United States v. Giacomo D. Catucci, 55 F.3d 15 (1st Cir. 1995). · Go Syfert
United States v. Giacomo D. Catucci, 55 F.3d 15 (1st Cir. 1995). Cases Citing This Book View Copy Cite
“hen a notice is prematurely filed, it shall be in 16 abeyance and become effective upon the date of entry of an order disposing of the rule 17 59(e) motion.”
28 citation events (8 in the last 25 years) across 6 distinct courts.
Strongest positive: Keith Thorstenson, et al. v. Unknown Parties, et al. (azd, 2025-10-28)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Keith Thorstenson, et al. v. Unknown Parties, et al. (3×) also: Cited "see"
D. Ariz. · 2025 · quote attribution · 1 verbatim quote · confidence high
hen a notice is prematurely filed, it shall be in 16 abeyance and become effective upon the date of entry of an order disposing of the rule 17 59(e) motion.
discussed Cited as authority (rule) United States v. Tonawanda Coke Corp.
W.D.N.Y. · 2014 · confidence medium
Instead, “[t]he application note states the obvious — that when a hazardous or toxic substance is discharged into the environment, it will be assumed that contamination of that environment ordinarily ensues.” Liebman, 40 F.3d at 550-51 ; see United States v. Mathis, 738 F.3d 719, 739 (6th Cir.2013); United States v. Perez, 366 F.3d 1178 , 1182 n. 4 (11th Cir.2004); United States v. Catucci, 55 F.3d 15, 18 (1st Cir.1995); United States v. Goldfaden, 959 F.2d 1324, 1330-31 (5th Cir.1992); see also United States v. Bogas, 920 F.2d 363, 368 (6th Cir.1990) (distinguishing between contaminatio…
discussed Cited as authority (rule) United States v. Atlantic States Cast Iron Pipe Co. (2×)
D.N.J. · 2009 · confidence medium
Indies Transp., 127 F.3d 299, 303-04, 315 (3d Cir.1997) (pollutants dumped into bay); United States v. Jarrell, No. 95-5718, 1996 WL 690062 (4th Cir. Dec.3, 1996) (pollutants discharged into public waters); United States v. Hart, No. 94-1005, 1995 WL 445685 (10th Cir. July 28, 1995) (dumping hazardous waste into treatment plant headworks); Pizzuto, 1995 WL 610346 (PCBs released into environment by leaking onto ground, remaining as film on scrap sold, and escaping into air when scrap burned); United States v. Catucci, 55 F.3d 15, 16-18 (1st Cir.1995) (PCB-laden transformers leaked onto streets …
cited Cited as authority (rule) United States v. VanDam
10th Cir. · 2007 · confidence medium
See Vaval, 404 F.3d at 156 (ordering specific performance); Mondragon, 228 F.3d at 981 (same); Clark, 55 F.3d at 15 (same); Correale, 479 F.2d at 949-50 (same).
discussed Cited as authority (rule) United States v. Ortiz
10th Cir. · 2005 · confidence medium
See, e.g., United States v. Strandquist, 993 F.2d 395, 400-401 (4th Cir.1993) (conviction on two counts of illegal discharge on two separate days amounts to “repetitive discharge”); United States v. Catucci, 55 F.3d 15, 18 (1st Cir.1995) (“the two PCB-laden transformers were dumped on separate occasions.
discussed Cited "see" United States v. Charles A. Eidson, Sandra A. Eidson
11th Cir. · 1997 · signal: see · confidence high
See United States v. Catucci, 55 F.3d 15, 18 (1st Cir.1995) (holding that two discharges on separate days sufficient to support increase § 2Q1.2(b)(l)(A)); United States v. Strandquist, 993 F.2d 395, 401 (4th Cir.1993) (two separate incidents sufficient to support upward adjustment under analogous provision of § 2Q1.3(b)(l)(A)).
discussed Cited "see" United States v. Eidson
11th Cir. · 1997 · signal: see · confidence high
See United States v. Catucci, 55 F.3d 15, 18 (1st Cir.1995) (holding that two discharges on separate days sufficient to support increase § 2Q1.2(b)(1)(A)); United States v. Strandquist, 993 F.2d 395 , 401 10 Appellants also contend that the government violated Fed.R.Crim.P. 16(c) and Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), by not furnishing them with copies of documents that agents seized from Cherokee's office when they executed a search warrant in March 1992.
cited Cited "see" United States v. Cruz
1st Cir. · 1996 · signal: see · confidence high
See United States v. Catucci, 55 F.3d 15, 18 (1st Cir.1995). 2 B.
cited Cited "see" United States v. Cruz
1st Cir. · 1996 · signal: see · confidence high
See United States ___ _____________ v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995).2 _______ B.
cited Cited "see" United States v. Santos-Frias
1st Cir. · 1995 · signal: see · confidence high
See United ___ ______ States v. Catucci, 55 F.3d 15 , 19 n.3 (1st Cir. 1995).
cited Cited "see" United States v. Santos-Frias
1st Cir. · 1995 · signal: see · confidence high
See United States v. Catucci, 55 F.3d 15 , 19 n.3 (1st Cir.1995).
cited Cited "see, e.g." United States v. Otero-Ortiz
1st Cir. · 1997 · signal: see, e.g. · confidence medium
See, e.g., ___ ____ United States v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995); _____________ _______ United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994).
cited Cited "see, e.g." United States v. Otero-Ortiz
1st Cir. · 1997 · signal: see, e.g. · confidence medium
See, e.g., United States v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995); United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994).
discussed Cited "see, e.g." United States v. Grandmaison
1st Cir. · 1996 · signal: see, e.g. · confidence low
See, e.g., Catucci, 55 F.3d at 19 n.3 ___ ____ _______ (citing cases); Marcello, 13 F.3d at 760 (citing cases); ________ Gifford, 17 F.3d at 475; United States v. Morales, 972 F.2d _______ ________________________ 1007, 1011 (9th Cir. 1992), cert. denied, -- U.S. --, 113 S. _____ ______ Ct. 1665 (1993).
discussed Cited "see, e.g." United States v. Grandmaison
1st Cir. · 1996 · signal: see, e.g. · confidence low
See, e.g., Catucci, 55 F.3d at 19 n. 3 (citing cases); Marcello, 13 F.3d at 760 (citing cases); Gifford, 17 F.3d at 475 ; United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992), cert. denied, 507 U.S. 1012 , 113 S.Ct. 1665 , 123 L.Ed.2d 283 (1993).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Giacomo D. CATUCCI, Defendant, Appellant
Marcia G. Shein, with whom Nat. Legal Services, Inc., Atlanta, GA, was on brief, for appellant., Craig N. Moore, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., Providence, RI, was on brief, for appellee.
Torruella, Aldrich, Cyr.
Cited by 17 opinions  |  Published
CYR, Circuit Judge.

After a jury returned guilty verdicts against defendant-appellant Giacom D. Ca-tucci on four toxic-waste dumping charges, the district court imposed a twenty-seven month prison sentence and Catucci appealed. Finding no reversible error, we affirm.

I

BACKGROUND

The salient facts are recited in the light most favorable to the verdicts. United States v. Tuesta-Toro, 29 F.3d 771, 774 (1st Cir.1994). In 1987, Catucci, then the proprietor of Post Tron Systems, instructed the plant superintendent to obtain cost quotations for removing two PCB-laden electrical transformers from the firm’s business premises in Providence, Rhode Island. The cost estimates ranged between $8,000 and $10,000 per unit. Years later, in June 1991, Post Tron Systems’ lending bank conducted an environmental audit and specifically informed Catucci that the two transformers containing PCBs would have to be removed in accordance with Environmental Protection Agency[*17] (“EPA”) regulations. Shortly thereafter, Post Tron went out of business.

During the course of subsequent renovations to the business facilities, Catucci arranged for Manuel Ameida and Timothy A-caro to remove a conveyor belt system. As compensation, Almeida and Acaro were to retain the salvageable scrap metal — approximating $40 per day in value — recovered in the course of the renovations. Almeida and Acaro later offered to remove all five transformers at the site, including the two PCB-laden ones, in return for the right to retain the salvage value of their copper coils. A-though the plant superintendent reminded Catucci that scrapping the transformers would be against the law, Catucci nevertheless granted permission, stating to the superintendent: “If [Acaro] wants them, he can have them all.”

A few months later, Ameida, Acaro and a third individual — David Dellinger — removed two units, including one of the PCB-laden transformers, after loosening their lids and thereby causing oil to leak onto local streets and 1-95 during transportation. At a secluded gravel pit, the remaining oil was dumped, the copper coils were removed and the transformers were abandoned. The next day, the men repeated the process with the three remaining units — one containing PCBs.

More than a year later, while investigating David Dellinger, the Rhode Island Department of Environment Management (“DEM”) discovered the PCB-laden oil that had been dumped from the Post Tron transformers. A few weeks later, the DEM executed a search warrant at the former Post Tron facility. On the following day, Catucci informed the Providence Police Department that the transformers had been stolen. Not until several months after Acaro and Almeida were arrested for stealing the transformers did Catucci admit to having allowed them to remove the transformers. Even then he claimed that they had been told to dispose of the transformers lawfully.

Thereafter, Catucci was charged, in two counts, with causing unlawful disposal of PCBs in violation of 15 U.S.C. § 2615(b) and, in two additional counts, with failing to provide immediate notification of a release of hazardous materials, in violation of 42 U.S.C. § 9603(b). Following his conviction on all counts, Catucci was sentenced to twenty-seven months.

II

DISCUSSION

A. Sufficiency of the Evidence

On appeal, Catucci claims that there was insufficient evidence that he knew the two PCB-laden transformers would be disposed of illegally, an essential element in each offense charged. See 15 U.S.C. § 2615(b) (establishing criminal sanctions for knowingly or willfully violating EPA dumping regulations); 42 U.S.C. § 9603(b) (establishing criminal sanctions against any person for failing to notify appropriate government agency of release “as soon as he has knowledge of such release”); United States v. Buckley, 934 F.2d 84, 89 (6th Cir.1991); United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985) (Kennedy J.) (§ 2615); United States v. Ward, 676 F.2d 94, 97 (4th Cir.) (same), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982).

Under the established standard of review set out in the margin, [1] we find ample evidence to support the essential jury findings that Catucci knew Ameida and Acaro would dump the PCBs unlawfully, and that he did not provide timely notice to governmental authorities.

First, the evidence at trial demonstrated that Catucci had been informed, by his plant superintendent, that lawful disposal of each[*18] PCB-laden transformer would cost between $8,000 and $10,000, since EPA regulations required that they be incinerated. As Almei-da and Arcaro were willing to remove the transformers in return for the salvage value of their copper coils, the jury assuredly could infer that Catucci was well aware that the two PCB-laden transformers were not going to be incinerated — at a total minimum cost of $16,000 — by volunteers who would receive only their scrap value in return. See United States v. Tejeda, 974 F.2d 210, 213 (1st Cir.1992) (noting that jurors may evaluate evidence in light of “their experience as to the natural inclinations of human beings”). Second, Catucci subsequently misrepresented that the transformers had been stolen, which permitted the jury to infer consciousness of guilt. See United States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.1990) (jury may construe knowingly false statement as evidence of consciousness of guilt), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 and cert. denied, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d 981 (1991).

B. Adjustment for Repetitive Discharge

Catucci assigns error in the net four-level upward adjustment the sentencing court made pursuant to U.S.S.G. § 2Q1.2(b)(l)(A), which states:

If the offense resulted in an ongoing, continuous, or repetitive discharge, release or emission of a hazardous or toxic substance or pesticide into the environment, increase by 6 levels.

Catucci argues that it was mere happenstance that the two PCB-laden transformers were dumped on different days. Consequently, he contends, absent evidence that he intended repetitive discharges the district court misapplied the repetitive discharge adjustment. We discern no error. [2] After adopting a six-level upward adjustment under U.S.S.G. § 2Q1.2(b)(l)(A), the district court invoked Application Note 5 as authority for a two-level downward departure, resulting in a net upward adjustment of four levels. Application Note 5 expressly states that the district court is invested with authority to make “a departure of up to two levels in either direction” depending upon the quantity and duration of the discharge and the nature of the harm caused by it. U.S.S.G. § 2Q1.2, comment, (n. 5).

U.S.S.G. § 2Q1.2(b)(l)(A) is triggered if the offense resulted in an ongoing, continuous or repetitive discharge. Catucci concedes that the two PCB-laden transformers were dumped on separate occasions. Nothing more need be shown to activate the repetitive discharge adjustment. See United States v. Liebman, 40 F.3d 544, 550 (2d Cir.1994) (repetitive discharge adjustment under § 2Q1.2(b)(l)(A) warranted where defendant had untrained workers remove hazardous material from factory, and workers unlawfully dumped material on several different days); United States v. Strandquist, 993 F.2d 395, 401 (4th Cir.1993) (analogous upward adjustment under § 2Q1.3(b)(l)(A) for repetitive discharge triggered by establishing second discharge).

C. Aberrant Behavior

Catucci urges a remand for resen-tencing because the district court allegedly misapprehended its authority to depart downward on the ground that these offenses constituted “aberrant behavior.” See United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (adverting to guideline relating to “aberrant behavior” departures).

At sentencing, the district court repeatedly indicated its readiness to allow a principled downward departure. Yet despite the district court’s specific invitation (“Do you see anything ... which would authorize my departure in this ease in a justifiable and reasonable manner?”) and its apparent displeasure at having to impose a prison sentence on a person “who may have had an aberration,” no “aberrant behavior” claim was presented to the district court. In these stark circumstances, a finding of waiver is virtually compelled. Cf. United States v. Montoya, 967 F.2d 1, 2 (1st Cir.1992) (sentencing claim not presented to district court deemed waived), cert. denied, — U.S.-, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992); Unit [*19] ed States v. Dietz, 950 F.2d 50, 55 (1st Cir.1991); United States v. Rosalez-Cortez, 19 F.3d 1210, 1220 (7th Cir.1994) (failure to raise “aberrant behavior” claim in district court results in waiver). [3]

D. Criminal Rule 32

Catucci contends that resentencing is necessary because the district court failed to comply with Rule 32(c)(3)(D), which provides that, as to any alleged “factual inaccuracy in the presentence investigation report,” the district court is to “make (i) a finding as to the allegation or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” A “written record” of the sentencing court’s findings is required. United States v. Savoie, 985 F.2d 612, 620 (1st Cir.1993).

Catucci argues that the sentencing court failed to address the following claim that he be allowed a downward adjustment as a “minor or minimal” participant:

... you could make a downward departure based upon a role as a minor in the offense or ... a minimal role in that offense and in — in the whole case, if you believe the jury’s decision, they were told that I gave permission to take the transformers.
No one ever said that I told them to dispose of the transformers or I gave permission to dump the transformers. They said they allege that they asked me for permission to take the copper from the transformers and that’s the worst of the testimony from that perspective, so I just raise that issue.

Later in his allocution, after Catucci had asserted his innocence, the district court cautioned that it could not disregard the jury verdicts. [4] The district court ruling rejecting a downward adjustment under U.S.S.G. § 3B1.2 is not challenged on appeal.

Catucci’s claimed entitlement to a downward “departure” under U.S.S.G. § 3B1.2, notwithstanding the central jury finding that he knowingly allowed Arcaro and Almeida to dispose of the transformers, did not challenge any factual statement in the presentence report, but amounted instead to an attempt to dispute the legal import of the jury verdicts. Absent a claim of factual inaccuracy, the Rule 32(c)(3)(D) requirement simply is not implicated. United States v. Pellerito, 918 F.2d 999, 1003 (1st Cir.1990) (Rule 32(c)(3)(D) not triggered by claim of legal error); United States v. Reese, 998 F.2d 1275, 1285 (5th Cir.1993) (Rule 32(c)(3)(D) not triggered by claim of error in assigning role in offense). [5]

Ill

CONCLUSION

For the foregoing reasons, the judgment of conviction and sentence is affirmed.

Affirmed.

1

. We assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence; that is, the fact finder may decide among reasonable interpretations of the evidence.

United States v. Hahn, 17 F.3d 502, 506 (1st Cir.1994).

2

. Guideline interpretations are reviewed de novo, whereas relevant factual findings are reviewed for clear error and their application under the guideline is accorded due deference. See United States v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir.1994), cert. denied, -U.S. -, 115 S.Ct. 947, 130 L.Ed.2d 891, and cert. denied,-U.S. -, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995).

4

. A role-in-the-offense determination presents a mixed question of law and fact, United States v. Carrozza, 4 F.3d 70, 89 (1st Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994), which we review only for clear error, by reason of its fact-bound nature, United States v. Rodriguez Alvarado, 985 F.2d 15, 19 (1st Cir.1993).

5

. United States v. Rosado-Ubiera, 947 F.2d 644, 645-46 (2d Cir.1991), is not to the contrary. There the district court had refused to resolve both a factual dispute, as to the defendant’s conduct, and the defendant's role in the offense.