                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0805n.06
                                                                                           FILED
                                           No. 09-1863
                                                                                      Dec 02, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF MICHIGAN
                                                         )
CHARLES D. LONG,                                         )                 OPINION
                                                         )
       Defendant-Appellant.                              )




       BEFORE:          SILER, McKEAGUE and STRANCH, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Charles D. Long was found guilty in a jury trial

of unlawfully discharging industrial wastewater into the Detroit sewer system and of conspiring to

commit this violation.    He was sentenced to two twenty-four-month prison terms, to run

concurrently. In this appeal, defendant challenges his conviction on eight grounds. We find no error

and therefore affirm.

                                                 I

       During the period 1997 to 2005, defendant Charles Long worked at an industrial waste

treatment facility in Dearborn, near Detroit. The facility was owned and operated by Rich Coast,

Inc., until 2002, when it was purchased by Comprehensive Environmental Solutions, Inc. (“CESI”).

Long held various positions during his tenure, serving as Plant Manager until August 2001 and as

Oil Reclamation and Recovery Manager thereafter.
No. 09-1863
United States v. Charles Long

       Industrial waste “pretreatment” operations at the CESI facility in Dearborn were subject to

regulations promulgated by the Environmental Protection Agency (“EPA”) under the Clean Water

Act, 33 U.S.C. §§ 1251-1387. The facility’s operations were also required to meet EPA-approved

permitting requirements imposed by the Detroit Water and Sewerage Department. These regulations

and requirements generally prohibited “bypass,” or the diversion of wastewater around any portion

of the approved pretreatment program for discharge directly into the municipal sewer system. The

Clean Water Act prescribes criminal sanctions for knowing violations of such regulations and

requirements. 33 U.S.C. § 1319(c)(2).

       In January 2007, the grand jury in the Eastern District of Michigan returned an indictment

charging defendant Long, among other CESI employees, with knowingly violating EPA-approved

pretreatment requirements from January to June 2002 (Count 2); and with conspiring to violate the

law in relation to the unlawful discharges from 2001 to July 2002 (Count 1). A jury trial was

conducted in October 2008. Evidence admitted at trial showed that defendant Long and others had

regularly participated in unlawful discharges of untreated waste. The jury found Long guilty of both

charges against him. On April 7, 2009, the district court sentenced Long to two concurrent prison

terms of twenty-four months.1 On appeal, Long challenges his conviction on several grounds.




       1
           U.S. Bureau of Prisons records show that Long was released from prison on April 5, 2011.

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No. 09-1863
United States v. Charles Long

                                                    II

        A. Jury Instructions

        In his first claim of error, Long challenges the adequacy of the instructions given to the jury

on the conspiracy charge. Long concedes that because he raised no such objection below, the claim

is reviewed only for plain error. We may grant relief for “plain error” only if Long shows (1) error

(2) that was obvious or clear, (3) that affected his substantial rights, and (4) that affected the fairness,

integrity, or public reputation of the trial. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)

(en banc). Such relief is reserved for “exceptional circumstances,” that is, where the error was so

plain that the trial court would be deemed derelict in having countenanced it. Id.

        Long correctly contends that a jury cannot find a defendant guilty without having

unanimously found every element of the charged offense proven beyond a reasonable doubt. Davis

v. Mitchell, 318 F.3d 682, 688 (6th Cir. 2003). With this requirement in mind, Long focuses on the

following instruction on the conspiracy charge:

                Now with regard to the first element, a criminal agreement. The Government
        must prove that two or more persons conspired or agreed to cooperate with each
        other to commit one or more of the following crimes:

                (A), knowingly violating U.S. EPA approved pretreatment requirements or

               (B), knowingly making false statements in documents and rendering
        inaccurate monitoring devices and methods or

                (C), knowing and willfully making false statements to local and Federal
        officials responsible for enforcing Federal environmental laws and to conceal
        material facts or

                (D), knowingly obstructing justice.


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No. 09-1863
United States v. Charles Long

R. 147, Trial Tr. vol. 11, pp. 15-16. Because this instruction identifies each of four different crimes,

in the disjunctive, as the agreed-to object of the charged conspiracy, Long contends it permitted the

jurors to find him guilty of a conspiracy without necessarily finding, unanimously, that he conspired

to commit any one of the identified offenses.

        Long’s argument is based on one sentence of the instructions, read in isolation. However,

when jury instructions are claimed to be erroneous, we review the instructions as a whole. “A

judgment may be reversed based upon an improper jury instruction only if the instructions, viewed

as a whole, were confusing, misleading, or prejudicial.” United States v. Williams, 612 F.3d 500,

506 (6th Cir. 2010) (quoting United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)). When the

subject instruction is read in context, its potential to mislead is minimized. In fact, the concern

identified by Long is specifically addressed in each of the following instructions:

                The Indictment accuses the Defendants of conspiring to commit several
        Federal crimes. The Government does not have to prove that the Defendants agreed
        to commit all these crimes, but the Government must prove an agreement to commit
        at least one of them for you to return a guilty verdict on the Conspiracy charge.

                If you are convinced that there was a criminal agreement, then you must
        decide whether the Government has proved that the Defendants knowingly and
        voluntarily joined that agreement. You must consider each Defendant separately in
        this regard.

                                                ****

                The Indictment charges a conspiracy to commit four separate crimes or
        offenses. It is not necessary for the Government to prove a conspiracy to commit all
        of those offenses. It would be sufficient if the Government proves beyond a
        reasonable doubt that a conspiracy to commit one - - if the Government proves
        beyond a reasonable doubt a conspiracy to commit one of those offenses; but in that
        event, in order to return a verdict of guilty, you must unanimously agree upon which


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No. 09-1863
United States v. Charles Long

       of the four offenses was the subject of the conspiracy and if you cannot agree in that
       manner, you must find the Defendant not guilty.

R. 147, Trial Tr. vol. 11, pp. 17, 19 (emphasis added).

       Reading the instructions as a whole, we find no error—much less plain error.

       B. Sufficiency of the Evidence

       1. Conspiracy

       Long also contends the government failed to prove that he joined an agreement to commit

any of the four conspiracy offenses charged in Count 1of the indictment. He acknowledges that the

government’s proofs may have established several of the elements of the charged conspiracies, but

maintains the evidence failed to show the existence of a specific agreement to violate the law and

that he knowingly joined such an agreement.

       Long’s sufficiency of the evidence challenge poses a heavy burden. The jury’s verdict can

be set aside only if we find, after viewing the record as a whole in the light most favorable to the

prosecution, that no rational trier of fact could have found the essential elements of the offense

proven beyond a reasonable doubt. United States v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009).

Circumstantial evidence alone can sustain a guilty verdict, even though it fails to remove every

reasonable hypothesis except that of guilt. Id. In evaluating the evidence, “we do not weigh the

evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury.”

United States v. Conatser, 514 F.3d 508, 518 (6th Cir. 2008) (quoting United States v. Wright, 16

F.3d 1429, 1440 (6th Cir. 1994)).




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No. 09-1863
United States v. Charles Long

       To prove a conspiracy, the government had to establish: “(1) the existence of an agreement

to violate the law; (2) knowledge and intent to join the conspiracy; and (3) an overt act constituting

actual participation in the conspiracy.” United State v. Blackwell, 459 F.3d 739, 760 (6th Cir. 2006).

A conspiracy can be established without proof of a formal agreement; a tacit or mutual understanding

among the parties will suffice. Conatser, 514 F.3d at 518. And just as the existence of a conspiracy

“may be inferred from circumstantial evidence, a defendant’s knowledge of and participation in a

conspiracy also may be inferred from his conduct and established by circumstantial evidence.” Id.

“Once a conspiracy is established beyond a reasonable doubt, a particular defendant’s connection

to the conspiracy ‘need only be slight.’” Id. (citation omitted).

       Long cites two Sixth Circuit decisions as illustrative of the shortcomings in the government’s

proofs against him. The first is United States v. Sliwo, 620 F.3d 630 (6th Cir. 2010), where a

conspiracy conviction was overturned for lack of sufficient evidence. Although Sliwo was clearly

shown to have participated in a scheme with his co-defendants by arranging for a transport van and

serving as lookout, evidence of his knowledge of the scheme’s drug-transportation purpose was

lacking. The court emphasized that “charges of conspiracy are not to be made out by piling inference

upon inference.” Id. at 635, 638 (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711

(1943)). Similarly, the second decision, United States v. Coppin, 1 F. App’x 283 (6th Cir. 2001),

stands for the proposition that evidence of presence and association with co-conspirators alone does

not establish that a defendant had knowledge of and joined in the purpose of the conspiracy.

       Here, in contrast with Sliwo and Coppin, there is substantial evidence not only of Long’s

active and knowing participation (along with others) in the unlawful discharges of untreated (and

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No. 09-1863
United States v. Charles Long

less-than-fully treated) waste, but also of his continuing participation after he had conversations with

other co-defendant CESI employees about the unlawfulness of their conduct. Although the record

is devoid of any formal agreement to discharge waste in violation of permitting requirements, there

is ample evidence in the record from which the jury could reasonably conclude that there was a tacit

or mutual understanding among the co-conspirators and that Long acted in concert with others to

accomplish the scheme’s unlawful purpose.

        2. Clean Water Act Violation

        Long also challenges the sufficiency of the evidence to support the jury’s verdict on the

Count 2 charge that he knowingly violated the Clean Water Act pretreatment requirements during

the period January 25, 2002 to June 2002. The jury was correctly instructed that to find defendant

guilty of this offense, the jury had to be convinced that the government proved the following

elements beyond a reasonable doubt:

                (A), On or about the dates charged in the Indictment, the Defendant violated
        the requirement of a pretreatment program, that is, the bypass prohibition of the
        pretreatment program and

                 (B), the pretreatment program was a program administered by a POTW
        (“publicly owned treatment works” ) that has been approved by the U.S. EPA or by
        a state, and

                (C), the Defendant acted knowingly.

R. 147, Trial Tr. vol. 11, p. 20. Long contends the government’s proofs failed to establish that he

participated in unlawful discharges during the charged period and that he acted “knowingly.”

        It is true that some of the evidence of Long’s participation in the unlawful discharges failed

to identify a specific time frame. However, Long’s argument ignores the testimony of Special Agent

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No. 09-1863
United States v. Charles Long

Carol Paszkiewicz. Paszkiewicz testified that Long, during a December 4, 2006 interview, admitted

participating in bypass discharges from three different sources in the CESI facilities during the

charged period. R. 145, Trial Tr. vol. 9, pp. 95-97. Taken as a whole and viewed in the light most

favorable to the prosecution, the proofs are clearly sufficient to support the jury’s finding that Long

participated in unlawful discharges on or about January 25, 2002 until about June 2002.

       Also unavailing is Long’s argument that the government did not prove that he acted

“knowingly.” Long points to evidence that he was concerned about and reticent to engage in

prohibited discharges. This demonstrates, he contends, that he did not intend to violate the law.

Yet, the fact that Long appreciated the wrongfulness of his conduct and nonetheless persisted in

it—however reluctantly—substantiates the jury’s conclusion that he acted “knowingly,” and not

because of mistake or accident or some other innocent reason.

       C. Rule 404(b) Evidence

       Long contends the district court abused its discretion by admitting Rule 404(b) “other acts”

evidence without a proper purpose and that he was unfairly prejudiced. Rule 404(b) of the Federal

Rules of Evidence provides in pertinent part:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
       a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

Specifically, Long argues that the court improperly admitted evidence of prohibited discharges at the

CESI facility prior to the time period charged in the indictment. He contends the evidence was

introduced only to show that the alleged co-conspirators were bad persons who continued to act


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No. 09-1863
United States v. Charles Long

during the charged period in conformity with their past pattern of misconduct. Because no such

objection was made in the trial court, we review for plain error only.

       The government contends the evidence complained of was not excludable under Rule 404(b)

for at least two reasons. First, Rule 404(b) is said not to apply to the “other acts” evidence at issue

because it was not extrinsic to the charged offenses. Indeed, “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.” United States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009). Rule 404(b)

is not implicated when the other crimes or wrongs evidence is “intrinsic,” that is, “part of a

continuing pattern of illegal activity.” United States v. Gonzalez, 501 F.3d 630, 639 (6th Cir. 2007)

(quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)). Intrinsic evidence has been

defined so broadly as to include evidence that represents a “prelude to the charged offense, is directly

probative of the charged offense, arises from the same events as the charged offense, forms an

integral part of the witness’s testimony, or completes the story of the charged offense.” Id. (quoting

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (emphasis deleted)). The government

contends the evidence Long now complains of is properly considered background or intrinsic

evidence.

       Second, the government contends that even if any of the evidence of prior prohibited

discharges is not deemed to be intrinsic and is therefore subject to scrutiny under Rule 404(b), it was

nonetheless admissible to show defendants’ knowledge of the ongoing bypass discharge problem,

and to dispel any notion that discharges during the charged period were the product of mistake or

accident.

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No. 09-1863
United States v. Charles Long

       We agree with both of the government’s positions. Long has failed to show any plain error

or abuse of discretion in the district court’s admission of the challenged evidence.

       D. Constitutionality of Clean Water Act

       Long contends the provision of the Clean Water Act under which he was convicted, 33

U.S.C. § 1319(c)(2)(A), is unconstitutionally vague because it prescribes criminal penalties for

knowingly violating any requirement imposed in a pretreatment program without defining

“knowingly” or “any requirement imposed in a pretreatment program.” Long did not raise this

objection below and offers no case law authority supporting the challenge on appeal.

       Reviewing for plain error, we find none. Even if we were to find that § 1319(c)(2)(A) fails

to provide a person of ordinary intelligence with fair notice of what is prohibited (which we do not),

we could hardly hold that such a defect is “plain” where the error has not been made clear under

current law. See United States v. Olano, 507 U.S. 725, 734 (1993) (holding that court of appeals

cannot correct error as “plain error” unless error is clear under current law).

       E. Prosecutorial Misconduct

       Next, Long contends that counsel for the government engaged in impermissible misconduct

by making several improper remarks during closing arguments. He did not object in the district court

and acknowledges that this claim, too, is subject to review only for plain error.

       The parties agree that the governing standard is set forth in United States v. Emuegbunam,

268 F.3d 377, 404 (6th Cir. 2001). Improper statements by the prosecuting attorney warrant reversal

only if they are found to be “flagrant,” considering “(1) whether the statements tended to mislead the

jury or prejudice the defendant; (2) whether the statements were isolated or among a series of

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No. 09-1863
United States v. Charles Long

improper statements; (3) whether the statements were deliberately or accidentally before the jury;

and (4) the total strength of the evidence against the accused.” Id. (quoting United States v. Tocco,

200 F.3d 401, 420 (6th Cir. 2000)).

       Duly considering the statements here objected to by Long under this standard, we find that

the statements, if improper at all, were of negligible significance. They were not flagrant, did not

have a tendency to mislead the jury, and had only slight tendency to prejudice defendant Long.

Considering the strength of the evidence against Long, we cannot find that the Assistant U.S.

Attorney’s occasional questionable characterization of the evidence or hyperbolic argument was “so

pronounced and persistent that it permeated the entire atmosphere of the trial” and rendered it

fundamentally unfair. See id. Certainly, there was no plain error.

       F. Improper Use of Interpreter

       One of the government’s trial witnesses, Houxiang Liu, testified with the aid of an

interpreter. Liu had been employed as a chemical engineer inspector in the Industrial Waste Control

Division of the Detroit Water and Sewerage Department since 1997. During his testimony, it

became apparent that although he understood and spoke English, his answers were sometimes

difficult to understand. Accordingly, the district court directed that Liu’s testimony be given in his

primary language, Mandarin Chinese, and translated into English by a sworn interpreter. The court

allowed Liu to be examined in English and respond in Chinese, so that only his answers were

translated into English. No objection to this procedure was stated at trial. On appeal, however, Long

contends “there can be no confidence that Mr. Liu understood the questions so as to be able to

answer them correctly.” Yet, Long has not identified any portion of Liu’s testimony, see R. 143,

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United States v. Charles Long

Trial Tr. vol. 7, pp. 1-59, that demonstrates difficulty or confusion. He has not identified any way

in which Liu’s testimony was so compromised as to result in prejudice to him or his defense in the

eyes of the jury. We find no error.

        G. Cumulative Effect of Errors

        Finally, Long cites United States v. Robinson, 357 F. App’x 677, 688 (6th Cir. 2009), and

contends that even if none of the above claimed errors standing alone warrants relief, cumulatively,

they produced a fundamentally unfair trial. “Yet, this ‘cumulative error analysis should evaluate

only the effect of matters determined to be error, not the cumulative effect of non-errors.’” Id.

(quoting United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004)). Having duly considered all

of Long’s appellate claims and found no cognizable error, we necessarily find no cumulative effect

that warrants relief.

                                                III

        Accordingly, defendant Long’s conviction is AFFIRMED.




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