The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Krister Sven Evertson's ("Evertson") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion, the Government's Response (Dkt. 6), Evertson's Reply (Dkt. 9), and the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion. The Court also denies Evertson's Motion for New Trial filed in the criminal case three months after the filing of the § 2255 Motion. Dkt. 125 in Case No. 4:06-cr-206-BLW.
BACKGROUND AND SUMMARY OF ISSUES
Evertson, a self-taught chemist, was attempting to develop a less expensive method of manufacturing sodium borohydride. More specifically, his goal was to manufacture it using a high-temperature process involving several ingredients -- including sodium metal, anhydrous borax, and silicon -- for possible use in hydrogen fuel cells. Evertson and his sister and brother-in-law, Diana and Tim Sundles, formed SBH Corporation to facilitate those efforts which were to take place in Salmon, Idaho, where the Sundles resided.
Tim Sundles agreed to finance the endeavor with $100,000 and to subsequently market the product, while Evertson agreed to provide the time and labor to develop the product. Evertson purchased ten metric tons of sodium metal from China as well as several other chemicals and spent approximately a year and a half at the Tanner warehouse in Salmon trying to produce the sodium borohydride using his new method.
At the end of that period of time, Evertson had expended the $100,000 but had not yet successfully produced sodium borohydride. He decided to return to Alaska, where he had previously resided, to accumulate additional funds through his gold mining operation there to complete the manufacturing process. Prior to leaving Idaho, Evertson made arrangements for his materials and equipment to be stored at the yard of the Steel and Ranch Center in Salmon owned by Robert Chaffin.
With the assistance of Chaffin and Chaffin's father, Clyde Chaffin, Evertson transported, or caused to be transported, approximately sixty 55-gallon drums of sodium metal (a hazardous material that reacts violently with water) and several large tanks containing reactive and corrosive process wastes from the Tanner warehouse to the Steel and Ranch Center.
During the time Evertson was in Alaska, he had very limited contact with the Sundles or Steel and Ranch owner Robert Chaffin. Evertson did not communicate any specific plans to return, although he had generally indicated before he left that he would return when he had earned enough money to continue with the manufacturing process. Chaffin understood that he would return in approximately one year.
While in Alaska, Evertson was charged with violating the Hazardous Materials Transportation Uniform Safety Act ("HMTUSA") by shipping pieces of sodium metal by air from Alaska that he had sold on eBay. He was acquitted following a jury trial. During the course of the investigation of that charge, Evertson informed Environmental Protection Agency ("EPA") officials about the sodium and other materials in Salmon. As a result, EPA officials performed a site inspection of the stored materials, determined that the materials presented an imminent risk of harm to the community, and conducted an emergency removal.
On September 26, 2006, the Government filed a three-count Indictment charging Evertson with (1) transporting on or about August 1, 2002, both sodium metal (a Class 4.3 Dangerous When Wet material) and hazardous waste without complying with the United States Secretary of Transportation's regulations in violation of 49 U.S.C. § 5124 (Willful Violation of Laws and Regulations Related to Transportation of Hazardous Materials); (2) on or about August 1, 2002 through May 27, 2004, storing and disposing of hazardous waste in above-ground storage tanks without a permit in violation of 42 U.S.C. § 6928(d)(2)(A) (Knowing Violation of Laws and Regulations Related to Storage and Disposal of Hazardous Waste); and (3) on or about August 1, 2003 (sic) through May 27, 2004, storing and disposing of hazardous waste in 55-gallon drums without a permit also in violation of 42 U.S.C. § 6928(d)(2)(A).
Evertson was convicted of all charges following a six-day jury trial during which he was represented by appointed counsel Steve Richert and Nick Vieth. The Court imposed a sentence of 21 months on each count to be served concurrently. Judgment, Dkt. 79 in criminal case. The Court also imposed a special assessment of $100 on each count and restitution of $421,049 for the hazardous waste cleanup. Id. He thereafter appealed his conviction and sentence challenging certain jury instructions on various grounds, the alleged constructive amendment of the transportation of hazardous materials charge, and the award of restitution. Evertson was represented on appeal by appointed counsel Greg Silvey.
The Ninth Circuit affirmed Evertson's conviction and his sentence on all but the restitution issue. United States v. Evertson, 320 Fed. Appx. 509 (9th Cir. 2009). It found that it was plain error to order restitution as part of the sentence and remanded for entry of an amended sentence. Id. at 513. Following a hearing, the Court entered an Amended Judgment to reflect imposition of restitution as a condition of supervised release. Amended Judgment, Dkt. 121 in criminal case.
Evertson filed a petition for a writ of certiorari represented by the Washington Legal Foundation of Washington, D.C., raising two issues:
1. Was the United States required to demonstrate to the jury beyond a reasonable doubt that the materials in question were "hazardous waste" because they had been abandoned by Mr. Evertson, or was it sufficient . . . for the United States to demonstrate that the Environmental Protection Agency had determined that the materials were "hazardous waste."
2. In order to show that the materials in question were "hazardous wastes," was the United States required to demonstrate that Mr. Evertson intended to abandon the materials?
The Supreme Court denied the petition on October 20, 2009. Evertson thereafter timely filed the pending § 2255 Motion. At the time of the filing, Evertson had already completed serving his term of incarceration. However, because he was still serving his term of supervised release, the custody requirement of 28 U.S.C. § 2255 was satisfied. See Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002) (finding that because the movant was still subject to supervised release, he was in "custody"). Evertson's subsequent early discharge from supervised release did not moot his § 2255 Motion. See Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) (overruled on other grounds) (finding release from custody does not moot a habeas petition because there is an irrebuttable presumption that "collateral consequences flow from any criminal conviction").
In his § 2255 Motion, Evertson alleges several grounds of ineffective assistance of counsel; misleading jury instructions; prejudicial variance between the Indictment and the jury instructions; vagueness of the Resource Conservation and Recovery Act ("RCRA") exemptions; incorrect legal theory as a basis for conviction under Count Two; Fifth Amendment denial of due process based on cumulative ineffectiveness of counsel; and cumulative trial errors.
Despite the substantial number of issues and the lengthy § 2255 Motion and Reply, the gravamen of Evertson's argument is fairly simple and can be broken down into four claims: (1) that he did not authorize transport of the sodium and other materials; (2) that he did not abandon or intend to abandon the sodium and other materials; (3) that he intended to return to Idaho as soon as he had enough money to complete the manufacturing process; and (4) that he would have been acquitted if his attorneys had been competent, if he had been allowed to testify, or if the jury had been properly instructed.
More specifically, Evertson states that he stored the materials and left Idaho because he could not afford to buy the additional propane needed to heat the sodium mixture to a sufficiently high temperature to make sodium borohydride, that he always intended to return to continue the process, that he paid for two years of storage, that he was prepared for and looking forward to a profitable year of mining in Alaska at the time of his arrest in 2004 that would have allowed him to return, and that he could have sold some of the materials to fund the completion of the project.
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."
The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then determines under Rule 8 whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
2. Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).
In order to establish deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance." Id. at 689. This is so because for the defendant, "[i]t is all too tempting . . . to second-guess counsel's assistance after conviction or adverse sentence. . . ." Id. For the court, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).
In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (noting that the court should "assess counsel's overall performance throughout the case" when evaluating whether his assistance was reasonable).
Both prongs of the Strickland test must be met "before it can be said that a conviction (or sentence) 'resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable' and thus in violation of the Sixth Amendment." United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687).
The Government prepared and submitted a chart with its Response indicating the grounds of relief asserted by Evertson in his § 2255 Motion. See Response, Ex. A, Dkt. 6-1. The chart identifies the grounds raised on appeal (Grounds 2 and the variance issue of Ground 3), the grounds of ineffective counsel not raised on appeal (Ground 1, the remainder of Ground 3, Ground 5, and Ground 6), and the grounds neither raised on appeal nor asserted as ineffective assistance of counsel claims (Ground 4 and Ground 7). Evertson's grounds listed in the § 2255 Motion itself are numbered differently from the grounds discussed in his supporting memorandum. The chart appears to refer to the numerical designation in the supporting memorandum. The government's suggested organization provides a coherent organizational approach to Evertson's claims -- which are intricate and sometimes confusing. Accordingly, the Court will address the claims by category in the manner suggested by the Government.
1. Grounds Previously Raised on Appeal
Evertson reasserts several claims previously decided on appeal. Issues decided adversely on appeal cannot be relitigated in a § 2255 motion. Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972). Likewise, arguments raised on appeal and rejected cannot be relitigated in a § 2255 motion. United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979). An exception exists, however, in certain limited circumstances. Feldman v. Henman, 815 F.2d 1318, 1322 (9th Cir. 1987). Generally, the exception applies where the "ends of justice" require reaching the merits of a previously determined claim. Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989). To meet the "ends of justice" criteria, a court must find that (1) there has been a change in the law; or (2) "manifest injustice." Id. at 1131.
The Government listed seven issues that were raised and decided adversely to Evertson on appeal: (1) that the jury instructions omitted an element regarding Evertson's knowledge of whether the material abandoned was waste, (2) that the jury instructions omitted an element of the offense regarding harmfulness, (3) that the prosecutor incorrectly argued that Evertson admitted the material was waste, (4) that the jury instructions did not require the jury to find that the materials were waste, (5) that the jury instructions did not require the jury to find that Evertson knowingly abandoned the materials, (6) that the jury instructions erroneously directed that the EPA determines what waste is hazardous, and (7) that the variance between the Indictment and HMTUSA jury instruction was prejudicial. Response at 13-15.
The Court finds that the above-listed issues were raised and decided on appeal, that there has been no change in the law since Evertson's trial, and that there is no manifest injustice that would allow the claims to be relitigated.
2. Ineffective Assistance of Counsel Claims
Ineffective assistance of counsel claims are generally addressed in the first instance by the district court in a § 2255 proceeding rather than on direct appeal given the fact-intensive nature of the inquiry. See Massaro v. United States, 538 U.S. 500, 504-506 (2003). Therefore, Evertson is not barred from raising these claims here despite not having raised them on direct appeal.
Evertson's primary claim of ineffective assistance of counsel is Richert's and Vieth's alleged failure or refusal to allow him to testify at trial. However, he also complains of their failure to investigate, their failure to call his sister, Kristina Daly, as a witness, and several other shortcomings in their performance that will be discussed below.
A. Failure to Allow Evertson to Testify
Evertson claims throughout his § 2255 Motion and his Reply that he desperately wanted to testify but that counsel would not allow him to do so in part because of their alleged 20-year policy of not allowing defendants to testify and in part because they believed that he would be convicted if he testified.
The Government submitted affidavits from Richert and Vieth in support of its Response. See Richert Aff., Dkt. 6-4; Vieth Aff., Dkt. 6-5. Richert stated that he has never had a 20-year policy of not allowing defendants to testify but that he generally advises against having a defendant testify at trial because it usually is detrimental to the case. Richert Aff. ¶ 5. Richert and Vieth state that they advised Evertson not to testify after a break during the trial in which the Government showed them impeaching material that it intended to use if Evertson testified. Richert Aff., ¶ 6, Vieth Aff., ¶ 6. The material was the transcript of Evertson's testimony at the trial in the Alaska case in which he was acquitted. Id.
Both Richert and Vieth agreed that the impeaching material seriously undercut their defense theory that Evertson had not abandoned the materials but intended to return to Idaho to work on his invention. Richert Aff., ¶¶ 7-9; Vieth Aff., ¶¶ 7-8. Furthermore, they believed that all of the evidence Evertson wanted to present to the jury through his testimony had already been presented through other witnesses. Vieth did not recall Evertson's ever claiming before trial that the materials had been moved without his knowledge or permission. In Vieth's opinion, this would have been inconsistent with Evertson's persistent claims that he had asked Chaffin to store all of the materials and that he paid for the storage with a sack of borax. After discussing their concerns with him, Evertson agreed not to testify. Richert Aff. ¶ 10; Vieth Aff. at ¶ 11.
Vieth advised the Court after the noon break that Evertson would not be called as a witness. Trial Tr. at 724. The Court then confirmed with Vieth that he had discussed with Evertson the right to testify and explained his options. Trial Tr. at 725. The Court noted that it sometimes questions a defendant when "through body language or otherwise" it thinks a defendant may want to testify. Id. However, the Court did not observe any indications at the time that Evertson wanted testify, and it was satisfied with Vieth's representation that Evertson concurred with the decision. Id.
A defendant's constitutional right to testify in his own behalf is implicit in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972).
"Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant's "silence" after his attorney decides not to call him as a witness implies that he has waived the right to testify on his own behalf. See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.) cert. denied, 528 U.S. 989 (1999). Rather, "[a] defendant who wants to reject his attorney's advice and take the stand may do so 'by insisting on testifying, speaking to the court, or discharging his lawyer.'" Id. at 1094-95 (citations omitted). The failure to testify should "not be raised as an afterthought after conviction." Id. at 1096.
Courts "have repeatedly held that the Constitution does not require a trial court to question a defendant sua sponte in order to assure that his decision not to testify was undertaken knowingly and intelligently unless there is some indication that the defendant has been prevented from exercising that right." United States v. Stark, 507 F.3d 512, 516 (7th Cir. 2007) (quoting United States v. Manjarrez, 258 F.3d 618, 623 (7th Cir. 2001)). More specifically to Evertson's case, a court is not required to inquire where there is no evidence of conflict between the defendant and counsel. Stark, 507 F.3d at 516-17 (citing cases from several circuits including the Ninth Circuit). See also United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989) (listing seven reasons for not requiring a judge to inquire including that a judge should not interfere with defense strategy), vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991).
In his § 2255 Motion and Reply, Evertson emphasizes repeatedly that he wanted to testify, that he was waiting for the Court to ask him directly, that he became emotionally upset when told he would be convicted if he testified, and that he felt conflicted because "his [Evertson's] Lord wanted me to testify" but Vieth's "God [said] he should not testify" -- a statement Vieth denies making. § 2255 Mem. at 21-22; Reply at 22-30; Vieth Aff. ¶ 5. However, the bottom line is that whether or not Vieth made the statement, there was no apparent conflict between Evertson and counsel in the courtroom, and Evertson waived his right to testify by remaining silent following Vieth's colloquy with the Court.
Evertson believes he may have been acquitted if he had testified because he had been acquitted in his Alaska trial after testifying. He also believes that his Alaska testimony "did not contain any damning or impeaching evidence that the prosecutor could have used against me." Reply at 28-29. The transcript reflects otherwise.
The Government submitted the transcript of Evertson's testimony at the Alaska trial. Response, Ex. F, Dkt. 6-6. Rebutting Evertson's claims that the testimony was not impeaching, the Government summarized numerous portions of the testimony from which the jury could have concluded that Evertson had no money, had no intention of returning to Idaho, was familiar with DOT regulations, and had seen warning labels on the drums of sodium when they were delivered to Salmon indicating the sodium was "dangerous when wet." Response at 8 -10. The Court will not repeat them here.
The Court has reviewed the complete transcript of Evertson's Alaska testimony and finds other portions that would have been detrimental to his defense as well. For example, when describing the manufacturing process on cross examination, he concluded, "Then we ran out of propane, so I -- the company didn't have enough money to refill the tank, so I just let it cool off and that was the end of the business." Alaska Tr. 2-76, Dkt. 6-6. When asked how close he had gotten to his goal, he said, "Pretty close. Pretty doggone close, yes. But I had no money." Id. During voir dire in aid of an objection to questioning Evertson about how he got the sodium from Idaho to Alaska that he shipped on eBay, Evertson said he left six packages of it at his sister's home in Oregon for her to ship if he needed money. Alaska Tr. 2-102-03. When asked why he didn't have his sister ship it all at once, he said that, "I didn't have an address up here then, that's right," which could have supported the Government's claim that he was unreachable. Alaska Tr. at 2-104-05.
On a number of occasions, the Ninth Circuit has rejected similar claims of ineffective assistance of counsel. For example, in Matylinsky v. Budge, 577 F.3d 1083 (9th Cir. 2009), the defendant, on trial for killing his wife, had argued that counsel prevented him from testifying to demonstrate to the jury that his actions were neither premeditated nor deliberate. The court upheld the district court's ruling that counsel's decision to not put the defendant on the stand was reasonable because he would have been subjected to "damning cross-examination on his prior convictions," the jury "would have witnessed his matter-of-fact delivery regarding his wife's death and general disinterested nature," and his testimony was inconsistent with the theory of the case. Id. at 1097-98. Of note, the court also stated that to the extent counsel may have infringed on the defendant's right to testify, there was no indication of prejudice. Id. at 1098.
Similarly, in Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007), the defendant had wanted to testify that he killed the victim in self-defense. Counsel recommended against testifying because of the defendant's prior convictions, his inconsistent statements during a lengthy interview with police, and the inconsistency with the defense theory that someone else killed the victim. Noting those factors plus the "more than sufficient" other evidence to convict the defendant, the Ninth Circuit found that the inability to testify was not prejudicial.
Finally, in Dows v. Wood, 211 F.3d 480 (9th Cir. 2000), the defendant claimed ineffective assistance of counsel where the defendant alleged that counsel threatened to walk out on him if he testified. The district court had noted that the defendant -- like Evertson here -- had never indicated during the trial that he wanted to testify or that counsel prevented him for doing so. The Ninth Circuit found that counsel had very good reason for suggesting that the defendant not testify because of the risk of impeachment based on three prior convictions. Id. at 487.
Just as there were valid reasons in Matylinski, Medley, and Dows, to advise against testifying based on the circumstances of the respective cases, there were valid reasons here based on the impeachment testimony and the speculative nature of his claims.
A recurring theme of Evertson's § 2255 Motion and Reply regarding the right to testify is that he would have been acquitted had he testified. In his Reply, Evertson lists twenty-one "disputed facts" that his testimony could have addressed to rebut the Government's position that he abandoned the materials. Reply at 10-19. However, that conclusion is entirely speculative, especially given the impeachment potential of the Alaska testimony. Evertson presumes that the jury would have believed his testimony over that of several other witnesses. Those twenty-one "disputed facts" appear below with the Court's comments on each in italics indicating either contradiction in the record or illustrating the unreasonableness of his belief that his testimony would have made a difference:
1. Evertson knew he had prepaid rent for two years and not one year because he gave Chaffin a 2,000-pound sack of borax and their arrangement was 1,000 pounds a year.
Robert Chaffin testified that he understood the rental was one sack for one year -- not 1,000 pounds a year. He thought the sack was 1,000 pounds rather than 2,000 pounds. Defense counsel raised the issue on cross examination that a sack was 2,000 pounds and the agreement was was 1,000 pounds a year. Chaffin agreed that although he thought it was clear that the agreement was for a year, there could have been a misunderstanding because the agreement was not in writing.
If Evertson had testified, the jury would have had to weigh Chaffin's unimpeached testimony with Evertson's testimony.
Assuming Evertson had been impeached with the Alaska testimony, it is not likely that the jury would have credited Evertson's testimony that the agreement was for two years.
2. Evertson did not request or authorize the Chaffins to move the sodium or the borax supersacks. They were moved when he was running an errand. He has email evidence that Vieth knew about this even though Vieth states he did not recall that Evertson had ever told him. The storage agreement was reached after the materials were already in place.
Chaffin testified that they moved the sodium and borax first and then the trailers. This would have conflicted with Everson's testimony, again leaving the jury to decide whether to believe Evertson, whose testimony would have been impeached, or Chaffin's unimpeached testimony. In response to Vieth's questioning on cross examination, Chaffin stated that he did not recall whether Evertson left or not during the move.
3. Evertson did not tell his sister that the process did not work. He told her that the process did work but that he needed to return to Alaska to earn funds.
His sister, Diana Sundlestestified that there are certain things that she could not remember because she was so sick and on a lot of medication at the time. It is unlikely that the jury put much weight on any of her testimony. Defense counsel established that her illness was part of the reason she did not communicate very much with her brother while he was in Idaho.
4. Evertson was ready, willing, and able to mine in the summer of 2004 and could have generated a "solid revenue stream" within about a week.
His Alaska testimony that he barely eked out a living mining would have cast considerable doubt on this statement.
5. Evertson had sufficient assets stored at Steel and Ranch to restart his invention if the Alaska mining operations "hit a snag." He could have sold the three trailers, and/or the new borax supersacks, and/or some of the sodium and still had enough to continue his process. He would have just needed $5,000 to restart the process.
If he only needed $5,000 to restart the process and could have sold some of the borax or sodium to generate that amount, why did he go to Alaska for two years to make the money he needed rather than selling some of his materials? This statement is simply not credible.
6. Evertson was always reachable by his business partners, the Sundles, and Diana did contact him at his mother's house in Alaska.
While the Sundles probably knew (at least after his sister called on Thanksgiving in 2003) that he was living at his mother's, Chaffin did not and would not have known unless told by the Sundles. In any event, it was Evertson's lack of contacting them that led to the inference that he was not returning. It is difficult to believe that one who had tens of thousands of dollars worth of materials supposedly ...