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United States v. Pacific Gas and Electric Co.

United States District Court, N.D. California

July 12, 2016

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

          ORDER GRANTING IN PART DEFENDANT'S MOTION FOR A LIMITING INSTRUCTION AND OTHER RELIEF REGARDING EVIDENCE OF THE SAN BRUNO RUPTURE

          THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

         On July 10, 2016, Defendant Pacific Gas and Electric Company ("PG&E") filed a Motion for a Limiting Instruction and Other Relief Regarding Evidence of the San Bruno Rupture. Dkt. No. 733 ("Mot."). The Government timely opposed the motion, Dkt. No. 735 ("Opp'n"), and the Court held oral argument the following afternoon, Dkt. No. 739. After carefully considering the parties' written and oral arguments, the Court hereby GRANTS IN PART PG&E's motion, for the reasons set forth below

         BACKGROUND

         This Court previously denied PG&E's motion in limine to exclude all evidence and argument relating to the September 9, 2010 San Bruno pipeline explosion, but drew careful limitations on how such evidence and argument may be presented to the jury. Dkt. No. 460 ("MIL Order") at 5-12. Since trial began, the Court has issued multiple curative instructions to guarantee the jury understands that it is not tasked with determining what did or did not cause the San Bruno explosion, and that it will hear no evidence about the cause of that explosion. See, e.g., Trial Tr., Vol. 10 at 1343:12-1344:6.

         On July 6-8 2016, the Government questioned William Manegold on direct examination regarding his work as a former employee of PG&E. At the close of testimony on Friday, July 8, 2016, PG&E expressed the following concerns: that "the explanation for why people are doing program reviews" - which Mr. Manegold had discussed during his testimony - "is because they were looking at the program [after the San Bruno explosion]"; that the jury would need this context to understand those "program reviews"; but that if PG&E "ask[s] a question [related to the San Bruno explosion], the Government is going to say: You've opened the door" to more San Bruno evidence. Trial Tr., Vol. 17 at 2556:20-2557:2. Counsel for PG&E therefore sought leave to "file a short brief for [the Court] to read . . . to [establish clarity] on what [he] can ask and what [he] can't ask related to San Bruno." Id. at 2556:17-19. The Court permitted the parties to brief this issue, with a brief due from PG&E by "end of the day" Sunday, July 10, 2016, a reply due from the Government by noon on July 11, 2016, and a hearing to be held at 4:00 P.M. on July 11, 2016.

         The motion PG&E actually filed at 11:12 P.M. on Sunday, July 10, 2016 differed in many respects from the brief PG&E requested leave to file. While PG&E had previously sought only clarity on what cross-examination would be permitted without "opening the door" to further San Bruno evidence, PG&E now seeks three remedies: (1) that "the Court should give the jury a cautionary instruction, reaffirming its earlier instruction"; (2) that "the Court should allow defense evidence about activity after San Bruno without concern of inviting more Government evidence beyond that permitted by the in limine order"; and (3) that "the Court should exclude the [California Public Utilities Commission (‘CPUC')] data responses and strike all related testimony." Mot. at 6-7.

         DISCUSSION

         Though the Court agrees with the Government that "[o]nly twenty-two lines of [PG&E's Motion] addresses the topic on which the Court authorized briefing, " Opp'n at 1, the Court finds good cause to address PG&E's three requests, and does so below.

         I. The Court GRANTS PG&E's motion for a limiting instruction.

         Though not the topic of PG&E's initially requested briefing, the Court agrees with PG&E that "[i]t is time to be honest with the jury" about the San Bruno explosion, because "without context, the jury is being improperly led to believe that [CPUC and National Transportation Board (‘NTSB')] scrutiny indicates guilt." Mot. at 2. The Court has long been concerned that evidence of CPUC's or NTSB's conclusions about either the San Bruno explosion or PG&E's regulatory compliance "would unfairly encourage the jury to abdicate its critical role as fact-finder, " in part because "there is a substantial risk that the jury may assume that if the CPUC, an authoritative government agency, imposed remedial measures on PG&E, then PG&E is deserving of punishment." MIL Order at 17 (internal quotation marks and alterations omitted). This is why the Court carefully constructed its in limine Order to exclude CPUC's and NTSB's conclusions about the San Bruno explosion and PG&E's regulatory compliance. Id. at 14-17.

         But the Court's rationale for excluding CPUC and NTSB conclusions does not apply to the data responses PG&E provided to CPUC and NTSB in the process, as the responses themselves indicate nothing about either agencies' resulting conclusions or remedial measures. Meanwhile, because many such responses concern the conduct or policy at issue in Count 1 and the regulatory compliance at issue in Counts 2-13, rendering them independently admissible evidence on those counts, [1] it was inevitable that the existence of the CPUC and NTSB investigations would surface. And it is unsurprising that PG&E now seeks to provide context for the responses it provided in those investigations. The Court is therefore pleased that PG&E finally agrees that the best course of action in this criminal trial is to mention the San Bruno explosion to the jury, but to mention it carefully.[2]

         The Court further agrees with PG&E that "the best way to solve this [context] problem is through a limiting jury instruction, rather than hav[ing] [counsel] flail around trying to figure out what evidence to put on and what not to . . . ." Trial Tr., Vol. 18 at 2564:25-2565:2. Accordingly, the Court hereby GRANTS PG&E's request for a limiting jury instruction. The Court will read the jury instruction proposed by PG&E, see Mot. at 6, with minor modifications, before testimony begins this morning.

         II. The Court DENIES WITHOUT PREJUDICE PG&E's motion to permit context evidence without concern of inviting more Government evidence.

         PG&E's second request - that PG&E "be free to introduce evidence of the massive investigations after the explosion as necessary-without risk of the government arguing or implying that any allegation in this case led to the rupture, or attempting to confuse the record further by seeking to admit still more evidence of any regulatory investigations, " Mot. at 2 - is the only request even arguably contemplated by the originally permitted briefing. And ...


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