CHAPTER 46: ENVIRONMENTAL LAW 763
Mike Wylie, described how he began at the westernmost drainage of the property and moved across, finding “flowing open water” north of
the site and boat points on the western portion of the property “at the confluence of two tributaries.” These tributaries had “strong flow” and
FN19.Id. at 2227.
The evidence presented at trial is also sufficient by the measure of federal waters offered by the concurring justices. They concluded that the
FN20.Id. at 2248 (Kennedy, J., concurring).
A four-justice dissent found that United States v. Riverside Bayview Homes, Inc.FN21 controls the definition of waters of the United States and
FN21.474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).
FN22.126 S.Ct. at 2244 (Stevens, J., dissenting).
In sum, the evidence presented at trial supports all three of the Rapanos standards and the jury’s finding that Lucas, Thompson, and Wrigley
were “guilty beyond a reasonable doubt” “of knowingly causing the discharge of pollutants from a point source into waters of the United
States without a permit as required by Section 404” of the CWA; that Lucas, Thompson, and Wrigley were guilty of “knowingly causing the
FN23. Defendant Lucas’s Brief at 38.
FN24.United States v. Nevers, 7 F.3d 59, 61 (5th Cir.1993) (reviewing de novo the question of unconstitutional vagueness); Haspel &
Davis Milling & Planting Co. v. Bd. of Levee Comm’rs, 493 F.3d 570, 575 (5th Cir.2007) (reviewing de novo denial of a motion to
dismiss).
FN25. The District Health Officer for the Jackson County office of MDH informed Thompson in 1997 that the septic systems that he
approved in wetland soils violated state law. On June 3, 1999, the Corps of Engineers issued a cease and desist letter ordering Lucas
to stop putting filled or dredged material into wetlands. On August 4, 1999, an EPA Administrative Order ordered Lucas to stop fill
FN26.Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493, 507 (5th Cir.2001).
the landowners were well aware that at least a significant portion of their land was a wetland; if they wished to protect themselves from
liability they could have applied for a permit and thus obtained a precise delineation of the extent of the wetland, as well as the activities
permissible on the land.FN27
FN27.715 F.2d 897, 917 (5th Cir.1983).
At trial, the Government presented evidence that one of Lucas’s employees told Lucas that the property might contain wetlands, and that the
764 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN28. Direct Examination of John Mizelle. Q: “But when you were working for Mr. Lucas in doing the work you described, you told
him that there might be a problem here and you knew about it; right?” A: “Possibly yes, sir.” Q: “And that problem was that you
were working in wetlands and thought you were; is that correct?” A: “I thought I was, yes, sir.” Q: “And you raised that issue with
Mr. Lucas?” A: “At one point, yes, sir.” * * * Q: “So you explained to Mr. Lucas that the county [at another job that Mr. Mizelle
worked on, unrelated to BHA] had gotten in trouble and had been fined for digging, trenching, side casting in wetlands, is that
correct?” A: “Well, yes and no. I mean, [at the county job] I was working strictly in the water-in the running creek or running bayou.
FN29. Direct Examination of Phillip Johnson.
*329 IV
A
We now turn from the jurisdictional question of whether the wetlands were waters of the United States, to challenges to the sufficiency of the
FN30. Counts 30-32 charged Lucas, Wrigley, and Thompson; Counts 33-39 charged Lucas and Wrigley, and Counts 40-41 charged
Lucas.
Defendants challenge the sufficiency of the indictment with respect to the Section 402 charges, arguing that “[b]ecause the regulation
FN31. Defendant Lucas’s Brief at 33.
FN32. Memorandum in Support of Motion to Dismiss Clean Water Act Courts (30-41) For Failing to Charge an Offense, at 3-4.
FN33. Government’s Brief at 51.
Even if Defendants abandoned their argument that septic systems are not a point source, and it appears they have not, there remains the
broader argument that the indictment is insufficient because Section 402 NPDES permitting requirements do not apply to individual septic
systems. Because the NPDES program requires permits for point source discharges and for certain treatment works, the definition of a point
source is inherent to the applicability of NPDES permitting to septic systems.
122.1(b)(2) describes other sources (treatment works) that must meet additional sewage sludge requirements as part of the NPDES permitting
process. Section 122.1(b)(2) provides,
FN34. Emphasis added.
Treatment works under § 122.1(b)(2) do not include septic systems.FN35 Thus, the NPDES permitting requirement applies to two types of
FN35.See infra note 38 and accompanying text.
The crux of Defendants’ argument is that because septic systems are not treatment works under § 122.1(b)(2), they cannot be subject to
NPDES permitting. But as the Government argues, treatment works are defined separately from point sources in the regulation: point sources
FN36. Emphasis added.
FN37. Government’s Brief at 52.
Section 122.1(b)(1) defines the sources requiring NPDES permits, namely point sources that discharge pollutants into U.S. waters. Section
122.2, and this definition “does not include septic tanks or similar devices.”FN38 But § 122.1(b)(2) does not address the sources under §
122.1(b)(1) to which NPDES permitting applies. Rather, it implements NPDES permitting for certain sources of sewage sludge subject to special
sludge disposal requirements under the CWA.
FN38.40 C.F.R. § 122.2.
The background material to the amendments incorporating sewage sludge disposal into the NPDES permitting program confirms this reading
FN39.54 F.R. 18716 (EPA 40 C.F.R. § 122, 123, 124, and 501, May 2, 1989).
By exempting individual septic systems from these technical sludge disposal and treatment standards, EPA prevented homeowners and other
FN40.Id.
FN41.See id. (“To regulate individual septic tanks (whether serving one or several households) [under the sewage sludge disposal
regulations] obviously would be extremely difficult and inefficient. It would also be impractical in terms of achieving environmental
results since the owners and operators of septic tanks have no effective control over the actual disposition of septage pumped from
FN42.See id. (“Part 122 contains a second part to the definition of ‘treatment works treating domestic sewage.’ It provides that the
Regional Administrator may designate a particular facility as a ‘treatment works treating domestic sewage’ for the purpose of CWA
section 405(f) where necessary to protect public health and the environment from poor sludge quality, use, handling or disposal
practices, or to ensure compliance with 40 CFR Part 503. This enables the Regional Administrator to carry out the intent of Congress
FN43. We recognize that we have not formerly encountered a case charging an operator of a septic system with failure to obtain an
NPDES permit. This is likely because few cases have presented us with these unique circumstances, where a developer hired an
engineer to approve and install septic systems directly in wetlands that are waters of the United States, thus making a system that is
typically a diffuse, non-point source into a point source.
FN44.See 40 C.F.R. § 122.3.
We have never addressed whether the Clean Water Act can require NPDES permits for septic systems, but by the language of the Act the
septic systems at issue in this case are point sources that discharged pollutants into waters of the United States and required NPDES permits.
FN45.126 S.Ct. at 2227 (emphasis added) (quoting S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 105, 124 S.Ct. 1537,
158 L.Ed.2d 264 (2004)).
The Court, in determining that intervening conduits can be point sources, cited to United States v. OrtizFN46 and Dague v. Burlington.FN47 In
FN46.427 F.3d 1278 (10th Cir.2005).
FN47.935 F.2d 1343 (2d Cir.1991).
FN48.427 F.3d at 1281.
FN49.Id. at 1279-81.
FN50.33 U.S.C. § 1311, the statute addressed in Dague, uses the definition of point source from 33 U.S.C. § 1362 (see Dague, 935
F.2d at 1354) and is identical to the definition of point source for NPDES permitting contained in 40 C.F.R. § 122.2. Section 1362, like
§ 122.2, defines point source as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,
FN51.935 F.2d at 1355.
CHAPTER 46: ENVIRONMENTAL LAW 767
FN52.Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (1980) (quoting 33 U.S.C. § 1362(14)).
Several district courts have found that pollutants discharged from failed septic systems into navigable waters are point sources for the
purposes of the Clean Water Act. In United States v. Evans, where the “discharge alleged [was] overflow from a septic tank,”FN53 the Middle
District of Florida held that “the affidavits established that pollutant was being discharged from a point source into the creek.”FN54 In that case,
FN53.No. 3:05-cr-159(S3)-J-32MMH, 2006 WL 2221629, at *27, 2006 U.S. Dist. LEXIS 94369 at *90, n. 32 (M.D.Fla. July 14, 2006).
FN54.Id. at 39, 2006 U.S. Dist. LEXIS 94369 at 132.
FN56.No. 03-5450, 2005 WL 1490331, at *6, 2005 U.S. Dist. LEXIS 12652 at *17 (D. Minn. June 23, 2005).
FN57.Id. at 6, 2005 U.S. Dist. LEXIS 12652 at 17-18.
FN58.738 F.Supp. 623 (D.R.I.1990).
FN60.Id. at 627.
FN61.Id.
FN62.Id.
The septic systems on BHA are not a communally-used septic system or a straight-pipe system and are not privately owned treatment works.
However, the evidence produced at trial was sufficient to support a finding that they were a point source and could be subject to NPDES
FN63. Defendant Lucas’s Brief at 55.
First, that the defendants knew that they were discharging or causing to be discharged pollutants; Second, from a point source; Third, that
FN64. Emphasis added.
These instructions did not establish that a septic system was a point source; they required the jury to find beyond a reasonable doubt that
element of the crime. As the court found in overruling Thompson’s attorney’s objections to the instruction, “the essential element[ ]-Element
No. 2 requires the jury to find beyond a reasonable doubt that there is a point source without telling them what it is. It’s up to them to decide
based on the evidence that *335 they’ve heard whether these septic tanks even qualify as a point source.”
FN65.141 F.3d 803 (8th Cir.1998).
FN66.Id. at 810.
The Government argues that Congress amended the CWA in 1987 to broaden criminal liability under the Act and in doing so, provided that its
FN67. Government’s Brief at 79 (quoting H.R.Rep. No. 99-1004 at 136 (1986) (Conf. Rep.); H.R.Rep. No. 99–189, at 29-30 (1985)
(emphasis added)).
FN68. Government’s Brief at 80-81.
In Abston Construction Co., we addressed the question of causation in the context of defining a point source of pollution. The Sierra Club
FN69.620 F.2d at 43.
FN70.Id.
FN71.Id. at 44.
FN72.Id. at 45.
FN73. The opinion referred to the Clean Water Act by its full name, the Federal Water Pollution Control Act.
FN74.Id. at 45.
This case did not apply specifically to NPDES permits, however. Defendants’ activities in constructing the septic systems fall somewhere
FN75. Defendants provided evidence that the state and the EPA had determined that they would not prosecute installers at BHA for
temporary repairs of septic problems that Defendants claimed at trial were the lot owners’ responsibility. The Government
presented evidence that Lucas did not follow required procedures for the repairs and attempted to repair at least one septic system
on an uninhabited lot that he wished to re-sell.
FN76.2006 WL 2221629, at *27, 2006 U.S. Dist. LEXIS 94369 at *108.
FN77.Id. at 27, 2006 U.S. Dist. LEXIS 94369 at 108-09.
FN78.738 F.Supp. at 626, 635.
Defendant Lucas hired M.E. Thompson to design and certify the septic systems that discharged pollutants into navigable waters. Although
Defendants’ personal septic waste was not the waste that entered federal wetlands, the attempted technical distinction between the
“discharge of any pollutant” and “causing” this discharge is unavailing here. The lot owners eventually used the systems, but Defendants were
the cause of their operation and their unlawful discharge from the systems. At minimum, they aided and abetted the operation of the septic
FN79.United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).
FN80.543 U.S. 462, 474, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005) (citing Price v. Vincent, 538 U.S. 634, 637-38, 643-43, and n. 1, 123
S.Ct. 1848, 155 L.Ed.2d 877 (2003)).
FN81. The prosecution argued that despite the court’s intent to allow an appeal of the judgment, the Government would not be able
to appeal a ruling of acquittal on the counts.
Defendants also contest counts 30-35 on the grounds that the Government’s evidence for those counts did not prove CWA jurisdiction, and
FN82.United States v. Loe, 262 F.3d 427, 434 (5th Cir.2001).
FN83.Id.
VI
[13] All Defendants argue that the indictment was insufficient on the mail fraud charges and that the evidence does not support their mail
FN84. The contract contained a waiver provision stating, “It is understood and agreed that Buyer … has inspected the above
described property and that the same is, and has been purchased by Buyer as a result of said inspection and not upon any
representation made by Seller or its agents … that Buyer waives any and all claims for damages because of any representation made
by any person whomsoever; and that Seller or its agent or agents shall not and are not responsible for any inducement, promise,
770 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
FN85.18 U.S.C. § 1341 (emphasis added).
FN86.United States v. Dotson, 407 F.3d 387, 391-92 (5th Cir.2005) (quoting United States v. Strong, 371 F.3d 225, 227 (5th
Cir.2004)).
FN87.See Neder v. United States, 527 U.S. 1, 22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
FN88.United States v. Harms, 442 F.3d 367, 372 (5th Cir.2006), cert. denied,— U.S. —-, 127 S.Ct. 2875, 167 L.Ed.2d 1152 (2007).
FN89. Defendants do not cite to any case law for this proposition.
We have not addressed the question of whether a working septic system is required*340 for the implied warranty of habitability that arises
FN90.See, e.g., Moorman v. Tower Management Co., 451 F.Supp.2d 846, 851 (S.D.Miss.2006) (quoting Staley v. Bouril, 553 Pa. 112,
718 A.2d 283, 284-85 (1998)) (finding that the warranty of habitability applies to mobile home lots and citing the Staley case, which
FN91.See Mann v. Adams Realty Co., Inc., 556 F.2d 288, 291 (5th Cir.1977) (The realtor had stated that “[e]verything [was] fine”
concerning the septic system).
FN92.Id. at 297.
The contracts for the lots purportedly waived the liability of Defendants and their agents for any representations made outside of the written
FN93.Dotson, 407 F.3d at 393-94 (citing United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (“sanctions
for false statements or perjury allowed even when inquiry was unconstitutional”) and Dennis v. United States, 384 U.S. 855, 86 S.Ct.
1840, 16 L.Ed.2d 973 (1966) (“ ‘It is no defense to a charge based upon [conspiracy to circumvent a law through deceit] that the
statutory scheme sought to be evaded is somehow defective.’ ”)).
FN94.United States v. Ratcliff, 488 F.3d 639, 645 n. 7 (5th Cir.2007).
FN95. Patrick Brossett, Sr. testified that he “had a problem with it [the septic] flooding up on the ground all the time. Every time it
rains, it comes up.” Winford Patterson testified that “within the first month” his septic system “filled up. Commodes wouldn’t flush.”
FN96. Pansy Maddox, district environmental supervisor for MDH, also testified that “[m]ost of the systems were failing because fled
drains had been placed in soils that were too wet and do not drain adequately to absorb the wastewater.”
FN97.Harms, 442 F.3d at 374.
The Government also presented evidence that Defendants used the mail to accomplish fraudulent sales: they caused lot owners to send
FN98. Defendants allege that “proof of mailing was lacking for Counts 10 and 16.” Count 10 involved lot GG-4. Patricia Griswold, the
former owner of lot GG-4, testified that she made a payment in the mail for that lot and verified that a receipt for that payment
(Government’s Exhibit 50(ii)) came through the mail. Count 16 involved lot YY–1. The owner “involved in purchasing YY-1 and YY–2”
testified that “[w]e paid cash and sometimes by check” for the lot payments. “We mailed them.” He also verified that Government’s
Exhibit 79(a) contained “envelopes that Mr. Lucas had given us to send our money in to them.”
FN99.United States v. Blankenship, 746 F.2d 233, 240 (5th Cir.1984).
After purchasing a lot based on fraudulent misrepresentations, prospective lot owners committed themselves to years of installment
payments to be made through the mail. Although many owners made payments after the EPA had informed them that their lots were on
wetlands, these payments connected directly back to contracts that they signed prior to agency warnings.
FN100.Neder, 527 U.S. at 10, 119 S.Ct. 1827.
FN101. The pattern jury instructions require, inter alia,“That the scheme to defraud employed false material representations.” 2001
Fifth Circuit Criminal Jury Instructions.
FN102. Emphasis added.
FN103. Emphasis added.
The court’s instructions included a requirement of materiality. As indicated above, “a false statement is material if it has a natural tendency to
FN104.Neder, 527 U.S. at 16, 119 S.Ct. 1827 (internal quotations and citations omitted, emphasis added).
VII
Moving from mail fraud to conspiracy, M.E. Thompson-the engineer who designed and certified the septic systems-and Wrigley and
FN105. Lucas, BHA, Inc., and Consolidated Investments, Inc. briefed the conspiracy issues. Wrigley and Thompson adopted the
772 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
arguments from that brief. Thompson additionally argued that the evidence did not support his conviction for conspiracy.
FN106.United States v. Ratcliff, 488 F.3d 639, 643 (5th Cir.2007).
FN107.United States v. Bieganowski, 313 F.3d 264, 276 (5th Cir.2002).
FN108.Id. at 277 (quoting United States v. Ballard, 663 F.2d 534, 543 (5th Cir.1981)).
FN109.Id. (internal quotations omitted).
*343[23] With respect to the sufficiency of the indictment, Defendants only challenge the unlawful objective prong, arguing that the object of
the conspiracy-the sale of wetlands-was not illegal. The indictment sufficiently alleged unlawful objectives and placed Defendants on notice of
the offenses charged. The unlawful objectives charged included, inter alia,
FN110.United States v. Farias, 469 F.3d 393, 398 (5th Cir.) (quoting United States v. Infante, 404 F.3d 376, 385 (5th Cir.2005)), cert.
denied,— U.S. —-, 127 S.Ct. 1502, 167 L.Ed.2d 241 (2007).
The circumstantial evidence showed that Thompson agreed to the conspiracy, participated in overt acts in furtherance of the conspiracy, and
that he had knowledge of the unlawful objectives of the conspiracy. The evidence also was sufficient to support a finding that Defendants
FN111. Maddox testified that Mr. Thompson requested a meeting with her “to discuss the regulations” regarding septic systems in
saturated soils and that Tommy Brodnax attended the meeting and “said he was there on behalf of Mr. Lucas and his development
in Vancleave.” She testified that “a couple weeks later, Tommy Brodnax and M.E. Thompson requested another meeting” with her.
FN112. Jim Weston, branch director of the division of on site wastewater at MDH, testified that Wrigley “picked [him] up, and she
FN113. Defendants presented evidence that Thompson disagreed with the MDH’s standards for interpreting soil charts and
identifying saturated soils, arguing that his alleged non-compliance was a result of this disagreement.
[25] Thompson, Lucas, and Wrigley also challenge the court’s jury instructions on conspiracy, alleging that the court erred in refusing to
instruct the jury on unanimity and that the Government also requested a unanimity instruction, which the court failed to give. The district
FN114.See United States v. Dillman, 15 F.3d 384, 391-92 (5th Cir.1994) (citations omitted) (“The appellants’ argument fails because it
is based on a fundamental misunderstanding of the crux of a conspiracy charge under 18 U.S.C. § 371: The defendant’s voluntary
agreement with another or others to commit an offense against or to defraud the United States. It does not matter that a single
conspiracy was comprised of several objects to which the defendant did not specifically agree to accomplish, if those acts were
reasonably foreseeable. Once the defendant had joined the agreement, the acts of the other conspirators became his acts
FN115. Lucas, BHA, Inc., Consolidated Investments, Inc., and Thompson adopted Wrigley’s evidentiary arguments.
Regardless of whether or not the Government anticipated that Johnson would testify about bribery, its behavior was wrong. By redacting the
FN116.United States v. Valles, 484 F.3d 745, 756 (5th Cir.2007) (citing United States v. Dupre, 117 F.3d 810, 823 (5th Cir.1997), cert.
denied,— U.S. —-, 127 S.Ct. 3025, 168 L.Ed.2d 745 (2007)), and petition for cert. filed (July 6, 2007) (No. 07-8373), and cert. denied,—
– U.S. —-, 128 S.Ct. 238, 169 L.Ed.2d 181 (2007).
FN117.See, e.g., Dorsey v. Quarterman, 494 F.3d 527, 531 (5th Cir.2007) (jurors saw non-redacted version of a redacted transcript
that had been introduced at trial; defendant moved for mistrial; court denied motion; we reviewed for harmless error and found
FN118.Valles, 484 F.3d at 756.
[27] The FBI had interviewed Johnson and had prepared a summary of the interviews. The Government provided a redacted version of this
summary to defendants before trial, as required by Rule 16 for organizational defendants.FN119 The redacted version of the FBI summary
omitted the following language:
FN119.FED.R.CRIM.P. 16(a)(1)(C).
While employed at BHA he [Johnson] knew several other men who worked for LUCAS [followed by the names of employees]. He believes
that most of these employees are still around. DANNY ANDERSON moved to Newberry, South Carolina.
JOHNSON heard rumors from other employees that LUCAS paid off county officials in order to develop land he was not supposed to, build
roads in an inferior manner, and get approval for septic *346 tanks in areas where they would clearly not function correctly. JOHNSON
Johnson, in response to a Government question about a meeting that Johnson had with Brodnax, testified that Lucas “pulled out a couple of
envelopes and gave one to Tommy,” and that there was “some greenback” in the envelope. This testimony was a surprise to both the court
and Defendants. This surprise introduction of the bribery evidence was unfair but did not rise to a deprivation of Defendants‘ due process
rights.
After Johnson testified about bribery, the court changed its prior ruling that Defendants could not introduce Johnson’s criminal background,
presented evidence of Defendants’ continued and knowing violations of the law, despite several agencies’ orders to stop. The evidence in the
case did not focus unduly on bribery but rather on the hydrology of the area, the problems that residents faced as a result of septic systems
installed in wet areas, and Defendants’ methods for advertising, selling, and receiving payments for the lots. The Government did not mention
bribery in its closing argument; its only discussion of *347 Phillip Johnson referred to his warnings to Lucas that the land was wet, his
complaints about the failed septic system on his lot, and his road construction work as an employee for Lucas.
FN120.See United States v. Ramirez, 174 F.3d 584, 587 (5th Cir.1999) (“Even when a [Jencks Act] violation is found, the failure to
produce prior statements is subject to a harmless error analysis.”); United States v. Gonzalez, 661 F.2d 488, 494 (5th Cir.1981)
(“Assuming that th[e] failure to disclose [under 16(a)(1)(C) ] was the government’s error, it is not cause to reverse unless prejudicial
to the substantial rights of the accused.”).
FN121.United States v. Krout, 66 F.3d 1420, 1431 (5th Cir.1995).
[T]he Jackson County board of supervisors granted Mr. Lucas variance after variance, freeing him from any platting requirement …. These
variances from the Jackson County board of supervisors were an additional benefit to Mr. Lucas and Ms. Wrigley …. The variances freed
them from the scrutiny of the planning department.
FN122.United States v. Hickerson, 489 F.3d 742, 746 (5th Cir.2007) (citing United States v. McCarter, 316 F.3d 536, 538 (5th
Cir.2002), cert. denied,— U.S. —-, 128 S.Ct. 521, 169 L.Ed.2d 363 (2007)).
FN123.Id. (quoting United States v. Holloway, 1 F.3d 307, 310 (5th Cir.1993)).
Thompson cites the court’s remarks regarding its surprise over the introduction of Johnson’s bribery evidence. A court’s surprise over the
introduction of evidence does not demonstrate clear prejudice, and Thompson fails to indicate how he was otherwise prejudiced.
[29] Defendants also sought leave to depose a witness, Bobby Strickland, and present his deposition at trial to counter the evidence
FN124.Dillman, 15 F.3d at 389 (quoting United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976)).
FN125.Id.
FN126.Id.
FN128.Id.
FN129.Id.
Although Strickland’s testimony would have been “material” in the sense that it may have discredited some of Johnson’s claims, the
circumstances of “distance, surgery, and death in his family” are not extraordinary. Even if they were, Strickland’s testimony would not have
FN130. The prosecution asked one of Defendants’ witnesses on cross, “And you’re asking the jury to rely on this beyond a
reasonable doubt, and there are no data points here at all on it, right?”
FN132. Claiming, for example, that “the Government elicited testimony about the drinking water that the Government knew to be
baseless, but which was highly prejudicial to Appellants.”
[t]he law does not require a defendant to prove his innocence or to produce any evidence at all and no inference whatever may be drawn
from the election of a defendant not to testify. The government has the burden of proving each of the defendants guilty beyond a
reasonable doubt; and, if it fails to do so, you must acquit that defendant. * * * Remember that any statements, objections or arguments
FN133. The court also sentenced BHA, Inc. and Consolidated Investments to 5 years’ probation and made special assessments of
$7,600 and $400 against BHA and Consolidated Investments, respectively.
[33] “ ‘Although the determination of loss is a factual finding reviewed for clear error, the court’s choice of the method by which losses are
FN134.Harms, 442 F.3d at 379 (quoting United States v. Deavours, 219 F.3d 400, 402 (5th Cir.2000)).
[34][35] The court properly used the sales price of the lots to calculate the amount of money that Defendants intended to receive from the
FN135.409 F.3d 240, 244 (5th Cir.2005).
FN136.United States v. Cothran, 302 F.3d 279, 290 (5th Cir.2002) (“under our precedent, the district court could award restitution to
all of the victims of the broader scheme”).
FN137.United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007).
FN138.United States v. Sam, 467 F.3d 857, 861 (5th Cir.2006).
AFFIRMED.