United States v. Certified Environmental Services, Inc.
753 F.3d 72
| 2d Cir. | 2014Background
- CES, Copeland, and Dunn were convicted of conspiracy, aiding and abetting Clean Air Act violations, mail fraud, and false statements; convictions vacated and new trial ordered on appeal.
- The court analyzed extensive regulatory regimes (federal, state) governing asbestos removal, including EPA/TSCA, OSHA, and New York Code Rule 56 provisions on containment, negative pressure, air monitoring, and clearance testing.
- The government presented testimony about illegal rip-and-run asbestos removals and CES monitoring practices; defendants argued good-faith interpretations and lack of criminal intent.
- Evidence included cooperation agreements with key witnesses; defense introduced contrary evidence of good-faith compliance and dimishment of incentives for misconduct.
- The district court’s restitution and loss calculations, and the use of the fraud guideline, were found flawed; these issues influenced sentencing, leading to remand for new trial and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bolstering via cooperation agreements | Cosentino applies; bolstering improper | Carr/Modica limits; some direct examination allowed | Improper bolstering; reversible error necessitating new trial |
| Exclusion of good-faith evidence | Hoosock 1994 convo and 2006 email support good faith | Evidence relevant to intent and knowledge | Abuse of discretion; exclusion prejudicial; requires new trial |
| Brady disclosure of Dwyer notes | Notes were Brady material | Notes marginally helpful, disclosure delayed | Not a Brady violation; failure to disclose insufficient to warrant new trial |
| Rebuttal vouching and improper remarks | Prosecutor’s comments reinforced witnesses’ credibility | Remedies insufficient | Prosecutorial misconduct; reversible error; new trial necessary |
| Restitution, loss, and guideline computation | Loss and restitution should align with guideline calculations | Potential misapplication of fraud vs hazardous-substances guideline | Guidelines calculations vacated; remand for resentencing; restitution issues remanded |
Key Cases Cited
- United States v. Cosentino, 844 F.2d 30 (2d Cir.1988) (cooperation agreements may rehabilitate credibility but not before a door is opened)
- United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir.1978) (double-edged nature of cooperation agreements; impeachment vs rehabilitation)
- Edwards v. United States, 631 F.2d 1049 (2d Cir.1980) (truth-telling provisions; rehabilitation after credibility attack)
- United States v. Carr, 424 F.3d 213 (2d Cir.2005) (prosecutor may not vouch for witnesses' truthfulness)
- United States v. Modica, 663 F.2d 1179 (2d Cir.1981) (prohibition on personal vouching by prosecutors)
- United States v. Young, 470 U.S. 1 (1985) (prosecutorial conduct; limits on inflaming jurors)
- United States v. Curley, 639 F.3d 50 (2d Cir.2011) (evidence of ongoing regulatory understanding as continuous mental process)
- Koskerides, 877 F.2d 1129 (2d Cir.1989) (Rule 16 disclosures; substance vs. written notes)