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