By Andrew H. Perellis

The U.S. Sixth Circuit Court of Appeals recently upheld, in United States v. Long, No. 09-1863 (6th Cir., December 2, 2011), the criminal conspiracy conviction of an industrial waste treatment facility plant manager. In April 2009 the District Court had sentenced the defendant to two concurrent prison terms of twenty-four months. The defendant appealed his conviction on several grounds.

Of interest in this case is that 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. Environmental Protection Agency (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.

The Court, citing United States v. Conatser, 514 F.3d 508, 518 (6th Cir. 2008), found that 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.” “Once a conspiracy is established beyond a reasonable doubt, a particular defendant’s connection to the conspiracy ‘need only be slight.’”

In this case the Court found that there is substantial evidence of the defendant’s active and knowing participation in the unlawful discharges of untreated waste, including his continuing participation after he had conversations with other co-defendant employees about the unlawfulness of their conduct. “[T]here 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 [the defendant] acted in concert with others to accomplish the scheme’s unlawful purpose.”

For instance, during an interview with a special agent investigating the case, the defendant admitted participating in bypass discharges from three different sources in the industrial facilities. The defendant also pointed to evidence that he was “concerned about and reticent to engage in prohibited discharges.” From this the Court found that the defendant appreciated the wrongfulness of his conduct and nonetheless persisted in it — substantiating the jury’s conclusion that he acted “knowingly.”