# Petition for Writ of Certiorari — Rubenstein v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 876

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0046%3A1. Public record. Not legal advice.