United States v. Rainey

• Decision Date: 20 May 2013
• Docket Number: Criminal No. 12–291.
• Citation: 946 F.Supp.2d 518
• Parties: UNITED STATES of America v. David RAINEY.
• Court: U.S. District Court — Eastern District of Louisiana

946 F.Supp.2d 518

UNITED STATES of America

v.David RAINEY.

Criminal No. 12–291.

United States District Court, E.D. Louisiana.

May 20, 2013.

Richard Rowland Pickens, II, U.S. Attorney's Office, Avi Gesser, Derek A. Cohen, Edward Kang, U.S. Department of Justice, Jeffrey Goldberg, Leo Tsao, Rohan A. Virginkar, New Orleans, LA, for United States of America.

Michael William Magner, Brian M. Heberlig, Reid H. Weingarten, Scott P. Armstrong, Steptoe & Johnson, LLP, Washington, DC, for David Rainey.

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court are the following motions: (1) Pretrial Motion No. 1: Defendant David Rainey's Motion to Dismiss Count One of the Indictment for Lack of a Congressional Committee Inquiry or Investigation (Rec. Doc. 39); (2) Pretrial Motion No. 2: Defendant David Rainey's Motion to Dismiss Count One of the Indictment for Failure to Allege Knowledge of a Pending Congressional Investigation (Rec. Doc. 41); (3) Pretrial Motion No. 3: Defendant David Rainey's Motion to Dismiss Count One of the Indictment Because Section 1505 Does Not Apply to Subcommittee Investigations (Rec. Doc. 43); (4) Pretrial Motion No. 4: Defendant David Rainey's Motion to Dismiss Count One of the Indictment for Unconstitutional Vagueness (Rec. Doc. 45); (5) Pretrial Motion No. 5: Defendant David Rainey's Motion to Exclude the August 2, 2010 Flow–Rate Estimates and the Report of the Flow Rate Technical Group (Rec. Doc. 53); (6) Pretrial Motion No. 6: Defendant David Rainey's Motion for a Bill of Particulars (Rec. Doc. 47); and (7) Pretrial Motion No. 7: Defendant David Rainey's Motion to Strike Surplusage (Rec. Doc. 49).

I. BACKGROUND:

This case arises out of alleged exchanges between the United States government and an employee of a BP plc (“BP”) subsidiary, during and following the Deepwater Horizon oil spill.¹ At the time of the spill, defendant David Rainey worked as a vice president of exploration for a BP subsidiary. After the blowout on the Deepwater Horizon, Rainey was made Deputy Incident Commander with Unified Command, which was made up of representatives from BP, the United States government, and others.

On November 14, 2012, the grand jury returned a two-count indictment against Rainey. Count One alleges obstruction of a congressional inquiry and investigation in violation of 18 U.S.C. § 1505. Specifically, Count One charges that between approximately May 4, 2010 and May 24, 2013, Rainey “did corruptly endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an inquiry and investigation of was being had by a Committee of the United States of Representatives, to wit: the Subcommittee on Energy and Environment of the Committee on Energy and Commerce” (“the Subcommittee”). Rec. Doc. 1 at ¶ 28.

In earlier paragraphs, the indictment alleges that Rainey was involved in two specific interactions with Congress. First, the indictment alleges that Rainey failed to disclose certain information concerning flow-rate estimation during a May 4, 2010 briefing of members and staff of Congress. Rec. Doc. 1 at ¶ 23. Second, the indictment alleges Rainey prepared a response to a May 14, 2010 letter from the chairman of the Subcommittee, which response BP then submitted to the Subcommittee on May 24, 2010. Id. at ¶¶ 23–26. The indictment alleges that the BP response was false and misleading and concealed information regarding flow-rate estimates and other estimations directed at quantifying the volume of the oil spill. Id. at ¶ 26.

Count Two charges Rainey with making false statements to law enforcement in violation of 18 U.S.C. § 1001(a)(2). Specifically, Count Two alleges that during an April 8, 2011 interview with law enforcement agents, Rainey falsely stated that he had calculated a flow-rate estimate to be approximately 5,000 barrels of oil per day (“BOPD”) before seeing a flow-rate estimate by the National Oceanic and Atmospheric Administration (“NOAA”) of 5,000 BOPD, but that in fact he had prepared his estimate only after seeing NOAA's estimate. Id. at ¶ 30.

The defendant now moves: (1) to dismiss Count One of the indictment on four separate grounds (Pretrial Motions Nos. 1 through 4) (Rec. Docs. 39, 41, 43 and 45); (2) to strike certain sentences from paragraph 20 of the indictment (describing flow rate estimates made months after the alleged criminal conduct) (Pretrial Motion No. 5) (Rec. Doc. 53); (3) for a bill of particulars (Pretrial Motion No. 6) (Rec. Doc. 47); and (4) to strike certain surplusage from the indictment as irrelevant and unduly prejudicial.

II. LAW AND ANALYSIS:A. Pretrial Motion No. 1: Defendant David Rainey's Motion to Dismiss Count One of the Indictment for Lack of a Congressional Committee Inquiry or Investigation (Rec. Doc. 39):

The defendant first argues that Count One should be dismissed because none of the congressional requests or proceedings alleged in the indictment—neither the May 4, 2010 briefing nor the May 14 letter from the chairman of the Subcommittee—constitutes an inquiry or investigation of a “committee” within the meaning of section 1505.

1. The Statutory Text:

The defendant argues that the plain language of the statute, case law, and policy considerations all support the conclusion that section 1505 applies only to a duly authorized inquiry or investigation by a “committee” or House of Congress and does not reach requests for information issued by individual members of Congress. The relevant portion of Section 1505 provides:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, imprisoned not more than 5 years or ... both.

18 U.S.C. § 1505. With impertinent language removed, the statute provides:

Whoever corruptly ... influences, obstructs, or impedes or endeavors to influence, obstruct, or impede ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, imprisoned not more than 5 years or ... both.

Id. (emphasis added). Relying on the highlighted language, the defendant makes a convincing case that section 1505 applies only to a “due and proper” inquiry of a “committee” (or a “House” or “joint committee”) ² of Congress. In other words, to satisfy the statute, an inquiry must be: (1) had by “a committee of either House ... of the Congress” and (2) must be had under “the due and proper exercise of the power of inquiry” of such committee. 18 U.S.C. § 1505.

The defendant also cites to case law supporting this interpretation.³ For the most part, the government does not disagree that the statute imposes these requirements, although the parties disagree as to whether a formal authorization or resolution is necessary in order for a committee's exercise of its “power of inquiry” to be “due and proper.”

2. Do Any of the Requests or Proceedings Referenced in the Indictment Constitute an “Inquiry or Investigation” within the Scope of Section 1505?

The defendant argues that the indictment in this case fails to allege a due and proper investigation or inquiry within the scope of section 1505 because the requests and proceedings referenced in the indictment (1) were not issued by any “committee of either House” and (2) were not issued pursuant to “the due and proper exercise of the power of inquiry” of any such committee. 18 U.S.C. § 1505.

a. Not the Action of a “Committee”:

Specifically, regarding the May 14, 2010 letter referenced in the indictment, the defendant argues that the letter does not constitute an inquiry or investigation under section 1505 because the letter was written by Representative Edward Markey in his capacity as an individual Member of Congress, not as part of any duly authorized committee investigation. In support of this argument, the defendant raises several points of fact: (1) unlike letters issued by the Committee on Energy and Commerce (“the Committee”) and its Subcommittee on Oversight and Investigations ⁴ (“the Committee investigation”) and later Committee communications joined by Representative Markey in his capacity as chairman of the Subcommittee,⁵ the May 14 letter ⁶ does not expressly reference any committee investigation; (2) unlike letters issued in connection with the Committee investigation and later communications joined by Representative Markey in his capacity as chairman of the Subcommittee, the May 14 letter is written in the first person singular (“I am concerned ...,” “I would therefore ask ...”) rather than the third person and first person plural, specifically identifying the committee seeking the information requested (“The Committee on Energy and Commerce is investigating the April 20, 2010 explosion.... To assist the Committee in its ongoing investigation, we request that you respond ...”); (3) unlike letters issued in connection with the Committee investigation and later communications joined by Representative Markey in his capacity as chairman of the Subcommittee, the May 14 letter references Representative Markey's own personal concerns (“I am concerned ...,” “I would therefore ask ...”) rather than the subject matter of any committee investigation; (4) unlike letters issued in connection with the Committee investigation, the May 14 letter requests that information be provided to Representative Markey's own staff rather than to committee staff or subcommittee staff; and (5) the website...