United States v. Frank Fiorillo, Jr., and Art Krueger

Frank Fiorillo and Art Krueger appeal their convictions for wire fraud and violations of the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. SS 6901 et seq.). Fiorillo also appeals his convictions for receiving explosives without a permit. We have jurisdiction under 28 U.S.C. S 1291, and we affirm in part and reverse and remand in part.

Diversey Corp. ("Diversey") is a company engaged in the manufacture and sale of industrial cleaning products. In 1992, Diversey discovered that two of its products, Slurry and Eclipse, would leak out of their containers in warm or humid weather. The two products are industrial-strength cleansers used in institutional settings and both are highly caustic.2 After determining that the products were unsaleable, Diversey authorized its corporate distribution manager, Adrian Farris, to dispose of 30,000 gallons of the products.

Frank Fiorillo was the president and CEO of West Coast Industries, Inc. ("West Coast"). The company's primary business was the storage of a number of products at a warehouse located in Sacramento, California. Fiorillo, who had provided warehouse services to Diversey in the past, submitted a proposal for the disposal of the products to Farris on behalf of West Coast and SafeWaste Corp. ("SafeWaste"), Art Krueger's company. Farris agreed to the proposal and the parties entered into a contract on February 24, 1993, for the disposal of 10,000 gallons of Slurry and Eclipse. Under the contract, Diversey agreed to pay 50% of the contract costs when the products were transported to Fiorillo's warehouse and the remaining 50% upon submission of compliance documentation.

Diversey periodically received compliance documentation from Fiorillo and Krueger in the form of certificates of disposal, which were signed by Krueger. Ultimately, Diversey paid Krueger and Fiorillo $254,000 for the disposal of 30,000 gallons of the hazardous products. In reality, Fiorillo and Krueger only properly disposed of two of the eleven truckloads of Slurry and Eclipse by sending it to a facility in Nevada, which met the requirements set out in RCRA. The rest of the Slurry and Eclipse was stored at Fiorillo's warehouse in Sacramento in a cold room that Krueger leased from Fiorillo.

In August 1993, Rick Knighton, a former West Coast employee, informed David DeMello, a Sacramento County Fire Department official, that West Coast was storing Class A explosives at its warehouse.3 DeMello, who had conducted earlier fire inspections of the warehouse, and another fire inspector, Robert Billett, went to the warehouse where they informed the receptionist that they were there to conduct an inspection. DeMello's and Billett's testimony conflicts over what happened next.

According to DeMello, the receptionist phoned someone who authorized the inspectors to enter the warehouse. Billett did not recall the receptionist getting permission to let them in. Rather, he remembered that she simply allowed them to proceed with the inspection. Regardless, before the men discovered any explosives, they were met by Fiorillo. DeMello testified that Fiorillo was cordial and polite when he greeted the two men. Fiorillo agreed to accompany the inspectors during the inspection. DeMello and Billett then discovered the Class A explosives, consisting of approximately 17,000 artillery shells, taking up about one-third of the warehouse.4 DeMello also discovered hazardous material, which covered an additional one-third of the warehouse, leaking from its containers about six feet from the explosives.

Over the course of the next few days, members of the fire department returned to the warehouse to ensure that proper cleanup was occurring and that no further violations were happening. About eight days after DeMello's discovery, the fire captain, Ed Vasques, received an anonymous tip that additional hazardous materials were being stored in a room that the fire inspectors had not discovered. DeMello, Vasques, and other officials conducted a re-inspection of the warehouse and discovered an unmarked door that was hidden behind several pallets of food and beverages.

Peter Bishop, an independent contractor hired by West Coast to assist in the cleanup, entered Fiorillo's office to get keys to the room. An investigator from the Sacramento County environmental office overheard Fiorillo say that there was nothing in the room, that he had done everything they wanted and that he had had enough. Nevertheless, Bishop came back out with the keys. A door outside the warehouse led into the cold room as did a door inside the warehouse. The keys did not work on the outside door, and when Bishop went to unlock the inside door, it was apparently unlocked. At this point, the county officials discovered the Slurry and Eclipse, which Krueger and Fiorillo had told Diversey was destroyed.

Fiorillo was charged with twelve counts of wire fraud (four of the counts were dismissed by the Government prior to trial), two counts of violating provisions of RCRA, and two counts of receiving Class A explosives without a permit. Krueger was charged with all of the same counts except those relating to the explosives. A jury found both men guilty of all the counts against them.

Prior to going to trial, Fiorillo and Krueger moved to suppress the evidence found at the warehouse because the searches were conducted without a warrant. The district court denied the motion concluding that Fiorillo and Krueger did not have standing to challenge the initial inspection of the warehouse because they did not have a reasonable expectation of privacy regarding the main warehouse floor. The district judge also ruled that even if they did have standing, the receptionist and Fiorillo consented to the inspection. The judge also determined that Fiorillo had apparent authority to consent to the inspection of the cold room. We agree that Fiorillo consented to the search of the cold room as well as the main floor of the warehouse and that he had apparent authority as to the former.

1. Standard of Review.

"The validity of a warrantless search is reviewed de novo." United States v. Kyllo, 140 F.3d 1249, 1252 (9th Cir. 1998). This court reviews de novo a district court's denial of a motion to suppress evidence seized in a search. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir. 1997), cert. denied, 118 S. Ct. 1087 (1998). Factual findings underlying that decision are reviewed for clear error. See id.

2. Main Floor of the Warehouse.

This court will "not disturb a district court's determination that a person's consent to search was voluntary unless that determination was clearly erroneous." United States v. ChanJiminez, 125 F.3d 1324, 1326-27 (9th Cir. 1997).

The district court found that, even if Fiorillo and Krueger had standing to object to the warrantless search of the main warehouse floor, West Coast's receptionist and Fiorillo consented to the search. West Coast's receptionist consented to let the fire inspectors enter the warehouse where the men then encountered Fiorillo. Prior to the inspection and subsequent discovery of the explosives, Fiorillo consented to the search of the main warehouse floor.

There is sufficient evidence in the record to support the district court's conclusion. DeMello and Billett presented themselves to the receptionist; they were wearing their uniforms; they showed her their credentials; and they informed her they were there to conduct an inspection. Whether or not the receptionist made a call to the warehouse supervisor is irrelevant. She controlled the reception area of the warehouse and told the inspectors they could pass through and enter the warehouse. Prior to actually commencing the inspection, DeMello and Billett were greeted by Fiorillo who recognized DeMello from previous inspections and treated them cordially and courteously. When the fire officials told Fiorillo they were there to conduct an inspection, Fiorillo asked them where they would like to start and then accompanied them. If Fiorillo had not wanted the men to conduct an inspection of the warehouse, he could have stopped them at this point, but he chose not to do so.

Fiorillo contends that any consent is invalid because the fire inspectors said they were there to conduct a fire inspection, not an inspection for explosives. The district court rejected this argument. The City of Sacramento fire code states that the purpose of a fire inspection is to inspect for conditions that would reasonably tend to cause a fire or contribute to its spread. Undoubtedly, the presence of Class A explosives could cause a big fire or make a small fire into a big one. A fire inspection unquestionably includes an inspection for the unlicensed storage of Class A explosives. The district court did not clearly err in determining that consent was given to search the main floor of the warehouse.

3. The Cold Room.

After receiving a tip that the fire department had failed to locate some hazardous materials hidden in a cold room within the warehouse, fire department and county officials returned to the warehouse. Upon finding the cold room, they discovered that they could not enter it. Peter Bishop, an independent contractor employed by West Coast to assist in the cleanup of the warehouse, got a key from Fiorillo and helpedthe officials gain entry into the cold room where they discovered the leaky containers of Eclipse and Slurry. When Bishop asked Fiorillo for a key, one of the officials overheard Fiorillo indicate to Bishop that there was nothing in the room, that he had been cooperative and that he had had enough. Only after officials had entered the room did they learn Krueger leased the room from Fiorillo. The district court held that the warrantless search of the cold room was valid because Fiorillo had apparent authority to consent to the search. We agree.

A determination of apparent authority presents mixed questions of fact and law and is reviewed de novo. See United States v. Kim, 105 F.3d 1579, 1581 (9th Cir.), cert. denied, 118 S. Ct. 353 (1997).

"The existence of apparent authority entails a threepart analysis. First, did the searching officer believe some untrue fact that was then used to assess the consent-giver's use of and access to or control over the area searched? Second, was it under the circum stances objectively reasonable to believe that the fact was true? Finally, assuming the truth of the reasonably believed but untrue fact, would the consentgiver have had actual authority?"

United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir. 1993) (citations omitted).

The officials seeking entrance to the cold room believed that it was simply part of the warehouse leased to West Coast. There were no signs on the doors to indicate that the room was being leased to or under the control of SafeWaste. They believed that Fiorillo, as president of West Coast, could consent to let them into a locked room that they believed was under the control of his company. They had no reason to believe and in fact did not believe that Krueger leased the room from West Coast.

Under the circumstances, it was reasonable for the officials to believe these incorrect facts were true. Fiorillo gave a key to the room to Bishop with the knowledge that it was to let the inspecting officials into the room. At that time, he could have informed the officials that the room was leased to Krueger and that he could not let them in. For some unknown reason, Fiorillo chose not to tell the officials that Krueger leased the room until after they had entered the room and discovered the hazardous products. It was not unreasonable for the officials to believe that Fiorillo could consent to let them search the room when he, as president of the company running the warehouse of which the cold room was a part, provided the key for them to enter.

If it was true that West Coast had exclusive control over the cold room and that the room was not leased to Krueger,Fiorillo as president of West Coast would have had actual authority to consent to the search of the cold room. The district court did not err in determining that the officials correctly relied on Fiorillo's apparent authority to consent to the search of the cold room.

Fiorillo argues that the district court misjoined the explosives counts with the wire fraud and hazardous waste counts against him. Misjoinder of charges is an issue of law reviewed de novo. United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995).

The standard for determining whether two or more offenses should be tried together is set out in Federal Rule of Criminal Procedure 8(a).5 In determining whether the offenses are based on the same transaction, " `transaction' is to be interpreted flexibly and may comprehend a series of related occurrences." United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (internal quotation marks omitted). In making an assessment of whether joinder was proper, this court examines only the allegations in the indictment. VonWillie, 59 F.3d at 929.

In VonWillie, this court held that testimonial and physical evidence relating to the location, discovery, and seizure of firearms were factors favoring joinder of the charges. See id. In this case, the explosives and hazardous materials were both stored in the same warehouse, the discovery of the explosives led to the discovery of the hazardous materials, and both the explosives and the hazardous material were being stored without proper permits. All of these facts indicate that the explosives charges and the hazardous material charges were of similar character, meeting the requirements of Rule 8(a). Additionally, at least three witnesses testified at the trial concerning both the explosives and the hazardous waste. The district court did not err in concluding that joinder of the charges was proper.

Even if misjoinder had occurred in this case, reversal is only required "if the misjoinder results in actual prejudice because it had substantial and injurious effect or influence in determining the jury's verdict." Terry, 911 F.2d at 277 (internal quotation marks omitted). Fiorillo has not met this requirement. He argues that the jury was prejudiced because the explosives counts constituted evidence of other crimes and that the knowledge that he stored 17,000 artillery shells in a warehouse close to hazardous materials was inflammatory. However, at the close of trial, the judge charged the jury to deliberate on the elements of each charge separately and reminded them that a separate crime was charged against each defendant.

This militates against a finding of prejudice. See United States v. Matta-Ballesteros, 71 F.3d 754, 771 (9th Cir. 1995). "Judicial economy justifies reliance on the jury to follow the instructions of the court that segregate the evidence and limit the applicability of the evidence" as to each count. Id. (internal quotation marks omitted).

The indictment charged Fiorillo and Krueger with "knowingly stor[ing] corrosive hazardous waste" in violation of 42 U.S.C. S 6928(d)(2)6 and with "knowinglytransport[ing] and caus[ing] to be transported a corrosive hazardous waste" in violation of 42 U.S.C. S 6928(d)(1).7 The jury found both defendants guilty on both counts. Fiorillo and Krueger challenge their convictions for violating subsection 6928(d)(1), asserting that its "causes to be transported" provision applies only to those who generate hazardous waste for transport by others. The Government argues that the "causes to be transported" prohibition is not limited to hazardous waste generators and that the defendants properly were convicted of both storing and causing transportation of hazardous waste. We agree with the defendants that a person who merely receives hazardous waste does not "cause[ ]" that waste "to be transported" under section 6928(d)(1). We nevertheless affirm the defendants' convictions because the record shows that Fiorillo and Krueger took responsibility for and carried out the transportation of the Eclipse and Slurry from Diversey's storage location to the West Coast warehouse.

We review questions of statutory interpretation de novo. See United States v. Doe, 136 F.3d 631, 634 (9th Cir. 1998), cert. denied, 119 S. Ct. 1338 (1999). Examination of the plain "language of the statute itself" always marks the starting point of our analysis. See Hughey v. United States, 495 U.S. 411, 415 (1990). In addition to "the particular statutory language," however, we look "to the design of the statute as a whole." Crandon v. United States, 494 U.S. 152, 158 (1990). If application of these guidelines reveals a clear meaning, we examine the legislative history only to determine "whether there is clearly expressed legislative intention contrary to[the statutory] language, which would require us to question the strong presumption that Congress expresses its intent through the language it chooses." INS v. Cardoza-Fonseca , 480 U.S. 421, 432 n.12 (1987) (quotation omitted). With these principles in mind, we turn to the task of examining section 6928(d)(1).

Fiorillo and Krueger assert that their actions of unlawfully receiving and storing hazardous waste did not "cause[ ]" the transportation of that waste under section 6928(d)(1); the Government refutes this contention.8 The word "cause" has a plethora of meanings. Among its common definitions are "to bring about," "to compel," see Black's Law Dictionary 200 (5th ed. 1979), and "to effect by command, authority, or force," see Webster's New Collegiate Dictionary 175 (1979). Various legal standards draw fine lines between types of "causation" -ranging from an indirect, peripheral contribution to an immediate and necessary precedent of an event. Looking at the word "cause" itself, therefore, does not allow us to discern the specific actions to which Congress intended to attach criminal liability under section 6928(d)(1). The statute's overall structure reveals, however, that as Congress used the phrase here, "causes to be transported" does not include a warehouse's receipt of hazardous waste pursuant to a contract.

Section 6928(d) contains a comprehensive, seven-item list of acts related to hazardous waste management for which the Federal government imposes criminal penalties. Each of the seven subdivisions addresses a particular category of prohibited activity. For example, subsection (d)(3) pertains to making false representations in required documentation of hazardous waste; subsection (d)(4) pertains to the destruction of, alteration of, or failure to file any required documentation; and subsection (d)(6) pertains to the exportation of hazardous waste to other countries. See 42 U.S.C.S 6928(d). More pertinent to the issue before us, subsections (d)(1) and (d)(2) penalize two distinct sets of acts involving the handling of hazardous waste without a permit. Subsection (d)(1) addresses transporting and causing to be transported hazardous waste to a facility lacking a permit, whereas subsection (d)(2) addresses treating, storing, and disposing of hazardous waste without or in violation of a permit. See id. By dividing these activities into two categories, Congress demonstrated that, despite the similarities between the prohibitions in subsections (d)(1) and (d)(2), it intended to distinguish between these two groups of conduct in some way. The principal distinction is that subsection (d)(1) describes activities connected to the creation and shipping of hazardous waste, while subsection (d)(2) covers only the receipt and processing of the waste. Stated another way, subsection (d)(1) pertains to the direction of hazardous waste to a facility that lacks a permit, whereas subsection (d)(2) addresses activities occurring at the unpermitted facility.

We acknowledged this distinction between subsections (d)(1) and (d)(2) when discussing a different aspect of those provisions in United States v. Speach, 968 F.2d 795 (9th Cir. 1992). Speach presented the issue of whether the Government must prove that a section 6928(d)(1) defendant knew that the recipient facility of the hazardous waste lacked a permit. We answered this question in the affirmative, relying in part upon the following reasoning:

[T]he two provisions [(d)(1) and (d)(2) ] target different groups of defendants. Section 6928(d)(2)(A) imposes criminal liability on the person who knowingly treats, stores, or disposes of waste, when he or his facility lacks a permit, whether or not he knew that the permit was lacking . . . .

In contrast, section 6928(d)(1) deals not with the violator's lack of a permit, but with the lack of a permit on the part of the person to whom the violator delivers hazardous waste.

Id. at 797. In this passage, Speach implicitly recognized that the violator of subsection (d)(1) is the person responsible for making the delivery of hazardous waste, not the person who merely accepts the shipment.9

The duplicate coverage of the same conduct that would result if we adopted the Government's interpretation of section 6928(d)(1) supplies additional structural evidence supporting our understanding of this provision. The Government contends that any person who, without a permit,"receive[s] hazardous waste after it has been shipped from the generating facility" "causes to be transported" that hazardous waste in violation of subsection (d)(1).10 If this interpretation of the statute were correct, the same act--receiving hazardous waste --would subject the actor to liability under subsection (d)(2)(A) as well as subsection (d)(1).11 This construction would contradict logic and ignore the basic assumption that Congress does not use different language in different provisions to accomplish the same result.12 Following this presumption, therefore, we construe section 6928(d)(1) as applying to conduct other than that covered under section 6928(d)(2).

Another of the seven categories of criminal conduct listed in section 6928--subsection (d)(5)--provides the final piece of structural evidence upon which we rely in concluding that subsection (d)(1) does not apply to a person who merely receives and stores hazardous waste without a permit. Subsection (d)(5) imposes criminal penalties on any person who "knowingly transports without a manifest, or causes to be transported without a manifest, any hazardous waste [required] to be accompanied by a manifest. " 42 U.S.C. S 6928(d)(5). A "manifest" is "the form used for identifying the quantity, composition, and the origin, routing, and destination of hazardous waste," 42 U.S.C. S 6903(12); various provisions of the federal hazardous waste management laws hold generators of hazardous waste responsible for providing this form to the transporter.13 Subsection (d)(5), therefore, proscribes the same two activities that subsection (d)(1) addresses--transporting and causing to be transported14 and imposes conditions with which only a generator of hazardous waste reasonably can comply. This provision reinforces our understanding that subsection (d)(1) pertains to persons responsible for the delivery of hazardous waste, not merely the receipt of it, because only a generator (who supplies the manifest) or a transporter (who must obtain it before undertaking the transportation) reasonably could be expected to comply with these requirements.

In light of our conclusion, based upon our examination of the face of the statute, that Congress did not intend section 6928(d)(1) to apply to persons who do no more than receive hazardous waste, we examine the provision's legislative history only to determine whether Congress failed to express its actual intent in the language of the statute. When Congress enacted section 6928 in 1976, subsection (d)(1) prohibited only "knowingly" "transport[ing] . . . hazardous waste . . . to a facility which does not have a permit." Pub. L. No. 94-580, 90 Stat. 2795, 2812 (1976). In 1984, Congress amended the statute, adding the "causes to be transported " language. The House Report accompanying the 1984 amendments explains the reasoning behind this addition:

This provision clarifies the criminal liability of generators of hazardous waste who knowingly cause the waste to be transported to an unpermitted facility. Because the generator is in the best position to know the nature of his waste material, the regulatory scheme established by RCRA places a duty on the generator in the first instance to make arrangements to transport and dispose of his waste properly. EPA's ability to obtain criminal penalties against generators who knowingly cause the transportation of hazardous waste to an unpermitted facility is essential to the regulatory scheme.

H.R. Rep. No. 98-198, pt. I (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5613. Far from indicating that Congress meant subsection (d)(1) to apply to anyone who merely accepts delivery of a shipment of hazardous waste, the House Report strengthens our understanding, based upon the statute's language and structure, that this provision applies only to those persons responsible for initiating, arranging for, or actually performing the transportation of the waste.

The Government contends that other circuits have interpreted section 6928(d)(1) to apply to persons who participate but minimally in facilitating the transportation of hazardous waste. In particular, the Government cites the First Circuit case of United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991), in which MacDonald & Watson, a company "in the business of transporting and disposing of waste oils and contaminated soil," id. at 39, one of its officers, and two of its employees were convicted of violating subsection (d)(1). See id. at 39-40. One of the employees challenged her conviction, contending that insufficient evidence existed that she "caused" the transportation of the hazardous waste, but the court affirmed the conviction based upon evidence that her "role in negotiating, reviewing and facilitating the contract on behalf of MacDonald & Watson directly assisted in causing the transportation of the material." Id. at 42 n.4 (emphasis added). The Government erroneously focuses upon the arguably supplemental part this employee played in arranging the transportation and the First Circuit's upholding of her conviction in spite of that role. For purposes of assessing the scope of subsection (d)(1), the critical point in MacDonald & Watson is that this employee worked for the company that removed the contaminated soil from its point of origin and transported it to a disposal facility, activities that all parties in this case concede subsection (d)(1) covers. The court's conclusion regarding the sufficiency of the evidence to support the employee's conviction simply pertains to her degree of responsibility for MacDonald & Watson's conduct; that her participation, if significant enough to implicate her at all, related to the transportation of the hazardous waste, was never in doubt. See id. (noting employee's "position of responsibility with MacDonald & Watson" and fact that she reviewed the contracts on behalf of the company in finding evidence sufficient to support her conviction).

Although MacDonald & Watson's sufficiency of the evidence discussion merely confirms the obvious--that transporters of hazardous waste may be liable under subsection (d)(1)--other portions of the opinion support our reading of the statute. In comparing subsection (d)(1) to subsection (d)(2), the First Circuit stated:

Since generators and transporters have little control over either the operation of the facility or the manner of disposal after the wastes are delivered to the facility, it is not surprising that subsection (d)(1) omits a provision relating to manner of disposal, and limits generator and transporter responsibility to ensuring that the facility has an appropriate permit for the type of waste being delivered.

We must clarify that our interpretation of this provision does not mean that a person must be in the business of generating or transporting hazardous waste in order to run afoul of section 6928(d)(1). In some circumstances, the intended recipient of hazardous waste may also violate subsection (d)(1) by personally undertaking the transportation of the hazardous waste or by making arrangements for a third party to perform that task. Recognizing this possibility, we decline to adopt the interpretation of the statute, advocated by the defendants, that subsection (d)(1) applies only to generators and transporters of hazardous waste. Instead, we hold that the language of section 6928(d), its structure, and its legislative history dictate that subsection (d)(1) does not apply to a person who does not participate in or direct the transportation of hazardous waste, but merely receives that waste.

Turning our attention to these defendants' conduct, we first note that, because the jury found both defendants guilty of violating subsection (d)(1), we must construe the record in the light most favorable to the Government.16 According to Farris, he solicited bids from three companies, including SafeWaste, when he learned Diversey needed to dispose of the Eclipse and Slurry. In response to this inquiry, Fiorillo submitted to Farris a written proposal, dated January 26, 1993.17 Farris accepted Fiorillo's bid because it was the lowest and because they previously had had a good working relationship.18 On February 24, 1993, Farris, Fiorillo, and Krueger signed another document printed on West Coast letterhead that was substantially identical to the January 26 letter and that also was styled as a proposal letter from Fiorillo to Farris.19 As Farris testified, however, and as the writing itself indicates, the February 24 document actually was a memorialization of a meeting among the three men, and it constituted the contract to which all three were parties.20 The contract states:

Per our meeting today with yourself [Farris], Art Krueger (Safewaste Corp.) and myself [Fiorillo], regarding your warehoused hazardous material. The following is our proposal for handling, transportation, disposal and EPA compliance documentation for Diversey products Eclipse, Slurry, and PEP in one and six gallon containers.

. . . .

Freight (from current ware$1,760.00 per load house location or any "in-line" multiple stop locations to disposal site).

. . . .

A. On a load by load basis, 50% of the billing amount is to be paid upon confirmed pick-up of the product from your warehouse site or the last stop on a multiple site pick-up.

. . . .

. . . .

2. You will deliver to us an accurate location, address, contact name and phone number of all inventory as described on your product disposal form.

3. You will give us the authority to request an accurate inventory and product condition description for each location.21 Below Fiorillo's signature is the heading "Sign Off An [sic] Approval."22 Signature lines for Fiorillo, Krueger, and Farris as representatives of their respective corporations appear under this heading; all three signed this document on February 24, 1993.23

Other evidence exists that Krueger and Fiorillo actually arranged for and conducted the transportation of the Eclipse and Slurry from Diversey's storage facilities. Throughout his extensive testimony, Farris frequently asserted that Fiorillo undertook the transportation24 and that Kruegerparticipated in this activity, as well.25 Farris also offered examples of contacts he had had with both defendants that supported his account of Fiorillo's and Krueger's responsibilities.26 Significantly, there is no evidence in the record contradicting Farris's account that defendants undertook and incurred the costs of transporting the Eclipse and Slurry. Based upon this evidence, the jury reasonably could have determined that Fiorillo and Krueger did much more than simply receive the hazardous waste and store it: they proposed (and Farris agreed) that Diversey would pay them to make arrangements for transporting the waste to the West Coast warehouse.

We are at a loss to understand why the Government argued on appeal that Section 6928(d)(1) applies to those who merely receive hazardous waste, implicitly asserting that we would have to adopt that construction of the statute in order to affirm these convictions, when the record plainly reveals that even under our narrower interpretation of subsection (d)(1), Fiorillo and Krueger violated this provision. Irrespective of the Government's failure to frame this issue appropriately either in its brief or at oral argument, however, we may not ignore record evidence that unquestionably supports the reasonableness of the jury's verdict. Despite our conclusion that section 6928(d)(1) does not apply to persons who merely receive hazardous waste, therefore, we affirm the defendants' convictions for transporting or causing the transportation of hazardous waste to a facility lacking a required permit.

The jury found that Fiorillo violated 18 U.S.C. S 842(a)(3)(A) by receiving explosives without a license.27

Fiorillo raises the argument, however, that this section should not apply to him because of two exceptions set out in 18 U.S.C. S 845. The district court ruled that the exceptions did not apply. This court reviews a district court's construction or interpretation of a statute de novo. United States v. Doe, 136 F.3d at 634.

Fiorillo argues that this exception should apply to him because the explosives found in his warehouse were regulated by the Department of Transportation. Under his interpretation, no person could be liable under section 842(a)(3)(A) for receiving explosives without a license if those explosives are in some way regulated by the Department of Transportation. Fiorillo's construction eviscerates section 842(a)(3)(A). If this court were to adopt Fiorillo's interpretation, an unlicensed individual who received a case of dynamite from a third party would no