USA v. Harry Humphrie

Filing

FILED OPINION (HARRY PREGERSON, RAYMOND C. FISHER and WILEY Y. DANIEL) AFFIRMED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [8761181]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 11-50383

v.

D.C. No.
2:10-cr-01106JFW-3

HARRY HUMPHRIES,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
May 8, 2013—Pasadena, California
Filed August 29, 2013
Before: Harry Pregerson and Raymond C. Fisher, Circuit
Judges, and Wiley Y. Daniel, District Judge.*
Opinion by Judge Fisher

*

The Honorable Wiley Y. Daniel, Senior United States District Judge
for the District of Colorado, sitting by designation.

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UNITED STATES V. HUMPHRIES
SUMMARY**

Criminal Law
Affirming a conviction for illegally storing hazardous
wastes without a permit in violation of the Resource
Conservation and Recovery Act, the panel held that the
district court properly instructed the jury that, for purposes of
RCRA, “disposal” of hazardous waste begins not with an
individual’s subjective decision to dispose but with an act of
disposal.

COUNSEL
Gary P. Burcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant.
André Birotte, Jr., United States Attorney, Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division,
and Dennis Mitchell (argued), Assistant United States
Attorney, Los Angeles, California, 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.

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OPINION
FISHER, Circuit Judge:
Harry Humphries was convicted by jury trial of one count
of illegally storing hazardous wastes without a permit in
violation of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6928(d)(2). Humphries appeals his
conviction, arguing that the district court improperly
instructed the jury about the distinction between “storage”
and “disposal” of hazardous waste in response to a jury
inquiry. We hold that the district court properly instructed
the jury that, for purposes of RCRA, “disposal” of hazardous
waste begins not with an individual’s subjective decision to
dispose but with an act of disposal. We therefore affirm
Humphries’ conviction.1
BACKGROUND
Starting in the early 1990s, Humphries was part-owner of
a company that manufactured and blended chemicals. The
company’s manufacturing processes produced used toluene
and excess methanol. The company stored the used toluene
and excess methanol at its facility, which was located in a
building it rented from a third-party owner.
In late 2005, the owner sold the building, forcing
Humphries’ company to shut down and move out. Chemicals
that had been stored on-site, including the used toluene and
excess methanol, were eventually removed from the facility

1

We address Humphries’ remaining arguments in a concurrently filed
memorandum disposition.

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in early 2006 by EnviroClean, a permitted hazardous waste
disposal company.
In 2010, Humphries was indicted on one count of
knowingly storing hazardous wastes – the used toluene and
excess methanol – without a permit between September 30,
2005, and December 6, 2005, in violation of RCRA,
42 U.S.C. § 6928. Humphries’ primary defense at trial was
that he was not required to obtain a permit for the storage of
used toluene and excess methanol because he reused or sold
those materials rather than simply storing them. As relevant
here, he also argued that he was not liable for storing the
materials during the wind-down period because he had
decided to have them removed by EnviroClean.
During jury deliberations, the jury sent an inquiry about
jury instruction number 25. Jury instruction number 25
provided RCRA’s statutory definition of storage, 42 U.S.C.
§ 6903(33). It read:
The term “storage,” when used in connection
with hazardous waste[,] means the
containment of hazardous waste, either on a
temporary basis or for a period of years, in
such a manner as not to constitute disposal of
such hazardous waste.
The jury asked the court the following question:
As relates to instruction #25: Please interpret
the phrase “in such a manner as not to
constitute disposal of such hazardous waste.”
When does disposal begin? With the act of
disposal or with the decision to dispose[?]

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The district court initially responded to the jury’s question by
providing the jury with the statutory definition of disposal
under RCRA, 42 U.S.C. § 6903(3), stating:
The term “disposal” means the discharge,
deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous
waste . . . into or on any land or water so that
such solid waste or hazardous waste or any
constituent thereof may enter the environment
or be emitted into the air or discharged into
any waters, including ground waters.
Shortly thereafter, the district concluded that its initial
response, although helpful, did not fully answer the jury’s
question. The court therefore provided the following
supplemental response, over Humphries’ objection:
In further response to your question, the Court
provides the following: Disposal begins with
the act of disposal not with the decision to
dispose.
About 90 minutes later, the jury returned a verdict of guilty.
STANDARD OF REVIEW
We review for an abuse of discretion a district court’s
response to a jury inquiry, but we review de novo whether the
district court’s response correctly states the law or violates
due process. See United States v. Verduzco, 373 F.3d 1022,
1030 n.3 (9th Cir. 2004). We review matters of statutory
interpretation de novo. See United States v. Havelock,
664 F.3d 1284, 1289 (9th Cir. 2012) (en banc).

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DISCUSSION

Humphries argues that the district court’s initial response
was correct and that its supplemental response was improper.
First, Humphries argues that the supplemental response
was legally incorrect. He relies on RCRA’s statutory
definition of storage as: “the containment of hazardous waste,
either on a temporary basis or for a period of years, in such a
manner as not to constitute disposal of such hazardous
waste.” 42 U.S.C. § 6903(33) (emphasis added). Under the
statute, “disposal” and “storage” are mutually exclusive: a
person cannot be convicted of storing waste once the person
has disposed of it. Seizing on this distinction, Humphries
argues that he had disposed of the waste, even as it remained
on his premises, because he had made the “decision to
dispose” of it. He argues that, because he had disposed of the
waste, he could not have been convicted of storing it.2 The
district court’s supplemental response negated this defense by
instructing the jury that disposal, under RCRA, means the act
of disposal rather than the decision to dispose. Humphries
argues that the district court misinterpreted the statute. He
maintains that “disposal,” as defined by RCRA, refers to the
decision to dispose, not merely to acts of disposal. In support
of this argument, he cites an Environmental Protection
Agency (EPA) rule stating that unused military munitions
become “solid waste” under RCRA when they become
“discarded material,” which occurs “when an intent to discard
the material is demonstrated.” Military Munitions Rule,
62 Fed. Reg. 6622, 6626 (Feb. 12, 1997).

2

Disposal of hazardous waste without a permit, like storage of such
waste without a permit, can violate RCRA. See 42 U.S.C. § 6928(d)(2).
Humphries, however, was charged solely with unlawful storage.

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Second, Humphries argues that the district court’s
supplemental response effectively directed the jury to find, as
a factual matter, that he “stored” the used toluene and
methanol until EnviroClean removed them from the premises
in January or February 2006. He argues that it directed the
jury to reject his defense that he was not knowingly “storing”
toluene and methanol from September to December 2005 for
purposes of RCRA because he had already decided to wind
down business arrangements and was preparing the materials
for removal and waiting for them to be picked up. In other
words, he was not knowingly “storing” the materials during
that time because he had made the decision to have them
removed, and the supplemental response to the jury precluded
such a finding.
A.
We begin by addressing Humphries’ argument that the
district court’s supplemental response misstated the law by
informing the jury that disposal begins with the act of
disposal rather than the decision to dispose. We hold that the
district court’s interpretation of the word “disposal,” as used
in 42 U.S.C. § 6903(3) and (33), was correct, and thus that
the district court properly stated the law.
“Our first step in interpreting a statute is to determine
whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “The
plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as
a whole.” Id. at 341. “Our inquiry must cease if the statutory
language is unambiguous and ‘the statutory scheme is

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coherent and consistent.’” Id. at 340 (quoting United States
v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).
Here, the meaning of “disposal” under RCRA has a plain
and unambiguous meaning. The statute defines disposal as
“the discharge, deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous waste into or on
any land or water so that such solid waste or hazardous waste
or any constituent thereof may enter the environment or be
emitted into the air or discharged into any waters, including
ground waters.” 42 U.S.C. § 6903(3) (emphasis added).
Disposal under the statute thus unambiguously refers to the
act of discharging, depositing, injecting, dumping, leaking or
placing. Humphries’ suggested interpretation, under which
disposal refers to the decision to undertake one of these
actions, finds no support in the language of the statute.
Humphries’ suggested definition would also blur the
statutory distinction between storage and disposal. As noted
earlier, under RCRA the “term ‘storage’, when used in
connection with hazardous waste, means the containment of
hazardous waste, either on a temporary basis or for a period
of years, in such a manner as not to constitute disposal of
such hazardous waste.” 42 U.S.C. § 6903(33) (emphasis
added). Under Humphries’ interpretation, one could retain
hazardous waste for 25 years and claim that he is not storing
the waste because he has been intending to dispose of it the
entire time. RCRA’s prohibition on storing hazardous waste
would have no practical meaning if a defendant could claim
that he was intending to dispose of it at some future date.
The only authority Humphries cites – the EPA regulation
regarding munitions manufacturing – is inapposite because,
as the government points out, that regulation reflects the

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EPA’s effort to expand liability for disposal of munitions.
Invoking that authority to avoid liability for storage of
hazardous waste is inconsistent with RCRA’s purpose, which
is “to subject hazardous waste to ‘cradle-to-grave’ regulation
in order to protect public health and the environment.” Am.
Chemistry Council v. EPA, 337 F.3d 1060, 1065 (D.C. Cir.
2003).
In sum, we hold that “disposal,” as that term is used in
§ 6903(3) and (33), plainly and unambiguously refers to the
acts of discharging, depositing, injecting, dumping, spilling,
leaking or placing, not the decision to take those actions at a
future time. Because the district court’s supplemental
response to the jury’s question properly stated the law, the
court’s response was neither legally erroneous nor an abuse
of discretion.
B.
We next address Humphries’ argument that the district
court’s supplemental response “invaded the role of the jury
by effectively directing an adverse finding as to the storage
element.”
Humphries’ argument, although somewhat hard to follow,
goes something like this. In 2005, when the owner
unexpectedly decided to sell the building in which
Humphries’ company operated, the company was forced to
wind down operations. Humphries acted as quickly as
possible to arrange for and have the toluene and methanol
wastes removed (by EnviroClean), but this process took
several months because of short notice and a lack of company
resources. Because Humphries acted as quickly as he could
to have the waste properly removed, “there was no criminal

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intent in keeping the toluene and methanol mixtures for this
period because the unexpected and complicated procedure of
shutting down . . . made it impossible for the company to
complete this process any faster.” Given the lack of
“criminal intent,” he could not have been guilty of unlawful
“storage” under 42 U.S.C. §§ 6903(33) and 6928(d)(2). He
contends that the district court’s supplemental response to the
jury improperly precluded the jury from accepting this
defense. We disagree.
Section 6928(d)(2) applies to a “person who . . .
knowingly . . . stores . . . hazardous waste . . . without a
permit.” 42 U.S.C. § 6928(d)(2) (emphasis added). To the
extent that Humphries argues that he could not have
knowingly stored the waste because he was making his best
efforts to have it lawfully removed, the district court’s
supplemental response did nothing to preclude the jury from
accepting that defense.3 The court’s response instructed the
jury only that Humphries had not disposed of the waste, as
that term is defined by § 6903(3) and used in § 6903(33).
The court’s instruction did not preclude the jury from finding
that Humphries could not have formed the requisite mental
state of knowing storage because he had decided to remove
the waste.
District courts have wide discretion in crafting jury
instructions, and “[t]his ‘wide discretion’ carries over to a
trial judge’s response to a question from the jury.” Arizona
v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003). The district

3

We express no opinion as to whether this was a viable legal defense.
Assuming for the sake of argument that it could be a legal defense, we
hold only that nothing in the district court’s response to the jury precluded
the jury from accepting it.

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court’s response was a correct statement of the law and was
unlikely to confuse or mislead the jury. That the court’s
legally accurate instruction may have influenced the jury to
reject Humphries’ defense does not show that the district
court committed instructional error; rather, it shows that
Humphries’ defense was not persuasive to the jury. We hold
that the district court did not abuse its discretion in instructing
the jury regarding the definition of “disposal.”
AFFIRMED.