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United States v. Pacific Gas and Electric Co.

United States District Court, N.D. California

September 29, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
PACIFIC GAS AND ELECTRIC COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO STRIKE SURPLUSAGE IN THE INDICTMENT

          THELTON E. HENDERSON United States District Judge

         INTRODUCTION

         In a Superseding Indictment (the “Indictment”) filed on July 30, 2014, the United States charged Defendant Pacific Gas and Electric Company (“PG&E”) with one count of obstructing a National Transportation Safety Board (“NTSB”) investigation, and twenty-seven counts of violating the Natural Gas Pipeline Safety Act (“PSA”). (Docket No. 22). In the Indictment, the Government also sought an alternative fine under 18 U.S.C. § 3571(d). On August 8, 2014, Defendant Pacific Gas and Electric Company filed a motion to strike allegedly surplus language in the Indictment. (Docket No. 33). On September 22, 2014, the Court heard oral arguments on this matter. After carefully considering the parties' submissions and oral arguments, the Court now DENIES PG&E's motion to strike surplusage for the reasons set forth below.

         BACKGROUND

         On September 9, 2010, a gas line owned and operated by PG&E ruptured, causing a fire that killed eight people and injured fifty-eight others. Additionally, the fire damaged 108 homes, thirty-eight of which were completely destroyed. Ind. ¶ 5. In July of 2014, a Grand Jury returned a superseding indictment charging PG&E with twenty-seven counts of violating the Pipeline Safety Act, and one count of obstructing the Government's investigation of the explosion and PG&E's Integrity Management program.

         The Indictment contains one paragraph (Paragraph 5 under “Introductory Allegations”) that explicitly describes the explosion:

On September 9, 2010, at approximately 6:11 p.m., a portion of Line 132 (Segment 180) ruptured in a residential neighborhood of the City of San Bruno (the “San Bruno explosion”). Gas escaping from the rupture ignited, causing a fire that killed eight people and injured 58 others. The fire also damaged 108 homes, 38 of which were completely destroyed.

         The remaining references to the San Bruno explosion in the Indictment refer to it in the context of PG&E's activities preceding the explosion and as the subject of a subsequent investigation that PG&E allegedly obstructed. Ind. ¶¶ 22, 34, 35, 43, 45, 50, 61.

         The National Transportation Safety Board began an investigation the day after the explosion, which examined the cause of the explosion, the characteristics and history of the failed pipeline, the adequacy of PG&E's emergency response, and PG&E's operations. The investigation revealed a number of deficiencies in PG&E's record keeping, Integrity Management program, and maintenance practices as they related to various sections of the pipeline - including Line 132, the line that ruptured in San Bruno. Ind. ¶¶ 54-60. These alleged deficiencies form the basis of the criminal charges against PG&E for violating the Natural Gas Pipeline Safety Act.

         Count One of the Indictment charges PG&E with obstructing the NTSB investigation into the San Bruno explosion, in violation of Title 18, United States Code § 1505. Counts Two through Twenty-Eight charge PG&E with various violations of the Natural Gas Pipeline Safety Act. For the purpose of determining the maximum alternative fine pursuant to Title 18, United States Code § 3571(d), the Indictment also alleged that PG&E derived gross gains from its misconduct in the amount of approximately $281 million, and that victims suffered losses of approximately $565 million. Ind. ¶ 76.

         LEGAL STANDARD

         An indictment must be a “plain, concise, and definite written statement of the essential facts constituting the offense charged . . . .” Fed. R. Crim. P. 7(c). “On the defendant's motion, the court may strike surplusage from the indictment . . . .” Id. at 7(d). “The purpose of Rule 7(d) is to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.” United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983); see also Fed. R. Crim. P. 7 advisory committee's note. The decision to strike surplusage is subject to the district court's discretion. United States v. Laurienti, 611 F.3d 530, 546 (9th Cir. 2010); United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988).

         An indictment is sufficient if it: (1) contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend; and (2) contains sufficient facts to allow a defendant to raise a double jeopardy bar to subsequent prosecutions arising from the same actions. United States v. Lazarenko, 564 F.3d 1026, 1033 (9th Cir. 2009). Under the Alternative Fines Act (“AFA”), the government must prove to a jury beyond a reasonable doubt any facts used to establish a fine greater than the statutory maximum. See Southern Union Co. v. United States, 132 S.Ct. 2344, 2348-49 (2012).

         DISCUSSION

         1. The Indictment's References to the Explosion are Relevant

         PG&E contends that references to the explosion are irrelevant to the charges returned by the Grand Jury and will serve only to prejudice the trial. Mot. at 4 (Docket No. 33). Federal Rule of Criminal Procedure 7(d) provides a trial court with the discretion to strike surplusage from an indictment in order “to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.” Terrigno, 838 F.2d at 373 (quotation marks omitted); Fed. R. Crim. P. 7(d) advisory committee's note. Therefore, language in an indictment that is relevant to the charges is not surplusage, and a court need not balance relevance against prejudice in deciding a motion to strike. See United States v. Laurienti, 611 F.3d 530, 546-47 (9th Cir. 2010) (“Even if the use of the word “unlawful” could be considered prejudicial, we hold that the district court nevertheless did ...


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