Petition for Writ of Certiorari — Geisen v. United States

Supreme Goug, U.8.

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\ U, 10-7 2 0 DEC 1- 2019

OFFIC@ OF THE CLERK

Withem kK. Suter, Cheri

No.

IN THE

Supreme Court of the Gnited States

DAVID C. GEISEN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to tue

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY P. O’TOOLE

Counsel of Record

RICHARD A. HIBEY

ANDREW T. WISE

KEVIN G. MOSLEY

MILLER & CHEVALIER

CHARTERED

655 15th St. NW, Suite 900

Washington, D.C. 20005

(202) 626-5800

E-mail: totoole@milchev.com

QUESTIONS PRESENTED.

In this case charging that a mid-level manager at a

nuclear power plant knowingly and willfully made

false statements to officials of the Nuclear Regulatory

Commission, the two questions presented are:

1. Whether this Court should grant the petition to

resolve a conflict in the circuits over the appropriate

circumstances for instructing the jury on a theory of

deliberate ignorance — namely, whether such an in-

struction must be restricted to cases where any

“ignorance” was motivated by the attempt to escape

conviction.

2. Whether this Court shou!d grant the petition to

resolve a conflict in the circuits over the appropriate

harmless error standard for a deliberate ignorance

instruction that is not supported by the evidence.

1

PARTIES TO THE PROCEEDING

All of the parties to the proceeding are identified in

the case caption.

ill

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

I. The Court Should Grant Certiorari to Re-

soive Two Important Questions Regarding

the Deliberate Ignorance Doctrine, on which

the Lower Courts are Currently Divided

A. This Court Should Grant the Petition to

Resolve a Conflict in the Circuits Over

the Appropriate Circumstances for [n-

structing the Jury on a Theory of

Deliberate Ignorance - Namely, Whether

Such an Instruction Must be Restricted to

Cases Where Any “Ignorance” Was Moti-

vated by the Attempt to Escape

aera ease ake 16

. The Court Should Grant the Petition to

Resolve a Conflict in the Circuits over the

Appropriate Harmless Error Standard for

a Deliberate Ignorance Instruction that is

Not Supported by the Evidence. ......... Lee 19

IT sicciceiriaciniceieesesnikantacntaearcacuannsemecntdainaent 23

1V

Appendix A -- Opinion of the United States

Court of Appeals for the Sixth Circuit

I tt inocu ernest occbrusscuieansencaes

Appendix B -- Order by United States District

Court, Northern District of Ohic, Western

Division, Denying Defendant’s Motion for

Acquittal Pursuant to Rule 29 and for a New

Trial Pursuant to Rule 33 (April 22, 2008)....

Appendix C -- Commission Memorandum and

Ce Fhe I ocoinaccoviarsocswsarcescrenisacans

Appendix D -- Order of the United States Court

of Appeals for the Sixth Circuit Denying Pe-

tition for Rehearing En Banc (Sept. 2, 2010)

Appendix E -- Judgment by the United States

Court of Appeals for the Sixth Circuit affirm-

ing Judgment of District Court WJuly 15,

Appendix F -- Judgment in a Criminal Case by

the United States District Court, Northern

District of Ohio (May 2, 2008) ..................0008

Appendix G -- Transcript of Trial, Volume 13 of

15, in the United States of America v. Getsen

in the United States District Court, North-

ern District of Ohio, Western Division

(Excerpt of Colloquy Regarding the Deliber-

ate Ignorance Instruction) (Oct. 23 2007)......

—

2 Lo9a

Vv

TABLE OF AUTHORITIES

CASES

Griffin v. United States,

502 U.S. 46 (1991)............... a

Hedgpeth v. Pulido,

555 U.S. 57 (2008)........cececcscecesesesecereseeeen

Skilling v. United States,

| re

Spurr v. United States,

Ee ID ccnveccccnsencesersns socssncsees

United States v. Alston-Graves,

435 F.3d 331 (D.C. Cir. 2006)..................

United States v. Barnhart,

$79 F.2d 647 (8th Cir. 1992)....................

United States v. Beckett,

724 F.2d 855 (9th Cir. 1984).....................

United States v. Cassiere,

4 F.3d 1006 (1st Cir. 1993) .........ccceccece00--

United States v. Delreal-Ordones,

213 F.3d 1263 (10th Cir. 2000).................

United States v. Geisen,

612 F.3d 471 (6th Cir. 2010).....................

Page(s)

21

eeeeceeeetas —

v1

United States v. Geisen,

No. 08-3655,2010 U.S. App. LEXIS 19467

oss cnsscacsccovsssesvasesoecocessorecss. l

United States v. Heredia,

483 F.3d 913 (9th Cir. 2007)...........0.--. 9, 16, 17, 18

United States v. Jewell,

632 F.2G G97 (Oth Cir. 1976)..........cccccosescsccecess 9,18

United States v. Mapelli,

ee Wee ee Cees Git, LODDZ).........c00cc.crcccccccecccesese 20

United States v. Mari,

47 F.3d 782 (6th Cir. 1995)................0..... 6, 8, 9, 17

‘United States v. Nicholson,

677 F.2d 706 (9th Cir. 1982) Eid ERR Ge 14

United States v. Ojebode,

Be Bee LELO COE Cir. 1992)...........cccccccccsccoscesees 20

United States v. Puche,

350 F.3d 1137 (Lith Cir. 20038)............cc.scccccoevees 16

United States v. Rivera,

926 F.2d 1564 (11th Cir. 1991)............................ 14

United States v. Sanchez-Robles,

ee Bee PT CPE GAT, LOOL)....0.ccccccccccccnccccccccees 20

United States v. Springer,

262 Fed. Appx. 703 (6th Cir. 2008)..................... 14

United States v. Stone,

@ F.3d GOS (11Gb Cir. 1008).........ccsecercvscorscnssccnceees 20

United States v. Willis,

277 F.3d 1026 (8th Cir. 2002)........cccccccecescceceseeee. 16

Yates v. United States,

ee es TE racaiinctis casi ciavngsetinsnserscinceinessixtinatied 21

STATUTES

LE Lek Ce ae ree eee 1, 3,11

QB U.S.C. § 1254 ..cccccccscecesececssesecsscseseceseserececseseasacaeeces 1

MISCELLANEOUS

Robin Charlow, Wilful Ignorance and Crimi-

nal Culpability, 70 Tex. L. Rev. 1351

tt id ee 13

Jonathan L. Marcus, Note: Model Penal Code

Section 2.02(7) and Willful Blindness,

102 Yale Lid. 2231 (1998) ......cececccscecesesesseeee. 13, 14

Alan C. Michaels, Acceptance: The Missing

Mental State, 71 S. Cal. L. Rev. 953 (1998)........12

Ira P. Robbins, The Ostrich Instruction: Delib-

erate Ignorance As A Criminal Mens Rea,

81 J. Crim. L. & Criminology 191, 227-29

(Summer 1990).............cscscseeees Baer aa iciNvels cheramoias 12

Be eR Bs NE ens sph spaneusansnasvancousuapunsaverscaseseucnivaces 7

OPINIONS BELOW

The opinion of the court of appeals (see Petitioner’s

Appendix (“App.”) (l1a-60a) is published as United

States v. Geisen, 612 F.3d 471 (6th Cir. 2010). The

court’s denial of rehearing and rehearing en banc (App.

139a) is published as No. 08-3655, 2010 U.S. App.

LEXIS 19467 (6th Cir. Sept. 2, 2010). (App. 139a-140a)

The pertinent opinion of the district court (App. 61a-

64a) is unreported.

JURISDICTION

The court of appeals entered judgment on July 15,

2010. App. 14la. The court denied a timely petition

for rehearing and for rehearing en banc on September

2, 2010. App. 139a-140a This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS DVVOLVED

18 U.S.C. § 1001 provides:

Statements or Entities Generally

(a) Except as otherwise provided in this section,

whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Gov-

ernment of the United States, knowingly and

willfully -- |

(1) falsifies, conceals, or covers up by any

trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or

fraudulent statement or representation; or

(3) makes or uses any false writing or docu-

ment knowing the same to contain any materially

false, fictitious, or fraudulent statement or entry; ~

2

shall be fined under this title, imprisoned not more

than 5 years or, if the offense involves international

or domestic terrorism (as defined in section 2331),

imprisoned not more than 8 years, or both.

(b) Subsection (a) does not apply to a party to a judi-

cial proceeding, or that party's counsel, for

statements, representations, writings or documents

submitted by such party or counsel to a judge or

magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction

of the legislative branch, subsection (a) shall apply

only to --

(1) administrative matters, including a claim

for payment, a matter related to the procurement of

property or services, personnel or employment prac-

tices, or support services, or a document required by

law, rule, or regulation to be submitted to the Con-

gress or any office or officer within the legislative

branch; or

(2) any investigation or review, conducted

pursuant to the authority of any committee, sub-

committee, commission or office of the Congress,

consistent with applicable rules of the House or

Senate.

STATEMENT OF THE CASE

In the Fall of 2001, Defendant-Appellant David C.

Geisen was one of a number of managers and engi-

neers at the Davis-Besse nuclear power plant in Oak

Harbor, Ohio (referred to herein as “Davis-Besse” or

“the Plant”), who interacted with the Nuclear Regula-

tory Commission (“NRC” or “Commission’), in response

3

to an expedited request for information sent to a num

ber of nuclear power plants throughout the country.

On the basis of these interactions, Mr. Geisen was

charged with five counts of knowingly and willfully

making false statements to the NRC in violation cf 18

U.S.C. § 1001.

The case against Mr. Geisen was tried in October

2007. The critical issue at trial was whether Mr.

Geisen, in his role as a supervisor, had known about

inaccuracies in the Plant’s submissions to the NRC

and intentionally sponsored them anyway. Mr.

Geisen’s defense was that while he perhaps “should

have known” about any inaccuracies and should have

done a more thorough job as a supervisor, he did not

know the statements were inaccurate at the time they

were made, and he did not willfully make any false

statements.

On the issue of intent, the government’s trial presen-

tation was replete with evidence about what Mr.

Geisen should have done to better manage the submis-

sions to the NRC. See Trial Transcript (“TT”) of

Moffitt, Record Entry (“RE”) No. 259, pp. 1307-08;

Record on Appeal (“ROA”) pp. 159-60 (Government

1 Before obtaining an indictment, the government offered Mr.

Geisen a deferred prosecution agreement. ROA pp. 469-79.

Under the proffered terms, Mr. Geisen merely needed to admit

knowledge of the falsity of the statements and wiilfulness in

making them, and the government would refrain from prosecut-

ing him. ROA pp. 473-79. Mr. Geisen rejected the government’s

offer, as he adamantly denied having intentionally made any false

statements. ROA at pp. 470. The district court’s refusal to per-

mit jurors to hear about Mr. Geisen’s rejection of this deferred

prosecution agreement was the subject of an extensive dissenting

opinion below. App. 1a-60a.

4

witness asked whether Mr. Geisen should have as-

signed another supervisor to review tables submitted

to the NRC); (TT of Ulie, RE No. 267, p. 1575; ROA p.

117) (Geisen told NRC investigators he should have

done a better job of ensuring the accuracy of the infor-

mation presented to the NRC); (TT of Geisen, RE No.

261, pp. 1944-45; ROA pp.42-43) (Geisen expresses

regret at not spending more time reviewing past in-

spection data and at his failure to involve a second

engineer). But the government's evidence was sub-

stantially less strong (Mr. Geisen submitted below that

it was insufficient) in terms of showing that Mr.

Geisen actually knew about any inaccuracies in the

submissions.

Responding to this deficiency, the government sought

and obtained an instruction after the close of evidence

permitting jurors to convict Mr. Geisen based on a

showing of deliberate ignorance, or willful blindness, .

rather than actual knowledge and willfulness. Trial

transcript, RE No. 262, pp. 2293-94. Mr. Geisen ob-

jected vigorously, arguing there was no evidence he

refused to acquire knowledge in order to escape prose-

cution, thus there was no evidentiary predicate for the

instruction. Jd. at 2295-96. Mr. Geisen further argued

that giving the instruction in this case, where there

was no evidence that he deliberately avoided gaining

knowledge, created a real danger that jurors would

become confused and determine they could convict Mr.

Geisen for what he “should have known.” Jd. The

district court worried whether the instruction permit-

ted conviction based on such considerations, id. at

5

2297; App. 31a, but ultimately gave the standard Sixth

Circuit willful blindness instruction. Jd. at 2338-39.

After considerable deliberations, jurors returned a

split verdict, acquitting on two counts and convicting

on the three others. Mr. Geisen moved for a new trial,

focusing largely on the deliberate ignorance instruc-

tion. ROA 642-48 & 669-74.

2 The Court gave the following instruction:

Next, I want to explain something about proving a

defendant's knowledge. No one can avoid respon-

sibility for a crime by deliberately ignoring the

obvious. If you are convinced that a defendant de-

liberately ignored a high probability that the

submissions and presentations to the NRC con-

cealed material facts or included false statements,

then you may find that he knew that the submis-

sions and presentations to the NRC concealed

materia! facts or included false statements, then

you may find that he knew that the submissions

and presentations to the NRC concealed material

facts or included false statements. But to find

this, you must be convinced beyond a reasonable

doubt that the defendant was aware of a high

probability that the submissions and presenta-

tions to the NRC concerned material facts -- I’m

sorry, concealed -- let me read that over. I’m

sorry. But to find this, you must be convinced be-

yond a reasonable doubt that the defendant was

aware of a high probability that the submissions

and presentations to the NRC concealed material

facts or included false statements and that the de-

fendant deliberately closed his eyes to what was

obvious, Carelessness, or negligence, or foolish-

ness on his part is not the same as knowledge and

is not enough to convict. This, of course, is all for

you to decide.

Id. at 2338-39.

6

The district court denied the new trial motion. In

doing so, the trial judge did not attempt to justify giv-

ing the deliberate ignorance instruction. Instead,

relying on United States v. Mari, 47 F.3d 782, 787 (6th

Cir. 1995), the district court ruled that “[t]he Circuit

has repeatedly held that the instruction is harmless

error where sufficient evidence of actual knowledge

was present. This is the case here.” (App. 63a)

Mr. Geisen appealed to the Sixth Circuit. On July

15, 2010, a panel of the Sixth Circuit entered an opin-

ion affirming the conviction and rejecting Mr. Geisen’s

argument that the trial court had committed reversible

error. With regard to the deliberate ignorance instruc-

tion, the panel held that such an instruction was

proper so long as the evidence can fairly support an

inference that the manager “deliberately chose not to

inform himself in preparing the submissions to the

NRC.” App. 33a.

The panel then reaffirmed that under United

States uv. Mari, 47 F.3d at 786, any error in giving the

instruction was always harmless as a matter of law so

long as the government presents some evidence of

actual knowledge. App. 29a. Mr. Geisen filed a timely

petition for rehearing and suggestion for rehearing en

banc, which was denied on September 2, 2010. App.

139a.

Operating parallel to the criminal proceeding was

Mr. Geisen’s challenge to an administrative action the

NRC brought against him in order to ban him from

participation in NRC licensed activities; the adminis-

trative action was based on the same facts and

circumstances as the criminal prosecution. See App.

65a.

7

After the criminal conviction was entered in this

case, a panel of the NRC’s Atomic Safety and Licensing

Board held an evidentiary hearing to determine

whether the preponderance of the evidence indicated

Mr. Geisen deliberately made false statements to the

NRC. App. 66a-67a. The administrative panel refused

to apply the doctrine of collateral estoppel based on the

outcome of the criminal trial because it determined

that the criminal conviction may have been based on

deliberate ignorance, which it found insufficient to

meet the Commission’s standard for deliberate mis-

conduct. App. 126a-127a. After considering the

evidence, the panel set aside the Enforcement Order,

finding that the NRC Staff failed to show by prepon-

derance of the evidence that Mr. Geisen knowingly

provided false and misleading information to the NRC.

App. 66a-67a.

On August 27, 2010, the NRC affirmed the Licensing

Board’s decision. App. 65a-138a.3 Thus, while Mr.

Geisen has been convicted by jurors of making inten-

tional false statements to the NRC in the criminal case

where the jury was instructed on a theory of deliberate

ignorance, he has been exonerated of the charge of

making false statements in a parallel proceeding be-

fore the NRC itself, with a less stringent standard of

proof and the application of a more rigorous mens rea

requirement.

3 The Commission's August 27, 2010 final decision in Mr. Geisen's

administrative proceeding can be found at Appendix C, 65a-138a.

A copy of the initial decision of the NRC’s Atomic Safety and

Licensing Board, which is voluminous, was provided to the Sixth

Circuit after oral argument in a submission made pursuant to

Fed. R. App. P. 28().

REASONS FOR GRANTING THE PETITION

Petitioner David C. Geisen asks this Court to grant

certiorari to provide guidance on a legal doctrine that

has been the source of great confusion and controversy

in both this case and in federal criminal cases gener-

ally — the doctrine of deliberate ignorance. In the

published decision below, the Sixth Circuit upheld the

giving of a deliberate ignorance instruction based on

the government’s charge that a mid-level manager ofa

nuclear power plant had been less than diligent in his

preparation for interactions with federal regulators

under circumstances where it could not even rationally

be alleged that his lack of diligence emanated from a

desire to escape criminal conviction. According to the

court below, such an instruction is proper so long as

the evidence can fairly support an inference that the

manager “deliberately chose not to inform himself in

preparing the submissions to the NRC.”4 App. 33a.

The Sixth Circuit also concluded that even if such an

instruction should not have been given, any error was

per se harmless error under United States v. Mari, 47

F.3d 782 (6th Cir. 1995), which had held that the erro-

neous giving of a deliberate ignorance instruction is

always harmless so long as any evidence of actual

knowledge exists. Id. at 786-87.

4Mr. Geisen emphatically disputes the panel’s assertion that he

“deliberately chose not to inform himself in preparing for NRC

submissions” — a finding that the trial court itself never made.

Nonetheless, it is Mr. Geisen’s position that even if such a finding

was warranted, it cannot properly serve as the predicate for a

deliberate ignorance instruction.

9

Both aspects of the Sixth Circuit’s deliberate igno-

rance ruling are worthy of this Court’s review. The

Court of Appeals’ determination on the proper circum-

stances for giving the deliberate ignorance instruction

conflicts with rulings from other circuits that have

restricted this instruction to situations where the evi-

dence shows the defendant’s motive in refusing to

learn information was to escape eventual conviction.

Likewise, the Sixth’s Circuit’s application of the per se

harmless error rule of United States v. Mari, 47 F.3d

782, 787 (6th Cir. 1995), conflicts with rulings from

other circuits that have applied traditional harmless

error analysis when a trial court erroneously instructs

the jury on deliberate ignorance.

The questions presented in this petition are of sub-

stantial national importance. The original “deliberate

ignorance” cases involved drug couriers and other

individuals who had taken active steps to wall them-

selves off from knowledge of clearly illegal activity

making it arguably fair to permit juries to conclude

that those individuals knowingly and willfully engaged

in illegal behavior. United States v. Heredia, 483 F.3d

913, 91:7 (Sth Cir. 2007) (en banc) (defendant claimed

she had no knowledge of marijuana in the car she

drove from Mexico to the United States); Mari, 47 F.3d

at 783-84 (defendant claimed to have no knowledge of

the 33 kilograms of cocaine in the truck he borrowed

from a friend of an acquaintance); United States v.

Jewell, 532 F.2d 697, 699 n.1 (9th Cir. 1976) (en banc)

(facts similar to those in Heredia). Cases like the one

below, however, reject any sensibie restrictions on

when the instruction can be given, upholding a delib-

erate ignorance instruction in circumstances where it

cannot even be argued that any failure to learn of the

10

adequacy of prior cleanings of the nuclear plant — the

subject of the regulators’ inquiry — was done for the

purposes of escaping. a criminal prosecution. And to

make matters worse, the per se harmless error rule

applied below means that there will] never be any in-

centive for trial courts to restrict this instruction to the

narrow circumstances for which it was originally cre-

ated.

Unchecked expansion of the deliberate ignorance in-

struction poses serious systemic dangers, particularly

when applied to cases like this one. Indeed, the con-

trast between the result of the parallel administrative

proceeding and that of the criminal trial demonstrates

the necessity of reviewing the giving of the deliberate

ignorance instruction under traditional harmless error

analysis. In the administrative hearing, the Board

determined the standard for deliberate misconduct

that governed the NRC proceeding could not be met by

a finding of deliberate ignorance and thus the theory

was not introduced in the administrative hearing.

Forced as a result to prove actual knowledge, the NRC

staff failed to carry its burden — even under the civil

preponderance of the evidence standard.5 The con-

trast between the two results suggests that the jury’s

deliberations in the criminal! trial were improperly

complicated by the district court’s decision to give the

deliberate ignorance instruction. But because of the

operation of Mari’s per se harmless error rule, Mr.

Geisen is effectively foreclosed from challenging the

instruction.

5 Initial Decision at 20-22.

11

The scope of the false statement laws is broad, and

thousands of mid-level managers like Mr. Geisen in-

teract with government officials each day. The Sixth

Circuit’s application of this doctrine to such interac-

tions means that virtually any incorrect statement to

federal officials can be charged criminally, so long as

the government can show that the defendant’s prepa-

ration prior to the statement was inadequate. That

cannot be what Congress meant when it made it a

crime to “knowingly and willfully” make false state-

ments to government officials. See 18 U.S.C. § 1001(a).

This Court’s corrective intervention is required.

I. The Court Should Grant Certiorari to Re-

solve Two Important Questions Regarding

the Deliberate Ignorance Doctrine, on

which the Lower Courts are Currently Di-

vided.

The Sixth Circuit panel applied a controversial legal

doctrine in an unreasonably broad fashion that’ con-

flicts with the decisions of other courts of appeals, and

creates a grave risk of a conviction without the requi-

site mens rea. There can be no doubt about the

confusing and controversial nature of the deliberate

ignorance/willful blindness doctrine. As one commen-

tator has observed:

Scholars and courts actively disagree about

what the definition is and what it ought to be.

Because of an inadequate understanding of why

6 Courts refer to “deliberate ignorance” and “willful blindness”

instructions interchangeably. We use the term “deliberate igno-

rance” instruction throughout this petition because that is the

language the district court included in its instruction here.

12

these cases of recklessness ought to be treated

the same as cases of knowledge, the willful

blindness doctrine is beset by controversy at

almost every level. Indeed, the many matters of

continuing controversy include the elements of

wilful blindness, the requisite foundation for a

wilful blindness instruction, the question of

whether giving a properly worded wilful blind-

ness instruction can be reversible error, and the

appropriate standard for reviewing whether the

instruction was properly given.

More damning still, a close review of even a

portion of the cases in this area reveals that, no

matter what doctrinal elements courts have

purported to include in their definitions, the un-

certainty as to the meaning of the doctrine has

often left juries with a discretionary instruction

that forces them to decide whether or not to at-

tribute guilty knowledge to the defendant

without either significant guidance on how to

make the decision or significant judicial review

of the decision once made. Identical cases can

be treated differently, and the outcome of any

particular case, even when all the facts are

given, cannot be judged correct or otherwise.

Alan C. Michaels, Acceptance: The Missing Mental

State, 71 S. Cal. L. Rev. 953, 980-81 (1998); and see Ira

P. Robbins, The Ostrich Instruction: Deliberate Igno-

rance As A Criminal Mens Rea, 81 J. Crim. L. &

Criminology 191, 227-29 (Summer 1990) (noting “risk

of conviction for negligence” created by instruction and

observing that even some appellate courts appear to

13

have mistakenly condoned such a theory of criminal

culpability).

The evolution of the use of the doctrine of deliberate

ignorance in Anglo/American jurisprudence provides

some clues as to the source of the confusion that cur-

rently exists regarding the use of the deliberate

ignorance instruction. Though the idea that willful

blindness or deliberate ignorance could, in limited

circumstances, be a substitute for actual knowledge

has existed in English law for over a century, courts

applying it were unclear as to the threshold level of

awareness the defendant had to have in order to be

convicted on a theory of willful blindness. See Jona-

than L. Marcus, Note: Model Penal Code Section

2.02(7) and Willful Blindness, 102 Yale L.J. 2231,

2233-34 (1993). Some decisions implied that a failure

to investigate suspicions of wrongdoing would consti-

tute willful blindness, while others indicated that a

conviction on a willful blindness theory would only be

proper if there was evidence the defendant’s lack of

knowledge was a charade. Id. at 2234 (citing Robin

Charlow, Wilful Ignorance and Criminal Culpability,

70 Tex. L. Rev. 1351, 1861-65 (1992)).

Although this Court appeared, in passing, to approve

of the application of the deliberate ignorance doctrine

in some circumstances, see Spurr v. United States, 174

U.S. 728, 735 (1899) (finding, in a case regarding

whether a bank officer certified checks with knowledge

the bank could not cover them, that “evil design may

be presumed if the officer purposely keeps himself in

ignorance of whether the drawer has money in the

bank or not, or is grossly indifferent to his duty in

respect to the ascertainment of that fact.”), it has not

14

addressed the doctrine in the past century and its

development has occurred entirely in the lower courts.

As the use of the doctrine evolved it appears to have

been most often applied in narcotics cases. Marcus,

102 Yale L.J. at 2234 (citing United States v. Nichol-

son, 677 F.2d 706, 711 (9th Cir. 1982) (noting that

deliberate ignorance is an integral part of the drug

trade’). Commentators have pointed out that because

the common law has never specified the level of

awareness necessary to trigger criminal culpability,

the application of the doctrine in cases, like drug cases,

in which there is no legal duty to know the incriminat-

ing facts, can lead to unjust convictions where there is

an innocent reason for the defendant’s lack of knowl-

edge. Id. at 2235.

Because of these problems, “many of the courts of

appeals admonish that ‘caution is necessary in giving a

willful blindness instruction.” United States v. Alston-

Graves, 435 F.3d 331, 340-41 (D.C. Cir. 2006) (quoting

United States v. Cassiere, 4 F.3d 1006, 1023 (1st Cir.

1993)). As the D.C. Circuit has explained, the caution-

ary language varies: “[s]ome [courts] say that such an

instruction is ‘rarely appropriate,’ or only proper in ...

‘rare cases.’ Others are ‘wary of giving a willful blind-

ness instruction, or advise that the instruction be

given only ‘sparingly.” Alston-Graves, 435 F.3d at 341

(citing cases).

The reason for this caution is simple: The instruc-

tion improperly invites the jury to “convict on a basis

akin to a standard of negligence: that the defendant

should have known that the conduct was illegal.”

United States v. Rivera, 926 F.2d 1564, 1571 (11th Cir.

1991); see also United States v. Springer, 262 Fed.

15

Appx. 703, 706 (6th Cir. 2008); see generally Alston-

Graves, 435 F.3d at 340. Other Circuits have similarly

held that the instruction can “reliev[e] the government

of its constitutional obligation to prove the defendant’s

knowledge beyond a reasonable doubt.” United States

v. ‘Barnhart, 979 F.2d 647, 652 (8th Cir. 1992) (im-

proper use of willful blindness instruction affected

defendant’s constitutional right to proof beyond a rea-

sonable doubt and required Circuit to vacate conviction

and remand to trial court.)

The Sixth Circuit appropriately recognized these

dangers and the need for caution, but its opinion did

not heed the warning. In particular, the Sixth Circuit

decision applied the deliberate ignorance doctrine

beyond where any court seems to have taken it before,

finding that the instruction could be given on the basis

of a showing that accused “deliberately chose not to

inform himself in preparing the submissions to the

NRC.” App. at 33a Such a holding conflicts with the

decisions of other courts of appeals in two ways: (1) it

eliminates any requirement that the accused’s igno-

rance be motivated by the attempt to escape

conviction; and (2) it applies a per se harmless error

rule that ignores the very reasons why caution is nec-

essary in giving the instruction. Both issues are

worthy of this Court’s review.

16

A. This Court Should Grant the Petition to

Resolve a Conflict in the Circuits Over

the Appropriate Circumstances for In-

structing the Jury on a Theory of

Deliberate Ignorance — Namely,

Whether Such an Instruction Must be

Restricted to Cases Where Any “Igno-

rance” Was Motivated by the Attempt to

Escape Conviction.

When it determined the deliberate ignorance instruc-

tion can be given upon a showing that a defendant

“deliberately chose not to inform himself in preparing

the submissions to the NRC,” App. at 33a the panel

ignored the absence of any evidence of motive to es-

cape prosecution. Other courts of appeals, however,

have squarely held that such a motive is an indispen-

sible foundation for the giving of such an instruction.

See United States v. Puche, 350 F.3d 1137, 1149 (11th

Cir, 2003); United States v. Willis, 277 F.3d 1026, 1032

(8th Cir. 2002); United States v. Delreal-Ordones, 213

F.3d 1263, 1268-69 (10th Cir. 2000). By rejecting this

requirement, the panel appears to have taken sides

with a closely divided decision from the Ninth Circuit,

United States v. Heredia, 483 F.3d 913 (9th Cir. 2007)

(en banc), in which a bare majority rejected a motive

requirement in deliberate ignorance cases.

Judge Kleinfeld’s concurring opinion in Heredia

showed the unfairness of abandoning the motive re-

quirement. 483 F.3d at 924-25 (arguing that a

deliberate ignorance instruction should include an

instruction that the jury must find “a motivation to

avoid criminal responsibility to be the reason for the

lack of knowledge,” otherwise the standard for crimi-

17

nal knowledge would be lower than that for a finding

of evidentiary knowledge).

In a nutshell, Judge Kleinfeld’s concurring opinion

demonstrated why preservation of the motive require-

ment is necessary to prevent conviction of individuals

purely on the basis of what they should have known,

rather than the requisite mens rea. Id. at 929 (assert-

ing that without the motive requirement, the

deliberate ignorance instruction “supports convictions

of persons whom Congress excluded from statutory

coverage with the word ‘knowingly.”’).

This Court should grant the petition in order to con-

firm that the motive requirement must serve as a

substantial, concrete requirement, which limits the

giving of the deliberate ignorance instruction to the

narrow set of circumstances from which it arose. Re-

stricting the deliberate ignorance instruction to cases

in which there is evidence that the defendant took

affirmative steps to avoid gaining knowledge based on

a motive to escape conviction will cabin the doctrine

within its proper bounds. The doctrine can still be

applied to paradigm situations in which a transporter

of drugs denies knowledge of large quantities of con-

traband in his possession despite overwhelming

circumstantial evidence creating a fair inference that

the only reason the defendant did not know about the

illegality was because he affirmatively closed his eyes

in order to escape prosecution. E.g., United States v.

Mari, 47 F.3d 782, 783-84 (6th Cir. 1995) (driver of car

containing 33 kilograms of cocaine made verifiably

false statements about his reasons for being in Mem-

phis and ultimately claimed that he did not krow

about contraband because he had been given the car he

18

was driving by a woman at Bible study class in Miami,

who said he could drive the car to see his cousin in

New York if he would first drop off patio furniture in

Houston); Heredia, 483 F.3d at 917 (en banc) (driver of

car containing 349.2 pounds of marijuana claimed that

she had borrowed car from her aunt, and that obvious

smell of detergent had been explained by the aunt has

having come from spill in car a few days earlier);

United States v. Jewell, 532 F.2d 697, 699 n.1 (9th Cir.

1976) (en banc) (defendant with 100 pounds of mari-

Juana in car had smoked marijuana in bar in Mexico

where he was offered $100 to drive car into the United

States and drop it off at the address at which the vehi-

cle was registered).

At the same time, preserving the motive requirement

will prevent application of the doctrine to cases in

which any ignorance could not conceivably have been

motivated by a desire to escape conviction, and where

many innocent reasons exist why someone would be

“ignorant” of facts that could give rise to criminal

knowledge. Failing to properly prepare for interac-

tions with regulatory officials about the historical facts

surrounding inspections of a portion of the plant falls

directly within this category. Not only are there many

innocent reasons why a mid-level employee who did

not personally conduct the disputed inspections would

be ignorant of the details of those inspections — even if

he “should have known” the details as part of his man-

agement responsibilities — it is simply inconceivable

that any individual could have been motivated to re-

main ignorant out of a desire to escape conviction. No

criminal investigation was even contemplated at the

time Mr. Geisen interacted with government regula-

tors, and failing to fully assimilate historical

19

information about prior plant cleanings is not inher-

ently criminal. While the panel does not address this

issue at all, there is simply no evidence in this case

that Mr. Geisen ever attempted to remain ignorant of

prior plant cleanings in order to escape prosecution;

indeed, virtually every one of the government’s wit-

nesses was a supervisor with at least as much

exposure to the information regarding the cleanings as

was Mr. Geisen; each denied knowledge of the falsity

of the submissions and expressed ignorance of the

prior cleanings. It is not a fair or rational inference

from this evidence that the government's supervisory

witnesses were ignorant for innocent reasons but that

Mr. Geisen alone consciously remained in the dark to

escape a conviction when possession of knowledge

could not possibly have been thought to be criminal.

Because the critical motive factor was absent here,

Mr. Geisen’s case presents an excellent vehicle for

addressing this issue, as it will allow the Court to draw

the line beyond which deliberate ignorance instruc-

tions cannot go. If the Court adopts the “motive” rule

that applies in at least three other circuits, it will be

dispositive in Mr. Geisen’s case.

B. The Court Should Grant the Petition to

Resolve a Conflict in the Circuits over

the Appropriate Harmless Error Stan-

dard for a _ Deliberate Ignorance

Instruction that is Not Supported by

the Evidence.

The second important question raised by this case

arises from the Sixth Circuit’s reaffirmation of Mari’s

per se harmless error rule. That rule ~ which holds

that erroneously giving a deliberate ignorance instruc-

20

tion is always harmless if the jury could properly have

convicted on the basis of actual knowledge — conflicts

with how other Circuits have addressed the question of

when a deliberate ignorance instruction can be harm-

less. See United States v. Stone, 9 F.3d 934, 939-40

(11th Cir. 1993) (“We recognize that the Fifth, Eighth,

and Ninth Circuits have reached a contrary conclusion

on the issue of whether a deliberate ignorance instruc-

tion is harmless per se. See, e.g., United States v.

Barnhart, 979 F.2d 647 (8th Cir. 1992); United States

v. Mapelli, 971 F.2d 284 (9th Cir. 1992); United States

v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992) (im-

plicit holding); United States v. Sanchez-Robles, 927

F.2d 1070 (9th Cir. 1991); United States v. Beckett, 724

F.2d 855, 856 (9th Cir. 1984).”)

The irony of Mari’s per se rule is that it prohibits re-

versal in cases like this one, where the recognized

risks of the deliberate ignorance instruction are great-

est. Although jurors are generally presumed to follow

instructions, in a situation where substantial evidence

exists of what a defendant “should have known,” but

no evidence exists to support a true finding of deliber-

ate ignorance, a juror might find deliberate ignorance

on the basis of what a defendant should have known.

See, e.g, United States v. Barnhart, 979 F.2d 647, 651-

52 (8th Cir. 1992). This is so, even where the instruc-

tion cautions not to convict on the basis of “negligence,”

a legal doctrine not immediately accessible to a lay

juror. Id.

The divide in the Courts of Appeal is itself reflective

of analytical difficulties in applying this Court’s cases

on when the submission of an unsupported legal the-

ory to the jury can be harmless. Mari’s per se harmless

21

error rule relies on Griffin v. United States, 502 U.S.

46 (1991), which held that instructing jurors on alter-

native factual theories of liability, one of which is

unsupported by the evidence, does not provide an in-

dependent basis for reversing an otherwise valid

conviction. Jd. at 59-60. But given the situation pre-

sented here, it is far from clear why the more

appropriate rule is not the one of Yates v. United

States, 354 U.S. 298 (1957), which held that constitu-

tional error occurs when a jury’ is instructed on

alternative theories of guilt and returns a general

verdict that may rest on a legally invalid theory. As

Griffin makes clear, its rule does not swallow the rule

of Yates, since when “jurors have been left the option of

relying upon a legally inadequate theory, there is no

reason to think that their own intelligence and exper-

tise will save them from that error.” 502 U.S. at 59.

(empha sis added).

In recent decisions, the Court has relied on Yates’

rule in situations analogous to this one — where there

are reasons to believe that a lay juror might well have

convicted on the basis of its receipt of an invalid legal

theory. E.g., Hedgpeth v. Pulido, 555 U.S. 57 (2008)

(applying Yates rule to circumstances where trial jury

had been improperly instructed on alternative theories

of intent); Skilling v. United States, 130 S. Ct. 2896

(2010) (Applying Yates rule to circumstances where

trial jury improperly instructed on improper object of

conspiracy). These decisions cast doubt on Mari’s per

se rule and its reliance on Griffin. ‘Moreover, to the

extent the conflict in the circuits on this rule reflects

the underlying difficulty in determining whether Grif-

fin or Yates should apply to this situation, this divide

22

itself makes clear that it is one of extreme importance,

worthy of this Court’s corrective intervention.

This case also presents an excellent vehicle for

addressing whether Mari’s per se rule correctly states

the law. In denying Mr. Geisen’s motion for a new

trial, the district court did not attempt to defend giving

the deliberate instruction but instead ruled solely on

the ground of the Mari rule. The Court of Appeals also

upheld the instruction in part based on Mari’s rule.

Most importantly, though, the NRC decision exonerat-

ing Mr. Geisen of having actual knowledge of the

falsity of the statements on the same facts under a

civil standard, highlights the critical role the Mari rule

played in insulating an otherwise indefensible verdict

from appellate review. In this case, it is clear that

Maris harmless-error-per-se rule was dispositive,

making this a particularly appropriate case for exam-

ining the propriety of the rule itself.

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

. TIMOTHY P. O’TOOLE

Counsel of Record

RICHARD A. HIBEY

ANDREW T. WISE

KEVIN G. MOSLEY

MILLER & CHEVALIER

CHARTERED |

655 15th St. NW, Suite 900

Washington, D.C. 20005

(202) 626-5800

E-mail: totoole@milchev.com

DECEMBER 1, 2010

APPENDIX

TABLE OF CONTENTS

Page

Appendix A -- Opinion of the United States

Court of Appeals for the Sixth Circuit,

i WE os eka oiccsseesaeicedics decane la

Appendix B -- Order by United States District

Court, Northern District of Ohio, Western

Division, Denying Defendant’s Motion for

Acquittal Pursuant to Rule 29 and for a

New Trial Pursuant to Rule 33,

EEE WE SD piiicrcccsidustacsneanccvssinriacavasuaseioness 6la

Appendix C -- Commission Memorandum and

fg S| Re 5 Be. RENN ene rE 65a

Appendix D -- Order of the United States

Court of Appeals for the Sixth Circuit

Denying Petition for Rehearing En Banc

NN, Wi, SIE ia cn cicecnsciccdiaeiawaseneimenacarsamnse 139a

Appendix’ E -- Judgment by the United States

Court of Appeals for the Sixth Circuit

affirming Judgment of District Court

GE See HE cttissrnenencsnaceeeacanek 14la

Appendix F -- Judgment in a Criminal Case

by the United States District Court,

Northern District of Ohio (May 2, 2008)...... 142a

11

Appendix G -- Excerpt from Transcript of

Trial, Volume 13 of 15, in United States of

America v. Geisen in the United States

District Court, Northern District of Ohio,

Western Division (Oct. 23, 2007) ................. 154a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

UNITED STATES

OF AMERICA,

Plaintiff-Appellee,

No. 08-3655

DAVID GEISEN,

)

)

)

)

U. )

)

)

Defendant-Appellant. )

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 06-00712-001—David A. Katz, District Judge.

Argued: January 19, 2010

Decided and Filed: July 15, 2010

Before: MERRITT, GIBBONS, and ROGERS,

Circuit Judges.

COUNSEL

ARGUED: Timothy P. O'Toole, MILLER and

CHEVALIER CHARTERED, Washington, D.C., for

2a

Appellant. John Luther Smeltzer, UNITED

STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF:

Timothy P. O’Toole, Richard A. Hibey, Andrew T.

Wise, MILLER and CHEVALIER CHARTERED,

Washington, D.C., for Appellant. John Luther

Smeltzer, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee.

GIBBONS, J., delivered the opinion of the

court, in which ROGERS, J., joined. MERRITT, J.

(pp. 36-39), delivered a separate opinion concurring

in part and dissenting in part.

JULIA SMITH GIBBONS, Circuit Judge.

Defendant—appellant David Geisen appeals his

conviction on three counts of concealing a material

fact and making a false statement to the Nuclear -

Regulatory Commission (“NRC”) in violation of 18

U.S.C. §§ 1001 and 2. On appeal, Geisen argues that

there was insufficient evidence to support his

convictions and that the district court erred by

giving a deliberate ignorance instruction .and

denying a motion to admit evidence of Geisen’s

rejection of a pre-indictment deferred prosecution

agreement. For the following reasons, we find that

there was sufficient evidence to support each of

Geisen’s convictions and that the district court did

not err in its instruction or exclusion of evidence.

Therefore, we affirm.

oa

I. Factual and Procedural Background

This case arises out of an incident that

occurred in 2001 at the Davis-Besse Nuclear Power

Station (“Davis-Besse” or “the plant’), which is

located on the shores of Lake Erie near Toledo, Ohio,

and is owned and operated by FirstEnergy Nuclear

Operating Company (“FENOC”). Geisen began work

at the plant in 1988 and, by 2000, was manager of

design basis engineering. After a safety incident at a

similar plant prompted the NRC to_ require

inspections at all like plants by the end of 2001,

FENOC successfully petitioned the NRC to permit

Davis-Besse ,to operate without interruption and

thus delay inspection until a scheduled refueling

shutdown in spring of 2002. Geisen’s role in

preparing the documents that Davis-Besse

submitted to the NRC and presentations given to

NRC officials 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 a false statement to a

United States agency. During the delayed

inspection, Davis-Besse found five cracked nozzle

heads and a football-sized cavity caused by boric acid

erosion in the head of the reactor. The finding

prompted NRC investigations into previous plant

inspections and, eventually, the prosecution of

Geisen, systems engineer Andrew Siemaszko, and

independent contractor Rodney Cook. A _ second

engineer, Prasoon Goyal, and three other Davis-

Besse employees’ signed deferred prosecution

agreements.

4a

A. Davis-Besse Nuclear Power Station

Davis-Besse iz a two-loop, pressurized water

reactor that is composed of a large cylindrical

chamber filled with coolant water (“the Reactor

Pressure Vessel” or “RPV”). Uranium rods at the

core of the vessel fuel the nuclear reaction that heats

the coolant water. The nuclear reaction is controlled

by introducing boric acid and/or control rods into the

reactor vessel. The control rods are inserted through

sixty-nine penetration nozzles (tubes that are

approximately four inches in diameter) that

penetrate through the head of the _ reactor

(approximately ten feet in diameter) into the reactor

chamber. There is a gap between the RPV head and

reflective metal insulation that encloses closure

flanges and studs. The gap is narrowest at the top of

the head, where it is only two inches wide. Control

rod drive mechanisms (“CRDMs”) allow’ the

operators to lower the rods into the reactor to control

the rate of the nuclear reaction, and, thus, the

energy output. The nozzles are welded onto the

vessel head using a J-groove on the underside of the

steel head, which is 6.5 inches thick.

The internal walls of the RPV and the

underside of the RPV head are covered in

noncorrodible stainless steel, but the RPV and the

external components are made of carbon steel, which

is corrodible by the boric acid in the coolant water if

it escapes the RPV. This can happen when the

coolant water leaks through the flanges that connect

the CRDMs to the nozzles above the RPV head.

Davis-Besse had a history of flange leakage and

5a

developed the Boric Acid Corrosion Control

Procedure (“BACCP”), which it implements during

inspections, to address this problem.

Davis-Besse operates in two-year fuel cycles

and, therefore, shuts down the reactor only during

the biennial refueling outages (“RFOs”). Davis- Besse

was scheduled to conduct RFO13 (the. thirteenth

RFO conducted at Davis-Besse) in April 2002. In

addition to permitting refueling, the RFOs are the

primary opportunity for inspections and

maintenance that cannot occur while the reactor is

in operation. The RFOs at issue in this case are

RFO10 (1996), RFO11 (1998), and RFO12 (2000).

During an RFO, in order to visually inspect the

nozzles and the RPV head, operators must insert a

‘camera through a series of eighteen “weep holes”

that are five by seven inches in size and that line the

bottom of the, RPV head above the head flange

connecting the RPV head to the RPV. Because of the

limited accessibility of the camera, it is impossible to

visually inspect the very top of the RPV head and

the nozzles located there. Siemaszko was in charge -

of inspecting and cleaning the RPV head during

RFO12 in 2000. Goyal oversaw this task during

RFO1O0 in 1996 and reviewed the inspection reports

folowing RFO11 and RFO12. Another engineer,

Peter Mainhardt, supervised inspection and cleaning

during RFO11 in 1998. As of 2001, Goyal and

Siemaszko ‘continued to work at Davis-Besse as

engineers, and Mainhardt worked for FENOC as an

independent contractor preparing for RFO13.

The 1996 RPV head inspection lasted only one

hour due to limitations on the technicians’ exposure

6a

to radiation. During that inspection, Goyal directed

two technicians who were moving a camera on a pole

across the vessel head. He watched on a monitor and

narrated the camera location based on the “stud

hole” numbers (the numbers on the studs between

the weep holes). The nozzles were not numbered, so

this is the only way to determine and document the

condition of each nozzle based on the camera visual.

Goyal, in testimony and in a Potential Condition

Adverse to Quality report (““PCAQ”) submitted to

superiors after RFO10, estimated that he was able to

inspect fifty or sixty percent of the head area in 1996

and noted that it was difficult to estimate the

amount of boron deposit on the head because of the

limited visual inspection. In the PCAQ, Goyal

attributed the boron deposits to flange leaks. The

PCAQ also noted several deposits ranging in color.

from white to brown to rust. In both the PCAQ and

in testimony, Goyal noted that the horon deposits

and limited visual access’ prevented full

implementation of the BACCP. Consequently, in the

PCAQ, Goyal suggested modifications to the RPV

head that would permit better access, such as

installing access doors. No such modifications were

ever made.

At trial, the government’s expert witness, Dr.

James Davis, described photographs of the 1998

inspection, noting “rust-colored boric acid deposits

coming out of the . . . [weep] holes” and “boric acid

deposits around the closure studs.” He also stated

that “[t]here were several other[{ indicators of

leakages]. One of them was of containment air

coolers were getting clogged, fouled with boric acid

deposits.” The RFO11 PCAQ, signed by Goyal, stated

that “most of the head area was covered with an

7a

uneven layer of boric acid along with some large

lumps of boric acid.” The deposits were again

attributed to flange leakage. That PCAQ referred

back to the RFO10 PCAQ and the need for corrective

action. The 1998 PCAQ also stated that “t]he

reactor vessel head was cleaned as best as we can”

and noted that the cleaning was video recorded.

Siemaszko conducted RFO12’s RPV _ head

cleaning. The deposits prevented insertion of the

camera into five of the weep holes and visually

impaired inspection through other weep holes. The

deposits also required more elaborate cleaning

maneuvers than previous inspections, which had

used a vacuum cleaner to remove boron deposits. In

2000, Siemaszko directed the technicians to spray

hot, distilled water onto the RPV head to loosen the

deposits and to use bars to knock off chunks of

deposits and to flush them out “ough the weep

holes. One of the members of the cleaning crew

testified that the amount of boron deposits visible in

RFO12 was “unlike” any he had seen in previous

RFOs and that the deposits left on the RPV head

after the cleaning were of great concern to those

planning RFO13. Greg Gibbs, a consultant brought

to Davis-Besse to prepare for RFO13, reviewed the

cleaning tapes of RFO12 and testified that, although

there were “large areas... that were cleaned to bare

metal[,] . . . as you neared the top of the rear

insulation where the two-inch gap exists .. . there

were areas where there were considerable boric acid

deposits, in some cases even solid up to the mirror

insulation.” Geisen told an NRC investigator in 2002

that he had read a report by Gibbs sometime after

October 11, 2001, that discussed Gibbs’s findings in

reviewing the RFO12 inspection, including that the

8a

RPV head had “boric acid deposits of considerable

depth.” The RFO12 PCAQ again attributed the

increased boron accumulation to flange leakage.

In a 2000 PCAQ, Siemaszko noted that the

RPV head should be “free of boron deposits” to

adequately inspect the nozzles in accordance with an

NRC letter requiring plants to inspect the CRDMs

adequately. Siemaszko put the RPV head on a

restraint that required action before the plant was

put back into operation. Geisen removed the

restraint, however, stating that the RPV head would

be cleaned of all boron deposits before it was put

online. It was not.

B. NRC Bulletin 2001-01

In 2001, small “popcorn” deposits of boric acid

were found at the nozzle penetrations of the reactor

at the Oconee Nuclear Station in South Carolina, a

nuclear plant of similar design to Davis-Besse.

Earher nozzle cracks had been lengthwise, but the

2001 cracks were circumferential (around the

nozzle), and one was above the J-groove weld and

within the “pressure boundary.” This posed a risk

that the nozzle would blow out of the vessel head

and cause significant loss of coolant and structural

threats, including possible plant safety failure. In

the early 1990s, the NRC determined that nozzles

were susceptible to “stress corrosion cracking” on the

nozzles and on the welding but determined that the

cracks did not pose an imminent safety threat

because the NRC presumed that any leakage would

be readily apparent before threatening the

structural integrity of the reactor or catastrophic

9a

failure. The leakages occur when coolant escapes the

containment vessel within the reactor and either

exits the reactor or comes into contact with the hot

vessel head. The result is that the coolant flashes to

steam and the boric acid within the coolant fluid is

left as a deposit on the reactor head near the leak. In

1997, the NRC advised licensees of this type of

reactor to develop programs to periodically inspect

the vessel head penetrations and look for cracks but,

because it was not yet aware of the problem, did not

warn about the link between popcorn deposits and

circumferential cracking.

FENOC was aware of the risks of

circumferential cracking before 2001 because it was

a member of an owner’s group that addresses

problems at plants designed by Babcock and Wilcox,

which designed both Oconee and Davis-Besse.

Geisen was Davis-Besse’s representative to this

group. At trial, Geisen testified that he was first

involved with nozzlecrack issues in late 2000, after

the first cracks were found at Oconee, and that he

had: given several presentations on the subject

beginning in the spring of 2001. Goyal had also sent

numerous emails to Geisen and others warning that

“head cleaning during outages should be a top

priority” and, after the circumferential crack at

Oconee was discovered, Goyal sent an email stating

that the five nozzles at Davis-Besse located at the

center of the RPV head were manufactured in the

same way as were all of the cracked Oconee nozzles.

However, in June 2001, Geisen approved a

memorandum, prepared by Goyal, that concluded

that Davis-Besse could postpone inspection of the

nozzles until RFO13. The memorandum

acknowledged that significant boron leakage from

10a

flanges had impeded “detailed inspection of CRDM

nozzles” during RFO12 but calculated that “it would

take approximately 2.5 additional years of operation

for Davis-Besse to observe the same degradation” as

occurred at Oconee.

After receiving notice of the Oconee cracking,

the NRC altered its assessment of the risks of even

small boron deposits on reactor heads. In light of the

Oconee incident and similar experiences in the

French nuclear industry, on August 3, 2001, the

NRC issued NRC Bulletin 2001-01 (“NRC 2001-01”

or “the Bulletin”), entitled “Circumferential Cracking

of Reactor Pressure Vessel Head Penetration

Nozzles.” The Bulletin outlined which plants had a

“high susceptibility” to nozzle stress cracking and

the NRC’s criteria indicated that Davis- Besse was

among them. The _ Bulletin also requested

information from affected nuclear power stations

such as Davis-Besse. The Bulletin stated that such

plants “need to use a qualified visual examination of

100% of the . . . nozzles,” that the inspection “should

be able to reliably detect and accurately characterize

leakage from cracking,” and that “the effectiveness of

the . . . examination should not be compromised by

the presence of insulation, existing deposits on the

RPV head, or other factors that could interfere with

the detection of leakage.” Due to the risks, the NRC

wanted all high-risk plants such as Davis- Besse to

shut down and conduct a complete inspection for

nozzle cracks by December 31, 2001. Because of the

costs involved in an early shutdown, Davis-Besse

wanted to continue operation until its scheduled

RFO13 in April 2002.

lla

The Bulletin required plants to. provide

detailed information about susceptibility to cracking

and previous inspections within thirty days. As part

of that information, the NRC directed . high-risk

plants that, “[i]f [the plant’s] future inspection plans

do not include performing inspections before

December 31, 2001, [the plant must] provide [the]

basis for concluding that the _ regulatory

requirements discussed in the Applicable Regulatory

Requirements section will continue to be met until

the inspections are performed.” Section 1.d. required

all such plants to provide:

[A] description of the [vessel head

penetration] nozzle and RPV head

inspections (type, scope, qualification

requirements, and acceptance criteria)

that have been performed at your

plant(s) in the past 4 years, and the

findings. Include a description of any

limitations (insulation or other

impediments) to accessibility of the bare

metal of the RPV head for visual

examinations.

C. Davis-Besse’s Representations to the NRC

In accordance with federal regulations

governing the nuclear industry, Davis-Besse was

obligated to respond to the NRC Bulletin with

“written statements, signed under oath or

affirmation.” 10 C.F.R. § 50.54(; see also 42 U.S.C. §

2011 et seq. Federal regulations also require that all

information provided to the NRC “be complete and

accurate in all material respects.” 10 C.F.R. §

12a

50.9(a). Davis-Besse hired Cook to coordinate the

response to NRC 2001-01. Between September 4 and

November 30, 2001, FENOC submitted a series of

serial letters (“SLs”) containing the information

requested in the Bulletin. Various conference calls

and meetings between FENOC employees and the

NRC also took place between September 4, 2001, and

December 4, 2001, when the NRC finally permitted

Davis- Besse to continue operation until an earlier

shutdown for RFO13 in February 2002. The five

letters at issue in this case and charged to contain

false statements in the indictment against

Siemaszko, Geisen, and Cook are: SL 2781,

September 4, 2001 (count 1); SL 2735, October 17,

2001 (count 2); SL 2741, October 30, 2001 (count 3);

SL 2744, October 30, 2001 (count 4); and SL 2745,

November 1, 2001 (count 5). Count 1 also included

allegations of concealment of material facts in the

other serial letters and during meetings between

FENOC §staff—including Geisen—and the NRC.

Geisen was convicted on the first, third, and fourth

counts of the indictment.

In approving Davis-Besse’s continued

operation until RFO13, the NRC relied on all of the

serial letters:

Based on the information provided in

your responses [dated September 4,

2001, as supplemented by letters dated

October 17, October 30, November 1,

and November 30, 2001] and the

information available to the staff

regarding the industry experience with

VHP nozzle cracking, the staff finds

13a

that you -have provided sufficient

information to justify operation until

February 16, 2002, at which time you

will shut down the [plant] . .. and

perform VHP nozzle inspections as

discussed in your letter dated November

30, 2001. The commitments contained

in your letter dated November 30, 2001,

were integral to the staff's finding.

The serial letter submitted on November 30, 2001,

SL 2747, was not readily discoverable in the record.

FENOC’s first submission to the NRC in

response to NRC 2001-01 was SL 2731 on September

4, 2001. Siemaszko was tasked with reviewing the

inspection tapes from previous RFOs and providing

information in response to NRC 2001-01’s section

1.d. inquiry, Cook was in charge of putting together

the information, and Goyal was to review the

submission. Siemaszko wrote the first draft, which

stated that the guidance procedure predating

BACCP was used in RFO11 and RFO12, that “[t]he

head cleaning was limited by the opening size of the

weep holes,” and that, during RFO12, “[nJo evidence

of nozzle leakage was detected. 95% of the nozzles

were inspected.” Goyal questioned the ninety-five-

percent assertion given the amount of boron visible

on the top of the RPV head during RFO12, and

Siemaszko subsequently sent another draft asserting

that “[nJo visible evidence of nozzle leakage was

detected[, mJajority of nozzles were inspected,” and

stating that the procedure used was the BACCP.

Later, after Cook questioned.. the meaning of

“majority,” Siemaszko stated that ninety percent of

14a

the nozzles had been inspected. Goyal expressed

concern regarding the ninety-percent claim and the

assertion in the draft that all of the CRDMs were

inspected given the amount of boric acid deposits

obstructing the view.

Nevertheless, the final letter included the

statement that “a gap exists between the RPV head

and insulation, the minimum ... is approximately 2

inches, and does not impede visual inspection.” The

letter also asserted that Davis-Besse’s BACCP

procedure had been utilized in both inspections and

that “[t]he scope of the visual inspection was to

inspect the bare metal RPV head area that was

accessible through the weep holes to identify any

boric acid leaks/deposits.” SL 2731 also described the

boron deposits discovered during the 1998 inspection

as an “uneven layer of boric acid deposits scattered

over the head . . . [and] some lumps of boron, with

the color varying from brown to white.” Of the 2000

inspections, SL 2731 noted that “[s]ome boric acid

crystals had accumulated on the RPV _ head

insulation beneath the leaking flanges. These

deposits ° were cleaned (vacuumed),” that

“fijnspection of the RPV head/nozzles area indicated

some accumulation of boric acid deposits,” and that

the RPV head area was cleaned with demineralized

‘water to the greatest extent possible.” Referencing

the review of the videotaped 1998 and 2000

inspections conducted in May 2001, following

Oconee, SL 2731 also noted that “indications such as

those that would result from RPV head penetration

leakage [like at Oconee] were not evident.” SL 2731

also assericd that a full inspection, unimpeded by

boric deposits, would take place during RFO13.

15a

Each serial letter sent to the NRC included a

“green sheet,” which is a cover document listing

FENOC employees who contributed to and/or

reviewed the document before it was sent to the

NRC. There is space for each listed employee to sign

and date the letter. Geisen, as design engineering

manager, signed and dated the green sheet both on

his own behalf and on behalf of his supervisor, Steve

Moffitt, who was the director of technical services.

Goyal testified that he was uncomfortable signing

the green sheet because it misrepresented how

thorough the prior inspections and cleanings were,

but he eventually did so.

On September 28, 2001, the NRC contacted

Davis-Besse to urge it to reconsider its approach to

its NRC 2001-01 submissions and to suggest

shutting down the plant before December 31, 2001,

in order to conduct a proper inspection of the nozzle

heads. At trial, Moffitt testified that “December

versus April became this issue of great discussion” at

Davis-Besse because the difference in consequences

of an outage in 2001—-several months before the end

of a fuel cycle—and at the completion of the cycle

would be “quite severe.” He stated:

It wasn’t just this outage; it was for the

next 20, 40 years you would not be

operating at your full tank of gas as you

saw it. Then- there was fuel ([(its

availability was questionable)];° there

was cost; there was certainly morale, a

Christmas outage; there was dose [of

radiation] . . . [;] our own sense of

confidence.

16a

During an interview with an NRC investigator

following RFO13, Geisen stated that the site vice-

president was “very upset” by the September 28 call

from the NRC, which prompted “all sorts of new

work activity.”

At this point, management-level personnel,

and Geisen in particular, began to take a more active

role in the NRC negotiations. Geisen took part in a

conference call on October 3, 2001, during which he

represented—incorrectly—that 100 percent of the

RPV head had been inspected during the RFOs and

that boric acid deposits only impeded visual

inspection of five or six nozzles. On October 11, 2001,

Geisen and other managers gave a slide presentation

to NRC staff. Geisen compiled the information for

the “facts” slides, but it is unclear whether Geisen or

Moffitt presented them. One crucial slide stated that

“[ajll CRDM penetrations were verified to be free

from ‘popcorn’ type boron deposits using video

recordings from 11RFO or 12RFO.” Moffitt testified

that Geisen later determined that the 100-percent

statement was only attributable to RFO10 rather

than to the later RFOs and decided to correct the

error in subsequent submissions.

On October 17, 2001, FENOC sent SL 2735 to

the NRC to supplement SL 2731. Geisen, as a

“responsible manager,” initialed and dated the green

sheet for this submission. SL 2735 contained a table

detailing the status of each nozzle at each inspection

(“nozzle inspection table”). The table indicated

whether each nozzle had been recorded and whether

leaks were apparent on each nozzle. After the NRC’s

request for more information following SL 2731,

17a

Geisen had asked Siemaszko to review the

inspection videos and to prepare the table.

After receiving Siemaszko’s draft table

charting the 1998 and 2000 inspections, Geisen told

Siemaszko to include the 1996 inspection. Because

he had never seen the RPV head in 1996, Siemaszko

relied on information from others to complete the

table. For the 1998 and 2000 inspections, each nozzle

had one of the following notations: (1) “no leak

observed,” indicating that a visual inspection was

sufficient and no video record was needed; (2) “no

leak recorded,” indicating that the nozzle inspection

was recorded on the video; or (3) “flange leak

evident,” indicating that the nozzles were not visible

due to boric acid deposits.

During the NRC investigation into Davi

Besse in. 2002, Geisen told investigators that he wag

responsible for supervising Siemaszko’s work on the

nozzle inspection table and, according to testimony

by the investigator, “[Geisen] said that during... an

early October time frame, . . . he had viewed portions

fof the videos] of the 1996, 1998 and the 2000 reactor

vessel head inspections.” The version of SL 2735

submitted to the NRC contained the nozzle

inspection table as Attachment 2, with a footnote to

the 1996 inspections stating that “the entire RPV

head was inspected. Since the video was void of

head-orientation narration, each specific nozzle view

could not be correlated.” The letter also stated that

“50 of 69 nozzles” were “viewed” in 1998, “45 of 69”

were “viewed” in 2000, and that some nozzles were

not viewed in 2000 because they were “obscured by

boric acid crystal deposits that were clearly

18a

attributable to leaking . . . flanges from the center

CRDMs.” The letter noted that the visual inspections

in 1996, at which time sixty-five of the sixty-nine

nozzles were inspected, and in 1998 and 2000

“consisted of a whole head visual inspection” as

required by the BACCP. The document also asserted

that none of the videos indicated “boric acid chrystal

deposits that would have been attributed to leakage

from the CRDM nozzle penetrations.”

Based on the assertion that all nozzles were

leak-free prior to RFO10, as demonstrated in the

table, FENOC conducted a risk analysis that

determined that the earliest a crack could have

developed was May 1996, after RFO10 concluded. In

the worst-case scenario, that crack would take

seven-and-one-half years to grow to beyond a safe

size, and, therefore, Davis-Besse could safely operate

until RFO13. This risk analysis formed the basis of

Davis-Besse’s representations to the NRC that a

delayed inspection was safe.

Despite the detailed nozzle inspection table,

the NRC was still not satisfied that Davis-Besse

could operate safely until the scheduled outage in

April 2002. Consequently, on October 24, 2001,

Geisen again presented slides to the NRC, including

one that stated that “the inspection results afford us

assurance that all but 4 nozzle penetrations were

inspected in 1996” and that “no penetration leakage

was identified.” The NRC, however, remained

unconvinced.

On October 30, 2001, FENOC submitted two

further serial letters to the NRC, both of which

19a

contained the nozzle inspection table. SL’ 2741

included a risk analysis and reiterated that, taken

together, the inspections in 1996, 1998, and 2000

constituted a “whole head visual inspection” of the

“bare head” in accordance with the BACCP. SL 2744

contained still photographs taken from. the

inspection videos. Siemaszko provided _ the

“representative” photographs, and Geisen wrote the

‘captions. Geisen initialed and dated the green sheets

for both letters.

Geisen testified that he asked Siemaszko to

collect “representative” photographs and drafted the

captions based on previous conversations—unrelated

to the drafting of SL 2744—that. he had with

Siemaszko about the inspections. Geisen also

testified that he did not watch the videos in their

entirety before compiling the photographs. The

government entered evidence, however, suggesting

that Geisen had viewed the videos in August 2001

and, at least partially, in preparation for submitting

SL 2735.

In an introduction to the 1996 photographs, a

caption characterizes the photographs’ as

“representative” and the head as “relatively clean

and afford[ing] a generally good inspection.” The

caption to a photograph showing boric acid deposits

at the top of the RPV head states that the deposits

could not be removed by mechanical cleaning”

because of their “location,” but were “in the vicinity

of previous leaking flanges and “verified not to be

active or wet.” Geisen told investigators that Edward

Chimahusky, then an engineer in charge of coolant

systems at Davis-Besse, provided the information for

20a

that caption, but Chimahusky testified that he was

not involved in the response to NRC 2001-01 and

that Geisen never consulted him regarding the

captions or response to NRC 2001-01. Chimahusky

also testified that he had only inspected the flanges

on the outside of the reactor head and had not

inspected the interior. The photographs included in

the letter as “representative” did not show any of the

more significant piles of boric acid deposits that the

videos contained.

On November 1, 2001, FENOC submitted SL

2745, which contained a “plant specific assessment”

expanding on the risk assessment provided in SL

2741. However, despite these submissions, the NRC

continued to deny permission to delay the full-head

inspection required by NRC 2001-01. In an effort to

convince the NRC that delaying inspection was safe,

Geisen presented excerpts of the prior inspection

videos to NRC staff on November 8, 2001. According

to testimony at trial by Dr. Allen Hiser, one of the

NRC staff attending the presentation, Geisen

showed excerpts of the 1996 video “to confirm that

the head . . . was in good condition in 1996” but did

not show certain segments of the video that showed

large deposits on the RPV head. Hiser testified:

In retrospect, the good portions I think

is what we reviewed. Mr. Geisen had

control of the remote ...and... he

would fast-forward and jump to various

places in the tapes, and we would

review maybe for a minute or five

minutes just looking at the general

Zla

condition of the head that was visible,

and then we’d go maybe forward.

Geisen testified, however, that he had shown the

entire 1996 video. Hiser also testified that when he

reviewed the same tapes during the NRC

investigation in 2002, he saw “a lot more boron than

we had expected . . . which was inconsistent really

with anything that we had _ been _ provided

previously.” Hiser stated that he “ha[d] no idea”

whether Geisen intended to skip over the parts of

the video showing significant boron buildup but did

know that the excerpts that he showed were not

representative. Hiser also stated that Geisen showed

portions of the 1996 and 1998 videos but no portion

of the .2000 inspection videos. According to Hiser,

Geisen said “if you think this tape is bad, the 2000

tape is even worse, so I won’t bother to show it to

you.” Both Geisen and Hiser agreed that Geisen was

unable to narrate the videos, and Geisen testified

that he had not previously viewed the videos in their

entirety and had no time to prepare. Geisen testified

that because he was frustrated with his inability to

narrate, he arranged for Siemaszko to meet with the

NRC to review the videos. Siemaszko did meet with

NRC staff on November 14, 2001, to provide

assurances that the previous inspections had been

sufficient.

As the December 31, 2001, deadline for

inspection approached, FENOC managers—

including Geisen—met with NRC staff on. November

28, 2001, to discuss whether Davis- Besse would have

to close. At that meeting, FENOC made additional

commitments to expand the scope and bring forward

22a

the timing of RFO13, including proposing an earlier

shutdown date of February 16, 2002, and promising

to conduct a “100% qualified visual” and “100% [non-

destructive examination]” inspection. FENOC also

committed to replace the vessel head “at first

available opportunity.”

D. Procedural Background

During the resulting 2002 inspection, the

plant discovered a large cavity inthe head of the

reactor created by boric acid eroding the steel. The

erosion had penetrated through the carbon steel

wall, leaving only the 0.24" to 0.38" stainless steel

lining of the reactor head,and was located near five

cracked nozzles, four of which were at the very top of

the reactor head (nozzles 1,2, 3, and 5). The cavity

was discovered only by chance when one of the

cracked nozzles moved. As a result of the ensuing

internal investigation, Davis-Besse fired Siemaszko

and Goyal in September 2002 because of their roles

in providing inaccurate and misleading information

to the NRC in the serial letters.

In January 2006, a grand jury indicted

Geisen, Siemaszko, and Cook on five counts of

violating 18 U.S.C. §§ 1001 and 2.1 The indictment

charged that, based on the statements made in the

serial letters submitted to the NRC and at two public

meetings, the NRC permitted Davis-Besse to operate

beyond December 31, 2001. Count 1 charged that the

three “did knowingly and willfully conceal and cover

up, and cause to be concealed and covered up, by

1 Cook was indicted on all counts except count 4

23a

tricks, schemes and devices, material facts in.a

matter within the jurisdiction of the executive

branch of the government of the United States, to

wit, the condition of Davis-Besse’s reactor vessel

head, and the nature and findings of previous

inspections of the reactor vessel head.”.The detailed

indictment regarding count 1 listed SL 2731, the

other serial letters, and various meetings with NRC

authorities between September and December 2001

in which the three defendants participated in

various ways. Counts 2 through 4 alleged that

Geisen “did knowingly and willfully make, use, and

cause others to make and use a false writing,”

including: (count 2) SL 2735, containing five

allegedly false statements; (count 3) SL 2741,

containing five allegedly false statements; and

(count 4) SL 2744, containing six allegedly false

statements. Count 5 alleged that Geisen “did

knowingly and willfully cause others to make and

use a false writing.”

Before the indictment was returned, the

government offered Geisen a deferred prosecution

agreement: (“DPA”) that promised that the

government would ‘refrain from seeking an

indictment or otherwise’ initiating § criminal

prosecution of . . . Geisen” with respect to stated

stipulated facts. The DPA required Geisen to

“admit[{} that. between September 3, 2001, and

November 28, 2001, he knowingly and deliberately

caused false representations to be made to the NRC

in the course of attempting to persuade the NRC

that [Davis-Besse] was safe to operate beyond

December 31, 2001.” The DPA also stated that

Geisen would waive the statute of limitations for

future prosecution based on a breach of the DPA,

24a

cooperate in criminal and administrative

proceedings related to the incident, and agree that

the stipulated facts could be used against him in any

proceeding should he breach the DPA. Geisen

rejected the DPA, and he was indicted.

Geisen and Cook moved to sever their trial

from that of Siemaszko. The district court granted

the motion, and Geisen and Cook were tried jointly

in October 2007.2 The key issue at Geisen’s trial was

whether he possessed the intent required by § 1001.

Geisen, who testified in his own defense, contended

that although the statements were false, he did not

know that they were false at the time and did not

intend to deceive the NRC. As evidence of a lack of

intent, Geisen filed a motion in limine seeking to

introduce evidence of his pre-indictment rejection of

the offered DPA. The district court denied the

motion.

Among the testimony relied on heavily. by the

government was that of John Martin, a former NRC

investigator who interviewed Geisen in 2002.

Martin, relying on his handwritten notes of the

interview, testified that Geisen stated that he

viewed the inspection videos in August 2001 in

connection with preparing for Davis-Besse’s

interactions with the NRC. This contradicted

Geisen’s own testimony that he had not reviewed the

video tapes at the time that he wrote the captions for

the photographs submitted to the NRC in SL 2744.

The government also submitted into evidence

2 We decided Siemaszko’s appeal this day in a separate opinion.

See United States v. Siemaszko, No. 09-3167, — F.3d — (6th

Cir. 2010).

25a

numerous emails that were addressed or copied to

Geisen from Goyal discussing past inspections at

Davis-Besse, similarities between Oconee and Davis-

Besse, and the need to modify the RPV head to

permit better access during inspections and

cleaning. In one such email, Goyal noted that Davis-

Besse’s was the only Babcock-and-Wilcox-designed

reactor that did not have access doors on the reactor

head.

To demonstrate the falsity of the statements

included in the serial letters, the government

introduced the inspection videos and summaries of

-the prior cleanings into evidence through the expert

testimony of Melvin Holmberg. Holmberg, who

conducted an audit of the inspections and created a

“map” of the RPV head identifying each nozzle by

number, walked the jury through the various videos.

He identified which nozzles were visible during each

inspection and to what extent the view of each nozzle

was sufficient to enable the “qualified visual

examination” (““QVE”) required by NRC 2001-01. In

the diagrams he produced, he also identified which

of those nozzles were designated by FENOC as “no

leak observed,” i.e., “visual inspection satisfactory,

no video record required,” and which were

designated as affected by flange leakages.

Summarizing Holmberg’s results, the government

included in its brief before this court the following

table illustrating how many of the nozzles were

visible for inspection:

26a

Inspector | Nozzles Nozzles

Visible Subject

(total to

out of 69) | QVE

(total out

of 69)

RFO10 (1996) | Goyal 51 28

RFO11 (1998) | Mainhardt | 43 18

RFO12 (2000) | Siemaszko | 23 5

The government claimed that this was inconsistent

with the assertions made in SL 2735 that “50 of 69

nozzles” were visibly inspected in 1998 and “45 of 69”

were visibly inspected in 2000, although the senal

letter did not differentiate between QVE and

“viewed.”

At the end of the trial, the government asked

for and was granted a jury instruction on deliberate

ignorance. After three days of deliberations, the jury

reached a verdict of acquittal as to Cook and

informed the district court that it had reached only a

partial verdict as to Geisen. After hearing an Allen

charge, the jury returned a guilty verdict on counts

1, 3, and 4. The district court denied a motion for

judgment of acquittal and new trial, noting that,

“[ajlthough a close case, the evidence presented,

including testimony from the Defendant himself,

when viewed cumulatively, constitutes sufficient

direct and circumstantial evidence upon which a

reasonable jury, utilizing the standard ‘beyond a

reasonable doubt,’ could have based a finding of

knowledge and intent.” Geisen was sentenced to

three years of probation for each count, to run

concurrently, and was fined $7,500, directed to

27a

perform 200 hours of community service, and

prohibited from working in the nuclear industry

during his period of probation. Geisen timely

appealed.

IT. Deliberate Ignorance Instruction:

We review challenges to a district court’s jury

instruction for abuse of discretion. United States v.

Prince, 214 F.3d 740, 761 (6th Cir. 2000). “A trial

court has’ broad discretion in crafting jury

instructions and does not abuse its discretion unless

the jury charge ‘fails accurately to reflect the law.”

United States v. Ross, 502 F.3d 521, 527 (6th Cir.

2007) (citations omitted). Thus, we may reverse the

jury’s conviction “only if the instructions, viewed as a

whole, were confusing, misleading, or prejudicial.”

United States v. Harrod, 168 F.3d 887, 892 (6th Cir.

1999) (internal citations and quotation marks

omitted).

We have stated that a deliberate ignorance

instruction is warranted to “prevent[] a criminal

defendant from escaping conviction merely by

deliberately closing his eyes to the obvious risk that

he is engaging in unlawful conduct.” United States v.

Gullett, 713 F.2d 1203, 1212 (6th Cir. 1983).

However, we have cautioned that this instruction

should be used sparingly because of the heightened

risk of a conviction based on mere negligence,

carelessness, or ignorance. See United States uv.

Mari, 47 F.3d 782, 787 (6th Cir. 1995) (warning

courts not to use the instruction “indiscriminately”);

see also Pattern Criminal Jury Instructions for the

Sixth Circuit § 2.09. A deliberate ignorance

28a

instruction is properly given, therefore, when there

is evidence supporting an inference of deliberate

ignorance. See United States v. Lee, 991 F.2d 343,

351 (6th Cir. 1993).

The district court properly instructed the jury

that it could only find Geisen guilty under a

deliberate ignorance theory if it was “convinced

beyond a reasonable doubt that the defendant was

aware of a high probability that the submissions and

presentations to the NRC concealed material facts . .

. or included false statements.” See id. at 350-51

(upholding the use of the same instruction). The

district court further cautioned the jury that

“[c]Jarelessness, or negligence, or foolishness on [the

defendant’s] part is not the same as knowledge and

is not enough to convict.”

Geisen also argues that the instruction

confused and misled the jury and permitted it to

convict on the basis of negligence rather than

criminal intent to deceive. Geisen argues that the

risk of confusion is greater than usual in this case

because the government entered considerable

evidence that Geisen was negligent in preparing and

reviewing the submissions to the NRC. We find

Geisen’s argument unavailing. In giving the

instruction to the jury, the district court was very

careful to use Pattern Jury Instruction 2.09. The

court also gave a limiting instruction. We have held

that Pattern Jury Instruction 2.09 is an accurate

statement of the law. Jd. at 351. And, in Mari, we

found that cautionary language such as that used by

the district court in this case “forecloses the

possibility of thfe] error” that a conviction is

29a

improperly based on negligence or carelessness. 47

F.3d at 785.

Quoting the Tenth Circuit, Geisen also argues

that it is illogical to give the deliberate ignorance

instruction since the government maintains that the

evidence supports actual knowledge based on

Geisen’s knowledge of the contents of the Goyal

emails. See United States v. Francisco-Lopez, 939

F.2d 1405, 1410 (10th Cir. 1991) (“If evidence proves

the defendant actually knew an operant fact, the

same evidence could not also prove he was ignorant

of that fact.”). Mari forecloses this argument because

it held that improperly giving the “deliberate

ignorance” instruction is at most harmless error

when the prosecution presented sufficient evidence

of actual knowledge. 47 F.3d at 786 (citing Griffin v.

United States, 502 U.S. 46, 55-56 (1991) (holding

that giving ar instruction based on unsupported

grounds is harmless as a matter of law)); see also

United States v. Springer, 262 F. App’x 703, 706 (6th

Cir. 2008) (finding the same argument “hard to

swallow” given the defendant’s argument at trial

that he had no actual knowledge). In so holding, the

Mari court

recognized that [it] must assume that.

the jury obeyed the language of the

district court’s instructions. The words

of the instruction required the jury to

find beyond a reasonable doubt that the

defendant was deliberately ignorant

before it could convict on that ground.

Therefore, even if there had been

insufficient .evidence to support a

30a

deliberate ignorance instruction, we

must assume that the jury followed the

jury charge and did not convict on the

grounds of deliberate ignorance. Thus,

another theory must have formed the

basis for the conviction.

United States v. Monus, 128 F.3d 376, 390-91 (6th

Cir. 1997) (citing Mari, 47 F.3d at 785—87) (internal

citations omitted).

Because the jury instruction given by the

district court in this case was not an incorrect

statement of the law but rather at worst—if we take

Geisen’s arguments at face value—‘“one that is

simply not supported by the evidence,” it was not

prejudicial to Geisen. See Mari, 47 F.3d at 786

(quoting Griffin, 502 U.S. at 59).8 The district court,

therefore, did not abuse its discretion by giving a

“deliberate ignorance” instruction and that no

prejudice to Geisen resulted from that instruction.

Moreover, we find below in discussing the sufficiency

of the evidence that Geisen’s convictions can be

upheld under an actual knowledge theorv. Therefore,

any possible error in giving the deliberate ignorance

instruction was harmless. Jd. at 786.

8 In distinguishing his case from Mari, Geisen argues that Mari

misapplied Griffin and relies on cautionary language from this

and other circuits regarding the use of the deliberate ignorance

instruction. He also points to the district court’s hesitance to

determine whether such an instruction was appropriate in this

case as evidence that the instruction was improper. We are not

persuaded. Mari remains controlling law in this circuit, and the

district court’s observation that this was a close issue does not

necessarily render his ultimate determination of the issue

arbitrary or capricious.

3la

Even if Geisen’s convictions cannot be

sustained under an actual knowledge theory, the

evidence was sufficient to demonstrate that he acted

with deliberate ignorance. In order to constitute a

violation of § 1001, a false statement must be made

to or a material fact concealed from the NRC

“knowingly and willfully.” 18 U.S.C. § 1001.

Consequently, “[t]o establish a violation of § 1001,

the Government must prove beyond a reasonable

doubt that the statement was made with knowledge

of its falsity,”:United ‘States v. Yermian, 468 U.S. 63,

64 (1984), and an “intent to deceive,” United States

v. Ahmed, 472 F.3d 427, 433 (6th Cir. 2006). Geisen

contends that with respect to all three convictions,

the government failed to prove either knowledge or

intent to deceive. He argues that in his supervisory

role, he relied in good faith on information given to

him by those with first-hand knowledge in compiling

and reviewing the submissions to the NRC and

making presentations .to NRC staff. He also argues

that the government improperly imputes to him

knowledge of anything that FENOC knew as well as

FENOC’s motive.

Geisen argues that the government’s approach

to deliberate ignorance constitwtes conviction on the

basis of negligence—what Geisen should have

known—rather than because .he “consciously

attempted to escape confirmation of conditions or

events he strongly suspected to exist.” United States

v. Skilling, 554 F.3d 529, 548 (5th Cir. 2009), cert.

granted, 130 S. Ct. 393 (2009) (quoting United States

v. Lara- Velasquez, 919 F.3d 946, 951 (5th Cir. 1990),

and declining to find the instruction improperly

given). We disagree.

32a

The government identified several

representations that it argues “demonstrate a

deliberate disregard for the truth,” thereby

suggesting that Geisen was “deliberately avoiding

culpable knowledge.” First, Geisen testified that he

compiled information for slides presented to the

NRC at a meeting on October 11, 2001. One of the

slides represented that “[aJll CRDM penetrations

were verified to be free from ‘popcorn’ type boron

deposits using video recordings from 11RFO ‘or

12RFO.” Geisen testified that the information for

that slide came from Siemaszko’s review of the

tapes, but acknowledged that Siemaszko had not

completed his nozzle inspection table by the time the

slides were composed. The government argues that

“this means that Geisen personally vouched for the

comprehensiveness of the inspections, without any

basis for doing so.” Second, Geisen testified that he

did not recall ever speaking “face-to-face” with

Siemaszko regarding Siemaszko’s assertion that the

1996 inspection had visualized sixty-five of sixty-

nine nozzles, despite Geisen’s knowledge of the

considerable deposits remaining on the RPV head

and the impediments to previous inspections. Third,

Geisen testified that he did not consult Siemaszko or

any systems engineers while drafting the captions

for the photographs submitted in SL 2744 but rather

relied on his memory of “previous conversations.”

Taken together with his testimony that he never

reviewed the inspection videos on his own, the

government argues that “[t]his left the jury to

understand that Geisen interpreted images and

made critical representations about past

inspections—e.g., that certain boric acid deposits

were ‘verified not to be active or wet’—without any

confirmed basis for doing so.”

33a

_In conclusion, the government presented

ample evidence from which a rational jury could

infer that Geisen deliberately chose not to inform

himself in preparing the submissions to the NRC.

Testimony and documents entered into evidence

suggested that Davis-Besse’s representations to the .

NRC in the serial letters, meetings, and conference

calls played a leading role in convincing the NRC

that it would be safe to keep Davis-Besse in

operation beyond December 31, 2001; that Geisen

admittedly put little effort into informing himself

and confirming the assertions he made to the NRC

in the serial letters and in person at meetings; that

there were significant and readily apparent

inconsistencies between the information Geisen

received from Siemaszko and others and the actual

state of the RPV head; that Geisen possessed

knowledge of the nature of the plant’s prior

inspections from his involvement in reviewing

procedures in the wake of the Oconee incident; and

that the plant’s management desired to keep the

plant in operation until RFO13. Consequently, the

district court’s instruction was not improper.

Il. Sufficiency of the Evidence Claims

We review a district court’s refusal to grant a

motion for judgment of acquittal and a defendant’s

claim of insufficiency of the evidence de novo. See

United States-v. Gunter, 551 F.3d 472, 482 (6th Cir.

2009) (sufficiency of the evidence claims); United

States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002)

(motions for acquittal). “[T]he relevant question is

whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

34a

could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original); see also

United States v. Dedman, 527 F.3d 577, 592 (6th Cir.

2008).

All conflicts in the testimony are resolved in

favor of the government, and every reasonable

inference is drawn in its favor. United States uv.

Bashaw, 982 F.2d 168, 171 (6th Cir. 1992). In

considering the claim, “we do not weigh the evidence

presented, consider the credibility of witnesses, or

substitute our judgment for that of the jury.” United

States v. M/G Transp. Servs., Inc., 173 F.3d 584,

588-89 (6th Cir. 1999) (citing United States v.

Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)). This

standard applies even if the evidence is purely

circumstantial. See Kone, 307 F.3d at 434.

Consequently, in raising a sufficiency of the evidence

claim, a defendant “bears a very heavy burden.”

United States v. Spearman, 186 F.3d 743, 746 (6th

Cir. 1999).

In order to convict a defendant for making

false statements to a federal agency in violation of 18

U.S.C. § 1001, the government must prove: “(1) the

defendant made a statement; (2) the statement is

false or fraudulent; (3) the statement is material; (4)

the defendant made the statement knowingly and

willfully; and (5) the statement pertained to an

activity within the jurisdiction of a federal agency.”

Dedman, 527 F.3d at 598 (quoting United States v.

Lutz, 154 F.3d 581, 587 (6th Cir. 1998)). Only the

last element is undisputed. When, as in the instant

case, the indictment alleges multiple fraudulent

35a

statements for each count, this court must “uphold a

conviction where there was sufficient evidence for at

least one of the alleged false statements” for each

count. Id. (emphasis added). After reviewing the

extensive record in this case, we find that the

government presented sufficient evidence to sustain

Geisen’s convictions on all three counts.

A. Count 3—Making False Statements in SL 2741

Count 3 of the indictment charged Geisen

with “knowingly and willfully mak[ing], us[ing], and

caus[ing] others to make and use a false writing,

that is, [SL 2741], knowing that it contained the

following material statements, which were

fraudulent” to the NRC in violation of §§ 1001 and 2.

The allegedly false material statements were:

l. “[djuring 1ORFO, 65 of 69 nozzles

were viewed’ ...;

2. “[iJn 1996 during 10 RFO, the entire

RPV head was inspected” ... ;

3. “[sjince the [RFO10] video was void of

head orientation narration,

each specific nozzle view could not be

correlated”... ;

4. “[t]he inspections performed during

the 10th, llth, and 12th [RFOs] .. .

consisted of a whole head _ visual

inspection .of the RPV _ head in

accordance with the [BACCP]”. . .; and

5. “[flollowing 12RFO, the RPV head

was cleaned with demineralized water

to the extent possible to provide a clean

36a

head for evaluating future inspection

results” ....

We must uphold the conviction on this count if there

was sufficient evidence for a jury to convict based on

any one of these five allegations. See Dedman, 527

F.3d at 598.

SL 2741, submitted on October 30, 2001, in

conjunction with SL 2744, provided a risk analysis

based on the assumption that a “whole head visual

inspection” of the “bare head,” excepting only four

nozzles, had been conducted in accordance with the

BACCP in 1996. Geisen testified that he asked

Siemaszko to expand the nozzle inspection table to

include the 1996 inspection because he realized that

the 1998 and 2000 inspections even taken together

did not amount to a full visual inspection of the

reactor head. Thus, Geisen was aware of the

paramount importance of representing to the NRC

that the 1996 inspection was complete for sixty-five

of the sixty-nine nozzles. Had the inspection been

less complete, the risk analysis would be inaccurate,

and Davis-Besse could not assure the NRC that it

had visually inspected the “entire head” as recently

as 1996.

Testimony also suggested that Davis-Besse’s

managers, including Geisen, were under

considerable pressure from their superiors to keep

the plant in operation. Geisen’s supervisor, Moffitt,

testified that FENOC was very concerned that

Davis-Besse continue operating as scheduled until

spring 2002. After SL 2731, FENOC'’s first response

to NRC 2001-01, proved unsuccessful in securing the

NRC’s permission to continue operations, Geisen

37a

took a more active role in coordinating and

overseeing Davis-Besse’s response to NRC 2001-01.

Moffitt, Geisen’s direct supervisor, testified that

“December versus April became this issue of great

discussion” and that the economic, technical, and

morale repercussions of halting operation before the

completion of the cycle would be “quite severe.”

Geisen himself testified that the site vice-president

was “very upset” when SL 2731 was unsuccessful,

which created “all sorts of new work activity.”

Evidence presented at trial that Geisen played a

direct role in drafting and reviewing SL 2735 by

directing Siemaszko and Goyal demonstrates that

Geisen was directly involved in Davis-Besse’s efforts

to convince the NRC to allow the plant to continue

operating until RFO13. Geisen also drafted the text

of SL 2744. A rational jury, therefore, could have

concluded that Geisen had a motive and intent to

deceive the NRC in order to keep the plant in

operation through spring 2002.

The government also presented sufficient

evidence at trial for a_ rational -jury to find that

Geisen knew that SL 2741 misrepresented the

success of the prior inspections and the extent of the

cleaning of the RPV head. First, there was sufficient

evidence for a rational jury to find beyond a

reasonable doubt that Geisen knew that the

inspection in 1996 had not been of the “entire head”

and had not covered sixty-five .of the sixty-nine

nozzles as alleged in SL 2741. Furthermore, a

rational jury could find that there was sufficient

evidence that Geisen knew that the BACCP had not

been utilized in the inspections because of the extent

of the deposits noted in the 2000 PCAQ that he had

reviewed and because of Goyal’s emails to him.

38a

Second, Geisen testified that as plant

representative to the Babcock and Wilcox owner’s

group, he was aware of the risks of nozzle cracking

and had given presentations on the risks associated

with the cracking in early 2001. He was also

involved in reviewing a June 2001 memorandum

that stated that while the plant could operate safely

until RFO13, significant boron deposits that

remained on the RPV head following RFO12 must be

addressed. Furthermore, because of his involvement

in reviewing the 2000 PCAQ and canceling the

operational restraint imposed by Siemaszko, Geisen

was aware that the whole head had not been cleaned

during the RFO12 process in 2000 as represented in

SL 2741. Thus, a _ rational jury could have

determined that Geisen knew that SL 2741's

assertion that, “[flollowing 12RFO, the RPV head

was cleaned with demineralized water to the extent

possible to provide a clean head for evaluating future

inspection results” was materially misleading.

Finally, the jury could have credited Martin’s

testimony that Geisen reviewed the inspection

videos personally in August 2001, and, therefore,

knew that there was narration on the 1996 video,

contrary to representations that there was none’in

SL 2741, and that fewer than sixty-five nozzles had

been visible.

Therefore, although a rational jury would

have had to rely on largely circumstantial evidence

to infer Geisen’s knowledge of the falsity of the

statements in SL 2741, given the evidence

presented, one could have found that Geisen knew

that certain assertions in SL 2741 were false and

incomplete and, knowing this, signed and submitted

39a

SL 2741 to the NRC with the intent to represent the

past inspections as morecomplete than they had

‘been. Therefore, there was sufficient evidence for a

jury to find Geisen guilty of violating §§ 1001 and 2

as alleged in count 3.

B. Count 4—Making False Statements in SL 2744

The government’s case on count 4 is perhaps

the strongest against Geisen, and we find that a

rational jury could-find all elements of § 1001 beyond

a reasonable doubt. Count 4 of the indictment

charged Geisen with “knowingly and willfully

mak[ing], us[ing], and caus[ing] others to make and

use a false writing, that is, [SL 2744], knowing that

it. contained the followinz material statements,

which were fraudulent” to the NRC in violation of §§

1001 and 2. The allegedly false material statements

were:

1. “[iJn 1996 during 10 RFO, 100% of

nozzles were inspected by visual

examination’... ;

2. “[s]ince the [RFO10] video was void of

head orientation narration, each specific

nozzle view could not be correlated: by

nozzle number’ ... ;

3. “[t]he following pictures’ are

representative of the head in the Spring

1996 Outage.~The head was relatively

clean and afforded a generally good

inspection” ... ;

4. “[b]ecause of its location on the head,

fa pile of boric acid] could nect be

removed by mechanical cleaning but

40a

was verified to not be active or wet and

therefore did not pose a threat to the

head from aé_ corresion standpoint,”

whereas, as the defendants then well

knew, no action had been taken in 1996

to verify whether the boric acid was

active or wet and, thus, not a corrosion

threat;

5. “these attached pictures. are

representative of the condition of the

drives and the heads” during the

inspection during [RFO11]...;

6. “[t]he photo for No. 19 depicts in the

background the extent of boron buildup

‘on the head and is the reason no credit

is taken for being able to visually

inspect the remainder of the drives,”

whereas, as the defendants then well

knew, other -images from the 2000

inspection snowed that the extent of

boron buildup on the head was much

greater than what was depicted in the

photo of nozzle number 19.

We must uphold the conviction on this count if we

conclude that there was sufficient evidence for a jury

to find any one of these six allegations. See Dedman,

527 F.3d at 598. The evidence is strongest with

respect to the first, fourth, fifth, and sixth

statements, and so we limit our review to those

allegations.

SL 2744, for which Geisen wrote the captions

to the “representative” photographs, is the most

direct evidence of Geisen’s participation in

4la

representing to the NRC that it was safe to continue

operating the reactor because Davis-Besse had

conducted adequate and thorough inspections in

1996, 1998, and 2000. Unlike in the previo’#s serial

letters, which Geisen did not directly draft, the

captions were his own work product, and he testified

that he did not consult Siemaszko, Goyal, or any

other individual directly involved in the past

* spections while drafting the captions. There is no

question, therefore, that the alleged statements were.

made by Geisen and caused to be submitted to the

NRC by him. In testimony, Geisen also admitted

that the statements were false, although he denied

that he knew that at the time that he wrote them.

Therefore, the only element of § 1001 that remains is

whether Geisen submitted those statements

knowing that they were false.

Geisen attempts to shift blame for the

misrepresentations and false statements in SL 2744

onto Siemaszko, stating that he had told Siemaszko

to collect “representative” photographs and that he

had based the captions on information from

conversations with Siemaszko that had taken place

previously but ~-not specifically relating to the

photographs. The government argues that Geisen

“created” the captions by “interpret[ing] images and

ma[king] critical representations about past

inspections . . . without any confirmed basis for doing

a]

so.

Evidence presented at trial suggests that

Geisen did task Siemaszko with selecting

representative photographs of the inspections. It is

undisputed that the photographs were not

42a

representative and showed far less boric acid

buildup than existed. Given testimony presented at

trial that Geisen had reviewed the inspection tapes

in August 2001, the June 2001 memorandum, and

the 2000 PCAQ in which Siemaszko had put a hold

on the reactor due to the considerable deposits, a

rational jury could find that Geisen knew of the

greater extent of the boric acid deposits and the

limited scope of the inspections by the time that SL

2744 wes submitted on October 30, 2001. If Geisen

had seen the prior inspection videos or read the

reports, he would have known that the photographs

were not representative of either the prior

inspections or the current condition of the RPV head.

A rational juror could therefore have found that

Geisen’s captions indicating that the photographs

were “representative” of the state of the RPV head

were knowingly false and misleading.

Geisen’s attempt to blame Siemaszko for the

content of the captions is also unavailing. Geisen

testified that he wrote the captions based on past

conversations with Siemaszko not related to the

captioning, that he did not ask Siemaszko or others

involved personally in the inspections to help with

drafting the captions, and that he had not personally

viewed the video tapes before writing the captions.

The government also argues that the statement that

the deposits were “verified” as not wet or active was

unconfirmed because Geisen did not ask anyone

about the state of the deposits and did not have

firsthand knowledge. Geisen testified that this

caption “was based upon a conversation I had had

with [Siemaszko] that he was reflecting back on a

conversation he had with somebody else.” In prior

statements to investigators, Geisen also attempted

43a

to blame Chimahusky for providing the information

for the same caption. Chimahusky testified that he

did not recall being asked about the 1996

inspections, and Goyal testified that he was not

asked to help with this caption.

Additionally, as discussed previously with

respect to count 3, evidence suggests that Geisen

understood by October 30, 2001, that the NRC was

very concerned with the thoroughness of the 1996

inspection and that his superiors wanted the plant to

remain in operation until into the spring of 2002.

Given this evidence of knowledge and motive to

deceive and undisputed evidence that the

photographs and captions’ were misleading, a

rational jury could find that Geisen submitted SL

2744 to the NRC knowing that it contained false and

misleading statements. Therefore, a rational jury

could find that there was sufficient evidence to

support a conviction of violating §§ 1001 and 2 on

this count.

C. Count 1—Concealing Material Facts

Count 1 of the indictment charged Geisen

with “knowingly and willfully concealfing] and

cover[ing] up, and caus[ing] to be concealed and

covered up, by tricks, schemes and devices, material

facts in a matter within the jurisdiction of the

[NRC], to wit, the condition of Davis-Besse’s [RPV]

head, and the nature and findings of previous

inspections of the [RPV] head” in violation of §§ 1001

and 2. The indictment specified ten allegations of

concealment of a material fact:

44a

1. causing SL 2731 to be forwarded to

the NRC knowing that it

a. “deliberately omitted critical

facts concerning the inspections

and limitations on accessibility”

and

b. “falsely stated that the

inspectic 1s complied with.. .

DavisBesse’s [BACCP];”

2. falsely stating during an October 3,

2001, conference call with the NRC that

a “100% inspection” of the RPV

head with the exception of some areas

took place in 2000;

3. representing the false fact that “[a]ll

CRDM penetrations were verified to be

free from ‘popcorn’ type deposits using

video recordings from 11RFO or 12RFO”

at a meeting with the NRC on October

11, 2001;

4. causing SL 2735 to be forwarded to

the NRC, which falsely represented that

the entire RPV head had been inspected

in 1996;

5. making false representations about

the scope of the 1996 inspection, that

“[a]ll CRDM penetrations were verified

to be free from ‘popcorn’ type born

deposits using video recordings from

10RFO, 11 RFO or 12RFO,” and that

videos or eyewitness accounts confirmed

45a

this at a meeting with NRC staff on

October 24, 2001; |

6. causing SL 2741 to be forwarded to

the NRC repeating false statements in

SLs 2731 and 2735;

7. causing SL 2744 to be forwarded to

the .NRC with photographs falsely

represented as “representative” of the

condition of the RPV head;

8. causing SL 2745 to be forwarded to

the NRC repeating false statements

from SLs 2735 and 2741;

9. giving a presentation to the NRC

with false information from SLs 2735

and 2741 to argue that the plant should

stay open until RFO13; and

10. giving a presentation to the FENOC

Company Nuclear Review Board that

falsely represented that a qualified

visual inspection was performed in 1996

on all but four nozzles.

We need not analyze all ten allegations in the

indictment individually because we -must uphold

Geisen’s conviction on this count if we find that there

was sufficient evidence for a jury to find any one of

the ten assertions. See Dedman, 527 F.3d at 598.

We note first that because we have already found

that there was sufficient evidence for a rational jury

to find that Geisen caused SLs 2741 and 2744 to be

forwarded to the NRC, knowing them to contain

false statements and with intent to deceive, there

was sufficient evidence to support a conviction on

count 1 based on the sixth and seventh allegations.

46a

However, even without relying on those

statements, the government presented sufficient

evidence to sustain this conviction. After the NRC’s

negative response to SL 2731, Geisen met with NRC

staff on at least five occasions—on October 3, 11 and

24 and November 8 and 28, 2001—either via

conference call or in person. The purpose of the

meetings and conference calls was to reassure the

NRC and _ @to- provide further information

demonstrating the thoroughness of previous

inspections.

During the October 3 call, Geisen stated that

there had been a 100-percent inspection of the head

barring five or six nozzles and, at an October 11

meeting, a slide authored by Geisen asserted that

video recordings from RFO11 and RFO12 showed

that the nozzles were free of boric acid. Geisen

admitted that he realized that there was not a

complete visualization from RFO11 and RFO12

directly after the meeting—and thus before

submission of SLs 2735, 2741, and 2744—but

decided to correct the error later. It was at this

juncture that the 1996 inspection became critical in

order to represent that the nozzles had been fully

inspected as recently as 1996.

The circumstantial and direct evidence

discussed in our analysis of counts 3 and 4 with

respect to Geisen’s knowledge of the state of the RPV

head and the inspections could convince a rational

jury that he knew that these representations were

false by October 3 and 11. For similar reasons, a

rational jury could find that Geisen knew that the

information that he presented to the NRC at later

47a

meetings via slides authored by him knowingly

included false and misleading statements. For

example, a slide presented on October 24, 2001,

stated that “the inspection results afford us

assurance that all but 4 nozzle penetrations were

inspected in 1996” and that “no penetration leakage

was identified.” A jury, therefore, could convict

Geisen on count 1 based on the misleading

statements he made in meetings and calls with the

NRC.

Geisen also argues that he bears no criminal

responsibility for SL 2731 because he was not

involved in its drafting and his only action was to

sign off after the chain of review indicated on the

green sheets wos complete. It is undisputed that he

signed the green sheet for SL 2731 on behalf of

himself on August 28 and on behalf of his supervisor

on August 30. Geisen admitted that his

responsibility with respect to SL 2731 was to review

the document. He testified that, in doing so, “[fhe]

would have gone through the document looking for

those pertinent sections that deal -with the design of

the plant and make sure that they sounded right to

[him] as well as verify that the appropriate people

from [his] staff were involved with the reviews and

signed off on it.”

There is also both direct and circumstantial

evidence that Geisen was aware of the limitations of

previous inspections such that a rational jury could

infer that he knew that the representations

regarding those inspections in SL 2731 were false or

misleading. For example, in the PCAQ for the the

2000 inspection, Siemaszko put the reactor on a

48a

restraint until the boron deposits were removed.

Geisen added a page to the PCAQ removing the

restraint because the RPV head was due to be

cleaned, although it never was. In June 2001, Geisen

signed off on a memorandum prepared by Goyal that

stated that the plant was safe to operate until

RFO13 but that considerable boron deposits had

impeded inspection of the nozzles in RFO12. As part

of that review, in light of Oconee, Goyal sent Geisen

emails indicating that head cleaning should be a

priority and that the center nozzles at Davis-Besse

were of the same type as those that cracked at

Oconee. While FENOC was drafting SL 2731, on

August 11, 2001, Goyal sent another email to Geisen

and to others in which he stated: “J indicated tha[t]

we plan for 100% volumetric examination even if we

do not commit to NRC. .. . It was pointed out that

we can not [sic! clean our head thru the mouse holes

and Andrew Seimaszko [sic] is requesting 3 large

holes be cut in the Service Structure for viewing and

cleaning.” This suggests not only that Geisen was

involved in making sure that SL 2731 was sent to

the NRC, but also that he was aware of the

considerable impediments to previous inspections

and that the inspections had not been conducted “in

accordance with” the BACCP, as stated in SL 2731.

In conclusion, from this evidence, inter alia, a

rational juror could find that Geisen knew that

statements—-which he reviewed—in SL 2731 were

false and concealed the extent of the limitations to

previous inspections and that he permitted those

material statements to be sent to the NRC as such

We therefore affirm Geisen’s conviction on count 1.

49a

IV. Exclusion of Evidence Claim

We review a district court’s decision to exclude

evidence for abuse of discretion. United States v.

Davis, 490 F.3d. 541, 546 (6th Cir. 2007).

Furthermore, “[we] review[] de novo the [district]

court’s conclusions of law and review[] for clear error

the court’s factual determinations that underpin its

legal conclusions.” United States v. Jenkins, 345 F.3d

928, 935 (6th Cir. 2003) (citations omitted). We have

found that these two standards of review are not in

conflict, as “it is an abuse of discretion to make

errors of law or clear’ errors of factual

determination” in evidentiary rulings. United States

v. Baker, 458 F.3d 513, 517 (6th Cir. 2006) (quoting

United States v. McDaniel, 398 F.3d 540, 544 (6th

Cir. 2005)); see also United States v. Ganier, 468

F.3d 920, 925 (6th Cir. 2006) (affirming the standard

of review quoted in Baker).

“(T]he ‘Constitution guarantees criminal

defendants a meaningful opportunity to present a

complete defense.” Crane v. Kentucky, 476 U.S. 683,

690 (1986) (internal quotation marks and citation

omitted). Although this s,uarantee includes the right

“to present relevant evidence,” that evidence is

subject to “reasonable restrictions” and must “bow to

accommodate other legitimate interests in_ the

criminal trial process.” United States v. Scheffer, 523

U.S. 303, 308 (1998) (internal quotation marks and

citation omitted). The Federal Rules of Evidence,

including Federal Rule of Evidence 403, are such

reasonable restrictions. See Varner v. Stovall, 500

F.3d 491, 499 (6th Cir. 2007). Furthermore, a

district court enjoys “wide discretion in determining

50a

the admissibility of evidence under the Federal

Rules .. .’ [and t]his is particularly true with respect

to Rule 403.” Sprint/ United Mgt. Co. v. Mendelsohn,

552 U.S. 379, 384 (2008) (quoting United States v.

Abel, 469 U.S. 45, 54 (1984)).

Geisen argues that the district court

improperly denied his motion to enter into evidence

his rejection of a pre-indictment DPA. Geisen

maintains that the DPA was probative of his state of

mind because an innocent person is more likely to

reject a DPA than is a guilty one. He further asserts

that the rejection was necessary to counter

impeachment evidence offered by the government

regarding prosecution agreements offered to four

testifying witnesses.

The district court addressed these arguments

twice, once during pretrial conference, at which point

the court tentatively expressed its intent to deny

Geisen’s motion, and again during trial proceedings,

when the court denied the motion in limine. In

denying the motion, the district court first dismissed

Geisen’s contention that the impeachment evidence

of other witnesses necessitated inclusion of Geisen’s

rejection of the same DPA because _ such

impeachment evidence is routine “for the purpose of

disclosing it to the jury so that they can judge

whether the testimony is in exchange for the offer

and acceptance by the government and the witness,

not for the purpose of denial of guilt.” The district

court went on to find that “there are more reasons to

keep it out than to permit it to come in.” While

acknowledging that the evidence may have some

probative value, the district court noted that the

bla

jury's weighing of the DPA was more complicated

than the weighing of guilt or innocence because, as

other witnesses testifying about offered DPAs

admitted, accepting a DPA and the attendant

statement of facts would affect an individual's

“viability to be employed within the nuclear

industry.” Furthermore, the district court found that

admitting the DPA would “open the- door to cross

examination on what he was told by his counsel; .. .

what he understood a [DPA] to mean for him, ...

including his position for future employment in the

nuclear industry and other employment[, and] his

perception and maybe the. discussion with counsel

about . . . [the weakness of the government’s case].”

The district court concluded that “[t]here are just too

many variables other than the explanation which

would be permitted to the defendants on closing

argument that that represented his denial of guilt.”

Geisen rests his argument heavily on a Second

Circuit case holding that evidence of a rejection of an

immunity offer is relevant to a defendant’s innocent

state of mind. United States v. Biaggi, 909 F.2d 662,

690-91 (2d Cir. 1990); see also United States v.

Maloof, 205 F.3d 819, 824 (5th Cir. 2000) (following

Biaggi). The Biaggi court held that evidence of such

a rejection is admissible if not otherwise “outweighed

by the danger of unfair prejudice, confusion, or

delay” under Rule 403. 909 F.2d at 691. The Eighth

Circuit, however, has declined to adopt Biaggi in a

case in which the defendant sought to introduce

evidence of a rejection of a plea agreement. United

States v. Greene, 995 F:2d 793, 798 (8th Cir. 1993).

The Greene court found controlling the reasoning of

United States v. Verdoorn, 528 F.2d 103 (8th Cir.

1976), which held that government proposals

52a

concerning pleas are inadmissible based on the

rationale of Federal Rule of Evidence 408. Jd. (noting

that Rule 408 “relates to the genera: inadmissibility

of compromises and offers to compromise” (quoting

Verdoorn, 528 F.2d at 107)). The Eighth Circuit

found that there was “fno] relevant distinction

between plea agreements and immunity agreements

except, perhaps, as to the weight that jurors might

give to them” and that “all the defendant is offering

is a prior statement consistent with his plea of not

guilty[, which is} hearsay, except in narrow

circumstances.”* Jd. (citing Fed. R. Evid.

801(d)(1)(B)). As the government points out,

“mak[ing] evidentiary use of [Geisen’s] rejection of

the offer—as opposed to the offer itself—[would be]

difficult (if not impossible) to entangle.”

We have not previously addressed this

question, and find no reason to reach it now because,

on the facts of this case, the exclusion of evidence of

Geisen’s rejection of the DPA did not constitute an

abuse of discretion by the district judge necessitating

reversal even under Biaggi. The Biaggi court held

that “the probative force of a rejec*2d immunity offer

is clearly strong enough to render it relevant”

because an immunity offer would “preclude all

exposure to a conviction and its consequences.” 909

F.2d at 691-92 (emphasis added). A _ deferred

prosecution agreement, however, does not foreclose

all exposure to a conviction and its consequences in

4 The Eighth Circuit also noted, however, that because the

defendant did not intend to testify, there would be no

opportunity to cross-examine him regarding the agreement.

This concern is not present in this case, because Geisen did

take the stand and could have been cross-examined.

53a

the same way, especialiy given the implications for

Geisen’s employment. Refusing to accept the DPA,

therefore, is not as probative of a “consciousness of

innocence” as the immunity offer at issue in Biaggi.

The Biaggi court itself asserted that a plea

agreement would be less probative and declined to

reach whether a district court would be required to

admit evidence of refusal of such an agreement. Jd.

at 691.

Furthermore, and more importantly for the

case befcre us, the Biaggi court acknowledged that

“fijt is a closer question whether the District Judge

exceeded her discretion under [Rule 403] to bar

relevant evidence [of the immunity offer] whose

probative value is outweighed by the danger of

unfair prejudice, confusion, or delay.” Id. The Biaggi

court “ecognize[d] the latitude of a district judge in

making Rule 403 determinations” but found that the

district judge had based her Rule 403 determination

on the erroneous assumption that the immunity

offer was not at all relevant. Jd. In the instant case,

however, the district court acknowledged that

Geisen’s rejection of the DPA may be probative of an

innocent state of mind, but found the probative value

outweighed by the considerable avenues of inquiry

that would be opened by admitting the evidence.

The court also expressed concern that prejudice to

the government would result because “too many

variables [existed] other than the explanation which

would be permitted to the defendants on closing

argument that that represented his denial of guilt”

and that much’ relevant testimony would be

privileged. The district court’s reasoning for denying

the motion in limine, therefore, does not

demonstrate an abuse of discretion in the same

o4a

manner as it did in Biaggi. We therefore find no

error in the district court’s exclusion of evidence of

Geisen’s rejection of the DPA.

V.

For the foregoing reasons, we affirm Geisen’s

conviction on counts 1, 3, and 4 of the indictment.

55a

CONCURRING IN PART AND

DISSENTING IN PART

MERRITT, Circuit Judge, concurring in part

and dissenting in part. Four government witnesses

were allowed, over the objection of the defendant,

Geisen, to testify in great detail about their

negotiations with the government to escape

prosecution while Geisen was denied the right to

testify about his response to the government’s offer

of the same deal. The court’s rulings seem contrary

to a- number of principles of relevancy usually

observed in criminal trials: Rule 401 of the Federal

Rules of Evidence provides a broad and inclusive

definition of “relevant evidence.”! Rule 408 allowing

“offers to compromise” in~criminal cases would

appear to allow evidence of the government offer and

Geisen’s response.? When a party “opens the door” by

offering proof concerning offers of compromise, the

1 1Rule 401. Definition of “relevant evidence.”

“Relevant evidence” means evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable

or less probable than it would be without the evidence.

2 2Rule 408. Compromise and offers to compromise.

(a) Prohibited uses. — Evidence of the following is not

admissible on behalf of any party . : . .:

(2) Conduct or statements made in compromise

negotiations regarding the claim, except when offered

in a criminal case and the negotiations related to a

claim by a public office or agency in the exercise of

regulatory, investigative, or enforcement authority.

(Emphasis added.)

56a

opposing party should be allowed the same

opportunity in reply. For a long discussion of this

relevancy concept on “curative admissibility,” see 1

Wigmore, Evidence § 15, pp. 731-51 (Tillers Revision

1983). The failure to offer the same opportunity in

response to similar circumstances comes close to a

deprivation of a trial right protected by due process

to “question and challenge adverse evidence.” Id. at §

7.1, n. 64, p. 505. Although I do not object to the

court’s decision in this case on the sufficiency of the

evidence, I would reverse and remand for a new trial

because the trial court rejected important evidence

offered by Geisen. Had the jury known that Geisen

had been offered the same deal offered to the

government’s four witnesses, one or more jurors may

have believed that Geisen was no more guilty than

the witnesses who were spared prosecution and may

have believed that his decision was based on a firm

belief in his own innocence.

Twice at trial Geisen moved to enter into

evidence (1) that the government offered him a

deferred prosecution agreement; and (2) that he

rejected it. Geisen first moved to introduce this

evidence before trial. The trial] judge deferred ruling

on the motion. During the zgovernment’s case in

chief, the government introduced, over objection,

evidence that four of its own witnesses — Miller,

Goyal, Moffitt, and Wuokko — had engaged in

charging negotiations with prosecutors. Geisen then

moved again to have evidence of his own charging

negotiations entered, and the court denied the

motion. The majority’s opinion gives short shrift to

the issue and fails to explain the ramifications of the

trial judge’s decision to permit the jury to learn of

the existence of charging negotiations through

57a

government witnesses, while preventing the jury

from hearing that Geisen was offered one as well.

The evidence of Geisen’s: rejection of the

government’s offer of delayed prosecution raises two

evidentiary inferences that should be admissible

under the broad definition of “relevant evidence” in

Section 401 of the Federal Rules. First is the

inference that Geisen argued in his pretrial motion:

his rejection of the offer shows “consciousness of

innocence” because a jury could fairly infer that an

innocent person was more likely to reject this

conditional dismissal of all charges than a guilty

person. United States uv. Reifsteck, 841 F.2d 701, 705

(6th. Cir. 1988). Dean Wigmore says the evidence

should be admissible on this basis alone.®

$3 3§ 293. Conduct, as evidence of Consciousness of Innocence

(Accused’s Voluntary Surrender, Refusal] to Escape, Demeanor,

etc.). If guilt leaves the psychological mark which we term

“consciousness of guilt”, and if this is available as evidence

(ante, § 273), then the absence of that mark (which for want of

a better term may be spoken of as “consciousness of innocence”)

is some indication of the absence of guilt, t.e., of not having

done the deed charged. No Court seems to repudiate this

proposition (ante, § 174); but the tendency to reject evidence of

a consciousness of innocence is rather due to a distrust of the

inference from conduct to that consciousness, since the conduct

is often feigned and artificial.

Such distrust, however, seems improper. Certainly in

the inferences of ordinary life we attach as much weight to that

inference as to the inference of consciousness of. guilt; the

hearing of one accused person as consciously innocent

impresses us no less strikingly than the hearing of another as

consciously guilty . . .: Let the accused’s whole conduct come in;

and whether it tells for consciousness of guilt or for

consciousness of innocence, let us take it for what it is worth,

remembering that in either case it is open to varying

explanations and is not to be emphasized. Let us not deprive an

58a

The second inference that a jury might make

from Geisen’s submitted evidence is drawn not from

his rejection of the deal, but from the fact that it was

offered to him by the government. The offering of the

deal raises an inference that Geisen was of no

greater culpability than the four witnesses, and

hence had not been singled-out as more guilty than

the others whom the government has let go. Through

these witnesses the jury learned that the prosecution

divided the employees of the plant into “targets” and

“subjects” and that one could change from a target to

a subject through a proffer.‘ In the circumstances of

in.ocent person, falsely accused, of the inference which

common sense draws from a consciousness of innocence and its

natural manifestations. With singular perversity, however,

several Courts profess to refuse to allow conduct to, be

considered for the purpose of drawing an inference of

consciousness of innocence; but one consequence of this is the

frequent occurrence of inconsistent rulings by the same Court.

2 Wigmore, Evidence § 293 at 189-90.

4 For example, during the direct examination of government

witness Moffitt, the following exchange took place:

Q: Did you have contact with the prosecutors in this case []?

A. Yes.

Q. What was that contact?

A. Well, I was a target of the investigation, so I certainly had

contact from that perspective . . .

Q. What did you understand it meant to be the target of the

investigation?

A. Target of investigation meant, like, target of hunting. There >

was cross-hairs, and I was likely to be indicted for potentially

could be indicted on this.

Q. [WJere there conditions with respect to the meeting about

how things that you told the prosecutors could be used?

A. I think I met at least twice in 2005, if I remember, and there

was something called a proffer that was — I signed, either I or

my attorney signed.

59a

this case, the problem is not only that the jury was

unable to make the second inference, but also that

the jury may in fact have been led to infer just the

opposite: that, unlike the four witnesses, Geisen was

not offered a deal because he was more culpable. The

exclusion of Geisen’s evidence may have left jurors

with the erroneous impression that Geisen was more

culpable and less entitled to leniency than other

employees.

The government proved in its case in chief

that other employees had plea bargained their way

out of prosecution and that the government’s course

of conduct with these witnesses was reasonable, but

this proof left the jury with the strong impression —

absent any other explanation — that Geisen’s guilt

was in another class. This appearance of more

culpability is at least reasonably debatable. What is

good for the government’s side of the case should

also be good for the defendant’s side. I know of no

basis to make a distinction as to admissibility

between acceptance of the government’s offer and

rejection of the offer. The only reason given by the

District Court was that allowing the evidence would

delay the trial and cause the parties and the jury to

focus on peripheral matters.5 Principles of

Q. And subsequent to. that meeting, did the government

indicate to you that your status had changed?

A. Yes. Yes.

Q. What was your status at that point?

A. I was a subject of the investigation instead of a target. I

certainly felt relieved at that point.

(TT of Moffitt, RE No. 259; ROA pp. 112-114.)

5’ THE COURT: I had said at our pretrial conference that with

respect to that motion, I had tentatively reached the conclusion

60a

reciprocity and equal treatment under law, along

with normal rules of relevancy, would seem to me

more important in any weighing process than the

extra time and added complications in the trial that

the evidence might cause.

to deny it. At that time, I indicated that it is my opinion there

were far too many factors and variables .... Whatever it may be,

it would seem to me that there are more reasons to keep it out

than to permit it to come in. And those reasons are that we

then open the door to cross examination on what he was told by

his counsel; and therefore, what he understood a deferred

prosecution agreement to mean for him, and what else was

involved in his consideration, including his position for future

employment in the nuclear industry and other employment....

There are too many variable like probability or possibility of

winning, the length or type of sentence he was facing against

the possibility or probability of winning through a not guilty

verdict. There are just too many variables other than the

explanation which would be permitted to the defendants on

closing argument that that represented his denial of guilt. I

will not permit it and I will deny the motion. .

(Tr. Pp. 1805-06.)

6la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES

OF AMERICA,

Plaintiff, Case No. 3:06 CR 712

DAVID GEISEN, et al.,

Defendant.

KATZ, J.

Pending before the Court is Defendant

Geisen’s motion for judgment of acquittal (Doc. No.

250) or, in the alternative, for a new tnal which

motion was filed on November 28, 2008. Also before

the Court are the government’s memorandum in

opposition and Defendant’s reply thereto. On March

20, 2008, the Court heard oral argument on the

motion and the issues are ripe for adjudication.

A. Legal Standards Under Fed. Crim. Rules 29 and

33

In determining whether the evidence upon

which the jury based its decision is sufficient to

survive a Rule 29 challenge, this Court is directed by

the case law to view the evidence and al] reasonable

62a

inferences therefrom in a light most favorable to the

Government. United States v. Morrow, 977 F.2d 222,

230 (6th Cir. 1992). A verdict should be upheld if, “. .

. any rational trier of ‘fact could find the essential

elements of the crime beyond a reasonable doubt.”

Jackson v. Virgina, 443 U. S. 307, 319 (1997); United

States v. Acosta-Casares, 878 F.2d 945, 952 (6th

Cir.), cert. denied, 493 U.S. 899 (1989).

The burden under Rule 33 of the Federal

Rules of Criminal Procedure is upon the defendant

attacking a jury verdict; that verdict is

presumptively valid. United States v. Turner, 490

F.Supp. 583 (E. D. Mich. 1979). However, the trial

court may overturn the jury’s verdict where the

evidence preponderates heavily against the verdict

tantamount to a miscarriage of justice. United States

v. Pierce, 62 F.3d 818, 825-826 (6th Cir. 1995).

B. Discussion

As noted at the outset of the oral argument,

this Court reiterates the issue, under Rule 29, is

whether there is. sufficient evidence’ from which a

reasonable jury, deliberating with the guidance of

proper instructions, could have determined guilt

beyond a reasonable doubt, not beyond all doubt.

Counsel for both sides have been zealous advocates

for their clients and the Court lauds their

professionalism.

The Court has reviewed the memoranda filed

by the parties and reviewed the transcript of the oral

argument, giving due consideration to both sides’

arguments. Distilled to its essence, the Defendant

63a

argues the government did not present evidence of

knowledge of falsity with the intent to deceive. This

Court does not agree.

Although a close case, the evidence presented,

including testimony from the Defendant himself,

when viewed cumulatively, constitutes sufficient

direct and circumstantial evidence upon which a

reasonable jury, utilizing the standard “beyond a

reasonable doubt”, could have based a finding of

knowledge and intent.

The Defendant’s arguments regarding

inconsistent verdicts are also unavailing § as

inconsistent verdicts do not necessarily mandate an

acquittal. United States v. Powell, 469 U.S. 57

(1984). A comparison of the jury’s acquittal of Mr.

2ook as contrasted with the Defendant requires the

Court to circumvent the jury’s determinations

regarding credibility and weight of the evidence, an

improper role for the reviewing court. United States

v. Evans, 883 F.2d 496, 501 (6th Cir. 1989).

With respect to the Defendant’s motion for

new tnal under Rule 33, the gravamen of the

argument is that the Court erred in giving the

“deliberate ignorance” instruction, thus misleading

the jury. The pattern instruction, given with some

small additional direction to the jury, has been

approved in multiple cases cited by the Government

at page 32 of its memorandum. The Circuit has

repeatedly held that the instruction is harmless

error where sufficient evidence of actual knowledge

was present. This is the case here. The jury, as in

many cases involving state of mind or intent or

64a

knowledge, had before it facts from which it could

reasonably conclude that Geisen knowingly included

or omitted information or statements which thus

misled the NRC. Finally, the Court does not find the

verdict is against the manifest weight of the

evidence so as to amount to a miscarriage of justice.

This Court has not exhaustively written

herein on the issues raised by Defendant and

addressed by the Government in approximately 100

typed pages of briefing and two hours of oral

argument. It is the conclusion of this Court that the

Government’s reasoning and conclusions warrant

denying Defendant’s motion under consideration.

For the foregoing reasons, the Defendant’s

motion for acquittal pursuant to Rule 29 and for a

new trial pursuant to Rule 33 (Doc. No. 250) is

DENIED.

IT IS SO ORDERED.

S/ David A. Katz

DAVID A. KATZ

U.S. DISTRICT JUDGE

65a

APPENDIX C

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

COMMISSIONERS:

Gregory B. Jaczko, Chairman

Kristine L. Svinicki

George Apostolakis

William D. Magwood, IV

Wilham C. Ostendorff

In the Matter of

Docket No. [A-05-052

DAVID GEISEN

CLI-10-23

MEMORANDUM AND ORDER

On January 4, 2006, the NRC Staff issued an

Enforcement Order against David Geisen, charging

that he had engaged in deliberate misconduct by

contributing to the submission of information to the

NRC that he knew was incomplete: or inaccurate in

some material respect,! in violation of 10 C.F.R. §

1 Order Prohibiting Involvement in NRC-Licensed Activities

(Effective Immediately), IA-05-052 (Jan. 4, 2006) (ADAMS

66a

50.5(a)(2).2 At the time of the asserted misconduct,

Mr. Geisen was employed at the Davis-Besse

Nuclear Power Station (Davis-Besse), a facility

operated by FirstEnergy Nuclear Operating

Company (FENOC). The Enforcement Order barred

Mr. Geisen, effective immediately, from involvement

in all NRC-licensed activities for five years. Mr.

Geisen challenged the Enforcement Order before the

Licensing Board. During the prehearing portion of

this adjudication, Mr. Geisen and the Staff

stipulated to the falsity of certain statements made

by FENOC and Mr. Geisen. But Mr. Geisen

maintained throughout the adjudicatien — and still

maintains — that he did not know at the time he

made those statements that they were false.

The Board conducted an evidentiary hearing,

and a majority of the Board issued the Initial

Decision that is before us today on appeal.’ In that

accession number ML053560094), 71 Fed. Reg. 2571 (Jan. 17,

2006) (Enforcement Order). The Order identified six instances

where, according to the Staff, Mr. Geisen had deliberately

provided such information: Seria] Letters 2731 (Sept. 4, 2001),

2735 (Oct. 17, 2001) and 2744 (Oct. 30, 2001); an October 3,

2001 teleconference; an October 11, 2001 briefing to the

Commissioners’ technical assistants; and a November 9, 2001

meeting of the NRC’s Advisory Committee on Reactor

Safeguards.

2 Section 650.5 provides, in relevant part, that “[aJny .. .

employee of a licensee .. . may not .. . [djeliberately submit to

the NRC [or] a licensee . . . information that [employee] knows

to be incomplete or inaccurate in some respect material to the

NRC.” 10 C.F.R. § 50.5(a)(2) (emphasis added). The Staff

further found that Mr. Geisen’s actions had placed the licensee

in violation of 10 C.F.R. § 50.9. Enforcement Order at 14.

3 LBP-09-24, 70 NRC _ (Aug. 28, 2009) (slip op.).

Administrative Judges Farrar and Trikouros formed the

majority. Chief Administrative Judge Hawkens dissented from

this ruling. Judge Farrar subsequently provided additional

67a

decision, the majority set aside the Enforcement

Order on the ground that the Staff had not

demonstrated by a preponderance of the evidence

that Mr. Geisen had committed the asserted

knowing misrepresentations. Based on the evidence

presented, the majority also prohibited the Staff

from using the portion of the Order barring Mr.

Geisen from returning to employment in the

regulated nuclear industry after his employment ban

is lifted or expires.‘

The Staff has filed a petition for review of

LBP-09-24,5 pursuant to 10 C.F.R. § 2.341(b)(2) and

(4). The Staff asserts that the Initial Decision

“contained legal conclusions that were contrary to or

without established precedent; raised substantial

questions of law, policy, and discretion; involved,

prejudicial procedural errors; and reflected findings

of material fact that were clearly erroneous.” Based

‘on these assertions, the Staff asks that we grant its

petition, reverse LBP-09-24, and reinstate Mr.

Geisen’s five-year employment ban.? Mr. Geisen

opposes the Staff's petition for review.* We grant the

Staff's petition and affirm LBP-09-24.

views. See Memorandum (Additional Views of Judge Farrar),

70 NRC __ (Dec. 11, 2009) (slip op.).

4Jd.at__ (slip op. at 144). See also id. at ___ (slip op. at 122).

5 See NRC Staffs Petition for Review of LBP-09-24 (Sept. 21,

2009) at 1 n.2 (Staff Petition).

6 Jd. at 2-3 (tracking the criteria set forth in 10 C.F.R.

§ 2.341(b)(4)()-(iv)).

7 Id. at 3. .

8 David Geisen’s Answer Opposing the NRC Staffs Petition for

Commission Review of the Board’s Initial Decision Regarding

the Enforcement Order Against Him (Oct. 13, 2009) (Geisen

Answer).

68a

To put this decision in context, the violations

surrounding Davis-Besse resulted in a variety of

agency activities, including actions taken against

FENOC which resulted in its shutdown for several

years and issuance of a $5.45 million fine, the largest

fine to date in the agency’s history. Moreover, both

the NRC and the United States Department of

Justice (DOJ) pursued actions against the company

and several individuals, most of which resulted in

penalties being upheld. This ruling is based upon the

specific facts and circumstances of the Board’s ruling

in LBP-09-24 and should only be viewed in that

context.

I. BACKGROUND

The majority decision provides a detailed and

useful synopsis of the case’s technical background

and relevant technical documents.® It also includes a

detailed summary of the factual and procedural

background, together with an explanation of the

interrelationship between this proceeding and the

parallel criminal case against Mr. Geisen in federal

court.!° Given the Board’s thorough discussion, we

find it unnecessary to set out here more than a brief

sketch of the factual, technical, and legal

background of this case.

In 2001, the Commission issued various

generic communications to its reactor licensees

regarding a newly discovered risk of circumferential

cracking of nozzles penetrating the reactor vessel

head, including the control rod drive mechanism

(CRDM) nozzles and thermocouple nozzles. One of

® LBP-09-24, 70 NRC ____(slip op. at 9-19).

10 Jd. at ___ (slip op. at 4-8).

69a

these communications was Bulletin 2001-01,1! where

the NRC staff required every pressurized water

reactor licensee (including FENOC) to “provide

information related to the structural integrity of the

reactor pressure vessel head penetration . . . nozzles

for their respective facilities.".2 The Bulletin

explained that reactor coolant leaking through the

tight cracks in the nozzles could cause deposits of

boron to accumulate on the reactor head.3 The

Bulletin was, by its nature, a vehicle to gather

information, not an enforcement tool.!4

During a five-week period between October 3

and November 9, 2001, FENOC was repeatedly in

touch with the NRC regarding FENOC’s responses

to the Bulletin.5 At the time of these

communications, FENOC’s management’ was

concerned particularly that the Commission would

shut down the Davis-Besse plant in December 2001,

a few months prior to its scheduled March 2002:

refueling . outage (RFO 13).16© After FENOC

11 Staff Ex. 8, NRC Bulletin 2001-01: Circumferential Cracking

of Reactor Pressure Vessel Head Penetration Nozzles (Aug. 3,

2001) (Bulletin) (Staff Exhibits — Volume 1, Exhibits 1-20 (Part

1) are available at MLO93100167) (Staff Exhibits, Part 1, at

89).

12 Jd. at 1.

13 Td. at 4-5.

14 See id. at 1, 10-13; Notice of Issuance, Circumferential

Cracking of Reactor Pressure Vessel Head Penetration Nozzles;

Issue, 66 Fed. Reg. 41,631 (Aug. 8, 2001).

15 See LBP-09-24, 70 NRC __ (slip op. at 17, Table 1) (listing the

six communications referenced in note 1, supra).

16 The Staff had “strongly suggestf[ed] that Davis-Besse . .

consider shutting down by the end of the year [2001] and

perform an inspection of the reactor head vessel CRD nozzles.”

Staff Ex. 46, E-mail from Dale L. Miller (FENOC) to

George.Rombold@exeloncorp.com, et al. (Sept. 28, 2001) (Staff

70a

submitted information and commitments in addition

to its response to Bulletin 2001-01, the NRC staff

permitted Davis-Besse’s continued operation until

February 16, 2002.17

A visual inspection in March 2002, during the

refueling outage, revealed a serious corrosion cavity

in Davis-Besse’s reactor vessel head, resulting from

boric acid leakage.18 In response to the discovery of

the corrosion cavity, the NRC staff initiated an

investigation. Upon its completion in 2003, the

NRC’s Office of Investigations reported, among other

things, that some of FENQOC’s responses to the

NRC’s communications during 2001 were materially

incorrect and therefore violated 10 C.F.R. § 50.9(a).19

Exhibits — Volume 1, Exhibits 21-70 (Part 2) are available in

ML093100169) (Staff Exhibits, Part 2, at 130). Internal

corporate memoranda indicate that FENOC’s management was

concerned that such an early shutdown (three months earlier

than the next planned refueling outage for Davis-Besse) wouid

impose “direct costs” and “replacement power costs” upon the

licensee, as well as increase the personnel dosage and generate

additional radwaste. Staff Ex. 47, Discussion Agenda: DBNPS

Bulletin 2001-01 Response, at unnumbered p. 2 (Oct. 2, 2001)

(available in Staff Exhibits, Part 2, at 131).

17 See Memorandum from William D. Travers, Executive

Director for Operations, to the Commissioners, entitled “Status

of FirstEnergy Nuclear Operating Company Response to

Nuclear Regulatory Commission (NRC) Bulletin 2001-01,

‘Circumferential Cracking of Reactor Pressure Vessel Head

Penetration Nozzles” (Dec. 6, 2001) (ML022700362).

18 Enforcement Order at 2-3.

18 Geisen Ex. 23, OI Report No. 3-2002-006 (Aug. 22, 2003)

(selected portions) (ML092740337) (date illegible on, or missing

from, Ex. 23, but specified in Tr. at 2169 (Dec. 12, 2008)).

Section 50.9(a) requires that information provided to the

Commission as required by statute, or by the Commission’s

regulations, orders, or license conditions “be complete and

accurate in all material respects.”

7la

And on January 4, 2006, the NRC issued the

Enforcement Order against Mr. Geisen, charging

that he had “engaged in deliberate misconduct by

deliberately providing FENOC and the NRC

information that he knew was not complete or

accurate in all material respects to the NRC, a

violation of 10 CFR 50.5(a)(2).”2° The Enforcement

Order barred Mr. Geisen from working in the

regulated nuclear industry for five years, until

January 4, 2011.

While the NRC staff was proceeding with

investigation and enforcement activities, DOJ

initiated a criminal proceeding against Mr. Geisen in

the United States District Court for the Northern

District of Ohio. DOJ obtained a grand jury

indictment against Mr. Geisen in January 2006,

based on many of the same facts upon which the

‘NRC staff relied in the Enforcement Order.?!

20 Enforcement Order at 14. The NRC simultaneously issued

enforcement orders against two other FENOC employees who,

like Mr. Geisen, had been involved in the cavity corrosion

problem at Davis-Besse. See Dale Miller, Order Prohibiting

Involvement in NRC-Licensed Activities (Effective

Immediately) (Jan. 4, 2006), 71 Fed. Reg. 2579 (Jan. 1:7, 2006);

Steven Moffitt, Order Prohibiting Involvement in NRC-Licensed

Activities (Effective Immediately) (Jan. 4, 2006), 71 Fed. Reg.

2581 (Jan. 17, 2006). Earlier, the NRC had issued a fourth

enforcement order concerning the same matter. See Andrew

Siemaszko, Order Prohibiting Involvement in NRC-Licensed

Activities (Apr. 21, 2005), 70 Fed. Reg. 22,719 (May 2, 2005).

21 Indictment, United States v. Geisen, No. 3:06CR712 (N.D.

Ohio Jan. 19, 2006) (appended as Attachment A to NEC Staff

Motion to Hold the Proceeding in Abeyance (Mar. 20, 2006))

(Indictment). The indictment charged Mr. Geisen with five

counts of knowingly and willfully concealing and covering up

material facts, regarding the condition of Davis-Besse’s reactor

vessel head and the nature and findings of previous inspections

of the reactor vessel] head, with respect to: (Count 1) documents

72a

Mr. Geisen challenged both the criminal

charges and the Enforcement Order. Before the

Commission, he sought a hearing, which was

granted but later held in abeyance pending

completion of the criminal trial.22 The criminal case

resulted in a conviction on three counts, inciuding

one based on a document (Serial Letter 2744) upon

which the NRC staff also had relied in its

Enforcement Order.23 In May 2008, the trial judge

sentenced Mr. Geisen to three years probation (that

is, through May 2011), during which time he is

prohibited from working in the nuclear power

industry.24 Mr. Geisen’s criminal conviction was

recently upheld on appeal.?5

Shortly after the sentencing, Mr. Geisen

moved to lift the Commission’s abeyance order. The

Board agreed and conducted an _ expedited

and communications occurring between September 4, 2001, and

February 16, 2002, generally; (Count 2) Seria] Letter 2735 (Oct.

17, 2001), specifically (Count 3) Serial Letter 2741 (Oct. 30,

2001), specifically; (Count 4) Serial Letter 2744 (Oct. 30, 2001),

specifically; and (Count 5) Serial Letter 2745 (Nov. 1, 2001),

specifically.

22 CLI-07-6, 65 NRC 112 (2007).

23 LBP-09-24, 70 NRC __ (slip op. at 7 n.3). |

24 Following issuance of LBP-09-24, the district court lifted the

condition of Mr. Geisen’s probation banning him from

employment in the nuclear industry. See United States v.

Geisen, No. 3:06-CR-712, 2009 WL 4724265, at *1 (N.D. Ohio

Dec. 2, 2009). See also United States v. Geisen, No. 3:06-CR-

712, Transcript of Sentencing Hearing Before the Honorable

David A. Katz, United States District Judge (May 1, 2008)

(appended as Ex.:C to Letter from Richard A. Hibey to the

Licensing Board (June 24, 2008) (ML081910153)); Notice and

Order (regarding Conference Call) (July 17, 2008) at 3

(unpublished).

25 United States v. Geisen, No. 08-3655, 2010 WL 2774237 (6th

Cir. July 15, 2010).

73a

hearing.“The Staff relied principally on the

following evidence: (i)- the six communications

themselves;?7 ‘ (ii) four “trip reports” describing

business trips taken by Mr. Prasoon Goyal, one of

Mr. Geisen’s subordinates, associated with the 2001

announcement that the Oconee Nuclear Station had

experienced boron leakage;?8 (iii) two condition

reports and a photograph that Mr. Geisen would

have seen during the 2000 refueling outage (RFO

12); Gv) a June 27, 2001 memorandum prepared by

Mr. Goyal, reviewed by Mr. Goyal’s supervisor (Mr.

Theo Swim) and approved by Mr. Geisen; and (v) °

certain of Mr. Goyal’s e-mail correspondence, of

which Mr. Geisen was a direct or copied recipient.?9

Following the hearing, the majority ruled in

favor of Mr. Geisen, finding that the Staff had failed

to show by a preponderance of the evidence that Mr.

Geisen had knowingly (rather than mistakenly)

provided the agency incomplete and inaccurate

information. Much of the majority’s decision turned

upon its findings both as to Mr. Geisen’s state of

mind at the time of the erroneous, incomplete or

misleading statements, and as to his involvement in

and contribution to those statements.*° The majority

declined the Staff's invitation to use Mr. Geisen’s

criminal conviction to “collaterally estop” him from

maintaining that he lacked the requisite “knowing”

state of mind.

26 Memorandum and Order (Summarizing Conference Call)

(Nov. 3, 2008) (unpublished). The

hearing was held December 8-12, 2008.

27 See LBP-09-24, 70 NRC __ (slip op. at 17, Table 1).

28 See id. at ___ (slip op. at 18, Table 2).

28 See id. at ___ (slip op. at 19, Table 3).

30 Jd. at ___ (slip op. at 20-21).

T4a

Judge Hawkens dissented from the majority’s

rulings.?! He concluded that because of Mr. Geisen’s

criminal conviction, the NRC was required under the

collateral estoppel doctrine to find that Mr. Geisen

had knowingly provided the agency with materially

incomplete and inaccurate information.®? He also

found that, regardless of whether collateral estoppel

was applied, the Staff had demonstrated by a

preponderance of the evidence that Mr. Geisen had

the requisite knowledge that his statements were

incomplete, misleading, and/or inaccurate.*%

Il. DISCUSSION

A. Standards Governing Petitions for

Review

We may take discretionary review of a

licensing board’s initial decision. In deciding

whether to grant review, we give due weight to the

existence of a substantial question with respect to

the following considerations:

(i) a finding of fact is clearly erroneous c.:

in conflict with a finding as to the same

fact in a different proceeding;

(ii) §anecessary legal conclusion is

without governing precedent or is

a departure from or contrary to

established law;

31 Jd. at ___ (slip op., Dissenting Opinion).

32 Id. at__ (slip op., Dissenting Opinion at 2-21).

33 Id. at __ (slip op., Dissenting Opinion at 21-61). Judge

Hawkens also considered the fiveyear suspension reasonable,

given the gravity of, and circumstances surrounding, Mr.

Geisen’s asserted offense. Jd. at ____ (slip op., Dissenting Opinion

at 62-65).

3410 C.F.R. § 2.341(b)(4).

75a

(iii) the appeal raises a substantial

. and important question of law,

policy, or discretion;

(iv) the conduct of the proceeding

involved :a prejudicial procedural

error; or

(v) any other consideration we

determine to be in the public

interest.%5

The Staff asserts that the Board made not

only erroneous factual findings but also mistakes as

to both substantive and procedural law. As discussed

below, we agree that the Staff raises substantial

questions as to factors (i), (ii), (iii), and (iv). We

therefore grant the Staffs petition for review. But

after considering the Staff's arguments, we uphold

the decision of the Board majority to overturn the

Enforcement Order. While we find the factual

questions close, as an appellate tribunal, our fact-

finding capacity and role are limited to a record

review, and our review of the record does not show

that the majority’s. findings of fact are clearly

erroneous. W

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