SECOND CIRCUIT REINSTATES CONVICTION FOR CONSPIRACY

A jury in the Northern District of New York found Mark Desnoyers guilty on a number of counts including conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. The judge overruled the jury and entered a judgment of acquittal on the conspiracy count finding the evidence both factually and legally insufficiency.

Factual insufficiency is fairly easy to understand. If no rational jury could find the defendant guilty based upon the evidence presented factual insufficiency exists. But in this case Desnoyers was charged with conspiracy to commit violations of both the Clean Air Act and mail fraud. With factual innocence, if there is more than one way a defendant can be found guilty, the conviction is upheld if there is any way the jury could have found the defendant guilty. Desnoyers claimed that a jury could not find him guilty of conspiracy to violate the Clean Air Act but he made no claim about mail fraud. Since he could have been convicted of conspiracy to commit mail fraud the appellate court reversed the trial judge’s reversal of the jury finding in regard to factual innocence.

Legal innocence is a more complicated issue. ” A legal challenge . . . questions whether a conviction rests on a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Another difference between legal insufficiency and factual insufficiency is that with legal insufficiency if under any theory before the jury the conviction was legally insufficient the conviction must be reversed. Desnoyers was charged with violating the Clean Air Act in regard to eight buildings. He was an asbestos inspector. The Clean Air Act applies to commercial buildings and residential buildings with more than four units. “[A]dditionally, buildings must contain “friable” asbestos and at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos on other facility components in order to be subject to the regulations.” After the trial the government admitted that seven of the eight buildings did not meet the requirements. In the eighth building no one measured the amount of asbestos since it was removed before the government agents arrived. However a number of people referred to the building as “a large job.” In the trade “a large job” means that it is covered by the Clean Air Act. Desnoyers claimed that there was legal insufficiency because their was insufficient evidence to prove a violation of the law in that the amount of asbestos had not been measured. However, the Second Circuit Court of Appeals ruled that Desnoyers failed to understand what was meant by legal insufficiency. Desnoyers explanation does not meet the test of whether a conviction rests on a mistake of law. The question should be whether what Desnoyers did was legal but he was convicted because of a mistake of law. For example if the judge misdirected the jury and he was convicted of an action that was actually legal.. If the judge misdirected the jury then the conviction would rest on a mistake of law and would be reversed for legal insufficiency. But in this case the judge correctly instructed the jury and the jury found Desnoyers to be in violation of the law.

The Second Circuit remanded the case with instructions to reinstate the jury verdict and to sentence Desnoyers, accordingly.