ELR Citation: ELR 20124
No(s). 5:09-cr-00216 (S.D. W. Va. Apr 5, 2010)

A district court granted defendant’s motions to exclude evidence of defendant’s prior conviction under, and involvement with, certain environmental laws in a case where defendant was charged with violating RCRA §3008(d)(2)(A). Although defendant’s prior conviction could be probative as to whether defendant “knowingly” stored hazardous material, defendant is not contesting the fact that he was aware that waste materials generated by the chrome plating process were considered to be hazardous. Given this concession, any probative value from the conviction is substantially outweighed by the danger of unfair prejudice. At the same time, the conviction was not admissible to show that defendant was a “person” under RCRA. RCRA defines “person” as, among other things, “an individual.” It cannot be disputed that defendant is a “person” under RCRA §3008(d)(2)(A) as he is an individual. The conviction is also inadmissible for purposes of cross-examination under Rule 609(a)(1) of the Federal Rules of Evidence unless defendant, in direct examination, testifies as to some fact that gives the conviction probative value.