Opinion
22-cr-55-jdp
09-21-2023
UNITED STATES OF AMERICA, Plaintiff, v. DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, and JOEL NIEMEYER, Defendants.
POST-TRIAL JURY INSTRUCTIONS 9/21 DRAFT
Members of the jury, you have seen and heard all the evidence. Before you hear the closing arguments, I will give the final instructions on how you should consider the evidence and the law you must apply to the facts. This will take me about 45 minutes.
CONSIDERATION OF THE EVIDENCE
All of the introductory instructions that I gave you at the beginning of this trial still are in effect. I will give you copies of all my instructions so that you will have them in the jury room for your deliberations.
I have asked questions of witnesses during the trial. Do not assume that I have any position on the matters I asked about; I ask questions to try to clarify things for you, the members of the jury. If you have formed any idea that I have an opinion about how any part of this case should be decided, please put that idea aside. It is your job, not mine, to decide the facts of this case and to render a verdict.
You have heard from several witnesses who gave opinions about technical matters. You do not have to accept the opinions of these witnesses. You should judge their opinions and testimony the same way you judge the testimony of any other witness. In deciding how much weight to give to these opinions and testimony, you should consider the witness's qualifications, the quality of the information that the witness relied on, and how the witnesses reached their conclusions. You should also consider the factors I described at the beginning of trial for determining the credibility of witness testimony in general.
Even though the defendants are being tried together, you must consider each defendant separately. Your decision concerning one defendant, whether guilty or not guilty, should not influence your decision concerning any other defendant.
Some defendants have been accused of more than one crime. The number of charges is not evidence of guilt and should not influence your decision. You must consider each charge and the evidence concerning each charge separately. Your decision on one charge, whether guilty or not guilty, should not influence your decision on the other charge.
Each defendant has an absolute right not to testify or present evidence. In arriving at your verdict, you must not consider the fact that a defendant did not testify or present evidence. You should not even discuss it in your deliberations.
Your sole concern is to determine whether the government has met its burden to prove the charges beyond a reasonable doubt based on the admissible evidence. Do not concern yourselves with ultimate result of this case or any potential consequences of the case or your verdict for the defendants or any of the victims.
[include other instructions as appropriate base on the evidence]
THE INDICTMENT
The indictment in this case is the formal method of accusing the defendants of offenses and placing the defendants on trial. It is not evidence against the defendants, and it does not raise any inference or suspicion of guilt.
The defendants are charged in the indictment as follows: [redacted text of indictment]
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
The defendants have pleaded not guilty to these charges.
The defendants are presumed to be innocent of the charges. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged.
The government has the burden of proving each charge against each defendant beyond a reasonable doubt. That burden stays with the government throughout the case. In the instructions for each count that follow, I will explain to you the specific things the government must prove, which we call “elements.” For each count, and against each defendant, the government must prove each required element beyond a reasonable doubt.
If you find from your consideration of all the evidence that bears on a particular charge against a particular defendant that the government has proved each required element beyond a reasonable doubt, then you should find that defendant guilty of that charge. If, on the other hand, you find from your consideration of all the evidence that the government has failed to prove one or more of the elements beyond a reasonable doubt, then you should find the defendant not guilty of that charge.
GENERAL INSTRUCTIONS ON CONSPIRACY
Count 1 and Count 4 in the indictment charge conspiracies, so I'll begin with some explanation of the law of conspiracy.
A conspiracy is an express or implied agreement between two or more persons to achieve an unlawful goal by committing crimes. A conspiracy may be proven even if its goals were not accomplished. The members of a conspiracy need not agree on the specific crimes to be committed, but each member of the conspiracy must join the conspiracy with the intent of committing one or more crimes to achieve the joint unlawful goal.
In deciding whether the charged conspiracy existed, you may consider all of the circumstances, including the words and acts of each of the alleged participants.
To be a member of a conspiracy, a defendant does not need to join it at the beginning, and he does not need to know all of the other members or all of the means by which the illegal goals of the conspiracy were to be accomplished. A defendant is not a member of a conspiracy just because he knew or associated with people who were involved in a conspiracy, knew that there was a conspiracy, or was present during conspiratorial discussions. Two persons are not members of a conspiracy merely because they committed the same crime. The critical point is that the government must prove beyond a reasonable doubt that the defendant you are considering was aware of the illegal goals of the conspiracy and that he knowingly joined the conspiracy intending to commit crimes to achieve the goals.
In deciding whether a defendant joined the charged conspiracy, you must base your decision only on what that defendant did or said. However, to determine what that defendant did or said, you may consider not only that defendant's own words or acts, but also the words or acts of other persons, which may help you decide what that defendant did or said.
You may not find a conspiracy between any single individual defendant and Didion Milling unless you find that the individual conspired with another Didion employee. It is not possible for Didion Milling to conspire with only one of its own employees.
LIABILITY OF A CORPORATION
Several counts of the indictment are charged against Didion Milling, a corporation. A corporation may be found guilty of a criminal offense. A corporation acts only through its agents and employees, that is, people authorized or employed to act for the corporation.
For you to find Didion Milling guilty of any of the charges against it, the government must prove each of the following things beyond a reasonable doubt:
1. The offense under consideration was committed by an agent or employee of Didion Milling;
2. In committing the offense, the agent or employee intended, at least in part, to benefit Didion Milling; and
3. Third, the agent or employee acted within his authority.
If you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable doubt, then you should find the Didion Milling guilty of the charge committed by its agent or employee. If, on the other hand, you find from your consideration of all the evidence that the government has failed to prove any of these elements beyond a reasonable doubt, then you should find Didion Milling not guilty of the charge.
An act is within the authority of an agent or employee if it concerns a matter that Didion Milling generally entrusted to that agent or employee. Didion Milling need not have actually authorized or directed the particular act.
If an agent or employee was acting within his authority, then Didion Milling is not relieved of its responsibility just because the act was illegal, or was contrary to Didion Milling's instructions, or was against Didion Milling's general policies. However, you may consider the fact that Didion Milling had policies and instructions and how carefully it tried to enforce them when you determine whether a Didion Milling agent or employee was acting with the intent to benefit Didion Milling or was acting within his authority.
PERSONAL RESPONSIBILITY OF CORPORATE AGENT
A person who acts on behalf of a corporation is also personally responsible for what he does or what he or she causes someone else to do. However, a person is not responsible for the conduct of others who performed acts on behalf of a corporation merely because that person is an officer, employee, or agent of a corporation.
AIDING AND ABETTING
In some of the counts of the indictment, the charge includes the allegation that the defendant aided and abetted the offense. A person may be found guilty of an offense by knowingly aiding the commission of the offense if he knowingly participated in the criminal activity and tried to make it succeed.
For you to find a defendant guilty of a count on this basis, the government must prove each of the following elements beyond a reasonable doubt:
1. The crime under consideration was actually committed;
2. The defendant participated in the criminal activity and tried to make it succeed; and
3. The defendant did so knowingly.
A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
DATE OF OFFENSE
The indictment charges that some offenses happened “on or about” certain dates. The government must prove that those offenses happened reasonably close to the alleged date. The government is not required to prove that the offense happened on the exact date.
I will now instruct you on the required elements of each count.
COUNT 1: FRAUD CONSPIRACY
Count 1 of the indictment charges defendants Didion Milling, Derrick Clark, Shawn Mesner, and Joel Niemeyer with conspiracy to commit interstate carrier fraud and wire fraud against Didion Milling's customers. The indictment charges that the conspiracy began on or about June 3, 2014, and continuing through at least November 1, 2017.
For you to find a defendant guilty of this charge, the government must prove both of the following elements:
1. The conspiracy to commit fraud as charged in Count 1 existed; and
2. The defendant knowingly became a member of the fraud conspiracy with an intent to advance the conspiracy by committing one of the specified crimes.
The crimes of interstate carrier fraud and wire fraud involve the following elements:
1. Knowingly devising a scheme to defraud;
2. With the intent to defraud the victims, Didion's food and beverage customers;
3. The scheme to defraud involved a materially false or fraudulent pretense, representation, or promise; and
4. For the crime of interstate carrier fraud, the use of a private or commercial interstate carrier. For the crime of wire fraud, the use of an interstate wire communication.
A scheme is a plan or course of action formed with the intent to accomplish some purpose. A “scheme to defraud” is a scheme that is intended to deceive or cheat another and to obtain money or property by means of materially false or fraudulent pretenses, representations or promises.
A false or fraudulent pretense, representation, or promise is “material” if it was capable of influencing the decision of the victim to whom it was addressed. It is not necessary that the false or fraudulent pretense, representation, or promise actually have that influence or be relied on by the alleged victim, as long as it was capable of doing so.
A victim is not defrauded if it receives exactly what it bargained and paid for, even if there was some act of deception that drew the victim into the transaction. The materially false or fraudulent pretense, representation, or promise must relate to the object of the transaction itself.
Count 1 charges defendants only with conspiring to commit interstate carrier and wire fraud, not with actually committing those crimes. So the government need not prove that all the elements of interstate carrier fraud or wire fraud were actually committed. However, the government must prove that the defendant you are considering joined the conspiracy with the intent of advancing the conspiracy by committing one or both of the two specified crimes. The members of the conspiracy did not have to agree to commit the same crime. But for each charged defendant, you must agree unanimously that the defendant intended to commit at least one of the crimes. You will indicate on the verdict form which of the crimes you find that defendant to have intended.
COUNT 2: WILLFUL OSHA VIOLATION CAUSING DEATH
Count 2 of the Indictment charges Didion Milling with willfully violating an Occupational Safety and Health Act safety standard causing the death of an employee. The indictment charges that the violation was committed on or about May 31, 2017.
For you to find Didion Milling guilty of this charge, the government must prove these three elements:
(1) Didion Milling violated the OSHA Grain Dust Housekeeping Standard;
(2) Didion Milling's violation of the Housekeeping Standard was willful; and
(3) The violation caused the death of an employee.
The Grain Dust Housekeeping Standard is found at Title 29, Code of Federal Regulations, § 1910.272(j). The Housekeeping Standard is part of the OSHA Grain Handling Standard, which establishes safety standards applicable to facilities that handle grains, including corn mills. The Grain Handling Standard contains requirements for the control of grain dust fires and explosions and certain other safety hazards associated with grain handling facilities.
One issue under the Grain Handling Standard is “fugitive grain dust,” defined as “combustible dust particles, emitted from the stock handling system, of such size as will pass through a U.S. Standard 40 mesh sieve (425 microns or less).”
The pertinent part of the Housekeeping Standard provides:
The employer shall develop and implement a written housekeeping program that establishes the frequency and methods determined best to reduce accumulations of
fugitive grain dust from ledges, floors, equipment, and other exposed surfaces.
The Housekeeping Standard requires an employer do three things: (1) the employer must develop a program of housekeeping frequencies and methods that the employer determines are best suited to reduce accumulations of fugitive grain dust in its facility so as to reduce the risk of fires and explosions; (2) the employer must put its housekeeping program in writing; (3) the employer must implement and carry out the procedures in its written housekeeping program.
An employer does not violate the Housekeeping Standard because its housekeeping program is not perfect or because it is not the best program possible. In determining the procedures that are best suited to reduce accumulations of fugitive dust, the employer may consider the expense and feasibility of housekeeping frequencies and methods. You may not assume that the employer violated the Housekeeping Standard merely because a fire or explosion occurred.
A violation of the OSHA Housekeeping Standard causes the death of an employee if (a) the death would not have occurred but for the violation and (b) the risk of employee death was a foreseeable result of the violation. The government is not required to prove that Didion Milling intended to cause death or injury to any individual.
A violation of the OSHA Housekeeping Standard is “willful” if Didion Milling had actual knowledge of hazardous fugitive grain dust accumulations in its facility and it knew that its fugitive grain dust management practices violated the Housekeeping Standard. It is not enough that the employer should have known of-but did not actually know of-fugitive grain dust accumulations and Didion's violation of the Housekeeping Standard.
For the purposes of Count 2, a corporation “knows” the pertinent facts and its legal obligations if the corporation's officers, directors, and authorized agents actually know the facts and the legal obligations. An authorized agent includes a supervisor or employee who has a duty to communicate pertinent knowledge to someone higher up in the corporation. For example, as it relates to this case, authorized agents would include supervisors or employees who are responsible for inspecting for safety hazards or receiving or responding to safety complaints.
COUNT 4: CONSPIRACY TO COMMIT FEDERAL OFFENSES
Count 4 of the indictment charges all defendants-Didion Milling, Derrick Clark, Shawn Mesner, James Lenz, and Joel Niemeyer-with a conspiracy to commit three federal crimes. The indictment charges that the conspiracy began no later than on or about March 25, 2013, and continued through at least through on or about February 8, 2018.
To prove a defendant guilty of the conspiracy in Court 4, the government must prove the following elements beyond a reasonable doubt:
1. The conspiracy as charged in Count 4 existed;
2. The defendant you are considering knowingly became a member of the conspiracy with the intent to advance the conspiracy by committing at least one of the specified federal offenses; and
3. One of the conspirators committed an overt act in an effort to advance the goals of the conspiracy.
The indictment alleges that the overarching objective of the conspiracy was to conceal violations and unsafe conditions at Didion Milling's Cambria facility from auditors and government agencies. The indictment alleges that the objective of the conspiracy would be achieved by committing three federal offenses, specifically:
1. Knowingly and willfully making and using false documents and entries in a matter within the jurisdiction of a federal agency, in violation of 18 U.S.C. § 1519;
2. Knowingly falsifying or making a false entry in any document with the intent to impede, obstruct, or influence the investigation and proper administration of any matter within the jurisdiction of a federal agency, or in relation to and contemplation of any such investigation in violation of 18 U.S.C. § 1001(a)(3); and
3. Corruptly and intentionally influencing, obstructing, impeding, or endeavoring to influence, obstruct or impede, the due and proper administration of the law under which a pending proceeding before a federal agency, in violation of 18 U.S.C. § 1505.
The elements of these three crimes are set out below in the instructions for Counts 5 through 9.
Because Count 4 of the indictment charges a conspiracy to commit a crime and does not charge the defendants with the crime itself, the government need not prove that all of the elements of the crime itself were actually committed. However, the government must prove that the defendant you are considering joined the conspiracy with the intent of advancing the conspiracy by committing one or more of the three federal offenses. The members of the conspiracy did not have to agree to commit the same federal offense. But for each charged defendant, you must agree unanimously that the defendant intended to commit at least one of the three federal offenses. You will indicate on the verdict form which of the crimes you find that defendant to have intended.
An “overt act” is any act done to carry out a goal of the conspiracy. The overt act may itself be a lawful act. The overt act may be one that is not expressly alleged in the indictment. The government is not required to prove that all the overt acts charged in the indictment occurred. The government must, however, prove the commission of at least one overt act in furtherance of the conspiracy. You must agree unanimously the that government has proved at least one overt act, but you need not agree unanimously on a single specific overt act. (Note that there is no overt act requirement for the conspiracy charged in Count 1.)
COUNT 5: DOCUMENT FALSIFICATION IN CONTEMPLATION OF FEDERAL INVESTIGATION
Count 5 alleges that defendants Didion Milling and Derrick Clark knowingly falsified entries in the August 14, 2017 environmental compliance certification and deviation summary report, in violation of 18 U.S.C. § 1519.
To prove a violation of § 1519, the government must prove these elements:
1. The defendant knowingly falsified or made a false entry into a record or document;
2. The defendant acted with intent to impede, obstruct or influence an investigation or the proper administration of any contemplated matter; and
3. The investigation or matter was within the jurisdiction of a federal department or agency.
The U.S. Environmental Protection Agency (EPA) is a federal agency of the United States.
With respect to element 2, the government is not required to prove that the matter or investigation was pending or imminent at the time of the obstruction. But the government must prove that the acts were taken with the intent to impede, obstruct, or influence a potential matter or investigation within the jurisdiction of the EPA.
COUNT 6: FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION
Count 6 alleges that defendants Didion Milling, Derrick Clark, James Lenz, and Joel Niemeyer knowingly and willfully made and used a false document, specifically the baghouse logs for 2015, 2016, and 2017, in a matter within the jurisdiction of the EPA, in violation of 18 U.S.C. § 1001(a)(3). The indictment charges that the offense was committed on or about August 16, 2017.
To prove a violation of § 1001(a)(3), the government must prove these elements:
1. The defendant you are considering made or used a false writing or document;
2. The defendant knew the writing or documents contained a false, fictitious, or fraudulent statement or entry;
3. The false, fictitious, or fraudulent statement or entry was material;
4. The defendant made or used the document or writing knowingly and willfully; and
5. The defendant made or used the writing or document in a matter within the jurisdiction of the executive branch of the government of the United States.
The EPA is an agency within the executive branch of the government of the United States. Statements and representations concerning the baghouse logs for 2015, 2016, and 2017 submitted to the Wisconsin Department of Natural Resources were within EPA's jurisdiction.
False entries are “material” if the false entries were capable of affecting the actions of the EPA. The government is not required to prove that the statement actually influenced the actions of the EPA.
A defendant “uses” a document containing false entries if the person actively employs it for an illegal purpose or makes an express or implied representation of the document's accuracy.
For purposes of Count 6, a person acts “willfully” if he acts voluntarily and intentionally, and with the intent to do something illegal. A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
The government does not have to prove that all the baghouse logs for 2015, 2016, and 2017 contained false entries. But the government must prove that at least one baghouse log in these years was materially false, and you must unanimously agree that at least one specific baghouse log was materially false.
COUNT 7: FALSE ENTRIES IN RECORD WITHIN OSHA'S JURISDICTION
Count 7 alleges that defendants Didion Milling, Derrick Clark, Shawn Mesner, and Joel Niemeyer knowingly and willfully made and used a false document, specifically the 2017 Master Sanitation Schedule logbook, in a matter within the jurisdiction of OSHA, in violation of 18 U.S.C. § 1001(a)(3). The indictment charges that the offense was committed on or about August 24, 2017.
To prove a violation of § 1001(a)(3), the government must prove these elements:
1. The defendant you are considering made or used a false writing or document;
2. The defendant knew the writing or documents contained a false, fictitious, or fraudulent statement or entry;
3. The false, fictitious, or fraudulent statement or entry was material;
4. The defendant made or used the document or writing knowingly and willfully; and
5. The defendant made or used the writing or document in a matter within the jurisdiction of the executive branch of the government of the United States.
OSHA is an agency within the executive branch of the government of the United States. Statements and representations concerning the 2017 Master Sanitation Schedule logbook were within OSHA's jurisdiction.
False entries are “material” if the false entries were capable of affecting an official decision of OSHA. The government is not required to prove that the statement actually influenced the actions of OSHA.
A defendant “uses” a document containing false entries if the person actively employs it for an illegal purpose or makes an express or implied representation of the document's accuracy.
For purposes of Count 7, a person acts “willfully” if he acts voluntarily and intentionally, and with the intent to do something illegal. A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
COUNT 9: OBSTRUCTION OF AGENCY PROCEEDING
Count 9 charges defendants Derrick Clark and Didion Milling with obstructing an OSHA proceeding, in violation of 18 U.S.C. § 1505. The indictment charges that the offense was committed on or about September 29, 2017, in Clark's deposition testimony in an OSHA proceeding.
To prove a violation of § 1505, the government must prove these elements:
1. There was a pending proceeding before a federal department or agency;
2. The defendant knew of that proceeding;
3. The defendant intentionally influenced, obstructed or impeded, or endeavored to influence, obstruct, or impede, the due administration of that proceeding; and
4. The defendant acted corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.
OSHA is a federal agency of the United States.
As used in § 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including by making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
You will now hear the closing arguments. When those arguments are finished, I will provide you with a few instructions about your deliberations.
INSTRUCTIONS AFTER CLOSING ARGUMENTS
Once you are all in the jury room, the first thing you should do is choose a presiding juror. The job of the presiding juror is to make sure that your discussions are carried on in an organized way and that every juror has a fair chance to be heard. You may deliberate in any manner you chose, but I suggest that you use my instructions as a guide to determine whether the government has met its burden of proof on every required element of each charge. You may discuss the case only when all jurors are present.
The verdict must represent the considered judgment of each juror. Whether your verdict is guilty or not guilty, it must be unanimous. When you have reached a unanimous verdict, the presiding juror should complete the verdict form and sign and date it. The bailiff will bring the verdict form to me, and we will assemble in the courtroom to announce the verdict.
You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to reexamine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence just because of the opinions of your fellow jurors or just so there can be a unanimous verdict.
The twelve of you should give fair and equal consideration to all the evidence. You should deliberate with the goal of reaching an agreement consistent with the individual judgment of each juror. You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.
If you need to communicate with me while you are deliberating, then send a note through the bailiff. The note should be signed by your presiding juror, or by one or more members of the jury. Do not tell me how you stand with respect to the verdict. To have a complete record of this trial, it is important that you do not communicate with me except in writing. I may have to talk to the lawyers about your message, so it may take me some time to get back to you. You may continue your deliberations while you wait for my answer.