United States of America v. Harry Humphries

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARRY HUMPHRIES,
Defendant - Appellant.
No. 11-50383
D.C. No. 2:10-cr-01106-JFW-3
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 8, 2013
Pasadena, California
Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
Judge.**
Harry Humphries appeals his conviction for one count of illegally storing
hazardous waste without a permit in violation of the Resource Conservation and
FILED
AUG 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.

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Recovery Act, 42 U.S.C. 6928(d)(2). For the reasons stated below and in a
concurrently filed opinion, we affirm the conviction.
1. The district court did not abuse its discretion under Federal Rule of
Evidence 701 by allowing lay witness Ernest Reguly to testify that he observed
“waste” at Humphries’ company. Moreover, even if the district court improperly
admitted the evidence, any error was harmless in light of Humphries’ own
testimony that the chemicals were considered “waste” during the same time period.
Trial Tr. at 159-60, 178, 184.
2. The district court did not plainly err by failing to sua sponte exclude
Reguly’s testimony referring to tests that had been conducted to determine that the
used chemicals were waste. Although Humphries contends that Reguly’s
testimony constituted improper vouching, he cites no authority applying this
concept when a witness, without being solicited to do so by the prosecutor, refers
to information that was not presented to the jury in an effort to buttress his own
opinion testimony. Even if it was error to allow the testimony, any error was
harmless.
3. The district court did not abuse its discretion by excluding certain
aspects of the testimony of Humphries’ proposed expert, John Matthews. The
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topics to which Humphries argues his expert should have been able to testify were
irrelevant, cumulative or would have confused the jury.
4. The district court did not abuse its discretion by admitting evidence
under Federal Rule of Evidence Rule 404(b). The evidence of Humphries’ 1992
hazardous waste violation was probative of Humphries’ knowledge, not too remote
in time and sufficiently similar to the violations charged in the current prosecution.
AFFIRMED.
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