

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

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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 &amp;  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
