U.S.A v. Geisen, 08-3655.

• Decision Date: 15 July 2010
• Docket Number: No. 08-3655.,08-3655.
• Citation: 612 F.3d 471
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.David GEISEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

612 F.3d 471

UNITED STATES of America, Plaintiff-Appellee,v.David GEISEN, Defendant-Appellant.

No. 08-3655.

United States Court of Appeals Sixth Circuit.

Argued: Jan. 19, 2010.

Decided and Filed: July 15, 2010.

Rehearing and Rehearing En Banc Denied Sept. 2, 2010.

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ARGUED: Timothy P. O'Toole, Miller and Chevalier Chartered, Washington, D.C., for Appellant. John Luther Smeltzer, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Timothy P. O'Toole, Richard A. Hibey, Andrew T. Wise, Miller and Chevalier Chartered, Washington, D.C., for Appellant. John Luther Smeltzer, United States Department of Justice, Washington, D.C., for Appellee.

Before: MERRITT, GIBBONS, and ROGERS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which ROGERS, J., joined. MERRITT, J. (pp. 497-500), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant David Geisen appeals his conviction on three counts of concealing a material fact and making a false statement to the Nuclear Regulatory Commission (“NRC”) in violation of 18 U.S.C. §§ 1001 and 2. On appeal, Geisen argues that there was insufficient evidence to support his convictions and that the district court erred by giving a deliberate ignorance instruction and denying a motion to admit evidence of Geisen's rejection of a pre-indictment deferred prosecution agreement. For the following reasons, we find that there was sufficient evidence to support each of Geisen's convictions and that the district court did not err in its instruction or exclusion of evidence. Therefore, we affirm.

I. Factual and Procedural Background

This case arises out of an incident that occurred in 2001 at the Davis-Besse Nuclear Power Station (“Davis-Besse” or “the plant”), which is located on the shores of Lake Erie near Toledo, Ohio, and is owned and operated by FirstEnergy Nuclear Operating Company (“FENOC”). Geisen began work at the plant in 1988 and, by 2000, was manager of design basis engineering. After a safety incident at a similar plant prompted the NRC to require inspections at all like plants by the end of 2001, FENOC successfully petitioned the NRC to permit Davis-Besse to operate without interruption and thus delay inspection until a scheduled refueling shutdown in spring of 2002. Geisen's role in preparing the documents that Davis-Besse submitted to the NRC and presentations given to NRC officials in furtherance of the delayed inspection gave rise to his indictment on and subsequent conviction of three counts of concealing a material fact and making a false statement to a United States agency. During the delayed inspection, Davis-Besse found five cracked nozzle heads and a football-sized cavity caused by boric acid erosion in the head of the reactor. The finding prompted NRC investigations into previous plant inspections and, eventually, the prosecution of Geisen, systems engineer Andrew Siemaszko, and independent contractor Rodney Cook. A second engineer, Prasoon Goyal, and three other Davis-Besse employees signed deferred prosecution agreements.

A. Davis-Besse Nuclear Power Station

Davis-Besse is a two-loop, pressurized water reactor that is composed of a large cylindrical chamber filled with coolant water (“the Reactor Pressure Vessel” or “RPV”). Uranium rods at the core of the vessel fuel the nuclear reaction that heats the coolant water. The nuclear reaction is controlled by introducing boric acid and/or control rods into the reactor vessel. The control rods are inserted through sixty-nine penetration nozzles (tubes that are approximately four inches in diameter) that penetrate through the head of the reactor (approximately ten feet in diameter) into the reactor chamber. There is a gap between the RPV head and reflective metal insulation that encloses closure flanges and studs. The gap is narrowest at the top of the head, where it is only two inches wide. Control rod drive mechanisms (“CRDMs”) allow the operators to lower the rods into the reactor to control the rate of the nuclear reaction, and, thus, the energy output. The nozzles are welded onto the vessel head using a J-groove on the underside of the steel head, which is 6.5 inches thick.

The internal walls of the RPV and the underside of the RPV head are covered in non-corrodible stainless steel, but the RPV and the external components are made of carbon steel, which is corrodible by the boric acid in the coolant water if it escapes the RPV. This can happen when the coolant water leaks through the flanges that connect the CRDMs to the nozzles above the RPV head. Davis-Besse had a history of flange leakage and developed the Boric Acid Corrosion Control Procedure (“BACCP”), which it implements during inspections, to address this problem.

Davis-Besse operates in two-year fuel cycles and, therefore, shuts down the reactor only during the biennial refueling outages (“RFOs”). Davis-Besse was scheduled to conduct RFO13 (the thirteenth RFO conducted at Davis-Besse) in April 2002. In addition to permitting refueling, the RFOs are the primary opportunity for inspections and maintenance that cannot occur while the reactor is in operation. The RFOs at issue in this case are RFO 10 (1996), RFO 11 (1998), and RFO 12 (2000). During an RFO, in order to visually inspect the nozzles and the RPV head, operators must insert a camera through a series of eighteen “weep holes” that are five by seven inches in size and that line the bottom of the RPV head above the head flange connecting the RPV head to the RPV. Because of the limited accessibility of the camera, it is impossible to visually inspect the very top of the RPV head and the nozzles located there. Siemaszko was in charge of inspecting and cleaning the RPV head during RFO12 in 2000. Goyal oversaw this task during RFO10 in 1996 and reviewed the inspection reports following RFO11 and RFO12. Another engineer, Peter Mainhardt, supervised inspection and cleaning during RFO11 in 1998. As of 2001, Goyal and Siemaszko continued to work at Davis-Besse as engineers, and Mainhardt worked for FENOC as an independent contractor preparing for RFO 13.

The 1996 RPV head inspection lasted only one hour due to limitations on the technicians' exposure to radiation. During that inspection, Goyal directed two technicians who were moving a camera on a pole across the vessel head. He watched on a monitor and narrated the camera location based on the “stud hole” numbers (the numbers on the studs between the weep holes). The nozzles were not numbered, so this is the only way to determine and document the condition of each nozzle based on the camera visual. Goyal, in testimony and in a Potential Condition Adverse to Quality report (“PCAQ”) submitted to superiors after RFO 10, estimated that he was able to inspect fifty or sixty percent of the head area in 1996 and noted that it was difficult to estimate the amount of boron deposit on the head because of the limited visual inspection. In the PCAQ, Goyal attributed the boron deposits to flange leaks. The PCAQ also noted several deposits ranging in color from white to brown to rust. In both the PCAQ and in testimony, Goyal noted that the boron deposits and limited visual access prevented full implementation of the BACCP. Consequently, in the PCAQ, Goyal suggested modifications to the RPV head that would permit better access, such as installing access doors. No such modifications were ever made.

At trial, the government's expert witness, Dr. James Davis, described photographs of the 1998 inspection, noting “rust-colored boric acid deposits coming out of the ... [weep] holes” and “boric acid deposits around the closure studs.” He also stated that “[t]here were several other [indicators of leakages]. One of them was of containment air coolers were getting clogged, fouled with boric acid deposits.” The RFO11 PCAQ, signed by Goyal, stated that “most of the head area was covered with an uneven layer of boric acid along with some large lumps of boric acid.” The deposits were again attributed to flange leakage. That PCAQ referred back to the RFO10 PCAQ and the need for corrective action. The 1998 PCAQ also stated that “[t]he reactor vessel head was cleaned as best as we can” and noted that the cleaning was video recorded.

Siemaszko conducted RFO12's RPV head cleaning. The deposits prevented insertion of the camera into five of the weep holes and visually impaired inspection through other weep holes. The deposits also required more elaborate cleaning maneuvers than previous inspections, which had used a vacuum cleaner to remove boron deposits. In 2000, Siemaszko directed the technicians to spray hot, distilled water onto the RPV head to loosen the deposits and to use bars to knock off chunks of deposits and to flush them out through the weep holes. One of the members of the cleaning crew testified that the amount of boron deposits visible in RFO12 was “unlike” any he had seen in previous RFOs and that the deposits left on the RPV head after the cleaning were of great concern to those planning RFO13. Greg Gibbs, a consultant brought to Davis-Besse to prepare for RFO13, reviewed the cleaning tapes of RFO 12 and testified that, although there were “large areas ... that were cleaned to bare metal[,] ... as you neared the top of the rear insulation where the two-inch gap exists ... there were areas where there were considerable boric acid deposits, in some cases even solid up to the mirror insulation.” Geisen told an NRC investigator in 2002 that he had read a report by Gibbs sometime after October 11, 2001, that discussed Gibbs's findings in reviewing the RFO12 inspection, including that the RPV head had “boric acid deposits of considerable depth.” The RFO12 PCAQ again attributed the increased boron accumulation to flange leakage.

In a 2000 PCAQ, Siemaszko noted that the RPV head should be “free of boron...