Jump to Navigation
Jump to Content

United States v. Catucci

ELR Citation: 25 ELR 21439
Nos. No. 94-1195, 55 F.3d 15/40 ERC 1892/(1st Cir., 05/24/1995)

The court affirms a defendant's jury conviction for knowingly dumping polychlorinated biphenyls (PCBs) unlawfully and failing to provide timely notice to the government of the PCB releases under §103(b) of the Comprehensive Environmental Response, Compensation, and Liability Act. Defendant arranged with three individuals to remove PCB-laden transformers in return for the right to retain the salvage value of their copper coils. Oil from two transformers leaked during transportation and was dumped at a secluded gravel pit. The individuals repeated the process the following day with three other transformers. The court holds that ample evidence supports the essential jury findings that the defendant knew the individuals would dump the PCBs unlawfully, and that he did not provide timely notice to governmental authorities. Defendant had been informed that lawful disposal would cost more than $8,000 dollars per transformer. Also, defendant subsequently misrepresented that the transformers had been stolen, which permitted the jury to infer consciousness of guilt. Next the court finds no error with sentencing court's net four-level upward adjustment to his sentence under U.S.S.G. 2Q1.2(b)(1)(A), which is triggered if the offense resulted in an ongoing, continuous, or repetitive discharge. Defendant conceded that the PCB-laden transformers were dumped on separate occasions. Next the court holds that defendant waived his opportunity to claim a downward departure in the sentence based on aberrant behavior. Finally, the court rejects defendant's claim that resentencing is necessary because the district court failed to comply with Fed. R. Crim. P. 32(c)(3)(D) by not adjusting the sentence downward based on his minor or minimal participation. Defendant's claimed entitlement to a downward departure did not challenge any factual statement in the presentence report as Rule 32(c)(3)(D) requires, but instead was an attempt to dispute the legal import of the jury verdicts.

Counsel for Appellee
Craig N. Moore, Ass't U.S. Attorney
U.S. Attorney's Office
Westminster Sq. Bldg.
10 Dorrance St., 10th Fl., Providence RI 02903
(401) 528-5477

Counsel for Appellant
Marcia G. Shein
National Legal Services, Inc.
710 Lakeview Ave. NE, Atlanta GA 30308
(404) 874-9553

TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.