United States v. Weintraub
United States v. Weintraub
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Defendants-appellants Melvin Wein-traub (‘Weintraub”) and Morelite Development and Construction, Inc. (“Morelite”) and Liberty Realty Associates (“Liberty”) (collectively “Corporate Defendants”) appeal from three May 11, 2000 judgments of the United States District Court for the District of Connecticut (Arterton, /.) convicting them after a jury trial of multiple counts of conspiring to violate, and sub
The Corporate Defendants argue first that the district court should have granted their motion to dismiss the indictment for its failure to allege all the requisite elements of the charged offenses. They contend that Counts Two through Seven of the indictment, alleging various substantive violations of the provisions of the CAA and its accompanying regulations relevant to the removal of asbestos, failed to allege the presence of “regulated asbestos containing material” and the quantities of that material necessary to trigger the regulations. To the contrary, however, the introduction to the indictment identified the characteristics of asbestos that must be present to render the asbestos regulations applicable. The Corporate Defendants’ claim that those requirements were not stated in each Count of the indictment is (1) inaccurate, given each Count’s incorporation by reference of all preceding paragraphs, and (2) irrelevant, given that the obvious implication of the alleged violations in each Count was that the requirements of the regulations, described in the introduction, had not been met. Accordingly, the indictment provided the defendants with sufficient notice of the charges pending against them. See United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999).
Liberty also argues that the district court improperly allowed the government to make a constructive amendment of the indictment midcourse, by allowing the government to seek conviction of Liberty on an aiding-and-abetting theory of liability. We have held that “inclusion of an aiding and abetting charge to the jury will rarely, if ever, constructively amend an indictment because an aiding and abetting charge is arguably implicit in every indictment.” United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir. 1994). We do not believe that this is such a “rare” case. Liberty could not have been surprised by the government’s reliance on the aiding- and-abetting theory because the indictment cited the aiding-and-abetting statute (albeit initially for other purposes), 18 U.S.C. § 2, and because the government indicated as early as a month before trial that it intended to pursue such a theory. See United States v. Berger, 224 F.3d 107, 117 (2d Cir. 2000) (“[W]e have consistently permitted significant flexibility in proof,
Finally, the Corporate Defendants contend that the district court erroneously failed to instruct the jury that a corporation cannot conspire with its agents. Even assuming arguendo that the “intracorporate conspiracy doctrine” urged by the Corporate Defendants applies in the present setting, they have not shown that “viewing as a whole the charge actually given, [they were] prejudiced.” United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (quotation marks omitted). They have not shown that the jury was misled into convicting the Corporate Defendants of conspiring with their agents, Weintraub, Napolitano, and others. Because the jury could have convicted the Corporate Defendants derivatively for the conspiracy among their agents, the Corporate Defendants’ claim that their conviction might have been based on an intracorporate conspiracy theory is merely surmise.
We have considered the remainder of appellants’ claims and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Reference
- Full Case Name
- United States v. Melvin WEINTRAUB, John Dawson, Morelite Dev & Const, Inc, and Liberty Realty Associates, LLC
- Cited By
- 4 cases
- Status
- Published