## Facts

- Dye Construction Company was laying pipe for a sanitary sewer line when a trench collapse on August 11, 1972 killed employee Jose Frank Esquibel and knocked coworker John Rosado aside.
- The trench was excavated by backhoe, approximately 9–12 feet deep and about 38–40 inches wide at the bottom, with largely vertical sides for about five feet before slight sloping to the surface.
- The governing OSHA trenching standard, 29 C.F.R. § 1926.652(b), required trenches at least five feet deep in “unstable or soft material” to be shored, sheeted, braced, sloped, or otherwise supported.
- Evidence described the trench material as “soft bedrock” that could be scratched with fingernails.
- Safety decisions about whether to shore or slope were delegated from the project superintendent to the foreman and then to the backhoe operator; supervisory personnel were familiar with the trenching regulation.
- A trench box was available at the worksite but was not used.
- The United States prosecuted Dye under 29 U.S.C. § 666(e) for willfully violating an OSHA standard in a manner that caused an employee’s death; a jury convicted.

## Issues

1. Whether sufficient evidence supported that the trench was in “unstable or soft material,” triggering the shoring/support requirement of 29 C.F.R. § 1926.652(b).
2. Whether “willfully” under 29 U.S.C. § 666(e) required proof of an evil motive or bad purpose, making the trial court’s willfulness instruction erroneous.
3. Whether the prosecution was time-barred by an OSHA-specific limitations period rather than the general federal criminal statute of limitations.
4. Whether Dye’s construction activities sufficiently affected interstate commerce for OSHA to apply.

## Decision

- The Tenth Circuit affirmed the conviction.
- The court held the evidence supported the jury’s finding that the trench was dug in “unstable or soft material” within the meaning of § 1926.652(b).
- The court approved the jury instruction defining willfulness as knowing and purposeful noncompliance, rejecting any requirement of evil motive.
- The court held the general five-year federal criminal statute of limitations, 18 U.S.C. § 3282, governed and the prosecution was timely.
- The court held OSHA coverage was proper because Dye’s business activities affected commerce within Congress’s regulatory power.

## Legal Principles

- For OSHA criminal liability under 29 U.S.C. § 666(e), “willfully” may be satisfied by a voluntary, intentional violation of a known legal duty; proof of evil motive is not required for this regulatory offense.
- Evidence that trench material is soft or friable (including expert testimony describing “soft bedrock” scratchable by fingernails) can support a finding that it is “unstable or soft material” under 29 C.F.R. § 1926.652(b).
- Administrative time limits applicable to OSHA civil citations do not control OSHA criminal prosecutions; the default five-year limitations period in 18 U.S.C. § 3282 applies absent a specific criminal limitations provision.
- OSHA applies to employers whose operations affect interstate commerce; construction activities may satisfy this requirement based on their aggregate effect on commerce.

## Conclusion

The court sustained Dye Construction’s OSHA criminal conviction arising from a fatal trench cave-in, holding that the evidence supported application of the trenching standard, willfulness required only knowing and purposeful noncompliance, the five-year federal criminal limitations period governed, and OSHA validly reached the employer’s commerce-affecting activities.


United States v. Dye Constr. Co., 510 F.2d 78 (10th Cir. 1975)