FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAX SPATIG, AKA John Spatig, 

AKA John Serge Spatig,

Defendant-Appellant.

No. 15-30322

D.C. No.

4:12-cr-00302-

WYD-1

OPINION

Appeal from the United States District Court

for the District of Idaho

Wiley Y. Daniel, Senior District Judge, Presiding

Argued and Submitted July 12, 2017

Seattle, Washington

Filed September 13, 2017

Before: Michael R. Murphy,* M. Margaret McKeown,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge McKeown

 * The Honorable Michael R. Murphy, United States Circuit Judge 

for the U.S. Court of Appeals for the Tenth Circuit, sitting by 

designation.
2 UNITED STATES V. SPATIG

SUMMARY**

Criminal Law

The panel affirmed the defendant’s jury conviction and 

sentence for storage of hazardous waste in violation of the 

Resource Conservation and Recovery Act.

The panel held that the district court properly refused to 

allow evidence of the defendant’s diminished capacity 

because the crime was one of general intent.

The district court also did not err in applying a four-level 

sentence enhancement under U.S.S.G. § 2Q1.2(b)(3) for 

cleanup that required a substantial expenditure.

COUNSEL

Steven V. Richert (argued), Federal Defender Services of 

Idaho, Pocatello, Idaho, for Defendant-Appellant.

Emily Anne Polachek (argued), Adam C. Cullman, Allen M. 

Brabender, and Aaron P. Avila, Attorneys; John C. Cruden, 

Assistant Attorney General; Environment and Natural 

Resources Division, United States Department of Justice,

Washington, D.C.; Michael J. Fica, Assistant United States 

Attorney, United States Attorney’s Office, Pocatello, Idaho;

for Plaintiff-Appellee.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SPATIG 3

OPINION

McKEOWN, Circuit Judge:

As the saying goes, fences make good neighbors. But 

when the neighbor collects thousands of containers of 

hazardous and combustible chemicals in his yard that could 

explode at any moment, a fence may not be enough to save 

the neighborly relationship. Instead, the authorities need to 

get involved.

Max Spatig was charged and convicted under the 

Resource Conservation and Recovery Act (“RCRA”) for 

storing more than 3,000 containers of hazardous waste in his 

yard without a permit. On appeal, Spatig challenges the 

district court’s refusal to allow evidence of his diminished 

capacity, arguing that his crime is one of specific, as opposed 

to general, intent. He also objects to the district court’s 

application of a four-level sentence enhancement based on 

the magnitude of the expenditure required to clean up his 

yard. We affirm.

Background

Idaho resident Spatig has dealt with the storage of paint 

for much of his adult life. For over fifteen years, he ran MS 

Enterprises, a business that resurfaced cement floors. As 

part of his work with the company, Spatig purchased

discounted paint in bulk and accumulated large quantities of 

paint and paint-related materials. When his wife fell ill, 

Spatig stopped working and decided to store the materials on 

his residential property in Menan, Idaho. Neither he nor MS 

Enterprises applied for or obtained a hazardous waste permit 

from the state environmental agency or the Environmental 

Protection Agency (“EPA”) to store the materials.
4 UNITED STATES V. SPATIG

Investigating a nuisance complaint in 2005, county 

officials discovered Spatig’s storage of paint and paintrelated materials. Due to concerns about hazardous waste, 

the Idaho Department of Environmental Quality (“DEQ”) 

was called in and determined it was necessary to conduct a 

cleanup. Inspectors worked with Spatig to identify which 

containers were acceptable for removal from the property. 

Spatig was allowed to keep a small portion, but most 

containers were collected and destroyed by DEQ.

Unfortunately, the 2005 run-in with authorities did not 

change Spatig’s behavior. In 2010, after receiving nuisance 

complaints about the condition of Spatig’s property in 

Rexburg, Idaho, a detective from the county sheriff’s office 

observed canisters haphazardly strewn across the property, 

many of which were in poor condition and labeled as 

flammable or corrosive. As one witness described at trial, 

Spatig’s yard was an “indescribable mess,” with piles of 

corroded and rusting containers left in the yard or packed 

into vehicles and trailers. Neither the local fire department 

nor the regional hazmat team could handle a cleanup of that 

size or complexity. Idaho turned to the EPA for help.

The EPA sent a special team from Washington State to 

run the cleanup. At times dressed in chemical protective 

suits and respirators, the team separated the materials based 

on their contents, marked the containers, and sent samples to 

a lab for testing. Testing confirmed that the substances were 

either flammable or corrosive enough to be considered 

hazardous under EPA regulations. Over about two weeks, 

the EPA removed approximately 3,400 containers from 

Spatig’s property and spent $498,562 on the cleanup.

The EPA pursued criminal charges against Spatig under 

RCRA. Spatig was indicted on one count of “knowingly 

stor[ing] and dispos[ing] of hazardous waste, namely 
UNITED STATES V. SPATIG 5

ignitable and corrosive hazardous waste, on property in 

Rexburg, Idaho, without a permit” from the EPA or DEQ, a 

crime under 42 U.S.C. § 6928(d)(2)(A).

The proceedings and trial focused on whether Spatig had 

the requisite mental state—i.e., “knowingly”—to commit 

the offense. Spatig sought to introduce evidence of his 

diminished capacity, but the government filed a motion in 

limine to exclude the evidence. The district court concluded 

that diminished capacity evidence is admissible only for 

specific-intent crimes and that § 6928(d)(2)(A) is a generalintent crime. The jury convicted Spatig of the single count 

under § 6928(d)(2)(A), and the district court sentenced him 

to 46 months.

Analysis

I. Section 6928(d)(2)(A) Is a General-Intent Crime

The key issue on appeal is whether § 6928(d)(2)(A) 

defines a crime of general or specific intent, as that decision 

dictates whether Spatig can advance a diminished-capacity 

defense. We have consistently held that “diminished 

capacity defenses are not available to defendants who are 

accused of general intent crimes.” United States v. Szabo, 

760 F.3d 997, 1001 n.2 (9th Cir. 2014) (citing United States 

v. Vela, 624 F.3d 1148, 1154 (9th Cir. 2010)); United States 

v. Acosta-Sierra, 690 F.3d 1111, 1124 (9th Cir. 2012); 

United States v. Smith, 638 F.2d 131, 132 (9th Cir. 1981). 

Reviewing de novo the district court’s decision to preclude 

Spatig’s defense, United States v. Ross, 206 F.3d 896, 898–

99 (9th Cir. 2000), we affirm because § 6928(d)(2)(A) 

defines a general-intent crime.

Section 6928(d)(2)(A) criminalizes “knowingly

treat[ing], stor[ing], or dispos[ing] of any hazardous waste 
6 UNITED STATES V. SPATIG

. . . without a permit.” (Emphasis added.) “Knowingly” is 

not a novel or unusual term in criminal statutes. The 

Supreme Court teaches that the statutory term “knowingly” 

“merely requires proof of knowledge of the facts that 

constitute the offense.” Bryan v. United States, 524 U.S. 

184, 193 (1998). In the same vein, we have held that the 

term “knowingly” “normally signifies a requirement of 

general, not specific, intent.”1 United States v. Sneezer, 

900 F.2d 177, 179 (9th Cir. 1990). That is, under 

§ 6928(d)(2)(A), the prosecution is not required to prove that 

Spatig intended a particular purpose or objective, as would 

be required for a specific-intent crime. See Bryan, 524 U.S. 

at 192 (noting that “knowingly” does not necessarily have 

“any reference to a culpable state of mind”). Instead, the 

statute sets out a criminal act—treatment, storage, or 

disposal of hazardous waste—and provides that that act be 

performed with the mental state of knowledge.

Our earlier cases paint § 6928(d)(2)(A) as a generalintent crime, albeit without use of the term. For example, in 

United States v. Hoflin, we rejected Hoflin’s claim that 

§ 6928(d)(2)(A) “requires proof that he knew there was no 

permit for disposal.” 880 F.2d 1033, 1034 (9th Cir. 1989), 

cert denied 493 U.S. 1083 (1990). Instead, we construed the 

 1 Black’s Law Dictionary provides guidance about the difference 

between general and specific intent. At the time § 6928(d)(2)(A) was 

passed, the dictionary observed that the “most common usage of 

‘specific intent’ is to designate a special mental element which is 

required above and beyond any mental state required with respect to the 

actus reus of the crime.” Specific Intent, Black’s Law Dictionary (6th 

ed. 1990). Currently, it interprets “specific intent” as “[t]he intent to 

accomplish the precise criminal act that one is later charged with.” 

Specific Intent, Black’s Law Dictionary (10th ed. 2014). These 

definitions boil down to the same principle: specific intent means that 

the defendant acted with a particular purpose or objective.
UNITED STATES V. SPATIG 7

term “knowingly” as requiring that a defendant be aware that 

he is treating, storing, or disposing of something that he 

knows is hazardous waste. Id. at 1039. Our construction 

gives no indication that the defendant must act with a 

particular purpose or objective. Additionally, in holding that 

“[n]othing in the language of [§ 6928(d)(1)] requires the 

Government to prove that the defendants had the knowledge 

that their acts were unlawful,” we have implicitly rejected 

the argument that similar RCRA statutes require proof of a 

specific intent to violate the law. United States v. Fiorillo, 

186 F.3d 1136, 1156 (9th Cir. 1999) (per curiam).

Comparing the text of § 6928(d)(2)(A) to the Model 

Penal Code, an accepted signpost to measure and understand 

intent elements, further reinforces that the statute is a 

general-intent crime. See United States v. U.S. Gypsum Co., 

438 U.S. 422, 444 (1978). The Code lists four mental 

states—purposely, knowingly, recklessly, and negligently—

and we have explained that, as a general matter, “‘purpose’ 

corresponds to the concept of specific intent, while 

‘knowledge’ corresponds to general intent.” United States 

v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000). 

The Model Penal Code had been published nearly fifteen 

years before 1976, when Congress enacted § 6928(d)(2)(A) 

and explicitly invoked the “knowingly” language that 

signals general intent. See Model Penal Code § 2.02 (1962).

RCRA is a classic environmental public-welfare statute 

whose “overriding concern” is “the grave danger to people 

and the environment from hazardous wastes.” Hoflin, 

880 F.2d at 1038. Thus, § 6928(d)(2)(A) fits within a class 

of general-intent crimes that protect public health, safety, 

and welfare. For these crimes, a less-exacting mental state 

is justified by the particularly strong countervailing interest 

in protecting the public at large and the defendant’s likely 
8 UNITED STATES V. SPATIG

awareness that his actions are regulated. See United States 

v. Int’l Minerals & Chems. Corp., 402 U.S. 558, 565 (1971);

United States v. Freed, 401 U.S. 601, 607 (1971). Publicwelfare statutes that regulate harmful devices or hazardous 

waste are particularly likely to be deemed general-intent 

statutes. See United States v. Weitzenhoff, 35 F.3d 1275, 

1284–85 (9th Cir. 1993) (collecting cases). For example, we 

have previously construed “knowingly” in 33 U.S.C. 

§ 1319(c)(2) of the Clean Water Act, which regulates 

discharging pollutants into navigable waters without a 

permit, as requiring that the prosecution prove only that the 

defendant “knowingly engage[d] in conduct that results in a 

. . . violation”—as opposed to establishing that the defendant 

acted with knowledge that his actions were illegal. 

Weitzenhoff, 35 F.3d at 1284.

Spatig urges that United States v. Twine, 853 F.2d 676 

(9th Cir. 1988), demands a contrary result. We disagree. In 

Twine, the Ninth Circuit reviewed convictions under 18 

U.S.C. § 875(c)—which prohibits “transmit[ting] . . . any 

communication containing any threat to kidnap any person 

or any threat to injure the person of another”—and its near 

twin § 876—which prohibits “knowingly . . . caus[ing] to be 

delivered . . . any communications . . . containing any threat 

to kidnap any person or any threat to injure the person of the 

addressee or of another.” Relying on precedent interpreting 

those provisions, we construed both provisions as requiring 

an “intent to threaten” and held that “the showing of an intent 

to threaten, required by §§ 875(c) and 876, is a showing of 

specific intent.” Twine, 853 F.2d at 680.

Important here, Twine held that §§ 875(c) and 876 are 

specific-intent crimes precisely because both sections 

include an “intent to threaten” element. See 853 F.2d at 680. 

By reading an “intent to threaten” element into the statute, 
UNITED STATES V. SPATIG 9

the court considered those statutory sections akin to “classic” 

specific-intent crimes, where the crime expressly mandates 

that the defendant acted with a particular purpose or 

objective. In contrast, the RCRA provision at issue here, 

§ 6928(d)(2)(A), does not explicitly or implicitly contain 

such an intent element. Rather, the statute is agnostic to the 

defendant’s aim and, for that very reason, defines a generalintent crime. In any event, we have softened on the 

reasoning in Twine; one year after its publication, we 

explicitly declined to read an intent element into 18 U.S.C. 

§ 876. United States v. Davis, 876 F.2d 71, 73 (9th Cir. 

1989) (per curiam).2

Because § 6928(d)(2)(A) describes a crime of general 

intent, the district court did not err in excluding evidence of 

Spatig’s diminished capacity.

II. The Cleanup Costs Constituted a “Substantial 

Expenditure”

At sentencing, the district court applied a four-level 

enhancement under U.S.S.G. § 2Q1.2(b)(3) because the 

cleanup of the property “required a substantial expenditure” 

given the magnitude of the hazardous materials in Spatig’s 

yard and the cost of $498,562 to clean them up.3 The district 

 2 The court in Davis is not alone; every other circuit to consider the 

issue has rejected Twine’s reasoning. See United States v. Nicklas, 

713 F.3d 435, 439 & n.3 (8th Cir. 2013) (following the rule adopted by 

the First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Tenth Circuits 

that the government must “prove [only that] a defendant acted knowingly 

in transmitting a communication containing a threat to injure” and 

recognizing the Ninth Circuit as the sole outlier).

3 The district court determined that Spatig’s guideline offense level 

was 16 and his criminal history category was VI. Spatig’s sentence of 

46 months is at the bottom of his guidelines range of 46 to 57 months.
10 UNITED STATES V. SPATIG

court did not abuse its discretion in applying this 

enhancement.

Subsection 2Q1.2(b)(3) states: “If the offense resulted in 

disruption of public utilities or evacuation of a community, 

or if cleanup required a substantial expenditure, increase by 

4 levels.” U.S.S.G. § 2Q1.2(b)(3) (emphasis added). The 

subsection does not define “substantial expenditure,” nor 

does its application note, which simply adds that 

“[s]ubsection (b)(3) provides an enhancement where a 

public disruption, evacuation or cleanup at substantial 

expense has been required. Depending upon the nature of 

the contamination involved, a departure of up to two levels 

either upward or downward could be warranted.” Id. cmt. 

n.7 (emphasis added).

Although the guidelines do not delineate when an 

expenditure becomes “substantial,” our case law provides 

guidance. See United States v. Merino, 190 F.3d 956 (9th 

Cir. 1999). In Merino, we noted that “substantial 

expenditure” is listed in the guideline next to two severe

circumstances—public utilities disruption and evacuation—

and so must have a similarly serious impact on the 

community. Id. at 958. That limitation also avoids sweeping 

in every garden-variety spill; “[a]t the least,” a substantial 

expenditure “should be much greater in economic impact 

than the run-of-the-mill contamination.” Id. On that basis, 

we held that the cleanup cost of $32,000 was not a 

substantial expenditure. Id. at 958–59.

As the district court pointed out, the $498,562 at issue 

here far exceeds the $32,000 in Merino—in fact, it is more 

than an order of magnitude larger. Spatig responds that 

$498,562 cannot be “substantial” based on the statement in 

Merino that the defendant “cite[d] a number of cases to show 

that environmental cleanups are commonly in the six or 
UNITED STATES V. SPATIG 11

seven figure range.” Id. at 958. Simply because cleanups 

spawn costs in this range does not mean that they cannot be 

characterized as “substantial”; nothing in Merino purports to 

establish a hard-and-fast rule about the cutoff for a 

qualifying expenditure. Instead, we sensibly noted that if 

$32,000 were “substantial” for the purposes of the 

sentencing adjustment, it is hard to imagine a storage 

violation that would not require the enhancement. See id. at 

958–59.

While we do not purport to establish a bright-line rule 

between substantial and insubstantial expenditures, we note 

that our sister circuits have determined that expenditures of 

$200,000 or less count as “substantial.” See United States v. 

Chau, 293 F.3d 96, 100 (3d Cir. 2002) (holding that 

$200,000 is a substantial expenditure and noting that even 

$58,000 is substantial); United States v. Cunningham, 

194 F.3d 1186, 1202 (11th Cir. 1999) (concluding that a 

$147,716.66 expenditure was substantial, even in the face of 

the “relative simplicity of the technique” for cleanup); 

United States v. Bogas, 920 F.2d 363, 369 (6th Cir. 1990) 

(reversing as clear error the district court’s determination 

that a six-figure cleanup—roughly $100,000—was not 

substantial). The $498,562 figure underestimates the total 

cleanup cost because it only reflects the amount spent by the 

EPA; it does not include the resources expended by the local 

and regional hazmat teams in addressing the containers in 

Spatig’s yard. Under these specific circumstances, the 

district court did not abuse its discretion in characterizing the 

costs as a “substantial expenditure.”

AFFIRMED.