with an appropriate instruction. (/d.) Rather than pursuing a mistrial, both Myers and the
government assisted the court in drafting an instruction to be read to the jury. (/d. at 55-58.) The
parties agreed to a curative instruction to be read to the jury. (/d. at 57-58.) Myers’ counsel agreed
that it would be a proper cure, stating: “If that’s the instruction, I would say that’s the proper cure,
Judge.” (ld. at 58.)

The curative instruction was read immediately after the sidebar.’ There was no subsequent
objection, and the government continued its opening statement. At the end of the opening
statements, outside the presence of the jury, the court inquired about the curative instruction:

Court: Let me ask counsel for the government and the defense, is there any issue

now remaining regarding the earlier controversy and the possible motion for a

mistrial?

Myers’ counsel: Based upon the Court’s curative instruction there is no motion from
the defense at this time.

(id. at 66.)
Myers now argues that it is entitled to a new trial, attempting to turn the court’s error in

reading the punishment portion of the statute into a prosecutorial misconduct issue. (Def.’s Mot. at

7 The agreed curative instruction stated:

Ladies and gentleman, this disruption, unfortunately, I have to take responsibility for that
myself, And the colloquy that occurred between the lawyers, the objections and so on that
you heard that took place, are as a result of the fact that when I was reading to you earlier in
the instructions the description of the statute under which the defendant is charged, a certain
portion of it was not correct as applies to a corporation. Therefore, I am instructing you to
put that completely out of your mind. And I am reminding you that in connection with this
case your only duty is to determine whether the government proves that the crime charged
in the indictment is proof beyond a reasonable doubt. You are not in any way to consider the
issue of punishment or sentencing in any respect and disregard anything that I may have said
regarding punishment or sentencing altogether. Put that out of your mind.

(Tr. May 5, 2005 a.m. at 59-60.)


Mot. at 4.) In this case, Myers’ underlying activity — maintenance of electrical power lines — is not
itself illegal. However, there is no reason why conscious avoidance cannot lead to an inference of
knowledge in the context of enforcement of OSHA, as it can in the enforcement of other criminal
statutes. In Ladish Malting, the Seventh Circuit suggested the appropriateness of an ostrich
instruction in a criminal OSHA case.”

In this case there was evidence that one or more Myers’ employees either actually knew that
they were not complying with OSHA regulations or deliberately ignored facts and circumstances
showing that they had not complied.

Among the regulations that the jury found Myers had violated were regulations requiring
Myers to determine existing conditions on the work site before starting work on or near electrical

lines, and to conduct at least one pre-job briefing and additional briefings if the work changed.’ The

2 Myers correctly observes that an ostrich instruction was not requested in the Ladish
Malting case. However, in that case the Seventh Circuit interpreted OSHA’s willfulness requirement
as a synonym for knowing, and continued, “Knowledge may be proved by showing deliberate
indifference to the facts or the law, . . . or by showing awareness of a significant risk coupled with
steps to avoid additional information, as with an ostrich instruction ....” 135 F.3d at 490.

3 29 C.F.R. § 1910.269(a)(3) provides:

Existing conditions related to the safety of the work to be performed shall be determined
before work on or near electric lines or equipment is started. Such conditions include, but
are not limited to, the nominal voltages of lines and equipment, the maximum switching
transient voltages, the presence of hazardous induced voltages, the presence and condition
of protective grounds and equipment grounding conductors, the condition of poles,
environmental conditions relative to safety, and the locations of circuits and equipment,
including power and communication lines and fire protective signaling circuits.

29 CFR. § 1910.269(c)(1) provides:

The employer shall ensure that the employee in charge conducts a job briefing with the
employees involved before they start each job. The briefing shall cover at least the following
subjects: hazards associated with the job, work procedures involved, special precautions,

5


such knowledge to a corporation. However, where an agent obtains knowledge while

acting outside the scope of his agency, the standard presumption is unfounded, and

the court will not impute the agent’s knowledge to the corporation.

US. v. One Parcel of Land, 965 F.2d 311, 316 (7th Cir. 1992).

In the evidence discussed by Myers, the Myers’ employees working on the line in 1970 were
working within the scope of their employment in a matter that Myers had entrusted to them. The
condition of that line was information that would affect the way they performed that work. Likewise,
the information about the existing conditions acquired by other Myers’ employees as they were
working for Myers at the site where Lane was killed was information that could be attributed to
Myers.

The corporate knowledge instruction also instructed the jury about how long corporate
knowledge is presumed to remain with the corporation. Knowledge imputed to the corporation
remains with the corporation even if the employee is no longer employed by the corporation, where
the facts are of continuing importance to the business of the corporation. Acme Precision Prod., Inc.,
v. American Alloys Corp., 422 F.2d 1395, 1398 (8th Cir. 1970); Caterpillar Inc. v. OSHRC, 122 F.3d
437, 440 (7th Cir. 1997).

Thus, Myers’ motion for a new trial on this ground is denied.

CONCLUSION
For the foregoing reasons, Myers’ motion for a new trial is denied.

IT IS SO ORDERED.

Geraldine Soat Brown
United States Magistrate Judge
November 2, 2005

18


8, 12.) That evidence, Myers argues, would have rebutted the government’s suggestion, supported
by the ComEd map, that energized static wires are not unusual. (/d.) Myers cites to two pieces of
evidence.

First, Myers sought to admit into evidence the document attached as Exhibit 2 to its motion
for anew trial. (Tr. May 17, 2005, p.m. at 2-6.) That document is amemorandum dated September
24, 1979 by an OSHA hearing officer regarding an OSHA investigation following the death of a
ComEd employee who was killed while working on an energized static wire. Although Myers
characterizes the document as an agreement between OSHA and ComEd, it is in facta memorandum
by the OSHA hearing officer apparently summarizing certain interviews with company and union
officials, including a closing conference. The document includes the following:

During the closing conference, stated that all cited items were adequately abated.

Recommended the use of warning signs on the towers with energized static lines, not

for the employee’s protection because the current procedures adequately covers them,

but primarily for contractors that may be hired. Mr. Olney stated they did not want

the employees to depend on signs. As for contractors, a company foreman would be

detailed to accompany the contractors on any job. My only reply was they be sure

to follow their procedures and that their foreman be aware of the procedures

established. Stated that if the penalties had been paid the case may be closed when

I return and report.

(Def.’s Mot. Ex. 2 at 2.)

Myers argues that the document reflects an agreement between OSHA and ComEd “that
ComEd would be required to implement procedures to warn workers and third parties of [the hazard
of energized static lines].” (Def.’s Mot. at 8.) However, there is no executed agreement, order or
directive. The author does not characterize the activity as an agreement or requirement, noting that

his “only reply” was that ComEd should follow its procedures, and then closing the case upon the

payment of penalties.

10


West admitted being aware of OSHA regulations requiring a pre-job briefing and determining
existing conditions. The existence of an insulator was notice that the static line on the west side was
energized. The insulator was visible from the ground, but West did not look at the west tower before
climbing the tower to start the work, and thus failed to determine the existing condition of the wire
on the west side before starting the work. Because he had not looked at the work order, he was
expecting to work only on the east side. When he ordered Blake Lane to the west side, he did not
hold an additional pre-job meeting to see if the safety conditions of the work had changed. From that
evidence, the jury could properly conclude that West either actually knew that he had not complied
with the OSHA regulations or that he was deliberately avoiding knowing that he did not comply with
them.

The ostrich instruction was also justified by evidence relating to the Plainfield incident in
which Wade Cumpston was killed. The fact that Myers was acquitted on that Count confirms that
the jury was not confused by the instruction into lowering the government’s burden of proof.
Michael Young, a lineman at the Plainfield site, testified that some of Myers’ grounding equipment
at the Plainfield site had the wrong clamp end for working on a tower, and that grounding cables
were too short, making the space for working smaller. He claimed that those problems had been
discussed with Clifton Gooch, Myers’ foreman at the Plainfield site. However, during his testimony.
Gooch wavered about whether he had actual knowledge of hazardous conditions at the Plainfield
site, at one point testifying that he had no concerns about the safety of his crew before the accident
and that the equipment was proper, but also testifying that he knew the crew was using 2-aught

grounds when they should have had 4-aught grounds. That evidence supported an argument that


evidence in connection with the Mt. Prospect incident in which Blake Lane died (for which Myers
was found guilty) showed that Lane, a new apprentice, was killed when he came in contact with the
energized static line on the west side of a transmission tower. After working without incident on a
“static” line on the east side of the tower, Lane was directed by Darrin West, Myers’ foreman, to
move over to the west side to check on the line there. The west line was energized and not grounded,
and Lane was killed. There was an insulator on the tower in proximity to the west line, which was
an indication that the static line on that side was energized and not grounded to the tower. There was
evidence that the insulator was large enough to be visible from the ground. Darrin West testified that
this was the first time he had worked in Chicago. He testified that he had had no training about
working in a major metropolitan area. He admitted that he received a work order before starting the
work, and that he did not read it. He used the work order only to obtain the materials needed for the
job, and did not sce that it specified that work was to be done on both sides of the tower. He
admitted that he gave Lane no information about the west side of the tower, and did not determine
that the line on the west side was energized. West and Lane had climbed the tower to work on the
east side, and West was in the process of lowering tools down when he ordered Lane over to the west
side, West did not see the insulator from his location. He also admitted that, under OSHA

regulations, a line is to be presumed energized, unless demonstrated not to be.

energy source controls, and personal protective equipment requirements.

(1) Number of briefings. If the work or operations to be performed during the work day or
shift are repetitive and similar, at least one job briefing shall be conducted before the start
of the first job of each day or shift. Additional job briefings shal! be held if significant
changes, which might affect the safety of the employees, occur during the course of the work.

6


Commonwealth Edison Company (“ComEd”) showing the location of transmission towers that, like
the Mt. Prospect tower involved in Lane’s death, had so-called “static” lines that were energized to
provide power for lighting, primarily around airports. Myers argues that the map could not have been
relevant because Myers did not know about it.

Myers’ work on the Mt. Prospect tower was pursuant to a “blanket” contract with ComEd
for overhead transmission facility maintenance as and where required, anywhere on ComEd’s
property from December 1999 until May 1, 2000. (Govt. Ex. 25 at T194, T200, T233.) The contract
stated that Myers had been asked to bid on the work in part because Myers was experienced in
handling ComEd projects. (/d. atT231.) The government presented evidence that the map had been
prepared in 1997, prior to Lane’s death, and was available to ComEd contractors like Myers. Under
the applicable OSHA regulations, it was Myers’ responsibility to determine existing conditions on
the work site before beginning work. The map was a piece of information about existing conditions
that was available to Myers, an experienced contractor that had bid on and obtained a contract to do
maintenance work on any part of ComEd’s transmission system. There was no evidence that Myers
had requested the map and been refused. The map also illustrated that in 1997 more than a few of
the towers on which Myers had contracted to work had energized lines. Thus, the map met the

standard of relevance under Fed. R. Evid. 401.

B. Myers’ argument that exculpatory evidence was excluded
Myers claims that it was prejudiced by the exclusion of evidence supporting its theory that
an energized static wire is a “unique hazard” created by ComEd, and therefore, Myers’ failure to

discover that hazard on its own could not be a violation of the OSHA regulations. (Def.’s Mot. at


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
No. 02 CR 1205

v.

THE L.E. MYERS COMPANY,

)
)
)
) Magistrate Judge Geraldine Soat Brown
)
Defendant. )

MEMORANDUM OPINION AND ORDER
On May 19, 2005, a jury found defendant the L.E. Myers Company (“Myers”) guilty on one
count and not guilty on another count of the Indictment. [Dkt 121.] On June 20, 2005, Myers
moved pursuant to Fed. R. Crim. P. 33 for a new trial. (Def.’s Mot. for New Trial). [Dkt !25.] For

the reasons set our herein, and after careful consideration of the issues and the evidence at trial,

Myers’ motion for a new trial is denied.

BACKGROUND
This case arose from two incidents that occurred while Myers was engaged in the repair and
maintenance of high voltage power transmission lines. The indictment charged that Myers violated
certain regulations promulgated by the Secretary of Labor pursuant to the Occupational Safety and
Health Act (“OSHA”), causing the deaths by electrocution of Blake Lane and Wade Cumpston, two
Myers employees. Blake Lane died on December 28, 1999 while working on a tower in Mt.
Prospect, Illinois. Wade Cumpston died on March 25, 2000 while working on a tower in Plainfield,

Illinois. The jury found Myers guilty of willfully violating five regulations promulgated pursuant to


motion states that it was able to locate Mr. Willey upon conducting further investigation without
process. (Def.’s Mot. at 11.)

The admission of that evidence would not have changed the outcome of the case. In fact, had
evidence of the 1979 fatality been admitted, the government would likely have argued that the death
of an employee working on ComEd’s energized static lines would have been known in the industry
among contractors like Myers who worked on ComEd lines, and should have made Myers, who got
the 1999 ComEd contract by representing that it was experienced in working on ComEd lines, aware
of the hazard. See U.S. v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004) (a defendant is entitled to anew
trial based on an erroneous evidentiary ruling only if the error had “a substantial and injurious effect
or influence on the jury’s verdict”) (quotation omitted). If the evidence against a defendant is
otherwise overwhelming, any evidentiary error is deemed harmless and cannot constitute the basis
for a new trial. /d.

Myers had an obligation to determine the existing condition in 1999 of the site on which its
employees, including Blake Lane, were to work. Whether or not twenty years earlier ComEd had
agreed to procedures regarding energized lines does not relieve Myers of that responsibility. The
evidence showed that Darrin West climbed the tower to begin the work without even looking at the
west side of the tower, where the presence of the insulator would have alerted him to the risk of an
energized un-grounded line. The evidence showed that when West ordered Blake Lane to move to
the west side of the tower, where West had not expected to work because he had not read the work
order, he did not hold another pre-job meeting to determine if there was increased risk. There was
no evidence that Myers was relying on any of the procedures discussed in Willey’s affidavit.

Myers’ motion for a new trial on this ground is denied.

12


At trial, Myers suggested that the document was not hearsay because it is an admission by
OSHA that energized static lines are hazardous. (Tr. May 17, 2005 p.m. at 4.) However,
“government agents are not party-opponents for purposes of Rule 801(d)(2).” U.S. v. Arroyo, 406
F.3d 881, 888 (7th Cir. 2005); see also U.S. v. Prevatte, 16 F.3d 767, 779 n. 9 (7th Cir. 1994)
(stating that no individual can bind the sovereign). Furthermore, it was never disputed that energized
lines are hazardous. The issue was whether Myers willfully failed to determine the existence of that
hazard.

Second, Myers argues that it was precluded from obtaining information relevant to the
defense because the court quashed a subpoena that Myers served upon ComEd during the course of
the trial. Myers cites specifically to an affidavit by a former ComEd employee and union official,
Norman Willey, attached to its motion for anew trial.> In that affidavit, Willey states that following
the 1979 fatality, ComEd implemented measures to prevent similar accidents in the future,
specifically, creating a color-coded map, providing a map to its foreman in the field, and having a
ComEd foreman accompany any contractor and its crews working near energized static wires. (Def.’s
Mot. Ex. 37.) Willey’s affidavit does not say how long ComEd continued those procedures.

Myers did not learn of the 1979 fatality as a result of the trial in this case, because there was
no evidence regarding that event presented at trial. Although Myers states that it did not serve its
subpoenas on OSHA or ComEd until Government Exhibit 23 was admitted, Myers was apparently

aware of the 1979 fatality without the use of any trial subpoenas. See Def.’s Mot. at 9-10. Myers’

5 Myers also speculates that there might be “perhaps additional direct evidence,” but does
not suggest what that additional evidence might be. (Def.’s Mot. at | 1.)

11


Gooch either knew, or deliberately avoided knowing, that the work at the Plainfield site was not
properly grounded in compliance with OSHA regulations.

Finally, even if giving an ostrich instruction was error, that error was harmless. A defendant
is entitled to a new trial based on an erroneous jury instruction if the instruction did not adequately
state the law and the error was prejudicial to the defendant because the jury was likely to be confused
or misled. Boyd v. Illinois State Police, 384 F.3d 888, 894 (7th Cir. 2004). There was ample
evidence that Myers’ employees, including Darin West, knew that they were violating OSHA
regulations, including the three other regulations that the jury found Myers had violated as well as
the two regulations discussed in detail above, in connection with the work on the Mt. Prospect tower.

Meyers’ motion for a new trial on this basis is denied.

I. “Energized Static Wire” Evidence
Myers argues that the court erroneously admitted evidence favoring the government and
erroneously excluded evidence favoring Myers that would have been used to rebut the government’s

evidence. (Def.’s Mot. at 7-13.)

A. Government Exhibit 23

Myers objected to the admission of Government Exhibit 23, a map of northern Illinois by

+ Myers was charged in Count II with violating 29 C.F.R. § 1910.269(n)(3), which provides,
in relevant part:

Equipotential Zone. Temporary protective grounds shall be placed at such locations and
arranged in such a manner as to prevent each employee from being exposed to hazardous
differences in electrical potential.


merely negligent in discovering the truth. Accordingly, there was no risk of diluting the standard
of “willfulness” to a lesser standard of constructive knowledge, which was the error leading to
reversal in U.S. v. Ladish Malting Co., 135 F.3d 484, 490, 491 (7th Cir. 1998).

Myers did not deny that it had actual knowledge of the OSHA regulations and standards.
However, it denied that it had actual knowledge that its actions did not comply with those standards
and regulations. An ostrich instruction informs the jury that actual knowledge and deliberate
avoidance of knowledge are the same thing. U.S. v. Inglese, 282 F.3d 528, 537 (7th Cir. 2002). An
ostrich instruction is appropriately given when: (1) the defendant claims a lack of guilty knowledge;
and (2) the facts and evidence support an inference of deliberate ignorance. U.S. v. Fallon, 348 F.3d
248, 253 (7th Cir. 2003). Deliberate ignorance or avoidance “may be established by overt, physical
acts as well as by ‘purely psychological avoidance, a cutting off of one’s normal curiosity by an
effort of will.” U.S. v. Craig, 178 F.3d 891, 896 (7th Cir. 1999) (quotation omitted). Deliberate
ignorance may also be established by the failure to ask questions in a situation where suspicious
circumstances might warrant questions. See U.S. v. Wilson, 134 F.3d 855, 868 (7th Cir. 1998).

Myers argues that the ostrich instruction is designed for situations where there is some “on-
going criminal venture” as to which the defendant deliberately shut his eyes, citing U.S. v.
Giovannetti, 919 F.2d 1223 (7" Cir, 1990) (illegal gambling enterprise); U.S. v. Caliendo, 910 F.2d
429 (7th Cir. 1990) (prostitution ring); U.S. v. Jaffe, 387 F.3d 677, 681 (7th Cir. 2004) (scheme to
defraud mortgage lender); U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003) (conspiracy to distribute
drugs); U.S. v. Trigg, 119 F.3d 493, 504 (7th Cir. 1997) (conspiracy to sell stolen merchandise); U.S.
v, Draves, 103 F.3d 1328, 1333 (7th Cir. 1997) (aiding and abetting the use of fraudulently obtained

credit cards); and U.S. v. Nobles, 69 F.3d 172, 185 (7th Cir. 1995) (possession of drugs). (Def.’s


13-19.) That is not the case. The transcripts do not support Myers’ argument that the government
improperly referred to punishment during its opening statements. Likewise, Myers is not correct in
arguing that the court’s willingness to consider a mistrial was based on prosecutorial misconduct
during opening statement. The court’s consideration ofa mistrial was based on the court’s own error
in reading the statute, particularly in light of Myers’ concern that the amount of the fine read to the
jury understated Myers’ potential punishment. (Tr. May 5, 2005 a.m. at 54.)

In a criminal case, “the practice of informing juries about the sentencing consequences of
their verdicts is strongly disfavored,” and “courts should withhold information about punishment
from the jury because the jury’s role is typically restricted to deciding whether the defendant is guilty
of the crime charged.” Aliwoli v. Carter,225 F.3d 826, 830 (7th Cir. 2000) (quotations and citations
omitted). However, if an inappropriate comment is made in the presence of the jury, the court must
determine whether the comment caused sufficient prejudice so as to deprive the defendant of due
process. Id.

Here, the parties assisted in crafting a curative instruction that was immediately read to the
jury. See U.S. v. Robbins, 197 F.3d 829, 836 (7th Cir. 1999) (errors that are the subject of curative
instructions are presumed harmless). Myers agreed that the instruction resolved the problem. There
is no basis to believe that this error, which occurred on the first of seven days of testimony and was
dealt with promptly, deprived Myers of a fair trial.

Myers’ motion for a new trial on this basis is denied.

IV. Corporate Knowledge Instruction

Myers argues that the court erred in instructing the jury that the knowledge obtained by an

15


(Def.’s Mot. at 22.)*

As discussed above, a defendant is entitled to a new trial if the instruction did not adequately
state the law and the error was prejudicial to the defendant because the jury was likely to be confused
or misled. Boyd, 384 F.3d at 894. All of the instructions must be read together to determine if the
jury was properly instructed. U.S. v. Smith, 415 F.3d 682, 688, 689 (7th Cir. 2005).

Myers cites Juarez v. Ameritech Mobile Comm., Inc., 957 F.2d 317, 321 (7th Cir. 1992), a
Title VII sexual harassment case, to support its contention that knowledge is imputed to a
corporation only if the agent had a duty to speak with respect to the specific item of knowledge.
(Def.’s Mot. at 20.)° In that case, the knowledge of a supervisor in the accounts payable department
was not imputed to the company because, although the supervisor was technically in a managerial
position, she was not part of the Human Relations Department and did not supervise the employee
accused of harassment. Juarez, 957 F.2d at 321. Thus, the supervisor’s knowledge did not concern
a matter within the scope of her authority. Jd.

Where a matter is within the scope of employment or agency, the law presumes that the
employee will report the knowledge to the corporate principal:

To distinguish knowledge belonging exclusively to an agent from knowledge

belonging to the corporate principal, courts rely on certain presumptions. Where a

corporate agent obtains knowledge while acting in the scope of his agency, he
presumably reports that knowledge to his corporate principal so the court imputes

5 Myers subsequently acknowledged that “[t]here is no basis to believe that the jury’s verdict
was a result of that isolated piece of evidence.” (Def.’s Mot. Based on Newly-Discovered OSHA
Evidence at 8 n. 1.) [Dkt 132.]

° Myers also cites Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir. 1994), also
involving a sexual harassment claim, but Doe simply cites the Juarez decision. As the opinion
states, the plaintiff in Doe did not establish a sufficient record regarding which agents of the
employer had received what knowledge. Jd. at 447-48.

17


miscarriage of justice has occurred, the judge has the power to set the verdict aside. Morales, 902

F.2d at 605.

I. Conscious Avoidance Instruction

Myers argues that the court erred in giving the conscious avoidance or “ostrich” instruction
to the jury at the government’s request and over Myers’ objection. Myers asserts that, given the
nature of the evidence at trial regarding the issues of knowledge and willfulness, the giving of the
ostrich instruction cannot be said to be harmless and warrants granting a new trial. (Def.’s Mot. at
6.)

The jury was instructed that, in order to find Myers guilty, it must find that Myers “willfully”
violated OSHA. (Jury Instructions Given at 14, 15.) [Dkt 112.] It was also instructed that:

A violation of an OSHA regulation or safety standard is willful ifthe employer has

actual knowledge that its actions did not comply with the regulation or standard, and

the employer intentionally disregarded the requirements of the regulation or standard

or was deliberately indifferent to those requirements. The employer need not have

acted maliciously or specifically intended to harm its employees.
(Id. at 26, emphasis added.) In addition, the jury was given the “ostrich” instruction based on
Seventh Circuit Pattern Criminal Jury Instruction No. 4.06:

You may infer knowledge from a combination of suspicion and indifference to the

truth. If you find that a person had a strong suspicion that things were not what they

seemed or that someone had withheld some important facts, yet shut his eyes for fear

of what he would learn, you may conclude that he acted knowingly, as | have used

that word. You may not conclude that the person had knowledge if he was merely

negligent in not discovering the truth.

(Id. at 27.)
Thus, the jury was instructed that guilt required actual knowledge. In addition, as part of the

ostrich instruction, the jury was instructed that it could not find Myers had knowledge if Myers was


OSHA, causing Blake Lane’s death, but found Myers not guilty with respect to Wade Cumpston’s
death.'

In its motion, Myers raises four arguments for a new trial: (1) that the court erred in giving
the conscious avoidance or “ostrich” instruction; (2) that the court’s admission (for the government)
and exclusion (for Myers) of “energized static wire” evidence was error; (3) that improper references
to punishment require a new trial; and (4) that the court erred in its instruction regarding “corporate

knowledge.”

DISCUSSION

Fed. R. Crim. P. 33(a) provides in relevant part: “Upon the defendant’s motion, the court may
vacate any judgment and grant a new trial if the interest of justice so requires.” The district court
has broad discretion in deciding whether to grant a new trial. U.S. v. Reed, 875 F.2d 107, 113 (7th
Cir. 1989); U.S. v. Allied Asphalt Paving Co., 451 F. Supp. 804, 816 (N.D. Ill. 1978). A new trial
may be granted when required by the interests of justice, which has been interpreted to mean that
substantial rights of the defendant have been jeopardized by errors or omissions during trial. U.S.
v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989); see also U.S. v. Eberhart, 388 F.3d 1043, 1048 (7th
Cir. 2004). “A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule
33 motion is not to be granted lightly.” U.S. v. Morales, 902 F.2d 604, 605 (7th Cir. 1990); see also

Eberhart, 388 F.3d at 1048. However, if the judge believes there is a serious danger that a

' Specifically, Myers was found guilty of violating the following regulations: (1) 29 C.F.R.
§ 1910.269(aX(2)(i) or § 1910.269(a)(2)Gii) (the training rules); (2) 29 CF.R. § 1910.269(a)(3)
(determining existing conditions); (3) 29 C.F.R. § 1910.269(c) (pre-job briefing); (4) 29 C.F.R. §
1910.269(I)(1) (requirement that employee be qualified); and (5) 29 C.F.R. § 1910.269(1)(2)
(minimum safe approach distance).


IIL. Reference to Punishment

Prior to opening statements, as part of the preliminary instructions to the jury, the court told
the jury that Myers was charged with violating a section of OSHA, 29 U.S.C. § 666(e), and read the
relevant portion of the statute.° (Tr. May 5, 2005 a.m. at 5-6.) Neither party objected when the
statute was read. However, because the single sentence of the statute contains both the nature of the
crime and a reference to punishment, it was error to read it, an error for which the court and not the
government is responsible. During its opening statement, the government attempted to deal with the
court’s error by stating that a corporation and not an individual was on trial. (Tr. May 5, 2005 a.m.
at 47.) Myers’ counsel then objected and a sidebar conference was held. (/d. at 47-48.)

During the sidebar conference, Myers’ counsel stated that Myers was “going to make a
motion for a mistrial.” (/d. at 48.) The court suggested that perhaps a mistrial should be declared
because of the court’s mistake, and a new jury selected. (/d. at 54.) Myers’ counsel then backed off
his request for a mistrial, stating, “[M]y main issue is how the Court will instruct this jury. And if
we’re in agreement on the instruction, then there may not be a basis for a mistrial.” (/d. at 54-55.)
The court reiterated that if there was going to be a mistrial based on this error, it was better to declare

it immediately and start over. (/d. at 56.) Myers’ counsel agreed that the problem could be corrected

* That portion states:

Any employer who willfully violates any standard, rule, or order promulgated
pursuant to section 655 of this title, or of any regulations prescribed pursuant to this
chapter, and that violation caused death to any employee, shall, upon conviction, be
punished by a fine of not more than $10,000 or by imprisonment for not more than
six months, or by both; except that if the conviction is for a violation committed after
a first conviction of such person, punishment shall be by a fine of not more than
$20,000 or by imprisonment for not more than one year, or by both.

29 U.S.C. § 666(e).

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employee is imputed to the corporation when it concerns a matter within the scope of the employee’s
employment. (Def.’s Mot. at 19-20.) Rather, Myers asserts that not only must the information
concern a matter within the scope of employment, but the employee must also have some
responsibility to act on that information for it to be deemed “corporate knowledge.” (/d. at 20.)

With regard to “corporate knowledge,” the jury was instructed as follows:

In deciding whether the defendant corporation acted knowingly, you must consider

that a corporation can act only through its employees and agents. Accordingly,

knowledge obtained by the corporation’s employees acting within the scope of their

employment that concerns a matter within the scope of their employment is
knowledge possessed by the corporation. Once a corporation acquires that
knowledge, it remains with the corporation even if the employee is no longer
employed by the corporation, if the knowledge is of continuing importance to the
business of the corporation.
(Jury Instructions Given at 28.) The jury was also instructed regarding the meaning of “scope of
employment”:

For an act to be within the authority of an agent or the scope of the employment of

an employee, it must deal with a matter whose performance is generally entrusted to

the agent or employee by L.E. Myers Company.

(id. at 24.)

Myers argues that the corporate knowledge instruction was prejudicial because it allowed the
jury to consider evidence, admitted over Myers’ objection, regarding “a routine, briefand uneventful
job” performed by a Myers crew in 1970 on the same static wire as the one worked on in 1999 that
resulted in Lane’s death. (Def.’s Mot. at 21; Def.’s Reply at 9-10.) Myers concludes that the

instruction allowed the jury to conclude that the corporation “knew” about the hazard of “energized

static wires” simply because it was a “matter within the scope of the 1970 crew’s employment.”

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