ELR Citation: ELR 21396
No(s). s. 97-10551, -10552 (9th Cir. Jul 14, 1999)

The court upholds a warehouse owner's and a lessee's convictions for violating the Resource Conservation and Recovery Act (RCRA), committing wire fraud, and receiving explosives without a permit. The owner and lessee entered into a contract with a chemical company to dispose of the company's unsaleable products. The owner and lessee properly disposed of two of the 11 shipments, but stored the rest at the warehouse. County officials eventually discovered the unsaleable product and numerous explosives at the warehouse. The court first holds that the officials' search of the main warehouse and a cold room was proper. The warehouse owner consented to the search of the warehouse and demonstrated apparent authority to consent to a search of the lessee's cold room. The court next holds that severance of the explosives charges from the RCRA charges is not required. The explosives charges and the hazardous material charges were of similar character. The court then upholds the RCRA convictions. Although a person who merely receives hazardous waste does not "cause" that waste "to be transported" under RCRA §3008(d)(1), the owner and lessee took responsibility for and carried out the transportation of the unsaleable products from a storage location to the warehouse. Further, the government provided sufficient evidence for the jury to conclude that the defendants handled hazardous waste. The court also holds that the jury instructions were not plainly erroneous. The court, however, further holds that during sentencing the district court failed to acknowledge the proper disposal of two of the unsaleable product shipments. Therefore, the amount of loss must be reduced by the amount the company paid the owner and lessee for those two loads.

Counsel for Plaintiff
R. Steven Lapham, Ass't U.S. Attorney
U.S. Attorney's Office
555 Capitol Mall, Ste. 1550, Sacramento CA 95814
(916) 554-2700

Counsel for Defendant
John P. Balazs, Ass't Federal Public Defender
Federal Public Defender's Office
3273 Ramos Cir., Sacramento CA 95827
(916) 362-1686

Before Kravitch,¹ Reinhardt, and Nelson, JJ.