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United States v. Pacific Gas and Electric Co.

United States District Court, N.D. California

July 19, 2016

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

          ORDER SUSTAINING AND OVERRULING IN PART DEFENDANT’S OBJECTIONS TO EXHIBITS THE GOVERNMENT SEEKS TO OFFER THROUGH AGENT SANDRA FLORES

          THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

         On July 15, 2016, Defendant Pacific Gas and Electric Company (“PG&E”) filed objections to several exhibits the Government intends to offer through Agent Sandra Flores. Dkt. No. 757 (“Flores Objs.”). The Government offered an oral opposition to these objections on the same morning. After carefully considering the parties’ arguments, the Court now SUSTAINS IN PART and OVERRULES IN PART PG&E’s objections.

         BACKGROUND

         On July 15, 2016, PG&E filed written objections to several exhibits the Government intends to offer through Agent Sandra Flores. These objections were filed only minutes before trial commenced on the same day Ms. Flores was set to begin testifying, and concerned alleged infirmities in two of her proposed exhibits: Government’s Exhibits 967 and 988.[1]

         When the time came for Ms. Flores to testify, PG&E raised yet another concern regarding her testimony; namely, that the Government had recently and substantially revised Exhibit 988, such that PG&E could not be expected to offer effective cross-examination on the new version of the exhibit. Trial Tr., Vol. 22 at 3236:23-3237:6; 3238:6-3239:19; 3241:11-3242:14. PG&E also notified the Court at this time that it objected to the admission of yet another Flores exhibit, which it had received only the night prior: Exhibit 998. Id. at 3239:21-3240:19. PG&E therefore moved to “strike the evidence, [and] strike the witness. And if not, [requested] to break so [counsel] could spend the weekend trying to figure out what in the world [he’s] supposed to do.” Id. at 3242:15-18.

         The Government then offered oral argument explaining: (i) the discrepancies between the two versions of Exhibit 988; (ii) its opposition to PG&E’s written objections to Exhibits 967 and 988, which included handing the Court copies of two Ninth Circuit cases it believes are relevant to these objections; and (iii) its explanation concerning recently disclosed Exhibit 998. Id. at 3243:1-3251:21.

         Given the unsettled state of the Flores exhibits, the Court adjourned for the day (two hours ahead of schedule) and ordered the parties to meet and confer on the Exhibit 988 versioning issue. Id. at 3252:20-3253:2. The parties were able to reach agreement regarding the two versions of Exhibit 988, id. at 3253:7-20, so only PG&E’s substantive objections remain.

         DISCUSSION

         As a threshold matter, it is entirely unclear how PG&E could have believed the Court permitted its filing of a pages-long and authority-heavy brief objecting to Government exhibits only minutes before trial on the very morning those exhibits were to be offered, and it is even less clear how PG&E could have believed the Court would have time to consider this brief (and the Government’s opposing authorities) while simultaneously presiding over trial. The wasted trial time that resulted is precisely the reason the Court requires that any and all objections to exhibits be made the day prior to the exhibits’ proposed admission. Dkt. No. 434 at 1. Moving forward, the parties are reminded, yet again, [2] that the Court’s procedure is to orally hear any objections to exhibits to be offered in a party’s case-in-chief on the day prior to the exhibits’ proposed admission. Id. Though the Court has occasionally permitted the filing of written objections and written responses, either because the objections were voluminous or because time permitted fuller briefing, this is the exception, not the rule.

         I. Government’s Exhibit 967 is excluded.

         Government’s Exhibit 967 is a June 16, 2014 letter attaching a grand jury subpoena to PG&E for certain strength test pressure records based on an earlier submission PG&E made to the California Public Utilities Commission (“CPUC”). PG&E objects that Exhibit 967 “is irrelevant, unduly prejudicial, and will lead to juror confusion.” Flores Objs. at 1. Specifically, PG&E argues “the only conceivable reason to introduce the subpoena is to somehow argue about PG&E’s compliance with it, ” which “is not an issue for the trial jury.” Id. The Government responds only that the grand jury subpoena built upon a CPUC data response the Court separately ruled was admissible, and that the superseding indictment built upon PG&E’s response to the grand jury subpoena. Trial Tr., Vol. 22 at 3249:5-3250:16.

         Given the Government’s repeated references to this very grand jury subpoena in complaining about PG&E’s piecemeal disclosure of Strength Test Pressure Reports (“STPRs”), the Court shares PG&E’s concern that Exhibit 967 is motivated by a desire to suggest PG&E has been less-than-forthcoming with its STPRs. See, e.g., Trial Tr., Vol. 10 at 1483:10-1484:11.[3] But what the Government must prove beyond a reasonable doubt, to the trial jury, is that PG&E knowingly and willfully failed to make and retain strength test pressure records as required by 49 C.F.R. § 192.517. The Government has offered no reason that an old grand jury subpoena for such records furthers this effort, but it is easy to imagine how the admission of the subpoena itself would cause an unnecessary diversion into the grand jury investigation, thereby confusing the issues.

         Accordingly, the Court agrees with PG&E that Exhibit 967 is both irrelevant under Federal Rule of Evidence (“Rule”) 401 and therefore readily outweighed by the risk of juror confusion under Rule 403. PG&E’s objection to the admission of Government’s Exhibit 967 is therefore SUSTAINED.

         II. Government’s ...


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