United States v. Lapteff

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4850



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ALEXANDER LAPTEFF,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (CR-03-78)


Argued:   September 19, 2005             Decided:   December 28, 2005


Before NIEMEYER and LUTTIG, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of North
Carolina, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: William Jeffrey Dinkin, DINKIN, PURNELL & JOHNSON,
P.L.L.C., Richmond, Virginia, for Appellant. Brian Lee Whisler,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.     ON BRIEF: Paul J.
McNulty, United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     A federal grand jury returned an eighteen count indictment

against   the   Defendant   Alexander   Lapteff,   alleging   certain

violations of the Clean Water Act, 33 U.S.C. § 1301 et seq., and

related charges.    The court dismissed one false statement count at

the close of the government’s evidence.      The jury convicted the

defendant of three counts of making false statements in a log book,

two counts of making false statements in a discharge monitoring

report, one count of failing to maintain monitoring records, and a

lesser included offense of negligent failure to properly maintain

and operate a sewage treatment facility.     The jury acquitted the

defendant on one count of failing to submit a report and one count

of making a false statement.

     Following the jury’s verdict, the district court sentenced

Lapteff to thirty-six months’ imprisonment, one year of supervised

release, a fine of $5,000 and a special assessment of $625.

Lapteff now challenges his conviction, arguing that the district

court improperly admitted "other crimes" evidence against him, as

well as, for impeachment, a 1992 federal conviction for filing a

false tax return.    The defendant also challenges his sentence on

grounds that the district court made factual findings at sentencing

not found by the jury, which enhanced his sentence in violation of

the Supreme Court’s decision in Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   We find no reversible


                                  2
error and affirm Lapteff's conviction.                        We vacate his sentence,

however, and remand this case for re-sentencing consistent with the

Supreme Court's recent decision in United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and our decision

in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).



                                              I.

      In     April      1997,     the    Christchurch         school   contracted    with

Analytech, Inc. (“Analytech”), an environmental consulting firm, to

manage     the    Christchurch          wastewater       treatment     facility.     From

November     1997,       through    March     2002,      the    defendant,     Alexander

Lapteff, operated the wastewater treatment facility on behalf of

Analytech.

     As    the        principal    operator        of   the   Christchurch     facility,

Lapteff was required to comply with the conditions detailed in the

National     Pollution          Discharge     Elimination        System   Permit     (the

“permit”) issued to the facility.                   The permit set forth effluent

discharge limits, monitoring and recordation requirements, and

conditions for general maintenance and operation of the facility.

     Between September 2001 and December 2001, Virginia Department

of Environmental Quality ("DEQ") inspector Steven Stell conducted

a   series       of    announced        and   unannounced        inspections    of    the

Christchurch facility. During these investigations, Stell observed

and documented continuing violations of the permit.                       Moreover, on


                                              3
December    10,    2001,   Analytec   submitted       its   November    Discharge

Monitoring Report to the DEQ, which failed to reflect the chlorine

residuals at the Christchurch facility for the month of November,

as required by the permit. After Stell concluded his investigation,

he notified DEQ criminal investigator Ralph Mayer.

      On January 8, 2002, Mayer commenced an investigation to verify

whether an Analytech employee was conducting the requisite daily

operations. Mayer's investigation, and a subsequent investigation

by the FBI, revealed several discrepancies between the log book

entries stating when daily maintenance was performed, and the dates

on which investigators observed an Analytech employee actually visit

the facility.       The investigation also revealed that when Lapteff

came to the facility, he remained there for less than 75 minutes,

even though the permit required an Analytech employee to operate and

maintain the facility for a minimum of four hours per day. The

investigators also discovered that a number of log books were

missing from the facility.            A subsequent search of Analytech’s

offices revealed six volumes of logbooks missing from the facility.



                                       II.

      At trial, and over Lapteff's objection, the district court

admitted certain testimony concerning: (1) a 1982 communication

between the Virginia State Water Control Board and the defendant;

(2)   a   1991    revocation   of   the       defendant’s   Class   I   wastewater


                                          4
treatment license after a finding of improper chlorine discharge;

and (3) a 1996 interview with federal agents in which, when asked

about his performance at a separate wastewater treatment facility,

the defendant denied that he or any of his workers ever skipped

required monitoring activity or testing.       The defendant further

complains that after he testified, the district court improperly

admitted, for impeachment, evidence of his prior felony conviction

for filing a false tax return.        The district court conducted a

hearing on the proffered evidence and, as to each, found it

admissible.   The court also gave a limiting instruction as to the

limited purpose for how the evidence was to be used by the jury.



                                 A.

     Lapteff contends that “other act” evidence should have been

excluded under Fed.R.Evid. 404(b), which provides as follows:

     Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order to
     show action in conformity therewith. It may, however, be
     admissible for other purposes, such as proof of motive,
     opportunity, intent, preparation, plan, knowledge,
     identity, or absence of mistake or accident....

     We have noted that “Rule 404(b) is viewed as an inclusive rule,

admitting all evidence of other crimes or acts except that which

tends to prove only criminal disposition.”     United States v. Gray,

405 F.3d 227, 239 (4th Cir. 2005) (citing United States v. Young,

248 F.3d 260, 270-71 (4th Cir.2001)).        In Gray, we held that

evidence of “other crimes” is admissible under Rules 404(b) and 403

                                 5
if four conditions are satisfied.         First, “[t]he evidence must be

relevant to an issue, such as an element of an offense, and must not

be offered to establish the general character of the defendant.”

Gray, 405 F.3d at 239 (citing United States v. Queen, 132 F.3d 991,

997 (4th Cir. 1997). Second, “[t]he act must be necessary in the

sense that it is probative of an essential claim or an element of

the offense.” Id.    Third, “[t]he evidence must be reliable.”            Id.

Finally, “the evidence's probative value must not be substantially

outweighed by confusion or unfair prejudice in the sense that it

tends to subordinate reason to emotion in the factfinding process.”

Id.

      With respect to each of the items of evidence introduced, all

four conditions were satisfied.         They are reviewed seriatim.

The 1982 Virginia State Water Board Communication

      The government introduced the testimony of Eugenia Grandstaff,

an enforcement specialist with the Virginia State Water Board.

Grandstaff testified that she met the defendant in 1982, and after

investigation, sent him a warning letter.        A portion of that letter

was introduced into evidence.     When asked about the “second part of

the middle paragraph” of that letter,         Grandstaff read, “Although

you noted ... that the sample was taken on June 3rd, you did not

indicate   the   reason   for   this.      Not   reporting   data   for   or

misrepresenting data is a falsification of records.             This is a

criminal offense.”


                                    6
     The    government   offered   the   evidence   as   probative   of   the

defendant’s knowledge.      Although the crimes charged were general

intent crimes, the government bore the burden of establishing that

a false statement was made knowingly, and not because of accident

or mistake.    Evidence of prior notice of the potential criminality

of false statements was probative of this issue and was clearly

relevant and necessary to sustain an element of the government’s

case.    Its reliability was demonstrated by the fact that Grandstaff

was the same person who interviewed the defendant and personally

wrote the letter addressed to him.

The 1991 Illegal Chlorine Discharge

     The government called Francis Walter Pedrotty III, an attorney

with the Virginia Attorney General’s office.             Pedrotty testified

that he prosecuted an administrative action against Lapteff after

a chlorine discharge caused the death of numerous fish in 1991. The

defendant lost his Class I wastewater operating license as a result

of his failure to supervise employees.       The government offered into

evidence the Order that revoked Lapteff’s license.1

     As with the 1982 letter, the government proffered a valid

404(b) purpose for this evidence - to show the defendant’s knowledge



     1
      Lapteff did not object to the admission of this document on
hearsay grounds even though the court had previously sustained a
hearsay objection to the introduction of a Notice of Informal Fact-
Finding Conference concerning the same incident. At oral argument
counsel indicated that for strategic reasons he did not assert a
hearsay objection. Regardless, that issue is not before us.

                                     7
and intent.     This evidence was probative of the defendant’s state

of mind at the time he committed the charged offense, an element of

the government’s burden of proof. The other act evidence, a license

revocation for failure to supervise, was similar to the instant

charge and not too remote in time.

     Defendant argues that evidence of a “fish kill” was emotive and

unfairly inflamed the passions of the jury.     It is hard to fathom

how a one sentence description of the prior issue in the context of

a nearly five hundred page trial transcript could have the contended

effect. Any danger that the jury would be swayed by this evidence

to “subordinate reason to emotion in the factfinding process” was

effectively cured by the court’s limiting instruction, informing the

jury it could only consider the evidence once it had first found

beyond a reasonable doubt from other evidence that the defendant

committed the acts charged in the indictment, and only then for the

limited purpose of determining the defendant’s state of mind or

intent.   We presume trial juries capable of following such clear

instructions.    See Queen, 132 F.3d at 997.

The 1996 interview

     The final 404(b) issue is a non-custodial interview of the

defendant by federal investigators about his company’s prior testing

practices.    At trial, government counsel restricted his examination

to “one aspect of that interview.”       EPA Agent Michael Shumaker

testified that Lapteff denied that he or his employees failed to


                                  8
monitor or conduct proper tests.               Lapteff’s denial is not 404(b)

evidence.   Indeed, at oral argument, counsel strained, and failed,

to articulate how this evidence constituted “other act” evidence at

all.    The fact that six years earlier, Lapteff denied allegations

of misconduct which denial tended to show his knowledge of the

regulatory scheme and the necessity of compliance with monitoring

and testing requirements of the law simply is not an “other act”

contemplated by Rule 404(b).



                                        B.

       Defendant’s    remaining    claim        relates     to   the    admission   of

Lapteff’s 1992 conviction for filing a false tax return.                     Defendant

contends that Fed.R.Evid. 609 prohibits impeachment by a conviction

more than ten years old, unless its probative value substantially

outweighs its prejudicial effect. Arguing that the district court’s

balancing   test     was   deficient,      Lapteff     contends        the   admission

constituted an abuse of discretion.              We disagree.

       First, defendant’s prior felony conviction for filing a false

tax return, a violation of 26 U.S.C. § 7206(1), is for a crime

involving dishonesty or false statement. See, e.g. United States v.

Thompson, 806 F.2d 1332 (7th Cir. 1986)(affirmed trial court’s

admission of prior conviction for filing false tax returns as a

crime    involving    dishonesty      or       false   statement       resulting    in

imprisonment    within     ten-year     period).       As    such,     admission    is


                                           9
mandatory   under     Rule   609(a)(2).    See       Fed.R.Evid.   609    advisory

committee   note      to   subdivision    (a)    of    1974   enactment     (“Such

convictions are peculiarly probative of credibility and, under this

rule, are always to be admitted”). Thus, if Lapteff’s tax fraud

conviction was less than ten years old within the meaning of

Fed.R.Evid. 609(b), admission was required.

      In this case, the defendant was convicted of filing false tax

returns on January 24, 1992, and sentenced, inter alia, to four

months’ incarceration followed by three years of supervised release,

with conditions of release which included paying taxes due and owing

in the amount of $218,192 within six months. The defendant violated

this condition, and, on September 21, 1994, his supervised release

was   revoked.   He    was   sentenced    to    an    additional   four    months’

imprisonment.    His release from prison sometime after September 21,

2004, came within ten years of his trial on July 21-24, 2003.

      Whether confinement pursuant to a revocation of supervised

release is confinement imposed for the original conviction within

the meaning of Rule 609(b) is a question not yet addressed in this

circuit.    In United States v. Gray, 852 F.2d 136 (4th Cir. 1988),

we held that a seventeen year old bank robbery conviction was

admissible for impeachment where, as a result of a parole violation,

defendant’s confinement came within Rule 609(b)’s ten-year period.

Similarly in United States v. McClintock, 748 F.2d 1278 (9th Cir.

1984), the Ninth Circuit held that a probation violation that caused


                                     10
incarceration within ten years was confinement for the original

conviction within the meaning of Rule 609(b). Id. at 1288-89 (citing

United      States      v.     Brewer,        451        F.Supp       50,     53    (E.D.

Tenn.1978)(“reconfinement”           pursuant       to    a    parole      revocation     is

confinement for the original conviction)).

     We find no reason not to treat confinement following revocation

of supervised release similar to that for parole and probation

violations.      Each    relates      back    to    the       underlying     conviction.

Defendant’s attempts to distinguish Gray are unpersuasive. First,

he argues    that Gray was still in prison at the time of his second

trial.    That argument simply establishes the point that, for Rule

609(b) purposes, less than ten years had elapsed since the date of

confinement.         Second,    he    argues       that       an    additional     act    of

criminality is required to “reset” the ten year period.                                This

argument misses the point. Lapteff’s conviction for filing a false

tax return included a period of supervised release.                         His violation

of   a    condition    of    that     supervised         release      and    concomitant

incarceration constitutes confinement for the original conviction

within the meaning of Rule 609(b).

     In    short,     Lapteff’s      conviction      met      all    the    criteria     for

mandatory admission under Fed.R.Evid. 609. Because we find that the

challenged conviction involving dishonesty or false statement came

within the ten year period provided by Rule 609(b), we need not

reach the issue of the district court’s alternative holding that the


                                         11
probative value of the use of the conviction for impeachment

substantially outweighed its prejudicial effect.



                                C.

     Finally, the government concedes that Lapteff’s sentence was

erroneous under United States v. Booker, supra, 543 U.S. 220,

because it was imposed under a mandatory Sentencing Guidelines

regime.   We find that plain error occurred in sentencing Lapteff

according to the Guidelines as mandatory.2    See United States v.

Hughes, 401 F.3d 540(4th Cir. 2005).



                               III.

     Accordingly, while we affirm Lapteff’s conviction, we vacate

his sentence and remand for re-sentencing in accordance with Booker.


                                                   AFFIRMED IN PART,
                                                    VACATED IN PART,
                                                        AND REMANDED




     2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, "we of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time" of Lapteff’s sentencing.



                                12