United States v. Catucci

• Court: Court of Appeals for the First Circuit
• Decided: May 24, 1995
• Docket: 94-1195
• Status: Published

Opinion

USCA1 Opinion

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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                                          7



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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                                          8



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.
                                                      ___ ______________


9
                                          9



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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                                          10



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).  



                                          11
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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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