Defendants Executive Recycling and Brandon Richter originally moved for judgment 1

of acquittal on Counts 3, 4, and 16 while Defendant Tor Olson moved for acquittal on Counts 3,

4, 5, 6, 8, 13, and 16. However, each party joined in the other’s motion. Therefore, the Court

considers the oral Motions for Judgment of Acquittal to have been brought by all Defendants. 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Criminal Case No. 11-cr-00376-WJM

UNITED STATES OF AMERICA,

Plaintiff,

vs.

1. EXECUTIVE RECYCLING, INC.,

2. BRANDON RICHTER, and

3. TOR OLSON,

Defendants.

 

ORDER SETTING FORTH BASIS FOR DENIAL OF 

MOTION FOR JUDGMENT OF ACQUITTAL

 

 

At the close of the Government’s case-in-chief, Defendants moved for judgment 1

of acquittal on Counts 3, 4, 5, 6, 8, 13, and 16. The Court orally denied Defendants’

motion and Defendants renewed the motion at the close of all evidence. The Court

again orally denied the motion and stated that it would issue a written order setting forth

the basis for its decision, if necessary, after the jury returned its verdict. 

On December 21, 2012, the jury returned its verdict. Defendant Executive

Recycling was convicted on Counts 2, 7, 9, 10, 11, 12, 13, 14, and 15. (ECF No. 271-

15.) Defendant Brandon Richter was convicted on Counts 2, 7, 9, 10, 11, 12, 13, 15,

and 16. (ECF No. 271-16.) Defendant Tor Olson was convicted on Counts 2, 7, 9, 10,

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11, 12, 13, and 15. (ECF No. 271-14.) 

Because Defendants were acquitted by the jury on Counts 3, 4, 5, 6, and 8,

Defendants’ Motion for Judgment of Acquittal on these charges is moot and the Court

need not elaborate on the basis for its prior denial of the Motion. The purpose of this

Order is to set forth the basis for the Court’s denial of Defendants’ Motion for Judgment

of Acquittal as to Count 13 with respect to all Defendants and Count 16 as to Brandon

Richter. 

I. LEGAL STANDARD

Federal Rule of Criminal Procedure 29(a) provides:

After the government closes its evidence or after the close of

all the evidence, the court on the defendant's motion must

enter a judgment of acquittal of any offense for which the

evidence is insufficient to sustain a conviction. The court

may on its own consider whether the evidence is insufficient

to sustain a conviction. If the court denies a motion for a

judgment of acquittal at the close of the government's

evidence, the defendant may offer evidence without having

reserved the right to do so.

In considering a motion for judgment of acquittal pursuant to Rule 29, the Court cannot

weigh the evidence or consider the credibility of witnesses. See Burks v. United States,

437 U.S. 1, 16 (1978). Rather, the Court must “view the evidence in the light most

favorable to the government and then determine whether there is sufficient evidence

from which a jury might properly find the accused guilty beyond a reasonable doubt.”

United States v. White, 673 F.2d 299, 301 (10th Cir. 1982). The jury may base its

verdict on both direct and circumstantial evidence, together with all reasonable

inferences that could be drawn therefrom, in the light most favorable to the government.

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See United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986). Acquittal is proper

only if the evidence implicating defendant is nonexistent or is “so meager that no

reasonable jury could find guilt beyond a reasonable doubt.” White, 673 F.2d at 301.

II. ANALYSIS

A. Count 13

Count 13 of the Indictment charges Defendants with transmitting a wire

communication in interstate commerce on December 23, 2008 for the purpose of

executing or attempting to execute their fraudulent scheme. (ECF No. 1 p. 12.) 

Specifically, Count 13 references an e-mail from Tor Olson to Robert Rowland of the

Denver Newspaper Agency (“DNA”) with the subject line “ER Documented Process and

Procedures—Denver Newspaper Agency.” (Id.)

Defendants moved for judgment of acquittal on this Count and argued that the

Government had failed to present any evidence showing that any of DNA’s equipment

had been exported. Defendants also argued that DNA’s representative testified that

Executive Recycling could do what it wanted with DNA’s computer monitors; DNA’s

main concern in choosing to contract with Executive Recycling was complete and total

data destruction. Defendants argued that, because there was no evidence that

Executive Recycling had failed to destroy any of DNA’s data, there was insufficient

evidence to allow the jury to convict the Defendants on Count 13. 

In response, the Government argued that there was sufficient evidence to allow

the jury to find that Defendants made false statements to the victims about the use of

downstream vendors, that they were not going to export anything, and that they were

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going to follow the law. The Government contended that Defendants’ misstatements

were intended to mislead the victims and that they did, in fact, mislead the victims. The

Government’s argument did not address any of the victims, including DNA, specifically. 

After the trial, the Court ordered the parties to file supplemental briefs regarding

Count 13. (ECF No. 274.) The Court has received and reviewed these filings. (ECF

Nos. 288, 289 & 290.) 

To convict Defendant on Count 13, the jury was required to find that the

Defendants: (1) devised or intended to devise a scheme to defraud or to obtain money

or property by means of false or fraudulent pretenses, representation, or promises, as

described in the Indictment; (2) acted with specific intent to defraud or to obtain money

by means of false or fraudulent pretenses, representation, or promises; (3) used

interstate wire communications facilities or caused another person to use interstate wire

communications facilities for the purpose of carrying out the scheme; and (4) the

scheme employed false or fraudulent pretenses, representations, or promises that were

material.

The Court finds that the Government presented sufficient evidence to permit a

reasonable juror to convict Defendants on Count 13. Robert Rowland, a decision

maker for DNA, testified that his main concern was that all data provided to Defendants

by DNA be totally destroyed. He also testified that it was important to him that nothing

from DNA be exported wholesale but he did not mind if properly shredded components

were exported. Mr. Rowland also testified that Defendants assured him that they used

Doe Run, a domestic lead recycling company, as a downstream vendor for CRT glass. 

The Government introduced evidence showing thousands of whole monitors

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were exported overseas by Executive Recycling. There was also evidence showing

that Defendants never sent CRT glass to Doe Run. Thus, a reasonable juror could

infer that Defendants made a number of false representations to DNA. Additionally,

given Mr. Rowland’s testimony about the characteristics of Executive Recycling that he

relied on in choosing to do business with it, a reasonable juror could also infer that the

false statements were material to DNA’s decision to do business with Defendants. 

With respect to the scheme to defraud or obtain money by false pretenses, the

Government introduced evidence that Defendant Richter and Olson were involved with

designing and providing information for ER’s website and promotional materials and

that these materials made representations about ER’s business practices, including

data destruction and downstream vendors. There was also evidence that Defendant

Olson personally made affirmative misrepresentations to Rowland about how DNA’s

materials would be handled, specifically that no whole components would be exported

and that CRT glass would be sent to Doe Run. From this evidence, a reasonable juror

could infer that Defendants devised a scheme to obtain DNA’s business based on false

pretenses and that they did so with the specific intent to deceive. 

Finally, as to the third element, the Government introduced an e-mail from Tor

Olson to Robert Rowland in which Olson attached a description of the procedures that

Executive Recycling claimed to use to destroy DNA’s equipment. The parties stipulated

that this e-mail was an interstate wire communication. As the e-mail contains

misrepresentations about how DNA’s materials would be handled, a reasonable juror

could infer that it was sent in furtherance of the scheme to defraud. Thus, the Court

finds that there was sufficient evidence presented at the trial to permit a reasonable

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juror to conclude that the Government had met its burden as to each element of Count

13. 

In his supplemental briefing, Defendant Olson contends that there is no “direct

evidence” that ER failed to properly dispose of DNA’s equipment in accordance with all

laws and regulations or that ER failed to dispose of DNA’s equipment properly in the

United States. (ECF No. 289.) Even accepting this argument as true, the Government

is not required to offer direct evidence of a fact to prove its case. As the jury was

instructed, the law makes no distinction between direct and circumstantial evidence and

the jury is permitted to draw reasonable inferences from the evidence presented. Given

the evidence about the hundreds of shipments that were sent overseas by Defendants,

which is circumstantial evidence supporting the Government’s theory of the case, a

reasonable juror could infer that some of DNA’s equipment was in those shipments.

Defendant Olson also argues that, because there is only evidence that ER

collected 42 monitors from DNA between 2005 and 2009, it would not be reasonable to

infer that some of DNA’s monitors were in the overseas shipments. The Court

disagrees. While there was some evidence that Executive Recycling processed CRT

monitors in ways that did not involve shipping them overseas, the evidence would

certainly permit an inference that the vast majority of the monitors collected by

Executive Recycling were shipped overseas. There was certainly no direct evidence

that the 42 monitors collected from DNA were processed in way that did not involve

those monitors being shipped overseas. 

Moreover, even if it were unreasonable to infer that monitors from DNA went

overseas, the Government’s case was not limited to the manner in which Executive

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Recycling handled CRT monitors. There was also evidence about other equipment

being shipped overseas or re-sold for wholesale. Mr. Rowland testified that he did not

want any of DNA’s equipment sold at wholesale; he wanted it all shredded to avoid

future liability. There was certainly sufficient evidence in the record to permit a

reasonable juror to infer that some of DNA’s equipment was exported or that some of

DNA’s equipment was not totally destroyed as Mr. Rowland had been promised. 

In ruling on a motion brought pursuant to Rule 29, the Court is not to weigh the

evidence; rather, it must view the evidence in the light most favorable to the

Government as the non-movant and must judge only whether a reasonable juror could

convict a defendant on the evidence (both direct and circumstantial). See Hooks, 780

F.2d at 1531. Given this standard of review, the Court has little difficulty concluding that

a reasonable juror could have convicted all three Defendants on Count 13 of the

Indictment. Therefore, the Court reaffirms its prior denial of Defendants’ Motion for

Judgment of Acquittal on this Count.

B. Count 16

The jury found Brandon Richter guilty on Count 16 of the Indictment, which

alleged that Defendants had obstructed justice by “knowingly alter[ing], destroy[ing],

mutilat[ing], and conceal[ing] any record, document and tangible object with the intent

to impede, obstruct and influence the investigation and proper administration of any

matter within the jurisdiction of the Environmental Protection Agency, a department and

agency of the United States; to wit ER’s export shipping records from approximately

October 2004 through December 2008.” (ECF No. 1.) 

The jury was instructed that, to convict Brandon Richter on Count 16, it had to

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find beyond a reasonable doubt that he: (1) knowingly altered, destroyed, mutilated,

concealed, covered up, or falsified Executive Recycling’s export shipping records from

approximately October 2004 to December 2008; and (2) that he did so with the intent to

impede, obstruct, or influence the investigation or proper administration of any matter

within the jurisdiction of the Environmental Protection Agency. 

The Court finds that there was ample evidence to permit a reasonable juror to

convict Brandon Richter on Count 16. The testimony relevant to this count came from

witness Eric Johnson, who worked for the Environmental Protection Agency (“EPA”) as

an inspector involved with the Resource Conservation and Recovery Act. Mr. Johnson

testified that he and a team of investigators from the EPA went to Executive Recycling’s

facilities on September 11, 2008 to conduct a compliance inspection. A compliance

inspection involves reviewing the paperwork required for hazardous waste management

compliance and touring the facility. Mr. Richter was not at the Executive Recycling

facility when Mr. Johnson arrived but Mr. Johnson was able to contact him by phone. 

During the phone call between Mr. Johnson and Mr. Richter, Mr. Johnson asked

Mr. Richter to provide all bills of lading and shipping records, as well as any other

documents related to shipping CRTs from Executive Recycling for the prior three years. 

Mr. Richter told Mr. Johnson that there were very few records showing shipments of

CRTs outside of the United States. 

Mr. Johnson testified that, in response to this request, the EPA received three or

four bills of lading for shipments to Mexico and one for a shipment to Hong Kong. At

trial, the Government introduced a plethora of documents showing that Executive

Recycling was the shipper for hundreds of containers full of electronic goods that went

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overseas. The Government showed Mr. Johnson the documents related to the

overseas shipments and Mr. Johnson testified that, despite his request for all shipping

documents related to exporting CRTs, none of these documents were provided to him

by Mr. Richter. 

Based on this evidence, a reasonable juror could have found that Mr. Richter

knowingly concealed Executive Recycling’s export shipping records with the intent to

impede an EPA investigation. Thus, the Court finds that the Government presented

sufficient evidence to permit a reasonable juror to convict Brandon Richter on Count 16.

III. CONCLUSION

For the reasons set forth above, as well as those set forth on the record during

trial, Defendants’ oral Motions for Judgment of Acquittal pursuant to Federal Rule of

Criminal Procedure 29 are DENIED. 

Dated this 7 day of March, 2013. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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