
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 96-1775               97-1400                                    UNITED STATES,                                      Appellee,                                          v.                                    MARK O. HENRY,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                        and Dowd, Jr.,* Senior District Judge.                                        _____________________                                _____________________               Bjorn Lange,  Assistant  Federal  Public  Defender,  Federal               ___________          Defender Office, for appellant.               Jeffrey C.  Dobbins, Attorney,  Department of  Justice, with               ___________________          whom Lois  J. Schiffer, Assistant  Attorney General,  Environment               _________________          and  Natural Resources  Division,  Stephen  R.  Herm,  Jeremy  F.                                             _________________   __________          Korzenik  and David C. Shilton, Attorneys, Department of Justice,          ________      ________________          were on brief for appellee.                                 ____________________                                   February 5, 1998                                 ____________________                                   AMENDED OPINION                                 ____________________                                        ____________________          *  Of the Northern District of Ohio, sitting by designation.                    DOWD, Senior District Judge.                      DOWD, Senior District Judge.                          _____________________                    I.  INTRODUCTION                    I.  INTRODUCTION                    The  defendant-appellant   Mark  O.   Henry  (hereafter          "Henry") prosecutes two appeals growing out of his indictment and          conviction for  one count  of conspiracy to  violate 42  U.S.C.            6928(d)(l) which prohibits the transport of  hazardous waste to a          facility  that does not have a permit  to receive such waste, one          count of mail fraud and three counts of wire fraud.                    Henry  owned and  operated Cash  Energy, a  corporation          with  offices in  North  Andover,  Massachusetts.    Cash  Energy          operated numerous  affiliated businesses,  including Beede  Waste          Oil  ("Beede"), located primarily at  Kelly Road in Plaistow, New          Hampshire.   Henry directed the  affairs of both Cash  Energy and          Beede.  Robert LaFlamme, an indicted co-conspirator who testified          against  Henry,   managed  Beede   and  oversaw  its   day-to-day          operations.                    Beede  applied  to  the  New  Hampshire  Department  of          Environmental Services ("NHDES")  in March 1990  for a permit  to          recycle virgin petroleum contaminated soil into cold mix asphalt.          Virgin  petroleum contaminated  soil  is soil  contaminated  with          petroleum or petroleum products, petroleum sludge, and all liquid          petroleum derived  hydrocarbons, such as lubricating oil, heating          oil,  gasoline,  kerosene,   and  diesel  fuel.     However,  the          definition excludes soil that is determined to be hazardous waste          because it is contaminated with other chemicals or metals.  Beede          needed an  NHDES permit because  the recycling process  emits air                                         -2-          pollutants.   The recycling  process required the  use of  a "pug          mill" to mix contaminated  soil with gravel and asphalt emulsion.          Beede  eventually  obtained the  permit  in July.    However, the          permit capped  the  amount of  contaminated  soil that  could  be          stored at the site at 3,000 tons.                    Beede  entered  into recycling  contracts  with several          entities even before the permit was issued.  Although the company          sporadically recycled soil using a leased pug mill, the amount of          contaminated soil stored at the site soon exceeded the  permitted          amount.   Eventually, the  amount of unrecycled  soil grew  to as          much as 19,000 tons and at no time after May 1990 did Beede  ever          have  less than 3,000 tons of  soil at the site.   By April 1991,          Beede's  failure  to  comply  with  the  permit  caused  the  New          Hampshire Air Resources Division to issue an administrative order          prohibiting  Beede  from  accepting any  more  contaminated soil.          This order was  superseded by a  new permit  issued in June  1991          that allowed Beede  to begin receiving new soil  only if it first          recycled  all of  the  soil  that had  accumulated  at the  site.          Although Beede engaged in a  small amount of soil recycling after          the  June 1991  permit was  issued, it  continued to  receive new          contaminated soil at the site in violation of the permit terms.                    The  mail  and  wire fraud  counts  charged  that Henry          participated in  a scheme to defraud several of Beede's customers          of  money by  falsely  representing  that  Beede  could  lawfully          receive and recycle the customers'  virgin petroleum contaminated          soil.  The conspiracy count  charged that Henry participated in a                                         -3-          conspiracy to knowingly  cause hazardous waste to  be transported          to a  facility that was  not permitted  to receive such  waste in          violation  of  42 U.S.C.     6928(d)(1).   The  conspiracy charge          involved three overt acts.1                    The grand jury  returned a 17 count  indictment against          Henry and LaFlamme  on March  2, 1995  charging conspiracy,  mail          fraud and wire fraud.   Later, on January  5, 1996 a  superceding          indictment was returned limiting the  counts to a single count of          conspiracy, six  counts of  mail fraud and  three counts  of wire          fraud.   LaFlamme pleaded guilty to  one count of mail  fraud and          the  conspiracy  count   and  subsequently   testified  for   the          government at Henry's trial which was held over an eight day span          in February of 1996.                    The first  appeal challenges  his  convictions and  the          resulting 37 month sentence; the second  appeal contends that the          district court should not have denied his  motion for a new trial          based on newly discovered evidence.                    For the reasons  that follow we affirm  the convictions          and sentence and the denial of Henry's motion for a new trial.                    II.  THE CHALLENGED CONSPIRACY CONVICTION                    II.  THE CHALLENGED CONSPIRACY CONVICTION                      A.     The   Challenged  Jury  Instructions   on  the                      Conspiracy Count.                                        ____________________          1   Two  of the  overt acts charged  that in  the spring  of 1991          Henry, after receiving  laboratory data showing  contamination of          the  soils, either  by cadmium or  iron, caused  the soils  to be          transported to Beede.  One shipment of  243 tons came from a site          in Lawrence,  Massachusetts and  the other  shipment of  250 tons          came from the Portsmouth Naval Shipyard in Kittery, Maine.                                         -4-                    The  conspiracy count, charged  under 18 U.S.C.    371,          alleged  that  Henry   and  LaFlamme  conspired     knowingly  to          transport and  cause  to  be transported  hazardous  waste  to  a          facility that did  not have interim status and a permit to accept          hazardous waste in violation of 42 U.S.C.   6928 (d)(l).2                    The indictment defined hazardous waste by reference  to          the  substances and materials  listed or identified  in Title 40,          Code of  Federal Regulations, Part  261 and further  alleged that          under  the regulation,  "any waste  containing concentrations  of          lead in excess of 5 parts  per million or cadmium in excess of  l          part per  million using appropriate  test methods is  a hazardous          waste."                    The jury instructions relative to the conspiracy charge          defined the offense of causing hazardous wastes to be transported          to an unpermitted facility as requiring the following elements:                                        ____________________          2  Section 6928(d)(l) provides:                              (d) Criminal penalties                              (d) Criminal penalties                    Any person who--                         (1) knowingly transports  or causes to                      be   transported   any   hazardous  waste                      identified   or    listed   under    this                      subchapter to a  facility which does  not                      have a permit under this  subchapter, . .                      .                                        . . . .                      shall, upon conviction,  be subject to  a                      fine  of not  more than $50,000  for each                      day of violation,  or imprisonment not to                      exceed two  years (five years in the case                      of a violation of paragraph (1)  or (2)),                      or both. . . .                                         -5-                      First,  that the  defendant transported  or                    caused to be transported hazardous waste to a                    facility that  was not authorized  to receive                    such waste; and                       Second, that  the defendant  knew that  the                    material transported  was hazardous  and that                    the facility  that received the waste was not                    authorized to receive such waste.                    Then, over the defendant's timely objection, the  court          defined hazardous waste as follows:                      Solid waste qualifies as hazardous waste if                                                               __                    using  the  toxicity  characteristic leaching                    _____________________________________________                    procedure,    TCLP,     extract    from     a                    __________________                    representative  sample  of  the  solid  waste                    contains lead in  concentrations greater than                    five  parts   per  million   or  cadmium   in                    concentrations  greater  than  one  part  per                    million.          (Emphasis added).                      The appellant  couples the challenge to  the definition          of hazardous waste with the claim that the trial court improperly          participated  in the direct examination of the government witness          Michael  Wimsatt,  a  regulatory  inspector  with  NHDES  in  the          hazardous waste program.                    First,  we   observe  that  the   court's  definitional          instruction as to what constitutes hazardous waste was correct as          a matter of law.  The government bears the burden of establishing          that   the   defendant  knew   that  the   materials  transported                                  ____          constituted hazardous  waste.  The Congress has  delegated to the          Administrator of the EPA the responsibility for listing the types          and  characteristics  of substances  considered  to be  hazardous          wastes.  42 U.S.C.    6921(b).  The ensuing  regulation, found at          40 C.F.R.   261.3, provides that soil  is a hazardous waste if it                                         -6-          "exhibits  any   of  the   characteristics  of  hazardous   waste          identified in Subpart  C." Subpart C includes  the characteristic          of "toxicity".    40  C.F.R.    261.24  introduces  the  Toxicity          Characteristic  Leaching Procedure (TCLP)  as a means  of testing          for toxicity  and provides that when this testing procedure shows          that the waste contains any of the contaminants listed in table l          at a concentration equal to  or greater than the respective value          given in  the table, then  the waste, by  definition, constitutes          hazardous  waste.   The table  located at  40 C.F.R.    261.24(a)          dictates that the regulatory limit for lead is 5 mg/L (or 5 parts          per million) and  the corresponding regulatory limit  for cadmium          is l mg/L (or l part per million).                       In the conference conducted by the district court prior          to  finalizing the jury  instructions, counsel for  the defendant          argued that it should be left for  the jury to determine if soils          shipped  contained hazardous  waste without  the  benefit of  the          challenged definition.  Defendant's  counsel  also  disputed  the          delegation by  the Congress  to  the EPA  Director to  promulgate          regulations defining  hazardous  wastes and  argued that  because          there   had  been  changes  in  those   regulations  as  to  what          constituted levels of  toxicity, that an  individual such as  the          defendant should not suffer criminal liability in such a setting.          Defendant's argument  is grounded in the  nondelegation doctrine,          which provides  that Congress  may not  delegate its  legislative          power to another branch of the government.  See U.S.  Const. art.                                                      ___                                         -7-          I,   1 ("All legislative powers herein granted shall be vested in          a Congress of the United States.").                    The district court responded to the improper delegation          argument by reliance on Touby v. United States, 500 U.S. 160, 165                                  _____    _____________          (1991),  for the proposition  that the delegation  of legislative          power to another branch of  the government is permissible as long          as Congress sets  forth an "intelligible principle" to  which the          executive or judicial branch must conform.  In Touby, the Supreme                                                         _____          Court upheld Congress' delegation of the power to define criminal          conduct to the Attorney  General as constitutionally permissible.          The  Court held that "Congress does  not violate the Constitution          merely because it  legislates in broad  terms, leaving a  certain          degree of discretion to executive or judicial actors.  So long as          Congress  'lay[s]  down   by  legislative  act   an  intelligible          principle  to which  the person  or body  authorized to  [act] is          directed to conform,  such legislative action is not  a forbidden          delegation of legislative power.'"  Touby, supra, at 165, quoting                                              _____  _____          J.W. Hampton, Jr., & Co. v. United  States, 276 U.S. 394, 409, 48          ________________________    ______________          S. Ct. 38, 352, 72 L.Ed. 624 (1928).                    The Touby  Court then upheld  the Controlled Substances                        _____          Act at issue in that case on the ground that Congress had in fact          set   forth  an   "intelligible  principle"   which  meaningfully          constrained the Attorney General's  discretion to define criminal          conduct.  The Court  discussed several factors that  rendered the          statute  constitutional:  (1)  requiring the Attorney  General to          determine that the expedited procedure  is "necessary to avoid an                                         -8-          imminent hazard to the public safety," (2) specifying the factors          that  the  Attorney  General  must  consider  in  making  such  a          determination; and (3)  requiring publication of a  30-day notice          of the proposed scheduling and consideration of any comments from          the Secretary of Health and Human Services. Touby, supra, at 166.                                                      _____  _____                    We  approve the district  court's reliance on  Touby in                                                                   _____          the instant case, and hold that the delegation by Congress to the          EPA of  the legislative authority  to define hazardous  waste was          permissible given the fact that there existed several constraints          upon the EPA's exercise of this authority that are similar to the          constraints  found  to be  determinative of  constitutionality in          Touby.   First of all, we note that the Resource Conservation and          _____          Recovery Act sets  forth a detailed procedure with  which the EPA          must  comply before  it may  exercise this legislative  power and          list   the  types   and  characteristics   of   hazardous  waste.          Specifically, 42  U.S.C.    6921(a)  requires  the EPA  to  first          provide  notice and  the opportunity  for public  hearing on  the          issue of  what precisely  are the  characteristics of  "hazardous          waste," and further requires the EPA to consult with "appropriate          Federal  and State  agencies"  on this  definitional issue.   See                                                                        ___          Touby,   supra,  at  166  (delegation  of  legislative  power  to          _____    _____          executive  constitutional  in  part   due  to  requirement   that          executive consider comments from other authorities).                    Secondly,  in addition to  requiring the EPA  to comply          with  these  procedural  steps,  the  statute  specifies  certain          factors that  the EPA must  consider in developing  the criteria:                                         -9-          "the Administrator shall. . . develop and promulgate criteria for          identifying the characteristics of hazardous waste, . .  . taking          into account toxicity, persistence,  and degradability in nature,          potential for accumulation  in tissue, and other  related factors          such  as   flammability,  corrosiveness,   and  other   hazardous          characteristics."  42 U.S.C.   6921(a).  See Touby, supra, at 166                                                   ___ _____  _____          (holding specification  of three  factors that  the executive  is          "required to  consider" constrains executive's  legislative power          and renders delegation constitutional).                    Furthermore,   besides   this  detailed   process   for          establishing the  criteria to  be used  in identifying  hazardous          waste,  the statute  also  constrains  the  EPA's  discretion  by          listing specific characteristics which the statute directs "shall          be subject to the provisions of this subchapter solely because of          the  presence  in such  wastes of  certain constituents  (such as          identified  carcinogens, mutagens,  or teratagens)  at levels  in          excess  of levels  which endanger  human  health."   42 U.S.C.             6921(b)(1).                    In   sum,  we  find   no  fault  with   the  challenged          definition.    In fact,  the  district  court  in this  case  was          sensitive  to the knowledge  component of the  government's proof          and the  defendant's  contention that  he believed  the soils  in          question  did  not  constitute  hazardous  waste,  and  therefore          instructed the jury on a good faith defense.3                                        ____________________          3  The jury was  instructed as to the defense of good  faith with          respect to the conspiracy count as follows:                                         -10-                      B.  The Questioning of Wimsatt by the District Court.                    The defendant combined his  objection to the definition          with an objection  to the court's questioning of Michael Wimsatt,          a regulatory  inspector  with the  NHDES in  its hazardous  waste          program.    The  court engaged  in  the  following  colloquy with          Wimsatt  that  featured  the   toxicity  characteristic  leaching          procedure:                    THE COURT:  And the  TCLP test uses  water as                                the [leachate], right?                    WIMSATT:    It's a  water solution.   It  has                                some acid  in it,  obviously, and                                it has whatever contaminants, but                                it's still relatively  dilute and                                it's    essentially    a    water                                solution, that's right.                    THE COURT:  Is  it fair to  say, then, with a                                TCLP test, something expressed as                                five milligrams per  liter, could                                also be  expressed as  five parts                                per million?                    WIMSATT:    Yes,   that's   correct,   that's                                right.   So we  have a limit  set                                under TCLP that says when you get                                an  extract from  our sample,  it                                can't have  more than  five parts                                per million of lead in it, and if                                it   does,  it's   going  to   be                                considered a hazardous waste.                                                    ____________________                      If  the defendant  had a good  faith belief                    that Beede  was authorized  to transport  the                    waste  to its facility,  he is not  guilty of                    the  crime of conspiracy even if it turns out                    that that belief was wrong.                      The burden  of proving good faith  does not                    rest with the defendant because the defendant                    does not have an obligation to prove anything                    in  this case.  It is the government's burden                    to  prove beyond a  reasonable doubt that the                    defendant is guilty of conspiracy.                                          -11-                    The  defendant's counsel  first objected  to  the above          questioning of  Wimsatt during  the jury  charge conference,  and          when  asked by  the court  what remedy  did counsel  propose, the          response was to delete the hazardous waste definitional paragraph          from the jury  charge.  The district judge  declined, properly we          hold, and observed that he had the authority pursuant to Evidence          Rule 614 (b)4 to question witnesses and had done so to assist the          jurors.  Specifically, the district court opined:                      THE  COURT:   All right.   I decline  to do                    that for the reasons that I've outlined.  Let                    me   just  note   I  think   this  issue   of                    questioning  of witnesses  by the Court  is a                    very important  and -  important matter  that                    has  to be  handled carefully  by  the Court.                    Clearly,  Rule  614(b)  allows  the Court  to                    question  witnesses.   In a  trial like  this                    where I think  much of the evidence  has been                    confusing  and  concerns  technical  matters,                    terms  that  involve jargon,  I  think it  is                    important   where   counsel  does   not   ask                    questions clearly  for the  Court to  clarify                    undefined terms,  and therefore I  have asked                    questions during the trial to that end.                      I  think it's also important for me since -                    in order  to protect the  defendant's rights,                    that  I  understand the  import  of something                    that is  being testified to.  The jury has to                    make  findings  of  fact here  ultimately  in                    deciding the defendant's  guilt or innocence,                    but I have to pass on motions that  deal with                    evidentiary  sufficiency;  such as,  Rule  29                    motions.                      If I don't understand a particular point of                    testimony,  I can't do my job with respect to                    a Rule 29 motion.   So I feel it's  important                    for  me   to  ask  questions   when  I  don't                    understand some testimony  and when the  jury                    may potentially not understand testimony.   I                                        ____________________          4  This rule states  that "[t]he court may interrogate witnesses,          whether called by itself or by a party."  Fed. R. Evid. 614(b).                                         -12-                    try to do it as little as possible, and I try                    my best not  in any  way to  indicate in  any                    sense that I'm taking sides.                      I  also have  in  my  jury instructions  an                    instruction  to the jury that they should not                    give any greater weight to the testimony of a                    witness  in  answer  to  my questions  simply                    because the questions have come from  me, and                    I  have reiterated for the jury the fact that                    I am  neutral, impartial and  doesn't - don't                    have  a stake  in  this  case,  and  I  don't                    believe  that  I've   in  any  way  adversely                    affected  the  defendant's  right  to a  fair                    trial here by my questions.                      So I think  the premise of your  request is                    flawed,  and   I   decline   to   grant   the                    instruction that you propose.            Transcript of Day 8 at p. 41.                      We agree with  the district court that  his questioning          in this case was permissible.   Initially, we note that the First          Circuit recognizes the  "well-settled" rule that the  trial judge          has a "perfect right" to participate in the trial and to question          witnesses.   United States  v. Gonz lez-Soberal, 109  F.2d 64, 72                       _____________     ________________          (1st Cir. 1997).   The limitations placed on  this right are that          the judge's questioning  "must be balanced;  he cannot become  an          advocate or  otherwise use  his judicial  powers to  advantage or          disadvantage a  party unfairly."   Logue v. Dore, 103  F.3d 1040,                                             _____    ____          1045 (1st  Cir. 1997).  "An  inquiry into the judge's  conduct of          the  trial  necessarily  turns  on the  question  of  whether the          complaining party can show serious prejudice."  Id.                                                          ___                    In  the  instant  case, our  review  of  the transcript          reveals  that the judge's questioning of Wimsatt was nothing more          that the sort  of occasional "efforts to  clarify testimony" that                                         -13-          falls squarely within the scope of the district judge's right and          responsibility to manage  the progress of the trial.   See Logue,                                                                 ___ _____          supra, at  1045.  Furthermore, we hold  that any possible risk of          _____          prejudice  to Henry  as a  result  of the  judge's questions  was          abated by the clear instruction to the jury that it should ignore          any impression that his questions might have made on them.                    In   conclusion,    the   trial    transcript   clearly          demonstrates  that the  key  issue on  the  conspiracy count  was          whether  the defendant knew the soils constituted hazardous waste          and his good faith defense was  anchored in his assertion that he          did not  believe  the  soils  constituted hazardous  waste.    We          further  hold  that  the  district  court's  decision  to  define          hazardous waste in  the context of the indictment  and the C.F.R.          regulations, rather than  offer no assistance to the  jury on the          question of  what constitutes  hazardous waste,  as suggested  by          defendant's counsel, was proper, and in any event, in the setting          of this case, clearly not prejudicial to the defendant.                    III.   THE SENTENCING ISSUES                    III.   THE SENTENCING ISSUES                    Two  primary  issues  are  raised.    The  court  chose          U.S.S.G.     2F1.1 as  the  guideline  to  be followed,  but  the          defendant argued that  U.S.S.G.   2Q1.2  was the better  choice.5          The latter guideline  governs such environmental offenses  as the                                        ____________________          5    Because  the  adjusted  offense  level  for  the  conspiracy          conviction was determined to be nine levels less serious than the          level for  the  grouped  fraud  count,  pursuant  to  U.S.S.G.             3D1.4(c) the  conspiracy conviction  did not  increase the  total          offense level  of 22  as computed under  the mail and  wire fraud          counts.                                           -14-          unlawful   transportation   of   hazardous  materials   and   the          mishandling  of hazardous or toxic substances.   U.S.S.G.   2F1.1          deals with fraud  and  deceit,  and the  use  of  this  guideline          resulted in  a  higher offense  level  calculation.   A  specific          offense   characteristic  under      2F1.1  requires  a  judicial          calculation of  the loss  caused by the  fraud and  deceit. Henry          challenges the court's calculation even though it was reduced one          level by the court from the pre-sentence recommendation.                    The  judge departed downward one offense level after he          concluded   that  the  application  of  the  Guidelines  did  not          "correctly  capture [] the true value  of the loss in this case."          The defendant was then sentenced to 37 months imprisonment, which          is the low  end of the applicable range based  on the defendant's          Criminal History of I.                    A.   Should  the defendant  have  been sentenced  under                    Guideline   2Q1.2 rather than   2F1.1?                    Appendix A to the Sentencing Guidelines Manual provides          a  statutory index  keyed to  the applicable  guideline.   In the          introduction to Appendix A, the statement is made that "if, in an          atypical case, the Guideline section indicated for the statute of          conviction  is inappropriate  because of  the particular  conduct          involved, use the Guideline section most applicable to the Nature          of  the  Offense  conduct  charged  in the  count  of  which  the          defendant was convicted."  The reader is then referred to   1B1.2          of the Guidelines which states in Application Note 1 that "when a          particular statute  proscribes a  variety of  conduct that  might          constitute the subject of different offense guidelines, the court                                         -15-          will determine  which Guideline  section applies  based upon  the          nature of the  offense conduct charged in the count  of which the          defendant   was  convicted."    Building  on  the  atypical  case          reference and Application Note 1  to   1B1.2, Henry contends that          his  convictions represent an  atypical fraud prosecution because          the gravamen of  the convicted counts, including  the conspiracy,          was   that  the   defendant  violated  environmental   rules  and          regulations by transporting and  storing contaminated soil  which          exceeded  permitted levels  in quantity  and  composition at  the          Beede Waste Oil facility in New Hampshire.                     The  defendant  suggests that  the  apparent  dearth of          cases  involving   simultaneous  federal   prosecution  of   both          environmental offenses  and wire  and fraud  counts suggests  the          claimed atypicality and argues that the commentary in application          note  13  to  U.S.S.G    2F1.1,  which directs  that  "where  the          indictment...establishes an offense more aptly covered by another          guideline,  apply that guideline  rather than    2F1.1," requires          that U.S.S.G.    2Q1.2 should have been followed  by the district          court.   The  district  court conducted  a  four hour  sentencing          hearing  and rejected the  defendant's   2Q1.2  argument, holding          that the case  was not about environmental crime,  but rather "an          effort by  Mr. Henry to generate income."   We review de novo the                                                                __ ____          trial court's determinations  on the issue of whether  to apply            2F1.1 rather than   2Q1.2.  United States v. Ruiz, l05 F.3d 1492,                                      _____________    ____          l504 (1st Cir. 1997).                                           -16-                    The defendant's reliance on United States v. Fulbright,                                                _____________    _________          105 F.3d  443 (9th Cir.  1996) is  misplaced.  In  Fulbright, the                                                             _________          defendant  was convicted of conspiracy to impede federal officers          in violation of  18 U.S.C.   372  and for obstruction  of justice          under 18 U.S.C.   1503.   The district court there used the  only          guideline  listed for  18 U.S.C.  in the  Statutory Index  to the          Guidelines Manual.   Citing the atypicality language  in Appendix          A,6  the Ninth  Circuit  then  remanded  for  resentencing  under          U.S.S.G     2A2.4  which is  captioned  "Obstructing  or Impeding          Officers," because the  defendant's conduct was determined  to be          more analogous to impeding a federal officer than  to obstruction          of justice. Id. at 453.                        ___                    In   this  case,  in  contrast  to  Fulbright,  and  as                                                        _________          recognized by the  district court below, the  defendant's conduct          involved  two classes  of victims.    With respect  to the  fraud          counts,  the  victims were  the  companies  to  which Henry  made          promises  that  he never  kept  in  exchange  for the  monies  he          extracted, while the conspiracy conviction  victimized society as          a whole.   The decision in United  States v. Rubin, 999  F.2d 194                                     ______________    _____          (7th Cir. 1993), tracks the single victim analysis as the victims          in  connection with   the  mail fraud  and price-fixing  were the          same. Accepting  the separate  victim analysis  and applying  the                                        ____________________          6  "If, in an atypical  case, the guideline section indicated for          the  statute  of  conviction  is  inappropriate  because  of  the          particular conduct involved, [the court should] use the guideline          section  most applicable  to the  nature of  the  offense conduct          charged  in the  count  of which  the  defendant was  convicted."          U.S.S.G. Appendix A.  See also U.S.S.G.   1B1.2, comment (n.1).                                ________                                         -17-          appropriate  standard  of  review,  we  find no    error  in  the          determination  that  the  principal crime  came  under  the fraud          analysis of U.S.S.G.    2F1.1.  We find no fault  in the district          court's  analysis that  the  main  motivation  for  the  criminal          conduct was to  obtain money.   There is  no indication that  the          defendant  was  embarked on  a  crusade to  engage  in committing          environmental crimes.  Rather, it is clear that his objective was          to make money, and in the process he  engaged in an environmental          crime,   which  conduct  was  an  incidental  by-product  of  his          fraudulent  conduct.     We  therefore  find  no   error  in  the          application of the guidelines under the aegis of   2F1.1.                    B.  The Loss Calculation under U.S.S.G.   2F1.1.                    The  computation of  the Offense  Level  under    2F1.1          requires a  determination of the loss.   A sliding scale has been          adopted in   2F1.1(b)(1).   The presentence report fixed the loss          at $1,282,718, which required an  addition of eleven levels.  The          court refused to consider the  Mobil Oil soil transactions, which          were the  subject of  count one, and  deducted $740,642  from the          loss figure with a resulting total loss figure of $542,076.  That          final  calculation of  the loss  added  ten levels  to the  loss.          Henry suggested  that  the  remediation  costs,  while  exceeding          $200,000 were less than the next dollar figure of $350,000 on the          sliding  scale, and inferentially  argued that the  loss addition          should be  computed at an  increase of eight levels,  rather than          the ten  levels fixed by the court.   United States v. Kelley, 76                                                _____________    ______          F.3d 436, 439 (1st Cir.  1996), teaches that a sentencing court's                                         -18-          valuation of loss  is subject to the  clearly erroneous standard.          Given  the reality  that some  of  the Beede  customers may  face          additional costs in the remediation context, the "benefit" to the          defrauded  customers arising from the transportation of the soils          from their sites is at best speculative.  We find no fault in the          ignoring   of  that   possible   benefit  in   the   calculation.          Application  Note 8 to   2F1.1 teaches  that the (b)(1) loss need          not be determined with precision,  but rather that the court need          only make a  reasonable estimate of the loss  given the available          information.  Finally,  we note that the  district court departed          downward one level due to its uncertainty as to  whether the loss          had been  properly determined.   We find no prejudicial  error in          ignoring the "benefit."                    The  defendant also  complains that the  district court          improperly shifted the burden  of demonstrating the value  of the          services provided  to the Beede  customers to the defendant.   In          view of the fact  that the district  court departed one level  to          accommodate the "loss" issue,7 it is not necessary to address the                                        ____________________          7    The  district  court,  in  granting  the one-level  downward          departure, explained that  had he accepted Henry's  argument that          the  loss level  should be  reduced by  the "benefit"  claimed by          Henry,  the  resulting   enhancement  required   by  U.S.S.G.              2F1.1(b)(1) would  have been eight  rather than ten levels.   The          district  court further  explained that had  the loss  level been          calculated at  eight levels, then the grouping rules for multiple          counts, U.S.S.G.    3D1.1,  et. seq., would  have come  into play          with the consequence that the total offense level would have been          reduced only one level, i.e., from  22 to 21.  In recognition  of          the controversy over the calculation  of the loss, the court then          departed downward  one level from  the total offense level  of 22          that included ten levels for the loss to a total offense level of          21.  See transcript of sentencing hearing at 153-156.               ___                                         -19-          final sentencing issue  raised by Henry challenging  the district          court's holding that the defendant had  the burden of proof as to          the benefit provided the defrauded victims.  In any event, we see          no error on these facts.                                          -20-                    IV.  ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL                    IV.  ALLEGED ERRORS IN THE CONDUCT OF THE TRIAL                    A.  Questioning of Witnesses by the District Court.                    The defendant objects  to the questioning by  the court          of the co-defendant LaFlamme and Michael Wimsatt.8  The defendant          points to  the fact that  the district court  questioned LaFlamme          about the  presence and use of the pug mill on the site, the fact          that soil  had not been  recycled even though Beede  had produced          manifests to the contrary and the role of Beede in the production          and mailing of manifests.   The fact questions in  this case were          not within the every day experience of jurors such as they are in          the  case of an automobile accident  nor did it involve a subject          such   as  homicide,  rape  or  robbery  that  are  unfortunately          commonplace in  our  society.   Against  that background,  it  is          appropriate to  again emphasize  the  previously discussed  "well          settled"  rule  that a  trial  judge  has  a "perfect  right"  to          participate in  the  trial and  to  question witnesses.    United                                                                     ______          States v. Gonz lez-Soberal, 109 F.3d 64, 72 (1st Cir. 1997).   We          ______    ________________          therefore view the  district court's questioning of  LaFlamme, in          the context of this case, as a judicial effort to assist the jury          in a comprehensive  and balanced understanding of  relevant facts          in a complicated  setting and within the  permission acknowledged          by Fed. R. Evid. 614(b).  We find no error.                                        ____________________          8    The challenged  questioning  of Wimsatt  has  been addressed          previously and we  see no need to  revisit the issue.   See supra                                                                  ___ _____          discussion at 11-14.                                         -21-                    B.   The Refusal of  the District Court to  Exclude the                    Testimony of Matthew Kelly.                    The  court issued  a  sequestration  order  as  to  the          witnesses and despite that order, the government witness, Matthew          Kelly was  present for approximately 15 minutes  of the testimony          of  the co-defendant  and cooperating  witness, Robert  LaFlamme.          Before allowing  Kelly to testify,  the trial court engaged  in a          voir dire of  Kelly and then concluded that  Kelly could testify.          _________          We  find neither  an abuse  of  discretion nor  prejudice to  the          defendant in  that the  defendant was acquitted  on the  count to          which  LaFlamme's testimony was directed while Kelly was present.          See  United States  v. Sep lveda,  15 F.3d  1161, 1177  (1st Cir.          ___  _____________     _________          1993) and United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.                    _____________    ______          1983).                    V.  ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF                    V.  ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF                                                              ______                    A.  Was the defendant impermissibly convicted?                    The  defendant filed a  separate brief with  this court          and  argues that  the United States  Code is not  "real" law, and          also that  he was impermissibly  convicted of a violation  of the          wire  fraud  statute, 18  U.S.C.    1343 because  the legislative          history  does  not  explicitly  anticipate  that  telephones  and          facsimile machines could serve as a basis  for a violation of the          statute.  We find no merit in either argument.                    VI.   THE DENIAL  OF THE DEFENDANT'S  MOTION FOR  A NEW                    VI.   THE DENIAL  OF THE DEFENDANT'S  MOTION FOR  A NEW                    TRIAL BASED ON NEWLY DISCOVERED EVIDENCE                    TRIAL BASED ON NEWLY DISCOVERED EVIDENCE                    The defendant filed a motion  for a new trial two weeks          before  his  sentencing.    The   court  went  forward  with  the                                         -22-          sentencing on  June 25, 1996, and  then heard the  motion on July          24,  1996 and  overruled  the  motion on  March  13,  1997.   The          defendant then appealed the denial.  This court then combined the          two appeals for a single appellate argument.                    Recognizing  that the standard of review is a "manifest          abuse of discretion"  as set forth in United  States v. Montilla-                                                ______________    _________          Rivera, 115 F.3d 1060, 1064 (1st Cir. 1982), citing United States          ______                                              _____________          v. Andrade, 94 F.3d 9,  14 (1st Cir. 1996), the defendant  argues             _______          that the denial of the  motion based on newly discovered evidence          was such an abuse of discretion.                       The motion  for a new  trial based on  newly discovered          evidence  was accompanied by a  number of exhibits and affidavits          in support  of the motion.  The main  thrust of the materials was          anchored in  the proposition that had the evidence been presented          to the jury, the jury would more likely have believed the defense          that  Henry did not believe the soils constituted hazardous waste          and  that  he  did intend  to  remediate the  soils.    The judge          conducted  a lengthy  hearing in which  he invited  discussion on          each of the exhibits and affidavits from counsel  and then denied          the motion in a carefully crafted 26 page order.                      A  motion for  a new  trial based  on  newly discovered          evidence, to be successful, faces a difficult test. The defendant          must demonstrate  that the evidence was unknown or unavailable at          the time of trial despite due diligence and that the evidence was          material and  likely  to result  in  an acquittal  upon  retrial.          United States v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995).          _____________    ______                                         -23-                    The  district court  found that  much  of the  evidence          could have been discovered with  due diligence.  In that context,          we note that the initial indictment was returned on March 2, 1995          and the superceding indictment was filed on January 5, 1996.  The          trial began on  February 6, 1996.   Henry and his counsel,  whose          defense of Henry  appears to have been thorough  and intense, had          nearly a  year to  prepare for the  trial.9   We see no  basis to          disturb the district  court's denial of the motion  as it related          to the evidence that could have been discovered prior to trial in          light of our   teachings that an order denying a motion for a new          trial will not be reversed except where we find a "manifest abuse          of  discretion." United States v. Montilla-Rivera, 115 F.3d 1060,                           _____________    _______________          1064 (1st Cir. 1997).                     Henry  did  offer  a March  28,  1996  report  that was          clearly new evidence  in that the report was  not available prior          to that time.   Sanborn, Head & Associates, a consultant  for the          State  of  New  Hampshire, released  a  report  assessing various          remedial  alternatives for the contaminated soil remaining at the          Beede site.   That  report, in an  appendix, contained  copies of          test  results conducted by Beede's laboratory  that used the 3040          test method.   Henry contends  that the SHA report  was important          new  evidence  as   it  demonstrated  reliance  by   the  State's          environment consultant  on the same  3040 test method  that Henry          claimed he had relied on in concluding that the soil removed from                                        ____________________          9   Henry was represented by Bjorn R. Lange, an Assistant Federal          Defender,  who was  appointed on  March 9,  1995 and  remained as          Henry's counsel throughout the trial and on appeal.                                          -24-          the   Stoneham  Laundry  site   was  nonhazardous.     The  judge          acknowledged  that the report was new  evidence, but concluded it          was impeaching and  cumulative and not sufficiently  probative to          warrant a new  trial.  In reaching that  conclusion, the district          court opined:                    Henry  has  submitted no  direct  evidence to                    support his  claim  that  either  NHDES  [New                    Hampshire Department of Environmental Safety]                    or SHA [Sanborn, Head & Associates] relied on                    the  3040 test  results included  in  the SHA                    report.    Thus,  I am  asked  to  infer this                    reliance  from  the  bare  inclusion  of  the                    documents in the appendix of the SHA report.                      The SHA report itself sheds little light on                    the extent of SHA's reliance on the 3040 test                    results.     These  test  results   were  all                    produced  by  Beede's  own  laboratory.   SHA                    included these  analyticals in Appendix  C of                    its  report.   Appendix  C is  referenced  on                    pages 3-4 of the SHA report under the heading                    "Soil   Pile   Descriptions"   which  states:                    "Analytical  results  provided by  NHDES  for                    soil  collected from piles Nos. 5A, 53, 8 and                    10 are included  in Appendix C."   Appendix C                    itself  consists  mainly   of  numerous  test                    results  from   Chem  Test   Lab,  apparently                    ordered  by NHDES.   In addition to  the Chem                    Test  results, there  are  four test  results                    produced by Beede's  laboratory which analyze                    halogens using the 9020 method, TPH using the                    GCFID  method, and  metals  levels using  the                    3040 method.  Although these test reports are                    included in Appendix C, it is unclear to what                    extent, if any, they were relied upon by SHA.                    Henry's contention, therefore, that the state                    relied on his  3040 test  analyticals in  its                    assessment of the  Beede site's contamination                    is, at best, uncertain.                      Even  assuming Henry  could  show that  the                    state relied on Beede's 3040 test analyticals                    through  the SHA  report,  Henry cannot  show                    that this new  evidence is  material.   Henry                    bases  his  argument  that   the  SHA  report                    justifies  a new trial  mainly on the grounds                    that  it  would  have  assisted  him  in  his                                         -25-                    impeachment  of  the   testimony  of  Michael                    Wimsatt.   This new  impeachment evidence  is                    not probative  enough to  suffice as  grounds                    for a  new trial.   See  Pelegrina v.  United                                        ___  _________     ______                    States,  601  F.2d  18, 21  (1st  Cir.  1979)                    ______                    ("impeaching evidence is generally treated as                    immaterial" on motion for new trial).                      Finally,   even    if   the    SHA   report                    demonstrated  that the  state  relied on  the                    3040 test and  that Henry may also  have been                    justified  in  relying  upon  it  himself,  I                    cannot  conclude that  the jury  would likely                    have acquitted Henry if it had been presented                    with  this  new  evidence.    At  trial,  the                    government's evidence was not just that Henry                    mistakenly used  the 3040 test as  opposed to                    the TCLP  test, but that  Henry was  provided                    with TCLP  test results  showing the  soil he                    was  about to  transport was hazardous.   The                    likely  inference from  these  facts is  that                    Henry  used  the  3040 test  to  convince his                    customers that the soil was not hazardous and                    could be accepted at the Beede facility.  All                    these machinations  were performed as  a part                    of a scheme whereby Henry agreed to transport                    soil from  New Jersey  to  a hazardous  waste                    facility  in Michigan,  but  actually had  no                    intention   of   doing  so.      Instead,  he                    transported the  soil to the  Beede facility,                    dumped it  there and then performed  the 3040                                         ____                    tests.   Henry showed these  new test results                    to  his customer in an attempt to convince it                    that the soil was acceptable for recycling at                    the Beede facility.   Henry's effort to  show                    that he might have  reasonably relied on  the                    3040  test results  is  unlikely to  overcome                    this evidence of willful deceit.            Appendix at pp. 18-21.                    Our standard of review is anchored in an acknowledgment          that the judge who tried the case is best equipped to examine the          issue  of whether  the new  evidence  would likely  result in  an          acquittal.  In our view,  the district court, consistent with his          deliberate  and  thoughtful  management of  this  case, carefully                                         -26-          analyzed the impact of the  Sanborn, Head & Associates report and          we see no basis for disturbing his findings.                     For the  reasons discussed,  we affirm  the defendant's          conviction and sentence, and we also affirm  the district court's          denial of the defendant's post-trial motion for a new trial.                    AFFIRMED.                    AFFIRMED                                         -27-
