United States v. Pacific Gas and Electric Co.

          ORDER REGARDING JURY INSTRUCTIONS ON INTENT ELEMENTS FOR REGULATORY COUNTS

          THELTON E. HENDERSON United States District Judge

         Defendant Pacific Gas and Electric Company (“PG&E”) is charged with twelve crimes under 49 U.S.C. § 60123(a) (“Section 60123(a)”). That statute makes it a crime for any person to “knowingly and willfully” violate any regulation prescribed or order issued under 49 U.S.C. Chapter 601, or the “Pipeline Safety Act.” The twelve counts brought under Section 60123(a) charge PG&E with violating seven such regulations: 49 C.F.R. § 192.917(b) (Count 2); 49 C.F.R. § 192.709(a) (Counts 3-4); 49 C.F.R. § 192.917(a) (Count 5); 49 C.F.R. § 192.919 (Count 6); 49 C.F.R. § 192.917(e)(3) (Count 7); 49 C.F.R. § 192.917(e)(4) (Count 8); and 49 C.F.R. § 192.517(a) (Counts 9-13).

         To facilitate the jury instruction conference with respect to the intent elements of these regulatory counts, the Court provides this written explanation of its jury instructions on those elements. The Court lists below each jury instruction related to Section 60123(a)’s “knowing” and “willful” elements, ^[1] and then explains the legal basis for that instruction.

         I. KNOWINGLY-DEFINED

         Jury Instruction No. 25 - “KNOWINGLY-DEFINED” - reads:

An act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake, or accident. You may consider evidence of the defendant’s words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

         The parties agree on this definition of “knowingly, ” which is rooted in Ninth Circuit Model Criminal Jury Instruction 5.6. U.S.’s Separately Proposed Jury Instructions (“Gov’t Instrs.”) at 3 (Dkt. No. 303); Def.’s Objs. to Gov’t’s Proposed Jury Instructions (“Def.’s Objs.”) at 3 (Dkt. No. 310).

         II. KNOWLEDGE OF A CORPORATION

         Jury Instruction No. 26 - “KNOWLEDGE OF A CORPORATION” - reads:

The knowledge obtained by corporate employees acting within the scope of their employment is imputed to the corporation. Accordingly, if a specific employee knows something within the scope of his or her employment, then the corporation can be said to know that same thing.

The corporation is also considered to have acquired the collective knowledge of its employees. The corporation’s “knowledge” is therefore the totality of what its employees know within the scope of their employment.

         As this Court previously held, “[t]here is ample persuasive precedent and widespread acceptance of legal treatises that define a ‘collective knowledge’ theory to prove that a corporate defendant acted ‘knowingly.’” Order Den. Def.’s Mot. to Dismiss for Erroneous Legal Instructions (“First Order”) at 5 (Dkt. No. 219). For example, in United States v. Bank of New England, 821 F.2d 844 (1st Cir. 1987), the First Circuit held that “[a] collective knowledge instruction is entirely appropriate in the context of corporate criminal liability.” 821 F.2d at 856. The Bank of New England court therefore upheld the trial court’s instruction that: “[A bank’s] knowledge is the sum of the knowledge of all of the employees. That is, the bank’s knowledge is the totality of what all of the employees know within the scope of their employment.” Id. at 855.

         III. ...