United States v. Bingham Fox ( 2019 )

FILED
NOT FOR PUBLICATION
FEB 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30147
Plaintiff-Appellee, D.C. No.
2:16-cr-00100-RSL-1
v.
BINGHAM FOX, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted February 6, 2019**
Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,*** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
Bingham Fox appeals his conviction by jury verdict of violating the Clean
Water Act (CWA).1 See 33 U.S.C. §§ 1319(c)(2)(A) and 1321(b)(3); 40 C.F.R. §
110.3. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Fox’s
conviction.
1. Insufficient Evidence. Fox argues that the Government’s evidence was
insufficient to establish that Fox knew, during the time periods alleged in the
indictment, that the Native Sun crew members discharged oil in quantities that may
have been harmful. The district court denied Fox’s motion for a judgment of
acquittal, and we review that decision de novo. See United States v. Ambriz-
Ambriz, 586 F.3d 719, 723–24 (9th Cir. 2009). We affirm the district court’s
denial of Fox’s motion.2
“[V]iewing the evidence in the light most favorable to the prosecution,” a
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury heard
testimony that after Fox purchased the vessel and had it sailed to its new harbor in
1
As the parties are familiar with the facts, we do not recount them here.
2
Fox raised similar arguments in his motion for a new trial. The
district court’s denial of that motion is reviewed for abuse of discretion. See
United States v. Citro, 842 F.2d 1149, 1151 (9th Cir. 1988). We affirm the district
court’s denial of Fox’s motion for a new trial for the same reasons we affirm the
district court’s denial of Fox’s motion for a judgment of acquittal.
2
Blaine, Fox was “fully aware” of the leakage problems with the Native Sun. Fox’s
employee testified that the bilge levels were so high on the trip to Blaine that the
Native Sun had to pump the bilge “straight into the ocean.” The employee also
testified about one oil discharge incident where Fox was present and provided dish
soap to squirt on the sheen to “make[] the oil immediately drop to the bottom,”
instead of reporting the discharge.
Fox knew that the vessel needed to keep replenishing its oil to replace the
amount being leaked. For example, on the Native Sun’s trip to Alaska, the
testimony established that more than two gallons of oil leaked to the engine room
bilge every 24 hours, and the crew had to pump the oily bilge water at least once
every five days to keep the vessel afloat. Various crew members testified that Fox
provided them with oil-absorbent pads to try to mop up the oil in the engine room
and bilge, and he also purchased enzymes to try to treat the oily bilge water. The
evidence would allow a fact-finder to determine that Fox directed the Native Sun
crew to pump the bilge with the knowledge that the pumping system relied on
“skimming” the top layer of oily bilge water and mopping up the oil with oil-
absorbent pads. A rational jury could conclude that Fox, knowing that there was
excessive oil in the bilge and that regular pumping of the bilge was occurring
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without an oil-water-separator, knowingly directed his crew to discharge oily bilge
water.
2. Error in Jury Instructions. Fox contends that the district court erred by
failing to instruct the jury that it had to find beyond a reasonable doubt that Fox
knew the oil discharges were in quantities that may be harmful. Fox raises this
objection for the first time on appeal, and we review for plain error. See Black v.
United States, 561 U.S. 465, 473–74 (2010). We find none. The jury was
instructed on the prosecutor’s burden generally, and even if the district court erred
by failing to instruct the jury that it had to find Fox knew the oil discharges were in
quantities that may be harmful, Fox fails to show that any error in the instructions
affected his substantial rights or the outcome of the case. Fox was still able to
present his defense, which was that he did not actually know the crew members
were discharging oily wastes overboard.
3. Cumulative Trial Errors. Fox argues that several trial errors
cumulatively denied him a fair trial. First, Fox argues that the district court
erroneously required an incarcerated defense witness to testify in prison garb. The
district court did not abuse its discretion because a court has broad leeway
regarding safety issues and how to run the courtroom. Moreover, Fox did not
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demonstrate prejudice, as the witness’s testimony revealed that he was in prison
and the judge gave an instruction to the jury to disregard the attire of the witness.
Second, Fox alleges that the prosecutor’s closing argument improperly
vouched for disputed and material facts not in the record. Fox introduced into
evidence two receipts showing that he properly disposed of oily water on shore,
and he also indicated to the jury that he had more receipts. The prosecutor
addressed this in his closing argument and stated: “Ladies and gentlemen, the
government does not have these receipts. . . . You’re not seeing those receipts for
this disposal because those receipts don’t exist. And the reason those receipts
don’t exist, ladies and gentlemen, is because this disposal was not happening.” A
prosecutor improperly vouches for the government’s case when he intimates that
he has additional knowledge or information that has not been shared with the jury.
See United States v. Preston, 873 F.3d 829, 843 (9th Cir. 2017). The assertion that
the Government “did not have the receipts” that Fox claimed to have was improper
vouching because that fact was not in evidence. However, Fox failed to show the
prosecutor’s error was prejudicial. The district court instructed the jury generally
that counsel’s closing arguments were not evidence—both formally at the
beginning and end of trial, and also repeatedly throughout the proceedings.
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Third, Fox alleges that the prosecutor’s remarks criticizing the defense
theories constituted misconduct. Fox points to the prosecutor’s statements in
closing argument that the defense theories were “nonsense” and that the defense’s
opening statement “attempt[ed] to manipulate you, to play on our emotions, and to
distract you from what this case is actually about.” The prosecutor’s statements do
not rise to the level of misconduct. “Criticism of defense theories and tactics is a
proper subject of closing argument.” United States v. Barragan, 871 F.3d 689, 703
(9th Cir. 2017) (quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir.
1997)).
AFFIRMED.
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