Summary of United States v. Thorn, 317 F.3d 107 (2d Cir. 2003)

Craig Benedict
craig.benedict@usdoj.gov

(Craig Benedict is an attorney with the U.S. Department of Justice. The views expressed herein are the views of the author and in no way represent the views of the U.S. Department of Justice.)

On January 9, 2003, the Second Circuit Court of Appeals decided United States v. Thorn, 317 F.3d 107 (2d Cir. 2003). In a case of first impression, the decision provides instruction to trial judges as to when they should enhance the sentencing guideline (U.S.S.G. § 2Q1.2) by nine levels for environmental crimes involving toxic and hazardous materials, based upon the offence having created a substantial likelihood of death or serious bodily injury (U.S.S.G. § 2Q1.2(b)(2)). The court discussed the level of proof that the government must introduce to gain the enhancement. It also provided guidance over whether a substantial likelihood of death or serious bodily injury to co-conspirators who participated in the illegal conduct should be counted against the defendant. The court provided additional direction regarding whether money laundering charges could be utilized for environmental offences unrelated to drug activity or organized crime.

Joseph Thorn was the owner of A+ Environmental Services, Inc., (A+), an asbestos abatement company operating in upstate New York from 1990 to 1999. Thorn directed his workers to engage in grossly deficient asbestos abatement practices at more than 1,100 sites, including public and commercial buildings and private homes. Thorn defrauded clients out of large sums of money, which he invested back into A+ to “almost geometrically” expand his business each year.

At trial, the evidence demonstrated that Thorn submitted artificially low bids to win projects. He then directed the illegal abatements whereupon workers were repeatedly exposed to extremely high concentrations of asbestos, which, at times, floated so thickly in the air that it resembled indoor snow storms or blizzards. Many employees worked without respirators or other protection. No project had a functioning decontamination unit for workers to clean asbestos from their clothes and bodies during lunch, rest breaks or following the completion of work each day. Thorn conspired with purportedly independent air and project monitors and accredited laboratories to provide clients with falsified analytical results. Payments from clients were then used to finance additional illegal A+ work.

Thorn caused some of the asbestos to be illegally dumped in landfills. More often, however, he had the asbestos transported back to A+ where he directed teenage “warehouse workers” to cut open the bags and dump the contents into municipal trash dumpsters for disposal at unpermitted landfills. As with the abatement workers, the warehouse workers sustained repeated exposure to high levels of asbestos waste. The district court refused to apply the sentencing guideline enhancement. It held that the evidence was too uncertain since the proof failed to establish that injury would “necessarily result.” The court further declined to apply the adjustment because many of the individuals placed at risk – A+ workers – had willingly participated in the crimes. Finally, the court found that, even if asbestos disease resulted, medical science provided insufficient evidence to conclude that such disease would constitute serious bodily injury.

The Second Circuit Court of Appeals reversed the trial decision in the case, finding a clear error. It held that, beyond doubt, asbestos-related diseases such as mesothelioma, asbestosis and lung cancer constitute serious bodily injury under the sentencing guidelines. The court determined that a “substantial likelihood” is established under U.S.S.G. § 2Q1.2(b)(2) when the evidence demonstrates that serious bodily injury is considerably more likely than not to occur. The court found that the guideline standard had been readily satisfied given uncontested testimony from a prosecution expert that certain of Thorn’s 700 workers had a very high likelihood of developing asbestosis and mesothelioma (an invariably deadly form of cancer). The expert testified that the chances specifically identified workers would not develop asbestos disease was “virtually nil.” The court noted that proof of actual injury or death was not necessary, and had it existed, such evidence would warrant an upward departure.

The district court ruled that Thorn could not be subject to the U.S.S.G. 2Q1.2(b)(2) enhancement based upon a risk to workers who had willingly participated in the criminal conduct. The Second Circuit rejected this argument, holding that Thorn, as employer, had a legal duty not just to supply protective equipment, but to suppress hazardous conduct by his workers including the non-use of such equipment. Finding that in analogous guidelines, the Sentencing Commission expressly excluded “knowing participants” when it wished to do so, the court declined to read this limitation into the sentencing guideline enhancement. Finally, the court found the enhancement to be applicable even though some of the workers smoked cigarettes, which made their likelihood of contracting an asbestos-related disease more likely.

The district court departed downward from the money laundering sentencing guidelines, holding that U.S.S.G. § 2S1.1 was only intended to apply to “widespread and far-reaching schemes such as organized crime, racketeering offences, or serious drug crimes and conspiracies.” The Second Circuit held that the trial court erred as a matter of law. The Second Circuit found that the heartland of the money laundering guideline was not limited to offences such as those involving drugs or organized crime. It noted that the definition of “specified unlawful activity” in the money laundering statute includes nearly 100 offences constituting a wide variety of crimes, such as mail fraud (the activity underlying Thorn’s money laundering conviction). Finally, the Second Circuit noted that the U.S.S.G. § 2S1.1 guideline uses the value of the laundered funds, not the underlying criminal behavior, as the measure of the seriousness of the offence.

Thorn challenged the sufficiency of his money laundering conviction, claiming that he had been punished for mere “receipt and deposit” activities, something he argued was not properly regulated under 18 U.S.C. § 1956(a)(1)(A). In rejecting his appeal, the Second Circuit found that there was ample evidence for a reasonable jury to find that Thorn acted with intent to promote the continuation of the scheme. The court concluded that Thorn and his cohorts intended, with each bank deposit, to fund future projects that would also involve mail fraud. It found that the deposits were not merely the completion of the scheme, but enabled the conspirators to continue conducting the illegal asbestos abatements.