United States of America v. Robert Roach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT ROACH,
Defendant-Appellant.
No. 14-50260
D.C. No.
2:12-cr-00165-PSG2
OPINION
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
June 3, 2015—Pasadena, California
Filed July 8, 2015
Before: Sidney R. Thomas, Chief Judge, Consuelo M.
Callahan, Circuit Judge, and Edward R. Korman, District
Judge.*
Opinion by Judge Korman
* The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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UNITED STATES V. ROACH 2
SUMMARY**
Criminal Law
The panel affirmed a conviction for storing and causing
the storage of hazardous waste without a permit in violation
of the Resource Conservation and Recovery Act, 42 U.S.C.
§ 6928(d)(2)(A), in a case in which the defendant argued that
the statutory definition of “storage” expressly excludes acts
constituting “disposal” of hazardous waste, and that he was
guilty of disposal and therefore not of storage.
The panel held that even accepting the defendant’s
argument based on the technical definitions of “storage” and
“disposal,” the defendant was clearly engaged in storing
hazardous waste in sealed and intact containers left in his
former electroplating facility. The panel therefore did not
need to resolve the issue whether, if he had been so charged,
the defendant could not have been found guilty of both
storage and disposal of containers that were leaking.
The panel rejected the defendant’s alternative argument
that he could not be guilty of storage because he disposed of
all of the containers left in the former facility by
“abandoning” them in the building in which they were stored.
The panel explained that while the defendant may have
abandoned the premises in which the containers were stored,
the containers were not abandoned, and he is liable as a
principal for “causing the storage of waste” under 18 U.S.C.
§ 2(b).
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. ROACH 3
COUNSEL
Lawrence Jay Litman (argued), Los Angeles, California, for
Defendant-Appellant.
Stephanie Yonekura, Acting United States Attorney, Robert
E. Dugdale, Assistant United States Attorney and Chief,
Criminal Division, and Heather C. Gorman (argued) and
Dennis Mitchell, Assistant United States Attorneys,
Environmental Crimes Section, United States Department of
Justice, Los Angeles, California, for Plaintiff-Appellee.
OPINION
KORMAN, District Judge:
After a bench trial, Robert Roach was convicted of one
count of storing and causing the storage of hazardous waste
without a permit in violation of the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. § 6928(d)(2)(A). On
this appeal, Roach argues that the statutory definition of
“storage” expressly excludes acts constituting “disposal” of
hazardous waste, and that he was guilty of disposal and
therefore not of storage. Our review of the record persuades
us that Roach was guilty of storing hazardous waste and that
he was properly convicted of that offense.
BACKGROUND
1. Roach’s Business
All Metals Processing Company (“AMP”) was an
electroplating business located in Burbank, California, for

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UNITED STATES V. ROACH 4
which Roach served as an owner, officer, and director. In
those capacities, Roach was involved in hazardous waste
management. The AMP facility, which was located in a
building at 264 West Spazier Avenue, included a “drum
storage area” containing hundreds of receptacles filled with
potentially hazardous substances. From 1990 through 2007,
however, AMP did not have a permit to store hazardous
waste.
On January 18, 2007, the executor of the Estate of Helen
L. Powers (“Powers Estate”)—the successor in interest to
AMP’s landlord—filed an unlawful detainer action against
AMP on the basis of the company’s failure to pay rent. In
February 2007, the parties lodged a stipulated judgment in
favor of the Powers Estate in which AMP agreed to vacate,
“remove toxic material from,” and clean up the premises by
March 16, 2007. AMP was evicted on March 20, 2007. A
large number of barrels containing hazardous waste, some of
which were corroded and others of which were “sealed and
did not appear to be leaking,” were left behind. Although the
Powers Estate granted AMP permission to hire a hazardous
waste transport company to enter the property and remove the
waste, AMP did not do so, purportedly because of cost.
2. Inspections and Sampling
In June 2007, nearly three months after the eviction, the
former AMP facility was inspected by a Hazardous Materials
Specialist with the Los Angeles County Fire Department, and,
later, a contractor for the U.S. Environmental Protection
Agency (“EPA”). The investigators testified that they found
numerous receptacles containing waste, and also observed
that some (but not all) of the containers were leaking.
Samples collected from substances within closed receptacles

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UNITED STATES V. ROACH 5
were found to contain hazardous concentrations of chemicals
that had the substantial potential to be harmful to humans and
to the environment. The EPA ultimately emptied and
demolished the building.
3. Indictment, Conviction and Sentencing
On February 23, 2012, a grand jury returned a single-
count indictment charging Roach and one co-defendant with
storing and causing the storage of hazardous waste without a
permit from the EPA or the California Department of Toxic
Substances, in violation of the RCRA, 42 U.S.C.
§ 6928(d)(2)(A). The unlawful act was alleged to have
occurred in the former AMP facility from June 16, 2007, to
at least June 27, 2007—three months after the eviction.
On June 2, 2014, the district judge found Roach guilty.
The record does not indicate that the judge made any specific
findings of fact, either in open court or in a written opinion.
Such findings are, however, only required where requested by
the parties, Fed. R. Crim. P. 23(c), which does not appear to
be the case here. Roach was sentenced principally to a term
of imprisonment of a year and a day.
STANDARD OF REVIEW
Challenges to the sufficiency of evidence, including
questions of statutory interpretation, are reviewed de novo.
United States v. Garcia, 768 F.3d 822, 827 (9th Cir. 2014)
(citing United States v. Wright, 625 F.3d 583, 590 (9th Cir.
2010)). “There is sufficient evidence to support a conviction
if, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”

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UNITED STATES V. ROACH 6
United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999)
(citation omitted). This standard applies to both bench and
jury trials. United States v. Spears, 631 F.2d 114, 117 (9th
Cir. 1980) (citation omitted).
DISCUSSION
1. Statutory Definitions
Roach was accused of violating 42 U.S.C.
§ 6928(d)(2)(A), which imposes criminal liability on an
individual who “knowingly . . . stores . . . any hazardous
waste . . . without a permit,” and 18 U.S.C. § 2(b), which
provides that “[w]hoever willfully causes an act to be done
which if directly performed by him or another would be an
offense against the United States, is punishable as a
principal.” Under the RCRA, “storage” of hazardous waste
is defined as “the containment of hazardous waste, either on
a temporary basis or for a period of years, in such a manner
as not to constitute disposal of such hazardous waste.”
42 U.S.C. § 6903(33). “Disposal,” in turn, refers to the
“discharge, deposit, injection, dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous waste or
any constituent thereof may enter the environment or be
emitted into the air or discharged into any waters . . . .” Id.
§ 6903(3).
2. Roach’s Argument on Appeal
The evidence at trial established beyond a reasonable
doubt that, as a factual matter, Roach knowingly stored
hazardous waste in the former AMP facility without a permit
to do so. Indeed, Roach conceded as much in a joint

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UNITED STATES V. ROACH 7
stipulation at trial, and again at oral argument on appeal.
Nevertheless, he argues that he cannot be found guilty of
unlawfully storing hazardous waste, because the RCRA
defines “storage” as “containment of hazardous waste . . . in
such a manner as not to constitute disposal of such hazardous
waste,” and the evidence at trial established that there was
extensive leaking and leeching of waste in the former AMP
building.
Roach’s argument rests primarily on United States v.
Humphries, which held that a defendant’s intent to eventually
dispose of hazardous materials does not immunize him from
conviction for unlawfully storing the waste in the meanwhile.
728 F.3d 1028, 1031–32 (9th Cir. 2013). In the course of its
opinion, resolving an entirely different issue than that
presented here, the panel noted that, “[u]nder the [RCRA],
‘disposal’ and ‘storage’ are mutually exclusive: a person
cannot be convicted of storing waste once the person has
disposed of it.” Id. at 1031. Roach acknowledges, however,
that his conviction was based solely on the hazardous waste
contained in five containers that were sealed and were not
leaking. Humphries’s common-sense observation that “a
person cannot be convicted of storing waste once the person
has disposed of it,” id., does not provide a basis for a defense
where, as here, waste from certain barrels leaked onto the
ground while waste in other barrels, on which the defendant’s
conviction rests, remained completely contained. Even
accepting Roach’s argument based on the technical
definitions of “storage” and “disposal” contained in the
RCRA, he was clearly engaged in storing hazardous waste in
the sealed and intact containers left in the premises located at
264 West Spazier Avenue. Thus, it is not necessary for us to
resolve the issue whether, if he had been so charged, Roach

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UNITED STATES V. ROACH 8
could not have been found guilty of both storage and disposal
of the containers that were leaking.
Roach argues alternatively that he disposed of all of the
containers left in the former AMP facility—even those that
were sealed and intact—by “abandoning” them in the
building in which they were stored. This argument is
premised on the statutory language defining “disposal” as the
“placing” of waste on the land such that it “may enter the
environment.” 42 U.S.C. § 6903(3). Even though the
containers were sealed and stored inside a building, Roach
argues that they posed a “potential danger[]” of entering the
environment when left in “an abandoned and unsupervised
hazardous waste site.” Specifically, “containers of
flammable, oxidizing and reactive chemicals . . . if stored too
long, may deteriorate and cause a spill which could result in
a fire or explosion.” Roach also observed that “[a]rson is
common at abandoned waste sites and a large fire could
expose downwind populations to toxic smoke and particles.”
This argument is without merit. While Roach may have
abandoned the premises in which the containers were stored,
the containers were not abandoned. They continued to be
stored in the same building in which they had always been
housed, which was owned and overseen by the Powers Estate.
This was not “an abandoned and unsupervised hazardous
waste site.” Indeed, Roach violated the express terms of the
stipulated judgment requiring AMP to “remove toxic material
from” the building by March 16, 2007. Roach’s
“abandonment,” in effect, merely transferred custody of the
storage containers to his former landlord.
Roach is therefore liable as a principal under 18 U.S.C.
§ 2(b), which “is based on the precept that an individual with

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UNITED STATES V. ROACH 9
the requisite criminal intent may be held liable as a principal
if he is a cause in fact in the commission of a crime,
notwithstanding that the proscribed conduct is achieved
through the actions of innocent intermediaries.” United
States v. Margiotta, 688 F.2d 108, 131 (2d Cir. 1982),
abrogated on other grounds by McNally v. United States,
483 U.S. 350 (1987) (citations omitted); accord United States
v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987). The
indictment in this case specifically charged Roach with
“causing the storage of waste” under 18 U.S.C. § 2(b), and he
is clearly guilty of that offense.
There is another reason why Roach’s abandonment theory
fails. Roach conceded at oral argument that he was guilty of
storage before he abandoned the premises—and before the
start of the time period charged in the indictment—but argues
that the act of abandonment transformed his behavior from
storage to disposal. This theory is premised on the notion that
waste left within an abandoned site is more likely to “enter
the environment.” See 42 U.S.C. § 6903(3). Roach’s theory
proves too much. Passing over the fact that the building in
which the containers were stored was not an abandoned site,
the risk, if any, that the hazardous waste in the sealed
containers would enter the environment as a result of arson,
vandalism, or deterioration existed well before Roach’s
eviction. If “may enter the environment” bears the weight
that Roach would give it, then “storage”—which, as Roach
repeatedly emphasizes, is defined to exclude any action that
constitutes disposal—would be stripped of all effect. This
cannot possibly have been the intent of Congress.
AFFIRMED.

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