United States of America v. Dylan C. Starnes

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3341
UNITED STATES OF AMERICA
v.
DYLAN C. STARNES,
Appellant
No. 08-1691
UNITED STATES OF AMERICA
v.
CLEVE-ALLAN GEORGE,
Appellant
On Appeal from the District Court
of the Virgin Islands

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2
Division of St. Thomas
(D.C. Nos. 03-cr-00020-2 and 03-cr-00020-1)
District Judge: Honorable Raymond L. Finch
Argued December 11, 2008
Before: FISHER, JORDAN
and STAPLETON, Circuit Judges.
(Filed: September 24, 2009 )
Todd G. Scher (Argued)
5600 Collins Avenue, Suite 15-B
Miami, FL 33170
Marc D. Seitles
169 East Flagler Street
Alfred I. duPont Building, Suite 1200
Miami, FL 33131
Attorneys for Appellant,
Dylan C. Starnes
Darren John-Baptiste (Argued)
The Practice, PLLC
5062 Fortets Gade, Suites 11 & 12
Charlotte Amalie
St. Thomas, VI 00802
Attorney for Appellant,
Cleve-Allan George

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Anna T. Katselas (Argued)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L’Enfant Plaza Station
Washington, DC 20026
Attorney for Appellee,
United States of America
OPINION OF THE COURT
FISHER, Circuit Judge.
Cleve-Allan George and Dylan C. Starnes appeal from
judgments of conviction and sentence entered against them
following a jury trial in the United States District Court for the
District of the Virgin Islands. Although these appeals have not
been formally consolidated, we resolve them together because
they arise from a common set of facts. For the reasons set forth
below, we will affirm the judgments.
I. Background
In 1999, the Virgin Islands Housing Authority (VIHA)
received a HOPE VI grant from the United States Department
of Housing and Urban Development (HUD) for the demolition
of the Donoe Housing Community, a low-income public
residential community located on St. Thomas, U.S. Virgin

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The Environmental Protection Agency (EPA)1
differentiates between asbestos-containing materials that are
“friable” – meaning materials that “contain[] more than 1
percent asbestos . . . that, when dry, can be crumbled,
pulverized, or reduced to powder by hand pressure” – and
materials that are “nonfriable” – those that “contain[] more than
1 percent asbestos . . . that, when dry, cannot be crumbled,
pulverized, or reduced to powder by hand pressure.” 40 C.F.R.
§ 61.141. Friable asbestos-containing material and certain
categories of nonfriable asbestos-containing material that has
become friable or is likely to become friable are considered
“[r]egulated asbestos-containing material.” Id.
4
Islands. The following year, VIHA issued an invitation for bids
on the Donoe demolition project. The invitation for bids
included the project’s specifications – which provided, among
other things, that work on the project was to be “performed in
strict accordance with all federal, state and local regulations and
ordinances” – and a report detailing a 1996 asbestos survey that
Induchem Environmental Services had conducted at Donoe,
which revealed the presence of friable asbestos-containing
materials in the ceilings of eighty-six of the community’s eighty-
eight structures, as well as nonfriable asbestos-containing
materials throughout the structures.1
VIHA eventually awarded the demolition contract to
Alvin Williams Trucking & Equipment Rental, Inc. That
company, with the consent of VIHA, subcontracted the asbestos-
abatement portion of the project to the Virgin Islands Asbestos
Removal Company (VIARCO), a company owned by George.

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VIARCO’s bid for the subcontract specified that George would
be the general manager of the asbestos-abatement project and
listed his credentials, which included prior experience managing
similar asbestos-abatement projects, the completion of
comprehensive training courses for “asbestos workers” and
“asbestos contractors/supervisors,” familiarity with all federal
regulations relating to asbestos, and all-around “competen[ce]
in all aspects of . . . asbestos abatement.” VIARCO’s bid also
referenced the applicable regulations promulgated by the EPA
and the Occupational Safety and Health Administration (OSHA)
and indicated that VIARCO had “joined forces” with
Environmental Contracting Company (ECC), a company run by
Starnes.
Starnes had extensive experience in many aspects of
asbestos abatement, having even taught courses on the subject.
As he personally informed VIHA after George brought him on
board, among his various areas of responsibility on the Donoe
project was oversight of air-quality monitoring. To this end,
Starnes recruited Thrideo Sukhram, a former student, to collect
air samples at the Donoe site. Starnes also contacted Carlos
Carcamo, who had previously worked for Starnes as a course
instructor, and offered him the job of project manager. Carcamo
promptly accepted the position and, at Starnes’s request, set
about recruiting a work crew for the Donoe project. When some
of those workers arrived in St. Thomas, Starnes met them at the
airport and took them to the Donoe site, where he explained to
them the work they would be doing on the project and promised
them each a $2,000 bonus if the project was completed on time.

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6
Work on the Donoe project was slated to begin on
January 2, 2001, but did not get under way in earnest until
January 10, 2001. George and Starnes directed Carcamo to
instruct the work crew to use a “pressure washer” to dislodge
asbestos-containing materials from the site’s structures. This
removal method, although time-efficient, generated a substantial
amount of debris-filled wastewater, which the crew pumped into
toilets and bathtubs. But those fixtures rapidly clogged, causing
wastewater to pour out and accumulate on the buildings’
balconies. In response, George constructed a drainage system
out of PVC pipes, which permitted the wastewater to flow off
the balconies and down to the ground. When the wastewater
evaporated, it left a dusty white residue clinging to the facades
of the buildings and the surrounding sidewalks and grass.
On January 24, 2001, VIHA sent a noncompliance notice
to George’s attention. Under OSHA rules regulating
occupational exposure to asbestos in the construction industry,
29 C.F.R. § 1926.1101, VIARCO was obligated to monitor
airborne concentrations of asbestos by collecting and analyzing
air samples from the Donoe site, and the notice sent by VIHA
indicated that the company had failed to file daily reports
detailing the results of its air monitoring, as required by the
project specifications. The following day, twelve air-monitoring
reports – each corresponding with a work day between January
9, 2001 and January 25, 2001, and each signed by Starnes,
attesting that he had analyzed air samples collected at the Donoe
site – were delivered to VIHA.
On January 31, 2001, an air-quality specialist with the
Virgin Islands Department of Planning and Natural Resources

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(DPNR) visited the Donoe site and observed the deplorable
conditions there, including liquid seeping from a trailer used to
store removed asbestos-containing material and unprotected
workers covered in white powder. He soon returned to the site
accompanied by an OSHA inspector and saw workers using
shovels to remove chunks of dry asbestos-containing ceiling
material from apartments, causing visible emissions to emanate
from the material. On February 9, 2001, after the assistant
director of DPNR also inspected the Donoe site and saw that
conditions were essentially unchanged, DPNR issued a stop-
work order, shutting down the project. DPNR then referred the
matter to the EPA for further investigation.
On March 27, 2002, Agent Justus Derx of the EPA’s
Criminal Investigation Division executed a search warrant at
Starnes’s office in Chamblee, Georgia, during which he seized
copies of the twelve air-monitoring reports that were transmitted
to VIHA. The layered fax-header information on the copies
indicated that George had faxed blank air-monitoring report
forms to Starnes in Florida on January 25, 2001 and that Starnes
faxed the completed forms back to George approximately
seventeen minutes later.
On February 6, 2003, a grand jury in the District of the
Virgin Islands returned a sixteen-count indictment against
George and Starnes. Counts One through Four of the indictment
charged the defendants with knowingly violating EPA work-
practice standards for the handling and disposal of regulated
asbestos-containing material, 40 C.F.R. §§ 61.145, 61.150,
subjecting them to criminal liability under the Clean Air Act, 42
U.S.C. §§ 7412 and 7413(c)(1). Counts Five through Sixteen

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Each count of the indictment also charged both2
defendants with aiding and abetting in the commission of the
underlying substantive offense. See 18 U.S.C. § 2.
As we understand it, the pump pulls air through the filter3
cassette, collecting an air sample, and the cassette is then
removed and sent to a lab for analysis within twenty-four hours
of collection.
8
charged them with knowingly and willfully making materially
false, fictitious or fraudulent statements and representations in
a matter within the jurisdiction of the executive branch of the
United States by transmitting twelve falsified air-monitoring
reports to VIHA, in violation of 18 U.S.C. § 1001(a).2
Both defendants pleaded not guilty to all charges, and
were tried together to a jury in June 2005. At trial, the
government introduced evidence that Starnes flew from St.
Thomas to Atlanta, Georgia on January 9, 2001, and from
Atlanta to Tampa, Florida on January 24, 2001. Sukhram
testified that before Starnes left St. Thomas he gave Sukhram a
few air-monitoring devices, each of which was essentially an air
pump attached to a filter cassette. Sukhram testified that3
Starnes taught him how to activate the air-monitoring devices
and how to insert and remove the cassettes. Armed with this
basic understanding of the devices, Sukhram continued, he set
up the devices, removed the cassettes on a daily basis, labeled
and dated them, and then passed them on to George, who was
responsible for sending them to Starnes for analysis. When
Sukhram soon ran out of cassettes, George alerted Starnes, who

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9
then told Sukhram to reuse the old cassettes (even though, as the
evidence showed, each cassette could only be used once).
Sukhram testified that he never saw any indication that the
cassettes were analyzed but that Starnes nonetheless instructed
him to complete a number of air-monitoring reports as if the
observed results fell within legal limits.
The jury also heard testimony from David Dugan, a
regional technical coordinator with the EPA’s National
Enforcement Investigation Center. Dugan testified that in
February 2002 he took samples of suspected asbestos-containing
material from ceilings in Building 31, a structure at the Donoe
site which had yet to be demolished. The evidence showed that
the samples collected by Dugan contained asbestos
concentrations ranging from 4.1 to 6 percent. Both defendants’
attorneys objected to Dugan’s testimony on relevance grounds,
arguing that it should be stricken because Dugan took the
samples approximately a year after the conduct charged in the
indictment, from a building in which VIARCO did not work.
Starnes’s attorney also objected on the ground that any probative
value the testimony might have was substantially outweighed by
the danger of unfair prejudice. The District Court, after
consideration, ultimately overruled those objections.
At the conclusion of the trial, each defendant moved
under Federal Rule of Criminal Procedure 29 for a judgment of
acquittal on all counts. The District Court denied George’s
motion in its entirety and denied Starnes’s motion as to all
counts except Count Four. Following deliberations, the jury
found George and Starnes guilty on all counts the District Court
permitted it to consider.

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The United States Probation Office prepared a
presentence investigation report (PSR) for each defendant. For
both defendants, the Probation Office began with a base offense
level of eight under U.S.S.G. § 2Q1.2 and recommended a six-
level enhancement under U.S.S.G. § 2Q1.2(b)(1)(A), a four-
level enhancement under U.S.S.G. § 3B1.1(a), and a two-level
enhancement under U.S.S.G. § 3B1.3. In addition, the
Probation Office recommended for Starnes a four-level
enhancement under U.S.S.G. § 2Q1.2(b)(4). For George, this
resulted in a total offense level of twenty, which, combined with
George’s criminal history category of I, yielded an advisory
Guidelines range of thirty-three to forty-one months of
imprisonment. For Starnes, the resulting total offense level of
twenty-four, combined with his criminal history category of I,
yielded an advisory Guidelines range of fifty-one to sixty-three
months of imprisonment.
Starnes’s sentencing hearing was held first, on July 27,
2007. The District Court largely adopted the PSR prepared for
Starnes, but rejected the Probation Office’s recommendation
that it enhance his base offense level by four levels under
U.S.S.G. § 2Q1.2(b)(4), resulting in a total offense level of
twenty and an advisory Guidelines range of thirty-three to forty-
one months. The District Court sentenced Starnes to thirty-three
months of imprisonment, three years of supervised release, and
a special assessment of $1,600.
George’s sentencing hearing was held on February 26,
2008. The District Court found the PSR prepared for George to
be factually and legally accurate, and its calculations to be
appropriate and correct. While noting the government’s position

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George does not challenge the sufficiency of the4
evidence underpinning his conviction on the Clean Air Act
counts.
11
that George’s acts were more egregious than those of Starnes,
the District Court nonetheless imposed on George the same
sentence that it had imposed on Starnes.
These appeals followed. The District Court had subject
matter jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. §§ 1291, 1294(3)
and 18 U.S.C. § 3742(a).
II. Discussion
George and Starnes raise several challenges to their
convictions. Specifically, Starnes contends that the District
Court should have granted his motion for judgment of acquittal
in full because the evidence presented at trial was insufficient to
support his convictions on both the Clean Air Act counts and the
false-statement counts. George likewise contends that the
District Court erred in denying his motion for judgment of
acquittal on the false-statement counts. Both defendants4
challenge the District Court’s decision to admit the testimony of
David Dugan. Each defendant also attacks the District Court’s
determination of his sentence.

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A. Challenges to the Sufficiency of the Evidence
We turn first to the defendants’ challenges to the
sufficiency of the evidence supporting their respective
convictions.
We exercise plenary review over a district court’s grant
or denial of a motion for judgment of acquittal based on the
sufficiency of the evidence, applying the same standard as the
district court. United States v. Brodie, 403 F.3d 123, 133 (3d
Cir. 2005). In reviewing a sufficiency-of-the-evidence claim,
therefore, we must “examine the totality of the evidence, both
direct and circumstantial,” and “interpret the evidence in the
light most favorable to the government as the verdict winner.”
United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir. 2008)
(citations and internal quotation marks omitted). We must
uphold the jury’s verdict if there is substantial evidence from
which a rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt. Id. at 60 (quoting United
States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)); United States
v. Greenidge, 495 F.3d 85, 100 (3d Cir. 2007). “The burden on
a defendant who raises a challenge to the sufficiency of the
evidence is extremely high.” United States v. Iglesias, 535 F.3d
150, 155 (3d Cir. 2008) (internal quotation marks omitted);
accord United States v. Hodge, 321 F.3d 429, 439 (3d Cir.
2003) (“Our review of the sufficiency of the evidence after a
guilty verdict is ‘highly deferential.’” (quoting United States v.
Hart, 273 F.3d 363, 371 (3d Cir. 2001))).

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1. Counts One Through Three – Convictions for
Violations of the Clean Air Act
Starnes argues that the District Court erred in denying his
motion for judgment of acquittal on Counts One through Three
because the evidence presented at trial was insufficient to permit
the jury to conclude beyond a reasonable doubt that he was an
“owner or operator” of the Donoe asbestos-abatement project
within the meaning of the Clean Air Act. We disagree.
Under the Clean Air Act, an “owner or operator of a
demolition or renovation activity” is subject to criminal liability
for knowingly violating the EPA work-practice standards for the
handling and disposal of regulated asbestos-containing material.
See 42 U.S.C. § 7413(c)(1); 40 C.F.R. §§ 61.145, 61.150. In
this regard, the EPA defines the term “owner or operator of a
demolition or renovation activity” as “any person who owns,
leases, operates, controls, or supervises the facility being
demolished or renovated or . . . the demolition or renovation
operation, or both.” 40 C.F.R. § 61.141. We have previously
explained, albeit in the related context of a civil enforcement
action under 42 U.S.C. § 7413(b), that “a non-owner can still be
liable as an ‘operator’” if he or she has “significant or
substantial or real control and supervision of a project.” United
States v. Anthony Dell’Aquilla, Enters. & Subsidiaries, 150 F.3d
329, 333 (3d Cir. 1998) (characterizing as “axiomatic” the
availability of operator liability under the Clean Air Act). We
see no reason the same should not hold true in the present
context of a criminal prosecution under 42 U.S.C. § 7413(c)(1).
Cf. United States v. DiPentino, 242 F.3d 1090, 1096 (9th Cir.
2001) (upholding the conviction of a non-owner defendant

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Because we conclude that there was sufficient evidence5
to sustain Starnes’s convictions on Counts One through Three
14
under 42 U.S.C. § 7413(c)(1) where the evidence established
that he “had significant or substantial or real control and
supervision” over an asbestos-abatement project and that he
knowingly violated 40 C.F.R. § 61.145).
Our review of the record in this case reveals substantial
evidence by which a rational juror could conclude that Starnes
exercised significant control and supervision over the Donoe
asbestos-abatement project. For instance, the evidence showed
that Starnes: (1) recruited Sukhram to collect air samples at the
Donoe site, gave him rudimentary direction on the use of the air-
monitoring devices, and instructed him to falsify some air-
monitoring reports; (2) recruited Carcamo to be the manager of
the project, told him to assemble a crew to work on the project,
and directed him to instruct the crew to use a “pressure washer”
to strip asbestos-containing materials from the Donoe site’s
structures; and (3) met several workers at the airport and took
them to the Donoe site, where he explained to them the work
they would be doing on the project and promised them each a
bonus if the project was completed on time.
This evidence, viewed in the light most favorable to the
government and in the context of the totality of the evidence in
the record, supports a finding that Starnes was an operator of the
Donoe project within the meaning of the Clean Air Act. We
will therefore affirm the District Court’s denial of his motion for
judgment of acquittal on Counts One through Three.5

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as a principal, we need not address his contention that the
evidence was insufficient to sustain his convictions on the same
counts as an aider and abettor. See Griffin v. United States, 502
U.S. 46, 56-57 (1991); cf. United States v. Frorup, 963 F.2d 41,
44 (3d Cir. 1992) (“Inasmuch as the evidence was sufficient for
us to uphold the verdict based on the theory of aiding and
abetting, we need not [evaluate the evidence under the alternate
theory presented].”); cf. also United States v. Hodge, 211 F.3d
74, 77 (3d Cir. 2000) (explaining that 18 U.S.C. § 2 “take[s] the
view that an aider and abettor should be treated like any other
principal”). In any event, the record contains sufficient evidence
to sustain Starnes’s convictions on these counts under an aider
and abettor theory as well.
18 U.S.C. § 1001(a) provides, in pertinent part:6
“Except as otherwise provided in this section,
whoever, in any matter within the jurisdiction of
the executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully –
15
2. Counts Five Through Sixteen – Convictions for
Violations of 18 U.S.C. § 1001(a)
George and Starnes contend that the District Court erred
in denying their motions for judgment of acquittal on Counts
Five through Sixteen, which charged them with violating 18
U.S.C. § 1001(a) by knowingly and willfully transmitting twelve
falsified air-monitoring reports to VIHA. Specifically, both6

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. . .
(2) makes any materially false,
fictitious, or fraudulent statement or
representation; or
(3) makes or uses any false writing
or document knowing the same to
contain any materially false,
fictitious, or fraudulent statement or
entry;
shall be fined under this title, imprisoned not more than
5 years or . . . both.”
16
defendants assert that the evidence supporting their respective
convictions on these counts was insufficient to establish falsity
or federal-government jurisdiction, necessary elements of a
§ 1001(a) violation. George also claims that there was
insufficient evidence to prove that he had the requisite mens rea.
Again, we disagree.
a. Falsity
Both defendants argue that no rational juror could have
found beyond a reasonable doubt that the air-monitoring reports
were actually false because the government failed to adduce any
evidence that airborne asbestos fibers were found at the Donoe
site on the relevant days in concentrations exceeding the
permissible exposure limits set by OSHA. See 29 C.F.R.

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17
§ 1926.1101(c). This argument is without merit. For one thing,
it rests on the faulty premise that the defendants were charged
with, and convicted of, falsely representing the amounts of
airborne asbestos found in air samples taken at the site. To the
contrary, the crux of the government’s case on the false-
statement counts was that the reports falsely represented that
Starnes had analyzed the air samples in the first place – to the
extent any were even collected – when in fact he had not, a
proposition that Starnes does not contest and that George
concedes in his appellate brief.
Even if we were to recharacterize this argument to focus
on the proper theory underpinning the government’s case, it
would still fail. The record reflects that there was ample
evidence to establish that Starnes did not analyze the samples,
despite the presence of his signature on each of the twelve
reports attesting that he had done so. For example, the
government introduced evidence demonstrating that Starnes
could not have analyzed the samples without having physical
access to the filter cassettes from the air-monitoring devices but
that he was in the continental United States from January 9,
2001 through January 26, 2001 – that is, during the period in
which he ostensibly analyzed the air samples described in the
reports – and that no packages were sent to him after January 11,
2001. We have no difficulty concluding that there was
sufficient evidence of falsity.
b. Federal-Government Jurisdiction
Both defendants also argue that the evidence at trial was
insufficient to establish that the air-monitoring reports pertained

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18
to a matter “within the jurisdiction” of the executive branch of
the federal government because the reports were sent to VIHA,
not to a federal agency. This argument is also without merit.
It is well settled that a false statement or representation
may pertain to a matter “within the jurisdiction” of the executive
branch for purposes of § 1001(a) even if it was not made to an
agency (or other component) of the executive branch. See
United States v. Waters, 457 F.2d 805, 805-06 (3d Cir. 1972);
see also, e.g., United States v. Shafer, 199 F.3d 826, 828-29 (6th
Cir. 1999); United States v. Petullo, 709 F.2d 1178, 1180 (7th
Cir. 1983); United States v. Candella, 487 F.2d 1223, 1227 (2d
Cir. 1973); Ebeling v. United States, 248 F.2d 429, 434 (8th Cir.
1957). Indeed, it is enough that the statement or representation
pertain to a matter in which the executive branch has “the power
to exercise authority.” United States v. Rodgers, 466 U.S. 475,
479 (1984); see United States v. Atalig, 502 F.3d 1063, 1067
(9th Cir. 2007).
The evidence presented at trial – including the
uncontroverted testimony of Monique Farrell, a VIHA official
– established that HUD, an agency within the executive branch,
provided the funding for the Donoe project to VIHA and had the
power to exercise authority over the project, had it chosen to do
so. “[I]t is the existence of federal supervisory authority that is
important, not necessarily its exercise.” Petullo, 709 F.2d at
1180; see United States v. Canel, 708 F.2d 894, 897-98 (3d Cir.
1983). We are satisfied that the record contains substantial
evidence from which a rational juror could find that the false
representations in the air-monitoring reports submitted to VIHA
were made within the jurisdiction of HUD.

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c. “Knowingly and Willfully”
George alone challenges the sufficiency of the evidence
to establish that he “possessed the requisite mens rea, specific
intent . . . to violate § 1001(a).” Before we evaluate this factual
challenge we must consider the soundness of the legal
proposition on which it is premised, namely that the statutory
terms “knowingly and willfully” required the government to
prove that George acted with “specific intent.”
To support that proposition, George relies exclusively on
a dictum in United States v. Barr, 963 F.2d 641, 645 (3d Cir.
1992), that “[a] conviction under § 1001 requires . . . [proof of]
specific intent.” But Barr does nothing to give context to the
phrase “specific intent” and George gives no indication of what,
exactly, he believes that phrase means in this context. The
government, for its part, agrees that it must prove “specific
intent” and likewise cites to Barr, although it takes the
additional step of attempting to put some flesh on the bones left
bare by that case (if not color on the flesh) by pointing to United
States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994), where we
addressed, in passing, the “requisite intent” that the government
must prove under § 1001.
“Specific intent” is usually distinguished from “general
intent.” United States v. Bailey, 444 U.S. 394, 403 (1980). As
most commonly understood, a general-intent crime is one that
requires “proof of knowledge with respect to the actus reus of
the crime,” Carter v. United States, 530 U.S. 255, 269 (2000),
while a specific-intent crime, in contrast, is “one whose
definition requires a special mens rea above and beyond that

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20
which is required for the actus reus of the crime,” United States
v. Dollar Bank Money Mkt. Account No. 1591768456, 980 F.2d
233, 237 (3d Cir. 1992). Both concepts are somewhat elusive,
with “specific intent” being particularly susceptible to a wide
variety of meanings. See generally 1 W. LaFave & A. Scott,
Substantive Criminal Law § 5.2(e) (2d ed. 2003 & Supp. 2008)
(discussing various meanings attributed to the phrases “general
intent” and “specific intent”). While the “traditional dichotomy
of general versus specific intent” is a venerable one, in many
situations it can be more perplexing than helpful. Dixon v.
United States, 548 U.S. 1, 7 (2006) (citing Bailey, 444 U.S. at
403-04); cf. Liparota v. United States, 471 U.S. 419, 423 n.5
(1985) (recognizing that “the mental element in criminal law
encompasses more than the two possibilities of ‘specific’ and
‘general’ intent”); United States v. Hernandez-Hernandez, 519
F.3d 1236, 1239 (10th Cir. 2008) (decrying “opaque common
law labels [like ‘general’ and ‘specific’ intent] that sometimes
blur the line between distinct mental elements”). This is doubly
true where, as here, the criminal statute in question does not use
either phrase.
Congress defined the crime at issue here, § 1001(a), to
punish defendants who act “knowingly and willfully.” It is this
mental state, not an amorphous “specific intent,” that the
government was required to prove beyond a reasonable doubt.
See Dixon, 548 U.S. at 7 (observing that “‘[t]he definition of the
elements of a criminal offense is entrusted to the legislature,
particularly in the case of federal crimes, which are solely
creatures of statute’” (quoting Liparota, 471 U.S. at 424));
United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812). While
use of the phrase “specific intent” as a shorthand descriptor for

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21
the statute’s express “knowingly and willfully” requirement is
not necessarily inappropriate, it tends to obscure the meaning of
the statutory terms. Cf. Fla. State Conference of NAACP v.
Browning, 522 F.3d 1153, 1167 (11th Cir. 2008) (“Categories
and labels are helpful, but only to a point, and they too often
tend to obfuscate instead of illuminate.”). “Few areas of
criminal law pose more difficulty than the proper definition of
the mens rea required for any particular crime.” Bailey, 444
U.S. at 403. We see little reason to needlessly complicate our
interpretation of § 1001(a) by maintaining an insubstantial extra
layer of terminology atop the explicit statutory language.
The question, then, is, What does “knowingly and
willfully,” as used in § 1001(a), mean? The statute does not
define either term but, of the two terms, “knowingly” is the less
abstruse. In general, “knowingly” requires the government to
prove that a criminal defendant had “knowledge of the facts that
constitute the offense.” Bryan v. United States, 524 U.S. 184,
193 (1998); see United States v. Hayden, 64 F.3d 126, 130 (3d
Cir. 1995).
“Willfully,” on the other hand, is a “notoriously slippery
term,” a “chameleon word” that “takes color from the text in
which it appears.” United States v. Ladish Malting Co., 135
F.3d 484, 487-88 (7th Cir. 1998); see Bryan, 524 U.S. at 191 &
n.12; cf. Bryan A. Garner, A Dictionary of Modern Legal Usage
145 (2d ed. 1995) (“‘In any closely reasoned problem, whether
legal or nonlegal, chameleon-hued words are a peril both to
clear thought and to lucid expression.’” (quoting Wesley N.
Hohfeld, Fundamental Legal Conceptions 35 (1919) (reprint

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As we have previously observed, the interpretive7
difficulties posed by the word “willfully” are well-illustrated by
a notable exchange that took place between Judge Learned Hand
and Herbert Wechsler, the Reporter for the Model Penal Code,
during which Judge Hand made plain his feelings on the utility
of the term: “‘[Wilfully is] a very dreadful word. . . . It’s an
awful word! It is one of the most troublesome words in a statute
that I know. If I were to have the index purged, ‘wilful’ would
lead all the rest in spite of its being at the end of the alphabet.’”
United States v. Hayden, 64 F.3d 126, 129 n.5 (3d Cir. 1995)
(quoting ALI Proceedings 160 (1955), quoted in Model Penal
Code and Commentaries § 2.02, at 249 n.47 (Official Draft and
Revised Comments 1985)); cf. Rex Wine Corp. v. Dunigan, 224
F.2d 93, 95 (2d Cir. 1955) (Hand, J.) (noting of the word
“willful” that “[i]t must be owned that about that adjective there
always gathers an unhappy cloud of uncertainty”). We could not
agree more.
22
1966))). The cases delineate at least three levels of7
interpretation of the term. See, e.g., Bryan, 524 U.S. at 191-95;
United States v. Kay, 513 F.3d 432, 447-48 (5th Cir. 2007). In
some contexts, “willfully” may denote “‘an act which is
intentional, or knowing, or voluntary, as distinguished from
accidental.’” Bryan, 524 U.S. at 191 n.12 (quoting United
States v. Murdock, 290 U.S. 389, 394 (1933)). But when
“willfully” is used in a criminal statute, and particularly where
the term is used in conjunction with “knowingly,” as it is in
§ 1001(a), it usually requires the government to prove that the
defendant acted “not merely ‘voluntarily,’ but with a ‘bad
purpose,’” that is, with knowledge that his conduct was, in some

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23
general sense, “unlawful.” Id. at 192-93 & n.13 (quoting Ratzlaf
v. United States, 510 U.S. 135, 137 (1994) and Felton v. United
States, 96 U.S. 699, 702 (1877)); see Kay, 513 F.3d at 447-48;
Hayden, 64 F.3d at 130; see also Third Circuit Model Criminal
Jury Instructions § 5.05 (providing that “willfully” requires the
government to prove beyond a reasonable doubt that a defendant
“knew that [his or her] conduct was unlawful and intended to do
something that the law forbids”); cf. Safeco Ins. Co. of Am. v.
Burr, 551 U.S. 47, 60 (2007) (“[O]n the criminal side of the law,
where the paired modifiers [‘knowingly’ and ‘willfully’] are
often found, see, e.g., 18 U.S.C. § 1001 . . . , ‘willfully’ typically
narrows the otherwise sufficient intent, making the government
prove something extra.”). And in some rare instances involving
highly technical statutes that present the danger of ensnaring
individuals engaged in apparently innocent conduct, such as the
federal criminal tax and antistructuring provisions, “willfully”
has been read to require proof that the defendant actually knew
of the specific law prohibiting the conduct. See Bryan, 524 U.S.
at 194-95 (discussing, among other cases, Ratzlaf, 510 U.S. at
138, 149 (antistructuring statutes) and Cheek v. United States,
498 U.S. 192, 199-201 (1991) (criminal tax statutes)); Kay, 513
F.3d at 448, 450 (explaining that under the “strictest level of
interpretation of criminal willfulness” – that reserved for
“complex” statutes – “a defendant must know the specific law
he is violating in order to act willfully”).
Our decision in Curran, cited by the government, is
instructive. Curran was convicted on charges of causing
election campaign treasurers to submit false contribution reports
to the Federal Election Commission. Because Curran’s conduct
“did not fall directly within the scope of section 1001” – he did

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24
not make the false representations himself, but caused the
campaign treasurers to do so – the government could not
“proceed[] directly” under § 1001 and instead prosecuted Curran
under that section “in tandem with” 18 U.S.C. § 2(b), which
provides that a person who “willfully causes” another to commit
a criminal act is liable as a principal. Curran, 20 F.3d at 567.
Relying in part on the Supreme Court’s decision in Ratzlaf, we
held that the strictest interpretation of criminal willfulness
governed tandem violations of §§ 1001 and 2(b) in the “federal
election law context.” Curran, 20 F.3d at 569.
Because the mens rea required for a tandem § 2(b)
violation encompasses (and goes beyond) that required for a
direct violation of the underlying criminal statute with which
§ 2(b) is used, in reaching our conclusion in Curran we
necessarily touched on the meaning of § 1001’s “knowingly and
willfully” requirement. Importantly for our current purposes, we
explained,
“To establish knowing and willful conduct in the
making of a false statement [under § 1001], the
government must show that a defendant ‘acted
deliberately and with knowledge that the
representation was false.’ . . . [T]he government
must prove not only that the statement was false,
but that the accused knew it to be false.”
Id. at 567 (citations omitted). But that showing, while a
necessary one, may not always be sufficient to satisfy § 1001’s
“knowingly and willfully” requirement; thus, we also stressed in
Curran that “the government is required to show that the

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We note that this interpretation of § 1001(a)’s8
“knowingly and willfully” requirement is consistent with cases
holding that the government need not prove that a defendant
knew that the false statement or representation was within the
jurisdiction of the federal government. See United States v.
Yermian, 468 U.S. 63, 75 (1984); United States v. Leo, 941 F.2d
181, 190 (3d Cir. 1991); see also United States v. Curran, 20
F.3d 560, 567 (3d Cir. 1994) (“[A § 1001] defendant need not
be aware of the jurisdictional fact that the false statement or
concealment is within the statutory authority of a specific
government agency.”); cf. United States v. Gumbs, 283 F.3d
25
misrepresentation was not made innocently or inadvertently.”
Id. This reading of the statutory text comports with the
generally understood meaning of “knowingly” and with the
intermediate level of interpretation of “willfully” articulated by
the Supreme Court in Bryan – that is, knowledge of the general
unlawfulness of the conduct at issue – which we believe
adequately demarcates the boundary between innocent and
unlawful conduct in this context. See Bryan, 524 U.S. at 195 &
n.23 (explaining that “requiring only knowledge that the conduct
is unlawful,” as opposed to specific “knowledge of the law,” is
“fully consistent” with protecting “law-abiding citizens who
might inadvertently violate the law” and “individuals engaged
in apparently innocent activity”); Kay, 513 F.3d at 447-48; cf.
United States v. Whab, 355 F.3d 155, 162 (2d Cir. 2004)
(holding that “it was not ‘plain error’ for the District Court to
fail to instruct the jury that ‘willfully’ under § 1001 required
something more than that the defendant have been aware of the
generally unlawful nature of his conduct”). To the extent that8

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128, 131 (3d Cir. 2002) (“[T]he Supreme Court has held that a
defendant generally need not be aware of the existence of a
jurisdictional element to be guilty of a federal offense.” (citing
United States v. Feola, 420 U.S. 671, 672-73 (1975) and
Yermian, 468 U.S. at 75)).
26
George’s brief can be read to argue that the government was
required to prove that he actually knew of § 1001(a), we reject
that argument.
The record in this case contains sufficient evidence to
convince a rational juror beyond a reasonable doubt that George
acted deliberately and with knowledge that the representations
contained in the air-monitoring reports – that Starnes had
analyzed air samples taken at the Donoe site on the relevant days
– were false and that he was aware, at least in a general sense,
that his conduct was unlawful. The noncompliance notice sent
by VIHA to George on January 24, 2001 – the notice that
precipitated the events culminating in the filing of the falsified
reports – restated in unequivocal terms that a period of no longer
than twenty-four hours was permitted between the “collection of
air samples” from the site and the transmission of accurate
results to VIHA. In addition, the government adduced evidence
showing that George was an experienced contractor who had
worked as a “General Manager” on several asbestos-abatement
projects in the Virgin Islands prior to bidding on the subcontract
for asbestos abatement on the Donoe project; that in securing
that subcontract he had represented that he was “competent in
all aspects of . . . asbestos abatement” and “all the contents of
the Code [of] Federal Regulations as they relate to . . .

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27
[a]sbestos, and the removal procedure and practices for reducing
the hazard thereof”; and that, over the years, he had completed
a substantial number of comprehensive training courses for
“asbestos workers” and “asbestos contractors/supervisors” that
covered air-monitoring requirements. And trial testimony
indicated that George was responsible for collecting the filter
cassettes from Sukhram during the period when Starnes was in
the continental United States and for sending the cassettes to
Starnes for analysis, but that George did not send any packages
to Starnes after January 11, 2001.
This evidence, viewed in the light most favorable to the
government and in the context of the totality of the evidence in
the record, dispels any doubt that George was sufficiently
informed of the intricacies of air-monitoring procedures to
recognize that Starnes could not analyze any air samples from
the Donoe site without physical access to the filter cassettes and
that George knew that Starnes did not have such access during
the relevant period of time, and thus would permit a rational
juror to reasonably infer that the representations to the contrary
contained in the air-monitoring reports were necessarily false.
This evidence also supports a reasonable inference that George
was aware that transmitting falsified air-monitoring reports to
VIHA was unlawful. Accordingly, we reject George’s
contention that the evidence was insufficient to satisfy
§ 1001(a)’s mens rea requirement. See Iglesias, 535 F.3d at 156
(“[T]he government may defeat a sufficiency-of-the-evidence
challenge on circumstantial evidence alone.”); cf. Ratzlaf, 510
U.S. at 149 n.19 (“A jury may, of course, find the requisite
knowledge on defendant’s part by drawing reasonable
inferences from the evidence of defendant’s conduct.”); Am.

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Insofar as George’s brief could be read as contending9
that the evidence of his conduct was insufficient to satisfy
§ 1001(a)’s actus reus element because “the air-monitoring
results were delivered by Starnes,” we also reject that
contention. The fax headers on the copies of the falsified
reports seized by Agent Derx show that George faxed blank air-
monitoring report forms to Starnes in Florida on January 25,
2001 – the day after VIHA sent the noncompliance notice to
George’s attention – and that Starnes faxed the completed
reports back to George approximately seventeen minutes later.
Monique Farrell testified that the falsified air-monitoring reports
were delivered to VIHA later that same day. A rational juror
could infer from this evidence that George transmitted, or
arranged for the transmission of, the falsified records to VIHA.
And while Farrell also testified that she could not recall exactly
who delivered the falsified reports to VIHA, that testimony does
not, as George would have it, establish that he did not do so, and
“[t]he evidence does not need to be inconsistent with every
conclusion save that of guilt if it does establish a case from
which the jury can find the defendant guilty beyond a reasonable
28
Commc’ns Ass’n v. Douds, 339 U.S. 382, 411 (1950) (“[C]ourts
and juries every day pass upon knowledge, belief and intent –
the state of men’s minds – having before them no more than
evidence of their words and conduct, from which, in ordinary
human experience, mental condition may be inferred.”); United
States v. Bank of New Eng., N.A., 821 F.2d 844, 854 (1st Cir.
1987) (“Willfulness can rarely be proven by direct evidence,
since it is a state of mind; it is usually established by drawing
reasonable inferences from the available facts.”).9

-- 28 of 43 --

doubt.” Gov’t of V.I. v. Williams, 739 F.2d 936, 940 (3d Cir.
1984) (internal quotation marks omitted); see Holland v. United
States, 348 U.S. 121, 140 (1954) (“Admittedly, circumstantial
evidence may in some cases point to a wholly incorrect result.
Yet this is equally true of testimonial evidence. In both
instances, a jury is asked to weigh the chances that the evidence
correctly points to guilt against the possibility of inaccuracy or
ambiguous inference. In both, the jury must use its experience
with people and events in weighing the probabilities. If the jury
is convinced beyond a reasonable doubt, we can require no
more.”); United States v. Glantzman, 447 F.2d 199, 201 n.9 (3d
Cir. 1971) (“To warrant a conviction on circumstantial evidence
the facts and circumstances established by such evidence must
be of such a character as to produce a moral certainty beyond a
reasonable doubt, but need not be absolutely incompatible with
innocence.”).
Also, given our conclusion that the evidence was
sufficient to sustain the defendants’ convictions on the false-
statement counts as principals, we need not address their
contentions that the evidence was insufficient to prove the
government’s alternative theories of liability under 18 U.S.C.
§ 2. See Griffin, 502 U.S. at 56-57; Frorup, 963 F.2d at 44.
29
B. Challenges to the Admission of David Dugan’s
Testimony
George and Starnes next challenge the District Court’s
decision to admit David Dugan’s testimony concerning the
samples of ceiling materials that he collected in February 2002

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30
from Donoe Building 31, which were subsequently revealed to
contain unacceptably high levels of friable asbestos. We review
a trial court’s decision to admit or exclude evidence for abuse of
discretion. United States v. Kemp, 500 F.3d 257, 295 (3d Cir.
2007); see Old Chief v. United States, 519 U.S. 172, 174 n.1
(1997). The “[a]dmission of evidence is an abuse of discretion
if the district court’s action was arbitrary, fanciful or clearly
unreasonable,” and “[w]e will not disturb a trial court’s exercise
of discretion unless no reasonable person would adopt the
district court’s view.” Ansell v. Green Acres Contracting Co.,
347 F.3d 515, 519 (3d Cir. 2003) (internal quotation marks
omitted); see United States v. Frazier, 469 F.3d 85, 87-88 (3d
Cir. 2006); United States v. Universal Rehab. Servs. (PA), Inc.,
205 F.3d 657, 665 (3d Cir. 2000) (en banc).
The District Court determined that Dugan’s testimony
concerning the samples from Building 31 was relevant because
it tended to prove that dangerous levels of friable asbestos
likewise were present in the Donoe buildings worked on by
VIARCO in January 2001. The defendants contend that this
determination amounted to an abuse of discretion because
Dugan collected the samples from a building in which they did
not work and at a point in time too distant from the events at
issue. We disagree.
Under the Federal Rules of Evidence, evidence is
admissible only to the extent that it is relevant. Fed. R. Evid.
402. “‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401; see

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31
Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 232
(3d Cir. 2004) (“[E]vidence is irrelevant only when its has no
tendency to prove a consequential fact.” (internal quotation
marks omitted)). Rule 401 does not raise a high standard.
Kemp, 500 F.3d at 295; Hurley v. Atl. City Police Dep’t, 174
F.3d 95, 109-110 (3d Cir. 1999).
The government supported the introduction of Dugan’s
testimony by demonstrating that the ceilings in all of the Donoe
buildings were made of the same materials and that no structural
changes or significant renovations were made to them after the
Induchem survey was conducted in 1996. Given this predicate
showing, there is no question that the testimony could give rise
to a reasonable inference that the buildings worked on by
VIARCO contained dangerous levels of friable asbestos in
January 2001. See Ansell, 347 F.3d at 525 (explaining that a
trial court’s determination whether “evidence is too remote to be
relevant . . . must be based on the potential the evidence has for
giving rise to reasonable inferences of fact which are ‘of
consequence to the determination of the action’” (quoting Fed.
R. Evid. 401)). This is so even if the materials used in those
buildings did not perfectly correspond with the materials used in
Building 31, because any dissimilarities would “affect the
weight of the evidence . . . not its admissibility.” Stecyk v. Bell
Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002); see
Ansell, 347 F.3d at 525 (“The passage of time and purportedly
changed circumstances were proper issues for counsel to argue
to the jury, and for the jury to consider in weighing the
evidence.”); cf. Arcade Co. v. Boxwell, 41 App. D.C. 213, 223-
24 (D.C. Cir. 1913) (concluding that testimony offered to prove
“conditions of moisture, darkness, and excessive cold” in a cold

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32
storage room on June 1, 1911, although based on an inspection
that occurred more than a year later, was admissible).
We also reject Starnes’s argument that the District Court
should have excluded Dugan’s testimony under Federal Rule of
Evidence 403 because the testimony “could not but have
influenced the jury . . . into declaring guilt” based on the
“deplorable conditions” in Building 31. Rule 403 provides that
even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Fed.
R. Evid. 403. Starnes ignores that relevant evidence is
excludable under Rule 403 if its probative value is substantially
outweighed by the danger of unfair prejudice, not just prejudice.
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 670 (3d Cir. 2002)
(“‘[T]he prejudice against which [Rule 403] guards is unfair
prejudice – prejudice of the sort which clouds impartial scrutiny
and reasoned evaluation of the facts, which inhibits neutral
application of principles of law to the facts as found.’” (quoting
Wagenmann v. Adams, 829 F.2d 196, 217 (1st Cir. 1987))); see
Old Chief, 519 U.S. at 180. And unfair prejudice “does not
simply mean damage to the opponent’s cause. If it did, most
relevant evidence would be deemed [unfairly] prejudicial. . . .
[T]he fact that probative evidence helps one side prove its case
obviously is not grounds for excluding it under Rule 403.”
Goodman, 293 F.3d at 670 (internal quotation marks omitted).
While Dugan’s testimony may have hurt Starnes’s case, Starnes
has not demonstrated that it carried a risk of unfair prejudice,
much less that the District Court abused its broad discretion in
determining that any such risk did not substantially outweigh the
testimony’s probative value.

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33
C. Challenges to the Defendants’ Sentences
George and Starnes also raise various challenges to the
District Court’s determination of their respective sentences. We
readily dispatch these challenges.
We review a district court’s sentencing decisions for
reasonableness under “a deferential abuse-of-discretion
standard.” Gall v. United States, 128 S. Ct. 586, 591 (2007); see
United States v. Tomko, 562 F.3d 558, 564-68 (3d Cir. 2009) (en
banc). In this regard, “our role is two-fold.” United States v.
Wise, 515 F.3d 207, 217 (3d Cir. 2008). “We must first ensure
that the district court committed no significant procedural error
in arriving at its decision” and, if it has not, “we then review the
substantive reasonableness of the sentence.” Id. at 217-18
(citing Gall, 128 S. Ct. at 597); see Tomko, 562 F.3d at 567. A
district court commits significant procedural error – and thus
abuses its discretion – when, for example, it bases its calculation
of the advisory Guidelines range on a clearly erroneous finding
of fact or an erroneous legal conclusion. See Tomko, 562 F.3d
at 567-68; Wise, 515 F.3d at 217-18. “A [factual] finding is
clearly erroneous when although there is evidence to support it,
the reviewing body on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Wise, 515 F.3d at 218 (internal quotation marks omitted); see
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en
banc). In addition, “[t]o be procedurally reasonable, a sentence
must reflect a district court’s meaningful consideration of the
factors set forth at 18 U.S.C. § 3553(a).” United States v.
Lessner, 498 F.3d 185, 203 (3d Cir. 2007). “At both [the
procedural and substantive] stages of our review, the party

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34
challenging the sentence has the burden of demonstrating
unreasonableness.” Tomko, 562 F.3d at 567 (citing United
States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006)); see United
States v. Howe, 543 F.3d 128, 132 (3d Cir. 2008).
1. Sentencing Enhancements
George and Starnes both argue that the District Court
committed significant procedural error by including certain
sentencing enhancements in its calculation of their respective
advisory Guidelines ranges. In sentencing each defendant, the
District Court imposed a six-level enhancement under U.S.S.G.
§ 2Q1.2(b)(1)(A) for an offense resulting “in an ongoing,
continuous, or repetitive discharge, release, or emission of a
hazardous or toxic substance or pesticide into the environment,”
a four-level enhancement under U.S.S.G. § 3B1.1(a) for being
“an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive,” and a two-
level enhancement under U.S.S.G. § 3B1.3 for abuse of a
position of trust.
George cursorily asserts that “the District Court failed
[to] make sufficient findings by a preponderance of the evidence
to support the [three] sentencing enhancements made with
respect to” him. But he declines to elaborate in any meaningful
way on this assertion and does not point to any specific
deficiencies in the District Court’s findings of fact or to any case
law germane to the enhancements he disputes. We are skeptical
that George’s skeletal argument suffices to raise an issue for our
review. Cf. United States v. Hoffecker, 530 F.3d 137, 163 (3d
Cir. 2008) (“A skeletal ‘argument,’ really nothing more than an

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35
assertion, does not preserve a claim. Especially not when the
brief presents a passel of other arguments, as defendant’s did.
Judges are not like pigs, hunting for truffles buried in briefs.”
(internal quotation marks omitted) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))).
In any event, insofar as George contends that the District
Court altogether failed to make findings of fact with respect to
the enhancements, he is simply incorrect. To the extent he
means to argue that the District Court imposed the
enhancements based on clearly erroneous factual findings, our
review of the record in his case – including the jury’s verdict,
the facts necessarily implied by that verdict, the undisputed facts
set out in the PSR, and the statements made by the District Court
at the sentencing hearing – does not leave us “with the definite
and firm conviction that a mistake has been committed.” Wise,
515 F.3d at 218 (internal quotation marks omitted). Either way,
even setting aside the inadequacy of George’s briefing in this
regard, we conclude that he has not met his burden to
demonstrate that the District Court committed significant
procedural error when it included the three enhancements in its
calculation of his advisory Guidelines range. See Tomko, 562
F.3d at 567.
Starnes’s arguments concerning the enhancements made
by the District Court to his base offense level are marginally
more specific; he likewise fails to meet his burden to show that
the District Court committed significant procedural error by
imposing the enhancements. Starnes initially contends that the
District Court erred by enhancing his base offense level by four
levels under U.S.S.G. § 3B1.1(a) because the District Court’s

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36
predicate factual finding that he “involved” Carcamo in the
criminal activity at Donoe was inadequate to justify treating
Carcamo as a culpable “participant” within the meaning of that
section. But a “participant” under § 3B1.1 “is a person who is
criminally responsible for the commission of the offense, [who]
need not have been convicted,” U.S.S.G. § 3B1.1 cmt. n.1, and,
while the District Court surely could have discussed this point
more thoroughly, we are satisfied that its finding concerning
Carcamo’s involvement entails such criminal responsibility.
In addition, Starnes argues that the District Court’s
factual finding that he was an “organizer” of the criminal
activity at Donoe for purposes of § 3B1.1 was clearly erroneous
because he was “not the general contractor” but only a
“consultant” and “advisor” to George. This argument is
misplaced. The District Court’s statements at the sentencing
hearing, while succinct, indicate that it properly gave no weight
to Starnes’s formal job title in assessing whether he should be
characterized as an organizer, see U.S.S.G. § 3B1.1 cmt. n.4,
and also that it made this finding after evaluating the evidence
in the record in light of the other pertinent considerations
identified in § 3B1.1 and the Application Notes accompanying
that section. See United States v. Helbling, 209 F.3d 226, 243
(3d Cir. 2000). After reviewing the record, we see no clear error
in this finding.
Starnes also contends that the District Court erred by
enhancing his base offense level by two levels under U.S.S.G.
§ 3B1.3 because he did not hold a position of trust as
contemplated by that section. In deciding whether a defendant
holds a position of trust, a court must consider: “(1) whether the

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37
position allows the defendant to commit a difficult-to-detect
wrong; (2) the degree of authority which the position vests in
[the] defendant vis-à-vis the object of the wrongful act; and
(3) whether there has been reliance on the integrity of the person
occupying the position.” United States v. Pardo, 25 F.3d 1187,
1192 (3d Cir. 1994); see United States v. Dullum, 560 F.3d 133,
140 (3d Cir. 2009); United States v. Lieberman, 971 F.2d 989,
993 (3d Cir. 1992) (“[T]he primary trait that distinguishes a
person in a position of trust from one who is not is the extent to
which the position provides the freedom to commit a difficult-
to-detect wrong.” (internal quotation marks omitted)). “These
factors should be considered in light of the guiding rationale of
the section – to punish ‘insiders’ who abuse their positions
rather than those who take advantage of an available
opportunity.” Pardo, 25 F.3d at 1192; accord Dullum, 560 F.3d
at 140.
In this case, Starnes had significant authority over the
manner in which work was performed at the Donoe site,
including central responsibility for air monitoring. He was
subject to very little, if any, supervision in exercising his
authority and had substantial “managerial discretion,” see
U.S.S.G. § 3B1.3 cmt. n.1, which facilitated his crimes and
made them difficult to detect. And there is no question that
VIHA relied on him to accurately monitor and honestly report
the levels of asbestos in the air at the Donoe site. Cf. United
States v. Snook, 366 F.3d 439, 445-46 (7th Cir. 2004); United
States v. Turner, 102 F.3d 1350, 1360 (4th Cir. 1996). On these

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To the extent that Starnes’s brief can be read to10
challenge the District Court’s finding that he abused his position
of trust, we conclude that the District Court did not clearly err
in making that finding. Cf. United States v. Dullum, 560 F.3d
133, 140 (3d Cir. 2009) (explaining that whether a defendant
occupied a position of trust is a legal question that is reviewed
de novo, but that whether a defendant abused a position of trust
is a factual question that is reviewed for clear error (citing
United States v. Hart, 273 F.3d 363, 376 (3d Cir. 2001))).
The factors set forth in 18 U.S.C. § 3553(a) are:11
(1) the nature and circumstances of the offense
and the history and characteristics of the
defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the
38
facts, we conclude that the District Court correctly determined
that Starnes was in a position of trust.10
3. Meaningful Consideration of the 18 U.S.C.
§ 3553(a) Factors
Both defendants also argue, albeit somewhat
perfunctorily, that the District Court committed significant
procedural error by failing to give meaningful consideration to
the sentencing factors set forth in 18 U.S.C. § 3553(a). We11

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offense, to promote respect for the law,
and to provide just punishment for the
offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for--
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines--
(i) issued by the Sentencing
Commission . . . , subject to any
amendm ents made to such
guidelines by act of Congress . . . ;
and
39

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(ii) that, except as provided in
section 3742(g), are in effect on the
date the defendant is sentenced; . . .
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission
. . . , subject to any amendments made to
such policy statement by act of Congress
. . . ; and
(B) that, except as provided in section
3742(g), is in effect on the date the
defendant is sentenced[;]
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct;
and
(7) the need to provide restitution to any victims
of the offense.
40
disagree.
While a sentencing court must consider all of the
§ 3553(a) factors, it does not have to discuss and make findings
as to each factor so long as the record otherwise makes clear that
it took the factors into account. See Tomko, 562 F.3d at 568; see
also United States v. Lofink, 564 F.3d 232, 238 n.13 (3d Cir.

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41
2009); Lessner, 498 F.3d at 203. “Nor must the [sentencing]
court consider arguments that clearly lack merit.” Lessner, 498
F.3d at 203.
In each case now before us, the record demonstrates that
the District Court listened to each argument concerning
sentencing and then gave meaningful consideration to the
§ 3553(a) factors in imposing a within-Guidelines sentence.
“[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356 (2007).
In sentencing George, the District Court necessarily considered
the “sentencing range established for . . . the applicable category
of offense committed by the applicable category of defendant,”
18 U.S.C. § 3553(a)(4), when it explicitly adopted the PSR
prepared in his case, including the Probation Office’s
calculation of his advisory Guidelines range. See Lessner, 498
F.3d at 203. The District Court also heard testimony from
several members of George’s family and acknowledged the
“good things” they said on his behalf, but discounted such
mitigating considerations in light of the nature and
circumstances of George’s offenses – which it emphasized could
“result in serious injury and death” – and the need for his
sentence to reflect the seriousness of those offenses and to
afford adequate deterrence. See 18 U.S.C. § 3553(a)(1),
(a)(2)(A)-(B).
At Starnes’s sentencing hearing, the District Court
likewise demonstrated its consideration of the applicable
advisory Guidelines range when it rejected the Probation
Office’s recommendation in the PSR to enhance Starnes’s base

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Starnes also argues that the District Court committed12
significant procedural error by “fail[ing] to elicit fully
articulated objections following imposition of sentence,”
pointing to a supervisory rule announced by the Court of
Appeals for the Eleventh Circuit in United States v. Jones, 899
F.2d 1097, 1102-03 (11th Cir. 1990). But we have never
adopted such a supervisory rule and, in light of our precedents,
we doubt the propriety of doing so. See, e.g., United States v.
Sevilla, 541 F.3d 226, 231 (3d Cir. 2008) (“‘[A]n objection to
the reasonableness of the final sentence will be preserved if,
during sentencing proceedings, the defendant properly raised a
42
offense level by four levels under U.S.S.G. § 2Q1.2(b)(4) –
leading it to calculate a lower advisory Guidelines range than
that proposed by the Probation Office – but otherwise adopted
the PSR. See 18 U.S.C. § 3553(a)(4). The District Court also
touched on the nature and circumstances of Starnes’s offenses,
noting the “danger . . . [Starnes’s actions] pose[d] to the health
of the community and the people of the Virgin Islands,” see id.
§ 3553(a)(1), and indicated its belief that the sentence it imposed
on Starnes was necessary to reflect the seriousness of those
offenses, id. § 3553(a)(2)(A), to promote respect for the law, id.,
and to deter others from committing similar crimes, id.
§ 3553(a)(2)(B). Given the “straightforward, conceptually
simple arguments” both defendants made at sentencing, we
believe that the District Court’s statement of reasons in each
case, “though brief, was legally sufficient.” Rita, 551 U.S. at
356; accord United States v. Stinson, --- F.3d ----, 2009 WL
2231644, at *4 (3d Cir. July 28, 2009); Tomko, 562 F.3d at
569.12

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meritorious factual or legal issue relating to one or more of the
factors enumerated in 18 U.S.C. § 3553(a).’” (quoting United
States v. Grier, 475 F.3d 556, 571 & n.11 (3d Cir. 2007) (en
banc))). In any event, we have no occasion here to evaluate the
need for such a rule, because the record clearly indicates that the
District Court afforded fair opportunity to Starnes’s attorney to
raise further objections at the conclusion of the sentencing
hearing, but that he had none.
In addition, we note that neither George nor Starnes
challenges the substantive reasonableness of his sentence, and
we discern no substantive error related to either defendant’s
sentence.
43
III. Conclusion
For the foregoing reasons, we will affirm the judgments
of conviction and sentence entered against George and Starnes.

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