Page 1 of 18 10-0447-cr United States v. Desnoyers

UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 5 6 August Term, 2010 7 8 (Argued: January 13, 2011 Decided: March 14, 2011) 9 10 Docket No. 10-0447-cr 11 12 13 UNITED STATES OF AMERICA , 14 15 Appellant , 16 17 –v.– 18 19 MARK DESNOYERS , 20 21 Defendant-Appellee

. 22 23 24 25 Before: 26 JACOBS , Chief Judge , WESLEY , and CHIN , Circuit Judges

. 27 28 A jury convicted Defendant-Appellee Mark Desnoyers on 29 multiple counts, including one count of conspiracy to 30 violate the Clean Air Act and to commit mail fraud in 31 violation of 18 U.S.C. § 371. After trial, the United 32 States District Court for the Northern District of New York 33 (Hurd, J.) entered a judgment of acquittal on the conspiracy 34 count citing both factual and legal insufficiency as grounds 35 for its decision. The Government appeals the acquittal 36 ruling. We vacate the judgment of acquittal on the 37 conspiracy count, and remand the case to the district court 38 with instructions to reinstate the jury verdict, enter a 39 judgment of conviction on the conspiracy count, and 40 resentence Desnoyers accordingly. 41Page 2 of 18 JUDGMENT VACATED IN PART AND REMANDED . 1 2 3 4 LISA E. JONES , United States Department of Justice, 5 Environment & Natural Resources Division, 6 Washington, DC (Ignacia S. Moreno, Assistant 7 Attorney General; Richard S. Hartunian, United 8 States Attorney for the Northern District of 9 New York; Craig Benedict, Assistant United 10 States Attorney; Colin Black, John Smeltzer, 11 United States Department of Justice, 12 Environment & Natural Resources Division, on 13 the brief ) (Michael Fisher, EPA Office of 14 Criminal Enforcement, Washington, DC, of 15 counsel ), for Appellant. 16 17 JOHN B. CASEY , Dreyer Boyajian LLP, Albany, NY, for 18 Defendant-Appellee. 19 20 21 22 WESLEY, Circuit Judge : 23 The United States appeals from a June 19, 2009 order of 24 the United States District Court for the Northern District 25 of New York (Hurd, J. ) entering a post-verdict judgment of 26 acquittal in favor of Defendant-Appellee Mark Desnoyers on 27 one count of conspiracy to violate the Clean Air Act (the 28 “CAA”) and to commit mail fraud in violation of 18 U.S.C. § 29 371. The district court held that Desnoyers’s conspiracy 30 conviction must be set aside because the conspiracy count 31 suffered from both factual and legal defects. We disagree. 32 We therefore VACATE the judgment of acquittal and REMAND the 331Desnoyers 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 case to the district court with instructions to reinstate 1 the jury verdict, enter a judgment of conviction on the 2 conspiracy count, and resentence Desnoyers. 3

**BACKGROUND** 4 Desnoyers was licensed in New York to conduct air 5 monitoring at asbestos abatement projects and to document 6 the results of asbestos removal work. Based on evidence 7 that Desnoyers conducted his work fraudulently and sometimes 8 not at all, the Government charged Desnoyers with (1) 9 conspiring to violate the CAA and to commit mail fraud in 10 violation of 18 U.S.C. § 371; (2) violating the CAA in 11 violation of 42 U.S.C. § 7413(c)(1); (3) mail fraud in 12 violation of 18 U.S.C. § 1341; and (4) three counts of 13 making false statements in violation of 18 U.S.C. § 1001. 14 The jury convicted Desnoyers on all counts except one count 15 of making false statements. 16 After trial, Desnoyers filed a motion pursuant to 17 Federal Rules of Criminal Procedure 29(c) and 33 challenging 18 his conspiracy conviction. 1Desnoyers conceded below that 192The Government moved for reconsideration of the acquittal. On September 14, 2009, the district court denied the Government’s request to reinstate the conviction.

3Desnoyers 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 the Government introduced sufficient evidence at trial to 1 support the mail fraud object of the conspiracy. Desnoyers 2 argued that his conspiracy conviction is nevertheless 3 defective because the CAA object rendered the conspiracy 4 count both factually and legally defective. The district 5 court agreed that the conspiracy count was factually and 6 legally defective and on June 19, 2009, entered a judgment 7 of acquittal on the conspiracy count. 2 8 The Government appeals the district court’s entry of a 9 judgment of acquittal on the conspiracy count; the other 10 counts are not at issue on appeal. Accordingly, we need 11 only examine in depth the evidence relevant to the 12 conspiracy count. We pay particular attention to the CAA 13 object of the conspiracy because Desnoyers concedes that the 14 mail fraud object did not suffer from any defects. 3 15 The Indictment charged Desnoyers and others with 16 conspiring to violate the CAA and the mail fraud statute 17 based on Desnoyers and his co-conspirators’s asbestos 18Page 5 of 18 abatement work in eight buildings. The Government conceded 1 after trial, however, that seven of these buildings were not 2 subject to the CAA asbestos removal regulations. The CAA 3 asbestos removal regulations cover only residences with more 4 than four units and commercial buildings; additionally, 5 buildings must contain “friable” asbestos and at least 260 6 linear feet of asbestos on pipes or 160 square feet of 7 asbestos on other facility components in order to be subject 8 to the regulations. See 40 C.F.R. §§ 61.141 (defining 9 friable asbestos as “any material containing more than 1 10 percent asbestos . . . that, when dry, can be crumbled, 11 pulverized, or reduced to powder by hand pressure”), 12 61.145(a)(1)(i-ii), (4)(i-ii). When the CAA asbestos 13 regulations apply, specific work practices must be followed 14 during asbestos removal. See 40 C.F.R. § 61.145. Failure 15 to observe these practices when a building is not subject to 16 the CAA asbestos regulations does not violate the CAA. 17 The parties dispute whether one building at issue in 18 the conspiracy count — known as 69 Clinton Street — is 19 subject to the CAA asbestos regulations. Evidence at trial 20 showed that 69 Clinton Street was a commercial property 21 containing friable asbestos. No witness testified directly, 224The “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 however, about the exact asbestos measurements at 69 Clinton 1 Street; indeed, these measurements were not taken by an EPA 2 monitor because the pipes had been removed before he visited 3 the site. The Government’s evidence on asbestos quantity 4 came from the testimony of multiple witnesses that the 69 5 Clinton Street project was either “a large” or not “a 6
small.” These same witnesses all testified that in the New 7 York asbestos industry, a large project is understood to be 8 a project with sufficient asbestos to fall under the CAA's 9 requirements, whereas a small project is not. 4Several 10 witnesses explicitly explained that “a large” is understood 11 as a project containing at least 260 linear feet of asbestos 12 on pipes or 160 square feet of asbestos on other facility 13 components — that is, a project with sufficient asbestos to 14 qualify under the quantity requirement of the CAA asbestos 15 regulations. 16 The district court concluded that the Government failed 17 to show that 69 Clinton Street was subject to the CAA’s 18 asbestos regulations because no witness testified directly 19Page 7 of 18 about the quantity of asbestos at 69 Clinton Street. The 1 district court reasoned that the testimony at trial was 2 insufficient to show that 69 Clinton Street contained at 3 least 260 linear feet of asbestos on pipes or 160 square 4 feet of asbestos because “the witnesses’ opinions as to what 5 constitutes a ‘large’ project could obviously still fall 6 short of the rule’s footage requirements.” 7 Based on the foregoing, the district court concluded 8 that the jury’s verdict on the conspiracy count could not 9 stand because the CAA object suffered from a factual defect. 10 Although a factual defect in one object of a multi-object 11 conspiracy does not ordinarily require a court to overturn a 12 guilty verdict, United States v. Garcia , 992 F.2d 409, 416 13 (2d Cir. 1993), the district court entered a judgment of 14 acquittal on the conspiracy count. In so holding, the 15 district court found that the ordinary rule for multi-object 16 conspiracies did not apply because “an overwhelming amount 17 of evidence relevant only to the unproved part of the 18 conspiracy may have prejudiced the jury.” See United States 19 v. Papadakis , 510 F.2d 287, 297 (2d Cir. 1975). 20 The district court found in the alternative that a 21 judgment of acquittal was required because the CAA object of 225Notably, 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 the conspiracy suffered from a legal defect. The district 1 court reasoned: 2 Here, the Clean Air Act objective 3 within Count One suffered from a 4 substantial legal defect because of the 5 inapplicability of the Act’s regulatory 6 standards. Even if the evidence, viewed 7 in the light most favorable to the 8 Government, was sufficient to show that 9 the Clean Air Act applied to the 69 10 Clinton Street project, it remains 11 undisputed that it was legally impossible 12 for defendant to conspire to violate the 13 Clean Air Act with respect to the 14 remaining seven projects identified in 15 Count One. . . . [T]here were seven 16 instances in which the jury had to 17 consider a legally impossible theory of 18 guilt. Defendant’s conviction under Count 19 One may very well have been based upon 20 any one of these seven legally impossible 21 theories. Accordingly, the weight of the 22 evidence admitted at trial is irrelevant, 23 and defendant’s conviction cannot stand. 24 25 The court thereafter entered judgments of guilt on the 26 remaining counts and sentenced Desnoyers based on these 27

counts. 5 28 The Government filed this timely appeal challenging the 29 district court’s entry of a judgment of acquittal as to the 30Page 9 of 18 conspiracy count. 1

**DISCUSSION** 2

**A. Standard of Review**  3 We review a judgment of acquittal notwithstanding a 4 guilty verdict de novoand apply “the same standard of 5 constitutional sufficiency as the district court.” United 6

States v. Heras , 609 F.3d 101, 105 (2d Cir. 2010). A 7 defendant challenging the sufficiency of the evidence “bears 8 a heavy burden,” United States v. Aguilar , 585 F.3d 652, 656 9 (2d Cir. 2009), because a reviewing court must sustain the 10 jury’s guilty verdict if, “viewing the evidence in the light 11 most favorable to the prosecution, any rational trier of 12 fact could have found the essential elements of the crime 13 beyond a reasonable doubt,” Jackson v. Virginia , 443 U.S. 14 307, 319 (1979) (emphasis in original). 15

**B. The Conspiracy Conviction Suffered Neither a Factual**  16 **Nor a Legal Defect** 17 18 Claims of factual and legal defects both challenge the 19 sufficiency of the Government’s case, but they do so in 20 distinct ways. A factual challenge tests the sufficiency of 21 the evidence and requires a court to examine whether a 22Page 10 of 18 reasonable jury could find each element of a crime proven 1 beyond a reasonable doubt. Jackson , 443 U.S. at 319. A 2 legal challenge, by contrast, questions whether a conviction 3 rests on “a mistake about the law, as opposed to a mistake 4 concerning the weight or the factual import of the 5 evidence.” Griffin v. United States , 502 U.S. 46, 59 6 (1991). A mistake about the law occurs when a defendant is 7 charged with conduct that is not legally actionable — when, 8 for instance, the charged conduct “is protected by the 9 Constitution, is time barred, or fails to come within the 10 statutory definition of the crime.” Id .; see also Garcia , 11 992 F.2d at 415-16. 12 The difference between factual and legal challenges is 13 significant because “when disjunctive theories are submitted 14 to the jury and the jury renders a general verdict of 15 guilty, appeals based on evidentiary deficiencies must be 16 treated differently than those based on legal deficiencies.” 17 Garcia , 992 F.2d at 416. “If the challenge is evidentiary, 18 as long as there was sufficient evidence to support one of 19 the theories presented, then the verdict should be affirmed. 20 However, if the challenge is legal and any of the theories 21Page 11 of 18 was legally insufficient, then the verdict must be 1 reversed.” Id . This distinct treatment is appropriate 2 because: 3 Jurors are not generally equipped to 4 determine whether a particular theory of 5 conviction submitted to them is contrary 6 to law . . . . When, therefore, jurors 7 have been left the option of relying upon 8 a legally inadequate theory, there is no 9 reason to think that their own 10 intelligence and expertise will save them 11 from that error. Quite the opposite is 12 true, however, when they have been left 13 the option of relying upon a factually 14 inadequate theory, since jurors are well 15 equipped to analyze the evidence. 16 17 Griffin , 502 U.S. at 59. 18 Here, Desnoyers asserts that his conspiracy conviction 19 was both factually and legally defective. He contends that 20 the Government did not — and could not — prove that 69 21 Clinton Street was subject to the CAA asbestos regulations. 22 His first challenge, examining what the Government actually 23 proved, is factual. Desnoyers contends that his second 24 challenge, questioning what the Government could prove, is 25 legal. Notably, Desnoyers does not challenge the CAA object 26 of the conspiracy count in any other respect. He raises no 27 objections regarding the mail fraud object of the conspiracy 286We 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 count. 1

1. Factual Sufficiency 2 Desnoyers’s factual challenge fails because he disputes 3 just one object of the multi-object conspiracy charged. 4 Garcia , 992 F.2d at 416. 6Desnoyers’s concession that the 5 Government proved the mail fraud object of the conspiracy 6 fatally undermines his factual challenge. Id . The Supreme 7 Court has made clear that there is “no exception” to the 8 rule that “‘[w]hen a jury returns a guilty verdict on an 9 indictment charging several acts in the conjunctive . . . 10 the verdict stands if the evidence is sufficient with 11 respect to any one of the acts charged.’” Griffin , 502 U.S. 12 at 56-57 (quoting Turner v. United States , 396 U.S. 398, 420 13 (1970)). 14 Our Court has previously announced a “caveat” to the 15 general rule that “[w]here a conspiracy has multiple 16 objectives, a conviction will be upheld so long as evidence 17Page 13 of 18 is sufficient to show that an appellant agreed to accomplish 1 at least one of the criminal objectives.” Papadakis , 510 2 F.2d at 297. In Papadakis , we held that this caveat applies 3 when “an overwhelming amount of evidence relevant only to 4 the unproved part of the conspiracy may have prejudiced the 5 jury.” Id . The Government urges us to hold that Griffin 6 implicitly overruled the Papadakis caveat. See Griffin , 502 7
U.S. at 57. 8 We need not determine the continuing validity of the 9 Papadakis caveat, however, because the caveat does not apply 10 in any event to this case. Even assuming arguendo that the 11 Government failed to prove the CAA object, an overwhelming 12 amount of the evidence at trial was not relevant solely to 13 the CAA object. Instead, the trial evidence related to 14 Desnoyers and his co-conspirators’ abatement work and false 15 representations to clients was relevant to both the CAA 16 object and the mail fraud object. This evidence supported 17 the government’s mail fraud allegation by showing that 18 Desnoyers and his co-conspirators participated in a scheme 19 to use the mail to falsely represent to clients that their 20 abatement and monitoring work complied with state law. 21Page 14 of 18 Accordingly, even if valid, the Papadakiscaveat does not 1 support a judgment of acquittal notwithstanding the verdict 2 here. 3

2. Legal Sufficiency 4 Although Desnoyers labels his second argument a legal 5 challenge, he fails to actually set forth a cognizable legal 6 challenge. Desnoyers contends that the CAA object of the 7 conspiracy was legally defective because, according to 8 Desnoyers, the Government could not prove that any of the 9 eight projects charged in the conspiracy count, including 69 10 Clinton Street, were subject to the CAA asbestos 11 regulations. Desnoyers’s purported legal challenge is 12 simply a restatement of his factual challenge — he contends 13 that the Government failed to prove an element of the 14 offense. 15 The Supreme Court has suggested that a legal defect 16 arises when a court instructs jurors using an incorrect 17 explanation of the law. Griffin , 502 U.S. at 59. Unlike 18 jurors presented with a factually deficient theory, jurors 19 presented with a mistaken view of the law cannot be presumed 20 to have discovered the legal mistake. Jurors are fact 21Page 15 of 18 finders, not lawyers or judges, and thus “are not generally 1 equipped to determine whether a particular theory of 2 conviction submitted to them . . . fails to come within the 3 statutory definition of the crime.” Id

. 4 Our Court applied this principle in Garciawhen a 5 defendant challenged his conviction for extortion in 6 violation of the Hobbs Act on the grounds that two of the 7 three definitions of extortion provided to the jury did not 8 satisfy the Supreme Court’s definition of Hobbs Act 9 extortion. Garcia , 992 F.2d at 415. In the intervening 10 time between the trial in Garciaand Garcia’s challenge on 11 appeal, the Supreme Court held in Evans v. United States , 12 504 U.S. 255, 268 (1992), that the relevant extortion 13 statute required the Government to prove a quid pro quo: 14 “‘that a public official has obtained a payment to which he 15 was not entitled, knowing that the payment was made in 16 return for official acts.’” Garcia , 992 F.2d at 414 17 (quoting Evans , 504 U.S. at 268). Because two of the 18 district court’s instructions in Garciadid not require the 19 jury to find a quid pro quo, the jury could have convicted 20 Garcia after finding that he committed conduct described in 217 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. Griffinexpressly 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 the errant instructions that was not, in fact, prohibited by 1 the Hobbs Act. Id

. Given this possibility, our Court 2 overturned Garcia’s extortion conviction on the ground of 3 legal defect. 4 Here, Desnoyers contends that his conspiracy conviction 5 suffered from a similar legal defect because the jury needed 6 to determine whether Desnoyers’s conduct fell within the 7 proscriptions of the CAA. Desnoyers’s view, if we accepted 8 it, would stretch Griffin ’s definition of a legal error 9 beyond recognition. 7Juries are always asked to determine 10conviction invalid. Id . Desnoyers, meanwhile, is not. Page 17 of 18 whether a defendant’s conduct falls within the definition of 1 a crime in the sense that juries must always determine 2 whether a defendant committed every essential element of a 3 crime. See Jackson , 443 U.S. at 319. Griffin ’s use of 4 “fail[ed] to come within the statutory definition” of a 5 crime concerns cases where the statutory definition itself 6 is contested or unclear. Garcia was such a case because the 7 jury was presented with alternative definitions of 8 extortion, only one of which actually described conduct 9 within the statutory definition of extortion. See Garcia , 10 992 F.2d at 415. 11 Unlike Garcia , the present case did not involve a 12 mistake about the law. The jury was not instructed to apply 13 incorrect legal principles or definitions. Instead, the 14 jury was correctly instructed on the conditions under which 15 the CAA asbestos regulations apply. The jury was then 16 tasked with fact finding: in order to determine whether 17 Desnoyers conspired to violate the CAA, the jury was asked 18 to determine, among other things, whether each property in 19 the conspiracy count was (1) a commercial property or a 20Page 18 of 18 residential property with more than four units containing 1 (2) a sufficient quantity of (3) friable asbestos. The 2 Government could prove that one of those properties, 69 3 Clinton Street, was subject to the CAA asbestos regulations 4 by introducing evidence of these three factors. 5 The fact that the Government may not have established 6 that the properties at issue in the conspiracy count were 7 subject to the CAA asbestos regulations was a factual 8 deficiency in the Government’s case, not a legal one. As a 9 result, the district court erred when it characterized the 10 Government’s CAA theory as “legally impossible.” 11 In sum, the conspiracy count suffered neither a factual 12 nor a legal defect. 13

**CONCLUSION** 14 Based on the foregoing, the district court’s decision 15 to set aside the jury verdict was in error. We therefore 16 VACATE the judgment granting the Rule 29 motion and REMAND. 17 The district court is instructed to reinstate the jury 18 verdict, enter a judgment of conviction on the conspiracy 19 count, and resentence Desnoyers accordingly. 20