I conclude that both the holdings and the dicta in Doig and Shear are sound. Their dicta lead to the conclusion that an officer's or director's role in a corporate entity (particularly a small one) may be so pervasive and total that the officer or director is in fact the corporation and is therefore an employer under § 666(e). To conclude that such a person cannot be held liable under OSHA's criminal provisions would strip § 666(e) of much of its force when applied to closely held corporations where, as in the present case, the owner and principal officer is also the person actively supervising the work in which OSHA regulations were violated. In such a case it would seem that Congress' intent is implemented by recognizing the reality of the situation and treating the officer and director as the employer.
This result in no way conflicts with the holdings of Doig and Shear. If an employee's role is not substantial enough to raise him to the level of an employer, he cannot be charged either as a principal under § 666(e) or as an aider and abettor under 18 U.S.C. § 2.
Relying upon the reasoning of the dissent in United States v. Dotterweich, 320 U.S. 277, 88 L. Ed. 48, 64 S. Ct. 134 (1943), defendant urges that the language of § 666(e) does not plainly and unmistakably impose criminal liability upon a corporate officer and that, in effect, it would deprive him of due process to charge and convict him of an offense under such a statute.
In Dotterweich the Supreme Court construed provisions of the Federal Food, Drug and Cosmetic Act which prohibited the introduction into interstate commerce of any adulterated or misbranded drug and which provided that "any person" violating the provision was guilty of a misdemeanor. Dotterweich, president of Buffalo Pharmacal Company, and the company were charged with a violation of the Act. Dotterweich, but not the company, was convicted. The Supreme Court held that Dotterweich was a "person" subject to the Act's criminal provisions and that even though consciousness of wrongdoing was totally wanting he could be held liable if it were shown that he shared responsibility in the business process resulting in the unlawful distribution.
The dissenting opinion of Justice Murphy (in which three other Justices concurred) stated that to charge a person who had no evil intention or consciousness of wrongdoing with a criminal act in the absence of clear statutory authority departs from fundamental principles of Anglo-Saxon jurisprudence and "is inconsistent with established canons of criminal law." 320 U.S. at 286.
The majority opinion in Dotterweich was followed in United States v. Park, 421 U.S. 658, 44 L. Ed. 2d 489, 95 S. Ct. 1903 (1975), and therefore defendant receives little comfort from the Dotterweich dissent. In point of fact the present case does not involve imposition of a criminal penalty upon a person who engaged in no active or knowing wrongdoing, as in Dotterweich and Park. Rather, to return a verdict of guilty against defendant a jury will not only have to find that his role in Quality Steel was so pervasive as to constitute him an employer, it will also have to find (i) that he, as such employer, was engaged in a business affecting commerce, (ii) that he violated, by act or omission, an OSHA regulation, (iii) that the violation of the regulation was willful and (iv) that the violation of the regulation caused the death of an employee.
I conclude that if the government can prove that defendant played the role in Quality Steel which is alleged in the indictment, he falls within the meaning of "employer" as used in § 666(e), and that this interpretation of the statute does not violate defendant's right to due process.
The issue will present itself whether the court or the jury should decide if defendant's role in Quality Steel constitutes him an employer under § 666(e). The district court in Pinkston-Hollar stated that it is a jury question. The Seventh Circuit in Doig stated that the determination is one for the court. In my opinion the court must make an initial determination whether the government has provided sufficient evidence from which the jury could find beyond a reasonable doubt that defendant's role was such that he was an employer. Ultimately, however, the matter is a question of fact, the resolution of which may require deciding subsidiary factual questions about defendant's role in the corporation. These questions, it seems to me, are for the jury to decide.
It is unnecessary to decide whether defendant can be charged and convicted as an aider and abettor under 18 U.S.C. § 2. Since I am following Doig and Shear, defendant cannot be convicted of aiding and abetting unless he is an employer. If he is an employer, he can be charged as a principal and there is no need to pursue the aiding and abetting charge. Thus it seems likely that § 2 will play no further role in this case.
I shall file an order denying defendant's motion to dismiss the indictment.
DATED: November 5, 1992
DICKERSON R. DEBEVOISE
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