Tuesday, July 20, 2010

Nuclear Regs, False Statements, and Boric Acid Corrosion



ANDREW SIEMASZKO

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0202p-06.pdf

The defendant appealed his conviction on three counts of concealing material facts and making false statements to the Nuclear Regulatory Commission (NRC) (in violation of 18 U.S.C. §§ 1001 and 2). He argued that there was insufficient evidence to support his convictions and that the government’s presentation of evidence and an improper jury instruction constructively amended the indictment. Appellate court found that there was sufficient evidence to support each of the convictions and that the defendant had failed to establish that a constructive amendment of the indictment occurred. Court affirmed.

Case arose out of an incident in 2001 at the Davis-Besse Nuclear Power Station, which is located on the shores of Lake Erie, near Toledo, Ohio, and is owned and operated by FirstEnergy Nuclear Operating Company. Defendant began work at the plant in 1999 as the systems engineer in charge of reactor coolant systems. A safety incident at a similar plant prompted the NRC to require inspections at all like plants by the end of 2001, but FirstEnergy successfully petitioned the NRC to permit Davis-Besse to operate without interruption and thus delay inspection until a scheduled refueling shutdown in spring 2002. The defendant’s involvement in preparing the documents that Davis-Besse submitted to the NRC in furtherance of the delayed inspection gave rise to his indictment on and subsequent conviction of three counts of concealing a material fact and making false statements to a United States agency.

During the delayed inspection, Davis-Besse found five cracked nozzle heads, as well as a football-sized cavity caused by boric acid erosion in the head of the reactor. These findings prompted NRC investigations into previous plant inspections and, ultimately, the prosecution of the defendant.

The appellate court painstakingly reviewed the factual record of the reports submitted to the NRC in the first ten pages of the opinion. It then stated the trial issue:

"Siemaszko’s trial subsequently was severed from that of Geisen and Cook. At the trial, which followed Geisen’s and Cook’s, the key issue was whether Siemaszko had the requisite intent to be criminally liable under § 1001." (Footnote omitted.)

The jury convicted the defendant on counts 1, 2, and 5. The district court denied the defense's motion for acquittal and for a new trial, citing certain witness testimony as particularly "damning." The district court sentenced the defendant to three years of probation for each count, to run concurrently, assessed a $4,500 fine, and prohibited the defendant from working in the nuclear industry during his probation without the approval of his probation officer.

The appellate court found:

"A rational juror, therefore, could infer that Siemaszko willfully and knowingly concealed or caused to be concealed material facts in SL 2731 regarding the prior impediments to complete inspections, that he reviewed the final document sent to the NRC after editing, was aware of the changes made, and did not object to them. Therefore, the evidence presented at trial sustains Siemaszko’s conviction for count 1 based on the first allegation in the indictment."

The defendant had also argued that any inaccuracies in his draft submissions were caused by the lack of skills and guidance necessary to complete the table and not because of improper intent. He asserted that incompetence or negligence are not sufficient to convict under § 1001 and that statements made innocently/inadvertently are not false statements under § 1001. But the government submitted evidence to the jury that the defendant was aware of the inaccuracies and had a motive to portray prior inspections as complete in order to keep the plant running until RFO13.

There was ample circumstantial evidence of the defendant's direct and indirect participation in drafting the serial letter submissions, including the false statements and material omissions alleged in count 1 of the indictment. There was sufficient evidence for a rational juror to find the defendant guilty of count 1. Court affirmed that conviction.

The appellate court's discussion of the evidence presented with respect to the allegations in count 1 reviewed the sufficiency of the evidence to support several of the allegations of false statements made in count 2. So, the court determined that the government presented sufficient evidence for a rational juror to find that the defendant knowingly and falsely stated or caused to be stated that RFO10 included an inspection of the "entire head" and that the RFO10 video did not contain head orientation narration.

A rational juror could attribute the false statement that there was a "whole head visual inspection" in compliance with BACCP in 1996, 1998, and 2000 to the defendant. The defendant admitted that those three inspections were not in compliance with BACCP, but he argued that he did not make the false statement regarding BACCP in SL 2735 because it merely was copied from SL 2731. This argument failed because the defendant was the origin of that language in SL 2731 and a jury could determine that he caused it to be included in SL 2735.

A rational juror could conclude that the defendant made/caused to be made this false statement in violation of §§ 1001 and 2. Court affirmed on this ground without addressing the remaining allegations in count 2.

As to Count 5:

"Thus, although Siemaszko’s involvement in preparing SL 2745 was considerably less direct than his involvement in formulating the statements and documents made in counts 1 and 2, there is sufficient evidence for a reasonable jury to find him guilty of count 5 beyond a reasonable doubt. We therefore affirm his conviction on this count."

The appellate court also found that there was no constructive amendment of the indictment.

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