

                  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., &amp; 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 &amp; 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 &amp; 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 &amp; 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-
