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United States v. Starnes

September 24, 2009

UNITED STATES OF AMERICA
v.
DYLAN C. STARNES, APPELLANT
UNITED STATES OF AMERICA
v.
CLEVE-ALLAN GEORGE, APPELLANT



On Appeal from the District Court of the Virgin Islands Division of St. Thomas (D.C. Nos. 03-cr-00020-2 and 03-cr-00020-1) District Judge: Honorable Raymond L. Finch.

The opinion of the court was delivered by: Fisher, Circuit Judge

PRECEDENTIAL

Argued December 11, 2008

Before: FISHER, JORDAN and STAPLETON, Circuit Judges.

OPINION OF THE COURT

Cleve-Allan George and Dylan C. Starnes appeal from judgments of conviction and sentence entered against them following a jury trial in the United States District Court for the District of the Virgin Islands. Although these appeals have not been formally consolidated, we resolve them together because they arise from a common set of facts. For the reasons set forth below, we will affirm the judgments.

I. Background

In 1999, the Virgin Islands Housing Authority (VIHA) received a HOPE VI grant from the United States Department of Housing and Urban Development (HUD) for the demolition of the Donoe Housing Community, a low-income public residential community located on St. Thomas, U.S. Virgin Islands. The following year, VIHA issued an invitation for bids on the Donoe demolition project. The invitation for bids included the project's specifications -- which provided, among other things, that work on the project was to be "performed in strict accordance with all federal, state and local regulations and ordinances" -- and a report detailing a 1996 asbestos survey that Induchem Environmental Services had conducted at Donoe, which revealed the presence of friable asbestos-containing materials in the ceilings of eighty-six of the community's eighty-eight structures, as well as nonfriable asbestos-containing materials throughout the structures.*fn1

VIHA eventually awarded the demolition contract to Alvin Williams Trucking & Equipment Rental, Inc. That company, with the consent of VIHA, subcontracted the asbestos-abatement portion of the project to the Virgin Islands Asbestos Removal Company (VIARCO), a company owned by George.

VIARCO's bid for the subcontract specified that George would be the general manager of the asbestos-abatement project and listed his credentials, which included prior experience managing similar asbestos-abatement projects, the completion of comprehensive training courses for "asbestos workers" and "asbestos contractors/supervisors," familiarity with all federal regulations relating to asbestos, and all-around "competen[ce] in all aspects of . . . asbestos abatement." VIARCO's bid also referenced the applicable regulations promulgated by the EPA and the Occupational Safety and Health Administration (OSHA) and indicated that VIARCO had "joined forces" with Environmental Contracting Company (ECC), a company run by Starnes.

Starnes had extensive experience in many aspects of asbestos abatement, having even taught courses on the subject. As he personally informed VIHA after George brought him on board, among his various areas of responsibility on the Donoe project was oversight of air-quality monitoring. To this end, Starnes recruited Thrideo Sukhram, a former student, to collect air samples at the Donoe site. Starnes also contacted Carlos Carcamo, who had previously worked for Starnes as a course instructor, and offered him the job of project manager. Carcamo promptly accepted the position and, at Starnes's request, set about recruiting a work crew for the Donoe project. When some of those workers arrived in St. Thomas, Starnes met them at the airport and took them to the Donoe site, where he explained to them the work they would be doing on the project and promised them each a $2,000 bonus if the project was completed on time.

Work on the Donoe project was slated to begin on January 2, 2001, but did not get under way in earnest until January 10, 2001. George and Starnes directed Carcamo to instruct the work crew to use a "pressure washer" to dislodge asbestos-containing materials from the site's structures. This removal method, although time-efficient, generated a substantial amount of debris-filled wastewater, which the crew pumped into toilets and bathtubs. But those fixtures rapidly clogged, causing wastewater to pour out and accumulate on the buildings' balconies. In response, George constructed a drainage system out of PVC pipes, which permitted the wastewater to flow off the balconies and down to the ground. When the wastewater evaporated, it left a dusty white residue clinging to the facades of the buildings and the surrounding sidewalks and grass.

On January 24, 2001, VIHA sent a noncompliance notice to George's attention. Under OSHA rules regulating occupational exposure to asbestos in the construction industry, 29 C.F.R. § 1926.1101, VIARCO was obligated to monitor airborne concentrations of asbestos by collecting and analyzing air samples from the Donoe site, and the notice sent by VIHA indicated that the company had failed to file daily reports detailing the results of its air monitoring, as required by the project specifications. The following day, twelve air-monitoring reports -- each corresponding with a work day between January 9, 2001 and January 25, 2001, and each signed by Starnes, attesting that he had analyzed air samples collected at the Donoe site -- were delivered to VIHA.

On January 31, 2001, an air-quality specialist with the Virgin Islands Department of Planning and Natural Resources (DPNR) visited the Donoe site and observed the deplorable conditions there, including liquid seeping from a trailer used to store removed asbestos-containing material and unprotected workers covered in white powder. He soon returned to the site accompanied by an OSHA inspector and saw workers using shovels to remove chunks of dry asbestos-containing ceiling material from apartments, causing visible emissions to emanate from the material. On February 9, 2001, after the assistant director of DPNR also inspected the Donoe site and saw that conditions were essentially unchanged, DPNR issued a stop-work order, shutting down the project. DPNR then referred the matter to the EPA for further investigation.

On March 27, 2002, Agent Justus Derx of the EPA's Criminal Investigation Division executed a search warrant at Starnes's office in Chamblee, Georgia, during which he seized copies of the twelve air-monitoring reports that were transmitted to VIHA. The layered fax-header information on the copies indicated that George had faxed blank air-monitoring report forms to Starnes in Florida on January 25, 2001 and that Starnes faxed the completed forms back to George approximately seventeen minutes later.

On February 6, 2003, a grand jury in the District of the Virgin Islands returned a sixteen-count indictment against George and Starnes. Counts One through Four of the indictment charged the defendants with knowingly violating EPA work-practice standards for the handling and disposal of regulated asbestos-containing material, 40 C.F.R. §§ 61.145, 61.150, subjecting them to criminal liability under the Clean Air Act, 42 U.S.C. §§ 7412 and 7413(c)(1). Counts Five through Sixteen charged them with knowingly and willfully making materially false, fictitious or fraudulent statements and representations in a matter within the jurisdiction of the executive branch of the United States by transmitting twelve falsified air-monitoring reports to VIHA, in violation of 18 U.S.C. § 1001(a).*fn2

Both defendants pleaded not guilty to all charges, and were tried together to a jury in June 2005. At trial, the government introduced evidence that Starnes flew from St. Thomas to Atlanta, Georgia on January 9, 2001, and from Atlanta to Tampa, Florida on January 24, 2001. Sukhram testified that before Starnes left St. Thomas he gave Sukhram a few air-monitoring devices, each of which was essentially an air pump attached to a filter cassette.*fn3 Sukhram testified that Starnes taught him how to activate the air-monitoring devices and how to insert and remove the cassettes. Armed with this basic understanding of the devices, Sukhram continued, he set up the devices, removed the cassettes on a daily basis, labeled and dated them, and then passed them on to George, who was responsible for sending them to Starnes for analysis. When Sukhram soon ran out of cassettes, George alerted Starnes, who then told Sukhram to reuse the old cassettes (even though, as the evidence showed, each cassette could only be used once). Sukhram testified that he never saw any indication that the cassettes were analyzed but that Starnes nonetheless instructed him to complete a number of air-monitoring reports as if the observed results fell within legal limits.

The jury also heard testimony from David Dugan, a regional technical coordinator with the EPA's National Enforcement Investigation Center. Dugan testified that in February 2002 he took samples of suspected asbestos-containing material from ceilings in Building 31, a structure at the Donoe site which had yet to be demolished. The evidence showed that the samples collected by Dugan contained asbestos concentrations ranging from 4.1 to 6 percent. Both defendants' attorneys objected to Dugan's testimony on relevance grounds, arguing that it should be stricken because Dugan took the samples approximately a year after the conduct charged in the indictment, from a building in which VIARCO did not work. Starnes's attorney also objected on the ground that any probative value the testimony might have was substantially outweighed by the danger of unfair prejudice. The District Court, after consideration, ultimately overruled those objections.

At the conclusion of the trial, each defendant moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on all counts. The District Court denied George's motion in its entirety and denied Starnes's motion as to all counts except Count Four. Following deliberations, the jury found George and Starnes guilty on all counts the District Court permitted it to consider.

The United States Probation Office prepared a presentence investigation report (PSR) for each defendant. For both defendants, the Probation Office began with a base offense level of eight under U.S.S.G. § 2Q1.2 and recommended a six-level enhancement under U.S.S.G. § 2Q1.2(b)(1)(A), a four-level enhancement under U.S.S.G. § 3B1.1(a), and a two-level enhancement under U.S.S.G. § 3B1.3. In addition, the Probation Office recommended for Starnes a four-level enhancement under U.S.S.G. § 2Q1.2(b)(4). For George, this resulted in a total offense level of twenty, which, combined with George's criminal history category of I, yielded an advisory Guidelines range of thirty-three to forty-one months of imprisonment. For Starnes, the resulting total offense level of twenty-four, combined with his criminal history category of I, yielded an advisory Guidelines range of fifty-one to sixty-three months of imprisonment.

Starnes's sentencing hearing was held first, on July 27, 2007. The District Court largely adopted the PSR prepared for Starnes, but rejected the Probation Office's recommendation that it enhance his base offense level by four levels under U.S.S.G. § 2Q1.2(b)(4), resulting in a total offense level of twenty and an advisory Guidelines range of thirty-three to forty-one months. The District Court sentenced Starnes to thirty-three months of imprisonment, three years of supervised release, and a special assessment of $1,600.

George's sentencing hearing was held on February 26, 2008. The District Court found the PSR prepared for George to be factually and legally accurate, and its calculations to be appropriate and correct. While noting the government's position that George's acts were more egregious than those of Starnes, the District Court nonetheless imposed on George the same sentence that it had imposed on Starnes.

These appeals followed. The District Court had subject matter jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. ...


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