U.S. v. Shear

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-1678
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRUCE SHEAR,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the
Northern District of Texas
______________________________________________

(May 28, 1992)

Before GARWOOD and DEMOSS Circuit Judges, and SCHWARTZ*, District
Judge.

GARWOOD, Circuit Judge:

Following a jury trial, defendant-appellant Bruce Shear

(Shear) was convicted of a criminal violation of the Occupational

Health and Safety Act of 1970, 29 U.S.C. § 666(e) (OSHA or the

Act), and now brings this appeal. We reverse.

Facts and Proceedings Below

In March 1987, Shear's employer, ABC Utilities Services, Inc.

(ABC), was awarded a contract to install a water line for the City

*
District judge of the Eastern District of Louisiana, sitting
by designation.
of Azle, Texas. ABC is a small, family-owned construction company.

Frank Wolfe is the president and owns approximately sixty percent

of the stock of the corporation; his mother owns the remaining

shares. ABC employed between eighty and one hundred individuals,

comprising between three and four work crews. Wolfe, as president,

was the final authority in the company. Shear was the

superintendent, and as such was the individual on site with the

decision-making power to bind ABC. Shear supervised a number of

foremen. He was neither an officer, director, nor stockholder of

ABC.

On March 23, 1987, an ABC crew, which Shear was supervising,

began to dig a ditch and lay a line of pipe that was ultimately to

be connected to two other existing water lines. The ditch was dug

along the edge of a road where several utility lines had previously

been installed.1 Because the ground had been previously excavated

and backfilled during the installation of the utility lines, the

ground was unstable and soft. OSHA regulations then in force

prohibited an employer from allowing employees to work in a ditch

deeper than five feet in unstable soil unless the ditch was sloped,

or a trench box2 or other materials were used to sheet or shore the

walls to protect the men from the danger of the trench collapsing.

1
There is some dispute as to how deep the ditch was. The
plans for the installation of the transmission line required that
the line be laid at a depth of more than ten feet at that
location. Despite this requirement, it appears that the ditch
was actually being dug at a depth of between six and nine feet.
2
A trench box is a structure that is set into an excavation
to prevent cave-ins. It has sheet metal on the outside and
braces across the width of the structure.

2
See 29 C.F.R. § 1926.652 (b), (k) (1989). In spite of this, the

trench walls were not sloped, shored, or braced, and a trench box

was not used. As two ABC employees were laying pipe in the trench,

one of the trench walls collapsed. Marcos Chairez Luna (Luna), one

of the employees, was trapped inside the trench and killed.

On December 13, 1990, ABC and Shear were both charged in a

two-count indictment with violating OSHA, 29 U.S.C. § 666(e). In

Count One, ABC and Shear were charged with willfully failing to

cease all work and excavation until necessary precautions were

taken to safeguard employees where evidence of possible cave-ins

was apparent, in violation of section 666(e), 29 C.F.R. §

1926.650(i) and 18 U.S.C. § 2. In Count Two, ABC and Shear were

charged with willfully failing to shore, sheet, brace, slope, or

otherwise support the sides of a trench more than five feet deep,

which was located in unstable and soft material, by means of

sufficient strength to protect employees working in the trench, in

violation of section 666(e), 29 C.F.R. § 1926.652(b) and 18 U.S.C.

§ 2. On February 4, 1991, Shear moved to dismiss the indictment on

the grounds that it failed to allege an assertedly essential

element of the offense, namely that Shear was an employer. The

district court denied the motion on February 19, 1991.

The case proceeded to trial before a jury, beginning April 29,

1991. After the Government rested, Shear filed a Motion for

Judgment of Acquittal and Brief, arguing that he was not an

employer and thus could not be liable as an aider and abettor. He

reurged the motion at the close of all the evidence. Shear was

convicted of Count Two and acquitted of Count One. ABC was

3
convicted of both counts. On June 7, 1991, the district court

suspended imposition of the sentence of imprisonment and placed

Shear on probation for 3 years, subject to several special

conditions, including the completion of 100 hours of community

service and the payment of a $5000 fine.

Discussion

Shear argues that because his alleged violation of 29 C.F.R.

§ 1926.652(b) was committed as an employee of ABC, he cannot be

guilty either of violating section 666(e) or of aiding and abetting

ABC in its violation of section 666(e). Section 666(e) provides

that

"[a]ny employer who willfully violates any standard,
rule, or order promulgated pursuant to section 655 of
this title, or of any regulations prescribed pursuant to
this chapter, and that violation caused death to any
employee, shall, upon conviction, be punished by a fine
of not more than $10,000 or by imprisonment for not more
than six months, or by both."

OSHA defines employer as "a person engaged in a business affecting

commerce who has employees." 29 U.S.C. § 652(5). "Employee" is

defined as "an employee of an employer who is employed in a

business of his employer which affects commerce." 29 U.S.C. §

652(6).

While the criminal liability of an employee under section

666(e) is an issue of first impression in this Circuit, it has

recently been addressed by the Seventh Circuit. See United States

v. Doig, 950 F.2d 411 (7th Cir. 1991). In Doig, the manager of a

tunnel project in which three employees were killed when his

employer violated OSHA regulations was charged with aiding and

abetting his corporate employer in violating section 666(e).

4
Doig's corporate employer was charged and convicted under section

666(e) for willful violations of OSHA regulations that resulted in

the death of the three employees. The district court, however,

dismissed the indictment against Doig, and the Seventh Circuit

affirmed the dismissal. See id. at 412. The Seventh Circuit held

that Congress did not intend to subject employees to aiding and

abetting liability under OSHA. Id. We are in general agreement

with the Seventh Circuit's reasoning and holding in Doig.

The terms "employer" and "employee" are defined in the

statute. The duties of employers and employees are also carefully

delineated. See 29 U.S.C. § 654. Section 654(a) requires "[e]ach

employer" to "furnish to each of his employees employment and a

place of employment which are free from recognized hazards that are

causing or are likely to cause death or serious physical harm to

his employees" and to "comply with occupational safety and health

standards promulgated under this chapter." Id. Section 654(b)

requires "[e]ach employee" to "comply with occupational safety and

health standards and all rules, regulations, and orders issued

pursuant to this chapter which are applicable to his own actions

and conduct." Id. Section 666, entitled "Civil and Criminal

Penalties," establishes the civil and criminal penalties for

violating OSHA. It distinguishes between employers and broader

classes of individuals in imposing liability. For example,

subsection (f) imposes lability upon "[a]ny person" who gives

advance notice of an inspection, and section (g) imposes liability

on "[w]hoever" makes false statements or representations. In

contrast, subsections (a)-(e) and (i) penalize "any employer."

5
"[W]here Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion." United States v. Wong

Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972). This juxtaposition

indicates that Congress intended to subject employers, but not

employees, to criminal liability under section 666(e). See Doig,

950 F.2d at 414.

In reaching this conclusion, we also rely on Atlantic & Gulf

Stevedores v. Occupational, Safety & Health Review Commission, 534

F.2d 541 (3rd Cir. 1976). In Atlantic & Gulf Stevedores, the Third

Circuit held that OSHA does not confer on the Occupational Safety

and Health Review Commission or the Secretary of Labor the power to

sanction employees for disregarding safety standards and commission

orders. The court noted that individual sections of OSHA, such as

the employee duty provision contained in section 654(b), "cannot be

read apart from the detailed scheme of enforcement" found in

sections 658, 659, and 666 of OSHA and determined that "this

enforcement scheme is directed only against employers." The Third

Circuit specifically found that section 666 "provides for the

assessment of civil monetary penalties only against employers."

Id. at 553. In reaching this conclusion, the court held that "this

result precisely coincides with the congressional intent." Id.

The court relied in part on a Senate report discussing the employee

duty section of OSHA:

"`The committee does not intend the employee-duty
provided in section 5(b) [29 U.S.C. § 654(b)] to diminish
in anyway the employer's compliance responsibilities or

6
 his responsibilities to assure compliance by his own
employees. Final responsibility for compliance with the
requirements of this act remains with the employer.'"
Id. at 554 (quoting S. REP. NO. 91-1282, 91st Cong., 2d
Sess. 10-11, reprinted in 1970 U.S. CODE CONG. & ADMIN. NEWS
5177).

The court concluded that "it cannot be seriously contended that

Congress intended to make the amenability of employees to coercive

process coextensive with employers." Id.3

3
Although not cited by either of the parties, Moore v.
Occupational Safety & Health Review Comm'n, 591 F.2d 991 (4th
Cir. 1979) arguably furnishes inferential support for the
conclusion that OSHA is intended only to sanction employers for
not providing a safe workplace. In Moore, the Occupational
Safety and Health Review Commission upheld a $16,500 penalty
imposed on Life Science Products Co. and the managing officers
and directors of Life Science, Moore and Hundtofte, for
violations of OSHA. The defendants appealed, disputing only
Moore's and Hundtofte's individual liability on the grounds that
they were not employers within the meaning of OSHA. The Fourth
Circuit affirmed the Commission based on the unique facts of the
case. On June 1, 1975, Life Science was dissolved by operation
of law for failure to pay franchise taxes. Moore and Hundtofte,
however, continued normal operations of the plant. On August 13,
1975, the corporate charter was reinstated. Two theories of
liability were argued before the administrative law judge:

"The primary theory on which liability of the
individual employers was predicated was that, during
the period Life Science was dissolved but its plant's
operations were continued by the individual appellants,
the latter were operating the plant as partners and as
such were employers. As an additional ground for
individual liability, the secretary contended the
appellants so directed the activities of the
corporation that they should be held liable as
responsible employers for the violations of the Act."
Id. at 993.

The Fourth Circuit, after interpreting the Virginia statutes
governing corporate dissolution by operation of law and
reinstatement of a corporate charter, determined that "the
appellants did incur personal liability as `employers' under the
Act for the violations between June 1, 1975, and August 13, 1975,
and for the penalty assessed because of such violations, and the
subsequent reinstatement of the corporate charter did not relieve
them of such liability" and found it unnecessary to consider the
alternative ground of liability. Id. at 996. The Fourth

7
 In response, the Government argues that supervisory employees

of a corporate employer can be held principally liable as employers

under section 666(e) and that because Shear was a superintendent

for ABC his conviction should be affirmed. See United States v.

Doig, 950 F.2d 411, 415 (7th Cir. 1991); United States v. Pinkston-

Hollar, Inc., 4 O.S.H. Cas. (BNA) 1697, 1699 (D. Kan. Aug. 16,

1976). Doig and Pinkston-Hollar both suggest that corporate

officers may be convicted of substantive violations of section

666(e). In Doig, the Seventh Circuit disagreed with the

proposition that "any corporate employee may be found liable for

aiding and abetting an employer's violation of OSHA." Doig, 950

F.2d at 414. The court stated instead that "[a] corporate officer

or director acting as a corporation's agent could be sanctioned

under § 666(e) as a principal, because, arguably an officer or

director would be an employer. . . . We hold that an employee who

is not a corporate officer, and thus not an employer, cannot be

sanctioned under § 666(e)." Id. In Pinkston-Hollar, the defendant

argued that he was not liable under section 666(e) because he was

not an employer under section 652(5). The district court noted

that this was "a good point," and that the "Government will have to

prove as an element of the offense charged that Pinkston is in fact

an `employer' under the Act." Pinkston-Hollar, 4 O.S.H. Cas. at

1699.

Circuit's narrow holding that corporate officers and directors
are liable under OSHA when they incur personal liability under
state law because they continue to operate the business after the
corporate charter has been dissolved inferentially supports our
interpretation that OSHA does not impose liability on corporate
employees generally.

8
 Here, Shear's conviction may not be sustained on the theory

that he was an employer. Neither count of the indictment charged

that Shear was an employer or the equivalent thereof. Nor does

either count allege anything about the nature of his relationship

to ABC. The evidence adduced at trial confirms that Shear acted

solely as an employee of ABC. Shear was not an officer, director,

or stockholder of ABC, and had no financial interest in the job

that was being performed. OSHA requires employees, as well as

employers, to comply with safety standards and regulations. But

the Act only imposes criminal liability on employers for willfully

violating such standards or regulations. While employees have a

duty to follow OSHA regulations, Congress has chosen not to

criminalize employee abdications of that responsibility. The

evidence does not show that Shear was an employer. The fact that

Shear's actions as an employee, in failing to order use of a trench

box or sloping of the ditch as required by section 1926.652(b),

were a cause of Luna's death cannot mysteriously transform Shear

into an employer criminally liable under the Act.

Moreover, the jury was not required to find that Shear was an

employer. The court's charge instructed the jury that:

"To sustain the charge alleged in each count of the
Indictment against Bruce Shear, the government must prove
each of the following beyond a reasonable doubt:

"First: That the defendant ABC Utilities
Services, Inc. was an employer engaged in a business
affecting commerce.

"Second: That the defendant ABC Utilities
Services, Inc. violated, by act or omission, an OSHA
regulation.

"Third: That the violation of the regulation

9
 was willful.

"Fourth: That the violation of the regulation
caused the death of an employee, and

"Fifth: That the defendant Bruce Shear aided
and abetted the defendant ABC Utilities Services, Inc. in
the commission of the offenses described above."

The district court further instructed the jury that "[y]ou need not

find that defendant Bruce Shear is an `employer' under the OSHA

statute in order to find him guilty of aiding and abetting a

violation of that statute."

While we acknowledge the language in Doig and Pinkston-Hollar

that in some situations supervisory employees could be prosecuted

under § 666(e) as employers, we are not here presented with such a

case, and thus do not decide whether or under what circumstances

such an individual could be found liable under section 666(e).4 On

this record, Shear's conviction cannot be sustained on the theory

that he was an employer and thus criminally liable under section

666(e).

The Government, however, does not rely solely on its

4
We have looked by way of possible analogy to cases
interpreting "employer" under Title VII, 42 U.S.C. § 2000e(b).
We note that we have held employees with supervisory
responsibility liable as employers under Title VII in some cases.
See Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990); Hamilton
v. Rodgers, 791 F.2d 439, 442-43 (5th Cir. 1986). We have
reached this conclusion, however, by interpreting the specific
definition of "employer" contained in Title VII. Section
2000e(b) defines an employer as "a person engaged in an industry
affecting commerce . . . and any agent of such a person." 42
U.S.C. § 2000e(b) (emphasis added). In Harvey and Hamilton, we
held that because employees with supervisory responsibility were
"agents" of the employer, they themselves could be considered
employers under Title VII. However, the definition of employer
contained in OSHA contains no similar or analogous language
defining an employer in terms of its agents or others related to
it.

10
contention that Shear can be convicted as an employer. It

maintains also that he may be convicted under section 666(e)

pursuant to the provisions of 18 U.S.C. section 2. Under section

2(a), "[w]hoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal." Id. Section 2(b)

provides that "[w]hoever 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." Id.

We recognize the facially unlimited scope of section 2 and the

corollary general rule that "a defendant who is not in the class of

persons to whom a substantive statute is directed may still be

guilty of aiding and abetting for causing, inducing, or procuring

the statutory violation." United States v. Odom, 736 F.2d 150, 152

(5th Cir. 1984) (citing Standefer v. United States, 100 S.Ct. 1999,

2005 n.11 (1980)).5 This has long been so, both for common law and

statutory offenses. See 2 W. LaFave & A. Scott, Substantive

5
This principle may have found its most frequent application
in cases where the underlying statute imposed criminal
responsibility on "whoever" committed certain acts, and did not
limit liability to a specific class of individuals. Thus, Odom
dealt with 18 U.S.C. § 1027 ("whoever . . . makes any false
statement or representation of fact . . . ."). Odom, at 151 n.1.
Another frequently cited example is United States v. Lester, 363
F.2d 68, 72-73 (6th Cir. 1966), cert. denied, 87 S.Ct. 951
(1967), dealing with 18 U.S.C. § 242. However, the principle is
not limited to such cases, and extends to underlying statutes
that criminalize acts by a particular class of individuals. See,
e.g., United States v. Smith, 584 F.2d 731 (5th Cir. 1978), and
United States v. Scannapieco, 611 F.2d 619 (5th Cir. 1980), which
allowed one not a licensed firearm dealer to be convicted of
aiding and abetting a violation of certain provisions of 18
U.S.C. § 922 denouncing conduct by licensed dealers.

11
Criminal Law, § 6.8(e) at 163-165 (West 1986).6 Nevertheless,

despite this long tradition and the facial breadth of section 2, it

is equally well recognized that the referenced general rule is not

without exceptions. See, e.g., United States v. Falletta, 523 F.2d

1198, 1199-1200 (5th Cir. 1974); United States v. Southard, 700

F.2d 1, 19-20 (1st Cir. 1983) (exceptions for victims, for members

of particular class intended to be specially protected by the

statute, and where "the legislature, by specifying the kind of

individual who is to be found guilty when participating in a

transaction necessarily involving one or more other persons, must

not have intended to include the participation by others in the

offense as a crime. . . . even though the statute was not intended

to protect the other participants."); United States v. Amen, 831

F.2d 373, 381-82 (2d Cir. 1987) (pursuant to the rule that "[w]hen

Congress assigns guilt to only one type of participant in a

transaction, it intends to leave the other unpunished for the

offense," there is no aider and abettor liability under the drug

kingpin statute, 21 U.S.C. § 848, either for the kingpin's

employees or third parties); United States v. Benevento, 836 F.2d

60, 71 (2d Cir. 1987) (same); United States v. Pino-Perez, 870 F.2d

1230, 1231-32 (7th Cir. 1989) (en banc) (recognizing the three

Southard exceptions; and holding that although "persons supervised

6
Indeed, we have said that Congress's 1951 amendment to
section 2(b) "removes all doubt that one who puts in motion or
assists in an illegal enterprise or causes the commission of an
indispensable element of an offense by an innocent agent or
instrumentality, is guilty" so that "[i]t is not necessary for
the intermediary to have a criminal intent." United States v.
Smith, 584 F.2d 731, 734 (5th Cir. 1978).

12
by the kingpin cannot be punished as aiders and abettors" of a 21

U.S.C. § 848 offense, those "who assist a kingpin but are not

supervised, managed or organized by him" can be). See also LaFave

& Scott, supra § 6.8(e) at 165-66.7

The issue of employee aider and abettor liability for section

666(e) violations partakes of two of the exceptions noted in

Southard and Pino-Perez to section 2 liability. Employees of OSHA-

covered employers are clearly members of the particular class for

whose special protection OSHA was enacted. See 29 U.S.C. § 654(a);

see also 29 U.S.C. § 651(b). Moreover, while it is theoretically

possible that a covered employer could violate section 666(e)

without being aided or abetted by one or more of his or its

employees, Congress must have realized that the overwhelming

majority of section 666(e) violations would be committed through

the actions of employees of the covered employer. Every principal

violator of section 666(e) necessarily "has employees" in the

covered business, section 652(5) & (6), and while there will be

some sole proprietorships or partnerships that violate section

666(e) only through the actions of the proprietor or partners,

7
We also observe that exceptions have been recognized to the
facially unlimited scope of other general criminal statutes. For
example, the facially unlimited reach of 18 U.S.C. § 924(c) was
somewhat cabined in Busic v. United States, 100 S.Ct. 1747, 1753
(1980), in reliance on "two tools of statutory construction":

"The first is the oft-cited rule that '"ambiguity
concerning the ambit of criminal statutes should be
resolved in favor of lenity."' [citations omitted] And
the second is the principle that a more specific
statute will be given precedence over a more general
one, regardless of their temporal sequence."

See also United States v. Farrar, 50 S.Ct. 425, 427 (1930).

13
without any employee committing or participating in the violation

of the administrative standard or regulation, it is plainly evident

that such violations will be comparatively rare exceptions. The

obviously typical, not the aberrational, case should be the basis

on which we gauge congressional intent.

Viewed in this perspective, we find instructive the Supreme

Court's opinion in Gebardi v. United States, 53 S.Ct. 35 (1932).

There the court held that the woman, who consented and agreed to be

transported in interstate commerce for immoral purposes, could not

be convicted of conspiring with the man who transported her to

violate the Mann Act. The Supreme Court observed:

"Congress set out in the Mann Act to deal with cases
which frequently, if not normally, involve consent and
agreement on the part of the woman to the forbidden
transportation. In every case in which she is not
intimidated or forced into the transportation, the
statute necessarily contemplates her acquiescence. Yet
this acquiescence, though an incident of a type of
transportation specifically dealt with by the statute,
was not made a crime under the Mann Act itself." Id. at
37.

". . . .

". . . [W]e perceive in the failure of the Mann Act to
condemn the woman's participation in those
transportations which are effected with her mere consent,
evidence of an affirmative legislative policy to leave
her acquiescence unpunished. We think it a necessary
implication of that policy that when the Mann Act and the
conspiracy statute came to be construed together, as they
necessarily would be, the same participation which the
former contemplates as an inseparable incident of all
cases in which the woman is a voluntary agent at all, but
does not punish, was not automatically to be made
punishable under the latter." Id. at 38.8

8
While Gebardi deals with the general conspiracy statute,
rather than the aiding and abetting statute, this is not a
material distinction "since the logic of the argument has
identical force in either context." Falletta, 523 F.2d at 1200.

14
 The same reasoning, it appears to us, leads to the conclusion

that the structure of OSHA evidences an affirmative legislative

policy to leave unpunished those employees who, in their capacity

as such, merely aid and abet their employer's violation of section

666(e) by committing, or participating or assisting in, the acts or

conduct constituting the employer's violation.

In Falletta, we recognized the continuing and general validity

of the Gebardi approach to aider and abettor liability. 523 F.2d

at 1199. However, we held it unavailing to insulate from section

2 liability one who aided and abetted a convicted felon in his

receipt of a firearm contrary to 18 U.S.C. § 1202(a), which

proscribes receipt, possession, and transportation of a firearm in

interstate commerce by a convicted felon. The defendant's argument

was that "Congress' failure to impose liability on the transferor

indicates a legislative desire that such a person should go

unpunished." Id. We recognized "respectable authority supporting

this approach to statutory construction," citing Gebardi and

quoting its above set out language at 53 S.Ct. 38. Falletta, 523

F.2d at 1199. We also cited cases applying "the Gebardi reasoning

in other contexts." Id. However, we ultimately concluded that

"contrary and overriding indications are present in this case."

Id. at 1200. We explained:

"It appears to us that Congress did not focus
clearly on the 'receiving' aspect of this statute and
therefore did not go through the thought processes
Falletta ascribes to it. The main objective of §§ 1201-
03 . . . was to restrict the possession of firearms by
certain groups of people.

". . . .

15
 "Since possession was the real focus of attention,
it is likely that Congress did not confront the issue
presented in the instant case. Whatever may be said
about receipt, it is clear that possession is not
inherently a transaction between two persons. Thus
Congress' attention would not have been drawn to the
liability of those cooperating in a violation of §
1202(a). Under these circumstances we cannot find, as
Gebardi did, an 'affirmative legislative policy' to
create an exemption from the ordinary rules of
accessorial liability." Id. at 1200 (footnote omitted).

Here, as above explained, it is evident that Congress's

attention must have been drawn to employee violations of section

655 standards or regulations, for it was obvious those would

constitute the vast majority of the violations (both willful and

otherwise) of such standards or regulations. Moreover, Congress

specifically required each "employee" to comply with such standards

and regulations as applicable to his own actions and conduct.

Section 654(b). Further, unlike those considered in Falletta who

furnished guns to felons, employees of covered OSHA employers are

a limited class not only expressly dealt with in the statute but

also one for whose special protection the statute was enacted. We

follow Falletta's "affirmative legislative policy" approach, but it

produces a different result here because of the very different

legislative context.

The Seventh Circuit has likewise endorsed Falletta's

"affirmative legislative policy" approach. See Pino-Perez, 870

F.2d at 1234. We agree with Doig's conclusion "that the

affirmative legislative policy placing the onus of workplace safety

upon employers precludes finding that an employee may aid and abet

16
his employer's criminal OSHA violation." Id. at 413.9

We observe that one of OSHA's stated purposes is "to assure so

far as possible every working man and woman in the Nation safe and

healthful working conditions and to preserve our human resources .

. . by providing that employers and employees have separate but

dependent responsibilities and rights with respect to achieving

safe and healthful working conditions." 29 U.S.C. § 651(b)(2); see

also § 654(a). Further evidence of this policy is found in the

structure of OSHA's civil and criminal liability provisions.

Section 666 of OSHA establishes several statutory offenses that

apply either to employers specifically or generally to "whoever" or

"any person" (which could include employers, employees, or

independent third parties). All Shear did was act as an employee

in supervising the digging of the trench; he did not take any

action separate from his role as an employee. Indeed, it is

evident that ABC's violation of section 666(e) was essentially

committed through Shear's conduct as its employee.10 We have held

that Shear could not be convicted directly under section 666(e).

We now further hold that neither can Shear be held criminally

9
We note that the panel members in Doig had all joined the
majority opinion in Pino-Perez, which had resisted any broad
expansion of exceptions to aider and abettor liability.
10
And here, as in Doig (950 F.2d at 415 n.6), no one other
than ABC and Shear was charged. We agree with Doig that it is
logically inconsistent to hold the employer liable under section
666(e) on the basis of its employee's conduct and at the same
time hold the employee, on the basis of the same conduct, liable
for aiding and abetting the employer's violation. Doig at 415.
One cannot aid and abet himself. See Morgan v. United States,
159 F.2d 85 at 87 (10th Cir. 1947); see also United States v.
Morris, 612 F.2d 483 (10th Cir. 1979).

17
liable as an aider or abettor. To allow aider and abettor

liability to be imposed in these circumstances would effectively

rewrite the statute so that "employer" reads "employer or employee"

or "whoever" or "any person." This we refuse to do. Congress

clearly demonstrated in OSHA that it was capable of imposing

liability thereunder on parties other than employers when it so

desired. See 29 U.S.C. § 666(f), (g). We refuse to upset the

careful balancing that Congress established in section 666(e) by

judicially imposing aider and abettor liability on employees.

It also strikes us as unseemly and unwise for the courts and

the Executive Branch to bring in through the back door a criminal

liability so plainly and facially eschewed in the statute creating

the offense. We blink at reality if we ignore the obvious

difference in potential political consequences between the statute

as enacted and one in which section 666(e) were written to apply

not merely to "any employer" but rather to "any employer or

employee" or "whoever" or "any person." Proper functioning of the

democratic process counsels that in these matters Congress, not the

courts, should make such basic "hard" decisions.

Here, Shear's conduct that is claimed to constitute his aiding

and abetting of ABC's section 666(e) violation was taken entirely

in his capacity as an ABC employee and in essence amounted to the

very conduct that constituted ABC's violation. We hold that for

such acts, OSHA intends only the employer, not the employee, to be

criminally responsible. We are not presented with, and do not

address, the situation where a third party, or even an employee

acting in some other capacity, is charged with aiding and abetting

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an employer's violation of section 666(e).

Conclusion

Our foregoing holdings dispose of this appeal, and we hence do

not reach any of Shear's other contentions. In this tragic

accident, Shear was, and acted only as, an employee of ABC, and

cannot be convicted of violating section 666(e) either as a

principal or as an aider and abettor of ABC's violation thereof.

Accordingly, Shear's conviction is

REVERSED.

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