United States v. WeintraubUnited States v. Weintraub
Affirmed.[Copyrighted Material Omitted]
Barry A. Bohrer, Esq., Morvillo, Abramowitz, Grand, Iason & Silberberg (James C. Dugan, on the brief), New York, New York, for Appellant Weintraub.
Jeffrey A. Meyer, Esq., Assistant United States Attorney (Stephen C. Robinson, United States Attorney for the District of Connecticut, on the brief), New Haven, Connecticut, for Appellee.
Before: Walker, Chief Judge, Oakes and Pooler, Circuit Judges.
John M. Walker, Jr., Chief Judge
1 Defendant Melvin Weintraub appeals from a judgment of the United States District Court for the District of Connecticut (Janet Bond Arterton, District Judge) convicting him, after a jury trial, of criminal violations of and conspiracy to violate the Clean Air Act (“CAA” or “the Act“),
2 In November 1995, Weintraub, a real estate developer and the primary shareholder of defendants-appellants Morelite Development & Construction, Inc. (“Morelite“) and Liberty Realty Associates, LLC (“Liberty“) (collectively the “Corporate Defendants“), began negotiations with the City of New Haven, Connecticut (“the City“) for the purchase of an abandoned office building located at 152 Temple Street in New Haven, with an eye to renovating the building and converting it into residential apartments. Prior to Weintraub‘s involvement, the City had engaged a consulting firm to evaluate the building for renovation or demolition, and that firm in turn had hired Mystic Air Quality Associates, Inc., (“Mystic“) to perform an environmental analysis of the building. In reviewing the dilapidated property, Mystic prepared a report describing the presence of a considerable amount of asbestos both in floor tiles throughout the building and in insulation in the building‘s basement. An appraiser hired by the City estimated the building‘s value to be $40,000, after accounting for the building‘s poor condition and the estimated high cost of asbestos removal. The City provided Weintraub with the appraisal and the consultant‘s report, which included the Mystic report. In 1996, Weintraub and the City agreed that Liberty would purchase the property from the City for $40,000.
3 Morelite hired defendant Salvatore Napolitano to oversee operations at 152 Temple and defendant-appellant John Dawson as a sub-contractor to demolish the building‘s interior. Dawson was not licensed by the state to perform asbestos abatement. Nevertheless, throughout the demolition, employees under Dawson‘s supervision scraped up asbestos-containing floor tiles and removed asbestos-containing insulation from the basement. They placed the material in plastic garbage bags, which were then taped closed. At least some of the bags were dumped illegally by another defendant, Arthur Harris, at unauthorized sites including a local park and Amtrak property.
4 Soon after demolition began, in February 1997, a state health inspector began investigating reports that asbestos was being thrown from the windows of the building. During his investigation, the inspector noticed that asbestos-containing floor tiles had been removed and issued a warning letter that directed the defendants to hire a licensed asbestos-abatement contractor. Napolitano responded by hiring Eagle Environmental, Inc. (“Eagle“) to survey the quantity and quality of asbestos in the building. In March 1997, Eagle issued a report that confirmed the Mystic report‘s finding of significant amounts of asbestos and stated that abatement work should be performed by a licensed contractor. Napolitano tried to bribe Eagle to provide paperwork indicating that the asbestos had been successfully abated, but Eagle refused.
5 In April 1997, after receiving a copy of the Eagle report but no evidence of proper abatement, the City‘s building inspector sent a letter to Weintraub asking when the “unsafe conditions” of the building would be eliminated. Thereafter, the building inspector and Liberty‘s lender continuously pressured Weintraub to produce documentation of proper asbestos abatement. In June 1997, with Weintraub‘s knowledge, Napolitano procured forged documents showing that abatement had been completed and provided the documents to the lender and building inspector. Based on that representation, the lender released the capital that Weintraub had sought, enabling Liberty to close on its purchase of the building in July 1997.
6 Both before and throughout the demolition process, Weintraub knew of the asbestos at 152 Temple Street. He received the Mystic report, which included an itemized accounting of the asbestos present in the building. He signed a demolition permit indicating that asbestos abatement would be required. He held numerous conversations with City personnel and his own employees regarding the asbestos in the building. He closely monitored Morelite‘s expenditures for the disposal of removed asbestos. He was told on several occasions of the need to employ the services of a licensed asbestos abatement contractor. He made a variety of statements regarding the legality of the asbestos removal. He evidenced knowledge of wrongdoing by complaining to the building inspector that the inspector should not communicate with him in writing about the building‘s asbestos problem. He also tried to persuade City personnel to make false statements about the defendants’ compliance with asbestos regulations. And finally, he participated in the unsuccessful effort to procure phony abatement certifications from Eagle.
7 On September 24, 1998, a grand jury returned an eight-count indictment against all of the defendants. This was supplanted on March 10, 1999 by a superseding indictment against Weintraub, Dawson, the corporate defendants, and several other individual defendants. Napolitano, who had agreed to cooperate with the government, was named but not charged in the superseding indictment. Count One of the superseding indictment charged that the named defendants conspired to violate the CAA,
8 A jury trial was held in September 1999. At the close of the prosecution‘s case, Weintraub moved pursuant to
9 On May 11, 2000, the district court sentenced Weintraub to imprisonment for 12 months and one day, to be followed by three years supervised release, and a $250,000 fine. Dawson was sentenced to 13 months incarceration, to be followed by three years of supervised release and a $10,000 fine. Each Corporate Defendant received five years probation and a $300,000 fine and was ordered to pay, jointly and severally, restitution of $16,600, to cover medical monitoring for workers exposed to asbestos. Finally, the district court sentenced all of the defendants jointly and severally to restitution of $6,534.08, payable to the City of New Haven and Amtrak. Weintraub, Dawson, and the Corporate Defendants appealed. In summary orders filed simultaneously with this opinion, we dispose of the appeals of Weintraub‘s co-appellants.1
10 Weintraub alleges a host of errors in the district court, most of which do not merit discussion. Weintraub‘s most serious claim is that the district court erred in instructing the jury on the level of scienter that is required to prove a criminal violation of the Clean Air Act and its accompanying regulations.2 In particular, Weintraub argues that the district court improperly failed to instruct the jury that the government was obligated to prove Weintraub‘s knowledge of “the facts underlying the essential threshold elements of the [asbestos] work-practice standards - the friability of asbestos containing materials and the threshold amount requirements.” Because Weintraub failed in the district court to preserve this claim of error for appeal, we review it for plain error. We find that the district court‘s scienter instruction was not erroneous, and that, even if it were, the error was not “plain.” We accordingly affirm the judgment of the district court.
I. Regulatory Framework
11 Before turning to the circumstances of the case at hand, we briefly describe the regulatory framework that underlies it.
12 The work-practice standard does not cover all asbestos-containing material (“ACM“) or all demolition and renovation operations. The standard applies only to “[r]egulated asbestos-containing material (RACM),” defined as
13 (a) Friable asbestos material, (b) Category I nonfriable ACM that has become friable, (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading, or (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this subpart.
14
16 the combined amount of RACM to be stripped, removed, dislodged, cut, drilled, or similarly disturbed is... [a]t least 80 linear meters (260 linear feet) on pipes or at least 15 square meters (160 square feet) on other facility components, or... [a]t least 1 cubic meter (35 cubic feet) off facility components where the length or area could not be measured previously.
17
18 The CAA creates strict civil liability for violations of
II. Plain Error
19 On appeal, Weintraub challenges the district court‘s jury instructions on the level of scienter required to be proved to establish that he “knowingly violated” the work-practice standard, though he did not preserve this claim below. “No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.”
20 Although the defendants did propose a jury instruction on scienter, they did not present the argument that Weintraub now asserts on appeal: that the jury could convict only if it found knowledge of friability and the threshold quantity required by the asbestos regulations. While the defendants’ proposed instruction that “[a] person acts ‘knowingly’ when he acts with an awareness of a fact or circumstance rendering his conduct illegal,” could arguably be read to encompass the theory they press on appeal, it was insufficiently particular to raise the question now presented and thus preserve it for appeal. By failing to draw the district court‘s attention to the problem that Weintraub now complains of, the defendants deprived the district court of the opportunity to correct its putative error.
21 Weintraub also argues that counsel properly objected during the charge conference. To the contrary, defense counsel not only did not seek the instruction that Weintraub now argues for, they affirmatively accepted the government‘s formulation. Counsel for the government stated that “[our] concern is that the government doesn‘t have to prove that the defendant knew that it was 10 percent asbestos containing material and all that other stuff,” to which counsel for Liberty responded, “Agreed.” The court then summarized that the scienter standard required that “the defendant knew generally that the material was asbestos containing material,” to which the defendants’ attorneys responded variously “[y]eah,” “[y]es,” and “[t]hat works.” Weintraub‘s counsel then specifically clarified that “asbestos containing material” meant only that the material involved in fact contained asbestos, not that it met the work-practice standard‘s definitions: “[t]hat the material was asbestos containing material... means you had to know it was asbestos.” These statements, far from reasonably suggesting an objection of the sort Weintraub now advances, indicate counsel‘s acceptance of the instruction eventually given by the district court. Cf. United States v. Civelli, 883 F.2d 191, 194 (2d Cir. 1989) (“Counsel‘s further comments during colloquy with the court only compounded his earlier failure [to object], for his comments were expressions of acquiescence, not exception.“). We consequently review for plain error.
22 The first requirement of plain error review is that the district court in fact must have erred. See Olano, 507 U.S. at 732. Here, we believe that the district court‘s jury instruction adequately conveyed the degree of scienter required by the CAA, because it required - consistent with defense counsel‘s suggestion at the charge conference - that the jury find that Weintraub knew that material involved in the renovation contained asbestos.
1. Scienter Required by the Clean Air Act
23 Weintraub argues that the phrase “knowingly violates” in
24 To determine what Congress meant when it used the phrase “knowingly violates,” we begin with the text of the statute. See Disabled in Action v. Hammons, 202 F.3d 110, 119 (2d Cir. 2000). The phrase is commonly used in criminal provisions, but many courts have found it and similar formulations ambiguous. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Liparota v. United States, 471 U.S. 419 (1985); United States v. Int‘l Minerals & Chems. Corp., 402 U.S. 558 (1971); United States v. Bronx Reptiles, Inc., 217 F.3d 82 (2d Cir. 2000); United States v. Figueroa, 165 F.3d 111 (2d Cir. 1998); United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996). See generally Wayne R. LaFave & Austin W. Scott, Criminal Law § 3.4(b), at 214 (2d ed. 1986). It may plausibly be read to require either knowledge that the conduct in question violated the law or knowledge of the facts and circumstances that amount to a violation, without specific knowledge of the law.
25 On its face, the phrase appears to suggest that the government must prove that the defendant knew that he was violating the law. This reading is precluded, however, by the Supreme Court‘s decision in International Minerals, in which the Supreme Court held that the phrase “knowingly violates” did not require knowledge that the defendant‘s conduct was unlawful. The Court found no evidence of congressional intent to abrogate the bedrock common law principle that ignorance of the law is not a defense. See Int‘l Minerals, 402 U.S. at 562-63. We have reached a similar conclusion with respect to the similarly worded criminal provisions of the Clean Water Act (“CWA“),
26 Instead, we hold that the phrase “knowingly violates” requires knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one‘s conduct is illegal. Courts have applied a canon of statutory interpretation to read criminal statutes that are silent or ambiguous as to the required standard of mens rea, to demand knowledge of enough facts to distinguish conduct that is likely culpable from conduct that is entirely innocent. See Carter v. United States, 530 U.S. 255, 269 (2000) (“The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.‘“) (quoting X-Citement Video, 513 U.S. at 72); Liparota, 471 U.S. at 426 (reading statute to avoid “criminaliz[ing] a broad range of apparently innocent conduct“); United States v. Sanders, 211 F.3d 711, 723 (2d Cir.) (“[I]t has become clear that knowledge may suffice for criminal culpability if ‘extensive enough to attribute to the knower a “guilty mind,” or knowledge that he or she is performing a wrongful act.‘“) (quoting Figueroa, 165 F.3d at 115-16), cert. denied, 531 U.S. 1015 (2000); cf. Hanousek v. United States, 528 U.S. 1102, 120 S. Ct. 860, 861 (2000) (Thomas and O‘Connor, JJ., dissenting from denial of certiorari) (stating that “we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations“). “[S]cienter requirements should be presumed to [require no more knowledge than necessary to put a defendant] on notice that he is committing a non-innocent act.” Figueroa, 165 F.3d at 117; id. at 118 (requiring “sufficient knowledge to recognize that they have done something culpable“).
28 Our understanding of the appropriate mens-rea standard is informed by two Supreme Court decisions applying the scienter requirement of one statute to two different sets of facts. Compare United States v. Freed, 401 U.S. 601 (1971), with Staples, 511 U.S. 600. The National Firearms Act proscribes, inter alia, “receiv[ing] or possess[ing] a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”
29 Twenty-three years later, in Staples, the Court applied the same analysis to the possession of a machine gun, but reached a nearly opposite result based on the different expectations of regulation associated with guns. The Court found that the long history of substantially unregulated possession of guns in the United States meant that a possessor would not reasonably expect that possession to be closely regulated. The Court consequently decided that the government was obligated to prove that the defendant knew that his gun was, in fact, capable of being fired automatically and thus was a machine gun, unregistered possession of which violated the Act. Simple knowledge that it was a gun was inadequate to create an expectation that its possession could be criminal. See Staples, 511 U.S. at 610-12. Knowledge that the weapon was automatic was necessary to distinguish between regulated and traditionally unregulated weapons and hence between likely culpable and likely innocent conduct. Although, like grenades, guns are dangerous, because the latter have historically been unregulated or lightly regulated, a defendant who knew only that he possessed a gun would not reasonably expect regulation.
30 In the instant case, Weintraub challenges his conviction on four counts, both substantively and as objects of the charged conspiracy: Count Two, causing a “renovation” of a building containing RACM without notifying EPA, in violation of
32 Weintraub contends that the category of “asbestos” is analogous to the category of “guns” at issue in Staples and that therefore the government must demonstrate knowledge that the asbestos was RACM, as it had to demonstrate knowledge that the weapon was automatic in Staples. We disagree. Unlike the generic category of “guns” in Staples, the category of “asbestos” is easily sufficient to trigger an expectation of regulation in a reasonable person and to distinguish in his or her mind innocent from wrongful conduct. In Staples, the Supreme Court emphasized the long-standing tradition of substantially unregulated possession of firearms in this country as countering the inference that a possessor of a firearm should reasonably anticipate regulation. One would need to know that the weapon could fire automatically before one would suspect his possession to be wrongful. See Staples, 511 U.S. at 619. Likewise, in X-Citement Video, which involved a prosecution for trafficking in child pornography, the Court found that, because the First Amendment protects possession and distribution of pornography generally, one would not anticipate criminal liability for the distribution of what one knew only to be pornography. Rather, the Court concluded, one would need to know additionally that the pornography involved depictions of children to expect that its distribution would invite prosecution. See X-Citement Video, 513 U.S. at 72-73.
33 In contrast, a reasonable person‘s settled expectations about asbestos are quite different. As a general matter, asbestos is strictly regulated at the local, state, and federal levels and no reasonable person - let alone a sophisticated real estate developer like Weintraub - could be unaware that asbestos in almost all of its applications is closely regulated.5 Beginning in the middle of the twentieth century, asbestos‘s grave public health implications became evident, and over the succeeding decades public control of asbestos has become pervasive. At the federal level, handling of asbestos is covered by a variety of regulatory schemes of which the air-pollution control regulations involved in this case are only a part. See
35 Many of the state and local regulations cited above apply to asbestos below the thresholds in the federal work-practice standard. For example, Connecticut regulates asbestos removal without regard to whether the asbestos is “friable” and does so for quantities as small as three linear or square feet of asbestos-containing material, a threshold considerably below that which defines RACM. See
36 The foregoing considerations lead us to conclude that, in a criminal prosecution under
37 Under this standard, one who, in good faith, did not know that the building he was demolishing contained asbestos could not be convicted of “knowingly violat[ing]” the work-practice standard, even if the demolition in fact involved more than the threshold quantities of RACM. Only knowledge that the renovation or demolition involves asbestos can result in criminal liability, because no one can reasonably claim surprise that asbestos is regulated and that some form of liability is possible for violating those regulations.
38 Our holding that the scienter component of a criminal violation of the asbestos work-practice standard is satisfied by knowledge of the presence of asbestos and not the particular type of asbestos to which the standard applies is limited to such violations. The application of the scienter requirement to criminal violations involving other hazardous air pollutants or violations of other provisions of the CAA must await future cases.
2. The District Court‘s Instructions
39 In light of the foregoing analysis, the district court‘s jury instructions were sufficient and we find no error. Our review of an allegation that the district court‘s jury instructions were legally erroneous is de novo. See United States v. Han, 230 F.3d 560, 565 (2d Cir. 2000). We do not review portions of the instructions in isolation, but rather consider them in their entirety to determine whether, on the whole, they provided the jury with an intelligible and accurate portrayal of the applicable law. See United States v. Bala, 236 F.3d 87, 94-95 (2d Cir. 2000); United States v. Imran, 964 F.2d 1313, 1317 (2d Cir. 1992).
40 The district court‘s instructions were plainly sufficient to inform the jury that it must find that Weintraub knew that the charged conduct involved asbestos. The district court stated that “[t]he government must prove... that the defendant knew that the material at 152 Temple Street contained asbestos,” and later referred to the government‘s obligation to “prov[e] that the defendant knew the material at 152 Temple Street was asbestos.”
41 Beyond those prefatory remarks, which applied to all of the challenged counts, the district court elaborated on the required showing of scienter for Counts Three, Six, and Seven. On Count Three the district court charged that the jury had to find that Weintraub “knew of wrecking and dismantling that broke up regulated asbestos-containing materials [that] occurred before removing asbestos-containing materials from the facility.” Although this instruction is somewhat ambiguous regarding the required referents of Weintraub‘s knowledge, we are satisfied that the jury was informed that the government had to show Weintraub‘s knowledge of particular wrecking and dismantling that broke up asbestos. On Count Six, the court instructed the jury that it could convict if the defendants “knowingly caused regulated asbestos-containing material to be placed in containers that were not leak-tight.” The court then reiterated that Weintraub must be shown to have “kn[own] that asbestos-containing materials were placed in non-leak tight containers.” On Count Seven, the court permitted a conviction only on proof that Weintraub “knowingly disposed and caused to be disposed regulated asbestos-containing materials at one or more sites that could not legally accept asbestos for disposal,” and stated that “the government must prove beyond a reasonable doubt... [that] the defendant knew that regulated asbestos-containing materials were disposed of at one or more sites that could not legally accept asbestos for disposal.”
42 Of the four substantive counts challenged by Weintraub on appeal, only the instruction on Count Two failed to mention specifically that the government was required to prove that Weintraub knew that the material involved was asbestos. The district court charged on Count Two that “the government must prove beyond a reasonable doubt [that in] taking actions... the defendant knew renovation of 152 Temple Street began without providing notice to the administrator of EPA.” Although this instruction, viewed in isolation, failed to mention the required knowledge of the involvement of asbestos, we are satisfied that the instructions as a whole conveyed the required level of scienter. In particular, the earlier general explanation of the required scienter conveyed to the jury that they could convict Weintraub on the challenged counts only if they found that he knew that asbestos was being removed at 152 Temple Street.
B. Plain Error
43 Finally, we observe that even if we had held that the government was required to prove the detailed knowledge of regulated asbestos, the district court‘s failure to give such an instruction would not have been plain error. For an error to be plain, it must, “at a minimum,” be “clear under current law.” United States v. Feliciano, 223 F.3d 102, 115 (2d Cir. 2000) (citing Olano, 507 U.S. at 731-37), cert. denied, 121 S. Ct. 1405 (2001). A reviewing court typically will not find such error where the operative legal question is unsettled. See, e.g., United States v. Santiago, 238 F.3d 213, 215 (2d Cir.), cert. denied, 121 S. Ct. 2016 (2001); Fogarty v. Near N. Ins. Brokerage, Inc., 162 F.3d 74, 81 (2d Cir. 1998). Whether an error is “plain” is determined by reference to the law as of the time of appeal. See Johnson v. United States, 520 U.S. 461, 468 (1997). No binding precedent, whether at the time of trial or appeal, supports the position that Weintraub now advances. Without a prior decision from this court or the Supreme Court mandating the jury instruction that Weintraub, for the first time on appeal, says should have been given, we could not find any such error to be plain, if error it was.
CONCLUSION
44 We have considered the remainder of Weintraub‘s contentions and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby affirmed.