ML070730063

2007/03/13 - David Geisen - Communication to the Board in the Matter of David Geisen Criminal Trial Date

ML070730063
Person / Time
Site:	Davis Besse
Issue date:	03/13/2007
From:	Baty M NRC/OGC
To:	Mike Farrar, Hawkens E, Nicholas Trikouros Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 06-845-01-EA, IA-05-052, RAS 13243
Download: ML070730063 (11)

Text

March 13, 2007 Michael C. Farrar, Chair E. Roy Hawkens Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Nicholas G. Trikouros Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of DAVID GEISEN Docket No. IA-05-052 ASLBP No. 06-845-01 -EA

Dear Administrative Judges:

The Staff is wishes to inform the Board of the following developments in Mr. Geisen's criminal proceeding. On March 9, 2007 the federal district court ordered severance of the trial

of Andrew Siemaszko from that of his co-defendants, David Geisen and Rodney Cook (Attachment 1). On March 12, 2007, the court ordered the joint trial of Messrs. Geisen and Cook to commence on June 5 (Attachment 2). As further provided, however, if the trial of

Mr. Siemaszko does not commence on May 1 as ordered, the trial of Messrs. Geisen and Cook will commence on May 1. Sincerely,

/RA by Mary C. Baty/

Mary C. Baty Counsel for the NRC Staff

Enclosures:

As stated cc w/encls: Richard A. Hibey Charles F.B. McAleer, Jr.

Mathew T. Reinhard Andrew T. Wise

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISIONUnited States of America :Case No. 3:06 CR 712v. :David Geisen, et al.,  :

ORDERThe Court conducted a hearing in this matter on February 6, 2007, to address the pendingmotion to dismiss indictment (Docket Nos. 68 and 84) and to sever (Docket Nos. 69 and 93) togetherwith other pretrial matters. The background and facts relevant to this prosecution were fully set forth in the magistrate'sreport and recommendation filed on January 3, 2007 (Docket No.102). Consequently, the Court finds it unnecessary to repeat such background. In the report and recommendation, the magistrategranted defendants' motion for a hearing to permit full argument on the issues of whether the indictment is multiplicitous and whether the severance requests should be granted. After review ofthe well-written, multiple memoranda and the eloquent argument of counsel, the Court finds that the motion to dismiss indictment should be overruled in its entirety and that the severance requests

should be granted.

MOTION TO DISMISS INDICTMENTThe fourteen-page indictment charges that defendants knowingly concealed and covered upby tricks, schemes and devices, material facts in a matter within the jurisdiction of the Executive Branch of the U. S. Government (Count One) and willfully made or caused others to make and usefalse statements of material facts (Counts Two through Five) in violation of 18 U.S.C. §§ 1001 and 1002.The indictment charges Defendants Geisen and Siemaszko in all five counts; however,Defendant Cook is charged in all counts except Count Four. The charges arise from defendants'relationship with the Davis-Besse Nuclear Power Station (Davis-Besse), a nuclear power plant located in Oak Harbor, Ohio.In the motion to dismiss Counts Two through Five of the indictment, Defendants Geisen andCook argue that such counts violate the rule against multiplicity in "two distinct ways" (Docket No.68, p.9). Defendants argue that the same crime is charged in Count One and again charged in oneof the subsequent counts. Defendants' second multiplicity argument is that Counts Two throughFive are multiplicitous with each other. To support their argument, defendants claim that they willbe forced to defend against one charge multiple times and further that the jury is likely to returninconsistent and conflicting verdicts. The government contends that defendants' multiplicity argument lacks merit because 18 U.S.C. § 1001 sets forth three separate crimes.The parties have filed multiple memoranda on the issue of multiplicity and presentedcompelling arguments at the oral argument on February 6, 2007. After review of the briefs and the oral argument transcript, the Court is persuaded that Section 1001 delineates three separate but related crimes. In reaching this decision, the Court looks at the legislative intent supporting thestatute and whether separate proof must be offered to meet the burden of proof. U. S. v. Damrah

, 412 F.3d 618, 622 (6 th 2005).The legislative history accompanying the 1996 amendment to Section 1001 states inpertinent part: "Paragraphs (1), (2) and (3) of subsection (a) then delineate the three separate but 3related offenses that Section 1001 criminalizes." H.

R. R EP. 104-680, 1996 U.S.C.C.A.N. 3935)(emphasis added).In determining whether separate proofs must be offered to meet the burden of proof, theCourt finds persuasive the government's argument that 18 U.S.C. § 1001 (a)(1) requires proof of a fact that Section 1001 (a) (3) does not. Section 1001 of Title 18 criminalizes a person who knowingly and willfully-(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;(2) makes any materially false, fictitious or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materiallyfalse, fictitious or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or . . . Counts Two through Five charge violations of 18 U.S.C. § 1001 (a) (3). The Sixth Circuithas determined that the elements of making a false statement under 18 U.S.C. § 1001 (a) are: "(1)the making of a statement; (2) the falsity for such statement; (3) knowledge of the falsity of thestatement; (4) relevance of such statement to the function of a federal department or agency; (5) thatthe false statement was material." United States v. Brown, 151 F.3d 476, 484 (6 th Cir. 1998). Thestatutory language of Section (a) (3) adds the additional element of using or making a "false writingor document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. . . . "Count One charges concealment under 18 U.S.C. § 1001 (a)(1) and proof of this countrequires the government to prove: (1) the concealment of a fact; (2) through a trick, scheme, ordevice; (3) knowledge of the concealment; (4) relevance of such statement to the function of afederal department or agency; and (5) that the concealed fact was material. After review of the required elements for prosecution under 18 U.S.C. § 1001 (a) (1) and (3),

4the Court finds that the government must prove different facts under (a) (1): the concealment of afact and the use of a trick, scheme or device to do so. Such facts are not required to prove themaking or using of a "false writing or document" under Section 1001 (a) (3). In view of the findingthat proof of different facts is required to establish the crimes charged in Counts One and CountsTwo through Five, the first prong of the multiplicity argument lacks merit.The second multiplicity argument is that Counts Two through Five are multiplicitous of eachother. Such counts contend that Serial letters 2735, 2741, 2744 and 2745 were each separate falsewritings. Defendants argue that charging a single statement later repeated as a separate count is multiplicitous. The Court agrees with the government contention that each Serial letter constitutesa separate false writing. U.S. v. Guzman , 781 F2d 428, 432-33 (5 th Cir 1986) cert. denied 106 S. Ct.1798 (1986). Accordingly, the Court finds that Counts Two through Five are not multiplicitous ofeach other. Defendants' motion to dismiss Counts Two through Five is overruled.

MOTIONS TO SEVERDefendants Geisen and Cook seek, pursuant to F ED. R. C RIM. P. 14, to sever their trial fromthat of co-defendant Siemaszko. Defendant Siemaszko similarly seeks severance claiming that theentire defense of co-defendants Cook and Geisen is based upon the argument that if false ormisleading information was provided to the government at all, Siemaszko was the source of such information. Defendants Geisen and Cook claim that Siemaszko has made numerous admissions of having intentionally provided false information to the Nuclear Regulatory Commission (NRC)

and that he did so in concert with others at Davis-Besse, including Defendant Geisen. During oral argument, counsel for Cook and Geisen characterized this case as presenting "avery unusual set of circumstances. . . .a clear Bruton issue where there are statements by one co-5defendant that is inculpatory and also names the other co-defendants" and defenses that are severely antagonistic.

Bruton v. United States , 88 S. Ct. 1620 (1968) (Tr. Pg. 25).This Court recognizes that the well-established law in this Circuit is that absent a serious riskof compromise to a specific trial right, individuals indicted together should be tried together. U. S.v. Davis, 170 F.3d 617 (6 th Cir. 1999) cert. denied, 120 S. Ct. 151 (1999)

U. S. v. Cobleigh, 75 F.3d 242, 248 (6 th Cir. 1996) and U. S. v. Paulino , 935 F. 2d 739 (6 th Cir. 1999), cert. denied 112 S.Ct. 315 (1991). Defendants Cook and Geisen argue that in a joint trial, they would be deprived of the specifictrial right to confront their accuser in the event that a confession of a co-defendant is admittedwithout the ability to cross-examine. Counsel for Geisen and Cook argue that several different kindsof statements by Defendant Siemaszko are likely to be presented at trial

1) statements that specifically identify Geisen and Cook and allege that they committed illegal acts in connection withDefendant Siemaszko's admissions of his allegedly illegal acts and 2) allegations by Defendant Siemaszko that he was pressured into taking certain actions by management which will clearly implicate Geisen and Cook. If Defendant Siemas zko elects not to testify, Geisen and Cook arguethat they will have no way to confront that evidence. This scenario, they contend, clearly presents a Bruton issue. In Bruton v United States, the U.S. Supreme Court held that a defendant's rightsunder the Confrontation Clause of the Sixth Amendment are violated when a non-testifying co-defendant's confession names the defendant as a participant in the crime, even if the jury isinstructed to consider the confession only against the confessing co-defendant. At the hearing,counsel for Defendant Siemaszko confirmed that he has not decided whether or not to testify (Tr.

Pg. 39). Counsel for Defendant Siemaszko argues that his defense is diametrically opposed to the 6defense of Geisen and Cook and that without a separate trial, the cross-examination by each of thethree defendants will "result in a free for all, one so messy that we will not be able to clean it up .. . " (Tr. Pg. 39). Additionally, defense counsel argued that government counsel had failed to submitsatisfactory proposed redactions; however, on February 13, 2007, the government filed an exampleof a proposed redaction of one of Defendant Siemaszko's statements. Defendants filed furtherresponses contending that the proposed redaction failed to protect defendants' rights under Brutonand created a misleading and unfair version of Defendant Siemaszko's statement (Docket Nos. 126, 127 and 131 at page 1). On February 21, 2007, government counsel submitted proposed redactions to each defendantwhich it contends will comply with Bruton. Defendants disagree with the government's claims andprovide specific examples of how the proposed reactions fail to provide Bruton protection becausethe redacted statements contain "numerous direct and implicit incriminating references" (Docket Nos. 135 and 136 at page 2).In the Geisen-Cook response, counsel argues that Defendant Siemaszko's statements containthree types of facially incriminating references to them: specific references, references by title andgroup references (Docket No. 136). Defendants' counsel presents no argument regarding the redactions of their names; however, with regard to references by Siemaszko to Defendants Cook andGeisen by title as "managers" or "licensing" defendants present objections. Counsel argues that thejury will learn that Mr. Geisen's title was Mana ger Design Basis Engineering and Mr. Cook was aconsultant hired specifically to assist Davis-Besse's Licensing managers; therefore, such referencesby Siemaszko will implicitly accuse Mr. Geisen and Mr. Cook. The third type of reference whichcounsel for Geisen-Cook points out is that of group references which appear throughout Mr.

7Siemaszko's statements. In these references, Mr. Siemaszko makes accusations that "they knew acertain fact" or they took a certain action (Docket No. 136, page 4). It is defense counsel's positionthat introduction of statements containing the title and group references are vague and nonspecific.Defendants will be unable to cross-examine Defendant Siemaszko at a joint trial and the jury islikely to have the impression that Defendant was in fact incriminating his co-defendants. Similarly, Defendant Siemaszko contends that the government's proposed redactions createmisleading and unfair versions of Defendant Geisen and Cook's factual recitations. In the absenceof his ability to cross-examine Defendants Geisen and Cook, Defendant Siemaszko contends that his Sixth Amendment right will not be protected and that all three defendants will be deprived of their right to a fair trial. The Court understands that the government intends to use the redacted "statements" ratherthan testimony to prove its case against all defendants which will deny defendants an opportunity for cross-examination. In attempting to address the Bruton issue, the government must confront the"rule of completeness" provision in F ED. R. E VID. 106 which provides in pertinent part:When a writing or recorded statement or part thereof is introduced by a party, anadverse party may require the introduction at that time of any other part of any otherwriting or recorded statement which ought in fairness to be consideredcontemporaneously.

The Court agrees with defendants' counsel that it appears that the proposed redactions areunlikely to provide full protection of the defendants' constitutional and trial rights. The Court, while recognizing the cost to the government and inconvenience to witnesses if separate trials are scheduled, finds that separate trials are required in order to guarantee a fair trial for each defendant.Accordingly, the trial of Defendants Geisen and Cook will be severed from that of DefendantSiemaszko. The Siemaszko case will proceed to trial on Tuesday, May 1, 2007, at 9:00 a.m.

with 8the Honorable David A. Katz and is expected to last approximately four weeks. Empanelment bythe Magistrate Judge Vernelis K. Armstrong will begin on Monday, April 30, 2007, at 9:00 a.m.A telephone status conference will be held at 2:30 on March 26. 2007, to discuss other trial matters.

So ordered.

/s/ David A. Katz Sr. United States District Judge Dated: 3/09/07 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISIONUnited States of America :Case No. 3:06 CR 712v. :David Geisen, et al.,  :

ORDERThe Court has previously ordered a separate trial for Defendant David Siemaszko (DocketNo. 137) to be immediately followed by the joint trial of Defendants Geisen and Cook. Trial ofDefendant Siemaszko will commence on May l, 2007, with empanelment on April 30, 2007, beforethe magistrate judge. The joint trial of Defendants Geisen and Cook will follow on June 5, 2007 with jury empanelment on June 4, 2007 at 9:00 before the magistrate judge. If the trial of DefendantSiemaszko does not go forward as scheduled, the joint trial date of Geisen and Cook will beadvanced and will commence on May 1, 2007.The plea deadline for all defendants is April 9, 2007. In the event a plea of guilty is enteredafter the deadline, the Court may withhold the granting of acceptance of responsibility.

Case 3:06-cr-00712-DAK Document 138 Filed 03/12/2007 Page 1 of 2 The Court will address further issues regarding trial during the telephone status conferencescheduled for March 26, 2007 at 2:30 p.m.

So Ordered.

/s/ David A. Katz Sr. United States District Judge Dated: 03/12/07 Case 3:06-cr-00712-DAK Document 138 Filed 03/12/2007 Page 2 of 2