U.S. v. Didion Milling, Inc.
U.S. v. Didion Milling, Inc.
2023 WL 6160150 (W.D. Wis. 2023)
September 21, 2023

Peterson, James D.,  United States District Judge

Authentication
Criminal
Bad Faith
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Summary
The court was aware of ESI and took it into consideration when making its decision. The jury found Derrick Clark, Shawn Mesner, and Joel Niemeyer guilty of False Entries in Record within EPA's Jurisdiction, and Didion Milling, Inc. and Derrick Clark guilty of Obstruction of Agency Proceedings. Lenz's counsel represented that the data had been recorded elsewhere and could be transferred to the logs, and the government did not dispute that representation.
UNITED STATES OF AMERICA, Plaintiff,
v.
DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, and JOEL NIEMEYER, Defendants
22-cr-55-jdp
United States District Court, W.D. Wisconsin
Filed: September 21, 2023

Counsel

Samuel Charles Lord, Government, U.S. Department of Justice, Washington, DC, Joel La Bissonniere, ENRD—Environmental Crimes Section, Washington, DC, Richard Joseph Powers, DOJ-Enrd, Washington, DC, for Plaintiff.
Mark A. Cameli, Daniel G. Murphy, Ryan S. Stippich, Elizabeth Elving, Reinhart Boerner Van Deuren SC, Milwaukee, WI, David Palay, Monica Ann Mark, Reinhart Boerner Van Deuren, SC, Madison, WI, Zachary Thomas Fardon, King & Spalding, Chicago, IL, for Defendant Didion Milling, Inc.
Matthew L. Jacobs, Justin J. Dreikosen, Biskupic and Jacobs, S.C., Mequon, WI, for Defendant Derrick Clark.
Peter R. Moyers, The Moyers Law Firm, Madison, WI, for Defendant Shawn Mesner.
Jessica Arden Ettinger, Federal Community Defender Office, Philadelphia, PA, Joseph Aragorn Bugni, Federal Defender Services, Madison, WI, for Defendant James Lenz.
Kathleen Marie Quinn, Attorney Kathleen M. Quinn, LLC, Milwaukee, WI, Murali Jasti, Jasti & Khandhar, LLC, Madison, WI, for Defendant Joel Niemeyer.
Peterson, James D., United States District Judge

OPINION and ORDER

*1 The court held a conference on September 20 to resolve several pretrial motions, objections to the government's notice under Federal Rule of Evidence 801(d)(2)(E), objections to exhibits, and other disputed issues. The court also discussed objections to trial document drafts. This order will summarize the court's rulings and set some new deadlines. Revised versions of the voir dire, jury instructions, and verdict form are attached.
ANALYSIS
A. Motions
Clark's renewed motion to dismiss Count 1, Dkt. 407, and Didion's renewed motion to dismiss Count 2, Dkt. 404, are DENIED, essentially for the same reasons that the court denied defendants’ original motions to dismiss these counts. But the court has revised the jury instructions to address concerns raised in the motions.
Didion's motion to reconsider excluding the testimony of Robert Zalosh and Brenton Cox, Dkt. 391, is GRANTED. The court is persuaded that Zalosh's and Cox's reports are not fundamentally unreliable, and the weaknesses identified by the court can be adequately addressed by cross-examination. As a result of this ruling, the government's motion to exclude the testimony of Jeffrey Travis as derivative of Zalosh and Cox, Dkt. 385, is DENIED as moot.
The parties represented during the conference that there is no dispute regarding Lenz's motion to restrict the government's arguments regarding the baghouses. So that motion, Dkt. 421, is GRANTED as unopposed.
The government's motion for leave to use the recently disclosed photos and drone footage of the mill from after the explosion, Dkt. 405, is GRANTED in part. The government may use photos when cross-examining Zalosh and Cox, but not in its case-in-chief. The basis for compelling production of those photos was not to help the government with its case-in-chief, but to prevent defendants’ experts from making a misleading or incomplete presentation of the facts, so the government's use of those photos during trial must be limited accordingly.
The government's motion for reconsideration regarding the order and mode of witnesses, Dkt. 396, is GRANTED. The default rule during trial will be that cross-examination is limited to the scope of direct examination. If any party wishes to deviate from the general rule as a courtesy to a particular witness, that party will have to seek permission from the court and explain why the change is needed for that witness.
The government's motion for rulings on authenticity of certain documents, Dkt. 431, is DENIED. As for the bank records (US22, 1519, and 1623) and Clark's OneNote files (US1305–07), defendants have stipulated to their authenticity. As for the documents with Bates stamps “DIDION” and “DidionDOJ,” Didion has stipulated to the authenticity of any document it created. The government is directed to identify for defendants the exhibits in these two groups whose authenticity remains unclear, so that Didion can determine whether it would stipulate to authenticity. The court expects Didion to work collaboratively with the government in identifying documents that can be authenticated through stipulation. The court has conditionally excluded the documents related to the 2001 OSHA inspection of the Johnson Creek facility, so it isn't necessary to consider those documents now. Because Didion refuses to stipulate to the authenticity of the 2017 Master Sanitation Schedule, the government will have to authenticate the 2017 Master Sanitation Schedule through testimony during trial. The court authorizes the government to issue any needed subpoena, and Didion agrees to accept email service of subpoenas to Didion itself or to any of its agents, including its lawyers.
*2 The government's motion to amend its exhibit list to add US1790–96, Dkt. 444, is GRANTED in part. The court will allow the government to use US1791 and 1795 (with the diagram legends in US1790 and 1794) as demonstrative exhibits to illustrate Vergara's testimony. The government is directed to submit pdf versions of US1790 and 1794. The court will exclude US1792, 1793, and 1796.
B. Other disputed issues
The court grants the government's request to exempt the following witnesses from the sequestration order: Rigoberto Acevedo-Rendon, Alfredo Aguirre, Rene Alva de la Cruz, Alina Baciu, Hayden Dodge, Pablo Dominguez, Margaret Lane, Andy Osterhoff, Dallas Osterhoff, Bruno Ponte Real, Collin Vander Galien, Alex Wade. These individuals are victim witnesses who are entitled to remain in the courtroom “unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” 18 U.S.C. § 3771(a)(3). Defendants haven't met that standard.
The court denies defendants’ request to reconsider its ruling that defendants may not cross-examine John Cholin about the government's decision to dismiss Count 3. Defendants may cross-examine Cholin about any changes to his opinions.
The court will allow Cholin to revise his report with new calculations, but no new opinions or analysis. If any of those revised calculations carry over to his rebuttal report, Cholin may revise that accordingly. The court will give the government a deadline for Cholin to explain the reason for the changes, provide a redline document showing the changes, and for defendants’ experts to supplement their reports to respond to the revisions.
When the government provides notice of the day that a particular witness will testify, the government will also disclose whether that witness had any conversations with government employees about any benefit to the witness for their testimony, including any improvement to their immigration status. If the witness had such a conversation, the government will also disclose the witness's immigration status. During trial, defendants may ask witnesses whether they expect or hope to obtain a benefit from the government for their testimony, but defendants may not ask any witnesses whether they are or were undocumented or present in the country illegally.
C. Objections to Rule 801(d)(2)(E) proffer
The court sustained some objections to the government's proffer on the coconspirator statements that it intends to offer under Federal Rule of Evidence 801(d)(2)(E). Dkt. 419. Specifically, the government may not offer the following exhibits under Rule 801(d)(2)(E): US165, 699, 699a, 787a, 797a, 800a, 1309, 1316, 1319, 1320, 1323, 1324, 1325. These statements were not identified by July 7 as directed by the court.
The court overruled most of the other objections to the government's proffer, but the court reserved a ruling on Lenz's motion to exclude all statements that the government may offer against Lenz under Rule 801(d)(2)(E). This motion, Dkt. 422, is now GRANTED.
A proffer under Rule 801(d)(2)(E) requires the government to show three things by a preponderance of the evidence: 1) a conspiracy existed; 2) the defendant and the declarant were members of the conspiracy; and 3) the proffered statements were made during the course of and in furtherance of the conspiracy. U.S. v. DeKelaita, 875 F.3d 855, 859–60 (7th Cir. 2017); U.S. v. Quiroz, 874 F.3d 562, 566 (7th Cir. 2017). The government hasn't shown by a preponderance of the evidence that Lenz was a member of a conspiracy related to falsified environmental records.
*3 Lenz concedes that the baghouse pressure logs, including those created during his tenue, were falsified. Dkt. 422, at 2. But the commission of the substantive crime, or knowledge that others were committing the substantive crime, is not enough to establish either the existence of a conspiracy or that a defendant was a member of the conspiracy.
The government says, Dkt. 441 at 8–9, that the proof against Lenz on the Count 4 conspiracy is set out on pages 27 through 30 and 45 through 48 of its proffer, Dkt. 408. The government points to no witness who will testify that Lenz agreed with others to falsify records or otherwise had joined a conspiracy concerning the concealment of environmental records. By contrast, the government's proffer of the Count 1 conspiracy concerning the sanitation records is detailed, documented, and corroborated. See Dkt. 408 at 11–26. In that part of the proffer, the witnesses explain what they did, and they name who they did it with. But for the environmental records, none of the witnesses name Lenz. Booker and Bright, two employees during Lenz's term at Didion don't name anyone specifically in the summary of their testimony on the environmental records. But Booker and Bright name names and give details in the description of their testimony about the sanitation records. The contrast is striking.
The government relies primarily on email statements from Lenz himself directing Didion employees to fill in missing data in baghouse logs, or to make sure logs were up to date. US730, 731, 732, 733a–b, 739, 740–41, 747, 787a, 827 833. The government points to no evidence that Lenz was implying in these communications that employees should backfill records with false information. The government also points to no evidence that Lenz was talking in code or that the missing data could not be filled in correctly after the fact because the data had never been recorded.[1] One of the exhibits cited by the government, US732, affirmatively undermines the inference that Lenz was part of a conspiracy. In that email, written shortly before he left the company, Lenz observed that it appeared that “some people are just filling in numbers without reading the gauge.” This statement suggests that Lenz was trying to call attention to a record-keeping deficiency, not conspiring to falsify records.
Based on the court's review of the government's proffer, there are two statements by Lenz that suggest that he was less than forthcoming about environmental problems at Didion. The first is in a lengthy memo prepared shortly before his departure, describing his duties as environmental manager. Lenz wrote:
Internal environmental audits are tricky because you really can't document anything you find wrong unless you report it to the DNR. To follow the letter of the law you must report any violation to the WDNR, calculate excess emissions and find a root cause solution so it won't happen again. There [are] self-reporting protections from prosecution but there are limits. Many times you will find that things are not documented. When the root cause is that it is written on paper and just not typed into the computer log. This is not a violation because it is documented but can cause many questions to be asked.
*4 US699b, at 10. Drawing inferences in the government's favor, this statement suggests that Lenz was reluctant to document or report environmental violations to the WDNR, and that he shared his reluctance with his successor environmental manager.
The second statement was in an email to Didion staff as Lenz was preparing for an external audit. Lenz wrote, “I will be printing paper records of all these items listed. So please get them up to date. I do not want to show computer records because it is too easy to search for bad records.” US797a. The statement suggests that Lenz didn't want the auditor to find “bad records” and wouldn't help the auditor do so.
Neither of those inferences shows Lenz in a favorable light; they show Lenz's inclination to be less than fully transparent in the face of environmental regulation and auditing. But in neither statement does Lenz say, or even imply, that he would falsify any document or report. Nor does he encourage anyone else to falsify anything. Reluctance to submit to a searching audit is a far cry from agreeing with others to present false documents to the auditor. The government's proffer is mostly quite robust, but against Lenz it is awfully thin gruel.
The government does not have to prove its conspiracy case to establish the admissibility of coconspirator statements. The court has reviewed the entire Santiago proffer. The proffer shows that Lenz worked at Didion, in an important managerial position, while some Didion employees falsified the baghouse pressure logs. But the government hasn't met its burden to show by a preponderance of the evidence that Lenz was a member of any conspiracy. So the government may not offer the statements of any conspirators against Lenz, and it may not offer Lenz's statements against other conspirators, unless there is another basis of admissibility. Notably, Lenz's statements are admissible against Lenz himself under Rule 801(d)(2)(A) and against Didion under Rule 801(d)(2)(D).
D. Exhibits
1. Defendants’ objections to the government's exhibits
The court sustained defendants’ objections to the following government exhibits: US14b, 63–68 434–36, 871a and 871b (2001 Johnson Creek inspection); US1370 (2004 citation); US727 (2010 DNR complaint); US1621 (2022 DNR complaint); US672–74 and 676–77 (documents about Didion's “general safety culture”); US907 and 1374–82 (past fires that Clark was not aware of); US24–26, 28, 29, 35, 42, 295, 699, 1223, 1238, 1239, and 1253 (evidence related to dust-hazard analysis); US31, 36, 39, and 76 (exhibits related to explosion protection); and US87b (post-explosion grain-handling procedure)
The court overruled defendants’ objection to the government's exhibits related to air permit violations at the ethanol plant (US754, 755, 756a and b, 758a and b, 759, 763a and b, 764a and b, 765c, 767, 768, 769b, 770, 771, 772a–c, 773–77, 778c and d, 779, 816, 829a–c, 834, 840c and f, 843a–e, 1460, and 1463). The court will allow the government to put in evidence of air permit violations that are alleged in the indictment, but evidence that isn't related to overt acts should be limited. The court expects the government to pare down these exhibits significantly.
The court overruled defendants’ categorical objection to photos of the mill from 2013 (US301–11, 320–65, 417a–d). These photos may have marginal relevance, but the older the photo, the less probative it is likely to be. The court will not allow the government to offer cumulative evidence.
*5 The court overruled defendants’ objection to a December 2013 email that has handwriting on it (US1222). The handwriting can be redacted.
The court overruled defendants’ objections to documents that explain the basis for Brandon Leatha's opinion (US 1300–03). But these exhibits will not be shown to the jury, and Leatha may not testify about discovery disputes in this case.
The court overruled defendants’ objection to evidence about Didion's vacuum systems (US533a, 534, 540, 541, 542, 1493, and 1501). This evidence may have some marginal relevance, but the government should use its judgment to offer only documents that are truly helpful to the jury.
The court overruled defendants’ objections to photos of the A2 electrical room (US1144 and 1145).
The court reserved a ruling on defendants’ objections to the government's exhibits related to Expander 5 (2, 576a, 576b, 721a, 721b, 760, 836a, 836b, 845, 846) and exhibits that predate March 25, 2013 (76a, 98, 151, 152, 279a and b, 315, 319c, 320–30, 528, 529a and b, 530a and b, 663b, 676, 726–729, 743, 798a and b, 906–09, 1368, 1369,1370) to allow the government to review those exhibits and explain why they are admissible.
2. Government's objections to defendants’ exhibits
The court sustained the government's objection to the articles about pressure piling (DIDION3431 and 3433). The court reserved a ruling on whether auditor statements that Didion followed the Master Sanitation Schedule should be excluded as hearsay, whether pages 98 to 104 of Didion's demonstrative exhibit is an accurate reflection of Jeffrey Travis's report, and whether Didion's summary exhibits were admissible under Federal Rule of Evidence 1006. The court overruled the government's other objections. Defendants will have to lay the proper foundation to show that the following exhibits should not be excluded as hearsay: CLARK6000–6168, LENZ5109, DIDION3349–3349D, and DIDION3520.
E. Deadlines
By September 21, Didion is directed to: (1) identify the pages of Travis's report that pages 98 to 104 of Didion's demonstrative exhibit are based on; (2) provide the court with a working version of its Summary 1B exhibit.
By September 21, Lenz is directed to provide the government with his list of approximately 150 exhibits for the government to identify which defendants the government is offering those exhibits against.
By September 25, the government must submit the following: (1) if necessary, a revised rebuttal report from Cholin that is limited to any changes required by the corrections made to the original report; (2) an explanation from Cholin about the reasons for the changes to the original report and any changes to the rebuttal report; (3) redline versions of the original and rebuttal reports. Defendants may have until September 27 to submit supplemental reports for their experts that respond to the changes made by Cholin.
By September 25, the government is directed to provide defendants with an updated list of all individuals it considers to be coconspirators.
By September 27, the parties may submit any new objections to the voir dire and introductory instructions. All previous objections are preserved and need not be raised again. Any objections should be limited to typographical errors or new objections to the most recent changes. The parties need not file objections to the post-trial instructions or the verdict form. The court will set a deadline for objecting to those during the trial.
*6 By September 28, the parties are to confer regarding the way to handle exhibits that are admissible against only some of the defendants. Defendants proposed two procedures: (a) a limiting instruction to be read when the evidence is admitted; and (2) a written chart for the jury's use during deliberations that identifies which exhibits were admitted against which defendants. The government stated during the conference that it needed time to consider those proposals.
By September 28, the government will respond to defendants’ objections to what defendants call “extraneous and prejudicial” information in the following exhibits: US151, 152, 508–16, 607, 609, 703, 704, 708, 714, 794, 810b, 889–97, 899–901, 902–05, 907–09, 1220, and 1292. The government should either withdraw those exhibits or submit redacted versions.
By September 28, the government must provide defendants with a revised version of US1589 that corrects the errors that defendants have identified.
By September 28, the parties are to disclose to each other which exhibits they intend to use during their opening statements.
By September 29 at noon, the government is to submit a list that: (1) includes the exhibits in Dkt. 438-1 and the exhibits in the list provided by Lenz; and (2) identifies which defendants each of those exhibits will be offered against.
F. September 29 conference
The court will hold a conference with the parties on September 29 at 2:30 p.m. in Courtroom 250. The parties should be prepared to discuss the following issues at the conference:
• the effects that a possible government shutdown could have on counsel's or any witness's ability to participate in the trial;
• which exhibits can be authenticated by stipulation;
• which exhibits can be admitted by stipulation;
• defendants’ objections to the government's exhibits related to Expander 5 (US2, 576a, 576b, 721a, 721b, 760, 836a, 836b, 845, and 846), exhibits that predate March 23, 2013 (US76a, 98, 151, 152, 279a and b, 315, 319c, 320–30, 528, 529a and b, 530a and b, 663b, 676, 726–729, 743, 798a and b, 906–09, 1368, 1369, and 1370), and the superintendent shift summary (US1589);
• the government's objections to auditor statements that Didion followed the Master Sanitation Schedule, including DIDION3341a, and to Didion's summary exhibits;
• any objections to exhibits that will be used in opening statements;
• how to handle exhibits that are admissible against only some of the defendants;
• defendants’ proposal regarding handling extrinsic evidence of prior inconsistent statements under Rule 613(b);
• whether defendants will be giving their opening statement immediately after the government gives its statement.
Entered September 21, 2023.
VOIR DIRE 9/21 DRAFT
This is a criminal case involving charges against one company and four of its employees. The company is defendant Didion Milling, Inc., which owned and operated a corn mill in Cambria, Wisconsin. Defendant Derrick Clark was the vice president of operations for Didion; defendant Shawn Mesner was Didion's food safety superintendent; James Lenz was Didion's environmental manager; Joel Niemeyer was a day-shift superintendent for Didion.
Didion and the individual defendants have been charged with a total of seven counts, but not all defendants are charged on each count. Didion is charged with willfully violating a regulation related to levels of dust at the mill, causing an explosion in May 2017 that killed five employees. Other defendants are charged with falsifying records and obstructing a federal investigation of the explosion. All defendants are charged with conspiring to violate federal law.
*7 All defendants have entered pleas of not guilty to all charges.
I am going to ask you some questions that will help us select those of you who will serve on the jury in this case. I may follow up with specific questions to get more details. If my questions touch on subjects that you don't want to discuss openly, let me know, and we'll bring you over to sidebar to discuss those questions confidentially.
I will speak at first to those of you in the jury box. But those of you in the gallery should pay attention to the questions. In case I have to call you forward to replace someone that I excuse, you should have your answers ready to go.
I will now ask all of you to stand and take an oath to truthfully answer my questions.
1. Have any of you ever heard of this case before today? Follow up at sidebar.
2. Is there anything about the nature of the charges in this case that would affect your ability to be impartial in this case?
3. The trial of this case will begin today and will likely last three weeks. But to be safe, I will make sure jurors are available through the end of the month. The trial will ordinarily run from 8:30 a.m. to 5:30 p.m. with a morning break, a one-hour lunch, and an afternoon break. Are any of you actually unable to sit as jurors through October 31 if necessary?
4. The court reads Pattern Jury Instructions of the Seventh Circuit:
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The government has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the government throughout the case. The defendant is not required to prove his innocence or to produce any evidence.
The defendant has an absolute right not to testify. The fact that the defendant does not testify cannot be considered by you in any way in arriving at your verdict.
Would any of you be unable or unwilling to follow these instructions?
5. Ask counsel to introduce themselves and the defendants. Ask panel whether anyone knows the individual defendants or counsel.
6. Ask panel whether they or anyone close to them have had dealings with Didion Milling.
7. Ask panel whether anyone knows any of the potential witnesses or other individuals related to the case. (List of potential witnesses is attached) Do any of you know any of those individuals?
8. Do any of you know the judge or court personnel?
9. Do any of you know any of the other people on the jury panel?
Please stand up and tell us more about yourself:
10. Hobbies and leisure-time activities.
11. Media consumption. What are your favorite types of reading materials, what sources do you use for news, what types of television or radio shows do you watch or listen to, what types of websites do you visit, what social media apps do you use?
*8 12. Have you ever written a letter to the editor in a newspaper or magazine?
13. Do you have any bumper stickers on your car? If so, what do they say or depict?
14. Have you or anyone close to you been a party to a lawsuit?
15. Have you or anyone close to you ever been a witness in a civil lawsuit or a criminal trial?
16. Have you or anyone close to you served on a jury? Follow up: nature of the case; find for plaintiff or defendant; were you the foreperson?
17. Have you or anyone close to you ever worked in the food industry?
18. Have you or anyone close to you ever worked in a grain mill?
19. Have you or anyone close to you ever worked as a vendor selling products to the U.S. government or worked for such a vendor?
20. Have you or anyone close to you ever worked as an auditor or quality assurance specialist?
21. Have you or anyone close to you ever worked as an environmental compliance manager or other position responsible for environmental regulatory compliance for any company?
22. Have you or anyone close to you ever worked as a worker safety compliance manager or other position responsible for worker safety compliance for any company?
23. Have you or anyone close to you ever been employed by, or volunteered to help, any local, state, or federal law enforcement agency?
24. Have you ever been a business owner? If so, please describe the business and the time period that you ran the business.
25. Have you ever worked as a manager or supervisor of any business? If so, please describe your experience.
26. Do any of you have education or training in a scientific field? If so, please describe.
27. Has your job ever required you to follow, interpret, or implement laws, regulations, or rules created by a state or federal government agency, private licensing agency, or other regulatory body? If so, what was the job and what type of regulations or rules were involved?
28. Has your job ever required you to follow specific procedures for cleaning, food safety, quality assurance, or worker safety? If so, what was the job and what type of procedures were involved?
29. Has your job ever required you to be part of an audit? If so, what was the job and what type of audit was involved?
30. Have you or anyone close to you ever submitted a complaint to a government agency? If so, what was the agency and the general nature of the complaint? Were you satisfied with the outcome?
31. Have you or anyone close to you ever been the subject of a complaint by a government agency? If so, what was the agency and the general nature of the complaint? Were you satisfied with the outcome?
32. Have you or anyone close to you been the victim of a crime?
33. Have you or anyone close to you experienced or witnessed a serious injury at the workplace?
34. You may hear testimony in this case from witnesses who have agreed to testify for the government in exchange for a potential reduction in their criminal sentences. Do any of you have opinions about the government's use of cooperating witnesses to obtain evidence, and, if so, would those opinions affect your ability to be fair and impartial in this case?
*9 35. At trial there will be witnesses who are native Spanish speakers and who will be using an interpreter during their testimony. Is there anything about this that would affect your ability to listen to the testimony or to be fair and impartial?
36. This case involves an alleged violation of a federal workplace safety and environmental regulation. Do any of you hold beliefs about government regulation that would affect your ability to be fair and impartial in this case?
37. You may hear testimony about the Occupational Safety and Health Administration (OSHA), the U.S. Environment Protection Agency (EPA), the Wisconsin Department of Resources (DNR) or from employees of those agencies.
a. Have any of you had any interactions with OSHA, the EPA, or the DNR? If so, please describe the nature of those interactions.
b. Has OSHA, the EPA, or the DNR ever inspected any facility where you were employed?
c. Do any of you hold beliefs about OSHA, the EPA, or the DNR that would affect your ability to be an impartial juror in this case?
38. The United States is represented by lawyers from U.S. Department of Justice (DOJ). Do you hold a political belief about the DOJ in particular, or the U.S. government generally, that prevents you from being fair and impartial in this case?
39. Do any of you hold a belief about defendants in criminal cases generally that might prevent you from being fair and impartial in this case?
40. Do any of you hold strong beliefs about criminal prosecutions that relate to the operations of businesses?
41. Do any of you have a moral, religious, or ethical belief, such as a belief about judging others, that would make it difficult for you to sit as a juror in this case?
42. Can you put aside any impressions you may have formed from fictional TV programs, movies, videos, or other representations in the media about how a criminal trial should be conducted, and focus solely on the evidence and arguments presented in this courtroom to render a fair and impartial verdict in this case?
43. Do any of you believe that law enforcement officers are more believable or less believable than other people? Do any of you believe that a person is more believable or less believable simply because he or she is a witness for the government?
44. If at the conclusion of the trial you were convinced of a defendant's guilt beyond a reasonable doubt, is there any one of you who would not, or could not, return a verdict of guilty?
45. If at the conclusion of the trial you were not convinced of a defendant's guilt beyond a reasonable doubt, is there any one of you who would not, or could not, return a verdict of not guilty?
46. The court will instruct you on the law to be applied in this case. You are required to accept and follow the court's instructions in that regard, even though you may disagree with the law. Is there any one of you who cannot accept this requirement?
47. Do you know of any reason whatever, either suggested by these questions or otherwise, why you could not sit as a trial juror with absolute impartiality to all the parties in this case?
LIST OF POTENTIAL WITNESSES AND INDIVIDUALS RELATED TO THE CASE
• Rigoberto “Richy” Acevedo-Rendon
• Greg Bisch
• Philip Adoe
• Ron Binzley
• A.J. Agnew
• Duelle Block
• Alfredo Martinez Aguirre
• Nicholas Booker
• Joshua Allen
• William Boswell
• Raul Alva De La Cruz
• George Bracikowski
• Rene Alva De La Cruz
• Mike Brantmeier
• Zachary Arnold
• Fred Breitenwischer
• Alina Baciu
• Shanna Breneman
• Kurt Baird
• Matt Brenner
• Fedancio Balleza
• Michael Bright
• Gregorio Balleza
• Jeffrey Bubolz
• Sergio Balleza-Chavez
• Luke Burmeister
• Jose Balleza
• Deb Bursick
• Julio Antonio Banderas
• Brian Byrd
• Carlos Banderas
• Dan Calverly
• Greg Barker
• Colin Campbell
• Sergio Bautista
• Gary Carrell
• Jay Beckel
• Matt Carrell
• Eric Beine
• Walter Chisholm
• Wendy Biesterveld
• John Cholin
• Adrien Ciolii
• Melissa Clegg
• Mary Ann Douglas
• Jason Cocovsky
• Dale Drachenberg
• Ann Coleman
• Heather K. Duckworth
• Robert Concklin
• Brandon Eckes
• Raul Contreras
• George Fanning
• Mike Corona
• Kari Feidt
• Brenton Cox
• David Ferkovich
• Cosme Cozar
• Wayne Foster
• Steve Cutchen
• Andres Garcia
• Justin Dalton
• Jorge Garcia
• Scott Davis
• Howard Gebhardt
• Lincoln Dawson
• Jose Gonzales
• John Deininger
• Sarah Gottschalk
• Shawn Dettman
• Robert Goodenow
• Rafael De La Rosa
• Ron Goodenow
• Coral Didion
• Sarah Gottschalk
• Dow Didion
• Bradley Grage
• John Didion
• Alex Green
• Riley Didion
• Chad Greenwood
• James Dingman
• Adam Griffith
• Hayden Dodge
• George Grimsrud
• Pablo Dominguez
• Mae Guise
• Cody Doucette
• Jeff Halverson
• Brian R. Hamm
• Amy Jones
• Vancy Haney
• Terry Jones
• Chloe Harris
• Jeneane Kastelic
• Ryan Hart
• Ryan Klavekoske
• Ben Harrison
• Michael Klemundt
• Kyle Heimerl
• Mark Knezovich
• Andrew Hemling
• Chad Knorr
• Jim Hepp
• Robert Kozeluh
• Jose Hernandez
• Susan Kraj
• Juan Hernandez
• Stephen Kratz
• Sergio Hernandez
• Doug Lackey
• Jenni Heuer
• Tyler Lange
• Karyn Hickman
• Adam Lemmenes
• Maria Hill
• Margaret Lane
• Angela Hinze
• Brandon Leatha
• Alicia Hopper
• Mario A. Leija, Sr.
• Wills Hougland
• Brian Liethen
• Scott Hulsey
• Alexandra Letuchy
• Phil Iturbide
• Jack Lindblom
• Brian Ivanchenko
• Matthew Lundeen
• Matthew Jacobsen
• Cheryl MacKenzie
• Derek Jeski
• Alan Mannel
• Justin D. Johnson
• Mark McCullough
• Emily McFarlane
• Nicholas Pavolski
• Roberto Mendoza-Flores
• James Patterson
• Sarah Mikell (McElroy)
• Justin Patterson
• Cory Miller
• Juan Pelayo
• Curt Miller
• David Perkins
• Ted Miller
• Rhonda Pierck
• Liesl Monroy
• Claudius Price
• Mary Beth Mulcahy
• Brian Prieve
• Daniel G. Murphy
• Jason Raney
• Matt Nahar
• Karissa Rataczak (McConochie)
• Phillip Neff
• Bruno Ponto Real
• Mark Nehls
• Carver Richter
• Charles Neuman
• Neftali Rivas
• Julie Norland
• Jose Rodriguez
• Angel Nunez
• Miguel Rodriguez
• Carlos “Charly” Nunez
• Noe Rodriguez
• Nicole O'Connor
• Agnieszka Rogalska
• Spencer Orin
• Kimberly Rogowski
• William Oros
• Angel Reyes Sanchez
• Jack Osborn
• Andrew Schoeneck
• Andrew J. Osterhoff
• Margaret Sewell
• Dallas S. Oosteroff
• John Sharp
• Damien Pagel
• Martin Sigiba
• David Silver
• Charles Vergara
• Terry Smith
• Karl Voeck
• Wayne Smith
• Jim Voigt
• Vikram Sriram
• Mike Wacker
• Brandon Stebbins
• Alexander Wade
• Matt Stippich
• Jay Watson
• Tyler Stocker
• Steve Wallender
• Lynn Strauch
• John Weaver
• Judy Sullivan
• Autumn Welke
• Armando Tello
• Chase Welsh
• James Kelly Thomas
• Keaton Welsh
• Troy Thompson
• Mitch Wendt
• Steven Tinker
• Abigal Wesley
• Pawel Tordoff
• Christa Westerberg
• Isaid Torres
• Jonathan Whitewell
• David Tran
• Tyler Wilkinson
• Vincent Tranchida
• Joe Winch
• Jeffrey Travis
• Tekla Wlodarczyk
• William Trieloff
• Chris Wylesky
• Jeffrey Twing
• Bob Zalosh
• Tonya Umbarger
• Jesus “Chewy” Zavala
• Barry Van Beek
• Jing Zhang
• Collin Vandergalien
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
*10 UNITED STATES OF AMERICA, Plaintiff,
v.
DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, ANTHONY HESS, and JOEL NIEMEYER, Defendants.
INTRODUCTORY JURY INSTRUCTIONS 9/21 DRAFT
22-cr-55-jdp
Members of the jury, we are about to begin the trial of the case. Before it begins, I will give you some instructions to help you understand how the trial will proceed, how you should evaluate the evidence, and how you should conduct yourselves during the trial. This will take about 20 minutes. I will give you written copies of all my instructions so you will have them when you deliberate.
FUNCTIONS OF COURT AND JURY
As the judge in this case, one of my duties is to decide all questions of law and procedure. In these preliminary instructions, during the trial, and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision. I will give you copies of all my instructions, including the ones I am reading now, so that you will have them when you deliberate.
You have two duties as jurors. Your first duty is to decide the facts from the evidence that you see and hear in court. Your second duty is to take the law as I give it to you, apply it to the facts, and decide if the government has proved each defendant guilty beyond a reasonable doubt.
You must perform these duties fairly and impartially. Do not let sympathy, prejudice, fear, or public opinion influence you. Do not let any person's race, color, religion, national ancestry, or gender influence you.
Didion Milling, Inc. is a corporation. You must give Didion Milling the same fair consideration that you would give to an individual person.
You should not take anything I say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
JUROR CONDUCT
Let me lay out the rules of conduct that you must follow as jurors.
First, you should keep an open mind throughout the trial. Do not make up your mind about what your verdict should be until after the trial is over, you have received my final instructions on the law, and you and your fellow jurors have deliberated and discussed the evidence. Do not discuss the case or the evidence even among yourselves until you begin deliberation. The reason for this is that once you express an opinion, there is a natural tendency to defend it, and this might make you reluctant to change your mind in light of evidence you hear later.
Second, your verdict in this case must be based exclusively on the law as I give it to you and the evidence that is presented in court during the trial. Outside information may not be appropriate for your consideration and it may be incorrect or misleading. Let me be more specific:
You must not communicate with anyone else about this case, the issues in the case, or anyone who is involved in the case, until after you have returned your verdict. I must warn you in particular about commenting about the case on social media. There cases that have had to be retried because a jury communicated about the case during the trial.
*11 When you are not in the courtroom, you must not allow anyone else to communicate with you or give you any information about the case, the issues in the case, or about anyone who is involved in the case. If someone tries to communicate with you about the case, or if you overhear or learn any information about the case, you must report this to me promptly. Do not discuss the unauthorized communication with any other juror.
You may tell your family and your employer that you are serving on a jury, so that you can explain that you have to be in court. However, you must not communicate with them about the case.
All of the information that you will need to decide the case will be presented here in court. You may not do any independent research or try to look up information from any outside source whatsoever.
To sum up: First, keep an open mind throughout the trial. Second, make sure you do not get any outside information about the case. These rules apply both when you are here in court and when you are not in court. And these rules will apply until after you have returned your verdict. After that, you may talk about the case, or not, as you choose.
JUROR NOTE-TAKING
You may take notes during the trial, and we will provide pencils and notepads for you. If you take notes, you may use them during deliberations to help you remember what happened during the trial. You should use your notes only as aids to your memory. The notes are not evidence. All of you should rely on your independent recollection of the evidence, and you should not be unduly influenced by the notes of other jurors. Remember that your notes are not entitled to any more weight than the memory or impressions of the other jurors. And do not let note-taking distract from the important task of paying attention to the testimony of the witnesses.
THE CHARGES
The charges against the defendants are stated in a document called an indictment. The indictment is simply the formal way of telling the defendants what crimes they are accused of committing. It is not evidence that the defendants are guilty. It does not even raise a suspicion of guilt.
The indictment in this case charges seven separate offenses, some against all defendants and some involving only one or several defendants. After you hear the evidence, I will give you more detailed instructions about the law that applies to these charges so that you will know exactly what the government must prove for each one. For now, I will provide a summary of the charges.
Two of the counts charge a criminal conspiracy. A conspiracy is an express or implied agreement between two or more persons to achieve an unlawful goal by committing crimes. A conspiracy may be proven even if its goals were not accomplished. The members of a conspiracy need not agree on the specific crimes to be committed, but each member of the conspiracy must join the conspiracy with the intent of committing one or more crimes to achieve the joint goal.
Count 1 charges that Didion Milling, Inc. Derrick Clark, Shawn Mesner, and Joel Niemeyer engaged a conspiracy to defraud food and beverage manufacturers who were customers of Didion.
Count 2 charges that Didion Milling, Inc. willfully violated an OSHA standard relating to the management of grain dust thereby causing the death of employees.
Count 3 is no longer a part of the case; you should disregard it.
Count 4 charges that Didion Milling, Inc., Derrick Clark, Shawn Mesner, James Lenz, and Joel Niemeyer engaged in a conspiracy to commit federal crimes involving false statements and falsified documents, for the purpose of concealing violations and unsafe conditions from auditors and government agencies.
*12 Count 5 charges that Didion Milling, Inc. and Derrick Clark falsified a document in contemplation of a federal investigation.
Count 6 charges that that Didion Milling, Inc., Derrick Clark, James Lenz, Anthony Hess, and Joel Niemeyer used a document containing false entries in a record within the jurisdiction of the Environmental Protection Agency.
Count 7 charges that that Didion Milling, Inc., Derrick Clark, Shawn Mesner, Anthony Hess, and Joel Niemeyer used a document containing false entries in a record within OSHA's jurisdiction.
Count 8 is no longer a part of the case; you should disregard it.
Count 9 charges that Didion Milling, Inc. and Derrick Clark obstructed an OSHA proceeding.
The defendants have pleaded not guilty to the charges.
BACKGROUND REGULATIONS
This case will involve some federal and state laws and regulations, and I will give you a brief introduction to some of them now. Several counts in the indictment relate to the Occupational Safety and Health Act, sometimes called the OSH Act or OSHA. The OSH Act requires employers to comply with occupational safety and health standards issued under the OSH Act. The OSH Act is administered by a federal agency called the Occupational Safety and Health Administration, also sometimes called OSHA.
The Clean Air Act is a federal statute that authorizes the United States Environmental Protection Agency, or EPA, to regulate air pollution. The EPA usually implements the Clean Air Act in partnership with individual states. Each state is authorized to develop a plan for how it will control air pollution within the state and comply with standards issued by EPA. This plan is known as a State Implementation Plan, or SIP. In Wisconsin, the Clean Air Act is implemented by the Wisconsin Department of Natural Resources, or DNR. Wisconsin had a SIP that has been approved by the EPA. As part of its SIP, Wisconsin DNR evaluates construction permit applications and issues permits to facilities that are being built or substantially modified to ensure that they will meet national air quality standards. DNR-approved construction permits may include terms and conditions, including monitoring, recordkeeping, reporting, and compliance certification requirements.
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
Each defendant is presumed innocent of the charges. This presumption continues throughout the case. It is not overcome unless, from all the evidence in the case, you are convinced beyond a reasonable doubt that the particular defendant you are considering is guilty as charged.
The government has the burden of proving each defendant's guilt beyond a reasonable doubt. This burden of proof stays with the government throughout the case.
A defendant is never required to prove his innocence. A defendant is not required to produce any evidence at all.
Although the defendants are being tried together, you must consider each defendant and each charge separately. Your decision concerning one defendant, or one charge, should not influence your decision concerning any other defendant or charge.
Your sole concern is to determine whether the government has met its burden to prove the charges beyond a reasonable doubt based on the admissible evidence. Do not concern yourselves with ultimate result of this case or any potential consequences of the case or your verdict for the defendants or any of the victims.
THE EVIDENCE
*13 You may consider only the evidence that you see and hear in court. You may not consider anything you may see or hear outside of court, including anything from the newspaper, television, radio, the Internet, or any other source.
The evidence includes only what the witnesses say when they are testifying under oath, the exhibits that I allow into evidence, any facts to which the parties stipulate, and any facts that I determine by judicial notice. A stipulation is simply an agreement that certain facts are true. A fact determined by judicial notice is one that I decide is readily verifiable. If any facts are stipulated or judicially noticed, I will tell you that.
Nothing else is evidence. Any statements and arguments that the lawyers make are not evidence. If what a lawyer says is different from the evidence as you hear or see it, the evidence is what counts. The lawyers’ questions and objections likewise are not evidence.
A lawyer has a duty to object if he thinks a question or evidence is improper. When an objection is made, I will be required to rule on the objection. If I sustain an objection to a question a lawyer asks, you must not speculate on what the answer might have been. If I strike testimony or an exhibit from the record, or tell you to disregard something, you must not consider it.
Pay close attention to the evidence as it is being presented. During your deliberations, you will have the documentary exhibits that I allow into evidence, but you will not have a transcript of the testimony. You will have to make your decisions based on what you recall of the testimony.
Give the evidence whatever weight you believe it deserves. Use your common sense in weighing the evidence, and consider the evidence in light of your own everyday experience.
People sometimes look at one fact and conclude from it that another fact exists. This is called an inference. You are allowed to make reasonable inferences, so long as they are based on the evidence.
Some testimony may be in Spanish. When that happens, you should consider only the evidence provided through the official interpreter. Although some of you may know Spanish, it is important for all jurors to consider the same evidence. For this reason, you must base your decision on the evidence presented in the English translation.
Some evidence may be admitted for use against only one defendant, and you may not consider that evidence in deciding the charges against any other defendant. When evidence may not be used against all defendants generally, I will tell you that. The parties and I plan to provide you with a chart, for your reference during deliberations, that shows what evidence may not be considered against certain defendants.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
You may have heard the terms “direct evidence” and “circumstantial evidence.” Direct evidence is evidence that directly proves a fact. Circumstantial evidence is evidence that indirectly proves a fact.
Let me give you an example. Imagine that the question is whether a person, John Doe, was at a bar on a particular night. Direct evidence of that fact would be testimony by Doe's ex-girlfriend that she saw Doe at the bar that night. Circumstantial evidence would be a receipt showing that Doe's credit card was used at the bar that night. This example is meant to show that neither direct evidence nor circumstantial evidence is automatically more persuasive than the other type.
*14 You are to consider both direct and circumstantial evidence. It is up to you to decide how much weight to give to any evidence, whether direct or circumstantial.
CREDIBILITY OF WITNESSES
Part of your job as jurors will be to decide how believable each witness was, and how much weight to give each witness's testimony. Do not make any decisions about credibility by simply counting the number of witnesses who testified about a certain point.
You may accept all of what a witness says, or part of it, or none of it. Some factors you may consider include: the intelligence of the witness; the witness’ ability and opportunity to see, hear, or know the things the witness testified about; the quality of the witness’ memory; the witness’ demeanor while testifying; whether the witness had any bias, prejudice, or other reason to lie or slant the testimony; the truthfulness and accuracy of the witness’ testimony in light of the other evidence presented; and any inconsistent statements or conduct by the witness.
There are three specific rules concerning prior inconsistent statements by witnesses.
First, the general rule is that you may consider a witness’ prior inconsistent statement made before the trial only to help you decide whether to believe that witness’ testimony at trial. You may not consider the prior statement as evidence to prove a fact at issue in this trial.
Second, there is an exception to the general rule for any prior testimony under oath. If the prior statement was made under oath, then you may consider it like any testimony in this case. So prior statements under oath can be used both to evaluate the truthfulness of a live witness and as evidence to prove a fact at issue in this trial.
Third, there is another exception to the general rule for testimony by a defendant, or by employees or agents of any defendant. If you find that any of the defendants made statements before the trial began that are different from the statements they made at trial, you may consider as evidence in the case whichever statement you find more believable.
CONDUCT OF THE TRIAL
We are now ready to begin the trial itself. The trial will proceed in the following manner:
First, an attorney for the government will make an opening statement. An opening statement is not evidence. Rather, it is a preview and an explanation from an attorney as to what that attorney expects the evidence will show.
After the government's opening statement, the defendants will make their opening statements. [confirm at the last hearing] After the opening statements are complete, you will hear the government's evidence.
After the government has presented its case, the defendants’ attorneys will present their evidence.
After all evidence has been presented, I will instruct you on the law that applies to this case, then the attorneys will make closing arguments.
After that, you will go to the jury room to deliberate on your verdict.
The trial day usually will run from 8:30 a.m. until 5:30 p.m. You will have at least an hour for lunch and two additional short breaks, one in the morning and one in the afternoon. We may have be somewhat flexible to accommodate a matter in another case. Finally, I can tell you that courtroom may sometimes be rather chilly, so I suggest that you bring clothing that will keep you comfortable in a range of temperatures.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
*15 UNITED STATES OF AMERICA, Plaintiff,
v.
DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, and JOEL NIEMEYER, Defendants.
POST-TRIAL JURY INSTRUCTIONS 9/21 DRAFT
22-cr-55-jdp
Members of the jury, you have seen and heard all the evidence. Before you hear the closing arguments, I will give the final instructions on how you should consider the evidence and the law you must apply to the facts. This will take me about 45 minutes.
CONSIDERATION OF THE EVIDENCE
All of the introductory instructions that I gave you at the beginning of this trial still are in effect. I will give you copies of all my instructions so that you will have them in the jury room for your deliberations.
I have asked questions of witnesses during the trial. Do not assume that I have any position on the matters I asked about; I ask questions to try to clarify things for you, the members of the jury. If you have formed any idea that I have an opinion about how any part of this case should be decided, please put that idea aside. It is your job, not mine, to decide the facts of this case and to render a verdict.
You have heard from several witnesses who gave opinions about technical matters. You do not have to accept the opinions of these witnesses. You should judge their opinions and testimony the same way you judge the testimony of any other witness. In deciding how much weight to give to these opinions and testimony, you should consider the witness's qualifications, the quality of the information that the witness relied on, and how the witnesses reached their conclusions. You should also consider the factors I described at the beginning of trial for determining the credibility of witness testimony in general.
Even though the defendants are being tried together, you must consider each defendant separately. Your decision concerning one defendant, whether guilty or not guilty, should not influence your decision concerning any other defendant.
Some defendants have been accused of more than one crime. The number of charges is not evidence of guilt and should not influence your decision. You must consider each charge and the evidence concerning each charge separately. Your decision on one charge, whether guilty or not guilty, should not influence your decision on the other charge.
Each defendant has an absolute right not to testify or present evidence. In arriving at your verdict, you must not consider the fact that a defendant did not testify or present evidence. You should not even discuss it in your deliberations.
Your sole concern is to determine whether the government has met its burden to prove the charges beyond a reasonable doubt based on the admissible evidence. Do not concern yourselves with ultimate result of this case or any potential consequences of the case or your verdict for the defendants or any of the victims.
[include other instructions as appropriate base on the evidence]
THE INDICTMENT
The indictment in this case is the formal method of accusing the defendants of offenses and placing the defendants on trial. It is not evidence against the defendants, and it does not raise any inference or suspicion of guilt.
*16 The defendants are charged in the indictment as follows: [redacted text of indictment]
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
The defendants have pleaded not guilty to these charges.
The defendants are presumed to be innocent of the charges. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged.
The government has the burden of proving each charge against each defendant beyond a reasonable doubt. That burden stays with the government throughout the case. In the instructions for each count that follow, I will explain to you the specific things the government must prove, which we call “elements.” For each count, and against each defendant, the government must prove each required element beyond a reasonable doubt.
If you find from your consideration of all the evidence that bears on a particular charge against a particular defendant that the government has proved each required element beyond a reasonable doubt, then you should find that defendant guilty of that charge. If, on the other hand, you find from your consideration of all the evidence that the government has failed to prove one or more of the elements beyond a reasonable doubt, then you should find the defendant not guilty of that charge.
GENERAL INSTRUCTIONS ON CONSPIRACY
Count 1 and Count 4 in the indictment charge conspiracies, so I'll begin with some explanation of the law of conspiracy.
A conspiracy is an express or implied agreement between two or more persons to achieve an unlawful goal by committing crimes. A conspiracy may be proven even if its goals were not accomplished. The members of a conspiracy need not agree on the specific crimes to be committed, but each member of the conspiracy must join the conspiracy with the intent of committing one or more crimes to achieve the joint unlawful goal.
In deciding whether the charged conspiracy existed, you may consider all of the circumstances, including the words and acts of each of the alleged participants.
To be a member of a conspiracy, a defendant does not need to join it at the beginning, and he does not need to know all of the other members or all of the means by which the illegal goals of the conspiracy were to be accomplished. A defendant is not a member of a conspiracy just because he knew or associated with people who were involved in a conspiracy, knew that there was a conspiracy, or was present during conspiratorial discussions. Two persons are not members of a conspiracy merely because they committed the same crime. The critical point is that the government must prove beyond a reasonable doubt that the defendant you are considering was aware of the illegal goals of the conspiracy and that he knowingly joined the conspiracy intending to commit crimes to achieve the goals.
In deciding whether a defendant joined the charged conspiracy, you must base your decision only on what that defendant did or said. However, to determine what that defendant did or said, you may consider not only that defendant's own words or acts, but also the words or acts of other persons, which may help you decide what that defendant did or said.
*17 You may not find a conspiracy between any single individual defendant and Didion Milling unless you find that the individual conspired with another Didion employee. It is not possible for Didion Milling to conspire with only one of its own employees.
LIABILITY OF A CORPORATION
Several counts of the indictment are charged against Didion Milling, a corporation. A corporation may be found guilty of a criminal offense. A corporation acts only through its agents and employees, that is, people authorized or employed to act for the corporation.
For you to find Didion Milling guilty of any of the charges against it, the government must prove each of the following things beyond a reasonable doubt:
1. The offense under consideration was committed by an agent or employee of Didion Milling;
2. In committing the offense, the agent or employee intended, at least in part, to benefit Didion Milling; and
3. Third, the agent or employee acted within his authority.
If you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable doubt, then you should find the Didion Milling guilty of the charge committed by its agent or employee. If, on the other hand, you find from your consideration of all the evidence that the government has failed to prove any of these elements beyond a reasonable doubt, then you should find Didion Milling not guilty of the charge.
An act is within the authority of an agent or employee if it concerns a matter that Didion Milling generally entrusted to that agent or employee. Didion Milling need not have actually authorized or directed the particular act.
If an agent or employee was acting within his authority, then Didion Milling is not relieved of its responsibility just because the act was illegal, or was contrary to Didion Milling's instructions, or was against Didion Milling's general policies. However, you may consider the fact that Didion Milling had policies and instructions and how carefully it tried to enforce them when you determine whether a Didion Milling agent or employee was acting with the intent to benefit Didion Milling or was acting within his authority.
PERSONAL RESPONSIBILITY OF CORPORATE AGENT
A person who acts on behalf of a corporation is also personally responsible for what he does or what he or she causes someone else to do. However, a person is not responsible for the conduct of others who performed acts on behalf of a corporation merely because that person is an officer, employee, or agent of a corporation.
AIDING AND ABETTING
In some of the counts of the indictment, the charge includes the allegation that the defendant aided and abetted the offense. A person may be found guilty of an offense by knowingly aiding the commission of the offense if he knowingly participated in the criminal activity and tried to make it succeed.
For you to find a defendant guilty of a count on this basis, the government must prove each of the following elements beyond a reasonable doubt:
1. The crime under consideration was actually committed;
2. The defendant participated in the criminal activity and tried to make it succeed; and
3. The defendant did so knowingly.
A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
DATE OF OFFENSE
*18 The indictment charges that some offenses happened “on or about” certain dates. The government must prove that those offenses happened reasonably close to the alleged date. The government is not required to prove that the offense happened on the exact date.
I will now instruct you on the required elements of each count.
COUNT 1: FRAUD CONSPIRACY
Count 1 of the indictment charges defendants Didion Milling, Derrick Clark, Shawn Mesner, and Joel Niemeyer with conspiracy to commit interstate carrier fraud and wire fraud against Didion Milling's customers. The indictment charges that the conspiracy began on or about June 3, 2014, and continuing through at least November 1, 2017.
For you to find a defendant guilty of this charge, the government must prove both of the following elements:
1. The conspiracy to commit fraud as charged in Count 1 existed; and
2. The defendant knowingly became a member of the fraud conspiracy with an intent to advance the conspiracy by committing one of the specified crimes.
The crimes of interstate carrier fraud and wire fraud involve the following elements:
1. Knowingly devising a scheme to defraud;
2. With the intent to defraud the victims, Didion's food and beverage customers;
3. The scheme to defraud involved a materially false or fraudulent pretense, representation, or promise; and
4. For the crime of interstate carrier fraud, the use of a private or commercial interstate carrier. For the crime of wire fraud, the use of an interstate wire communication.
A scheme is a plan or course of action formed with the intent to accomplish some purpose. A “scheme to defraud” is a scheme that is intended to deceive or cheat another and to obtain money or property by means of materially false or fraudulent pretenses, representations or promises.
A false or fraudulent pretense, representation, or promise is “material” if it was capable of influencing the decision of the victim to whom it was addressed. It is not necessary that the false or fraudulent pretense, representation, or promise actually have that influence or be relied on by the alleged victim, as long as it was capable of doing so.
A victim is not defrauded if it receives exactly what it bargained and paid for, even if there was some act of deception that drew the victim into the transaction. The materially false or fraudulent pretense, representation, or promise must relate to the object of the transaction itself.
Count 1 charges defendants only with conspiring to commit interstate carrier and wire fraud, not with actually committing those crimes. So the government need not prove that all the elements of interstate carrier fraud or wire fraud were actually committed. However, the government must prove that the defendant you are considering joined the conspiracy with the intent of advancing the conspiracy by committing one or both of the two specified crimes. The members of the conspiracy did not have to agree to commit the same crime. But for each charged defendant, you must agree unanimously that the defendant intended to commit at least one of the crimes. You will indicate on the verdict form which of the crimes you find that defendant to have intended.
COUNT 2: WILLFUL OSHA VIOLATION CAUSING DEATH
Count 2 of the Indictment charges Didion Milling with willfully violating an Occupational Safety and Health Act safety standard causing the death of an employee. The indictment charges that the violation was committed on or about May 31, 2017.
*19 For you to find Didion Milling guilty of this charge, the government must prove these three elements:
(1) Didion Milling violated the OSHA Grain Dust Housekeeping Standard;
(2) Didion Milling's violation of the Housekeeping Standard was willful; and
(3) The violation caused the death of an employee.
The Grain Dust Housekeeping Standard is found at Title 29, Code of Federal Regulations, § 1910.272(j). The Housekeeping Standard is part of the OSHA Grain Handling Standard, which establishes safety standards applicable to facilities that handle grains, including corn mills. The Grain Handling Standard contains requirements for the control of grain dust fires and explosions and certain other safety hazards associated with grain handling facilities.
One issue under the Grain Handling Standard is “fugitive grain dust,” defined as “combustible dust particles, emitted from the stock handling system, of such size as will pass through a U.S. Standard 40 mesh sieve (425 microns or less).”
The pertinent part of the Housekeeping Standard provides:
The employer shall develop and implement a written housekeeping program that establishes the frequency and methods determined best to reduce accumulations of fugitive grain dust from ledges, floors, equipment, and other exposed surfaces.
The Housekeeping Standard requires an employer do three things: (1) the employer must develop a program of housekeeping frequencies and methods that the employer determines are best suited to reduce accumulations of fugitive grain dust in its facility so as to reduce the risk of fires and explosions; (2) the employer must put its housekeeping program in writing; (3) the employer must implement and carry out the procedures in its written housekeeping program.
An employer does not violate the Housekeeping Standard because its housekeeping program is not perfect or because it is not the best program possible. In determining the procedures that are best suited to reduce accumulations of fugitive dust, the employer may consider the expense and feasibility of housekeeping frequencies and methods. You may not assume that the employer violated the Housekeeping Standard merely because a fire or explosion occurred.
A violation of the OSHA Housekeeping Standard causes the death of an employee if (a) the death would not have occurred but for the violation and (b) the risk of employee death was a foreseeable result of the violation. The government is not required to prove that Didion Milling intended to cause death or injury to any individual.
A violation of the OSHA Housekeeping Standard is “willful” if Didion Milling had actual knowledge of hazardous fugitive grain dust accumulations in its facility and it knew that its fugitive grain dust management practices violated the Housekeeping Standard. It is not enough that the employer should have known of—but did not actually know of—fugitive grain dust accumulations and Didion's violation of the Housekeeping Standard.
For the purposes of Count 2, a corporation “knows” the pertinent facts and its legal obligations if the corporation's officers, directors, and authorized agents actually know the facts and the legal obligations. An authorized agent includes a supervisor or employee who has a duty to communicate pertinent knowledge to someone higher up in the corporation. For example, as it relates to this case, authorized agents would include supervisors or employees who are responsible for inspecting for safety hazards or receiving or responding to safety complaints.
COUNT 4: CONSPIRACY TO COMMIT FEDERAL OFFENSES
*20 Count 4 of the indictment charges all defendants—Didion Milling, Derrick Clark, Shawn Mesner, James Lenz, and Joel Niemeyer—with a conspiracy to commit three federal crimes. The indictment charges that the conspiracy began no later than on or about March 25, 2013, and continued through at least through on or about February 8, 2018.
To prove a defendant guilty of the conspiracy in Court 4, the government must prove the following elements beyond a reasonable doubt:
1. The conspiracy as charged in Count 4 existed;
2. The defendant you are considering knowingly became a member of the conspiracy with the intent to advance the conspiracy by committing at least one of the specified federal offenses; and
3. One of the conspirators committed an overt act in an effort to advance the goals of the conspiracy.
The indictment alleges that the overarching objective of the conspiracy was to conceal violations and unsafe conditions at Didion Milling's Cambria facility from auditors and government agencies. The indictment alleges that the objective of the conspiracy would be achieved by committing three federal offenses, specifically:
1. Knowingly and willfully making and using false documents and entries in a matter within the jurisdiction of a federal agency, in violation of 18 U.S.C. § 1519;
2. Knowingly falsifying or making a false entry in any document with the intent to impede, obstruct, or influence the investigation and proper administration of any matter within the jurisdiction of a federal agency, or in relation to and contemplation of any such investigation in violation of 18 U.S.C. § 1001(a)(3); and
3. Corruptly and intentionally influencing, obstructing, impeding, or endeavoring to influence, obstruct or impede, the due and proper administration of the law under which a pending proceeding before a federal agency, in violation of 18 U.S.C. § 1505.
The elements of these three crimes are set out below in the instructions for Counts 5 through 9.
Because Count 4 of the indictment charges a conspiracy to commit a crime and does not charge the defendants with the crime itself, the government need not prove that all of the elements of the crime itself were actually committed. However, the government must prove that the defendant you are considering joined the conspiracy with the intent of advancing the conspiracy by committing one or more of the three federal offenses. The members of the conspiracy did not have to agree to commit the same federal offense. But for each charged defendant, you must agree unanimously that the defendant intended to commit at least one of the three federal offenses. You will indicate on the verdict form which of the crimes you find that defendant to have intended.
An “overt act” is any act done to carry out a goal of the conspiracy. The overt act may itself be a lawful act. The overt act may be one that is not expressly alleged in the indictment. The government is not required to prove that all the overt acts charged in the indictment occurred. The government must, however, prove the commission of at least one overt act in furtherance of the conspiracy. You must agree unanimously the that government has proved at least one overt act, but you need not agree unanimously on a single specific overt act. (Note that there is no overt act requirement for the conspiracy charged in Count 1.)
COUNT 5: DOCUMENT FALSIFICATION IN CONTEMPLATION OF FEDERAL INVESTIGATION
*21 Count 5 alleges that defendants Didion Milling and Derrick Clark knowingly falsified entries in the August 14, 2017 environmental compliance certification and deviation summary report, in violation of 18 U.S.C. § 1519.
To prove a violation of § 1519, the government must prove these elements:
1. The defendant knowingly falsified or made a false entry into a record or document;
2. The defendant acted with intent to impede, obstruct or influence an investigation or the proper administration of any contemplated matter; and
3. The investigation or matter was within the jurisdiction of a federal department or agency.
The U.S. Environmental Protection Agency (EPA) is a federal agency of the United States.
With respect to element 2, the government is not required to prove that the matter or investigation was pending or imminent at the time of the obstruction. But the government must prove that the acts were taken with the intent to impede, obstruct, or influence a potential matter or investigation within the jurisdiction of the EPA.
COUNT 6: FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION
Count 6 alleges that defendants Didion Milling, Derrick Clark, James Lenz, and Joel Niemeyer knowingly and willfully made and used a false document, specifically the baghouse logs for 2015, 2016, and 2017, in a matter within the jurisdiction of the EPA, in violation of 18 U.S.C. § 1001(a)(3). The indictment charges that the offense was committed on or about August 16, 2017.
To prove a violation of § 1001(a)(3), the government must prove these elements:
1. The defendant you are considering made or used a false writing or document;
2. The defendant knew the writing or documents contained a false, fictitious, or fraudulent statement or entry;
3. The false, fictitious, or fraudulent statement or entry was material;
4. The defendant made or used the document or writing knowingly and willfully; and
5. The defendant made or used the writing or document in a matter within the jurisdiction of the executive branch of the government of the United States.
The EPA is an agency within the executive branch of the government of the United States. Statements and representations concerning the baghouse logs for 2015, 2016, and 2017 submitted to the Wisconsin Department of Natural Resources were within EPA's jurisdiction.
False entries are “material” if the false entries were capable of affecting the actions of the EPA. The government is not required to prove that the statement actually influenced the actions of the EPA.
A defendant “uses” a document containing false entries if the person actively employs it for an illegal purpose or makes an express or implied representation of the document's accuracy.
For purposes of Count 6, a person acts “willfully” if he acts voluntarily and intentionally, and with the intent to do something illegal. A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
The government does not have to prove that all the baghouse logs for 2015, 2016, and 2017 contained false entries. But the government must prove that at least one baghouse log in these years was materially false, and you must unanimously agree that at least one specific baghouse log was materially false.
COUNT 7: FALSE ENTRIES IN RECORD WITHIN OSHA'S JURISDICTION
*22 Count 7 alleges that defendants Didion Milling, Derrick Clark, Shawn Mesner, and Joel Niemeyer knowingly and willfully made and used a false document, specifically the 2017 Master Sanitation Schedule logbook, in a matter within the jurisdiction of OSHA, in violation of 18 U.S.C. § 1001(a)(3). The indictment charges that the offense was committed on or about August 24, 2017.
To prove a violation of § 1001(a)(3), the government must prove these elements:
1. The defendant you are considering made or used a false writing or document;
2. The defendant knew the writing or documents contained a false, fictitious, or fraudulent statement or entry;
3. The false, fictitious, or fraudulent statement or entry was material;
4. The defendant made or used the document or writing knowingly and willfully; and
5. The defendant made or used the writing or document in a matter within the jurisdiction of the executive branch of the government of the United States.
OSHA is an agency within the executive branch of the government of the United States. Statements and representations concerning the 2017 Master Sanitation Schedule logbook were within OSHA's jurisdiction.
False entries are “material” if the false entries were capable of affecting an official decision of OSHA. The government is not required to prove that the statement actually influenced the actions of OSHA.
A defendant “uses” a document containing false entries if the person actively employs it for an illegal purpose or makes an express or implied representation of the document's accuracy.
For purposes of Count 7, a person acts “willfully” if he acts voluntarily and intentionally, and with the intent to do something illegal. A person acts “knowingly” if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.
COUNT 9: OBSTRUCTION OF AGENCY PROCEEDING
Count 9 charges defendants Derrick Clark and Didion Milling with obstructing an OSHA proceeding, in violation of 18 U.S.C. § 1505. The indictment charges that the offense was committed on or about September 29, 2017, in Clark's deposition testimony in an OSHA proceeding.
To prove a violation of § 1505, the government must prove these elements:
1. There was a pending proceeding before a federal department or agency;
2. The defendant knew of that proceeding;
3. The defendant intentionally influenced, obstructed or impeded, or endeavored to influence, obstruct, or impede, the due administration of that proceeding; and
4. The defendant acted corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.
OSHA is a federal agency of the United States.
As used in § 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including by making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
You will now hear the closing arguments. When those arguments are finished, I will provide you with a few instructions about your deliberations.
INSTRUCTIONS AFTER CLOSING ARGUMENTS
Once you are all in the jury room, the first thing you should do is choose a presiding juror. The job of the presiding juror is to make sure that your discussions are carried on in an organized way and that every juror has a fair chance to be heard. You may deliberate in any manner you chose, but I suggest that you use my instructions as a guide to determine whether the government has met its burden of proof on every required element of each charge. You may discuss the case only when all jurors are present.
*23 The verdict must represent the considered judgment of each juror. Whether your verdict is guilty or not guilty, it must be unanimous. When you have reached a unanimous verdict, the presiding juror should complete the verdict form and sign and date it. The bailiff will bring the verdict form to me, and we will assemble in the courtroom to announce the verdict.
You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to re-examine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence just because of the opinions of your fellow jurors or just so there can be a unanimous verdict.
The twelve of you should give fair and equal consideration to all the evidence. You should deliberate with the goal of reaching an agreement consistent with the individual judgment of each juror. You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.
If you need to communicate with me while you are deliberating, then send a note through the bailiff. The note should be signed by your presiding juror, or by one or more members of the jury. Do not tell me how you stand with respect to the verdict. To have a complete record of this trial, it is important that you do not communicate with me except in writing. I may have to talk to the lawyers about your message, so it may take me some time to get back to you. You may continue your deliberations while you wait for my answer.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA, Plaintiff,
v.
DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, and JOEL NIEMEYER, Defendants.
VERDICT 9/21 DRAFT
22-cr-55-jdp
COUNT 1 (FRAUD CONSPIRACY): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 1 of the indictment.
We, the Jury, having found Didion Milling, Inc. “Guilty” of Count 1, further find that Didion Milling, Inc. conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ Interstate Carrier Fraud in violation of Title 18, United States Code, Section 1341
____ Wire Fraud in violation of Title 18, United States Code, Section 1343
COUNT 1 (FRAUD CONSPIRACY): DERRICK CLARK
We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 1 of the indictment.
We, the Jury, having found Derrick Clark “Guilty” of Count 1, further find that Derrick Clark conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
*24 ____ Interstate Carrier Fraud in violation of Title 18, United States Code, Section 1341
____ Wire Fraud in violation of Title 18, United States Code, Section 1343
COUNT 1 (FRAUD CONSPIRACY): SHAWN MESNER
We, the Jury in the above-entitled cause, find the defendant, Shawn Mesner,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 1 of the indictment.
We, the Jury, having that Shawn Mesner “Guilty” of Count 1, further find that Shawn Mesner conspired to commit the following offense or offenses: (Place an
X next to each offense the defendant conspired to commit.)
____ Interstate Carrier Fraud in violation of Title 18, United States Code, Section 1341
____ Wire Fraud in violation of Title 18, United States Code, Section 1343
COUNT 1 (FRAUD CONSPIRACY): JOEL NIEMEYER
We, the Jury in the above-entitled cause, find the defendant, Joel Niemeyer,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 1 of the indictment.
We, the Jury, having found that Joel Niemeyer “Guilty” of Count 1, further find that Joel Niemeyer conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ Interstate Carrier Fraud in violation of Title 18, United States Code, Section 1341
____ Wire Fraud in violation of Title 18, United States Code, Section 1343
COUNT 2 (WILLFUL OSHA VIOLATION CAUSING DEATH): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 2 of the indictment.
COUNT 4 (CONSPIRACY): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 4 of the indictment.
We, the Jury, having found Didion Milling, Inc. “Guilty” of Count 4, further find that Didion Milling, Inc. conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ The making or use of a false writing or document in violation of Title 18, United States Code, Section 1001(a)(3)
____ Falsification of a document in relation to a federal investigation in violation of Title 18, United States Code, Section 1519
____ Obstruction of an agency proceeding in violation of Title 18, United States Code, Section 1505
COUNT 4 (CONSPIRACY): DERRICK CLARK
*25 We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 4 of the indictment.
We, the Jury, having found Derrick Clark “Guilty” of Count 4, further find that Derrick Clark conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ The making or use of a false writing or document in violation of Title 18, United States Code, Section 1001(a)(3)
____ Falsification of a document in relation to a federal investigation in violation of Title 18, United States Code, Section 1519
____ Obstruction of an agency proceeding in violation of Title 18, United States Code, Section 1505
COUNT 4 (CONSPIRACY): SHAWN MESNER
We, the Jury in the above-entitled cause, find the defendant, Shawn Mesner,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 4 of the indictment.
We, the Jury, having that Shawn Mesner “Guilty” of Count 4, further find that Shawn Mesner conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ The making or use of a false writing or document in violation of Title 18, United States Code, Section 1001(a)(3)
____ Falsification of a document in relation to a federal investigation in violation of Title 18, United States Code, Section 1519
____ Obstruction of an agency proceeding in violation of Title 18, United States Code, Section 1505
COUNT 4 (CONSPIRACY): JAMES LENZ
We, the Jury in the above-entitled cause, find the defendant, James Lenz,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 4 of the indictment.
We, the Jury, having that James Lenz “Guilty” of Count 4, further find that James Lenz conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ The making or use of a false writing or document in violation of Title 18, United States Code, Section 1001(a)(3)
____ Falsification of a document in relation to a federal investigation in violation of Title 18, United States Code, Section 1519
____ Obstruction of an agency proceeding in violation of Title 18, United States Code, Section 1505
COUNT 4 (CONSPIRACY): JOEL NIEMEYER
We, the Jury in the above-entitled cause, find the defendant, Joel Niemeyer,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 4 of the indictment.
We, the Jury, having found that Joel Niemeyer “Guilty” of Count 4, further find that Joel Niemeyer conspired to commit the following offense or offenses: (Place an X next to each offense the defendant conspired to commit.)
____ The making or use of a false writing or document in violation of Title 18, United States Code, Section 1001(a)(3)
____ Falsification of a document in relation to a federal investigation in violation of Title 18, United States Code, Section 1519
____ Obstruction of an agency proceeding in violation of Title 18, United States Code, Section 1505
COUNT 5 (DOCUMENT FALSIFICATION IN CONTEMPLATION OF FEDERAL INVESTIGATION): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 5 of the indictment.
COUNT 5 (DOCUMENT FALSIFICATION IN CONTEMPLATION OF FEDERAL INVESTIGATION): DERRICK CLARK
We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 5 of the indictment.
COUNT 6 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 6 of the indictment.
COUNT 6 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): DERRICK CLARK
We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 6 of the indictment.
COUNT 6 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): JAMES LENZ
We, the Jury in the above-entitled cause, find the defendant, James Lenz,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 6 of the indictment.
COUNT 6 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): JOEL NIEMEYER
We, the Jury in the above-entitled cause, find the defendant, Joel Niemeyer,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 6 of the indictment.
COUNT 7 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 7 of the indictment.
COUNT 7 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): DERRICK CLARK
We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 7 of the indictment.
COUNT 7 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): SHAWN MESNER
*27 We, the Jury in the above-entitled cause, find the defendant, Shawn Mesner,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 7 of the indictment.
COUNT 7 (FALSE ENTRIES IN RECORD WITHIN EPA'S JURISDICTION): JOEL NIEMEYER
We, the Jury in the above-entitled cause, find the defendant, Joel Niemeyer,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 7 of the indictment.
COUNT 9 (OBSTRUCTION OF AGENCY PROCEEDINGS): DIDION MILLING, INC.
We, the Jury in the above-entitled cause, find the defendant, Didion Milling, Inc.,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 9 of the indictment.
COUNT 9 (OBSTRUCTION OF AGENCY PROCEEDINGS): DERRICK CLARK
We, the Jury in the above-entitled cause, find the defendant, Derrick Clark,
_______________________________
(“Guilty” or “Not Guilty”)
of the offense charged in Count 9 of the indictment.
________________________________
Presiding Juror
Madison, Wisconsin
Date: ______________________

Footnotes

Lenz's counsel represented during the September 20 conference that the data had been recorded elsewhere and could be transferred to the logs. The government did not dispute that representation.