The government's case against three former Davis-Besse engineers took a bizarre twist at the end of yesterday's session in U.S. District Court when an angry defense attorney said his client, who is not on trial yet, may be forced to testify against the other two defendants.
Chuck Boss of Maumee told Judge David Katz he fears his client, Andrew Siemaszko, now of Texas, will incriminate himself or be duped into committing perjury by Justice Department prosecutors if they are allowed to subpoena him as a witness in the trial of a former co-worker, David Geisen, now of Wisconsin, and Tennessee contractor Rodney N. Cook.
Mr. Siemaszko was not previously identified as a potential witness in the trial, which began Oct. 1. Mr. Boss accused prosecutors of changing their strategy to "save a case that perhaps is not going as well as they would have liked."
Prosecutors refused to comment.
The news about a possible subpoena for Mr. Siemaszko came moments after a key government witness, Prasoon Goyal of Toledo, stepped down for the day.
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A federal grand jury in Cleveland recommended in late 2005 that Mr. Goyal, another former Davis-Besse engineer, be indicted with the other three on charges of lying to the government. The charges carry maximum penalties of five years in prison and the potential for separate $250,000 fines.
But Mr. Goyal struck a deal with federal prosecutors in January, 2006, to accept a one-year ban from the industry in exchange for his cooperation.
Mr. Goyal is midway through his eighth hour of testimony, which began Tuesday afternoon. He is expected to be on the stand for most or all of today's proceedings.
The case centers on a cover-up at FirstEnergy Corp.'s Davis-Besse nuclear plant 30 miles east of Toledo.
Damage never before seen at a U.S. nuclear plant was revealed when it was shut down in early 2002: a reactor head so thinned by acid that it had nearly burst. Had it ruptured, radioactive steam would have formed inside the containment building that houses the reactor. It would have been the first such breach since part of Three Mile Island Unit 2's reactor melted in 1979.
Richard Poole, one of three federal prosecutors handling the trial, told Judge Katz the government is preparing to subpoena Mr. Siemaszko because it anticipates calling him as a rebuttal witness.
That might not happen for a month. The two defense teams are expected to start calling their witnesses in late October.
Mr. Poole said prosecutors would like Mr. Siemaszko to respond to accusations that may arise against him in the Geisen-Cook trial, if defense attorneys and their witnesses try to pass off blame on him.
Mr. Siemaszko would be offered immunity to the extent that anything he says in court during the Geisen-Cook trial could not be used against him in his own trial, Mr. Boss said.
Using someone about to stand trial as a witness against his alleged co-defendants is not "entirely without precedent," Mr. Poole said.
Mr. Boss disagreed.
He said the request is "out of left field and, frankly, it's rather absurd."
Prosecutors could find out how Mr. Siemaszko might testify in advance of his own trial. Or, his client might feel compelled to lie in the Geisen-Cook case to protect the eventual defense of his case.
"This is a perjury trap for Mr. Siemaszko," Mr. Boss said.
The judge said he'd rule on the matter after getting briefs.
Mr. Goyal's testimony so far has centered on dozens of e-mails, memos, and other internal FirstEnergy Corp. documents dating to 1996, as well as the utility's correspondence with the Nuclear Regulatory Commission in the fall of 2001.
That was the autumn Davis-Besse was able to dodge a mandatory shutdown order.
A former senior engineer, Mr. Goyal testified that FirstEnergy formed what it called a "JCO" team - one focused on the theme of "Justification for Continued Operation."
He said he tried to convince FirstEnergy management to improve access to Davis-Besse's reactor head with bigger inspection ports, called "mouse holes." The modification makes it easier to do inspections and cleaning.
Mr. Goyal said he sent the request up the corporate review ladder in 1996 through a document known in the industry as a "condition report." The fix wasn't made until after the lid nearly ruptured in 2002.
Greg Gibbs, a onetime Davis-Besse quality-assurance director and engineering director, testified Tuesday he tried to get that modification done before he left the plant in 1994. He said he was disappointed to learn in 2001, after coming back as a consultant, that nothing had been done.
A Blade investigation in 2002 showed that FirstEnergy vetoed a work order to make that fix during the early 1990s to save $250,000, even after being encouraged to do the modification by officials from a plant with a similar design in Crystal River, Fla.
Mr. Goyal testified about how some records were edited or redacted, in part because officials knew the reactor head couldn't be properly inspected or cleaned; its tiny inspection ports were encrusted with boric acid that had escaped from the reactor.
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