OPINION AND ORDER
MALCOLM MARSH, Senior District Judge
Petitioner Russell Eugene Schleining, an inmate at FCI Sheridan, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the Bureau of Prisons' (BOP) calculation of his good conduct time (GCT) credit. For the reasons set forth below, the petition is DENIED.
BACKGROUND
Petitioner was arrested by Montana state authorities on September 2, 2003. Petitioner was held in state custody on state charges until November 12, 2003, when he pleaded guilty to burglary, attempted burglary, possession of narcotics, and possession of drug paraphernalia. Petitioner was sentenced to a total of 10 years imprisonment, with five years suspended.
On June 2, 2004, a federal grand jury indicted petitioner on three counts relating to the possession of firearms found during his arrest on the state charges. On January 25, 2005, petitioner was brought into federal custody pursuant to a writ of habeas corpus ad prosequendum. On April 8, 2005, petitioner pleaded guilty in the United States District Court for the District of Montana to one count of Felon in Possession of a Firearm.
On July 8, 2005, the Honorable Donald W. Malloy, United States District Judge for the District of Montana, conducted a sentencing hearing. At the hearing, Judge Malloy indicated that he wanted to apply U.S.S.G. § 5G1.3 to credit petitioner for his time served in state custody. Judge Malloy offered the following explanation:
The guideline range, as I said, is 92 to 115 months. And I can fashion a sentence that is appropriate, I believe, for giving you credit for the time that you've been in the state and then making this sentence run concurrent with the state sentence, which I intend to do.
. . .
Pursuant to
18 U.S. Code section 3553 and having considered the advisory guidelines, . . . it is my judgment that Russell Eugene Schleining be committed to the custody of the Bureau of Prisons for a term of 94 months.
This is a reflection of my determination that an appropriate sentence is 115 months but with the application of 5G1.3, giving you credit for the time that you've been serving in the state, that reduces it down to 94 months. (Kelly Dec. (#-) Att. 2, p. 40-41.)
The judgment reflects an imprisonment term of 94 months, to be served concurrently with petitioner's state sentences. (Kelly Dec. (#10) Att. 1, p. 2.)
Following federal sentencing, petitioner was returned to state custody. Petitioner entered federal custody on February 21, 2007, following the expiration of his state sentence. Petitioner's federal sentence commenced on July 8, 2005, the date it was imposed. 18 U.S.C. § 3585(a); (Kelly Dec. (#10) Att. 2, p. 3.). The BOP has calculated petitioner's GCT credit based on a 94 month sentence, which provides petitioner with a GCT credit of 368 days and a projected release date of May 4, 2012. Petitioner seeks habeas relief in the form of 82 additional days of GCT credit for the 21 months he served in state custody prior to beginning his federal sentence.
DISCUSSION
Petitioner advances several arguments challenging the BOP's calculation of his GCT credit. First, petitioner contends that his federal sentence was actually 115 months, but he was credited for 21 months of time served in state custody, thus his GCT should be calculated based on the full 115 months. Second, petitioner argues that the correct interpretation of a "prisoner's sentence" under 18 U.S.C. § 3624(b) demonstrates that his sentence is actually 115 months, and that he must receive GCT credit for time adjusted under U.S.S.G. § 5G1.3. And third, petitioner submits that because he would have been eligible for more GCT credits if his federal sentence had been imposed earlier, the rule of lenity and equal protection concerns mandate awarding him GCT credit on a 115 month sentence.
Respondent contends that the BOP's interpretation of § 3624(b) is reasonable and that habeas relief must be denied. Respondent is correct.
I. Petitioner's Sentence.
Petitioner argues that the sentence imposed by Judge Malloy must be the 115 month term because it, not the adjusted 94 month term, is the sentence which comports with 18 U.S.C. § 3553(a). According to petitioner, because Judge Malloy indicated that 115 months was the appropriate amount of punishment, that sentence alone comports with § 3553(a) and United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.), cert. denied, 553 U.S. 1061 (2008). Petitioner also suggests that there is a discrepancy between Judge Malloy's oral sentence and the written judgment. Petitioner's arguments concerning § 3553(a) miss the mark.
First, petitioner's argument that his sentence must be 115 months because it is the only one which comports with § 3553(a) is simply not supported by a fair reading of Carty. As recognized in Carty, § 3553(a) requires that a sentence be "sufficient, but not greater than necessary" to achieve sentencing goals, and be substantively reasonable. 520 F.3d at 991. However, petitioner does not directly challenge the substantive reasonableness of his sentence in this proceeding. See United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009) (examining substantive reasonableness of sentence on direct appeal). Furthermore, petitioner fails to explain how his 94 month sentence runs afoul of § 3553(a).
Second, as quoted above, the hearing transcript clearly reveals that Judge Malloy sentenced petitioner to a term of 94 months, to run concurrently with his state conviction. The 94 month concurrent sentence is plainly reflected in the written judgment; no discrepancy exists. Cf. United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009), cert. denied, 129 S.Ct. 2748 (2009).
II. The BOP's Calculation of GCT Credits.
The authority to calculate a federal prisoner's period of incarceration for the federal sentence imposed is delegated to the Attorney General, who acts through the BOP. United States v. Wilson, 503 U.S. 329, 334-35 (1992). To compute a federal sentence, the BOP engages in a two-step process: (1) determining when the federal sentence commences, and (2) whether there are any credits to which the prisoner may be entitled. 18 U.S.C. § 3585; Hasan v. Sniezek, 2010 WL 1841878, *2 (3rd Cir. 2010);Crampton v. Thomas, 2009 WL 1974481 (D. Or. July 7, 2009).
The issue in this case is the time frame for which petitioner is eligible for GCT under the statute. There is no question that the BOP has the authority to evaluate petitioner's conduct to determine the amount of GCT that petitioner has actually earned. 18 U.S.C. § 3624(b).
The BOP is entrusted to assess GCT credits for inmates under 18 U.S.C. § 3624(b). Pacheco-Camacho v. Hood, 272 F.3d 1266, 1267 (9th Cir. 2001), cert. denied, 535 U.S. 1105 (2002); United States v. Evans, 1 F.3d 654, 654 (7th Cir. 1993). Section 3624(b) provides in relevant part:
a prisoner . . . may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.
In its discretion, the BOP has interpreted § 3624(b) to authorize GCT credit for the time that an inmate actually serves on the federal sentence, beginning on the date the federal sentence is imposed. Crampton, 2009 WL 1974481 at *3; Ross v. Fondren, 2008 WL 4745671, *3 (D. Minn. Oct. 29, 2008);Pacheco-Camacho, 272 F.3d at 1269. Indeed, the federal sentence "`commences on the date the defendant is received in custody' at the `official detention facility at which the sentence is to be served.'" Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010) (quoting 18 U.S.C. § 3585(a)). A federal sentence cannot commence prior to the date it is imposed. Crampton, 2009 WL 1974481 at *2;See United States v. Gonzales, 192 F.3d 350, 353 (2nd Cir. 1999) (a federal court cannot "backdate" a federal sentence; rather the court must give credit under § 5G1.3).
Petitioner challenges the BOP's interpretation of § 3624(b) to award GCT credit only for the time spent in federal custody. The BOP's method of calculating GCT credit under § 3624(b) based on "time served" and not the "sentence imposed" was upheld recently by the United States Supreme Court in Barber v. Thomas, 130 S.Ct. 2499 (2010). Petitioner insists that he is not challenging the BOP's calculation of GCT credits based on his time served, but instead is challenging the definition of a "prisoner's sentence" under § 3624(b). According to petitioner, his "sentence" includes the time adjusted under U.S.S.G. § 5G1.3.
Respondent submits that petitioner's federal sentence began on July 8, 2005, the date it was imposed, and that the BOP correctly began calculating GCT credits based on petitioner's time served on his federal sentence, consistent with 18 U.S.C. §§ 3585(a), 3624(b) and the decision in Barber.
When assessing an agency's interpretation of a statute it administers, the court must first determine whether the statute itself has a plain and unambiguous meaning. Pacheco-Camacho, 272 F.3d at 1268; Royal Foods Co. v. RJR Holdings, Inc., 252 F.3d 1102, 1006 (9th Cir. 2001). If congressional intent is clear, the court need look no further. However, if the statute is ambiguous, this court must defer to the agency's reasonable interpretation unless it is arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
As long as an agency's construction of a statute is reasonable, the court will not substitute its judgment for that of the agency. Id.; Mujahid v. Daniels, 413 F.3d 991, 997 (9th Cir. 2005), cert. denied, 547 U.S. 1149 (2006); Pacheco-Camacho, 272 F.3d at 1270. When assessing reasonableness, the court need only to conclude that the agency's interpretation is a permissible construction of the statute. Pacheco-Camacho, 272 F.3d at 1270;Crampton, 2009 WL 197441 at * 3.
There has been much litigation surrounding the interpretation of § 3624(b), and courts have repeatedly determined that the statute is ambiguous and that the BOP's calculation of GCT credits is reasonable and lawful. See, e.g., Barber, 130 S.Ct. at 2504; Pacheco-Camacho, 272 F.3d at 1268 (determining that § 3624(b) is ambiguous as to whether GCT credits should be based on time served or sentence imposed); Yi v. Federal Bureau of Prisons, 412 F.3d 526, 534 (4th Cir. 2005) (same).
I find the BOP's interpretation of § 3624(b) to award GCT credit only for the actual time served on the federal sentence supported by the text of § 3624(b). Section 3624(b) creates a system where credit is earned "beginning at the end of the first year" for "exemplary compliance with institutional disciplinary regulations." It is reasonable for the BOP to calculate GCT credits based upon the time served by a prisoner on the federal sentence, beginning on the date the federal sentence commences.See 18 U.S.C. § 3585(a). The BOP's construction of § 3624(b) is a permissible one, and therefore is entitled to deference. Chevron, 467 U.S. at 844; Pacheco-Camacho, 272 F.3d at 1260.
In a substantially similar case in this court, the Honorable Anna J. Brown determined that "[c]omputing GCT credits based upon actual time served in BOP custody accords with the language of the statute, which allows [a] prisoner to earn good time credits `toward the service of the prisoner's sentence . . . beginning at the end of the first year of the term.'" Crampton v. Thomas, 2009 WL 1974481 at *3 (quoting 18 U.S.C. § 3624(b)).
In Crampton, the petitioner was sentenced in federal court to a term of 171 months imprisonment in federal court. At the sentencing, the court noted a mandatory minimum of 180 months, but gave the petitioner a nine month departure under § 5K2.23 for a discharged term of imprisonment in state custody for relevant conduct, resulting in a 171 month federal sentence. The petitioner contended that he should be awarded GCT credit based on the 180 month term. Id. at *1-2. Judge Brown concluded that the BOP's construction of § 3624(b), which calculates GCT credits beginning at the commencement of the federal sentence, was reasonable. Id. at *4.
Petitioner attempts to distinguish Crampton on the basis that it involved a discharged state sentence and a downward departure under § 5K2.23, while this case entails an undischarged state sentence and an adjustment under § 5G1.3. I disagree that such differences warrant a different outcome. As correctly noted inCrampton, a federal sentence cannot commence prior to the date it is imposed, a fact that is unaffected by whether the state sentence is discharged or undischarged. And, application of either § 5K2.23 or § 5G1.3 results in the defendant receiving a shortened federal sentence based on his time served in state custody. I am persuaded by the sound reasoning in Crampton.
Petitioner urges this court to follow an earlier decision by this court in Kelly v. Daniels, 469 F.Supp.2d 903 (D.Or. 2007). In Kelly, Magistrate Judge Janice M. Stewart granted habeas relief in a similar situation. However, the Crampton court distinguished Kelly and concluded that BOP's calculation of GCT credits was reasonable. I agree with the analysis in Crampton and similarly conclude that the BOP's determination that GCT credits are unavailable for petitioner's time spent in state custody prior to commencement of his federal sentence is a reasonable interpretation of § 3624(b). See also Green v. United States, 2009 WL 2982864 (N.D. Ohio Sept. 11, 2009) (similarly distinguishing Kelly).
I am not convinced by the contrary result reached in Lopez v. Terrell, 697 F.Supp.2d 549 (S.D.N.Y. 2010), upon which petitioner relies. In Lopez, the petitioner served eight years on drug offenses in state custody prior to being sentenced in federal court. At sentencing, the federal court noted an aggregate penalty of 132 months, with an adjustment of 94 months under § 5G1.3 for the petitioner's undischarged state sentence, resulting in a 38 month federal sentence, to be served concurrently. Id. at 568. There, the court concluded that the petitioner was entitled to GCT credit for the entire prison term, including the portion adjusted under § 5G1.3.
I respectfully disagree with the Lopez court's analysis. TheLopez court focused on 28 C.F.R. § 523.17(l), which provides that the BOP may recommend an award of good time to a "pretrial detainee" who is "later sentenced on the crime for which he or she was in pretrial status." The Lopez court appeared troubled by the BOP's position in that case, in which the BOP acknowledged that it could award good time credit for pretrial detention under § 523.17(l), but refused to award GCT credit for the eight years prior to petitioner's federal sentence commencing under § 3624(b). Id. at 564. In this case, 28 C.F.R. § 523.17(l) simply is not at issue.
Section 523.17(l), is part of the BOP regulations pertaining to "extra good time credit" for performing "exceptionally meritorious service or for performing duties of outstanding importance or for employment in an industry or camp." 28 C.F.R. § 523.10(a). It is unclear whether § 523.17(l) pertains to the standard GCT credits calculated under § 523.20. See Lopez, 697 F.Supp.2d at 564 (noting that the BOP failed to adequately explain its position under § 523.17(l)).
Moreover, the weight of authority supports the BOP's interpretation of § 3624(b). Nearly every court that has addressed this issue has determined that the BOP's practice of awarding GCT credits based on the time served, beginning when the federal sentence commences, is reasonable. Ross, 2008 WL 4745671 (petitioner entitled to GCT on net federal sentence, after § 5G1.3 applied, beginning on the date the federal sentence is imposed; BOP interpretation of § 3624(b) reasonable); Gouch v. Eichenlaub, 2008 WL 2831250 (E.D. Mich. July 21, 2008) (same);Hickman v. United States, 2006 WL 20489 (S.D.N.Y. Jan. 4, 2006) (same); Green, 2009 WL 2982864 at *3 (awarding GCT credit based on time served on federal sentence, beginning on the date imposed, and not including time served on discharged state sentence, was reasonable interpretation of § 3624(b)); Schuschny v. Fisher, 2008 WL 5381493 (N.D.Fla. Dec. 19, 2008) (awarding no GCT credit on five month federal sentence, BOP's interpretation of § 3624(b) reasonable); Divito v. Wells, 2009 WL 2920847 (S.D.Ga. Sept. 8, 2009) (awarding GCT credit only for time spent in federal custody, not the total sentence imposed). See also Montalvo v. United States, 174 F.Supp.2d 10, 15 (S.D.N.Y. 2001) (petitioner not entitled to federal GCT credit for time spent in state custody, before his federal sentence began, "[n]othing in § 5G1.3(c) or its application notes suggests that this would be a proper sentencing determination"); United States v. Hilario, 449 F.3d 500, 501 (2nd Cir. 2006) (sentencing court properly refused to award GCT credits on federal sentence for previous time served in a Belgian prison on related charges).
Petitioner's reliance on United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir. 1995) is unavailing. In Drake, the Ninth Circuit determined that when § 5G1.3 applies to a concurrent sentence, the district court may consider the defendant's undischarged time in state prison when assessing whether the defendant will serve the mandatory minimum under 18 U.S.C. § 924(e). Petitioner submits that, like Drake, the time he spent in state custody also should constitute imprisonment "toward the service of his sentence" under § 3624(b), and that he should receive GCT credit for the time in state custody. The reasoning in Drake turns on the interpretation of "imprisonment" in § 924(e), and is inapplicable here. Drake does not address the BOP's authority to award GCT credits under § 3624(b), and has no bearing on when a federal sentence "commences" under § 3585. Cf. United States v. Ramirez, 252 F.3d 516, 519 (1st Cir. 2001) (noting that discharged terms of imprisonment may not be taken into consideration for statutory mandatory minimums under § 924(e)).
In sum, I find the BOP's interpretation of § 3624(b) reasonable, and that the BOP correctly began calculating petitioner's GCT credits based on the commencement of his 94 month federal sentence.
III. Doctrine of Constitutional Avoidance and the Rule of Lenity.
Petitioner contends that the BOP's interpretation of § 3624(b) results in similarly situated defendants receiving disparate sentences based solely on the timing of their federal and state prosecutions, violating the constitutional principles of Due Process and Equal Protection. According to petitioner, his interpretation of § 3624(b) should be adopted to avoid having to address these constitutional issues. I disagree.
The doctrine of constitutional avoidance only pertains where there are "serious doubts" as to a statute's constitutionality.See U.S. v. Buckland, 289 F.3d 558, 564 (9th Cir.), cert. denied, 535 U.S. 1105 (2002). I have concluded that the BOP's construction of § 3624(b) does not raise serious constitutional problems. See Crampton, 2009 WL 1974481 at *5; see Barber, 130 S.Ct. at 2508-09.
The rule of lenity requires that ambiguous penal statutes be interpreted in favor of a defendant. See United States v. Santos, 553 U.S. 507 (2008). Even assuming arguendo that the rule of lenity applies to § 3624(b), it applies only where after "considering text, structure, history, and purpose there remains a grievous ambiguity or uncertainty in the statute." Barber, 130 S.Ct. at 2508 (internal quotations omitted). Because I have concluded that the BOP's interpretation of § 3624(b) is reasonable, no gross ambiguity remains and I need not resort to the rule of lenity to interpret § 3624(b). Id.; Pacheco-Camacho, 272 F.3d at 1271-72; Perez-Olivio v. Chavez, 394 F.3d 45, 53-54 (7th Cir. 2004); Crampton, 2009 WL 1974481 at *5.
CONCLUSION
Based on the foregoing, petitioner's petition for writ of habeas corpus (#2) is DENIED, and this proceeding is DISMISSED, with prejudice.
IT IS SO ORDERED.
DATED this 7 day of SEPTEMBER, 2010.
le approach to a difficult question.
2. Injury at Ten PPB
I have already held in prior decisions that whether contamination at or below the MCL injures the City is a question of fact for the jury. At trial, the City introduced several pieces of evidence to support the inference that a reasonable water provider in the City's position would treat the water in the Station 6 wells. For example, the City introduced testimony that twenty-five percent of the population can detect MTBE at three to four parts per billion, that ten percent of the population can detect MTBE at one to two parts per billion, that MTBE may be carcinogenic at low levels of exposure in drinking water, and that if one or more of the Station 6 wells is taken offline for any reason the concentration of MTBE in the combined outflow of the remaining wells could spike to fifteen ppb or higher (a violation of the MCL). There is nothing unreasonable about the jury determining, on the basis of this evidence, that a reasonable water provider in the City's position would treat the water in the Station 6 wells.
See 8/31/09 Tr. at 2889:18-22 (Harry Lawless).
See id.
See, e.g., 9/2/09 Tr. at 3267:18-3267:24 (Kenneth Rudo).
See 9/24/09 Tr. at 5869:10-5861:20 (Marnie Bell).
3. Good Faith Intent
ExxonMobil also argues that the jury did not have sufficient evidence to find that the City has a good faith intent to begin construction of the Station 6 facility within the next fifteen years. I disagree. Kathryn Garcia, an Assistant Commissioner for Strategic Projects at the New York City Department for Environmental Protection, testified that the Station 6 wells would be used as a
See ExxonMobil Mem. at 21. ExxonMobil also argues that because the City's claims are for the threat of injury, rather than an injury that has already occurred, the City must prove "that the threat is imminent and certainly impending." Id. at 20 (citing In re MTBE, 175 F. Supp. 2d at 610. However, as discussed, the City is injured when the groundwater within the Station 6 wells becomes contaminated with MTBE, not when that MTBE actually enters the Station 6 wells. Thus, because the MTBE is already in the groundwater, the City has suffered an injury even though it has not yet turned on the Station 6 wells.
backup source of water if other pieces of infrastructure, such as aqueducts currently in use, suffered an outage. Graham Fogg, a hydrogeology professor at the University of California, Davis, testified that plumes of MTBE will remain in the geographic vicinity of Station 6 for decades into the future. This testimony, which the jury apparently credited, provides a sufficient basis for the jury to infer that the City intends to use the Station 6 wells as a backup water source and that it intends to build a treatment facility to ensure that it is able to use water from those wells if and when needed.
See 8/5/09 Tr. at 420:9-421:19. See also 8/6/09 Tr. 666:1-668:18 (William Meakin) (testifying that the City will use Station 6 to supply the public with water in drought situations and during infrastructure repairs).
See 8/17/09 Tr. at 1561:18-1562:14.
D. Causation
The jury found ExxonMobil liable as both a manufacturer, refiner, supplier and seller of gasoline containing MTBE and as a direct spiller of gasoline containing MTBE. ExxonMobil argues that the evidence introduced at trial does not support that determination and that the jury was confused as to the traditional principles of causation due to the Court's description of the commingled product theory of causation in the jury charge.
1. Insufficiency of the Evidence
At trial, the City relied on Terry's capture zone model to establish causation. As I explain below, combined with the other evidence submitted at trial, this capture zone model provided a sufficient basis for the jury to determine that ExxonMobil's conduct both as a manufacturer, refiner, supplier and seller of MTBE gasoline and as a direct spiller of MTBE gasoline was a substantial factor in causing the City's injury.
a. Manufacturer, Refiner, Spiller and Supplier
At trial, the City produced three pieces of evidence to show that ExxonMobil's conduct as a manufacturer, refiner, supplier and seller of gasoline containing MTBE was a substantial factor in injuring the City: (1) expert testimony that, due to the commingled nature of the gasoline distribution network, ExxonMobil gasoline would be present in nearly every UST within the Station 6 capture zone; (2) expert testimony that ExxonMobil supplied approximately twenty-five percent of the gasoline sold in Queens; and (3) testimony that, over
See 9/9/09 Tr. at 4103:6-4105:20 (Bruce Burke).
See 9/14/09 Tr. at 4281:8-11 (Martin Tallett). This testimony was based on data reflecting the supply of gasoline into New York state, as opposed to data reflecting the supply of gasoline into Queens county. However, the City's expert testified that there "are few reliable data available at the county level," see id. at 4281:19-20, and that the state data is the "best proxy," see id. at 4281:21, for determining ExxonMobil's market share in Queens because most of the gasoline that comes into New York state is "supplied into . . . New York City and the surrounding counties, . . . [including Queens]," see id. at 4282:1-4. While the New York state data is not a perfect substitute for data specific to Queens, it was reasonable for the jury to determine that if ExxonMobil was supplying approximately twenty-five percent of the gasoline to New York state, it was supplying a substantial percentage of the gasoline entering Queens.
time, all USTs leak. ExxonMobil's objection to the sufficiency of this evidence focuses on the City's use of market share data.
See 8/12/09 Tr. at 1117:4-23 (Marcel Moreau); 8/13/09 Tr. at 1335:1-21 (same); 8/14/09 Tr. at 1389:4-11, 1451:8-1452:2 (same).
First, ExxonMobil argues that the City should not have been permitted to use market share data because it disclaimed reliance on the market share theory of liability. This argument conflates application of the market share theory of liability with using market share data as circumstantial evidence of causation. Under the market share theory, liability is apportioned according to a defendant's national market share even though it is assumed that the vast majority of defendants in any one case did not injure the plaintiff. The City, on the other hand, sought to use market share data to show that "ExxonMobil . . . represented such a substantial fraction of the total gasoline sold in the Queens area, that . . . it was not only present, but present in such quantity at leaking stations" that it was more likely than not a cause of the City's injury. While New York has severely limited the circumstances in which the market share theory of liability may be applied, it has never suggested that market share data cannot be used to prove traditional causation, and I find nothing unreasonable about the jury relying on that data to find ExxonMobil liable.
See ExxonMobil Mem. at 8-9.
City's Memorandum in Opposition to ExxonMobil's Renewed Motion for Judgment as a Matter of Law, or, in the Alternative, for a New Trial And/Or Remittitur ("City Opp.") at 12.
See Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 241-42 (2001).
Second, ExxonMobil argues that even if the use of this market share data is permissible, a twenty-five percent market share cannot make it more than twenty-five percent likely that ExxonMobil was a cause of the City's injury, and thus, reliance on the market share data does not satisfy the preponderance of the evidence standard. This argument is incorrect. Given the commingled state of gasoline entering Queens, ExxonMobil's twenty-five percent market share can support the inference that Exxon-Mobil's conduct was more likely than not to have caused twenty-five percent of the contamination in the Station 6 wells. The jury was entitled to find that, by causing this significant portion of contamination in the Station 6 wells, ExxonMobil's MTBE-containing gasoline was a substantial factor in producing the City's injury.
See ExxonMobil Mem. at 9-10.
b. Direct Spiller
To succeed on its direct spiller claims, the City was required to show that MTBE gasoline released from ExxonMobil-controlled stations was a cause of the City's injury at Station 6. However, "[t]hat showing need not be made with absolute certitude nor exclude every other possible cause of injury." Instead, the City was only required to prove "facts and circumstances . . . from which causation may reasonably be inferred."
Koester v. State, 457 N.Y.S.2d 655, 658 (4th Dep't 1982) (citations omitted) (holding that the New York Court of Claims erred in holding that the absence of a curve sign on a ramp was not the proximate cause of driver's accident although the "claimant was aware of the general course of the ramp and the existence of the curve from having traveled over it on prior occasions during daylight hours, it was a dark night and he had just left a lighted highway and entered on the unlighted ramp")).
Id. (citations omitted).
The City attempted to meet that burden at trial by introducing evidence of multiple spills at ExxonMobil-controlled stations within Terry's predicted capture zone and evidence that MTBE has escaped remediation efforts at many of those sites. ExxonMobil argues that Terry's capture zone model does not provide an adequate basis for proving direct spiller causation because it was based on the assumption that the Station 6 wells will pump water continuously from 2016 until 2040. According to ExxonMobil, that assumption conflicts with the jury's finding that "Station 6 will be used only as a backup source" and is unsupported by the evidence.
See 8/13/09 Tr. at 1230:7-1267:1, 1267:1-1288:24, 1289:9-1301:1, 1308:2-25; 8/18/09 Tr. at 1756:7-24; 1781:1-6, 1806:14-1807:12, 1821:22-1822:16; 9/21/09 Tr. at 5229:11-5236:23; 5244:19-5244:20, 5253:19-5254:1.
See 8/18/09 Tr. at 1906:8-10.
See 8/19/09 Tr. at 2155:11-2156:1.
ExxonMobil's Supplemental Brief in Response to the Court's Questions on Defendants' Post-Trial Motion at 18.
See ExxonMobil Mem. at 7; ExxonMobil Reply at 5.
Regardless of this discrepancy, however, the jury could still reasonably have found that MTBE from ExxonMobil-controlled stations would impact Station 6. At trial, a series of demonstrative maps depicting the evolution of Terry's predicted capture zone over time were shown to the jury. These maps, which were based on exhibits introduced at trial, indicate that ExxonMobil-controlled stations are situated in nearly every direction from Station 6. Moreover, several of these stations are close enough to Station 6 to be well within the borders of Terry's predicted capture zone at every stage of its evolution ( i.e., even in the earliest stages of the assumed pumping schedule). The City, for example, introduced evidence that significant amounts of MTBE gasoline were spilled at an ExxonMobil-controlled station, 113-21 Merrick Boulevard, located within a half-mile of Station Six. In conjunction with Terry's (allegedly imperfect) capture zone model, this sort of evidence — i.e., the existence of several ExxonMobil-controlled stations in close proximity to, and positioned radially in multiple directions from, Station 6 — provides a sufficient basis for the jury to reasonably infer that ExxonMobil's conduct as a direct spiller was a cause of the City's injury.
See 9/23/09 Tr. at 5678:13-5681:13.
See Pl. Ex. 14845A-X; Pl. Ex. 14844A-C; Pl. Ex. 3167; Pl. Ex. 5582; Pl. Ex. 5583; Pl. Ex. 5584.
See 9/21/09 Tr. at 5253:19-5254:1 (Thomas Maguire).
See 8/19/09 Tr. at 1977:4-6.
2. Jury Confusion
ExxonMobil seeks a new trial on the ground that "[e]ven though the jury did not render a verdict on the commingled product theory . . . the erroneous commingled product theory so permeated the trial as to make it impossible for the jury to comprehend traditional causation." Specifically, ExxonMobil suggests that the Court's instruction on the commingled product theory "impermissibly relieved the City of its burden to identify the defendant who caused its harm." This argument is without merit.
ExxonMobil Mem. at 10-11.
Id. at 11 (citing Hymowitz, 73 N.Y.2d at 504 ("In a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required.")).
First, as discussed, the commingled product theory of liability, unlike the market share theory of liability, does not allow for the imposition of liability against a defendant in the absence of a finding that the particular defendant's product contributed to harming the plaintiff. The market share theory assumes that the vast majority of defendants did not actually contribute to the harm incurred by a particular plaintiff ( i.e., all defendants supplying DES used to treat women during pregnancy are held liable even if only one defendant manufactured the DES pills that were ingested by the plaintiff). The commingled product theory, in contrast, requires a finding that the product of each and every defendant held liable contributed to plaintiff's injury ( i.e., a defendant cannot be held liable unless its gasoline was present in the commingled product that contaminated plaintiff's groundwater). Second, the jury was clearly instructed that the commingled product theory is distinct from the traditional theory of causation and informed as to the nature of that difference. For example, in describing the commingled product theory, I instructed the jury:
See In re MTBE, 644 F. Supp. 2d at 319.
What sets [the commingled product theory] apart from manufacturer, refiner, supplier or seller causation is that to prove [causation under the commingled product theory], the [C]ity need not show that [ExxonMobil's] contribution taken alone would have injured the [C]ity.
There is no indication that the jury did not understand this instruction. Third, the jury was entitled to consider testimony that the gasoline supplied to Queens was commingled in determining whether ExxonMobil's gasoline injured the City under traditional principles of causation. The fact that ExxonMobil gasoline was spread throughout the gasoline distribution network in Queens increases the probability that ExxonMobil gasoline was in the USTs that leaked gasoline into the Station 6 capture zone. Evidence of commingling was therefore relevant even if the jury did not ultimately reach the commingled product theory of causation.
See United States v. Witten, 610 F.3d 168, 191 (2d Cir. 2010) ("We presume that juries follow instructions. . . .") (citing Richardson v. March, 481 U.S. 200, 206 (1987) (juries are presumed to follow instructions)).
See O'Brien v. National Gypsum Co., 944 F.2d 69, 72-73 (2d Cir. 1991) ("Given testimony that asbestos products were used interchangeably on virtually all of the warships under construction in the Navy Yard, [plaintiffs] disease might reasonably be attributed in part to exposure to [defendant's] products." (emphasis added)).
E. Juror Misconduct: Extra-Record Information
During the jury's Phase III deliberations, I learned that a member of the jury had performed limited Internet research relating to this case. ExxonMobil argues that I erred in not declaring a mistrial on the basis of this juror's misconduct. Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine. Nevertheless, in
See ExxonMobil Mem. at 27-29.
This has become a recurring problem. See, e.g., Christina Hall, Facebook Juror Gets Homework Assignment, The Detroit Free Press, Sept. 2, 2010 (reporting that a Michigan juror who posted on Facebook that a defendant was guilty before the completion of trial was dismissed from the jury, held in contempt of court, ordered to pay a $250 fine and required to write a five page essay on the defendant's Sixth Amendment right to a jury trial); Noeleen G. Walter, Access to Internet, Social Media by Jurors Pose Challenges for Bench, N.Y. L.J., Mar. 3, 2010 (reporting that a state trial court in the Bronx determined that a woman breached her obligations as a juror by sending a Facebook "friend" request to a government witness but rejected the defense's argument that this act had tainted the jury's guilty verdict); Andrea F. Siegel, Judges Confounded by Jury's Access to Cyberspace: Panelists Can Do Own Research on Web, Confer Outside of Courthouse, The Balt. Sun, Dec. 13, 2009 (discussing the increasing trend in Maryland courts of defendants seeking a mistrial on the ground that one or more of the jurors conducted Internet research about the defendant's case while the trial was ongoing); Debra C. Weiss, Juror Whose Revelation Forced a Mistrial Will Pay $1,200, A.B.A. J., Oct. 13, 2009 (reporting that a New Hampshire juror charged with contempt of court for revealing during deliberations that the defendant was a convicted child molester pleaded guilty to a reduced charge and agreed to pay $1,200 to reimburse the county for expenses related to two days of deliberations); Daniel A. Ross, Juror Abuse of the Internet, N.Y. L. J., Sept. 8, 2009 (examining the problem of "Internet-tainted" juries across the United States and abroad); John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009 ("It might be called a Google mistrial. The use of BlackBerry's and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges."). In response to this problem, the Judicial Conference Committee on Court Administration and Case Management has recently recommended the following charge:
Before Trial:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the Internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.
At the Close of the Case:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (December 2009).
this instance, the jury was not too polluted by the receipt of extra-judicial information such as to prevent it from rendering a fair verdict based on the evidence introduced at trial.
It is axiomatic that juries are required to decide cases on the evidence introduced at trial. However, a new trial is not required solely because the jury was exposed to extrinsic information. "`The issue, as Judge [Henry] Friendly observed, is `not the mere fact of [jury] infiltration . . . but the nature of what has
See Manley v. AmBase Corp., 337 F.3d 237, 252 (2d Cir. 2003).
been infiltrated and the probability of prejudice.'" While a court may question a jury about what they learned in making this determination, after deliberations have begun, it is inappropriate for a "court [to] inquire into the degree upon which the extra-record information [is being] used in deliberations and the impression which jurors actually ha[ve] about it." "Rather, courts must apply an objective test focusing on two factors: (1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury."
Id. (quoting United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970)).
United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002) (quotation marks and citations omitted).
Manley, 337 F.3d at 252 (quotation marks and citations omitted).
Because the jury was not exposed to evidence that would prejudice the average juror, it was not error to deny ExxonMobil's motion for a mistrial. Juror No. 8, who clearly obtained improper information during Phase III deliberations was immediately excused after the Court learned of his misconduct. The jury brought this fact to my attention soon after they became aware of it and the remaining jurors appeared candid and forthcoming in answering my questions about the information they had learned. Although Juror No. 8 initially painted a picture of a jury that was engaging in rampant outside research, his assertion that `everybody was doing it' was nothing more than the defensive tactic of a juror looking for cover after he had been caught with his hand in the proverbial cookie jar. When he and the other jurors were questioned further, it became apparent that the limited information Juror No. 8 had communicated to them was decidedly vague.
Juror No. 11 learned that there was going to be a fourth phase of the trial — which he described as "some other penalty part." Although the punitive damages phase is often separated from the liability phase because plaintiffs are permitted to introduce evidence in the punitive damages phase that is irrelevant in the liability phase, mere knowledge of a possible penalty phase is insufficient to create prejudice. Indeed, when the jury was charged on Phase III of this trial, it was given detailed instructions on how to calculate compensatory damages. If such instructions (which are commonly given) are not deemed to prejudice the jury's deliberations, then neither should a juror's vague knowledge that there may be a further penalty phase.
10/9/09 Tr. at 6808:4-6.
Compare Disorbo v. Hoy, 343 F.3d 172, 189 n. 9 (2d Cir. 2003) (stating that evidence of a defendant's financial situation should be admitted in the punitive damages phase of a trial because one of the purposes of punitive damages is deterrence) with Tesser v. Board of Educ. of School Dist. of City of N. Y., 370 F.3d 314, 318 (2d Cir. 2004) (stating that evidence of a defendant's wealth is generally inadmissible in cases not involving punitive damages).
Juror No. 5 learned that ExxonMobil was the only remaining defendant in this case and that many of the other defendants had settled for approximately one million dollars each. The jury, however, was already well aware from the evidence introduced at trial, as well as from this Court's instruction that it must apportion liability among all responsible oil companies operating in the area surrounding Station 6, that other oil companies had caused contamination at Station 6. As such, a juror could easily make the connection that these other defendants had settled without being informed that this was the case by another juror who claimed to have obtained information from the Internet. Moreover, Juror No. 5's knowledge of these supposed settlements was so limited and vague that it would be highly unlikely to have prejudiced the average juror's deliberative process.
Juror No. 6 also recalled Juror No. 8 making some equally vague comments about plaintiffs receiving money in other MTBE cases.
In addition, two other jurors performed some limited outside research on their own. Juror No. 4 tried to drive over to Station 6, but failed to find it. Juror No. 6 looked me up on Wikipedia and read an article about water contamination caused by coal companies. As with the information shared by Juror No. 8, the jury's exposure to this information does not warrant a mistrial. Although it was inappropriate for Juror No. 4 to attempt to find Station 6, his failure to actually find that site prohibits any inference of prejudice. As for Juror No. 6 — the information which she uncovered had only a tangential relationship to this case. Jurors do not enter the courtroom as blank slates and the addition of this limited information to Juror No. 6's mix of knowledge cannot reasonably be deemed prejudicial.
F. Dismissal of Alleged Holdout Juror
ExxonMobil argues that a new trial is warranted because the "Court erred in dismissing Juror [No.] 2, rather than declaring a mistrial, when it was revealed that she was threatened for being a holdout." ExxonMobil did not object to the removal of Juror No. 2 at any point until it filed its post-trial motions. In fact, at the time of removal, ExxonMobil agreed that the Court should excuse Juror No. 2. Because it would be patently unfair to allow ExxonMobil to object to a decision by this Court (the dismissal of Juror No. 2) that it previously endorsed only after it received an adverse verdict, ExxonMobil has waived its right to make this objection. If ExxonMobil believed that Juror No. 2 was being forced off of the jury because she was a holdout, it should have objected to her removal when the evidence allegedly supporting that inference arose.
ExxonMobil Mem. at 29.
Although ExxonMobil did subsequently move for a mistrial, it did so on entirely different grounds — i.e., when it discovered that "an actual instrument [ i.e., the fork] was used in the jury room. . . ." 10/16/09 Tr. at 7022:14-17. ExxonMobil never suggested that it viewed Juror No. 2 as a holdout juror or intimate the view that Juror No. 2 should not be dismissed.
See U.S. v. Desir, 273 F.3d 39, 43 (1st Cir. 2001) ("[A] defendant who has knowledge of juror misconduct or bias at the time of trial waives such a claim by failing to raise it until after trial."); Dunn v. Denk, 54 F.3d 248, 251 (5th Cir. 1995) (holding that a defendant waived an objection when he knew of juror misconduct "but chose to remain to silent until the return of an adverse verdict"); U.S. v. Breit, 712 F.2d 81, 83 (4th Cir. 1983) ("A defendant who remains silent about known juror misconduct — who, in effect, takes out an insurance policy against an unfavorable verdict — is toying with the court.").
G. Remaining Liability Issues
ExxonMobil has also raised a series of issues relating to: (1) the jury's findings of liability on the City's failure to warn, negligence, public nuisance, and trespass claims; and (2) several evidentiary rulings. Having reviewed the record thoroughly, and considered all of ExxonMobil's submissions, I find that these arguments — many of which have previously been considered by
See ExxonMobil Mem. at 12-13.
See id. at 21-23.
See id. at 23-24.
See id. at 24-27.
See id. at 31-37.
this Court — are without merit.
H. Damages
ExxonMobil argues that the jury's damages award warrants a new trial on damages, or, in the alternative, remittitur. ExxonMobil points to three purported errors in Bell's testimony — which provided the basis for the jury's award. None of these alleged errors are sufficient to warrant a new trial on damages or remittitur. First, ExxonMobil argues that Bell's capital cost estimate of $59,990,000 was unreasonable given that she had estimated that cost at $9.9 million in 2004. However, Bell was cross-examined on this point at trial and testified that she had altered the estimate for a number of reasons — including inflation, the escalation of prices of certain raw materials and a change in design. The jury was entitled to accept that explanation.
See id. at 37-45.
See id. at 42-43.
See Trademark Research Corp. v. Maxwell Online, Inc., 995 F.3d 326, 337 (2d Cir. 1993) ("We have found remittitur appropriate in at least two distinct kinds of cases: (1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, . . . and (2) more generally, where the award is `intrinsically excessive' in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." (quotation marks and citations omitted) (emphasis added)).
Although courts generally look to damages awards in other similar cases to determine if an award is excessive, due to the factual uniqueness of this case, the parties have not uncovered any verdicts that can act as an appropriate benchmarks. For comparison's sake, ExxonMobil notes that "the City previously addressed MTBE contamination in five wells, readied for use in a drought emergency, by installing [remediation] units at a total cost of [$3,160,000], or approximately $632,000 per well." ExxonMobil Mem. at 42 (citing 9/24/09 Tr. 5962:4-6 (Marnie Bell)). The City, in contrast, points out that three gasoline companies in a California case agreed, for purposes of settlement, that the cost of constructing and operating a water treatment facility serving five contaminated wells will cost approximately $220,050,000. See City Opp. at 42. As the parties agree, because these cost figures were not adopted by juries after a civil trial, they provide limited guidance as to the appropriate award in this case.
See ExxonMobil Mem. at 39, 43.
See, e.g., 9/30/09 Tr. at 6036:17-20, 6044:20-23, 6045:1-7, 6045:15-19.
Second, "the jury implausibly credited [] Bell's dubious testimony that certain equipment will require replacement every 20 years, regardless of whether that equipment is used or for how long." Bell opined at trial that the equipment used at Station 6 will likely deteriorate even if it lays fallow. As anyone who has left a piece of machinery, such as an automobile, idle for a long period of time is aware, there is nothing unreasonable about the inference that such equipment can become corroded and require replacement parts. Accordingly, I cannot find that the jury acted in error by crediting Bell's testimony that equipment at Station 6 will have to be replaced twice over the forty year period it will be in use. Third, ExxonMobil argues that "the jury inappropriately awarded $141 million for [operating and maintenance] costs based on nothing more than the ipse dixit statements of [] Bell and her speculative assumption that Station 6 will operate continuously for 40 years." The City introduced evidence at trial that the Station 6 wells will also be used to fulfill the public's water needs in emergency drought situations or if presently unforeseen infrastructure repairs become necessary. Because there is no sure way to estimate how likely these emergencies are to occur, and thus, how often the City will need to use the Station 6 wells, it was not unreasonable for Bell, in assessing damages, to assume that the wells will operate continuously. Indeed, it is appropriate that the wrongdoer (ExxonMobil) rather than the innocent party (the City) should bear the risk that these emergencies will occur frequently. As Bell explained, she assumed the wells would run continuously for forty years because, for planning purposes, the City needs to presume the "worst-case scenario." The jury did not act unreasonably in accepting this explanation and adopting Bell's operating and maintenance costs.
ExxonMobil Mem. at 43.
See 9/30/09 Tr. at 6023:16-18.
ExxonMobil Mem. at 42-43.
However, the only planned infrastructure project requiring use of the Station 6 wells is the repair of an aqueduct (the Rondout-West Branch tunnel) used to supply the City with drinking water — which will take approximately four years. See 8/6/09 Tr. 701:9-15 (Steven Lawitts).
9/30/09 Tr. at 6019:1-2. Accord id. at 6017:20-22 ("Again, for the purposes of designing costing, the only reasonable assumption to make was to assume it would operate continuously.").
Accordingly, because I conclude that the jury's damages award did not contain specific, quantifiable errors, I reject ExxonMobil's request for a new trial on damages, or in the alternative, remittitur.
VI. CONCLUSION
For the aforementioned reasons, ExxonMobil's post-trial motion is denied. The Clerk of Court is directed to close this motion (Docket No. 610).
SO ORDERED: