please the court good morning my name is lisa crichton and i represent d n r v a small steel construction company based here in st louis d n r b was convicted in a criminal case in the western district of missouri for a violation of twenty nine u s c six six six it is a violation that congress has the violation that the interview was convicted for is a violation that congress did not intend to create and actually did not create at issue here three point three and controverted point number one the government's charge against d n r b was for a violation of an osha standard that required the existence of personal follow arrest him number two it is  uncontroverted in the evidence that's in the record that the relevant steel worker mr roach was wearing an osha compliant personal fall arrest the system at the time that he fell and died and number three as shown in its order the district court found fast the demonstrate mr roach was wearing a personal follow arrest the system as required by the regulations and yet still found d n r be guilty the basis for the guilty verdict it appears was the court belief that d n r really failed to supervise mr roach and ensure continuous use of the personal safety equipment the heartland issue the heartland legal issue for both appellate is one and two as presented in this case is what whether the regulations that were charged actually require supervision by by an employer the language that the regulation uses  all be protected from a far right that's exactly right here on sol isn't it reasonable to find a violation where the evidence shows that despite the fact they have it the management knows that the fall equipment isn't being used are you protecting them if you know that it's not being used and don't take steps to discipline fire whatever it takes to get them to use it right you know i think it's an excellent  question it goes to the heart of this issue because we have to read these regulations as a whole in looking at the regulations the ones that the interview is charged with actually lay out the requirements where personal fall arrest i'm inus nother section of those regulations it says that their employer shall be required to insure their use and in fact the three cases prove that the government primarily relies on in defending its position all actually are interpreting that other section so we look at the broad case and when we look at the otis elevator case and the turner construction case all of which are cited by the government and all of which deal with does the employer have an obligation to supervise we see that the government we see that in those cases the other standard was cited and the courts in those cases found that the standard had been met so what has happened here is that there are some narrow standards that were created at about what constitutes a personal fall arrested and that's what d n r b was charged with and instead with the court the district court has done is read in the supervisory standards from the other regulation and i think that that is i think i believe based on all the case blah and all of the arguments presented by the government this is never been done before there is no interpretation of the standards at issue consistent with the government's position here you don't you don't think shelve pro tax sort of implies a supervisory duty i do not i think that the the shall protect the language as it is written then leads into a description of the types of equipment that could protect someone and so the shall protect language has to be read in connection with what follows and what follows is are just what follows is descriptions of the type of equipment that would qualify the shopper tech language does not read and has never been interpreted in any court in the country as requiring supervision the the effect of what has happened where the effect of what has happened because of the use the mixing of these regulations both both that  government and the way they approach the case and the district court and in the district court's opinion is that it's no longer clear what the an r v has been found guilty of whether it's when you look at the elements that the energy was charged with when you look at the regulations listed in the information those regulations as i've stated already require that there are is safety equipment present in this case it's uncontroverted that safety equipment was present what is perplexing and  and one of the reasons for this appeal is that the district court then goes on to hold that had there been safety equipment present mr roach would have used that equipment and that is contrary to any of the we believe the facts of the case but more importantly that is not the standard that is at issue in this criminal case the government could have charged the interview with a failure to supervised and then the playing field or the  the heartland of the trial would have been clear but here what has happened and the reason for our issue number two which is the constructive amendment is that d n r be walked into this court case believing that supervise and we know this well wasn't there also an issue about whether or not your client had provided i think they're called chokers the the device you have to have the where the caught that safety device but then you also have to have something to attach it to and you have to have the lanyards and the joker's to make those attachments wasn't there a serious question about whether your client provided false there were brought to the work site and a worker bringing property to the work site is allowed under the osha regulations specifically so the steel rection workers who testify testify that they prefer their own their own land yours and they often provide chokers but separately from that your honor i think it's important to realize that that is a second type of safety equipment that was present the record is very clear and it is uncontroverted that my client provided lifts and that all of the work done by mr roach and his partner on that work site could have been done in those left so there was testimony from from steel workers that not only were the lifts they are not only could work have been but from the time of this fall forward into how the building was completed every one of these local ten workers actually performed those exact activities from the lifts we also introduced a video into evidence  factual finding by the district court that says that fast tracked and not provide the necessary safety they did not provide shockers they were asked for chokers they said they didn't have them now may you may disagree with that but is that a court we have to take that as a quarterly erroneous finding i guess you know we always take it in the light most favorable to the government in criminal cases that they specifically complained about a they didn't provided  any personal any fall protection was her own personal harnesses or you don't we have to accept that as a as a factual finding you know i respectfully i don't believe that that actually is what should have been the factual finding based on uncontroverted evidence in the in the court room there was evidence that d n r be did provide some safety equipment and in addition there was testimony as you reference that some workers on the ferry first day asked about some whether there were safety equipment present and that conversation happen on the first day before any of the steel had been erected from that day forward there is evidence that there were provided by my client on the on the site there were yo yos on the site there were other pieces of safety equipment including these lifts on the site so so i think it is erroneous your honor from the government's own evidence now it is true that there were other pieces of equipment that were provided they talk about other types of stay for the equipment such as static lines or stanch and things like that those things were provided and they weren't required  provided d n r be had a safety plan and a work plan as to how this work was going to be done and those types of pieces of equipment were part of that plan and so that absence of that equipment is not an absence of safety equipment on the site that the issue about the safety equipment really highlights one of the core issues and is what issue to an appeal is about which is the a constructive and memon of this information because what the district court did is look beyond the work site in the work area that mr roach was in and surveyed the entire landscape of this work site as this this court may know based on the record there were two separate work areas with two separate work teams wholly different processes wholly different responsibilities importantly completely different supervisors and what the district court did is mash those together and say because work site to which mr roach was not on may have been lacking some safety equipment i find that there is a generalized safety issue here and therefore i find d n r be guilty the problem with that is it goes back to congress's intent the actual words of the statute the actual requirement in the statute and the reason there have only been i believe somewhere around twenty criminal cases in off if two years of the statute it's because the requirement for a criminal violation as opposed to a civil violation is very specific it is that the government has to prove that the actual violation was done willfully and what the district court did instead of looking at the actual violations that the government chose to charge and in deciding whether that activity was willful what the court district court did as he surveyed the entire landscape of this enormous work area and looked at this second team and when you read the court's opinion you will see that there are numerous references to someone some call mr gosse importantly mr abbas had nothing to do with the with the issue that was actually charged at best whatever happened with mr goss and his team perhaps would have been for a for b evidence although it was not noticed up but it had nothing to do with the specific validation that was charged and so what we have observed and what we thier is that this court has seen in the district court and what we fear is that the district court error in looking at the generalized workplace finding willfulness somewhere within the generalized workplace and then finding d guilty of the specific violation of the government charge is inappropriate and that if that is allowed to continue it will actually change the way this law is a force throughout the country because then please the court my name is rachel parsons i'm a senior trial attorney with u s department of labor i'm also a special united states assistant for this case and i'm here on behalf of the united states government  generalized failure to provide a work safe workplace they were convicted of violating two very specific standards requiring fall protection equipment the standards don't say provide  standard say shall be protected in accordance with paragraph a of the section from fall hazards section a set also says shall be protected from fall hazards and list the means by which the employees can be protected counsel also mentioned that she said this is a never been decide in this manner i think that isn't correct this court has previously decided dakota underground in the dakota underground case it's very similar the standard dakota underground w trenching standard but were choir that employees in an excavation shall be protected from cave ins in that case the equipment was present on site there were trench boxes there were ladders the foreman failed to enforce the of those in fact one of the trench boxes was in the trench the employee mr moran worked outside of the trench box he also had no access to the latter because the ladder was up on the side of the trench and this court in that case found that in the code underground case the court was very clear that the dakota underground have the duty to enforce the use of the equipment it's not enough to merely have it under a shall be protected standard terms would you agree that even if we were to accept counsel's argument that the language of the regulation does not have the supervision requirement that there's a difference between supervision in failure to enforce yes the risks and in this steel landing the steel bundles of decking he said he was underneath us watching and when asked what he was doing he said watching what i can said plenty of opportunity to enforce the use of our protection  it wasn't provided we would dispute that mr roach had all the equipment necessary mr roach and mr oden were the two connectors working at above thirty six feet on these steel beams that are nine inches and five inches wide doesn't allow you to move when you wrap the choker around the beam then you're limited by how far you can go by the cross bracing the employees who testified testified that with approximately four to six feet these bundles of decking were twenty six feet long three feet wide and weighed almost fifteen to two thousand pounds and the employees were guiding them on to the steel joist additionally load which was a finding judge case made as well so so if he had a harness and a choker what equipment wasn't provided you cannot these that gentleman were required to land the decking they had to move along the beam the but isn't that more of an argument of how the individual workers were doing their job as opposed to what equipment was provided for there would be times when they would be even if they used a choker and constantly connected and reconnected there would still be a number of times when they were not protected from fall equipment there is no no way to move along the beam with a it's not possible so what should there provide you know there are a number of options they can provide one of them which work or testified was used on it a similar project across the street is called the static line there  are stand stanton's or connections made at each end of the beam a heavy cable is attached to each of those and then the ironworker merely clips the lane you're on he can move all the way along the bean you can move in different directions it's a lot more flexibility there's another piece of equipment called the beamer which is kind of a metal clamp it's clamped on to the top of the truss it when pressure is applied such as a fall pressure or if they move too quickly i suppose that beamer clamps to the truss and doesn't allow any further movement and would not allow them to fall  princeton made a significant test reference to the fact that there were lifts the employees testified these lifts were not the appropriate means for the job they testified that the decking as opposed to fifteen thousand pounds of decking additionally there was some testimony by other employees using the lift to work on the bottom of the  reason that these gentlemen couldn't have been up above the studio if the other gentleman couldn't properly reach this deal underneath or what to what did was it mr odum was he the one who was yes not there so what did he testify as to why they had to get off the west he said that because the nature of swinging the bundles and they often came in turned or not in the proper location there's a standard an osha standard and a industry standard that they have to be placed carefully so that the weight of the the bundle is properly supported along the entire length so that if someone else should step on it they won't fall through it won't tip over he said to do that he had to be young one in and and mr roach had to be on the other end of the excuse me the bundle how long  quote and the information was very specific in charging nine hundred twenty six seven sixty a one and b one there was no generalized  charge there was no charge under section five a one of the act which is when there was no specific standard this was a specific standard they required specific action there's a recent case that we forwarded in that case the osha standard required employees of walking working surfaces shall be protected from falling through holes including skylights more than six feet above lower levels by a personal phone rest system covers are guardrail in that case the foreman merely told the employees to be safe even though they had equipment to personal followers quitman they didn't use it and the court found it was the duty of the employer to enforce the protection additionally caught in the court in l a myers brock vs l e myers found that congress specifically imposed a responsibility to assure compliance with osha standards on the employer the statutory stating the statutory duty to assure compliance with the standards issued under the act includes the obligation to prevent non hazardous non compliant conduct by the employees in this case the employees didn't have adequate anchorage make sure that all of the employees were protected from falling hazards in fact they were they not only consciously disregarded these standards they were disregarded other folk protection standards on this work site they were plainly indifferent to the employees safety description described this as two separate work sites this was one large open air warehouse the warehouse was three hundred thousand feet long in square footage however they were working on the first sections you could look up and see virtually every part of the work site the employees testified they could see each other when they were performing their own work they could look up and see other employees equipment and had it been available he would have used it and not fall into a step but for d n r because failure to comply with the standards to make sure our choice were protected from fall hazards and its indifference to false safety and eric roach would not have died he then found it was the legal cost saving that was a foreseeable natural result that allowing an employee to work thirty six feet above a concrete floor without offer to action could result in his death provided the equipment he would have used it is a reasonable assumption given that he wasn't using the equipment he had i think it was because there was testimony by mr oden that they asked at least twice on the first day for safety equipment to use and for protection there were test testimony by six other iron workers that they searched for fall protection equipment they asked various foreman for fall protection equipment  r b would like to separate out all of their foremen one from another but the testimony by their management official was that all the four men were responsible for safety on the work site and walk were capable of responding to and providing a quick and when to ask and when when necessary and about the ak and dakota underground cases willful was defined as an act on voluntarily with either an intentional disregard not only consciously disregarded the requirements of the osha standards seven sixty one and seven sixty a one there was evidence they were plainly indifferent to ensuring the safety of iron workers in general and specifically  that requires all employees to tie off above six feet not above thirty feet but above six feet they did not follow that additionally d n r because foreman were clearly in charge of safety their management officials and their their safety manual which was exhibit twenty nine specifically addressed the responsibilities of the foreman these four men were  well aware of osha citations they signed documents stating that they were trained in osha fall protection they were in fact trained on the requirements of having an anchorage capable of withstanding five thousand feet of vertical pull and that would be exhibits twenty two to twenty four the company policy in their safety manual require the foreman to inspect the equipment used by their iron workers and to provide any necessary mr weakened the foreman in charge mr roach admitted he did nothing to inspect the equipment judge case stated he carefully reviewed all of the information all of the evidence in his findings and found that mr weakened and mr goss the foreman for d n r b and the representatives of arco were not persuasive or credible however he found the n r b choose to ignore the testimony of the iron workers which judged case from particularly credible there was no woman constructive amendment of the information or any baryons the government carefully information and offering its evidence i would direct you to paragraphs to no eleven and twelve which specifically set forth that d n r be failed to protect air quotes from paul hazard by failing to provide given july fifteenth well before the trial the subsequent violation which by the way involved the exact same foreman mr weakens who was the foreman supervising your roche there was a subsequent violation of the st louis works i in may following the the fall the previous july counsel was notified of those in the pretrial brief excuse me all of the documents supporting the prior and subsequent violations were furnished into january twenty sixth and that counsel admitted at trial that they were not surprised by the evidence or by the documents as to the the alleged  evidence related to the multiple fall protection standards occurring at the same time this was intrinsic to the willfulness of the company and their conscious disregard not only to ward erik roach but to all the iron workers on the site finally this was a court case judge case was well capable and did there was no showing of actual prejudice judge cases did not make any improper use of this evidence and exhausted the findings of fact the factors in the financial condition under thirty five seventy two in fact he made quite a record and referred to this subpoenaed information that showed that money was being deposited into an arby's account through july two thousand and seventeen a company can't merely dissolve to avoid responsibility in this case the company dissolved well after the information was filed but the evidence was that they had paid over three hundred thirty five thousand dollars in legal fees after the dissolution of the company in january thirty twenty sixteen and packed up through july twenty sevent twenty up to ten thousand dollars a month paying the attorneys this money appeared to have been transferred among various corporate entities owned by doug debbie and clayton bragg who mr thousand dollars in attorney's fees after their thought they can find some money to pay the twenty five thousand dollars and quarterly installments this doesn't seem to be a question of do you know our best financial condition but it's more a question of the willingness to pay clearly there is money injected into this corporation on a regular basis if the court has no further questions the government asked that the government the judgment be affirmed and the sentence of five let me begin with the sentencing issue judge malloy that you brought up that court did not find the d n a of the had any ability to pay the idea that has just been suggested that d n r be was dissolved in an effort to avoid inability to pay there is no basis for that everything about the an arby's business was transparent to the government throughout the investigation and the time leading up to the trial and in fact we filed a notice of dissolution and had a conversation with the government work dried up and you know we will stand by our briefing on the sentencing argument except i do want to say this there is judge well he has pointed out there it was no finding that dinner be had any money available to it the idea that we can in some way pierce that corporation go beyond that corporation and somehow then look to businesses owned by the owner's wife again you know as we told the district court we see no precedent for that and that would be inappropriate i do want to turn back for a couple moments to the arguments that were made by the government just now because i've heard something that i've never heard before in this case in response to one of judgment lawyers question the government now says that the equipment that d n r be provided was inadequate and that to be adequate there should have been stanch unwinds or beamers or those sorts of things that has never been the government's argument prior to today and i am concerned that that is now the argument to defend this because the regulations are clear that the employer gets to provide the types of  safety opportunities of type of equipment that are to be available now could there be types of equipment that would make the steel connectors work easier yes and if that is the standard then perhaps the government would be right if the idea is we have to provide the most efficient or the easiest equipment for the worker to do their job then that is a wholly different question and we would have to explore that that's not what the regulations provide here the evidence supported the fact that the equipment provided both the lanyard that they lay and the choker where they are the lifts where they are and contrary to what the government has said the steel connectors who came to work on this very work site the day after the accident occurred used those exact lifts to land the very same type of decking so it could be done both as shown by our video and as demonstrated by the testimony of people who said that it was done by people on network site using that same type of equipment so the other thing that i want to bring up about the equipment is the government says that anchorage point was insufficient that was not a finding by the district court there was some discussion of that in the record but the district court did not find that the anchorage point itself did not have enough weight or could not have supported enough weight the government has mentioned two cases and i want to turn to those briefly one is the dakota underground case and i think that that case underscores the in our biggest point here ok go back to achieve just said you said that the first all options that could have been you so i don't much ernest and we see the first time a suburb unmatched thank you your honor i appreciate they're trying to clarify that those items had been mentioned at trial it had never been mentioned prior to today that what had been provided is inappropriate what the government did is provided other alternatives that the company could have given the workers and that there was testimony and in the record about that there had never been a statement prior to today that the use of the lanyards and the choker was inappropriate and that's what i have for now today understood the government to say that two cases brought up by the government dakota underground that case exemplifies exactly why the it was inappropriate to find d n r be guilty in that case the court found that the equipment had not been provided it was not accessible at the time the workers were working here there were two types of fall protection accessible to the workers at the very moment that this incident occurred second the brought case that case actually again was interpret ing a standard that requires an employer to enforce the safety the use of safety equipment that case is in opposite from this one here we were charged with the failure to have the safety equipment as required in the broad case the company was charged with the site with the regulation that required an employer to require the use of safety equipment so those are in opposite end exemplifies why the government should have perhaps charge this case differently i also want to reference for a moment and that the employees could see one another in the conversations about the other work site as the government has pointed out it was a very large work site and that there was testimony that at times employees from the second work area that had nothing to do with mr roach could look over and see individuals on mr roaches work area but what's important is when you look at this trial of the ten were iron workers who testified only four had any direct knowledge of what happened with mr roach the other six testified about being completely separate from mr roach they may have asked for may have had different safety needs that had no bearing on what happened to mr roach and so again i think that this confluence of these two areas and sort of the merging of everything that happened on that work site demonstrates that the verdict was wrong and that there was a constructive amendment of the information thank you honors while the court appreciate your arguments today in your briefing case will be submitted decided as soon as we can