United States of America v. Desnoyers, No. 10-447 (2d Cir. 2011)

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10-0447-cr United States v. Desnoyers 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: January 13, 2011 Decided: March 14, 2011) Docket No. 10-0447-cr UNITED STATES OF AMERICA, Appellant, v. MARK DESNOYERS, Defendant-Appellee. Before: JACOBS, Chief Judge, WESLEY, and CHIN, Circuit Judges. A jury convicted Defendant-Appellee Mark Desnoyers on multiple counts, including one count of conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. After trial, the United States District Court for the Northern District of New York (Hurd, J.) entered a judgment of acquittal on the conspiracy count citing both factual and legal insufficiency as grounds for its decision. The Government appeals the acquittal ruling. We vacate the judgment of acquittal on the conspiracy count, and remand the case to the district court with instructions to reinstate the jury verdict, enter a judgment of conviction on the conspiracy count, and resentence Desnoyers accordingly. Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 JUDGMENT VACATED IN PART AND REMANDED. LISA E. JONES, United States Department of Justice, Environment & Natural Resources Division, Washington, DC (Ignacia S. Moreno, Assistant Attorney General; Richard S. Hartunian, United States Attorney for the Northern District of New York; Craig Benedict, Assistant United States Attorney; Colin Black, John Smeltzer, United States Department of Justice, Environment & Natural Resources Division, on the brief) (Michael Fisher, EPA Office of Criminal Enforcement, Washington, DC, of counsel), for Appellant. JOHN B. CASEY, Dreyer Boyajian LLP, Albany, NY, for Defendant-Appellee. WESLEY, Circuit Judge: The United States appeals from a June 19, 2009 order of 24 25 the United States District Court for the Northern District 26 of New York (Hurd, J.) entering a post-verdict judgment of 27 acquittal in favor of Defendant-Appellee Mark Desnoyers on 28 one count of conspiracy to violate the Clean Air Act (the 29 CAA ) and to commit mail fraud in violation of 18 U.S.C. § 30 371. 31 conviction must be set aside because the conspiracy count 32 suffered from both factual and legal defects. 33 We therefore VACATE the judgment of acquittal and REMAND the The district court held that Desnoyers s conspiracy Page 2 of 18 We disagree. 1 case to the district court with instructions to reinstate 2 the jury verdict, enter a judgment of conviction on the 3 conspiracy count, and resentence Desnoyers. BACKGROUND 4 5 Desnoyers was licensed in New York to conduct air 6 monitoring at asbestos abatement projects and to document 7 the results of asbestos removal work. 8 that Desnoyers conducted his work fraudulently and sometimes 9 not at all, the Government charged Desnoyers with (1) Based on evidence 10 conspiring to violate the CAA and to commit mail fraud in 11 violation of 18 U.S.C. § 371; (2) violating the CAA in 12 violation of 42 U.S.C. § 7413(c)(1); (3) mail fraud in 13 violation of 18 U.S.C. § 1341; and (4) three counts of 14 making false statements in violation of 18 U.S.C. § 1001. 15 The jury convicted Desnoyers on all counts except one count 16 of making false statements. 17 After trial, Desnoyers filed a motion pursuant to 18 Federal Rules of Criminal Procedure 29(c) and 33 challenging 19 his conspiracy conviction.1 Desnoyers conceded below that 1 Desnoyers challenged all counts of conviction below. On June 19, 2009, the district court denied Desnoyers s motion to set aside his convictions on the substantive CAA and mail fraud counts and on the false statements counts. Neither party challenges that ruling on appeal. Page 3 of 18 1 the Government introduced sufficient evidence at trial to 2 support the mail fraud object of the conspiracy. 3 argued that his conspiracy conviction is nevertheless 4 defective because the CAA object rendered the conspiracy 5 count both factually and legally defective. 6 court agreed that the conspiracy count was factually and 7 legally defective and on June 19, 2009, entered a judgment 8 of acquittal on the conspiracy count.2 9 Desnoyers The district The Government appeals the district court s entry of a 10 judgment of acquittal on the conspiracy count; the other 11 counts are not at issue on appeal. 12 only examine in depth the evidence relevant to the 13 conspiracy count. 14 object of the conspiracy because Desnoyers concedes that the 15 mail fraud object did not suffer from any defects.3 16 Accordingly, we need We pay particular attention to the CAA The Indictment charged Desnoyers and others with 17 conspiring to violate the CAA and the mail fraud statute 18 based on Desnoyers and his co-conspirators s asbestos 2 The Government moved for reconsideration of the acquittal. On September 14, 2009, the district court denied the Government s request to reinstate the conviction. 3 Desnoyers thus concedes that he could not have challenged his conviction if the conspiracy count had alleged only a mail fraud object. Page 4 of 18 1 abatement work in eight buildings. The Government conceded 2 after trial, however, that seven of these buildings were not 3 subject to the CAA asbestos removal regulations. 4 asbestos removal regulations cover only residences with more 5 than four units and commercial buildings; additionally, 6 buildings must contain friable asbestos and at least 260 7 linear feet of asbestos on pipes or 160 square feet of 8 asbestos on other facility components in order to be subject 9 to the regulations. The CAA See 40 C.F.R. §§ 61.141 (defining 10 friable asbestos as any material containing more than 1 11 percent asbestos . . . that, when dry, can be crumbled, 12 pulverized, or reduced to powder by hand pressure ), 13 61.145(a)(1)(i-ii), (4)(i-ii). 14 regulations apply, specific work practices must be followed 15 during asbestos removal. 16 to observe these practices when a building is not subject to 17 the CAA asbestos regulations does not violate the CAA. 18 When the CAA asbestos See 40 C.F.R. § 61.145. Failure The parties dispute whether one building at issue in 19 the conspiracy count known as 69 Clinton Street is 20 subject to the CAA asbestos regulations. 21 showed that 69 Clinton Street was a commercial property 22 containing friable asbestos. Evidence at trial No witness testified directly, Page 5 of 18 1 however, about the exact asbestos measurements at 69 Clinton 2 Street; indeed, these measurements were not taken by an EPA 3 monitor because the pipes had been removed before he visited 4 the site. 5 came from the testimony of multiple witnesses that the 69 6 Clinton Street project was either a large or not a 7 small. 8 York asbestos industry, a large project is understood to be 9 a project with sufficient asbestos to fall under the CAA's The Government s evidence on asbestos quantity These same witnesses all testified that in the New 10 requirements, whereas a small project is not.4 11 witnesses explicitly explained that a large is understood 12 as a project containing at least 260 linear feet of asbestos 13 on pipes or 160 square feet of asbestos on other facility 14 components that is, a project with sufficient asbestos to 15 qualify under the quantity requirement of the CAA asbestos 16 regulations. 17 Several The district court concluded that the Government failed 18 to show that 69 Clinton Street was subject to the CAA s 19 asbestos regulations because no witness testified directly 4 The large and small designations arise because New York Code 56 regulates asbestos removal differently based on the size of a building. A large building under New York s legal framework is one meeting the size requirements set forth in the CAA regulations. Code 56 still covers small projects, but sets forth less restrictive removal requirements. Page 6 of 18 1 about the quantity of asbestos at 69 Clinton Street. The 2 district court reasoned that the testimony at trial was 3 insufficient to show that 69 Clinton Street contained at 4 least 260 linear feet of asbestos on pipes or 160 square 5 feet of asbestos because the witnesses opinions as to what 6 constitutes a large project could obviously still fall 7 short of the rule s footage requirements. 8 Based on the foregoing, the district court concluded 9 that the jury s verdict on the conspiracy count could not 10 stand because the CAA object suffered from a factual defect. 11 Although a factual defect in one object of a multi-object 12 conspiracy does not ordinarily require a court to overturn a 13 guilty verdict, United States v. Garcia, 992 F.2d 409, 416 14 (2d Cir. 1993), the district court entered a judgment of 15 acquittal on the conspiracy count. 16 district court found that the ordinary rule for multi-object 17 conspiracies did not apply because an overwhelming amount 18 of evidence relevant only to the unproved part of the 19 conspiracy may have prejudiced the jury. 20 v. Papadakis, 510 F.2d 287, 297 (2d Cir. 1975). In so holding, the See United States 21 The district court found in the alternative that a 22 judgment of acquittal was required because the CAA object of Page 7 of 18 1 the conspiracy suffered from a legal defect. 2 The district court reasoned: Here, the Clean Air Act objective within Count One suffered from a substantial legal defect because of the inapplicability of the Act s regulatory standards. Even if the evidence, viewed in the light most favorable to the Government, was sufficient to show that the Clean Air Act applied to the 69 Clinton Street project, it remains undisputed that it was legally impossible for defendant to conspire to violate the Clean Air Act with respect to the remaining seven projects identified in Count One. . . . [T]here were seven instances in which the jury had to consider a legally impossible theory of guilt. Defendant s conviction under Count One may very well have been based upon any one of these seven legally impossible theories. Accordingly, the weight of the evidence admitted at trial is irrelevant, and defendant s conviction cannot stand. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The court thereafter entered judgments of guilt on the 27 remaining counts and sentenced Desnoyers based on these 28 counts.5 29 30 The Government filed this timely appeal challenging the district court s entry of a judgment of acquittal as to the 5 Notably, the court did not consider any of the eight projects at issue in the conspiracy count when assessing losses at sentencing. Additionally, likely as a result of its decision to enter a judgment of acquittal on the conspiracy count, the court did not impose an enhancement pursuant to U.S.S.G. § 2B1.1(b)(2) for an offense involving ten or more victims. Page 8 of 18 1 conspiracy count. DISCUSSION 2 3 A. Standard of Review We review a judgment of acquittal notwithstanding a 4 5 guilty verdict de novo and apply the same standard of 6 constitutional sufficiency as the district court. United 7 States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010). A 8 defendant challenging the sufficiency of the evidence bears 9 a heavy burden, United States v. Aguilar, 585 F.3d 652, 656 10 (2d Cir. 2009), because a reviewing court must sustain the 11 jury s guilty verdict if, viewing the evidence in the light 12 most favorable to the prosecution, any rational trier of 13 fact could have found the essential elements of the crime 14 beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 15 307, 319 (1979) (emphasis in original). 16 17 18 19 B. 20 sufficiency of the Government s case, but they do so in 21 distinct ways. 22 the evidence and requires a court to examine whether a The Conspiracy Conviction Suffered Neither a Factual Nor a Legal Defect Claims of factual and legal defects both challenge the A factual challenge tests the sufficiency of Page 9 of 18 1 reasonable jury could find each element of a crime proven 2 beyond a reasonable doubt. 3 legal challenge, by contrast, questions whether a conviction 4 rests on a mistake about the law, as opposed to a mistake 5 concerning the weight or the factual import of the 6 evidence. 7 (1991). 8 charged with conduct that is not legally actionable when, 9 for instance, the charged conduct is protected by the Jackson, 443 U.S. at 319. A Griffin v. United States, 502 U.S. 46, 59 A mistake about the law occurs when a defendant is 10 Constitution, is time barred, or fails to come within the 11 statutory definition of the crime. 12 992 F.2d at 415-16. 13 Id.; see also Garcia, The difference between factual and legal challenges is 14 significant because when disjunctive theories are submitted 15 to the jury and the jury renders a general verdict of 16 guilty, appeals based on evidentiary deficiencies must be 17 treated differently than those based on legal deficiencies. 18 Garcia, 992 F.2d at 416. 19 as long as there was sufficient evidence to support one of 20 the theories presented, then the verdict should be affirmed. 21 However, if the challenge is legal and any of the theories If the challenge is evidentiary, Page 10 of 18 1 was legally insufficient, then the verdict must be 2 reversed. 3 because: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Id. This distinct treatment is appropriate Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law . . . . When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence. Griffin, 502 U.S. at 59. Here, Desnoyers asserts that his conspiracy conviction 20 was both factually and legally defective. He contends that 21 the Government did not and could not prove that 69 22 Clinton Street was subject to the CAA asbestos regulations. 23 His first challenge, examining what the Government actually 24 proved, is factual. 25 challenge, questioning what the Government could prove, is 26 legal. 27 of the conspiracy count in any other respect. 28 objections regarding the mail fraud object of the conspiracy Desnoyers contends that his second Notably, Desnoyers does not challenge the CAA object Page 11 of 18 He raises no 1 count. 2 1. Factual Sufficiency 3 Desnoyers s factual challenge fails because he disputes 4 just one object of the multi-object conspiracy charged. 5 Garcia, 992 F.2d at 416.6 6 Government proved the mail fraud object of the conspiracy 7 fatally undermines his factual challenge. 8 Court has made clear that there is no exception to the 9 rule that [w]hen a jury returns a guilty verdict on an 10 indictment charging several acts in the conjunctive . . . 11 the verdict stands if the evidence is sufficient with 12 respect to any one of the acts charged. 13 at 56-57 (quoting Turner v. United States, 396 U.S. 398, 420 14 (1970)). 15 Desnoyers s concession that the Id. The Supreme Griffin, 502 U.S. Our Court has previously announced a caveat to the 16 general rule that [w]here a conspiracy has multiple 17 objectives, a conviction will be upheld so long as evidence 6 We will assume that the evidence with regard to 69 Clinton Street was insufficient. That assumption is debatable given that the government is entitled to every favorable inference from the evidence it presented at trial, but for our purposes we need not decide that issue in light of the conceded sufficiency of the evidence with regard to the mail fraud object of the conspiracy count. Page 12 of 18 1 is sufficient to show that an appellant agreed to accomplish 2 at least one of the criminal objectives. 3 F.2d at 297. 4 when an overwhelming amount of evidence relevant only to 5 the unproved part of the conspiracy may have prejudiced the 6 jury. 7 implicitly overruled the Papadakis caveat. See Griffin, 502 8 U.S. at 57. 9 Id. Papadakis, 510 In Papadakis, we held that this caveat applies The Government urges us to hold that Griffin We need not determine the continuing validity of the 10 Papadakis caveat, however, because the caveat does not apply 11 in any event to this case. 12 Government failed to prove the CAA object, an overwhelming 13 amount of the evidence at trial was not relevant solely to 14 the CAA object. 15 Desnoyers and his co-conspirators abatement work and false 16 representations to clients was relevant to both the CAA 17 object and the mail fraud object. 18 the government s mail fraud allegation by showing that 19 Desnoyers and his co-conspirators participated in a scheme 20 to use the mail to falsely represent to clients that their 21 abatement and monitoring work complied with state law. Even assuming arguendo that the Instead, the trial evidence related to This evidence supported Page 13 of 18 1 Accordingly, even if valid, the Papadakis caveat does not 2 support a judgment of acquittal notwithstanding the verdict 3 here. 4 2. Legal Sufficiency 5 Although Desnoyers labels his second argument a legal 6 challenge, he fails to actually set forth a cognizable legal 7 challenge. 8 conspiracy was legally defective because, according to 9 Desnoyers, the Government could not prove that any of the Desnoyers contends that the CAA object of the 10 eight projects charged in the conspiracy count, including 69 11 Clinton Street, were subject to the CAA asbestos 12 regulations. 13 simply a restatement of his factual challenge he contends 14 that the Government failed to prove an element of the 15 offense. 16 Desnoyers s purported legal challenge is The Supreme Court has suggested that a legal defect 17 arises when a court instructs jurors using an incorrect 18 explanation of the law. 19 jurors presented with a factually deficient theory, jurors 20 presented with a mistaken view of the law cannot be presumed 21 to have discovered the legal mistake. Griffin, 502 U.S. at 59. Page 14 of 18 Unlike Jurors are fact 1 finders, not lawyers or judges, and thus are not generally 2 equipped to determine whether a particular theory of 3 conviction submitted to them . . . fails to come within the 4 statutory definition of the crime. 5 Id. Our Court applied this principle in Garcia when a 6 defendant challenged his conviction for extortion in 7 violation of the Hobbs Act on the grounds that two of the 8 three definitions of extortion provided to the jury did not 9 satisfy the Supreme Court s definition of Hobbs Act 10 extortion. Garcia, 992 F.2d at 415. In the intervening 11 time between the trial in Garcia and Garcia s challenge on 12 appeal, the Supreme Court held in Evans v. United States, 13 504 U.S. 255, 268 (1992), that the relevant extortion 14 statute required the Government to prove a quid pro quo: 15 that a public official has obtained a payment to which he 16 was not entitled, knowing that the payment was made in 17 return for official acts. 18 (quoting Evans, 504 U.S. at 268). 19 district court s instructions in Garcia did not require the 20 jury to find a quid pro quo, the jury could have convicted 21 Garcia after finding that he committed conduct described in Garcia, 992 F.2d at 414 Because two of the Page 15 of 18 1 the errant instructions that was not, in fact, prohibited by 2 the Hobbs Act. 3 overturned Garcia s extortion conviction on the ground of 4 legal defect. Id. Given this possibility, our Court 5 Here, Desnoyers contends that his conspiracy conviction 6 suffered from a similar legal defect because the jury needed 7 to determine whether Desnoyers s conduct fell within the 8 proscriptions of the CAA. 9 it, would stretch Griffin s definition of a legal error 10 beyond recognition.7 Desnoyers s view, if we accepted Juries are always asked to determine 7 Griffin recognized that legal error is sometimes used in the sense Desnoyers advocates. Griffin explained: In one sense legal error includes inadequacy of evidence namely, when the phrase is used as a term of art to designate those mistakes that it is the business of judges (in jury cases) and of appellate courts to identify and correct. In this sense legal error occurs when a jury, properly instructed as to the law, convicts on the basis of evidence that no reasonable person could regard as sufficient. But in another sense a more natural and less artful sense the term legal error means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence. Griffin, 502 U.S. at 59. Griffin expressly clarified that the Court was using legal error in the latter sense when describing the type of error that renders a multi-count Page 16 of 18 1 whether a defendant s conduct falls within the definition of 2 a crime in the sense that juries must always determine 3 whether a defendant committed every essential element of a 4 crime. 5 fail[ed] to come within the statutory definition of a 6 crime concerns cases where the statutory definition itself 7 is contested or unclear. 8 jury was presented with alternative definitions of 9 extortion, only one of which actually described conduct See Jackson, 443 U.S. at 319. Griffin s use of Garcia was such a case because the 10 within the statutory definition of extortion. 11 992 F.2d at 415. 12 See Garcia, Unlike Garcia, the present case did not involve a 13 mistake about the law. 14 incorrect legal principles or definitions. 15 jury was correctly instructed on the conditions under which 16 the CAA asbestos regulations apply. 17 tasked with fact finding: in order to determine whether 18 Desnoyers conspired to violate the CAA, the jury was asked 19 to determine, among other things, whether each property in 20 the conspiracy count was (1) a commercial property or a conviction invalid. Id. The jury was not instructed to apply Instead, the The jury was then Desnoyers, meanwhile, is not. Page 17 of 18 1 residential property with more than four units containing 2 (2) a sufficient quantity of (3) friable asbestos. 3 Government could prove that one of those properties, 69 4 Clinton Street, was subject to the CAA asbestos regulations 5 by introducing evidence of these three factors. 6 The The fact that the Government may not have established 7 that the properties at issue in the conspiracy count were 8 subject to the CAA asbestos regulations was a factual 9 deficiency in the Government s case, not a legal one. As a 10 result, the district court erred when it characterized the 11 Government s CAA theory as legally impossible. 12 13 14 15 In sum, the conspiracy count suffered neither a factual nor a legal defect. CONCLUSION Based on the foregoing, the district court s decision 16 to set aside the jury verdict was in error. 17 VACATE the judgment granting the Rule 29 motion and REMAND. 18 The district court is instructed to reinstate the jury 19 verdict, enter a judgment of conviction on the conspiracy 20 count, and resentence Desnoyers accordingly. Page 18 of 18 We therefore

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