                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 11-13506                   MAY 23, 2012
                        Non-Argument Calendar               JOHN LEY
                      ________________________               CLERK


               D.C. Docket No. 8:10-cr-00059-JSM-MAP-3


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

GUY GANNAWAY,
STEPHEN J. SPENCER,

                                                      Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (May 23, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
       The Clean Air Act empowers the Environmental Protection Agency (EPA)

to establish standards for the safe and proper handling and removal of asbestos

during renovation work. 42 U.S.C. § 7412(h)(1). Companies involved in

renovation work are subject to these standards. 40 C.F.R. §§ 61.141, 61.145. The

failure to adhere to these standards can result in civil and criminal sanctions.

       In 2004, Stephen Spencer and his partners purchased an apartment complex

in Indian Shores, Florida, with the intent of turning the apartments into resort

condominiums and reselling them at a profit. Spencer’s group hired contractor

Guy Gannaway and his company Gannaway Builders to renovate the apartments.

The majority of the apartments contained regulated asbestos-containing material

(RACM)1 in the form of popcorn ceiling texture. The EPA’s standards required

Gannaway to survey for asbestos, notify the EPA of the intent to remove the

RACM, remove all the RACM before any renovation work began, and have a

trained supervisor on-site to oversee the project. Removal of the RACM involves

wetting the asbestos materials and carefully lowering them to the floor before

disposing of them. 40 C.F.R. § 61.145.

       The EPA has also established disposal requirements detailing how to


       1
         RACM is defined in 40 C.F.R. § 61.141 and includes friable asbestos material, which
means material containing more than one percent asbestos that, when dry, can be crumbled or
reduced to powder by hand pressure.

                                              2
collect, package, and transport the removed asbestos materials, and requiring

contractors to keep records of the disposal. Id. § 61.150. In Florida, the EPA has

delegated its regulation and inspection powers to the Pinellas County Air Quality

Division of the Department of Environmental Management.

      Between 2004 and 2006, Gannaway and Spencer, along with two others,

conspired to violated the Clean Air Act’s RACM provisions by failing to properly

remove the RACM during the renovations. Specifically, there was no asbestos

survey prior to the renovations, Gannaway, at Spencer’s direction, covered the

popcorn ceiling with drywall, Gannaway disposed of asbestos waste material in

on-site dumpsters, and Gannaway conducted all the removal and renovations

without the presence of a trained on-site asbestos supervisor. When confronted

with the violations by the EPA and the Pinellas County Air Quality Division, the

conspirators made false statements about the project. Gannaway eventually

admitted civil liability and paid a fine to cover the violations.

      Gannaway and Spencer were later indicted for conspiracy to violate the

Clean Air Act, in violation of 18 U.S.C. § 371 (Count 1);

violating the Clean Air Act by: failing to properly remove the RACM (Count 2),

conducting removal without an on-site supervisor (Counts 3 and 9), improperly

disposing of the RACM (Count 7), and failing to remove the RACM (Count 8), all

                                           3
under 42 U.S.C. § 7413. Gannaway was also charged with failing to adequately

wet the RACM during the renovations (Count 4), failing to carefully lower the

RACM to the floor (Count 5), and failing to adequately seal and label the RACM

(Count 6), in violation of § 7413, and making a false statement in a letter to the

Pinellas County Air Quality Division (Count 11), in violation of 18 U.S.C. § 1001.

The alleged false statement in Count 11 was a statement in a letter to the Air

Quality Division that Gannaway Builders “took great care to handle the removal

of and working around the asbestos in the popcorn ceiling.” Finally, Spencer and

Gannaway were charged with making a false statement in a separate letter to Air

Quality officials (Count 10), in violation of § 1001.

      Following a jury trial, Gannaway was convicted of Counts 1 through 7 and

11, and acquitted of the remaining counts. Spencer was convicted of Counts 1

and 3, and acquitted of the remaining counts. The court sentenced Gannaway to 3

months’ imprisonment and 36 months’ supervised release, and Spencer to 60

months’ probation.

      Gannaway makes three arguments on appeal: (1) the admission of

statements he made during settlement of civil liability violated the Fifth

Amendment; (2) the proffer of his admission of civil liability failed the balancing

test in Rule 403 of the Federal Rules of Evidence; and (3) the evidence was

                                          4
insufficient to convict him of making a false statement. Spencer challenges only

whether the evidence was sufficient to support his convictions. We will address

each defendant in turn.

      I. Gannaway’s convictions

              A. Fifth Amendment

      During the renovation project, the Pinellas County Air Quality Division

determined that Gannaway Builders was violating several standards for the

handling of RACM. It issued a warning letter and a notice of violation to

Gannaway Builders, and Gannaway ultimately admitted that he was civilly

responsible. The same violations later formed the basis of the criminal charges.

At the criminal trial, a witness from the Pinellas County Air Quality division

testified that Gannaway Builders admitted civil liability for the RACM violations.

      Gannaway argues that the government violated his Fifth Amendment

privilege against self-incrimination by admitting his statements accepting civil

liability for the RACM violations. He contends that the state compelled him to

assume civil responsibility because, if he had not, the Air Quality Division would

have economically sanctioned him by either fining him or shutting down the

renovation.

      Because Gannaway raises this issue for the first time on appeal, we review

                                         5
for plain error. United States v. Crawford, 906 F.2d 1531, 1533 (11th Cir. 1990).

To demonstrate plain error, Gannaway must show that there is (1) error, (2) that is

plain, and (3) that affects substantial rights. United States v. Turner, 474 F.3d

1265, 1276 (11th Cir. 2007). If all three conditions are met, we may then exercise

our discretion to notice a forfeited error, but only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. “Errors . . .

affect a substantial right of a party if they have a substantial influence on the

outcome of a case or leave grave doubt as to whether they affected the outcome of

a case.” Id. (internal quotation marks omitted). There can be no plain error

“where the explicit language of a statute or rule does not specifically resolve an

issue,” and “there is no precedent from the Supreme Court or this Court directly

resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003).

      The Fifth Amendment provides that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. The

amendment protects an individual from being called as a witness against himself

in a criminal prosecution, and also privileges a witness not to answer official

questions asked of him during any other proceeding if the answers may

incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S.

                                            6
420, 426 (1984).

      The Fifth Amendment protection against self-incrimination is not

self-executing. United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002).

Indeed, a witness’s answers to government questions generally cannot be

“compelled” within the meaning of the Fifth Amendment unless the witness

invokes his Fifth Amendment right and the government nevertheless requires the

witness to answer. Id.

      An exception to this general rule arises when assertion of the Fifth

Amendment privilege “is penalized so as to foreclose a free choice to remain silent

or give incriminating testimony.” Id. (internal quotation marks omitted). This

may occur if the state compels an individual to appear and testify and also

threatens to impose economic or other sanctions “capable of forcing the

self-incrimination which the Amendment forbids” if the individual does not forgo

his Fifth Amendment rights. Murphy, 465 U.S. at 434 (quotation omitted). Where

an individual succumbs to this pressure and fails to assert the privilege, any

information the individual gives the state is still protected by the Fifth

Amendment. Id. at 434-35.

      Further, because the “touchstone of the Fifth Amendment is compulsion,”

the use of both direct and indirect economic sanctions used to compel testimony

                                           7
are violative of the Fifth Amendment. Lefkowitz v. Cunningham, 431 U.S. 801,

806 (1977); see also Vangates, 287 F.3d at 1321 (alteration and internal quotation

marks omitted). For a witness’s statements to be protected under the Fifth

Amendment when the witness has not invoked the privilege, the witness must

show (1) that he subjectively believed that he was compelled to give a statement

upon a threat, and (2) that his belief was objectively reasonable at the time the

statement was made. Id. at 1322. In making this determination, we examine the

totality of the circumstances surrounding the testimony. Id.

      Here, the state did not directly threaten to penalize Gannaway if he invoked

his Fifth Amendment right. The evidence showed that the Air Quality Division

notified Gannaway and the owners of the violations. The Air Quality Division did

not target Gannaway specifically, and it would have settled with either party,

allowing the parties involved to decide who would take responsibility. Moreover,

the Air Quality Division had no authority to shut down the renovations without

judicial involvement. In light of this evidence, Gannaway cannot show that his

subjective belief that he was compelled to make the statements was objectively

reasonable. Thus, Gannaway has not shown that plain error occurred.

             B. Rule 403

      Gannaway argues that the admission of his statements of civil liability were

                                          8
more prejudicial than probative under Rule 403 because this evidence likely

caused the jury to find that he was criminally liable for those same acts.2

       Ordinarily, a district court’s preserved evidentiary rulings are reviewed for

abuse of discretion. United States v. Gamory, 635 F.3d 480, 492 (11th Cir.), cert.

denied, 132 S.Ct. 826 (2011). But when a defendant fails to preserve an

evidentiary ruling by contemporaneously objecting, we only review for plain error.

Id.

           Under Rule 408, statements made during compromise negotiations about a

claim are ordinarily inadmissible “except when offered in a criminal case and

when the negotiations related to a claim by a public office in the exercise of its

regulatory, investigative, or enforcement authority.” Fed. R. Evid. 408(a)(2). The

admission of evidence under Rule 408 is subject to the balancing test in Rule 403,

and the district court may exclude relevant evidence if its “probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

In evaluating a district court’s ruling under Rule 403, we view the evidence in the

light most favorable to admission, maximizing its probative value and minimizing

       2
          Gannaway also argues that the evidence was inadmissible under Old Chief v. United
States, 519 U.S. 172 (1997), and Rule 404(b). Neither of these rules entitle Gannaway to relief.
First, Old Chief does not apply to this case because Gannaway did not offer to stipulate to
anything at trial. 519 U.S. at 186-87. Further, Rule 404(b) does not apply because the
challenged evidence was intrinsic to the offenses charged in the indictment, as opposed to
extrinsic. United States v. Saintil, 753 F.2d 984, 987 (11th Cir. 1985).

                                                9
its undue prejudicial impact. United States v. Bradberry, 466 F.3d 1249, 1253

(11th Cir. 2006).

       Here, there was no error in the court’s admission of Gannaway’s statements

that he would accept responsibility for the civil violations. Gannaway’s

admissions were relevant to proving various counts of the indictment, including

the conspiracy charge. Although this evidence was also likely prejudicial, when

the evidence is viewed in the light most favorable to its admission, the evidence’s

probative value was not substantially outweighed by this prejudice. Accordingly,

no plain error occurred in this respect.

                 C. Sufficiency of the evidence

       Gannaway argues that the evidence at trial was insufficient to establish that

he made a false statement under § 1001. At issue was the statement that

Gannaway Builders “took great care to handle the removal of and working around

the asbestos in the popcorn ceilings.” He contends that the statement was vague

but not “false,” and that the evidence at trial did not establish that he made the

statement in a transaction over which a federal agency had the power to exercise

its authority.

       We generally review both a challenge to the sufficiency of the evidence and

the denial of a motion for judgment of acquittal de novo. Gamory, 635 F.3d at

                                            10
497. But where, as here, the defendant moved for judgment of acquittal but did

not raise the specific ground to the district court,3 review of the district court’s

decision to deny the motion is only for plain error. United States v. Hunerlach,

197 F.3d 1059, 1068 (11th Cir. 1999).

       It is unlawful to knowingly make a materially false statement or

representation to a government agency in a matter within its jurisdiction. 18

U.S.C. § 1001; United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010).

To sustain a conviction against a defendant for a violation of § 1001, the

government must prove that: (1) the defendant made a statement; (2) the

statement was false; (3) the statement was material; (4) the statement was made

with specific intent; and (5) the statement was made in a matter within the

jurisdiction of a federal government agency. Boffil-Rivera, 607 F.3d at 740.

       “Falsity under section 1001 can be established by a false representation or

by the concealment of a material fact.” United States v. Calhoon, 97 F.3d 518,

524 (11th Cir. 1996). Falsity through concealment exists where disclosure of the


       3
           To preserve an issue for appeal in a judgment of acquittal, “one must raise an objection
that is sufficient to apprise the trial court and the opposing party of the particular grounds upon
which appellate relief will later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th
Cir. 2007) (internal quotation marks omitted). The objection must be raised “in such clear and
simple language that the trial court may not misunderstand it.” Id. (internal quotation marks
omitted).


                                                11
concealed information is required by a statute, government regulation, or form. Id.

at 526.

      The government must also prove that the false statement was made in a

matter within the jurisdiction of a federal government agency. Boffil-Rivera, 607

F.3d at 740; 18 U.S.C. § 1001. For the purposes of § 1001, the term “jurisdiction”

is construed broadly. United States v. Rodgers, 466 U.S. 475, 479 (1984). The

government is not required to prove that the false statement was made with actual

knowledge of federal agency jurisdiction. United States v. Yermian, 468 U.S. 63,

69-70 (1984). Nevertheless, we have recognized that the term “jurisdiction” does

have limits. Blankenship, 382 F.3d at 1136. The key inquiry is whether the

agency could “exercise authority” over the particular situation in which the

statement was made. Id. at 1136-38.

      After review, we find no plain error in the district court’s decision to deny

Gannaway’s motion for judgment of acquittal. Former Gannaway Builders Vice

President James Edwards testified that when he learned of asbestos in the ceiling,

he notified Gannaway, who ordered him to clean it up. Edwards explained that the

crews then removed the asbestos by throwing it over the second-floor railing to a

dumpster below. When the Pinnellas County Air Quality Division later

questioned how the company handled the asbestos, Edwards submitted a letter

                                         12
stating that the company “took great care.” Edwards admitted that the statement

was not true and that he wrote it at Gannaway’s direction. He further testified that

Gannaway reviewed the letter before Edwards submitted it to the Air Quality

Division.

      The evidence at trial also showed that prior to the removal of the RACM,

Gannaway’s consultant had tested the ceiling and found it contained at least ten

percent asbestos, which was considered high. Gannaway did not report the

removal of the asbestos to the Air Quality Division and did not provide his

workers with any training prior to the removal.

      Although Gannaway argues that the statement was ambiguous because there

was some period of time that “great care” was arguably taken, and the asbestos

problem related only to one building, we disagree. Based on the evidence, a

reasonable jury could infer that Gannaway was aware that the statement in the

letter was false and that, by assisting in preparing the letter and reviewing it,

Gannaway furthered the offense and acted with the intent to aid in the commission

of the offense. Further, a jury could find that the statement was false in light of

evidence that showed that asbestos-containing materials were thrown over the

railing into an open dumpster on the first floor, that none of the workers was

trained to handle asbestos material, and no trained supervisor was present during

                                          13
the removal. Because the relevant statutes required Gannaway to adhere to

specific procedures for the handling and removal of the RACM, the jury could

easily conclude that the statement at issue was made to conceal the true facts, thus

satisfying the “falsity” element.

      Moreover, the false statement was made in the context of the local

enforcement agency’s investigation into the asbestos violations that were listed in

the notice of violations. The EPA was able to exercise power over the local

agency’s investigation because the EPA could bring its own civil or criminal

enforcement action at any time. 42 U.S.C. § 7412(l)(1), (7). Because there is no

controlling case that indicates this is insufficient to satisfy the jurisdiction element

of § 1001, there can be no plain error.

      II. Spencer’s convictions

      We review both a challenge to the sufficiency of the evidence and the denial

of a Rule 29 motion for judgment of acquittal de novo. Gamory, 635 F.3d at 497.

In considering the sufficiency of the evidence, we view the evidence in the light

most favorable to the government, with all inferences and credibility choices made

in the government’s favor, and affirm the conviction if, based on this evidence, a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.

Id. It is not necessary that the evidence presented at trial exclude every reasonable

                                           14
hypothesis of innocence or is wholly inconsistent with every conclusion except

that of a defendant’s guilt. Id. A jury’s rendering of inconsistent verdicts is

irrelevant to our sufficiency determination. United States v. Veal, 153 F.3d 1233,

1252-53 (11th Cir. 1998).

      Spencer was convicted of conspiracy to violate the Clean Air Act and

violating the act by failing to have a trained supervisor on site during the RACM

removal. To show a conspiracy under 18 U.S.C. § 371, “the Government must

prove the existence of an agreement to achieve an unlawful objective, the

defendant’s knowing and voluntary participation in the conspiracy, and the

commission of an overt act in furtherance of it.” United States v. Campa, 529 F.3d

980, 1001-02 (11th Cir. 2008) (internal quotation marks omitted). The agreement

may be proved by either direct or circumstantial evidence, and a common object

may be inferred from the conduct of the participants or from other circumstances.

United States v. Hansen, 262 F.3d 1217, 1246 (11th Cir. 2001).

      The government must also prove beyond a reasonable doubt that each

defendant had a “deliberate, knowing, specific intent to join the conspiracy.”

United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998) (internal

quotation marks omitted). The government does not have to prove that each

conspirator participated in all aspects of the conspiracy, knew each phase or every

                                          15
detail of the conspiracy, or knew all of the participants. Hansen, 262 F.3d at 1247.

Rather, a conspirator may be convicted “if he participates in some affirmative

conduct designed to aid the success of the venture with knowledge that his actions

would further the venture.” Id. (internal quotation marks and alteration omitted).

      Under 18 U.S.C. § 2, an individual may be indicted as a principal for the

commission of a substantive crime and convicted upon evidence that he only aided

and abetted another in the commission of the offense. United States v. Walser, 3

F.3d 380, 387-88 (11th Cir. 1993). Our test is to determine whether there was an

act by the defendant which contributed to and furthered the offense, and whether

the defendant intended to aid its commission. Id. at 388.

      We have long recognized that the knowledge element of a criminal statute

can be proved by demonstrating either actual knowledge or deliberate ignorance.

United States v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006). A party is deemed to

have deliberate ignorance where his suspicion is aroused, but he then deliberately

decides not to inquire further because he wishes to remain ignorant. Thus, to act

knowingly “is not necessarily to act only with positive knowledge, but also to act

with an awareness of the high probability of the existence of the fact in question.”

Id. at 952-53 (quotation omitted).

      The EPA and the Pinnellas County Air Quality Division, through the

                                         16
standards contained in 40 C.F.R. § 61.145(c), regulate in minute detail the

handling of asbestos in building renovation sites. United States v. Ho, 311 F.3d

589, 595 (5th Cir. 2002). One such regulation requires a foreman or

management-level officer, trained in complying with these standards, to be present

at any site before workers may handle or disturb any material containing asbestos.

Id.

      The evidence at trial showed that, after Spencer discovered that the

apartments contained asbestos, he decided that the ceilings should be

encapsulated, which involved attaching drywall directly to the ceilings by way of

screws. Spencer elected this method because it was less expensive than removal.

Inspectors with the Air Quality Division testified to the manner in which asbestos

is encapsulated and opined that it could not be done without disturbing the

asbestos in the ceiling. In light of the testimony presented, a reasonable jury could

have found that Spencer knew, or should have known, that encapsulation would

disturb asbestos, such that a trained on-site supervisor had to be present during the

process. See 40 C.F.R. § 61.145(c)(8).

      Further, a reasonable jury could also find that Spencer and Gannaway

agreed to encapsulate the ceilings without the presence of an on-site supervisor

trained in handling RACM, that Spencer knowingly and voluntarily participated in

                                         17
that agreement, and that he acted in furtherance of the conspiracy by researching

the encapsulation method and determining the details of encapsulation. Further,

because there is evidence that Gannaway’s workers actually performed the

encapsulation process without the presence of an on-site supervisor , the evidence

is also sufficient to support Spencer’s conviction for the substantive offense under

an aiding and abetting theory. Walser, 3 F.3d at 387-88.

      III. Conclusion

      Based on the forgoing, we AFFIRM Gannaway’s and Spencer’s

convictions.

      AFFIRMED.




                                         18
