No. 99-315
In the Supreme Court of the United States
GORDON PAUL COOPER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
JOHN T. STAHR
TODD AAGAARD
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether petitioner's alleged compliance with an administrative regulation
precludes his conviction under 33 U.S.C. 1319(c)(2) and 1342 for knowingly
violating the conditions of a National Pollutant Discharge Elimination System
permit issued by a State under 33 U.S.C. 1342, or precludes petitioner from
being sentenced under Guidelines § 2F1.1(b)(1)(K).
2. Whether alleged use of perjured testimony by the government required
reversal of petitioner's conviction.
3. Whether petitioner presented sufficient evidence that the government
had promised to grant immunity to a prosecution witness and then had concealed
the promise from the defense and from the court.
In the Supreme Court of the United States
No. 99-315
GORDON PAUL COOPER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A29) is reported at 173
F.3d 1192.
JURISDICTION
The judgment of the court of appeals was entered on April 9, 1999. A petition
for rehearing was denied on May 28, 1999 (Pet. App. B1). The petition for
a writ of certiorari was filed on August 23, 1999. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Petitioner was convicted by a jury in the Southern District of California
of one count of conspiracy, in violation of 18 U.S.C. 371; one count of
knowingly violating a condition of a National Pollutant Discharge Elimination
System (NPDES) permit, in violation of 33 U.S.C. 1319(c)(2)(A), 1342 and
18 U.S.C. 2; and three counts of committing mail fraud, in violation of
18 U.S.C. 1341 and 2. The district court sentenced petitioner to 51 months'
imprisonment. Pet. App. A11. The court of appeals affirmed. Id. at A1-A29.
1. Petitioner was a part-owner and an officer of Chino Corona Farms (CCF),
a business based in San Juan Capistrano, California, that transported, composted,
and sold sewage sludge. In 1990, CCF contracted with the City of San Diego
to remove sewage sludge from the City's treatment site on Fiesta Island
and to compost the sludge at a CCF facility in Thermal, California. The
California Regional Water Quality Board (Water Board), a state agency authorized
by the Environmental Protection Agency (EPA) under 33 U.S.C. 1342(b) to
administer the NPDES permitting program in California, issued the City of
San Diego a NPDES permit to process city sewage. That permit required the
City to report regularly to the Water Board on how the sludge was being
disposed, and to notify the Water Board of any changes in the city's disposal
practice. Pet. App. A2-A3.
The rate at which CCF was receiving sludge from San Diego quickly overwhelmed
the capacity of the facility in Thermal. In response, CCF received permission
from San Diego and from the Water Board to haul some of the sludge to Mexicali,
Mexico. Petitioner hired an individual by the name of Manuel Mier to supervise
the trucks hauling sludge from Fiesta Island to Mexicali. According to Mier's
testimony at trial, petitioner instructed Mier to prepare falsified weighmaster
certificates that misrepresented the cargo weight of the trucks. CCF then
used those certificates to bill San Diego for the sludge hauled to Mexicali.
Pet. App. A4-A5.
In February 1993, the EPA promulgated regulations that allowed the direct
application of sewage sludge on agricultural lands, providing that the sludge
met certain standards. See 40 C.F.R. Pt. 503. Petitioner arranged for samples
of San Diego's sludge to be analyzed and, on the basis of the results of
the analysis, decided that the EPA standards allowed CCF to deposit the
sludge on agricultural land without composting it first. At petitioner's
direction, CCF began shipping sludge at night to a farm in Imperial County,
California. Petitioner never notified either the City or the Water Board
of the change and continued to submit false certificates to San Diego representing
that the trucks had been weighed and that the sludge had been transported
to Mexicali. San Diego subsequently discovered the ruse, canceled its contract
with CCF, and refused to pay the outstanding bills. As a result, CCF went
out of business. Pet. App. A5-A8.
2. Petitioner was convicted after a jury trial of causing a violation of
a condition of a NPDES permit by disposing of the sludge on farm land without
notice to and approval of the Water Board, conspiring with others to violate
a NPDES permit condition, and mail fraud for the false billing. The court
of appeals affirmed. Pet. App. A1-A29.
The court of appeals rejected petitioner's contention that compliance with
40 C.F.R. Part 503 relieved him of a duty to comply with the City's NPDES
permit. Pet. App. A12-A13. The court of appeals reasoned that "the
federal regulations do not supersede the NPDES permit." Id. at A13.
The court of appeals also rejected petitioner's challenge to the government's
use of Mier as a witness. The court of appeals concluded that the government
did not violate petitioner's rights under Brady v. Maryland, 373 U.S. 83
(1963), by allegedly failing to produce before trial an exculpatory FBI
report that indicated that there was no evidence that the print shop that
Mier identified as the source of the false weighmaster certificates ever
printed such certificates. Pet. App. A17-A18.1 The court of appeals reasoned
that the "FBI report was not material" to the outcome of the case,
because "[t]he defense was able to impeach Mier extensively,"
and "[t]here was ample evidence of [petitioner's] guilt even without
Mier's testimony." Id. at A18.
The court of appeals similarly rejected petitioner's contention, raised
for the first time on appeal, that the government knowingly presented perjured
testimony by Mier. The court of appeals concluded that, because petitioner's
attorney "was able to impeach Mier extensively with inconsistent statements,"
any prejudice to petitioner resulting from Mier's perjury "was not
great" and did not constitute "plain error." Pet. App. A19.
The court also found that the government did not improperly fail to disclose
an immunity agreement with Mier. The court of appeals explained that the
government had denied that any such agreement existed, and that petitioner
had not presented any direct evidence to the contrary. Pet. App. A19-A20.2
ARGUMENT
1. Petitioner argues (Pet. 5-7, 13-17) that, under the Supremacy Clause
(U.S. Const. Art. VI, § 2), he could not be convicted under 33 U.S.C.
1319(c)(2)(A) for failing to notify the City of CCF's change in disposal
practices, because the disposal complied with 40 C.F.R. Part 503, which
permits the direct application of sludge to agricultural land under certain
conditions and relieves the person disposing of the pollutant from the notice
requirements under 40 C.F.R. 503.12(j). That contention has no merit.
As an initial matter, this case presents no issue under the Supremacy Clause,
under which "any state legislation which frustrates the full effectiveness
of federal law is rendered invalid." Perez v. Campbell, 402 U.S. 637,
652 (1971). The alleged conflict that petitioner posits is not between federal
and state law, but between two sources of federal law, 33 U.S.C. 1319(c)(2)(A)
and 40 C.F.R. Part 503. The Supremacy Clause is therefore simply irrelevant
in this case.
Moreover, compliance with EPA's regulations under 40 C.F.R. Part 503 in
no way bars a conviction under 33 U.S.C. 1319(c)(2)(A), which imposes criminal
liability on a "person who knowingly violates * * * any permit condition
* * * in a [NPDES] permit." The regulations on which petitioner relies
simply provide that, when a person meets certain conditions that permit
the direct application of sewage sludge onto land, that person is exempt
from complying with another regulatory requirement that requires a person
applying sewage sludge to land to provide written notice to the permitting
authority for the State in which the sludge will be applied. 40 C.F.R. 503.10,
503.12. Petitioner, however, was not convicted of violating the notice requirements
of EPA's regulations.3 Rather, petitioner was convicted for knowingly causing
the violation of the City's extant NPDES permit by failing to notify the
City of a change in CCF's disposal practices and by misrepresenting that
CCF was sending sludge to Mexico for treatment, when in fact it was directly
depositing it on agricultural land in California. Pet. App. A12-A15. There
is nothing in EPA's regulations or the Clean Water Act that purports to
immunize petitioner from knowingly violating the terms of an extant permit.
For similar reasons, petitioner also errs in contending (Pet. 29-30) that
his compliance with the regulations barred the district court from sentencing
petitioner under Guidelines § 2F1.1(b)(1)(K), which provides for a
ten-level enhancement for fraud involving a loss exceeding $500,000. Whether
or not petitioner complied with EPA's regulations, petitioner violated the
mail fraud statute, 18 U.S.C. 1341, when CCF submitted false certificates
to the City representing that the sludge was being shipped to Mexicali.
Pet. App. A3.4
2. Petitioner also argues (Pet. 17-24) that this Court should grant certiorari
to determine whether the court of appeals properly applied the plain error
standard of review under Federal Rule of Criminal Procedure 52(b)5 to his
contention that the prosecutor knowingly allowed Mier to commit perjury
while testifying against petitioner. That claim lacks merit and does not
warrant this Court's review.
This Court in Johnson v. United States, 520 U.S. 461, 466 (1997), concluded
that "the seriousness of the error claimed does not remove consideration
of it from the ambit of" Rule 52(b), "which by its terms governs
direct appeals from judgments of conviction in the federal system."
Because petitioner did not argue to the trial court that the prosecutor
knowingly used perjured testimony, the court of appeals correctly reviewed
petitioner's contention under Rule 52(b).
The court of appeals also correctly applied Rule 52(b) in this case. Even
assuming that the government had knowingly used perjured testimony, any
resulting prejudice was minimal. Pet. App. A19. As the court of appeals
concluded, "[t]here was ample evidence of [petitioner's] guilt even
without Mier's testimony." Id. at A18. Moreover, petitioner's attorney
"was able to impeach Mier extensively with inconsistent statements."
Id. at A19. The court of appeals therefore properly concluded that "[t]here
was no plain error." Ibid.6 That fact-bound contention does not warrant
further review by this Court.
3. Petitioner further contends (Pet. 24-28) that the government must have
made an immunity deal with Mier because he was not prosecuted for his commission
of crimes and that the government's failure to disclose the deal requires
a reversal of his conviction. That fact-bound contention also lacks merit.
Petitioner points to no evidence that the government either offered or actually
entered into an immunity deal with Mier, or represented to Mier that he
would not be prosecuted for crimes he may have committed in exchange for
his testimony. Indeed, Mier testified at trial that no such agreement existed,
and the government represented to the courts below that it had not entered
into any such agreement with Mier. Pet. App. A19; Pet. 25. In the absence
of an indication that the court or the jury was deceived as to the circumstances
under which Mier was testifying, petitioner has no cognizable claim to a
deprivation of due process. Cf. Giglio v. United States, 405 U.S. 150, 153-155
(1972) (reversing the petitioner's conviction because "evidence of
any [immunity agreement] * * * would be relevant to [the witness's] credibility
and the jury was entitled to know of it").
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JOHN T. STAHR
TODD AAGAARD
Attorneys
OCTOBER 1999
1 The court of appeals observed that the parties had disputed whether the
government properly disclosed the FBI report and that the district court
did not resolve that factual dispute. Pet. App. A18.
2 The court of appeals also concluded that petitioner could be found liable
for violating a NPDES permit even though he was not a party to the permit,
Pet. App. A13-A14, that 33 U.S.C. 1319(c)(2)(A) and 1342 were not unconstitutionally
vague, Pet. App. A15-A16, that alleged prosecutorial misconduct did not
require reversal of petitioner's conviction, id. at A21-A22, and that the
district court did not misapply the provisions of the Guidelines that provide
for sentencing enhancements for obstruction of justice, discharge of a pollutant,
permit violation, more than minimal planning, and role in the offense, id.
at A23-A25, A28-A29. Petitioner does not challenge those rulings in this
Court.
3 Nor was petitioner convicted of violating CCF's contract with the City.
Petitioner therefore errs in relying (Pet. 7-8) on the fact that the contract
did not incorporate the terms of the City's NPDES permit.
4 Petitioner is also incorrect in contending (Pet. 30) that the City "was
not defrauded out of anything, since they refused to pay petitioner's bills."
Although CCF's disposal of sludge by directly depositing it on farmland
"had some value to the City," petitioner's action in violating
the terms of the City's permit "exposed the City to potential clean-up
liability and to the loss of its NPDES permit." Pet. App. A27. Thus,
as the court of appeals concluded, the district court's "[u]sing the
invoiced amount for the shipments of sludge to the Mason farm was in this
case a reasonable, if rough, estimate of the intended loss." Id. at
A28.
5 That Rule states that "[p]lain error or defects affecting substantial
rights may be noticed although they were not brought to the attention of
the court." Fed. R. Crim. P. 52(b).
6 Indeed, absent prejudice to petitioner, petitioner could not establish
that any error occurred in the first place. See United States v. Agurs,
427 U.S. 97, 103 (1976) (due process violation occurs when there is a "reasonable
likelihood that the false testimony could have affected the judgment of
the jury").