Sunday, March 20, 2011

Down for the Count

United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ)

Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (“CAA”) and to commit mail fraud, in connection with his asbestos abatement work. The district court, finding both factual and legal problems with the conviction on that count, entered a post-verdict judgment of acquittal. On the government’s appeal, the circuit reversed and reinstated the conviction.

The conviction on the conspiracy count related to asbestos abatement work in eight buildings. But, after trial, the government conceded that seven of the buildings were not subject to the CAA’s asbestos removal regulations. As for the eighth, the evidence was equivocal. The issue - whether that building contained enough asbestos to qualify - was not proven directly at trial because no witness actually took measurements there. Rather, the only evidence was a description of the abatement project that used trade jargon that was ambiguous.

The district court concluded that the guilty verdict on the conspiracy count could not stand, holding that the CAA object of the conspiracy “suffered from a factual defect,” and, alternatively, that the CAA object “suffered from a legal defect.”

The circuit disagreed on both theories, and reversed. A factual challenge to a conviction raises the standard question for sufficiency: could a reasonable jury find each element of the offense proven beyond a reasonable doubt. A legal challenge occurs when a defendant is “charged with conduct that is not legally actionable.” The difference is significant. Where a jury is considering alternative theories of guilt but renders a general verdict, a factual challenge fails as long as there was “sufficient evidence to support one of the theories presented.” But if the challenge is legal and“any of the theories was legally insufficient, then the general verdict must be reversed.

Under these standards, the conspiracy count was sound. As for factual insufficiency, Desnoyers did not challenge the mail fraud object at all. Thus, even if the CAA theory were insufficient, the conviction should still survive a factual challenge.

There is a “caveat” to this rule - the count should still be reversed when “an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury.” But the caveat did not apply here. There was not an overwhelming amount of evidence relevant only to the CAA object. Rather, most of the evidence was relevant both to the CAA object and the mail fraud object.

Desnoyer’s legal challenge to the count also failed. In fact, he did not “actually set forth a cognizable legal challenge” to the count at all. Rather, all he did was restate the factual objection - that the government could not prove that any of the eight projects was subject to CAA asbestos regulations - and cast it as a legal defect. The court rejected his claim that the jury was instructed “using an incorrect explanation of the law.”

Thus, while the circuit reversed a conviction for Hobbs Act extortion where the two of the three definitions of extortion in the jury charge did not satisfy the statutory definition of extortion, this case was different. All the jury was asked was whether his conduct violated the CAA, something that juries are “always asked” to do. There was no mistake about the law.

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