USA v. Max Spatig

Filing

FILED OPINION (MICHAEL R. MURPHY, M. MARGARET MCKEOWN and JACQUELINE H. NGUYEN) AFFIRMED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [10578645]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAX SPATIG, AKA John Spatig,
AKA John Serge Spatig,
Defendant-Appellant.

No. 15-30322
D.C. No.
4:12-cr-00302WYD-1
OPINION

Appeal from the United States District Court
for the District of Idaho
Wiley Y. Daniel, Senior District Judge, Presiding
Argued and Submitted July 12, 2017
Seattle, Washington
Filed September 13, 2017
Before: Michael R. Murphy, * M. Margaret McKeown,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge McKeown
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
*

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UNITED STATES V. SPATIG
SUMMARY **
Criminal Law

The panel affirmed the defendant’s jury conviction and
sentence for storage of hazardous waste in violation of the
Resource Conservation and Recovery Act.
The panel held that the district court properly refused to
allow evidence of the defendant’s diminished capacity
because the crime was one of general intent.
The district court also did not err in applying a four-level
sentence enhancement under U.S.S.G. § 2Q1.2(b)(3) for
cleanup that required a substantial expenditure.
COUNSEL
Steven V. Richert (argued), Federal Defender Services of
Idaho, Pocatello, Idaho, for Defendant-Appellant.
Emily Anne Polachek (argued), Adam C. Cullman, Allen M.
Brabender, and Aaron P. Avila, Attorneys; John C. Cruden,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Michael J. Fica, Assistant United States
Attorney, United States Attorney’s Office, Pocatello, Idaho;
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
McKEOWN, Circuit Judge:
As the saying goes, fences make good neighbors. But
when the neighbor collects thousands of containers of
hazardous and combustible chemicals in his yard that could
explode at any moment, a fence may not be enough to save
the neighborly relationship. Instead, the authorities need to
get involved.
Max Spatig was charged and convicted under the
Resource Conservation and Recovery Act (“RCRA”) for
storing more than 3,000 containers of hazardous waste in his
yard without a permit. On appeal, Spatig challenges the
district court’s refusal to allow evidence of his diminished
capacity, arguing that his crime is one of specific, as opposed
to general, intent. He also objects to the district court’s
application of a four-level sentence enhancement based on
the magnitude of the expenditure required to clean up his
yard. We affirm.
Background
Idaho resident Spatig has dealt with the storage of paint
for much of his adult life. For over fifteen years, he ran MS
Enterprises, a business that resurfaced cement floors. As
part of his work with the company, Spatig purchased
discounted paint in bulk and accumulated large quantities of
paint and paint-related materials. When his wife fell ill,
Spatig stopped working and decided to store the materials on
his residential property in Menan, Idaho. Neither he nor MS
Enterprises applied for or obtained a hazardous waste permit
from the state environmental agency or the Environmental
Protection Agency (“EPA”) to store the materials.

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Investigating a nuisance complaint in 2005, county
officials discovered Spatig’s storage of paint and paintrelated materials. Due to concerns about hazardous waste,
the Idaho Department of Environmental Quality (“DEQ”)
was called in and determined it was necessary to conduct a
cleanup. Inspectors worked with Spatig to identify which
containers were acceptable for removal from the property.
Spatig was allowed to keep a small portion, but most
containers were collected and destroyed by DEQ.
Unfortunately, the 2005 run-in with authorities did not
change Spatig’s behavior. In 2010, after receiving nuisance
complaints about the condition of Spatig’s property in
Rexburg, Idaho, a detective from the county sheriff’s office
observed canisters haphazardly strewn across the property,
many of which were in poor condition and labeled as
flammable or corrosive. As one witness described at trial,
Spatig’s yard was an “indescribable mess,” with piles of
corroded and rusting containers left in the yard or packed
into vehicles and trailers. Neither the local fire department
nor the regional hazmat team could handle a cleanup of that
size or complexity. Idaho turned to the EPA for help.
The EPA sent a special team from Washington State to
run the cleanup. At times dressed in chemical protective
suits and respirators, the team separated the materials based
on their contents, marked the containers, and sent samples to
a lab for testing. Testing confirmed that the substances were
either flammable or corrosive enough to be considered
hazardous under EPA regulations. Over about two weeks,
the EPA removed approximately 3,400 containers from
Spatig’s property and spent $498,562 on the cleanup.
The EPA pursued criminal charges against Spatig under
RCRA. Spatig was indicted on one count of “knowingly
stor[ing] and dispos[ing] of hazardous waste, namely

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ignitable and corrosive hazardous waste, on property in
Rexburg, Idaho, without a permit” from the EPA or DEQ, a
crime under 42 U.S.C. § 6928(d)(2)(A).
The proceedings and trial focused on whether Spatig had
the requisite mental state—i.e., “knowingly”—to commit
the offense. Spatig sought to introduce evidence of his
diminished capacity, but the government filed a motion in
limine to exclude the evidence. The district court concluded
that diminished capacity evidence is admissible only for
specific-intent crimes and that § 6928(d)(2)(A) is a generalintent crime. The jury convicted Spatig of the single count
under § 6928(d)(2)(A), and the district court sentenced him
to 46 months.
Analysis
I. Section 6928(d)(2)(A) Is a General-Intent Crime
The key issue on appeal is whether § 6928(d)(2)(A)
defines a crime of general or specific intent, as that decision
dictates whether Spatig can advance a diminished-capacity
defense. We have consistently held that “diminished
capacity defenses are not available to defendants who are
accused of general intent crimes.” United States v. Szabo,
760 F.3d 997, 1001 n.2 (9th Cir. 2014) (citing United States
v. Vela, 624 F.3d 1148, 1154 (9th Cir. 2010)); United States
v. Acosta-Sierra, 690 F.3d 1111, 1124 (9th Cir. 2012);
United States v. Smith, 638 F.2d 131, 132 (9th Cir. 1981).
Reviewing de novo the district court’s decision to preclude
Spatig’s defense, United States v. Ross, 206 F.3d 896, 898–
99 (9th Cir. 2000), we affirm because § 6928(d)(2)(A)
defines a general-intent crime.
Section 6928(d)(2)(A)
criminalizes
“knowingly
treat[ing], stor[ing], or dispos[ing] of any hazardous waste

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. . . without a permit.” (Emphasis added.) “Knowingly” is
not a novel or unusual term in criminal statutes. The
Supreme Court teaches that the statutory term “knowingly”
“merely requires proof of knowledge of the facts that
constitute the offense.” Bryan v. United States, 524 U.S.
184, 193 (1998). In the same vein, we have held that the
term “knowingly” “normally signifies a requirement of
general, not specific, intent.” 1 United States v. Sneezer,
900 F.2d 177, 179 (9th Cir. 1990). That is, under
§ 6928(d)(2)(A), the prosecution is not required to prove that
Spatig intended a particular purpose or objective, as would
be required for a specific-intent crime. See Bryan, 524 U.S.
at 192 (noting that “knowingly” does not necessarily have
“any reference to a culpable state of mind”). Instead, the
statute sets out a criminal act—treatment, storage, or
disposal of hazardous waste—and provides that that act be
performed with the mental state of knowledge.
Our earlier cases paint § 6928(d)(2)(A) as a generalintent crime, albeit without use of the term. For example, in
United States v. Hoflin, we rejected Hoflin’s claim that
§ 6928(d)(2)(A) “requires proof that he knew there was no
permit for disposal.” 880 F.2d 1033, 1034 (9th Cir. 1989),
cert denied 493 U.S. 1083 (1990). Instead, we construed the
Black’s Law Dictionary provides guidance about the difference
between general and specific intent. At the time § 6928(d)(2)(A) was
passed, the dictionary observed that the “most common usage of
‘specific intent’ is to designate a special mental element which is
required above and beyond any mental state required with respect to the
actus reus of the crime.” Specific Intent, Black’s Law Dictionary (6th
ed. 1990). Currently, it interprets “specific intent” as “[t]he intent to
accomplish the precise criminal act that one is later charged with.”
Specific Intent, Black’s Law Dictionary (10th ed. 2014). These
definitions boil down to the same principle: specific intent means that
the defendant acted with a particular purpose or objective.
1

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term “knowingly” as requiring that a defendant be aware that
he is treating, storing, or disposing of something that he
knows is hazardous waste. Id. at 1039. Our construction
gives no indication that the defendant must act with a
particular purpose or objective. Additionally, in holding that
“[n]othing in the language of [§ 6928(d)(1)] requires the
Government to prove that the defendants had the knowledge
that their acts were unlawful,” we have implicitly rejected
the argument that similar RCRA statutes require proof of a
specific intent to violate the law. United States v. Fiorillo,
186 F.3d 1136, 1156 (9th Cir. 1999) (per curiam).
Comparing the text of § 6928(d)(2)(A) to the Model
Penal Code, an accepted signpost to measure and understand
intent elements, further reinforces that the statute is a
general-intent crime. See United States v. U.S. Gypsum Co.,
438 U.S. 422, 444 (1978). The Code lists four mental
states—purposely, knowingly, recklessly, and negligently—
and we have explained that, as a general matter, “‘purpose’
corresponds to the concept of specific intent, while
‘knowledge’ corresponds to general intent.” United States
v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000).
The Model Penal Code had been published nearly fifteen
years before 1976, when Congress enacted § 6928(d)(2)(A)
and explicitly invoked the “knowingly” language that
signals general intent. See Model Penal Code § 2.02 (1962).
RCRA is a classic environmental public-welfare statute
whose “overriding concern” is “the grave danger to people
and the environment from hazardous wastes.” Hoflin,
880 F.2d at 1038. Thus, § 6928(d)(2)(A) fits within a class
of general-intent crimes that protect public health, safety,
and welfare. For these crimes, a less-exacting mental state
is justified by the particularly strong countervailing interest
in protecting the public at large and the defendant’s likely

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awareness that his actions are regulated. See United States
v. Int’l Minerals & Chems. Corp., 402 U.S. 558, 565 (1971);
United States v. Freed, 401 U.S. 601, 607 (1971). Publicwelfare statutes that regulate harmful devices or hazardous
waste are particularly likely to be deemed general-intent
statutes. See United States v. Weitzenhoff, 35 F.3d 1275,
1284–85 (9th Cir. 1993) (collecting cases). For example, we
have previously construed “knowingly” in 33 U.S.C.
§ 1319(c)(2) of the Clean Water Act, which regulates
discharging pollutants into navigable waters without a
permit, as requiring that the prosecution prove only that the
defendant “knowingly engage[d] in conduct that results in a
. . . violation”—as opposed to establishing that the defendant
acted with knowledge that his actions were illegal.
Weitzenhoff, 35 F.3d at 1284.
Spatig urges that United States v. Twine, 853 F.2d 676
(9th Cir. 1988), demands a contrary result. We disagree. In
Twine, the Ninth Circuit reviewed convictions under 18
U.S.C. § 875(c)—which prohibits “transmit[ting] . . . any
communication containing any threat to kidnap any person
or any threat to injure the person of another”—and its near
twin § 876—which prohibits “knowingly . . . caus[ing] to be
delivered . . . any communications . . . containing any threat
to kidnap any person or any threat to injure the person of the
addressee or of another.” Relying on precedent interpreting
those provisions, we construed both provisions as requiring
an “intent to threaten” and held that “the showing of an intent
to threaten, required by §§ 875(c) and 876, is a showing of
specific intent.” Twine, 853 F.2d at 680.
Important here, Twine held that §§ 875(c) and 876 are
specific-intent crimes precisely because both sections
include an “intent to threaten” element. See 853 F.2d at 680.
By reading an “intent to threaten” element into the statute,

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the court considered those statutory sections akin to “classic”
specific-intent crimes, where the crime expressly mandates
that the defendant acted with a particular purpose or
objective. In contrast, the RCRA provision at issue here,
§ 6928(d)(2)(A), does not explicitly or implicitly contain
such an intent element. Rather, the statute is agnostic to the
defendant’s aim and, for that very reason, defines a generalintent crime. In any event, we have softened on the
reasoning in Twine; one year after its publication, we
explicitly declined to read an intent element into 18 U.S.C.
§ 876. United States v. Davis, 876 F.2d 71, 73 (9th Cir.
1989) (per curiam). 2
Because § 6928(d)(2)(A) describes a crime of general
intent, the district court did not err in excluding evidence of
Spatig’s diminished capacity.
II. The Cleanup Costs Constituted a “Substantial
Expenditure”
At sentencing, the district court applied a four-level
enhancement under U.S.S.G. § 2Q1.2(b)(3) because the
cleanup of the property “required a substantial expenditure”
given the magnitude of the hazardous materials in Spatig’s
yard and the cost of $498,562 to clean them up. 3 The district
The court in Davis is not alone; every other circuit to consider the
issue has rejected Twine’s reasoning. See United States v. Nicklas,
713 F.3d 435, 439 & n.3 (8th Cir. 2013) (following the rule adopted by
the First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Tenth Circuits
that the government must “prove [only that] a defendant acted knowingly
in transmitting a communication containing a threat to injure” and
recognizing the Ninth Circuit as the sole outlier).
2

The district court determined that Spatig’s guideline offense level
was 16 and his criminal history category was VI. Spatig’s sentence of
46 months is at the bottom of his guidelines range of 46 to 57 months.
3

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court did not abuse its discretion in applying this
enhancement.
Subsection 2Q1.2(b)(3) states: “If the offense resulted in
disruption of public utilities or evacuation of a community,
or if cleanup required a substantial expenditure, increase by
4 levels.” U.S.S.G. § 2Q1.2(b)(3) (emphasis added). The
subsection does not define “substantial expenditure,” nor
does its application note, which simply adds that
“[s]ubsection (b)(3) provides an enhancement where a
public disruption, evacuation or cleanup at substantial
expense has been required. Depending upon the nature of
the contamination involved, a departure of up to two levels
either upward or downward could be warranted.” Id. cmt.
n.7 (emphasis added).
Although the guidelines do not delineate when an
expenditure becomes “substantial,” our case law provides
guidance. See United States v. Merino, 190 F.3d 956 (9th
Cir. 1999).
In Merino, we noted that “substantial
expenditure” is listed in the guideline next to two severe
circumstances—public utilities disruption and evacuation—
and so must have a similarly serious impact on the
community. Id. at 958. That limitation also avoids sweeping
in every garden-variety spill; “[a]t the least,” a substantial
expenditure “should be much greater in economic impact
than the run-of-the-mill contamination.” Id. On that basis,
we held that the cleanup cost of $32,000 was not a
substantial expenditure. Id. at 958–59.
As the district court pointed out, the $498,562 at issue
here far exceeds the $32,000 in Merino—in fact, it is more
than an order of magnitude larger. Spatig responds that
$498,562 cannot be “substantial” based on the statement in
Merino that the defendant “cite[d] a number of cases to show
that environmental cleanups are commonly in the six or

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seven figure range.” Id. at 958. Simply because cleanups
spawn costs in this range does not mean that they cannot be
characterized as “substantial”; nothing in Merino purports to
establish a hard-and-fast rule about the cutoff for a
qualifying expenditure. Instead, we sensibly noted that if
$32,000 were “substantial” for the purposes of the
sentencing adjustment, it is hard to imagine a storage
violation that would not require the enhancement. See id. at
958–59.
While we do not purport to establish a bright-line rule
between substantial and insubstantial expenditures, we note
that our sister circuits have determined that expenditures of
$200,000 or less count as “substantial.” See United States v.
Chau, 293 F.3d 96, 100 (3d Cir. 2002) (holding that
$200,000 is a substantial expenditure and noting that even
$58,000 is substantial); United States v. Cunningham,
194 F.3d 1186, 1202 (11th Cir. 1999) (concluding that a
$147,716.66 expenditure was substantial, even in the face of
the “relative simplicity of the technique” for cleanup);
United States v. Bogas, 920 F.2d 363, 369 (6th Cir. 1990)
(reversing as clear error the district court’s determination
that a six-figure cleanup—roughly $100,000—was not
substantial). The $498,562 figure underestimates the total
cleanup cost because it only reflects the amount spent by the
EPA; it does not include the resources expended by the local
and regional hazmat teams in addressing the containers in
Spatig’s yard. Under these specific circumstances, the
district court did not abuse its discretion in characterizing the
costs as a “substantial expenditure.”
AFFIRMED.