one five five one eight one united states of america versus marks or your arguments not to exceed fifteen minutes for side mr lloyd for pal please the court i would like to reserve three minutes for rebuttal thank you your honor i am francis lloyd of the knox county tennessee bar and with the with my colleague ashley lowe of also the knox county bar and of the baker it also law firm we represented mr mark sawyer in the trial court below mr sawyer and i should add that my colleague and friend mr morris ably represented the united states mr sawyer entered into a plea of guilty and with all of his co defendants underwent a lengthy sentence seen here in the this appeal concerns not a challenge to the conviction which was for conspiracy to violate the clean air act through not following the applicable rules governing the removal of asbestos containing materials not the conviction but the sentence imposed in particular i have presented on behalf of mr sawyer the defendant several issues concerning the the term of imprisonment but more broadly the term  or the amount of restitution imposed on him in this case in light of the evidence presented mr sawyer is here on this case in this case on appeal to has the court to vacate the sentence imposed below and not to challenge the conviction this case arose out of a site that dates from decades ago if the court please at various times during its existence it's been known as  anka i believe also liberty fibers and was originally a right on producing plant my client and the other co defendants in this case came into the history of this plant rather late through acquiring the site from a trustee in bankruptcy the site itself as a  as a re on producer and as a site consisting of multiple buildings that contained a great deal of as best as containing material was an environmental problem problem seems too small a word but but an environmental problem from long before mr sawyer and his  in it i bring that up because i would like to in a little bit of a variation from the order in which arguments are presented in the brief the principal briefs on appeal i would like to go first to the argument that the evidence taken by the district court below judge greer in the eastern district of tennessee a greenville that whether mandatory restitution applies or discretionary restitution applies that the evidence presented in support of the restitution award was not sufficient to justify the old warrant of over ten million dollars imposed in the government's case concerning restitution the government presented the testimony of an environmental protection agency officer named ms burkey and presented documents through as the government itself admitting to some extent in its brief in response in this case burkey was not an individual who was familiar with this site from its beginning in fact on page thirty as filed page twenty eight otherwise of the government's brief in response the government concedes that defendant mr sawyer is correct that ms burkey expressed some uncertainty about the site conditions before defendants involvement in october two thousand  the government goes on to argue that in spite of this the district court could thus logically infer that it was the coconspirators activities as opposed to  preexisting conditions what exactly was the uncertainty expressed to there that the government's phrase some uncertainty appears itself to be uncertain how i mean what what what useful to you was in that uncertainty your honor in in this case of course long before this was a site taken over for remediation by the environmental protection agency  was not familiar with the site when she came to the site the the take over the remediation process had already begun so she had no personal experience process you just mentioned was by your client and his enterprise no yana by the time ms burkey came the e p a already had a contractor on the site engaging in the remediation that the have contended on behalf of mr sawyer that the proof here is in adequate to show the necessary link of causation between the crime of which mr sawyer was convicted and that was conspiracy to violate the clean air act through through not honoring what the rules require with respect to the disposition of asbestos containing materials insufficient to show the link between that and the total amount of restitution claimed is the implication that just for supposition a lot of this asbestos that needed to be cleaned up by the e p a ultimately was already disturbed and already lying around before your client ever got there yes you this did did the e p a clean up places that your client never touched the e p a basically took over the site and yes did what was needed to be done but that doesn't answer the question i just asked did they clean up and charge for places that your client never touched the e p a is the case you would think you would have been able to put on evidence of that well i'm lived to speak for the e p a your honor but but  my understanding of the e p a is position is that it kept a running tally of what its contractor was spending on the site recorded these tallies in what the e p a coast scorpion scorpios scorpion i believe reports and that  summary evidence was sufficient to justify the more than ten million dollar restitution obligation imposed by right the total at some point the government said they had spent sixteen million so that is charge you for all of that that's correct your honor and that that is in the argument concerning the procedural path by which we got to the restitution obligation the government was unable to present at the time of the sentence investigation report was required much detail about what it spent and the link between my client's crime and the expenditure it the figure provided then the total figure was over sixteen million later and before sentencing the e p a lowered that to ten million and then the testimony of ms burkey was that there might have been not more than three hundred thousand dollars spent by the agency on work that with other than as best as containing material and so the sentencing judge below did provide a credit for that three hundred thousand my argument is is on this point your honor is that even with these summary reports which are in terms prepared on the basis of contractors invoices provided to the agency you have nothing but a summary of what the government spent without a showing that what was spent was reasonably spent and specific as to certain buildings or certain areas or did you try to develop there was cross examination of ms burkey i argue that it's fair to summarize that the effect of the cross examination as i kept the numbers from the invoices i recorded them in the reports i now and then visited the site to make sure that work being billed for was being done and that's why this summary is conclusive as to the restitution obligation i see that my time is has run that's one question when your client undertook to demolish the buildings and get the salvage material he was there that there was as best as on the side right yes your honor he was ok and it was roughly three years between the time of purchase and the time the p s a took over the property right i believe that's correct so to clarify that this was not the sort of environmental site that we sometimes say where you know there's a done and many parties have done up over the years right i mean that the the conduct your client is being charged with forms the basis for his plea is our conduct that relates to the the restitution step to fix and whether it's three six six three or three six three  require that the restitution obligation the amount of it be measured as that which was a result of the office or why we're in this particular case why wouldn't all the current all the stuff that was cleaned up be i was there all of your clients by your to clean it up properly because your honor it was already a contaminated site and allowing this restitution obligation to rest on this summary evidence basically presumably if your client had done its job his job properly it would have been a contaminated site by the time the p a got there if my client had done his job properly with respect to those areas where he and the others associated in this enterprise were working there should please the court my name is matthew morrison an assistant u s attorney in the knoxville u s attorney's office in the eastern district of tennessee and i represented along with co counsel from the department of justice is environmental crime section of the united states below in this case united states asks that this court affirm the district court's order of restitution because it was based upon it  was directly related to the offense in question that is the conspiracy to violate the clean air act and because that restitution amount sought by the united states was supported by reliable evidence in the form of not only a summary of the e p a s expenditures incurred in addressing the environmental contamination on site but also with the extensive testimony of an e p a on scene coordinator who was the primary overseer of the cleanup activity and who significantly testified that it was part of her responsibility oversee the financial and manage the financial aspects of the cleanup and so although the summary that was provided by the united states to the defense and to the court was a in fact a summary it was reliably based upon invoices and employee salary information that was overseen by e p a on scene coordinator is who were there observing the contractors activities and then comparing what they observed during their oversight to the invoices that were passing through and being accounted for in the e p a s cost accounting system which is oftentimes referred to as a scorpius report and was referred to in the in the briefing in this case as as a scorpius report so the united states asked that the court find that the judge  was the award of restitution was appropriate in this case and that the amount the stablished was not an abuse of discretion because as i indicated it was supported by  hypothetical i was putting to your adversary he did not concrete put to you as well is how do we know that e p a in cleaning up the site wasn't cleaning up stop that these folks never touch well your honor it is to answer your question directly no it does not but there was testimony during the sensing hearing that this was essentially a war zone that the that not only were there buildings but there was a special this strewn in debris piles contaminating railroad tracks all across the site and so while those invoices that that were submitted by the various contractors may have had that kind of detail that was not before the court in this case as again this was them and i'm asking questions about facts sound like we don't have too many of them on these points but let's say hypothetically are they responsible simply because they bought the site for preexisting contamination or are the only responsible for contamination costs that are in some way related to at least their activities if not specifically their criminal activities well no doubt the especially this was there since the forty's since maybe even maybe between before the world war two but the cleanup of this this site was was was taken by the defendant and his co defendants and their companies in a clean state and there was testimony through the course of the sen would be presumably other you this is not exactly what you see it if there were any areas that were undisturbed then there was no exposed as best as did the a go in and take the as best as out of those buildings the e p a cleaned up or did it clean up what was obvious you're on of is the corner testified she cleaned up the the the site condition was was set out in terms of witness testimony as well as reports that were submitted by the united states during the sentencing hearing for the court to make the they committed their acts and crimes that's correct and you see them were the kind of least potential problems we have for example you talked about debris piles you said somebody that it was in a clean state does that mean that there's testimony that there were no debris piles when they took over well the reports that were submitted and are included with  them as an exhibit because they were under seal when we filed them as an exhibit in this case as stablished that the history of this site was is that it was operating as mr lloyd in care an operating factory it closed down it shutter before the defendants obtained their salvage rights and eventually bought the real property oh it is the exhibit you're referring to do you have a number yes your honor where would it be it would be  it's in the reports that summarize the witnesses observations many of whom worked at the site prior to when it was an operational facility are begin at appendix page because the again the kind of hypothesis i'm trying to confirm or deny is this place was a mess to start with could have been a superfund site if you'd been able  to decide to come after it at that point well and i don't i mean i just don't know that's what i'm you know that's the contention they're making and unfounded contention there's all know by now but it will be important for have they should have presented such a well you're on our way to go at it but at least i'm trying to get you know what's the underlying state of record to see what what are the things that we need to look at  you did you did say then at least if we went to it some of these witness statements would have been from people who were there before his clients even bought the place before during and during the testament in a report that what you know now that the reports the inference is that no one was demolishing this shuttered manufacturing facility until the defendant and his co defendants showed up and wasn't there and therefore it was there afterwards the implication is it was from their activities yes your own and presumably your position it what you present it meets your burden of proof and if the defendant wishes to question it th he's got to present some evidence yes your honor and i would really they would have records i mean the implication from their side is perhaps you know you cleaned up and tore down this building that we never touched or that you dug up this that we had nothing to do it and they've never been they've never made that claim nor submitted any substantiation that it was anybody else's responsibility debris piles the half way torn down buildings where it was anyone's use the analogy of a of a tanker truck of hazardous waste parked outside of this building other p r pieces other potentially sponsible parties may have generated that weighs that's in that tanker truck or in our case the history of this was it was this it was a safe it was presumed safe it was extensively used in industry but it was the defendants that basically unleashed that material poke the hole in the tanker truck out front if you will that with regard to the other issues that the defendant has raised i will rely upon the authorities that we've cited in our brief for the reasons unless the court has questions of me why the mandatory victims restitution act applies in this case the united states does not wish to address unless the court has questions the issue of whether or not the defends the defendant sixteen month sentence should be sustained and the united states because of the what we set out are thirty eight j letter believes that the issue with regard to whether restitution has to be submitted to a jury has been resolved by this court since the initial brief was filed by the defendant the reduction in the amount sought from sixteen million down to ten million issue was it that that  mr lloyd mention that the v a reduced it and they did not the united states only saw a subset of that sixteen million dollar expense that e p a incurred so the united states as we set out in our response to the defendant's objection to ask that request that the courts not impose restitution that we were only seeking direct cost we weren't seeking like let's say e p a lawyer fees interact fees that are indirect costs that he p a might have otherwise pursued in a in a circle in a super fun cost recovery we limited it to a narrower subset of those of that sixteen million you have three minutes for rebuttal if it should be noted that my client in response to the warzone testimony offered by the government testified at sentencing that when he first was involved with this site it looked much the same i don't want the court to be left with the impression that this was a pristine locked up site until mr sawyer and his co defendants arrived on the scene there were your clients had undertaken to demolish seven buildings they had your boat they were there for a i'm sorry your honor the word escapes me but they were they were trying to pull out the valuable elements of those buildings alledge think you know what that meant so he he does admit then that when you say they looked much the same  but but i do there is testimony in the record that this site was in a very poor condition at the beginning of the salvage  people did not say that this tip or this high over this quarter acre were just the same that they had not been in touch i think that's fair a fair characterization of them the question is given the general testimony that the government presented and the fact that clearly your people had done a lot of stuff to it isn't that sufficient under the evidentiary standard for the district court to have made a factual determination given that you had nothing more specific to deal with no your honor because of the requirement and this is part of my argument on behalf of mr sawyer because of the requirement that there be in a way a kin to torture all a showing to carry the government's burden of a causal relationship between the costs incurred wrong that there's something different about the restitution aspect that once you have some connection the exact amount just as we do in lost calculations or tons of marijuana calculations only need be reasonably supported by some evidence and then we review it under a fairly deferential standard clear or preponderance of the evidence isn't that the standard for this is well ye i'm not disputing the standard i am arguing that the summaries were simply the government did not carry its burden for in the end i see that i'm out of time i would like to submit the