Salvagno v. Williams

Decision Date04 January 2019
Docket NumberNo. 3:17-cv-2059 (MPS),3:17-cv-2059 (MPS)
CourtU.S. District Court — District of Connecticut
PartiesALEX SALVAGNO Petitioner, v. D.K. WILLIAMS, WARDEN Respondent.
RULING ON MOTION TO DISMISS

Alex Salvagno ("Salvagno") is an inmate confined at Federal Correctional Institution ("FCI") Danbury. He filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241 against D.K. Williams ("Williams"), the warden at FCI Danbury, to challenge the twenty-five year sentence imposed after he was found guilty of racketeering conspiracy, violating and conspiring to violate the Clean Air Act ("CAA") and Toxic Substances Control Act ("TSCA"), and filing false personal income tax returns. Salvagno argues that his sentence violates due process because the sentencing court relied on information that years later turned out to be materially untrue, and that this Court should hear his claim - brought after several earlier challenges to his conviction and sentence failed - because he is actually innocent of the conduct that formed the basis of a substantial sentencing enhancement imposed on him under the United States Sentencing Guidelines. (ECF No. 1 at 6; ECF No. 1-1 at 2-31.)

On January 16, 2018, the Court ordered Williams to show why it should not grant the relief sought by Salvagno. (ECF No. 3.) Williams now moves to dismiss Salvagno's petition under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (ECF No. 7-1 at 5-13.) For the reasons discussed below, the Court GRANTS Williams' motion to dismiss and DISMISSES Salvagno's petition.

BACKGROUND

The following facts are drawn from Salvagno's petition, Williams' motion to dismiss, and where applicable, court documents in the underlying criminal case against Salvagno.1

I. The Trial

Salvagno was the President and principal owner of AAR Contractor, Inc. ("AAR"), an asbestos abatement company operating in New York. (ECF No. 112 at ¶¶ 1, 9, 02-cr-00051-LEK (N.D.N.Y.).)2 On January 15, 2003, Salvagno, AAR, and other defendants were indicted in the Northern District of New York on charges of racketeering conspiracy, conspiracy to violate the CAA and TSCA, multiple violations of the CAA, and three counts of filing false personal income tax returns. (ECF No. 7-1 at 2; see ECF No. 112, 02-cr-00051-LEK (N.D.N.Y.).) In short, the Indictment alleged that AAR, with Salvagno at its helm, had performed dry removals of asbestos without appropriate precautions or safety gear at dozens of sites and then falsified air monitoring tests to show that the work was lawfully done. (See generally ECF No. 112, 02-cr-00051-LEK (N.D.N.Y.).) Following a four-month trial, the jury found Salvagno guilty on all charges on March 30, 2004. (ECF No. 7-1 at 2.)

II. The Sentencing Hearing

Following the guilty verdict, the judge held an eleven-day sentencing hearing, taking testimony from fact and expert witnesses called by both parties. Among the many contested issues, Salvagno and the government hotly disputed the applicability of U.S.S.G. § 2Q1.2(b)(2), which provides for a sentencing enhancement of nine levels if the offense "resulted in a substantial likelihood of death or serious bodily injury." Federal Sentencing Guidelines Manual § 2Q1.2(b)(2) (2000). (See ECF Nos. 394, 395, 02-cr-00051-LEK (N.D.N.Y.).)3

The Government's primary expert witness concerning the applicability of § 2Q1.2(b)(2) was Dr. Stephen M. Levin, an expert in asbestos exposure.4 Dr. Levin testified that he reviewed the indictment, trial testimony, and numerous affidavits, and spoke with three former AAR workers to gain familiarity with the facts on which to base his opinions. (See also ECF No. 1117, Oct. 27, 2004 Hrg. at Tr. 15-17 (the "Oct. 27, 2004 Hrg."), 02-cr-00051-LEK No. 394 (N.D.N.Y.).) Based on his review, Dr. Levin opined that he believed that there was a substantial likelihood of death or serious bodily injury as defined in § 2Q1.2(b)(2), because "there is very significant likelihood that individuals will contract cancer, which I consider a grave threat to human health, as well as severe and impairing asbestosis as a consequence of the exposures that have been described to me . . . ." (Id. Tr. 62:19-24.) In particular, Dr. Levin estimated that a core group of 100 employees who had worked for AAR for 4 years or more without respiratory protection were exposed to asbestos in the range of 160 "fiber-years." (Id. Tr. 63:19-23.) As Dr.Levin explained, a fiber-year is the average number of asbestos fibers per cubic centimeter multiplied by the number of years a person is exposed to that average concentration. (See id. Tr. 30:9-13 ("[F]iber years really means being exposed to a certain concentration of asbestos in the air for a certain period of time because it's accumulated exposure that determines the risk of disease, not just the exposure at any one time.").)

Dr. Levin testified that his estimate of a 160 fiber-year concentration was based on his review of the trial transcript, affidavits, and his discussions with AAR workers. (See, e.g., id. Tr. 56:22 -57:7.) In particular, Dr. Levin testified that at AAR, "for the most part the removal of asbestos was done under dry conditions, as opposed to wet, which would suppress dust and that the removal was carried out at a very rapid pace which resulted in almost constant presence of visible dust in the air, at times described as so heavy as it looked like a snowstorm or a blizzard, and this was a recurrent thing depending on the pace of the work." (Id. Tr. 55:3-10.) He similarly testified that, based on one former employee's description, AAR's removal of asbestos from pipe fittings and elbows led to the "constant presence of visible dust" in the air, due in part to the lack of ventilation:

[The individual] would use a knife, a hammer, anything to pound the material in dry fashion to remove it from the surface that it was adhering to, creating dust in his breathing zone that was very visible and the same individual described frequently performing these operations in enclosed areas where the door would be locked, no ventilation would be present and where there was the constant presence of visible dust that could be seen in the air. Even under relatively low lighting one would see the mist of drifting asbestos fiber flinting in the air across the light source.

(Id. Tr. 57:16-25.)5 Comparing this information to published measurements regarding the air concentrations attending particular abatement activities of the type that AAR's employees engagedin (e.g. "dry rip[ping]" and sweeping and bagging of asbestos debris), Dr. Levin constructed a "range of likely fiber concentrations that would have been present had real measurements been taken during the time that these operations were carried out in this case" and adopted the lowest estimate in the range of 160 asbestos fibers per cubic centimeter. (Id. Tr. 58:1-59:8; Tr. 63:3-8.).6 Dr. Levin then estimated that the 100 workers in the "core group" were exposed to that air concentration 25% of the time (despite evidence suggesting a greater percentage),7 resulting in a total average exposure of 40 fibers per cubic centimeter, which he characterized as a "really conservative estimate of their real exposure." (Oct. 27, 2004 Hrg. Tr. 63:8-23.) Multiplying this figure by the four years worked by these 100 employees, Dr. Levin concluded that the average asbestos exposure for each was 160 fiber-years. (Id. Tr. 63:19-23.)

To calculate how many of the workers would likely suffer injury at this exposure level, Dr. Levin applied the "OSHA risk assessment model," which "was based on the observation of many working populations, and their disease and death experience." (Id. Tr. 63:23-64:3.) Based on that risk assessment model, Dr. Levin concluded that among the group of 100 core AAR workers, he anticipated 20 cases of asbestos-related cancers and 9 of severe and impairing asbestosis. (Id. Tr. 64:3-7.) He also noted that AAR employees who worked for less than four years (and thus were excluded from the group of 100) were also at a substantial risk of contracting these same diseases, though in smaller numbers due to their shorter exposure period. (Id. Tr. 64:8-15.)

Dr. Levin further testified that he would be "surprised" if none of the 100 workers developed asbestos-related illness after 15 years or more. (Id. Tr. 70:19-71:7 ("I would expect a great majority of workers, if we looked at their X-rays 20 years down the road, we are going to see a clear area of asbestos-related scarring on their films. . . . [I]f we look only at that group of hundred workers who worked without respiratory protection for over four years, I would be very surprised to find a single X-ray that looked normal if we followed them 20 years."); see also id. Tr. 66:24-67:4 (same for workers who worked longer than 4 years with AAR).) In sum, Dr. Levin supported his conclusion that Salvagno's conduct had caused substantial likelihood of death or serious bodily injury as defined in § 2Q1.2(b)(2) with a risk assessment model that estimated that 29 of the 100 longest-exposed AAR workers would contract cancer or asbestosis over a 15- to 20-year time frame, based on an estimated average fiber count for these workers of 160 fiber-years. (See ECF No. 1-1 at 15.)

On cross-examination, Dr. Levin acknowledged that if his estimate of 160 fiber-years was incorrect, it would affect the number of individuals he anticipated would suffer serious illness. (ECF No. 1118, November 3, 2004 Hearing Tr. 62:7-13 (the "Nov. 3, 2004 Hrg."), 02-cr-00051-LEK No. 394 (N.D.N.Y.).) Nonetheless, Dr. Levin stated that while there was some uncertainty in the precise number of individuals that would be affected, he was "entirely comfortable" in saying that serious disease would result from the exposure levels described to him:

Q Okay. Now, you would agree, wouldn't you, that if the 160 number that you started with is wrong, your analysis would have a problem, right?
A If the 160 fiber years turned
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