[00:00:00] Speaker 04:
Good morning.

[00:00:00] Speaker 01:
Good morning and may it please the court.

[00:00:02] Speaker 01:
I'm Don Verilli for Appellant Louis Sanft.

[00:00:04] Speaker 01:
I'd like to reserve three minutes for rebuttal, please.

[00:00:07] Speaker 01:
Okay.

[00:00:08] Speaker 01:
Go ahead.

[00:00:09] Speaker 01:
Every count of Mr. Sanft's conviction should be reversed or at least vacated for three reasons.

[00:00:15] Speaker 01:
First, the government violated Brady by suppressing critical evidence that would have impeached a key witness.

[00:00:20] Speaker 01:
Second, the government impermissibly vouched for the credibility of that very same key witness

[00:00:25] Speaker 01:
And third, the trial court refused to give a lesser included defense instruction that was clearly warranted on the facts and the law.

[00:00:32] Speaker 01:
I'm happy to address anything the court wants, of course.

[00:00:35] Speaker 01:
But if I could, I'd like to focus on the Brady violation, because I think it goes to the fundamental lack of integrity of the proceedings below.

[00:00:42] Speaker 04:
Well, I know that you think the Brady is the most significant, and I think the parties probably spent the most time, but I want to make sure we leave time, and you can do that, but it's to the lesser included.

[00:00:53] Speaker 01:
Yes, I agree, Your Honor, that it's a serious question, and I don't want to slight it, and I will make every effort to address it.

[00:01:01] Speaker 01:
But if I could start with Brady, I would appreciate it.

[00:01:03] Speaker 01:
Sure.

[00:01:03] Speaker 01:
Go ahead.

[00:01:04] Speaker 01:
With respect to Brady, now the government has conceded, and this is at page 26 of its brief, that it was, in the government's own words, a serious error.

[00:01:11] Speaker 01:
not to turn over the T visa application materials of Dennis Liva, the key witness.

[00:01:18] Speaker 01:
So the only question is whether the impeaching force of that suppressed evidence is sufficient to undermine the confidence in the verdict.

[00:01:27] Speaker 01:
The answer to that question is yes.

[00:01:29] Speaker 01:
Liva was by far the government's most important witness in this case.

[00:01:34] Speaker 01:
And the suppressed evidence showed two things.

[00:01:37] Speaker 01:
First, it showed that Liva had a powerful additional motive to do the government's bidding in order to gain a very substantial immigration benefit that the jury knew nothing about.

[00:01:48] Speaker 01:
And second, the evidence showed that Liva was a sophisticated manipulator.

[00:01:54] Speaker 01:
He told the immigration authorities one story that he needed to tell them, the blackmail story, in order to try to qualify under the trafficking provision for a T visa.

[00:02:03] Speaker 01:
And he came into court and he told the jury a completely different story.

[00:02:08] Speaker 01:
So that contradiction is a second reason why there was a really powerful impeaching force to his testimony.

[00:02:17] Speaker 01:
Now, with respect to the importance of Liva as a witness, the government described him as a vital witness.

[00:02:24] Speaker 01:
The government told the jury in closing that Liva's testimony alone established Mr. Samp's knowledge.

[00:02:30] Speaker 04:
Well, I guess I don't think there's any doubt that Liba was important.

[00:02:37] Speaker 04:
And they did know that he had an illegal status.

[00:02:40] Speaker 04:
He ran when they tried to stop him.

[00:02:42] Speaker 04:
He got taken into custody.

[00:02:46] Speaker 04:
And they knew that he was trying to get the deal for himself so that he'd be able to stay here.

[00:02:52] Speaker 04:
I think the government's response to your I don't think

[00:02:58] Speaker 04:
Well, I can't say, but I think it's pretty clear he was important.

[00:03:02] Speaker 04:
I can't say what my colleagues think, but I think that it's pretty clear that you should have had that information.

[00:03:12] Speaker 04:
But the government says that even without Mr. Leva, there was sufficient evidence to convict Mr. Sampt.

[00:03:18] Speaker 04:
And there were other witnesses that testified that added to

[00:03:24] Speaker 04:
putting some nails in the coffin for your client.

[00:03:27] Speaker 01:
So can I make a couple of points about that?

[00:03:29] Speaker 01:
The first point may not sound like a direct answer to your honest question, so I want to assure you I will answer your honest question directly.

[00:03:35] Speaker 01:
That's OK.

[00:03:35] Speaker 01:
But on the first point, I do think that with respect to the impeaching force of this evidence, I would point the court to the Corning decision.

[00:03:43] Speaker 01:
And if I could, I just want to quote something from Corning.

[00:03:46] Speaker 01:
This is at page 904 of 637 F3rd, that

[00:03:52] Speaker 01:
I mean, I think essentially with respect to this evidence, one of the two things the government says is, well, it's cumulative, and as Your Honor was averting to, he was already impeachable for other grounds.

[00:04:00] Speaker 01:
But what Corring says is that evidence is not, impeaching evidence is not cumulative if it sheds light on the magnitude of the witnesses' incentive to cooperate, and if it would have revealed that he had much more at stake than was already known to the jury.

[00:04:15] Speaker 01:
That's exactly true here, 100 percent true here with respect to the

[00:04:18] Speaker 01:
incredible immigration benefit that he would have received had he gotten that T visa.

[00:04:23] Speaker 01:
residency work permit, glide path to permanent residency.

[00:04:26] Speaker 02:
So, Mr. Verrilli, is it enough for a witness to be a pretty important one and to have suppressed evidence that is, you know, important enough itself to add to the impeaching quality to it?

[00:04:39] Speaker 02:
Is that enough for materiality or do we need to look at something else?

[00:04:44] Speaker 02:
Because I think the government would say there is still quite a bit of other evidence there as well.

[00:04:49] Speaker 01:
That was the second part of Judge Callahan's question and I will address it directly now.

[00:04:54] Speaker 01:
With respect to that circumstantial evidence, you know, the government has its six points thing, and I'll happily walk through each of the six points.

[00:05:01] Speaker 01:
But before I do that, I want to make a prefatory point that if one's going to go beyond the direct evidence here to try to infer knowledge from the circumstantial evidence, you've got to consider all of the evidence.

[00:05:13] Speaker 01:
What the government leaves out of that analysis is the trial evidence that showed that

[00:05:18] Speaker 01:
Mr. Sanft had no motive to do what he was accused of doing here.

[00:05:24] Speaker 01:
First, he knew the county was monitoring the discharges.

[00:05:28] Speaker 01:
So he knew he would get caught if he ordered this.

[00:05:32] Speaker 01:
And now what the government says is, well, but, you know, he didn't know the EPA was monitoring, but that doesn't matter.

[00:05:37] Speaker 01:
He knew the county was monitoring.

[00:05:39] Speaker 01:
The way this whole thing happened is that the county's monitoring tipped off the EPA, and that's why they raided.

[00:05:45] Speaker 01:
And so he knew that.

[00:05:48] Speaker 01:
B, he had the trial evidence shows he had no financial incentive to do this because the cost of paying Emerald to haul off the liquid was about the same as the cost of the overtime that he was paying to Mr. Leva.

[00:06:00] Speaker 01:
So it was a wash financially.

[00:06:02] Speaker 01:
So why take this big risk when you know you're monitored and you're not saving any money?

[00:06:06] Speaker 04:
Well, I've been doing criminal law for a very long time.

[00:06:09] Speaker 04:
just because people know that something's not a good idea has never seemed to stop a lot of people from committing crimes.

[00:06:17] Speaker 04:
So I'm not sure I find that persuasive.

[00:06:20] Speaker 04:
I mean, wasn't there some evidence about he wasn't paying to have stuff hauled off or to some?

[00:06:27] Speaker 01:
Well, maybe I should just walk through the six points, and then we can try to deal with it.

[00:06:32] Speaker 04:
I mean, there is such thing as a stupid criminal.

[00:06:36] Speaker 04:
you know, that people still do, you know, they're always cutting corners.

[00:06:40] Speaker 01:
Of course, Your Honor, but the question here is, you know, we know this was a serious error.

[00:06:45] Speaker 01:
The government stole this.

[00:06:47] Speaker 01:
We know he was the key witness.

[00:06:48] Speaker 01:
We know that.

[00:06:49] Speaker 01:
I don't think there's any dispute about that.

[00:06:51] Speaker 01:
So the question here is whether this impeaching evidence was sufficient to undermine confidence in the verdict.

[00:06:57] Speaker 01:
And they are making this argument.

[00:06:59] Speaker 01:
They've made this argument as cumulative.

[00:07:01] Speaker 01:
I think I've addressed that.

[00:07:02] Speaker 01:
They're also making this argument that there's enough evidence here that

[00:07:06] Speaker 01:
The jury would certainly have come to the conclusion that it could infer knowledge.

[00:07:09] Speaker 01:
Well, there was Mr. Henderson, right?

[00:07:11] Speaker 01:
Let me walk through them all.

[00:07:13] Speaker 01:
Mr. Henderson's testimony was that on one occasion he saw Mr. Lever pumping something from a drum into the drain.

[00:07:22] Speaker 01:
On one occasion, didn't say what it was, he said it was on one occasion.

[00:07:25] Speaker 01:
Now, Mr. Sanft, who testified in this trial, testified that he had reason to distrust Mr. Henderson, because Mr. Henderson was a recent employee, and he had it in for Mr. Levi and was trying to get him fired because he thought he was lazy and cut corners.

[00:07:39] Speaker 01:
The other supposed evidence, direct evidence, of discharge was John Sanft.

[00:07:45] Speaker 01:
That, of course, was the defendant, Louis Sanft.

[00:07:48] Speaker 01:
It was his own interview into the EPA, where he talked about what John had told him, and he said John told him that on one occasion he saw hoses on the floor.

[00:07:55] Speaker 01:
Okay, that is hardly direct, compelling, direct evidence that Mr. Samp knew that Mr. Levo was engaging in these discharges.

[00:08:04] Speaker 01:
Now, with respect to the other evidence to which the government points, they say, well, Mr. Samp put a cement cap over the drain, but it was a removable cement cap.

[00:08:16] Speaker 01:
Well, he testified the reason for that was that he might want to sell the property at some point.

[00:08:20] Speaker 01:
The future owner might want access to the drain.

[00:08:24] Speaker 01:
conclusive evidence.

[00:08:25] Speaker 01:
They say that Mr. Sanft gave conflicting stories about how the caustic water was disposed of.

[00:08:37] Speaker 01:
But I think if one reads his testimony, that's just not a fair description.

[00:08:40] Speaker 01:
There weren't conflicting – he wasn't talking about conflicting ways of doing it.

[00:08:43] Speaker 01:
It was a sequence.

[00:08:45] Speaker 01:
He said, look, here's what we did.

[00:08:46] Speaker 01:
At first we – the first step was we boiled off as much of it as we could.

[00:08:51] Speaker 01:
That occurred in the latter part of the week.

[00:08:53] Speaker 01:
There was testimony that you could continue until you got down to about a third full of the tank.

[00:08:58] Speaker 01:
You could continue to clean drums in it.

[00:09:01] Speaker 01:
And then with respect to the rest of it, that it was filtered and then you recycled the water back into the tank and you got rid of the sludge.

[00:09:11] Speaker 01:
And Emerald did continue to haul away sludge throughout this whole period.

[00:09:16] Speaker 02:
Even if it wasn't reflected in the business records?

[00:09:19] Speaker 01:
No, it was reflecting the business record, Your Honor.

[00:09:21] Speaker 01:
I think there's some confusion about this, and I just want to clear up.

[00:09:24] Speaker 01:
The total volume of emeralds hauling off went down over time.

[00:09:30] Speaker 01:
And that, and at the beginning, but Mr. Sanft testified about this, too.

[00:09:34] Speaker 01:
But they did haul off the sludge all the way through.

[00:09:36] Speaker 01:
They hauled less because Mr. Sanft initially was having them haul off the water and the sludge.

[00:09:44] Speaker 01:
He did that, and the testimony in the record was he did that because

[00:09:48] Speaker 01:
He was trying to establish a business relationship with Emerald, so he wanted to give them more business because they could use his cleaning services.

[00:09:55] Speaker 01:
Eventually, over time, he realized it really wasn't worth it to do that, and he moved to this alternative method.

[00:10:00] Speaker 01:
That's all in there.

[00:10:03] Speaker 01:
I can go through the other six points, too, but it's all the same.

[00:10:06] Speaker 01:
It's all quite indirect circumstantial evidence.

[00:10:09] Speaker 01:
There's nothing close to leave as testimony in terms of establishing Mr. Samp's knowledge.

[00:10:14] Speaker 01:
And so that's really important.

[00:10:17] Speaker 01:
And I do want to, you know, it's not, I want to get back to why I think this impeaching evidence is so important.

[00:10:24] Speaker 01:
It's because not only does it show that substantial additional motive on Mr. Lever's part, but basically Mr. Lever went to the immigration authorities and he made up a story about being blackmailed because that's what he needed to do to try to establish that he was a victim of trafficking.

[00:10:42] Speaker 01:
But then he didn't tell that story to the prosecutors, to the EPA, or to the jury.

[00:10:46] Speaker 01:
He told them a totally different story.

[00:10:48] Speaker 01:
And that contradiction, what that shows you is that he would have been impeached on the ground, that he says whatever is in his advantage.

[00:10:56] Speaker 01:
It was in his advantage to tell the immigration authorities one thing.

[00:10:58] Speaker 01:
It was in his advantage to tell quite a different thing to the jury.

[00:11:03] Speaker 01:
And there's one thing I think is important.

[00:11:06] Speaker 01:
I just want to point the court to it about the implausibility of this blackmail story.

[00:11:12] Speaker 01:
In the post-trial proceedings, we submitted declarations, and you can find them at 2ER 269 to 81, from a host of people, including Mr. Oliva's ex-wife, who said this blackmail story was complete nonsense, that Mr. Samp treated Mr. Oliva like a son.

[00:11:28] Speaker 01:
for 18 years and covered all kinds of expenses.

[00:11:30] Speaker 01:
So if he tried to tell that blackmail story in court, he would have been shredded to bits.

[00:11:34] Speaker 01:
So I think his credibility would have been completely destroyed.

[00:11:38] Speaker 01:
Now, I will turn to the lesser included offense issue.

[00:11:41] Speaker 04:
Well, I guess if I frame the issue, and maybe you can do it on your rebuttal, because I'm going to ask Miss Miller about this, is it would seem to me that

[00:11:55] Speaker 04:
having been a trial judge, there was evidence that your client put into evidence to his own testimony, and there were some other things that his defense, what he was saying, I didn't know.

[00:12:07] Speaker 04:
And there's a lesser included of negligence.

[00:12:12] Speaker 04:
And so in order to be

[00:12:16] Speaker 04:
a lesser included, it would be my understanding if the greater offense does not require a mens rei, that essentially it's a strict liability, then this isn't a lesser.

[00:12:30] Speaker 04:
That is not a lesser included, if that's the interpretation.

[00:12:33] Speaker 01:
That's their pitch, I think, in their brief.

[00:12:36] Speaker 04:
Well, but I guess it sort of seems pivotal to me.

[00:12:40] Speaker 04:
Yeah, it's pivotal, I agree.

[00:12:41] Speaker 04:
If the greater has no mens rei,

[00:12:45] Speaker 04:
then I don't think negligence is a lesser.

[00:12:48] Speaker 01:
I can summarize in four points here why it's just completely obvious that the greater has a mens rea of knowledge.

[00:12:59] Speaker 01:
First, the text of the statute says that a responsible corporate officer, that's their strict liability theory, that responsible corporate officers are strictly liable.

[00:13:09] Speaker 01:
The text of the statute defines

[00:13:13] Speaker 01:
It says person means, among other things, responsible corporate officer.

[00:13:17] Speaker 01:
So it defines person as responsible corporate officer.

[00:13:20] Speaker 01:
And then it says a person knowingly violates if blah, blah, blah.

[00:13:25] Speaker 01:
So the statutory text, which they really don't say anything about in their brief, unambiguously shows you that the responsible corporate officer has to have knowledge to violate it as a responsible corporate officer.

[00:13:38] Speaker 01:
Second, this court's decision in Iverson

[00:13:41] Speaker 01:
You know, I think the key point on Iverson, you'll just bear with me for a second, this is at page 1026 of the opinion.

[00:13:49] Speaker 01:
I think it would be helpful if I could just read you the court's holding in Iverson.

[00:13:53] Speaker 01:
The court goes on, the court in Iverson is rejecting an argument that .

[00:13:57] Speaker 01:
.

[00:13:58] Speaker 04:
.

[00:13:58] Speaker 04:
Weren't they really fussing about who's the corporate officer in Iverson?

[00:14:02] Speaker 01:
Well, that's the key, right?

[00:14:03] Speaker 01:
So first they said, the argument in Iverson was,

[00:14:06] Speaker 01:
The Fenicam is a responsible corporate officer.

[00:14:09] Speaker 01:
It applies only if you're actually acting on your authority over the persons who violate the Clean Water Act.

[00:14:15] Speaker 01:
The court never says no.

[00:14:17] Speaker 01:
If you have the authority over them, then you're a responsible corporate officer.

[00:14:21] Speaker 01:
But that's the part the government likes.

[00:14:22] Speaker 01:
What the government doesn't deal with is the actual holding of the case, which is at page 1026.

[00:14:28] Speaker 01:
And it says what the holding of the case is that

[00:14:31] Speaker 01:
The responsible corporate officer instruction alleviated the government only of having to prove that the defendant personally discharged or caused the discharge.

[00:14:38] Speaker 01:
In other words, you could hold them responsible for the discharges as a responsible corporate officer.

[00:14:44] Speaker 01:
But then it says the government still had to prove that the discharges violated the law and that the defendant knew the discharges were pollutants.

[00:14:52] Speaker 01:
So it says he had to prove the responsible corporate officer's knowledge.

[00:14:56] Speaker 01:
And then the third point I want to make is look at the government's proposed jury instruction on this issue, which you can see was the jury instruction given, and it's at 1ER87.

[00:15:06] Speaker 01:
The jury instruction requires proof of Mr. Samp's knowledge to violate as a responsible corporate officer.

[00:15:13] Speaker 01:
look at the government's closing argument, which is at 12 E.R.

[00:15:16] Speaker 01:
2926, where the government itself in closing argument says, in order to hold Mr. Sampf guilty as a responsible corporate officer, we have to prove that he had knowledge of the discharges.

[00:15:29] Speaker 01:
The government thought that the strict liability theory, which they're now advocating in their brief, were a valid basis.

[00:15:35] Speaker 01:
Of course, they were trying to charge it at trial, because it would have been 800 times easier for them to win a conviction if they didn't have to prove Mr. Samp's knowledge.

[00:15:44] Speaker 01:
So I just think, and I realize I'm over my time here, but I just think this argument that you can construe this statute as being a strict liability offense for responsible corporate officers has nothing

[00:15:57] Speaker 02:
And so in your view, it's possible to construe a negligence charge on the basis of Mr. Sanft didn't know about Leyva's dumping.

[00:16:09] Speaker 02:
Leyva may have been purposeful in the dumping itself, but if Mr. Sanft was a responsible corporate officer and failed to supervise him enough or supervise the operations, he could be charged with negligence at trial.

[00:16:22] Speaker 01:
Yes, Your Honor, and I think because Mr. Sampf testified, and he testified that he didn't know, but there were a lot of circumstantial, there is some circumstantial evidence that this was going on, I think the evidence would support a negligence verdict here, and so if that's the case, and I think I've explained quite clearly that the negligent, a negligent violation is a subset of an intentional violation because of the mens rea issue.

[00:16:47] Speaker 01:
The tests have satisfied, so under Arnton Torres, he's in

[00:16:50] Speaker 01:
was entitled, that's what Arden Torrey says, entitled to lesser included offense.

[00:16:54] Speaker 02:
Does it matter that the jury did actually convict on a knowledge basis?

[00:16:59] Speaker 01:
Well, I think that's going to be true in every lesser included offense case where the lesser included offense isn't given, and that's the whole point of a lesser included offense doctrine.

[00:17:08] Speaker 04:
Well, but I think the instructions also, my recollection of when I was a trial judge, you only get to the lesser if you acquit the person of the greater.

[00:17:18] Speaker 01:
Yes.

[00:17:19] Speaker 04:
So if they if they felt like that he had knowledge and they convicted him of the greater

[00:17:24] Speaker 04:
how could they have gone to a lesser?

[00:17:27] Speaker 01:
Well, as I said, Your Honor, that's true in every case in which a lesser included defense instruction isn't given.

[00:17:33] Speaker 01:
What Your Honor just described will be the case.

[00:17:35] Speaker 04:
And the point of the doctrine, as I understand it, is if you put the- Well, the jury doesn't get to pick what they want to convict someone of.

[00:17:44] Speaker 04:
The instruction, it says, if you find beyond a reasonable doubt that the person is not guilty of the greater, then you look at the lesser.

[00:17:53] Speaker 01:
Yes, but if I could just make two points on that.

[00:17:56] Speaker 01:
First, as I understand this doctrine, the whole point of it is that in a situation in which those two elements of the test are satisfied, that the lesser is a subset of the elements of the greater, and there was evidence in the record from which a jury could have convicted, that the reason that what Arendt and Torres say is that the defendant is entitled to an instruction is because if you put the jury to the all or nothing choice,

[00:18:22] Speaker 01:
either acquit the guy or convict him of the more serious offense, and they think something was bad, but it wasn't as bad, that there's gonna be an incentive on their part to convict, because they think he was guilty of something.

[00:18:34] Speaker 01:
That's the whole point of the doctrine, and that is what the cases say.

[00:18:39] Speaker 01:
And so I do think that that, and that's exactly, I think, our situation here.

[00:18:45] Speaker 04:
Okay, we've taken you over because I'm feeling so generous today.

[00:18:51] Speaker 04:
I'll give you two minutes for rebuttal.

[00:18:53] Speaker 01:
I appreciate your gratitude.

[00:18:54] Speaker 01:
I'm grateful for your generosity.

[00:18:56] Speaker 04:
Thanks.

[00:19:01] Speaker 04:
All right, good morning.

[00:19:05] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:19:07] Speaker 00:
I'm Teal Miller on behalf of the United States.

[00:19:09] Speaker 04:
Can you start with the, since I'm

[00:19:13] Speaker 04:
I'm on the lesser included offense.

[00:19:15] Speaker 04:
Can you start there and then?

[00:19:18] Speaker 04:
Yes, Your Honor.

[00:19:19] Speaker 04:
Even though everyone wants to talk about Brady, I still want to talk about the lesser included.

[00:19:23] Speaker 00:
Yes, Your Honor.

[00:19:24] Speaker 04:
You'll get to talk about Brady.

[00:19:27] Speaker 00:
I look forward to it.

[00:19:28] Speaker 00:
So two points initially about the lesser included offense question.

[00:19:33] Speaker 00:
The first is this only goes to counts two through 30 of the conviction.

[00:19:38] Speaker 00:
Those were the only counts as to which Sam argued for this instruction.

[00:19:42] Speaker 00:
The second is that ultimately this is reviewed for harmlessness.

[00:19:46] Speaker 00:
There's a debate in this court's cases about whether it's harmlessness or harmlessness beyond a reasonable doubt, but it is reviewed for harmlessness.

[00:19:52] Speaker 00:
And for the same reason that Mr. Samp can't satisfy the materiality standard under Brady and Giglio, this was harmless beyond a reasonable doubt.

[00:20:03] Speaker 04:
But getting to the issue of whether- Well, was the case argued before the jury that knowledge was required of the greater?

[00:20:13] Speaker 00:
So there were three different theories on which the jury could have was instructed it could convict Mr. Sampt on counts two through 30.

[00:20:23] Speaker 00:
One was aiding and abetting liability to which there is no lesser included defense.

[00:20:28] Speaker 00:
The second was as a responsible corporate officer, and the third was as a principal.

[00:20:33] Speaker 00:
What was the third?

[00:20:34] Speaker 00:
As a principal.

[00:20:35] Speaker 04:
Okay.

[00:20:36] Speaker 00:
If Mr. Sampt had gone to the district court and said,

[00:20:39] Speaker 00:
I want a special verdict form that says if you reject aiding and abetting liability, and if you reject responsible corporate officer liability, then I am entitled

[00:20:48] Speaker 00:
to a special verdict form that says consider both negligence and knowledge.

[00:20:54] Speaker 00:
But Mr. Sampt didn't ask for that.

[00:20:56] Speaker 00:
What he asked for was a straight up unalloyed negligence instruction, which would have totally undermined the aiding and abetting instruction and the responsible corporate officer instruction.

[00:21:05] Speaker 00:
So the district court didn't abuse its discretion when it rejected the instruction he asked for.

[00:21:10] Speaker 02:
And why would it have undermined it?

[00:21:12] Speaker 02:
Because you can't... On the corporate officer side at least.

[00:21:15] Speaker 00:
Okay.

[00:21:15] Speaker 00:
So as to aiding and vetting because you can't negligently aid and vet.

[00:21:18] Speaker 00:
Right.

[00:21:19] Speaker 00:
As to the responsible corporate officer.

[00:21:23] Speaker 00:
Iverson's understanding of what the responsible corporate officer provision of the Clean Water Act is doing is it is effectively imputing liability to someone who has the authority and control to stop the discharges and fails to do so.

[00:21:43] Speaker 00:
So if there is a lesser included offense to responsible corporate officer liability, it's not negligence.

[00:21:49] Speaker 00:
if you had something less than authority and control.

[00:21:53] Speaker 02:
Well imputing liability, so I'm a little skeptical of this argument, I'll admit.

[00:21:58] Speaker 02:
Imputing liability is a different thing than imputing a mens rea requirement.

[00:22:02] Speaker 02:
And I think Mr. Verrilli's point that the plain language of the statute seems to support his view has some force in the way that the word person is defined in the statute itself to include a responsible officer.

[00:22:17] Speaker 00:
I don't take Iverson to be a case that is ignoring the plain language.

[00:22:22] Speaker 00:
What it says is that the responsible corporate officer provision says person means in addition to the principle, in addition to is the key language here.

[00:22:32] Speaker 00:
It is expanding liability to someone who is in a position to stop it.

[00:22:38] Speaker 02:
Well, Iverson was not a mens rea case.

[00:22:42] Speaker 02:
That's right.

[00:22:42] Speaker 02:
So it was dealing with, as we were discussing earlier, do you have to have control over the specific activities or a more generalized authority over the operations itself?

[00:22:56] Speaker 02:
But where in that does it suggest that the corporate officer would not have to have any knowledge, independent of what was going on with the dumping person?

[00:23:05] Speaker 00:
So as my friend says, in this case, the responsible corporate officer instruction that was given did have knowledge.

[00:23:15] Speaker 00:
So the question, we assumed a burden, I think, that was higher than we needed to.

[00:23:21] Speaker 00:
And I agree, actually, that page 1026 of Iverson is the key point.

[00:23:26] Speaker 00:
And what the court said there was the court also told the jury that in addition to a defendant who discharges or causes the discharge of pollutants directly,

[00:23:34] Speaker 00:
The Clean Water Act holds accountable responsible corporate officers.

[00:23:38] Speaker 00:
read together with the previous instruction, which is just the elements of the principal offense, the responsible corporate officer instruction relieved the government only of having to prove the defendant personally discharged or caused the discharge of the pollutant.

[00:23:52] Speaker 00:
So the key question is, how was this discharge done, knowingly or negligently?

[00:23:59] Speaker 00:
It can be charged either way.

[00:24:00] Speaker 00:
Here it was charged negligently, and there isn't a lesser included offense of negligent responsible corporate officer liability unless the discharge was negligent.

[00:24:09] Speaker 00:
But I don't want to use all of my time on this, so I do think ultimately.

[00:24:13] Speaker 03:
Before you leave that point, is the knowledge the knowledge of the discharge or the knowledge of the conduct?

[00:24:20] Speaker 03:
Because I think the statute can be read to say it's knowledge of the discharge, not knowledge of whether it was negligent or deliberate.

[00:24:30] Speaker 00:
So here the jury was charged that stamped

[00:24:35] Speaker 00:
could be held liable as a responsible corporate officer if he knew about the district.

[00:24:40] Speaker 00:
So I think the way to get from this argument to the Brady and Giglio is materiality, which would also go to lack of prejudice here.

[00:24:51] Speaker 00:
And if I may, I want to turn to why, although the government made a serious mistake in failing to turn over the temporary file,

[00:24:59] Speaker 00:
The district court was correct that the information, the impeaching information in that file was not material.

[00:25:07] Speaker 03:
Well, part of your point is that it was cumulative, but I think it's a fair point to say the different stories were not cumulative of the impeachment that was engaged in a trial.

[00:25:19] Speaker 03:
Would you agree with that?

[00:25:22] Speaker 00:
So the different stories went to why Leyva was discharging, but not that he discharged and that he did it with Sam's knowledge.

[00:25:31] Speaker 03:
Correct, but if you could put on evidence that the witness has lied, then that's fairly powerful cross-examination.

[00:25:42] Speaker 00:
Yes, it is powerful cross-examination, and we conceded

[00:25:47] Speaker 00:
that this is favorable to FAMP and that it is not cumulative.

[00:25:51] Speaker 00:
I don't think the district court's determination turned on it being cumulative.

[00:25:56] Speaker 00:
When the district court said that it wouldn't have changed the jury's view of Lava, it didn't mean that this was not new.

[00:26:04] Speaker 00:
It meant that Leyva was already significantly impeached, which is true.

[00:26:09] Speaker 00:
Leyva testified he didn't ask for any immigration benefits.

[00:26:13] Speaker 00:
An agent testified that that wasn't true.

[00:26:15] Speaker 00:
That was significant impeachment of Leyva.

[00:26:18] Speaker 00:
And the jury was charged to view Leyva's testimony with caution.

[00:26:23] Speaker 00:
But stepping back from Leyva entirely,

[00:26:27] Speaker 02:
Well, can we stick with Labor for a moment, and I'll let you, Ms.

[00:26:30] Speaker 02:
Miller, get to the broader picture.

[00:26:32] Speaker 02:
There is a big difference in my mind between what's presented to the jury as, well, we're deferring removal in order to testify here at this trial, and he says, I'm probably going to get deported after this, to the possibility in that he's actually applying for permanent, staying here permanently in this country, and the incentives that are aligned with that.

[00:26:57] Speaker 02:
Isn't that, I mean, that's certainly not cumulative and isn't that a powerful difference that the defense could have applied to significantly undermine Leyva even more?

[00:27:08] Speaker 00:
So again, we have conceded that this was new impeachment information and we have conceded that it was non-cumulative.

[00:27:15] Speaker 00:
We're just saying given what the jury already knew about reasons to doubt Leyva's credibility and given that they already knew that he had a reason

[00:27:27] Speaker 00:
to that he was hoping for an immigration benefit.

[00:27:32] Speaker 00:
It doesn't outweigh.

[00:27:34] Speaker 00:
all the other evidence of Sam's knowledge that is totally independent of Leyva's testimony.

[00:27:39] Speaker 00:
And if I may, it is really significant in this case that the jury convicted Mr. Sampt of making a false certification in September of 2017 because that conviction shows that the jury disbelieved Louis Sampt's testimony, that he believed Leyva over Mark Henderson when Mark Henderson told Sampt

[00:28:03] Speaker 00:
that he saw Leva discharging caustic solution to the sewer.

[00:28:07] Speaker 00:
Now, my friend said this morning that Henderson was vague about what he saw.

[00:28:11] Speaker 00:
That is not correct.

[00:28:12] Speaker 00:
At 1927 of the record, Henderson testified that he saw Leva discharging the caustic solution used to clean the tanks.

[00:28:21] Speaker 00:
So Henderson testifies, this is direct evidence of SAMHSA guilt, of SAMHSA knowledge, Henderson testifies

[00:28:29] Speaker 00:
I told Sam that Leva was discharged.

[00:28:32] Speaker 00:
I saw him discharging caustic solution to the sewer.

[00:28:36] Speaker 00:
And Leva did not seem angry or surprised, even though he told the EPA he would go crazy if he heard about anyone in his company discharging.

[00:28:45] Speaker 00:
And Henderson says that what Leva did instead of going crazy was he did not seem

[00:28:51] Speaker 00:
surprised, he said he would talk to Leyva.

[00:28:53] Speaker 00:
Then the next day or the day after, he told Henderson, you didn't see what you thought you saw.

[00:28:58] Speaker 00:
He showed him the drain and said, look, there's a cap on it, which hadn't been there the day before.

[00:29:03] Speaker 00:
And Henderson felt betrayed, and he quit.

[00:29:07] Speaker 00:
And the jury credited that over SAMH's testimony that he believed Leyva.

[00:29:13] Speaker 00:
It rejected SAMH's explanation that he believed Leyva because it convicted SAMH of making a false certification from the period that month when Henderson saw that discharge.

[00:29:24] Speaker 00:
That conviction on count 31 shows that the jury disbelieved SAMH on a point totally unrelated to Leyva's testimony.

[00:29:34] Speaker 00:
and credited Henderson.

[00:29:35] Speaker 00:
We have direct evidence of SAMHSA knowledge, and it isn't ambiguous in the way that's just been suggested.

[00:29:40] Speaker 02:
Would you say that Henderson's testimony, apart from Leyva, is the best direct evidence of SAMHSA knowledge apart from Leyva?

[00:29:50] Speaker 00:
So I also think Lava's lies are direct evidence of consciousness of guilt, and the district court found that he committed perjury.

[00:29:59] Speaker 00:
His lies both to the EPA and on the stand.

[00:30:01] Speaker 00:
I'll tell you about another lie that Sampt gave on the stand.

[00:30:06] Speaker 00:
Lava said, or Sampt, excuse me, I apologize for confusing the names.

[00:30:10] Speaker 00:
Sampt said, I knew I was being monitored because in September of 2018, I saw them installing the monitoring equipment between 10 and 10.30 PM.

[00:30:20] Speaker 00:
The agent who installed the monitoring equipment said it happened between 3.30 and 6 a.m.

[00:30:24] Speaker 00:
That is a lie on the stand.

[00:30:27] Speaker 00:
That supports the district court's conclusion that SAMHT was discredited, that the jury totally apart from LEVA believed that SAMHT was lying.

[00:30:38] Speaker 00:
And lying is consciousness of guilt.

[00:30:40] Speaker 00:
In addition to that, we have monitoring data from three separate

[00:30:45] Speaker 00:
several week periods showing that these discharges were happening regularly.

[00:30:49] Speaker 00:
And some of them were happening when there were lots of people at the facility.

[00:30:52] Speaker 00:
This is a very small facility.

[00:30:54] Speaker 00:
It was open.

[00:30:55] Speaker 00:
So the evidence about evaporation, maybe it would have worked.

[00:30:59] Speaker 00:
We don't need to know how Seattle Barrel was getting rid of its caustic solution through testimony.

[00:31:05] Speaker 00:
We know through scientific evidence that it was discharging it to the sewer.

[00:31:10] Speaker 02:
But that doesn't go to the knowledge side of it, I guess.

[00:31:12] Speaker 00:
It does go to the knowledge side of it insofar as it was open at the facility during working hours.

[00:31:19] Speaker 00:
So we also have John Samp's statement to the EPA that he told Lava about discharging to the sewer.

[00:31:25] Speaker 00:
That's also direct evidence of Samp's knowledge, totally independent of Lava.

[00:31:29] Speaker 00:
And then we have Samp's dissembling both to the EPA and on the stand.

[00:31:36] Speaker 00:
And then we have the evidence from King County from 2013 and 2014 when Samp gave implausible explanations to the county to try and account for discharges to the sewer.

[00:31:47] Speaker 00:
He's tried to explain why he didn't know, the EPA didn't, sorry, the county didn't tell him.

[00:31:52] Speaker 04:
Well, so those were, there were tests where there were high levels.

[00:31:57] Speaker 04:
Is that correct?

[00:31:58] Speaker 00:
There were tests for high levels in 2013 and 2014.

[00:32:00] Speaker 00:
That's with the county.

[00:32:01] Speaker 00:
And then in 2018 and 2019, there were three periods of monitoring by the EPA, which showed regular discharges of the caustic solution to the sewer.

[00:32:12] Speaker 04:
So how did those relate to the convictions?

[00:32:16] Speaker 00:
So the conspiracy was charged beginning in 2009.

[00:32:19] Speaker 00:
So they related to the conviction and that they were within the conspiracy period.

[00:32:22] Speaker 00:
But they also showed knowledge because Sam tried to explain those results, the county's testing results, by saying that these were discharges from his boiler.

[00:32:32] Speaker 00:
But there were two reasons why that was implausible.

[00:32:35] Speaker 00:
One was the boiler discharged train tracks behind the facility and the sewer was in front of the facility.

[00:32:40] Speaker 00:
The second was the boiler's pH level was never high enough and it was regularly tested to account for the level of pH in the discharges that the county found.

[00:32:49] Speaker 04:
So what was the situation at trial in terms of testimony about whether SAMHT had hired anyone to take

[00:33:01] Speaker 04:
materials off and whether he was building something to clean things up.

[00:33:07] Speaker 04:
What was the testimony in that area?

[00:33:10] Speaker 00:
Okay, so those are two separate issues.

[00:33:11] Speaker 00:
One is about the wastewater treatment facility that he installed, and one is about Emerald Services.

[00:33:16] Speaker 00:
As to Emerald Services, what the record shows was that

[00:33:20] Speaker 00:
Seattle Barrel sent sludge, toxic sludge, to Emerald Services throughout this period.

[00:33:28] Speaker 00:
But as to the caustic solution, so liquid, there were no shipments after 2015, even though the permit application signed by SAMHSA said that the way the company was getting rid of the caustic solution was by giving it to Emerald Services.

[00:33:42] Speaker 00:
As to the wastewater treatment facility, the record is uniform, the evidence was uniform, that the wastewater treatment was never intended to process the caustic solution.

[00:33:51] Speaker 00:
It was installed maybe in reaction to the fines for the county, and SAMHP did get a reduction in one of those fines for installing it, but it was never intended to handle the constitutional solution.

[00:34:01] Speaker 00:
It was dealing with a separate problem.

[00:34:03] Speaker 00:
I think ultimately, the problem with the view of the evidence that says, well, we can't really tell if additional impeachment would have made a difference, is that there was overwhelming evidence of SAMHP's knowledge, independent of Leyva's testimony.

[00:34:19] Speaker 00:
I think one of the things that's been suggested is that...

[00:34:26] Speaker 00:
He didn't have a motive.

[00:34:28] Speaker 00:
At page 3034 of the record, the prosecutor argued the very motive that we described on appeal and that the reply brief suggests is made up on appeal, which is that it was operationally difficult to deal with these 250 gallon totes, which weighed 2,000 pounds.

[00:34:45] Speaker 00:
It was hard in a tight production facility to get rid of the caustic solution using emerald services.

[00:34:51] Speaker 00:
And he did have a motive, which is he needed to get rid of the caustic solution and he didn't have a way to do it.

[00:34:57] Speaker 00:
In addition, I want to address, there's a page or there's a line of argument from the prosecutor that SAMT has focused on appeal, which is if you find that Denis Levo was sneaking around behind his back and he didn't know about it, you should acquit him on every count.

[00:35:15] Speaker 00:
And SAMT says, well, that shows that the government knew that this case turned on Levo's testimony.

[00:35:20] Speaker 00:
But if you read the full paragraph, that is not what the prosecutor was saying.

[00:35:23] Speaker 00:
This is at 317 to 318 of the record.

[00:35:26] Speaker 00:
The prosecutor says, did Louis Samp know about the dumping?

[00:35:30] Speaker 00:
If you find that he knew about the dumping, you should convict him on every count.

[00:35:33] Speaker 00:
If you find Dennis Leyva was sneaking around behind his back and he didn't know about it, you should acquit him on every count.

[00:35:39] Speaker 00:
The prosecutor was not acknowledging that Leyva's testimony was the critical evidence of Samp's knowledge.

[00:35:44] Speaker 00:
And it wasn't.

[00:35:45] Speaker 00:
There was abundant other evidence of that knowledge.

[00:35:48] Speaker 00:
And he wasn't talking about Leyva's truthfulness at all.

[00:35:52] Speaker 00:
I think there are a couple other sort of suggestions of ambiguity in the record that could lead you to find that this wasn't material that I want to address.

[00:36:04] Speaker 04:
Since we took Mr. Verrilli over, I'll allow you a little leeway here.

[00:36:11] Speaker 04:
Go ahead and do that if you can in the next two minutes.

[00:36:15] Speaker 00:
I'll do my best, Your Honor.

[00:36:16] Speaker 00:
In their briefing in this morning, they said that Samp told EPA about the hidden drain.

[00:36:24] Speaker 00:
He said at 515 of the record that there was only one connection to the sewer.

[00:36:29] Speaker 00:
He denied that this drain was connected to the sewer.

[00:36:32] Speaker 00:
to the EPA.

[00:36:33] Speaker 00:
That denial is evidence of his knowledge.

[00:36:37] Speaker 00:
As I said, they say we failed to show that there was a motive, but actually we argued the very motive we're saying here.

[00:36:44] Speaker 00:
They say as to evaporation, our expert was extreme, but their expert testified that our expert's approach was actually very reasonable and they had no quibble with it.

[00:36:52] Speaker 00:
This is at 2424.

[00:36:55] Speaker 00:
As I said, Sam's testimony that he knew he was being monitored because he saw the equipment being installed was discredited at trial.

[00:37:04] Speaker 00:
I guess what I'd say in summation is that

[00:37:17] Speaker 00:
Speaking briefly about Lava, the district court heard Lava's testimony and was in a good position to understand sort of how it came across to the jury and noted specifically that Lava was directly instructed at the request of the defense not to talk about immigration benefits.

[00:37:34] Speaker 00:
And in light of that instruction, and in light of the fact that during the proffer, he did say that there were references to the fact that he was illegal, and he also said during his proffer that they were discouraged from seeking, when seeking medical attention for injuries on the job, they were discouraged from saying, they being the employees of Seattle Barrel, that they were injured on the job.

[00:37:55] Speaker 00:
Those things actually show that the district court

[00:38:01] Speaker 00:
reasonably assessed the likelihood of this impeaching evidence on the jury.

[00:38:08] Speaker 00:
But ultimately, our basic position is this was not material because Sampt would have been convicted without Leyva's testimony at all.

[00:38:17] Speaker 00:
We caught Leyva red-handed discharging to the sewer, so we knew what was happening.

[00:38:22] Speaker 00:
And the evidence of knowledge independent of Leyva's testimony that Sampt knew about it and paid him extra to do it was abundant.

[00:38:31] Speaker 00:
Thank you for your argument.

[00:38:32] Speaker 00:
We ask that the judgment be affirmed.

[00:38:34] Speaker 00:
Thank you.

[00:38:44] Speaker 01:
I'd like to address lesser-included offense and then Brady.

[00:38:47] Speaker 01:
On lesser-included offense, a few points.

[00:38:48] Speaker 01:
With respect to the question of whether there's a harmlessness analysis, if you look at Hernandez, it's basically just applying step two of the basic test of whether there's evidence

[00:38:57] Speaker 01:
in the record that would support a conviction on the lesser offense.

[00:39:00] Speaker 01:
If so, it's not harmless.

[00:39:02] Speaker 01:
So whether you look at it like Arndt does and say it's part of the test or look at it like Hernandez does and say that that's the harmlessness analysis, it doesn't matter.

[00:39:09] Speaker 01:
You end up in the same place.

[00:39:10] Speaker 01:
With respect to the aiding and abetting counts, aiding and abetting requires intent to facilitate.

[00:39:15] Speaker 01:
So, of course, you had to prove his knowledge if you wanted to convict on aiding and abetting.

[00:39:19] Speaker 01:
On Iverson, again, just as in the briefing, my friend on the other side,

[00:39:22] Speaker 01:
just ignores the sentence on page 1026, and I think is trying to confuse the difference between who qualifies as a responsible corporate officer and what it takes to convict a responsible corporate officer.

[00:39:33] Speaker 01:
The text of the statute, which is reflected in their jury instruction and their closing an argument, shows it has to be knowledge.

[00:39:39] Speaker 01:
And with respect to the question of whether this only applies to counts two through 30 or all accounts, it's got to apply to all accounts because every single count, including count 35, false statement, required proof of knowledge.

[00:39:52] Speaker 01:
And if the jury convicted him of only negligent violation of the Clean Water Act in 2 through 30, then of course it wouldn't have convicted him of knowledge on the others, or at least there's a sufficient reason to think that that would be true, and that takes down every count in the case.

[00:40:11] Speaker 01:
Now, with respect to Brady, if I could, we'll start with Mr. Henderson, first of all.

[00:40:18] Speaker 01:
I think it's important to understand this is a subtle distinction, but it matters.

[00:40:22] Speaker 01:
Mr. Henderson testified, as my friend said, that on this one occasion, he saw Leva dumping the caustic solution.

[00:40:34] Speaker 01:
But he also testified that what he told Mr. Sanft, and this is at page 1927,

[00:40:40] Speaker 01:
was that he saw Liva pumping something down the drain, doesn't say what it was.

[00:40:45] Speaker 01:
So, and that's what matters with respect to Mr. Samp's knowledge.

[00:40:51] Speaker 01:
Now, beyond that, I think the basic, why I don't think you can consider Henderson independently of Liva is that

[00:40:58] Speaker 01:
Well, you know, of course, if the jury believed Mr. Leva, then of course they're going to believe Mr. Henderson.

[00:41:03] Speaker 01:
But if they disbelieved Mr. Leva, that might well have affected the way they thought about Mr. Henderson's testimony and whether to believe Mr. Sanft over Mr. Henderson in terms of what he understood there.

[00:41:14] Speaker 04:
Well, didn't Mr. Henderson, though, then, when he told it to Mr. Sanft, Mr. Sanft came back and said, you didn't see what you thought you saw, and then he quit.

[00:41:24] Speaker 04:
So that's what the jury can make any inferences from all of that.

[00:41:28] Speaker 01:
But I guess the question here, and I think this gets to a basic point, you know, I think my friend on the other side argued this case as though if they can show there was sufficient evidence from which Mr. Samp could have been convicted of a knowing violation, then there isn't materiality under Brady.

[00:41:45] Speaker 01:
But as this court has said in Corning and Setagati and every other case, that's not the test.

[00:41:51] Speaker 01:
Even if there is sufficient evidence from which the jury could convict, the question is still whether there's a reasonable probability that the jury, and by that the Supreme Court sending Cohn, one juror,

[00:42:03] Speaker 01:
might come to a different conclusion such that you feel like the confidence in the verdict is undermined.

[00:42:08] Speaker 01:
So it's not a sufficiency test.

[00:42:10] Speaker 01:
And I do think, and I do want to make, I've got a couple more specific points, but the general point that my friend closed on that the district court saw this and the district court made this conclusion about who to believe, of course, and about materiality and how important this evidence was or wasn't, you know, review under Brady

[00:42:30] Speaker 01:
of the question of prejudice and materiality is de novo.

[00:42:33] Speaker 01:
That's, you know, Corring, Saragati, every case says that.

[00:42:38] Speaker 01:
And, of course, in the three cases on which we rely, Saragati, and Corring, and Obagi, in each of those cases the jury, the trial judge had found that the evidence should have been turned over, but wasn't, and then deemed it not material.

[00:42:53] Speaker 01:
And in each of those three cases on de novo review,

[00:42:56] Speaker 01:
the court reversed.

[00:42:57] Speaker 01:
And the reason, I think, is because this Brady goes to the fundamental fairness of the trial.

[00:43:04] Speaker 01:
It's an obligation that really can only be enforced by the judiciary in settings like this one.

[00:43:10] Speaker 01:
And so it's not a sufficiency of the evidence standard.

[00:43:12] Speaker 01:
It undermines confidence standards.

[00:43:15] Speaker 01:
and the court has an obligation to apply de novo review to it.

[00:43:18] Speaker 01:
And if one applies de novo review, I mean, whatever one thinks about Henderson, remember, Leverday described as a vital witness.

[00:43:25] Speaker 01:
Leverday said his testimony established, alone established Mr. Samp's knowledge.

[00:43:31] Speaker 01:
This is the thing that they told the jury that.

[00:43:33] Speaker 01:
They mentioned him 66 times in their closing.

[00:43:36] Speaker 01:
And we haven't talked about vouching.

[00:43:37] Speaker 04:
But you're well over your time.

[00:43:39] Speaker 04:
So, if you just wrap up in the next 30 seconds, the court would appreciate it.

[00:43:46] Speaker 01:
Well, his credibility was so important that they impermissibly vouched for the reasons we've explained in our brief.

[00:43:50] Speaker 01:
And the fact that they fought so hard after the trial was over, claiming that this evidence was irrelevant, evidence that they now say was a serious mistake not to turn over, they said at the time to us it was irrelevant and they weren't going to give it to us, and that they

[00:44:04] Speaker 01:
prepare an affidavit that turned out to be false with respect to what the contents of Mr. Leavis TV's application was.

[00:44:10] Speaker 01:
I think that tells you a whole lot about just how material the government thought this evidence was.

[00:44:15] Speaker 01:
Thank you.

[00:44:16] Speaker 04:
All right.

[00:44:16] Speaker 04:
Thank you both for your argument in this matter.

[00:44:18] Speaker 04:
This will be submitted.