKEY, LAM-
BETH, NYSTROM & FIORELLA, Charlotte, North Carolina, for
Appellant Hartsell. Ellen J. Durkee, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Lois J. Schiffer,
Assistant Attorney General, David C. Shilton, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Mark T. Calloway, United States Attorney,
Peter Crane Anderson, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Appellants, Cherokee Resources, Inc., Keith Norland Eidson and
Gene Wesley Hartsell were convicted, following a jury trial, of
numerous violations of the Clean Water Act (CWA), 33 U.S.C.
§ 1311 et seq. They appeal their convictions and their sentences, rais-
ing dozens of challenges to the validity of their trials. For the reasons
hereinafter explored, we affirm in all respects.
I
Both the factual history and the statutory and regulatory scheme in
this case are quite complex, and a brief overview of both is necessary.
2
Cherokee Resources, Inc., (Cherokee) operated a wastewater treat-
ment and oil reclamation business in Charlotte, North Carolina. Eid-
son was the president of Cherokee and Hartsell was the vice-president
and sole shareholder. Both were involved in overseeing Cherokee's
compliance with environmental regulations including the CWA.
In the course of its business, Cherokee accepted oil and industrial
wastewater from its customers, processed the oil for re-use and
treated the wastewater, and periodically released treated wastewater
into the public sewer system. Cherokee's discharges flowed through
the sewer to the Irwin Creek Sewage Treatment Plant. This plant is
considered a publicly owned treatment works, "POTW," in the CWA
statutory and regulatory scheme. The plant is operated by the
Charlotte-Mecklenburg Utility Department (CMUD). The water
treated at Irwin Creek Plant eventually flows into Irwin Creek and
then into the Catawba River. The river then continues on into South
Carolina, emptying into the Atlantic Ocean in Charleston.
The CWA and its interpretive regulations require POTWs, includ-
ing Irwin Creek, to issue pretreatment permits to industrial sources
specifying levels at which those sources can discharge certain pollu-
tants into the public sewer system. The authority to administer the
permit program and issue necessary permits was delegated to North
Carolina and its agencies pursuant to the CWA. See 33 U.S.C.
§ 1342(c). The program pursuant to which the permits are issued is
designed to monitor and limit pollutants in industrial wastewater and
is overseen by the Environmental Protection Agency (EPA) and the
North Carolina Department of Health, Environment and Natural
Resources. Discharge permits issued to industrial dischargers gener-
ally last for one to three years.
On May 15, 1990, CMUD issued Cherokee a pretreatment permit
limiting the quantities and concentrations of specific pollutants Cher-
okee could discharge into the sewer. A second permit was issued on
June 3, 1991, and a third permit was issued on November 1, 1992.
North Carolina law allows regulated parties a thirty day period within
which to comment about or object to the limits contained in a pre-
treatment permit. See 15 N.C.A.C. 2H.0900 (1987). Cherokee never
made any response to any of the permits issued to it.
3
Cherokee's discharge permits contained several provisions includ-
ing (1) a general prohibition against "bypassing" water treatment and
discharge monitoring facilities; (2) sampling and monitoring require-
ments to insure Cherokee's compliance with the permit; and
(3) limitations on amounts and concentrations of specific pollutants
discharged. Pursuant to the CWA scheme and the permits, Cherokee
was required to self-monitor its discharges and it hired outside private
laboratories to conduct its self-monitoring. CMUD also conducted
routine tests of Cherokee's discharges.
In the summer of 1990, CMUD tests and Cherokee's self-
monitoring both revealed excessive levels of certain toxic pollutants
in Cherokee's discharges including cadmium, chromium, copper,
lead, nickel and zinc. Every time tests were conducted, either by
Cherokee's self-monitoring process or by CMUD with Cherokee's
knowledge, excessive discharges were discovered. As these violations
of Cherokee's permits were discovered, CMUD sent notices of the
violations to inform the company that it was discharging in substantial
excess of the legal limits imposed by its permits. The violation notices
also required Cherokee to do four consecutive days of self-monitoring
within thirty days of receipt of the notice, in addition to the occasional
self-monitoring already required of all industrial dischargers. How-
ever, Cherokee's discharges of illegal levels of toxic pollutants did
not end, despite the repeated notices.
In 1990, CMUD's Systems "Protection Division Manager and Pre-
treatment Coordinator," Robert Griffin, began to suspect that Chero-
kee's repeated and severe permit violations were the result of illegal
or abnormal operations. Griffin notified Federal Bureau of Investiga-
tion (FBI) Special Agent Thomas Burleson of his concerns. The FBI
began its investigation of Cherokee in early 1991.
In addition to the FBI investigation, CMUD increased its monitor-
ing of Cherokee's discharges, conducting surreptitious hourly moni-
toring for several days in the spring of 1991. During these tests
CMUD took samples of water upstream of Cherokee's "tap" or dis-
charge point and downstream of the tap, so that it could be deter-
mined precisely what pollutants Cherokee had put in the water.
Before this set of tests was conducted, CMUD cleaned out the sewer
line with a high pressure water spray to remove debris and buildup
4
and secure an accurate reading. These careful tests showed that Cher-
okee was repeatedly and substantially violating its permit levels and
that it was often doing so during the night.
In the summer of 1991, Agent Burleson compiled the evidence of
Cherokee's violations and submitted an affidavit in support of a
request for a search warrant of Cherokee's plant and offices. Burleson
first described the regulatory scheme of the CWA. He then listed the
results of the many tests done by CMUD and the results of Chero-
kee's self-monitoring in his affidavit.
Burleson next discussed the Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. § 6901 et seq., which regulates disposal,
treatment, storage and transportation of hazardous wastes. Burleson
described surveillance of a hazardous waste site apparently owned
and run by Cherokee; the surveillance suggested that Cherokee, which
had not been issued any proper permits by state or federal agencies,
may have been illegally treating, storing and disposing of hazardous
wastes.
On the basis of Burleson's affidavit, a search warrant was issued
on July 19, 1991, allowing search of both Cherokee's main plant and
of the suspected hazardous waste disposal site. The search was con-
ducted between July 17 and July 19, 1991.
Following the search, CMUD and Cherokee entered into prelimi-
nary negotiations regarding a compliance agreement, pursuant to
which Cherokee would agree to conform its behavior to its discharge
permit and to environmental laws and regulations. However,
CMUD's monitoring revealed continued severe and frequent permit
violations by Cherokee. In addition, following the search, several
Cherokee employees came forward and began to describe to authori-
ties the illegal discharge practices engaged in by Cherokee.
Ultimately, the evidence gathered by the investigation of Cherokee
and the testimony of the Cherokee employees revealed that the com-
pany used several illegal disposal methods, known as "bypass meth-
ods" because such practices bypass treatment and monitoring devices
and clandestinely discharge pollutants directly into the sewer line.
Employees revealed that illegal dumping occurred because Cherokee
5
accepted far more wastewater and waste oil than it could handle and
therefore it often dumped completely untreated water and oil into the
sewer system. In one bypass method, Hartsell and Eidson directed
employees to pump wastewater through the employees' toilet.
Another illegal technique used by Cherokee was to pump untreated
water into a storage tank which had a special valve for rapid discharge
and then discharge those pollutants directly into the sewer.
Hartsell, Eidson and Cherokee were charged, in a multi-count
indictment, with conspiracy to knowingly violate the CWA, know-
ingly violating pretreatment standards, and tampering with a pollutant
monitoring device. The defendants were tried in April 1994, but that
resulted in a mistrial because the jury could not reach a verdict. Fol-
lowing a second trial in June 1994, Hartsell, Eidson and Cherokee
were each convicted of conspiracy and of several substantive counts
of knowingly violating pretreatment standards, and Eidson and Cher-
okee were also convicted of tampering with a monitoring device. The
court imposed a $50,000 fine on Cherokee, along with a $1400 spe-
cial assessment, four years' supervised probation and prosecution
costs. Eidson and Hartsell were each sentenced to 51 months and
ordered to pay individual fines and special assessments. This appeal
followed.
II
On appeal, Cherokee, Hartsell and Eidson make almost fifty sepa-
rate assignments of error. Few of these arguments are explained or
substantiated, and none persuades us that a reversal of the appellants'
convictions or sentences is required. In this opinion, we will specifi-
cally address those of Hartsell's and Eidson's countless arguments
which are more clearly set forth and comprehensible.
As an initial matter we must turn our attention to the appellants'
assertion that the district court lacked subject matter jurisdiction in the
instant case. Although the argument on this matter is not clearly artic-
ulated, it appears that Hartsell, Eidson and Cherokee argue that the
CWA extends only to "navigable waters." The appellants argue that
their discharges into the public sewer system were not into a naviga-
ble waterway and, therefore, the federal government lacks the power
to punish such pollution and the federal courts lack the power to hear
6
a case involving such pollution. The appellants also seem to argue
that, even if Congress did intend for the CWA to extend to waterways
such as the sewer system in the instant case, Congress lacked the con-
stitutional power to regulate such waterways.
We find this argument to be without merit for several reasons.
First, the CWA clearly provides for regulation of discharges into pub-
lic sewer systems such as the Irwin Creek system in the instant case.
See 33 U.S.C. § 1317. The plain language of the CWA prohibits dis-
charge of pollutants into "navigable waters," except in accordance
with a permit issued pursuant to the Act. 33 U.S.C. § 1342. The Act
defines navigable waters as "waters of the United States," 33 U.S.C.
§ 1362(7), and this broad definition "makes it clear that the term `nav-
igable' as used in the Act is of limited import." United States v. River-
side Bayview Homes, Inc., 474 U.S. 121, 133 (1985).
Several courts, including the Supreme Court and this court, have
held that Congress clearly intended to regulate pollutant discharge
into sewer systems and other non-navigable waters through the CWA,
and that Congress has the constitutional authority to do so. In
Riverside Bayview Homes, the Court stated that Congress intended to
allow "broad federal authority to control pollution, for `[w]ater moves
in hydrological cycles and it is essential that discharge of pollutants
be controlled at its source.'" Id. (quoting the Act's legislative history,
S. Rep. No. 92-414, p.77 (1972)). The Court further held that Con-
gress clearly intended to exercise its powers under the Commerce
Clause to regulate at least some waters that would not be deemed
`navigable' under the classical understanding of that term." Id.(emphasis added). See also United States v. Tull, 769 F.2d 182, 184
(4th Cir. 1985) (recognizing the broad reach over waterways which
Congress intended to give the CWA), rev'd on other grounds, 481
U.S. 412 (1987); Hodel v. Virginia Surface Mining & Reclamation
Ass'n, 452 U.S. 264, 282 (1981) ("[W]e agree with the lower federal
courts that have uniformly found the power conferred by the Com-
merce Clause broad enough to permit congressional regulation of
activities causing air or water pollution, or other environmental haz-
ards that may have effects in more than one State."); United States v.
Ashland Oil and Transportation Co., 504 F.2d. 1317, 1325 (6th Cir.
7
1974) (holding that pollution of non-navigable waterways can be
properly regulated by Congress under the Commerce Clause).1
We hold that Congress not only intended to legislate against
unchecked discharge of pollutants into public sewers which would
eventually flow into streams and rivers, but that Congress acted
squarely within its power in so doing. Cherokee, Hartsell and Eidson
are unable to persuade us that either Congress, in passing the CWA,
or the district court, in hearing the criminal case against the appel-
lants, acted beyond its powers.
III
Hartsell, Eidson and Cherokee assert that they were deprived of
due process of law when the district court "routinely denied them
funds to present their case." Appellants' Brief at 22. Hartsell and Eid-
son were indigent and were therefore entitled to court-appointed rep-
resentation and to some public funds with which to secure resources
necessary to the preparation and presentation of a defense. Hartsell
and Eidson assert that the district court unfairly limited the amount of
money available to them to pay for defense investigators and experts.
Hartsell, Eidson and Cherokee also claim that the district court erred
when it declined to appoint counsel to represent Cherokee, a corpora-
tion. We hold that these claims are without merit, as the district court
provided the appellants with the public resources required by due pro-
cess considerations.
_________________________________________________________________
1 Hartsell, Eidson and Cherokee argue that the Court's recent decision
in United States v. Lopez, 115 S. Ct. 1624, 1630 (1995), signals a change
in Commerce Clause jurisprudence such that the CWA must now be read
as an unconstitutional action by Congress. We do not agree that Lopez
is a radical sea change which invalidates the decades of Commerce
Clause analysis, pursuant to which the CWA is certainly a valid exercise
of Congressional power. See United States v. Eidson, 108 F.3d 1336,
1341 (11th Cir. 1997) (finding, after Lopez, that Congress intended the
CWA to have the broadest possible constitutional reach and finding that
the Act therefore reaches non-navigable waters). Appellants' conclusory
statements of Commerce Clause philosophy do not persuade us that
Lopez renders the CWA unconstitutional.
8
A
Indigent defendants are entitled by law to money for investigative
and expert services that are "necessary for adequate representation."
18 U.S.C. § 3006A(e)(1). We review a district court's decision that
certain resources are or are not "necessary" for an abuse of discretion.
See Williams v. Martin, 618 F.2d 1021, 1026 (4th Cir. 1980); United
States v. Morrison, 946 F.2d 484, 490 (7th Cir. 1991), cert. denied,
113 S. Ct. 826 (1992). The Supreme Court has made clear that a
defendant does not have the right to public funding for all possibly
helpful avenues of investigation or all possibly useful expert services,
but only to the level of support required by the Due Process Clause.
Ross v. Moffitt, 417 U.S. 600, 616 (1974). The Court delineated the
scope of an indigent defendant's due process right to public funds to
help present a defense, stating that the government has no duty to "du-
plicate the legal arsenal that may be privately retained . . . [but must]
assure the indigent defendant an adequate opportunity to present his
claims fairly." Id. Stated differently, a defendant who alleges that a
denial of funds has violated due process must demonstrate by clear
and convincing evidence that the denial resulted in actual prejudice
to the defense. See United States v. Minor, 756 F.2d 731, 737 (9th
Cir.), cert. granted, judgment vacated by 474 U.S. 991 (1985), on
remand to 783 F.2d 154 (9th Cir. 1986).
In the instant case Eidson and Hartsell do not come close to satisfy-
ing their burden of proof. The record shows that Hartsell and Eidson
were provided with funds for fifty hours of investigative services and
fifty hours of expert services, exclusive of testimony in court, to pre-
pare for the first trial. They were then awarded an additional five
hours of investigative services and ten hours of expert services
between the two trials. Hartsell and Eidson seem to argue that they
should have received additional funds before the second trial, to
investigate possible new leads and theories of defense. However, the
trial strategy used by the government did not change between trials
and the evidence presented against the defendants was largely the
same. Hartsell and Eidson fail to explain how the outcome of their
second trial might have been different had they been provided with
more resources for their defense. We conclude, therefore, that Hartsell
and Eidson were given the resources necessary to the preparation of
a defense as required by considerations of due process.
9
B
With respect to Cherokee's claim that the court erred when it
declined to appoint counsel for the corporation, Cherokee argues that
the Criminal Justice Act, (CJA), codified at 18 U.S.C. § 3006A, man-
dates that counsel be provided to a corporation that cannot afford to
secure counsel for itself when it faces criminal charges. However,
Cherokee fails to point to the decision of even one court which has
held that a company was entitled to appointed counsel and Cherokee
cites no language from the CJA which supports its claim.
We find Cherokee's argument to be unpersuasive. The Ninth Cir-
cuit recently held that neither the Sixth Amendment to the United
States Constitution nor the Criminal Justice Act provides that counsel
must be appointed, at public expense, to represent a corporation in
criminal proceedings. See United States v. Unimex, Inc., 991 F.2d
546, 550 (9th Cir. 1993); see also United States v. Hoskins, 639 F.
Supp. 512, 514 (W.D.N.Y. 1986), aff'd 875 F.2d 308 (2d Cir. 1989).
We agree, finding no suggestion anywhere in 18 U.S.C. § 3006A that
corporations are entitled to publicly appointed counsel. Moreover,
Cherokee does absolutely nothing to show that, even if it were a "per-
son" entitled to representation as provided by the Criminal Justice
Act, it would qualify as "a person financially unable to obtain ade-
quate representation. . . ." 18 U.S.C. § 3006A(a). Cherokee does not
show that it lacked the funds to secure its own counsel. We conclude
that Hartsell, Eidson and Cherokee failed to show that the district
court abused its discretion when it limited their access to the federal
coffers, either when it limited Hartsell and Eidson's access to investi-
gative and expert services or when it declined to provide publicly paid
representation to Cherokee.
IV
Eidson, Hartsell and Cherokee next assert that they were prose-
cuted for violating unfair and unclear laws and regulations. As with
the other arguments, the appellants' specific position with respect to
this issue is very murky. The appellants seem to argue that the CWA
and its interpretative regulations are unconstitutionally vague and that
the discharge permits issued to Cherokee were too stringent. For sev-
eral reasons, we conclude that both of these claims are without merit.
10
A
We turn first to the vagueness argument. Hartsell, Eidson and
Cherokee do not explain their contentions on this issue, but simply
state in three very conclusory sentences, that the "laws and regulations
used to convict these Defendants were unconstitutionally vague," and
that laws must be sufficiently specific to inform people of what is for-
bidden. This bald and empty argument is simply inadequate to sustain
the appellants' burden of proving that the CWA is invalid.
The CWA plainly and explicitly provides for the promulgation of
regulations which will limit or prohibit the discharge of pollutants
into POTWs. 33 U.S.C. § 1317. Those regulations, in turn, mandate
the issuance of permits to "Industrial User(s)" which contain specific
effluent limits for those users, 40 C.F.R. 403.5(c). The individualized
limits in these permits are deemed "standards" within the meaning of
33 U.S.C. § 1317(d), which prohibits the operation of a source of pol-
lutants in violation of pretreatment standards. 40 C.F.R. 403.5(d).
Finally, the CWA makes plain that criminal penalties, including
imprisonment, will be assessed against those who knowingly violate
a "permit condition or limitation" of the statutory and regulatory
scheme of the CWA. 33 U.S.C. § 1319(c)(2)(A).
In the instant case, Cherokee was issued three very specific permits
which explicitly informed the company and its officers of the limits
on the quantities and concentrations of certain pollutants that could be
released into the public sewer system. The combination of laws, regu-
lations, permits and warning letters in this case put Cherokee, Hart-
sell, and Eidson on very clear notice of the conduct which would
result in violation of federal law and possible incarceration and fines.
A statute is not unconstitutionally vague if it "define[s] the criminal
offense with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." Koleander v.
Lawson, 461 U.S. 352, 357 (1983); see also United States v.
Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993) (holding, in a case
similar to the instant one, that discharge permits provided ample
notice that certain behavior on the part of the defendants would vio-
late the law). In the instant case, there is no merit to the appellants'
11
empty contention that they lacked the constitutionally required notice
of the illegal nature of certain acts.2
B
Cherokee, Hartsell and Eidson also argue that the specific permits
which were issued to them were unnecessarily strict and arbitrary.
They argue that the permits limited their discharge of certain pollu-
tants to a level that was even less than the permissible concentration
of those pollutants in ordinary drinking water. Again, we are not per-
suaded by their analysis.
First, as mentioned above, the North Carolina law which governs
the issuance of permits such as the ones issued to Cherokee specifies
that any challenges to discharge limitations set forth in those permits
must be raised within 30 days of receipt of the permit. 15 N.C.A.C.
2H.0900 (1987). "Unless such demand is made, the decision on the
application shall be final and binding." Id. In this case, Cherokee and
_________________________________________________________________
2 Hartsell, Eidson and Cherokee argue, in a entirely separate section of
their brief, that their prosecution violates the prohibition in the United
States Constitution against ex post facto prosecutions, Article I, Sec. 9.
The appellants argue that "[t]he Defendants' convictions for discharging
in excess of a municipal permit were an unforeseeable judicial enlarge-
ment of maritime shipping laws and criminal statutes and regulations
without the Defendants being given a fair warning their conduct would
give rise to criminal penalties." App. Br. at 28. It is unclear how the
appellants' ex post facto argument, as articulated, is distinct from their
argument regarding vagueness, but it is clear that the appellants do not
understand the nature of the protections afforded by the ex post facto
clause.
We hold that the ex post facto clause was not violated by the govern-
ment's actions in the instant case as Eidson, Hartsell and Cherokee were
prosecuted pursuant to laws and regulations that were clearly "on the
books" at the time of the appellants' illegal conduct, and they were given
punishments which were already clearly provided for in the law. We note
that appellants' reliance on Marks v. United States, 430 U.S. 188 (1977),
is misplaced as that case dealt with application of new standards defining
illegal hard core pornography to conduct which occurred before those
standards were created. That case is plainly inapposite to the instant
facts.
12
its officers never challenged the discharge limits contained in any of
the permits issued. Therefore they may not contest those limits before
us in their appeal. See Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50-51 (1938) (noting "the long settled rule of judicial admin-
istration that no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has been
exhausted"); see also St. Francis Hosp. v. Bowen, 802 F.2d 697, 701
(4th Cir. 1986).
Second, the permit program administered by CMUD and the spe-
cific permits issued to Cherokee were both developed in compliance
with the CWA and its regulations. Among other things CMUD con-
sidered the capacity of the Irwin Creek treatment facility, the number
of industrial dischargers which discharge into that section of the
sewer system and the amounts of their discharge, and federal and state
standards for water quality when it issued Cherokee's permits. Chero-
kee offers almost no analysis and no legal precedent to support its
claim that the permits issued to limit its discharges were too stringent.
Cherokee's sole support for its claim that its permit levels were too
severe is that, for two pollutants, Cherokee was limited to a discharge
level that was lower than the drinking water standards for that pollu-
tant. However, as the district court below correctly realized, the regu-
latory program for discharge into sewers, treatment facilities and,
eventually, creeks and rivers created by the pollutant discharge provi-
sions of the CWA serves a different purpose and uses different means
than the drinking water standards. For instance, the regulated pollu-
tants could harm waterways and aquatic life, and could introduce
chemicals which hamper treatment facilities' ability to treat waste
water, even at levels where they might not directly harm humans.
Hartsell, Eidson and Cherokee have not shown that it is in any way
illegitimate for federal and state agencies to apply stringent standards
for certain industrial discharges into sewer systems.3 Moreover, as the
_________________________________________________________________
3 Eidson, Hartsell and Cherokee argue, in a separate portion of their
briefs, that the district court erred when it precluded them from introduc-
ing evidence of drinking water standards at trial so that they could argue
that their permits were excessively stringent. However, as explored here,
such evidence was properly excluded as it is irrelevant to any issue prop-
erly before the judge or jury at trial.
13
government points out, Cherokee's discharges were so contaminated
that they routinely exceeded drinking water standards as well as the
limits included in their permits.
V
Hartsell, Eidson and Cherokee argue that the search of the Chero-
kee facilities and offices was conducted pursuant to an invalid search
warrant and therefore the district court erred when it declined to sup-
press the evidence acquired during that search. This argument is no
more clearly articulated than the appellants' other contentions. In fact
Hartsell, Eidson and Cherokee neglect to even mention in their briefs
what evidence was seized that they are seeking to suppress. Nonethe-
less, we are able to glean enough information from the briefs and the
record before us to conclude with certainty that the government's
search of Cherokee was legal.
It seems that the appellants' argument regarding the invalidity of
the search warrant has several components. They assert that the affi-
davit of Agent Burleson, given to the magistrate judge when the
search warrant was sought, relied upon discharge tests which were
two months old at the time of the warrant; that some of the tests relied
upon were not "flow proportioned" and therefore did not test repre-
sentative samples; and that many of the facts relied upon in the affida-
vit in support of the warrant dealt with violations of the Resource
Conservation and Recovery Act (RCRA) rather than the CWA. How-
ever, Hartsell, Eidson and Cherokee fail to show how these facts
serve to undercut the magistrate judge's finding of probable cause.
We find that some of Cherokee's assertions are simply inaccurate
and that others, even if true, do not support its contention that proba-
ble cause was lacking. We recognize that a magistrate judge's deter-
mination of probable cause based upon the assessment of facts
presented in support of a search warrant is paid "great deference" and
overturned only for abuse of discretion. See United States v. Leon,
486 U.S. 897, 914 (1984); United States v. Blackwood, 913 F.2d 139,
142 (4th Cir. 1990). We also note that we must review the "totality
of the circumstances" presented to the magistrate judge when review-
ing whether the warrant was supported by probable cause. See Illinois
14
v. Gates, 462 U.S. 213, 238 (1983); United States v. Lalor, 996 F.2d
1578, 1580 (4th Cir. 1993).
When we look at all of the facts presented to the magistrate judge
by Burleson in this case, it is clear that there was probable cause to
believe that Cherokee and its officers were engaged in illegal activity.
Burleson's affidavit showed that, during every routinely scheduled
"sampling event" which tested Cherokee's discharge, Cherokee
exceeded its permit limits for certain pollutants. Further on two differ-
ent "surreptitious" sampling occasions, in late April and early May of
1991, it was found that Cherokee's discharges were highly
contaminated.4 A single sample was taken on July 1, 1991, two weeks
before Burleson sought the warrant, to "freshen" probable cause; that
sample as well showed numerous violations of Cherokee's discharge
permit.
These numerous tests measuring discharge of pollutants into the
sewer, some of them conducted by Cherokee itself as part of its "self
monitoring," provide more than ample probable cause to believe that
Cherokee might be violating the law. While it is true that the tests
done were not "flow-proportional," Cherokee does not explain how
this rendered the results of those tests completely invalid. As the gov-
ernment points out, "time proportional" tests were used because Cher-
okee had not installed the equipment necessary to conduct flow
proportional tests; the time proportional tests still constituted repre-
sentative sampling.
Finally, it is true that the affidavit included extensive discussion of
evidence which suggested that Cherokee might be flagrantly violating
RCRA as well as the CWA. Cherokee, Hartsell and Eidson imply
that, because the government eventually decided not to pursue crimi-
nal charges under RCRA, the search warrant is invalid because it
relied on the RCRA evidence as well as the CWA evidence. How-
ever, they offer absolutely no support for this contention. In fact, we
find that the portions of the affidavit dealing with the CWA alone
_________________________________________________________________
4 We cannot review the specific quantitative statistics offered by Burle-
son in support of his affidavit because the attachments, which included
graphs showing the extent of Cherokee's illegal discharges, were omitted
from the record before us on appeal.
15
were more than enough to provide probable cause to search. Further,
the facts related to RCRA were validly considered by the magistrate
judge, as they also provided probable cause that laws were being bro-
ken, irrespective of the fact that ultimately no charges were brought
relating to those facts.
In sum, we hold that the magistrate judge acted well within his dis-
cretion when he issued a warrant allowing the government to search
Cherokee facilities and offices. Further, even had the warrant been
issued in error, Cherokee, Hartsell and Eidson fail to suggest what
evidence should have been suppressed and how exclusion of that evi-
dence would have altered the outcome of their trial. Therefore, they
would not be entitled to relief even if they had convinced us that the
warrant was invalid.5
VI
Hartsell, Eidson and Cherokee raise two challenges to the indict-
ment. First, they contend that the indictment contains unnecessary and
prejudicial surplusage which should have been removed by the dis-
trict court prior to trial. Second, they assert that counts two through
six of the indictment, charging the defendants with discharging con-
taminants in excess of their permit limits, should have been stricken
from the indictment and should never have reached the jury. As with
appellants' other arguments, neither of these claims is clearly articu-
lated, and neither is persuasive.
_________________________________________________________________
5 In a related argument, Hartsell, Eidson and Cherokee assert that the
district court should have ordered a Franks hearing wherein they could
examine Burleson about the "erroneous information" allegedly included
in his affidavit to the court when he sought the search warrant. See
Franks v. Delaware, 438 U.S. 154 (1978). We have held that a defendant
must first make a showing that an affiant's statement in a warrant affida-
vit was deliberately or recklessly false and that the remaining facts con-
tained in the affidavit are inadequate to sustain a finding of probable
cause. See United States v. Jeffus, 22 F.3d 554, 559 (4th Cir. 1994). Hart-
sell, Eidson and Cherokee made neither showing in the instant case, and
the district court correctly denied their request for a hearing.
16
A
With respect to the "surplusage" in the indictment, Hartsell, Eidson
and Cherokee argue that the paragraphs at the beginning of the indict-
ment which explain the CWA and its complex regulatory scheme
should have been removed before the jury saw the indictment at trial
as those paragraphs were "self-serving and highly prejudicial." How-
ever they do not explain, beyond this single sentence, why these para-
graphs even constitute surplusage and how they might have caused
any prejudice whatsoever to the defendants. Instead we are persuaded
by the government's assertion that these paragraphs are useful and
accurate descriptions of the complex legal scheme. Further, even if
the paragraphs were unnecessary, because the district court's instruc-
tion to the jury regarding the relevant law provided the same analysis,
we find no indication whatsoever that they were prejudicial. Given
that we review the district court's decision concerning whether or not
to strike alleged surplusage from the indictment to see if that decision
constitutes an abuse of discretion, United States v. Poore, 594 F.2d
39, 41 (4th Cir. 1979), 1 Wright, Federal Practice and Procedure,
§ 127 at 426, we find no abuse of discretion in this case.
B
Similarly, we find there to be no merit in appellants' claim that
counts two through six should not have been presented to the jury. It
appears that the crux of the argument on this point is that there was
insufficient evidence to support a conviction on these counts. Hartsell,
Eidson and Cherokee assert that various flaws in the testing methods
used to monitor Cherokee's pollutant discharges rendered those tests
inadmissable, or at least not probative of guilt.
When addressing a claim of insufficiency of the evidence, we must
affirm a criminal conviction if, in light of the totality of the evidence
presented at trial, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See United States
v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc) ("Critical
to our review of sufficiency challenges is the complete picture that the
evidence presents."); see also Jackson v. Virginia, 443 U.S. 307, 319
(1979) ("[T]he relevant question is whether, after viewing the evi-
dence in the light most favorable to the prosecution, any rational trier
17
of fact could have found the elements of the crime beyond a reason-
able doubt."). In the instant case, the government relied on the results
of several different discharge tests and the testimony of former Chero-
kee employees in convicting Cherokee, Hartsell and Eidson of the
illegal discharges in counts two through six. Some of these tests were
conducted by Cherokee itself as part of its self-monitoring. Even if
the appellants' claim that the tests conducted and discussed at trial
were not perfectly accurate is true, they are unable to show that no
reasonable trier of fact, considering the substantial evidence presented
in this case, could vote to convict.
VII
In addition to the above-discussed claims, Cherokee, Eidson and
Hartsell raise countless additional challenges to their convictions and
sentences. For example, they claim that several dozen of the evidenti-
ary decisions made by the district court during trial were erroneous;
most of these arguments are each raised in one sentence or less. Hart-
sell, Eidson and Cherokee also challenge the government's use of
informants, the court's instructions to the jury, the court's decision to
allow examination of witnesses on certain points and to forbid ques-
tioning regarding other matters, and the calculation of their sentences,
among other things.
We have closely examined each of these contentions, even though
many were scarcely articulated by the appellants themselves. We find
that none of these arguments, and none of the more closely addressed
contentions explored above, is persuasive. Therefore the convictions
and sentences of Cherokee, Hartsell and Eidson are affirmed in their
entirety.
AFFIRMED
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