Thursday, September 14, 2017

US v. Spatig, No. 15-30322 (9-13-17)(McKeown w/Murphy & Nguyen). "Good fences make good neighbors" is how the 9th starts this Opinion, but then noting that fences don't help much when someone is storing hazardous and combustible materials where he shouldn't be.  Here, the defendant retired from his job refinishing cement floors, but seemingly didn't stop work, or storing his leftover and discounted paints, finishes, and other materials at his home.  Complaints from neighbors led to a warning by city officials --don't store.  However, the defendant continued storing. When the county officials were called again, because of the condition of the property, they discovered thousands of cans of paint and other materials.  The site became a toxic cleanup: EPA officials had to don hazmat suits to remove all the materials.

In affirming the conviction for a violation of the Resource Conservation and Recovery Act, 42 USC 6928(d)(2)(A), the 9th found no error in the district court precluding evidence of defendant's diminished capacity.  (The defense was a mental or knowledge one). This was, concluded the 9th, not a specific intent offense. The 9th notes that the statute requires "knowingly," which is usually taken as general intent. The defendant has to know he is storing something, but the offense does not require a specific aim, particular purpose or achievable objective. Past cases dealing with this statute assumed general intent.  This decision also aligns with other subsections and with the model penal code.

The 9th affirmed the sentence as well against a guidelines challenge. The 9th found no error in an enhancing adjustment for substantial cleanup costs.  The amount was close to $500,000.

The opinion is an interesting read, with the opinion having some sly touches (past cases "paint" the statute as a general intent crime, and the aforementioned "fences"). Recently, in McChesney, the same author started with "he said/she said" in the first sentence.

The decision is here:


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