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

Marcia G. Shein, with
_______________

whom National Legal Services, Inc.

whom National Legal Services, Inc.
_____________________________

was
was

brief for appellant.

brief for appellant.
Craig N. Moore, Assistant
Craig N. Moore, Assistant
________________

United
United

States
States

Attorney, with
Attorney, with

w
w

Sheldon Whitehouse, United States Attorney, was on brief for appell

Sheldon Whitehouse, United States Attorney, was on brief for appell

__________________

____________________

May 24, 1995

May 24, 1995

____________________

CYR,
CYR,
___

verdicts against

Circuit
Circuit

Judge.
Judge.

After

defendant-appellant Giacom

jury returned

guilty

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

In

Cir. 1994).

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

Island.

unit.

firm's

business premises

in

Providence,

Rhode

The cost estimates ranged between $8,000 and $10,000 per

Years later, in June 1991, Post Tron Systems' lending bank

conducted

Catucci

be

the

an

environmental

audit

that the two transformers

removed in

accordance with

("EPA") regulations.

Shortly

and

specifically

informed

containing PCBs would have to

Environmental Protection

Agency

thereafter, Post Tron went out

of

business.

During the

business

Timothy

facilities, Catucci

Arcaro to remove a

tion, Almeida

metal

course

and Arcaro

of subsequent

arranged

renovations

for Manuel

conveyor belt system.

were to

retain the

approximating $40 per day in

value

to

the

Almeida

and

As compensa-

salvageable scrap

recovered in the

course of the renovations.

Almeida and Arcaro later

offered to

3
3

remove

laden

all five transformers at the site, including the two PCB-

ones, in return for the right

of their copper coils.

ed

law,

Although the plant superintendent remind-

Catucci that scrapping the

Catucci nevertheless

superintendent:

to retain the salvage value

transformers would be against the

granted

permission, stating

to

the

"If [Arcaro] wants them, he can have them all."

A few months

dividual

of

David

the PCB-laden

thereby

Dellinger

three remaining units

the Post

including one

lids and

and I-95 during

than

Tron transformers.

at

repeated the process with the

year later,

while

investigating

David

Department of Environment Management

discovered the PCB-laden

search warrant

and the transformers were

one containing PCBs.

Dellinger, the Rhode Island

("DEM")

in-

At a secluded gravel pit, the remaining oil was

The next day, the men

More

a third

loosening their

onto local streets

the copper coils were removed

abandoned.

Arcaro and

removed two units,

transformers, after

causing oil to leak

transportation.

dumped,

later, Almeida,

oil that had

been dumped from

A few weeks later, the DEM executed

the former

Post Tron

facility.

On

the

following

that

day, Catucci informed the Providence Police Department

the transformers had been stolen.

after Arcaro and

formers

Almeida were arrested

did Catucci admit to

transformers.

Even then

Not until several months

for stealing the

having allowed them

he claimed that they

trans-

to remove the

had been told

to

dispose of the transformers lawfully.

Thereafter, Catucci

was charged, in

4
4

two counts,

with

causing

unlawful

2615(b) and, in

disposal of

in violation

two additional counts, with

immediate notification

violation

PCBs

of a

of 42 U.S.C.

Following

15 U.S.C.

failing to provide

release of hazardous

9603(b).

of

materials, in

his conviction on

all counts, Catucci was sentenced to twenty-seven months.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

On appeal, Catucci

evidence

that he

disposed

of

knew the

illegally, an

claims that there

was insufficient

two PCB-laden transformers

essential

element

in each

would be

offense

charged.

See 15
___

tions for

knowingly or
__

tions); 42

U.S.C.

U.S.C.

against any

2615(b)

(establishing criminal sanc-

willfully violating EPA

9603(b)

(establishing

person for failing to

dumping regula-

criminal

sanctions

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.,

______
________________________________

(9th

Cir. 1985) (Kennedy

676 F.2d

94, 97 (4th

J.) (

2615);

Cir.) (same), cert.

_____

768 F.2d 1096,

1098

United States v. Ward,

_____________
____

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

____________________

We assess the sufficiency

of the evidence as

including all reasonable inferences,

favorable

to the

rational trier

verdict, with

of fact could have

a whole,

in the light most

view to

whether a

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

had

been

informed, by

his

disposal of each PCB-laden

plant

that Catucci

superintendent, that

lawful

transformer would cost between $8,000

and $10,000, since EPA regulations required that they be inciner-

ated.

formers

As Almeida and Arcaro

in return for the

the jury assuredly could

the two PCB-laden

salvage value of

transformers were not going

of $16,000

only their scrap value in return.

the trans-

their copper coils,

infer that Catucci was well

at a total minimum cost

receive

were willing to remove

aware that

to be incinerated

by volunteers who would

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

permitted the jury to

States
______

(jury

transformers

918 F.2d 979,

construe knowingly

consciousness of

stolen,

infer consciousness of guilt.

v. Passos-Paternina,
________________

may

had been

false

guilt), cert. denied,

_____ ______

See United
___ ______

985 (1st

statement

which

Cir. 1990)

as evidence

499 U.S. 982,

of

and cert.
_____

____________________

guilty

beyond a

reasonable doubt.

We

do not

weigh

witness credibility, but resolve all credibility issues

in

favor of the verdict.

circumstantial, and

The evidence may be entirely

need not exclude

every reasonable

hypothesis of

innocence; that is, the

decide

reasonable interpretations

among

fact finder may

of

dence.

United States v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994).

_____________
____

6
6

the evi-

denied, 501 U.S. 1210 (1991).

______

7
7

B.

Adjustment for Repetitive Discharge

B.

Adjustment for Repetitive Discharge

___________________________________

Catucci

assigns error

the

sentencing court

adjustment

in

the

made

net four-level

pursuant

upward

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

upward adjustment under

______ __________

error.2

U.S.S.G.

After

adopting a six-level

2Q1.2(b)(1)(A), the

district

court

invoked Application Note

downward departure,
________ _________

levels.

court is

district

to make "a departure

of up to

the discharge and the

the quantity and

nature of the harm

caused by

2Q1.2, comment. (n.5).

U.S.S.G.

in
__

a two-level

states that the

either direction" depending upon

U.S.S.G.

resulted
________

Note 5 expressly

invested with authority

duration of

authority for

resulting in a net upward adjustment of four

Application

two levels in

it.

5 as

an

2Q1.2(b)(1)(A)

is triggered if

ongoing, continuous

or

repetitive

the offense

discharge.

____________________

2Guideline

interpretations are

reviewed

relevant factual findings are reviewed

application under the guideline
United States v.
______________

de novo,
__ ____

whereas

for clear error and their

is accorded due deference.

Ovalle-Marquez,
______________

36 F.3d

212,

221 (1st

See
___

Cir.

1994), cert. denied, 115 S. Ct. 947, and cert. denied, 115 S. Ct.
_____ ______
_____ ______
1322 (1995).

8
8

Catucci concedes that the

on

the

separate occasions.

repetitive

Liebman, 40 F.3d
_______

two PCB-laden transformers were dumped

Nothing

discharge

more need be

adjustment.

544, 550 (2d

See
___

shown to activate

United States
______________

Cir. 1994) (repetitive

v.

discharge

adjustment under

2Q1.2(b)(1)(A) warranted

untrained workers

remove hazardous

workers unlawfully

dumped material

United States v. Strandquist,

_____________
___________

(analogous upward

where defendant had

material

from factory,

on several different

993 F.2d 395, 401 (4th

adjustment under

2Q1.3(b)(1)(A)

and

days);

Cir. 1993)

for repeti-

tive discharge triggered by establishing second discharge).

C.
C.

Aberrant Behavior
Aberrant Behavior
_________________

Catucci

urges a

district court allegedly

downward on the ground

behavior."

Cir. 1989)

remand

for resentencing

misapprehended its authority

to depart

that these offenses constituted "aberrant

See United States

___ _____________

v. Russell, 870
_______

(adverting to guideline relating

ior" departures).

because the

F.2d 18, 20 (1st

to "aberrant behav-

At sentencing, the

its readiness

despite

to allow

the district

district court repeatedly indicated

principled downward

court's specific

departure.

invitation ("Do

Yet

you see

anything . . . which would authorize my departure in this case in

a justifiable and reasonable

sure at having to impose

have had

sented

manner?") and its apparent displea-

a prison sentence on a person

an aberration," no

"aberrant behavior" claim

to the district court.

finding of waiver is

In these

virtually compelled.

9
9

"who may

was pre-

stark circumstances, a

Cf. United States v.

___ ______________

Montoya,
_______

967 F.2d

1, 2

(1st Cir.

presented to district court deemed

1992) (sentencing

claim not

waived), cert. denied, 113 S.

_____ ______

Ct. 507 (1992); United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
_____________
_____

1991);

Cir.

United States v. Rosalez-Cortez,

_____________
______________

1994) (failure to

19 F.3d 1210, 1220 (7th

raise "aberrant behavior"

claim in dis-

trict court results in waiver).3

D.
D.

Criminal Rule 32
Criminal Rule 32
________________

Catucci contends that resentencing is necessary because

the district court failed to

provides

that,

as to

any

comply with Rule 32(c)(3)(D), which

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."

the sentencing

court's findings is

A "written record" of

required.

United States v.
______________

Savoie, 985 F.2d 612, 620 (1st Cir. 1993).

______
____________________

3Even assuming,

arguendo, that
________

preserved, we note that six

rant behavior"

is

the present claim

had been

circuits have determined that "aber-

not established

unless

the defendant

is

first-time offender and the crime was "a spontaneous and seemingly

thoughtless act

rather

substantial planning."
324-25 (7th Cir.

than one

which

United States v.
______________

1990). See
___

United States
_____________

was the
Carey, 895
_____

result

of

F.2d 318,

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.

_____________

(5th Cir. 1992),

States v.
______

cert. denied,
_____ ______

Glick, 946 F.2d 335,

_____

Williams, 974 F.2d 25,

________

113 S. Ct.

1320 (1993);

338 (4th Cir. 1991).

26

United
______

The Ninth

and Tenth Circuits apply a somewhat different test, permitting

downward

departure for

that the

offense did

"aberrant behavior"
not comport

with the

based on

a finding

defendant's "normal

character . . . [and] is a complete shock and

out of character."

United States v.
_____________

(10th Cir.

Tsosie, 14
______

F.3d 1438, 1441

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

based upon a
or . . .
in --

make a

downward departure

role as a minor

in the offense

a minimal role in that

in the whole case, if

jury's decision, they

offense and

you believe the

were told that

I gave

permission to take the transformers.

No one ever said that I told them

of the

transformers or I gave

dump the transformers.

to dispose

permission to

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

the

jury

verdicts.4

downward adjustment

court cautioned that it could

The

district

under U.S.S.G.

not disregard

court ruling

3B1.2 is

rejecting

not challenged on

appeal.

Catucci's claimed entitlement to a downward "departure"

under U.S.S.G.

that

3B1.2, notwithstanding the central jury finding

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

the legal import of the jury verdicts.

an attempt to

dispute

Absent a claim of factual

inaccuracy, the Rule 32(c)(3)(D) requirement simply is not impli____________________

4A

role-in-the-offense

question of law

determination

presents

and fact, United States v. Carrozza,

_____________
________

89 (1st Cir. 1993), cert.

mixed

4 F.3d 70,

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

_____________
_________

1990) (Rule 32(c)(3)(D)

not triggered by claim

Cir.

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

and sentence is affirmed.

Affirmed.
Affirmed.
________

judgment of conviction

____________________

5United States
_____________

v. Rosado-Ubiera,
_____________

Cir. 1991), is not to the contrary.

refused

947 F.2d 644,

645-46 (2d

There the district court had

to resolve both a factual dispute, as to the defendant's

conduct, and the defendant's role in the offense.

12
12