Tuesday, September 29, 2009

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that in a civil enforcement proceeding, a "non-owner operator" is liable under the act "if he or she has ‘significant or substantial or real control and supervision of a project’" and that there is no difference in the criminal context. That based on the record, there was substantial evidence that Starnes "exercised significant control and supervision" over the project and that was sufficient to survive the motion for judgement of acquittal.

Second, Starnes and George both argued that the District Court erred in denying their motions for judgement of acquittal on the false-statement counts. Specifically that the Government’s evidence was insufficient as to "falsity" or "federal-government jurisdiction" - both necessary elements of a false statements violation. The Third Circuit quickly dismissed the arguments as to "falsity" indicating that both defendants arguments rested on the faulty premise that the defendants were charged and convicted of falsely representing the amounts of asbestos in the air samples taken from the site. To the contrary, the Government’s evidence was that the samples weren’t analyzed at all - a fact that went uncontested. As a result, the evidence was sufficient as to "falsity."

As to "federal-government jurisdiction" both defendants argued that the federal government lacked jurisdiction because the reports were sent to the Virgin Islands Housing Authority (VIHA), which wasn’t a federal agency. The Third Circuit quickly dismissed this claim as well stating that it’s enough that the statement pertains to a "matter in which the executive branch has ‘the power to exercise authority.’" In other words, the fact that the VIHA was funded by HUD was enough to satisfy "federal government jurisdiction."

George alone argued that the district court erred in denying his motion for judgment of acquittal on the false statement count because, as he put it, the Government failed to demonstrate that he had the "specific intent" to violate the false statements statute. The Third Circuit rejected this argument as well. In doing so, the Court noted that the statute identified the mens rea as "knowingly and willfully" rather than "specific intent." The Court was not willing to decide whether "specific intent" was "shorthand" for "knowingly and willfully." Rather, the Court chose to focus on the generally accepted definitions of "knowingly" and "willfully" and applied them to the statute at hand. The Court concluded that "knowingly" requires the Government to prove the defendant had "knowledge of the facts that constitute the offense." With analysis, the Court of Appeals eventually concluded that "willfully," as it is applied to the false statements context (§ 1001), requires the Government to prove the defendant had "knowledge of the general unlawfulness of the conduct at issue." Based on these standards, the evidence presented was sufficient to survive the motion for judgment of acquittal.

Third, both defendants challenged the district court’s decision to admit the testimony of a witness, David Dugan. The decision to admit or exclude evidence was reviewed for abuse of discretion. Dugan testified regarding asbestos samples he collected which had high levels of friable asbestos. The district court ruled his testimony was relevant to demonstrate dangerous levels of friable asbestos that were likewise present in buildings worked on by the defendants. The defendants, in turn, argued that the district court’s decision to admit this testimony was an abuse of discretion because the witness collected samples from a building they didn’t work on and his collection occurred at a much later date than the events that led to their prosecution. Again, the Court of Appeals disagreed with the defendants because the Government demonstrated that all of the buildings in the complex (including the ones worked on by the defendants and the one in which Dugan collected samples) were made of the same materials and had no structural changes - therefore a reasonable inference could be made that the buildings worked on had dangerous levels of asbestos. Consequently, the testimony was deemed admissible under FRE 401 and 402. Additionally, the Court of Appeals summarily rejected the argument that the testimony of Dugan was inadmissible under FRE 403 because there was no demonstration of "unfair prejudice."

Finally, both defendant’s appealed the district court’s determination of their sentences. The review of the district court’s sentencing decisions was for reasonableness under a deferential abuse of discretion standard. And as the Court of Appeals put it, these arguments were "readily dispatched." (FISHER, JORDAN, and STAPLETON, opinion by FISHER).

1 comment:

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