First, Rock asserts that Hutchins signed a certificate stating that he was allowing Hutchins to dump for free and moreover, that the signing was witnessed by two other people. However, that certificate was never entered into evidence. Second, Rock's attorney insists that a witness was to appear and testify at sentencing on Rock's behalf. No such witness ever appeared and no affidavit from this witness was ever obtained. As neither of Rock's assertions are substantiated by the evidence, they are of little merit.
As mandated by 18 U.S.C. § 3742(e), this court gives due regard to the sentencing court's judgement on the credibility of the witnesses. After examination of the evidence that was before the sentencing court, we cannot say that Judge Smith's conclusion that Rock did receive approximately $ 74,000 from Martin Hutchins was erroneous. Therefore, the $ 74,000 was properly included in the calculation of the tax loss that Rock had caused.
Rock attempts to attack the sentencing court's tax loss calculation by providing a laundry list of deductions to which he claims he is entitled. However, Rock provides few purchase receipts or ownership verifications for these deductions. Likewise, many of his deductions are based on alleged property losses that he claims to have suffered as result of thefts and fire damage. This court sees little merit in these deductions as Rock fails to provide any evidentiary support by way of police reports or insurance claims for these losses.
In sum, Judge Smith correctly determined the amount of the tax loss caused by Rock. Judge Smith properly included the $ 74,000 that Hutchins paid to Rock and also properly discounted Rock's claimed list of deductions from property losses. As such, the determination that Rock caused a tax loss of approximately $ 34,000 was correct and the resulting base offense level of 10 is affirmed.
B. U.S.S.G. § 3B1.1(c) enhancement.
U.S.S.G. § 3B1.1 (a)-(c) states that if the defendant was an organizer, leader, manager or supervisor in a criminal activity, then a 2 level increase in the sentence level is appropriate. "As several courts have noted, a manager or supervisor is one who exercise[s] some degree of control over others involved in the offense." United States v. Liebman, 40 F.3d 544, 548 (2d Cir. 1994) (citing United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)).
The evidence against Rock on this count is strong. Rock's business was transacted entirely on a cash basis with all bank accounts maintained in his girlfriend Susan Potvin's name. Rock told two I.R.S. agents that she would often prepare the deposit slips and actually deposit the money in the bank. Further, there is undisputed evidence that Potvin wrote a letter to Hutchins, on behalf of Rock, insisting that Hutchins never paid "a dime" for dumping at his farm. Laboratory examination of the handwriting confirmed that the letter was written by Potvin.
Rock presents no defense to the government's proof that he directed Potvin's activities except for the claim that her role in the activity was reasonable given the fact the he has no more than a fourth grade education and is functionally illiterate. This defense lacks merit since the relevant question at issue is whether Rock directed and supervised Potvin's activities and not why he was doing so. With this perspective, Rock's education, or lack thereof, is insufficient grounds on which we would disturb Judge Smith's finding.
On examination of the evidence in the record, this court finds that Rock directed the activities of Potvin in furtherance of his criminal activity. As such, Judge Smith's determination to enhance Rock's sentence by 2 pursuant to U.S.S.G. § 3B1.1(c) was warranted.
C. U.S.S.G. § 3C1.1 enhancement.
The evidence in the record clearly indicates that Rock had directed a waste hauler to withhold evidence, destroy evidence and flee to California. Based on this evidence and the Presentence Report, Judge Smith found a 2 level increase in Rock's sentence for obstruction of justice. On examination of the record, it appears to this court that such an increase was warranted. On appeal, Rock offers no challenge to this increase other than merely calling it "erroneous." Given the fact that Rock submits no evidence to the contrary, there is no basis to disturb Judge Smith's finding that Rock had obstructed justice.
D. U.S.S.G. § 2T1.2(b)(1) enhancement.
Judge Smith, in accordance with the recommendation of the Presentence Report, found that a 2 level increase in Rock's sentence was warranted under U.S.S.G. § 2T1.2(b)(1). That section states, "if the defendant failed to report or to correctly identify the source of income exceeding $ 10,000 in any year from criminal activity, increase by two levels. If the remaining offense level is less than level 12, increase to level 12." U.S.S.G. § 2T1.2(b)(1). Application note 1 to U.S.S.G § 2T1.2(b)(1) states, "'Criminal activity' means any conduct constituting a criminal offense under federal, state or local law." U.S.S.G. § 2T1.2 (Application Note 1, 1991).
In 1987 and 1988, Rock was convicted of violating 6 N.Y.C.R.R. § 360.2(b) on three separate occasions. That section states: "Except pursuant to section 360.1(f) and (g) of this Part, no person shall. . . operate a solid waste management facility, except in accordance with a valid operation permit issued to such person by the department pursuant to this part." 6 N.Y.C.R.R. § 360.2(b). Rock argues that a violation of this law constitutes a civil, rather than a criminal, cause of action. As such, he maintains that the pushing of his offense level up to 12 under this sentencing guideline is erroneous. This court disagrees.
It is clear that the New York State Legislature intended violations of 6 N.Y.C.R.R. § 360.2(b) to have criminal ramifications. The statute under which Rock was sentenced, § 71-2703 of the New York State Environmental Conservation Law, allows criminal sanctions against those that violate regulations governing solid waste management and resource recovery facilities. More specifically, section 71-2703 states:
(2) Criminal Sanctions. Any person who, having any of the culpable mental states defined in section 15.05 of the penal law, shall violate any of the provisions of or fails to perform any imposed by titles 3 or 7 of article 27, or any rules and regulations promulgated thereto, or any final determination or order pursuant to this title shall be guilty of a violation and, upon conviction thereof, shall be punished by a fine of not less than one thousand dollars no more than two thousand five hundred dollars a day of violation.
N.Y. Envtl. Conserv. Law § 71-2703 (McKinney 1995); see also 55 N.Y. Jur. 2d § 178 at 267. The language of this section clearly alludes to punishment for criminal activity if the defendant acts with the required mental state.
Rock's argument that his violations were civil in nature is undermined by the fact that he was convicted on three separate occasions for the same offense. This indicates to this court that Rock was well aware that what he was doing was in violation of the law and serves to support the argument that Rock had the proper mental state to push his subsequent violations into the "criminal" category.
Moreover, it appears that the New York State courts intended Rock to face a criminal conviction. For example, the Uniform Appearance Ticket for Rock's 1987 violation states:
A plea of guilty to his charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a fine and or incarceration where provided, but in addition, licenses issued by the Department of Environmental Conservation may be subject to revocation by law.