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10-0447-cr

United States v. Desnoyers

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 

6

7 August Term, 2010

8

9 (Argued: January 13, 2011 Decided: March 14, 2011)

10

11 Docket No. 10-0447-cr

12 

13

14 UNITED STATES OF AMERICA,

15

16 Appellant,

17

18 –v.– 

19

20 MARK DESNOYERS,

21

22 Defendant-Appellee.

23

24 

25

26 Before:

27 JACOBS, Chief Judge, WESLEY, and CHIN, Circuit Judges.

28

29 A jury convicted Defendant-Appellee Mark Desnoyers on

30 multiple counts, including one count of conspiracy to

31 violate the Clean Air Act and to commit mail fraud in

32 violation of 18 U.S.C. § 371. After trial, the United

33 States District Court for the Northern District of New York

34 (Hurd, J.) entered a judgment of acquittal on the conspiracy

35 count citing both factual and legal insufficiency as grounds

36 for its decision. The Government appeals the acquittal

37 ruling. We vacate the judgment of acquittal on the

38 conspiracy count, and remand the case to the district court

39 with instructions to reinstate the jury verdict, enter a

40 judgment of conviction on the conspiracy count, and

41 resentence Desnoyers accordingly. 
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1 JUDGMENT VACATED IN PART AND REMANDED. 

2

3 

4

5 LISA E. JONES, United States Department of Justice,

6 Environment & Natural Resources Division,

7 Washington, DC (Ignacia S. Moreno, Assistant

8 Attorney General; Richard S. Hartunian, United

9 States Attorney for the Northern District of

10 New York; Craig Benedict, Assistant United

11 States Attorney; Colin Black, John Smeltzer,

12 United States Department of Justice,

13 Environment & Natural Resources Division, on

14 the brief) (Michael Fisher, EPA Office of

15 Criminal Enforcement, Washington, DC, of

16 counsel), for Appellant. 

17

18 JOHN B. CASEY, Dreyer Boyajian LLP, Albany, NY, for

19 Defendant-Appellee. 

20

21 

22

23 WESLEY, Circuit Judge:

24 The United States appeals from a June 19, 2009 order of

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. The district court held that Desnoyers’s conspiracy

31 conviction must be set aside because the conspiracy count

32 suffered from both factual and legal defects. We disagree. 

33 We therefore VACATE the judgment of acquittal and REMAND the
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. 

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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. 

4 BACKGROUND

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. Based on evidence

8 that Desnoyers conducted his work fraudulently and sometimes

9 not at all, the Government charged Desnoyers with (1)

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

his conspiracy conviction.1 19 Desnoyers conceded below that
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. 

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1 the Government introduced sufficient evidence at trial to

2 support the mail fraud object of the conspiracy. Desnoyers

3 argued that his conspiracy conviction is nevertheless

4 defective because the CAA object rendered the conspiracy

5 count both factually and legally defective. The district

6 court agreed that the conspiracy count was factually and

7 legally defective and on June 19, 2009, entered a judgment

of acquittal on the conspiracy count.2 8

9 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. Accordingly, we need

12 only examine in depth the evidence relevant to the

13 conspiracy count. We pay particular attention to the CAA

14 object of the conspiracy because Desnoyers concedes that the

mail fraud object did not suffer from any defects.3 15 

16 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
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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. The CAA

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. 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). When the CAA asbestos

14 regulations apply, specific work practices must be followed

15 during asbestos removal. See 40 C.F.R. § 61.145. Failure

16 to observe these practices when a building is not subject to

17 the CAA asbestos regulations does not violate the CAA. 

18 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. Evidence at trial

21 showed that 69 Clinton Street was a commercial property

22 containing friable asbestos. 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. 

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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. The Government’s evidence on asbestos quantity

5 came from the testimony of multiple witnesses that the 69

6 Clinton Street project was either “a large” or not “a

7 small.” These same witnesses all testified that in the New

8 York asbestos industry, a large project is understood to be

9 a project with sufficient asbestos to fall under the CAA's

requirements, whereas a small project is not.4 10 Several

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 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
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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. In so holding, the

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.” See United States

20 v. Papadakis, 510 F.2d 287, 297 (2d Cir. 1975). 

21 The district court found in the alternative that a

22 judgment of acquittal was required because the CAA object of
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. 

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1 the conspiracy suffered from a legal defect. The district

2 court reasoned: 

3 Here, the Clean Air Act objective

4 within Count One suffered from a

5 substantial legal defect because of the

6 inapplicability of the Act’s regulatory

7 standards. Even if the evidence, viewed

8 in the light most favorable to the

9 Government, was sufficient to show that

10 the Clean Air Act applied to the 69

11 Clinton Street project, it remains

12 undisputed that it was legally impossible

13 for defendant to conspire to violate the

14 Clean Air Act with respect to the

15 remaining seven projects identified in

16 Count One. . . . [T]here were seven

17 instances in which the jury had to

18 consider a legally impossible theory of

19 guilt. Defendant’s conviction under Count

20 One may very well have been based upon

21 any one of these seven legally impossible

22 theories. Accordingly, the weight of the

23 evidence admitted at trial is irrelevant,

24 and defendant’s conviction cannot stand.

25

26 The court thereafter entered judgments of guilt on the

27 remaining counts and sentenced Desnoyers based on these

counts.5 28

29 The Government filed this timely appeal challenging the

30 district court’s entry of a judgment of acquittal as to the
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1 conspiracy count. 

2 DISCUSSION

3 A. Standard of Review

4 We review a judgment of acquittal notwithstanding a

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 B. The Conspiracy Conviction Suffered Neither a Factual

17 Nor a Legal Defect

18

19 Claims of factual and legal defects both challenge the

20 sufficiency of the Government’s case, but they do so in

21 distinct ways. A factual challenge tests the sufficiency of

22 the evidence and requires a court to examine whether a
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1 reasonable jury could find each element of a crime proven

2 beyond a reasonable doubt. Jackson, 443 U.S. at 319. A

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.” Griffin v. United States, 502 U.S. 46, 59

7 (1991). A mistake about the law occurs when a defendant is

8 charged with conduct that is not legally actionable — when,

9 for instance, the charged conduct “is protected by the

10 Constitution, is time barred, or fails to come within the

11 statutory definition of the crime.” Id.; see also Garcia,

12 992 F.2d at 415-16. 

13 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. “If the challenge is evidentiary,

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
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1 was legally insufficient, then the verdict must be

2 reversed.” Id. This distinct treatment is appropriate

3 because: 

4 Jurors are not generally equipped to

5 determine whether a particular theory of

6 conviction submitted to them is contrary

7 to law . . . . When, therefore, jurors

8 have been left the option of relying upon

9 a legally inadequate theory, there is no

10 reason to think that their own

11 intelligence and expertise will save them

12 from that error. Quite the opposite is

13 true, however, when they have been left

14 the option of relying upon a factually

15 inadequate theory, since jurors are well

16 equipped to analyze the evidence. 

17

18 Griffin, 502 U.S. at 59. 

19 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. Desnoyers contends that his second

25 challenge, questioning what the Government could prove, is

26 legal. Notably, Desnoyers does not challenge the CAA object

27 of the conspiracy count in any other respect. He raises no

28 objections regarding the mail fraud object of the conspiracy
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. 

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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. 

Garcia, 992 F.2d at 416.6 5 Desnoyers’s concession that the

6 Government proved the mail fraud object of the conspiracy

7 fatally undermines his factual challenge. Id. The Supreme

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.’” Griffin, 502 U.S.

13 at 56-57 (quoting Turner v. United States, 396 U.S. 398, 420

14 (1970)). 

15 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
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1 is sufficient to show that an appellant agreed to accomplish

2 at least one of the criminal objectives.” Papadakis, 510

3 F.2d at 297. In Papadakis, we held that this caveat applies

4 when “an overwhelming amount of evidence relevant only to

5 the unproved part of the conspiracy may have prejudiced the

6 jury.” Id. The Government urges us to hold that Griffin

7 implicitly overruled the Papadakis caveat. See Griffin, 502

8 U.S. at 57. 

9 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. Even assuming arguendo that the

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. Instead, the trial evidence related to

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. This evidence supported

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. 
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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. Desnoyers contends that the CAA object of the

8 conspiracy was legally defective because, according to

9 Desnoyers, the Government could not prove that any of the

10 eight projects charged in the conspiracy count, including 69

11 Clinton Street, were subject to the CAA asbestos

12 regulations. Desnoyers’s purported legal challenge is

13 simply a restatement of his factual challenge — he contends

14 that the Government failed to prove an element of the

15 offense. 

16 The Supreme Court has suggested that a legal defect

17 arises when a court instructs jurors using an incorrect

18 explanation of the law. Griffin, 502 U.S. at 59. Unlike

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. Jurors are fact
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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.” Id. 

5 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.’” Garcia, 992 F.2d at 414

18 (quoting Evans, 504 U.S. at 268). Because two of the

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
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

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1 the errant instructions that was not, in fact, prohibited by

2 the Hobbs Act. Id. Given this possibility, our Court

3 overturned Garcia’s extortion conviction on the ground of

4 legal defect. 

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. Desnoyers’s view, if we accepted

9 it, would stretch Griffin’s definition of a legal error

beyond recognition.7 10 Juries are always asked to determine
conviction invalid. Id. Desnoyers, meanwhile, is not. 

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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. See Jackson, 443 U.S. at 319. Griffin’s use of

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. Garcia was such a case because the

8 jury was presented with alternative definitions of

9 extortion, only one of which actually described conduct

10 within the statutory definition of extortion. See Garcia,

11 992 F.2d at 415. 

12 Unlike Garcia, the present case did not involve a

13 mistake about the law. The jury was not instructed to apply

14 incorrect legal principles or definitions. Instead, the

15 jury was correctly instructed on the conditions under which

16 the CAA asbestos regulations apply. The jury was then

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
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1 residential property with more than four units containing

2 (2) a sufficient quantity of (3) friable asbestos. The

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 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 In sum, the conspiracy count suffered neither a factual

13 nor a legal defect.

14 CONCLUSION

15 Based on the foregoing, the district court’s decision

16 to set aside the jury verdict was in error. We therefore

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.