
USCA1 Opinion

	




          June 7, 1995      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      __________________          No. 94-1195                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 GIACOMO D. CATUCCI,                                Defendant, Appellant.                                                                                      ____________________                                     ERRATA SHEET               The opinion of this Court issued on May 24, 1995, is amended          as follows:               Cover sheet:  change spelling of appellant's attorney's name          to "Marcia G. Shein".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                                                                                                                           ____________________        No. 94-1195        No. 94-1195                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                 GIACOMO D. CATUCCI,                                 GIACOMO D. CATUCCI,                                Defendant, Appellant.                                Defendant, Appellant.                                                                                                                                           ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                 [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                           __________________________                                                                                                                                           ____________________                               Torruella, Chief Judge,                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                               and Cyr, Circuit Judge.                                        _____________                                                                                                                                           ____________________             Marcia G. Shein, with  whom National Legal Services, Inc.  was on             Marcia G. Shein, with  whom National Legal Services, Inc.  was on             _______________             _____________________________        brief for appellant.        brief for appellant.             Craig  N.  Moore, Assistant  United  States  Attorney, with  whom             Craig  N.  Moore, Assistant  United  States  Attorney, with  whom             ________________        Sheldon Whitehouse, United States Attorney, was on brief for appellee.        Sheldon Whitehouse, United States Attorney, was on brief for appellee.        __________________                                                                                                                                           ____________________                                     May 24, 1995                                     May 24, 1995                                                                                                                                           ____________________                    CYR,  Circuit  Judge.   After  a  jury returned  guilty                    CYR,  Circuit  Judge.                    ___          verdicts against  defendant-appellant Giacom  D. Catucci  on four          toxic-waste dumping charges, the district court imposed a twenty-          seven month  prison sentence  and Catucci  appealed.  Finding  no          reversible error, we affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The salient facts  are recited in the light most favor-          able to the verdicts.  United States v. Tuesta-Toro, 29 F.3d 771,                                 _____________    ___________          774 (1st  Cir. 1994).  In  1987, Catucci, then the  proprietor of          Post Tron Systems, instructed  the plant superintendent to obtain          cost quotations for removing  two PCB-laden electrical transform-          ers  from  the  firm's  business premises  in  Providence,  Rhode          Island.  The cost estimates ranged between $8,000 and $10,000 per          unit.  Years later, in June 1991, Post Tron Systems' lending bank          conducted  an  environmental   audit  and  specifically  informed          Catucci  that the two transformers  containing PCBs would have to          be  removed in  accordance with  Environmental Protection  Agency          ("EPA") regulations.  Shortly  thereafter, Post Tron went out  of          business.                    During the  course  of subsequent  renovations  to  the          business  facilities, Catucci  arranged  for Manuel  Almeida  and          Timothy  Arcaro to remove a  conveyor belt system.   As compensa-          tion, Almeida  and Arcaro  were to  retain the  salvageable scrap          metal     approximating $40 per day in  value    recovered in the          course of the renovations.   Almeida and Arcaro later  offered to                                          3                                          3          remove  all five transformers at the site, including the two PCB-          laden  ones, in return for the right  to retain the salvage value          of their copper coils.  Although the plant superintendent remind-          ed  Catucci that scrapping the  transformers would be against the          law,  Catucci nevertheless  granted  permission, stating  to  the          superintendent:  "If [Arcaro] wants them, he can have them all."                    A few months  later, Almeida,  Arcaro and  a third  in-          dividual    David  Dellinger    removed two units,  including one          of  the PCB-laden  transformers, after  loosening their  lids and          thereby  causing oil to leak  onto local streets  and I-95 during          transportation.   At a secluded gravel pit, the remaining oil was          dumped,  the copper coils were removed  and the transformers were          abandoned.   The next day, the men  repeated the process with the          three remaining units    one containing PCBs.                    More  than  a  year later,  while  investigating  David          Dellinger, the Rhode Island  Department of Environment Management          ("DEM")  discovered the PCB-laden  oil that had  been dumped from          the Post  Tron transformers.  A few weeks later, the DEM executed          a  search warrant  at  the former  Post Tron  facility.   On  the          following  day, Catucci informed the Providence Police Department          that  the transformers had been stolen.  Not until several months          after Arcaro and  Almeida were arrested  for stealing the  trans-          formers  did Catucci admit to  having allowed them  to remove the          transformers.  Even then  he claimed that they  had been told  to          dispose of the transformers lawfully.                    Thereafter, Catucci  was charged, in  two counts,  with                                          4                                          4          causing  unlawful  disposal of  PCBs  in violation  of  15 U.S.C.           2615(b) and, in  two additional counts, with  failing to provide          immediate notification  of a  release of hazardous  materials, in          violation  of 42 U.S.C.    9603(b).  Following  his conviction on          all counts, Catucci was sentenced to twenty-seven months.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Sufficiency of the Evidence          A.   Sufficiency of the Evidence               ___________________________                    On appeal, Catucci  claims that there  was insufficient          evidence  that he  knew the  two PCB-laden transformers  would be          disposed  of  illegally, an  essential  element  in each  offense          charged.   See 15  U.S.C.   2615(b)  (establishing criminal sanc-                     ___          tions for  knowingly or  willfully violating EPA  dumping regula-                               __          tions); 42  U.S.C.    9603(b)  (establishing  criminal  sanctions          against any  person for failing to  notify appropriate government          agency of release "as soon as he has knowledge of such release");          United States v. Buckley, 934 F.2d 84, 89 (6th Cir. 1991); United          _____________    _______                                   ______          States v. Pacific  Hide &  Fur Depot, Inc.,  768 F.2d 1096,  1098          ______    ________________________________          (9th  Cir. 1985) (Kennedy  J.) (  2615);   United States v. Ward,                                                     _____________    ____          676 F.2d  94, 97 (4th  Cir.) (same), cert.  denied, 459 U.S.  835                                               _____  ______          (1982).                      Under the established standard of review set out in the          margin,1  we find  ample evidence to  support the  essential jury                                        ____________________               1    We assess the sufficiency  of the evidence as  a whole,                    including all reasonable inferences,  in the light most                    favorable  to the  verdict, with  a  view to  whether a                    rational trier  of fact could have  found the defendant                                          5                                          5          findings that Catucci knew Almeida and Arcaro would dump the PCBs          unlawfully,  and that he did not provide timely notice to govern-          mental authorities.                      First, the evidence at trial demonstrated  that Catucci          had  been  informed, by  his  plant  superintendent, that  lawful          disposal of each PCB-laden  transformer would cost between $8,000          and $10,000, since EPA regulations required that they be inciner-          ated.   As Almeida and Arcaro  were willing to remove  the trans-          formers  in return for the  salvage value of  their copper coils,          the jury assuredly could  infer that Catucci was well  aware that          the two PCB-laden  transformers were not going  to be incinerated             at a total minimum cost  of $16,000    by volunteers who would          receive  only their scrap value in return.   See United States v.                                                       ___ _____________          Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) (noting that jurors may          ______          evaluate evidence in light of "their experience as to the natural          inclinations  of human  beings").   Second, Catucci  subsequently          misrepresented  that  the  transformers  had been  stolen,  which          permitted the jury to  infer consciousness of guilt.   See United                                                                 ___ ______          States  v. Passos-Paternina,  918 F.2d 979,  985 (1st  Cir. 1990)          ______     ________________          (jury  may  construe knowingly  false  statement  as evidence  of          consciousness of  guilt), cert. denied,  499 U.S. 982,  and cert.                                    _____ ______                      _____                                        ____________________                    guilty  beyond a  reasonable doubt.   We  do not  weigh                    witness credibility, but resolve all credibility issues                    in  favor of the verdict.  The evidence may be entirely                    circumstantial, and  need not exclude  every reasonable                    hypothesis of  innocence; that is, the  fact finder may                    decide  among  reasonable interpretations  of  the evi-                    dence.          United States v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994).          _____________    ____                                          6                                          6          denied, 501 U.S. 1210 (1991).            ______                                          7                                          7          B.   Adjustment for Repetitive Discharge          B.   Adjustment for Repetitive Discharge               ___________________________________                    Catucci  assigns error  in  the  net four-level  upward          adjustment  the  sentencing court  made  pursuant  to U.S.S.G.             2Q1.2(b)(1)(A), which states:                    If the  offense resulted in  an ongoing, con-                    tinuous, or repetitive discharge,  release or                    emission of a hazardous or toxic substance or                    pesticide into the environment, increase by 6                    levels.                    Catucci argues  that it was mere  happenstance that the          two PCB-laden transformers were dumped on different days.  Conse-          quently, he contends, absent evidence that he intended repetitive          discharges the district court misapplied the repetitive discharge          adjustment.   We discern no  error.2  After  adopting a six-level          upward adjustment under  U.S.S.G.   2Q1.2(b)(1)(A), the  district          ______ __________          court  invoked Application Note  5 as  authority for  a two-level          downward departure,  resulting in a net upward adjustment of four          ________ _________          levels.  Application  Note 5 expressly  states that the  district          court is  invested with authority  to make "a departure  of up to          two levels in  either direction" depending upon  the quantity and          duration of  the discharge and the  nature of the harm  caused by          it.  U.S.S.G.   2Q1.2, comment. (n.5).                      U.S.S.G.   2Q1.2(b)(1)(A)  is triggered if  the offense          resulted  in  an  ongoing, continuous  or  repetitive  discharge.          ________  __                                        ____________________               2Guideline  interpretations are  reviewed  de novo,  whereas                                                          __ ____          relevant factual findings are reviewed  for clear error and their          application under the guideline  is accorded due deference.   See                                                                        ___          United  States v.  Ovalle-Marquez,  36 F.3d  212,  221 (1st  Cir.          ______________     ______________          1994), cert. denied, 115 S. Ct. 947, and cert. denied, 115 S. Ct.                 _____ ______                      _____ ______          1322 (1995).                                            8                                          8          Catucci concedes that the  two PCB-laden transformers were dumped          on  separate occasions.  Nothing  more need be  shown to activate          the  repetitive  discharge  adjustment.   See  United  States  v.                                                    ___  ______________          Liebman, 40 F.3d  544, 550 (2d  Cir. 1994) (repetitive  discharge          _______          adjustment under    2Q1.2(b)(1)(A) warranted  where defendant had          untrained workers  remove hazardous  material  from factory,  and          workers unlawfully  dumped material  on several different  days);          United States v. Strandquist,  993 F.2d 395, 401 (4th  Cir. 1993)          _____________    ___________          (analogous upward  adjustment under   2Q1.3(b)(1)(A)  for repeti-          tive discharge triggered by establishing second discharge).            C.   Aberrant Behavior          C.   Aberrant Behavior               _________________                    Catucci  urges a  remand  for resentencing  because the          district court allegedly  misapprehended its authority  to depart          downward on the ground  that these offenses constituted "aberrant          behavior."   See United States  v. Russell, 870  F.2d 18, 20 (1st                       ___ _____________     _______          Cir. 1989)  (adverting to guideline relating  to "aberrant behav-          ior" departures).                     At sentencing, the  district court repeatedly indicated          its readiness  to allow  a  principled downward  departure.   Yet          despite  the district  court's specific  invitation ("Do  you see          anything . . . which would authorize my departure in this case in          a justifiable and reasonable  manner?") and its apparent displea-          sure at having to impose  a prison sentence on a person  "who may          have had  an aberration," no  "aberrant behavior" claim  was pre-          sented  to the district court.   In these  stark circumstances, a          finding of waiver is  virtually compelled.  Cf. United  States v.                                                      ___ ______________                                          9                                          9          Montoya,  967 F.2d  1, 2  (1st Cir.  1992) (sentencing  claim not          _______          presented to district court deemed  waived), cert. denied, 113 S.                                                       _____ ______          Ct. 507 (1992); United States v. Dietz, 950 F.2d 50, 55 (1st Cir.                          _____________    _____          1991);  United States v. Rosalez-Cortez,  19 F.3d 1210, 1220 (7th                  _____________    ______________          Cir.  1994) (failure to  raise "aberrant behavior"  claim in dis-          trict court results in waiver).3          D.   Criminal Rule 32          D.   Criminal Rule 32               ________________                    Catucci contends that resentencing is necessary because          the district court failed to  comply with Rule 32(c)(3)(D), which          provides  that,  as to  any  alleged "factual  inaccuracy  in the          presentence investigation report," the district court is to "make          (i) a finding  as to the allegation or  (ii) a determination that          no such finding is necessary because the matter controverted will          not be taken into account in sentencing."   A "written record" of          the sentencing  court's findings is  required.  United  States v.                                                          ______________          Savoie, 985 F.2d 612, 620 (1st Cir. 1993).            ______                                        ____________________               3Even assuming,  arguendo, that  the present claim  had been                                ________          preserved, we note that six  circuits have determined that "aber-          rant behavior"  is  not established  unless  the defendant  is  a          first-time offender and the crime was "a spontaneous and seeming-          ly  thoughtless act  rather  than one  which  was the  result  of          substantial planning."   United  States v.  Carey, 895  F.2d 318,                                   ______________     _____          324-25 (7th Cir.  1990). See  United States  v. Premachandra,  32                                   ___  _____________     ____________          F.3d 346, 349  (8th Cir. 1994); United States v. Duerson, 25 F.3d                                          _____________    _______          376, 380 (6th Cir. 1994); United States v. Marcello, 13 F.3d 752,                                    _____________    ________          761 (3d Cir.  1994); United States v.  Williams, 974 F.2d 25,  26                               _____________     ________          (5th Cir. 1992),  cert. denied,  113 S. Ct.  1320 (1993);  United                            _____ ______                             ______          States v.  Glick, 946 F.2d 335,  338 (4th Cir. 1991).   The Ninth          ______     _____          and Tenth Circuits apply a somewhat different test, permitting  a          downward  departure for  "aberrant behavior"  based on  a finding          that the  offense did  not comport  with the  defendant's "normal          character . . . [and] is a complete shock and  out of character."          United States v.  Tsosie, 14  F.3d 1438, 1441  (10th Cir.  1994);          _____________     ______          United  States v. Fairless, 975 F.2d 664, 666-67 (9th Cir. 1992).          ______________    ________          In all events,given the circumstances we discern no plain error.                                           10                                          10                    Catucci  argues that  the  sentencing  court failed  to          address the following claim that he be allowed a downward adjust-          ment as a "minor or minimal" participant:                      .  . .  you could  make a  downward departure                    based upon a  role as a minor  in the offense                    or . . .  a minimal role in that  offense and                    in --  in the whole case, if  you believe the                    jury's decision, they  were told that  I gave                    permission to take the transformers.                    No one ever said that I told them  to dispose                    of the  transformers or I gave  permission to                    dump the transformers.  They said they allege                    that they asked me for permission to take the                    copper  from the transformers  and that's the                    worst of the testimony from that perspective,                    so I just raise that issue.          Later in his  allocution, after  Catucci had  asserted his  inno-          cence, the district  court cautioned that it could  not disregard          the  jury  verdicts.4   The  district  court ruling  rejecting  a          downward adjustment  under U.S.S.G.   3B1.2 is  not challenged on          appeal.                     Catucci's claimed entitlement to a downward "departure"          under U.S.S.G.    3B1.2, notwithstanding the central jury finding          that  he knowingly allowed Arcaro  and Almeida to  dispose of the          transformers, did not challenge any factual statement in the pre-                        ___ ___ _________ ___ _______ _________          sentence report, but  amounted instead to  an attempt to  dispute          the legal import of the jury verdicts.  Absent a claim of factual          inaccuracy, the Rule 32(c)(3)(D) requirement simply is not impli-                                        ____________________               4A  role-in-the-offense  determination   presents  a   mixed          question of law  and fact, United States v. Carrozza,  4 F.3d 70,                                     _____________    ________          89 (1st Cir. 1993), cert.  denied, 114 S. Ct. 1644 (1994),  which                              _____  ______          we  review  only for  clear error,  by  reason of  its fact-bound          nature, United States v. Rodriguez Alvarado, 985 F.2d 15, 19 (1st                  _____________    __________________          Cir. 1993).                                            11                                          11          cated.  United States v. Pellerito, 918 F.2d 999, 1003 (1st  Cir.                  _____________    _________          1990) (Rule 32(c)(3)(D)  not triggered by claim  of legal error);          United States v. Reese, 998 F.2d 1275, 1285 (5th Cir. 1993) (Rule          _____________    _____          32(c)(3)(D)  not triggered by claim of error in assigning role in          offense).5                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the  foregoing reasons, the  judgment of conviction          and sentence is affirmed.                     Affirmed.                    Affirmed.                    ________                                        ____________________               5United States  v. Rosado-Ubiera,  947 F.2d 644,  645-46 (2d                _____________     _____________          Cir. 1991), is not to the contrary.  There the district court had          refused  to resolve both a factual dispute, as to the defendant's          conduct, and the defendant's role in the offense.                                           12                                          12
