*1 2001), this court denied Williams’ America, STATES of UNITED appealability. request for a certificate 2001). Plaintiff-Appellee, Now Cir. Nov. No. an an has filed
Williams 2244(b)(3) § pursuant to 28 U.S.C. order SNOOK, Defendant-Appellant. Ronald to consider a the district court authorizing attack. collateral second successive No. 02-2304. on v. United Relying Castro of Appeals, United States Court —
States, -, S.Ct. U.S. Seventh Circuit. (2003), argues that L.Ed.2d Williams obtain authorization because he need not Argued 2003. Jan. notice of the adequate he did not receive Decided 2004. April motion under consequences pursuing his Castro, § 2255. decided Under here, a district
after events issue pro “recharacterize se
court not litigant’s as first
litigant’s motion court informs
§ 2255 motion unless the recharacterize, litigant its intent to that the recharacteriza- litigant
warns the § subject subsequent 2255 mo-
tion will or successive’
tions the law’s ‘second
restrictions, litigant provides the withdraw, amend, or to
opportunity to clearly record
filing.” Id. at 789. The court that the district notified
establishes recharacterize
Mr. Williams of its intent to motion allowed him to add claims The appli- motion. recharacterized
cation, however, does not show that warned about
district court Williams under
consequences of recharacterization ¶ district court Assuming
§ 2255 not about restric-
did warn Williams on collateral
tions second successive
attacks, inadequate un- warnings were thus, and, prior proceeding
der Castro ¶ 2255 8. purposes
does count unnecessary we
Accordingly, Dismiss to com- application for leave
Williams’ collateral attack.
mence successive
Timothy Chapman (argued), Chicago, J.
IL, Plaintiff-Appellee. Stetler, Cyrluk M.
David J. Jonathan IL, Duffy, Chicago, (argued), Stetler & Defendanb-Appellant. COFFEY, ROVNER, and
Before EVANS, Judges. Circuit ROVNER, Circuit ILANA DIAMOND Judge. guilty one jury Ronald Snook
A found the federal conspiring count of defraud Clean violating menting compliance semiannually Water 1317(d) Act, addition, § §§ 18 U.S.C. 33 U.S.C. District. In the District conducts 1319(c)(2)(A), periodic and five counts of con- its own testing dischargers; cealing regarding material information finds that wastewater required violates limits, jurisdiction of matter within the the feder- it will issue an order cease and 1001(a)(1). cases, al government, dischargers 18 U.S.C. He desist. In such such as (RD- reports to concurrent terms of 21 Clark required sentenced are to submit imprisonment, reports) months’ concurrent documenting terms that their waste- release, $1,000 supervised Further, water is compliance. back fine, special here, types assessments. On most relevant for both of re- $600 *4 appeal challenges evidentiary ports rul- dischargers he must all submit of their ings, allegedly improper self-monitoring statements data even if it was taken prosecution during arguments, closing requirements, and addition to the minimum increase in two-level his offense level for and must dischargers notify the District abusing they within 24 U.S.S.G. hours whenever become affirm in respects. 3B1.3. We all aware of any violations. Between 1994 and 1997 In July Snook was the Snook was indicted for Manager” “Environmental Clark conspiring along Carusiello, at Refin- with Elva an ing Marketing, Inc., petroleum Manager Clark, & refin- Assistant at and Environ- Island, ery in being Monitoring Blue Illinois. Prior to mental Technologies, and Inc. Manager, Environmental company had hired Clark to test (EMT), its wastewater, worked at Clark since 1989 as an “Envi- selectively report testing Specialist.” ronmental Prior to that he results to the District and for failing to partner was a report environmental consult- violations. The indictment alleged ing firm. As Manager Environmental at between and Clark had Clark, two of his ensuring duties included EMT test its wastewater on numerous oc- refinery’s compliance many with environmen- casions and of the tests revealed tal regulations overseeing violations; and its yet wastewa- Snook submitted a number system. ter day, treatment Each Clark of RD-114 reports and RD-115 on behalf discharged average on a million gal- over of Clark only that indicated results for six (the lons of processed days into a wastewater sewer minimum required) on which system that flowed into a water treatment Clark’s applicable wastewater satisfied plant Metropolitan standards, Water Reclama- he any and omitted results that (District). tion Chicago addition, District Greater showed violations. In the indict- Relevant this appeal alleged falsely are District’s ment that Snook told an (EPA-approved) regulations of inspector Clark’s for the EPA selectively that the discharges. wastewater reported was data data Clark had collected. In January jury found The District’s Sewage and Waste Con- guilty conspiracy and concealing trol prohibits Ordinance Clark from dis- material regarding information a matter (1) charging water with a concentration of within jurisdiction of the EPA. pollutants fats, oils, greases such as greater (2) 100 milligrams than per liter or I. pHa level lower than 5 or than greater requires dischargers ordinance such On appeal, primary argu Snook’s as Clark compliance to self-monitor their ment district court erred in (RD-115 reports reports) submit excluding docu- evidence purporting show that EMT, might or the evidence still have selectively reported pri- results had
Clark becoming Man- evi- properly Environmental been excluded absent further or to Snook reported selectively told, trained, EMT and that that he or other- ager dence past. clients in the results other wise reporting led to believe that selective relevant to this evidence was contends that he proper procedure. (Perhaps was the mind, that he believed showing state of they practices was aware of the and told was the established reporting selective illegal were or was told or trained to do legal. it was otherwise.) practice apt the district court’s Thus that absent The district court concluded “[ujnless some description there’s that Snook was even aware any evidence defendant, dealing all link-up to we’re any probative practices, minimal of these I infer- with is what believe are various out- might value evidence upon speculation.” ences inferences misleading, weighed potential its to be Therefore, given lack of evidence R. confusing. prejudicial, Fed. Evid. theses practices he was aware of court’s deci- 403. We review district they legal, he was ever told were discretion and will affirm sion for abuse of district court did not abuse discretion in its long it was reasonable. United it so *5 excluding this evidence. (7th 627, Thomas, 630 v. States .2003). Cir II. First, Al preliminary matter. argues Snook next district court though argues that evidence pres- to allowing government erred in counts, his relevant to all six beliefs
was
ent
acts”
Fed. R. Evid.
“other
evidence.
le
reporting
about whether selective
was
404(b). A former EMT technician testified
to
one.
con
gal were irrelevant
count
To
1993
either 1992 or
he returned
conspiring
for
to violate
vict Snook
what
hazard-
samples of
he believed to be
Act, which,
part,
in relevant
Clean Water
Clark,
ous
to
and Snook told him
materials
“[kjnowing
penalties
criminal
for
imposes
to
materials at or near a
dispose
violations,”
1319(c)(2)(A),
U.S.C.
33
argued that this was
canal dock. Snook
only
to
government
prove
needed
pro-
offered to
improper evidence
show
knowledge
underlying
had
laws;
pensity to
environmental
violate
he
facts and not that
knew
conduct
motive,
it
government argued that
showed
Wilson,
illegal.
v.
133
was
United States
404(b),
intent,
Fed. R.
plan,
and
see
Evid.
(4th
Cir.1997);
F.3d
262
United States
i.e.,
motive, intent, or
to save
plan
Snook’s
Sinskey,
F.3d
715-17
Cir.
v.
not
with
money
complying
for Clark
Ho,
1997); see
also United States
court ad-
procedures. The district
proper
(5th Cir.2002) (Clean
Air
F.3d
testimony
but instructed the
mitted
denied,
Act),
cert.
539 U.S.
S.Ct.
intent,
jury
only as to Snook’s
regard
it
(2003).
2274,
reports prepared signed by Snook that nothing heard nothing, that backs up those (2) data, only revealed favorable more Third, representations.” in discussing the complete reports prepared Clark from count, conspiracy the prosecutor stated period showing the same numerous viola- you “[a]ll find is that [Snook] tions that were not turned over to the agreed violations, report not to and the (And challenged District. never evidence basically uncontroverted fact that he engaged report- in selective instance.” Second, ing.) employee, an EMT Nick (1)
Preys, testified that Snook contacted The Fifth Amendment prohibits (2) Clark; perform him to testing in- prosecutors inviting jurors from to draw him provide types structed of re- adverse from a inferences defendant’s de data, ports: testing one with all and one cision not to testify commenting, either passing data showing results for *6 directly indirectly, or on that decision. separate during days testing peri- six Mietus, United States v. 237 F.3d (3) 871 od; Preys later pre- instructed (7th Cir.2001); Robbins, United States v. pare reports using RD-115 for Clark only (7th Cir.1999). 197 F.3d 835 Indirect passing Third, assistant, data. Snook’s improper comments are pros either the Carusiello, testified that Snook showed her ecutor manifestly intended to refer to the portions of reporting the District’s ordi- jury defendant’s silence a would natu acknowledged nance and to her that viola- rally necessarily take the comments reported tions needed to be within 24 be a Mietus, remark on Fourth, that silence. 237 government hours. submitted F.3d at 871. that correspondence government Comments from Snook the District evidence is unrebutted are acknowledged improper in which he data all if the only person must be defendant was the reported. submitted and violations Fifth, could an EPA investigator testified rebutted evidence. If Id. prosecutor’s repeatedly him that told the selec- statements are improper, tively reported all that we data was determine whether the had defendant was Sixth, prejudiced, collected. two environmental ex- whether the statements ren perts testified that dered reporting require- the trial deny so unfair as to knowledge Robbins, ments were common among defendant process. due 197 F.3d those in the environmental field. at Finally, government established that
had worked for a of number The context of the first evidence, environmental field. prosecutor Given statements reveals that the fail we to see prejudiced commenting how Snook was on Snook’s case rather than by the testimony. technician’s on his to testify. decision not The first
445 (“And overwhelming prejudiced is because what the defendant’s statement guilt, after a above. as a transition evidence his discussed response?”) came Mietus, 873; case and at summary government’s Xiong, 237 F.3d See put on summary of the case F.3d at 676. just before (“I’ve statement The second by Snook. rv. those nothing up nothing, backs
heard
to state-
response
representations.”)
Finally,
challenges
that the
made
counsel
ments
Snook’s
decision to
a two-
impose
district court’s
report-
that selective
would show
evidence
abusing
increase in offense level
level
procedure at Clark
was the established
ing
The
trust. U.S.S.G.
3B1.3.
(this referred
taught
one
to Snook
and the
appropriate
increase is
when a defendant
above
evidence discussed
to the excluded
occupies position
of trust and abuses
I).
statements,
following both
part
And
significantly
a crime.
facilitate
jury
the district court reminded
Cruz,
States v.
F.3d
not Snook had
Mabrook,
Cir.2003); United States v.
proof.
States
See United
burden
(7th Cir.2002).
No for
301 F.3d
Cir.2001)
Wilson,
827, 835
237 F.3d
categories
mal labels or
dictate when
instructions).
follow
(juries assumed
in
occupies
position;
defendant
such a
comments
statements were
Because these
relationship
we look to the
between
stead
rather
of Snook’s case
on the weakness
defendant and the victim and the level
silence,
improper.
they
were not
than
responsibility
given.
the defendant was
Xiong,
262 F.3d
See United States
Mabrook,
Affirmed. trust,” including, “embezzlement of a COFFEY, Judge, dissenting. Circuit client’s an attorney serving funds as a guardian, a bank executive’s fraudulent I agree the majority’s presentation scheme, loan or the criminal sexual abuse issue, of the facts at I and concur with the *8 of a patient by physician a guise under the majority’s decision to affirm Snook’s con- of an examination.” Id. However, viction. I join major- cannot the ity’s sentence, decision to affirm us, In the before trial judge case the because, Snook, notwithstanding majority’s the as- found that as the Environmental contrary, sertion to I agree the do not Manager private that at a petroleum refinery (as (Clark), a of occupied “position “position trust” held a of trust” vis-a-vis Guidelines) that term in public.1 Moreover, is used the vis-a- the the court conclud- sentencing, 1. At the phrases objection court used the dant’s [the use of ... Section] "position private "position of trust” and 3B1.3 position [enhancement of for of] violation fact, interchangeably, private trust” and in at of trust.” Sent. 20. Tr. at Elsewhere point, purported however, one ruling, to "overrule the defen- in its oral the court made
447 added); see, Mabrook, e.g., Act by violating phasis the Clean Water 301 F.3d that ed (“CWA”) and stat- regulatory (noting fiduciary “health at 510 that a defendant’s —a criminal activity in engaged duty ute”—Snook company vis-á-vis the investors in his effect “potential physical had a direct trust). that him in position a of placed ... ... such that the general public on the placed Thus the victim must have the de- violating position ... adjustment ... a in a position fendant where he or she is Tr. at appropriate.” trust Sent. [wa]s of function,” “fiduciary a performing or exer- This the district 19-20. Court “review[s] cising discretion over the affairs. victim’s the de application court’s of enhancement Howe, 489, Varity Corp. See v. 516 U.S. finding review[s] novo 504, 1065, 116 S.Ct. 130 L.Ed.2d position under the occupied such [Snook] (1996). Indeed, noting it is worth clearly erroneous standard.” “every example an in the of abuse of trust Mabrook, v. 301 F.3d States Commentary ... involves en- a victim .2002). Cir trusting agent employee with discre- 3B1.3, the As set forth under Section Broderson, 67 F.3d at tion.” only applies of trust” enhancement “abuse Applying principles these to the instant possessed requisite where defendant case, it is occupy clear that Snook did not discretion, and, further, level of where of “position trust” vis-á-vis was “entrusted discretion defendant simple reason that he did not serve v. Broder victim.” United States (or fiduciary quasi-fiduciary) capaci- even (2d Cir.1995) son, (empha 67 F.3d respect victim, ty public. to his added). is, “position of trust” sis That fiduciary cannot first One be a without per- determination is assessed “from the being placed position by in that spective the victim.” United States beneficiary relationship. claimed (7th Cir.1994). Hathcoat, 913, 919 30 F.3d Falk, Lopacich v. 5 F.3d Moreover, fiduciary nature recognizing Cir.1993) (“In order to evidence establish relationships forth as of the “trust” set relationship, fiduciary plaintiff of a examples in attor- commentary' i.e., — reposed must show that she confi- [first] client, ney/client, bank executive/bank ”). in the .... dence defendant relationships doctor/patient —courts place position did that, qualify emphasized “position as a Manager, “en- trust,” Environmental and thus guideline enhancement re- “[t]he him to comply trust” with the Clean Water more a mere that the quires showing than reporting requirements. Act’s victim had the defendant. confidence employee, thus not a Something fiduciary akin to a more func- as a Brun could not be considered classified required.” tion is United States v. (10th Cir.1995) (em- son, employ- servant nature of his 54 F.3d all, applies, defendant clear that Section 3B1.3 hancement if the its pub upon occupies a was based Snook’s viola- vis-a-vis enhancement White, noting tion of a lic. See United States (6th Cir.2001) ("The en uniquely abuse-of-trust the CWAwas “a statute [wa]s statute, applied regulatory be where the health and hancement [and *9 presented] with the poten- defendant abused a of trust Snook's violation thereof Thus, conduct.”) charged the physical public the of his as tial direct effect on the and victim done, by majority has I will the district public trying to be assume served here, Where, applied the enhancement on the basis MWKD." Id. at 19-20. as court pub activity alleged of the criminal was violation victim defendant's general public, the 3B1.3 en- lic trust. Section private employ- ment. Nor was he even a general, as any private does citizen who subject ee professional licensing re- files a tax return or drives a vehicle on quirements, and therefore entrusted to public roadways, nothing but more. by abide in certain standards order to If any party in this scenario was a fidu- maintain trust in public’s profession ciary public’s of the environmental welfare (such as a or an physician attorney). and health safety, it was the District Office Rather, Snook was a employee, (not or district Snook), Clark or officer Clark, by public, selected and not the insofar as the District was ultimately re- corporation’s compliance monitor the with sponsible ensuring compliance Clark’s Clark, Act. Clean Water And it was applicable regulations. The District reposed and not the who its confi- (or command) the district in officer per- in fiduciary dence Snook such that a rela- formed numerous inspections unannounced tionship may have been created. To be of Clark’s water discharge to ensure its sure, may the public have “trusted” Snook compliance anywhere from two to seven — to obey applicable environmental regula- per year tests during tions, as it any “trusts” citizen to abide through 209-210, 1996. See Tr. at 217-18. any law protecting matters in the public And, whenever Clark was found not to be (such laws, interest as drunk driving in compliance, the District issued cease laws, laws, speeding driving reckless anti- and desist orders to Clark to enforce com- laws, theft protection and environmental pliance. Indeed, Id. at 230. the fact that laws, etc.). But did not entrust the District monitored discharge Clark’s (in placing fiduciary the sense of annually levels two to seven times —some Snook) obligation on duty with the of pro- per year assure compliance belies the —to tecting its health and welfare in interests Clark, Government’s claim that it was environment; when Clark selected District, not the who was trusted to comply Snook to serve its as Environmental Man- with the CWA and regulations. attendant ager, he did not take oath of office or swear to provisions abide The majority disagrees, arguing that be- Clean protect Water Act and cause the District does not have the re- pollutants from system. its water Thus fully sources to monitor or ensure Clark’s certainly acting was in the ca- compliance CWA, (and with the Clark pacity an agent or employee of the officer) Snook, as its occupied a “position general Broderson, public. See 67 F.3d at of trust” public. vis-a-vis the Opinion See (“Snook at 445 given discretion ... decide when to conduct testing
The fact [water] regulatory District’s although [and] regime periodically District did involved an element of self-report- ing (and conduct its duty part testing, on own Snook, of Clark was for the part most agent) dependent Clark’s change does not on the data that Although' reported.”). result. But have been this is true of responsible many certifying regulatory IRS, Clark’s water frameworks—-the quality reports for example, to the District certainly accor- does not have CWA, dance with the enough “whatever every ‘trust’ resources to audit defaulting [the placed defrauding taxpayer annually. Thus, district] [entirely] [Snook] based on explicit we extend majority’s reasoning to the commands of arena, [the CWA and regu- related IRS every then corporate executive Thus, lations].” Id. Snook had legal bare &(cid:127)corporation’s certifies tax return to statutory obligations in the occupies IRS a “position of public *10 public reporting to a in his trust,” may subject “position Sec- trust” and thus be FDA, false filing a FDA findings though enhancement to the even the tion 3B1.3 every rea- though even he has entity ultimately responsible tax return the for en- is gave his client him accurate to believe public danger- son that the from suring is safe Broderson, 67 F.3d at See information. pharmaceuticals. ous (“[t]he theory so government’s seems to avoid Seeking this extension of their might reaching far that it and] [expansive majority logic, would limit anyone commanded virtually who is cause public of the trust enhancement to crimi to report to make an accurate by statute “pub activities that issues of implicate nal subject to a Section be However, it on what lic health.” is unclear [including] .... tax- enhancement 3B1.3 distinction, majority basis makes this .... file false tax returns We payers who for no “health welfare” distinction is that fairly is obvious believe anywhere found in the text of the Sen be no Sentencing Commission harbored Indeed, tencing Guidelines themselves.2 be so intent the enhancement [such] nothing sug in the Sentencing Guidelines sweeping.”). public gests trust enhancement an absurd re- Certainly, would be in a apply different manner when should sult, pri- a corporate a officer who is safety of health and are con issues private corporation, a is employee of vate yet cerned—and that is the exact distinc “fiduciary” public agent not a majority tion the into the Guidelines reads (even may though reporting his fraudulent opinion. Opinion in the instant at 9-10 See by impos- harm significant public to the do (noting “public trust enhance taxpayers). burden ing a heavier on other apply ordinary private ment” would a re- absurd is the notion that Equally by self-report who failed to citizens abide a wonder scientist discovers search (such taxpayers), but ing requirements as approved Food and drug is apply that it does citizens such as Snook (“FDA”), later Drug Administration but is “regulations [that] because Snook violated effects, dangerous to have side discovered signifi apply directly to matters that subject “posi- could be a Section 3B1.3 public’s and safe cantly affect health public tion of trust” enhancement. Under ty”). a majority’s expansive reading, such Moreover, save for First Circuit’s may negligently per- scientist who research, a opinion would have abused United States v. Gonzalez-Alva- formed occupied trust be- Curiously, majority States v. dant cites United Cir.2001) White, he, servant, "charg[ed] cause reporting support of the distinction between wa- District’s] the control the Water [with (where concerning “public health” crimes purification apparently little ter efforts with applicable) and all other re- enhancement Thus, oversight.” Id. the Court or no at 372. (such filing porting a false IRS crimes "quasi-fiduciary "imputed” the trust relation- return). Although did find the White Court ship customers” between District and its where the defendant an abuse Id. at 373. to White. wrong, had committed environmental case, contrast, did not serve In this case, distinguishable White is from the instant general as it was insofar wrong- that it involved the environmental refinery water governmental and not oil doings of an officer of a local Water District— Thus, quasi-fiducia- provider. there exists no entity, governmental private cor- and not a relationship ry between Clark and payroll poration public's was on the —-who is, imputed employees be to Clark's clearly duty public. had a That Snook). (including that the defen- Sixth Circuit concluded *11 450 (1st (6th Cir.2003) Cir.2002),
rez,
(holding
277
no
Superin
F.3d
the
(including
circuit court
the Seventh
other
a city’s
plant
tendent of
water treatment
Circuit)
public
has extended the
trust en-
public
of
he
position
held
trust because
individuals who work
hancement
employee, charged
was a “government
protect
regulated
in industries that are
with
and efficient
of a
operation
the safe
exactly what
public health but this is
the
operation”);
wastewater
treatment
Tech
by
majority has chosen to do
announc-
the
Services,
nic
314 F.3d at
(concluding
1050
it sets
ing
“public
the
health” distinction
secretary
government
of a
con
the
fact,
today.
In
the Ninth Circuit
forth
charge
clean-up
tractor in
of asbestos
did
in
rejected such a distinction
expressly
position
public
not hold a
of
because
Services, Inc.,
United States v. Technic
relationship
gov
he had
trust
“no
with the
(9th Cir.2002),
that,
noting
relative to victim Appeals, States Court of Garrison, States Seventh Circuit. Cir.1998). 14, 2004. Argued Jan. a defendant’s egregious how No matter April Decided conduct, of trust en- 3B1.3’s abuse Section him applied against may not be hancement of trust vis-a- occupied position
unless he victim, abused that
vis In the factual his crime.
trust to facilitate us, fact that presented
situation govern- employed was not rather, refinery), (but, oil
ment envi- with the fact
together to the Dis- submitted reports
ronmental by the District
trict were “monitored” (some two to sampling random
through that Snook per year) reveals
seven times fiduciary personal
did not have (or victim,
relationship with the District). Thus, fiduciary, victim’s trust enhance- 3B1.3
the Section reason, the apply. For this
ment does
sentencing court’s clearly to Snook was
trust enhancement
erroneous; imposed I would reverse resentencing. and remand for
sentence