United States v. Stephen Swift , 424 F. App'x 644 ( 2011 )


Menu:
  •                                                                              FILED
    NOT FOR PUBLICATION                               MAR 25 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-10376
    Plaintiff - Appellee,              D.C. No. 1:08-cr-00577-DAE-2
    v.
    MEMORANDUM *
    STEPHEN SWIFT,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Hawaii
    David A. Ezra, District Judge, Presiding
    Argued and Submitted March 16, 2011
    San Francisco, California
    Before: NOONAN, FERNANDEZ, and CLIFTON, Circuit Judges.
    Stephen Swift appeals his convictions for the unlawful transport of
    hazardous waste without a manifest, in violation of 
    42 U.S.C. § 6928
    (d)(5), and for
    the unlawful storage of hazardous waste without a permit, in violation of 42 U.S.C.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    § 6928(d)(2)(A). Swift makes four arguments on appeal, which we address in turn.
    For the reasons below, we affirm.
    First, Swift argues the evidence was insufficient to convict him of
    transporting hazardous waste without a manifest because 
    42 U.S.C. § 6928
    (d)(5)
    only penalizes generators, not transporters, of hazardous waste who lack a
    manifest. Because Swift failed to raise this issue below, we review for plain error.
    Puckett v. United States, 
    129 S. Ct. 1423
    , 1428-29 (2009). There was no error
    here. The applicable statute criminalizes hazardous waste transport without a
    manifest by “any person,” and its federal and state implementing regulations
    require transporters to have manifests during hazardous waste transport. See 
    42 U.S.C. §§ 6928
    (d), 6928(d)(5); 
    40 C.F.R. § 263.20
    (a)-(c); Haw. Admin. R. § 11-
    263-20(a)-(c). The statute’s criminal penalties apply to Swift.
    Second, Swift argues that he was improperly convicted of two counts of
    unlawful transport instead of a single count. We also review this issue for plain
    error because Swift did not raise it below. Swift has not cited to any case law, in
    this circuit or any other, specifying the correct unit of prosecution for 
    42 U.S.C. § 6928
    (d)(5). It is unclear whether analogies to other criminal transport statutes
    apply because the act of transporting hazardous waste is more dangerous than
    many other types of transport. Cf., e.g., United States v. Carter, 
    804 F.2d 508
     (9th
    2
    Cir. 1986); United States v. Kitowski, 
    729 F.2d 1418
     (11th Cir. 1984); United
    States v. Johnpoll, 
    739 F.2d 702
     (2d Cir. 1984). In light of the above, no plain
    error occurred because Swift’s argument is “subject to reasonable dispute.” See
    Puckett, 
    129 S. Ct. at 1429
    .
    Third, Swift argues the evidence was insufficient to convict him of
    transporting hazardous waste without a manifest because there was a manifest.
    The standard of review is again plain error because Swift did not make this
    argument below. The district court did not err because Swift stipulated to lacking a
    manifest for his transport of hazardous waste.
    Fourth and lastly, Swift argues that the district court erred in excluding
    evidence of a government witness’ prior conviction. Swift initially advocated for
    abuse of discretion review but then argued for review de novo. Even assuming,
    without deciding, that de novo is the correct standard of review, we find that no
    error occurred. Although the witness’ conviction was for making a false statement,
    it occurred eighteen years before the time of trial. Its probative value does not
    substantially outweigh its prejudicial effect. See Fed. R. Evid. 609(b).
    AFFIRMED.
    3
    

Document Info

Docket Number: 10-10376

Citation Numbers: 424 F. App'x 644

Judges: Clifton, Fernandez, Noonan

Filed Date: 3/25/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023