*1 provided on the information Based America, UNITED responses and the STATES of
your information Plaintiff-Appellee, to the staff in- regarding available dustry VHP experience with nozzle v. cracking, that you the staff finds have GEISEN, David Defendant-Appellant. provided justify sufficient information to No. 08-3655. 16, 2002, operation February until time will you shut down United States Court of Appeals, ... [plant] perform VHP nozzle Sixth Circuit. discussed in spections your letter dat- Argued: Jan. 2010. ed 2001. The November commit- July 15, Decided and Filed: your
ments letter contained dated Rehearing Rehearing En Banc 30, 2001, integral November were Sept. Denied finding. staffs argument that the letters merely at- material seems to be another
tempt insufficiency rehash the claim.
evidence
Therefore, neither the instructions presented
nor the evidence trial con-
structively low- amended indictment to necessary
er burden of proof convict government presented
Siemaszko. The the NRC’s reliance on all of in permitting
Davis-Besse’s submissions RF013, until operate
district court our guidance followed the
pattern jury preparing instructions
jury to review the it. evidence before
Siemaszko, therefore, was convicted of charged in the
offense indictment and not charge carrying
of another a lesser burden
of proof.
IV. reasons, the foregoing
For we affirm
Siemaszko’s conviction on counts
5 of the deny indictment and his claim of
constructive amendment of the indictment. *4 O’Toole, Timothy P. Miller
ARGUED: Chartered, Washington, and Chevalier D.C., for Appellant. John Luther Smelt- Justice, zer, Department United States D.C., Appellee. ON Washington, for O’Toole, A. Timothy Richard BRIEF: P. Wise, T. Miller Cheva- Hibey, Andrew Chartered, D.C., Ap- Washington, lier Smeltzer, Luther United pellant. John Justice, Washington, Department States D.C., Appellee. GIBBONS, MERRITT,
Before: ROGERS, Judges. Circuit GIBBONS, J., opinion in preparing delivered the the documents that Davis- court, ROGERS, J., joined. Besse presen- submitted the NRC and 497-500), MERRITT, given (pp. J. delivered tations to NRC officials in further- delayed separate opinion concurring part inspection gave ance rise dissenting part. subsequent his indictment on and convic-
tion three counts of concealing a materi- OPINION making al fact and a false statement to a agency. During delayed United States GIBBONS, JULIA SMITH Circuit inspection, Davis-Besse found five cracked Judge. nozzle heads and a cavity football-sized Defendant-appellant ap- David Geisen caused boric acid erosion the head of peals his conviction on three counts the reactor. The finding prompted concealing making a material fact and investigations previous plant into inspec- Regulatory- false statement to the Nuclear and, eventually, prosecution tions (“NRC”) in Commission violation of 18 Geisen, systems engineer Andrew Siem- *5 §§ and 2. appeal, U.S.C. On aszko, and independent contractor Rodney argues there was insufficient evidence A engineer, Goyal, Cook. second Prasoon support to his convictions and that the and three other employees Davis-Besse by court giving district erred deliberate signed prosecution agreements. deferred ignorance denying instruction and a mo- rejection tion to admit of evidence Geisen’s A. Davis-Besse Nuclear Power Station pre-indictment prosecution of a deferred agreement. following reasons, For the we a two-loop, pressurized Davis-Besse is find that there was sufficient evidence to water reactor that is composed large of a each support of Geisen’s convictions and cylindrical chamber filled with wa- coolant the district court did err in its (“the ter Reactor Pressure or Vessel” instruction or exclusion of evidence. “RPV”). Uranium rods at the core of the Therefore, we affirm. fuel nuclear vessel the reaction that heats the coolant water. The nuclear reaction is I. Factual Background and Procedural controlled introducing boric acid and/or This case out of arises an incident that control rods the into reactor vessel. The at occurred the sixty- Davis-Besse Nu- control rods are through inserted (“Davis-Besse” (tubes penetration clear Power Station or nine nozzles that are diameter) “the is on plant”), approximately which located the shores four inches Ohio, Toledo, of Lake Erie near penetrate through and the head of the operated by owned and Nu- FirstEnergy (approximately reactor ten feet in diame- (“FENOC”). ter) Operating Company clear into the reactor chamber. is a There began work the in 1988 gap between the RPV and head reflective and, by 2000, manager design basis metal insulation that encloses closure engineering. safety After a flanges incident at and gap studs. The is narrowest plant prompted head, similar top the NRC to re- it only the the where two inspections at quire plants by all like the inches wide. drive Control rod mecha- (“CRDMs”) successfully end of FENOC peti- operators nisms allow to permit to tioned into Davis-Besse lower rods the reactor to control operate reaction, interruption and, thus, without and thus de- the rate of nuclear lay inspection until a refueling energy scheduled output. The nozzles are weld- spring using shutdown 2002. Geisen’s role ed a J-groove onto vessel head head, Goyal and continued is As of Siemaszko the steel which underside engineers, and to work at Davis-Besse as inches thick. 6.5 worked for FENOC as inde- Mainhardt RPV The internal walls preparing for RFO 13. pendent contractor are covered RPV head underside steel, The 1996 lasted but the RPV RPV head stainless non-corrodible hour on the only are one due limitations components made the external During radiation. steel, exposure technicians’ which is corrodible carbon Goyal two techni- escapes inspection, if it directed in the water boric acid coolant pole moving a camera on the cool- cians who were happen RPV. This can when on a across the head. He watched through flanges vessel ant water leaks location above monitor narrated the camera the CRDMs the nozzles connect (the history on the “stud hole” numbers had a based the RPV head. Davis-Besse weep studs leakage developed the Boric numbers between flange holes). numbered, Procedure nozzles were Cdfrosion Control Acid only (“BACCP”), during way so this is determine implements nozzle document condition each problem. to address this inspections, Goyal, in on the camera visual. based two-year fuel operates in Davis-Besse testimony and in a Condition Ad- Potential therefore, and, reac- shuts down the cycles Quality report (“PCAQ”) submit- verse to only refueling out- during the biennial tor after superiors ted RFO estimated (“RFOs”). Davis-Besse was sched- ages inspect fifty sixty that he was able *6 (the RF013 thirteenth uled conduct the area in and noted percent of head Davis-Besse) April in RFO conducted at that it difficult to the amount was estimate permitting refueling, In addition to deposit of boron on the head because of the primary opportunity the are RFOs limited inspection. the In the visual and maintenance cannot PCAQ, Goyal deposits attributed the boron operation. the in occur while reactor PCAQ The flange leaks. also noted in this are The RFOs at issue case RFO deposits in ranging several color from (2000). (1996), (1998), RFO 12 RFO and PCAQ to rust. In both the white to brown RFO, During visually in order to testimony, Goyal and in noted that the head, oper- nozzles and RPV spect and limited deposits boron visual access through insert a camera a ser- ators must implementation full of prevented eighteen that are five “weep ies of holes” PCAQ, Consequently, BACCP. by seven inches in size and line Goyal suggested modifications to the RPV of the head above the head bottom RPV access, permit head better such that would flange connecting the head to RPV installing access doors. No such modi- accessibility RPV. Because of the limited were ever made. fications camera, impossible visually it trial, very government’s expert of RPV At inspect top head wit- ness, Davis, photo- there. was Dr. James the nozzles located Siemaszko described inspection, noting charge inspecting cleaning graphs of the 1998 “rust- of Goyal deposits coming out of during RF012 in 2000. colored boric acid RPV head acid during [weep] in 1996 the ... holes” and “boric de- oversaw this task RFO10 He also inspection reports posits follow- around the closure studs.” and reviewed engi- were several other ing “[t]here [in- RFOll and RF012. Another stated Mainhardt, was neer, inspec- leakages]. One them dicators supervised Peter during getting 1998. containment coolers were cleaning RFOll air tion deposits.” fouled with boric acid clogged, depth.” its considerable The RF012 PCAQ, signed Goyal, PCAQ The RFOll stat- again attributed the bo- increased ed that “most of the head area was cov- flange leakage. ron accumulation to layer with an uneven of boric acid ered PCAQ, In a 2000 Siemaszko noted that along lumps with boric large some acid.” the RPV head should be “free of boron again deposits The were attributed to deposits” adequately inspect the nozzles flange PCAQ leakage. That referred back accordance an NRC requir- letter PCAQ to the RFOIO and the need for plants inspect the CRDMs ade- PCAQ corrective action. The 1998 also quately. put Siemaszko the RPV head that “[t]he stated reactor vessel head was required restraint action before the cleaned as best as we can” and noted that put operation. back into cleaning was video recorded. restraint, however, removed the stating Siemaszko conducted RF012’s RPV that the RPV head would be cleaned of all deposits cleaning. prevented head in- boron deposits put before was online. It into weep sertion of the camera five not. visually impaired inspection holes and through weep deposits other holes. The B. NRC Bulletin 2001-01 required cleaning more elaborate ma- In “popcorn” small deposits of bor- previous neuvers than inspections, which ic acid were found at pen- the nozzle had used a vacuum cleaner to remove bo- etrations of the reactor the Oconee Nu- deposits. ron Siemaszko directed Carolina, clear Station South a nuclear hot, spray the technicians to distilled water plant of design similar to Davis-Besse. onto the RPV deposits head to loosen the Earlier nozzle lengthwise, cracks been use bars to knock off chunks but cracks circumferential deposits through flush them out (around nozzle), and one was above the weep holes. One of the members of the J-groove “pressure weld and within the cleaning crew testified that the amount *7 boundary.” posed This a risk that deposits boron visible RF012 was “un- nozzle would blow out of the vessel head previous like” he had seen in RFOs significant and cause loss of coolant and deposits left on the RPV head threats, including structural possible plant the cleaning great after were of concern to safety 1990s, failure. In early planning Greg Gibbs, those RF013. NRC determined that nozzles were sus- brought consultant pre- to Davis-Besse to ceptible to “stress cracking” corrosion RF013, pare for cleaning reviewed the the nozzles and on the but welding deter- tapes that, of RFO 12 and testified al- mined that pose cracks did not an though “large there were ... areas safety imminent threat because the NRC metal[,] were cleaned to ... you bare as presumed any leakage would be top neared the of the rear insulation where readily apparent before gap threatening the two-inch exists ... there were structural integrity of the areas where there were reactor or cata- considerable boric strophic deposits, in failure. leakages acid some cases The occur when up even solid escapes coolant the mirror insulation.” an the containment Geisen told vessel NRC in 2002 within the reactor investigator that he had read and either exits the a report Gibbs sometime after reactor or comes contact October into with the hot findings that discussed in vessel head. The Gibbs’s result that the coolant reviewing inspection, including the RF012 flashes to steam and boric acid within head had “boric acid depos- RPV the coolant fluid is deposit left as a on the 1997, experiences in and similar incident near the leak.
reactor head industry, August this of reac- French nuclear type licensees of NRC advised Bulletin 2001- issued develop periodically NRC programs tor Bulletin”), (“NRC en- or “the and 01 2001-01” inspect penetrations the vessel head but, Cracking of Reac- yet “Circumferential for cracks because was titled look about Pressure Vessel Head Penetration problem, did warn tor aware which deposits and cir- The Bulletin outlined popcorn link between Nozzles.” “high susceptibility” cracking. plants had a to nozzle cumferential cracking and the NRC’s criteria stress the risks cir- was aware of FENOC among dicated that Davis-Besse was them. 2001 because cracking before cumferential requested Bulletin also information The group an a member of owner’s it was power stations such from affected nuclear designed by at problems plants addresses stated that as Davis-Besse. Bulletin Wilcox, designed both Babcock and qualified “need use a visual plants such Oconee and Davis-Besse. Geisen nozzles,” ... of 100% of the examination representative Davis-Besse’s reli- that the “should be able to trial, testified that he group. At ably accurately detect and characterize first nozzle-crack issues involved with that “the ef- leakage cracking,” from in late after the first cracks were the ... examination fectiveness of should Oconee, given and that found compromised by presence not be subject begin- presentations on the several insulation, existing deposits on the RPV Goyal in the had also ning spring head, or could other factors that interfere numerous emails to Geisen others sent leakage.” with the detection Due to the warning cleaning during outag- that “head risks, the high-risk plants NRC wanted all and, top priority” after the es should be such Davis-Besse shut down and crack at Oconee was dis- circumferential complete inspection conduct nozzle covered, stating Goyal sent email cracks December 2001. Because of the five nozzles at Davis-Besse located shutdown, early in an the costs involved the center of the RPV head were manufac- to continue operation Davis-Besse wanted way in the all of the tured same as were April until its scheduled RF013 However, cracked Oconee nozzles. approved a memoran- June plants to required provide The Bulletin dum, Goyal, prepared by that concluded susceptibility detailed information about *8 inspec- postpone that Davis-Besse could cracking previous inspections and within tion nozzles until RF013. The days. information, thirty As of that part signifi- acknowledged memorandum that, high-risk plants NRC directed flanges had leakage cant boron from im- plant’s] inspection plans future do “[i]f [the of CRDM noz- peded inspection “detailed performing not include before during but calculated that “it zles” RF012 31, 2001, pro- [the must] December take 2.5 additional approximately would concluding [the] vide basis years operation for Davis-Besse ob- in requirements discussed regulatory degradation” serve the same as occurred sec- Applicable Regulatory Requirements at Oconee. until tion will continue to met re- spections performed.” are Section l.d. After Oconee receiving notice plants provide: all quired such the NRC altered its assessment cracking, pen- deposits description small boron head [A] [vessel risks even inspec- nozzle and RPV head light on reactor heads. the Oconee etration] qualification first, (type, scope, require- third, tions ed on the and fourth counts of criteria) ments, acceptance the indictment. performed your plant(s)
have been in In approving Davis-Besse’s continued past years, In- findings. operation 13, until RFO the NRC relied on description clude a limitations all of the serial letters: (insulation or impediments) other to ac- Based the information provided in cessibility of the metal of bare the RPV your responses 4, September [dated head for visual examinations. 2001, as supplemented letters dated 17, 30, 1, October October November Representations C. Davis-Besse’s 30, and November and the 2001] infor- to the NRC mation available to the staff regarding industry experience with VHP noz- In accordance with regulations federal cracking, zle the staff finds that you governing industry, the nuclear Davis- provided have sufficient information to respond obligated Besse was to the justify operation 16, until February statements, NRC Bulletin with “written 2002, at you which time will shut down signed under oath affirmation.” the [plant] perform ... and VHP nozzle 50.54(f); § C.F.R. see also U.S.C. inspections as in your discussed letter seq. § 2011 regulations et Federal dated November 2001. The commit- all require provided information ments contained in your letter dated complete NRC “be accurate all 30, 2001, November were integral to the 50.9(a). respects.” § material 10 C.F.R. finding. staffs Davis-Besse hired Cook to coordinate the The serial letter submitted on November response to Sep- NRC 2001-01. Between 30, 2001, SL readily was not discov- 30, 2001, tember 4 and November FENOC erable in the record. (“SLs”) submitted a series of serial letters containing the requested information FENOC’s first submission to the NRC the Bulletin. Various conference calls in response to NRC 2001-01 SL meetings employees between FENOC and on September 2001. Siemaszko was place Septem- the NRC also took between tasked reviewing tapes 4, 2001, ber and December when from previous RFOs providing infor- finally permitted response Davis-Besse mation in to NRC 2001-01’s sec- operation continue until an earlier shut- tion inquiry, l.d. Cook was charge February down for RF013 in together information, 2002. The putting and Goy- five letters issue al case and was to review submission. Siemasz- charged to contain false draft, statements in the ko wrote the first stated that Siemaszko, against Geisen, indictment guidance and the procedure predating BACCP 2731, September 4, Cook are: SL RF012, 2001 was used RFO 11 and (count 1); October head cleaning “[t]he was limited *9 (count 2); 2741, 30, SL holes,” October 2001 opening that, size of the weep (count 3); 2744, 30, SL RF012, October 2001 during “[n]o evidence of nozzle (count 4); 2745, 1, and SL November 2001 leakage was detected. of 95% the nozzles (count 5). Count 1 also allega- inspected.” included were Goyal questioned the of tions of in ninety-five-percent concealment material facts given assertion the the other serial during letters and meet- top amount boron visible the the ings RF012, between FENOC including during RPV head and Siemaszko staff— Geisen—and the NRC. Geisen subsequently was convict- sent another draft asserting
480 take deposits, place would peded boric of nozzle leak-
that visible “[n]o detected!, during RFO 13. m]ajority of nozzles age was stating pro- the inspected,” were to the Each serial letter sent Later, after the BACCP. used was cedure sheet,” is a cover “green cluded “majori- meaning the questioned Cook employees who listing FENOC document percent ninety ty,” stated Siemaszko the docu- reviewed contributed and/or inspected. Goyal had been of the nozzles There it was to the NRC. ment before sent ninety- the expressed regarding concern sign employee for each space listed in the and the assertion percent claim Geisen, design as the letter. and date inspect- of the draft that all CRDMs manager, signed and dated engineering deposits the amount of boric acid given ed his behalf and green both on own the sheet obstructing view. Moffltt, supervisor, his Steve behalf of of technical services. who was the director Nevertheless, the final letter included testified that he was uncomfortable Goyal gap that “a exists between the statement misrep- green sheet because signing insulation, minimum RPV head thorough prior inspec- resented how inches, approximately ... does were, eventually cleanings but he tions The letter impede inspection.” visual did so. BACCP also asserted Davis-Besse’s inspec- been utilized in both procedure had September the NRC con- On scope and that visual “[t]he tions urge it to reconsider tacted Davis-Besse inspect the bare metal inspection was its NRC 2001-01 submis- approach its accessible head area that was RPV suggest shutting and to down sions identify weep through holes 31, 2001, in plant before December order leaks/deposits.” 2731 also boric acid SL proper inspection of the noz- conduct deposits the boron discovered described trial, heads. At Moffltt testified zle an “uneven during as this April versus became issue “December layer deposits of boric acid scattered over at be- great discussion” Davis-Besse boron, lumps the head ... some [and] consequences of an cause difference varying from brown to with the color months before outage 2001-several inspections, SL 2731
white.” Of the completion cycle of a fuel end —and crystals acid boric “[s]ome noted He cycle “quite severe.” would be insulation accumulated on RPV head stated: leaking flanges. depos- These beneath outage; it was just It wasn’t (vacuumed),” that “[i]n- its were cleaned years you would not be next spection of RPV area in- head/nozzles gas you tank operating your full accumulation of boric acid dicated some [(its it. was fuel avail- saw Then there area was deposits,” and the RPV head ability questionable)]; there was cleaned demineralized water morale, cost; certainly there was Referencing the greatest possible. extent outage; [of there was dose Christmas and 2000 videotaped review of the [;] ... our own confi- sense radiation] May follow- inspections conducted dence. Oconee, that “indi- also noted an NRC investi- During an interview with as those that would result cations such stated that gator following RFO penetration leakage [like from RPV head *10 “very upset” by vice-president was the site not evident.” SL 2731 Oconee] were NRC, 28 call from inspection, September unim- full also asserted “all sorts new work table. For prompted the 1998 and 2000 inspections, activity.” each nozzle had one of the following nota- (1) observed,” tions: “no leak indicating point,
At management-level person- inspection that a visual was sufficient and nel, particular, began and Geisen in to take (2) needed; no video record was “no leak role in the negotia- a more active NRC recorded,” indicating that the nozzle in- in part tions. Geisen took a conference call video; spection was recorded on the or 3, 2001, during repre- on October which he evident,” “flange leak indicating that the incorrectly—that percent sented — nozzles were not visible due to boric acid inspected during the RPV head had been deposits. deposits only the RFOs and that boric acid impeded visual inspection of five or six During investigation the NRC into 11, 2001, nozzles. On October Geisen and 2002, Davis-Besse in investiga- Geisen told managers gave other presentation slide tors that he responsible for supervis- compiled staff. Geisen infor-
to NRG Siemaszko’s work inspec- nozzle slides, mation the “facts” but and, tion according table testimony present- unclear Geisen Moffitt whether investigator, said that during “[Geisen] ed them. One crucial slide stated that ... early frame, October time ... he penetrations CRDM were verified to “[a]ll portions viewed [of the videos] type free from ‘popcorn’ deposits boron 1996, 1998 and the 2000 reactor vessel using recordings video from 11RFO or inspections.” head The version of SL 2735 12RFO.” Moffitt testified la- that Geisen submitted to the NRC contained the nozzle 100-percent ter determined that the state- inspection 2, table as Attachment with a only ment was attributable to RFO10 rath- footnote to the stating er than to the later RFOs and decided that “the entire head inspected. RPV correct the error in subsequent submis- Since the video was void of head-orienta- sions. narration, specific tion each nozzle view could not be correlated.”
On October sent SL The letter also FENOC stated that “50 -69 supplement 2735 to the SL 2731. nozzles” were Geisen, “responsible as a ini- “viewed” “45 69” were manager,” “viewed” tialed and that some nozzles green dated sheet for this were not they viewed submission. 2735 contained a because were “ob- SL table crystal detailing deposits scured boric acid status each nozzle at each (“nozzle table”). inspection clearly inspection leaking attributable to ... flanges table from the center indicated whether each nozzle had CRDMs.” The letter noted that visual inspections been recorded and whether leaks were sixty-five at which time apparent sixty- each nozzle. After NRC’s nine request inspected, nozzles were and in following more information and 2000 Geisen had asked Siemaszko re- “consisted of whole head visual inspection” required by view the videos the BACCP. prepare The document also that none the table. asserted chrystal videos indicated “boric acid receiving After Siemaszko’s draft table deposits that would have been attributed charting inspections, the 1998 leakage pen- from the CRDM nozzle Geisen told Siemaszko to include the 1996 etrations.” inspection. Because he had seen never RPV head Siemaszko relied on Based on the assertion that all nozzles RFO10, information complete prior from others to the were leak-free as demon- *11 however, dence, that Geisen suggesting a table, conducted in the FENOC strated and, August in ear- had the videos analysis that the viewed that determined risk in for sub- developed partially, preparation was have least a crack could liest the mitting In SL 2735. after RFOIO concluded. May scenario, take that crack would worst-case photo- the In an introduction grow to be- years to seven-and-one-half photo- the caption a characterizes graphs, therefore, size, and, Davis- yond safe the head as “representative” graphs 13. until RFO safely operate could Besse general- “relatively afford[ing] clean and the analysis formed basis risk This to a inspection.” caption pho- The ly good NRC representations to the Davis-Besse’s showing deposits boric acid the tograph safe. delayed that a inspection depos- head that the top of the states RPV inspection Despite the detailed nozzle by mechanical could not removed its table, the was still not satisfied NRC “location,” of their but cleaning because safely until the operate could Davis-Besse vicinity leaking “in the previous were 2002. outage April in Conse- scheduled flanges” and “verified not be active or 24, 2001, again quently, on October Geisen investigators told that Ed- wet.” Geisen NRC, including one presented the slides to Chimahusky, engineer then ward af- inspection that “the results that stated Davis-Besse, systems at charge of coolant but 4 nozzle us all ford assurance caption, the provided information inspected 1996” penetrations Chimahusky testified that he was not but leakage “no was identi- penetration response involved the to NRC 2001-01 NRC, however, un- remained The fied.” him and that Geisen never consulted re- convinced. response to captions NRC garding Chimahusky 2001-01. testified 30, 2001, FENOC submitted
On October only on the inspected flanges had NRC, both further serial letters to two of the reactor head and outside inspection contained the nozzle photographs the interior. The inspected analysis risk SL 2741 included a table. “representative” included the letter as that, together, reiterated taken significant show of the more did not and 2000 consti- deposits that the videos piles of boric acid inspection” tuted “whole head visual contained. head” in the “bare accordance still photo- SL 2744 contained BACCP. submit- On November FENOC graphs taken from the videos. “plant which contained a ted SL provided “representative” Siemaszko specific expanding assessment” risk cap- photographs, and wrote the Geisen provided assessment in SL Howev- initialed and dated tions. Geisen er, submissions, despite these the NRC green sheets for both letters. delay deny permission continued inspection required NRC he asked Siemaszko full-head Geisen testified that 2001-01. an effort convince “representative” photographs to collect safe, delaying inspection previous NRC captions and drafted based presented excerpts prior drafting conversations—unrelated spection videos to staff on November SL 2744—that he had with Siemaszko testimony at trial According inspections. also testi- about Hiser, the NRC in Dr. Allen one of staff that he did not watch the videos fied Geisen showed attending presentation, entirety compiling photo- before their “to confirm that excerpts evi- video entered graphs.
483 including ... was in good the head condition Geisen—met with NRC ers— segments 28, 2001, 1996”but did not show certain staff on November to discuss large deposits video that showed whether Davis-Besse would have to close. head. Hiser the RPV testified: At that meeting, made FENOC additional retrospect, portions good expand scope In I think commitments to and bring RF013, is what we Mr. had reviewed. Geisen forward timing in- of the ... and ... he control remote cluding proposing an earlier shutdown jump would fast-forward and to various February date of and promising tapes, in the and we would review places qualified to conduct a “100% visual” and maybe just for a minute or five minutes “100% [non-destructive in- examination]” looking general condition of the spection. to FENOC committed re- visible, go head that was and then we’d place the vessel head “at first available maybe forward. opportunity.” however, testified, that he had shown the entire 1996 video. Hiser also D. Background Procedural testified that when he reviewed same During resulting inspection, during the tapes investigation NRC large cavity discovered a in the head 2002, he “a lot than saw more boron we by the reactor created boric acid erod- ... expected had which was inconsistent steel. The erosion had penetrated really anything that we had been through wall, the carbon steel leaving only provided previously.” Hiser stated that he 0.24" to 0.38" lining stainless steel “ha[d] no idea” whether Geisen to intended head, the reactor and was located near five parts showing over the skip video nozzles, cracked four of which boron significant buildup but did know that (nozzles very top 1,2, 3, of the reactor head that he excerpts rep- showed were not 5). and The cavity only discovered resentative. Hiser also stated that Geisen chance when one the cracked nozzles portions showed of the 1996 and 1998 vid- moved. ensuing As result internal portion of eos but no the 2000 investigation, Davis-Besse fired Siemaszko Hiser, According videos. said “if Goyal in September and 2002 because of bad, you tape think this tape providing their roles in inaccurate and mis- worse, so I even won’t bother to show it to leading information to the NRC you.” agreed Both Geisen and Hiser serial letters. videos, Geisen was to narrate the unable previ- Geisen testified that he had January 2006, grand jury indicted ously viewed the videos in their entirety Geisen, Siemaszko, Cook on five prepare. time no Geisen testi- of violating §§ counts U.S.C. fied that because he was frustrated with that, 2.1 The indictment charged based on narrate, inability arranged his the statements made in the serial letters Siemaszko meet with the NRC to re- public submitted the NRC and at two view the videos. Siemaszko did meet with meetings, permitted the NRC Davis-Besse 14, 2001, staff on pro- November operate beyond December previous inspec- vide assurances that the charged Count that the three “did know- tions had sufficient. been ingly willfully up, conceal and cover
As the December deadline and cause to be up, concealed and covered tricks, inspection approached, devices, manag- FENOC schemes and material except 1. Cook on all was indicted counts count 4. DPA, rejected the *13 and he was jurisdiction of Geisen in within the
facts a matter government of dicted. executive branch the States, wit, the condition United to sever their and Cook moved Geisen head, and the vessel Davis-Besse’s reactor from that of Siemaszko. The district trial previous inspections findings of nature and motion, and and granted court Geisen The detailed head.” of the reactor vessel 2007.2 jointly tried in October Cook were 1 listed SL regarding count indictment key trial was wheth- issue Geisen’s letters, and various other serial by possessed required er he the intent between with NRC authorities meetings Geisen, § testified in his own 1001. who 2001 in which and December September defense, although that the state- contended in participated vari- defendants the three false, were he did know ments through alleged ways. Counts ous they were false at time and did not make, knowingly willfully and Geisen “did intend to deceive the NRC. As evidence of a use, to make and use and cause others intent, filed motion a lack of Geisen (count 2) writing,” including: false SL limine seeking introduce evidence his false state- containing allegedly five pre-indictment rejection of the offered ments; (count 3) 2741, containing five SL motion. DPA. The district court denied the 4) (count statements; allegedly false and Among testimony heavily relied 2744, containing allegedly false six Mar- government was that of John by alleged that Geisen statements. Count tin, investigator a former inter- NRC who knowingly willfully and cause others “did Martin, relying viewed Geisen writing.” a false to make use interview, tes- his handwritten notes returned, the Before the indictment was tified that stated that he viewed the a deferred government offered Geisen August 2001 in connec- inspection videos (“DPA”) prosecution agreement preparing with for Davis-Besse’s tion “re- government that the would promised with the NRC. This contradict- teractions seeking an or other- frain from indictment testimony ed Geisen’s own that he of ... initiating prosecution criminal
wise
tapes
the time that
reviewed the video
stipulated
respect
to stated
Geisen”
captions
photographs
he wrote the
required
facts. The DPA
“ad-
submitted to
NRC in SL 2744. The
September
that between
]mite
government also
into
submitted
knowingly
he
and de-
November
addressed or
numerous emails
liberately
representations
false
caused
copied
Goyal discussing
to Geisen from
course of
made to the NRC
Davis-Besse,
past inspections at
similari-
attempting
persuade
NRC
Davis-Besse,
Oconee and
ties between
operate beyond
was safe to
[Davis-Besse]
modify
per-
the need to
the RPV head to
DPA also stated
December
2001.” The
during
mit better access
waive the statute of
Geisen would
email,
cleaning.
Goyal
In one
noted
such
prosecution
limitations for future
based on
only
that Davis-Besse’s was the
Babcoek-
DPA,
in criminal
cooperate
a breach of
and-Wilcox-designed reactor that did not
proceedings
and administrative
related
have access doors on the reactor head.
incident,
agree
stipulated
that the
falsity
him in
To demonstrate the
of the state-
against
facts could be used
letters,
the DPA. ments included in the serial
proceeding should
breach
aszko,
09-3167,
(6th
appeal
day
We
v.
47 F.3d
Circuit,
Quoting the Tenth
the instruction
(warning
not to use
courts
argues
illogical
give
that it is
Crim-
“indiscriminately”); see also Pattern
instruction since the
ignorance
deliberate
Circuit
Jury
for the Sixth
inal
Instructions
government maintains
*15
ignorance
§
A
instruction
2.09.
deliberate
knowledge
actual
based
Geis
supports
therefore,
there is
given,
is
when
properly
knowledge
Goy
of the contents of the
en’s
of delib-
an inference
supporting
evidence
v. Francisco-
al emails. See United States
Lee,
v.
ignorance.
erate
See United States
(10th Cir.1991)
1405,
F.2d
1410
Lopez, 939
(6th Cir.1993).
343,
F.2d
351
991
(“If
proves
actually
the
defendant
in
properly
district court
fact,
an operant
knew
the same evidence
only
jury
structed
that
it could
find
the
prove
not
ignorant
could
he was
ignorance
a
guilty
Geisen
under
deliberate
fact.”).
argu
this
that
Mari
forecloses
beyond
if
a rea
theory
it was “convinced
improperly giv
because it held that
ment
the defendant was
sonable doubt
that
ignorance”
the
instruction
ing
“deliberate
the
high probability
of a
sub
aware
prose
error when the
is at most harmless
presentations
and
missions
of ac
presented
cution
sufficient evidence
... or
concealed material facts
included
(citing
47
at
knowledge.
tual
F.3d
786
(up
at
false statements.” See id.
350-51
States,
46,
v.
502
55-
United
U.S.
Griffin
instruction).
the
holding the use of
same
(1991)
56, 112
Geisen also knowledge). at trial that he had no actual jury permit- confused and misled holding, In so the Mari court negligence it to the basis of ted convict on recognized must [it] deceive. assume rather than criminal intent jury obeyed language argues risk confusion instructions. The words greater case because the district court’s than usual jury required of the instruction government entered considerable evidence that the beyond find reasonable doubt negligent preparing that Geisen was deliberately ignorant submissions be reviewing to the NRC. defendant We ground. it convict on that argument unavailing. giv- fore could find Geisen’s Therefore, even if there had been insuf jury, the district instruction support deliberate very Jury court was to use Pattern ficient evidence careful instruction, assume gave ignorance we must 2.09. The court also Instruction jury charge jury that the followed limiting We have held that instruction. mian, grounds did not on the 468 U.S. convict S.Ct. Thus, (1984), L.Ed.2d an ignorance. “intent to deliberate another de ceive,” Ahmed, United States v. theory F.3d must have formed the basis (6th Cir.2006). 427, 433 Geisen contends the conviction. that with respect convictions, to all three Monus, States v. 128 F.3d United government to prove failed either (6th Cir.1997) Mari, (citing 47 F.3d 390-91 knowledge intent to deceive. He ar 785-87) (internal omitted). at citations gues supervisory role, that in his he relied given by Because the instruction in good faith on information given to him the district court in this case was by those with knowledge first-hand in com incorrect statement of the law but rather reviewing piling submissions arguments at worst —if we take Geisen’s presentations NRC and making to NRC simply sup face value—“one that staff. argues He also that the evidence,” ported not preju improperly imputes to him knowledge of Mari, 47 dicial to Geisen. See F.3d at 786 anything that FENOC knew as well as (quoting Griffin, 502 U.S. S.Ct. FENOC’s motive. 466).3 court, therefore, The district did argues government’s ap by giving not abuse its discretion a “delib proach to ignorance deliberate constitutes ignorance” instruction and erate that no *16 conviction negligence— on the basis of prejudice to Geisen resulted from that in what Geisen should have n known—rather Moreover, struction. we find below in dis than he “consciously because attempted to sufficiency cussing the of the evidence that escape of confirmation conditions or events can upheld convictions be under Geisen’s he strongly suspected to exist.” United Therefore, theory. actual knowledge (5th 529, v. 554 Skilling, States F.3d 548 any possible giving error in the deliberate — Cir.2009), U.S.-, granted, cert. 130
ignorance instruction was harmless. Id. (2009) 393, S.Ct. 267 L.Ed.2d (quoting 786. United v. Lara-Velasquez, States 919 F.2d (5th Cir.1990), declining and if
Even Geisen’s can convictions find the instruction improperly given). not be sustained under an actual knowl disagree. We edge theory, the evidence was sufficient to that demonstrate he acted deliberate government The identified rep- several In a ignorance. order constitute viola that argues resentations “demonstrate a § a tion of false statement be must truth,” deliberate disregard for the there- or made to a material fact from concealed by suggesting that Geisen was “deliberate- “knowingly willfully.” the NRC 18 ly avoiding First, culpable knowledge.” § Consequently, U.S.C. estab “[t]o Geisen testified that he compiled informa- § lish a violation of the Government presented tion for slides to the at a prove beyond must meeting reasonable doubt on October 2001. One of the that made the statement was with knowl represented pen- slides that “[a]ll CRDM edge falsity,” of its United States v. Yer etrations were verified to free from Mari, distinguishing his case from Geisen case as evidence that instruction was im- argues misapplied proper. persuaded. Mari We relies are not re- Mari Griffin circuit, cautionary language controlling from this and other mains law in this and the regarding of circuits the use the deliberate district court’s observation that this was a ignorance points necessarily instruction. He close issue does not render his arbitrary district court’s hesitance to determine wheth- ultimate determination of the issue appropriate er capricious. such an instruction was in this or serial letters and made to the NRC the deposits using video type boron
‘popcorn’ meetings; there were person or 12RFO.” recordings from 11 RFO readily for apparent the information inconsis- significant testified Geisen of review Geisen re- that slide came from Siemaszko’s tencies information between acknowledged that tapes, Siemasz- and the but from Siemaszko and others ceived completed head; his nozzle had not ko that Geisen actual of the RPV state com- the slides were the time table knowledge the nature possessed “this argues that posed. from his involve- plant’s prior inspections vouched personally means that Geisen in the wake reviewing procedures ment in inspections, comprehensiveness incident; Oconee Second, doing so.” any basis for without management keep the desired to plant’s not recall ever did testified operation until RF013. Conse- re- “face-to-face” with Siemaszko speaking quently, the court’s instruction was district assertion garding Siemaszko’s improper. sixty-five inspection had visualized nozzles, knowl- despite Geisen’s sixty-nine Evidence Claims Sufficiency III. deposits remain- edge of the considerable court’s re We review district impediments RPV head Third, grant judgment a motion for tes- fusal to inspections. previous acquittal and defendant’s claim of insuffi did consult Siemaszko tified that he systems engineers drafting ciency while of the evidence de novo. See Unit (6th Gunter, submitted 551 F.3d captions photographs ed States v. memory Cir.2009) relied on his (sufficiency but rather to- Taken “previous Kone, conversations.” claims); United States v. 307 F.3d *17 testimony Cir.2002) that he never gether (6th (motions with his 430, acquit for 433 own, inspection on his reviewed the videos tal). whether, question relevant “[T]he the government argues that left “[t]his the in the viewing light after the evidence jury interpreted to understand that Geisen any the ra prosecution, most favorable to images representations and made ciitical found the tional trier of fact could have past that certain inspections e.g., about beyond a essential elements of the crime — not to be deposits acid were ‘verified boric Virginia, doubt.” Jackson v. reasonable or confirmed ba- active wet’—without 319, 2781, 307, 443 99 S.Ct. 61 U.S. doing for so.” sis (1979) (emphasis original); 560 in L.Ed.2d Dedman, conclusion, v. 527 presented see also United States government In the Cir.2008). (6th 577, 592 evidence from which a rational F.3d ample chose deliberately infer that could testimony All in conflicts the preparing to inform himself in the government, are in favor of resolved Testimony NRC.
submissions in every inference is drawn reasonable suggest- into evidence documents entered Bashaw, States v. 982 its favor. United representations ed Davis-Besse’s Cir.1992). (6th 168, 171 In consider F.2d letters, meetings, in the the NRC serial claim, weigh “we do not evi leading a role played and conference calls credibility presented, dence consider that would be convincing in the NRC witnesses, judgment or our for substitute operation be- keep in safe Davis-Besse v. jury.” United States 31, 2001; ad- that Geisen yond December M/G Inc., 584, Servs., F.3d 173 588-89 informing Transp. mittedly put little effort into Cir.1999) (6th v. (citing States Hill assertions United confirming himself and
489
(6th
iard,
618,
Cir.1993)).
RFO,
11 F.3d
620
2.
during
“[i]n
the entire
applies
This
even if the
...;
standard
inspected"
RPV head was
Kone,
purely
circumstantial.
See
3. “[s]ince the
video
[RFO10]
was void
F.3d
Consequently,
raising
at 434.
narration,
of head orientation
spe-
each
claim,
sufficiency of the evidence
a defen
cific nozzle view could not be correlated”
heavy
very
“bears a
dant
burden.” United
(6th
743,
Spearman,
v.
States
186 F.3d
performed
“[t]he
during
Cir.1999).
10th, 11th,
and 12th [RFOs]
...
order to convict defendant
consisted of whole
inspec-
head visual
making
false statements
a federal
tion of the RPV head in accordance with
1001,
agency
§
violation
...;
U.S.C.
the [BACCP]”
“(1)
prove:
must
the defen
5. “Hollowing 12RFO, the RPV head
(2)
statement;
made a
dant
the statement
cleaned
demineralized water to
(3)
fraudulent;
is false
the statement is
possible
extent
provide
a clean
material;
(4) the defendant
made
head
evaluating
future
re-
(5)
knowingly
willfully;
statement
sults” ....
pertained
activity
statement
to an
We must uphold the conviction on this
jurisdiction of a
agency.”
within the
federal
count if there was sufficient evidence for a
Dedman,
(quoting
1. “[djuring Geisen, 65 of 69 nozzles Besse’s managers, including ...; were viewed” under pressure considerable from their su- deposits noted operation. because of extent keep plant in to periors PCAQ reviewed Moffitt, that in the 2000 that testified supervisor, Geisen’s him. Goyal’s that Davis- emails to very concerned and because FENOC was un- operating as scheduled continue Besse Second, plant that as Geisen testified 2731, FENOC’s After spring til SL the Babcock and Wilcox representative to 2001-01, proved response to NRC first group, he was aware of risks owner’s securing per- in the NRC’s unsuccessful given presenta- and had cracking of nozzle took operations, to Geisen mission continue the risks with the tions on associated in and coordinating role a more active early in 2001. He was also in- cracking to response overseeing Davis-Besse’s 2001 memoran- reviewing June volved Moffitt, su- Geisen’s direct NRC 2001-01. plant could dum that stated while versus pervisor, testified “December RF013, safely bo- operate significant until great discus- became issue of April remained on the RPV deposits ron technical, economic, sion” and that following head RF012 must be addressed. halting operation repercussions morale Furthermore, his involvement because of cycle completion of the would before the PCAQ canceling reviewing the 2000 himself testified “quite severe.” Geisen operational imposed by restraint Siem- “very up- vice-president that the site was aszko, aware that the whole Geisen was unsuccessful, when 2731 was set” SL during the head had not been cleaned “all work activi- which created sorts new represented in process RF012 in 2000 as ty.” presented at trial that Geis- Evidence Thus, jury have SL 2741. rational could drafting role in played en a direct determined that Geisen knew SL reviewing by directing Siemaszko SL that, 12RFO, “[f]ollowing 2741’s assertion Goyal was demonstrates head cleaned with demineral- the RPV was directly involved in Davis-Besse’s efforts possible provide extent to ized water plant the NRC to allow convince evaluating inspec- clean head future operating continue until RF013. Geisen materially misleading. tion results” was text SL 2744. A ration- also drafted the jury could have Mar- Finally, the credited therefore, jury, al could have concluded testimony that reviewed the tin’s had a and intent that Geisen motive personally August videos NRC in keep deceive the order 2001, and, therefore, there knew that through spring operation video, contrary narration the 1996 presented suffi- representations that there none at trial for a rational cient evidence sixty-five than nozzles fewer mis- that Geisen knew that SL 2741 find had been visible. prior the success of the represented *19 Therefore, although jury a rational spections cleaning the of of and extent the to circum- rely largely would have had on First, the RPV head. there was sufficient to infer knowl- stantial evidence Geisen’s beyond find jury evidence for rational to in edge falsity the of the statements SL reasonable doubt Geisen knew presented, given the evidence one inspection in 1996 had not been of knew that could have found Geisen sixty- and had not “entire head” covered in assertions 2741 were false certain SL sixty-nine in alleged five of the nozzles and, this, knowing signed Furthermore, incomplete and jury SL 2741. a rational NRC and SL 2741 with evi- submitted could find that there was sufficient past inspections represent the intent to that Geisen knew that BACCP dence they than had been. complete not in the as more inspections had been utilized
491 Therefore, photo there was sufficient evidence 6. for No. 19 in depicts “[t]he jury guilty violating background find Geisen the extent boron buildup 2 in alleged §§ 1001 count 3. the head is and as and the reason no credit being
is taken for able to visually inspect Making B. False Count drives,” whereas, k— the remainder of the Statements in SL knew, as the defendants then well other images from the 2000 showed 4 government’s case on count that the extent buildup boron on the Geisen, against perhaps strongest head greater was much than what was jury and we find a rational find could depicted photo in the of nozzle number beyond § all elements of 1001 a reasonable 19. charged doubt. 4 the indictment Count with “knowingly willfully uphold We must the conviction on this
mak[ing], us[ing], causing] others if count conclude that we there was suffi- is, writing, make use a false [SL cient evidence for a to find one of 2744], knowing that it contained follow Dedman, allegations. these six See statements, material were fraud F.3d 598. The evidence strongest §§ ulent” to NRC violation of first, respect fourth, fifth, to the allegedly and 2. The false material state statements, sixth and so we limit our re- ments were: view to allegations. those RFO,
1. during 100% of “[i]n for which Geisen wrote the inspected by nozzles were exami- visual captions to the “representative” photo- ...; nation” graphs, is the most direct evidence Geis- 2. [RFO10] video was participation “[s]ince void en’s in representing to the narration, orientation each spe- head NRC that it was safe to operating continue cific nozzle view could not be correlated the reactor because Davis-Besse con- by ...; nozzle number” adequate ducted thorough inspections and 2000. following Unlike pictures repre- are “[t]he previous letters, serial sentative of which Geisen Spring the head in the did directly draft, captions Outage. relatively The head was his clean product, own work and he testified that he generally good and afforded a inspec- Siemaszko, ...; Goyal, did consult or any tion” other directly individual involved “[b]ecause its location past drafting the cap- while head, pile of boric could not [a acid] be question, therefore, tions. There is no by cleaning removed mechanical but was alleged that the statements were made verified not be active or wet and and caused submitted pose therefore did not a threat him. testimony, Geisen also head from a standpoint,” corrosion false, admitted that the statements were whereas, as the defendants then well although he denied that he knew that at knew, no action had been taken Therefore, the time that he wrote them. verify boric acid whether the only § element of 1001 remains is and, thus, active or wet not a corrosion *20 whether Geisen submitted those state- threat; knowing ments they that were false. 5. “these pictures attached are repre sentative the condition of the drives to attempts Geisen shift blame for the during inspection and the misrepresentations heads” the and false statements in ...; during Siemaszko, SL 2744 stating [RFO11] onto that he that the argues also- statement “representa- to collect told Siemaszko had as not deposits had the were “verified” and that he based photographs tive” unconfirmed because active was captions on information from conversa- wet or the anyone ask about the state place that had taken Geisen did not with Siemaszko tions have firsthand relating deposits to and did not specifically of the previously but not that this knowledge. cap- testified government argues The Geisen photographs. the I upon “in- a conversation had captions by tion “was based “created” the that Geisen that he was reflect- ma[king] and critical had with images [Siemaszko] terpreting] ... with inspections on a conversation had past about back representations doing somebody prior so.” statements to any confirmed basis for else.” without attempted investigators, Geisen presented suggests trial Evidence Chimahusky providing infor- blame se- task with that Geisen did Siemaszko Chimahusky caption. mation for the same lecting photographs representative being asked testified that he did recall pho- undisputed It that the inspections. Goyal and tes- inspections, about the 1996 and representative were not tographs help tified was not asked to with that he buildup than boric acid showed far less caption. tri- testimony presented at Given existed. inspection Additionally, previously al that had reviewed Geisen discussed mem- August the June 2001 tapes respect suggests to count evidence with orandum, PCAQ and the October Geisen understood a hold on the reactor put very Siemaszko concerned the NRC deposits, inspec- considerable rational thoroughness due of the 1996 with the find that knew of jury superiors could Geisen his wanted the tion and that greater deposits of the boric acid in operation extent to remain until into the scope inspections the limited of the and this evidence of spring 2002. Given the time that 2744 was submitted un- knowledge and motive deceive and If had seen the October disputed photographs evidence that prior reports, videos or read the misleading, were a rational captions have the photographs he would known that jury could find that Geisen submitted SL representative prior of either the knowing were not contained 2744 to or the current condition of inspections There- misleading false and statements. juror fore, A rational could there- RPV head. find that a rational could there captions found that indi- fore have Geisen’s support convic- sufficient cating “repre- were photographs §§ 2 on this violating tion of 1001 and RPV head sentative” the state count. knowingly misleading. false and Concealing Facts C. Count Material 1— attempt to
Geisen’s blame Siemaszko charged Count 1 of the indictment captions content of the also unavail- willfully con “knowingly with ing. Geisen testified that he wrote causing] cealing] covering] up, past conversations with captions based tricks, up, by captioning, to be concealed and covered Siemaszko related devices, in a material facts that he not ask or others schemes and did Siemaszko jurisdiction of the within the personally involved in the matter wit, [NRC], of Davis- captions, the condition help drafting head, and the nature and Besse’s personally [RPV] he had not viewed video writing findings previous inspections tapes captions. before
493 §§ 2. 9. giving presentation head” violation 1001 and to the NRC [RPV] with false allegations ten information from specified The indictment SLs 2735 and 2741 to argue that the of a material fact: should concealment stay RF013; open until causing 1. 2731 to be forwarded to SL giving 10. a presentation to the FEN- knowing that it the NRC Company OC Nuclear Review Board “deliberately a. omitted critical facts falsely represented qualified that a concerning inspections and limita- visual performed in 1996 accessibility” tions on on all four but nozzles. “falsely b. stated that the analyze We allegations need all ten complied with ... Davis Besse’s individually the indictment we because [BACCP];” uphold must Geisen’s conviction on this falsely stating during 2. an October if count we find that there was sufficient 2001, conference call with the NRC that evidence for a to find one of the inspection” “100% RPV head Dedman, ten assertions. See 527 F.3d exception with the of some areas took 598. We note first that we because have 2000; place already found that there was sufficient the false fact that representing 3. “[a]ll evidence for a rational jury to find that penetrations CRDM were verified to be Geisen caused SLs 2741 to be free ‘popcorn’ type deposits using from NRC, forwarded knowing them to recordings video from RFO contain false statements and with intent meeting at a on 12RFO” with the NRC deceive, there was sufficient evidence to 11, 2001; October support a conviction on count 1 based causing 4. be SL forwarded sixth allegations. and seventh NRC, falsely represented However, even without relying those inspected the entire RPV head had been statements, government presented suf- 1996; ficient evidence to sustain this conviction. making representations 5. false about After negative the NRC’s response to SL scope inspection, 2731, Geisen met with NRC staff on at penetrations “[a]ll CRDM were verified least five occasions—on October 11 and ‘popcorn’ to be free from born type de- 24 and November 8 and 2001—either posits using recordings video from via conference call or in person. pur- 10RFO, 12RFO,” 11 RFO or and that pose of meetings and conference calls eyewitness videos or accounts confirmed was to reassure the NRC provide and to meeting this at a with staff NRC on further demonstrating information 24, 2001; October thoroughness previous inspections. causing 6. SL to be forwarded to call, During the October 3 Geisen stated repeating NRC false statements that there had a 100-percent been inspec- 2735; SLs 2731 and barring tion the head five or six nozzles causing to be forwarded and, at an October 11 meeting, slide photographs falsely rep- authored Geisen asserted that video as “representative” resented con- recordings from RFO 11 and RFO 12 head; dition of the RPV showed that the nozzles were free boric causing SL 2745 forwarded to acid. Geisen admitted he realized repeating the NRC false statements a complete there visualization 2741; from 2735 and SLs from RFO 12 directly RFOll and after the *22 494 staff were involved with ple from [his] submission
meeting thus before —and off on it.” signed reviews decided to and 2744—but SLs at this later. It was error correct circum- also both direct and There is became juncture inspection that the was aware of evidence that Geisen stantial the noz- represent that critical in order to inspections such previous the limitations recently inspected as as fully zles been jury infer that he a rational could regarding representations knew in were false or inspections SL 2731 those and direct The circumstantial PCAQ in example, For misleading. analysis 3 and 4 in our of counts discussed put Siemaszko inspection, for the the 2000 knowledge respect with to Geisen’s until the boron the reactor on restraint state of the RPY head and added a were removed. Geisen deposits jury that he knew convince rational could PCAQ removing the restraint page false representations were these head was due because RPV reasons, a and 11. For similar October 3 cleaned, although it was. In June never find that Geisen knew rational could signed off on a memorandum Geisen presented the information that he by Goyal that stated that prepared meetings via slides au- the NRC later until but plant operate was safe RF013 knowingly him included false thored deposits boron had im- that considerable example, misleading For statements. in RF012. peded inspection of nozzles on presented slide October review, Oconee, light in part As of that “the results afford stated that indicating that Goyal sent Geisen emails pen- all assurance that but nozzle us be a and that cleaning priority head should in 1996” and that inspected etrations were were of the center nozzles Davis-Besse leakage penetration was identified.” “no type same as those that cracked at therefore, jury, could convict Geisen on A drafting FENOC was SL Oconee. While misleading state- count based on 11, 2001, Goyal August on sent an- meetings he made in and calls with ments email to and to others in other Geisen the NRC. “I which he indicated we tha[t] stated: plan for 100%volumetric examination even no argues Geisen also bears if It we do not commit NRC.... was responsibility criminal for SL 2731 because pointed out that we can not clean our [sic] drafting and his he was not involved its head thru the mouse holes and Andrew after the chain only sign action was to off requesting large holes Seimaszko [sic] green of review indicated on the sheets viewing Structure for be cut the Service undisputed that he complete. It suggests only cleaning.” This SL 2731 signed green sheet for on making involved sure that Geisen was August behalf of himself on NRC, SL 2731 was sent to the but also August supervisor behalf of his considerable im- that he was aware responsibility admitted that his and that pediments previous inspections respect review “in inspections had been conducted that, so, doing He document. testified BACCP, with” the as stated accordance through the docu- gone would have “[he] SL 2731. looking those sections pertinent ment conclusion, evidence, design from this inter that deal with the alia, juror find that right to a rational could they [him] make sure that sounded he re- verify peo- knew that statements —which appropriate well that the as
495
Stovall,
491,
2781 were false and con-
tions. See Varner v.
viewed—in SL
500 F.3d
(6th Cir.2007). Furthermore,
pre-
cealed the extent of
limitations to
499
a dis-
“
enjoys
trict court
permitted
vious
and that he
‘wide discretion in de-
termining
admissibility
of
those material statements to be sent to the
evidence un-
’
der the Federal Rules ...
[and
as such. We therefore affirm Geis-
t]his
particularly
respect
true
on count 1.
Rule 403.”
en’s conviction
Mgt.
Mendelsohn,
v.
Sprint/United
Co.
552
Exclusion
Evidence Claim
TV.
379, 384,
1140,
128
U.S.
S.Ct.
170
L.Ed.2d
(2008) (quoting
Abel,
1
United States v.
We review district court’s de
465,
469 U.S.
105 S.Ct.
83 L.Ed.2d
cision to exclude evidence for abuse of
(1984)).
450
Davis,
discretion.
v.
United States
490
(6th Cir.2007).
541,
F.3d
546
Further
argues
the district
more,
de
“[we] review[
novo the
]
[district]
improperly
court
denied his motion to en
court’s
of law and
review[ ]
conclusions
rejection
into
pre
ter
evidence his
of a
clear error the court’s factual determina
indictment DPA. Geisen maintains that the
underpin
legal
tions that
its
conclusions.”
probative
DPA was
of his state of mind
Jenkins,
928,
United States v.
345 F.3d
person
because an innocent
likely
is more
(6th Cir.2003)
omitted).
(citations
935
We
reject
guilty
a DPA than
ais
one. He
have found that
these two standards of
further
rejection
asserts that the
was nec
“
conflict,
review are not in
‘it is an
essary
impeachment
to counter
abuse of discretion to make errors of law offered by
government
pros
regarding
”
or clear errors of factual determination’
agreements
ecution
four testify
offered to
evidentiary
rulings. United States v.
ing witnesses.
(6th Cir.2006)
Baker,
513,
458 F.3d
517
The district court
argu-
addressed these
McDaniel,
(quoting
v.
United States
398
twice,
during
ments
once
pretrial confer-
(6th
540,
Cir.2005));
F.3d
544
see also
ence, at
point
the court tentatively
Ganier,
920,
United
v.
States
468 F.3d
925
expressed
deny
its intent to
Geisen’s mo-
(6th Cir.2006) (affirming the standard of
tion,
again during
trial proceedings,
Baker).
quoted
review
when the court denied the motion in li-
guarantees
motion,
denying
“[T]he Constitution
mine.
the district
meaningful opportu
criminal
defendants
court first dismissed Geisen’s contention
nity
present
complete
impeachment
defense.”
evidence of other
690,
683,
Kentucky,
Crane v.
U.S.
witnesses necessitated inclusion of Geisen’s
(1986) (internal
rejection
S.Ct.
Furthermore, and more importantly reasons, For the foregoing we affirm us, Biaggi before court ac- case Geisen’s conviction on counts and 4 of knowledged question closer “[i]t the indictment. Judge whether District exceeded her discretion under to bar relevant [Rule 403] MERRITT, Judge, Circuit concurring in immunity [of offer] whose *25 part and dissenting part. in outweighed probative by value is the dan- confusion, of ger prejudice, unfair or de- Four government witnesses were al- lay.” Biaggi “recognize[d] Id. The lowed, court objection defendant, over the judge making the latitude of a district in Geisen, in testify great to detail about Rule but 403 determinations” found that negotiations their government to judge the district had based her Rule 403 escape prosecution while Geisen was de- on the assump- right determination erroneous nied the testify to about response his immunity tion that the offer was not at all the government’s to offer of the same deal. case, however, relevant. Id. In the instant The court’s rulings contrary seem to a acknowledged district court Geis- number principles of of relevancy usually rejection may eris of the DPA be proba- in observed criminal trials: of Rule 401 the mind, tive of an innocent state of but found Federal Rules of provides Evidence a by probative outweighed value the con- broad and definition inclusive of “relevant inquiry siderable avenues of that would be evidence.”1 Rule 408 allowing “offers to by opened admitting compromise” the evidence. The in criminal ap- cases would expressed preju- pear court also concern that to allow government evidence of the dice to the would result response.2 be- offer and par- Geisen’s aWhen many cause ty “opens “too variables other by offering [existed] door” proof con- explanation than the per- cerning which would be offers of compromise, the opposing mitted on closing party defendants argu- opportu- should be allowed the same ment represented that that denial of nity reply. long his For discussion that much guilt” testimony relevant relevancy concept on “curative admissibili- privileged. ty,” would be The district Wigmore, § court’s see 1 pp. Evidence (Tillers 1983). reasoning denying the motion in li- 731-51 Revision The failure mine, therefore, does not demonstrate an to offer the opportunity response same abuse of discretion the same manner as to similar circumstances comes close to a it did Biaggi. therefore deprivation protected We find no a trial right (a) 1. Rule 401. Definition "relevant evi- Prohibited uses.—Evidence of fol- lowing any is admissible on behalf of dence." party....: "Relevant evidence” means evidence hav- (2) Conduct statements or made com- ing any tendency to make the existence of claim, promise negotiations regarding the consequence fact that to the determina- except when in a criminal case and offered probable prob- tion of the action more or less negotiations related to a claim able than would without the evidence. public agency in the or exercise office regulatory, investigative, or enforcement Compromise 2. Rule 408. offers com- authority. promise. added.) (Emphasis majority’s The motion. court denied the challenge “question process due shrift to issue opinion gives short p. n. § Id. at evidence.” adverse explain the ramifications of fails object Although I do permit jury judge’s decision trial the suffi- in this case court’s decision charging negotia- learn of the existence evidence, I would reverse ciency witnesses, while through government tions the trial trial because new remand jury hearing from preventing the offered rejected important court offered one as well. Geisen was Had the known Geis- by Geisen. offered offered same deal en had been rejection of the evidence of Geisen’s witnesses, four one government’s delayed prosecution government’s offer of may that Geisen have believed jurors more evidentiary two inferences raises who guilty more than the witnesses was no defi- admissible under broad should be may have prosecution and spared in Section 401 of “relevant evidence” nition on a that his decision was based believed infer- Rules. First the Federal in his innocence. firm belief own argued pretrial in his ence that Geisen rejection his of the offer shows motion: enter into at trial moved to *26 Twice a of innocence” because “consciousness (1) government the offered evidence an innocent fairly could infer that jury agreement; prosecution him a deferred likely reject condi- person was to this more (2) first rejected that he it. Geisen charges guilty all than a tional of dismissal this before to introduce evidence moved Reifsteck, 841 person. States v. United judge ruling trial trial. The deferred Cir.1988). (6th Wig- Dean F.2d government’s case During the the motion. be says the evidence should admissi- more introduced, chief, government over the alone.3 ble on this basis its objection, that four of own evidence Moffitt, Miller, Goyal, jury might inference that The second witnesses— is engaged charging negoti- make from Geisen’s submitted evidence Wuokko—had deal, rejection prosecutors. then his of the ations with drawn not from his the that it offered to him again to have evidence of own but from fact was moved offering the entered, government. The of negotiations the the charging person consciously Conduct, hearing of accused as § one as evidence of Conscious- impresses strikingly (Accused's Voluntary us no less than innocent ness of Innocence Sur- Demeanor, render, etc.). hearing consciously as Escape, of another Refusal guilt psychological mark guilty.... If leaves the whole Let the accused’s conduct in; guilt”, and we of if this term "consciousness for and whether it tells conscious- come 273), (ante, § is available evidence then guilt or for consciousness of inno- ness of (which worth, want cence, of that mark of absence what it let us take is may spoken as "conscious- better term of remembering open it is that in either case innocence”) ness is some indication of the of explanations empha- to be varying is not i.e., having guilt, of not done the absence of person, deprive us an innocent sized. Let not repudiate charged. No Court seems to deed accused, falsely com- of the inference which 174); (ante, § proposition the tenden- this but from a of mon sense draws consciousness cy reject evidence of consciousness of its natural manifestations. innocence and is due to a distrust of the innocence rather however, singular perversity, several With consciousness, from conduct inference profess to refuse to allow conduct Courts feigned often and artifi- since the conduct is drawing purpose of for the be considered cial. innocence; but of consciousness of inference however, distrust, consequence frequent this occur- of is improper. one Such seems rulings by the same of inconsistent ordinary we rence Certainty in the life inferences Court. weight to inference as to attach as much § guilt; Wigmore, 293 at 189-90. Evidence the inference of consciousness of deal raises an inference that government Geisen was proved in its case culpability no than four greater wit- chief that employees plea other bar- nesses, singled gained and hence had been out way their out of prosecution and guilty as more than the whom government’s others course of conduct Through has let go. these with these reasonable, witnesses was but jury prose- proof witnesses the learned that the jury left with the strong the employees impression cution divided other explana- —absent “targets” “subjects” into and that guilt one tion —that Geisen’s another change target could from a a subject appearance class. This culpability more through a proffer.4 In the circumstances reasonably least debatable. What is case, problem only of this good government’s for the side the case jury unable to make second should be good for the defendant’s inference, but also that jury may I side. know no to make basis a distinc- just fact have been led infer oppo- admissibility tion as to acceptance between that, witnesses, site: unlike four government’s rejection Geis- offer and en was not offered a deal because he was only given the offer. The reason more culpable. The exclusion of Geisen’s District Court allowing was that the evi- jurors may have left with the delay dence would the trial and cause the impression erroneous parties Geisen was and the to focus on peripheral culpable leniency more and less entitled to matters.5 Principles reciprocity and than other employees. law, equal treatment along under with nor- *27 example, during 4. For the direct subject examination A. I investigation was of the Moffitt, government following target. of witness certainly stead of a I felt relieved exchange place: took point. that Moffitt, (TT 259; pp. RE No. ROA 112- Q: you Did prosecu- have contact with 114.) []? tors this case A. Yes. 5. THE COURT: pretrial I had said at our Q. motion, What that respect contact? conference that with to that I Well, tentatively target investigation, A. I was a of the had reached the conclusion to time, deny certainly so I had it. that I perspec- my contact that At that from indicated it is opinion many tive ... there were far too factors and Q. be, you may variables.... What did Whatever it it would understand it meant to be target that investigation? seem to me there are more reasons to meant, keep like, permit Target it out than to investigation A. to come in. And target cross-hairs, open those are reasons that we hunting. then the door There was and I was likely cross examination on what potentially he was told be indicted could counsel; therefore, his what he under- indicted on this. prosecution agreement stood a deferred him, Q. mean for and what else was involved in respect [W]ere there conditions consideration, including position his his meeting things you about how told employment industry future in the nuclear prosecutors could be used? employment.... and other IA. think I met at least twice in Iif remember, something and there was many called There too probability are variable like proffer signed, my that was^—I I possibility winning, length either or or type or attorney signed. facing against sentence was possibility probability winning through guilty a Q. subsequent meeting, And many did the verdict. just There are too variables you your indicate explanation status other than the which would be changed? permitted closing argu- defendants on A. Yes. represented Yes. guilt. ment his denial of Q. your point? What permit deny status I will not it and I will the motion. me seem to relevancy, would mal rules of any weighing process important
more complica- and added
than the extra time might the evidence in the trial that
tions
cause. America,
UNITED STATES
Plaintiff-Appellee,
v. WILLIAMS, Defendant- T.
Martin
Appellant.
No. 09-3521. Appeals, States Court
United Circuit.
Sixth 8, 2010.
Argued: June July
Decided and Filed: