honors my name is casey arbenz and i represent mr caldwell in addition to all out sewer and drain in this appeal your honour's the most significant issue in this case and really the issue that i believe several of the ultimate issues this court will decide in this case depend really on whether the government in this case was able to prove that the liquids that were discharged by mr caldwell on the all out premises constituted pollutants and in this case your honor the undisputed testimony was that these materials were essentially placed in a septic tank like situation where there was a liquid separation or a chemical change that is directly consistent with what goes on in millions of households in this country in my own every day in a septic tank which is where discharges from a person shower person sink and a person's toilet in a house go out into their yard into a tank and then a chemical process begins whereby  there are three levels of materials liquid materials in that tank the center level of which is made up of gray water or waste water as it's it's commonly known in at least in that industry in this case your honor the government proceeded to trial without a single sample or any type of measurement of what was actually discharged into the sewer port at the facility the government's case relied solely on circumstantial evidence but it wasn't even circumstantial evidence it was actually speculative evidence it was speculation as to what went down the drain because only the only thing that the government tested was what was left in the tanks or in the hose so mr caldwell testimony is in addition to the testimony of mr dingell us and others was that only the grey water that middle area of of water or material was discharged into the sewer pour in without any specific measurement the government simply never proved its case that an actual pollutant was thereby discharged into the sewer system now there any  expert testimony on the subject know although many of the the witnesses who testified sensually were experts in the area and that they had worked in you know sewer pumping and sewer removal i mean right they knew what went on right after tanks and they testified to that right and there was extensive testimony night i hate to hearken back to this but there was extensive testimony about the person's drainfield in their house in their home and how there is this natural water that leaves every septic tank and goes out into a person's yard where it is in the grip in the groundwater where when it rains it potentially goes into the sewer system which is where it ends up in this case and or goes into the puget sound or goes into rivers goes into lakes and so mr caldwell's testimony and the defense all along was just that look this was all that was ever discharge it wasn't anything that was constituted pollute now that that's an issue of of his knowledge and that may have given rise to a mistake of fact offense but my opening argument here today before your honor's is simply that the government never proved otherwise without a sample well it's like you know that we're reviewing this now of course of evidence and you don't need to necessarily have testing or expert testimony correct you say there's circumstantial evidence why wouldn't that be enough to believe that together in the jury decided based on those other gentlemen it heard in looking back at my notes your honor i apologize i said circumstantial i actually meant speculative evidence and i apologize for that because that's an important distin in this case circumstantial evidence would potentially be enough to prove a case beyond a reasonable doubt consistent with this court's law and supreme court so i don't know what the argument was to the jury but it seems to me  clean out from the septic tanks is not the great water but the sludge at the bottom that's true and he put that on to his tank correct can somebody assume that well what's in his tank is a lot more polluted than what then you know the ho that that's a great question your honor a couple things first it was a bench trial secondly indeed that what remained in the tank may have been a combination of all three in some process of the septic you know process however there was also extensive testimony about what happened once the material was pumped via truck and then taken back to the all our facility and that it was first screen and this was understated testimony that the materials were theirs and i was there talking about where that the big items are taken out correct so that it doesn't take out the may take that right you know stuff like that close whatever happened to go in there so and i'm just trying to give the corps and understand the process so the big materials are screened out and then that material goes into an underground to chambered tank that was a rudimentary or a by definition a septic tank and water then would spill gray water within spill over into the second chamber as the biological process continued and then that material was pumped into a larger ten thousand gallon septic tank and then it was that material that was either it went to places either it down the drain on the facility and but also and this is underscored in our briefing but essentially conceded by the government millions of gallons of what was left the sludge and the scum those other more significant layers were carted to th treatment facilities directly and the fees were paid their self but it wasn't there isn't there testimony from employees of all out that caldwell dumped tanks containing septic in their entirety into the sewer well and that the e p a actually tested the waste in the pump truck that's true and they did pump they did test it was left in the in the in the truck and that's my argument is they they tested what was left behind mr caldwell testified that he only would discharge the great water the middle section of the tank i want about dingoes mr ting then guessed he did plead guilty mr caldwell did not mr caldwell asserted his right to trial and mr caldwell testified that he was careful and that what he believed he was doing was discharging the grey water not the septic waste and again had the government gone down into this sewer port and taken samples perhaps and the samples had come back suggesting they were elevated levels of pollutants in that same report then perhaps that would be the circumstantial evidence the government could rely on improving its case but by not taking a sample there's just no evidence we don't know what it was it is entirely speculative and not even circumstantial and this four circuit there's there's minimal cases on this topic because in eve in most cases we're not dealing with  liquids there is one case that's instructive and that is the case it's a fifth circuit case united states versus ahmad and in that case a person owned a gas station and some water had gotten into a tank that was also filled with gasoline and mr ahmad concerned that his tanks were contaminated with water tried to pump the water out of the tank knowing that gasoline's have your would be at the bottom of the water would be on top well if he was mistaken and he pumped a dangerous mixture of gasoline and water into a local pond or something now that he's a significant recovery is one the court recognized when you're dealing with liquids it's a little different than if you're dealing with a solid that that has known properties where liquids can change and where the common experiences in our case are that liquids in a septic tank do indeed change based on the bacteria associated with them that a person could very well assert a mistake offense of fact defense because those liquids do engage in a process of change that to a large degree that's the argument made it trial and here is what the judge said he says although caldwell testified the a fluent was a grey water which is i think your argument there's no doubt whatsoever the effluent poured into this sewer poured on every day was a pollutant or pollutants consisting of and then he talks about commingled waste other contaminants cept did grease rat cetera and then he goes on to say the court rejects is not credible the defense theory that the water was nothing more than what is known as gray water consisting of water from domestic bathing and dishwashing and then he goes on to explain how he got to that conclusion so found right and respectfully judge settle believed the government's position which is that once septic tank waste all the septic tank waste and that simply wasn't the testimony  testimony was that there is a change and it in its common sense all of us myself included would be violating the clean water act with our septic tanks in our yards if this court concludes that that's middle section of grey water constitutes a pollutant again just subtle relied on tests of what was left in the tanks without requiring the government to meet its burden by proving what was actually discharged so i respectfully  with the judge's characterization of what the government was able to prove i understand that but he really kind of who's through this very carefully about grey water and why your client might have thought it was free water but here's why he knew it wasn't and it wasn't like oh a one time thing he talks about a scheme to basically hide and do all kinds of things in the stealth of night so i'm i'm kind of hard pressed on what to do on that claim unless you have another case that i think is instructive is the four circuit case of united states versus shallum in that case the court did talk about the government's duty or requirement in a criminal case regarding violations of the clean water act  to guess explain the make up of what the actual pollutant was discharge in that case it was concrete or what they call shot treat and there were multiple witness who testified to what they witnessed and what they witnessed actually being dumped from the boat into the water again in this case you know the witnesses saw mr caldwell back up pump truck up to the sewer port and put the hose down into the port but nobody could tell you what actually went in there and without that it is just it becomes a simple issue if you are buying the argument that these chemicals are these liquids doing gazin in a change you're ours the reason i say that this issue is the most significant issue is because so much of what u ltimately happened in this case as it gave rise to mr caldwell convictions for the other charges as well as the district court sentence scene was based on this overarching scheme as as the government labeled it to engage in this action however i just would like to point out that if if this court agrees that the government was unable to prove that there was a poll that a pollutant was discharged in the midst mr caudle engaged in the discharge of pollutants that would mean that his his convictions for his for a legit false statements would also be in question because much of or all of the questions relating to those charges were based on questions like that worst specific mail fraud and those are significant your honour's for a few reasons but most importantly the timeline in this case as shown by the government in its case in chief showed that mr caldwell was was  cooperated of in his business practices and he would go out and pup pump septic tanks and then he would you know obviously create an invoice that was one copy was given to a customer another copy was kept at his location his off location he would also fill out forms known as pump or logs that he would send a callous county now in two thousand i believe in two thousand and ten callus county began a practice of taxing the amounts of materials that were pumped at a six cent per gallon charge now it was around that same time that robert menzies who was a local official in the stormwater industry who began investigating mr caldwell now it's undisputed that mr caldwell would ultimately alter his pumping logs but that was not intended to be a scheme to collect unlawfully the six cent per gallon tipping fee and this court will see that only amounted to about once those logs are put into the mail does not do away with your argument no because as has been stated by this court government us versus star the government must show fraudulent intent and that the perpetrator contemplated actual harm in this case mr caldwell was attempting to avoid administrative scrutiny he could you draw an inference that he intended to take on the out of those per gallon freeze well i think what he would say and what our defenses is and was is that no that he was getting rid of the waste water which goes down the drain in the fence but the jury doesn't have to believe that that's true but the government does have to meet its burden to prove beyond a reasonable doubt that what was actually discharged was a pollutant and we're talking about that you're talking about the fraud right you said he had he had to pay the per of the pumping match the dumping but it wasn't there that he intended to defraud people of their six cent per gallon fee because there is no evidence that he was looking to gain that eleven thousand or ten thousand dollars if i reserve rest my time for a bottle yes you may do so you have to ask a question  difficulty with that might be your honour's the issue i believe and it's largely conceded in the government's brief under united states versus reilly is that the government must show clear and convincing evidence that there is not a standard range to forty six to fifty seven months and the government didn't prove with clear and convincing evidence that that mail fraud lead to that significant last amount and that's already thank you as you may reserve invest your time we'll hear from the arguments first the government and i need to test the discharge from the from the hose or that was actually discharged after was discharged because evidence in this case is overwhelming mr caldwell hooked the hose up to the bottom of a ten thousand gallon tank that ind y contained septic industrial increased waste where even under his theory he was pumping the sludge that had settled to the bottom of the tank and discharging it directly into the public sewer system moreover the government did test the contents of the pump truck mr septic tanks pump contain everything that had been washed down a sink or flushed down a toilet and pumping it all of that separate waste mixed together in an all out pump truck the same tanks were used to haul grease the grease waste and later it would be mixed with industrial waste mr caldwell is the expert on the septic business he discharged from the ten thousand gallon tank into the port in the middle of the night and early morning hours and no one could see him he'd used his truck to block the view from the road and pump that waste from the bottom of the tank again all the sludge settled the witnesses describe the contents of the ten thousand gallon tank as smelly brown so sewage  opaque overwhelming an odor with visible solids floating in it similar to watery own meal mr caldwell himself also testified that the contents of the pump septic tanks and the ten thousand storage tank were septic waste there no question that the substance he discharge was a pollutant and that he acted knowingly now he testified that he pumped out of the bottom of the tank and he also got the truck out of the truck yes so he did pump out of the truck yes and the video surveillance showed him pumping out of the truck  the pollutants in the bottom of the truck and they were sent elsewhere there was no evidence of that actually i think what happened is some of all out did dispose of a certain amount of it septic waste properly what's at issue here is the way said it disposed of improperly and that's the waste that they moved in the ten thousand gallon tank to the trunk and then to the truck and then into the port now that's the waste that's at issue and those are the discharges that are at issue there's never been well i think i'm not while one of be in the point with what is a pollutant that goes in what is a pollutant the regulation at issue here required a discharge permit if you if the pollutants had been trucked or hauled and the point everyone agreed that at the point the septic waste was pumped into the truck and it was taken to the all out company it was trucked or hauled waste at that point he needed to go through pretreatment standards before it can be discharged so even when i was in the septic tank at the customer's septic tank before it moved all out it was still commingled waste and one of the points i wanted to address was this and situation that anyone who when that the waste water which is not water as was the case in ahmad it is tank included the description that testimony described it was actually in the tank the process that used in trucking or hauling it which in which point it became trucked or hauled pollutants the testimony that there was also sometimes come to the trucks and later combined with the septic wast e that it was a mixture of septic and grease waste and then pumped into the ten thousand gallon holding tank along with industrial waste water that some of that waste was then taken to treatment facilities but most of it seventy percent of it was pumped out through a valve at the bottom of the tank where the sludge had settled into a pump truck and then onto the port which by the public sewer system and at least one occasion caldwell also pumped the septic waste directly from the ten thousand gallon tank to the port without using the briefly i think if i understand your question correctly you're asking about the contamination after it was treated and the fact that it test is not contaminated might suggest that there was no harm but under provision issue in this case the only difference is that under it you do you one point three you don't have to have the hazardous waste elements but in that case this court held that that the point at which the contamination occurs is the discharge point to the sewer there's that's a soon as soon as the pollutant hits the public sewer system there's contamination there and there's risk so the fact that it goes through nick gets treated that's not the point at which you measure contamination i have a question i go somewhat to that into the specific evidence of when they found certain things happening and that goes to this fourteen point hands minim hard to see exactly how it was a reasonable estimate to say well they've been at this for a long time and therefore because this is the estimate today we're just going to go backward five years when they add it all up and we are so within the four hundred thousand to a million well ok i think there was there was there was a lot of evidence supporting that calculation but as a plenary point mr caldwell also acknowledged in the restitution agreement that the actual loss caused by his scheme was six hundred eighty  thousand two hundred sixteen dollars which is far more than the four hundred thousand at issue in the last calculation and their situation agreement that restitution must include only losses directly and possibly caused by the defendant scheme loss estimation here the district court looked at all out invoices which the government conservatively calculated that pumped about three point seven balance of about two point six million gallons that were not properly disposed of to find the loss and this is concerning the time two thousand and twelve the court multiplied that two point six million gallons by the historic three rivers and city long view rates which  provided to the district court engine allen then testified during the trial that the last associate with avoided disposal cost for that time period was about three hundred seven thousand dollars the six cent surcharge fees were determined for two thousand and two two thousand and twelve was at least about three hundred nineteen thousand dollars so the difference in that last calculation for the years preceding two thousand and eight we only need about eighty thousand dollars to get you to the four hundred thousand dollars benchmark and what the court did and said look i'm actually not comfortable extrapolating that exact calculation out to those five years but i do have enough evidence here that this scheme has been going on for at least ten years that the process would remain essentially unchanged that i that that there he actually said there is no question that you at least get to the four hundred thousand dollars mark and under the guidelines it was perfectly appropriate and required that the court require all real all related contact all the relevant context under us s g one b one point three and so the relevant contact included the entire scheme which was his pumping from two thousand one for just listening to the court's questions i think easiest way to sort of formulate it opinion or decision in this case is is to think about the ahmad case and think about it case where there is a mixture of gasoline and water and if the defendant were too then pump out the material and the government were to prosecute that person for violations of the clean water act i believe this court would indeed hold that the government needed to show even to show beyond a reasonable doubt what was actually pumped whether it was water or gas recognizing that in that situation everybody understands that there is going to be this liquid separation and in a clear barrier between the two we heard that the government's view is th grey water itself is a pollutant what's your response i would disagree your honor again i think it goes against our i don't think there's a specific definition that the government ever proposed at trial stating that there were no jury instructions again it was a bench tr however there is no body of law on the side and no cases stating specifically that grey water indeed is a pollutant and again that that goes to our common experiences we all have or if you have a septic tank then you are violating and polluting by allowing your great great water or middle ground in your septic tank to go out into your drain field out into your yard anybody to puget sound would be contaminating the puget sound by doing that and so that's not a pollutant that is great water and if the government wanted to prove its case it needed to test what was pumped you needed to prove the total suspended salt amount needed to prove that there was a slug load and i think that your are brought up important point i p got a little time maybe close we've given you a little bonus of time go ahead ok i'll wrap it up judge that i believe i care which of you brought up the point about there was a measurement done after agent allen who on the case believe he had observed mr caldwell engaging in the dumping of pollutants he called down to the three what rivers waste facility and said be ready you're going to have a small they call slug load or a large uptick in pollution coming your way and that never happened and i asked specifically during cross examination mr leif the superintendent whether there was an up tick or a slug load on any of the days on or about the charged counts in this case answered no each time was there or was there an uptick in total suspended solids you know was there an uptick in pollution no was there a slug load no based on that the government's case was entirely based on speculation it was not based even on circumstantial evidence by not taking a measurement they're unable to prove their case thank you thank you counsel the case just argued will be submitted for decision and the court