Tonawanda News

March 15, 2014

Tonawanda Coke's motion for acquittal denied

By Jessica Bagley jessica.bagley@tonawanda-news.com
The Tonawanda News

Tonawanda News — BUFFALO — U.S. Chief District Judge William Skretny has denied the defendants’ motion for an acquittal or a new trial ahead of Tonawanda Coke’s sentencing set for Wednesday. 

Last year, a jury found the Town of Tonawanda plant and its environmental manager, Mark Kamholz, guilty of violating two federal laws — the Clean Air Act and the Resource Recovery and Conservation Act. Kamholz was also found guilty of obstruction of justice.

Among other arguments, the plant’s attorneys had asked for a new trial due to the court’s purported failure to instruct the jury on how to consider its main defensive argument, entrapment by estoppel.

During the trial, defense attorneys did not deny that the environmental violations took place, but said that governmental agencies tacitly authorized the actions — thereby entrapping the plant and Kamholz. Entrapment by estoppel requires the defense to prove by a preponderance of the evidence that the governmental agencies “seemingly appeared to authorize the conduct.” 

But Friday’s ruling states that the court properly instructed the jury on how to consider the defense, and stated that the defendants are therefore not entitled to a new trial.

“This court delivered the affirmative defense instruction at two separate points during the charge to the jury,” the ruling states. “No further charge or suggestion on how to proceed in deliberations was required, and, in fact, more could possibly have impermissibly encroached on the jury’s independent deliberative function.”

The court still has to issue decisions on other presentence motions before sentencing on Wednesday. Skretny will rule on whether he will classify residents as victims under the Crime Victims’ Rights Act, as U.S. prosecutors have requested.

U.S. prosecutors are also arguing that a sentencing hearing should be held to allow members of the community to testify about the harm they suffered as a result of the plant’s air pollution.  

The defendants face a maximum sentence of more than $200 million in fines and 75 years in prison for Kamholz. The government has recommended that Tonawanda Coke fund nearly $12.8 million in community service projects, including an $11 million health epidemiology study and $700,000 for soil and water testing.

The recommendation also includes a $44.3 million criminal fine, a five-year probation, a remedial investigation of the coal field and the implementation of an environmental compliance plan.

Prosecutors have recommended that Kamholz be sentenced to a term of six to eight years in prison and pay a fine of $250,000.

Contact reporter Jessica Bagley at 693-1000 ext. 4150, or follow her on Twitter @JessicaLBagley.