U.S. v. Consolidation Coal Co., s. 73-2086
| Citation | 504 F.2d 1330 |
| Decision Date | 23 October 1974 |
| Docket Number | 73-2085,Nos. 73-2086,s. 73-2086 |
| Parties | 1974-1975 O.S.H.D. ( 18,872 UNITED STATES of America, Plaintiff-Appellee, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald M. KIDD, Jr., an Individual, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William J. Melvin, Fontana, Ward, Kaps & Perry, Richard C. Addison, Columbus, Ohio, Roger Curran, H. Yale Gutnick, Edwin J. Strassburger, Rose, Schmidt & Dixon, Pittsburgh, Pa., William M. Downer, Weinman, Downer, Quinn, Adulewicz & Kerr, Steubenville, Ohio, for defendants-appellants.
William W. Milligan, U.S. Atty., James Rattan, Asst. U.S. Atty., Columbus, Ohio, John L. Murphy, Chief, Government Regulations Section, Crim. Div., Dept. of Justice, DeWitt R. Dent, B. Franklin Taylor, Jr., Richard I. Chaifetz, Washington, D.C., for plaintiff-appellee.
Before WEICK and LIVELY, Circuit Judges and CECIL, Senior Circuit judge.
The Appellants, Consolidation Coal Company and Donald M. Kidd, were jointly tried and convicted by a jury in the United States District Court for the Southern District of Ohio, Eastern Division, under a four count information charging them with having violated two of the Interim Mandatory Safety Standards contained in Sec. 862(a), Title 30, U.S.C. The appellants were prosecuted under the penal provisions of Sec. 819 (b) and (c) of Title 30. Separate appeals have been filed but they will be considered together in this opinion.
The Hanna Coal Company is a division of the Consolidation Coal Company, one of the appellants in this appeal. It owned, operated and controlled the Franklin No. 25 Mine in New Athens, Harrison County, Ohio. This mine is the subject of the criminal charges in this case. Donald M. Kidd was a foreman in the section of the mine which became the subject of the specific charges in the information.
Counts one and two of the information charged appellant, Consolidation Coal Co., that it
'willfully failed to support and otherwise control adequately the roof and ribs of the active underground roadways, travelways and working places in the Franklin No. 25 Mine'
for protection of persons from falls, and that it
'willfully failed to adopt a roof control plan and revisions thereof suitable to the roof conditions and mining system in the Franklin No. 25 Mine and approved by the Secretary of the Interior.'
Counts three and four of the information charged that appellant, Donald M. Kidd, in his representative capacity
'knowingly authorized, ordered and carried out the violation charged in Count I (Count II) of this information.'
By separate pretrial motions to dismiss both appellants challenged the sufficiency of the information. These motions were denied and at request of the court Bills of Particulars were filed. By these Bills the Government stated in detail what it expected to prove. The appellants in these appeals claim error on the part of the trial judge in denying the motions to dismiss the information.
Upon consideration of the motions, the statutes involved, herein, the four counts of the information and the arguments and briefs of counsel, we conclude that Section 862(a) supra, is not unconstitutionally vague, that it defines the offenses charged in the information with certainty, that the information sufficiently states offenses under the statute and that the information with the aid of the Bills of Particulars adequately inform the defendants of the charges they are to meet. For discussion of vague and overbroad statutes defining offenses, see Grayned v. City of Rockwood, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222.
Both appellants moved for judgment of acquittal at the close of the government's case and for judgment of acquittal n.o.v. at the close of the entire case. Consolidation Coal Company presents this question on appeal.
Count one of the information was framed from the second sentence of Section 862(a) of Title 30 U.S.C. as follows:
'The roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs.'
Count two was framed from the third sentence of the same section reading as follows:
'A roof control plan and revisions thereof suitable to the roof conditions and mining system of each coal mine and approved by the Secretary shall be adopted and set out in printed form within sixty days after the operative date of this subchapter.'
We hold as did the trial judge that this language may be the subject of two separate counts.
The substance of the charges is that the corporate appellant, Consolidation Coal Company, committed the violations. Specifically, the basis of the charges is that at about noon on June 14, 1972, there was a roof fall in what is denominated as room 52 of the mine.
The government's chief witness was one Paul G. Gregor. Mr. Gregor was a coal mine inspector employed by United States Bureau of Mines. He had had experience in various phases of mine work and special training for his job as an inspector. At about 4:45 P.M. of the ofternoon of the roof fall Mr. Gregor went into the mine with several other men. With him entering the mine were Mr. Young, his supervisor, Mr. Wood, his fellow inspector, representing the bureau of mines, Mr. Henry Roberts of the State of Ohio Division of Mines, mine workers Walter Ludwig and John Yemich, of the Union Safety Committee and mine worker Glenn Donaldson. Of the witness who testified only Walter Ludwig, Glenn Donaldson and Harold Fletcher had been in room 52 before the roof fall.
Mr. Gregor testified in detail concerning the condition of room 52 at the time he was in it after the roof fall. He identified drawings as exhibits, testified as to overhangs, roof bolts, rib and roof supports, made measurements and otherwise described with exactness the condition in which he found this room. This apparently was the government's theory of showing that the room did not meet required safety standards before the roof fall. No one with prior knowledge of the condition of room 52 testified that this condition after the roof fall would not have met the proper safety standards before the roof fall. Mr. Gregor testified that there was a roof plan for room 52 which had been approved by the Secretary. This is shown by exhibit 2 and the documents contained therein. The district judge held that not only must there be an approved roof plan but it must have been shown to have been put into effect.
For the purposes of this discussion we assume that the condition of room 52 prior to the roof fall did not meet the required safety standards and that the approved roof plan had not been put into effect.
The willful violations of Consolidation can be shown only through the action of an authorized agent. Mr. Duane Landacre, employed by appellant, Consolidation Coal Company, as Coordinator of Personnel, testified from his records that appellant, Donald M. Kidd, had been employed by Consolidation since June 1, 1964 and that he had been a foreman since May 1, 1969. He did not testify as to what his authorized duties as a foreman were. Nor is there any testimony on the part of management as to Mr. Kidd's authorized duties.
Mr. Gregor testified that he had a conversation with Mr. Kidd at a conference in the superintendent's office. He stated that Mr. Kidd said that on the day of the fall Mr. Ball was only in his fourth day of working for him and that if he had known that he had had only eleven or twelve days experience in the mine he would not have sent him into that working place alone. He further testified that Mr. Ball left the bottom about 7:40 A.M. on the day of the fall and arrived at the working section about 8:00 A.M. Apparently Mr. Kidd assigned shot firing duties to Mr. Ball on this occasion. By 11:30 A.M. he had shot down six cuts of coal. He then went to lunch and Mr. Kidd said as he was going past the dinner hole Mr. Ball asked him what he was to do after lunch. Mr. Kidd told him to begin setting temporary roof supports in number 53 room.
Later Mr. Kidd saw Mr. Ball in number 53 and he told him when he finished setting the posts there to go into 52 and just follow the loading machine. When Mr. Kidd went into 52, he could not observe the condition of the roof because the loading machine was there. Mr. Gregor further testified that...
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