U.S. Court of Appeals, Second Circuit
Factual Insufficiency — Legal Insufficiency
United States v. Desnoyers
Appealed from the Northern District of New York
Background: A jury convicted appellee Mark Desnoyers on multiple counts, including one count of conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. §371. After trial, the U.S. District Court for the Northern District of New York entered a judgment of acquittal on the conspiracy count citing both factual and legal insufficiency as grounds for its decision. The government appeals the acquittal ruling.
Desnoyers was licensed in New York to conduct air monitoring at asbestos abatement projects and to document the results of asbestos removal work. Based on evidence that Desnoyers conducted his work fraudulently and sometimes not at all, the government charged Desnoyers with mail fraud and other offenses.
The district court concluded that the government failed to show that 69 Clinton Street was subject to the CAA’s asbestos regulations because no witness testified directly about the quantity of asbestos at 69 Clinton St. The court reasoned that the testimony at trial was insufficient to show that 69 Clinton St. contained at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos because “the witnesses’ opinions as to what constitutes a ‘large’ project could obviously still fall short of the rule’s footage requirements.”
Based on the foregoing, the district court concluded that the jury’s verdict on the conspiracy count could not stand because the CAA object suffered from a factual defect. Although a factual defect in one object of a multi-object conspiracy does not ordinarily require a court to overturn a guilty verdict, the court entered a judgment of acquittal on the conspiracy count. In so holding, the district court found that the ordinary rule for multi-object conspiracies did not apply because “an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury.”
Ruling: The court vacates the judgment of acquittal on the conspiracy count, and remands the case to the district court with instructions to reinstate the jury verdict, enter a judgment of conviction on the conspiracy count, and resentence Desnoyers accordingly. The fact that the government may not have established that the properties at issue in the conspiracy count were subject to the CAA asbestos regulations was a factual deficiency in the government’s case, not a legal one. As a result, the district court erred when it characterized the government’s CAA theory as “legally impossible.”
Lisa E. Jones of the Department of Justice for the appellant; John B. Casey for the appellee