704 F.3d 800 (9th Cir. 2013), 11-50234, United States v. Yi

Docket Nº:11-50234.
Citation:704 F.3d 800
Opinion Judge:GOODWIN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles YI, AKA Jang Ho Yi, Defendant-Appellant.
Attorney:Marilyn Bednarski, Kaye, McLane & Bednarski LLP, Pasadena, CA, for Defendant-Appellant. John E. Arbab, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for Plaintiff-Appellee.
Judge Panel:Before: ALFRED T. GOODWIN and DIARMUID F. O'SCANNLAIN, Circuit Judges, and JACK ZOUHARY, District Judge.[*]
Case Date:January 02, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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704 F.3d 800 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles YI, AKA Jang Ho Yi, Defendant-Appellant.

No. 11-50234.

United States Court of Appeals, Ninth Circuit.

January 2, 2013

Argued and Submitted Nov. 6, 2012.

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[Copyrighted Material Omitted]

Page 802

Marilyn Bednarski, Kaye, McLane & Bednarski LLP, Pasadena, CA, for Defendant-Appellant.

John E. Arbab, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. D.C. No. 2:10-cr-00793-PA-1.

Before: ALFRED T. GOODWIN and DIARMUID F. O'SCANNLAIN, Circuit Judges, and JACK ZOUHARY, District Judge.[*]

OPINION

GOODWIN, Circuit Judge:

Charles Yi appeals his conviction and sentence, assigning error to a jury instruction, and to his custodial sentence for conspiracy to violate the Clean Air Act. The judgment is affirmed.

I. FACTS

Yi was the CEO of Millennium Pacific Icon Group, a real estate development company. In April 2004, Millennium purchased Forest Glen, a 204-unit condominium complex, after Yi and some of his

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Millennium associates did a walk-through of the property.

Joseph Yoon, Millennium's Forest Glen project manager, testified that Yi commented during the walk-through that he was certain the ceilings contained asbestos because of the age of the building. Yi's sister, Sheri Yi Hill, was also present at the walk-through. Hill testified that she discussed the ceilings with Yi and the two decided not to touch the ceilings because they assumed the ceilings contained asbestos, which would be costly to remove.

Yi signed a purchase offer for Forest Glen that included a due diligence clause allowing time to review environmental materials and to conduct an environmental review. The seller provided a due diligence binder that included two Phase I environmental reports and an " Operations and Maintenance Plan for Asbestos-Containing Materials" (" The O & M Plan" ). The reports contained test results showing the presence of asbestos in the ceilings. The O & M Plan incorporated the test results and stated that it was developed to minimize exposure to the release of asbestos fibers. Yoon testified that he presented the due diligence binder to Yi and identified its contents. Yoon also testified that Yi asked another employee to assess the diligence materials with respect to the building's physical condition, including the environmental aspects. The employee prepared a handwritten summary. Yoon testified that he typed the summary into a one-page document and handed it to Yi.

According to Yoon, Yi subsequently instructed him to secure a bid for removing the asbestos from the Forest Glen ceilings. Yoon contacted Sky Blue Environmental in June 2004, and ultimately received a $437,000 proposal for asbestos abatement. Yoon testified that Yi indicated he would not pursue the abatement because he felt it was unnecessary for selling the units. Yoon also testified that Yi rejected a later bid to install drywall over the ceilings, which would have cost anywhere from $1,800 to $2,800 per unit. Millennium employee Timothy Yu testified that Yi said asbestos abatement would be too expensive.

After Millennium purchased Forest Glen, an agent for Millennium's insurance carrier visited the property, observed ceiling material on the ground, and took a sample to test for asbestos. The agent later emailed Millennium employee Andrew Lavaux, stating that the test showed 1% asbestos. Yi testified that he was told the sample came back " negative," but Lavaux testified that he never told Yi the sample was asbestos-free. Lavaux also testified that he never heard anyone else tell Yi that the sample was asbestos-free.

In September 2005, unit sales at Forest Glen began to slow and evidence showed Yi became concerned about the slowdown in November 2005. Yoon testified that Yi instructed him to draw up a contract to have the condominium ceilings scraped and refinished, and on January 16, 2006, Millennium contracted to have the ceilings scraped. The agreed-upon price broke down to $1,500 per unit for the first ten— less per unit than either the previously rejected bid for asbestos abatement or for installing drywall over the ceilings. The contractor, Rudys Palacios, testified that no one informed him that the ceilings contained asbestos. Palacios hired four or five men to do the scraping. They wore no special clothing to protect against asbestos exposure and only " white masks." He also stated that powdery ceiling material was simply placed into bags and wheelbarrows before being thrown into dumpsters.

A state inspector, Larry Israel, testified that the work site was one of the worst he had ever seen and that ceiling material

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was blowing everywhere: public walkways, sidewalks, driveways, and around the...

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