E-Waste Dumping Trial in Denver Postponed For Second Time

A three-week trial was to have started Jan. 30, but the fact that too many conflicting prosecution and defense motions remain unresolved convinced U.S. District Judge William Martinez to postpone the trial indefinitely, he said in an order Friday. “Given the nature and complexity of the issues raised by the pending motions, in addition to the fact that trial is scheduled for one month from today, the Court reluctantly concludes that no viable alternative exists other than for it to vacate the current trial date,” Martinez said. He will schedule a new trial date after he rules on “the referenced motions,” his order said.

The biggest dispute on which Martinez must rule is whether to allow video depositions to be taken of three inspectors from the Hong Kong Environment Protection Department (HKEPD) as prosecutors are seeking. The inspectors were interviewed by the EPA as part of the investigation that led to the indictments against Richter and Olson, prosecutors said. “As such they are familiar with a number of shipments of illegal CRTs that the defendants exported to Hong Kong,” prosecutors said. The HKEPD also provided the EPA with “records concerning its rejection of approximately 26 illegal shipment of CRTs by the defendants,” prosecutors said.

Though the three inspectors “have stated they may be willing to travel to Colorado to testify at trial in this case,” there’s no assurance that Hong Kong will allow them to do so under a Mutual Legal Assistance Treaty request that the U.S. has filed with the Hong Kong government, prosecutors said. “Hong Kong cannot compel its nationals to appear” in Denver federal court, they said. “Therefore, if the Hong Kong government rejects the request to have its citizens personally appear, or if these officials change their mind about coming,” prosecutors want permission to take the video depositions in Hong Kong as a fallback to preserve crucial evidence in the case, they said. Prosecutors hope that the witnesses “will appear in person at trial,” they said. “It is the government’s preferred method to present its evidence in the form of live in-person testimony.” But since prosecutors “cannot compel these witnesses to appear,” the government wants to assert “its right to preserve trial testimony” through video depositions.

But lawyers for Richter and Olson oppose the video depositions on grounds that it would violate their constitutional right to be able to confront their accusers. “The right to effective confrontation is one of the bedrock principles of American criminal law,” defense lawyers argued. Case law makes “clear that it is a not a right to be routinely compromised through testimonial alternatives to live testimony in the court room,” they said. “The solemnity of the oath administered by a judge to a witness who submits to the jurisdiction and authority of the court, the formality of the courtroom, the presence of the jury, the right to full cross examination, and observation of the witness’ demeanor by the jury in the crucible of the courtroom are all important aspects of the truth finding function secured by the confrontation clause."

Defense lawyers also have asked Martinez to dismiss counts one to 13 of the 16-count indictment in which Richter and Olson are accused of wire fraud. The indictment charges Richter and Olson with using emails to “defraud various business and government entities” into thinking that the e-waste that Executive Recycling collected from them would be disposed of responsibly, not shipped illegally to Hong Kong. “The defendants’ misrepresentations” induced customers to sign contracts to pay Executive Recycling to get rid of the e-waste, the indictment said.

But “this case is about alleged environmental crimes, not about wire fraud,” defense lawyers argued in their dismissal motion, which prosecutors have been given until Jan. 9 to respond to. “This case is not like a typical wire fraud case,” in which victims are “deprived of their money or property through a fraud,” the defense argued. “This case is not like that. For example, the government here does not allege that the defendants obtained the alleged victims’ money and left them holding the trash. Here, money was paid for a service, removal of the unwanted items. The service was provided. The complaint of the government is that the service that was performed failed to conform to the oral representations that were made prior to the execution of the contract, and that the term of the contract requiring compliance with applicable laws was violated. If the government’s theory of deprivation of money were to be accepted, then every false promise breach of contract case would carry the potential for criminal prosecution.”