Man Convicted of Rigging Water Tests Fights Sentence in 11th Circuit

ATLANTA (CN) — An attorney for a Florida man who admitted to falsifying water samples in southeastern Alabama asked an 11th Circuit panel Wednesday to rule that his 30-month sentence for fraud is unreasonable.

Darin Lewis, of Crestview, Florida, pleaded guilty in February 2017 to one count of conspiring to commit wire fraud as part of a scheme to falsify water samples during the testing of new water lines installed in Dale County, Alabama.

According to his indictment, Lewis was hired by Roberson Excavation in January 2015 as a site supervisor after the company was awarded a contract by the Dale County Water Authority to replace water lines in the Marley Mill neighborhood. Lewis’s co-defendant, Billy Ray Roberson, was the owner and president of Roberson Excavation.

By the time Lewis was hired, Roberson Excavation was nearly three months behind schedule on the job and was paying penalties of $500 per day that the project went unfinished.

Under pressure to complete the job quickly, Roberson instructed Lewis to falsify the testing required before the water lines went into operation. The tests falsified by Lewis included those used to determine whether harmful bacteria were present in the water.

In February 2015, Lewis submitted clean water samples to a laboratory from water lines connected to a fire hydrant which had already been tested and cleared of bacteria, claiming that the clean samples came from the newly installed water lines.

Roberson also told Lewis to manipulate pressure testing on the water lines to disguise the presence of leaks, court records show.

After the falsified samples tested negative for the presence of bacteria, Roberson Excavation submitted the lab report to the project engineer, falsely certified that it had completed the required water testing, and requested payment.

The charges against Roberson were eventually dismissed by the government. Roberson Excavation was ordered to pay $60,000 in penalties and agreed to release up to $154,000 of the money it previously claimed back to the Dale County Water Authority.

Lewis signed a plea agreement with the government, agreeing to plead guilty and waive his right to appeal in exchange for a reduced sentence.

On Wednesday, Mackenzie Lund, an assistant federal defender representing Lewis, asked a three-judge 11th Circuit panel to find that Lewis’ prison sentence of two and a half years was unreasonable.

Lund asked the panel to rule that the government waived the sentence appeal prohibition contained in the plea agreement when it joined Lewis in objecting to his sentence at the sentencing hearing.

“When the government objected in support of defendant on his sentence, the government waived the sentence appeal waiver. The government joined in Lewis’ objection to the reasonableness of the sentence and the government’s objection results in a waiver on appeal,” Lund argued.

Chief U.S. Circuit Judge Ed Carnes appeared unconvinced, telling Lund, “It’s perfectly consistent that the government could support an objection and also say that the appeal is still waived.”

Assistant U.S. Attorney Jonathan Ross echoed Carnes’ statement during his brief arguments.

“The objection was merely an attempt to support the plea agreement. The government did not waive its ability to enforce the appeal waiver. The government never said we thought the sentence was substantively unreasonable,” Ross told the panel.

“All you were doing was objecting that the sentence you asked for wasn’t given, right?” asked Senior U.S. Circuit Judge Raymond Clevenger III, sitting by designation from the Federal Circuit.

“Yes, your honor. At the time the government objected, the district court still had time to reconsider the sentence… If the government hadn’t objected, the defendant may have said that the government engaged in prosecutorial misconduct by not holding up our end of the agreement. There was no implicit or explicit attempt to waive the appeal waiver,” Ross explained.

On rebuttal, Lund again urged the panel to find that the government’s objection represented a “deliberate and explicit” waiver of the appeal waiver.

“Would it further the interest of future criminal defendants if we said the government should not object? Are we going to tell the government not to object?” Carnes asked.

“All we’re saying is that those objections have consequences on appeal,” Lund responded.

Carnes and Clevenger were joined on the panel by Senior U.S. Circuit Judge Julie Carnes.

The panel did not indicate when it will reach a decision in the case.

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