United States v. Desnoyers

Mar 14: In the U.S. Court of Appeals, Second Circuit, Case No. 10-0447. The Appeals Court indicates that a jury convicted Defendant-Appellee Mark Desnoyers on multiple counts, including one count of conspiracy to

violate the Clean Air Act (CAA) and to commit mail fraud. After trial, the United States District Court for the Northern District of New York (Hurd, J.) entered a judgment of acquittal on the conspiracy count citing both factual and legal insufficiency as grounds

for its decision. The Government appealed the acquittal ruling. The Appeals Court ruled, "We vacate the judgment of acquittal on the conspiracy count, and remand 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."

 

    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 conspiracy to CAA. The jury was asked to determine, among other things, whether each property in the conspiracy count was (1) a commercial property or a residential property with more than four units containing

(2) a sufficient quantity of (3) friable asbestos. According to the opinion, the Government could prove that one of those properties was subject to the CAA asbestos regulations by introducing evidence of the three factors.

 

    The Appeals Court concluded, "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.' In sum, the conspiracy count suffered neither a factual nor a legal defect."

 

    Access the complete opinion (click here).