United States v. L.E. Meyers Company ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2464
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L.E. M YERS C OMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1205—James B. Zagel, Judge.
A RGUED F EBRUARY 26, 2008—D ECIDED A PRIL 10, 2009
Before K ANNE, S YKES, and T INDER, Circuit Judges.
S YKES, Circuit Judge. L.E. Myers Company, a large
electrical contractor, was convicted of willfully violating
Occupational Safety and Health Administration (“OSHA”)
regulations, causing the death of one of its employees.
See 29 U.S.C. § 666(e). An apprentice linesman in the
early stages of his training with L.E. Myers was killed
while working on a repair assignment atop a trans-
mission tower owned by Commonwealth Edison
(“ComEd”). The “static” wire on the tower was not in
2 No. 07-2464
fact “static” (i.e., a grounded “dead” wire) but instead
was energized; the apprentice came into contact with it
and was electrocuted.
On appeal L.E. Myers argues that the magistrate judge
who presided at trial improperly instructed the jury on
the issues of corporate knowledge and conscious avoid-
ance. The company also argues that the judge erroneously
excluded evidence of a 1979 fatality involving a ComEd
linesman who was electrocuted by contact with an ener-
gized static wire. Finally, the company claims it is entitled
to a new trial based on a proposed OSHA regulation
creating new duties for “host employers” like ComEd
regarding hazards at their transmission facilities. The
proposed rule, published for notice and comment after
the trial was concluded, was accompanied by an explana-
tory comment from OSHA describing energized static
wires as one such hazard.
We reverse. The magistrate judge improperly
instructed the jury on corporate knowledge and conscious
avoidance. Corporate knowledge in this context includes
knowledge of hazards acquired by the corporation’s
employees provided the employees in question are re-
sponsible for reporting such hazards to the corporate
hierarchy. This important proviso was omitted from the
jury instruction on corporate knowledge. Furthermore,
there was insufficient evidentiary support for the
conscious avoidance or “ostrich” instruction; it should
not have been given. Because the statute’s willfulness
requirement was the central point of contention in this
criminal OSHA case, we are not convinced that these
No. 07-2464 3
instructional errors were harmless. Remand for retrial is
required.
We reject L.E. Myers’s evidentiary argument, however;
the evidence of the 1979 ComEd fatality was properly
excluded. Finally, because we are reversing for a new
trial based on instructional error, we need not address
whether L.E. Myers is entitled to a new trial based on
the proposed OSHA regulation.
I. Background
Electric transmission towers carry high-voltage
electricity from generating plants to distribution net-
works for further distribution to the utility’s customers.
These towers typically have six energized power lines,
three on each side of the tower. A “static wire” runs above
the power lines on each side and acts as a lightning rod,
directing strikes of lightning toward the towers and
then to the ground, preserving the insulators and the
wires. Energized power lines have 10-foot insulators
connecting the lines to the tower. A static wire, however,
usually will not have any insulator between itself and
the tower; it is a grounded “dead” wire. In rare instances
a static wire can become spontaneously energized by
induction, depending on its proximity to and the level
of voltage in the transmission lines.
L.E. Myers is one of the largest electrical contractors
in the nation and contracts with electric utilities to pro-
vide maintenance and repair work on transmission lines.
L.E. Myers had a longstanding contractual relationship
4 No. 07-2464
with ComEd to perform maintenance and repair work
on ComEd’s transmission network in the Chicago area
and received regular work assignments from ComEd to
service its transmission towers. Under the L.E.
Myers/ComEd contract and L.E. Myers’s collective bar-
gaining agreement with its employees, L.E. Myers was
responsible for compliance with OSHA safety standards
on these service jobs.
In 1968 one of ComEd’s transmission towers located
in the flight path of O’Hare Airport in Chicago was
nearly struck by a plane. As a result, the Federal Aviation
Administration required ComEd to place lights on top
of its transmission towers near airports in the Chicago
area. To power the lights, ComEd energized the static
wire on one side of the affected towers, making it an
“energized static wire,” which would otherwise be an
oxymoron. The energized static wires on these towers
had small six-inch insulators separating them from
the towers.
A. The Blake Lane Fatality
On December 27, 1999, ComEd asked L.E. Myers to
perform emergency service on Tower 97 in Mt. Prospect,
Illinois. ComEd’s visual inspection of the tower had
revealed that the pin holding the static wire on the
east side of the tower was loose. If the wire broke free,
it could fall onto the transmission wires below, causing
power outages. The next day L.E. Myers assembled a
crew for this assignment: Roger Nelson, a general fore-
man; Darin West, a foreman; and apprentices Blake Lane
No. 07-2464 5
and Robert Huchel. Lane and Huchel had recently gradu-
ated from the American Line Builders Joint Apprentice-
ship and Training Program and had just that month
started working at L.E. Myers as apprentice linesmen.
Norman Streseman, a ComEd inspector, was present at
the job site to ensure that the work was completed; in ac-
cordance with the contract and ComEd policy, however,
he did not directly supervise the repair work.
The L.E. Myers crew arrived at Tower 97 and briefly
discussed the work to be done, but West (the foreman)
did not read the ComEd construction specifications
included in the work order. Huchel stayed on the
ground with Nelson to operate the “hand line”—a pulley
used to send equipment up and down the tower. West
and Lane climbed up the tower and successfully
secured the east-side static wire. Nelson, the general
foreman, then called up to them to check the west-side
static wire to see if it was loose as well. Nelson had
visually examined the east-side static wire with the aid
of binoculars before West and Lane climbed the tower;
he had not, however, visually inspected the west-side
static wire and so did not notice the small insulator
attached to it.
In response to Nelson’s direction, West sent Lane to the
other side of the tower to check the west-side static
wire. West did not notice the insulator either. From his
vantage point on the opposite side of the tower, he
could not see the hardware connected to the west-side
static wire. West told Lane not to touch the static wire—
but not because he understood that it was energized.
6 No. 07-2464
Rather, he told Lane not to touch the wire because he
thought the pin might break loose, causing the wire to
fall onto the power lines. Lane accidentally touched the
energized west-side static wire and was fatally electro-
cuted.
B. The Wade Cumpston Fatality
About three months later, on March 25, 2000, Wade
Cumpston, a journeyman linesman with extensive experi-
ence working on electrical towers, was part of an L.E.
Myers crew replacing insulators on another set of trans-
mission lines. The wires on the side where the crew was
working had been de-energized, but the wires on the
other side had not. This left the possibility that the de-
energized wires could become energized by induction
from the high voltage in the energized wires. To mitigate
the risk, the crew was required to use grounding cables
to connect the uninsulated bucket they worked in to the
tower.
The crew working on the tower complained to the
foreman, Clifton Gooch, that the grounding cables were
too short. Gooch said he would ask Nelson (again, the
general foreman on this job) about replacing the cables.
When the men complained again, Gooch told them to
do the work with the cables they had or go home. The
linesmen successfully replaced two insulators without
incident using the grounding cables they thought were
too short. As they removed the grounds from the
next insulator, however, Cumpston and another member
of the crew were electrocuted. Cumpston was killed. The
No. 07-2464 7
other crew member survived, but the accident severely
damaged his memory and he was unable to recall what
happened with the grounding cables. No one else on the
job saw what happened when the two were electrocuted.
C. The OSHA Charges
L.E. Myers was charged under 29 U.S.C. § 666(e) with
two counts of willfully violating numerous OSHA regula-
tions, causing the deaths of Blake Lane and Wade
Cumpston. More specifically, the government alleged that
L.E. Myers had failed to properly train its employees,
improperly determined work-site conditions, failed to
conduct a prejob briefing of potential hazards, failed to
ensure that employees were qualified for the work they
were performing, failed to ensure that employees main-
tained a minimum safe-approach distance to energized
power lines, and (with respect to the Wade Cumpston
fatality) failed to ensure proper use of grounding cables.
See 29 C.F.R. §§ 1910.269(a)(2)(i), .269(a)(3), .269(c),
.269(l)(1), .269(l)(2), & .269(n)(3). The defendant waived
the right to trial before a district judge and consented to
a jury trial before a magistrate judge. See F ED. R. C RIM.
P. 58(b)(3).
At trial the government sought to establish that ener-
gized static wires were a common occurrence on trans-
mission towers around airports in northern Illinois. It
introduced a ComEd map depicting the location of towers
with energized static wires and also introduced the
contract between ComEd and L.E. Myers, in which L.E.
Myers represented that it was familiar with ComEd’s
facilities and transmission system. Streseman, the ComEd
8 No. 07-2464
inspector on site at the time of the Lane fatality, testified
that he had seen the insulator on the static wire on the
west side of the tower and brought it to the attention of
West, the L.E. Myers foreman. The government also
elicited testimony from witnesses in the electrical
industry that it was standard practice to treat all
electrical lines as energized unless grounded or other-
wise secured as “dead” or nonenergized.
L.E. Myers employees testified that they had never
heard of an energized static wire and therefore never
thought they would need to look for signs of one. West
conceded that he had not read the work order that
ComEd had given to him, but also testified that it was not
relevant because Streseman had already verbally told
him what needed to be done and the written materials
did not contain any information about the energized west-
side static wire. The L.E. Myers employees acknowl-
edged, however, that they could have discovered the
insulator on the west-side static wire had they looked for
it and that none of them had used binoculars to examine
that side of the tower. Witnesses testified that although
Blake Lane was an apprentice, the union manual encour-
aged employers to send apprentices into the transmission
towers as soon as possible in order to gain experience
necessary to progress through their apprenticeship. These
witnesses also testified that climbing a steel tower is
significantly easier than climbing wooden pole distribu-
tion towers on which apprentices are initially trained.
Regarding the Wade Cumpston fatality, Michael Young,
a member of the crew, testified that he complained to the
No. 07-2464 9
foremen that the grounding cables were too short and that
he and Cumpston had difficulty adequately grounding
the first transmission wires they worked on. Young also
testified that the cables provided by L.E. Myers did not
have the proper type of clamp for grounding the trans-
mission wires. Other witnesses contradicted this testi-
mony, however, and an expert for L.E. Myers testified
that the grounding cables were the correct length and
type for the kind of work the men were doing.
To bolster its proof that L.E. Myers acted willfully or
with deliberate indifference, the government introduced
evidence of a service call in October of 1970 in which
L.E. Myers performed repair work on a ComEd tower
with an energized static wire. ComEd’s records from
this job reflected that the L.E. Myers crew repaired the
static wire without incident. In its closing argument, the
government maintained that the evidence regarding the
1970 service call established that L.E. Myers knew that
some of ComEd’s towers had energized static wires.
L.E. Myers sought to introduce evidence about a 1979
incident in which a ComEd lineman was electrocuted
when he came into contact with an energized static wire.
Notes prepared by an OSHA compliance officer after this
fatality indicated that the officer recommended that
ComEd consider placing warning signs at towers with
energized static wires, and that in response ComEd
agreed to take certain other precautionary measures to
warn outside contractors about the location of energized
static wires. L.E. Myers argued that this evidence helped
to establish as a general matter that energized static
10 No. 07-2464
wires were not commonly recognized, and more specifi-
cally, that the evidence was exculpatory because there
was no such warning from ComEd prior to the Blake
Lane fatality. The magistrate judge thought the evidence
of the 1979 accident was irrelevant and potentially mis-
leading and therefore excluded it.
The jury-instruction conference produced several
disagreements among the parties. The government’s
proposed instructions told the jury that as to each of the
two counts, “the government must prove that at least one
willful violation of one of the OSHA regulations set forth
in that count caused the death of an employee.” The
instructions went on to define “willful” as follows:
A violation of an OSHA regulation or safety standard
is willful if the employer had actual knowledge that
its actions did not comply with the regulation or
standard, and the employer intentionally disregarded
the requirements of the regulation or standard or was
deliberately indifferent to those requirements. The
employer need not have acted maliciously or specifi-
cally intended to harm its employees.
The instructions also defined the “actual knowledge” of
a corporation as follows:
In deciding whether the defendant corporation acted
knowingly, you must consider that a corporation can
act only through its employees and agents. Accord-
ingly, knowledge obtained by the corporation’s em-
ployees acting within the scope of their employment
that concerns a matter within the scope of their em-
ployment is knowledge possessed by the corporation.
No. 07-2464 11
Once a corporation acquires that knowledge, it
remains with the corporation even if the employee is
no longer employed by the corporation, if the knowl-
edge is of continuing importance to the business of
the corporation.
This “corporate knowledge” instruction was tailored in
part to explain the legal significance of the evidence
regarding the 1970 service call. The core of L.E. Myers’s
defense to the count involving the Blake Lane fatality
was that energized static wires were not a well-known
phenomenon and the company did not have actual knowl-
edge of the existence of this hazard. The government
argued that L.E. Myers knew that energized static wires
were present on at least some of ComEd’s towers
because the October 1970 service call involved the repair
of a static wire on a tower with an energized static wire.
According to the government, the knowledge acquired
by the crew on the 1970 service call was the corporation’s
knowledge, and it remained with the corporation
through the 1999 accident that killed Blake Lane.
L.E. Myers objected to the proposed definition of corpo-
rate knowledge, arguing that under United States v.
Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998), an em-
ployee who obtains knowledge of a given hazard must
also have a duty to report that information to superiors
or to ameliorate the condition for the employee’s knowl-
edge to be considered the corporation’s. The company
asked the magistrate judge to amend the corporate-knowl-
edge instruction to reflect this principle. The judge de-
clined and gave the corporate-knowledge instruction as
it appears above.
12 No. 07-2464
In addition, the government asked for a “conscious
avoidance” instruction, more colloquially known as the
“ostrich instruction.” The ostrich instruction permitted
the jury to infer knowledge “from a combination of suspi-
cion and indifference to the truth.” More specifically, the
ostrich instruction told the jury that “[i]f you find that
a person had a strong suspicion that things were not
what they seemed or that someone had withheld some
important facts, yet shut his eyes for fear of what he
would learn, you may conclude that he acted knowingly.”
L.E. Myers objected to this instruction as well, arguing
that the evidence did not support it. The magistrate
judge disagreed and included the ostrich instruction
along with the other instructions on willfulness noted
above.
The jury found L.E. Myers guilty on the § 666(e) count
involving the death of Blake Lane but not guilty on the
§ 666(e) count involving the death of Wade Cumpston.
The magistrate judge imposed a sentence of three
years’ probation and a fine of $500,000. See 18 U.S.C.
§ 3571(c)(4) (organizational defendant found guilty of a
misdemeanor resulting in death may be fined up to
$500,000).
L.E. Myers moved for a new trial under Rule 33 of the
Federal Rules of Criminal Procedure based on newly dis-
covered evidence, or alternatively, a violation of Brady v.
Maryland, 373 U.S. 83 (1963). L.E. Myers noted that OSHA
had proposed a new safety regulation regarding hazards
at transmission facilities and argued that the new regula-
tion was either newly discovered evidence or Brady
No. 07-2464 13
evidence bearing on the issue of its knowledge of the
energized-static-wire hazard. The new rule would
require “host” utilities like ComEd to warn contractors
about hazards on their transmission systems that might
not be recognized by the contractors’ employees. The
commentary accompanying the proposed rule identified
energized static wires as one such hazard. OSHA pub-
lished this proposed new safety standard and explanatory
commentary in the Federal Register, 70 Fed. Reg. 34,822,
after the jury returned its verdict.
The magistrate judge denied the motion for a new trial,
noting that the proposed new rule did not relieve L.E.
Myers of liability but rather imposed additional safety
responsibilities on ComEd. In addition, the judge
thought that a new trial was not warranted because the
proposed rule was subject to change and was not yet
the official policy of OSHA. Finally, the judge held that
the proposed new rule had no bearing on L.E. Myers’s
liability because it was published for notice and
comment long after the events at issue in the case.
L.E. Myers appealed to the district court. See F ED. R.
C RIM. P. 58(g)(2)(D). The district court held that the jury
instruction on corporate knowledge improperly omitted
the Ladish requirement that the employee acquiring
knowledge of a hazard must also have a duty to report
the hazard up the corporate chain for the employee’s
knowledge to be considered the corporation’s. In addition,
the court held that the evidence did not support the
magistrate judge’s decision to give the ostrich instruc-
tion. The court concluded, however, that these instruc-
14 No. 07-2464
tional errors were harmless. Finally, the court affirmed
the exclusion of the evidence regarding the 1979 ComEd
fatality and the denial of L.E. Myers’s motion for a
new trial. L.E. Myers appealed.
II. Analysis
A. “Corporate Knowledge” and “Ostrich” Jury Instruc-
tions
L.E. Myers renews its challenges to the “corporate
knowledge” and “ostrich” jury instructions. We review
claims of instructional error de novo. United States v.
Jefferson, 334 F.3d 670, 672 (7th Cir. 2003).
The statute under which L.E. Myers was convicted
punishes employers who “willfully violate[] any standard,
rule, or order [promulgated by OSHA] . . . and that viola-
tion caused death to any employee.” 29 U.S.C. § 666(e).
In Ladish, we comprehensively addressed the statute’s
“willfully” requirement, holding that it is synonymous
with “knowingly” and thus requires “awareness of the
essential facts and [applicable] legal requirements.” 135
F.3d at 490. We held that this means “actual knowledge” of
both the hazardous condition in question and the associ-
ated legal obligations; it is not enough that the circum-
stances and conduct of the employer are such that
the employer merely should have known of the hazardous
condition and associated legal obligations. Id. at 487-
88. Ladish further held that “[k]nowledge may be proved
by showing deliberate indifference to the facts or the
law . . . or by showing awareness of a significant risk
No. 07-2464 15
coupled with steps to avoid additional information, as
with an ostrich instruction, but in either event what
must be proved beyond a reasonable doubt is actual
rather than constructive knowledge.” Id. at 490.
Ladish also addressed the concept of corporate knowl-
edge. The defendant Ladish Malting Company had argued
that “corporate knowledge means supervisors’ knowl-
edge.” Id. at 492. We rejected that understanding of
corporate knowledge as too narrow. But we also
rejected the proposition that a corporation “knows” what
any of its employees know. That would have been too
broad. We noted that “the knowledge of a worker who
trips over a safety hazard but does not understand or
report what he has found does not count. Most federal
statutes that make anything of corporate knowledge also
require the knowledge to be possessed by persons autho-
rized to do something about what they know.” Id. at 492-
93.
We thus observed in Ladish that “[c]orporations ‘know’
what their employees who are responsible for an aspect of
the business know.” Id. at 492. More specifically, in the
context of a criminal OSHA prosecution, we held that a
definition “which asks whether a particular person has
been given responsibility over safety . . . makes more
sense than asking whether someone is a supervisor.” Id. at
493. We noted that “employers may decide for them-
selves who is ‘authorized’ to inspect the plant for safety
hazards, who is to receive and respond to safety com-
plaints, and who is to report to the persons with authority
to make decisions.” Id. Accordingly, we held that “[i]f
16 No. 07-2464
‘authorized agents’ with reporting duties acquire actual
knowledge, it is entirely sensible to say that the corpora-
tion has acquired knowledge.” Id. Based on this under-
standing of corporate knowledge, we approved jury
instructions that “told the jury to consider the knowl-
edge of Ladish’s ‘officers, directors, and authorized
agents’ provided ‘that [the] supervisor or employee has
some duty to communicate that knowledge to someone
higher up in the corporation.’” Id.Here, the magistrate judge instructed the jury that
“knowledge obtained by the corporation’s employees
acting within the scope of their employment that con-
cerns a matter within the scope of their employment is
knowledge possessed by the corporation.” L.E. Myers
argues that this formulation of the corporate-knowledge
instruction was inaccurate and misleading because it
contained no reference to the Ladish requirement that the
employee who acquires knowledge of the safety hazard
in question must have a duty to report that knowledge
to the company for his knowledge to be deemed the
corporation’s knowledge. We agree. The “scope of employ-
ment” language adopted by the magistrate judge misses
the material point of Ladish. The proper inquiry is not
whether the employee who acquires knowledge of a
given hazard was acting within the scope of his employ-
ment when he did so but whether he was an employee
with a duty to report or ameliorate such hazards. The
corporate-knowledge instruction adopted by the magis-
trate judge erroneously omitted this qualifying language.
L.E. Myers also argues the magistrate judge should not
have given the “conscious avoidance” or “ostrich” instruc-
No. 07-2464 17
tion. Again, we agree. The ostrich instruction is appro-
priate “only when it addresses an issue reasonably raised
by the evidence.” United States v. Diaz, 864 F.2d 544, 549
(7th Cir. 1988). It is appropriate where the actions of the
defendant and “the surrounding circumstances indicate
that the only way the defendant could not have known
of the illegal activity is by affirmatively avoiding the
knowledge.” United States v. Fauls, 65 F.3d 592, 598-99
(7th Cir. 1995). The defendant must claim “a lack of guilty
knowledge,” and there must be “facts and evidence
that support an inference of deliberate ignorance.” Diaz,
864 F.2d at 550 (internal quotation marks omitted).
Evidence that a defendant reasonably should have had
strong suspicions about the operative illegality is not
sufficient to support the ostrich instruction. United States
v. Carrillo, 435 F.3d 767, 782 (7th Cir. 2006). Stated differ-
ently:
[A] jury must not be invited to infer that a particular
defendant deliberately avoided knowledge on the
basis of evidence that only supports the inference
that a reasonable person in the situation would have
deliberately avoided knowledge. As we have said,
the instruction should only be given where “there
are facts and evidence that support an inference of
deliberate ignorance” . . . .
Id. (quoting United States v. Carrillo, 269 F.3d 761, 769 (7th
Cir. 2001)). Accordingly, we have held that to support an
inference of “deliberate ignorance,” there must be evidence
that the defendant took “steps to make sure that he [did]
not acquire full or exact knowledge of the nature and
18 No. 07-2464
extent of” the illegal activity. United States v. Giovannetti,
919 F.2d 1223, 1228 (7th Cir. 1990). Failing to display
curiosity is not enough; the defendant must affirmatively
“act to avoid learning the truth.” Id.Here, the government can point to no evidence that any
L.E. Myers employee took deliberate steps to avoid learn-
ing the truth. True, there is evidence of deliberate indif-
ference to the facts, but there is no evidence of deliberate
avoidance, and the latter is required for the ostrich in-
struction. Accordingly, it was error to give the ostrich
instruction.
The district court reached the same conclusions as we
have here that the corporate-knowledge instruction
incorrectly stated the law and the ostrich instruction was
not supported by the evidence. The court concluded,
however, that the errors were harmless. Reluctantly, we
cannot agree. These instructions went to the heart and
most hotly contested aspect of the case: whether L.E.
Myers’s conduct was willful. The improper corporate-
knowledge instruction told the jury that it could find a
“willful” violation of the statute if any L.E. Myers em-
ployee was aware of or was deliberately indifferent to
the facts relating to the hazard in question, i.e., energized
static wires. The ostrich instruction, which should not
have been given at all, compounded this error, telling the
jury that it could “infer knowledge from a combination
of suspicion and indifference to the truth.” The cumulative
effect of these instructional errors was to significantly
“water down” the willfulness requirement of the § 666(e)
offense, Ladish, 135 F.3d at 488, if not to the degree at issue
No. 07-2464 19
in Ladish itself, at least to a degree that cannot be consid-
ered harmless given the centrality of this issue to L.E.
Myers’s defense.
This is especially true because of the emphasis the
government placed on the evidence of the 1970 service call.
It relied heavily on that episode to argue that L.E. Myers
had actual knowledge of the presence of energized
static wires on some ComEd transmission towers. The
misleading instruction on corporate knowledge came
close to directing the jury to find corporate knowledge
from the evidence of the 1970 service call; there was no
evidence that the employees on that crew were acting
outside the scope of their employment, and that’s the
only qualifier the corporate-knowledge instruction con-
tained.
The government downplays the significance of this
evidence, asserting that the “fundamental issue for the
jury was not whether [L.E. Myers] knew that static wires
were sometimes energized,” but only “whether L.E.
Myers knew it was violating OSHA standards at the Mt.
Prospect work site in 1999.” But whether L.E. Myers
knowingly violated OSHA standards at the Mt. Prospect
work site in 1999 requires both that it had actual knowl-
edge of the applicable standards (it never denied this)
and that it “act[ed] ‘knowingly’ with respect to the facts.”
Id. at 487. The latter requires knowledge of or deliberate
indifference to the hazardous condition at issue—that is,
energized static wires. Id. On this point, the district court
suggested that “the case could have been won without
the 1970 evidence” and thought the jury “could easily
20 No. 07-2464
discount the significance” of the 1970 service call. (Empha-
sis added.) Maybe so, but that’s not the harmless-error
standard. On harmless-error review, the government has
the burden of establishing that it is clear beyond a reason-
able doubt that the jury would have convicted absent
the error. United States v. Mansoori, 480 F.3d 514, 523 (7th
Cir. 2007) (citing Neder v. United States, 527 U.S. 1, 18
(1999)). For the reasons we have explained, it has not
carried that burden here. Remand for retrial is required.
B. Exclusion of the 1979 ComEd Fatality
L.E. Myers also argues that the magistrate judge im-
properly excluded evidence of the fatality in 1979 involv-
ing a ComEd linesman who accidently came into contact
with an energized static wire. This argument needs only
brief attention. We review claims of evidentiary error for
abuse of discretion, United States v. Thomas, 453 F.3d 838,
844-45 (7th Cir. 2006), which occurs only where “no
reasonable person could take the view adopted by the
trial court,” United States v. Cash, 394 F.3d 560, 564 (7th
Cir. 2005).
OSHA investigated the 1979 accident, and notes made
by the agency’s compliance officer reflect that a recom-
mendation was made that ComEd place warnings on
towers with energized static lines for the benefit of its
outside contractors. L.E. Myers wanted to introduce
this evidence to bolster its argument that energized static
wires were not a commonly recognized hazard in 1999.
It was not an abuse of discretion to exclude this evidence.
The compliance officer’s notes do not reflect a formal
No. 07-2464 21
agreement between OSHA and ComEd to post warnings
about energized static wires. Nor do they help to clarify
whether energized static wires were a commonly recog-
nized hazard in 1999. The evidence was also potentially
misleading; a discussion between OSHA and ComEd
about ComEd’s safety practices does not relieve L.E.
Myers of liability for its own compliance with OSHA
regulations. The evidence of the 1979 fatality was
properly excluded.
C. The Denial of the Rule 33 Motion
L.E. Myers moved for a new trial under Rule 33 of the
Federal Rules of Criminal Procedure based on newly dis-
covered evidence or, alternatively, a Brady violation. The
“new evidence” (or alternatively, the basis for the
Brady claim) was a proposed new safety standard pub-
lished by OSHA for notice and comment after the trial
concluded. The proposed new rule would require “host
utilities” like ComEd to warn outside contractors of
hazards their employees might not otherwise recognize.
The commentary published with the proposed rule de-
scribes energized static wires as one such hazard.
The magistrate judge denied the motion for a new trial
and the district court affirmed. Because we are
remanding for retrial based on the errors in the jury
instructions, we need not address whether the motion for
a new trial should have been granted. The status and
relevance of the proposed new rule may or may not be
an issue in the proceedings on remand.
22 No. 07-2464
Accordingly, for the foregoing reasons, we R EVERSE
the judgment of the district court and R EMAND for
further proceedings consistent with this opinion.
4-10-09