U.S. v. Croft, 83-3168
| Decision Date | 12 February 1985 |
| Docket Number | No. 83-3168,83-3168 |
| Citation | 750 F.2d 1354 |
| Parties | , 16 Fed. R. Evid. Serv. 1141 UNITED STATES of America, Plaintiff-Appellee, v. William A. CROFT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee.
Janice A. Rhodes, Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., for defendant-appellant.
Before PELL and COFFEY, Circuit Judges, and DUMBAULD, Senior District Judge. *
The defendant-appellant, William Croft, appeals his conviction for one count of knowingly and unlawfully converting, to his own use, a "thing of value" of the Environmental Protection Agency (the services of Laurel Johnson), in violation of 18 U.S.C. Sec. 641 (1982). We affirm.
The record reveals that in June 1980, the defendant, William Croft, was employed as an assistant professor in the Department of Veterinary Sciences at the University of Wisconsin-Madison. As a result of his extensive research in the area of urinary bladder cancer in animals, Croft had developed an interest in the carcinogenic (cancer causing) effects of asbestos. On June 30, 1980, Croft submitted a grant proposal to the Environmental Protection Agency ("EPA") outlining a research project "to examine mesothelioma in dairy calves as a potential monitor for asbestos and as an index of the extent of environmental hazard from exposure to asbestos." Mesothelioma is a cancerous tumor that often develops in the abdominal and chest areas of humans and animals after exposure to asbestos. Historically, the incidence of mesothelioma in dairy calves is rare, however, according to Croft's EPA proposal there were seven cases of the disease reported between January 1, 1977 and December 31, 1978, at a meat packing plant in Edgar, Wisconsin. In light of this evidence, Croft planned to obtain cancerous cattle tissue from area meat packers and test that tissue for mesothelioma. If the test proved positive, the cattle would be traced to their farm of origin where the water supply and cattle feed would be analyzed for asbestos content.
In September 1980, the EPA approved Croft's proposal and forwarded $130,991 in grant funds to the Office of Research Administration at the University of Wisconsin-Madison. The University held the funds in a special EPA account (UW Fund Account Number 144-Q386) and agreed with the EPA to disburse those funds only for expenses incurred during the course of the two-year EPA research project. The EPA designated Croft as the "principal investigator," or coordinator of the project, responsible for supervising and contributing expert research, as well as submitting semi-annual progress reports to the EPA. See, e.g., 40 C.F.R. Sec. 30.135-19. Following the University's receipt of the EPA funds, Croft immediately began his search for a project specialist to assist him in the EPA study.
Some five months later, in January 1981, Croft became involved in a separate and completely independent asbestos research project. While visiting his hometown of Crivitz, Wisconsin, Croft learned that town officials in nearby Weston, Wisconsin were concerned about a possible asbestos problem in the Weston water system. The town's Department of Public Works had evidence that the underground water pipe, made of cement and asbestos, was corroding and releasing asbestos fibers into Weston's water supply. Croft arranged a meeting with the Weston attorney and the director of Public Works to discuss the twenty-three miles of concrete pipe that carried water to the residents of Weston. At the meeting, Croft informed the Weston representatives of his experience in asbestos-related research and his ability to perform the highly technical and scientific experiments needed to ascertain the asbestos content in the town's water supply.
In that same month, January 1981, Croft completed his search for a project specialist on the EPA-funded study, hiring Nijole Caplenas, a recent graduate from the University of Wisconsin with a Masters degree in microbiology medicine, to aid him in collecting and analyzing data for the two-year project. Caplenas' duties initially consisted of performing water chemistries (including tests for the pH factor, alkalinity, hardness, and aggressiveness index) and learning the proper method of analyzing water samples to determine their asbestos count. 1 The detailed, time-consuming process of counting asbestos fibers involves the filtering of a water sample through alcohol soaked filtration paper, carbon coating the paper onto a slide, ashing the slide (burning away unwanted residue), placing the slide under an electron microscope, and counting the number of asbestos particles appearing upon the slide. Between January and March of 1981, Caplenas performed water chemistries and analyzed various water samples for their asbestos count, including some preliminary water samples that Croft obtained from the town of Weston. In addition, Caplenas visited numerous meat packing facilities throughout Wisconsin, obtaining samples of cancerous cattle tissue and testing them for mesothelioma.
In March 1981, Croft again traveled to Weston, Wisconsin; this time to meet with the town board and discuss his proposal for measuring the level of asbestos in the town's water supply. Croft assured the board that he was well-trained in asbestos research and capable of performing the highly technical process of counting asbestos particles. Croft further informed the board that he had received permission from his superiors at the University of Wisconsin-Madison to conduct the Weston research project and to use the University's advanced research facilities, on the condition that he reimburse the school for their expenses. The following month, in April 1981, the town board hired Croft at a fee of $75.00 an hour, to complete a thorough test of the asbestos content in the Weston water supply by September 1, 1981. The town's attorney requested that Croft personally perform all of the research and scientific procedures because in the event of a lawsuit against the concrete pipe manufacturer, Johns-Manville Corp., Croft would have to substantiate his expert data and account for the water samples' chain of custody at trial.
Following the meeting in April with the Weston town board, Croft returned to the University of Wisconsin-Madison and informed Caplenas, the EPA project specialist, that additional water samples would be arriving from Weston for her to analyze. Caplenas responded that she was busy examining cancerous cattle tissue for the EPA project and did not have the time to perform either the water chemistries or the asbestos counts for the Weston project. During this same time period, in April 1981, Croft employed the services of James Williams to also assist in the EPA study. Croft assigned Williams, a journalism student who had been working for Croft on an unrelated research project that was nearing completion, to review scientific periodicals for asbestos studies and articles.
In June 1981, Laurel Johnson, an undergraduate student in the animal sciences program at the University of Illinois-Champaign who was living in Madison, Wisconsin for the summer, contacted Croft concerning her interest in obtaining research-related summer employment. According to Johnson, Croft explained that he had an opening for a research assistant to perform water chemistries and analyze water samples taken from Weston, Wisconsin. Johnson accepted Croft's offer and was employed from June to mid-August of 1981, during which time she performed water chemistries on the Weston water samples, analyzed the asbestos count of those samples, and recorded the results in a laboratory log book. In early August 1981, Croft asked Johnson if she would remain in Madison for the upcoming fall semester in order that she might complete her research on the Weston water samples. Johnson declined the offer and returned to the University of Illinois-Champaign. Following Johnson's return to Illinois, Croft directed James Williams to educate himself in the scientific procedures and techniques required to perform water chemistries and asbestos counts. According to the University of Wisconsin payroll records, Johnson received $1,988.45 from the special EPA account for her summer research assistance on the Weston asbestos research project.
Throughout the summer of 1981, the Weston officials pressured Croft for the results of his asbestos tests, as the residents of Weston were aware and fearful of the possible carcinogenic problem in the town's water supply. See, e.g., The Daily Herald, Wausau-Merrill, Wis., February 11, 1982, at 19. Croft explained that his test results were delayed because he had to personally perform the time-consuming water filtration and asbestos count for each water sample. Croft failed to complete the Weston project by the September 1, 1981 deadline, and during the following months of September and October the town attorney repeatedly requested that Croft provide the town board with progress reports. Finally, on October 29, 1981, Croft submitted water chemistries of 134 water samples, asbestos counts for twenty-three of those samples, and other pertinent data, to the town board. 2 Included in the data submitted by Croft were five pages of water chemistry calculations that Laurel Johnson had performed on Weston water samples during her summer employment. 3
The following month, in November 1981, James Williams was forced to withdraw from his research position, due to a recurring physical illness. As a result of his employment with Croft, Williams earned $13,685.00 during 1981 and according to the University of Wisconsin payroll records, a substantial amount of that payment was made from the special EPA account. Sometime during the fall of 1981, Croft telephoned Laurel Johnson at the University of Illinois,...
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