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Nicole Copeland

Other Federal Fraud Exonerations
On October 10, 2010, Certified Environmental Services, Inc., an asbestos removal monitoring laboratory in Syracuse, New York, and two of its employees, Nicole Copeland and Elisa Dunn, were convicted by a jury in federal court of charges of conspiracy, mail fraud, and aiding and abetting violations of the Clean Air Act.

The company (CES) was in the business of providing proof in the form of laboratory and air-monitoring reports to the federal Environmental Protection Agency that asbestos removal projects had been completed according to federal regulations that cover not only removal of the toxic material, but the air quality during and after the removal process.

The company, as well as Dunn and Copeland, both of whom were involved in overseeing and preparing air quality reports, were indicted by a federal grand jury in May 2009 on charges falsifying air and laboratory results, which allowed other companies to perform illegal asbestos removal in a dozen homes and buildings in the Syracuse area.

The jury convicted the company of 15 counts, including conspiracy and laboratory fraud that falsely certified buildings as free of cancer-causing asbestos.

During a four-week trial, the prosecution presented numerous witnesses—some former employees of CES and others who worked for companies that handled the removal projects that CES monitored—in an attempt to show that the lab fraud enabled the abatement companies to perform illegal asbestos removals known as “rip-and-run” removals in which asbestos is removed without the safeguards needed to ensure that the surrounding area is not contaminated. “Rip-and-run” removals are cheaper (and more profitable) than legal removals, but will be detected if the company fails to obtain final clearance air monitoring results from a company such as CES.

The prosecution witnesses testified that that CES monitors failed to conduct visual inspections, collected air samples despite visible asbestos debris, failed to use aggressive air sampling techniques, and certified air monitoring samples that should not have passed for clearance.

Lawyers for the defendants contended that the testimony was unreliable and that they had acted in the good-faith belief that their conduct was consistent with the law. The defendants attacked the credibility of all of the prosecution’s witnesses, noting that many had motives to lie and were testifying about events that had allegedly occurred many years earlier. Several witnesses, the defense said, had left CES before any of the removal projects began.

The defense also attacked the accuracy and relevance of the prosecution’s documentary and photographic evidence. Photographs of the worksites were not contemporaneous with the events charged in the case and debris could have been concealed from CES air monitors behind containment barriers, the defense asserted.

The defendants also presented evidence showing that CES frequently gave failing grades to air samples collected from some of the projects, including two projects named in the indictment. The defense also presented evidence that CES had little financial incentive to engage in misconduct since the company was turning down work from other contractors at the time.

Nonetheless, the defendants were convicted. The company was fined $20,000, ordered to pay restitution of $117,000, and placed on probation for five years. Copeland received five years of probation, twelve consecutive weekends of intermittent confinement, and was ordered to pay about $23,000 in restitution. Dunn received one day imprisonment (which was considered served by the time she spent being processed after she was indicted) and was ordered to pay $6,000 in restitution.

On appeal, lawyers for the defendants argued that the trial judge improperly excluded evidence that they acted under a good-faith belief that they were complying with state law. The defense was prepared to call a former CES employee who would have testified that he contacted the New York State Department of Labor in 1994 and was advised as to when aggressive air sampling techniques were required. CES maintained that it followed that advice—and that in 2006, after the federal investigation had begun, the New York State Department of Labor re-confirmed that CES was following the regulations correctly.

The defense also claimed that the trial had been tainted by prosecutorial misconduct.

In May 2014, the U.S. Court of Appeals for the Second Circuit vacated the convictions of CSE, Dunn and Copeland and ordered a new trial.

The appeals court noted that most of the prosecution witnesses were either given immunity or stood to receive reduced sentences by providing substantial assistance to the prosecution. The court found that the prosecution improperly bolstered the witnesses’ credibility repeatedly, including in the opening statement, by informing the jury that their cooperation agreements required truthful testimony.

Further, the prosecution “introduced into evidence on the direct examination of nine of its witnesses the entirety of their largely bolstering cooperation agreements, notwithstanding strenuous defense objections,” the court said. “The government even went so far as to ask one witness on direct examination about his ‘understanding of what happens to your immunity if you provide false information today.’”

The court also noted that during closing argument, the prosecutor improperly “personally vouched for the truthfulness of these witnesses, stating that ‘the immunity agreements are very simple. We wanted to ensure that people taking the stand provided the truth.’”

The prosecution conceded on appeal that the prosecutor’s comments, the introduction of the immunity agreements on direct examination of its witnesses, and other comments by the prosecutor were improper, but contended that the defendants still got a fair trial.

The appeals court rejected the prosecution arguments, saying that “evidentiary errors and prosecutorial misconducted infected every stage of the trial below.”

“The improperly excluded evidence of good faith was also significant,” the appeals court said. “In its absence, the jury was left without vital context and corroboration for the defendants' defense of good faith and lack of criminal intent.”

“Under the circumstances, we are compelled to conclude that the totality of the Government’s misconduct in this case, combined with the district court’s erroneous exclusion of evidence favorable to the defense, denied the defendants their right to a fair trial,” the appeals court ruled.

In May 2015, CES pled guilty to a misdemeanor count of negligently releasing asbestos into the air, placing people in danger of death or serious injury. The company was placed on probation for five years, fined $20,000 and ordered to pay restitution of $409,000.

On May 10, 2016, the prosecution dismissed the charges against Dunn and Copeland.

– Maurice Possley

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Posting Date: 5/20/2016
Most Serious Crime:Fraud
Additional Convictions:Conspiracy
Reported Crime Date:2007
Sentence:24 days
Age at the date of reported crime:32
Contributing Factors:Official Misconduct
Did DNA evidence contribute to the exoneration?:No