Submitted: April 12, 2018
from United States District Court for the Western District of
Missouri - Kansas City
GRUENDER, MELLOY, and GRASZ, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
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,
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.
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.
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).
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.
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.
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.
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
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 ...