U.S. v. Liebman
| Citation | 40 F.3d 544 |
| Decision Date | 10 November 1994 |
| Docket Number | D,No. 776,776 |
| Parties | , 25 Envtl. L. Rep. 20,591 UNITED STATES of America, Appellee, v. David LIEBMAN, Defendant-Appellant. ocket 93-1511. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Hubert J. Santos, Hartford, CT (Hope C. Seeley, Santos, Peck & Smith, P.C., of counsel), for defendant-appellant.
Sharon E. Jaffe, Asst. U.S. Atty., D. Conn., New Haven, CT (Christopher F. Droney, U.S. Atty., D.Conn. and Andrew E. Lauterback, Sp. Asst. U.S. Atty., of counsel), for appellee.
Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Judge. *
Defendant-appellant David Liebman appeals from a judgment entered July 13, 1993 in the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, that sentenced him principally to ten months imprisonment and a $3,000.00 fine. Liebman had previously pled guilty to an information charging failure "to notify immediately the appropriate agency of the United States Government" of a release of asbestos, a hazardous substance, in violation of 42 U.S.C. Sec. 9603(b).
On appeal, Liebman challenges the district court's upward adjustments of his base offense level pursuant to USSG Sec. 3B1.1(b) for Liebman's supervisory role in criminal activity that involved five or more participants or was otherwise extensive, and pursuant to id. Sec. 2Q1.2(b)(1)(A) because the offense resulted in an ongoing and repetitive discharge of a hazardous or toxic substance. For the reasons that follow, we vacate Liebman's sentence and remand for resentencing.
David Liebman and his family were owners of a company that entered into an agreement for the sale of its mill in Rockville, Connecticut. After an environmental assessment of the mill revealed the presence of asbestos, Louis Lavitt, who had brokered the agreement, solicited bids from asbestos removal contractors for its removal. Most of the asbestos was located in or around the boiler room, where two large boilers and connected pipes were insulated with asbestos. On behalf of the Liebman family, Lavitt engaged William and Thomas Janiak, local salvagers, to remove the boilers. David Liebman maintains, however, that he believed that the removal of the boilers would not entail the removal of asbestos, and that should the need arise for asbestos removal, the Janiaks would obtain the necessary permits or certification.
The Janiaks, along with two teenage boys and a man in his twenties, removed the boilers over a period of six weeks in the summer of 1989. During the first three weeks, Lavitt paid the workers with money obtained from the Liebman family. During the second three weeks, however, Lavitt was no longer present because of a dispute with the Liebmans regarding skimming from the payments, and David Liebman paid the workers directly.
During and after the removal, the workers placed the asbestos into plastic bags and ultimately transported the bags in a rented truck to a gravel pit in the woods. The Janiaks were not licensed for asbestos removal, and the bags and dump site did not conform to regulatory standards. While there remains some dispute as to how much of the asbestos found in the gravel pit actually came from the Liebmans' mill (the government contends that over three tons belonged to the Liebmans), Liebman admits that three truckloads of bags were from his mill.
After the asbestos was traced back to the Liebman mill, David Liebman entered a guilty plea for failing to notify the appropriate federal agency of the release in violation of 42 U.S.C. Sec. 9603(b). At the sentencing hearing, nonetheless, Liebman continued to maintain that he had been unaware that removal of the boilers would involve asbestos removal, at least at the time that Lavitt engaged the Janiaks and while Lavitt remained at the mill. He did concede, however, that he eventually became aware of the asbestos removal, yet failed to stop the Janiaks' work or to inform the appropriate agency of the release.
The district court made findings of fact and calculated Liebman's guidelines range at that hearing. Beginning with a base offense level of eight pursuant to USSG Sec. 2Q1.2(a), the court determined that the offense resulted in an ongoing and repetitive discharge of toxic material, requiring an upward adjustment of six levels under Sec. 2Q1.2(b)(1)(A). The court then found that Liebman was a supervisor of the criminal activity conducted by the removal team, rejecting the government's argument, as well as the recommendation in Liebman's presentence report, that he should be deemed an organizer of that activity. The court concluded that Liebman was not aware initially that removal of the boilers would involve the removal of asbestos, but opined that after Lavitt's departure, Liebman "had to know that something highly improper was going on and he should have stopped it." Therefore, under USSG Sec. 3B1.1, an upward adjustment of either two or three levels was required, depending upon the number of people that Liebman supervised or the extent of the supervised activity.
The court determined that subsection (b) applied because the criminal activity involved five or more participants or was otherwise extensive, and added three levels. Finally, the court subtracted three levels for acceptance of responsibility and departed downward two levels in response to a variety of family considerations urged by Liebman. This calculation resulted in a total offense level of 12, which, in conjunction with Criminal History Category I, produced a guidelines range of 10-16 months. The court then sentenced Liebman to ten months imprisonment, the minimum of that range, to be followed by a one-year term of supervised release, and imposed a fine of $3,000 and a mandatory special assessment of $50.
This appeal followed. Liebman is at liberty during the pendency of the appeal.
In reviewing the sentence imposed by the district court, we review the court's legal determinations de novo and accept the court's factual determinations unless they are clearly erroneous. United States v. Echevarria, 33 F.3d 175, 178 (2d Cir.1994); see also United States v. Ferrin, 994 F.2d 658, 662 (9th Cir.1993) (); United States v. Farah, 991 F.2d 1065, 1068 (2d Cir.1993) (). We are mindful that disputed sentencing factors need only be proved by a preponderance of the evidence. Echevarria, 33 F.3d at 178.
Liebman contends that the record contains insufficient evidence to support the district court's finding under USSG Sec. 3B1.1 that he was a supervisor or manager. He further argues that because the court failed to make a specific finding under subsection (b) as to whether the criminal activity involved five or more people or was otherwise extensive, it was improper to increase his base level by three levels pursuant to subsection (b), rather than two levels pursuant to subsection (c), of Sec. 3B1.1.
Section 3B1.1, entitled "Aggravating Role," provides:
Based on the defendant's role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
The district court's finding that Liebman was a supervisor of a criminal activity is supported by the record. As several courts have noted, a manager or supervisor is one who "exercise[s] some degree of control over others involved in the commission of the offense." United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990); see also United States v. Cantero, 995 F.2d 1407, 1414 (7th Cir.1993) (same); USSG 3B1.1, comment. (n.2) ("To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants."). Liebman does not contest that after Lavitt left the mill, Liebman was responsible for overseeing the removal of the boilers. He paid the workers' salaries and admits that he had the authority and obligation to stop their work and notify the appropriate authorities of the release of asbestos.
Nevertheless, Liebman argues that: "Just because the Defendant knew what was going on and had an obligation to stop it does not establish that his contribution to the criminal activity was greater than any of the other participants or that he 'supervised' other participants by exercising some degree of control over them." Insofar as Liebman argues that he did not mastermind the illegal activity from the outset, the district court agreed with him and found that he was not an organizer or leader subject to a four-level enhancement pursuant to subsection (a) of Sec. 3B1.1. Cf. United States v. Parker, 903 F.2d 91, 104 (2d Cir.) (defendant who planned details of robbery, recruited accomplices, assigned their roles, and controlled distribution of proceeds properly found to be an organizer), cert. denied, 498 U.S. 872, 874, 111 S.Ct. 196, 201, 112 L.Ed.2d 158, 162 (1990).
It is also clear, however, that Liebman exercised control over the workers; they worked for him, he paid them, and he could have prohibited their illegal activity. Liebman contends that prior cases in which we upheld a finding of supervisor or manager status involved more extensive activity than his. In Farah, for example, the defendant "oversaw every phase of the operations." 991 F.2d at 1069. We concluded in that case, however, that the defendant's activity...
To continue reading
Request your trial
-
U.S. v Diaz, 96-1011
...affecting substantial rights.'" United States v. Margiotti, 85 F.3d 100, 104 (2d Cir. 1996) (per curiam) (quoting United States v. Liebman, 40 F.3d 544, 551(2d Cir. 1994)). In order to preserve an issue for appeal, a defendant must either "object to the presentence report or . . . raise the......
-
U.S. v. Overholt, No. 00-5074.
...The court concluded that the section applies only when the environment is contaminated. Id. at 663. But see United States v. Liebman, 40 F.3d 544, 550-51 (2d Cir.1994) (proof of actual contamination of the environment is not necessary); United States v. Goldfaden, 959 F.2d 1324, 1331 (5th C......
-
U.S. v. Diaz, J-1
...affecting substantial rights.' " United States v. Margiotti, 85 F.3d 100, 104 (2d Cir.1996) (per curiam) (quoting United States v. Liebman, 40 F.3d 544, 551(2d Cir.1994)). In order to preserve an issue for appeal, a defendant must either "object to the presentence report or ... raise the ob......
-
U.S. v. Atlantic States Cast Iron Pipe Co., Criminal No. 03-852 (MLC).
...but allows for upward or downward departures depending on the potency, size, or duration of the contamination;") United States v. Liebman, 40 F.3d 544, 550-51 (2d Cir.1994) ("[Note 4 analogue] states the obvious—that when a hazardous or toxic substance is discharged into the environment, it......
-
EPA enforcement
...apply, e.g., § 3B1.1(a), an upward adjustment of 4 for organizing ive or more participants in an ofense. See United States v. Liebman , 40 F.3d 544, 25 ELR 20591 (2d Cir. 1994). he base level for a knowing endangerment is 24, § 2Q1.1, with no speciic ofense characteristics. In the normal ca......
-
Table of authorities
...United States v. LaSalle Nat’l Bank, 437 U.S. 298 (1978) ......................................... 629 United States v. Liebman, 40 F.3d 544, 25 ELR 20591 (2d Cir. 1994) ...................... 747 United States v. Little Rock Sewerage Comm’n, 460 F. Supp. 6 (E.D. Ark. 1977) ....... 657 Unit......