United States v. Fritzel

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

         A jury convicted Defendant Thomas Fritzel on three Clean Air Act violations following a five-day trial: failure to notify of intent to demolish or renovate prior to removing regulated asbestos-containing material (“RACM”), failure to adequately wet RACM, and failure to contain RACM in a leak-tight wrapping or container.^[1] Doc. 133. Fritzel now seeks a new trial under Federal Rule of Criminal Procedure 33. Doc. 137. For the reasons discussed below, the Court denies Fritzel’s motion.

         I. BACKGROUND

         The government originally indicted Fritzel along with three others-Casey Stewart, Wesley Lynch, and Tucker Fritzel (Fritzel’s son, referred to here as Tucker). Doc. 1. The indictment alleged four counts against all the defendants-the three counts that Fritzel was ultimately convicted of and a conspiracy charge. Id. at 9-11. Two days before trial started, the government dismissed Fritzel’s co-defendants, along with the conspiracy charge. Docs. 108, 113. Fritzel alone proceeded to trial on the remaining three counts.

         At trial, the government presented testimony from an individual who observed demolition at the Alvamar Country Club, officials from the Kansas Department of Health & Environment (“KDHE”) who visited the site and took samples, individuals from an asbestos-testing company who tested those samples, asbestos-remediation contractors, and landfill employees. Fritzel put on testimony by individuals who took drone photographs of the renovation project, as well as Fritzel’s employee, architect, and attorney. The trial lasted five days. During the course of the trial, the Court issued two written orders on evidentiary matters, including one on expert disclosures (Doc. 121) and the other on testimony by Richard Herries (Doc. 130).

         At the close of the government’s case, and again at the close of all evidence, Fritzel moved for a judgment of acquittal. Doc. 124. The Court took the motions under advisement and ultimately denied them. Doc. 136. Fritzel has now moved for a new trial. Doc. 137.

         II. STANDARD

         Federal Rule of Criminal Procedure 33(a) states that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” A motion for new trial is within the Court’s discretion. See United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir. 2015). Fritzel has the burden of establishing the need for a new trial. See United States v. Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000).

         The standard for granting a new trial is not as strict as it is in a motion for acquittal. United States v. Stiner, 765 F.Supp. 663, 664 (D. Kan. 1991). The Tenth Circuit has counseled that, “if after weighing the evidence and the credibility of the witnesses, the court determines that ‘the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred, ’” a new trial may be appropriate. United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir. 1996) (quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994)). More specifically, any error that would be sufficient to cause a reversal on appeal is sufficient to grant a new trial under Rule 33. Walters, 89 F.Supp.2d at 1213.

         But the Court should not grant a new trial simply because it feels a different result would be more reasonable. United States v. Yoakam, 168 F.R.D. 41, 44 (D. Kan. 1996). A motion for a new trial “is not regarded with favor and should be granted only with great caution.” United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (quoting United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992)).

         III. ANALYSIS

         Fritzel’s motion is based on five arguments: the government failed to prove each element of every count beyond a reasonable doubt; the government elicited improper testimony from Richard Herries; the Court allowed improper expert testimony; the government filed the indictment to put pressure on Fritzel in an unrelated case; and the government engaged in prosecutorial misconduct. Doc. 137 at 1. For the reasons stated below, the Court concludes none of these arguments, singularly or in combination, warrant a new trial.

         A. The government presented sufficient evidence of friability and knowledge on each count.

         Fritzel’s first argument for a new trial is that the government presented insufficient evidence of friability and insufficient evidence that Fritzel had knowledge of the alleged NESHAP^[2]

         violations for which he was convicted. Although the standard is more lenient in a motion for new trial, these arguments are identical to those raised in Fritzel’s motions for judgment of acquittal, which he incorporates by reference, Doc. 124, and which the Court previously denied, Doc. 136.

         1. The government presented evidence of friability.

         Fritzel argues there was insufficient evidence that the material sampled was friable. Doc. 137 at 3. The charges against Fritzel related to “regulated asbestos-containing material, ” or RACM. See Doc. 132 at 31-36. The jury instructions defined RACM as, in part, friable asbestos. Id. at 25. “‘Friable asbestos material’ means any material containing more than 1 percent asbestos . . . that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure.” Id.

         As the Court previously found, the government presented sufficient evidence that the material at issue was friable asbestos. During its case-in-chief, the government presented testimony by Philip Schlaman with KDHE. He testified that he took a sample of material from the site on October 13, 2016, which he described as white, pliable, and not very stiff. Tr. at 283:4-19. Schlaman also discussed photographs from that visit depicting the demolition work, debris piles, and dumpsters (photographs admitted as Exhibit 17), testified about a video that depicted him using his hand to tear off a sample of the material (video admitted as Exhibit 1049B), and further testified that the sample subsequently tested positive for chrysotile (test results admitted as Exhibit 21). Although he noted that chrysotile does not necessarily mean friable, he testified that in this case, the material that contained the chrysotile “is friable.” Tr. at 305:23-306:3.

         The government also presented testimony from Scott Mesler, who initially reported the suspected violation to Schlaman. Mesler, a roofer by trade, testified that the asbestos in the Alvamar Country Club roof was a friable type called Nicolite felt, and described it as being “soft, ” “like a plaster form, ” and “mushy.” Tr. at 260:14-261:6.

         The government also called Adrian Turner, an accredited asbestos inspector. Tr. at 489:16-18. Turner testified that he collected samples from the site (including the dumpsters) in October 2016 and those samples tested positive for friable asbestos. Tr. at 484:4-485:10; 478:21-479:2 (test results admitted as Exhibit 1060). Turner specifically testified that the asbestos was friable because it was capable of being crushed by slight hand pressure. Tr. at 484:25-485:5. Tina Gustafson and Tami Van also testified for the government, and each woman presented evidence relevant to this issue.

         Fritzel argues that because the government offered no witnesses who testified “that he or she had crumbled, pulverized or reduced any sample by hand pressure, ” there is insufficient evidence of friability. Doc. 137 at 3. Fritzel argues that the witnesses who testified about friability only assumed that was the case but did not state how they reached that conclusion or that they “performed a friability test.” Id. The Court disagrees with that characterization. The Court also notes that Fritzel cites no authority stating that friability can only be determined through the testimony of a witness who personally “crumbled, pulverized or reduced any sample by hand pressure.” Questions about how a witness arrived at the conclusion of friability are questions of foundation, not sufficiency. The Court notes that Fritzel never raised any foundational objection to any of the testimony cited above or cross-examined any witness about his or her testimony on this issue. Based on this, the Court concludes the government presented sufficient evidence for the jury to conclude that the asbestos from the Alvamar roof was friable, and thus qualified as RACM.^[3]

         2. The government presented sufficient evidence of Fritzel’s knowledge.

         Fritzel also argues that the government failed to establish that he had knowledge of the NESHAP violations because no witnesses testified that Fritzel was present at the demolition site or that he directed individuals who were present. Doc. 137 at 4. Fritzel also raised this argument in his motions for acquittal, Doc. 124 at 3-5, which the Court rejected, Doc. 136 at 1-4.

         As explained in the prior order denying the motions for judgment of acquittal, the Court finds that the government presented sufficient evidence of Fritzel’s knowledge. Specifically, there was ample evidence that Fritzel was aware there was asbestos in the clubhouse roof. John (Jay) Patterson testified he had a sample of the roof tested in 2008 and that the sample tested positive for asbestos (test results admitted as Exhibit 3). He further testified that he gave a copy of the 2008 test results to Wes Lynch in 2016 and that he understood Lynch to be the general manager of the Jayhawk Club. Tr. at 226:11-22. Richard Herries testified that he sent an email to Fritzel in 2016 (email admitted as Exhibit 10) stating that the roof contained asbestos. Tr. at 402:1-22. Schlaman testified that during his first site visit, he said work needed to stop, and he then followed up with a telephone message and emails to Fritzel stating there was an “asbestos problem” (emails admitted as Exhibits 19 and 1066). Tr. at 287:25-289:17. Schlaman also testified that he and Gustafson me t with Fritzel after getting the 2016 positive test results (meeting notes admitted as Exhibit 22). Tr. at 310:21-311:14.

         The asbestos found at the job site was later determined to be friable asbestos containing at least 75% chrysotile (Van and Turner test results admitted as Exhibits 21 and 1060). Fritzel argues that the government was required to show that he had knowledge that it was specifically RACM (meaning material containing more than 1% friable asbestos) in the roof, rather than just generic knowledge that there was asbestos. Doc. 140 at 4-6. But he offers no support for that contention. Further, the government cites United States v. Weintraub to specifically dispute that argument. In Weintraub, the Second Circuit held that “the government need only prove that the defendant knew that the substance involved in the alleged violations was asbestos; it need not establish the defendant’s knowledge that the conduct . . . involved the kind and quantity of asbestos sufficient to trigger the asbestos work-practice standard.” United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001); see also United States v. Buckley, 934 F.2d 84, 88-89 (6th Cir. 1991) (“Because of the very nature of asbestos and other hazardous substances, individuals dealing with them have constitutionally adequate notice that they may incur criminal liability for emissions-related actions.”). Fritzel states that he “takes issue with the legal conclusions reached by the courts in Weintraub and Buckley, ” Doc. 140 at 5, but cites no authority that squarely contravenes those holdings. As the court stated in Weintraub, all that is required is “knowledge of facts and attendant circumstances that comprise a violation of the statute, not specific knowledge that one’s conduct is illegal.” Weintraub, 273 F.3d at 147. That standard was met here, as there was sufficient evidence to show that Fritzel, as owner and operator, knowingly failed to seek prior approval before removing the asbestos, failed to adequately wet the friable asbestos, and failed to properly dispose of it.

         The Court further finds there was sufficient evidence of the charged violations. Schlaman testified that KDHE did not receive a form about the demolition project. Tr. at 275:16-276:15. Gustafson likewise authored the KDHE report (report admitted as Exhibit 23), which notes that the clubhouse roof was removed and disposed of at “Hamm’s landfill . . . without permitting or proper disposal of potential asbestos containing material.”^[4] Videos and photos of the site also permit a fair inference that the material in question was not kept wet. Schlaman and Gustafson also testified about their return visit to the site, where they noted the removal of debris, including the pile the sample had been taken from, and the movement of dumpsters. Tr. at 302:20-304:19; 380:22-381:19. Their testimony was supported by photographs and video taken during this visit (photographs admitted as Exhibit 17; videos admitted as Exhibits 18 and 1049C). And the government also presented the testimony of Angie Higgins and introduced as exhibits tickets and invoices from Hamm Sanitary Landfill where dumpsters from the site were dumped following KDHE’s initial visit to the job site (admitted as Amended Exhibits 15 and 16).

         In sum, the Court again finds there was sufficient evidence as to both friability and knowledge on all counts. The Court is mindful that in a motion for new trial, it may weigh the evidence and the credibility of the witnesses to determine whether a miscarriage of justice occurred. See Gabaldon, 91 F.3d at 93-94; see also Doc. 136 at 1-2. But even considering credibility, the Court does not conclude that the weight of evidence was against conviction. Accordingly, the Court denies Fritzel’s motion for a new trial based on insufficient evidence.

         B. Richard Herries’s testimony was not improper.

         Fritzel’s next argument for a new trial was also the subject of considerable discussion between the parties and the Court, as well as an order memorializing the dispute and the Court’s ruling. See Doc. 130. It focuses on testimony by Richard Herries.

         In his motion for a new trial, Fritzel argues that he initially “briefed and lost” a limine motion to exclude some emails sent by Herries, and accordingly did not object to admission of the emails during the trial because the government was only offering them to show that Fritzel had notice that the roof had asbestos-not that the roof actually had asbestos. Doc. 137 at 5. Fritzel claims that the government then “sought to elicit additional testimony from Mr. Herries during direct examination that greatly exceeded the scope of a conversation he had with Wes Lynch related to the emails.” Id. Fritzel now seeks a new trial on the grounds that Herries’s testimony went beyond notice and into the truth of the matter asserted. See Id . at 5-6. Fritzel also claims that he was “greatly prejudiced” by Herries’s testimony that Fritzel had an adverse reaction to the emails. Id. at 6. Fritzel claims that the Court later concluded that the prejudicial value of the testimony outweighed its probative value and prohibited the government from referencing the testimony in closing. Id. at 7.

         Some clarification is warranted. This issue involves two separate pieces of evidence: first, emails sent by Herries to, among others, Fritzel stating that the clubhouse roof had asbestos; and second, a conversation Herries had with Lynch about the emails where Lynch allegedly relayed a message from Fritzel that Herries ought not put such information in emails. The Court analyzes these separate pieces of evidence independently.

         Before trial, Fritzel filed a motion in limine to exclude the emails on grounds that they were hearsay and risked unfair prejudice. The government contended it was not offering the emails to show that there was asbestos in the roof (the truth of the matter asserted in the emails), but only to show that Fritzel had notice of the possibility that there was asbestos in the roof (a non-hearsay purpose). The Court took the motion in limine regarding the emails under advisement. But when the government sought to admit the emails at trial, Fritzel’s counsel stated that he had “reconsidered” and now had no objection to the emails. Tr. at 399:5-10 (first email); 402:1-5 (second email).

         The conversation was not the subject of any motion in limine. Although the indictment references the conversation, Doc. 1 at 7, neither party brought it to the Court’s attention as a possible point of contention. Fritzel did not raise any objection to admission of the conversation until the government asked Herries if he knew whether Fritzel actually received the emails. At that point, the following exchange took place:

Q. Okay. Did you get any confirmation back from anyone that confirmed that Mr. Wes Lynch and Mr. Fritzel ...