United States v. Desnoyers

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10-0447-cr
United States v. Desnoyers
UNITED STATES COURT OF APPEALS 1
2
F OR THE S ECOND C IRCUIT 3
4
5
6
August Term, 2010 7
8
(Argued: January 13, 2011 Decided: March 14, 2011) 9
10
Docket No. 10-0447-cr 11
12
13
U NITED S TATES OF A MERICA , 14
15
Appellant, 16
17
–v.– 18
19
M ARK D ESNOYERS , 20
21
Defendant-Appellee. 22
23
24
25
Before: 26
J ACOBS , Chief Judge, W ESLEY , and C HIN , Circuit Judges. 27
28
A jury convicted Defendant-Appellee Mark Desnoyers on 29
multiple counts, including one count of conspiracy to 30
violate the Clean Air Act and to commit mail fraud in 31
violation of 18 U.S.C. § 371. After trial, the United 32
States District Court for the Northern District of New York 33
(Hurd, J.) entered a judgment of acquittal on the conspiracy 34
count citing both factual and legal insufficiency as grounds 35
for its decision. The Government appeals the acquittal 36
ruling. We vacate the judgment of acquittal on the 37
conspiracy count, and remand the case to the district court 38
with instructions to reinstate the jury verdict, enter a 39
judgment of conviction on the conspiracy count, and 40
resentence Desnoyers accordingly. 41

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J UDGMENT VACATED IN PART AND REMANDED . 1
2
3
4
L ISA E. J ONES , United States Department of Justice, 5
Environment & Natural Resources Division, 6
Washington, DC (Ignacia S. Moreno, Assistant 7
Attorney General; Richard S. Hartunian, United 8
States Attorney for the Northern District of 9
New York; Craig Benedict, Assistant United 10
States Attorney; Colin Black, John Smeltzer, 11
United States Department of Justice, 12
Environment & Natural Resources Division, on 13
the brief) (Michael Fisher, EPA Office of 14
Criminal Enforcement, Washington, DC, of 15
counsel), for Appellant. 16
17
J OHN B. C ASEY , Dreyer Boyajian LLP, Albany, NY, for 18
Defendant-Appellee. 19
20
21
22
WESLEY, Circuit Judge: 23
The United States appeals from a June 19, 2009 order of 24
the United States District Court for the Northern District 25
of New York (Hurd, J.) entering a post-verdict judgment of 26
acquittal in favor of Defendant-Appellee Mark Desnoyers on 27
one count of conspiracy to violate the Clean Air Act (the 28
“CAA”) and to commit mail fraud in violation of 18 U.S.C. § 29
371. The district court held that Desnoyers’s conspiracy 30
conviction must be set aside because the conspiracy count 31
suffered from both factual and legal defects. We disagree. 32
We therefore VACATE the judgment of acquittal and REMAND the 33

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1 Desnoyers challenged all counts of conviction below.
On June 19, 2009, the district court denied Desnoyers’s motion to
set aside his convictions on the substantive CAA and mail fraud
counts and on the false statements counts. Neither party
challenges that ruling on appeal.
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case to the district court with instructions to reinstate 1
the jury verdict, enter a judgment of conviction on the 2
conspiracy count, and resentence Desnoyers. 3
BACKGROUND 4
Desnoyers was licensed in New York to conduct air 5
monitoring at asbestos abatement projects and to document 6
the results of asbestos removal work. Based on evidence 7
that Desnoyers conducted his work fraudulently and sometimes 8
not at all, the Government charged Desnoyers with (1) 9
conspiring to violate the CAA and to commit mail fraud in 10
violation of 18 U.S.C. § 371; (2) violating the CAA in 11
violation of 42 U.S.C. § 7413(c)(1); (3) mail fraud in 12
violation of 18 U.S.C. § 1341; and (4) three counts of 13
making false statements in violation of 18 U.S.C. § 1001. 14
The jury convicted Desnoyers on all counts except one count 15
of making false statements. 16
After trial, Desnoyers filed a motion pursuant to 17
Federal Rules of Criminal Procedure 29(c) and 33 challenging 18
his conspiracy conviction. 1 Desnoyers conceded below that 19

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2 The Government moved for reconsideration of the
acquittal. On September 14, 2009, the district court denied the
Government’s request to reinstate the conviction.
3 Desnoyers thus concedes that he could not have challenged
his conviction if the conspiracy count had alleged only a mail
fraud object.
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the Government introduced sufficient evidence at trial to 1
support the mail fraud object of the conspiracy. Desnoyers 2
argued that his conspiracy conviction is nevertheless 3
defective because the CAA object rendered the conspiracy 4
count both factually and legally defective. The district 5
court agreed that the conspiracy count was factually and 6
legally defective and on June 19, 2009, entered a judgment 7
of acquittal on the conspiracy count. 2
8
The Government appeals the district court’s entry of a 9
judgment of acquittal on the conspiracy count; the other 10
counts are not at issue on appeal. Accordingly, we need 11
only examine in depth the evidence relevant to the 12
conspiracy count. We pay particular attention to the CAA 13
object of the conspiracy because Desnoyers concedes that the 14
mail fraud object did not suffer from any defects. 3
15
The Indictment charged Desnoyers and others with 16
conspiring to violate the CAA and the mail fraud statute 17
based on Desnoyers and his co-conspirators’s asbestos 18

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abatement work in eight buildings. The Government conceded 1
after trial, however, that seven of these buildings were not 2
subject to the CAA asbestos removal regulations. The CAA 3
asbestos removal regulations cover only residences with more 4
than four units and commercial buildings; additionally, 5
buildings must contain “friable” asbestos and at least 260 6
linear feet of asbestos on pipes or 160 square feet of 7
asbestos on other facility components in order to be subject 8
to the regulations. See 40 C.F.R. §§ 61.141 (defining 9
friable asbestos as “any material containing more than 1 10
percent asbestos . . . that, when dry, can be crumbled, 11
pulverized, or reduced to powder by hand pressure”), 12
61.145(a)(1)(i-ii), (4)(i-ii). When the CAA asbestos 13
regulations apply, specific work practices must be followed 14
during asbestos removal. See 40 C.F.R. § 61.145. Failure 15
to observe these practices when a building is not subject to 16
the CAA asbestos regulations does not violate the CAA. 17
The parties dispute whether one building at issue in 18
the conspiracy count — known as 69 Clinton Street — is 19
subject to the CAA asbestos regulations. Evidence at trial 20
showed that 69 Clinton Street was a commercial property 21
containing friable asbestos. No witness testified directly, 22

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4 The “large” and “small” designations arise because New
York Code 56 regulates asbestos removal differently based on the
size of a building. A “large” building under New York’s legal
framework is one meeting the size requirements set forth in the
CAA regulations. Code 56 still covers “small” projects, but sets
forth less restrictive removal requirements.
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however, about the exact asbestos measurements at 69 Clinton 1
Street; indeed, these measurements were not taken by an EPA 2
monitor because the pipes had been removed before he visited 3
the site. The Government’s evidence on asbestos quantity 4
came from the testimony of multiple witnesses that the 69 5
Clinton Street project was either “a large” or not “a 6
small.” These same witnesses all testified that in the New 7
York asbestos industry, a large project is understood to be 8
a project with sufficient asbestos to fall under the CAA's 9
requirements, whereas a small project is not. 4 Several 10
witnesses explicitly explained that “a large” is understood 11
as a project containing at least 260 linear feet of asbestos 12
on pipes or 160 square feet of asbestos on other facility 13
components — that is, a project with sufficient asbestos to 14
qualify under the quantity requirement of the CAA asbestos 15
regulations. 16
The district court concluded that the Government failed 17
to show that 69 Clinton Street was subject to the CAA’s 18
asbestos regulations because no witness testified directly 19

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about the quantity of asbestos at 69 Clinton Street. The 1
district court reasoned that the testimony at trial was 2
insufficient to show that 69 Clinton Street contained at 3
least 260 linear feet of asbestos on pipes or 160 square 4
feet of asbestos because “the witnesses’ opinions as to what 5
constitutes a ‘large’ project could obviously still fall 6
short of the rule’s footage requirements.” 7
Based on the foregoing, the district court concluded 8
that the jury’s verdict on the conspiracy count could not 9
stand because the CAA object suffered from a factual defect. 10
Although a factual defect in one object of a multi-object 11
conspiracy does not ordinarily require a court to overturn a 12
guilty verdict, United States v. Garcia, 992 F.2d 409, 416 13
(2d Cir. 1993), the district court entered a judgment of 14
acquittal on the conspiracy count. In so holding, the 15
district court found that the ordinary rule for multi-object 16
conspiracies did not apply because “an overwhelming amount 17
of evidence relevant only to the unproved part of the 18
conspiracy may have prejudiced the jury.” See United States 19
v. Papadakis, 510 F.2d 287, 297 (2d Cir. 1975). 20
The district court found in the alternative that a 21
judgment of acquittal was required because the CAA object of 22

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5 Notably, the court did not consider any of the eight
projects at issue in the conspiracy count when assessing losses
at sentencing. Additionally, likely as a result of its decision
to enter a judgment of acquittal on the conspiracy count, the
court did not impose an enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2) for an offense involving ten or more victims.
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the conspiracy suffered from a legal defect. The district 1
court reasoned: 2
Here, the Clean Air Act objective 3
within Count One suffered from a 4
substantial legal defect because of the 5
inapplicability of the Act’s regulatory 6
standards. Even if the evidence, viewed 7
in the light most favorable to the 8
Government, was sufficient to show that 9
the Clean Air Act applied to the 69 10
Clinton Street project, it remains 11
undisputed that it was legally impossible 12
for defendant to conspire to violate the 13
Clean Air Act with respect to the 14
remaining seven projects identified in 15
Count One. . . . [T]here were seven 16
instances in which the jury had to 17
consider a legally impossible theory of 18
guilt. Defendant’s conviction under Count 19
One may very well have been based upon 20
any one of these seven legally impossible 21
theories. Accordingly, the weight of the 22
evidence admitted at trial is irrelevant, 23
and defendant’s conviction cannot stand. 24
25
The court thereafter entered judgments of guilt on the 26
remaining counts and sentenced Desnoyers based on these 27
counts. 5
28
The Government filed this timely appeal challenging the 29
district court’s entry of a judgment of acquittal as to the 30

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conspiracy count. 1
DISCUSSION 2
A. Standard of Review 3
We review a judgment of acquittal notwithstanding a 4
guilty verdict de novo and apply “the same standard of 5
constitutional sufficiency as the district court.” United 6
States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010). A 7
defendant challenging the sufficiency of the evidence “bears 8
a heavy burden,” United States v. Aguilar, 585 F.3d 652, 656 9
(2d Cir. 2009), because a reviewing court must sustain the 10
jury’s guilty verdict if, “viewing the evidence in the light 11
most favorable to the prosecution, any rational trier of 12
fact could have found the essential elements of the crime 13
beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 14
307, 319 (1979) (emphasis in original). 15
B. The Conspiracy Conviction Suffered Neither a Factual 16
Nor a Legal Defect 17
18
Claims of factual and legal defects both challenge the 19
sufficiency of the Government’s case, but they do so in 20
distinct ways. A factual challenge tests the sufficiency of 21
the evidence and requires a court to examine whether a 22

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reasonable jury could find each element of a crime proven 1
beyond a reasonable doubt. Jackson, 443 U.S. at 319. A 2
legal challenge, by contrast, questions whether a conviction 3
rests on “a mistake about the law, as opposed to a mistake 4
concerning the weight or the factual import of the 5
evidence.” Griffin v. United States, 502 U.S. 46, 59 6
(1991). A mistake about the law occurs when a defendant is 7
charged with conduct that is not legally actionable — when, 8
for instance, the charged conduct “is protected by the 9
Constitution, is time barred, or fails to come within the 10
statutory definition of the crime.” Id.; see also Garcia, 11
992 F.2d at 415-16. 12
The difference between factual and legal challenges is 13
significant because “when disjunctive theories are submitted 14
to the jury and the jury renders a general verdict of 15
guilty, appeals based on evidentiary deficiencies must be 16
treated differently than those based on legal deficiencies.” 17
Garcia, 992 F.2d at 416. “If the challenge is evidentiary, 18
as long as there was sufficient evidence to support one of 19
the theories presented, then the verdict should be affirmed. 20
However, if the challenge is legal and any of the theories 21

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was legally insufficient, then the verdict must be 1
reversed.” Id. This distinct treatment is appropriate 2
because: 3
Jurors are not generally equipped to 4
determine whether a particular theory of 5
conviction submitted to them is contrary 6
to law . . . . When, therefore, jurors 7
have been left the option of relying upon 8
a legally inadequate theory, there is no 9
reason to think that their own 10
intelligence and expertise will save them 11
from that error. Quite the opposite is 12
true, however, when they have been left 13
the option of relying upon a factually 14
inadequate theory, since jurors are well 15
equipped to analyze the evidence. 16
17
Griffin, 502 U.S. at 59. 18
Here, Desnoyers asserts that his conspiracy conviction 19
was both factually and legally defective. He contends that 20
the Government did not — and could not — prove that 69 21
Clinton Street was subject to the CAA asbestos regulations. 22
His first challenge, examining what the Government actually 23
proved, is factual. Desnoyers contends that his second 24
challenge, questioning what the Government could prove, is 25
legal. Notably, Desnoyers does not challenge the CAA object 26
of the conspiracy count in any other respect. He raises no 27
objections regarding the mail fraud object of the conspiracy 28

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6 We will assume that the evidence with regard to 69
Clinton Street was insufficient. That assumption is debatable
given that the government is entitled to every favorable
inference from the evidence it presented at trial, but for our
purposes we need not decide that issue in light of the conceded
sufficiency of the evidence with regard to the mail fraud object
of the conspiracy count.
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count. 1
1. Factual Sufficiency 2
Desnoyers’s factual challenge fails because he disputes 3
just one object of the multi-object conspiracy charged. 4
Garcia, 992 F.2d at 416. 6 Desnoyers’s concession that the 5
Government proved the mail fraud object of the conspiracy 6
fatally undermines his factual challenge. Id. The Supreme 7
Court has made clear that there is “no exception” to the 8
rule that “‘[w]hen a jury returns a guilty verdict on an 9
indictment charging several acts in the conjunctive . . . 10
the verdict stands if the evidence is sufficient with 11
respect to any one of the acts charged.’” Griffin, 502 U.S. 12
at 56-57 (quoting Turner v. United States, 396 U.S. 398, 420 13
(1970)). 14
Our Court has previously announced a “caveat” to the 15
general rule that “[w]here a conspiracy has multiple 16
objectives, a conviction will be upheld so long as evidence 17

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is sufficient to show that an appellant agreed to accomplish 1
at least one of the criminal objectives.” Papadakis, 510 2
F.2d at 297. In Papadakis, we held that this caveat applies 3
when “an overwhelming amount of evidence relevant only to 4
the unproved part of the conspiracy may have prejudiced the 5
jury.” Id. The Government urges us to hold that Griffin 6
implicitly overruled the Papadakis caveat. See Griffin, 502 7
U.S. at 57. 8
We need not determine the continuing validity of the 9
Papadakis caveat, however, because the caveat does not apply 10
in any event to this case. Even assuming arguendo that the 11
Government failed to prove the CAA object, an overwhelming 12
amount of the evidence at trial was not relevant solely to 13
the CAA object. Instead, the trial evidence related to 14
Desnoyers and his co-conspirators’ abatement work and false 15
representations to clients was relevant to both the CAA 16
object and the mail fraud object. This evidence supported 17
the government’s mail fraud allegation by showing that 18
Desnoyers and his co-conspirators participated in a scheme 19
to use the mail to falsely represent to clients that their 20
abatement and monitoring work complied with state law. 21

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Accordingly, even if valid, the Papadakis caveat does not 1
support a judgment of acquittal notwithstanding the verdict 2
here. 3
2. Legal Sufficiency 4
Although Desnoyers labels his second argument a legal 5
challenge, he fails to actually set forth a cognizable legal 6
challenge. Desnoyers contends that the CAA object of the 7
conspiracy was legally defective because, according to 8
Desnoyers, the Government could not prove that any of the 9
eight projects charged in the conspiracy count, including 69 10
Clinton Street, were subject to the CAA asbestos 11
regulations. Desnoyers’s purported legal challenge is 12
simply a restatement of his factual challenge — he contends 13
that the Government failed to prove an element of the 14
offense. 15
The Supreme Court has suggested that a legal defect 16
arises when a court instructs jurors using an incorrect 17
explanation of the law. Griffin, 502 U.S. at 59. Unlike 18
jurors presented with a factually deficient theory, jurors 19
presented with a mistaken view of the law cannot be presumed 20
to have discovered the legal mistake. Jurors are fact 21

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finders, not lawyers or judges, and thus “are not generally 1
equipped to determine whether a particular theory of 2
conviction submitted to them . . . fails to come within the 3
statutory definition of the crime.” Id. 4
Our Court applied this principle in Garcia when a 5
defendant challenged his conviction for extortion in 6
violation of the Hobbs Act on the grounds that two of the 7
three definitions of extortion provided to the jury did not 8
satisfy the Supreme Court’s definition of Hobbs Act 9
extortion. Garcia, 992 F.2d at 415. In the intervening 10
time between the trial in Garcia and Garcia’s challenge on 11
appeal, the Supreme Court held in Evans v. United States, 12
504 U.S. 255, 268 (1992), that the relevant extortion 13
statute required the Government to prove a quid pro quo: 14
“‘that a public official has obtained a payment to which he 15
was not entitled, knowing that the payment was made in 16
return for official acts.’” Garcia, 992 F.2d at 414 17
(quoting Evans, 504 U.S. at 268). Because two of the 18
district court’s instructions in Garcia did not require the 19
jury to find a quid pro quo, the jury could have convicted 20
Garcia after finding that he committed conduct described in 21

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7 Griffin recognized that “legal error” is sometimes used
in the sense Desnoyers advocates. Griffin explained:
In one sense “legal error” includes
inadequacy of evidence — namely, when the
phrase is used as a term of art to designate
those mistakes that it is the business of
judges (in jury cases) and of appellate
courts to identify and correct. In this sense
“legal error” occurs when a jury, properly
instructed as to the law, convicts on the
basis of evidence that no reasonable person
could regard as sufficient. But in another
sense — a more natural and less artful sense
— the term “legal error” means a mistake
about the law, as opposed to a mistake
concerning the weight or the factual import
of the evidence.
Griffin, 502 U.S. at 59. Griffin expressly clarified that the
Court was “using ‘legal error’ in the latter sense” when
describing the type of error that renders a multi-count
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the errant instructions that was not, in fact, prohibited by 1
the Hobbs Act. Id. Given this possibility, our Court 2
overturned Garcia’s extortion conviction on the ground of 3
legal defect. 4
Here, Desnoyers contends that his conspiracy conviction 5
suffered from a similar legal defect because the jury needed 6
to determine whether Desnoyers’s conduct fell within the 7
proscriptions of the CAA. Desnoyers’s view, if we accepted 8
it, would stretch Griffin’s definition of a legal error 9
beyond recognition. 7 Juries are always asked to determine 10

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conviction invalid. Id. Desnoyers, meanwhile, is not.
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whether a defendant’s conduct falls within the definition of 1
a crime in the sense that juries must always determine 2
whether a defendant committed every essential element of a 3
crime. See Jackson, 443 U.S. at 319. Griffin’s use of 4
“fail[ed] to come within the statutory definition” of a 5
crime concerns cases where the statutory definition itself 6
is contested or unclear. Garcia was such a case because the 7
jury was presented with alternative definitions of 8
extortion, only one of which actually described conduct 9
within the statutory definition of extortion. See Garcia, 10
992 F.2d at 415. 11
Unlike Garcia, the present case did not involve a 12
mistake about the law. The jury was not instructed to apply 13
incorrect legal principles or definitions. Instead, the 14
jury was correctly instructed on the conditions under which 15
the CAA asbestos regulations apply. The jury was then 16
tasked with fact finding: in order to determine whether 17
Desnoyers conspired to violate the CAA, the jury was asked 18
to determine, among other things, whether each property in 19
the conspiracy count was (1) a commercial property or a 20

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residential property with more than four units containing 1
(2) a sufficient quantity of (3) friable asbestos. The 2
Government could prove that one of those properties, 69 3
Clinton Street, was subject to the CAA asbestos regulations 4
by introducing evidence of these three factors. 5
The fact that the Government may not have established 6
that the properties at issue in the conspiracy count were 7
subject to the CAA asbestos regulations was a factual 8
deficiency in the Government’s case, not a legal one. As a 9
result, the district court erred when it characterized the 10
Government’s CAA theory as “legally impossible.” 11
In sum, the conspiracy count suffered neither a factual 12
nor a legal defect. 13
CONCLUSION 14
Based on the foregoing, the district court’s decision 15
to set aside the jury verdict was in error. We therefore 16
VACATE the judgment granting the Rule 29 motion and REMAND. 17
The district court is instructed to reinstate the jury 18
verdict, enter a judgment of conviction on the conspiracy 19
count, and resentence Desnoyers accordingly. 20

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