CLOSED

U.S. District Court
Southern District of New York (Foley Square)
CRIMINAL DOCKET FOR CASE #: 1:03-cr-00044-JES-2


Case title: USA v. Austin, et al

Date Filed: 01/14/2003
Date Terminated: 07/02/2003

Assigned to: Judge John E. Sprizzo

Defendant (2)
National Abatement Corporation
National Abatement Corporation
TERMINATED: 07/08/2003
represented byMark Edward Spund
Davidoff Malito & Hutcher LLP ( Garden City )
200 Garden City Plaza, Suite 315
Garden City, NY 11530
516-248-6400
Fax: 516-248-6422
Email: MES@DMLEGAL.COM
LEAD ATTORNEY
Designation: Retained

Pending Counts

Disposition
42:7412.F AIR POLLUTION PREVENTION/CONTROL-HAZARDOUS AIR POLLUTANTS - (Title 42 USC Sections 7412 and 7413(c); Title 40, Code of Federal Regulations, Section 61.145; and Title 18 USC Section 2.)
(1s-3s)
The defendant is hereby placed on a probation for a term of FIVE (5) YEARS. The defendant shall pay a fine in the amount of $75,000.00.

Highest Offense Level (Opening)
Felony

Terminated Counts

Disposition
42:7412.F AIR POLLUTION PREVENTION/CONTROL-HAZARDOUS AIR POLLUTANTS (ILLEGAL ASBESTOS REMOVAL)
(1)
Count(s) 1 is dismissed.

Highest Offense Level (Terminated)
Felony

Complaints

Disposition
None


Plaintiff
USA represented byErika K. Thomas
Assistant United States Attorney
Mary Jo White, United States Attorney
Criminal Division
One Saint Andrew's Plaza
New York, NY 10007
212-637-2544
LEAD ATTORNEY

Date Filed #Docket Text
01/14/2003INDICTMENT as to Randolph Austin (1) count(s) 1, National Abatement Corporation (2) count(s) 1. [ microfilm 1/15/03 12pm ] (jm) Modified on 01/17/2003 (Entered: 01/14/2003)
01/24/2003Tolling Agreement, stipulated and agreed between National Abatement Corporation and USA. (bw) (Entered: 01/28/2003)
01/30/2003  First Appearance as to Randolph Austin, National Abatement Corporation held before Judge John E. Sprizzo. (bw) (Entered: 02/06/2003)
01/30/2003  Arraignment as to Randolph Austin, National Abatement Corporation held: Randolph Austin (1) count(s) 1, National Abatement Corporation (2) count(s) 1, before Judge John E. Sprizzo. Deft #1, Austin, present w/atty Gary Schoer. Deft #2, Nat'l Abatement, present w/atty Mark Spund. Govt present by Erika Thomas, AUSA. Defts arraigned, both plead Not Guilty, released ROR; Next PTC 3/4/03; time excluded. (bw) (Entered: 02/06/2003)
01/30/2003  PLEA entered by Randolph Austin, National Abatement Corporation. Court accepts plea. Not Guilty: Randolph Austin (1) count(s) 1, National Abatement Corporation (2) count(s) 1. (bw) (Entered: 02/06/2003)
01/30/2003  ORAL ORDER as to Randolph Austin, National Abatement Corporation . SET pretrial conference for 3/4/03 for Randolph Austin, for National Abatement Corporation ; and to Continue in Interests of Justice time is excluded from 1/30/03 to 3/4/03. ( Entered by Judge John E. Sprizzo ) (bw) (Entered: 02/06/2003)
03/06/2003ORDER as to Randolph Austin, National Abatement Corp. WHEREAS, a pretrial conference in this matter has been rescheduled from Tuesday, 3/3/03 to Monday, 3/31/03 at 4:00 p.m.; WHEREAS, the delay between now and 3/31/03 furthers the interests of justice by allowing defense counsel to continue plea negotiations with the Govt; WHEREAS, the Govt, with the consent of counsel for both defts, requests that the time between the date of this Order and 3/31/03 be excluded from the calculation of time under the Speedy Trial Act ("Act"), in the interests of justice; WHEREAS it is found that an exclusion of time under the Act best serves the ends of justice and outweighs the interest of the public and the defts in a speedy trial; IT IS HEREBY ORDERED that the time between the signing of this Order and 3/31/03 is hereby excluded under the Speedy Trial Act, 18 U.S.C. Section 3161(h)(8)(A), in the interests of justice. ( Signed on 3/3/03 Judge John E. Sprizzo ). [ microfilm 3/6/03 12pm ] (bw) (Entered: 03/07/2003)
03/24/2003Stipulation and Order (TOLLING AGREEMENT) as to National Abatement Corporation. It is hereby Stipulated and Agreed between the U.S.A., James B. Comey, U.S. Attorney for the S.D.N.Y., Erika Thomas, Assistant U.S. Attorney, of counsel, and deft NATIONAL ABATEMENT CORPORATION ("NATIONAL ABATEMENT"), by its attorney Mark E. Spund, Esq., as follows: (1) NATIONAL ABATEMENT is under a continuing investigation for possible violations of Title 42 U.S.C. Sections 7412 and 7413 and Title 40, Code of Federal Regulations, Section 61.145, in connection with matters involving the removal of asbestos and asbestos containing materials. (2) The applicable statute of limitations for certain of these offenses is ordinarily five years. (3) With respect to any possible violation of Title 42 U.S.C. Sections 7412 and 7413 and Title 40, Code of Federal Regulations, Section 61.145, in connection with matters concerning NATIONAL ABATEMENT and the removal of asbestos and asbestos containing materials as to which a grand jury has not returned and Indictment and the statute of limitations has not run as of the date of this stipulation, the period of time beginning on the date of the execution of this stipulation and terminating on 5/30/03, or the date on which a disposition is reached with respect to the above-captioned matter (03-Cr-44(JES)), whichever date comes first, shall be tolled and excluded from any calculation of time for the purposes of (a) any statute of limitations under the laws of the U.S., and (b) any constitutional, statutory or other claim concerning pre-indictment delay. (4) Having been advised by counsel, NATIONAL ABATEMENT expressly waives its right to raise any defense based, in whole or in part, on the failure of any grand jury to return an Indictment in connection with any of the charges described in paragraph 1 above during the tolling period described in paragraph 3 above (including, but not limited to, any motion to dismiss relating to pre-indictment delay and any motion and/or defense relating to the statute of limitations). It is further the intention and understanding of NATIONAL ABATEMENT that the period of limitations applicable to the above charges shall be tolled and extended during the tolling period described in paragraph 3 above. (5) This Agreement shall not be construed as a waiver of any other right, claim or defense that NATIONAL ABATEMENT may have, including (but not limited to) assertion of the statute of limitations or pre-indictment delay, if applicable, to periods of time prior or subsequent to the specific aforesaid tolling period. It is specifically understood that NATIONAL ABATEMENT is not waiving any statute of limitations that has already expired as of the date of the execution of this waiver. (6) This Agreement does not limit or affect in any way the right of the Govt to seek a return of an Indictment at any time the Govt deems appropriate, including during the tolled period.; JUDGE SO ORDERED. ( Signed on 3/21/03 by Judge John E. Sprizzo ). [ microfilm 3/25/03 9am ] (bw) Modified on 03/25/2003 (Entered: 03/25/2003)
04/02/2003ORDER as to Randolph Austin, National Abatement Corp. It is hereby ORDERED that the time between 3/31/03 and 4/28/03 is hereby excluded under the Speedy Trial Act, 18 U.S.C. Section 3161(h)(8)(A). The Court finds that the granting of such an exclusion best serves the ends of justice and outweighs the best interest of the public and the defts in a speedy trial, because it will enable the defts to continue plea discussions with the Govt. ( Signed on 3/31/03 by Judge John E. Sprizzo ). [ microfilm 4/3/03 9am ] (bw) (Entered: 04/03/2003)
05/02/2003Stipulation as to Randolph Austin, National Abatement Corp. 1) The pre-trial conference previously scheduled for 4/28/03 shall be adjourned to 5/30/03. 2) The time between 4/28/03 and 5/30/03 shall be excluded under the Speedy Trial Act, 18 U.S.C. Section 3161(h)(8)(A). 3) The exclusion best serves the ends of justice and outweighs the best interest of the public and the defts in a speedy trial, because it will enable the defts to continue plea discussions with the Govt and achieve a disposition of this case. ( Signed on 4/29/03 by Judge John E. Sprizzo ). [ microfilm 5/5/03 9am ] (bw) (Entered: 05/06/2003)
06/04/200310 Tolling Agreement by National Abatement Corporation, by USA. (bw) (Entered: 06/06/2003)
06/05/2003Stipulation as to Randolph Austin, National Abatement Corp. 1) The pre-trial conference previously scheduled for 5/30/03 shall be adjourned to 7/1/03. 2) The time between 5/30/03 and 7/1/03 shall be excluded under the Speedy Trial Act, 18 U.S.C. Section 3161(h)(8)(A). 3) The exclusion best serves the ends of justice and outweighs the best interest of the public and the defts in a speedy trial, because it will enable the defts to continue plea discussions with the Govt and achieve a disposition of this case.; JUDGE "SO ORDERED". ( Signed on 6/3/03 by Judge John E. Sprizzo ). [ microfilm 6/5/03 3pm ] (bw) (Entered: 06/06/2003)
07/01/200313 WAIVER OF INDICTMENT by National Abatement Corporation. (bw) (Entered: 07/16/2003)
07/01/200314 (S1) SUPERSEDING INFORMATION as to National Abatement Corporation (2) count(s) 1s-3s . [ microfilm 7/15/03 3pm ] (bw) Modified on 07/16/2003 (Entered: 07/16/2003)
07/01/2003  Arraignment as to National Abatement Corporation held: National Abatement Corporation (2) count(s) 1s-3s, before Judge John E. Sprizzo. Deft present w/atty Mark Spund. Govt present by Erika Thomas, AUSA. Deft withdraws plea of not guilty and enters a plea of guilty as charged. (bw) (Entered: 07/16/2003)
07/01/2003  PLEA entered by National Abatement Corporation. Court accepts plea. Guilty: National Abatement Corporation (2) count(s) 1s-3s . (bw) (Entered: 07/16/2003)
07/02/2003  Sentencing held: National Abatement Corporation (2) count(s) 1s-3s. (bw) (Entered: 07/16/2003)
07/02/2003  DISMISSAL of Count(s) on Government Motion as to National Abatement Corporation. Counts Dismissed: National Abatement Corporation (2) count(s) 1. (bw) (Entered: 07/16/2003)
07/08/200315 FILED JUDGMENT in a Criminal Case (S1-03-Cr-44). Defendant's Attorney: Mark E. Spund. Defendant National Abatement Corporation (2) pleaded guilty to count(s) 1s-3s. Count(s) of the underlying indictment are dismissed on the motion of the United States. The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. It is further ordered that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid.; The defendant is hereby placed on a probation for a term of FIVE (5) YEARS. The above drug testing condition (see judgment) is suspended based on the court's determination that the defendant poses a low risk of future substance abuse. Additional Probation Terms: (1) The defendant shall not engage in any activity relating to any or all of the following: 1. Inspection, sampling or analysis for the presence of asbestos. 2. Removal, transportation or disposal of asbestos. 3. Demolition or renovation of buildings. (2) The defendant shall pay the fine and assessment as imposed on the financial penalties page of this judgment.; The defendant shall pay an assessment of $1,200.00 and a fine in the amount of $75,000.00. Payment the total fine and other criminal monetary penalties shall be due as follows: not later than 1-2-04.; Judgment and Commitment issued to U.S. Marshal. ( Signed by Judge John E. Sprizzo ). [ microfilm 7/16/03 3pm ]. Docketed as a judgment #03,1480, on 7/17/03. (bw) Modified on 07/22/2003 (Entered: 07/16/2003)
07/11/200312 Stipulation as to National Abatement C, It Is Hereby Stipulated and Agreed between the parties: 1) pursuant to paragraph B.1 of the plea agreement, dated 6/12/03, a probationary sentence is mandatory. 2) pursuant to paragraph B.2, the parties agreed that, on the facts of this case, a term of five years probation is appropriate. 3) pursuant to paragraph's B.3 through B.5, the parties agreed on the terms and conditions of probation which are appropriate and applicable to this case , and that the Court may enter an order imposing a term of probation as agreed between the parties pursuant to the Plea Agreement, without the parties further appearance in Court. So Ordered. ( Signed by Judge John E. Sprizzo ); (ac) (Entered: 07/11/2003)
08/01/2003  Payment of Fine by National Abatement C in the amount of $25,400.00: Date Received: 8/1/03. (mn) (Entered: 08/01/2003)
09/30/2003  Payment of Fine by National Abatement C in the amount of $50,800.00: Date Received: 9/30/03. (mn) (Entered: 09/30/2003)
10/17/200318 SATISFACTION OF JUDGMENT as to National Abatement C Re: [15-1] judgment order in the amount of Amount $ 76,200; Judgment satisfied on 7/17/03. (ph) (Entered: 10/22/2003)
09/27/200520 PROBATION FORM 35 PETITION as to National Abatement Corporation. Petitioning the Court: Report and Order Terminating Probation / Supervised Release Prior to Original Expiration Date. The Court Orders: Purs. to the above report, it is ordered that the defendant is discharged from Probation and the proceedings in the case be terminatedOrder of the Court. (Signed by Judge John E. Sprizzo on 9/22/05)(pr, ) (Entered: 09/29/2005)