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United States v. Aerolite Chrome Corp.

*fn* submitted san francisco california: March 9, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
AEROLITE CHROME CORPORATION, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada. DC No. CR-N-90-6-HDM. Howard D. McKibben, District Judge, Presiding

Before: Goodwin, Noonan and T.g. Nelson, Circuit Judges

MEMORANDUM

Defendant Aerolite Chrome Corporation (Aerolite Chrome) appeals its conviction on 11 counts of knowingly discharging pollutants in violation of pretreatment standards. Aerolite Chrome claims that its motion of acquittal should have been granted when its sole corporate agent was acquitted of the same conduct. Aerolite Chrome also contends that its motion to suppress should have been granted because of deficiencies in the search warrant and accompanying affidavit. We affirm the conviction.

FACTS

Arthur Thomas was the majority shareholder and sole officer of Aerolite Chrome Corporation. Aerolite Chrome entered into a partnership with Rich Romero, Armen Thomassian and Matthew Thomas to form Aerolite Plating Company (the partnership), which was in the business of plating steel parts with various metal coatings. There has been no dispute that Aerolite Chrome is responsible for the acts of Aerolite Plating Company.

In 1986 the partnership was issued a zero discharge permit by the City of Reno which allowed discharge of only domestic use water into the sewer system. The permit was issued after the partnership and the City reached an agreement requiring the partnership to install a deionization unit, which would allow recycling of the rinse water, and seal the drains located in the plant floor.

In 1987 the City received reports of unlawful sewer discharges by Aerolite Plating. The City installed a manhole outside of the Aerolite Plating facilities and set up equipment to monitor the pH level and metallic content of the discharges from the Company. Based upon sewer samples revealing discharges with unlawful pH levels and metallic content, an Industrial Waste Inspector for the City of Reno, Dennis Dobyns, obtained a warrant to search the premises of Aerolite Plating. Officials were not on the premises the day the warrant was issued when an unlawful discharge occurred. Instead of executing the warrant, officials chose to obtain a new warrant and execute it the following day after rinse water was unlawfully discharged into the sewer.

Upon executing the warrant on February 24, 1988, Dobyns found Aerolite Plating employees Tony Zulim and Arturo Moreno in the plant. A discolored liquid was being pumped from the plant floor to a toilet in a nearby bathroom. The sink faucets in that bathroom were turned all the way on. Zulim claimed that the rinse water was being pumped off in response to a one-time emergency.

PROCEEDINGS

Based on the elevated sewer discharges which occurred during the surveillance period prior to the search warrant being executed, Aerolite Chrome and Arthur Thomas were indicted on eleven counts of Discharge of Pollutants in Violation of Pretreatment Standards, 33 U.S.C. §§ 1317(d) and 1319(c)(2)(a). Aerolite Chrome and Arthur Thomas moved to suppress the evidence obtained during and as a result of the search warrant on the grounds that the warrant was overly broad and anticipatory and based upon intentionally false statements. The motion was denied by the district court.

After a six-day trial, the jury acquitted Arthur Thomas of all eleven counts and convicted Aerolite Chrome of the same counts. The district court denied Aerolite Chrome's motion of acquittal. Aerolite Chrome was sentenced to five years of unsupervised probation and a $55,000 fine. A timely notice of appeal was filed by Aerolite Chrome.

ANALYSIS

A. Corporate Conviction v. Agent Acquittal

It is well-settled law that a corporation can act only through its officers and agents. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 419 (9th Cir. 1977). From this maxim, Aerolite Chrome argues that it cannot be held criminally liable where its only officer and agent was acquitted of the identical charges. The district court denied Aerolite Chrome's motion of acquittal which was based on this argument. The standard for reviewing a court's denial of a motion for acquittal is whether the evidence, considered in the light most favorable to the government, is ...


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