Prologue — Rubenstein v. United States

Supreme Court, US.

() FILED

05-158 JUL 27 209

No.

~

tne

Supreme Court of the

__ Anited States

October Term, 2005

MARVIN RUBENSTEIN and ISAAC RUBENSTEIN,

Petitioners,

— against —

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari From the United

States_Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

JEREMY GUTMAN

Attorney of Record for Petitioner

Marvin Rubenstein

251 East 61" Street

New York, New York 10021

(212) 644-5200

scab Nias

LAWRENCE GERZOG

Attorney of Record for Petitioner

Isaac Rubenstein

251 East 61% Street

~ New York, New York 10021

(212) 486-3003

PS ORS

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St. Louis West, Inc.

NY (212) 684-3117 NJ (201) 863-8133

Printed on Recycled Paper

(2983)

Question Presented

The petitioners, who were not in the business of asbestos

removal, were indicted on felony charges arising from their

removal of asbestos pipe insulation, without complying with

work practice standards promulgated pursuant to the Clean Air

Act, during renovation of a 100-year-old building owned by

their family. Relying on Second Circuit caselaw holding that a

“reasonable person” may be presumed to know that asbestos is

a dangerous substance likely to be subject to governmental

regulation, the district court instructed the jury that the

government did not have to prove that petitioners were aware of

the work practice standards, but that the petitioners should be

found guilty if the government proved that they were aware of

the circumstances of the removal and that the substance being

removed was asbestos. Uncontradicted testimony of government

witnesses had established that, while the dust containing

asbestos was flowing through the air, the petitioners exposed

themselves to contact with it without wearing masks or

protective clothing.

The question presented for review is: Whether, given

this Court’s longstanding recognition that individuals should not

be subjected to cnminal sanctions if they lack a culpable mens

rea, should the district court have granted a defense request to

instruct the jury that, if the evidence did not establish beyond a

reasonable doubt that the petitioners bore a “reasonable

person’s’”’ awareness of the dangerous and regulated nature of

asbestos, the petitioners should be found not guilty.

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Constitutional And Statutory Provisions Involved

STATEMENT

U.

I.

The Charges and Trial

The Court’s Instructions to the Jury

The Decision of the Court of Appeals

REASONS FOR GRANTING THE WRIT

Granting a writ of certiorari will permit this

Court to resolve a conflict between the decision

below and relevant decisions of this Court;

additionally, in the context of environmental

offenses in which the government has broad

discretion to pursue either civil or criminal

sanctions, it will enable this Court to resolve

whether, consistent with fundamental principles

of criminal culpability, a jury should be

permitted to reject a presumption regarding

guilty knowledge and to acquit a defendant

whose non-compliance with environmental

regulations is not accompanied by mens rea

CONCLUSION

TABLE OF AUTHORITIES

Cases

Arthur Andersen LLP v. United States,

_ US. -—, 125 S:Ct 2129 (2005)

Hanousek v. United States,

528 U.S. 1102 (2000)

Liparota v. United States,

471 U.S. 419 (1985)

Morissette v. United States,

342 U.S. 246 (1952)

Staples v. United States,

511 U.S. 600 (1994)

United States v. Aguilar,

51S U.S.593 (1995)

United States v. Balint, 258 U.S. 250 (1922)

United States v. Booker, _U.S. _,

125 S.Ct 738 (2005)

United States v. Figueroa,

165 F.3d 111 (2d Cir. 1998)

United States v. Freed, 401 U.S. 601(1971)

United States v. International Minerals and

Chemicals, Corp., 402 U.S. 558 (1971)

United States v. LaMorie,

950 F.2d 80 (2d Cir.1991)

United States v. Monaco,

194 F.3d 381 (2d Cir. 1999)

United States v. Murdock, 290 U.S. 389 (1933)

United States v. Sanders,

211 F.3d 711(2d Cir.),

cert. denied, 531 U.S. 1015 (2000)

United States v. Weintraub,

273 F.3d 139 (2d Cir. 2001)

United States v. X-Citement Video, Inc..,

513 U.S. 64 (1994)

Statutes and Regulations

United States Code, Title 42, Section 7412

United States Code, Title 42, Section 7413

Code of Federal Regulations, Title 40, Seotion 61.141 ..

Other Authority

Jeremy Firestone, Enforcement of

Pollution Laws and Regulations: An Analysis of

Forum Choice, 27 Harv. Envtl. L. Rev. 105 (2003) ..

INDEX TO APPENDIX

Appendix A -—

Decision of the United States Court of Appeals for

the Second Circuit, Decided March 31, 2005

Appendix B —

Order of the United States Court of Appeals,

Denying Petition for Rehearing, Dated Apmnl 26,

No.

In the )

SUPREME COURT of the UNITED STATES

i

-MARVIN RUBENSTEIN and ISAAC RUBENSTEIN,

Petitioners,

against

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners Marvin Rubenstein and Isaac Rubenstein

respectfully pray that a wnt of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for

the Second Circuit entered in this proceeding on March 31, 2005.

Opinion Below

The opinion of the Court of Appeals, United States v.

Rubenstein, 403 F.3d 93 (2d Cir. 2005), appears as Appendix A

to this petition. That court’s order, entered April 28, 2005,

denying a petition for rehearing is not yet reported and appears

as Appendix B. |

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on March 31, 2005. The Court of Appeals

denied a timely petition for rehearing by an order entered on

Apnil 28, 2005. This petition for certiorari was filed within 90

days of that date. This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

Constitutional And Statutory Provisions

Involved

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

No person shall . . . be deprived of life, liberty, or

property, without due process of law... .

United States Code, Title 42, Section 7413(c)(1),

provides, in pertinent part:

Any person who knowingly violates . . . any

requirement or prohibition of ... section 7412

of this title .. . shall, upon conviction, be

punished by a fine pursuant to Title 18, or by

imprisonment for not to exceed 5 years, or both.

United States Code, Title 42, Section 7412, provides,

in pertinent part:

(b)(1) . . . The Congress establishes for

purposes of this section a list of hazardous air

pollutants as follows:

CAS Number 1332214 Asbestos

* * *

(d)(1) . . . The Administrator [of the

Environmental Protection Agency (“EPA”)]

shall promulgate regulations establishing

emission standards for each category or

subcategory of major sources and area sources

of hazardous air pollutants . .. .

STATEMENT

I. The Charges and Trial

The criminal charges against Marvin and Isaac

Rubenstein, who are father and son, concemed the removal of

asbestos that had been used to insulate pipes in a 100-year-old

commercial building located in Brooklyn that had been owned

by the Rubenstein family for over 30 years. Throughout those

years, the family ran a sweater-knitting business in that

building, at which Marvin and his mother, Bella Rubenstein,

worked full-time, and in which Isaac assisted on a part-time

basis as needed. The indictment alleged that, while

performing renovations to prepare the building for occupancy

by a real estate developer who entered into a long-term lease

for the building in July 2000, Marvin and Isaac caused the

removal of asbestos without complying with the regulatory

standards imposed pursuant to the Clean Air Act (“CAA”), in

4-

violation of 42 U.S.C. § 7413(c)(1), and that they conspired to

do so, in violation of 18 U.S.C. § 371.

At trial, a government expert explained that work

standard practices, codified in the National Emissions

Standards for Hazardous Air Pollutants (“NESHAPS”)

promulgated by the EPA, require that asbestos removed from

pipes must be wetted and disposed of in leak-proof containers

under the supervision ofa certified asbestos contractor who

has received training in the NESHAPS, and that the workers

removing the asbestos must wear protective gloves and

clothing, as well as masks or respirators. These regulations do

not apply to all demolition involving material containing |

asbestos; rather, they apply only if the renovation entails

removal of at least 260 linear feet of “regulated asbestos

containing maternal” (“RACM”), which is defined as:

(a) Friable asbestos material, (b) Category I

nonfnable ACM that has become friable, (c)

Category I nonfnable ACM that will be or has

been subjected to sanding, grinding, cutting, or

. abrading, or (d) Category II nonfriable ACM

that has a high probability of becoming or has

become crumbled, pulverized, or reduced to

powder by the forces expected to act on the

material in the course of demolition or

renovation operations . . .

40 C.F.R. § 61.141

Appearing as a government witness, the real estate

developer, Enk Ekstein, testified that, although no provision

concerning asbestos was included in the lease, Marvin