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United States v. White

United States Court of Appeals for the Sixth Circuit

June 21, 2000, Argued ; October 29, 2001, Decided ; October 29, 2001, Filed

Nos. 98-6609/98-6633/98-6634

Opinion

 [***2]   [*360]  MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendants John White and Carolyn Taylor, employees of the Ohio County (Kentucky) Water District, were convicted of making materially false statements regarding a matter within the jurisdiction of the federal government, in violation of 18 U.S.C. § 1001 (1994), by submitting [**2]  reports containing falsified turbidity measurements to the Kentucky Division of Water. The district court sentenced White to two years' probation and a $ 5000 fine, and sentenced Taylor to two years' probation and a $ 1000 fine. The government now appeals the court's interpretation of the United States Sentencing Guidelines in determining White's and Taylor's sentences. Taylor cross-appeals, challenging both her sentence and various aspects of her prosecution. For the reasons set out below, we find no reversible error in connection with Taylor's conviction and sentence, and thus affirm that portion of the district court's judgment. We further hold, however, that the case must be remanded for re-sentencing as to White.

 [***3] PROCEDURAL AND FACTUAL BACKGROUND

John White was the general superintendent at the Ohio County Water District's drinking water treatment plant at Cromwell, Kentucky; Carolyn Taylor was a Water District employee assisting White in managing plant operations. Both were licensed by the state of Kentucky as Class 4A Water Treatment Plant Operators, which required multiple examinations and continuing education. As part of their job responsibilities, White [**3]  and Taylor prepared monthly operations reports required by federal and state law to be submitted to the Kentucky Department for Environmental Protection's Division of Water. The Division of Water compiles this data from all the state's water districts as part of its enforcement responsibilities pursuant to the federal Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-18 (1994). The federal Environmental Protection Agency (EPA) funds the Division's data collection activities, and the Division sometimes works with EPA employees when investigating violations of the Act.

During a surprise inspection of the plant in January 1997, an agent from the Division noted that daily log books recording the measure of turbidity (the amount of suspended particulate matter in post-treatment water) had been left blank for each of four four-hour shifts between 4:00 p.m. January 13 and 8:00 a.m. January 14. 1 [**5]  The plant employee responsible for recording these measurements told the Division agent that she had purposefully left the log sheets blank because the turbidity measurements were all above 0.5 nephelometric turbidity units (NTUs), which might put the  [***4]  plant at risk [**4]  of noncompliance with the Act. 2 In February 1997, however,  [*361]  White submitted a monthly report to the Division which contained entries below the 0.5 NTU threshold for each of the four-hour shifts in question. The Division then seized the Cromwell plant's daily log book and data sheets recorded by the plant's turbidimeters containing turbidity measurements for December 1996 and January 1997. Review of this evidence and subsequent interviews with plant staff, including White and Taylor, by Division and EPA agents revealed several instances of similar falsifications of turbidity measurements and submissions of inaccurate monthly reports, which suggested that the water plant had been out of compliance with the federal and state turbidity regulations during most of the months in question.

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270 F.3d 356 *; 2001 U.S. App. LEXIS 23166 **; 2001 FED App. 0383P (6th Cir.) ***; 53 ERC (BNA) 1946; 32 ELR 20298

UNITED STATES OF AMERICA, Plaintiff-Appellant (98-6609/6633)/Cross-Appellee, v. JOHN DAVID WHITE, Defendant-Appellee, CAROLYN F. TAYLOR, Defendant-Appellee/Cross-Appellant (98-6634).

Prior History:  [**1]  Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 97-00013. Joseph H. McKinley, Jr., District Judge.

Disposition: Judgment as to Carolyn Taylor was affirmed. Sentencing order as to John White was vacated and remanded for resentencing.

CORE TERMS

enhancement, turbidity, sentence, pollutant, district court, regulations, plant, drink water, guideline, pretrial diversion, special skill, environmental, conceal, false statement, contaminant, purposes, record-keeping, offenses, levels, funds, measurements, violations, argues, sentencing guidelines, private trust, base offense, suppress, license, safe drinking water, treatment plant

Criminal Law & Procedure, Standards of Review, De Novo Review, General Overview, Governments, Federal Government, Claims By & Against, Administrative Law, Separation of Powers, Jurisdiction, Fraud Against the Government, False Statements, Elements, Fraud, False Claims, Local Governments, Duties & Powers, Employees & Officials, Evidence, Weight & Sufficiency, Clearly Erroneous Review, Findings of Fact, Privileges, Self-Incrimination Privilege, Constitutional Law, Fundamental Rights, Procedural Due Process, Self-Incrimination Privilege, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Motions to Suppress, Appeals, Reviewability, Preservation for Review, Legal Ethics, Prosecutorial Conduct, Clear Error Review, Sentencing, De Novo Review, Sentences, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Sentencing Guidelines, Penalties, Business & Corporate Compliance, Water Quality, Safe Drinking Water Act, National Drinking Water Regulations, Enforcement, Public Improvements, Hazardous Wastes & Toxic Substances, CERCLA & Superfund, Recordkeeping & Reporting, Adjustments & Enhancements, Special Skills, Imposition of Sentence, Factors, Findings