No contest, maybe no jail for DTI owner
August 6, 2002
The owner of a Minden aerosol recycling plant, where an explosion last fall killed one worker and seriously injured others, could avoid jail time as result of a plea agreement.
Walter Gonzalez, 47, owner of Depressurized Technologies Inc., appeared in the Douglas District Court before Judge Michael P. Gibbons Monday. Gonzalez pleaded guilty to two felony charges brought by the offices of the state Attorney General and the Douglas County District Attorney.
State inspectors say the plant, located near Minden-Tahoe Airport, exploded Sept. 17, when a spark from a forklift ignited butane and propane gases being released as workers punctured aerosol cans with metal spikes as part of the recycling process.
This is the first court case in the state of Nevada in which a business owner has been criminally prosecuted at the felony level due to an accident at a business, according to Deputy District Attorney Mike McCormick, who is prosecuting the case for Douglas County.
In the plea agreement with the county’s district attorney and the state’s attorney general’s office, Gonzalez pleaded no contest, on his behalf and as representative of DTI as co-defendant, to a felony charge of failure to provide and secure industrial insurance compensation for an employee who suffers a fatal injury and no contest to the felony charge of performance of an act or neglect of duty in willful or wanton disregard of safety of persons or property.
His no contest plea means he consents to a conviction on the charges but does not admit to the facts of the case.
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Gibbons compared Gonzalez’s plea to the Alford plea, in which a defendant acknowledges evidence for a conviction without admitting guilt.
Gibbons pointed out in court that Gonzalez’s attorney, Noel Manoukian may think the plea is better for Gonzalez for the outcome in pending civil cases from the victims of the Sept. 17 blast.
An opponent in civil case could use a guilty plea to assert the defendant had already admitted to the crime; and the defendant would not have a chance to change his story in court.
Both charges, to which Gonzalez pleaded no contest, are based on the death of Jaimie Gonzales, who was killed in the blast and leaves behind a wife and small children.
The agreement also promises a recommendation by both entities for a suspended prison sentence of 1-5 years. Sentencing was set for Sept. 30 at 2 p.m.
However, the sentencing judge can make his own decision.
“I am surprised there is no jail time when people were killed and seriously injured,” said Gibbons, who asked if the victims were polled regarding their feelings about the plea agreement.
McCormick said the victims were not informed of the agreement, because it had not be signed until prior to court on Monday. He said later the victims were aware of the terms. He also said the victims and their family members would be present in court as witnesses during the sentencing phase.
In addition to 160 hours community service, and a requirement to develop a safety management plan if Gonzalez plans to reopen an industrial business, the agreement makes him and DTI liable for all money paid to the victims of the blast through the state’s worker’s compensation fund, and all future money the state may have to pay.
In the agreement, the attorney general’s office dismisses four additional felony counts for compensation to surviving victims , and Douglas County dismisses a second felony charge of the same, according to McCormick.
Gibbons asked if the agreement causes a double jeopardy for Gonzalez, who also faces fines by Occupational Safety and Health Act of $112,800, the Environmental Protection Agency of $21,500 and numerous civil cases from the victims.
Manoukian said there was no effect of double jeopardy through the plea agreement.
Double jeopardy means a defendant cannot be tried for the same, specific crime twice.
Despite Gibbons’ consistent questions as to whether Gonzalez is aware of rights he forfeited through the agreement, Gonzalez assured the judge he was aware of his decision and its consequences.
“I wish to go back, restart (DTI), reimburse the state,” said Gonzalez. “It was never our intent to get people hurt. Number one was safety, then the environment, and then the product.
“I hate to be in this situation.”
Gonzales told Gibbons he “delegated” the responsibility of obtaining the adequate insurance for DTI, but said “that fell through the cracks.”
“Unfortunately, we trust things to go the way they are directed but it didn’t go that way. I’m sorry about that,” said Gonzalez.
Gibbons said pleading no contest to the district attorney’s charge of willful and wanton disregard is “quite a bit different than what you just told me. It (means) you had a element of knowledge and you didn’t really care.”
Gonzalez cited a water hose that ran across the entrance to the court house, and said, “You can turn a safe place into a really unsafe place,” if someone tripped over the hose.
But Gibbons said the difference between neglect and willful and wanton disregard, such as what Gonzalez pleaded to, is that “you know about the hose but leave it there anyway.”
Manoukian said Gibbons, at the time of sentencing, will know of “mitigating and litigating circumstances” that influenced Gonzalez leading up to the blast and subsequent charges.
Manoukian also told the judge McCormick “made it impossible” to plead down the charges further, because the state and county worked hand in hand.
Gregory Zunino, prosecutor for the attorney general’s office, said the state joined with the county because, while the state has the strongest case against Gonzales, the county will have the strength of the victims’ testimonies at sentencing.
Manoukian said by saying victims were going to testify, Zunino “implied a violation of the plea agreement” because they were the same victims in relation to the charges which were dismissed.
Gibbons said having victims testify is not a violation because they have the right to “come forward anyway” during sentencing.