Petition for Writ of Certiorari — Rubenstein v. United States

Rubenstein orally agreed to remove asbestos that had been

used as pipe insulation. Subsequently, Ekstein observed

workers removing asbestos wrapping without wetting it or

otherwise complying with the applicable work standard

practices.

Ekstein observed that Marvin was “night around that

area’ where the workers were removing the insulation,

“standing right near the asbestos.”’ When he said, “Marvin, you

can’t do it this way,”” Marvin replied that Ekstein should not

worry about it, because “this is blown out of proportion, it is

not that big a deal.” Although his own possible exposure to

asbestos had made Ekstein “nervous for my own health” and

prompted him to go home and change his clothes, he

acknowledged that Marvin, Isaac, and 83-year-old Bella

Rubenstein (Marvin’s mother and Isaac’s grandmother) were

all in the building at that time, and that, although they were

exposed to asbestos flakes, they were not wearing any

protective clothing.

Similarly, Hector Santos, the foreman of a group of

men who worked on the demolition for a period of four days,

testified that he saw Marvin assisting two workers who were

placing boxes containing the removed matenials into trucks

that compressed the boxes and caused dust to rise. According

to Santos, even when Marvin was standing “night there in the.

middle” of the area where the asbestos was being taken to a

truck, “with all the dust flying” and “with his face near the

boxes,” Marvin himself did not wear a mask. Santos also saw

Marvin's mother in the building during the time the demolition

was being performed.

As part of the defense case, Bella Rubenstein testified

that in her son’s home, as in her own, there were no televisions

and no English-language newspapers.

II. The Court’s Instructions to the Jury

Based on an earlier Second Circuit opinion, United

States v. Weintraub, 273 F.3d 139 (2d Cir. 2001), the district

court instructed the jury, over objection, that the petitioners

could be convicted if (1) they were owners or operators of

renovation activity; (2) they knew the renovation involved

asbestos; and (3) they knew that the asbestos was not being

wetted, carefully lowered to the floor without being damaged

or disturbed, or kept wet while awaiting collection, or that no

representative trained in the NESHAPS was present. The court

further explained that:

Under the third element requiring the

government to prove beyond a reasonable doubt

that at least one of those four work practice

standards had not been complied with, the

government need not prove that the defendant

knew what these work practice standards were.

It is sufficient if the government proves beyond

a reasonable doubt that the defendant had

knowledge of the facts and attendant

circumstances that constituted a violation of the

work practice standards and not that the

defendant specifically knew that his conduct

was illegal.

In so charging, the court rejected a defense request for

an instruction requinng that the jury find at least a general

awareness that the petitioners were engaging in unlawful

conduct, and its contention that a finding of guilt would be

improper if the jury concluded that the defendants were

actually unaware that there were compulsory regulations

governing asbestos removal, and thus that presumptions

concerning what a “reasonable person” can be expected to

know had been rebutted. Specifically, the defense had

requested that the district court instruct the jury that:

The government must also prove

beyond a reasonable doubt that the defendants

are “reasonable” such that they would also have

known that asbestos is regulated and that some

form of liability flows from violating -

regulations such as work-practice standards.

During the charge conference, defense counsel supplemented

that request by asking the court to explain that “while a

specific violation of the Clean Air Act or any of these

regulations was not required, that there has to be some general

sense that they were doing something that was illegal.”

8

lil. The Decision of the Court of Appeals

On appeal from their convictions and sentences’, the

Rubensteins contended that the district court’s charge

improperly permitted conviction based on a level of mens rea

that was insufficient to establish criminal culpability. The

Second Circuit’s earlier opinion in Weintraub had recognized

that criminal statutes must be interpreted to require sufficient

scienter to distinguish conduct that is culpable from conduct

that is innocent, and had relied on cases holding that

“knowledge may suffice for criminal culpability if ‘extensive

enough to attribute to the knower a “guilty mind”’or knowledge

that he or she is performing a wrongful act.’” Weintraub, 273

F.3d at 147, quoting United States v. Sanders, 211 F.3d 711,

723 (2d Cir.), cert. denied, 531 U.S. 1015 (2000), and United

States v. Figueroa, 165 F.3d 111, 115-16 (2d Cir. 1998).

Noting the proliferation of local, state, and federal regulations

'The petitioners were convicted of both the substantive and

conspiracy counts of the indictment. Departing from the Guidelines

based on a combination of factors, including aberrant behavior and

lifetimes of good works, the district court sentenced Marvin to an 18-

month term of imprisonment, to be followed by a three-year term of

supervised release, and a $75,000 fine, and Isaac to imprisonment for

a term of twelve months and one day, to be followed by a three-year

term of supervised release, and a fine of $7,500. The court also

issued to both defendants, jointly and severally, an order of restitution

in the amount of $30,000. The restitution ordered by the district court

was paid on January 28, 2004. Even though the sentencing order

provided that the fines were not payable until six months after the

conclusion of incarceration, both appellants’ fines were paid in full

on March 2, 2004.

concerning asbestos, as well as the multitude of high-profile

lawsuits regarding asbestos-related ailments, the Court of

Appeals concluded that culpable knowledge could be inferred

from awareness of the presence of asbestos because “‘no

reasonable person — let alone a sophisticated real estate

developer like Weintraub — could be unaware that asbestos in

almost all of its applications is closely regulated.” 273 F.3d at

149-50 (emphasis added).

The Rubensteins argued that here, in contrast to

Weintraub, at least one view of the evidence could have led

the jury to the conclusion that the defendants did not have the

“awareness” that a “reasonable” person can be presumed to

have about asbestos —~ or at least that such an awareness was

not proven beyond a reasonable doubt. In support of this

argument, they pointed to evidence that the Rubensteins were

largely insulated from modern culture and that a failure to

appreciate the dangerous, and therefore regulated, nature of

asbestos was demonstrated by evidence that the petitioners and

other members of their family exposed themselves to direct

contact with unwetted asbestos without wearing masks or

protective clothing, and that Marvin had been “right there in

the middle” with “all the dust flying” while the asbestos was

being removed.

Rejecting this argument, the Second Circuit re-

affirmed Weintraub’s holding that the phrase “knowingly

violates” in 42 U-S.C. § 7413 “bespeaks ‘knowledge of facts

and attendant circumstances that compnise a violation of the

statute, not specific knowledge that one’s conduct is illegal.’”

United States v. Rubenstein, 403 F.3d 93, 97 (2d Cir. 2005),

quoting Weintraub, 273 F.3d at 147. The Court concluded

that:

The defendants may be immersed in a culture

that does not concern itself with the

environmental hazards of asbestos, but that

does not bear upon the nature of the

prohibition. The statute presupposes a

knowledge that asbestos is a regulated material,

the way other cnminal statutes presuppose

basic knowledge of the physical world; and

there is no basis for the defendant’s contention

that this is a rebuttable presumption.

403 F.3d at 98. Based on this determination, the Court of

Appeals affirmed the convictions.’

*The Court concluded, however, that the district court had

erred in calculating petitioners’ offense levels under the United States

Sentencing Guidelines, and it remanded for resentencing consistent

with that determination, as well as with this Court’s intervening

opinion in United States v. Booker, _ U.S. __, 125 S.Ct 738 (2005).

Petitioners were released after serving approximately 9 weeks of their

sentences pursuant to an order of the Second Circuit granting bail

pending appeal, and they remain at liberty pending their resentencing,

which is scheduled for September 7, 2005.

REASONS FOR GRANTING THE WRIT

Granting a writ of certiorari will permit this

Court to resolve a conflict between the

decison 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 environmenta!

regulations is not accompanied by mens rea

The conduct at issue in the present case — removal of

insulating maternal from old pipes dunng a building renovation

performed by individuals who are not in the business of

engaging in such work — is, by its nature, commonplace and

innocuous. Indeed, unless the insulation material not only

contains asbestos, but meets the technical specifications of

“regulated asbestos containing material” (“RACM”) as defined

in the Code of Federal Regulations, and unless it comprises at

least 260 linear feet, no federal regulation governs the manner

of its removal. See 40 C.F.R. § 61.141. It is only the fact that

the insulation material in the present case consisted of the

requisite quantity of RACM that permitted the petitioners’

conduct to be transformed from innocent acts into felonies

punishable by up to five years’ imprisonment.

The court below concluded that criminal sanctions

were properly imposed on the petitioners, even if the jury

12

could not find wrongful intent, based on the presumption that

any “reasonable person” understands that asbestos is

inherently dangerous and that its handling must therefore be

subject to governmental regulations. See Rubenstein, 403

F.3d at 98. By requiring the jury to convict the Rubensteins

even if the evidence — particularly the uncontroverted

testimony that petitioners personally exposed themselves and

other family members to contamination by unprotected contact

with free-flowing asbestos — raised a reasonable doubt as to

whether they in fact understood the dangerous character of the

asbestos they were removing, the jury instructions in the

present case flew in the face of a fundamental principle that

this Court has long upheld: the principle that criminal

sanctions require a culpable scienter.’ Certiorari is warranted

so that this Court can resolve a conflict between the present

opinion and relevant decisions of this Court, and so that it may

*The Second Circuit’s opinion completely overlooked the

uncontroverted evidence that the Rubensteins exposed themselves to

asbestos without wearing masks or gloves. Instead, it presented a

skewed version of the evidence “‘in the light most favorable to the

government, crediting any inferences that the jury might have drawn

in its favor.’”. Rubenstein, 403 F.3d at 96, quoting United States v.

Monaco, 194 F.3d 381, 383-84 (2d Cir. 1999). In doing so, the Court

of Appeals ignored its own precedents establishing that where, as

here, the issue is whether a jury charge reflecting a theory of defense ©

should have been given, the question is not whether the evidence,

~ viewed most favorably to the government, convinces the Court of the

defendant’s position. Rather, it is whether the theory underlying the

defendant’s request is supported by “any foundation in evidence, no

matter how weak or incredible that evidence may be.” United States

v. LaMorte, 950 F.2d 80, 84 (2d Cir.1991). Thus, the Court of

Appeals’ rejection of petitioners’ argument arose, at least in part,

from application of the wrong standard of review.

consider whether instructions that prevented the jury from

considering the absence of such scienter unfairly diluted the

requirement of mens rea and were therefore inconsistent with

the constitutional right to due process.

As this Court explained more than a half-century ago:

The contention that an injury can amount to a

crime only when inflicted by intention is no

provincial or transient notion. It is as universal

and persistent in mature systems of law as

belief in freedom of the human will and a

consequent ability and duty of the normal

individual to choose between good and evil. A

relation between some mental element and

punishment for a harmful act is almost as

instinctive as the child’s familiar exculpatory

“But I didn’t mean to;” and has afforded the

rational basis for a tardy and unfinished

substitution of deterrence and reformation in

place of retaliation and vengeance as the

motivation for public prosecution. Unqualified

acceptance of this doctrine by English common

law in the Eighteenth Century was indicated by

Blackstone’s sweeping statement that to

constitute any crime there must first be a

“vicious will.”

Morissette v. United States, 342 U.S. 246, 250-51 (1952).

Morissette was the first in a line of cases in which this

Court “interpret[ed] criminal statutes to include broadly

applicable scienter requirements, even where the statute by its

terms does not contain them.” United States v. X-Citement

14

Video, Inc., 513 U.S. 64, 70(1994). See also Staples v. United

States, 511 U.S. 600, 614 (1994) (construing a firearms

statute’s mens rea requirement in a manner that avoids the

~ possibility of imposing cnminal sanctions on individuals

whose “mental state . . . makes their actions entirely

innocent’). Earlier this year, this Court re-affirmed that

principle by holding, in Arthur Andersen LLP v. United States,

_ US. _, 125 S.Ct 2129 (2005), that a statute prohibiting

obstruction of justice [18 U.S.C. § 1512] must be interpreted

in a manner that allows it to reach “only those with the level of

‘culpability . . . we usually require in order to impose criminal

hability.”” 125 S.Ct at 2136, quoting United States v. Aguilar,

515 U.S.593, 602 (1995), and citing Liparota v. United States,

471 U.S. 419, 426 (1985). See also Hanousek v. United

States, 528 U.S. 1102, (2000) (Thomas and O'Connor, JJ.,

dissenting from denial of certiorari) (“we should be hesitant to

expose countless numbers of construction workers and

contractors to heightened criminal liability for using ordinary

devices to engage in normai industrial operations”).

The seminal case undergirding the notion that criminal

sanctions may be imposed for violating environmental

regulations even against a defendant who is unaware of those

regulations is United States v. International Minerals and

Chemicals, Corp., 402 U.S. 558 (1971). In that case, this

Court held that shipment of sulfuric acid in violation of

Interstate Commerce Commission. regulations could give rise

to cnminal penalties even though the defendant had no

knowledge of those regulations. The Court recognized that,

like sulfuric acid:

Pencils, dental floss, paper clips may also be

regulated. But they may be the type of products

which might raise substantial due process

questions if Congress did not require, as in

[United States v. } Murdock, [290 U.S.

389(1933)] “mens rea” as to each ingredient of

the offense. But where, as here and as in

{ United States v.} Balint [258 U.S. 250(1922)}

{involving narcotics] and [United States v. ]

Freed [401 U.S. 601(1971)] [involving hand

grenades], dangerous or deleterious devices or

products or obnoxious waste matenials are

involved, the probability of regulation is so

great that anyone who ts aware that he is in

possession of them or dealing with them must

be presumed to be aware of the regulation.

402 U.S. at 564-65.

The continued validity of the rationale articulated in

International Minerals and Chemicals has been thrown into

question by this Court’s decision in Staples. In that case,

which involved prosecution for possession of a “machine gun”

in violation of 26 U.S.C. § 5845, this Court held that the fact

that firearms are “dangerous” does not, in and of itself,

relieve the government of the burden of proving that the

defendant was aware of the particular characteristics of the

firearm he possessed that brought it within the statutory

prohibition. 511 U.S. at 610-11, 619. Recognizing the “long

tradition of widespread lawful gun ownership by private

individuals in this country,” and that, despite their

dangerousness, “guns generally can be owned in perfect

innocence,” 511 U.S. at 610-11, this Court held that, before

the defendant could be branded a criminal, the government

must show particulanzed knowledge of the circumstances that

made the defendant’s firearm sufficiently dangerous to warrant

regulation. ;

16

No less than owning firearms or discarding documents

(or counseling others to withhold documents), see Arthur

Andersen, 125 S.Ct at 2134-35, removing asbestos may, under

appropniate circumstances, be performed in “perfect

innocence.” Nonetheless, in the present case, the Court of

Appeals would not permit the jury to consider evidence that

_ the petitioners, like the defendant in Staples, did not

understand that the material they were handling bore the

characteristics that would subject it to strict regulation. While

this Court, in Staples, refused to indulge a presumption that

the defendant must have been aware that the firearm he

possessed was likely to require registration, and that his failure

to ascertain the applicable regulations exposed him to cnminal

prosecution and conviction, the Court of Appeals in the

present case held that the Clean Air Act “presupposes a

knowledge that asbestos is a regulated matenal,” Rubenstein,

403 F.3d at 98, and that a defendant’s lack of such knowledge

may not be relied on by a jury as a basis for acquittal.

A grant of certiorari would give this Court an

opportunity to resolve the conflict between the present case

and Staples, and to reconcile the law applicable tocnminal”

prosecution under the Clean Air Act with the principles of

criminal culpability that this Court has consistently

championed. Doing so would also permit this Court to clanfy

the reach of the criminal law in an area in which, at present,

“EPA retains substantial discretion to choose among

administrative, civil judicial, and cnminal remedies.” Jeremy

Firestone, Enforcement of Pollution Laws and Regulations: An

Analysis of Forum Choice, 27 Harv. Envtl. L. Rev. 105, 116

(2003). Reviewing a case in which the lower courts permitted

the petitioners to be convicted of serious crimes without

allowing a jury to consider evidence demonstrating that they

failed to comprehend the danger that brought their conduct

17

within the purview of the cnminal law will enable this Court

to provide meaningful and consistent guidance concerning the

essential need to ensure that cnminal sanctions are not

extended to individuals whose “mental state . . . makes their

actions entirely innocent” Staples, 511 U.S. at 614.

CONCLUSION

For these reasons, a wnt of certiorari should issue to

review the judgment and opinion of the Second Circuit.

Respectfully submitted,

JEREMY GUTMAN-

251 East 61° Street

New York, New York 10021

(212) 644-5200

Attorney of Record for

Petitioner Marvin Rubenstein

LAWRENCE GERZOG

251 East 61st Street

New York, New York 1002]

(212) 486-3003

Attorney of Record for

Petitioner Isaac Rubenstein

July 2005

No.

In The

Supreme Court of. the

United States

October Term, 2005

ine inc

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

APPENDIX

oS —E————————————— ee

St. Louis West, Inc.

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

Printed on Recycled Paper

(2983)

Appendix A — Decision of The United States

Court of Appeals for the Second Circuit,

Decided March 31, 2005 [Pages la — 16a]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2004

(Argued: December 6, 2004 Decided: March 31, 2005)

Docket No. 03-1721

UNITED STATES OF AMERICA,

Appellee,

MARVIN RUBENSTEIN, aka Jacob Rubenstein,

ISAAC RUBENSTEIN,

Defendants-Appellants.

Before:

”

CARDAMONE, JACOBS, and CABRANES,

Circuit Judges.

Marvin Rubenstein and Isaac Rubenstein appeal from

judgments of the United States District Court for the

Eastern District of New York (Block, J.) convicting them

after a jury trial of violating the work-practice standards

for asbestos set out in the Clean Air Act, and of conspiracy

todo so. On appeal, defendants challenge theirconvictions

on the ground that the jury charge allowed conviction

without a finding of wrongful intent, and challenge their

2a APPENDIX A

[Decision of The USCA For The Second Circuit]

sentences with respect to certain enhancements, of which

we consider the enhancement pursuant to Sentencing

Guideline Section 2Q1.2(b)(4) for failure to obtain a New

York State permit. We affirm the convictions and remand

to the district court with instructions to vacate the sen-

tences and to conduct resentencing consistent with this

opinion and United States v. Booker, 543 U.S.__, 125 S.

Ct. 738 (2005), and not inconsistent with United States v.

Crosby, 397 F.3d 103 (2d Cir. 2005).

Judge Cardamone concurs in the majority opinion and in

a separate concurring opinion.

JEREMY GUTMAN (Lawrence Herzog, on the

brief), New York, NY for defendants-appel-

lants.

ANDREW J. FRISCH, Assistant United States

Attorney for the Eastern District of New

York, Brooklyn, NY (Roslynn R. Mauskopf,

United States Attorney for the Eastern Dis-

trictof New York, DavidC. James, Assistant

United States Attorney for the Eastern Dis-

trict of New York, on the brief) forappellee.

DENNIS JACOBS, Circuit Judge:

Marvin Rubenstein and Isaac Rubenstein (collectively

“defendants”) appeal from judgments of the United States

District Court for the Eastern District of New York (Block,

J.), convicting them after a jury trial of violating the work-

practice standards for asbestos set outin the Clean Air Act,

APPENDIX A 3a

{Decision of The USCA For The Second Circuit]

see 42 U.S.C. § 7412 et seq., 40 C.F.R. § 61.145, 61.150,

and of conspiracy to do so. Defendants challenge their

convictions on the ground that the district court’s instruc-

tion that the jury could find that defendants knowingly

violated the Clean Air Act if they found that defendants

knew that the renovation involved asbestos erroneously

failed to require any finding of “wrongful intent.” Defen-

dants contend that they live in an insular religious commu-

nity of Hasidic Jews in which the dangers of asbestos are

not a matter of common knowledge or interest. The defen-

dants also challenge the imposition of certain sentencing

enhancements, including whether the sentences were

properly enhanced pursuant to Sentencing Guideline

Section 2Q1.2(b)(4) for failure to obtain a New York State

permit notwithstanding that the Clean Air Act itself

contains no such permit requirement. For reasons that

follow, we affirm the convictions, and remand to the

district court with instructions to vacate the sentences and

to conduct resentencing consistent with this opinion and

United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005), and not inconsistent with United States v. Crosby,

397 F.3d 103 (2d Cir. 2005).

I

“*Because defendants appeal their convictions after a

jury trial, our statement of the facts views the evidence in

the light most favorable to the government, crediting any

%»

inferences that the jury might have drawn in its favor.’

United States v. Monaco, 194 F.3d 381, 383-384 (2d Cir.

1999) (quoting United States v. Salameh, 152 F.3d 88, 107

n.1 (2d Cir. 1998) (per curiam)).

For over 30 years, the Rubenstein family owned a

commercial building at 2 Prince Street in Brooklyn, New

4a APPENDIX A

[Decision of The USCA For The Second Circuit]

York. As of 2000, the building was owned by Philrub

Realty Corporation, of which Marvin Rubenstein was

president. Among the building's commercial tenants was

a sweater factory owned by the Rubenstein family, Atlas

Knitting, Inc., which was run by Marvin Rubenstein and

his mother, Bella Rubenstein. Marvin's son, Isaac

Rubenstein, assisted his father in running Atlas Knitting

and in managing 2 Prince Street.

In April 2000, a real estate developer, Erik Ekstein,

expressed interest in acquiring 2 Prince Street. After

observing what he believed was asbestos on exposed pipes

at the property, Ekstein hired an environmental consultant

who inspected the property on May 1, 2000, and removed

samples from pipes. Isaac accompanied the consultant on

the inspection. At one point, Isaac offered to help in

removing one of the samples, but the consultant declined,

advising Isaac that the material contained asbestos.

Ekstein’s consultant testified that she used the word

“asbestos” approximately ten times during her conversa-

tions with Isaac that day.

In July 2000, Marvin and Ekstein executed a 49-year,

$50 million lease. Marvin orally agreed to remove the

asbestos as a condition of the lease.

In December 2000, Marvin hired men who he had previ-

ously employed at Atlas Knitting to remove all pipe

insulation at 2 Prince Street, including Jose Jimenez, his

brother Juan, and Carlos Perez. Marvin did not tell them

that the material was asbestos. Marvin directed the men to

remove the material with a knife or scissors and to put itin

boxes. Although Marvin and Bella Rubenstein were present

during this work, neither wore protective clothing.

APPENDIX A 5a

[Decision of The USCA For The Second Circuit]

From December 4 through 7, 2000, Ekstein’s contractors

performed demolition work at 2 Prince Street. The super-

vising contractor discovered dry asbestos in boxes (the top

flaps of which were “criss-crossed” rather than sealed),

and observed Marvin ordering his workers in Spantsh to

place the boxes ina garbage compacting truck. On Decem-

ber 5, Ekstein's contractor informed Marvin's workers that

they were removing asbestos and provided them with dust

masks.

On February 8, 2001, Ekstein told Marvin that the

asbestos could not be removed in the manner in which

Marvin directed. Marvin replied: “[DJon’t worry about it,

this is blown out of proportion, it is not that big a deal.”

Throughout that day, officials from the New York City

Department of Environmental Protection (“DEP”) visited

the premises. Marvin told them that he and Isaac had hired

men off the street to remove the insulation without know-

ing that it contained asbestos, that removal began earlier

that week, and that the insulation was boxed and taken to |

a warehouse. Isaac told the officials that the men were

hired off the street to remove asbestos, that removal work

had begun that day, and that no asbestos was transported

from the building. Although Isaac used the term “asbestos”

in his initial conversation with the first DEP official to

arrive at the property, Isaac later deried knowing the

nature of the insulation material. Photographs taken that

day showed exposed asbestos hanging from pipes and in

open boxes.

DEP's director of asbestos enforcement advised Marvin

and Isaac that the building was contaminated, that they

needed to hire acontractor to remove the asbestos, and that

no contractor could begin work without DEP approval.

Federal authorities were notified.

6a APPENDIX A

[Decision of The USCA For The Second Circuit]

On Friday, February 9, 2001, the DEP Commissioner

issued an order directing defendants to vacate the building,

to submit by the next day.a “scope of work” order for DEP

approval, and to remediate the asbestos contamination.

Also on February 9, 2001, FBI agents visited 2 Prince

Street and interviewed Marvin and Isaac separately. Both

Marvin and Isaac told the agents that they hired workers

off the street to perform asbestos removal and that they

directed the workers to box the removed material.

Despite the DEP’s explicit instructions, an asbestos

contractor toured the property on February II, 2001, and,

at Isaac's request, agreed to remove the asbestos that same

day for a $10,000 cash payment. Isaac informed the

contractor that he need not submit a “scope of work” order

to the DEP and that he should lock the door if the DEP

came around. While the contractor was preparing to

remove the asbestos, the DEP’s director of asbestos arrived

at the scene and discovered that preparations were under-

way to remove the asbestos. The next day, a different

asbestos contractor submitted and obtatned DEP approval

for a “scope of work” order and subsequently performed

the asbestos abatement to the satisfaction of DEP.

On June 27, 2001, Isaac (accompanied by counsel) met

with two federal agents and an Assistant United States

Attorney, and gave four varying accounts of the asbestos

removal. Isaac said that he had never heard the word

“asbestos” until his February 8, 2001 meeting with DEP

officials.

At trial, before summations, Judge Block rejected

defendants’ request that he charge that jury that:

The government must also prove beyond a reason-

able doubt that the defendants are “reasonable”

APPENDIX A

[Decision of The USCA For The Second Circuit)

such that they would also have known that asbes-

tos is regulated and that some form of liability

flows from violating regulations such as work-

practice standards.

Instead, Judge Block instructed the jury, pursuant to

United States v. Weintraub, 273 F.3d°139, 147 (2d Cir.

2001), that the government must prove only that defen-

dants knew that the substance removed was asbestos and

were aware of the manner in which it was removed.

\

On appeal, defendants argue that Judge Block's jury

instruction erroneously permitted the jury to convict

without finding that defendants were aware of asbestos

regulation. We review the district court's jury instruction

de novo, but will reverse only if the charge as a whole

caused prejudice. See United States v. Bok, 156 F.3d 157,

160 (2d Cir. 1998); United States v. Locascio, 6 F.3d 924,

939 (2d Cir. 1993).

A person ts criminally liable under the Clean Air Act if

he “knowingly violates any requirement or prohibition of

. section 7412 of this title.” 42 U.S.C. § 7413(c)(1L)

(emphasis added). The phrase “knowingly violates”

bespeaks “knowledge of facts and attendant circumstances

that comprise a violation of the statute, not specific

knowledge that one’s conduct is illegal.” Weintraub, 273

F.3d at 147; see also United States v. Buckley, 934 F.2d 84,

88 (6th Cir. 1991) (holding, in a case involving the Clean

Air Actasbestos work-practice standards, that “knowingly

violate[s}” does not require knowledge of the illegality of

one’s conduct). Under this standard, because “no one can

reasonably claim surprise that asbestos is regulated and

8a APPENDIX A

[Decision of The USCA For The Second Circuit]

that some form of liability is possible for violating those

regulations,” Weintraub, 273 F.3d at 151i, to sustain a

conviction for violation of asbestos work-practice stan-

dards, the government need only prove that a defendant

knew that the material being removed was asbestos.

Defendants seize upon the adverb “reasonably,” and

claim that they are not the “reasonable” people contem-

plated in Weintraub because they belong to an insular

religious community of Hasidic Jews in which asbestos is

not a subject of interest, and because they are not influ-

enced or educated by outside media by virtue of their

insulated lives. They contend therefore that it was never

proved that they appreciated the dangers of the material.

We are unconvinced. The defendants may be immersed

in a culture that does not concern itself with the environ-

mental hazards of asbestos, but that does not bear upon the

nature of the prohibition. The statute presupposes a

knowledge that asbestos is a regulated material, the way

other criminal statutes presuppose basic knowledge of the

physical world; and there is no basis for the defendant's

contention that this is a rebuttable presumption.

In any event, even if a good faith defense had been

available, the defendants would not have beenentitled to

it. The defendants are sufficiently worldly to own the

asbestos-contaminated real estate and to negotiate for its

removal as acondition of a $50 million lease. They were

also notified that asbestos was a regulated substance

prior to their attempts to remove it from their building.

Even after the defendants were directly confronted by

authorities, they did not conform their behavior to the

regulatory requirements. Instead, they lied about their

criminal activities and attempted to circumventthe law.

Their claim that they acted in good faith and were

APPENDIX A 9a

[Decision of The USCA For The Second Circuit]

ignorant of the attendant dangers of their conduct is

therefore without foundation. See United States v.

Workman, 80 F.3d 688, 702 (2d Cir. 1996) (concluding

that the District Court did not err in refusing to instruct

the jury on a defense for which there was no evidentiary

foundation). Accordingly, the district court properly

rejected defendants’ suggested charge and instructed the

jury pursuantto Weintraub.

Hil

Defendants challenge three sentencing enhancements

and allege that various aspects of their sentences violate

Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531

(2004), “aruling that Booker has now explicitly applied

to the Guidelines.” United States v. Williams, ___ F.3d

___, 2005 U.S. App. LEXIS 3198, at *6 (2d Cir. Feb. 23,

2005).

Ordinarily, post-Booker, we would remand for the

district court to consider whether the original sentence—

imposed pre-Booker on the then-valid mandate of the

Guidelines—would have been different tf the district judge

had appreciated his discretion to frame the sentence based

_on the fact that the Guidelines are advisory. See Crosby,

397 F.3d at 117-18. Here, however, we conclude that the

sentencing enhancements—one of which was made in

error—may have an appreciable influence even under the

discretionary sentencing regime that will govern the

resentencing, and under which the Guidelines sentence will

be a benchmark or a point of reference or departure. See id.

Our decision of these Guidelines issues obviates any future

challenge to the reasonableness of adiscretionary sentence

on the ground that it was made under the influence of these

10a APPENDIX A

[Decision of The USCA For The Second Circuit]

enhancementrulings.' This Guidelines analysis does not,

however, foreclose future reasonableness review of

defendants” sentence on other grounds (including those

enumerated in 18 U.S.C. § 3553), and we express no

opinion as to whether an incorrectly calculated Guidelines

sentence could nonetheless be reasonable. And because the

Guidelines error non-trivially affected the Guidelines

sentence imposed as a mandate, vacatur of the sentence ts

necessary without reference to Blakely or Booker or the

principles of resentencing set out in.Crosby.

This Court reviews the district court’s interpretation of

the Sentencing Guidelines de novo, see United States y.

Adler, 52 F.3d 20, 21 (2d Cir. 1995) (per curiam), reviews

the district court’s findings of fact for clear error, see 18

U.S.C. § 3742(e); United States v. Jones, 30 F.3d 276, 286

(2d Cir. 1994); United States v. Cousineau, 929 F.2d 64, 67

(2d Cir. 1991), and gives due deference to the district

court's application of the Guidelines to the facts, see 18

U.S.C. § 3742(e).

First, defendants challenge the sentence enhancement

made under Sentencing Guideline Section 3BI.1, on the

ground that the evidence was insufficient to establish that

either defendant acted as a leader or supervisor, or that the

criminal activity was “otherwise extensive.” Three factors

determine whether an activity is “otherwise extensive”:

“(i) the number of knowing participants; (11) the number of

Although we review the district court's Guidelines determination in this

case, we do nol suggest that every panel of this Court confronted with post-

Booker sentencing issues must first decide the district court's Guidelines

determination prior to remanding for resentencing consistent with Booker

and Crosby. See United States v. Hughes, 396 F.3d 374, 381 n.9 (4th Cir.

2005). We likewise do not suggest that cases such.as this (where there is

a Guidelines error) present the only circumstances in which pre-remand

Guidelines analysis is warranted.

APPENDIX A lla

* [Decision of The USCA For The Second Circuit}

unknowing participants whose activities were organized or

led by the defendant with specific criminal intent; [and]

(iii) the extent to which the services of the unknowing

participants were peculiar and necessary to the criminal

scheme.” United States v. Carrozzella, 105 F.3d 796, 803-

04 (2d Cir. 1997) abrogated in part on other grounds,

United States v. Kennedy, 233 F.3d 157, 160-61 (2d Cir.

2000). Here, as the district court found, there were at least

two knowing participants—Marvinand Isaac—andas many

as seven participants who were unknowing, including the

three named workers and another four day laborers (includ-

ing two men Isaac admitted hiring “off the street”). The

labor of these persons was clearly necessary to the viola-

tion. Under the direction of Marvin (as president of the

corporate entity that owned 2 Prince Street), the men

worked without protective clothing to: cut asbestos off the

pipes, place it in unsealed containers and load the boxes

into acompactor truck.

These facts support the district court’s determination

that Marvin was the leader of the criminal activity. As to

Isaac, there is sufficient evidence to support the finding

that Isaac exercised a “supervisory role”: the building's

new tenant testified that Isaac acted as Marvin’s “right-

hand man”; Isaac accompanied a private environmental

consultant through the property; and Isaac spoke with DEP ~

officials to account for the asbestos removal. Sentencing

Guideline Section 3B1.1 was applicable to both defen-

dants.

Second, defendants object to the six-level enhancement

pursuant to Sentencing Guideline Section 2Q1.2(b)(1)(A)

for “ongoing, continuous, or repetitive” discharge of

asbestos. We agree with the district court that the illegal

asbestos removal at 2 Prince Street was repetitive. It

I2a APPENDIX A

[Decision of The USCA For The Second Circuit]

occurred during two separate one-week periods—first in

December 2000, and again in February 200!—on multiple

floors of the building. There was sufficient evidence of this

conduct to support the six-level enhancement.

Finally, defendants challenge the four-level enhance-

ment for permitless transportation of a hazardous or toxic

substance pursuant to Sentencing Guideline Section

2Q1.2(b)(4). Section 2Q1.2 applies if “the offense in-

volved transportation, treatment, storage, or disposal” of

a hazardous or toxic substance “without a permit or in

violation of a permit.” U.S.S.G. § 2Q1.2(b)(4). Inimposing

this enhancement, the district court cited defendants’

violation of two state regulations requiring a transporter of

asbestos to have a permit and to inform landfill operators

of his intent to dispose of asbestos: 6 N.Y.C.R.R. § 360-

1.7(a)(1) (*[NJo person shall . . . construct or operate a

solid waste management facility, or any phase of it, except

in accordance with a valid permit issued pursuant to this

Part... .”); and 360-2.17(p)(1) (“The transporter, having

a permit pursuant to Part 364 of this Title must first inform

the landfill operator of his intent to dispose of asbestos

waste, the volume of the waste, and the anticipated date the

shipment will arrive at the landfill.”).

Defendants argue that the New York permitting require-

ments are inapplicable because there is no evidence that

the. defendants were involved in the construction or

operation of a waste management facility or that they

transported asbestos to a landfill. As the government

indicates, this argument was not raised in the district court,

‘so the government had no opportunity to enhance the

record in this regard. In any event, the enhancement is

inapplicable because the Clean Air Act offense committed

by the defendants did not “involve” the violation of

APPENDIX A I3a

[Decision of The USCA For The Second Circuit]

the New York State permit regulations. U.S.S.G.

§ 2Q1.2(b)(4).

This is a matter of first impression in this Circuit, but the

Third Circuit decided the same issue in United States v.

Chau, 293 F.3d 96 (3d Cir. 2002). Chau, like the

Rubensteins, was charged with violating the Clean Air Act.

The Third Circuit ruled that Section 2Q1.2(b)(4)'s four-

level enhancement is inapplicable unless the offense

charged “involve[d]” a permit violation; consulted the

dictionary definition of “involve” (“ ‘to relate to closely:

[to] connect’ and ‘to have within or as part of itself: [to]

include,’ ”’); concluded that the city permit involved in

Chau’s offense was not “integral” to his Clean Air Act

violation; and held that “[bJecause the Clean Air Act does

not contemplate a permit violation as a basis of enforce-

ment, the Section 2Q1L.2(b)(4) enhancement is not avail-

able.” Jd. at 102 (citations omitted).

The government argues that the Third Circuit errone-

ously adds to Section 2Q1.2(6)(4) a requirement that the

permit be part of the federal enforcement regime and thus

“ignore[s] the tnter-relationship between federal, state and

local environmental agencies in New York and elsewhere.”

We disagree. The wording of Section 2Q1.2 requires that

the “offense involvef ]” activity in violation of a permit.

The Clean Air Act—in contrast to several other federal

environmental statutes that contain an express federal

permit requirement’ or delegate the permitting function to

See, e.g.,43 U.S.C. § 1350(c) (imposing criminal liability for violating

a permit issued under chapter governing submerged lands near continental

shelf); 7 U.S.C. § 136j (making it unlawful to exceed the “experimental use

permit” issued by the EPA for a pesticide).

14a APPENDIX A

[Decision of The USCA For The Second Circuit]

the states‘—expressly does not require a permit for the

disposal of asbestos. See 40 C.F.R. § 70.3(b)(4) (exempt-

ing asbestos from a permit requirement); see also 57 Fed.

Reg. 32250, 32263 (1992) (“The burden imposed by

requiring permits for asbestos demolition and renovation

sources is unnecessary because it would provide few

additional environmental or enforcement benefits.”). The

Rubensteins’ offense—violation of the Clean Air Act—

therefore did not “involve” a permit violation. The district

court erred by considering state permitting requirements—

that are arguably inapplicable to defendants—in imposing

this enhancement.

Having undertaken review of the guidelines question,

which is significant and which can have ramifications in

other cases, and having decided that the guidelines applica-

tion was erroneous, we vacate the sentences because we

think that the influence of this error is likely to be so

pronounced that it could cause resentencing after remand

to be unreasonable.

Conclusion

For the foregoing reasons, we affirm defendants’ convic-

tions and remand to the district court with instructions to

vacate defendants’ sentences, and conduct resentencing

consistent with this opinion and United States v. Booker,

543 U.S. _, 125 S. Ct. 738 (2005), and not inconsistent

with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

See 33 U.S.C. § 1319(c)(1) & (2) (prohibiting negligent and knowing

violation of any effluent limitation or condition of a pollutant discharge

permit issued pursuant to 33 U.S.C. § 1342, which creates a permitting

scheme administered by the EPA or the states if approved by the EPA).

APPENDIX A ae

[Decision of The USCA For The Second Circuit

CARDAMONE, Circuit Judge, Concurring:

[ agree with the result and reasoning in this case, with

one possible exception stated below. I write separately

because I believe itimportant to highlight the fact that our

decision to vacate the sentence in this case should not be

taken as precedent automatically to vacate all incorrectly

calculated Guidelines sentences in the future.

In the wake of United States v. Booker, _ __U.S.___, 125

S. Ct. 738 (2005), we remand sentences imposed under the

prior mandatory Guidelines regime to allow the district

court to consider whether, in light of its newly minted

discretion to impose a non-Guidelines sentence, it wishes

to resentence, thus curing the Sixth Amendment violation

identified in Booker. See United States v. Crosby, 397 F.3d

103, [17-18 (2d Cir. 2005). As we state in our opinion, we

exercise discretion in these transitional cases to consider

the propriety of the district court’s original Guidelines

calculation before remanding, and, in circumstances such

as those here, to vacate an erroneous Guidelines sentence.

Of course, since Booker requires all sentences from this

point forward to be reviewed for “reasonableness,” 125 S.

Ct. at 765, our decision to vacate an erroneous Guidelines

sentence does not mean that if the district court, on re-

mand, imposes a correct Guidelines sentence, we would

necessarily find that sentence reasonable upon subsequent

review. Correct application of the Guidelines is but one

factor to be considered under 18 U.S.C. § 3553 in review-

ing reasonableness, see Booker, 125 S. Ct. at 766 (stating

that the factors in 18 U.S.C. § 3553 “will guide appellate

courts. . . in determining whether a.sentence is unreason-

able”), and itis entirely possible that acorrectly calculated

Guidelines sentence might nonetheless be found unreason-

able upon consideration of other factors.

16a APPENDIX A

[Decision of The USCA For The Second Circuit]

By the same token, an incorrectly calculated Guidelines

sentence might nonetheless be reasonable. [ thus think it

necessary to clarify our statement that “because the

Guidelines error non-trivially affected the Guidelines

sentence imposed as a mandate, vacatur of the sentence is

necessary without reference to Blakely[{ v. Washington, __

U.S.__, 124 S. Ct. 253 | (2004)] or Booker or the princi-

ples of re-sentencing set out in Crosby.” Majority op.

supra (emphasis added). I do not agree with the majority

that vacatur is “necessary” rather than discretionary, and

I likewise do not agree that our decision to vacate is

unrelated to our obligations under Booker and Crosby;

indeed, we go on (correctly) to state that we vacate

“because we think [the error is] so pronounced that it could

cause a resentencing after remand to be unreasonable.”

Majority op. supra (emphasis added).

In any event, we confine our statement regarding vacatur

to pre-Booker sentences imposed as a mandate. We will

soon be faced with a growing number of post-Booker

sentences, including those that return to us after a Crosby

remand. Those sentences will be reviewed for reasonable-

ness, and because an incorrectly calculated Guidelines

sentence might nonetheless be reasonable, vacatur of a

sentence based on Guidelines errors would not automati-

cally be warranted.

17a

Appendix B—Order of the United States Court

of Appeals, Denying Petition for Rehearing,

Dated April 26, 2005 [Pages 17a — 18a]

UNITED STATE COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S. COURT HOUSE

40 FOLEY SQUARE

NEW_YORK, 10007

Roseann B. MacKechnie

CLERK

Date: 4/26/05

Docket Number: 03-1721-cr

Short Title: USA v. Rubenstein

DC Docket Number: 02-cr-415

DC: EDNY (BROOKLYN)

DC Judge: Honorable Frederic Block

At a_ stated Term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in the City

of New York, on the 28” Dated of April two thousand five.

Present:

Hon. RICHARD J. CARDAMONE,

Hon. DENNIS JACOBS,

Hon. JOSE A. CABRANES,

CIRCUIT JUDGES,

USA v. RUBENSTEIN Docket No.: 03-1721

18a | APPENDIX A

[Decision of The USCA For The Second Circuit]

A petition for panel rehearing having been filed herein

by Appellants Marvin Rubenstein and Isaac Rubenstein,

Upon consideration thereof, it ts

Ordered that said petition be and it hereby is

DENIED.

For the Court,

Roseann B. MacKechnie, Clerk

By:

Motion Staff Attomey