United States v. Siemaszko

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0202p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-3167
v.
,
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Defendant-Appellant. -
ANDREW SIEMASZKO,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 06-00712-003—David A. Katz, District Judge.
Argued: January 19, 2010
Decided and Filed: July 15, 2010
Before: MERRITT, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL
ARGUED: Billie Pirner Garde, CLIFFORD & GARDE, LLP, Washington, D.C., for
Appellant. John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Billie Pirner Garde, CLIFFORD & GARDE,
LLP, Washington, D.C., Charles M. Boss, BOSS & VITOU CO., LPA, Maumee, Ohio, for
Appellant. John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
_________________

OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Andrew Siemaszko
appeals his conviction on three counts of concealing material facts and making false
statements to the Nuclear Regulatory Commission (“NRC”) in violation of 18 U.S.C.
§§ 1001 and 2. On appeal, Siemaszko argues that there was insufficient evidence to support
his convictions and that the government’s presentation of evidence and an improper jury

1
No. 09-3167 United States v. Siemaszko Page 2

instruction constructively amended the indictment. For the following reasons, we find that
there was sufficient evidence to support each of Siemaszko’s convictions and that Siemaszko
failed to establish that a constructive amendment of the indictment occurred. Therefore, we
affirm.

I. Factual and Procedural Background

This case arises out of an incident that occurred in 2001 at the Davis-Besse Nuclear
Power Station (“Davis-Besse” or “the plant”), which is located on the shores of Lake Erie
near Toledo, Ohio, and is owned and operated by FirstEnergy Nuclear Operating Company
(“FENOC”). Siemaszko began work at the plant in 1999 as the systems engineer in charge
of reactor coolant systems. After a safety incident at a similar plant prompted the NRC to
require inspections at all like plants by the end of 2001, FENOC successfully petitioned the
NRC to permit Davis-Besse to operate without interruption and thus delay inspection until
a scheduled refueling shutdown in spring 2002. Siemaszko’s involvement in preparing the
documents that Davis-Besse submitted to the NRC in furtherance of the delayed inspection
gave rise to his indictment on and subsequent conviction of three counts of concealing a
material fact and making false statements to a United States agency. During the delayed
inspection, Davis-Besse found five cracked nozzle heads and a football-sized cavity caused
by boric acid erosion in the head of the reactor. The finding prompted NRC investigations
into previous plant inspections and, eventually, the prosecution of Siemaszko.

A. Davis-Besse Nuclear Power Station

Davis-Besse is a two-loop, pressurized water reactor that is composed of a large
cylindrical chamber filled with coolant water (“the Reactor Pressure Vessel” or “RPV”).
Uranium rods at the core of the vessel fuel the nuclear reaction that heats the coolant water.
The nuclear reaction is controlled by introducing boric acid and/or control rods into the
reactor vessel. The control rods are inserted through sixty-nine penetration nozzles (tubes
that are approximately four inches in diameter) that penetrate through the head of the reactor
(approximately ten feet in diameter) into the reactor chamber. There is a gap between the
RPV head and reflective metal insulation that encloses closure flanges and studs. The gap
is narrowest at the top of the head, where it is only two inches wide. Control rod drive
mechanisms (“CRDMs”) allow the operators to lower the control rods into the reactor to
No. 09-3167 United States v. Siemaszko Page 3

control the rate of the nuclear reaction, and, thus, the energy output. The nozzles are welded
onto the vessel head using a J-groove on the underside of the steel head, which is 6.5 inches
thick.

The internal walls of the RPV and the underside of the RPV head are covered in non-
corrodible stainless steel, but the RPV and the external components are made of carbon steel,
which is corrodible by the boric acid in the coolant water if it escapes the RPV. This can
happen when the coolant water leaks through the flanges that connect the CRDMs to the
nozzles above the RPV head. Davis-Besse had a history of flange leakage and developed the
Boric Acid Corrosion Control Procedure (“BACCP”), which it implements during
inspections, to address this problem.

Davis-Besse operates in two-year fuel cycles and, therefore, shuts down the reactor
only during the biennial refueling outages (“RFOs”). Davis-Besse was scheduled to conduct
RFO13 (the thirteenth RFO conducted at Davis-Besse) in April 2002. In addition to
permitting refueling, the RFOs are the primary opportunity for inspections and maintenance
that cannot occur while the reactor is in operation. The RFOs at issue in this case are RFO10
(1996), RFO11 (1998), and RFO12 (2000). During an RFO, in order to visually inspect the
nozzles and the RPV head, operators must insert a camera through a series of eighteen “weep
holes” that are five by seven inches in size and that line the bottom of the RPV head above
the head flange connecting the RPV head to the RPV. Because of the limited accessibility
of the camera, it is impossible to visually inspect the very top of the RPV head and the
nozzles located there. Siemaszko was in charge of inspecting and cleaning the RPV head
during RFO12 in 2000, but was not present during the RFOs in 1996 and 1998. Prasoon
Goyal, another engineer at Davis-Besse, oversaw this task during RFO10 in 1996 and
reviewed the inspection reports following RFO11 and RFO12. Another engineer, Peter
Mainhardt, supervised inspection and cleaning during RFO11 in 1998. As of 2001, Goyal
continued to work at Davis-Besse as an engineer, and Mainhardt worked for FENOC as an
independent contractor preparing for RFO13.

The 1996 RPV head inspection lasted only one hour due to limitations on the
technicians’ exposure to radiation. During that inspection, Goyal directed two technicians
who were moving a camera on a pole across the vessel head. He watched on a monitor and
No. 09-3167 United States v. Siemaszko Page 4

narrated the camera location based on the “stud hole” numbers (the numbers on the studs
between the weep holes). The nozzles are not numbered, so this is the only way to determine
and document the condition of each nozzle based on the camera visual. Ed Chimahusky, a
systems engineer in charge of coolant systems from 1991 to 1997, testified at Siemaszko’s
trial that by using a camera through the weep holes, “[i]f you did the best you could, you
could probably look at . . . 70 percent of [the RPV head].” Goyal, in testimony and in a
Potential Condition Adverse to Quality report (“PCAQ”) submitted to superiors after
RFO10, estimated that he was able to inspect fifty or sixty percent of the head area in 1996
and noted that it was difficult to estimate the amount of boron deposits on the head because
of the limited visual inspection. In his PCAQ, Goyal attributed the boron deposits to flange
leaks. The PCAQ also noted several deposits ranging in color from white to brown to rust.
In both the PCAQ and in testimony, Goyal noted that the boron deposits and limited visual
access prevented full implementation of the BACCP. Consequently, in the PCAQ, Goyal
suggested modifications to the RPV head that would permit better access, such as installing
access doors. The modifications were never made.

Mainhardt conducted a similar inspection with the help of technicians during RFO11
in 1998. He testified that he found “[l]ots of flakes [of boric acid], . . . also some fist-sized
clumps . . . which would be particles all stuck together,” “one area that kind of was pasty
looking, . . . maybe like a paste that hardened there,” and “some streaks on the control ride
drive tubes [and around cracks in the insulation at the top of the head] that looked like milk.”
Goyal reviewed Mainhardt’s PCAQ report and again faulted flange leaks with causing the
boron deposits. The RFO11 PCAQ, signed by Goyal, stated that “most of the head area was
covered with an uneven layer of boric acid along with some large lumps of boric acid.” That
PCAQ referred back to the RFO10 PCAQ and the need for corrective action. The 1998
PCAQ also stated that “[t]he reactor vessel head was cleaned as best as we can” and noted
that the cleaning was video recorded.

Siemaszko conducted RFO12’s RPV head cleaning after attending a training session
on BACCP. Mainhardt, who inspected the outside of the RPV head personally, stated that
there were “heavy streams of red/brown boric acid . . . stream[ing] out of the [weep] holes”
and submitted photographs (“the red photographs”) and a PCAQ to his supervisors and, he
alleges, to the NRC’s resident inspector (who did not recall receiving it). The deposits
No. 09-3167 United States v. Siemaszko Page 5

prevented insertion of the camera into five of the weep holes and visually impaired
inspection through other weep holes. The deposits also required more elaborate cleaning
maneuvers than previous inspections, which had used a vacuum cleaner to remove boron
deposits. In 2000, Siemaszko directed the technicians to spray hot, distilled water onto the
RPV head to loosen the deposits and to use bars to knock off chunks of deposits and to flush
them out through the weep holes. One of the members of the cleaning crew testified that
they “[g]ot what [they] could get removed” but that deposits remained on the RPV head.
Greg Gibbs, a consultant brought to Davis-Besse to prepare for RFO13, reviewed the
cleaning tapes of RFO12 and testified that, although “the areas on the curvature of the
hemispherical head were essentially cleaned, . . . as you got up near the top, there were large
significant accumulations of boric acid near the top center of the head.” Gibbs noted that,
in parts, there were crystals that “were almost solid and almost touching the mirror
insulation, so you had . . . areas there at the top of the head that were just entirely covered
with boric acid.” Despite the incomplete cleaning during RFO12, an industry magazine
congratulated Siemaszko on removing the deposits. However, Siemaszko later admitted to
Goyal that the cleaning had been incomplete at the top of the head. The RFO12 PCAQ again
attributed the increased boron accumulation to flange leakage.

In a 2000 PCAQ, Siemaszko noted that the RPV head should be “free of boron
deposits” to adequately inspect the nozzles in accordance with an NRC letter requiring plants
to inspect the CRDMs adequately. Siemaszko put the RPV head on a restraint that required
action before the plant was put back into operation. His supervisor, David Geisen, removed
the restraint, however, stating that the RPV head would be cleaned of all boron deposits
before it was put online. It was not.

B. NRC Bulletin 2001-01

In 2001, small “popcorn” deposits of boric acid were found at the nozzle penetrations
of the reactor at the Oconee Nuclear Station in South Carolina, a nuclear plant of similar
design to Davis-Besse. Earlier cracks had been lengthwise, but the 2001 cracks were
circumferential (around the nozzle), and above the J-groove weld and within the “pressure
boundary.” This posed a risk that the nozzle would blow out of the vessel head and cause
significant loss of coolant and structural threats, including possible plant safety failure. In
No. 09-3167 United States v. Siemaszko Page 6

the early 1990s, the NRC determined that nozzles were susceptible to “stress corrosion
cracking” on the nozzles and on the welding but determined that the cracks did not pose an
imminent safety threat because the NRC presumed that any leakage would be readily
apparent before threatening the structural integrity of the reactor or catastrophic failure. The
leakages occur when coolant escapes the containment vessel within the reactor and either
exits the reactor or comes into contact with the hot vessel head. The result is that the coolant
flashes to steam and the boric acid within the coolant fluid is left as a deposit on the reactor
head near the leak. In 1997, the NRC advised licensees of this type of reactor to develop
programs to periodically inspect the vessel head penetrations and look for cracks, but,
because it was not yet aware of the problem, did not warn about the link between popcorn
deposits and circumferential cracking.

In light of the Oconee incident and similar experiences in the French nuclear
industry, on August 3, 2001, the NRC issued NRC Bulletin 2001-01 (“NRC 2001-01” or
“the Bulletin”), entitled “Circumferential Cracking of Reactor Pressure Vessel Head
Penetration Nozzles.” The Bulletin outlined which plants had a “high susceptibility” to
nozzle stress cracking, and the NRC’s criteria indicated that Davis-Besse was among them.
The Bulletin also requested information from affected nuclear power stations such as Davis-
Besse. The Bulletin stated that such plants “need to use a qualified visual examination of
100% of the . . . nozzles,” that the inspection “should be able to reliably detect and
accurately characterize leakage from cracking,” and that “the effectiveness of the . . .
examination should not be compromised by the presence of insulation, existing deposits on
the RPV head, or other factors that could interfere with the detection of leakage.” Due to the
risks, the NRC wanted all high-risk plants such as Davis-Besse to shut down and conduct
a complete inspection for nozzle cracks by December 31, 2001. Because of the costs
involved in an early and unscheduled shutdown, Davis-Besse wanted to continue operation
until its scheduled RFO13 in April 2002.

The Bulletin required plants to provide detailed information about susceptibility to
cracking and previous inspections within thirty days. As part of that information, the NRC
directed high-risk plants that, “[i]f [the plant’s] future inspection plans do not include
performing inspections before December 31, 2001, [the plant must] provide [the] basis for
concluding that the regulatory requirements discussed in the Applicable Regulatory
No. 09-3167 United States v. Siemaszko Page 7

Requirements section will continue to be met until the inspections are performed.” Section
1.d. required all such plants to provide:

[A] description of the [vessel head penetration] nozzle and RPV head
inspections (type, scope, qualification requirements, and acceptance criteria)
that have been performed at your plant(s) in the past 4 years, and the
findings. Include a description of any limitations (insulation or other
impediments) to accessibility of the bare metal of the RPV head for visual
examinations.

C. Davis-Besse’s Submissions to the NRC

In accordance with federal regulations governing the nuclear industry, Davis-Besse
was obligated to respond to the NRC Bulletin with “written statements, signed under oath
or affirmation.” 10 C.F.R. § 50.54(f); see also 42 U.S.C. § 2011 et seq. Federal regulations
also require that all information provided to the NRC “be complete and accurate in all
material respects.” 10 C.F.R. § 50.9(a). Davis-Besse hired Rodney Cook to coordinate the
response to NRC 2001-01. Between September 4 and November 30, 2001, FENOC
submitted a series of serial letters (“SLs”) containing the information requested in the
Bulletin. Various conference calls and meetings between FENOC employees and the NRC
also took place between September 4 and December 4, 2001, when the NRC finally
permitted Davis-Besse to continue operation until an accelerated shutdown for RFO13 in
February 2002. The five letters at issue in this case and charged to contain false statements
in the indictment against Siemaszko, Geisen, and Cook are: SL 2731, September 4, 2001
(count 1); SL 2735, October 17, 2001 (count 2); SL 2741, October 30, 2001 (count 3); SL
2744, October 30, 2001 (count 4); and SL 2745, November 1, 2001 (count 5). Count 1 also
included allegations of concealment of material facts in several of the serial letters and
meetings betwen FENOC and the NRC. Siemaszko was convicted of the first, second, and
fifth counts of the indictment.

In approving Davis-Besse’s continued operation until RFO13, the NRC relied on all
of the serial letters:

Based on the information provided in your responses [dated September 4,
2001, as supplemented by letters dated October 17, October 30,
November 1, and November 30, 2001] and the information available to the
staff regarding the industry experience with VHP nozzle cracking, the staff
No. 09-3167 United States v. Siemaszko Page 8

finds that you have provided sufficient information to justify operation until
February 16, 2002, at which time you will shut down the [plant] . . . and
perform VHP nozzle inspections as discussed in your letter dated
November 30, 2001. The commitments contained in your letter dated
November 30, 2001, were integral to the staff’s finding.

The serial letter submitted on November 30, 2001, SL 2747, was not readily discoverable
in the record.

FENOC’s first submission to the NRC in response to NRC 2001-01 was SL 2731 on
September 4, 2001. Siemaszko was tasked with reviewing the inspection tapes from
previous RFOs and providing information for NRC 2001-01’s section 1.d. inquiry, Cook was
in charge of putting together the information, and Goyal was to review the submission.
Siemaszko sent a draft of the section to Goyal, who returned comments on August 9, 2001.
In that draft, Siemaszko prefaced his response with: “The response is limited in scope to
discuss the issues associate [sic] with the type, scope, qualification requirements, and
acceptance criteria for the Reactor Pressure Vessel Head Inspections within the last 4 years.”
The draft stated, inter alia, that a guidance procedure other than BACCP was used in RFO11
and RFO12, that “[t]he head cleaning was limited by the opening size of the weep holes,”
and that, during RFO12, “[n]o evidence of nozzle leakage was detected. 95% of the nozzles
were inspected.” Goyal questioned the ninety-five-percent assertion given the amount of
boron visible on the top of the RPV head during RFO12, and Siemaszko subsequently sent
another draft asserting that “[n]o visible evidence of nozzle leakage was detected[, m]ajority
of nozzles were inspected,” and stating that the procedure used was the BACCP. Later, after
Cook questioned the meaning of “majority,” Siemaszko stated that ninety percent of the
nozzles had been inspected. Drafts circulated to Siemaszko on August 22 and 23, 2001,
contained a ninety-percent visual inspection assertion. Goyal expressed concern regarding
the ninety-percent claim in emails to Cook and Siemaszko, leading Cook to delete the ninety-
percent statement. In emails copied or sent to Siemaszko, Goyal also questioned the
assertion in the draft that all of the CRDMs were inspected given the amount of boric acid
deposits obstructing the view and also cautioned that a notation should be included stating
that the weep holes and the two-inch gap at the top of the RPV head impeded a 100-percent
visual examination.
No. 09-3167 United States v. Siemaszko Page 9

The final letter included a statement that “a gap exists between the RPV head and
insulation, the minimum . . . is approximately 2 inches, and does not impede visual
inspection.” The letter also asserted that Davis-Besse’s BACCP procedure had been utilized
in both inspections and that “[t]he scope of the visual inspection was to inspect the bare
metal RPV head area that was accessible through the weep holes to identify any boric acid
leaks/deposits.” Siemaszko’s limiting preface was not included in the later drafts, which also
incorporated information added by others editing the document, nor was the limiting preface
included in the final letter to the NRC. SL 2731 also described the boron deposits
discovered during the 1998 inspection as an “uneven layer of boric acid deposits scattered
over the head . . . [and] some lumps of boron, with the color varying from brown to white.”
Of the 2000 inspections, SL 2731 noted that “[s]ome boric acid crystals had accumulated on
the RPV head insulation beneath the leaking flanges. These deposits were cleaned
(vacuumed),” that “[i]nspection of the RPV head/nozzles area indicated some accumulation
of boric acid deposits,” and that the RPV head area was cleaned with demineralized water
to the greatest extent possible.” Referencing the review of the videotaped 1998 and 2000
inspections conducted in May 2001, following Oconee, SL 2731 also noted that “indications
such as those that would result from RPV head penetration leakage [like at Oconee] were not
evident.” SL 2731 also asserted that a full inspection, unimpeded by boric deposits, would
take place during RFO13.

The “green sheet”—the cover document listing contributors and allowing space for
each to initial and date when he or she received and approved the document to be sent to the
NRC—for SL 2731 listed Siemaszko as “responsible engineer—plant engineering,” but “see
attached” was noted in place of initials. The FENOC secretary in charge of maintaining the
green sheets testified at trial that attachment sheets often were used for signatures but she
could not recall whether that had happened in this instance. Goyal was listed as “responsible
engineer—mechanical design” and testified that he refused to sign the green sheet until Cook
and Siemaszko assured him in person that there was “no problem” and that Siemaszko could
“see the whole head.”

On October 17, 2001, FENOC sent SL 2735 to the NRC after the NRC notified the
plant that SL 2731 was not entirely responsive to NRC 2001-01 and was insufficient to
guarantee safe operation until RFO13. Siemaszko, as “plant engineering—systems
No. 09-3167 United States v. Siemaszko Page 10

engineer,” initialed and dated the green sheet for SL 2735. He maintains, however, that he
signed the green sheet before the submission was finalized and never saw the final version
sent to the NRC. SL 2735 contained a table detailing the status of each nozzle at each
inspection (“nozzle inspection table”). The table indicated whether each nozzle had been
recorded and whether leaks were apparent on each nozzle. After the NRC’s request for more
information, Geisen had asked Siemaszko to review the inspection videos and to prepare the
table. In an interview with investigators in 2002, Siemaszko stated that he spent “weeks”
preparing the table.

According to Siemaszko, after submitting a draft table including only the 1998 and
2000 inspections, he was told to include the 1996 inspection. Because he had never seen the
head in 1996, he relied on information from others to complete the table. He included a note
addressing the scope of the 1996 inspection:

100% of nozzles were inspected by visual examination. Since the video was
void of head orientation narration, each specific nozzle view could not be
correlated by nozzle number. Nozzles 1, 2, 3, and 4 which do not have
sufficient interference gap were excluded. The remaining 65 nozzles did not
show any evidence of leakage.

For the 1998 and 2000 inspections, each nozzle had one of the following notations: (1) “no
leak observed,” indicating that a visual inspection was sufficient and no video record was
needed; (2) “no leak recorded,” indicating that the nozzle inspection was recorded on the
video; or (3) “flange leak evident,” indicating that the nozzles were not visible due to boric
acid deposits.

Siemaszko sent the table to Goyal and Cook on October 17, 2001. In a deposition
after he was fired, Siemaszko stated that before he emailed the table to Goyal and Cook, he
took the table to Geisen and Dale Miller, a compliance supervisor, on a diskette and that the
three completed the table together. Siemaszko maintained that Miller and Geisen dictated
the additional footnotes. Evidence revealed that Siemaszko did send the document to himself
from a borrowed work station before sending it to Goyal and Cook, but, at trial, Miller could
not remember being involved in drafting the footnotes and Geisen did not testify. Miller did
recall editing out the last two sentences of the footnote at a later date. Goyal also testified
No. 09-3167 United States v. Siemaszko Page 11

that he notified Siemaszko that he had not seen 100 percent of the nozzles in 1996 as
indicated in the table.

The version of SL 2735 submitted to the NRC contained the nozzle inspection table
as Attachment 2, with the footnote as to the 1996 inspections stating that “the entire RPV
head was inspected. Since the video was void of head orientation narration, each specific
nozzle view could not be correlated.” The sentences lined out by Miller included the caveat
about four of the nozzles being obscured. The letter also stated that “50 of 69 nozzles” were
“viewed” in 1998, “45 of 69” were “viewed” in 2000, and the reason some nozzles were not
viewed in 2000 was because they were “obscured by boric acid crystal deposits” that were
“clearly attributable to leaking . . . flanges from the center CRDMs.” The letter noted that
the visual inspections in 1996, at which time sixty-five of the sixty-nine nozzles were
inspected, and in 1998 and 2000 “consisted of a whole head visual inspection” as required
by the BACCP. The document also asserted that none of the videos indicated “boric acid
chrystal deposits that would have been attributed to leakage from the CRDM nozzle
penetrations.”

Based on the assertion that all nozzles were leak-free during RFO10 as demonstrated
in the table, FENOC conducted a risk analysis that determined that the earliest a crack could
develop was May 1996, after RFO10 concluded. In the worst-case scenario, that crack
would take seven-and-one-half years to grow to beyond a safe size, and, therefore, Davis-
Besse could safely operate until RFO13. This risk analysis formed the basis of Davis-
Besse’s representations to the NRC that a delayed inspection was safe.

On October 30, 2001, FENOC submitted two further serial letters to the NRC, both
of which contained the nozzle inspection table. SL 2741 included a risk analysis and
reiterated that the inspections in 1996, 1998, and 2000 constituted a “whole head visual
inspection” of the “bare head” in accordance with BACCP procedure. SL 2744 contained
still photographs from past inspection videos. Siemaszko provided the “representative”
photographs, and Geisen wrote the captions. Siemaszko was not included on the green
sheets for these letters.

On November 1, 2001, FENOC submitted SL 2745, which contained a “plant
specific assessment” expanding on the risk assessment provided in SL 2741. Siemaszko was
No. 09-3167 United States v. Siemaszko Page 12

not listed on the green sheet. Kendall Byrd, who was a senior engineer in the safety analysis
and probabilistic safety assessment group in 2001, prepared SL 2745 and testified that, in
conducting the risk assessment, he credited all nozzles but four as being free from popcorn
deposits at RFO10 in 1996 based on Siemaszko’s nozzle inspection table, which stated that
the “entire head” was inspected in 1996, and information provided in SL 2731, which stated
that four nozzles were not visible in 1996. Byrd also spoke with Goyal, but not in relation
to preparing SL 2745, regarding Goyal’s 1996 inspection and whether “he had any
discomfort regarding where we were going with [the responses].” Byrd did not have any
conversations with Siemaszko in preparation for SL 2745.

Siemaszko also met with the NRC on November 14, 2001, to discuss the inspections.
Those present included Byrd and Dr. Alan Hiser, an NRC staff member. Byrd testified that
Siemaszko “did state that he felt I believe it was secure in his heart regarding the condition
of the head.” Hiser “recall[ed], . . . not verbatim, . . . something along the lines of he would
swear on the stack of bibles as to how good the inspection and the activities that they
performed in 2000 were.”

D. Procedural Background

During the resulting 2002 inspection, the plant discovered a large cavity in the head
of the reactor created by boric acid eroding the steel. The erosion had penetrated through
the carbon steel wall, leaving only the 0.24" to 0.38" stainless steel lining of the reactor head
and was located near five cracked nozzles, four of which were at the very top of the reactor
head (nozzles 1,2, 3, and 5). The cavity was discovered only by chance when one of the
cracked nozzles moved. As a result of the ensuing internal investigation, Davis-Besse fired
Siemaszko and Goyal in September 2002 because of their roles in providing inaccurate and
misleading information to the NRC in the serial letters.

In January 2006, a grand jury indicted Geisen, Siemaszko, and Cook on five counts
1
of violating 18 U.S.C. §§ 1001 and 2. Goyal and three other Davis-Besse employees
signed a deferred prosecution agreement. The indictment charged that based on the
statements made in the serial letters submitted to the NRC and two public meetings, the

1
Cook was indicted on all counts except count 4.
No. 09-3167 United States v. Siemaszko Page 13

NRC permitted Davis-Besse to operate beyond December 31, 2001. Count 1 charged
that the three “did knowingly and willfully conceal and cover up, and cause to be
concealed and covered up, by tricks, schemes and devices, material facts in a matter
within the jurisdiction of the executive branch of the government of the United States,
to wit, the condition of Davis-Besse’s reactor vessel head, and the nature and findings
of previous inspections of the reactor vessel head.” The detailed indictment regarding
count 1 listed SL 2731, the other serial letters, and various meetings with NRC
authorities between September and December 2001 in which the three defendants
participated in various ways. Counts 2 through 5 alleged that Siemaszko “did knowingly
and willfully make, use, and cause others to make and use a false writing,” including:
(count 2) SL 2735, containing five allegedly false statements; (count 3) SL 2741,
containing five allegedly false statements; and (count 4) SL 2744, containing six
allegedly false statements. Count 5 alleged that Siemaszko “did knowingly and willfully
cause others to make and use a false writing.”

Siemaszko’s trial subsequently was severed from that of Geisen and Cook.2 At
the trial, which followed Geisen’s and Cook’s, the key issue was whether Siemaszko had
the requisite intent to be criminally liable under § 1001. Mainhardt testified that during
the NRC’s investigation and Davis-Besse’s internal investigation, he spoke to Siemaszko
regarding his representations that the head had been completely cleaned in 2000.
Mainhardt asked Siemaszko why he had said that, and Siemaszko replied “I just told you
that so you wouldn’t bother me anymore.” Mainhardt also testified that Siemaszko was
worried that the NRC would count all of the nozzles after it was given a diskette of the
video inspections “because all the nozzles aren’t there.” Goyal testified that in a phone
conversation with Siemaszko in October 2002, after both had been fired, Goyal
expressed concern about the “100 percent inspection of the head” assertions. Goyal
testified that Siemaszko replied, “We will say you inspected 60 percent; I inspected 40
percent. Licensing wanted 100 percent.”

2
We decided Geisen’s appeal this day in a separate opinion. See United States v. Geisen, No. 08-
3655, — F.3d — (6th Cir. 2010).
No. 09-3167 United States v. Siemaszko Page 14

During investigations into the Davis-Besse incident in 2002, the NRC
interviewed Siemaszko in the presence of counsel. Interviews with Siemaszko were also
conducted by Eric Calhoun of the United States Office of Special Counsel regarding a
whistle-blower complaint that Siemaszko had filed against FENOC. In his testimony at
Siemaszko’s trial, Calhoun stated that “FirstEnergy had alleged that he provided
inaccurate and/or misleading information to the NRC. And I asked him about that as
well. He said that that was true.” Calhoun continued, “I asked him why, and he said that
he was a hero in the eyes of the company and that he had received a $1,000 bonus” and
indicated that others had a greater role than he did. Calhoun testified that he was
surprised that Siemaszko would say this because it defeated his whistle-blower
complaint and suggested criminal liability. Calhoun testified that Siemaszko’s attorney
never addressed or attempted to retract the admission.

To demonstrate the falsity of the statements included in the serial letters, the
government introduced the inspection videos and summaries of the prior cleanings into
evidence through the expert testimony of Melvin Holmberg. Holmberg, who conducted
an audit of the inspections and created a “map” of the RPV head identifying each nozzle
by number, walked the jury through the various videos. He identified which nozzles
were visible during each inspection and to what extent the view of each nozzle in each
inspection was sufficient to enable the “qualified visual examination” (“QVE”) required
by NRC 2001-01. In the diagrams he produced, he also identified which of those
nozzles were designated by FENOC as “no leak observed,” i.e., “visual inspection
satisfactory, no video record required,” and which were designated as affected by flange
leakages. Summarizing Holmberg’s results, the government included in its brief before
this court the following table illustrating how many of the nozzles were visible for
inspection:

Inspector Nozzles Visible Nozzles Subject to
(total out of 69) QVE (total out of 69)
RFO10 (1996) Goyal 51 28
RFO11 (1998) Mainhardt 43 18
No. 09-3167 United States v. Siemaszko Page 15

RFO12 (2000) Siemaszko 23 5

This is inconsistent with the assertions made in SL 2735 that “50 of 69 nozzles” were
visibly inspected in 1998 and “45 of 69” were visibly inspected in 2000, although the
serial letter did not differentiate between the QVE required by NRC 2001-01 and
“viewed.”

The jury found Siemaszko guilty of counts 1, 2, and 5. The district court denied
Siemaszko’s motion for acquittal and for a new trial, citing the testimony of Goyal and
Calhoun as particularly “damning.” The district court sentenced him to three years of
probation for each count, to run concurrently, assessed him a $4,500 fine, and prohibited
him from working in the nuclear industry during his probation without the approval of
his probation officer.

II. Sufficiency of the Evidence Claims

We review a district court’s refusal to grant a motion for judgment of acquittal
and a defendant’s claim of insufficiency of the evidence de novo. See United States v.
Gunter, 551 F.3d 472, 482 (6th Cir. 2009) (sufficiency of the evidence claims); United
States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002) (motions of acquittal). “[T]he relevant
question is whether, after 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); see also United States v. Dedman, 527 F.3d 577, 592 (6th Cir.
2008).

All conflicts in the testimony are resolved in favor of the government, and every
reasonable inference is drawn in its favor. United States v. Bashaw, 982 F.2d 168, 171
(6th Cir. 1992). In considering the claim, “we do not weigh the evidence presented,
consider the credibility of witnesses, or substitute our judgment for that of the jury.”
United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 588–89 (6th Cir. 1999) (citing
United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)). This standard applies even
if the evidence is purely circumstantial. See Kone, 307 F.3d at 434. Consequently, in
No. 09-3167 United States v. Siemaszko Page 16

raising a sufficiency of the evidence claim, a defendant “bears a very heavy burden.”
United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999).

In order to convict a defendant for making false statements to a federal agency
in violation of 18 U.S.C. § 1001, the government must prove: “(1) the defendant made
a statement; (2) the statement is false or fraudulent; (3) the statement is material; (4) the
defendant made the statement knowingly and willfully; and (5) the statement pertained
to an activity within the jurisdiction of a federal agency.” Dedman, 527 F.3d at 598
(quoting United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998)). Only the last element
is not disputed. When, as in the instant case, the indictment alleges multiple fraudulent
statements for each count, this court must “uphold a conviction where there was
sufficient evidence for at least one of the alleged false statements” for each count. Id.
(emphasis added). After reviewing the extensive record in this case, we find that the
government presented sufficient evidence to sustain Siemaszko’s convictions on all three
counts.

A. Count 1—Concealing Material Facts

Count 1 of the indictment charged Siemaszko with “knowingly and willfully
conceal[ing] and cover[ing] up, and caus[ing] to be concealed and covered up, by tricks,
schemes and devices, material facts in a matter within the jurisdiction of the [NRC], to
wit, the condition of Davis-Besse’s [RPV] head, and the nature and findings of previous
inspections of the [RPV] head” in violation of §§ 1001 and 2. The “tricks, schemes and
devices” that the indictment charges to Siemaszko were: (1) drafting parts of SL 2731
that (a) “deliberately omitted critical facts concerning the inspections and limitations on
accessibility” and (b) “falsely stated that the inspections complied with . . . Davis
Besse’s [BACCP]”; and (2) compiling the nozzle inspection table, included in SLs 2735,
2741, and 2744, which falsely reported that (a) the entire RPV head was inspected in
1996, (b) that the 1996 inspection video was “void of head orientation narration,” and
(c) that in 1998, “satisfactory” inspection results were obtained for the ten nozzles for
which “no video record was required.” We must uphold the conviction on this count
No. 09-3167 United States v. Siemaszko Page 17

unless we find that there was insufficient evidence for a jury to convict on any one of
these six assertions. See id. at 598.

Siemaszko argues that the limited information he provided for SL 2731 as a draft
response to section 1.d. of NRC 2001-01 was accurate and merely responded to Goyal’s
request. He argues that any false information was the result of an “iterative process” by
those who subsequently edited and altered the text without his final review. However,
the government entered sufficient evidence for a rational trier of fact to find that the
original drafts forwarded by Siemaszko to Goyal were already misleading and
inaccurate, that Siemaszko did not act to correct material omissions in future drafts that
were forwarded to him for review, and that Siemaszko acted knowingly and willfully.
Additionally, §§ 1001 and 2 prohibit willfully causing the concealment of material facts,
and a rational juror could conclude that Siemaszko knew that others were relying on his
drafts and representations of the prior inspections—which turned out to be false,
misleading, and incomplete in some material respects—in editing and submitting the
serial letters.

In section 1.d. of NRC 2001-01, the NRC required full disclosure of the scope
of prior inspections and any impediments—whether insulation or deposits—to a full
“bare metal” visual inspection. Siemaszko’s first draft of SL 2731 stated that ninety-five
percent of the nozzles were inspected in 2000, and his second draft—in response to
Goyal’s unease with that representation—stated that the “majority” of the nozzles were
inspected. It is undisputed that Siemaszko oversaw the 2000 inspection and had seen the
videos of the inspections that revealed significant visual impediments. The jury also saw
the inspection videos, including the visibility impediments, and reviewed Holmberg’s
audit report that estimated that only twenty-three of the sixty-nine nozzles were visible
in 2000. The government also presented evidence that the earlier drafts did not include
information that the NRC considered critical, such as descriptions or photographs of the
large boron deposits found in 2000, including the “red photographs” taken during
RFO12. Siemaszko argues that he could not have “concealed” the “red photographs”
because they already had been submitted to the NRC resident inspector in 2000, but a
No. 09-3167 United States v. Siemaszko Page 18

juror could reasonably consider their omission as concealing the status of the RPV head
in SL 2731 when taken in conjunction with other understatements that the government
pointed out at trial. For example, Siemaszko’s draft reported “some accumulation of
boric acid” in 2000, while Siemaszko had seen the “lava-like” flows of boric acid on the
RPV head in 2000. Siemaszko also stated that the “[RPV] head was cleaned with the
demineralized water as best as it could be,” but did not state that bars were used to knock
off chunks of deposits and that significant deposits remained at the top of the RPV head
after cleaning.

Siemaszko also argues that there is no evidence that he was asked to review the
final draft of SL 2731 or to sign the green sheet and so did not make any statements
directly to the NRC in that letter. Whether Siemaszko signed the green sheet via
attachment remains unclear, as the secretary in charge of circulating it testified that “see
attached” could indicate initialing on a separate sheet but could not recall if Siemaszko
had done so in this case. However, there is sufficient evidence that Siemaszko was
involved in the final submission of the letter and that material language from his original
draft remained in the submitted SL 2731. Goyal testified that after he expressed doubts
about signing the green sheet, because of his concerns regarding the lack of any
description of impediments to a complete, 100-percent inspection of the RPV head,
Siemaszko and Cook came to his cubicle to urge him to sign. Goyal testified that he
eventually signed the green sheet only after Siemaszko personally assured him that he
had seen the entire head in his review of the video. A rational juror could infer from this
evidence that the relevant portions of SL 2731 constituted a statement by Siemaszko
himself and that, in any case, Siemaszko caused Goyal to sign the green sheet and
thereby make the relevant statements to the NRC.

Furthermore, the government provided evidence to suggest that Siemaszko had
knowledge of the final content of SL 2731. The government presented evidence
suggesting that Siemaszko reviewed the results of the editing after he submitted the
revised draft to Goyal on August 9, 2001, but before it was sent to the NRC on
September 4, 2001. The record indicates that Cook and Goyal had discussed—over
No. 09-3167 United States v. Siemaszko Page 19

email and in person—the section 1.d. response and the entire draft with Siemaszko,
including whether the two-inch gap at the top of the RPV head impeded inspections
(Siemaszko’s draft and SL 2731 falsely stated that it did not) and whether the claim of
ninety-percent inspection in 2000 was accurate. Drafts of SL 2731 were circulated to
Siemaszko on August 22 and 23, 2001. On August 27, 2001, Cook sent Siemaszko and
others a draft that is in all material and relevant parts identical to that submitted to the
NRC. In the email accompanying the draft, Cook stated that the time for their review
was “of the essence,” requested comments, and noted an added caveat to the first
paragraph of section 1.d.: “‘The scope of the visual inspection was to inspect the bare
metal RPV head area that was accessible through the weep holes to identify any boric
acid leaks/deposits.’ This is to ensure that we state that not all of the head was accessible
or inspected for inspection for whatever reason.” The government also presented
evidence that Siemaszko was involved in changes to commitments in SL 2731 regarding
the intended scope of RFO13 up until August 30, 2001.

A rational juror, therefore, could infer that Siemaszko willfully and knowingly
concealed or caused to be concealed material facts in SL 2731 regarding the prior
impediments to complete inspections, that he reviewed the final document sent to the
NRC after editing, was aware of the changes made, and did not object to them.
Therefore, the evidence presented at trial sustains Siemaszko’s conviction for count 1
based on the first allegation in the indictment.

Although we need not inquire into the sufficiency of the evidence with respect
to the remaining allegations contained in count 1 in order to affirm Siemaszko’s
conviction, a discussion of Siemaszko’s participation in the creation of the misleading
nozzle inspection chart bolsters our conclusion that the government presented sufficient
evidence to convict Siemaszko and demonstrates the degree of his involvement in
concealing the limited nature of prior inspections and the extent of the boron buildup
discovered in those inspections.

Because there was no full “bare metal” visualization of the entire RPV
head—and all sixty-nine nozzles—in 1998 or 2000, Davis-Besse needed to demonstrate
No. 09-3167 United States v. Siemaszko Page 20

to the NRC that the 1996 inspection was complete and revealed no leakage or deposits
that could progress to significant circumferential cracking before the planned shutdown
in April 2002. The government argues that the underlying message of Davis-Besse’s
second letter to the NRC, SL 2735, was “that if there was stress cracking at Davis-Besse,
the cracking had not progressed sufficiently to allow leakage in 1996 and,
therefore—based on crack-growth modeling—any cracking would not progress to a
point of significant concern before [RFO13].” The government further argues that the
nozzle inspection table, with its footnote stating that “[i]n 1996 during 10 RFO, the
entire RPV head was inspected,” and a statement in the body of the letter that no leakage
had been identified in 1996, were the key elements of FENOC’s representation—and
misrepresentation—to the NRC in SL 2735. Siemaszko, however, argues that there is
no evidence that he was the “origin” of the 1996 footnote; that the footnote was edited
and altered by Miller in the licensing department; and that there was no evidence that
Siemaszko ever reviewed the final SL 2735. While a rational jury could agree with
Siemaszko, there is sufficient evidence that he participated and acquiesced in the
drafting of the additional footnote, that he knew that the nozzle inspection table, which
he prepared in draft form, concealed the incomplete nature of the prior inspections and
the extent of boron accumulation, and that he did review the final document.

Siemaszko told the NRC’s special agent conducting the investigation that he had
spent “weeks” preparing the table and reviewing the inspection tapes and that he had
relied on others for information on the 1996 inspection. He also stated in an interview
with NRC special agents that he sat down with Geisen and Miller to complete the table
and that Miller and Geisen had dictated the footnotes. Siemaszko, therefore, was aware
of and did not object to the 100-percent inspection assertion and, the government argued
at trial, after reviewing the video of the inspection he would have been aware that at least
eighteen nozzles were not visible in the video. Goyal testified that, after he saw a draft
of the table, he reminded Siemaszko that he had not seen 100 percent of the RPV head,
the language was subsequently changed to “the entire RPV head.” While evidence
supports Siemaszko’s assertion that it was Miller who removed the last two lines of the
original footnote that stated that four nozzles were not included in the 1996 inspection,
No. 09-3167 United States v. Siemaszko Page 21

the original footnote—which Siemaszko credited to Geisen and Miller—did state falsely
that “100% of nozzles were inspected by visual examination.” The jury could have
found that Geisen and Miller relied on Siemaszko’s representations regarding the
inspection in crafting the footnote, and Siemaszko did not object to their
mischaracterization of the inspection’s scope. Furthermore, the information regarding
the four nozzles was included in the body of SL 2735. Moreover, Siemaszko signed the
green sheet for SL 2735, implying that he had reviewed its final content.

The government also argued at trial that Siemaszko’s statement in the SL 2735
footnote that “[s]ince the video was void of head orientation narration, each specific
nozzle view could not be correlated” was an attempt to conceal the fact that the entire
RPV head had not been inspected in 1996. If Siemaszko had followed the method of
documenting each nozzle by looking at videos of the inspection, he could not have
completed the table for 1996. A blanket assertion as to the absence of head orientation
narration, therefore, meant that he need not reveal the impediments to a full visualization
even in 1996. Siemaszko counters that he did not have the knowledge or expertise to
interpret the orientation on the video because he did not know which nozzle he was
looking at in correlation with the numbers. Circumstantial evidence, however, suggests
otherwise.

The 1996 video, including narration, was played for the jury. Holmberg testified
that in performing his audit of the 1996 inspection video, he had used the stud hole
numbers and other clues to compile a map of the nozzles by number and demonstrated
the method to the jury. Goyal, who supervised the 1996 video inspection, testified that
the video contained head orientation narration because the technicians had called out the
stud numbers when inserting the camera into the weep holes. Goyal also testified that
Siemaszko had called him to ask about the stud numbers recited on the video, although
Goyal could not recall their meaning at that time. However, the government entered into
evidence a map of the RPV head that Siemaszko had used to plot the inspections that
indicated the stud hole numbers, demonstrating that he was aware of the numbers’
meaning and that there was an adequate method of charting each nozzle from the 1996
No. 09-3167 United States v. Siemaszko Page 22

video. These inconsistencies could lead a rational jury to conclude that Siemaszko knew
that the 1996 video was not “void of head orientation narration” and that he knew this
at the time that he drafted the nozzle inspection table submitted to the NRC.

Siemaszko next argues that any inaccuracies in his draft submissions were caused
by the lack of skills and guidance necessary to complete the table and not because of
improper intent. He rightly asserts that incompetence or negligence are not sufficient
to convict under § 1001 and that statements made innocently or inadvertently are not
false statements under § 1001. See United States v. Brown, 151 F.3d 476, 486 (6th Cir.
1998). However, the government submitted evidence to the jury that Siemaszko was
aware of the inaccuracies and had a motive to portray prior inspections as complete in
order to keep the plant running until RFO13.

Siemaszko reported in the draft of the table—and it was included in the final SL
2735—that ten nozzles were not visible on the video of the inspection in 1998 (RFO11),
but the table listed those nozzles as having “satisfactory” visual inspection with no leaks
observed and that “no video record [was] required.” Mainhardt, who conducted the RPV
head inspection in 1998, could not remember conducting any of the inspection without
recording it and also testified that Siemaszko never consulted him when compiling the
table, even though he was working for FENOC at the time. The government also argued
that Siemaszko knew that there were no unrecorded parts of the inspection because he
had seen the videos, which depicted complete inspections. The government argues,
therefore, that the status of “no video record required” was fabricated by Siemaszko to
conceal the lack of documentation of inspections of certain nozzles in the table.

The government also provided evidence that Siemaszko was worried about the
NRC investigation that resulted from RFO13 in 2002 and argued that his concern was
evidence that he knew that his representations were false, incomplete, and misleading.
For example, Mainhardt testified that Siemaszko had been worried in 2002 that the NRC
would count the nozzles on the videos “because all the nozzles aren’t there.” Also,
Goyal testified that after he and Siemaszko were fired, Siemaszko spoke to him about
what they would say to the NRC regarding certain assertions in the serial letters. The
No. 09-3167 United States v. Siemaszko Page 23

jury also heard testimony that Siemaszko admitted to the whistle-blower investigator that
he had provided misleading information to the NRC and that, because of that, “he was
a hero in the eyes of the company and . . . received a $1,000 bonus.” At the very least,
this evidence suggests that Siemaszko knew that the statements were false, and a rational
juror could infer that he presented a more favorable representation of the inspections in
the nozzle inspection table in order to help keep Davis-Besse operating until RFO13.

Because there was ample circumstantial evidence of Siemaszko’s direct and
indirect participation in drafting the serial letter submissions, including the false
statements and material omissions alleged in count 1 of the indictment, there was
sufficient evidence for a rational juror to find him guilty of that count. We, therefore,
affirm his conviction on count 1.

B. Count 2—Making False Statements in SL 2735

Count 2 of the indictment charged Siemaszko with “knowingly and willfully
mak[ing], us[ing], and caus[ing] others to make and use a false writing, that is, [SL
2735], knowing that it contained . . . material statements, which were fraudulent,” to the
NRC in violation of §§ 1001 and 2. The allegedly false material statements related
almost exclusively to the nozzle inspection table:

1. “[d]uring 10RFO, 65 of 69 nozzles were viewed,” whereas, as the
defendants then well knew, significantly fewer than 65 nozzles were
viewed;
2. “[i]n 1996, during 10 RFO, the entire RPV head was inspected,”
whereas, as the defendants then well knew, the entire head had not been
inspected . . . ;
3. “[s]ince the [RFO10] video was void of head orientation narration,
each specific nozzle view could not be correlated,” whereas, as the
defendants then well knew, the [RFO10] inspection video included head
orientation;
4. “[t]he inspections performed during the 10th, 11th, and 12th
Refueling Outage . . . consisted of a whole head visual inspection of the
RPV head in accordance with [BACCP],” whereas, as the defendants
then well knew, areas covered by boric acid had not been inspected, nor
had other required steps in the [BACCP] been taken; and
No. 09-3167 United States v. Siemaszko Page 24

5. “[f]ollowing 12RFO, the RPV head was cleaned with demineralized
water to the extent possible to provide a clean head for evaluating future
inspection results,” whereas, as the defendants then well knew, a
substantial layer of boric acid remained, which would impede future
inspections.

We must uphold the conviction on this count if there was sufficient evidence for a jury
to convict based on any one of these five allegations. See Dedman, 527 F.3d at 598.

The nozzle inspection table was an integral element of Davis-Besse’s
submissions to the NRC. Not only was it included as an attachment to SLs 2735, 2741,
and 2745, but it formed the basis of Davis-Besse’s risk analysis. Again, Siemaszko
argues that he lacked the requisite intent to commit a violation of § 1001 because his
original work was edited and altered by others and that he did not view the final version
of the letter that was submitted. Siemaszko also relies heavily on his allegation that he
signed the green sheet after submitting his draft but before the final draft was
completed—without seeing the final version. A rational juror could find that, although
it is unclear when Siemaszko signed the green sheet, he did so after reviewing a draft
including the false statements. Indeed, because some of the false statements in SL 2735
originated in the first draft written by Siemaszko—for example, the statement that some
of the nozzles were “satisfactor[ily]” inspected and did not require recording—he signed
the green sheet at a time when a rational juror could find that he knew and intended to
submit false statements to the NRC.

Thus our discussion of the evidence presented with respect to the allegations in
count 1 of the indictment reviewed the sufficiency of the evidence to support several of
the allegations of false statements made in count 2. As a result, we have already
determined that the government presented sufficient evidence for a rational juror to find
that Siemaszko knowingly and falsely stated or caused to be stated that RFO10 included
an inspection of the “entire head” and that the RFO10 video did not contain head
orientation narration.

Furthermore, a rational juror could attribute the admittedly false statement that
there was a “whole head visual inspection” in compliance with BACCP in 1996, 1998,
No. 09-3167 United States v. Siemaszko Page 25

and 2000 to Siemaszko. Siemaszko admits that those three inspections were not in
compliance with BACCP but argues that he did not make the false statement regarding
BACCP in SL 2735 because it merely was copied from SL 2731. This argument is
unavailing because Siemaszko was the origin of that language in SL 2731 and, therefore,
a jury could determine that he caused it to be included in SL 2735.

Goyal testified that boron deposits and limited access to the RPV head prevented
an inspection in compliance with BACCP in 1996. The inspections in 1998 and 2000
were less complete than that in 1996, demonstrating that the BACCP procedure could
not be fully utilized in either of those inspections. Siemaszko’s first draft of SL 2731
stated that “the general guidance of [another procedure] was used for these inspections.”
After Goyal noted that the draft referenced the incorrect procedure, Siemaszko switched
the procedural reference number to indicate the BACCP had been used. Furthermore,
even if Siemaszko had not himself made this alteration, he was asked to review later
drafts of the letter that included the “in accordance with” language. A rational juror,
therefore, could infer that he approved that language while knowing that the boric acid
deposits prevented inspection in compliance with BACCP in 1996, 1998, and 2000.

Siemaszko also argues that the “whole head visual inspection” language was not
his. However, a draft co-authored by Siemaszko that was submitted to aid others in
drafting the text of SL 2735 made the assertion that the whole head had been visualized
during the three inspections because it stated that all of the nozzles not visible during the
2000 inspection “were fully inspected during 1996.” The nozzle inspection table also
asserted that the entire RPV head was inspected in 1996. Therefore, a rational juror
could conclude that Siemaszko made or caused to be made this false statement in
violation of §§ 1001 and 2, and we may affirm on this ground without addressing the
remaining allegations in count 2 of the indictment.
No. 09-3167 United States v. Siemaszko Page 26

C. Count 5—Causing False Statements to Be Made in SL 2745

Count 5 of the indictment charged Siemaszko with “knowingly and willfully
caus[ing] others to make and use a false writing, that is, [SL 2745], that contained . . .
material statements, which were fraudulent,” to the NRC in violation of §§ 1001 and 2.
The allegedly false statement was that “‘[d]uring 10RFO, in spring of 1996, the entire
head was visible so 100% of the CRDM nozzles were inspected with the exception of
four nozzles in the center of the head,’ whereas, as defendants then well knew, many
more than the center four nozzles were not inspected.” While the evidence supporting
this count is more circumstantial than the evidence supporting counts 1 and 2, there was
sufficient evidence presented to demonstrate that Siemaszko caused Davis-Besse to
submit this false statement to the NRC.

Siemaszko argues that no evidence indicates that he had the requisite intent to
deceive the government through this statement in SL 2745. He argues, and the record
supports his assertion, that he had no direct role in preparing this document and that
Byrd, who prepared the letter, did not contact him for information during the
preparation. However, Byrd testified that in formulating his risk analysis, he based his
assumption that all of the nozzles were free of stress cracks in 1996 on the information
provided in Siemaszko’s nozzle inspection table. Based on Byrd’s testimony and the
evidence presented with respect to Siemaszko’s role in preparing the nozzle inspection
table, a jury could convict Siemaszko on count 5. Indeed, that the jury convicted
Siemaszko on counts involving SLs 2731, 2735, and 2745, but not on counts involving
SLs 2741 and 2744, is consistent with this conclusion.

Siemaszko also argues that the panel must reverse his conviction on this count
because it is multiplicitous. In support, he cites United States v. Olsowy, 836 F.2d 439,
443 (9th Cir. 1987), which held that “where identical false statements, in either oral or
written form, are made in response to identical questions, the declarant may be convicted
only once.” Siemaszko argues that the statement on which this conviction is based is the
nozzle inspection table, which also formed the basis of his conviction on count 2.
Although the information in the table formed the basis of Byrd’s analysis in SL 2745,
No. 09-3167 United States v. Siemaszko Page 27

SL 2745 was not submitted “in response to identical questions.” In fact, the Olsowy
court distinguished cases like Siemaszko’s by specifically stating that it “ha[d]
previously upheld multiple counts under section 1001 for submitting separate documents
at the same time and multiple convictions for submitting subsequent documents
summarizing earlier documents.” Id. at 443 n.4 (citations omitted).

Thus, although Siemaszko’s involvement in preparing SL 2745 was considerably
less direct than his involvement in formulating the statements and documents made in
counts 1 and 2, there is sufficient evidence for a reasonable jury to find him guilty of
count 5 beyond a reasonable doubt. We therefore affirm his conviction on this count.

III. Constructive Amendment Claim

We review de novo the legal question of whether an indictment has been
constructively amended. See United States v. Budd, 496 F.3d 517, 528 (6th Cir. 2007).
The defendant bears the burden of establishing that a constructive amendment has
occurred. United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002). Constructive
amendments are “per se prejudicial,” and, when established, entitle a defendant to a
reversal of his conviction. United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006)
(citation omitted). “To determine whether a constructive amendment has occurred,
therefore, we review the language of the indictment, the evidence presented at trial, the
jury instructions and the verdict forms utilized by the jury.” United States v. Kuehne,
547 F.3d 667, 683–84 (6th Cir. 2008).

We explained in Kuehne that:

A constructive amendment “results when the terms of an indictment are
in effect altered by the presentation of evidence and jury instructions
which modify essential elements of the offense charged such that there
is a substantial likelihood that the defendant may have been convicted of
an offense other than the one charged in the indictment.”

Id. at 683 (quoting United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005)).

Count 1 of the indictment charged Siemaszko with “knowingly and willfully
conceal[ing] and cover[ing] up, and caus[ing] to be concealed and covered up, by tricks,
No. 09-3167 United States v. Siemaszko Page 28

schemes and devices, material facts in a matter within the jurisdiction of the executive
branch of the government of the United States” in violation of §§ 2 and 1001. Count 2
of the indictment charged him with “knowingly and willfully mak[ing], us[ing], and
caus[ing] others to make and use a false writing, . . . knowing that it contained . . .
material statements, . . . in a matter within the jurisdiction of the executive branch of the
government of the United States” in violation of §§ 2 and 1001. Count 5 charged him
with “knowingly and willfully caus[ing] others to make and use a false writing . . . that
contained . . . material statements.” This language tracked the elements of the crime as
laid out in § 1001(a).

According to Siemaszko, however, the jury instruction permitted the jury to
convict based on a finding that the statements and facts could have been material rather
than were material, as was alleged in the indictment. Siemaszko, however, fails to
demonstrate that the jury instruction was improper. Moreover, a “statement is material
for purposes of 18 U.S.C. § 1001 if it has the natural tendency to influence or is capable
of influencing the [NRC].” Lutz, 154 F.3d at 588. Thus we have found that the
government need not prove “that the statement actually influenced [the NRC]” to carry
its burden of proof. Id. (emphasis added).

According to the jury instructions as read to the jury, the district court properly
recited the elements of § 1001 with respect to all counts and instructed the jury that a
necessary element to be found beyond a reasonable doubt was that “the fact was
material” for count 1 and that “the statement was material” for counts 2 and 5. In each
case, the district court also gave an additional definition for materiality: “A ‘material’
fact or matter [or statement or entry] is one that has the tendency to influence or is
capable of influencing a decision of the [NRC].” It is this additional definition that
Siemaszko argues constitutes a constructive amendment. However, we have already
found this precise materiality definition to be proper. The instruction on materiality
given by the district court followed Lutz and this circuit’s pattern jury instructions. See
Pattern Criminal Jury Instructions for the Sixth Circuit § 13.01. Therefore, Siemaszko
No. 09-3167 United States v. Siemaszko Page 29

could not have been “convicted of an offense other than the one charged in the
indictment.” See Kuehne, 547 F.3d at 683 (citation omitted).

Siemaszko also suggests that the evidence presented by the government at trial
constructively amended the indictment because it demonstrated that SL 2747, a serial
letter not cited in the indictment, in fact prompted the NRC’s decision not to shut down
Davis-Besse. However, the NRC specifically cited the five letters referenced by the
indictment when it granted Davis-Besse permission to delay the inspection required by
NRC 2001-01 until February 2002:

You provided your response to the information requested in the Bulletin
by letter dated September 4, 2001, as supplemented by letters dated
October 17, October 30, November 1, and November 30, 2001. In
addition, public meetings were held on October 24, and November 28,
2001, to discuss your responses.
Based on the information provided in your responses and the information
available to the staff regarding the industry experience with VHP nozzle
cracking, the staff finds that you have provided sufficient information to
justify operation until February 16, 2002, at which time you will shut
down the [plant] . . . and perform VHP nozzle inspections as discussed
in your letter dated November 30, 2001. The commitments contained in
your letter dated November 30, 2001, were integral to the staff’s finding.

The argument that the letters were not material seems merely to be another attempt to
rehash the insufficiency of the evidence claim.

Therefore, neither the jury instructions nor the evidence presented at trial
constructively amended the indictment to lower the burden of proof necessary to convict
Siemaszko. The government presented evidence of the NRC’s reliance on all of Davis-
Besse’s submissions in permitting the plant to operate until RFO13, and the district court
followed the guidance of our pattern jury instructions in preparing the jury to review the
evidence before it. Siemaszko, therefore, was convicted of the offense charged in the
indictment and not of another charge carrying a lesser burden of proof.
No. 09-3167 United States v. Siemaszko Page 30

IV.

For the foregoing reasons, we affirm Siemaszko’s conviction on counts 1, 2, and
5 of the indictment and deny his claim of constructive amendment of the indictment.