USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

Nos. 96-1775
97-1400

UNITED STATES,
Appellee,

v.

MARK O. HENRY,
Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

____________________

Before

Selya and Boudin, Circuit Judges,

______________

and Dowd, Jr.,* Senior District Judge.

_____________________

_____________________

Bjorn Lange,
___________

Assistant

Federal

Public

Defender,

Federal

Defender Office, for appellant.

Jeffrey C. Dobbins, Attorney,
___________________

Department of

Justice, with

whom Lois J. Schiffer, Assistant

_________________

Attorney General,

Environment

and

Stephen R. Herm,
_________________

Jeremy F.
__________

Natural Resources

Korzenik
________

Division,

and David C. Shilton, Attorneys, Department of Justice,

________________

were on brief for appellee.

____________________

February 5, 1998
____________________

AMENDED OPINION
____________________
____________________

Of the Northern District of Ohio, sitting by designation.

DOWD, Senior District Judge.

DOWD, Senior District Judge.
_____________________

I.
I.

INTRODUCTION
INTRODUCTION

The

defendant-appellant

Mark

O.

Henry

(hereafter

"Henry") prosecutes two appeals growing out of his indictment and

conviction for

one count

of conspiracy to

6928(d)(l) which prohibits the transport of

facility

that does not have a permit

violate 42

U.S.C.

hazardous waste to a

to receive such waste, one

count of mail fraud and three counts of wire fraud.

Henry

with

offices in

operated numerous

Oil

owned and

North

operated Cash

Andover,

Massachusetts.

affiliated businesses,

("Beede"), located primarily at

Hampshire.

Beede.

Henry directed the

Energy, a

corporation

Cash

including Beede

Energy

Waste

Kelly Road in Plaistow, New

affairs of both Cash

Energy and

Robert LaFlamme, an indicted co-conspirator who testified

against

Henry,

managed

Beede

and

oversaw

its

New

Hampshire

day-to-day

operations.

Beede

applied

to

the

Environmental Services ("NHDES")

in March 1990

Department

of

for a permit

to

recycle virgin petroleum contaminated soil into cold mix asphalt.

Virgin

petroleum contaminated

soil

is soil

contaminated

with

petroleum or petroleum products, petroleum sludge, and all liquid

petroleum derived

oil,

gasoline,

hydrocarbons, such as lubricating oil, heating

kerosene,

and

diesel

fuel.

However,

the

definition excludes soil that is determined to be hazardous waste

because it is contaminated with other chemicals or metals.

needed an

NHDES permit because

the recycling process

-2-

Beede

emits air

pollutants.

The recycling

mill" to mix contaminated

Beede

eventually

permit capped

process required the

a "pug

soil with gravel and asphalt emulsion.

obtained the

the

use of

amount of

permit

in July.

contaminated

However, the

soil that

could

be

stored at the site at 3,000 tons.

Beede

entered

into recycling

contracts

entities even before the permit was issued.

with several

Although the company

sporadically recycled soil using a leased pug mill, the amount of

contaminated soil stored at the site soon exceeded the

amount.

Eventually, the

amount of unrecycled

permitted

soil grew

much as 19,000 tons and at no time after May 1990 did Beede

have

less than 3,000 tons of

Beede's

failure

to

comply

soil at the site.

with

the

permit

to as

ever

By April 1991,

caused

the

New

Hampshire Air Resources Division to issue an administrative order

prohibiting

Beede

This order was

all of

accepting any

superseded by a

that allowed Beede

recycled

from

June 1991

new permit

contaminated soil.

issued in June

to begin receiving new soil

the

soil

Although Beede engaged in a

the

more

permit was

that had

1991

only if it first

accumulated

at the

site.

small amount of soil recycling after

issued, it

continued to

receive new

contaminated soil at the site in violation of the permit terms.

The

mail

participated in

of

money by

and

wire fraud

charged

that Henry

a scheme to defraud several of Beede's customers

falsely

representing

receive and recycle the customers'

soil.

counts

The conspiracy count

that

Beede

could

lawfully

virgin petroleum contaminated

charged that Henry participated in a

-3-

conspiracy to knowingly

cause hazardous waste to

be transported

to a

facility that was

violation

of

not permitted

42 U.S.C.

to receive such

6928(d)(1).

The

waste in

conspiracy charge

involved three overt acts.1

The grand jury

Henry and LaFlamme

returned a 17 count

on March

fraud and wire fraud.

2, 1995

charging conspiracy,

Later, on January

indictment was returned limiting the

conspiracy, six

fraud.

the

counts of

conspiracy

count

and

5, 1996 a

mail

superceding

counts to a single count of

mail fraud and

LaFlamme pleaded guilty to

indictment against

three counts

one count of mail

subsequently

testified

of wire

fraud and

for

the

government at Henry's trial which was held over an eight day span

in February of 1996.

The first

appeal challenges

his

convictions and

the

resulting 37 month sentence; the second

appeal contends that the

district court should not have denied his

motion for a new trial

based on newly discovered evidence.

For the reasons

that follow we affirm

the convictions

and sentence and the denial of Henry's motion for a new trial.

II.
II.

THE CHALLENGED CONSPIRACY CONVICTION

THE CHALLENGED CONSPIRACY CONVICTION

A.

The

Challenged

Jury

Instructions

on

the

Conspiracy Count.

____________________

Two

of the

overt acts charged

Henry, after receiving

the

soils, either

in Lawrence,

the spring

laboratory data showing

by cadmium or

transported to Beede.

that in

iron, caused

One shipment of

Massachusetts and

of 1991

contamination of
the soils

243 tons came from a site

the other

shipment of

250 tons

came from the Portsmouth Naval Shipyard in Kittery, Maine.

-4-

to be

The

alleged

conspiracy count, charged

that

Henry

transport and

cause

facility that did

and

to

LaFlamme

under 18 U.S.C.

conspired

be transported

hazardous

371,

knowingly

waste

to

not have interim status and a permit to accept

hazardous waste in violation of 42 U.S.C.

6928 (d)(l).2

The indictment defined hazardous waste by reference

the

to

substances and materials

listed or identified

to

in Title 40,

Code of

under

Federal Regulations, Part

the regulation,

"any waste

lead in excess of 5 parts

part per

261 and further

alleged that

containing concentrations

per million or cadmium in excess of

million using appropriate

test methods is

of

a hazardous

waste."

The jury instructions relative to the conspiracy charge

defined the offense of causing hazardous wastes to be transported

to an unpermitted facility as requiring the following elements:

____________________

Section 6928(d)(l) provides:

(d) Criminal penalties

(d) Criminal penalties

Any person who--

(1) knowingly transports

be

transported

identified

or

any
listed

or causes to

hazardous
under

waste
this

subchapter to a

facility which does

have a permit under this

not

subchapter, . .

. . . .

shall, upon conviction,

fine

of not

more than $50,000

day of violation,
exceed two

be subject to

for each

or imprisonment not to

years (five years in the case

of a violation of paragraph (1)

or both. . . .

-5-

or (2)),

First,

that the

defendant transported

or

caused to be transported hazardous waste to a

facility that

was not authorized

to receive

such waste; and

Second, that

the defendant

material transported
the facility

knew that

was hazardous

the

and that

that received the waste was not

authorized to receive such waste.

Then, over the defendant's timely objection, the

court

defined hazardous waste as follows:

Solid waste qualifies as hazardous waste if

__
using the toxicity characteristic leaching
_____________________________________________
procedure,
TCLP,
__________________

extract

representative

of

sample

contains lead in
five

parts

concentrations

the

from
solid

a
waste

concentrations greater than

per

million

greater

than

or

cadmium
one

part

in
per

million.

(Emphasis added).

The appellant

couples the challenge to

the definition

of hazardous waste with the claim that the trial court improperly

participated

Michael

in the direct examination of the government witness

Wimsatt,

regulatory

inspector

with

NHDES

in

the

hazardous waste program.

First,

we

observe

that

the

court's

definitional

instruction as to what constitutes hazardous waste was correct as

a matter of law.

that

the

The government bears the burden of establishing

defendant

constituted hazardous

knew
____

waste.

that

the

materials

The Congress has

transported

delegated to the

Administrator of the EPA the responsibility for listing the types

and

characteristics

wastes.

40 C.F.R.

42 U.S.C.

of substances

6921(b).

considered

The ensuing

261.3, provides that soil

to be

hazardous

regulation, found at

is a hazardous waste if it

-6-

"exhibits

any

of

identified in Subpart

of "toxicity".

Characteristic

for toxicity

40

the

characteristics

of

C." Subpart C includes

C.F.R.

261.24

hazardous

the characteristic

introduces

Leaching Procedure (TCLP)

waste

the

as a means

Toxicity

of testing

and provides that when this testing procedure shows

that the waste contains any of the contaminants listed in table l

at a concentration equal to

given in

the table, then

hazardous

waste.

or greater than the respective value

the waste, by

The table

definition, constitutes

located at

40 C.F.R.

261.24(a)

dictates that the regulatory limit for lead is 5 mg/L (or 5 parts

per million) and

the corresponding regulatory limit

for cadmium

is l mg/L (or l part per million).

In the conference conducted by the district court prior

to

finalizing the jury

instructions, counsel for

argued that it should be left for

shipped

contained hazardous

challenged definition.

delegation by

regulations defining

there

had

been

the jury to determine if soils

waste without

Defendant's

the Congress

to

hazardous

changes

in

the defendant

counsel

the EPA

benefit of

the

disputed

the

also

Director to

wastes and

those

the

promulgate

argued that

regulations

as

because

to

what

constituted levels of

toxicity, that an

individual such as

the

defendant should not suffer criminal liability in such a setting.

Defendant's argument

which provides

is grounded in the

that Congress

may not

nondelegation doctrine,

delegate its

power to another branch of the government.

-7-

See U.S.
___

legislative

Const. art.

I,

1 ("All legislative powers herein granted shall be vested in

a Congress of the United States.").

The district court responded to the improper delegation

argument by reliance on Touby v. United States, 500 U.S. 160, 165

_____
_____________

(1991),

for the proposition

power to another branch of

as Congress sets

that the delegation

of legislative

the government is permissible as long

forth an "intelligible principle" to

executive or judicial branch must conform.

which the

In Touby, the Supreme

_____

Court upheld Congress' delegation of the power to define criminal

conduct to the Attorney

The

General as constitutionally permissible.

Court held that "Congress does

merely because it

not violate the Constitution

legislates in broad

terms, leaving a

degree of discretion to executive or judicial actors.

certain

So long as

Congress

'lay[s]

principle

down

to which

directed to conform,

by

legislative

the person

or body

act

an

authorized to

such legislative action is not

delegation of legislative power.'"

intelligible

[act] is

a forbidden

Touby, supra, at 165, quoting

_____ _____

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48
________________________
______________

S. Ct. 38, 352, 72 L.Ed. 624 (1928).

The Touby
_____

Court then upheld

the Controlled Substances

Act at issue in that case on the ground that Congress had in fact

set

forth

an

"intelligible

principle"

constrained the Attorney General's

conduct.

statute

The Court

which

discretion to define criminal

discussed several factors that

constitutional:

(1)

meaningfully

requiring the Attorney

rendered the

General to

determine that the expedited procedure

is "necessary to avoid an

-8-

imminent hazard to the public safety," (2) specifying the factors

that

the

Attorney

General

determination; and (3)

must

consider

in

requiring publication of a

making

such

30-day notice

of the proposed scheduling and consideration of any comments from

the Secretary of Health and Human Services. Touby, supra, at 166.

_____ _____

We

approve the district

court's reliance on

Touby in
_____

the instant case, and hold that the delegation by Congress to the

EPA of

the legislative authority

to define hazardous

waste was

permissible given the fact that there existed several constraints

upon the EPA's exercise of this authority that are similar to the

constraints

Touby.
_____

found

to be

constitutionality in

First of all, we note that the Resource Conservation and

Recovery Act sets

must

determinative of

forth a detailed procedure with

comply before

list

the

types

Specifically, 42

provide

issue of

it may

and

U.S.C.

notice and

exercise this legislative

characteristics

6921(a)

are the

of

requires

the opportunity

what precisely

which the EPA

power and

hazardous

the EPA

for public

waste.

to

hearing on

characteristics of

first

the

"hazardous

waste," and further requires the EPA to consult with "appropriate

Federal

and State

Touby,
_____

supra,
_____

executive

at

agencies"

166

on this

(delegation

constitutional

in

part

definitional issue.

of

due

legislative

to

power

requirement

See
___

to

that

executive consider comments from other authorities).

Secondly,

with

these

factors that

in addition to

procedural

steps,

the EPA must

the

requiring the EPA

statute

specifies

consider in developing

-9-

to comply

certain

the criteria:

"the Administrator shall. . . develop and promulgate criteria for

identifying the characteristics of hazardous waste, . .

into account toxicity, persistence,

potential for accumulation

such

as

flammability,

characteristics."

(holding specification

"required to

and degradability in nature,

in tissue, and other

corrosiveness,

42 U.S.C.

6921(a).

of three

. taking

and

related factors

other

hazardous

See Touby, supra, at 166

___ _____ _____

factors that

consider" constrains executive's

the executive

is

legislative power

and renders delegation constitutional).

Furthermore,

establishing the

besides

criteria to

this

be used

detailed

process

in identifying

for

hazardous

waste,

the statute

also

constrains

the

EPA's

discretion

by

listing specific characteristics which the statute directs "shall

be subject to the provisions of this subchapter solely because of

the

presence

identified

excess

in such

wastes of

carcinogens, mutagens,

of levels

which endanger

certain constituents

or teratagens)

human

(such as

at levels

health."

in

42 U.S.C.

6921(b)(1).

In

definition.

sensitive

and the

question

sum,

we

In fact,

find

the

to the knowledge

defendant's

did

not

no

fault

district

with

court

component of the

contention that

constitute

in this

hazardous

challenged

case

was

government's proof

he believed

waste,

instructed the jury on a good faith defense.3

____________________

the

the soils

and

in

therefore

The jury was

instructed as to the defense of good

faith with

respect to the conspiracy count as follows:

-10-

B.

The Questioning of Wimsatt by the District Court.

The defendant combined his

with an objection

a regulatory

objection to the definition

to the court's questioning of Michael Wimsatt,

inspector

with the

NHDES in

its hazardous

waste

program.

Wimsatt

The

that

court engaged

featured

in

the

the

following

toxicity

colloquy with

characteristic

procedure:

THE COURT:

And the

TCLP test uses

water as

the [leachate], right?

WIMSATT:

It's a

water solution.

some acid

in it,

It

has

obviously, and

it has whatever contaminants, but

it's still relatively

dilute and

it's

essentially

water

solution, that's right.

THE COURT:

Is

it fair to

say, then, with a

TCLP test, something expressed as

five milligrams per
also be

liter, could

expressed as

five parts

per million?
WIMSATT:

Yes,

that's

right.

So we

correct,

that's

have a limit

set

under TCLP that says when you get

an

extract from

can't have

our sample,

more than

it

five parts

per million of lead in it, and if

it

does,

it's

going

to

considered a hazardous waste.

be

leaching

____________________

If

the defendant

that Beede
waste
the

had a good

was authorized

to its facility,

faith belief

to transport

he is not

the

guilty of

crime of conspiracy even if it turns out

that that belief was wrong.

The burden

of proving good faith

does not

rest with the defendant because the defendant

does not have an obligation to prove anything
in

this case.

It is the government's burden

to

prove beyond a

reasonable doubt that the

defendant is guilty of conspiracy.

-11-

The

defendant's counsel

questioning of

Wimsatt during

when

the court

asked by

first objected

the jury

what remedy

to

the above

charge conference,

did counsel

and

propose, the

response was to delete the hazardous waste definitional paragraph

from the jury

charge.

The district judge

declined, properly we

hold, and observed that he had the authority pursuant to Evidence

Rule 614 (b)4 to question witnesses and had done so to assist the

jurors.

Specifically, the district court opined:

THE

COURT:

All right.

I decline

that for the reasons that I've outlined.

me

just

questioning

note

think

of witnesses

very important

and -

this

issue

to do
Let
of

by the Court

is a

important matter

that

has

to be

handled carefully

Clearly,

Rule

question

witnesses.

where I think
confusing
terms

614(b)

important

allows
In a

the Court.

the Court

trial like

much of the evidence

and

that

by

concerns

where

questions clearly
undefined terms,

counsel
for the

this

has been

technical

involve jargon,

to

matters,

think it

is

does

not

ask

Court to

and therefore I

clarify

have asked

questions during the trial to that end.

think it's also important for me since -

in order
that

that is
make

to protect the
understand the

defendant's rights,
import

being testified to.

findings

of

fact here

deciding the defendant's

of something

The jury has to

ultimately

guilt or innocence,

but I have to pass on motions that

evidentiary

sufficiency;

in

such as,

deal with
Rule

29

motions.

If I don't understand a particular point of

testimony,

I can't do my job with respect to

a Rule 29 motion.
for

me

to

ask

So I feel it's
questions

understand some testimony

when

important
I

don't

and when the

may potentially not understand testimony.

jury
I

____________________

This rule states

that "[t]he court may interrogate witnesses,

whether called by itself or by a party."

Fed. R. Evid. 614(b).

-12-

try to do it as little as possible, and I try

my best not

in any

way to

indicate in

any

sense that I'm taking sides.

also have

instruction

in

my

jury instructions

an

to the jury that they should not

give any greater weight to the testimony of a

witness

in

answer

to

my questions

simply

because the questions have come from

I

me, and

have reiterated for the jury the fact that

I am

neutral, impartial and

have

a stake

believe

that

affected

the

in

this

I've

doesn't - don't

case,

in

any

defendant's

and
way

right

don't

adversely
to a

fair

trial here by my questions.

So I think
flawed,

and

the premise of your

I

decline

to

request is
grant

the

instruction that you propose.

Transcript of Day 8 at p. 41.

We agree with

the district court that

in this case was permissible.

Circuit recognizes the

his questioning

Initially, we note that the First

"well-settled" rule that the

trial judge

has a "perfect right" to participate in the trial and to question

witnesses.

United States
_____________

(1st Cir. 1997).

v. Gonz lez-Soberal, 109

________________

The limitations placed on

F.2d 64, 72

this right are that

the judge's questioning

advocate or

otherwise use

disadvantage a

1045 (1st

the

"must be balanced;

party unfairly."

Cir. 1997).

trial

his judicial

necessarily

"An

he cannot become

powers to

reveals

the

F.3d 1040,

inquiry into the judge's

conduct of

turns

instant

advantage or

Logue v. Dore, 103

_____
____

on the

question

complaining party can show serious prejudice."

In

an

case, our

review

of

whether the

Id.
___

of

the transcript

that the judge's questioning of Wimsatt was nothing more

that the sort

of occasional "efforts to

-13-

clarify testimony" that

falls squarely within the scope of the district judge's right and

responsibility to manage

supra, at
_____

1045.

prejudice

to Henry

the progress of the trial.

Furthermore, we hold

as a

result

See Logue,
___ _____

that any possible risk of

of the

judge's questions

was

abated by the clear instruction to the jury that it should ignore

any impression that his questions might have made on them.

In

demonstrates

whether

conclusion,

that the

key

the

trial

issue on

the

transcript

clearly

conspiracy count

was

the defendant knew the soils constituted hazardous waste

and his good faith defense was

anchored in his assertion that he

did not

believe

further

hold

the

that

hazardous waste in

soils

the

district

court's

waste.

decision

the context of the indictment

regulations, rather than

question of

constituted hazardous

hazardous waste,

define

and the C.F.R.

offer no assistance to the

what constitutes

to

We

jury on the

as suggested

by

defendant's counsel, was proper, and in any event, in the setting

of this case, clearly not prejudicial to the defendant.

III.
III.

Two

U.S.S.G.

THE SENTENCING ISSUES

THE SENTENCING ISSUES

primary

2F1.1 as

defendant argued that

The latter guideline

____________________

issues

the

are

raised.

guideline

U.S.S.G.

2Q1.2

to

The

court

be followed,

was the better

governs such environmental offenses

chose

but

the

choice.5

as the

Because

the

adjusted

offense

level

for

the

conspiracy

conviction was determined to be nine levels less serious than the

level for

the

3D1.4(c) the
offense level

grouped

fraud

count,

conspiracy conviction
of 22

pursuant

did not

as computed under

to

U.S.S.G.

increase the

the mail and

total

wire fraud

counts.

-14-

unlawful

mishandling

transportation

of

hazardous

materials

of hazardous or toxic substances.

deals with fraud

and

deceit,

and the

use

and

U.S.S.G.

of

this

the

2F1.1

guideline

resulted in

offense

higher offense

characteristic

calculation of

the loss

level

under

calculation.

2F1.1

caused by the

requires

fraud and

specific

judicial

deceit. Henry

challenges the court's calculation even though it was reduced one

level by the court from the pre-sentence recommendation.

The

judge departed downward one offense level after he

concluded

that

the

application

of

"correctly

capture [] the true value

the

Guidelines

did

not

of the loss in this case."

The defendant was then sentenced to 37 months imprisonment, which

is the low

end of the applicable range based

on the defendant's

Criminal History of I.

A.

Should

Guideline

the defendant

have

2Q1.2 rather than

been sentenced

under

2F1.1?

Appendix A to the Sentencing Guidelines Manual provides

statutory index

keyed to

the applicable

guideline.

In the

introduction to Appendix A, the statement is made that "if, in an

atypical case, the Guideline section indicated for the statute of

conviction

is inappropriate

because of

the particular

conduct

involved, use the Guideline section most applicable to the Nature

of

the

Offense

conduct

defendant was convicted."

charged

in the

count

of

which

The reader is then referred to

the

1B1.2

of the Guidelines which states in Application Note 1 that "when a

particular statute

proscribes a

variety of

conduct that

might

constitute the subject of different offense guidelines, the court

-15-

will determine

nature of the

defendant

was

which Guideline

section applies

offense conduct charged in the count

convicted."

Building

reference and Application Note 1

his

convictions represent an

the gravamen of

was

that

the

to

on

the

permitted levels

of which the

atypical

case

1B1.2, Henry contends that

the convicted counts, including

defendant

the

atypical fraud prosecution because

violated

regulations by transporting and

exceeded

based upon

the conspiracy,

environmental

rules

storing contaminated soil

in quantity

and

Beede Waste Oil facility in New Hampshire.

composition at

and

which

the

The

cases

defendant

involving

suggests that

simultaneous

environmental offenses

and wire

the

federal

apparent

prosecution

and fraud

dearth of

of

counts suggests

both

the

claimed atypicality and argues that the commentary in application

note

13

to

U.S.S.G

2F1.1,

which directs

that

"where

the

indictment...establishes an offense more aptly covered by another

guideline,

apply that guideline

that U.S.S.G.

The

hearing

and rejected the

effort by

2F1.1," requires

2Q1.2 should have been followed

court.

that the case

rather than

district

court conducted

defendant's

by the district

four hour

2Q1.2

argument, holding

was not about environmental crime,

Mr. Henry to generate income."

trial court's determinations

sentencing

but rather "an

We review de novo the

__ ____

on the issue of whether

to apply

2F1.1 rather than

2Q1.2.

United States v. Ruiz, l05 F.3d 1492,

_____________
____

l504 (1st Cir. 1997).

-16-

The defendant's reliance on United States v. Fulbright,

_____________
_________

105 F.3d

443 (9th Cir.

1996) is

misplaced.

In

Fulbright, the
_________

defendant

was convicted of conspiracy to impede federal officers

in violation of

18 U.S.C.

under 18 U.S.C.

guideline

1503.

listed for

Guidelines Manual.

A,6

the Ninth

U.S.S.G

and for obstruction

in the

Statutory Index

Citing the atypicality language

then

which is

Officers," because the

of justice

The district court there used the

18 U.S.C.

Circuit

2A2.4

372

remanded

captioned

for

under

or Impeding

defendant's conduct was determined

more analogous to impeding a federal officer than

to the

in Appendix

resentencing

"Obstructing

only

to be

to obstruction

of justice. Id. at 453.

___

In

this

recognized by the

involved

case,

in

contrast

to

district court below, the

two classes

of victims.

Fulbright,
_________

and

as

defendant's conduct

With respect

to the

fraud

counts,

promises

the

victims were

that

he never

the

companies

kept

in

to

exchange

extracted, while the conspiracy conviction

a whole.

which Henry

for the

made

monies

he

victimized society as

The decision in United States v. Rubin, 999

______________
_____

F.2d 194

(7th Cir. 1993), tracks the single victim analysis as the victims

in

connection with

same. Accepting

the

mail fraud

the separate

and price-fixing

victim analysis

were the

and applying

the

____________________

6
the

"If, in an atypical
statute

of

case, the guideline section indicated for

conviction

is

inappropriate

because

of

the

particular conduct involved, [the court should] use the guideline

section

most applicable

charged

in the

count

U.S.S.G. Appendix A.

to the
of which

nature of
the

See also U.S.S.G.

________

-17-

the

offense conduct

defendant was

convicted."

1B1.2, comment (n.1).

appropriate

standard

determination

that

of

the

review,

2F1.1.

court's

the

conduct was to

obtain money.

defendant

embarked on

was

environmental crimes.

find no

principal crime

analysis of U.S.S.G.

analysis that

we

came

under

We find no fault

main

motivation

There is

error

crusade to

for

in

the fraud

in the district

the

criminal

no indication that

engage

the

the

in committing

Rather, it is clear that his objective was

to make money, and in the process he

engaged in an environmental

crime,

which

fraudulent

conduct

was

conduct.

an

We

incidental

therefore

find

by-product

of

his

no

in

the

error

application of the guidelines under the aegis of

B.

The Loss Calculation under U.S.S.G.

The

requires a

adopted in

computation of

the Offense

determination of the loss.

2F1.1(b)(1).

court refused to consider the

subject of

2F1.1.

Level

under

2F1.1

A sliding scale has been

The presentence report fixed the loss

at $1,282,718, which required an

were the

2F1.1.

addition of eleven levels.

Mobil Oil soil transactions, which

count one, and

deducted $740,642

from the

loss figure with a resulting total loss figure of $542,076.

final

calculation of

Henry suggested

that

the loss

the

The

added

remediation

ten levels

costs,

to the

while

That

loss.

exceeding

$200,000 were less than the next dollar figure of $350,000 on the

sliding

should be

the ten

scale, and inferentially

computed at an

argued that the

increase of eight levels,

levels fixed by the court.

F.3d 436, 439 (1st Cir.

loss addition

rather than

United States v. Kelley, 76

_____________
______

1996), teaches that a sentencing court's

-18-

valuation of loss

is subject to the

clearly erroneous standard.

Given

the reality

that some

of

the Beede

customers may

face

additional costs in the remediation context, the "benefit" to the

defrauded

customers arising from the transportation of the soils

from their sites is at best speculative.

We find no fault in the

ignoring

in

of

Application

that

possible

Note 8 to

benefit

2F1.1 teaches

not be determined with precision,

only make a

information.

but rather that the court need

we note that the

given the available

district court departed

downward one level due to its uncertainty as to

had been

properly determined.

calculation.

that the (b)(1) loss need

reasonable estimate of the loss

Finally,

the

whether the loss

We find no prejudicial

error in

ignoring the "benefit."

The

defendant also

improperly shifted the burden

complains that the

district court

of demonstrating the value

of the

services provided

to the Beede

view of the fact

customers to the defendant.

that the district

In

court departed one level

to

accommodate the "loss" issue,7 it is not necessary to address the

____________________

The

district

court,

departure, explained that

the

loss level

Henry,

the

2F1.1(b)(1) would
district

reduced by

enhancement

have been eight

court further

calculated at

granting

the one-level

had he accepted Henry's

should be

resulting

in

argument that

the "benefit"
required

downward

by

claimed by
U.S.S.G.

rather than ten levels.

explained that had

the loss

The

level been

eight levels, then the grouping rules for multiple

counts, U.S.S.G.

3D1.1,

et. seq., would

have come

into play

with the consequence that the total offense level would have been
reduced only one level, i.e., from

22 to 21.

the controversy over the calculation

departed downward

one level from

In recognition

of

of the loss, the court then

the total offense level

of 22

that included ten levels for the loss to a total offense level of
21.

See transcript of sentencing hearing at 153-156.

___

-19-

final sentencing issue

raised by Henry challenging

court's holding that the defendant had

the burden of proof as to

the benefit provided the defrauded victims.

no error on these facts.

the district

In any event, we see

-20-

IV.
IV.

ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL

ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL

A.

Questioning of Witnesses by the District Court.

The defendant objects

to the questioning by

of the co-defendant LaFlamme and Michael Wimsatt.8

the district court

the court

The defendant

points to

the fact that

questioned LaFlamme

about the

presence and use of the pug mill on the site, the fact

that soil

had not been

recycled even though Beede

had produced

manifests to the contrary and the role of Beede in the production

and mailing of manifests.

The fact questions in

this case were

not within the every day experience of jurors such as they are in

the

such

case of an automobile accident

as

homicide,

rape

or

commonplace in

our

appropriate to

again emphasize

settled"

that a

rule

society.

trial

nor did it involve a subject

robbery

that

Against

that background,

the

judge

are

unfortunately

previously discussed

has

a "perfect

it

is

"well

right"

to

participate in

the

trial and

to

question witnesses.

United
______

States v. Gonz lez-Soberal, 109 F.3d 64, 72 (1st Cir. 1997).

______
________________

therefore view the

district court's questioning of

We

LaFlamme, in

the context of this case, as a judicial effort to assist the jury

in a comprehensive

in a complicated

and balanced understanding of

setting and within the

by Fed. R. Evid. 614(b).

relevant facts

permission acknowledged

We find no error.

____________________

The challenged

previously and we

questioning

of Wimsatt

see no need to

discussion at 11-14.

-21-

has

been addressed

revisit the issue.

See supra
___ _____

B.

The Refusal of

the District Court to

Exclude the

Testimony of Matthew Kelly.

The

court issued

sequestration

order

as

to

the

witnesses and despite that order, the government witness, Matthew

Kelly was

of

present for approximately 15 minutes

the co-defendant

Before allowing

voir dire of

and cooperating

Kelly to testify,

of the testimony

witness, Robert

LaFlamme.

the trial court engaged

Kelly and then concluded that

in a

Kelly could testify.

_________

We

find neither

defendant in

which

See
___

an abuse

that the

of

discretion nor

defendant was acquitted

prejudice to

on the

the

count to

LaFlamme's testimony was directed while Kelly was present.

United States
_____________

v. Sep lveda,
_________

15 F.3d

1161, 1177

(1st Cir.

1993) and United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.
_____________
______

1983).

V.
V.

ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF

ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF
______

A.

Was the defendant impermissibly convicted?

The

and

argues that

also that

wire

defendant filed a

fraud

separate brief with

the United States

he was impermissibly

statute, 18

U.S.C.

Code is not

this court

"real" law, and

convicted of a violation

1343 because

of the

the legislative

history

does

not

explicitly

anticipate

facsimile machines could serve as a basis

statute.

that

telephones

and

for a violation of the

We find no merit in either argument.

VI.
VI.

THE DENIAL
THE DENIAL

OF THE DEFENDANT'S
OF THE DEFENDANT'S

MOTION FOR
MOTION FOR

A NEW
A NEW

TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

The defendant filed a motion

before

his

sentencing.

The

court

-22-

for a new trial two weeks

went

forward

with

the

sentencing on

June 25, 1996, and

24,

overruled

1996 and

the

then heard the

motion on

defendant then appealed the denial.

March

motion on July

13,

1997.

The

This court then combined the

two appeals for a single appellate argument.

Recognizing

abuse of discretion"

that the standard of review is a "manifest

as set forth in United States v. Montilla______________

_________

Rivera, 115 F.3d 1060, 1064 (1st Cir. 1982), citing United States
______
_____________

v. Andrade, 94 F.3d 9,
_______

14 (1st Cir. 1996), the defendant

argues

that the denial of the

motion based on newly discovered evidence

was such an abuse of discretion.

The motion

evidence

for a new

was accompanied by a

trial based on

newly discovered

number of exhibits and affidavits

in support

of the motion.

anchored in

The main

thrust of the materials was

the proposition that had the evidence been presented

to the jury, the jury would more likely have believed the defense

that

and

Henry did not believe the soils constituted hazardous waste

that

he

conducted

did intend

a lengthy

to

remediate the

hearing in which

soils.

he invited

each of the exhibits and affidavits from counsel

The judge

discussion on

and then denied

the motion in a carefully crafted 26 page order.

motion for

a new

trial based

on

newly discovered

evidence, to be successful, faces a difficult test. The defendant

must demonstrate

that the evidence was unknown or unavailable at

the time of trial despite due diligence and that the evidence was

material and

likely

to result

in

an acquittal

upon

retrial.

United States v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995).

_____________
______

-23-

The

district court

found that

could have been discovered with

much

due diligence.

of the

evidence

In that context,

we note that the initial indictment was returned on March 2, 1995

and the superceding indictment was filed on January 5, 1996.

trial began on

February 6, 1996.

Henry and his counsel,

The

whose

defense of Henry

nearly a

appears to have been thorough

year to

prepare for the

disturb the district

trial.9

and intense, had

We see no

court's denial of the motion

basis to

as it related

to the evidence that could have been discovered prior to trial in

light of our

teachings that an order denying a motion for a new

trial will not be reversed except where we find a "manifest abuse

of

discretion." United States v. Montilla-Rivera, 115 F.3d 1060,

_____________
_______________

1064 (1st Cir. 1997).

Henry

did

clearly new evidence

offer

a March

28,

1996

in that the report was

report

not available prior

to that time.

Sanborn, Head & Associates, a consultant

State

Hampshire, released

of

remedial

New

report

that was

for the

assessing various

alternatives for the contaminated soil remaining at the

Beede site.

test

That

report, in an

appendix, contained

results conducted by Beede's laboratory

test method.

Henry contends

new

as

evidence

it

environment consultant

that used the 3040

that the SHA report

demonstrated

on the same

reliance

copies of

was important

by

3040 test method

the

State's

that Henry

claimed he had relied on in concluding that the soil removed from

____________________

Henry was represented by Bjorn R. Lange, an Assistant Federal

Defender,

who was

appointed on

March 9,

1995 and

Henry's counsel throughout the trial and on appeal.

-24-

remained as

the

Stoneham

acknowledged

Laundry

site

was

nonhazardous.

that the report was new

was impeaching and

warrant a new

In reaching that

probative to

conclusion, the district

court opined:

Henry

has

submitted no

support his

claim

that

direct

evidence to

either

NHDES

[New

Hampshire Department of Environmental Safety]

or SHA [Sanborn, Head & Associates] relied on
the

3040 test

report.
reliance

results included

Thus,
from

I am
the

asked

bare

to

in

the SHA

infer this

inclusion

of

the

documents in the appendix of the SHA report.

The SHA report itself sheds little light on

the extent of SHA's reliance on the 3040 test
results.

These

test

judge

evidence, but concluded it

cumulative and not sufficiently

trial.

The

results

were

all

produced

by

Beede's

included these
its

report.

own

laboratory.

SHA

analyticals in Appendix

C of

Appendix

C is

referenced

on

pages 3-4 of the SHA report under the heading

"Soil

Pile

"Analytical
soil

Descriptions"
results

provided by

states:

NHDES

for

collected from piles Nos. 5A, 53, 8 and

10 are included
itself

in Appendix C."

consists

mainly

results

from

ordered

by NHDES.

Test

which

Chem

of

Test

Appendix C

numerous
Lab,

apparently

In addition to

results, there

produced by Beede's

are

test

four test

the Chem
results

laboratory which analyze

halogens using the 9020 method, TPH using the

GCFID

method, and

3040 method.

metals

levels using

the

Although these test reports are

included in Appendix C, it is unclear to what

extent, if any, they were relied upon by SHA.
Henry's contention, therefore, that the state
relied on his

3040 test

assessment of the

analyticals in

its

Beede site's contamination

is, at best, uncertain.

Even

assuming Henry

could

show that

the

state relied on Beede's 3040 test analyticals

through

the SHA

that this new

report,

evidence is

Henry cannot

show

material.

Henry

bases

his

argument

justifies
that

it

that

a new trial
would

have

the

SHA

report

mainly on the grounds

assisted

him

in

his

-25-

impeachment
Wimsatt.

of

This new

not probative
for a
States,
______

the

F.2d

of

Michael

impeachment evidence

enough to

new trial.
601

testimony

See
___

is

suffice as

grounds

Pelegrina v.
_________

United
______

18, 21

(1st

Cir.

1979)

("impeaching evidence is generally treated as

immaterial" on motion for new trial).

Finally,

even

demonstrated

if

the

that the

SHA

state

relied on

3040 test and

that Henry may also

justified

relying

cannot

in

upon

conclude that

report

it

the jury

the

have been
himself,

would likely

have acquitted Henry if it had been presented

with

this

new

evidence.

At

trial,

the

government's evidence was not just that Henry

mistakenly used

the 3040 test as

opposed to

the TCLP

test, but that

Henry was

provided

with TCLP

test results

showing the

soil he

was

about to

likely
Henry

transport was hazardous.

inference from
used

the

these

3040 test

The

facts is
to

that

convince his

customers that the soil was not hazardous and

could be accepted at the Beede facility.
these machinations

were performed as

All

a part

of a scheme whereby Henry agreed to transport

soil from

New Jersey

facility

in Michigan,

intention

of

transported the
dumped it
tests.
to

doing

to

a hazardous

waste

but

actually had

no

so.

Instead,

he

soil to the

Beede facility,

there and then performed

____
Henry showed these

the 3040

new test results

his customer in an attempt to convince it

that the soil was acceptable for recycling at

the Beede facility.

Henry's effort to

show

that he might have

reasonably relied on

3040

is

test results

unlikely to

the

overcome

this evidence of willful deceit.

Appendix at pp. 18-21.

Our standard of review is anchored in an acknowledgment

that the judge who tried the case is best equipped to examine the

issue

of whether

the new

acquittal.

In our view,

deliberate

and

evidence

would likely

result in

an

the district court, consistent with his

thoughtful

management of

-26-

this

case, carefully

analyzed the impact of the

Sanborn, Head & Associates report and

we see no basis for disturbing his findings.

For the

reasons discussed,

we affirm

conviction and sentence, and we also affirm

the defendant's

the district court's

denial of the defendant's post-trial motion for a new trial.

AFFIRMED.
AFFIRMED

-27-