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United States v. DNRB, Inc.

United States Court of Appeals, Eighth Circuit

July 17, 2018

United States of America Plaintiff-Appellee
DNRB, Inc., doing business as Fastrack Erectors Defendant-Appellant

          Submitted: April 12, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before GRUENDER, MELLOY, and GRASZ, Circuit Judges.


         Eric Roach fell thirty-six feet to his death while working at a warehouse construction site in Kansas City, Missouri. Roach was not using fall-protection equipment when he fell. Following a bench trial before the district court, [1] DNRB was convicted of a Class B misdemeanor for willfully violating two safety regulations and causing Roach's death. See 29 U.S.C. § 666(e); 29 C.F.R. § 1926.760(a)(1) & (b)(1). On appeal, DNRB challenges the sufficiency of the evidence, several evidentiary rulings, and the sentence imposing the statutory maximum fine of $500, 000. We consider each of these issues in turn, and we affirm.


         DNRB first argues that the Government did not present sufficient evidence to sustain the guilty verdict. "We review the sufficiency of the evidence after a bench trial in the light most favorable to the verdict, upholding the verdict if a reasonable factfinder could find the offense proved beyond a reasonable doubt." United States v. Iqbal, 869 F.3d 627, 629-30 (8th Cir. 2017). DNRB argues that the Government failed to prove three elements of § 666(e): (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee's death.

         First, DNRB argues that it did not violate an applicable standard. Section 666(e) imposes criminal liability on "[a]ny employer who willfully violates . . . [an applicable standard when] that violation caused death to any employee." Applicable regulations require employers to protect employees from fall hazards. In particular, § 1926.760(a)(1) and (b)(1) state that employees who erect steel "shall be protected from fall hazards" by personal fall-arrest systems or certain other means. A personal fall-arrest system consists of a harness and connectors used to secure a worker to an anchorage point. 29 C.F.R. § 1926.751. DNRB maintains that it did not violate § 1926.760 because Roach had a personal fall-arrest harness and connectors, even though he was not using them to secure himself to an anchorage point on the warehouse's frame. But the regulations state that employees "shall be protected" by appropriate equipment, not that they merely be provided with or possess such equipment. See 29 C.F.R. § 1926.760(a)(1) & (b)(1); see also Dakota Underground, Inc. v. Sec'y of Labor, 200 F.3d 564, 568-69 (8th Cir. 2000) (upholding employer liability for a violation of a regulation with similar "shall be protected" language where the employees had available protection they did not use). Because Roach was not connected to an anchorage point, there was sufficient evidence that DNRB violated § 1926.760(a)(1) and (b)(1).[2]

         Second, DNRB argues that the Government failed to prove that it willfully violated the standards. The parties agree that this element requires that DNRB "intentionally disregarded or was plainly indifferent to the requirements of the Act." See Valdak Corp. v. OSHA, 73 F.3d 1466, 1468 (8th Cir. 1996). Noting that DNRB had a previous citation for violating § 1926.760, the district court concluded that DNRB was aware of its requirements. Moreover, a supervisor's knowledge can be imputed to his employer, and there was evidence supporting a conclusion that Roach's supervisor Bob Wiechens intentionally disregarded the safety requirements here. See Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063, 1066 (8th Cir. 1996). Wiechens testified that it was his job to know and enforce the applicable safety regulations. The district court found that Wiechens saw Roach walking along the trusses of the warehouse without being connected to an anchorage point. Several witnesses testified that they saw Roach doing so, and a crane operator stated that he expressly warned Wiechens about Roach's failure to use fall-protection equipment. One coworker testified that he and Roach worked without fall protection and that Wiechens observed their work. As a result, the court did not credit Wiechens's testimony that he was unaware that Roach was not using fall-protection equipment. "The district court was in the best position to observe the witnesses' demeanor and assess their credibility, and we will not disturb the district court's reasoned credibility determinations." United States v. Bowie, 618 F.3d 802, 814 (8th Cir. 2010). Because Wiechens's knowledge can be imputed to DNRB, sufficient evidence supported the court's finding of a willful violation by the company.

         Third, DNRB argues that the Government failed to prove causation. "When a crime requires not merely conduct but also a specified result of conduct, a defendant generally may not be convicted unless his conduct is both (1) the actual cause, and (2) the legal cause (often called the proximate cause) of the result." Burrage v. United States, 134 S.Ct. 881, 887 (2014) (internal quotation marks omitted). Actual causation typically requires showing that Roach's death would not have occurred "but-for" DNRB's conduct. See id. at 887-88. Legal causation requires showing that there was "some direct relation between the injury asserted and the injurious conduct alleged." Paroline v. United States, 134 S.Ct. 1710, 1719 (2014). Legal causation is often analyzed in terms of foreseeability. Id. Here, the district court found that Roach would not have fallen to his death had he been connected to an anchorage point and that DNRB's failure to make him use required fall-protection equipment was thus a but-for cause of his death. The court also determined that his fall was "a foreseeable and natural result" of working more than thirty feet above the ground without using fall-protection equipment. This finding satisfies legal causation. See id. at 1722 (explaining that a "direct and foreseeable result" establishes legal causation). Together, these findings were sufficient to support a conclusion that DNRB's failure to comply with the safety standards caused Roach's death.

         Because a reasonable factfinder could conclude that the Government proved each of the challenged elements of the crime beyond a reasonable doubt, DNRB's challenge to the sufficiency of the evidence fails.


         Next, DNRB argues that the district court erred in admitting a variety of what it describes as irrelevant, prejudicial "other-acts" evidence in violation of Federal Rule of Evidence 404(b). In particular, DNRB claims the district court improperly admitted evidence of other violations it committed at the Kansas City construction site, as well as violations from 2007 and 2015 that occurred at other sites. While other-acts evidence is not admissible "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," it is admissible for another purpose such as proving intent or knowledge. Fed.R.Evid. 404(b). We review evidence admitted under Rule 404(b) for an abuse of discretion, reversing "only when the evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (internal quotation marks omitted). To admit evidence under Rule 404(b), it must be "(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect." Id.

         First, the other-acts evidence at issue here was relevant to the material issue of DNRB's knowledge and intent. As mentioned, exhibits and testimony established that Wiechens-and thus DNRB-was aware of the applicable standards and knew that Roach was not using his safety equipment. The other-acts evidence further suggested that DNRB's failure to ensure that Roach used his equipment properly was knowing rather than accidental. Second, the other-acts evidence was also similar in kind to the charged conduct. The 2007 incident involved a violation of the same regulation at issue here, and the 2015 incident likewise involved DNRB's failure to use fall-protection equipment. The remaining other-acts evidence occurred at the worksite where Roach fell. These other acts were "sufficiently similar to support an inference of criminal intent." Id. at 1275. Nor, considering the facts and circumstances, were any of these other incidents "too remote in time." See id. (upholding the admission of 404(b) evidence occurring eighteen years before the charged offense in light of its continuing probativeness). Third, DNRB's responsibility for each of these violations was supported by witness testimony and other evidence. Fourth, the admission of this evidence was not unduly prejudicial. It corroborated other evidence concerning DNRB's intent, and we presume that a judge conducting a bench trial will use evidence properly, mitigating ...

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