United States v. Kaluza

Decision Date10 December 2013
Docket NumberCRIMINAL ACTION NO. 12-265
CourtU.S. District Court — Eastern District of Louisiana

Before the Court are the following three motions:

1) Defendant Robert Kaluza's Motion to Dismiss Counts 1-22 (Rec.Doc. 51), joined by Defendant Donald Vidrine;
2) Defendant Robert Kaluza's Motion to Dismiss Counts 12-22 (Rec.Doc. 52), joined by Defendant Donald Vidrine; and
3) Defendant Donald Vidrine's Motion to Dismiss Counts 12-22 (Rec.Doc. 54).

These motions arise out of the government's prosecution of two employees of British Petroleum ("BP") who were on board the Deepwater Horizon drilling vessel during the explosion on April 20, 2010, which killed eleven members of the vessel's crew. On November 14, 2012, a federal grand jury in the Eastern District of Louisiana returned a Second Superseding Indictment ("the Indictment") charging each of the employee-defendants, Robert Kaluza and Donald Vidrine ("defendants"), with eleven counts of Involuntary Manslaughter under 18 U.S.C. § 1112 ("Section 1112") (Counts 1-11), eleven counts of Ship Officers' Manslaughter under 18 U.S.C. § 1115 ("Section 1115") (Counts 12-22), and one count alleging a Clean Water Act violation under 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3) (Count 23). (Superseding Indictment ¶¶ 25-70).

On November 28, 2012, both defendants plead not guilty as to all counts. The defendants filed the instant motions on May 30, 2013 and May 31, 2013, respectively, moving the Court to dismiss Counts 1-22. On September 18, 2013, the Court held oral argument on the issues presented by the motions. Considered conjointly, defendants' motions present several argumentssupporting the dismissal of Counts 1-22 for failure to charge an offense and lack of jurisdiction. (Rec. Doc. 51, at 1). In essence, defendants contend that the indictment fails to charge an offense and the court lacks jurisdiction as to Counts 1-22 because no federal statute extends federal law to the Outer Continental Shelf ("OCS") where the defendants were employed on Deepwater Horizon, and defendants also contend that the indictment fails to charge an offense under Section 1115 as to Counts 12-22 as the terms of the statute do not apply to the defendants.

More specifically, the jurisdictional issue consists of two separate arguments involving two primary statutes. First, defendants argue that the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333(a)(1), does not extend federal laws to the OCS where the Deepwater Horizon was located or any actions that occurred thereon; therefore, the government may not charge the defendants under the federal laws, Sections 1115 and 1112. Second, defendants argue in the alternative that, as to Section 1112 only, 18 U.S.C. § 7 ("Section 7") does not extend jurisdiction to the Deepwater Horizon or the actions occurring thereon as the Deepwater Horizon is not a United States vessel within the "special maritime jurisdiction" under Section 7. Finally, provided jurisdiction does exist, the defendants allege that the government fails to charge an offense under Section 1115, arguing that by its plain language the statute does not apply to the defendants. Specifically, defendants contend that Section 1115, which applies to "captains, engineers, pilots, and other persons employed on any... vessel," does not apply to the defendants, who were employed for non-marine drilling-related purposes. 18 U.S.C. § 1115.

Because both defendants' motions are issue-driven and coterminous, the Court will analyze the merit of the parties' arguments by the issues presented. In addition, because the jurisdictional arguments naturally precede any other argument regarding applicability of the statute to the facts at hand, the Court will address the issues in the following order, in seriatim:(1) whether OCSLA Section 1333(a)(1) extends federal laws to the Deepwater Horizon on the OCS; (2) whether 18 U.S.C. § 7 provides jurisdiction so as to charge defendants under Section 1112; and (3) if jurisdiction exists, whether Section 1115 applies to the defendants.

Having considered all foregoing motions, memoranda, exhibits, and oral argument on the issues presented therein, the Court finds for the following reasons that follow that the defendants' Motion to Dismiss Counts 1-22 for lack of jurisdiction under OCSLA § 1333(a)(1) will be denied and that the defendants' Motion to Dismiss Counts 12-22 for failure to charge an offense under 18 U.S.C. § 1115 will be granted.


Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Further, the court may hear a claim at any time that "the indictment or information fails to invoke the court's jurisdiction or to state an offense." FED. R. CRIM. P. 12(b)(3)(B). The court is required to take the indictment's allegations as true when determining whether the indictment fails to state an offense. United States v. Rainey 2013 WL 2181285 (E.D. La. May 20, 2013). The indictment must provide a "plain, concise, and definite written statement of the essential facts constituting the offense." FED. R. CRIM. P. 7(c)(1). An indictment must allege "each material element of the offense" to be sufficient; otherwise the indictment's "failure to charge an offense constitutes a jurisdictional defect." United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999). This requirement ensures that the indictment satisfies "minimal constitutional standards," United States v. Crow, 164 F.3d 229, 234 (5th Cir. 1999), enabling the grand jury to find "probable cause that the defendant has committed each element of the offense...as required by the Fifth Amendment." Cabrera-Teran, 168 F.3d at 143.However, the law does not require a "ritual of words," and, while the indictment must allege each element of the offense, the court's consideration of "[t]he validity of an indictment is governed by practical, not technical considerations." Crow, 164 F.3d at 235 (citation omitted) (internal quotation mark omitted).

In addition, in considering whether to grant the motion to dismiss the indictment based on its sufficiency, "the propriety of granting a motion to dismiss the indictment under Rule 12 'is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.'" United States v. Rainey, No. 12-291, 2013 WL 2181285, at *5 (E.D.La. May 20, 2013) (citing United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005). In the Fifth Circuit, questions of law are considered appropriate for such pretrial motions. Id. In the instant matter, whether federal political jurisdiction1 exists over a geographical location is a question of law. United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993). Likewise, the question of statutory interpretation of Section 1115 and its applicability to the defendants is an issue of law. Matter of Walden, 12 F.3d 445, 448 (5th Cir. 1994). Under Fifth Circuit precedent, the Court may make preliminary findings of fact necessary to decide the question of law presented where such facts do not invade the province of the ultimate finder of fact or are undisputed. United States v. Flores, 404 F.3d 320, 324 n.6, 325 (5th Cir. 2006). Thus, the Court will begin with an iteration of those facts necessary to determine the questions of law presented to the Court.


The instant motions present issues that depend on undisputed facts regarding the nature of the Deepwater Horizon as a drilling vessel and the nature of the defendants' employment aboard the Deepwater Horizon. In order to analyze these issues properly, a brief synopsis of thedevelopment of offshore drilling and the Deepwater Horizon as well as the defendants' employment responsibilities is required.

A. Offshore Deepwater Drilling

The Deepwater Horizon, a semi-submersible drilling vessel that drilled in 5,000 feet of water, represents the culmination of a long history of offshore drilling advances in the Gulf of Mexico. Though offshore drilling existed as early as the 1890s, technological developments and economic stability dictated the ebb and flow of the success of offshore drilling in the Gulf.2 In the late 1940s, oil companies hesitated to drill exploratory wells in the Gulf from fixed platforms as the costs outweighed the benefits of production.3 A "fixed platform" is generally considered a "permanent or semi-permanent structure" that is "built on site much like a building is constructed on land." THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW, §3-9, at 169, n.9 (5th ed. 2011). Yet fixed platforms provided limited utility in offshore drilling: "[m]obility in drilling was crucial to the offshore industry's long-term viability."4

The need for mobility prompted the development of the first submersible drilling rig in 1954, which could be moved and submerged, resting on the floor, in up to 30 feet of water.5 Other companies experimented with "jack-up" rigs.6 A jack-up rig is towed to a location and its extendable legs are "jacked" down to the ocean floor for support, "allowing the work area to be raised...above the water level." SCHOENBAUM, §3-9 at 169, n.8; PATRICK H. MARTIN & BRUCE M. KRAMER, WILLIAMS & MEYERS: OIL AND GAS LAW, § 8-J (Lexis Nexis Matthew Bender 2013). Submersible rigs, jack-up rigs, and (the later developed) semi-submersible rigs areconsidered "movable" and therefore "floating" rigs. See SCHOENBAUM, §3-9 at 169, n.8; Herb's Welding, Inc. v. Gray, 470 U.S. 414, 417, 105 S.Ct. 1421, 1424, 84 L.Ed.2d 406 (1985) (generally offshore rigs are of two types, fixed or floating). Some twenty-three mobile units were operating in the Gulf by 1957 and were roughly five times more successful as onshore wells.7

Capitalizing on the trend in offshore development,...

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