                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0066p.06

                 UNITED STATES COURT OF APPEALS

                                  FOR THE SIXTH CIRCUIT
                                    _________________

                                            X
                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                             -
                                             -
                                             -
                                                                 Nos. 07-5573/5574
          v.
                                             ,
                                              >
                                             -
                                             -
 JAMES MICHAEL HOLDEN (07-5573) and

                    Defendants-Appellants. -
 JAMES LARRY HOLDEN (07-5574),
                                             -
                                            N

                        Appeal from the United States District Court
                     for the Middle District of Tennessee at Columbia.
                    No. 05-00011—William J. Haynes, Jr., District Judge.
                                    Argued: January 22, 2009
                            Decided and Filed: February 24, 2009
                                                                                            *
            Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.

                                      _________________

                                            COUNSEL
ARGUED: Jude T. Lenahan, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, Dan R. Alexander, LAW OFFICE, Nashville, Tennessee, for Appellants.
Heather G. Childs, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: Jude T. Lenahan, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, Dan R. Alexander, LAW OFFICE,
Nashville, Tennessee, for Appellants. Heather G. Childs, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee.




        *
           The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
Nos. 07-5573/5574               United States v. Holden, et al.                    Page 2


                                 _________________

                                       OPINION
                                 _________________

       BOYCE F. MARTIN, JR., Circuit Judge. This appeal involves convictions
arising out of an investigation into false reporting of pollutant levels in wastewater
discharged by a water treatment facility in Mount Pleasant, Tennessee. Mike Holden,
the operator of the plant, was convicted of knowingly falsifying and concealing material
facts in a matter within the jurisdiction of the Environmental Protection Agency (“EPA”)
in violation of 18 U.S.C. §§ 2, 1001(a), and of falsifying documents with the intent to
impede an investigation within the jurisdiction of the EPA in violation of 18 U.S.C. §§ 2,
1519. His father, Larry Holden, the Superintendent of Public Works for Mount Pleasant,
was convicted of knowingly falsifying and concealing material facts in a matter within
the jurisdiction of the EPA.

       The Holdens challenge their convictions on four grounds. First, they argue that
the district court abused its discretion by excluding evidence that Marty Roddy had been
treated for marijuana dependency in 1992. Second, they argue that the district court
committed plain error by admitting into evidence a negative evaluation of the plant from
before the charged period. Third, they argue that the district court abused its discretion
by refusing to admit statements by Mike Holden under the “rule of completeness.”
Fourth, they argue that the evidence presented at trial was insufficient to find James
Larry Holden guilty beyond a reasonable doubt.

       We find that no reversible error occurred at trial, and we thus AFFIRM.

                                            I.

       The Clean Water Act, 33 U.S.C. § 1251 et seq., makes it illegal to discharge a
pollutant into the navigable waters of the United States except as authorized by the EPA
or the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1362(12)(A).
As part of its National Pollutant Discharge Elimination System, 33 U.S.C. § 1342, the
EPA has authorized the Tennessee Department of Environment and Conservation
Nos. 07-5573/5574                United States v. Holden, et al.                      Page 3


(“TDEC”) to issue discharge permits under the Act. TDEC issued a permit to the
wastewater treatment facility in Mount Pleasant, Tennessee, that allowed the plant to
discharge treated wastewater into Sugar Fork Creek if the plant complied with certain
conditions. This permit imposed strict daily limits on the amount of pollutants that the
facility could discharge, and required the plant to regularly test the pollutant levels of its
outflow, keep detailed records of its test results, and make monthly compliance reports
to TDEC.

        Mike Holden was the longtime operator of the Mount Pleasant facility, and was
certified as a Grade IV wastewater treatment operator, the highest certification level. As
operator of the facility, Mike Holden was responsible for testing pollutant levels,
keeping records, reporting to TDEC, and certifying the accuracy of these reports. Marty
Roddy assisted Mike Holden in running the facility. Roddy was not certified as a
wastewater treatment operator, but Mike Holden informally trained him how to collect
the data and samples necessary to meet the reporting requirements of the permit
program, and eventually put him in charge of sample collection and testing. Mike
Holden used the results Roddy gave him to make compliance reports to TDEC, and he
certified the reports to be true. During all relevant times, Larry Holden was the
Superintendent of Public Works of Mount Pleasant.                The plant fell under his
administrative supervision, and he visited the plant on a regular basis to monitor its
operation.

        The Mount Pleasant facility had a history of compliance problems, and
eventually the test results reported by the plant aroused suspicion with TDEC. The
reported pollutant levels of the plant’s outflow did not vary with its inflow (as one might
expect); neither did the amount of chlorine the plant used in treating its wastewater. This
prompted TDEC and the EPA to perform a joint audit of the plant in August 2003.
Inspectors found the plant’s testing lab in disrepair, littered with broken equipment, and
showing little evidence of use. Further, the lab’s testing records were incomplete from
January 2001 through June 2003, and they lacked the data necessary to perform required
tests and generate the results submitted in the monthly reports. In an effort to determine
Nos. 07-5573/5574                       United States v. Holden, et al.                             Page 4


whether the plant was violating the terms of its permit, TDEC began independent spot-
testing of the fecal coliform1 levels of water discharged by the plant. These tests
revealed massive disparities between the plant’s reports and the actual levels of fecal
coliform in the plant’s outflow. In four spot tests conducted in late 2003, the plant
reported levels of fecal coliform of 23, 27, 28, and 27 units per 100 milliliters of water;
however, TDEC tests revealed the actual levels of fecal coliform in the plant’s outflow
to be 20,000, 600,000, 1,700, and 6,000 units each. The plant’s permit allowed a
discharge of no more than 1000 units per day.

         Based upon these findings, the Tennessee Bureau of Investigation obtained a
search warrant and searched the plant on April 8, 2004. This search revealed that the
testing records previously found to be blank had been filled in. During this search, the
Holdens arrived at the plant. Larry Holden confronted investigators and told them he
would be taking the matter to the governor. Mike Holden told investigators that Marty
Roddy was responsible for testing and that he had no knowledge of any wrongdoing.
He admitted that he knew he was not adequately supervising Roddy, that the numbers
being reported were “crazy,” that he could not explain why the records were blank, and
that “if it were up to him, he would report the correct numbers.” Later, Marty Roddy told
investigators that he had filled in the records at the instruction of Mike and Larry Holden
shortly after the audit. At this time, the plant was processing between 3 and 4 million
gallons of waste water a day—far in excess of its capacity of 1.2 million gallons. As a
result, large amounts of untreated wastewater were being released into Sugar Fork
Creek.

         On July 17, 2005, Mike Holden and Marty Roddy were indicted for falsely
reporting test results in violation of 18 U.S.C. 1001(a). A superceding indictment was
issued on September 7, 2005. It added Larry Holden as a defendant and an additional
charge, falsifying documents with the intent to impede an EPA investigation in violation
of 18 U.S.C. §§ 2 and 1519. Marty Roddy pleaded guilty to count one and cooperated
with the government. He was sentenced to six months home detention.

         1
             Fecal coliform is a kind of bacteria that is highly concentrated in untreated wastewater.
Nos. 07-5573/5574               United States v. Holden, et al.                    Page 5


        Mike Holden and Larry Holden went to trial. Mike Holden testified that he did
not know that Roddy was not collecting data or testing pollutant levels, and that he
blindly signed off on the results Roddy gave him. Larry Holden admitted that he knew
the plant was operating at above capacity, but denied any involvement in the filing of
reports. Roddy testified that from 2001 to 2004, the plant failed to test discharged water
for pollutants about 80% of the time, and that when testing was done, Mike Holden
provided him with water collected from a different creek nearby, or instructed him to
adjust the numbers on the monthly reports to fall within permitted levels. Based on this
testimony, the United States argued that either the Holdens had actual knowledge of the
false reporting or that they had been deliberately indifferent to it.

        On September 25, 2006, Mike Holden was convicted of both false reporting and
falsifying documents; Larry Holden was convicted only of false reporting. Mike Holden
was sentenced to 32 months in prison, and Larry Holden was sentenced to 24 months.
They now appeal their convictions.

                                            II.

   1.    The Admissibility of Evidence of Marty Roddy’s Treatment for Marijuana
                                     Dependency
        At trial, the Holdens sought to impeach Marty Roddy with evidence that he had
been treated for marijuana dependency in 1992. Roddy’s treatment record indicated both
that his heavy marijuana use had caused him short-term memory loss and that he had not
been truthful about the extent of his use. The Holdens argued that this evidence should
be admitted to impeach Roddy’s character for truthfulness and his memory. The district
court ruled that the defense could only introduce evidence of drug use as it related to
Roddy’s ability to perceive the events that were the subject of his testimony and testify
about them at trial. It thus excluded evidence of Roddy’s treatment because it occurred
nine years prior to the charged conduct. In doing so, the court explained that the
treatment was “too remote in time” to be probative and “lack[ed] a causal relationship”
with Roddy’s testimony at trial.
Nos. 07-5573/5574                United States v. Holden, et al.                      Page 6


        The Holdens contend that the district court abused its discretion by refusing to
allow Roddy’s prior treatment into evidence under Fed. R. Evid. 608(b) or Fed. R. Evid.
612, and that in doing so it violated the Confrontation Clause of the Sixth Amendment.
We review a district court’s evidentiary decisions for abuse of discretion. United States
v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005). It is an abuse of discretion for a district
court to commit legal error or find clearly erroneous facts. Id.

                                     A.   Rule 608(b)

        FRE 608(b)(1) provides that a witness’s credibility may be attacked on cross-
examination through questioning on specific instances of conduct relevant to credibility.
As a general matter, prior drug use is not relevant to a witness’s character for
truthfulness. United States v. March, 114 F. App’x 671, 674 (6th Cir. 2004) (“A
witness’s use of drugs may not be used to attack his or her general credibility, but only
his or her ability to perceive the underlying events and testify lucidly at trial.”) (quoting
Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987)); United States v. Sellers,
906 F.2d 597, 602 (11th Cir. 1990). Consistent with this, the district court held that the
defense could ask questions about Roddy’s ability to perceive the events that were the
subject of his testimony—the nature of testing performed at the plant from 2001 to
2004. This was not an abuse of discretion. The evidence of drug treatment in 1992 was
offered only to impeach Roddy’s general credibility, and it occurred nine years prior to
the start of the charged period. That Roddy may have misrepresented his drug use or
experienced memory loss at that time has little if any relevance to his ability to testify
truthfully about an unrelated subject more than a decade later. Contrary to the Holdens’
suggestion, this evidence does not establish either a pattern of dishonesty or permanently
impaired memory. Rather it is isolated evidence that is remote in time and laden with
potential unfair prejudice. Thus, it was reasonable for the district court to exclude it.
Nos. 07-5573/5574              United States v. Holden, et al.                    Page 7


                                     B.   Rule 612

       Federal Rule of Evidence 612 allows a witness to refresh his recollection as to
the contents of a document if he is unable to recall them while on the stand. Larry
Holden argues that Roddy’s record of treatment should have been admitted under this
provision. This is incorrect. Rule 612 is not an independent source of admissibility, but
rather a means to refresh a witness’s memory on an admissible subject of testimony:
“Rule 612 does not apply where a witness refers to documents for purposes other than
refreshing recollection. In such a case, Rule 612 is inapplicable and the question
becomes whether the writing is admissible under laws regulating the admissibility of
documentary evidence.” 28 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 6183. Here, the district court ruled that the document was not relevant to Roddy’s
testimony about the running of the plant between 2001 and 2004, so questions about it
could not be asked in the first place and Larry Holden could not attempt to refresh
Roddy’s memory of the subject while on the stand.

                              C.    Confrontation Clause

       The Confrontation Clause of the Sixth Amendment guarantees a defendant an
opportunity to impeach the credibility of a witness against him because impeachment
is fundamental to effective cross-examination. Davis v. Alaska, 415 U.S. 308, 315-18
(1974). As the Supreme Court explained in Delaware v. Van Arsdall, 475 U.S. 673
(1986), however, this does not mean that the defendant is free to impeach a witness “in
whatever way, [or] to whatever extent the defense might wish.” Id. at 679; see also
Boggs v. Collins, 226 F.3d 728, 736-37 (6th Cir. 2000). Rather, trial judges retain “wide
latitude” to impose “reasonable limits on cross-examination.” Van Ardsdall, 475 U.S.
at 679. The key issue is whether the jury had enough information to assess the defense’s
theory of the case despite the limits placed on cross-examination. Boggs, 226 F.3d at
739.

       Here, the proposed impeachment related to Roddy’s prior treatment for marijuana
dependency. The court permitted the defense to impeach Roddy extensively, including
through the introduction of evidence that Roddy used drugs during the time period that
Nos. 07-5573/5574                United States v. Holden, et al.                      Page 8


was the subject of his testimony at trial. The district court’s refusal to allow evidence
of drug treatment nearly a decade beforehand for general impeachment purposes was
reasonable in light of the evidence’s marginal evidentiary value and danger of unfair
prejudice. This narrow limitation did not restrict the jury’s ability to assess the defense’s
theory of the case to a degree sufficient to raise Confrontation Clause concerns.

       2.   Admission of Evidence Regarding the 1995 Evaluation of the Plant

        The district court allowed testimony by Karen Harrison, a civil engineer, on a
number of subjects, including an evaluation of the plant she conducted in 1995. Mike
Holden operated the plant during this time. In evaluating the plant, Harrison discovered
incomplete and implausible data very similar to that found by investigators in 2003,
which led to the charges against the Holdens. Harrison sent a letter documenting these
irregularities to city officials, including Larry Holden. Here, Mike Holden argues that
this was propensity evidence that should have been excluded under Federal Rule of
Evidence 404(b). Because this issue was not preserved for appeal, we review for plain
error. Johnson v. United States, 520 U.S. 461, 467 (1997).

        Rule 404(b) prohibits the use of extrinsic evidence of a person’s “other crimes,
wrongs, or acts” to show that a person acted in conformity with them. Intrinsic evidence
does not fall within the rule, and evidence offered for a non-propensity purpose is
admissible under it. United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Here,
the evidence at issue is admissible under Rule 404(b). The Holdens’ defense theory was
that Marty Roddy fabricated test results without their knowledge. However, Marty
Roddy did not have a substantial role in testing in 1995. Thus, the fact that the plant was
suffering the same sort of reporting inaccuracies in 1995 and that those in charge of the
plant were informed of this tends to rebut the Holdens’ claims and corroborate Roddy’s
version of events. This is not evidence that encourages the jury to infer future
misconduct based upon past misconduct, but circumstantial evidence that one account
of the charged conduct is more credible than another. Thus, this evidence is not barred
by Rule 404(b). And, contrary to Mike Holden’s suggestion, this evidence was not
“unfairly prejudicial.”    Evidence that undermines one’s defense by virtue of its
Nos. 07-5573/5574                       United States v. Holden, et al.                               Page 9


“legitimate probative force” does not unfairly prejudice the defendant. United States v.
Schrock, 855 F.2d 327, 335 (6th Cir. 1988).

         Because this evidence was admissible under Rule 404(b), the district court did
not commit plain error in admitting it.2

                                   3.    The Rule of Completeness

         The district court held that certain admissions Mike Holden made to Agent
Stegall were admissible under Federal Rule of Evidence 801(d)(2), but sustained the
government’s hearsay objections to other statements from the same conversation when
Holden sought to bring them out during cross-examination. Holden argues that the judge
erred in holding that the defense waived its ability to invoke the “rule of completeness,”
and that these statements should have been admitted under that rule. A district court’s
evidentiary decisions are reviewed for abuse of discretion. McDaniel, 398 F.3d at 544.
It is an abuse of discretion for a district court to commit legal error or find clearly
erroneous facts. Id.

         The “rule of completeness” allows a party to correct a misleading impression
created by the introduction of part of a writing or conversation by introducing additional
parts of it necessary to put the admitted portions in proper context. The common law
version of the rule was codified for written statements in Fed. R. Evid. 106,3 and has
since been extended to oral statements through interpretation of Fed. R. Evid. 611(a).4
Courts treat the two as equivalent. United States v. Shaver, 89 F. App’x 529, 532 (6th
Cir. 2004). Because admitting the curative evidence later in the trial may not be


         2
           The record does not disclose whether the district court admitted the evidence under Rule 404(b)
or as intrinsic evidence to which the rule does not apply. However, if the district court’s Rule 404(b)
analysis was inadequate, any such error did not affect Holden’s substantial rights or the fairness of his trial
because the evidence at issue was admissible under Rule 404(b).
         3
          “When a writing or recorded statement or part thereof is introduced by a party, an adverse party
may require him at that time to introduce any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it.” Fed. R. Evid. 106.
         4
           “The court shall exercise reasonable control over the mode and order of interrogating witnesses
and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Fed. R. Evid. 611(a).
Nos. 07-5573/5574              United States v. Holden, et al.                  Page 10


adequate to remedy the effect of the misleading impression, Rule 106 authorizes a party
to interrupt the proceedings to have the curative evidence introduced immediately.
However, “[t]he rule does not in any way circumscribe the right of the adversary to
develop the matter on cross-examination or as part of his own case.” Fed. R. Evid. 106
advisory committee’s note.

       Here, the judge held that Mike Holden waived his rights under the rule of
completeness by failing to invoke the rule when the purportedly misleading evidence
was introduced. Whether a party waives their right of completeness under these
circumstances is an open question in this circuit, but we now reject the waiver rule
adopted by the district court. As the advisory committee’s note to Rule 106 makes clear,
the rule does not restrict admission of completeness evidence to the time the misleading
evidence is introduced: “The rule does not in any way circumscribe the right of the
adversary to develop the matter on cross-examination or as part of his own case.”
Congress’s decision to put the timing of the completeness evidence in the hands of the
party offering it weighs against imposing an additional requirement that parties invoke
the rule at the time evidence is introduced. Further, the purpose of the rule of
completeness is to ensure fairness in the presentation of evidence at trial; in delaying
completion or denying it altogether a strict waiver rule frustrates this purpose without
serving any corresponding value. If a party fails to invoke the rule at the time the
misleading evidence is introduced, the chance to do so is lost independent of the effect
of a waiver rule, and allowing parties to invoke the rule of completeness after the
misleading evidence is introduced does not limit the district judge’s discretion to
determine whether and when the curative evidence should be admitted. See 21A
WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 5076 (“[T]o put it in the
language of the Rule, when the invocation comes late, the question is whether ‘fairness’
requires completion prior to the opponent’s next opportunity to complete as part of her
own case.”). Thus, we hold that the district court erred by ruling that Mike Holden
waived his rights under the rule of completeness by waiting to introduce the evidence.
See Phoenix Assoc. II v. Stone, 60 F.3d 95, 103 (2d Cir. 1995); see also 21A WRIGHT &
MILLER, FEDERAL PRACTICE & PROCEDURE § 5076 (endorsing Phoenix Assoc. II, stating
Nos. 07-5573/5574                    United States v. Holden, et al.                            Page 11


that “the better-reasoned cases hold that the opponent need not invoke Rule 106 at the
time the truncated evidence is introduced”).

         That raises the question of whether this error was harmless. Because the
statements Holden seeks to introduce are inadmissible hearsay, we hold that it was. The
inculpatory statements against Holden were admissible under Fed. R. Evid. 801(d)(2),
the hearsay exclusion for admissions of a party opponent. However, Mike Holden was
unable to avail himself of this exception because he sought to introduce his own
statement. Thus, his statements are inadmissible hearsay and were properly excluded.
See Fed. R. Evid. 801(d)(2); United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982)
(“Rule 106 is intended to eliminate the misleading impression created by taking a
statement out of context . . . it is not designed to make something admissible that should
be excluded.”).5

         Finally, contrary to Mike Holden’s suggestion, this ruling did not compel him to
take the stand. The mere fact that evidence admitted under Rule 801(d)(2) motivates a
defendant to take the stand does not mean that he was compelled to do so in a manner
that implicates his privilege against self-incrimination. Shaver, 89 F. App’x at 533;
United States v. Turner, 995 F.2d 1357, 1363 (6th Cir. 1993) (“Turner was not
compelled to testify nor was he forced to explain those statements. Rather, he could
have refused to testify and permitted the jury to decide if the firemen’s accounts of his
previous statements were credible.”).




         5
          Even if the rule was that hearsay evidence could come in under the rule of completeness, Mike
Holden’s statements here were not necessary to correct a misleading impression created by his admissions
to Agent Stegall because they are equivocal as to whether he was aware of any false reporting prior to the
search. Contrary to Holden’s assertion, his statements are consistent with the theory that Roddy, not he,
was in charge of the numbers. And in any case, Mike Holden was able to adequately develop his lack of
knowledge defense during his case in chief.
Nos. 07-5573/5574                United States v. Holden, et al.                   Page 12


                 4.   Sufficiency of the Evidence Against Larry Holden

         Finally, Larry Holden argues that the evidence presented at trial was insufficient
to support a verdict against him. The standard of review for sufficiency of the evidence
is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime. United States
v. Jones, 102 F.3d 804, 807 (6th Cir. 1996). There are five elements of the crime of
falsifying and concealing facts in a matter within the jurisdiction of the EPA: (1) the
defendant made a factual representation; (2) the representation is false or fraudulent;
(3) the representation is material; (4) the defendant made the representation knowingly
and willfully; and (5) the representation pertained to an activity within the jurisdiction
of a federal agency. United States v. Steele, 933 F.2d 1313, 1318-19 (6th Cir. 1991) (en
banc).

         The representations at issue here were the monthly reports to TDEC pursuant to
their obligations under the Clean Water Act, an activity within the jurisdiction of the
EPA. The disparities between the TDEC fecal coliform tests and the amounts reported,
as well as statements by various witnesses support an inference that these representations
were false or fraudulent. And, because the tested amounts were greater than allowed by
the permit but the reported amounts were not, these representations were material. The
reporting requirements are a primary means of enforcing the Clean Water Act, and false
reporting frustrates this purpose.

         The evidence presented was also sufficient for a rational factfinder to find that
Larry Holden willfully made these representations. He supervised the activities at the
plant and there is evidence that he was not only on notice to reporting irregularities, but
that he was actively involved in the false reporting. Marty Roddy testified that Larry
Holden had told him to “make the numbers look good,” and had instructed him to fill in
the empty bench sheets used to make the reports. He also testified that Larry Holden
threatened him and told him not to tell authorities about what he had done. Former
employee Paul Gutherie testified that he had heard Larry and Mike Holden discussing
“bogus numbers,” and that on a number of occasions he had heard Roddy tell Mike
Nos. 07-5573/5574                United States v. Holden, et al.                Page 13


Holden, “I’m not going to, you know, go to jail for you or your daddy. If you want to
go to jail for your daddy you can.” Larry Holden also informed investigators that he was
aware the plant was operating at well above capacity and that this was causing untreated
sewage to flow into the creek.

                                            III.

       For the foregoing reasons, we AFFIRM the convictions of Mike and Larry
Holden.
