Re-filed charges dismissed in Grace case

By BRENT SHRUM Western News Reporter

A federal judge in Missoula has thrown out a grand jury's re-indictment of W.R. Grace and seven company officials on charges previously dismissed under the statute of limitations.

In an indictment handed down by a grand jury in early 2005, the company and individual defendants Alan Stringer, Henry Eschenbach, Jack Wolter, William McCaig, Robert Bettachi, Mario Favorito and Robert Walsh were charged with conspiring to violate the Clean Air Act and endanger others by knowingly releasing asbestos into the air as well as conspiring to defraud the government by impeding the efforts of regulatory agencies. In a June 8 order, Judge Donald Molloy dismissed the "knowing endangerment" portion of a conspiracy charge on the grounds that the five-year statute of limitations had expired.

Federal prosecutors had argued that the defendants' actions after 1999 furthered both the defrauding and endangerment portions of the conspiracy, and a new indictment, issued on June 26, added language to that effect. The new indictment directly alleged that actions by the defendants to obstruct investigators in 1999 and 2000 resulted in additional releases of asbestos into the air.

Defense attorneys filed to have the new charges thrown out, arguing that Molloy's dismissal with prejudice barred prosecution on the same offense and that the charges in the new indictment were essentially the same as those already dismissed.

In a July 27 order, Molloy ruled that while dismissal with prejudice did not necessarily rule out the re-filing of charges, a federal law governing the statute of limitations did.

Molloy found that while the law allows a six-month period to re-file charges dismissed after the statute of limitations has expired, it contains an exception for cases in which the reason for dismissal was the failure to file the original indictment within the statute of limitations.

"To allow the government a six-month grace period in this case would extend the statute of limitations for the improper purpose of affording the prosecution a second opportunity to do what it failed to do in a timely manner in the beginning," he wrote.

Molloy noted that the prosecution has characterized its case as a search for justice; he added that justice is his primary concern also.

"But there is a difference," he wrote. "While the prosecution views its quest for justice as the pursuit of a particular outcome, this court is bound to uphold that conception of justice, rooted in our Constitution and laws, that lies in the process."

The charges against Grace and the individual defendants stem from Grace's operation of a vermiculite mine near Libby from 1963 until 1990, during which time the company is accused of withholding evidence regarding asbestos contamination in the vermiculite ore. The case against all but two of the defendants is scheduled to go to trial on Sept. 11.

In a ruling last month, Molloy granted requests from Stringer and Favorito to be tried separately from the other defendants and scheduled their trial for next March. Molloy found that evidence to be presented by Stringer and Favorito in their defense might result in prejudice against Grace. He also found that they could be tried together without risking prejudice against one another. Molloy denied similar requests for separate trials from the other defendants.