Salvagno v. Williams

          RULING ON MOTION TO DISMISS

          MICHAEL P. SHEA, U.S.D.J.

         Alex Salvagno (“Salvagno”) is an inmate confined at Federal Correctional Institution (“FCI”) Danbury. He filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241 against D.K. Williams (“Williams”), the warden at FCI Danbury, to challenge the twenty-five year sentence imposed after he was found guilty of racketeering conspiracy, violating and conspiring to violate the Clean Air Act (“CAA”) and Toxic Substances Control Act (“TSCA”), and filing false personal income tax returns. Salvagno argues that his sentence violates due process because the sentencing court relied on information that years later turned out to be materially untrue, and that this Court should hear his claim - brought after several earlier challenges to his conviction and sentence failed - because he is actually innocent of the conduct that formed the basis of a substantial sentencing enhancement imposed on him under the United States Sentencing Guidelines. (ECF No. 1 at 6; ECF No. 1-1 at 2-31.)

         On January 16, 2018, the Court ordered Williams to show why it should not grant the relief sought by Salvagno. (ECF No. 3.) Williams now moves to dismiss Salvagno's petition under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (ECF No. 7-1 at 5-13.) For the reasons discussed below, the Court GRANTS Williams' motion to dismiss and DISMISSES Salvagno's petition.

         BACKGROUND

         The following facts are drawn from Salvagno's petition, Williams' motion to dismiss, and where applicable, court documents in the underlying criminal case against Salvagno.^[1]

         I. The Trial

         Salvagno was the President and principal owner of AAR Contractor, Inc. (“AAR”), an asbestos abatement company operating in New York. (ECF No. 112 at ¶¶ 1, 9, 02-cr-00051-LEK (N.D.N.Y.).)^[2] On January 15, 2003, Salvagno, AAR, and other defendants were indicted in the Northern District of New York on charges of racketeering conspiracy, conspiracy to violate the CAA and TSCA, multiple violations of the CAA, and three counts of filing false personal income tax returns. (ECF No. 7-1 at 2; see ECF No. 112, 02-cr-00051-LEK (N.D.N.Y.).) In short, the Indictment alleged that AAR, with Salvagno at its helm, had performed dry removals of asbestos without appropriate precautions or safety gear at dozens of sites and then falsified air monitoring tests to show that the work was lawfully done. (See generally ECF No. 112, 02-cr-00051-LEK (N.D.N.Y.).) Following a four-month trial, the jury found Salvagno guilty on all charges on March 30, 2004. (ECF No. 7-1 at 2.)

         II. The Sentencing Hearing

         Following the guilty verdict, the judge held an eleven-day sentencing hearing, taking testimony from fact and expert witnesses called by both parties. Among the many contested issues, Salvagno and the government hotly disputed the applicability of U.S.S.G. § 2Q1.2(b)(2), which provides for a sentencing enhancement of nine levels if the offense “resulted in a substantial likelihood of death or serious bodily injury.” Federal Sentencing Guidelines Manual § 2Q1.2(b)(2) (2000). (See ECF Nos. 394, 395, 02-cr-00051-LEK (N.D.N.Y.).)^[3]

         The Government's primary expert witness concerning the applicability of § 2Q1.2(b)(2) was Dr. Stephen M. Levin, an expert in asbestos exposure.^[4] Dr. Levin testified that he reviewed the indictment, trial testimony, and numerous affidavits, and spoke with three former AAR workers to gain familiarity with the facts on which to base his opinions. (See also ECF No. 1117, Oct. 27, 2004 Hrg. at Tr. 15-17 (the “Oct. 27, 2004 Hrg.”), 02-cr-00051-LEK No. 394 (N.D.N.Y.).) Based on his review, Dr. Levin opined that he believed that there was a substantial likelihood of death or serious bodily injury as defined in § 2Q1.2(b)(2), because “there is very significant likelihood that individuals will contract cancer, which I consider a grave threat to human health, as well as severe and impairing asbestosis as a consequence of the exposures that have been described to me . . . .” (Id. Tr. 62:19-24.) In particular, Dr. Levin estimated that a core group of 100 employees who had worked for AAR for 4 years or more without respiratory protection were exposed to asbestos in the range of 160 “fiber-years.” (Id. Tr. 63:19-23.) As Dr. Levin explained, a fiber-year is the average No. of asbestos fibers per cubic centimeter multiplied by the No. of years a person is exposed to that average concentration. (See Id. Tr. No. 30:9-13 (“[F]iber years really means being exposed to a certain concentration of asbestos in the air for a certain period of time because it's accumulated exposure that determines the risk of disease, not just the exposure at any one time.”).)

         Dr. Levin testified that his estimate of a 160 fiber-year concentration was based on his review of the trial transcript, affidavits, and his discussions with AAR workers. (See, e.g., Id. Tr. 56:22 -57:7.) In particular, Dr. Levin testified that at AAR, “for the most part the removal of asbestos was done under dry conditions, as opposed to wet, which would suppress dust and that the removal was carried out at a very rapid pace which resulted in almost constant presence of visible dust in the air, at times described as so heavy as it looked like a snowstorm or a blizzard, and this was a recurrent thing depending on the pace of the work.” (Id. Tr. 55:3-10.) He similarly testified that, based on one former employee's description, AAR's removal of asbestos from pipe fittings and elbows led to the “constant presence of visible dust” in the air, due in part to the lack of ventilation:

[The individual] would use a knife, a hammer, anything to pound the material in dry fashion to remove it from the surface that it was adhering to, creating dust in his breathing zone that was very visible and the same individual described frequently performing these operations in enclosed areas where the door would be locked, no ventilation would be present and where there was the constant presence of visible dust that could be seen in the air. Even under relatively low lighting one would see the mist of drifting asbestos fiber flinting in the air across the light source.

(Id. Tr. 57:16-25.)^[5] Comparing this information to published measurements regarding the air concentrations attending particular abatement activities of the type that AAR's employees engaged in (e.g. “dry rip[ping]” and sweeping and bagging of asbestos debris), Dr. Levin constructed a “range of likely fiber concentrations that would have been present had real measurements been taken during the time that these operations were carried out in this case” and adopted the lowest estimate in the range of 160 asbestos fibers per cubic centimeter. (Id. Tr. 58:1-59:8; Tr. 63:3-8.).^[6]Dr. Levin then estimated that the 100 workers in the “core group” were exposed to that air concentration 25% of the time (despite evidence suggesting a greater percentage), ^[7] resulting in a total average exposure of 40 fibers per cubic centimeter, which he characterized as a “really conservative estimate of their real exposure.” (Oct. 27, 2004 Hrg. Tr. 63:8-23.) Multiplying this figure by the four years worked by these 100 employees, Dr. Levin concluded that the average asbestos exposure for each was 160 fiber-years. (Id. Tr. 63:19-23.)

         To calculate how many of the workers would likely suffer injury at this exposure level, Dr. Levin applied the “OSHA risk assessment model, ” which “was based on the observation of many working populations, and their disease and death experience.” (Id. Tr. 63:23-64:3.) Based on that risk assessment model, Dr. Levin concluded that among the group of 100 core AAR workers, he anticipated 20 cases of asbestos-related cancers and 9 of severe and impairing asbestosis. (Id. Tr. 64:3-7.) He also noted that AAR employees who worked for less than four years (and thus were excluded from the group of 100) were also at a substantial risk of contracting these same diseases, though in smaller No. due to their shorter exposure period. (Id. Tr. 64:8-15.)

         Dr. Levin further testified that he would be “surprised” if none of the 100 workers developed asbestos-related illness after 15 years or more. (Id. Tr. 70:19-71:7 (“I would expect a great majority of workers, if we looked at their X-rays 20 years down the road, we are going to see a clear area of asbestos-related scarring on their films. . . . [I]f we look only at that group of hundred workers who worked without respiratory protection for over four years, I would be very surprised to find a single X-ray that looked normal if we followed them 20 years.”); see also Id. Tr. 66:24- 67:4 (same for workers who worked longer than 4 years with AAR).) In sum, Dr. Levin supported his conclusion that Salvagno's conduct had caused substantial likelihood of death or serious bodily injury as defined in § 2Q1.2(b)(2) with a risk assessment model that estimated that 29 of the 100 longest-exposed AAR workers would contract cancer or asbestosis over a 15- to 20-year time frame, based on an estimated average fiber count for these workers of 160 fiber-years. (See ECF No. 1-1 at 15.)

         On cross-examination, Dr. Levin acknowledged that if his estimate of 160 fiber-years was incorrect, it would affect the No. of individuals he anticipated would suffer serious illness. (ECF No. 1118, November 3, 2004 Hearing Tr. 62:7-13 (the “Nov. 3, 2004 Hrg.”), 02-cr-00051-LEK No. 394 (N.D.N.Y.).) Nonetheless, Dr. Levin stated that while there was some uncertainty in the precise No. of individuals that would be affected, he was “entirely comfortable” in saying that serious disease would result from the exposure levels described to him:

Q Okay. Now, you would agree, wouldn't you, that if the 160 No. that you started with is wrong, your analysis would have a problem, right?

A If the 160 fiber years turned out not to be the dose, whatever the dose ultimately turned out to be, either greater or lesser, would influence the No. of people that anticipate would suffer serious illness.

Q And what you did to come out with 160 was you took -- you made an estimate based on some studies, correct?

A Measurements taken during this operation in a No. of settings, yes.

[. . . ]

Q And would you agree that making that kind of exposure assessment based on the information you had is bad science?

A No, I wouldn't call it bad science. It's the best we can do in the absence of actual measurements. And as I indicated, I would much rather have data that were obtained during the actual processes of removal for this group of 4 workers, but those data were not available.

Q Well, is there a point that as a doctor you would just say that you simply don't have enough data to predict illness?

A Absolutely not. You know, given the circumstances I have had described to me in this case with the levels of exposure that have been described, I feel entirely comfortable in saying the exposure levels were sufficient to produce human disease 20 and 25 years down the road, and while I can't precisely quantify it, I have no doubt that many workers will suffer scarring lung disease and unfortunately a No. will also develop cancers. My estimate was based on OSHA's risk assessment with my extrapolation from work process measurements done elsewhere and taking a conservative look at that, my understanding is that the level that I described here may well be low given the amount of dry brooming and sweeping that was a continual activity during the course of the larger project, not just at the end of the day, so resuspension of this material ongoing during the day apparently characterized lots of these jobs, and I would give somewhat higher estimate than I offered had I been aware of how often the dry sweeping and cleaning was going on during the day of this project.

(Nov. 3, 2004 Hrg. Tr. 62:7-64:1.) In other words, Dr. Levin believed that even if his 160-fiber year count was wrong, “given the circumstances I have had described to me in this case with the levels of exposure that have been described, ” some amount of asbestos-related disease would occur among the workers over a 20- to 25-year timeframe.

         As Salvagno recites in his petition, he called two experts at sentencing: Robert Sheriff, a certified industrial hygienist, and Dr. Peter Barrett, a diagnostic radiologist. (ECF No. 1-1 at 18, 20.) Mr. Sheriff testified that the actual fiber-year count for the “core group” would be less than 1.6 fiber-years, which (even assuming that they did not wear respirators at all over four years) would result in “less than one” of those individuals developing asbestos-related disease. (ECF No. 1-1 at 19; ECF No. 1-4 at 11, 13.) Mr. Sherriff noted that this level of asbestos exposure was permitted by U.S. Department of Labor regulations. (ECF No. 1-1 at 20; ECF No. 1-4 at 15-17.) In Dr. Barrett's testimony, he criticized Dr. Levin's reliance on what he described as inapplicable literature and concluded, based on comparable studies, that the fiber-year count for Salvagno's workers was actually closer to 1 or 1.5 fibers in a given year. (ECF No. 1-1 at 21-22; ECF No. 1-5 at 12-13, 14-15.) In addition, Salvagno presented the written testimony of Dr. William Rogers, a physician in occupational medicine, who examined Salvagno's workers annually between 1990 and 1999, including by taking chest X-rays. (ECF No. 1-1 at 23.) According to Salvagno, Dr. Rogers concluded that there was no difference between Salvagno's workers and other asbestos workers he had examined and that his examination findings were “not consistent with individuals working in heavy concentrations of dust without the use of any respirators.” (Id.)^[8]

         The record materials available to me do not disclose whether the sentencing judge made a specific determination on the record as to whether U.S.S.G. § 2Q1.2(b)(2) applied. Nonetheless, the sentencing judge adopted the enhancements set forth in the PSR, which according to Salvagno included the § 2Q1.2(b)(2) enhancement^[9] and which the sentencing judge concluded “were proven at trial and during the comprehensive sentencing hearing, ” resulting in a total offense level of 40. (Dec. 23, 2004 Hrg. Tr. 156:4-13.) On December 23, 2004, the judge sentenced Salvagno to 20 years on the racketeering count and 5 years on the remaining counts, to run concurrent to each other but consecutive to the 20 years for the racketeering count, for a total 300 of months imprisonment. (Id. Tr. 156:13-22.)

         III. Post-Sentencing Proceedings

         On August 30, 2006, upon remand in light of United States v. Booker,543 U.S. 220 (2005) and United States v. Crosby,397 F.3d 103 (2d Cir. 2005), the district court resentenced Salvagno to the same custodial sentence. (ECF No. 7-1 at 2-3.) Salvagno filed an appeal in which he challenged, among other alleged errors, the district court's conclusion that U.S.S.G. § 2Q1.2(b)(2) applied. See Appellant's Br., United States v. Salvagno, 2008 WL 6153930, at *117-27 (2d. Cir. January 29, 2008) (sufficiency of the evidence challenge to § 2Q1.2(b)(2) enhancement and observing that “[i]f it turns out that Levin was wrong, then there may very well be no AAR workers who have developed asbestos-related disease; Alex Salvagno, however will still be in prison.”). The Second Circuit affirmed his conviction. (ECF No. 1 at 2.) Although the Court of Appeals' summary order did not specifically address his ...