Rule 29: Motions for Judgment of Acquittal
~ by Nick Lofing
The following motions encompass the present Rule 29 arguments before the court:
Docket No. 1107: William J. McCaig’s Motion for Judgment of Acquittal; Docket No. 1109: Jack W. Wolter’s Motion for Judgment of Acquittal;
Docket No. 1110: Henry A. Eschenbach’s Motion for Judgment of Acquittal;
Docket No. 1112: Robert C. Walsh’s Motion for Judgment of Acquittal;
Docket No. 1114: W.R. Grace’s Motion for Judgment of Acquittal;
Docket No. 1115: Robert J. Bettacchi’s Motion for Judgment of Acquittal
Docket No. 1123: Government’s Consolidated Response to Defendants’ Rule 29 Motion.
Brief discussion of their contents:
Docket No. 1107: William J. McCaig.
McCaig’s motion was the first to be filed, has the fewest pages of argument, and may be the most persuasive. See McCaig profile. Mr. McCaig argues that the conspiracy charge against him “has never made sense,” primarily arguing that he would not have “lived and worked in Libby […] with his wife and two young boys” had he been party to a conspiracy to endanger the people of Libby. Further, McCaig left Libby in 1988 and left W.R. Grace in 1995. The brief outlines every piece of evidence offered against McCaig (7 instances by witness testimony and 14 of the 612 exhibits) and asserts the evidence is “completely innocuous” of guilt. As operations manager, McCaig ordered former Grace environmental engineer Randy Geiger to test the high school track for fiber exposure in 1981.
The government opposes McCaig’s motion, but concedes that unless Judge Molloy reconsiders and admits as evidence a redacted portion of an exhibit, the government will drop the charge against McCaig.
Docket No. 1109: Jack W. Wolter.
Wolter argues that the government’s promise to “bridge” its hazardous material evidence to knowing endangerment has failed entirely. See Wolter profile. Wolter maintains that there is no evidence to show an agreement to endanger the community of Libby either before or after 1990. Further Wolter argues that he obviously withdrew from any conspiracy to endanger and obstruct when he allowed the EPA access to the sites owned by him through KDC. Further he argues for dismissal as to Counts III and IV because there is no evidence he participated in the transactions involving the sale of the screening plant to the Parkers or the sale of the export plant to the Burnetts and the city of Libby.
The government opposes the motion in its consolidated argument.
Docket No. 1110: Henry A. Eschenbach.
Eschenbach catalogues the evidence presented and argues for a motion for acquittal on the only charge against him: conspiracy. See Eschenbach profile. He bases his argument on ex post facto grounds ie. there is no post-1990 evidence that he agreed to a conspiracy or continued to agree to a conspiracy. Eschenbach argues that the indictment was flawed from the outset and a “distorted rendition of the facts.” Alternatively, Eschenbach argues that even if he did agree to a conspiracy, the evidence proves there were multiple conspiracies, not the single conspiracy alleged by the indictment. Accordingly, because the indictment misconstrues the conspiracy activity as one conspiracy, it must be dismissed with prejudice.
The government opposes the motion in its consolidated argument.
Docket No. 1112: Robert C. Walsh.
Walsh also raises the ex post facto defense and the defense that McCaig and Stringer’s living and raising a family in Libby absolutely contradicts the conspiracy charge to knowingly endanger the community. See Walsh profile. Walsh raises the “moving target” defense, arguing that the government has failed to pin down any evidence that Walsh affirmatively agreed to a conspiracy. If anything, Walsh argues, he was an employee in a department where others agreed to a conspiracy, but “guilt by association” is not the same as agreeing to a conspiracy. Further, he argues: “status is not intent,” meaning that just because he held a position of employment with Grace does not mean he had the requisite mens rea to endanger or obstruct.
The government opposes Walsh’s motion, but concedes that unless Judge Molloy reconsiders and admits as evidence a redacted portion of an exhibit, the government will drop the charge against Walsh.
Docket No. 1114: W.R. Grace.
W.R. Grace’s motion and brief is 136 pages long and boils down to the conclusion that “there is no evidence of anything.” But if anything, Grace argues, the evidence proves that 1) the government knew (“there was no secret”), 2) Libby is safe, and 3) Grace was, and continues to be, cooperative in the EPA cleanups of Libby. See W.R. Grace profile. Grace argues that this is “a criminal case borne of politics, not the facts and the law” and alleges that the government’s “plan was to exculpate itself by inculpating Grace.” According to Grace, Region 8 (of the EPA) chose to “do what government bureaucracies reflexively do when under public scrutiny—assert its innocence and point the finger elsewhere.” Among many other defense arguments, Grace asserts, “the crown jewel in that effort was the Government’s undisclosed prosecutorial partnership with Robert Locke.”
The government opposes the motion in its consolidated argument.
Docket No. 1115: Robert J. Bettacchi.
Bettachi argues his Rule 29 motion with an impressive 93 page brief that laboriously catalogues the evidence before the jury presented against him. See Bettacchi profile. Many of his legal arguments are the same as the others, primarily boiling down to “insufficient evidence.” Bettachi also raises the mens rea argument, that there was no evidence of a release into the ambient air, and that he did not agree to defraud the government.
The government opposes the motion in its consolidated argument.
Docket No. 1123: Government’s Consolidated Response.
After two motions for extension, the government filed a consolidated response to the defendants’ Rule 29 motions on Saturday, April 25. After telling its version of the facts (a story no one wants to have to believe), the government sets the standard for Rule 29 motions that it will argue:
“The evidence is sufficient to support a conviction if ‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Milwitt, 475 F.3d 1150, 1154 (9th Cir. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In circumstantial evidence cases, the denial of such a motion is not simply based on whether in the opinion of the trial judge “the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude.” Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1954).
The government then traces Ninth Circuit caselaw on conspiracy and argues the evidence it has presented, even if circumstantial, can prove a conspiracy to defraud and to endanger the public through a knowing release of asbestos that continued through 2002. The majority of the 54 page brief catalogues the evidence to argue how it satisfies the elements of the accused crimes.
Rule 29 Motions Following Opening Statements
Introduction. Although twelve jurors and three alternate jurors have spent the last seven weeks listening to the government’s evidence in the trial of United States v. W.R. Grace, there is still one mechanism by which the the court can decide that the defendants are not guilty of the accused crimes, thereby taking the question away from the jurors. The procedure is called a “motion for judgment of acquittal” and is authorized by Rule 29 of the Federal Rules of Criminal Procedure.
According to Rule 29(a), “After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction.” The defendants have already moved for acquittal once, following opening statements.
Judge Molloy denied the motions in open court, and later in a written order, but acknowledged the defendants’ right to renew their motions at the end of the government’s case in chief. Order (Feb. 25, 2009), docket no. 945.
Motions to Acquit. Defendants typically make motions to acquit at two points in trial before the case goes to the jury. The first is immediately after the government’s opening statement, and the second is immediately following the close of the government’s case-in-chief. In both, the defendants’ argument is that the government has laid out all of its evidence and has failed to offer enough proof for a reasonable juror to convict the defendants of the charged crimes.
Motions for acquittal are not common. Before any prosecution begins, a grand jury must indict the defendants on a “more-likely-than-not standard.” Further, prosecutors can dismiss a case if they do not believe they can prove the crimes beyond a reasonable doubt. Defendants can also move the court for dismissal. The motion for acquittal allows defendants to argue that the prosecution’s evidence is not sufficient to allow a reasonable juror to convict the defendants of the crimes charged. Here, the defendants cite a Ninth Circuit case for the standard: “Entry of a judgment of acquittal is appropriate when, viewing the evidence in the light most favorable to the Government, no ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” See docket no. 934, page 9, citing United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008).
Motions to Acquit Following Opening Statements. Following the government’s opening statements, defendants Walsh, Eschenbach, McCaig, Wolter, and Bettacchi (the individual defendants) moved for acquittal on the knowing endangerment object of Count I. See Government’s Case. At the same time, W.R. Grace moved for acquittal on Counts II-IV, the Clean Air Act violations. Below are links to the motions for acquittal and the court’s order:
Defendant Walsh, Eschenbach, and McCaig’s Motion for Acquittal on the Knowing Endangerment Object of Count I, docket no. 934.
Defendant W.R. Grace’s Motion for a Judgment of Acquittal, docket no. 936.
Defendant Wolter’s Joinder in W.R. Grace’s Motion for Acquittal, docket no. 938.
Defendant Bettacchi’s Joinder in W.R. Grace’s Motion for Acquittal, docket no. 940.
Court’s Order of Feb. 25, 2009, docket no. 945.
The individual defendants made a two-pronged argument in favor of acquittal. They argued that not only did the government fail in its opening statement to provide any evidence of a conspiracy to violate the Clean Air Act post-1990, but also that the ex post facto clause of the United States Constitution bars conviction where a defendant’s conduct was not criminal until after it was already completed. The ex post facto clause is found at Article 1, Section 9, Clause 3 of the United States Constitution and prohibits convictions for conduct that became criminal only after the person committed it. Defendants cite United States v. Jackson, 480 F.3d 1014, 1020 (9th Cir. 2007) for the proposition that the ex post facto clause “forbids punishing individuals for acts that were legal at the time they were completed.” The defendants argued that any agreement they might have entered before the 1990 enactment of the criminal amendment to the Clean Air Act cannot be punished retroactively. Because the government offered no evidence of a conspiracy agreement after 1990, the defendants argued, they cannot be convicted of the knowing endangerment object of Count I and the judge should enter a judgment of acquittal. The individual defendants also argued that the court could acquit them on one object of a multi-object conspiracy, citing United States v. Garcia, 27 F.3d 1009 (5th Cir. 1994).
Finally, they reminded the court that it had previously dismissed the knowing endangerment object, and argued that the Ninth Circuit’s reversal of that decision did not preclude subsequent acquittal on these grounds. See docket no. 524 or United States v. W.R. Grace, 434 F. Supp. 2d 879 (D. Mont. 2006) (overruled by United States v. W.R. Grace, 504 F.3d 745 (9th Cir. 2007)).
Taking a different approach, W.R. Grace moved for acquittal on the three Clean Air Act knowing endangerment counts by arguing that the government’s opening statement showed that that any ‘releases’ Grace caused would have placed people in imminent danger before November 3, 1999. Therefore, Grace argued, the court should enter a judgment of acquittal on those counts because they are barred by the statute of limitations. Grace contended that Judge Molloy has already ruled that the crime of knowing endangerment is not a continuing offense. See docket no. 936 at pp. 2-3.
Grace catalogued the government’s factual theory as presented in the opening statements and argued that all of the alleged conduct took place before November 3, 1999. Therefore, Grace argued that even under the government’s own factual theory, the alleged crime is barred by the statute of limitations. Finally, Grace argued against the government’s theory of “release,” which has been a contentious issue throughout the trial. The government’s theory is that Grace caused a release by leaving piles of contaminated substances it knew would be disturbed and released by normal human activity. Under this theory, the release began when Grace left the piles of vermiculite, or allowed vermiculite to be taken by LIbby residents, and was completed each time someone disturbed the vermiculite, such as by walking, running, driving, or digging. Grace defended against this theory by arguing that a crime is complete for the purposes of the statute of limitations at the first instant a person was placed in imminent danger, regardless of how long the endangerment lasts. Because normal human activity such as walking, running, driving and digging occurred in the early 1990s, the crime was complete at that time, and subject to prosecution and the statute of limitations at that time. See docket no. 936, page 6 (citing United States v. W.R. Grace, 429 F. Supp. 2d 1207, 1243 (D. Mont. 2006)).
The Court’s Denial of the Motions, Subject to Renewal at the Close of the Government’s Case.
Judge Molloy’s February 25, 2009 order denying the Rule 29 motions made three rulings that are important to this discussion. First, the order restated the court’s denial of the motions for acquittal. Second, the order explained that the United States did not respond to or brief any of the pending motions, including the motions for acquittal. In a footnote, the order explained that the defendants failed to comply with Local Rule CR 12.2, which is “grounds for denial of any motion.” (Local Rule CR 12.2 requires the moving party to “note that all parties have been contacted concerning the motion, and whether any party objects to the motion.”) Third, the order affirmed the defendants’ opportunity to renew their acquittal motions at the close of the government’s case-in-chief. See docket no. 940.
Look for Motions to Acquit Following the Government’s Case-in-Chief.
As Grace attorney David Bernick indicated on Friday, April 17, the defendants will renew their Rule 29 motions for judgment of acquittal. Procedurally, the motion cannot be made until the government rests its case on Monday or Tuesday, but one can reasonably believe that all parties are drafting their motions and briefs this weekend. The defendants’ arguments will likely be similar to those made in their earlier Rule 29 motions. The government will likely argue that the evidence is sufficient to prove its theory that the individual defendants formed a post-1990 conspiracy agreement to violate the Clean Air Act and that W.R. Grace committed “releases” in violation of the Clean Air Act after November 3, 1999. Moreover, the government will likely base much of its argument against the Rule 29 motions on the principle that the jury is the proper entity to make the determination of acquittal, not the court.