UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4344

DENNY MOORE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-96-98)

Submitted: January 27, 1998

Decided: February 20, 1998

Before HALL, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Rodney S. Justice, Milton, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, Susan M. Arnold, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Denny Moore was charged in a six-count superseding
indictment of knowingly discharging and causing the discharge of
pollutants, namely untreated sewage waste containing fecal coliform,
through a point source on six separate occasions, into Pigeon Creek,
in West Virginia. See 33 U.S.C. § 1319(c)(2)(A) (1994). Counts one
and two charged that the discharges occurred on February 11 and
August 17, 1993. The remaining counts alleged that the discharges
occurred on May 25, 1994, and January 4, February 9, and June 14,
1995, respectively. A jury found Moore not guilty of counts one and
two and guilty of the remaining four counts. In April 1997, he was
sentenced to 21 months' imprisonment followed by one year of super-
vised release and ordered to pay a $200 assessment. On appeal,
Moore contends that the court erred: (1) in not granting a mistrial
based upon remarks made by the prosecution during closing argu-
ments; (2) in excluding evidence of Moore's financial condition; and
(3) in not instructing the jury to consider the lesser-included offense
of negligently discharging pollutants. Finding no error, we affirm.

In 1984, Moore and his wife purchased approximately thirty acres
of property from the West Virginia Housing Development Fund with
the intent to create a residential subdivision. The property was divided
into approximately 75 lots. Moore was required to provide and main-
tain water and sewage treatment facilities. In October 1989, Moore
was issued a National Pollutant Discharge Elimination System
("NPDES") Permit allowing for the operation of the sewage treatment
plant located within the development. The permit allowed for treated
waste water to be discharged from the plant into Pigeon Creek. The
permit also identified permissible limits for the discharge of fecal
coliform* as 200 bacterial colonies per 100 milliliters of water, aver-
age monthly and 400 colonies per 100 milliliters maximum daily.

During the initial operation of the plant, sewage would back up into
peoples' homes. The plant would overflow, and untreated sewage
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*Fecal coliform is a bacterial byproduct of human waste.

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would flow into the creek. Tom Ferguson, an inspector with the West
Virginia Department of Environmental Protection ("DEP") conducted
periodic inspections of the site from October 1992 to August 1994.
Moore was given copies of all inspection reports and met with Fergu-
son several times to discuss his compliance with the applicable laws
and the DEP's assistance program.

Over the years, Moore had a number of problems with the develop-
ment and the sewage treatment plant. Moore sought bankruptcy pro-
tection, which resulted in him conveying the unsold lots in the
development to a third party in exchange for assuming Moore's
indebtedness. Meanwhile, the West Virginia Public Service Commis-
sion ("PSC") began to look into complaints raised by property owners
about the sewage treatment plant. During its review, Moore requested
that the PSC institute receivership proceedings. In January 1994, PSC
directed its staff to institute receivership proceedings within thirty
days. However, the plant was never placed in receivership because
PSC could not locate a receiver.

Under the requirements of his NPDES permit, Moore was required
to have a certified operator manage the sewage treatment plant. In
April 1994, Donald Carey, the certified operator for the plant, quit
over concerns regarding the lack of chlorine and property owners'
complaints. By this time, Moore was financially unable to operate the
plant, and he abandoned it. Moore believed he was justified in aban-
doning the plant because of the January 1994 order from PSC regard-
ing receivership.

On May 25, 1994, Ferguson took water samples from Pigeon Creek
and from the effluent of the sewage treatment plant. The test results
showed levels of fecal coliform far above what the NPDES permit
allowed. Ferguson sent the test results to Moore. Subsequent tests per-
formed on water samples taken on January 4, February 9, and June
14, 1995 showed the sewage treatment plant to be entirely septic and
discharging untreated sewage. Although Moore was sent the test
results, he took no action.

Moore sought to enter into evidence his financial records and a
summary of the records in an attempt to show that he was financially
unable to operate the sewage treatment plant. Moore contends that

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this evidence goes to his state of mind, in that he had no option but
to abandon the sewage treatment plant. However, the court sustained
the prosecutor's objection to the evidence on relevance grounds.

A district court's decision to exclude evidence is given "substantial
deference" and is reviewed for abuse of discretion. See United States
v. Achiekwelu, 112 F.3d 747, 753 (4th Cir.), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3262 (U.S. Oct. 6, 1997) (No. 97-5598). Evidence
is relevant if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence." Fed. R.
Evid. 401. Evidence which is not relevant is not admissible. See Fed.
R. Evid. 402. With regard to state of mind, under§ 1319(c)(2)(A), the
Government need only show that the defendant knew the nature of his
acts and acted intentionally. See United States v. Hopkins, 53 F.3d
533 (2d Cir. 1995); United States v. Weitzenhoff , 35 F.3d 1275 (9th
Cir. 1994). Whether or not the defendant was in a position to finan-
cially maintain the plant is simply not relevant. It has no bearing on
whether the defendant acted intentionally. Thus, we find that the court
did not abuse its discretion in excluding Moore's financial records
and summary.

During closing arguments, the prosecution made the following
statement:

          After this man, Denny Moore, put all the money in his
          pocket, and that being selling 45 to 47 lots for $8,500 to
          $12,500, when that money hit the pocket, those obligations
          were still there, but where was he? He was out spending it
          somewhere is all we can figure out. We don't know where
          he was.

          He sure wasn't operating this plant. Black sewage in a creek
          of West Virginia. After charging these people, promising
          them that he would take care of their water and sewage, he
          walked away. And I'm going to get into it in more detail,
          but he had the audacity to sit on that witness stand and tell
          you, "I walked away. I left the plant run. It was not my
          responsibility." Just let raw sewage run into the creek. He

                    4
          admitted that on the witness stand. That was his own admis-
          sion.

          He told you he felt he had a moral obligation to the residents
          out there. You know what obligation he had? He had an
          obligation in his own pocket, put that money in his own
          pocket. That's the only obligation he was honoring.

Moore objected and moved for a mistrial. The court denied the
motion and stated that "[t]here is no evidence that he put his money
in his pocket that I recall. And the jury will not consider that argu-
ment to that effect."

This Court uses a two-pronged test to determine whether prosecu-
torial misconduct warrants reversal. Under this test, the court asks: (1)
whether the prosecutor's remarks were improper and (2) whether such
remarks prejudicially affected the jury. See United States v.
Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Under the second prong,
factors to be considered are: (1) the degree to which the remarks had
a tendency to mislead the jury and prejudice the accused; (2) whether
the remarks were isolated or extensive; (3) absent the remarks, the
strength of competent proof introduced to establish the guilt of the
accused; and (4) whether the comments were intended to divert atten-
tion to extraneous matters. See United States v. Morsley, 64 F.3d 907,
913 (4th Cir. 1995). In this case, even assuming (without deciding)
that the prosecutor's remarks were improper, these remarks did not
prejudicially affect the jury. The isolated remarks were part of a four-
day trial. Furthermore, the court instructed the jury not to consider the
remarks as evidence. Moreover, there was substantial evidence estab-
lishing Moore's guilt. Accordingly, we find that the court did not err
in denying Moore's motion for a mistrial.

Finally, Moore contends that the court erred in not instructing the
jury on the offense of negligently discharging pollutants. See 33
U.S.C. § 1319(c)(1)(A). A defendant is not entitled to a lesser
included instruction "as a matter of course." See United States v.
Walker, 75 F.3d 178, 179 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3821 (U.S. June 10, 1996) (No. 95-8957). The defendant
must show that proof of the differentiating element is "sufficiently in
dispute that the jury could rationally find the defendant guilty of the

                     5
lesser offense but not guilty of the greater offense." Id. at 180. The
evidence clearly showed that Moore knew that he was responsible for
the sewage treatment plant, that he abandoned the plant and that he
was notified that the plant was discharging raw sewage. There was no
evidence presented tending to show that Moore may have been negli-
gent. Moore's own testimony showed that he stopped maintaining the
plant because of finances. There was no indication that he was not
aware that the plant was discharging raw sewage. Thus, a finding that
Moore was negligent was "not fairly inferable from the evidence pres-
ented." United States v. Wright, #6D6D 6D# F.3d ___, 1997 WL 780302 (4th
Cir. Dec. 19, 1997) (No. 96-4559).

For the foregoing reasons, Moore's convictions and sentences are
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid in the decisional process.

AFFIRMED

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