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November 2, 2005.


The opinion of the court was delivered by: GERALDINE BROWN, Magistrate Judge


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 125.] 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.


  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 OSHA, causing Blake Lane's death, but found Myers not guilty with respect to Wade Cumpston's death.*fn1

  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."


  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 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 if the 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 I 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 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 "ongoing criminal venture" as to which the defendant deliberately shut his eyes, citing U.S. v. Giovannetti, 919 F.2d 1223 (7th 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 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 of 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.*fn2

  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.*fn3 The 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 see 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. 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 ...

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