United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
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. 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
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.
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).
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.
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).
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.
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
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.
The government presented sufficient evidence of friability
and knowledge on each count.
first argument for a new trial is that the government
presented insufficient evidence of friability and
insufficient evidence that Fritzel had knowledge of the
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.
The government presented evidence of friability.
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.”
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.
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.
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.
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.
The government presented sufficient evidence of
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.
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.
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
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.” 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).
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.
Richard Herries’s testimony was not improper.
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.
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.
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.
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
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 ...