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UNITED STATES v. CUSACK

November 5, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN CUSACK, Defendant.



The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, District Judge.

 The indictment in this case charges that defendant, John Cusack, and unindicted codefendant Quality Steel, Inc. ("Quality Steel") knowingly and willfully violated specified standards promulgated pursuant to the Occupational Safety and Health Act ("OSHA"), thereby causing the death of employee Hugo Castro, in violation of 29 U.S.C. § 666(e) and 18 U.S.C. § 2.

 Section 666(e) of OSHA provides

 Section 2 of 18 U.S.C. provides:

 (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

 (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

 Defendant moves to dismiss the indictment asserting that he was not an employer within the meaning of § 666(e) and that under applicable case law he cannot be charged as an aider and abettor under 18 U.S.C. § 2.

 A. The Charges

 The indictment charges that Quality Steel was a New Jersey corporation engaged in the structural steel assembly business and that defendant was an officer and director of Quality Steel and in fact an employer as defined in § 652(5) of OSHA.

 According to the indictment Quality Steel was retained to erect the structural steel frame for a warehouse to be constructed in Riverdale, New Jersey, and defendant "supervised and directed the construction of the structural steel frame . . . by Quality Steel, Inc. employees."

 Pursuant to § 655 of OSHA the Secretary of Labor is empowered to issue occupational safety and health standards and has in fact issued standards which (i) require the installation of a center row of bolted bridging on steel joists 40 feet or more in length before slacking the hoisting line of the crane and (ii) prohibit placing loads on unbridged open web steel joists.

 Finally the indictment charges that from on or about September 13, 1989 to on or about September 21, 1989 at the Riverdale construction site defendant and Quality Steel knowingly and willfully violated the two standards referred to ...


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