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CRIMINAL NO. 03-852 (MLC) V. : : ATLANTIC ST

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CRIMINAL NO. 03-852 (MLC) V. : : ATLANTIC ST Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 1 of 271 PageID: <pageID> UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA : : CRIMINAL NO. 03-852 (MLC) v . : : ATLANTIC STATES CAST IRON : MEMORANDUM OPINION PIPE CO., JOHN PRISQUE, : SCOTT FAUBERT, JEFFREY MAURY, : and CRAIG DAVIDSON, : : Defendants. : : Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 2 of 271 PageID: <pageID> Outline of Opinion PRELIMINARY STATEMENT 1 DISCUSSION I. DEFENDANTS’ POINT I: “THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY REGARDING CRIMINAL NEGLIGENCE AND RECKLESSNESS.” 4 A. Legal standards for jury instructions B. The jury instructions identifying the elements of each charged felony offense 7 C. The jury instructions defining the mens rea requirements of each charged felony offense 13 D. The jury instructions identifying the elements and defining the lesser-included Clean Water Act negligence offense 21 E. The government’s objection to the last identified element of the Clean Water Act and Clean Air Act felony offenses 24 F. Defendants’ objection to refusal of their proposed instructions on recklessness 30 G. Legal analysis for the last identified element of the Clean Water Act and Clean Air Act felony offenses 38 H. Legal analysis for refusal of defendants’ proposed instructions on recklessness 75 II. DEFENDANTS’ POINT II: “PROSECUTORIAL MISCONDUCT.” 89 III. DEFENDANTS’ POINT III: “THE COURT COMMITTED ERRORS WHICH REQUIRE A NEW TRIAL.” 108 i Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 3 of 271 PageID: <pageID> IV. DEFENDANTS’ POINT IV: “JUDGMENTS OF ACQUITTAL ON COUNT I MUST BE GRANTED BECAUSE OBSTRUCTION OF OSHA IS NOT A VALID OBJECTIVE OF THE CONSPIRACY.” 112 V. DEFENDANTS’ POINT V: “THE INCONSISTENT VERDICTS AGAINST DAVIDSON, PRISQUE AND ATLANTIC STATES CANNOT STAND.” 119 VI. DEFENDANTS’ POINT VI: “THE FATAL DUPLICITY OF THE CONSPIRACY COUNT WARRANTS JUDGMENT OF ACQUITTAL OR A NEW TRIAL.” 127 VII. DEFENDANTS’ POINT VII: “THE UNITED STATES FAILED TO PRODUCE SUFFICIENT EVIDENCE AND THE JURY’S VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.” 130 A. Legal standards – motions for acquittal and new trial 130 B. Overview of manufacturing process and facilities 132 C. Substantive charges (Counts 2-34) 133 D. Conspiracy charge (Count 1) 257 E. Conclusion of Point VII 263 VIII. DEFENDANTS’ POINT VIII: “RENEWAL OF MOTIONS FOR PURPOSES OF APPEAL.” 265 CONCLUSION 267 ii Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 4 of 271 PageID: <pageID> PRELIMINARY STATEMENT A jury convicted Atlantic States Cast Iron Pipe Company and four of its supervisory level employees under a superseding indictment charging them with a multi-object conspiracy and various substantive offenses. Those defendants move for judgment of acquittal or a new trial, asserting legal points and challenging the sufficiency of the evidence.1 The indictment identifies the defendants and their positions during relevant times as follows. Atlantic States manufactured cast iron pipe at its facility in Phillipsburg, New Jersey.2 John Prisque was plant manager. Scott Faubert held positions as human resource manager and safety director. Jeffrey Maury was maintenance superintendent. Craig Davidson was finishing department superintendent. A fifth individual was acquitted. (See n.6 infra.) The indictment contained thirty-four counts, beginning with one conspiracy count.3 Count 1 charged that during the period of approximately October 31, 1995 through August, 2003, the defendants entered into a conspiracy to: (1) knowingly discharge a pollutant into U.S. waters, 1 There was no joint defense agreement among the defendants, although they have frequently submitted motions as a group when appropriate. We will address the arguments of specific defendants wherever their positions are distinct. Otherwise, this opinion refers to them collectively as the defendants. 2 Atlantic States is not a separate corporation but is a division of McWane, Inc. 3 Documents filed on the electronic docket in this Court are generally cited here simply by docket entry number (“dkt.”). The original 35-count indictment was filed on 12-11-03. (Dkt. 1.) A superseding 35-count indictment was filed on 9-14-04. (Dkt. 95.) By Order filed on 3-11- 05, the court approved a voluntary dismissal without prejudice of count 34, which resulted in renumbering of original count 35 to be count 34. (Dkt. 120.) The resulting 34-count superseding indictment was prepared by the government, and received in chambers on July 21, 2005, but not filed on the docket. We have recently caused a copy of that version to be docketed. (Dkt. 711.) We refer to that version in this opinion as the “indictment,” unless otherwise specified. It is further to be noted that before that superseding 34-count indictment went to the jury for the deliberation phase, the Court directed redaction of some text, in consultation with the parties. (See dkt. 717 at 66 (jury instructions).) We have not docketed that jury version of the indictment, but it is retained in the chambers file and the parties have copies. Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 5 of 271 PageID: <pageID> without and in violation of a permit, in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A); (2) knowingly violate a requirement and prohibition of permits under the Clean Air Act, 42 U.S.C. § 7413(c); (3) defraud the United States by obstructing the lawful functions of the Occupational Safety & Health Administration (“OSHA”) and the Environmental Protection Agency (“EPA”) in enforcing federal workplace safety and environmental laws and regulations; (4) make false statements in matters within the jurisdiction of OSHA, EPA and the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001; and (5) corruptly influence and obstruct the administration of law under a pending proceeding before OSHA, in violation of 18 U.S.C. §§ 1505 and 1515(b); all in violation of 18 U.S.C. § 371. (Dkt. 711.) The substantive counts charged Atlantic States, and specified individual defendants, with violations of 18 U.S.C. § 1001 (Counts 2-7); 18 U.S.C. § 1505 (Counts 8-10); 18 U.S.C. § 1519 (Count 11); 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A) (Counts 12-33); and 42 U.S.C. § 7413(c)(1) (Count 34). All substantive counts also charged aiding and abetting under 18 U.S.C. § 2. (Id.) Defendants moved for judgment of acquittal at the close of the government’s case and at the end of the evidence. This Court reserved judgment and submitted all counts to the jury. In addition, at the request of the defendants named in the Clean Water Act counts, we submitted to the jury the lesser-included offense (not charged in the indictment) of a negligent violation of the Clean Water Act, 18 U.S.C. § 1319(c)(1)(A). The jury failed to reach a verdict on Count 2, which named only Atlantic States and Faubert. It found Atlantic States guilty on all counts except Count 2 (no verdict) and Count 6 (not guilty). It found the specified individual defendants guilty on Count 1, as to various of the alleged objectives of the conspiracy. See n.64, infra. It rendered mixed verdicts on the 2 Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 6 of 271 PageID: <pageID> substantive charges against them. The verdicts as to those convicted are listed in the margin.4 The full case record is filed on the docket.5 As noted, one named defendant was acquitted of the charges against him, which were contained in Counts 1, 6 and 34.6 The pending motions 4 The verdicts as to the convicted defendants were as follows. NOTE: If a defendant was not charged in a count, the notation is “n.c.” If a defendant was charged under the Clean Water Act (all felony charges), but convicted of the lesser-included offense (negligent violations), the notation is “neg. only”. Count Atl. States Prisque Faubert Maury Davidson 1 guilty guilty guilty guilty guilty 2 [no verdict] n.c. [no verdict] n.c. n.c. 3 guilty n.c. n.c. guilty n.c. 4 guilty n.c. n.c. n.c. guilty 5 guilty n.c. n.c. not guilty n.c. 6 not guilty n.c. n.c. n.c. n.c. 7 guilty n.c. guilty n.c. n.c. 8 guilty guilty n.c. n.c. n.c. 9 guilty guilty guilty guilty n.c. 10 guilty not guilty guilty n.c. n.c. 11 guilty guilty n.c. n.c. n.c. 12-26 guilty n.c. n.c. n.c. neg. only 27 guilty neg. only n.c. neg. only neg. only 28-33 guilty n.c. n.c. guilty n.c. 34 guilty guilty n.c. n.c. n.c. (See separate verdict sheets, dkt. 609; dkt. 610; dkt. 611; dkt. 612; dkt. 614.) 5 The procedural history is set forth on the docket and is described here only as necessary. The trial consumed almost eight months and covers approximately 20,000 pages of transcript. Motions filed and decided before and during trial have been the subject of many briefs, oral argument transcripts, and orders. Those are referenced in this opinion by docket entry number. We have found it useful to prepare and file an index of the trial transcripts. (Dkt. 718.) The transcripts of trial and pretrial sessions cited here are referred to by docket number as “tr.”. 6 The individual who was acquitted was Daniel Yadzinski. (Dkt. 613.) He was described in the indictment as engineering manager and environmental manager.
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