United States v. Technic Services, Inc. And Rick Rushing

314 F.3d 1031 UNITED STATES of America, Plaintiff-Appellee, v. TECHNIC SERVICES, INC. and Rick Rushing, Defendants-Appellants. No. 01-30057. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 6, 2002. Filed December 23, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Lawrence A. Pederson, Paul J. Nangle & Associates, Anchorage, AK, for the defendants-appellants. James D. Oesterle, Special Assistant United States Attorney, Anchorage, AK, for the plaintiff-appellee. Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief Judge, Presiding. D.C. No. CR-00-00023-A-HRH. Before: B. FLETCHER, ALARCÓN, and GRABER, Circuit Judges. Opinion by Judge GRABER; Partial Dissent by Judge BETTY B. FLETCHER. OPINION GRABER, Circuit Judge. 1 Defendants Rick Rushing and Technic Services, Inc. (TSI), appeal their convictions for violating the Clean Air Act and the Clean Water Act, as well as the related sentences imposed. We reverse Rushing's conviction on Count 8 for lack of evidence, but otherwise affirm the convictions. With respect to the sentences, we vacate…

Opinion by Judge GRABER; Partial Dissent by Judge BETTY B. FLETCHER.

OPINION

Defendants Rick Rushing and Technic Services, Inc. (TSI), appeal their convictions for violating the Clean Air Act and the Clean Water Act, as well as the related sentences imposed. We reverse Rushing’s conviction on Count 8 for lack of evidence, but otherwise affirm the convictions. With respect to the sentences, we vacate the enhancement to Rushing’s sentence, for abuse of trust, but in all other respects reject Defendants’ arguments.

BACKGROUND

TSI is an Alaska corporation that performs asbestos-remediation services. At the relevant times, Rick Rushing served as its secretary/treasurer.

In 1995, TSI bid successfully on an asbestos-removal project at a pulp mill in Sitka, Alaska. The mill had closed in 1993 and was scheduled for demolition.

The project required asbestos removal in several buildings, but the trial focused mainly on activities in the powerhouse. The powerhouse was a large structure, containing several levels; drains in the basement floor led directly into Silver Bay, a navigable water of the United States. The powerhouse was in a state of disrepair. There were holes of all sizes in…

dissenting in part:

I dissent in part because I disagree with the majority’s holding that Rushing’s sentence was improperly enhanced pursuant to U.S.S.G. § 3B1.3. The majority, in essence, decides that the fact that a defendant is an employee of a private company means that he or she does not hold a position of public trust and, alternatively, that the enhancement is ambiguous and therefore its application violates the rule of lenity. I disagree with both conclusions.

As I explain below, I find no legally sufficient ambiguity in the Guidelines, nor do our cases hold that the public or private character of a defendant’s position controls whether he or she enjoys a public trust. See United States v. Hill, 915 F.2d 502, 505 (9th Cir.1990) (“Hill argues that truck driving is not the type of employment that can ever give rise to a position of public or private trust. We disagree.”); accord United States v. Gordon, 61 F.3d 263, 269 (4th Cir.1995) (“The abuse of trust enhancement was not designed to turn on formalistic definitions of job type.”). The fact that Rushing is not a government employee or public official, but an employee of a private company is not, as the majority suggests,…