Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well

The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served. The Court had previously so held in U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007). But in Manzella, rehabilitation was the only justification given, whereas the district court in Hoffa cited rehabiliation as well as incapacitation. The Court saw no distinction, holding that the plain meaning of 3582(a) prohibits the use of rehabiliation as "a factor" in imprisonment descisions.

The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.

PA Simple Assault = crime of violence under knowing/intentional part of statute

In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v. Begay, 128 S. Ct. 1581 (2008). But the Court did rule that simple assault committed knowingly or intentionally does qualify as a crime of violence. It remanded for a resentencing hearing at which the district court is to determine whether Johnson’s prior conviction for simple assault was for the part of the statute charging knowing and intentional conduct, as opposed to reckless conduct.

Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). The Third Circuit in US v. Dorsey, 174 F.3d 331 (3d Cir. 1999), had ruled the simple assault does qualify as a crime of violence, even though the offense can be committed recklessly.

On appeal, the Circuit, in a lengthy footnote, explained that under Begay, only "purposeful, violent and aggressive" conduct can count as a crime of violence. This "suggest[s] that a crime committed recklessly is not a crime of violence," as nearly every other Circuit has already held. The government on appeal conceded the issue, explaining that the Department of Justice position now is that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence." Thus, the government conceded that Dorsey is no longer good law in light of Begay.

Normally such a concession would make the Court’s resolution of the issue easier. But here, for reasons that are not made clear in the opinion, the Court took the government’s concession as a reason not to resolve the issue. Instead, the Court ruled that knowing or intentional simple assault would qualify as a crime of violence, and it remanded to the district court to determine under the "categorical approach" whether Johnson’s conviction was under this part of the statute. If not, then in light of the DOJ’s concession, the prior conviction as reckless simple assault cannot count as a crime of violence. The Court made clear that this categorical determination is not a factual one but instead solely a question of what part of the statute Johnson actually pled guilty to: "[W]hat matters is the mens rea to which Johnson actually pleaded guilty," and not the facts in the Presentence Report suggesting the conduct was intentional.

Most likely, the Court’s reason for not expressly resolving the recklessness issue is because the same issue is currently pending in two other cases before the Court, and this panel wanted to leave the issue for resolution in one of those cases.

For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockburger v. United States, 284 U.S. 299 (1932), the Third Circuit joined the majority of circuits to rule that 18 U.S.C. § 371 proscribes one offense which may be committed two ways. (Judge Rendell in dissent, however, relied upon Blockburger to find that § 371 creates two separate offenses.) The court also reiterated that the Clause prohibits the government from splitting a single conspiracy into several prosecutions. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir.1987) and United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the court ultimately remanded the case to allow the lower court to determine whether the defendants entered into two separate agreements or only one.

The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.

Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty

The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for “honest services” fraud under 18 U.S.C. §§ 1341, 1343 and 1346. The defendants ran the Ben Franklin Technology Center (hereinafter “BFTC”). The purpose of BFTC was to administer funds provided by the Commonwealth of Pennsylvania for other organizations in an effort to foster the development and commercialization of new technology. One of BFTC’s clients during the course of this fraudulent scheme was the U.S. Navy. The government indicted the defendants for defrauding BFTC of their honest services by misusing BFTC funds for personal expenditures and thwarting the efforts of subordinate employees to investigate their actions. The indictment also charged the defendants with depriving the U.S. Navy of the honest services of BFTC. In essence, the government sought to extend the honest services fraud theory to non-public officials. The court ultimately concluded that both public and private officials owe a fiduciary duty to the public. Specifically, the court determined that, as public officials owe a duty to protect the common good, private officials have a duty of protection as well, albeit a duty that is based primarily upon economic concerns. The court concluded that the defendants owed a fiduciary duty to BFTC by virtue of their status as corporate officers. The court ultimately ruled that this fiduciary duty could serve as the basis for the charge of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346, where the defendants were charged with executing a fraudulent scheme which breached this fiduciary duty and deprived BFTC of their honest services.

However, the court ruled that, while the indictment sufficiently alleged that the defendants committed honest services fraud against BFTC, the indictment did not sufficiently charge that the defendants committed honest services fraud against the U.S. Navy. Unlike BFTC, the defendants’ relationship with the Navy did not create a fiduciary duty. To the contrary, the relationship between the defendants and the Navy was merely contractual. The court ruled that the government must allege more than a breach of contractual obligations in order to charge a non-public official with honest services fraud.

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court’s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1.3. Prior to 2003, the Third Circuit had interpreted U.S.S.G. § 4A1.3 to permit a downward departure from a defendant’s career offender status if the court found that the career offender designation over-represented his criminal history. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit had ruled that, in the absence of a definition for the term "departing" as used in § 4A1.3, this section permitted a downward departure to both the criminal history category as well as the offense level. However, in 2003, the Sentencing Commission amended § 4A1.3 to provide a specific downward departure where the defendant’s criminal history category substantially over-represents the seriousness of his criminal history or his likelihood of recidivism. The 2003 amendments also provided a definition of the term "departure" as used in the amended version of § 4A1.3. Pursuant to the 2003 amendments, § 1B1.1 now provides a definition of the term "departure" that specifically addresses the downward departure provided in § 4A1.3. The definition provided in the current § 1B1.1 for the term "departure" as used in § 4A1.3 addresses only the assignment of the criminal history category. The court in Grier concluded that the 2003 amendments superseded Shoupe.

Also, the government had argued that Shoupe was no longer good law after United States v. Booker, 543 U.S. 220 (2005) and United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The court, however, concluded that Shoupe was not impacted by Booker and Gunter because a consideration of Shoupe departures falls squarely within Step Two of the three-step process mandated by Booker, namely, formally ruling on any departure motions.

Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same. The Court affirmed the convictions of the organization, Stop Huntingdon Animal Cruelty ("SHAC"), and six individuals charged: the President of SHAC, the Campaign Coordinator for SHAC, the web creator/manager for SHAC, the Seattle branch manager for SHAC, a SAC activist who coordinated protests, and a SHAC Huntingdon campaign organizer in NJ.

A complete recitation of the facts from the Court’s 60-page opinion is not possible here. In brief: Huntingdon Life Sciences is a research corporation that performs testing for companies bringing products to market. Its labs use animals as test subjects. After animal abuse inside a Huntingdon lab in England was documented in the late 1990s, animal rights organizations began targeting the company. One of those organizations was Stop Huntingdon Animal Cruelty - UK ("SHAC-UK").

In the wake of an a brutal assault on its Managing Director by a member of SHAC-UK, Huntingdon relocated its financial base to the United States, where laws better protected the confidentiality of its shareholders, whom SHAC-UK had begun to target in the England. When a Huntingdon branch opened in New Jersey, SHAC formed a branch there, as well.

SHAC targeted Huntingdon, companies that were involved with Huntingdon, and people who worked for both Huntingdon and the affiliated companies. Its primary tool was its website, through which members coordinated protests. It posted the names, home addresses and home phone numbers of employees on the website. The web-page also included pages describing: (1) upcoming "direct action" – protests such as the activities at issue in this case; (2) previous "accomplishments" – for example, acts of vandalism committed by protesters; (3) "top 10 terror tactics," like smashing windows and firebombing cars; (4) how to evade investigators through techniques like encryption; and (5) "electronic civil disobedience" – such as inundating websites with email to crash servers or using "black faxes" to exhaust toner. The government’s evidence showed the cyberattacks cost Huntingdon $400,000 in lost business, $50,000 in staffing costs for repairs, and $15,000 in computer replacement costs.

Constitutionality of the AEPA: Void for Vagueness: The AEPA prohibits travel in interstate commerce or use of the mail or other facility in or interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise that intentionally damages or causes the loss of property used by the animal enterprise (or conspiracy to do so). Defendants argued that the terms "economic damage" and "physical disruption" were not clearly defined," and included activities protected by the first amendment. The Court rejected these arguments because (1) "physical disruption has a well-understood common definition; (2) legal protest, such as letter-writing, which might cause an ancillary physical disruption is exempted from the statute; (3) defendants’ behavior – including encryption, evasion techniques, and even concessions on the website that some activities were illegal – suggests they knew their activities were illegal; and (4) the "intent" requirement means that the government must establish that the actor meant to disrupt the functioning of the enterprise, which alleviates vagueness concerns (citing Gonzales v. Carhart, 550 U.S. 124, 149 (2007)).

As-Applied Constitutional Challenge to AEPA: All parties agreed that, to the extent they advocated humane treatment of animals, the postings on the website fit within the rubric of the First Amendment. The question was whether they were directed to inciting or producing imminent lawless acting and likely to produce such action. Put differently, did they constitute a "true threat." Much of the speech did not. But the Court found the postings encouraging electronic civil disobedience and the dissemination of the personal information of Huntingdon employees was "more problematic."

Regarding the electronic civil disobedience, the Court held that the postings "encouraged and compelled an imminent unlawful act that was not only likely to occur, but provided the schedule by which the unlawful act was to occur. This type of communication is not protected speech." It found "ample evidence" to demonstrate that the individual defendants coordinated and controlled and participated in such activities.

Regarding dissemination of names and protests against target employees, the Court held that the defendants used past incidents to instil fear in future targets. For example, using photos of assault victims at protests. Viewed in context, the implied threats against target employees were not conditional and rightly instilled fear in the listeners, converting them to "true threats." The Court gave examples of particular instances in this category involving each defendant.

Definition of "Animal Enterprises": Defendants argued that the protest activity against companies associated with Huntingdon was not directed at "animal enterprises." The Court disagreed, finding that the "ultimate object" of the conspiracy was Huntingdon.

Actual v. Intended Loss: Defendants argued that the district court erred in instructing the jury that it could convict them for intended loss. The Court did not decide this issue, instead finding that any error would have been harmless because the government proved an actual loss in excess of the statutory threshold.

Sufficiency of Evidence/Conspiracy: Defendants challenged the sufficiency of the evidence to prove that they acted for the purpose of causing physical disruption to Huntingdon and to intentionally damage or cause the loss of Huntingdon’s property. The Court conceded that there was no direct evidence to prove a conspiracy between the defendants, but found "ample circumstantial evidence from which the jury could have inferred their agreement," to accomplish these unlawful goals. Judge Fisher dissented on this point, noting "I fail to see any evidence of an agreement to cause physical disruption to Huntingdon – as opposed to other non-animal enterprise companies affiliated with Huntingdon – or to cause damage or loss to property used by Huntingdon.

Stalking: The defendants also challenged their stalking convictions. One argued that he only intended to harass and embarrass the victims and make their lives miserable. He contrasted this type of infliction of emotional distress with the statute’s requirement that he intend to put his victims "in reasonable fear of death or bodily injury." The Court found that the invocation of the the website’s references to extreme acts of violence, coupled with protesters' use of ultimatums, went beyond harassment and embarrassment. Another defendant argued that the victims’ fears were unreasonable. The Court dismissed this argument for the same reason, adding that this particular defendant had personally threatened to burn one victim’s house down. The web administrator argued that the evidence was insufficient to convict him of any stalking-related counts. The Court found that the jury could reasonably have concluded that he aided and abetted the stalking because the website was a primary tool in it.

The Court also summarily rejected a variety of other challenges in this complicated and hard-fought case.

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.

(1) Federalism Challenge

Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requisite federal interest element, nor states any basis for its enactment beyond the Chemical Weapons Convention. On appeal, Bond asserted that 18 U.S.C. § 229 violated constitutional principles of federalism because it was not based on a valid exercise of congressional authority, it did not require proof of a federal interest, it was vague and overbroad, and it failed to provide fair notice of the conduct covered by its terms.

The Third Circuit, in United States v. Bond, No. 08-2677, declined to reach the merits of Bond's federalism challenge to Section 229 because it concluded that private parties lack standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties. The Court also rejected Bond's vagueness claim, finding that, while the terms of Section 229 were certainly broad, a person of reasonable intelligence would know that Bond's conduct violated the statute and that the statute cast a wide net for obvious safety reasons and did not criminalize protected activities outside the permissible bounds of Congressional regulation.

(2) Appropriateness of "Special Skill" Sentence Enhancement

Bond also challenged a two-level sentence enhancement for use of a special skill. The Third Circuit affirmed the district court's application of the enhancement, finding that Bond's advanced degree in microbiology, her training in the development and application of biocides, and her position at a chemical manufacturing company, where she could research and steal chemicals unavailable to the public, all supported the enhancement. Bond's background and training facilitated her handling and deployment of the chemicals in a fashion thought to be most lethal and influenced her decision to use toxic chemicals as her weapon of revenge. Accordingly, the Third Circuit affirmed application of the special skill enhancement.

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count. On appeal, the Government conceded that Cesare improperly received concurrent sentences in violation of double jeopardy because bank robbery is a lesser included offense of armed bank robbery, but argued that the two separate $100 special assessments be left intact because special assessments are not punishment.

The Third Circuit, in United States v. Cesare, No. 08-2749, disagreed with the Government's position regarding the special assessments, holding that the entry of separate convictions, including separate special assessments, threatened the defendant with "potential adverse collateral consequences." As such, the two separate special assessments constituted impermissible double punishments offending double jeopardy. Accordingly, the Third Circuit remanded this matter to the district court with instructions to vacate the defendant's armed robbery conviction.

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – properly calculated defendant’s offense level as 23 and criminal history category as I, yielding a Guidelines sentencing range of 46 to 57 months' imprisonment. Then, in Gunter step two, the District Court granted the Government’s 5K1.1 one-level downward departure motion: that reduction yielded a Guidelines range of 41 to 51 months' imprisonment. The District Court imposed a sentence of 48 months: at the upper end of the custody range that included the one-level departure, but also within the original, pre-departure custody range. Defendant did not object to the sentence.

On appeal, defendant argued that he was entitled to re-sentencing because the District Court committed plain error by imposing a sentence that was two months higher than the bottom of the original pre-departure Guidelines range, without any indication that it was applying an upward variance under 18 U.S.C. § 3553(a). Defendant argued that the District Court erroneously failed to give effect to the one-level departure that it granted when it imposed a sentence above the bottom of the pre-departure Guideline range.

The Third Circuit agreed. First, at Gunter step two, the District Court was required to calculate a sentence below the bottom of the otherwise applicable Guidelines range by U.S.S.G. § 1B1.1, cmt. n.1.E (defining downward departure as a "departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence."). Quoting its earlier decision in United States v. Floyd, 499 F.3d 308, 312-13, the Court ruled that when a district court grants a downward departure, the sentence it imposes "must be less than the bottom of the otherwise applicable Guidelines range." Here, where the post-departure 41 to 51 months Guidelines range overlapped with the original pre-departure 46 to 57 months Guidelines range, the District Court’s Gunter-step two calculation required a sentence less than 46 months. The District Court could have imposed a 48-month sentence only if the District Court explicitly supported an upward variance in reliance on the § 3553(a) sentencing factors– but the District Court did not do so here.

The Court further held that this sentence was plain error, because the Guidelines definition of "downward departure" was unequivocal, and clearly explicated in Floyd. The Court further held that this error was prejudicial because it was unclear whether the District court intended to vary the sentence upwards, or whether it failed to realize that it did not give defendant the benefit of the departure that it had granted. Significantly, the Court emphasized that "very few procedural errors by a District Court will fail to be prejudicial, even when the Court might reasonably have imposed the same sentence under the correct procedure. . . . [and] an error of procedure is seldom harmless."

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that in a civil enforcement proceeding, a "non-owner operator" is liable under the act "if he or she has ‘significant or substantial or real control and supervision of a project’" and that there is no difference in the criminal context. That based on the record, there was substantial evidence that Starnes "exercised significant control and supervision" over the project and that was sufficient to survive the motion for judgement of acquittal.

Second, Starnes and George both argued that the District Court erred in denying their motions for judgement of acquittal on the false-statement counts. Specifically that the Government’s evidence was insufficient as to "falsity" or "federal-government jurisdiction" - both necessary elements of a false statements violation. The Third Circuit quickly dismissed the arguments as to "falsity" indicating that both defendants arguments rested on the faulty premise that the defendants were charged and convicted of falsely representing the amounts of asbestos in the air samples taken from the site. To the contrary, the Government’s evidence was that the samples weren’t analyzed at all - a fact that went uncontested. As a result, the evidence was sufficient as to "falsity."

As to "federal-government jurisdiction" both defendants argued that the federal government lacked jurisdiction because the reports were sent to the Virgin Islands Housing Authority (VIHA), which wasn’t a federal agency. The Third Circuit quickly dismissed this claim as well stating that it’s enough that the statement pertains to a "matter in which the executive branch has ‘the power to exercise authority.’" In other words, the fact that the VIHA was funded by HUD was enough to satisfy "federal government jurisdiction."

George alone argued that the district court erred in denying his motion for judgment of acquittal on the false statement count because, as he put it, the Government failed to demonstrate that he had the "specific intent" to violate the false statements statute. The Third Circuit rejected this argument as well. In doing so, the Court noted that the statute identified the mens rea as "knowingly and willfully" rather than "specific intent." The Court was not willing to decide whether "specific intent" was "shorthand" for "knowingly and willfully." Rather, the Court chose to focus on the generally accepted definitions of "knowingly" and "willfully" and applied them to the statute at hand. The Court concluded that "knowingly" requires the Government to prove the defendant had "knowledge of the facts that constitute the offense." With analysis, the Court of Appeals eventually concluded that "willfully," as it is applied to the false statements context (§ 1001), requires the Government to prove the defendant had "knowledge of the general unlawfulness of the conduct at issue." Based on these standards, the evidence presented was sufficient to survive the motion for judgment of acquittal.

Third, both defendants challenged the district court’s decision to admit the testimony of a witness, David Dugan. The decision to admit or exclude evidence was reviewed for abuse of discretion. Dugan testified regarding asbestos samples he collected which had high levels of friable asbestos. The district court ruled his testimony was relevant to demonstrate dangerous levels of friable asbestos that were likewise present in buildings worked on by the defendants. The defendants, in turn, argued that the district court’s decision to admit this testimony was an abuse of discretion because the witness collected samples from a building they didn’t work on and his collection occurred at a much later date than the events that led to their prosecution. Again, the Court of Appeals disagreed with the defendants because the Government demonstrated that all of the buildings in the complex (including the ones worked on by the defendants and the one in which Dugan collected samples) were made of the same materials and had no structural changes - therefore a reasonable inference could be made that the buildings worked on had dangerous levels of asbestos. Consequently, the testimony was deemed admissible under FRE 401 and 402. Additionally, the Court of Appeals summarily rejected the argument that the testimony of Dugan was inadmissible under FRE 403 because there was no demonstration of "unfair prejudice."

Finally, both defendant’s appealed the district court’s determination of their sentences. The review of the district court’s sentencing decisions was for reasonableness under a deferential abuse of discretion standard. And as the Court of Appeals put it, these arguments were "readily dispatched." (FISHER, JORDAN, and STAPLETON, opinion by FISHER).