Environmental Crimes Bulletin November 2023 Week 5

In this issue:

• United States v. Vyacheslav S. Migitskiy, No. 6:23-CR-06199 (W.D.N.Y.), AUSA Aaron Mango
• United States v. Ernesto Gonzalez Campos, No. 8:22-CR-00287 (M.D. Fla.), ECS Senior Trial Attorney Patrick Duggan and AUSA Ilyssa Spergel
• United States v. Richard Zagger, No.  2:23-CR-00491 (E.D.N.Y.), ECS Senior Trial Attorneys Dan Dooher and RJ Powers, ECS Trial Attorney Rachel Roberts, and ECS Law Clerk Amanda BackerUnited States v. Aaron Rudolf, No. 1:23-CR-00391 (D.D.C.), ECS Senior Trial Attorney Kris Dighe, ECS Trial Attorney Steve Foster, AUSA Jennifer Blackwell, and ECS Paralegal John Jones
• United States v. Fu Chen, No. 1:23-mj-00031 (N.D. Miss.), AUSA Robert Mims
• United States v. Robert Dyche, et al., Nos. 6:23-CR-03024, 03025 (W.D. Mo.), AUSA Patrick Carney
• United States v. Gzuniga Ltd., et al., No. 1:22-CR-20170 (S.D. Fla.), ECS Senior Trial Attorney RJ Powers and AUSA Tom Watts-FitzGerald
• United States v. Michael Ingram, et al., No. 3:23-CR-00977, 00978 (D.N.J.), AUSA Eric A. Boden
• United States v. Milwaukee Precision Casting, Inc., No. 2:23-CR-00131 (E.D. Wisc.), AUSAs Peter Smyczek and Julie Stewart
• United States v. Robert Jensen, et al., Nos. 2:22-CR-00013, 00014 (W.D. Mich.), ECS Trial Attorney Joel LaBissonniere, AUSA Paul Lochner, and ECS Paralegal Sam Goins
• United States v. David Owens, No. 1:23-CR-00102 (S.D. Ohio), ECS Senior Trial Attorney Adam Cullman and ECS Paralegal Chloe Harris

United States v. Vyacheslav S. Migitskiy, No. 6:23-CR-06199 (W.D.N.Y.), AUSA Aaron Mango

On November 30, 2023, Vyacheslav S. Migitskiy pleaded guilty to making a false statement regarding the sinking of a boat (18 U.S.C. § 1001(a)(2)). Sentencing is scheduled for April 24, 2024.

On August 26, 2022, the U.S. Coast Guard received a report from a local mariner of a partially submerged vessel, a 1987 25-foot Bayliner, approximately a half mile offshore east of Little Pond in Rochester, New York. The Coast Guard responded and initiated an active search and rescue operation. Authorities determined that no individuals were on the vessel. They further found that the propellers and boat plug were missing, and someone had removed all electronics from the vessel. The Coast Guard spent more than $14,000 for its search and rescue efforts and the New York State Police spent close to $1,300.

Investigators subsequently traced the vessel to Migitskiy, who claimed that he had given it to unknown individuals two weeks prior. A witness confirmed, and surveillance video depicted, Migitskiy placing the vessel in the water, and then using a different boat to tow the vessel out into the lake, where authorities recovered it.

The U.S. Coast Guard Investigative Service, the Monroe County Sheriff’s Office, the New York State Police, the Gates Police Department, the Rochester Fire Department, the Irondequoit Police Department, and the Greece Police Department conducted the investigation.

United States v. Ernesto Gonzalez Campos, No. 8:22-CR-00287 (M.D. Fla.), ECS Senior Trial Attorney Patrick Duggan and AUSA Ilyssa Spergel

On November 30, 2023, a jury convicted Ernesto Gonzalez Campos on all three Migratory Bird Act violations charged (16 U.S.C. §§ 703, 707(b). Sentencing is scheduled for March 1, 2024.

Between March 2020 and July 2022, Florida wildlife agents conducted an undercover investigation into the wild capture and subsequent commercialization of migratory songbirds (Operation Ornery Bird). The birds, which included painted buntings, indigo buntings, lazuli buntings, rose breasted grosbeaks, blue grosbeaks, and yellow-faced grassquits, were trapped by placing cages in forests along migration routes and luring male birds to the trap cage with a female of the same species. The birds were then sold and traded amongst the competitive songbird community.

The U.S. Fish and Wildlife Service Office of Law Enforcement and the Florida Fish and Wildlife Conservation Commission conducted the investigation.

United States v. Richard Zagger, No.  2:23-CR-00491 (E.D.N.Y.), ECS Senior Trial Attorneys Dan Dooher and RJ Powers, ECS Trial Attorney Rachel Roberts, and ECS Law Clerk Amanda Backer

On November 29, 2023, prosecutors charged Richard Zagger with conspiracy and obstruction of official proceedings relating to an investigation into a fatal construction incident (18 U.S.C. §§ 371, 1505).

Zagger was a supervisor for Northridge Construction Corporation, located on Long Island, New York. On December 8, 2018, Zagger oversaw Northridge employees as they built a metal shed on the Northridge property. During the construction, one of the employees fell from the improperly secured roof and died from his injuries.

Investigators with the Occupational Safety and Health Administration (OSHA) found numerous worker safety standard violations. OSHA regulations require maintaining the stability of a metal structure at all times during construction. During the investigation, Zagger made false statements and conspired with others to make false statements to obstruct the federal agency’s inquiry.

The U.S. Department of Labor Office of Inspector General conducted the investigation.

United States v. Aaron Rudolf, No. 1:23-CR-00391 (D.D.C.), ECS Senior Trial Attorney Kris Dighe, ECS Trial Attorney Steve Foster, AUSA Jennifer Blackwell, and ECS Paralegal John Jones

On November 29, 2023, Aaron Rudolf, the owner, president, and chief executive officer of an automotive parts distributor pleaded guilty to conspiring to violate the Clean Air Act (18 U.S.C § 371). Sentencing is scheduled for April 12, 2024.

Rudolf is the owner of Rudy’s Performance Parts, Inc. Between 2015 and 2017, Rudolf and his employees disabled or removed emissions control components and tampered with on-board diagnostic systems (OBDs) on approximately 300 diesel trucks. As part of the process, Rudy’s sold, and its employees installed, “defeat devices” known as “tuners.” The tuner plugged into the vehicle’s OBD port to reprogram the electronic control unit and tamper with the OBD, impairing its ability to monitor the operation of the vehicle’s emission control system. Rudolf and some employees knew that using the tuners in this manner would tamper with the OBDs on vehicles that were not used exclusively in competitions. Removing the emission control components resulted in additional diesel exhaust emissions.

The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.

United States v. Fu Chen, No. 1:23-mj-00031 (N.D. Miss.), AUSA Robert Mims

On November 29, 2023, a court sentenced Fu Chen to pay a $1,000 fine and $2,500 in restitution for illegally harvesting crappie from the Enid Lake Spillway. Specifically, Chen will pay the fine into the Lacey Act Reward Fund and $2,500 in restitution to the Mississippi Department of Wildlife, Fisheries, and Parks Special Investigations Fund. Chen also will complete a one-year term of probation.

On January 1, 2023, Chen harvested a total of 90 crappie from the Enid Lake Spillway, which is 75 more fish than the allowed creel limit of 15 crappie. Prosecutors charged Chen with aiding and abetting taking in excess of daily creel limit on U.S. Army Corps property (18 U.S.C. § 2).

The U.S. Fish and Wildlife Service Office of Law Enforcement and the Mississippi Department of Wildlife, Fisheries, and Parks conducted the investigation.

United States v. Robert Dyche, et al., Nos. 6:23-CR-03024, 03025 (W.D. Mo.), AUSA Patrick Carney

On November 28, 2023, a court sentenced business owner Robert Dyche to complete a two-year term of probation and to pay a $500 fine for illegally tampering with emissions controls on diesel-engine trucks. Dyche pleaded guilty to conspiring to violate the Clean Air Act (CAA) and co-defendant Dennis Cleveland pleaded guilty to conspiracy and tampering with a CAA monitoring device (18 U.S.C. § 371; 42 U.S.C. § 7413(c)(2)(C)).

Cleveland owned Affordable Towing, a roadside recovery, hauling, and mobile repair provider for commercial and private vehicles serving southwest Missouri. Affordable Towing utilized heavy-duty commercial diesel trucks to tow and haul vehicles to repair facilities. Starting in 2011, Cleveland directed his employees to disable emissions control components on multiple heavy-duty diesel tow trucks. Cleveland conspired with Dyche, the owner and operator of Full Flash Tuning, a business specializing in illegally tampering with vehicle on-board diagnostic systems.

Cleveland, through Affordable Towing, contracted with Dyche on multiple occasions to “tune,” or “flash,” the emissions control systems for Affordable Towing vehicles, thereby causing multiple fleet vehicles to release pollutants into the air that far exceeded the legally allowable amounts. This alteration allowed each diesel truck to continue operating normally, avoiding maintenance expenses, and spending less money on fuel.

In addition to personally tuning Affordable Towing vehicles, Dyche drove vehicles to another business to tune the vehicles, for which he received compensation from Affordable Towing.

Cleveland was previously sentenced to 24 months’ incarceration, followed by three years’ supervised release, and to pay a $255,000 fine.

The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.

United States v. Gzuniga Ltd., et al., No. 1:22-CR-20170 (S.D. Fla.), ECS Senior Trial Attorney RJ Powers and AUSA Tom Watts-FitzGerald

On November 28, 2023, Mauricio Giraldo pleaded guilty to conspiracy and smuggling charges (18 U.S.C. §§ 371, 545). Co-defendants Gzuniga, Ltd., and Nancy Teresa Gonzalez de Barberi entered similar pleas on November 17, 2023. A final co-defendant, John Aguilar, is fighting extradition from Colombia. Sentencing is scheduled for February 5, 2024.

Between February 2016 and April 2019, the defendants illegally imported designer handbags made from caiman and python skin, both CITES-protected species. They solicited friends, relatives, and employees of Gonzalez’s manufacturing company in Colombia, called C.I. Diseño Y Moda, to act as couriers and transport the designer handbags in their clothing or in their luggage while traveling on passenger airlines. Once the designer handbags were smuggled into the United States, they were transported or shipped to the Gzuniga showroom in Manhattan, New York, where employees placed them on display for high-end retailers to view and purchase as stock for their stores. The average retail price for these “Nancy Gonzalez” brand handbags exceeded $2,000.

The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation.

United States v. Michael Ingram, et al., No. 3:23-CR-00977, 00978 (D.N.J.), AUSA Eric A. Boden

On November 28, 2023, Michael Ingram and William Kreiss pleaded guilty to participating in a conspiracy to obtain overtime payments from the city of Trenton for work they did not perform by fraudulently inflating the overtime hours they claimed to have worked conducting residential lead inspections (18 U.S.C. §§ 371, 666 (a)(1)(A)). Both are scheduled for sentencing on April 24, 2024.

Beginning in approximately 2018, a New Jersey State grant funded inspections of properties in Trenton where children tested positive for elevated levels of lead in their blood. Trenton’s Department of Health and Human Services employed Ingram (as a public health investigator) and Kreiss (as a registered environmental specialist) for Trenton’s Bureau of Environmental Health (BEH). Between February 2018 and May 2022, the defendants conducted residential lead inspections with other BEH employees. The BEH employee to whom Ingram and Kreiss reported began directing them to bill overtime hours for work they did not perform. Ingram and Kreiss submitted their fraudulent and inflated overtime claims to this BEH employee, who then authorized overtime payments to each of them.

The two defendants also submitted claims for falsified overtime hours worked in connection with a meal delivery program administered by the city. In total, Ingram received $22,144 and Kreiss received $32,806 in overtime wages they did not earn.

The Federal Bureau of Investigation, the U.S. Environmental Protection Agency Criminal Investigation Division and Office of Inspector General, and the Department of Housing and Urban Development conducted the investigation.

United States v. Milwaukee Precision Casting, Inc., No. 2:23-CR-00131 (E.D. Wisc.), AUSAs Peter Smyczek and Julie Stewart

 On November 27, 2023, a court sentenced Milwaukee Precision Casting, Inc. (MPC), to pay a $50,000 fine, after the company pleaded guilty to violating the Clean Water Act (33 U.S.C. §§ 1317(d),1319(c)(1)(A)).

MPC operated a casting foundry that produced simple cast steel and aluminum components for the military, firearms, medical, and aerospace industries. The casting process involves using corrosive chemicals and generates hazardous wastewater.

MPC's facility contained a sump pit, which was connected to the publicly owned treatment works (POTW) system operated by the Milwaukee Metropolitan Sewage District (MMSD). MPC and its employees discharged untreated corrosive chemical waste, including waste with a pH below 5.0, through the sump pit into the POTW. MPC did not have the necessary industrial pretreatment permits from MMSD to properly discharge pollutants into the Milwaukee sewage system.

Between June 2020, and September 2021, MPC negligently discharged pollutants with a pH below 5.0 into the POTW.

The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.

United States v. Robert Jensen, et al., Nos. 2:22-CR-00013, 00014 (W.D. Mich.), ECS Trial Attorney Joel LaBissonniere, AUSA Paul Lochner, and ECS Paralegal Sam Goins

On November 27, 2023, a court sentenced Robert Jensen to pay a $4,250 fine, complete a two-year term of probation (to include six months’ home detention), and pay $211, 578 in restitution to the U.S. Fish and Wildlife Service National Fish Hatchery System. Based upon his ability to pay, the court ordered Jensen to make an initial restitution payment of $15,725 within 60 days, to be followed by monthly payments of $100/month until full payment has been made. Joseph Jensen was sentenced on December 21, 2023, to the same terms, except he will pay $30,000 in restitution. The two pleaded guilty to making and submitting (and causing to be submitted) false records with respect to fish in violation of the Lacey Act (16 U.S.C. §§ 3372(d)(2), 3373(d)(3)(A)(ii), (d)(3)(B)).

Robert Jensen, and his son, Joseph, are enrolled members of the Sault Ste. Marie Tribe, who commercially fish Lake Michigan pursuant to licenses issued by their tribe. James and Michael Hermes are non-tribal fish wholesalers doing business as Garden Bay Fisheries, located in Michigan’s Upper Peninsula. During 2017, the Jensens repeatedly harvested lake trout in excess of established daily trip limits. These fish were purchased by Big Bay de Noc Fisheries (the predecessor to Garden Bay Fisheries), which sold them in interstate commerce. To conceal the illegal nature of the fish, Robert Jensen falsified monthly catch reports filed with the tribe, and Big Bay de Noc Fisheries, with assistance from Joseph Jensen, falsified wholesale reports filed with the State of Michigan.

The court previously sentenced James and Michael Hermes, along with Garden Bay Fisheries, for selling illegally possessed fish in interstate commerce and making and submitting false records in violation of the Lacey Act (16 U.S.C. §§ 3372(d)(2), 3373(d)(2)). The three defendants are jointly and severally responsible for $180,000 in restitution to be paid to the U.S. Fish and Wildlife Service National Fish Hatchery System (with James and Michael Hermes each paying $90,000), of which $135,000 was paid at the time of sentencing. All three defendants also paid $8,500 in fines. The company will complete a four-year term of probation. James and Michael Hermes will each complete two-year terms of probation to include six-months’ home confinement.

The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation.

United States v. David Owens, No. 1:23-CR-00102 (S.D. Ohio), ECS Senior Trial Attorney Adam Cullman and ECS Paralegal Chloe Harris

On November 27, 2023, David Owens pleaded guilty to aiding and abetting the removal of emissions control devices from customers’ vehicles, in violation of the Clean Air Act (42 U.S.C. § 7413(c)(2)(C); 18 U.S.C. § 2). Owens continued to break the law despite entering into a civil resolution with the Environmental Protection Agency (EPA) for similar misconduct.

Owens previously co-owned and operated a diesel shop located in North Bend, Ohio. In 2020, Owens entered a consent agreement and final order with the EPA regarding allegations that he knowingly removed or rendered inoperative various emissions control devices. As part of this civil resolution, Owens agreed to cease removing these devices. Instead, Owens continued this activity through another company (called Cincy Diesel) operating at the same location.

The U.S. Environmental Protection Agency Criminal Investigation Division and the Ohio Attorney General’s Office Bureau of Criminal Investigation Environmental Enforcement Unit conducted the investigation.