Reversible Error In Excluding Evidence Of Good Faith Belief

Evidence of good faith may be offered to undermine the intent to violate the law. The Second Circuit concluded that the trial court erred in excluding defense evidence that they “acted in the good‐faith belief that they were conducting air monitoring in compliance with” state law, in United States v. Certified Environmental Services, Inc., _ F.3d _ (2d Cir. May 28, 2014) (Nos. 11‐4872(Lead), 11‐4875(Con), 11‐4877(Con), 11‐4974(Con), 11‐4976(Con), 11‐4968(XAP), 11‐4969(XAP), 11‐4972(XAP))

In considering whether evidence of the good faith belief of the defendants, one issue concerned whether evidence outside the charged period was relevant? A recent Second Circuit case confronted the issue of temporal relevance and found that the trial court erred in excluding the evidence.

Trial Court Exclusion

In the case, an asbestos air monitoring company, five employees, and another employee of an asbestos abatement contractor were charged with violations of the Clean Air Act, mail fraud, and making false statements. The case related to their alleged violation of state and federal environmental regulations. The government alleged that the defendants falsely certified that proper air monitoring had been conducted. At trial, the defendants sought to admit evidence that they had acted with “the good‐faith belief that they were complying with applicable state regulations.” The evidence included a 1994 conversation between an air monitoring supervisor and an unknown Department of Labor (DOL) employee “for clarification regarding the circumstances under which air monitors were required to use aggressive sampling techniques.” The defense proffered that the DOL employee advised “[t]hat if the work did not require a negative pressure enclosure, . . . aggressive clearance wouldn’t be required.” Certified Environmental Services, _ F.3d at _. Comparable advice was given in the 2006 emails the defendants offered.

The trial court concluding decided that this evidence was irrelevant as it was “too remote in time and in substance” under FRE 401 to provide proof one way or another. According to the trial court, “the 1994 conversation occurred five years before the charged conspiracy began in 1999, and the 2006 e‐mails were exchanged after most of the charged conduct; and the 2009 guidance “was published after the last charged project had been completed.” After the defendants were convicted, on appeal they argued that the exclusion of the good faith evidence constituted reversible error. Certified Environmental Services, _ F.3d at _.

Second Circuit Review: Reversible Error

The Second Circuit concluded that the trial court erred in excluding the evidence of good faith belief. The exclusion in conjunction with prosecutorial misconduct "was sufficient to violate the defendants’ right to a fair trial." The convictions were vacated and the case was remanded.

On the good faith believe evidence, the circuit disagreed that the "proffered evidence was temporally irrelevant." As the circuit explained:

With respect to the 1994 conversation, while that evidence predated the charged conspiracy by five years, it concerned the nature of an ongoing regulatory requirement and, according to the defendants, informed the creation of a consistent company policy. In addition, while CES air monitors attended state‐mandated refresher courses during the relevant period, no pertinent portion of the Code Rule changed between the 1994 conversation and the commencement of the charged conspiracy in 1999, nor did the DOL promulgate any updated guidance that would disabuse the defendants of the understanding purportedly conveyed to Hoosock. The 1994 conversation thus concerned “a pattern of activity that continued up to the time of the charged conduct.”

Certified Environmental Services, _ F.3d at _ (citing United States v. Curley, 639 F.3d 50, 59 (2d Cir. 2011)).

Similarly, while the 2006 emails "post‐dated all of the relevant projects charged in the indictment," the circuit noted that "the defendants presented evidence that CES conducted air monitoring pursuant to a longstanding interpretation of the Code Rule embodied in a standard company policy." The emails were therefore probative on the "longstanding continuous mental process" and also provided some corroboration of the 1994 discussion. The circuit was not troubled by the government's claim that the email occurred after the defendant learned of the investigation since "that fact at most raises questions about [witness] Hoosock’s credibility." Certified Environmental Services, _ F.3d at _.

Finally, the circuit was not persuaded by the government contention that the statements were inadmissible hearsay. The circuit concluded the statements were not offered for the truth of the matter asserted "but to show that the statements occurred and that, given their effect on the defendants’ state of mind, they provided a good faith basis for the defendants’ actions.” Certified Environmental Services, _ F.3d at _ (citing United States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986) (non-hearsay state of mind evidence); United States v. Puzzo, 928 F.2d 1356, 1365 (2d Cir. 1991) (non-hearsay effected on listener evidence); United States v. Pedroza, 750 F.2d 187, 200 (2d Cir. 1984) (non-hearsay showing the circumstances in which subsequent events occurred)).

Conclusion

It is not uncommon for courts to exclude evidence that may be temporally removed from the charges. The Certified Environmental Services case provides an example where events outside the charged period may be relevant if linked to a pattern of activity or demonstrative of a longstanding process.

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