United States of America v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 2004 . We find no…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4850
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEXANDER LAPTEFF,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-78)
Argued: September 19, 2005 Decided: December 28, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of North
Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: William Jeffrey Dinkin, DINKIN, PURNELL & JOHNSON,
P.L.L.C., Richmond, Virginia, for Appellant. Brian Lee Whisler,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Paul J.
McNulty, United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
A federal grand jury returned an eighteen count indictment
against the Defendant Alexander Lapteff, alleging certain
violations of the Clean Water Act, 33 U.S.C. § 1301 et seq., and
related charges. The court dismissed one false statement count at
the close of the government’s evidence. The jury convicted the
defendant of three counts of making false statements in a log book,
two counts of making false statements in a discharge monitoring
report, one count of failing to maintain monitoring records, and a
lesser included offense of negligent failure to properly maintain
and operate a sewage treatment facility. The jury acquitted the
defendant on one count of failing to submit a report and one count
of making a false statement.
Following the jury’s verdict, the district court sentenced
Lapteff to thirty-six months’ imprisonment, one year of supervised
release, a fine of $5,000 and a special assessment of $625.
Lapteff now challenges his conviction, arguing that the district
court improperly admitted "other crimes" evidence against him, as
well as, for impeachment, a 1992 federal conviction for filing a
false tax return. The defendant also challenges his sentence on
grounds that the district court made factual findings at sentencing
not found by the jury, which enhanced his sentence in violation of
the Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We find no reversible

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error and affirm Lapteff's conviction. We vacate his sentence,
however, and remand this case for re-sentencing consistent with the
Supreme Court's recent decision in United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and our decision
in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
I.
In April 1997, the Christchurch school contracted with
Analytech, Inc. (“Analytech”), an environmental consulting firm, to
manage the Christchurch wastewater treatment facility. From
November 1997, through March 2002, the defendant, Alexander
Lapteff, operated the wastewater treatment facility on behalf of
Analytech.
As the principal operator of the Christchurch facility,
Lapteff was required to comply with the conditions detailed in the
National Pollution Discharge Elimination System Permit (the
“permit”) issued to the facility. The permit set forth effluent
discharge limits, monitoring and recordation requirements, and
conditions for general maintenance and operation of the facility.
Between September 2001 and December 2001, Virginia Department
of Environmental Quality ("DEQ") inspector Steven Stell conducted
a series of announced and unannounced inspections of the
Christchurch facility. During these investigations, Stell observed
and documented continuing violations of the permit. Moreover, on

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December 10, 2001, Analytec submitted its November Discharge
Monitoring Report to the DEQ, which failed to reflect the chlorine
residuals at the Christchurch facility for the month of November,
as required by the permit. After Stell concluded his investigation,
he notified DEQ criminal investigator Ralph Mayer.
On January 8, 2002, Mayer commenced an investigation to verify
whether an Analytech employee was conducting the requisite daily
operations. Mayer's investigation, and a subsequent investigation
by the FBI, revealed several discrepancies between the log book
entries stating when daily maintenance was performed, and the dates
on which investigators observed an Analytech employee actually visit
the facility. The investigation also revealed that when Lapteff
came to the facility, he remained there for less than 75 minutes,
even though the permit required an Analytech employee to operate and
maintain the facility for a minimum of four hours per day. The
investigators also discovered that a number of log books were
missing from the facility. A subsequent search of Analytech’s
offices revealed six volumes of logbooks missing from the facility.
II.
At trial, and over Lapteff's objection, the district court
admitted certain testimony concerning: (1) a 1982 communication
between the Virginia State Water Control Board and the defendant;
(2) a 1991 revocation of the defendant’s Class I wastewater

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treatment license after a finding of improper chlorine discharge;
and (3) a 1996 interview with federal agents in which, when asked
about his performance at a separate wastewater treatment facility,
the defendant denied that he or any of his workers ever skipped
required monitoring activity or testing. The defendant further
complains that after he testified, the district court improperly
admitted, for impeachment, evidence of his prior felony conviction
for filing a false tax return. The district court conducted a
hearing on the proffered evidence and, as to each, found it
admissible. The court also gave a limiting instruction as to the
limited purpose for how the evidence was to be used by the jury.
A.
Lapteff contends that “other act” evidence should have been
excluded under Fed.R.Evid. 404(b), which provides as follows:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident....
We have noted that “Rule 404(b) is viewed as an inclusive rule,
admitting all evidence of other crimes or acts except that which
tends to prove only criminal disposition.” United States v. Gray,
405 F.3d 227, 239 (4th Cir. 2005) (citing United States v. Young,
248 F.3d 260, 270-71 (4th Cir.2001)). In Gray, we held that
evidence of “other crimes” is admissible under Rules 404(b) and 403

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if four conditions are satisfied. First, “[t]he evidence must be
relevant to an issue, such as an element of an offense, and must not
be offered to establish the general character of the defendant.”
Gray, 405 F.3d at 239 (citing United States v. Queen, 132 F.3d 991,
997 (4th Cir. 1997). Second, “[t]he act must be necessary in the
sense that it is probative of an essential claim or an element of
the offense.” Id. Third, “[t]he evidence must be reliable.” Id.
Finally, “the evidence's probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense that it
tends to subordinate reason to emotion in the factfinding process.”
Id.
With respect to each of the items of evidence introduced, all
four conditions were satisfied. They are reviewed seriatim.
The 1982 Virginia State Water Board Communication
The government introduced the testimony of Eugenia Grandstaff,
an enforcement specialist with the Virginia State Water Board.
Grandstaff testified that she met the defendant in 1982, and after
investigation, sent him a warning letter. A portion of that letter
was introduced into evidence. When asked about the “second part of
the middle paragraph” of that letter, Grandstaff read, “Although
you noted ... that the sample was taken on June 3rd, you did not
indicate the reason for this. Not reporting data for or
misrepresenting data is a falsification of records. This is a
criminal offense.”

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1Lapteff did not object to the admission of this document on
hearsay grounds even though the court had previously sustained a
hearsay objection to the introduction of a Notice of Informal Fact-
Finding Conference concerning the same incident. At oral argument
counsel indicated that for strategic reasons he did not assert a
hearsay objection. Regardless, that issue is not before us.
7
The government offered the evidence as probative of the
defendant’s knowledge. Although the crimes charged were general
intent crimes, the government bore the burden of establishing that
a false statement was made knowingly, and not because of accident
or mistake. Evidence of prior notice of the potential criminality
of false statements was probative of this issue and was clearly
relevant and necessary to sustain an element of the government’s
case. Its reliability was demonstrated by the fact that Grandstaff
was the same person who interviewed the defendant and personally
wrote the letter addressed to him.
The 1991 Illegal Chlorine Discharge
The government called Francis Walter Pedrotty III, an attorney
with the Virginia Attorney General’s office. Pedrotty testified
that he prosecuted an administrative action against Lapteff after
a chlorine discharge caused the death of numerous fish in 1991. The
defendant lost his Class I wastewater operating license as a result
of his failure to supervise employees. The government offered into
evidence the Order that revoked Lapteff’s license. 1
As with the 1982 letter, the government proffered a valid
404(b) purpose for this evidence - to show the defendant’s knowledge

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and intent. This evidence was probative of the defendant’s state
of mind at the time he committed the charged offense, an element of
the government’s burden of proof. The other act evidence, a license
revocation for failure to supervise, was similar to the instant
charge and not too remote in time.
Defendant argues that evidence of a “fish kill” was emotive and
unfairly inflamed the passions of the jury. It is hard to fathom
how a one sentence description of the prior issue in the context of
a nearly five hundred page trial transcript could have the contended
effect. Any danger that the jury would be swayed by this evidence
to “subordinate reason to emotion in the factfinding process” was
effectively cured by the court’s limiting instruction, informing the
jury it could only consider the evidence once it had first found
beyond a reasonable doubt from other evidence that the defendant
committed the acts charged in the indictment, and only then for the
limited purpose of determining the defendant’s state of mind or
intent. We presume trial juries capable of following such clear
instructions. See Queen, 132 F.3d at 997.
The 1996 interview
The final 404(b) issue is a non-custodial interview of the
defendant by federal investigators about his company’s prior testing
practices. At trial, government counsel restricted his examination
to “one aspect of that interview.” EPA Agent Michael Shumaker
testified that Lapteff denied that he or his employees failed to

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monitor or conduct proper tests. Lapteff’s denial is not 404(b)
evidence. Indeed, at oral argument, counsel strained, and failed,
to articulate how this evidence constituted “other act” evidence at
all. The fact that six years earlier, Lapteff denied allegations
of misconduct which denial tended to show his knowledge of the
regulatory scheme and the necessity of compliance with monitoring
and testing requirements of the law simply is not an “other act”
contemplated by Rule 404(b).
B.
Defendant’s remaining claim relates to the admission of
Lapteff’s 1992 conviction for filing a false tax return. Defendant
contends that Fed.R.Evid. 609 prohibits impeachment by a conviction
more than ten years old, unless its probative value substantially
outweighs its prejudicial effect. Arguing that the district court’s
balancing test was deficient, Lapteff contends the admission
constituted an abuse of discretion. We disagree.
First, defendant’s prior felony conviction for filing a false
tax return, a violation of 26 U.S.C. § 7206(1), is for a crime
involving dishonesty or false statement. See, e.g. United States v.
Thompson, 806 F.2d 1332 (7th Cir. 1986)(affirmed trial court’s
admission of prior conviction for filing false tax returns as a
crime involving dishonesty or false statement resulting in
imprisonment within ten-year period). As such, admission is

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mandatory under Rule 609(a)(2). See Fed.R.Evid. 609 advisory
committee note to subdivision (a) of 1974 enactment (“Such
convictions are peculiarly probative of credibility and, under this
rule, are always to be admitted”). Thus, if Lapteff’s tax fraud
conviction was less than ten years old within the meaning of
Fed.R.Evid. 609(b), admission was required.
In this case, the defendant was convicted of filing false tax
returns on January 24, 1992, and sentenced, inter alia, to four
months’ incarceration followed by three years of supervised release,
with conditions of release which included paying taxes due and owing
in the amount of $218,192 within six months. The defendant violated
this condition, and, on September 21, 1994, his supervised release
was revoked. He was sentenced to an additional four months’
imprisonment. His release from prison sometime after September 21,
2004, came within ten years of his trial on July 21-24, 2003.
Whether confinement pursuant to a revocation of supervised
release is confinement imposed for the original conviction within
the meaning of Rule 609(b) is a question not yet addressed in this
circuit. In United States v. Gray, 852 F.2d 136 (4th Cir. 1988),
we held that a seventeen year old bank robbery conviction was
admissible for impeachment where, as a result of a parole violation,
defendant’s confinement came within Rule 609(b)’s ten-year period.
Similarly in United States v. McClintock, 748 F.2d 1278 (9th Cir.
1984), the Ninth Circuit held that a probation violation that caused

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incarceration within ten years was confinement for the original
conviction within the meaning of Rule 609(b). Id. at 1288-89 (citing
United States v. Brewer, 451 F.Supp 50, 53 (E.D.
Tenn.1978)(“reconfinement” pursuant to a parole revocation is
confinement for the original conviction)).
We find no reason not to treat confinement following revocation
of supervised release similar to that for parole and probation
violations. Each relates back to the underlying conviction.
Defendant’s attempts to distinguish Gray are unpersuasive. First,
he argues that Gray was still in prison at the time of his second
trial. That argument simply establishes the point that, for Rule
609(b) purposes, less than ten years had elapsed since the date of
confinement. Second, he argues that an additional act of
criminality is required to “reset” the ten year period. This
argument misses the point. Lapteff’s conviction for filing a false
tax return included a period of supervised release. His violation
of a condition of that supervised release and concomitant
incarceration constitutes confinement for the original conviction
within the meaning of Rule 609(b).
In short, Lapteff’s conviction met all the criteria for
mandatory admission under Fed.R.Evid. 609. Because we find that the
challenged conviction involving dishonesty or false statement came
within the ten year period provided by Rule 609(b), we need not
reach the issue of the district court’s alternative holding that the

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2Just as we noted in Hughes, 401 F.3d at 545 n.4, "we of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time" of Lapteff’s sentencing.
12
probative value of the use of the conviction for impeachment
substantially outweighed its prejudicial effect.
C.
Finally, the government concedes that Lapteff’s sentence was
erroneous under United States v. Booker, supra, 543 U.S. 220,
because it was imposed under a mandatory Sentencing Guidelines
regime. We find that plain error occurred in sentencing Lapteff
according to the Guidelines as mandatory. 2 See United States v.
Hughes, 401 F.3d 540(4th Cir. 2005).
III.
Accordingly, while we affirm Lapteff’s conviction, we vacate
his sentence and remand for re-sentencing in accordance with Booker.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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