Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Justice Department Argues That Appeal over “Mistake” in Sentencing Calculation Was Waived, (Oct 29, 2012)

By Jeffrey May, J.D.

The U.S. Court of Appeals in Philadelphia should not consider an argument raised on appeal by a former Bennett Environmental Inc. executive, the Department of Justice has urged in a supplemental brief filed with the court on October 23, 2012 (U.S. v. Griffiths, No. 11-3636). On appeal, Robert Griffiths has questioned his sentence, which was imposed after he pleaded guilty to charges arising from a government investigation into bidding practices related to federal contracts for Superfund sites. The government contends that the appellant waived his argument because he did not raise the issue of the particular mistake made by the district court in calculating his sentencing earlier.

Griffiths pled guilty to a three-count Information that charged him with conspiring to violate the Anti-Kickback Act and commit mail fraud (18 U.S.C. §371), conspiring to commit money-laundering (18 U.S.C. §1956(h)), and obstructing a Securities and Exchange Commission investigation (18 U.S.C. §1512(c)(2)). As an executive at a company that treats and disposes of contaminated soil, he admitted to inflating the prices he charged to a prime contractor of the U.S. Environmental Protection Agency (EPA) at a New Jersey Superfund site and to providing kickbacks to employees of that prime contractor. In September 2011, Griffiths was sentenced to 50 months’ imprisonment on each count, to be served concurrently, followed by 3 years supervised release, a $15,000 fine, and to pay the EPA more than $4 million in restitution. After judgment was entered, Griffiths appealed.

While the appeal was under review, the appellate court asked the government for a supplemental brief addressing a particular issue raised in the appellant’s reply brief. According to the appellant, the court made a procedural error when calculating the sentencing range under the U.S. Sentencing Guidelines. The appellant contended that the court mistakenly believed that the greatest downward departure in a related case was 8 levels, instead of 10 levels. The court ultimately granted the government's motion for an 8-level departure, which was based on the individual's assistance with the government's investigation, and sentenced Griffiths to 50 months in prison.

The government acknowledged that the sentencing judge was mistaken when she stated that the greatest downward departure that she had given in a related case was an 8-level departure. However, the government argues that the appellant's failure to identify or argue the district court's mistake in his opening brief constituted waiver of that issue on appeal. Thus, the appellate court should not consider it.

Griffiths had no sound excuse for failing to raise the issue, the government argued. Moreover, it was mere speculation to think that, if the district court had known the greatest departure was 10 levels, it would have given Griffiths a 10-level departure and a lower sentence. "It may still have departed 8 levels, believing 10 levels was too many," the government suggested. If the court were to find no waiver or excuse the waiver, then review is only for plain error and not plenary, because the issue was not raised below, the government also argued.

James J. Fredricks for U.S. Department of Justice Antitrust Division.

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