my name is steve richard i represent match max spec who if you ever met him i think or anyone who ever met max would suggest that the term irascible probably fits in quite well if that's another statement as a the federal prosecution in two thousand as a result of the clean up in two thousand and ten that this trial judge erred in determining that the statute involved was not or did not requir specific intent element to it the court specifically concluded that it was a general intent crime and we are suggesting to the court that that is error in part or mostly because the statute requires that mr spank have knowledge both of the hazardous nature of the material on his property and secondly knowledge that the material had become waste and the trial mr spann wanted to approach the the issues of his knowledge that he had diminished capacity the trial judge said and that's not something we're going to get into because this is a general intent crime so mr spann dick was denied his ability to say or have testimony to say that his ability to understand that his materials were hazardous and then became waste that his mental impairment may not arise to the level of the knowledge requirement and the stance you the second issue that we had approached is sentencing issue and that is that mr spann to the trial court added four levels of four offense levels under the guidelines because the cleanup was substantial and he court knows the statute does not describe or define the word substantial arse suggesting to this court is that the trial court erred simply by determining that there were numerous canisters on his property and that there was some testimony that these canisters could ignite and cause a fire i suppose the problem with that is simply counting the number of canisters really doesn't address the substantial nature of the other factors that statute involves that would be evacuating the community in those types of issues there's just a number of canisters and whether or not it could be in flammable by definition if blow up or whatever where it's basically talking about a half million dollars right yes just short of that yeah just short of a half million dollars and so your challenge as i understand it is that that is substantially greater than the run of the mill cleanup i suggest that any time the e p a contracts with someone to do some type of cleanup the cost will be substantial i can't tell you how much but i think five hundred thousand dollars to clean up this property was a lot so you want to take a comparative approach but you have no comparatives force well nor did the trial judge the trial judge looked at just the quantities he didn't look at what are the relative costs what does that mean that a comparative approach is in appropriate use look at the bare dollars that it's more than thirty six thousand dollars  substantial impact upon the community release is a gas or clean or evacuating the community those are the two actual defined substantial problems and then the third one well so you know that's a little bit different argument as i hear and now you're saying it could be a substantial expenditure of money but that alone isn't enough to bump it up you need some other substantial impact is that what you're saying yes it is and how does the text of the guidelines support that meeting because the guidelines suggest we're actually defines those two other elements too particularly one evacuated community so it's defining imp substantial is the wrong word the finding significant impact on the community and then here the trial judge appeared to simply look at the number of the candidates so your is clear required a substantial expenditure but that would suggest to me that every clean up would be would require substantial expenditure unless you had something else too  and the guy you know it's one that was thirty two thousand so that wasn't substantial right what a lot of money so it could have been substantial but we have case law right so i mean what if you look at thirty two thousand one hundred thousand two hundred thousand all the various cases this amount far exceeds any of those where they've been found to be substantial right i don't know if i can answer th due to his long history of flouting government safety regulations his bottom of the box guideline sentence included forty six months imprisonment this court should affirm mr spags convictions and sentence for the following reasons first regret rexburg property just to find the four level i had spent under the guidelines section two q one point two can i have you start with the sentencing issue because you are in light of the guidelines on plain language or of cleanup required substantial expenditure than increased by four levels i thought counsel was going to make an argument that half a million dollars compare with the run of the mill six seven figure cleanup isn't sufficient to be substantial how how should the district court approach the terminations of what substantial like comparing it to the run the mill case by taking the high end in the low end and then figuring out whether the dollar amount expended in any particular case false closer to one versus the other well this court's case in the decision in marino suggested that it should be compared to other cleanups of a similar nature in marino the court found that thirty two thousand dollars was not substantial here the amount that we're talking about is more than ten times that much looking to other cases in other circuits where this guideline provision has been applied it seems to run from about fifty seven thousand dollars to two and a half million those are the instances which the guide or the enhanced that was applied so the five hundred thousand dollars here seems to fall squarely within that range of cases in which the guideline was applied additionally in this case the district court did look at the language that surrounded the substantial expenditure portion of section two q one point two which says that the enhancement is proper if the offense resulted in a disruption of public utilities or an evacuation of the community the court said that that suggests that there is a community element here and i'd point out to the court that in this case originally it was the local authorities the county they came out and tried to take a look to see if they could clean up the mess they call it so then they went to the regional authorities they couldn't do it the state had to call in e p a in order to and then bring out a team from the state of washington to clean up the mess here so as compared to the commute the the effect on the community and the number of canisters as well as the amount of money at issue in this case this was a substantial expenditure of resources on the part of e p a so the and handsome and here is absolutely proper  what's wrong with that approach i don't think that there is anything wrong with that approach i think that that is absolutely what the district court did here he looked at the type of material that was there the amount of material he noted that the  different types of hazardous material presented a great potential for a toxic threat to the community he also noted the fact that so many that you know it wasn't enough for the locals it wasn't enough for the state vegetation the animals to humans well that's not an element of the the offense here under record the government did not have to prove that there was harm to the environment only the potential for harm to the environment that's the definition of of of these materials that were flammable had a very low flash point as low as seventy i think it's seventy four degrees fahrenheit and this was you know well below the temperature of you that was existed in the atmosphere at the time that these materials were cleaned up of record the pictures that were taken at the property you can see that the materials are leaking into and you know they are so they've leaked into the ground the containers are leaking there's you know these are left out in the open for the you know it's open to the elements additionally there was testimony from mr statics neighbor mr hare and that he had a ditch at the border of the property he usually would burn the ditch every spring to get rid of the shrubbery and such that had grown  up in there and he was he declined to do that specifically because he saw all of these containers sitting around that have these flammable warnings on them and so he was concerned that if he were to engage in his normal practices that he would be creating a substantial risk to his own property as well as you know potentially the rest of the community i'd like to turn to the specific versus general intent issue this is absolutely a general intent a statute there's more it's a sense that the defendant acted for specific purpose and there was no requirement in this statute that the defendant had to intend any result from his act of storing or disposing of the hazardous waste this court said to minister to pacify doctrine simply does not apply moreover even if this were a specific intent crime the any error here was more probably harmless the not the proffered evidence which all that was offered here was dr mcgrath's report the original offered for either insanity or diminished capacity purposes and the court said that from the report it couldn't be determined that the report had that dr mcgrath testimony would have been relevant in any way to whether or not mr static had actual knowledge that the material on his property was hazardous waste as a result the court offered the defense an opportunity to present dr mcgrath for what dear at a later date but the defense did not take that opportunity of looking at the report it's clear that there's nothing that would have been relevant to the issue of the defendant's actual knowledge the diagnoses presented were personality disorders or temporary disorders  dealing with behavioral and emotional distress the neurocognitive disorder identified was on the basis of mr static self report to dr take me and there's nothing in the record that would support  the issue that or the fact that mr sadek had ever had a stroke additionally the government wanted substantial evidence that mr spotted david did in fact know that the material honest property was hazardous waste he'd been told in two thousand and five that any material on his property that was that did not have a label was leaking or corroded was waste and needed to be disposed of he was told that both in a letter from the state attorney general's office he was told in person when oxidizer again the supplemental experts of record include pictures that show all of these labels and additionally they were of the product itself that had gone bad i mean there are a good pictures showing that the material had hardened and couldn't be used in any of meaningful manner mr spot himself threw them out in the yard along with on useable vehicles and other trash showing that he believed them to be waste for these reasons we had asked the court to a we'll start from sentencing you know a quote from the marino case which the trial judge quoted at length rinse and see and the court says the purpose here is to distinguish some transporting storage and other offenses from other according to how much harm they do that was the standard that the merino court ultimately determine whether or not he substantial expenditure of government money  that you're right i don't think there was any trial testimony but the concern i have when you say we don't know is that the fact that they expend money that prevents a calamity means you're always going to be speculating about what could have happened no doubt i agree with height so there's nothing wrong with reasonable anticipation or if you want to go speculation that's what it is the testimony at trial suggested that the materials had deteriorated and hardened i don't know if there was any testimony at trial that i could see court talks about this he said there were vast materials pictures huge quantity but there was concern that they had a toxic component meaning at that contact as murphy says with the fire there was something to ignite them they would cause a significant difficulty so then the court goes on it in light of this magnitude of what was presented at trial plus the money so it appears that the district court actually took into account not only the potential community harm but the amount is certainly what the transcript says unless i'm reading it wrong i read it a little bit differently all right i read it that the judge looked at the expense number of the containers but i look for support for that and the conclusion in the trial testimony didn't see other than that the chemicals which originally were were in the canisters could be volatile out or could be corrosive once they harden and there was no or evidence that there would not be any volatility that these were basically kind of dead last not dead letter toxic waste i did not nor did trial counsel but at sentencing that was not the government didn't show that either to support the enhanced thank you thank you both for your argument this morning united states