United States v. James E. Bragg

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1295, 99-1297 & 99-1346

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES EDWARD BRAGG, CHANCE CALVIN GAINES

and BUDDY VERNON FRAZIER,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 98-CR-38-C--Barbara B. Crabb, Judge.

Argued September 30, 1999--Decided March 21, 2000

Before HARLINGTON WOOD, JR., COFFEY and EVANS, Circuit

Judges.

COFFEY, Circuit Judge. On April 2, 1998,

Defendants-Appellants James Bragg ("Bragg"),

Chance Gaines ("Gaines") and Buddy Frazier

("Frazier") were charged in a sixteen-count

indictment with violations of both the Clean Air

Act and the Social Security Act./1 In October

1998, Bragg, Gaines and Frazier entered guilty

pleas to count one of the indictment pursuant to

written plea agreements in which the government

agreed to drop the remaining counts. On January

28, 1999, a joint sentencing hearing was held and

Bragg, Gaines and Frazier were sentenced to 24,

33, and 30 months’ imprisonment, respectively./2

On appeal, the defendants challenge their

sentencing adjustments for: (1) involving

vulnerable victims; (2) their aggravating roles

in the conspiracy; and (3) causing a "conscious

or reckless risk of serious bodily injury." We

AFFIRM.

I. BACKGROUND

For approximately 17 years, Frazier was a self-

employed labor contractor for asbestos-abatement

projects, supplying asbestos removal work crews

for projects in Alabama, Georgia, Florida,

Kentucky, Mississippi, North Carolina and

Tennessee. In their effort to carry out the

conspiracy, the defendants on two separate

occasions recruited men from a shelter for the

homeless in Chattanooga, Tennessee, known as the

"Community Kitchen."/3 The first recruitment

occurred in February 1996, when Frazier recruited

more than a dozen men, including men from the

Community Kitchen, and drove them to Memphis,

Tennessee to attend a four-day asbestos

"supervisor/contractor" training course conducted

by Professional Services, Inc. Each worker was

required to "sign in" to the course with their

name and social security number. All the workers

passed the course, including Bragg who never

attended the course but was fraudulently "signed

in" by Frazier./4 Although Professional

Services, Inc. issued the supervisor training

course certificates (19 in all) in the name and

social security number of each worker who "signed

in," none of the men received their certificates;

they were sent to and retained by Frazier.

In August 1996, Frazier was hired as an

asbestos-abatement subcontractor to supply

asbestos removal labor and supervision at the

Weyerhaeuser plant in Marshfield, Wisconsin.

Frazier in turn hired his nephew Bragg and his

friend Gaines to help supervise the removal work.

At Frazier’s direction, Gaines drove

approximately 8 workers from Tennessee to

Madison, Wisconsin, and joined Frazier and Bragg

to apply for asbestos-abatement supervisor

identification cards at the Wisconsin Department

of Health and Family Services. Except for Frazier

and only one of the workers, Terry Cameron, none

of the workers attended the Memphis training

course or received any formal training in

asbestos removal. Nevertheless, to secure the

supervisor identification cards, the defendants

fraudulently submitted the Memphis training

course certificates as proof of their crew’s

training as asbestos-abatement supervisors./5

Defendants recruited men from the Community

Kitchen on a second occasion on approximately

September 19, 1996. Needing more men for the

Weyerhaeuser project, Bragg returned to Tennessee

and recruited another crew of workers. At

Frazier’s direction, Bragg went to the Community

Kitchen and recruited approximately a dozen new

laborers. Although none of these men had any

formal training or certification in asbestos-

abatement work, Bragg drove these untrained

recruits some 800 miles to Marshfield, Wisconsin,

in the bed of an uncovered pickup truck. After

checking this crew into hotel rooms, they were

transported to the job site and immediately put

to work removing asbestos.

The Weyerhaeuser plant in Marshfield, Wisconsin

contained substantial amounts of "regulated

asbestos-containing material,"/6 including

approximately 7,967 feet of pipe asbestos

insulation and 958 square feet of "mag block"

asbestos insulation. Under the Clean Air Act, any

"owner or operator of a renovation or demolition

activity" who removes a specified minimal

amount/7 of "regulated asbestos-containing

material," must comply with numerous

requirements, including: (1) the "asbestos-

containing material" must be "adequately wet"

during stripping, cutting or removal operations;

(2) the "asbestos-containing material" must be

carefully lowered to the floor or ground and not

dropped, thrown, slid, or otherwise damaged; (3)

the "asbestos-containing material" must be sealed

in leak tight containers while wet; and (4) the

"asbestos-containing material" may not be

removed, disturbed, or otherwise handled unless

a foreman or management-level person who has been

trained in the means of complying with the

applicable standards is present on-site./8 In

general, applicable federal regulations/9 also

require that any asbestos removed be secured with

"glove bags"/10 or performed within a

"negative pressure enclosure."/11

Relying on statements taken from the workers

and a subsequent investigation conducted by both

state and federal officials, it was revealed that

the defendants’ asbestos removal operation failed

to comply with any of the regulations relating to

"negative pressure enclosures," glove bagging and

the "wetting" down of the asbestos prior to

removal. In fact, the homeless workers were

directed to "just get the asbestos material out

fast" and instructed to break the dry asbestos

off in chunks and then drop it into bags or let

it fall onto the plastic spread out over the

floor; again, all performed without sufficient

water to properly moisten the asbestos and often

at night by flashlight./12 The investigation

also revealed that a homeless worker recalled

seeing asbestos "particles floating in the air."

The defendants’ asbestos removal project fell on

hard times when the homeless men began to

complain about working long shifts, not being

paid and poor living conditions. Dependant on

Frazier for food and housing, many of the men

visited the local St. Vincent DePaul Society to

supplement the inadequate meals Frazier provided,

while others walked off the job and went so far

as to sleep on the streets. On September 26,

1996, the Marshfield Police questioned a man

sleeping on the streets and observed that he was

carrying identification indicating that he worked

at the Weyerhaeuser site. Another worker

contacted the police to complain about the

working conditions and supplied information

concerning the fact that they were not only

given, but instructed as well to use the false

identification cards. Around the same time that

these problems were arising, Gaines drove five of

the homeless men to the Wisconsin Department of

Health and Family Services in Madison, Wisconsin

on September 27, 1996, where, as before, he

submitted fraudulent applications for

identification cards using the Memphis training

certificates./13

In an effort to determine if there was any

validity to the various complaints, on October 1,

1996, Wisconsin state officials commenced an

unannounced inspection of the Weyerhaeuser site

and observed numerous violations of state

regulations and federal Clean Air Act regulations

dealing with asbestos removal, including, but not

limited to, substantial amounts of dry friable

asbestos, and the throwing of asbestos debris

bags out of second floor windows to the ground.

Once their misconduct was discovered, the

defendants immediately left the Weyerhaeuser site

and drove as many members of their crews as they

could accommodate back to Tennessee, leaving the

remaining homeless workers stranded in

Marshfield, Wisconsin.

Defendants Bragg, Gaines and Frazier were

arrested thereafter on different dates in April

1998, near Chattanooga, Tennessee, and, as

previously mentioned, pled guilty to count one of

the indictment in which they were charged with

conspiring to violate the Clean Air Act as well

as the Social Security Act. At sentencing, the

judge ordered upward adjustments for their Clean

Air Act offenses as follows: two levels for each

of the defendants because under United States

Sentencing Commission, Guidelines Manual, sec.

3A1.1(b) (Nov. 1998), the offense involved

vulnerable victims; four levels for Frazier under

U.S.S.G. sec. 3B1.1(a), for his leadership role

in the conspiracy as the "organizer or leader" of

a criminal activity involving five or more

persons; and only three levels for Gaines and

Bragg under U.S.S.G. sec. 3B1.1(b), as they were

determined to be merely "managers or supervisors"

of a criminal activity. With respect to the

penalties imposed for their Social Security Act

offenses, the judge adjusted each Defendant’s

offense level by seven under U.S.S.G. sec.

2F1.1(b)(6)(a), after finding that the offense

involved "the conscious or reckless risk of

serious bodily injury."/14

II. ISSUES

On appeal, the defendants do not challenge

their plea agreements or the designation of their

base offense levels; they only challenge the

previously mentioned upward adjustments for:

involving "unusually vulnerable" victims; their

aggravating role in the crimes; and involving

"the conscious or reckless risk of serious bodily

injury."

III. DISCUSSION

A. Vulnerable Victim

The defendants initially challenge the district

court’s two point vulnerable victim adjustments

by arguing that: (1) the government failed to

demonstrate specific evidence of the homeless

workers’ unusual vulnerability; (2) economic

status can never be grounds for vulnerability;

and (3) the government failed to establish that

the "victims were targeted on account of their

vulnerability."/15 We review de novo a

district court’s application of a sentencing

guideline but defer to its findings of fact

unless they are clearly erroneous. See United

States v. Castellanos, 165 F.3d 1129, 1131 (7th

Cir. 1999). "To the extent the sentencing

decision involves questions of fact, we will not

disturb the district court’s findings unless we

have a definite and firm conviction that a

mistake has been made." United States v.

Brierton, 165 F.3d 1133, 1137 (7th Cir. 1999). A

sentencing judge’s factual findings that a

defendant preyed on "unusually vulnerable"

victims is reviewed for clear error. See United

States v. Snyder, 189 F.3d 640, 649 (7th Cir.

1999), cert. denied, 120 S. Ct. 839 (2000).

Under U.S.S.G. sec. 3A1.1(b)(1), the sentencing

judge must enhance a defendant’s sentence by two

levels if "the defendant knew or should have

known that a victim of the offense was a

vulnerable victim." The accompanying application

note explains that this adjustment

applies to offenses involving an unusually

vulnerable victim in which the defendant knows or

should have known of the victim’s unusual

vulnerability. The adjustment would apply, for

example, in a fraud case in which the defendant

marketed an ineffective cancer cure or in a

robbery case in which the defendant selected a

handicapped victim.

U.S.S.G. sec. 3A1.1, cmt. (n.2) (emphasis added).

In this case, the district court found that the

workers recruited from the Tennessee homeless

shelter were particularly susceptible due to

their poverty, homelessness and other factors

that led them to spend time at the shelter,

including the possibility that they were seeking

"help with their alcohol problems or drug

problems, for literacy training, for help with

psychiatric problems, [and] for help with just

learning how to get a job." The judge further

found that the fact that Gaines traveled more

than 800 miles from Wisconsin to Tennessee to

recruit the homeless men from the Community

Kitchen strongly suggests that they were selected

due to their vulnerability. In making her

conclusions, the sentencing judge relied upon

various evidence, including: a report from the

assistant director of the Community Kitchen;

evidence and statements made in relation to the

defendants’ recruitment of the workers; and a

report from the director of services for the St.

Vincent DePaul Society outreach facility,

describing how the homeless workers visited the

facility seeking food, clothing and other basic

services. The judge thus concluded,

I am persuaded that the defendants in this case

did target vulnerable victims when they went to

a homeless shelter and recruited people that they

could talk into coming up to Wisconsin. People

they had good reason to suspect were not well-

connected, would not complain about conditions

that any other worker would complain about, who

were absolutely destitute, who might very well

have drug, alcohol and psychiatric problems and

would be even less in a position to show any sign

of resistance to the conditions to which they

were going to be subject[ed].

In light of the sentencing judge’s well supported

factual findings and the deference we necessarily

afford them, we are of the opinion that the

court’s finding of "unusual vulnerability" was

based on sufficiently specific evidence./16

Additionally, the defendants’ argue that

"economic status can never be grounds for

vulnerability" and furthermore that the

government was required to establish that they

targeted the victims due to their vulnerability.

In essence, the defendants attack the court’s

findings for equating the homeless workers’

unemployment with "unusual vulnerability." The

court’s findings, however, relied on many factors

other than unemployment, including the fact that

the homeless men were "absolutely destitute" and

might very well have had literacy, "drug, alcohol

and psychiatric problems and would be even less

in a position to show any sign of resistance to

the conditions" that they faced. Indeed, the

defendants do not dispute that they specifically

recruited these untrained workers from a homeless

shelter, and acted unlawfully when exposing them

to uncapsulated asbestos particles and failed to

provide them with adequate asbestos removal

training or materials to contain the asbestos.

Further, though we believe the facts clearly

establish "targeting,"/17 we wish to make

clear that the government is not required to show

that the defendants targeted the victims on

account of their vulnerability. As we ruled in

Snyder, 189 F.3d at 649, pursuant to the

Sentencing Commission’s November 1, 1995

amendments to the Sentencing Guidelines, there no

longer is a requirement that the sentencing judge

find that a defendant specifically targeted a

victims’ vulnerability under section 3A1.1.

Defendants even acknowledge in their brief that

the application notes to section 3A1.1 were

amended in 1995, specifically removing any

"target[ing]" requirement. Indeed,

[t]he ’vulnerable victim’ sentencing [adjustment]

is intended to reflect the fact that some

potential crime victims have a lower than average

ability to protect themselves from the criminal.

Because criminals incur reduced risks and costs

in victimizing such people, a higher than average

punishment is necessary to deter the crimes

against them.

United States v. Grimes, 173 F.3d 634, 637 (7th

Cir. 1999). Taking into consideration these

reasons as well as incorporating the sentencing

judge’s findings of fact, we reject the

defendants’ arguments and conclude that the

judge’s vulnerable victim adjustments were not

clearly erroneous.

B. Aggravating Roles

The defendants do not challenge the court’s

factual findings relating to their respective

leadership and supervisory roles in the criminal

violations; instead, they argue that their

aggravating criminal conduct was double counted

when it was used both to justify a sentencing

adjustment and to attach criminal liability in

the underlying conspiracy to violate the Clean

Air Act. This presents a legal question regarding

the meaning and application of the Guidelines and

hence triggers de novo review. See United States

v. Hach, 162 F.3d 937, 949 (7th Cir. 1998), cert.

denied, 119 S. Ct. 1586 (1999); Castellanos, 165

F.3d at 1131.

The bar on double counting "comes into play

only if the [underlying] offense itself

necessarily includes the same conduct as the

[adjustment]." See United States v. Senn, 129

F.3d 886, 897 (7th Cir. 1997) (emphasis in

original). Liability under the Clean Air Act

attaches to an "owner or operator" of pollution,

defined as "any person who owns, leases,

operates, controls, or supervises the facility

being demolished or renovated or any person who

owns, leases, operates, controls, or supervises

the demolition renovation operation." 40 C.F.R.

sec. 61.141. Conversely, in order for one to be

classified as a "leader" or "supervisor" for

purposes of an aggravating role sentencing

adjustment under U.S.S.G. sec. 3B1.1, a defendant

must have been the "organizer, leader, manager,

or supervisor of one or more other participants."

U.S.S.G. sec. 3B1.1, cmt. (n.2)./18

Application Note Four illustrates the type of

leadership and supervision the adjustment

addresses:

In distinguishing a leadership and organizational

role from one of mere management or supervision,

titles such as "kingpin" or "boss" are not

controlling. Factors the court should consider

include the exercise of decision making

authority, the nature of participation in the

commission of the offense, the recruitment of

accomplices, the claimed right to a larger share

of the fruits of the crime, the degree of

participation in planning or organizing the

offense, the nature and scope of the illegal

activity, and the degree of control and authority

exercised over others. There can, of course, be

more than one person who qualifies as a leader or

organizer of a criminal association or

conspiracy. This adjustment does not apply to a

defendant who merely suggests committing the

offense.

U.S.S.G. sec. 3B1.1, cmt. (n.4).

A plain reading of the regulations relating to

criminal liability under the Clean Air Act and

the aggravating role adjustment guideline reveals

significant differences. The sentencing

adjustment does not automatically attach upon a

showing of Clean Air Act liability; hence, the

adjustment disregards mere "titles" and attaches

to conduct far more culpable than merely being an

"owner or operator." In other words, the

aggravating role adjustment addresses a

defendant’s actual level of management and

responsibility "over the property, assets, or

activities of a criminal organization." U.S.S.G.

sec. 3B1.1, cmt. (n.2). Moreover, the aggravating

role adjustment considers a multitude of factors

that are not contemplated by the defendants’

underlying conspiracy to violate the Clean Air

Act, including the recruitment of accomplices,

the degree of planning or organizing, the nature

and scope of the crime and the degree of control

and authority exercised by the defendants. See

U.S.S.G. sec. 3B1.1, cmt. (n.4). Accordingly, an

individual who may be criminally liable as an

"owner or operator" of pollution under the Clean

Air Act, is not necessarily subject to the

aggravating role adjustment; the "owner or

operator" must independently qualify for the

adjustment with conduct that is more culpable and

involves a greater "exercise of management

responsibility" than is required for mere Clean

Air Act liability. Thus, because an owner or

operator’s criminal liability under the Clean Air

Act would not necessarily result in a sentencing

adjustment for his or her aggravating role, we

reject the defendants’ "double counting"

challenge and conclude that their sentences were

properly enhanced for their respective leadership

and supervisory roles in the conspiracy. See also

United States v. Lanzotti, Nos. 98-2728, 98-2750,

2000 WL 157484, at *4-5 (7th Cir. Feb. 15, 2000)

(rejecting a challenge that the sentencing judge

"double counted" when it used the same conduct to

establish a conspiracy offense and to justify an

obstruction of justice adjustment); Senn, 129

F.3d at 897 (rejecting a double counting

challenge to the captain/navigator smuggler

adjustment because the "bar on double counting

comes into play only if the offense itself

necessarily includes the same conduct as the

[adjustment]" (emphasis in original)).

C. Conscious or Reckless Risk of Serious Bodily

Injury

Under U.S.S.G. sec. 3D1.2, the sentencing judge

grouped the Clean Air Act and Social Security Act

offenses because they arose from acts that were

closely related as "one whole crime" and involved

the same victims (the homeless workers). Hence,

pursuant to sec. 3D1.3(a), the court sentenced

each defendant under the higher Clean Air Act

offense levels. Because the trial court sentenced

the defendants under the Clean Air Act offense

levels, "the conscious or reckless risk of

serious bodily injury" adjustments to the

defendants’ Social Security Act offense levels

were not used to calculate their sentences.

Accordingly, in light of our above conclusion

that the defendants were properly sentenced under

their respective Clean Air Act resulting offense

levels, there is no need to address their

challenge to the Social Security Act offense

adjustments because it could not possibly affect

their sentences. See e.g., United States v.

Howard, 179 F.3d 539, 545 (7th Cir. 1999); United

States v. Dillon, 905 F.2d 1034, 1037-38 (7th

Cir. 1990).

CONCLUSION

We hold that the district court did not commit

clear error when it enhanced the defendants’

offense levels based upon vulnerable victims. We

also conclude that the sentencing judge properly

enhanced the respective defendants’ sentences for

their aggravating roles in the crime and

correctly calculated their resulting offense

levels. The defendants’ sentences are AFFIRMED.

/1 Count one charged the defendants with engaging in

a dual-object conspiracy to: (1) knowingly remove

asbestos in violation of the Clean Air Act; and

(2) fraudulently use social security account

numbers to obtain false identification cards for

asbestos workers in violation of the Social

Security Act. Counts two and three charged

Defendants with substantive violations of the

Clean Air Act. Counts four through sixteen

consisted of thirteen substantive counts

concerning the fraudulent use of social security

numbers.

/2 The United States filed a motion under Federal

Rule of Criminal Procedure 35(b) to reduce

Gaines’s sentence based on his "substantial

assistance" in an unrelated criminal proceeding.

On April 7, 1999, the judge resentenced Gaines to

23 months’ imprisonment.

/3 The Community Kitchen is a church-run

nondenominational "day" shelter, "dedicated to

the prevention, education, and intervention of

homelessness and hunger." Among other things, the

Community Kitchen provides meals, clothing,

showers, referrals to overnight shelters,

literacy training, job postings and health care

for the needy in the Chattanooga area. Included

in its health care services, the Community

Kitchen also provides treatment for substance

abuse and mental health problems.

/4 It appears from the record that the workers were

required to study written course material. For

reasons unexplained, even though some of the men

could neither read nor write, they too passed the

course and were considered qualified to

participate in the removal of asbestos from

buildings and homes.

/5 The Wisconsin Department of Health and Family

Services issued the supervisor identification

cards to the names and social security numbers

referred to on the Memphis supervisor training

course certificates. Thus, the defendants

instructed the workers to memorize and assume the

names and social security numbers indicated on

the training certificates and their ID cards in

case they were confronted on the job site.

/6 "Regulated asbestos-containing material" includes

any material containing more than one percent of

asbestos that is "friable," that is, "when dry,

can be crumbled, pulverized, or reduced to powder

by hand pressure."

/7 The regulations apply to demolition or renovation

operations that involve at least 260 linear feet

or 160 square feet of "regulated asbestos-

containing material."

/8 See generally 40 C.F.R. sec. 61.140, et seq.

/9 See generally 29 C.F.R. sec.sec. 1910.1001,

1926.1101; 59 Fed. Reg. 40964 (1994).

/10 A glove bag is "a 60 x 60 inch impervious plastic

bag-like enclosure affixed around an

asbestos-containing material, with glove-like

appendages through which material and tools may

be handled." During glove bagging, a small water

bottle is typically inserted and sealed inside

the glove bag to moisten the asbestos prior to

removal, as is done, for example, when removing

the asbestos insulation covering a hot water

pipe.

/11 A "negative pressure enclosure" is made of

impermeable plastic that seals off the outside

air around the area where workers are removing

asbestos insulation. The enclosure can be of any

configuration, but must have less air pressure

than outside, as well as a high efficiency air

filter ("HEPA" filter) that removes any asbestos

particles from the air.

/12 In fact, according to Gaines, water was largely

unavailable to wet down the asbestos, or to wash

the asbestos fibers off the workers in the

"decontamination" shower enclosures because the

water pressure from the six inch water line was

too high. The Presentence Investigation Report

makes note of the fact that the defendants "did

not want to spend the money to reduce the water

pressure."

/13 It is unclear from the record whether on this

occasion Gaines applied for asbestos supervisor

identification cards or worker identification

cards.

/14 The sentencing judge, however, sentenced the

defendants only under their Clean Air Act crimes

because it resulted in a higher offense level for

each defendant. See U.S.S.G. sec. 3D1.3(a)

(requiring that sentencing be according to the

"the highest offense level of the counts in the

Group").

/15 A "vulnerable victim" is "a person . . . who is

unusually vulnerable due to age, physical or

mental condition, or who is otherwise

particularly susceptible to the criminal

conduct." U.S.S.G. sec. 3A1.1, cmt. (n.2).

/16 Moreover, in light of the considerable evidence

that demonstrated that the homeless workers had

many more problems than just homelessness,

including financial, literacy, drug and

psychiatric problems, the defendants’ claim that

some of the workers were not in fact "homeless"

is immaterial. The vulnerable victim adjustment

does not require any more exacting findings of

"unusual vulnerability" than were made here by

the sentencing judge. See, e.g., United States v.

Grimes, 173 F.3d 634, 637 (7th Cir. 1999)

(relying on the inference that only very

unsophisticated persons would fall victim to the

defendant’s fraud scheme in support of a

vulnerable victim adjustment).

/17 Under the November 1, 1994 version of the

Sentencing Guidelines, "targeting" occurs when a

victim who is "unusually vulnerable due to age,

physical or mental condition or . . . otherwise

particularly susceptible to the criminal

conduct," sec. 3A1.1 (Nov. 1994), "is made a

target of criminal activity by the defendant."

sec. 3A1.1, cmt. (n.1) (Nov. 1994).

/18 A "participant" is defined as another person "who

is criminally responsible for the commission of

the offense." U.S.S.G. sec. 3B1.1, cmt. (n.1).