United States v. Catucci

June 7, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1195
UNITED STATES OF AMERICA,
Appellee,
v.
GIACOMO D. CATUCCI,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on May 24, 1995, is amended
as follows:
Cover sheet: change spelling of appellant's attorney's name
to "Marcia G. Shein".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1195
No. 94-1195
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
GIACOMO D. CATUCCI,
GIACOMO D. CATUCCI,
Defendant, Appellant.
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Torruella, Chief Judge,
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
Aldrich, Senior Circuit Judge,
and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
Marcia G. Shein, with whom National Legal Services, Inc. was on
Marcia G. Shein, with whom National Legal Services, Inc. was on
brief for appellant.
brief for appellant.
Craig N. Moore, Assistant United States Attorney, with whom
Craig N. Moore, Assistant United States Attorney, with whom
Sheldon Whitehouse, United States Attorney, was on brief for appellee.
Sheldon Whitehouse, United States Attorney, was on brief for appellee.
May 24, 1995
May 24, 1995
CYR, Circuit Judge. After a jury returned guilty
CYR, Circuit Judge.
verdicts against defendant-appellant Giacom D. Catucci on four
toxic-waste dumping charges, the district court imposed a twenty-
seven month prison sentence and Catucci appealed. Finding no
reversible error, we affirm.
I
I
BACKGROUND
BACKGROUND
The salient facts are recited in the light most favor-
able to the verdicts. United States v. Tuesta-Toro, 29 F.3d 771,
774 (1st Cir. 1994). In 1987, Catucci, then the proprietor of
Post Tron Systems, instructed the plant superintendent to obtain
cost quotations for removing two PCB-laden electrical transform-
ers from the firm's business premises in Providence, Rhode
Island. The cost estimates ranged between $8,000 and $10,000 per
unit. Years later, in June 1991, Post Tron Systems' lending bank
conducted an environmental audit and specifically informed
Catucci that the two transformers containing PCBs would have to
be removed in accordance with Environmental Protection Agency
("EPA") regulations. Shortly thereafter, Post Tron went out of
business.
During the course of subsequent renovations to the
business facilities, Catucci arranged for Manuel Almeida and
Timothy Arcaro to remove a conveyor belt system. As compensa-
tion, Almeida and Arcaro were to retain the salvageable scrap
metal approximating $40 per day in value recovered in the
course of the renovations. Almeida and Arcaro later offered to
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remove all five transformers at the site, including the two PCB-
laden ones, in return for the right to retain the salvage value
of their copper coils. Although the plant superintendent remind-
ed Catucci that scrapping the transformers would be against the
law, Catucci nevertheless granted permission, stating to the
superintendent: "If [Arcaro] wants them, he can have them all."
A few months later, Almeida, Arcaro and a third in-
dividual David Dellinger removed two units, including one
of the PCB-laden transformers, after loosening their lids and
thereby causing oil to leak onto local streets and I-95 during
transportation. At a secluded gravel pit, the remaining oil was
dumped, the copper coils were removed and the transformers were
abandoned. The next day, the men repeated the process with the
three remaining units one containing PCBs.
More than a year later, while investigating David
Dellinger, the Rhode Island Department of Environment Management
("DEM") discovered the PCB-laden oil that had been dumped from
the Post Tron transformers. A few weeks later, the DEM executed
a search warrant at the former Post Tron facility. On the
following day, Catucci informed the Providence Police Department
that the transformers had been stolen. Not until several months
after Arcaro and Almeida were arrested for stealing the trans-
formers did Catucci admit to having allowed them to remove the
transformers. Even then he claimed that they had been told to
dispose of the transformers lawfully.
Thereafter, Catucci was charged, in two counts, with
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causing unlawful disposal of PCBs in violation of 15 U.S.C.
2615(b) and, in two additional counts, with failing to provide
immediate notification of a release of hazardous materials, in
violation of 42 U.S.C. 9603(b). Following his conviction on
all counts, Catucci was sentenced to twenty-seven months.
II
II
DISCUSSION
DISCUSSION
A. Sufficiency of the Evidence
A. Sufficiency of the Evidence
On appeal, Catucci claims that there was insufficient
evidence that he knew the two PCB-laden transformers would be
disposed of illegally, an essential element in each offense
charged. See 15 U.S.C. 2615(b) (establishing criminal sanc-
tions for knowingly or willfully violating EPA dumping regula-
tions); 42 U.S.C. 9603(b) (establishing criminal sanctions
against any person for failing to notify appropriate government
agency of release "as soon as he has knowledge of such release");
United States v. Buckley, 934 F.2d 84, 89 (6th Cir. 1991); United
States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098
(9th Cir. 1985) (Kennedy J.) ( 2615); United States v. Ward,
676 F.2d 94, 97 (4th Cir.) (same), cert. denied, 459 U.S. 835(1982).
Under the established standard of review set out in the
margin,1 we find ample evidence to support the essential jury
1 We assess the sufficiency of the evidence as a whole,
including all reasonable inferences, in the light most
favorable to the verdict, with a view to whether a
rational trier of fact could have found the defendant
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findings that Catucci knew Almeida and Arcaro would dump the PCBs
unlawfully, and that he did not provide timely notice to govern-
mental authorities.
First, the evidence at trial demonstrated that Catucci
had been informed, by his plant superintendent, that lawful
disposal of each PCB-laden transformer would cost between $8,000
and $10,000, since EPA regulations required that they be inciner-
ated. As Almeida and Arcaro were willing to remove the trans-
formers in return for the salvage value of their copper coils,
the jury assuredly could infer that Catucci was well aware that
the two PCB-laden transformers were not going to be incinerated
at a total minimum cost of $16,000 by volunteers who would
receive only their scrap value in return. See United States v.
Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) (noting that jurors may
evaluate evidence in light of "their experience as to the natural
inclinations of human beings"). Second, Catucci subsequently
misrepresented that the transformers had been stolen, which
permitted the jury to infer consciousness of guilt. See United
States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990)
(jury may construe knowingly false statement as evidence of
consciousness of guilt), cert. denied, 499 U.S. 982, and cert.
guilty beyond a reasonable doubt. We do not weigh
witness credibility, but resolve all credibility issues
in favor of the verdict. The evidence may be entirely
circumstantial, and need not exclude every reasonable
hypothesis of innocence; that is, the fact finder may
decide among reasonable interpretations of the evi-
dence.
United States v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994).
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denied, 501 U.S. 1210 (1991).
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B. Adjustment for Repetitive Discharge
B. Adjustment for Repetitive Discharge
Catucci assigns error in the net four-level upward
adjustment the sentencing court made pursuant to U.S.S.G.
2Q1.2(b)(1)(A), which states:
If the offense resulted in an ongoing, con-
tinuous, or repetitive discharge, release or
emission of a hazardous or toxic substance or
pesticide into the environment, increase by 6
levels.
Catucci argues that it was mere happenstance that the
two PCB-laden transformers were dumped on different days. Conse-
quently, he contends, absent evidence that he intended repetitive
discharges the district court misapplied the repetitive discharge
adjustment. We discern no error.2 After adopting a six-level
upward adjustment under U.S.S.G. 2Q1.2(b)(1)(A), the district
court invoked Application Note 5 as authority for a two-level
downward departure, resulting in a net upward adjustment of four
levels. Application Note 5 expressly states that the district
court is invested with authority to make "a departure of up to
two levels in either direction" depending upon the quantity and
duration of the discharge and the nature of the harm caused by
it. U.S.S.G. 2Q1.2, comment. (n.5).
U.S.S.G. 2Q1.2(b)(1)(A) is triggered if the offense
resulted in an ongoing, continuous or repetitive discharge.
2Guideline interpretations are reviewed de novo, whereas
relevant factual findings are reviewed for clear error and their
application under the guideline is accorded due deference. See
United States v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir.
1994), cert. denied, 115 S. Ct. 947, and cert. denied, 115 S. Ct.
1322 (1995).
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Catucci concedes that the two PCB-laden transformers were dumped
on separate occasions. Nothing more need be shown to activate
the repetitive discharge adjustment. See United States v.
Liebman, 40 F.3d 544, 550 (2d Cir. 1994) (repetitive discharge
adjustment under 2Q1.2(b)(1)(A) warranted where defendant had
untrained workers remove hazardous material from factory, and
workers unlawfully dumped material on several different days);
United States v. Strandquist, 993 F.2d 395, 401 (4th Cir. 1993)
(analogous upward adjustment under 2Q1.3(b)(1)(A) for repeti-
tive discharge triggered by establishing second discharge).
C. Aberrant Behavior
C. Aberrant Behavior
Catucci urges a remand for resentencing because the
district court allegedly misapprehended its authority to depart
downward on the ground that these offenses constituted "aberrant
behavior." See United States v. Russell, 870 F.2d 18, 20 (1st
Cir. 1989) (adverting to guideline relating to "aberrant behav-
ior" departures).
At sentencing, the district court repeatedly indicated
its readiness to allow a principled downward departure. Yet
despite the district court's specific invitation ("Do you see
anything . . . which would authorize my departure in this case in
a justifiable and reasonable manner?") and its apparent displea-
sure at having to impose a prison sentence on a person "who may
have had an aberration," no "aberrant behavior" claim was pre-
sented to the district court. In these stark circumstances, a
finding of waiver is virtually compelled. Cf. United States v.
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Montoya, 967 F.2d 1, 2 (1st Cir. 1992) (sentencing claim not
presented to district court deemed waived), cert. denied, 113 S.
Ct. 507 (1992); United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
1991); United States v. Rosalez-Cortez, 19 F.3d 1210, 1220 (7th
Cir. 1994) (failure to raise "aberrant behavior" claim in dis-
trict court results in waiver).3
D. Criminal Rule 32
D. Criminal Rule 32
Catucci contends that resentencing is necessary because
the district court failed to comply with Rule 32(c)(3)(D), which
provides that, as to any alleged "factual inaccuracy in the
presentence investigation report," the district court is to "make
(i) a finding as to the allegation or (ii) a determination that
no such finding is necessary because the matter controverted will
not be taken into account in sentencing." A "written record" of
the sentencing court's findings is required. United States v.
Savoie, 985 F.2d 612, 620 (1st Cir. 1993).
3Even assuming, arguendo, that the present claim had been
preserved, we note that six circuits have determined that "aber-
rant behavior" is not established unless the defendant is a
first-time offender and the crime was "a spontaneous and seeming-
ly thoughtless act rather than one which was the result of
substantial planning." United States v. Carey, 895 F.2d 318,
324-25 (7th Cir. 1990). See United States v. Premachandra, 32
F.3d 346, 349 (8th Cir. 1994); United States v. Duerson, 25 F.3d
376, 380 (6th Cir. 1994); United States v. Marcello, 13 F.3d 752,
761 (3d Cir. 1994); United States v. Williams, 974 F.2d 25, 26
(5th Cir. 1992), cert. denied, 113 S. Ct. 1320 (1993); United
States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991). The Ninth
and Tenth Circuits apply a somewhat different test, permitting a
downward departure for "aberrant behavior" based on a finding
that the offense did not comport with the defendant's "normal
character . . . [and] is a complete shock and out of character."
United States v. Tsosie, 14 F.3d 1438, 1441 (10th Cir. 1994);
United States v. Fairless, 975 F.2d 664, 666-67 (9th Cir. 1992).
In all events,given the circumstances we discern no plain error.
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Catucci argues that the sentencing court failed to
address the following claim that he be allowed a downward adjust-
ment as a "minor or minimal" participant:
. . . you could make a downward departure
based upon a role as a minor in the offense
or . . . a minimal role in that offense and
in -- in the whole case, if you believe the
jury's decision, they were told that I gave
permission to take the transformers.
No one ever said that I told them to dispose
of the transformers or I gave permission to
dump the transformers. They said they allege
that they asked me for permission to take the
copper from the transformers and that's the
worst of the testimony from that perspective,
so I just raise that issue.
Later in his allocution, after Catucci had asserted his inno-
cence, the district court cautioned that it could not disregard
the jury verdicts.4 The district court ruling rejecting a
downward adjustment under U.S.S.G. 3B1.2 is not challenged on
appeal.
Catucci's claimed entitlement to a downward "departure"
under U.S.S.G. 3B1.2, notwithstanding the central jury finding
that he knowingly allowed Arcaro and Almeida to dispose of the
transformers, did not challenge any factual statement in the pre-
sentence report, but amounted instead to an attempt to dispute
the legal import of the jury verdicts. Absent a claim of factual
inaccuracy, the Rule 32(c)(3)(D) requirement simply is not impli-
4A role-in-the-offense determination presents a mixed
question of law and fact, United States v. Carrozza, 4 F.3d 70,
89 (1st Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994), which
we review only for clear error, by reason of its fact-bound
nature, United States v. Rodriguez Alvarado, 985 F.2d 15, 19 (1st
Cir. 1993).
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cated. United States v. Pellerito, 918 F.2d 999, 1003 (1st Cir.
1990) (Rule 32(c)(3)(D) not triggered by claim of legal error);
United States v. Reese, 998 F.2d 1275, 1285 (5th Cir. 1993) (Rule
32(c)(3)(D) not triggered by claim of error in assigning role in
offense).5
III
III
CONCLUSION
CONCLUSION
For the foregoing reasons, the judgment of conviction
and sentence is affirmed.
Affirmed.
Affirmed.
5United States v. Rosado-Ubiera, 947 F.2d 644, 645-46 (2d
Cir. 1991), is not to the contrary. There the district court had
refused to resolve both a factual dispute, as to the defendant's
conduct, and the defendant's role in the offense.
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