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United States v. Desnoyers

June 19, 2009

UNITED STATES OF AMERICA,
v.
MARK DESNOYERS, DEFENDANT.



The opinion of the court was delivered by: Hon. David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Defendant Mark Desnoyers ("defendant") moves pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment of acquittal, or alternatively, pursuant to Federal Rule of Criminal Procedure 33 for a new trial for each of the charges of which he was convicted. The United States of America (the "Government") opposes.

Oral argument was heard on February 12, 2009 in Utica, New York. Decision was reserved.

II. BACKGROUND

Defendant was convicted on September 18, 2008 of the following offenses for his conduct while working as an asbestos abatement air monitor: count one: conspiracy to violate the Clean Air Act and to commit mail fraud; count five: knowingly violating the Clean Air Act; count six: knowingly committing mail fraud; and counts twelve and thirteen: knowingly making material false statements to Special Agents of the United States Environmental Protection Agency ("EPA"). Count fourteen of the Third Superseding Indictment (the "Indictment") also charged defendant with making a material false statement to EPA agents, but defendant was acquitted of that charge at trial. All remaining counts were redacted from the Indictment following the guilty pleas of defendant's co-defendants, John Wood and Curtis Collins. Accordingly, only counts one, five, six, twelve, and thirteen are at issue.

III. DISCUSSION

A. Defendant's Motion for a Judgment of Acquittal

A motion for a judgment of acquittal will be granted if, after viewing all of the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that the required elements of each offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Although the Government is not required to negate every theory of innocence, United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), equal or nearly equal levels of circumstantial evidence supporting theories of guilt and of innocence cannot support a conviction as the jury must then have contemplated a reasonable doubt. See United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002) (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).

1. Count One: The Multi-Objective Conspiracy

Count one of the Indictment charged defendant with conspiring to violate the Clean Air Act, 42 U.S.C. §§ 7412(b) and (h) and 7413(c)(1), and the mail fraud statute, 18 U.S.C. § 1341, during the course of eight individual asbestos abatement projects. These projects were identified in count one as: (1) the Alexander Residence; (2) the Menustik Residence; (3) Citizens Bank; (4) the Town of Mooers Public Library; (5) the Kerr Residence; (6) the Owens Residence; (7) a non-residential building at 69 Clinton Street in Plattsburgh, New York (hereinafter "69 Clinton Street"); and (8) the Page Residence.

Defendant first argues that the Government failed to prove at trial that the residential projects listed in count one were subject to the Clean Air Act. Second, he argues that the Government likewise failed to prove that the non-residential projects listed in count one either contained regulated asbestos material or that the projects were not within a limited exception to the Clean Air Act created by applicable New York State Code Rule 56. Third, defendant challenges the sufficiency of the evidence concerning the mail fraud offense. Finally, he argues that acquittal is warranted because count one asserts violations of the Clean Air Act and the mail fraud statute as the criminal objectives of the conspiracy charge. According to defendant, there is no way of knowing whether some jurors were prejudiced by evidence of Clean Air Act violations related to projects that were exempt from the Clean Air Act or if the jury unanimously determined beyond a reasonable doubt that he unlawfully conspired to commit mail fraud.

The Government conceded at oral argument that, of all the projects identified in count one, only the 69 Clinton Street project was subject to the Clean Air Act. See Oral Argument Tr. for Feb. 12, 2009. According to the Government, the other seven projects were pertinent only to the mail fraud objective of the conspiracy charge. Defendant contends there was insufficient evidence at trial to prove that the 69 Clinton Street project did not fall under a limited exception established by applicable Industrial Code Rule 56 of Title 12 of the New York Codes, Rules, and Regulations ("Code Rule 56"). Pursuant to Code Rule 56, there is a limited exception from the code's work practices when the project "involves encapsulation, enclosure, removal, disturbance or handling of less than 160 square feet or 260 linear feet of asbestos or asbestos material...." 12 N.Y.C.R.R. pt. 56, Ex. A. to Def's. Post-Trial Mot. (Def's. Trial Ex. 26), Dkt. No. 155-3, 19.

The only evidence that the 69 Clinton Street project did not fall within the limited exception created under Code Rule 56 was testimony that the project was "large." In contrast to testimony relating to the linear footage of other projects, none of the Government's witnesses testified as to the linear footage of the 69 Clinton Street project. The testimony that the 69 Clinton Street project was a "large" project is insufficient to prove beyond a reasonable doubt that it did not fall within the limited exception created under Code Rule 56 because the witnesses' opinions as to what constitutes a "large" project could obviously still fall short of the rule's footage requirements. Therefore, since none of the projects identified in count one were subject to the Clean Air Act, the part of count one which alleged a conspiracy to violate the Clean Air Act was incapable of being proven as a matter of law.

Notwithstanding that issue, the Government argues that it needed only to prove one of the criminal objectives of the multi-objective conspiracy charge. The Government contends that, even if the conspiracy to violate the Clean Air Act was unproven because none of the projects listed in count one of the Indictment were subject to the Act's requirements, defendant's conviction under count one should nonetheless stand because there was sufficient evidence for the jury to conclude that he conspired to commit mail fraud.

A conviction for a multi-objective conspiracy will normally be upheld so long as there was sufficient evidence at trial to prove the defendant agreed to accomplish at least one of the criminal objectives. United States v. Bilzerian, 926 F.2d 1285, 1302 (2d Cir. 1991) (citing United States v. Papadakis, 510 F.2d 287, 297 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682 (1975)). However, an exception to this rule was created for when "an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury." Papadakis, 510 F.2d at 297.

At trial, the jury heard extensive testimony of improper asbestos abatement procedures with respect to each of the eight projects identified in count one. EPA Special Agent Justice Derx and both of defendant's alleged co-conspirators testified in detail as to the inadequate asbestos removal performed for the projects. The testimony described their insufficient time spent at the project sites, dry removal of asbestos material, the presence of asbestos material left behind after work was completed, improper disposal of removed asbestos material, and inaccurate designation of the size of the projects. Although the criminal objective to violate the Clean Air Act was incapable of being proven, the Government's evidence, in large part, consisted of acts that would have constituted violations of the Clean Air Act had the statute applied to the projects identified in count one. Given the lengthy descriptions of improper asbestos removal practices, the evidence related to the alleged conspiracy to use the mail to defraud defendant's clients was overshadowed by evidence of would-be Clean Air Act violations.

While the multi-objective conspiracy charged in count one, standing alone, may not have necessarily resulted in unfair prejudice, the Government's opening statement and closing argument unacceptably exacerbated the potential for the jury to confuse the factual issues. In particular, the Government's remarks misled the jury to believe that all of the projects identified in count one were subject to the requirements of the Clean Air Act. In the beginning of its opening statement, the Government immediately explained that "[t]he first count contains a whole series of projects... once you find that a conspiracy has existed, we need to prove an overt act, one overt act. We are going to prove a bunch of them, but we only have to prove one." See Government's Opening Statement, Trial Tr. for Sept. 9, 2008.

Notably, the only two types of overt acts listed in count one are alleged violations of the Clean Air Act and the mail fraud statute. The Government's statement therefore gave the impression that it would satisfy its burden with respect to the "whole series of projects" in count one so long as it proved defendant conspired to either violate the Clean Air Act or commit mail fraud. However, in light of the Government's concession that the Clean Air Act did not apply to seven of the eight projects in count one, it was necessarily impossible for defendant to have conspired to violate the Clean Air Act with respect to the "whole series of projects." Even under the Government's theory, it could only prove such a conspiracy with respect to one of the projects.*fn1 As a result, the only legally possible criminal objective was to commit mail fraud, yet the jury was led to believe otherwise both by the Government's statements and the wealth of evidence suggesting defendant was not in compliance with the Clean Air Act.

Despite the Government's belief to the contrary, this inaccurate message was continuously communicated to the jury.*fn2 For example, later in its opening statement the Government discussed what it identified as "standard things in the industry." Id. The Government described proper air monitoring procedures and explained that "this is something that is absolutely required." Id. However, the Government's post-trial admission that the Clean Air Act did not apply to seven of the eight projects begs the question: under what statute were such procedures "absolutely required?" Count one charged defendant with conspiring to violate either the Clean Air Act or the mail fraud statute, and nothing in the mail fraud statute is related to proper asbestos removal procedures. See 18 U.S.C. § 1341. Instead, the only logical conclusion was the misleading belief that defendant's conduct with respect to all of the projects listed in count one fell within the purview of the Clean Air Act.

Throughout the trial, the Government, for whatever reason, discussed each project as it related to possible violations of the Clean Air Act instead of focusing upon defendant's alleged use of mailings in violation of the mail fraud statute. For example, when discussing the Kerr Residence with the jury, the Government stated that defendant was "responsible for making sure, among other things, that OSHA personals are taken." Government's Opening Statement, Trial Tr. for Sept. 9, 2008. The Government then immediately argued to the jury: "Well, certainly there were no OSHA personals taken on this project." Id. The unavoidable result was that the jury was led to believe the Government could satisfy its burden of proof so long as it showed defendant conspired to violate the Clean Air Act on any one of the eight projects.

Perhaps more than any other statement, one of the Government's remarks during its closing argument demonstrates the misleading nature of count one and the corresponding high potential for juror confusion. Shortly before finishing its closing argument, the Government stated to the jury:

Ladies and gentlemen, we have alleged in count one a Clean Air Act and a mail fraud conspiracy. Now, in this particular case, there are Clean Ar Act violations, overt acts. There are mail fraud overt acts. And the fact of the matter is, if you find a conspiracy, and you only need find one overt act having been committed.

Each of the projects list multiple overt acts, and you need only find one. Government's Closing Argument, Trial Tr. for Sept. 18, 2009. This statement, in the clearest of terms possible, argues to the jury that the Government will have satisfied its burden of proof if it proved that defendant conspired to violate the Clean Air Act with respect to any one of the projects listed in count one.

Also significant is the Government's failure to differentiate between the two criminal objectives. Although the Government acted within its discretion to charge a multi-objective conspiracy within a single count of the Indictment, not once did the Government state to the jury that the Clean Air Act did not apply to seven of the eight projects identified in count one. Instead, this significant distinction was not conceded until after trial during oral argument of defendant's post-trial motions. Consequently, the jury was led to believe that all of the projects in count one were subject to the statutory requirements for asbestos removal provided for in the Clean Air Act. If deliberate, the Government's decision to charge the two criminal objectives under a single count represents a serious abuse of prosecutorial discretion. Even if inadvertent, however, the substantial potential for juror confusion and prejudice remained. Also, defense counsel was delinquent in not raising this objection until after trial. This argument should have been made beforehand.

In any event, the jury considered an overwhelming amount of evidence that suggested defendant conspired to commit a legally impossible crime, i.e., the conspiracy to violate the Clean Air Act. As a matter of law, the criminal objective to violate the Clean Air Act was incapable of being proven because none of the projects listed in count one were within the ambit of the Act's requirements. Defendant was therefore subject to a substantial risk of unfair prejudice because some, if not all, of the jurors may have inferred from the extensive evidence of improper asbestos abatement procedures that he conspired to violate the Clean Air Act. Alternatively, but equally problematic, some jurors may have inferred that defendant committed mail fraud only after being improperly persuaded by the evidence of defendant's alleged non-compliance with the Clean Air Act. Therefore, the Government cannot rely upon the rule in Papadakis as support for its argument that it needed to prove only a single objective of the multi-objective conspiracy in count one. To the contrary, there was too great a risk that the jury improperly considered evidence suggesting defendant committed an overt act in furtherance of the unproven part of the conspiracy, and accordingly, defendant's motion for acquittal of count one will be granted.

2. Count Five: Aiding and Abetting Violations of the Clean Air Act

Defendant challenges the sufficiency of the evidence for his conviction under count five of the Indictment. In support of his position, defendant argues that the Government affirmatively withheld the testimony of Roger Moran because Mr. Moran would have contradicted the accounts of the Government's other witnesses. Additionally, defendant argues that there was no proof he was ...


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