The court has decided to publish its order, in edited form, as 1

an opinion.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-3874 & 07-3875

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DERRIK HAGERMAN and WABASH

ENVIRONMENTAL TECHNOLOGIES, LLC,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06CR0139—David F. Hamilton, Chief Judge.

SUBMITTED NOVEMBER 13, 2008—DECIDED DECEMBER 5, 2008

OPINION JANUARY 15, 20091

Before POSNER, ROVNER and EVANS, Circuit Judges.

PER CURIAM. A jury convicted Wabash Environmental

Technologies (WET) and its president, Derrik Hagerman,
2 Nos. 07-3874 & 07-3875

on ten counts of making materially false statements in

reports that WET was required to file under the Clean

Water Act, 33 U.S.C. § 1319(c)(4). The judge sentenced

Hagerman to 60 months in prison (a guideline sentence,

well explained by the judge, United States v. Hagerman, 525

F. Supp. 2d 1058 (S.D. Ind. 2007)), and, along with WET,

was ordered to pay $237,680 in restitution to the EPA

for the expense of cleaning up pollution caused by them.

WET operated a facility in Terre Haute, Indiana, that

treated industrial liquid waste and discharged the treated

liquid into the Wabash River. The National Pollutant

Discharge Elimination System permit issued by the

Indiana Department of Environmental Management

limited the type and amount of pollutants that the waste

liquid could contain and required WET to make monthly

reports—Monthly Monitoring Reports (MMRs) and

Discharge Monitoring Reports (DMRs)—disclosing the

results of tests of the waste liquid. The permit required

that WET use testing procedures approved by the EPA

and made Hagerman responsible for completing the

reports and certifying that they were “true, accurate

and complete.”

Hagerman and WET argue that the district court erred

in admitting into evidence copies of certain electronic

spreadsheets that recorded test results that were not

charged in the indictment but were in conflict with what

WET had reported. The defendants argue that the test

results are evidence of prior bad acts that should have

been excluded under Federal Rule of Evidence 404(b). The

argument has no merit. When a defendant commits

two criminal acts simultaneously but is charged only with
Nos. 07-3874 & 07-3875 3

one, “the evidence of the ‘other’ crime [cannot] be disentangled from the evidence of the charged crime,” and

therefore evidence material to prove the charged crime

“may unavoidably reveal” other criminal acts that are

not charged. United States v. Taylor, 522 F.3d 731, 734

(7th Cir. 2008). That is the situation here.

Hagerman and WET were charged with misrepresenting results of tests conducted between

January and October 2004. This was the same period

covered by the spreadsheets in question. It would have

been infeasible to separate out this evidence so as to

eliminate any hint that the defendants had also

falsified other test results. United States v. Bass, 794 F.2d

1305, 1312 (8th Cir. 1986). What Hagerman knew when

he completed the reports was the central question at

trial. He denied having received reports of test results in

any format other than post-it notes and scraps of paper and

testified that he had never seen the spreadsheets or received any test results showing unacceptable levels of

pollution. But the EPA found spreadsheets in his office,

and the spreadsheets that the defendants argue should

have been excluded from evidence were crucial to establishing that those found in Hagerman’s office were in

fact printouts of the spreadsheets created and maintained

to record lab results. In showing that Hagerman possessed

these printouts, the prosecution undercut Hagerman’s

defense that he had never seen them.

The defendants argue frivolously that by admitting

evidence of misconduct not charged in the indictment, the

judge allowed the indictment to be “constructively
4 Nos. 07-3874 & 07-3875

amended.” That amounts to saying that admitting any

“other crimes” evidence permitted by Rule 404(b) would

result in a constructive amendment. Obviously not. United

States v. Rosario-Diaz, 202 F.3d 54, 70-71 (1st Cir. 2000);

United States v. Leichtnam, 948 F.2d 370, 379 (7th Cir. 1991).

The defendants argue that the district judge misstated

the law in one of its jury instructions. He instructed the

jury that WET’s permit required Hagerman to certify that

each report he submitted was “true, accurate, and complete” and was prepared under his “direction or supervision in accordance with a system designed to assure that

qualified personnel properly gather and evaluate the

information submitted.” So far, so good, but he further

instructed the jury that “[t]he phrase ‘properly gather and

evaluate the information submitted’ means that the

information was gathered and evaluated in accordance

with the terms and conditions” of WET’s permit, including

“the requirement that the analytical and sampling

methods used conform to the applicable federal regulations.” The court drew this language from WET’s discharge permit. But the defendants argue that the provision of the Indiana Administrative Code setting out the

specific language that holders of discharge permits must

use in verifying their reports does not define the phrase

“properly gather and evaluate the information submitted.” 327 IND. ADMIN. CODE 5-2-22(d). They argue that the

judge should have left it up to the jury to determine

whether WET had a system in place to ensure that the

results were properly gathered and evaluated.

The permit stated that WET had to use either the test

methods approved in the EPA regulations, which are
Nos. 07-3874 & 07-3875 5

listed in the permit, or “different but equivalent methods”

that had been approved by the EPA and the Commissioner

of the Indiana Department of Environmental Management. The judge’s instruction that the testing methods

must “conform to applicable federal regulations” was a

correct interpretation of the permit, and the meaning of the

permit presented an issue of law that the judge was

entitled to determine, rather than leave to the jury. United

States v. Weitzenhoff, 35 F.3d 1275, 1288 (9th Cir. 1993); Piney

Run Pres. Ass’n v. County Comm’rs of Carroll County, Md.,

268 F.3d 255, 269 (4th Cir. 2001). The permit states that

the testing methods “shall conform to the current version

of 40 CFR, Part 136,” and both the listed testing methods

and the procedure for obtaining approval to use alternative methods are described in the cited Part of the CFR.

See 40 C.F.R. §§ 136.3 (listing the approved testing procedures), 136.4 (laying out the procedure for gaining approval of an equivalent testing method).

Finally, Hagerman argues that he should not have been

given a prison sentence. He says that the damage he

caused to the environment could not be quantified, that

in his life outside WET he made “considerable” contributions to his community, that his family relies on him

for support, and that imprisonment will make paying

restitution difficult. The judge considered but rejected

these arguments. There was no abuse of discretion.

AFFIRMED.

1-15-09