United States v. David Rainey

Case: 13-30770 Document: 00512679902 Page: 1 Date Filed: 06/27/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-30770 June 27, 2014

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellant

v.

DAVID RAINEY,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Distilled, this appeal raises a pure question of statutory interpretation.

Congress criminalizes obstructing “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.” 18

U.S.C. § 1505. The defendant contends, and the district court agreed, that he

cannot be prosecuted under § 1505 for obstructing a congressional-

subcommittee investigation because a congressional subcommittee is not “any

committee of either House.” We interpret the statutory class of “any committee

of either House,” however, to include congressional subcommittees. We

VACATE accordingly.

Case: 13-30770 Document: 00512679902 Page: 2 Date Filed: 06/27/2014

No. 13-30770

I.

This criminal prosecution stems from BP plc’s (“BP”) response to the

explosion on the Deepwater Horizon drilling rig on April 20, 2010. The

defendant is David Rainey, BP’s former Vice President of Exploration for the

Gulf of Mexico. 1

A.

Following the explosion, the United States Coast Guard coordinated the

spill response by forming a “Unified Command” and installing Rainey as

Deputy Incident Commander. Flow-rate estimates, stated in barrels of oil

flowing from the well per day (“BOPD”), acted as the primary metric for

gauging the spill’s severity and therefore were integral to tailoring response

efforts. Initially, the Unified Command estimated a flow-rate of 1,000 BOPD,

but the National Oceanic and Atmospheric Administration (“NOAA”)

suggested that the flow rate was in fact 5,000 BOPD. The NOAA accompanied

its flow-rate estimate with a number of qualifiers, including that its

methodologies were “highly unreliable,” that its estimate was accurate “to only

an order of magnitude,” and that the actual flow rate could potentially exceed

5,000 BOPD by ten times. Acknowledging the NOAA estimate, the Unified

Command raised its public estimate to 5,000 BOPD.

The NOAA estimate also inspired Rainey independently to research and

conduct his own flow-rate estimates. Rainey surfed the internet for “mass-

balance” estimates, which is a method to conduct oil-spill estimates based on

observing oil floating on the water’s surface. Rainey discovered two generally

accepted mass-balancing techniques: the American Society for Testing and

Materials (“ASTM”) method and the European (“Bonn”) method. Rainey’s Bonn

estimates were significantly higher than 5,000 BOPD, reaching upwards of

1 The facts in this section are stated as alleged in the original indictment.

2

Case: 13-30770 Document: 00512679902 Page: 3 Date Filed: 06/27/2014

No. 13-30770

92,000 BOPD. As alleged in the indictment, Rainey’s ASTM estimates did not

conform to ASTM standards and were “manipulated to consistently arrive at

or near a ‘best guess’ of between 5,000 and 6,000 BOPD.” Aware of competing

estimates, Rainey and other BP executives nevertheless maintained that 5,000

BOPD was the “best guess estimate.” Internally, by contrast, BP relied on

expert teams using sophisticated methodologies that focused on the conditions

at the seafloor. Subsurface engineers at BP sent Rainey their estimates, which

estimated that flow rates ranged from 64,000 to 146,000 BOPD. Rainey also

knew that other BP engineers estimated a range of 14,000 to 82,000 BOPD.

Conflict between BP’s engineers and Rainey notwithstanding, BP stood

by its 5,000 BOPD estimate and publically rejected a professor’s estimate that

the flow rate was approximately 70,000 BOPD. Privately, it is alleged, a BP

engineering supervisor sent an email to executives explaining that “[w]e

should be very cautious standing behind a 5,000 BOPD figure as our modeling

shows that this well could be making anything up to ~100,000 BOPD

depending on a number of unknown variables.” Rainey received this email, and

it fell to him to draft a memorandum defending BP’s allegiance to the 5,000

BOPD estimate. The “Rainey Memorandum,” as it is referred to in the

indictment, selectively omitted evidence calling into question BP’s 5,000 BOPD

estimate and made material misrepresentations. Among other things, the

Rainey Memorandum omitted Rainey’s own Bonn estimates and represented

that Rainey’s own ASTM estimates were central to the Unified Command’s

decision to raise its estimate to 5,000 BOPD even though Rainey had not

provided his ASTM estimates to the Unified Command in advance of the

decision to raise the estimate. BP’s estimate became harder to sustain,

however, and the Unified Command created the “Flow Rate Technical Group,”

which consisted of independent and government experts. The Flow Rate

Technical Group estimated that the flow rate after the blowout was

3

Case: 13-30770 Document: 00512679902 Page: 4 Date Filed: 06/27/2014

No. 13-30770

approximately 62,000 BOPD and was 53,000 BOPD at the time the well was

shut.

Enter the House Subcommittee on Energy and Environment (the

“Subcommittee”), which was a subcommittee of the Committee on Energy and

Commerce of the House of Representatives of the United States Congress. The

Subcommittee investigated the blowout and spill, and requested information

from BP. In response to a Congressional request for briefing, Rainey informed

the Subcommittee that 5,000 BOPD was the most accurate estimate. He

explained that the “worst case” scenario was 60,000 BOPD, but that this

scenario was not possible in part because it assumed removal of the blowout

preventer from the wellhead. Rainey did not disclose his own Bonn estimates

and other BP internal estimates indicating that the flow rate was higher than

5,000 BOPD.

Subsequently, the Subcommittee Chairman sent BP a letter accusing it

of understating the flow rate and requested that BP respond to fifteen

questions relating to its flow-rate calculations. Among other requests, the

Subcommittee requested that BP explain what methodology supported its

5,000 BOPD estimate, that BP produce all of its documents that relate to its

flow-rate estimates, and that BP provide its current estimate of the flow rate

and its methodology supporting that estimate. Rainey was the primary source

of flow-rate information for BP’s response to the Subcommittee. Rainey was

aware that everyone within the Flow Rate Technical Group agreed that 5,000

BOPD was too low, but he did not disclose this disagreement to BP’s lawyers

and other BP employees. Indeed, BP’s response omitted key information which

would have undercut its 5,000 BOPD estimate. The response did not include,

among other things, Rainey’s Bonn estimates that ranged up to 92,000 BOPD,

key parts of the supervising engineer’s estimates ranging up to 82,000 BOPD,

the supervising engineer’s email indicating concern with BP’s 5,000 BOPD

4

Case: 13-30770 Document: 00512679902 Page: 5 Date Filed: 06/27/2014

No. 13-30770

estimate, and the subsurface engineers’ estimates ranging up to 146,000

BOPD. BP’s response also appended Rainey’s prior memorandum defending

the 5,000 BOPD estimate.

B.

A federal grand jury indicted Rainey for one count of obstructing

Congress in violation of 18 U.S.C. § 1505, and one count of making false

statements in violation of 18 U.S.C. § 1001. Rainey moved to dismiss the

obstruction count (count one) on four separate grounds. First, Rainey argued

that § 1505 applies only to a duly authorized inquiry or investigation by a

committee and that the Subcommittee Chairman was acting in his individual

capacity rather than on behalf of a duly authorized committee investigation

when he sent the relevant questionnaire to BP. Second, Rainey argued that

the indictment failed properly to allege that he knew of the pending

congressional investigation, which is an essential element of § 1505. Third,

Rainey argued that § 1505 does not apply to the obstruction of subcommittee

investigations. Fourth, Rainey argued that § 1505 was unconstitutionally

vague.

On May 20, 2013, the district court dismissed the obstruction count on

two alternative grounds. First, the district court determined that § 1505 did

not apply to subcommittee investigations and, second, the district court ruled

that the indictment did not allege that Rainey knew of the Subcommittee’s

investigation. On June 19, 2013, the Government moved the district court to

reconsider its ruling. That same day a federal grand jury returned a

superseding indictment. The district court subsequently denied

reconsideration on June 21, 2013, and on July 19, 2013, the Government filed

its notice of appeal.

5

Case: 13-30770 Document: 00512679902 Page: 6 Date Filed: 06/27/2014

No. 13-30770

II.

Three issues postpone our discussion of § 1505, as neither party thinks

we should decide this appeal. Rainey moves to dismiss the Government’s

interlocutory appeal as untimely and, alternatively, as moot. The Government,

for its part, requests that we hold the appeal in abeyance pending the district

court’s ruling on the superseding indictment. We deny all three motions.

A.

In a criminal case, an affirmative appeal by the Government “shall be

taken within thirty days after the decision, judgment or order has been

rendered.” 18 U.S.C. § 3731. The district court dismissed count one on May 20,

2013, but on the thirtieth day after the dismissal, the Government moved the

district court to reconsider its ruling. The Government filed its notice of appeal

within thirty days after the district court denied its motion to reconsider, but

sixty days after the initial dismissal. Rainey argues that the Government’s

notice of appeal was outside of the thirty-day window provided by § 3731 and

therefore is untimely.

Deflating Rainey’s argument is the Supreme Court’s decision in United

States v. Healy, which held that “a timely petition for rehearing by the

Government filed within the permissible time for appeal renders the judgment

not final for purposes of appeal until the court disposes of the petition.” 376

U.S. 75, 77–78 (1964). By validating the exact sequence in this case, Healy

explained that its holding was “consistent with a traditional and virtually

unquestioned practice.” Id. at 79. The Supreme Court has repeatedly

reaffirmed Healy. See United States v. Ibarra, 502 U.S. 1, 6–8 (1991) (per

curiam); United States v. Dieter, 429 U.S. 6, 7–9 (1976) (per curiam). Our

circuit has followed Healy without pause. See, e.g., United States v. Greenwood,

974 F.2d 1449, 1466–67 (5th Cir. 1992).

6

Case: 13-30770 Document: 00512679902 Page: 7 Date Filed: 06/27/2014

No. 13-30770

Rainey counters that Bowles v. Russell overrules Healy and its progeny.

551 U.S. 205 (2007). In Bowles, the Supreme Court held that a district court

could not extend a party’s time for filing an appeal beyond the statutorily

prescribed period. Id. at 206. The Court reasoned that “[l]ike the initial 30–day

period for filing a notice of appeal, the limit on how long a district court may

reopen that period is set forth in a statute.” Id. at 213. The filing period is a

jurisdictional limit, the Court continued, and “this Court has no authority to

create equitable exceptions to jurisdictional requirements.” Id. at 214.

There is a certain friction between Healy’s atextual recognition that a

motion to reconsider renders a judgment not final and Bowles’s elimination of

judge-made exceptions to statutory filing periods, but we must read these cases

favoring reconciliation, especially when Bowles does not mention Healy or any

of the cases Rainey contends are now overruled. See, e.g., In re Pilgrim’s Pride

Corp., 690 F.3d 650, 663 (5th Cir. 2012) (“[W]e exercise restraint when

determining whether a Supreme Court decision has produced an intervening

change in the law.”). The Supreme Court instructs that if “a precedent of this

Court has direct application in a case, yet appears to rest on reasons rejected

in some other line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of overruling its

own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) (internal quotation

marks omitted). Healy directly controls and also may be distinguished from

Bowles because it does not extend the statutory prescribed filing period, but

delineates when the thirty-day period begins to run. Under Healy, the

Government continues to be bound by the thirty-day requirement, but the

judgment becomes final, and the clock begins to run, only after the disposition

of a timely filed motion to reconsider. Therefore, and consistent with our sister

circuits’ continuing application of Healy after Bowles, we hold that the

Government’s appeal is timely. See United States v. Cook, 599 F.3d 1208, 1212–

7

Case: 13-30770 Document: 00512679902 Page: 8 Date Filed: 06/27/2014

No. 13-30770

13 (10th Cir. 2010); United States v. Henderson, 536 F.3d 776, 778–79 & n.2

(7th Cir. 2009).

B.

The same day that the Government moved the district court to

reconsider the dismissal of count one, a federal grand jury returned a

superseding indictment. The superseding indictment purports to correct

defects identified by the district court and appealed to us, including that

Rainey obstructed a committee of the House rather than a subcommittee.

Rainey contends that the return of a superseding indictment moots the

Government’s appeal of the original indictment. We have recognized, however,

that “two indictments may be outstanding at the same time for the same

offense if jeopardy has not attached to the first indictment.” United States v.

Stricklin, 591 F.2d 1112, 1116 & n.1 (5th Cir. 1979). More exactly,

[t]he filing of the second superseding indictment, upon which the

Government apparently intends to try defendant, does not moot

this appeal because the first superseding indictment is presently

still pending and because the conspiracy counts in the first and

second superseding indictments are identical so that any decision

here would control the disposition of a motion directed at the

subsequent indictment.

United States v. Lee, 622 F.2d 787, 789 (5th Cir. 1980).

Rainey insists that the superseding indictment proceeds on a different

ground than the original indictment, and therefore the outcome of this appeal

cannot have any future impact. But in Stricklin, a superseding indictment did

not render the appeal moot; indeed, we considered “both indictments for

purposes of this review.” Stricklin, 591 F.2d at 1116 n.1. The Government in

Stricklin “indicated that it may attempt to proceed on a combination of the two

indictments because the superceding [sic] indictment deals only with a portion

of the original indictment’s charges.” Id. Equally here, the Government

represents that “if the district court’s order were reversed, [it] could proceed on

8

Case: 13-30770 Document: 00512679902 Page: 9 Date Filed: 06/27/2014

No. 13-30770

a theory that Section 1505 prohibits obstruction of inquiries by both full

committees and subcommittees by, for example, seeking to once again

supersede the indictment to include this theory.” Because Rainey has not

demonstrated that “the issues presented are no longer live,” we apply our

controlling precedent in Stricklin and deny his motion to dismiss. AT&T

Commc’ns of Sw., Inc. v. City of Austin, 235 F.3d 241, 243 (5th Cir. 2000). 2

C.

The Government next asks us to invoke our discretion to hold this appeal

in abeyance pending the district court’s resolution of Rainey’s motion to

dismiss the superseding indictment. The Government represents that if the

superseding indictment survives dismissal, it would dismiss this appeal.

Because resolution of this appeal will clarify the proceedings below and

because the superseding indictment might too be dismissed, we deny the

Government’s motion. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)

(“[T]he power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the causes on its docket with economy of time

and effort for itself, for counsel, and for litigants.”).

III.

Section 1505 is entitled “[o]bstruction of proceedings before departments,

agencies, and committees.” The statute punishes criminally whoever obstructs

“the due and proper exercise of the power of inquiry under which any inquiry

2 Rainey’s reliance on United States v. Scott, 884 F.2d 1163 (9th Cir. 1989) is

misplaced. In Scott, the Ninth Circuit acknowledged that “when an indictment is dismissed

and replaced with an information charging offenses different than those contained in the

indictment, any challenge to the legal sufficiency of the indictment becomes moot,” reasoning

that “[w]ere we to overturn the indictment in such a case, it would have no effect on the

defendant’s conviction under the superseding information.” Id. at 1164. The Ninth Circuit

went on to explain, however, that “[c]onversely, when it is within our power, in deciding the

appeal from the first indictment, to affect the resolution of the government’s case against the

defendant under the second, the appeal from the first indictment is not moot.” Id. at 1165

(citing Lee, 622 F.2d at 789).

9

Case: 13-30770 Document: 00512679902 Page: 10 Date Filed: 06/27/2014

No. 13-30770

or investigation is being had by either House, or any committee of either House

or any joint committee of the Congress.” 18 U.S.C. § 1505. Because the district

court found § 1505 ambiguous—tolerating competing interpretations of “any

committee of either House”—it invoked the rule of lenity to dismiss count one.

Our de novo interpretation 3 reads § 1505 differently because, under its plain

meaning, a congressional subcommittee is “any committee of either House.”

§ 1505. Section 1505 is not boundless, but it is not ambiguous, either. See, e.g.,

Loughrin v. United States, No. 13-316, 2014 WL 2807180, at *4 (U.S. June 23,

2014) (noting that “[Loughrin’s] proposed inquiry would thus function as an

extra-textual limit on the clause’s compass” because “imposing that

requirement would prevent [18 U.S.C.] § 1344(2) from applying to a host of

cases falling within its clear terms”).

A.

“Courts in applying criminal laws generally must follow the plain and

unambiguous meaning of the statutory language.” Salinas v. United States,

522 U.S. 52, 57 (1997). We determine whether a statute is plain or ambiguous

by “reference to the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole.” Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997). The text is plain and determinative, and all

tools of statutory construction favor reading § 1505 to include congressional

subcommittees.

1.

Section 1505 leaves “committee” undefined. The district court

recognized that given its ordinary, plain meaning, the statutory language “any

committee of either House” encompasses congressional subcommittees.

Dictionary definitions of “committee” have remained markedly similar dating

3 United States v. Gore, 636 F.3d 728, 730 (5th Cir. 2011).

10

Case: 13-30770 Document: 00512679902 Page: 11 Date Filed: 06/27/2014

No. 13-30770

back to § 1505’s enactment in 1940. A committee was defined then as “[a] body

of persons appointed or elected to consider, investigate, or take action upon,

and usually to report concerning, some matter or business, as by a court,

legislative body, or a number of persons.” WEBSTER’S NEW INTERNATIONAL

DICTIONARY 449 (1924); WEBSTER’S SECOND NEW INTERNATIONAL DICTIONARY

539 (1934) (same). A “subcommittee,” in turn, has also been consistently

defined during § 1505’s operation as “[a]n under committee; a part or division

of a committee.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 2066 (1924); see

also WEBSTER’S SECOND NEW INTERNATIONAL DICTIONARY 2058 (1934) (same).

Simply put, the House Subcommittee on Energy and Environment is one type

of committee (an under committee) of the House and therefore is covered by

the statutory language “any committee of either House.” § 1505. Moreover,

§ 1505 modifies “committee” with “any.” § 1505 (emphasis added). If Congress

intended “committee” as a term of art, which under Rainey’s proposed

interpretation excludes other committee types, “a committee of either House”

would perfectly define the class intended. The modifier “any,” by contrast,

suggests inclusion rather than exclusion. See also § 1505 (identifying “any joint

committee” as protected).

Rainey contends that this plain reading should give way to a “technical”

reading because this statute operates in the “congressional context.” Rainey’s

argument faces an uphill battle because “[i]t is long settled that words in

statutes should be given their ordinary, popular meaning unless Congress

clearly meant the words in some more technical sense.” United States v. Nat’l

Broiler Mktg. Ass’n, 550 F.2d 1380, 1386 (5th Cir. 1977) (emphasis added); see

also United States v. Hubbard, 480 F.3d 341, 348 (5th Cir. 2007) (“The question

is whether there is sufficient indication that Congress indicated something

other than the generic definitions of the terms it used.”). The fixed default rule

of plain meaning is especially appropriate in the criminal context, where the

11

Case: 13-30770 Document: 00512679902 Page: 12 Date Filed: 06/27/2014

No. 13-30770

statute’s primary audience is not the legislators it protects but the would-be

obstructors attempting to discern their potential exposure. See, e.g., Holloway

v. United States, 526 U.S. 1, 6 (1999) (“Justice White reminded us that the

language of the statutes that Congress enacts provides the most reliable

evidence of its intent.” (internal quotation marks omitted)). Rainey’s view,

however, is that “committee” does not mean committee in the ordinary sense,

but means “a group of legislators, formally created by and reporting to the

House(s) on particular matters, in accordance with the Rules of the House(s).”

Because a subcommittee reports to the committee of which it is a part and not

the entire House, Rainey argues a congressional subcommittee is not a

“committee” for the purposes of § 1505.

Rainey’s method of interpretation is atextual. Instead of relying on the

statutory text to demonstrate that Congress intended a technical meaning of

“committee” to supplant the plain meaning, Rainey primarily relies on “the

congressional context” of the statute. Put another way, nothing in the statute

itself reflects congressional intention to import a technical meaning to the

phrase “any committee.” Section 1505 does not prohibit obstructing any

committee that “reports to either House,” the definition Rainey suggests, but

instead protects “any committee of either House.” § 1505 (emphasis added). To

this end, Rainey relies on House regulations defining a “committee,” but he

does not explain why the phrase “of either House” cross-references Congress’s

internal regulations into § 1505. Instead, “of either House” does not connote a

technical term of art, it gives a limitation on the type of committee covered.

Contrary to Rainey’s argument that a plain meaning renders “of either House”

superfluous, without the qualifier, § 1505 would apply to any committee

12

Case: 13-30770 Document: 00512679902 Page: 13 Date Filed: 06/27/2014

No. 13-30770

anywhere. 4 Accordingly, Rainey identifies no textual evidence indicating that

Congress intended that its own technical understanding of the word

“committee” overrides the text’s plain meaning. See Hubbard, 480 F.3d at 348.

For this reason alone, Rainey’s argument fails.

The statute is clear, but even so, nothing in the legislative history calls

our plain reading into question. See United States v. Ridgeway, 489 F.3d 732,

734 (5th Cir. 2007) (“The statute must be read as a whole, and only if the

language is unclear do we turn to statutory history.”). Rainey concedes that

“failure to amend a statute should not be given undue weight,” yet the bulk of

his discussion of § 1505’s history is divining meaning from revisions Congress

could have made but did not. Accordingly, we do not give “undue weight” to

congressional inaction, especially when courts uniformly interpret similar

language in other statutes to include subcommittees. See Part III.A.2.

Rainey also attempts to draw congressional intent from the Act of June

18, 1940 Pub. L. No. 76–641, 54 Stat. 462, 467, which provided salaries for

committee employees and listed, among other positions, “four clerk-

stenographers, at the annual rate of $1,800 each, one for each subcommittee of

the Committee on Appropriation . . . .” This appropriation for specific

subcommittee employees implies little about § 1505’s plain meaning. If

anything, the Act undercuts Rainey’s argument because the quoted section of

the Act is entitled “Committee Employees,” which demonstrates that Congress

considered subcommittee employees to be “committee” employees. Id.

Rainey further cites the Economic Cooperation Act of 1948, ch. 169,

§ 124(c), 62 Stat. 137, 156, as evidence that the 80th Congress “not only knew

how to, but did, use the term ‘subcommittee’ when it intended to include that

Rainey also argues that a plain reading of the word “committee” renders “or any joint

4

committee” superfluous. But a joint committee is not a committee “of either House,” it is a

committee of both Houses, and therefore a distinct class of committees.

13

Case: 13-30770 Document: 00512679902 Page: 14 Date Filed: 06/27/2014

No. 13-30770

type of entity.” This legislation, however, “established a joint congressional

committee to be known as the Joint Committee on Foreign Economic

Cooperation (hereinafter referred to as the committee).” Id. (emphasis added).

The Act further provides that “[t]he committee, or any duly authorized

subcommittee thereof, is authorized to hold such hearings . . . .” Id. The

material difference between this legislation and § 1505 is that the Act

expressly defines the term “the committee” to replace the name of one

particular committee for use throughout the statute. Id. The Act therefore

provides an illustrative contrast; unlike the undefined phrase “any committee”

in § 1505, Congress narrowed and defined the term “committee” to refer to a

specific committee in the Act. 5 Thus, legislative history provides no barrier,

controlling or persuasive, to our plain reading of § 1505.

2.

Our interpretation is consistent with the existence of § 1505 prosecutions

for the obstruction of subcommittees, see, e.g., United States v. Weissman, 195

F.3d 96, 98 (2d Cir. 1999); United States v. Lavelle, 751 F.2d 1266, 1270 & n.3

(D.C. Cir. 1985), abrogated on other grounds, Huddleston v. United States, 485

U.S. 681 (1988); United States v. North, 708 F. Supp. 372, 374 & n.2 (D.D.C.

1988), and is further consistent with courts’ uniform interpretation of the

congressional contempt statute, 2 U.S.C. § 192, which contains § 1505’s same

crucial phrase, to cover subcommittees. Section 192 provides:

5 That “committee” is undefined in § 1505 further distinguishes United States v.

Ramos, 537 F.3d 439, 462 (5th Cir. 2008). In Ramos, we recognized that the operative

statutory phrase, “official proceeding,” was defined by statute:

The definition of “official proceeding” as used throughout § 1512 is found in

§ 1515(a)(1). The relevant definition for our purposes lies in § 1515(a)(1)(C),

which, after referring to proceedings before federal judges, the grand jury and

Congress, states that an “official proceeding” means “a proceeding before a

Federal Government agency which is authorized by law.”

Id.

14

Case: 13-30770 Document: 00512679902 Page: 15 Date Filed: 06/27/2014

No. 13-30770

Every person who having been summoned as a witness by the

authority of either House of Congress to give testimony or to

produce papers upon any matter under inquiry before either

House, or any joint committee established by a joint or concurrent

resolution of the two Houses of Congress, or any committee of either

House of Congress, willfully makes default, or who, having

appeared, refuses to answer any question pertinent to the question

under inquiry, shall be deemed guilty of a misdemeanor,

punishable by a fine of not more than $1,000 nor less than $100

and imprisonment in a common jail for not less than one month

nor more than twelve months.

§ 192 (emphasis added).

The D.C. Circuit dismissed a narrow reading of “any committee of either

House of Congress” in § 192. Attempting to negate a conviction under § 192,

the defendant urged that “Congress did not intend to make it a crime to refuse

to answer questions of a subcommittee.” Barenblatt v. United States, 240 F.2d

875, 878 (D.C. Cir.), vacated on other grounds, 354 U.S. 930 (1957). The Court

flatly disagreed:

We disagree. Nothing has been shown which reflects that Congress

has indicated such belief. We can only construe the statute in the

light of the obvious purpose for its enactment. That purpose was

to discourage the impairment of the vital investigative function of

Congress. The function Congress sought to protect is as often

committed to subcommittees as it is to full committees of Congress,

as indeed it must be.

Id. (internal citations omitted). “Construing the statute in a manner consistent

with its obvious purpose,” the Court concluded, “we hold that Congress

intended the word ‘committee’ in its generic sense, which would include

subcommittees.” Id. Consistent with Barenblatt, the Second Circuit

subsequently recognized that “[s]ection 192 applies to subcommittees as well

as to committees of Congress.” United States v. Seeger, 303 F.2d 478, 482–84

& n.8 (2d Cir. 1962). The Supreme Court confirmed these circuit-court

interpretations, acknowledging that § 192 applies to subcommittees

15

Case: 13-30770 Document: 00512679902 Page: 16 Date Filed: 06/27/2014

No. 13-30770

unflinchingly: “We do not question the authority of the Committee

appropriately to delegate functions to a subcommittee of its members, nor do

we doubt the availability of s 192 for punishment of contempt before such a

subcommittee in proper cases.” Gojack v. United States, 384 U.S. 702, 713

(1966).

Section 1505’s focal phrase is also contained in 2 U.S.C. § 191. Section

191 provides:

The President of the Senate, the Speaker of the House of

Representatives, or a chairman of any joint committee established

by a joint or concurrent resolution of the two Houses of Congress,

or of a committee of the whole, or of any committee of either House

of Congress, is empowered to administer oaths to witnesses in any

case under their examination.

Id. (emphasis added). The Second Circuit recognized: “In United States v.

Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92, the Supreme Court sustained

the sufficiency of an indictment for perjury based upon an oath taken before a

subcommittee of the Senate the authority for which was a general statute, 2

U.S.C.A. 191 . . . .’” United States v. Lester, 248 F.2d 329, 330 (2d Cir. 1957)

(emphasis added).

Rainey dismisses these authorities as articulating “dicta” and criticizes

Barenblatt for “contraven[ing] . . . the fundamental rules of statutory

construction.” No party argues that these authorities are controlling, and

Rainey’s disagreements do not undermine their persuasive force. Moreover,

Rainey makes no attempt to justify interpreting the language in § 1505

differently from the same language in § 191 and § 192 beyond the truism that

they are different statutes.

3.

Federal obstruction statutes, we have recognized, are “drafted with an

eye to the variety of corrupt methods by which the proper administration of

16

Case: 13-30770 Document: 00512679902 Page: 17 Date Filed: 06/27/2014

No. 13-30770

justice may be impeded or thwarted, a variety limited only by the imagination

of the criminally inclined.” United States v. Griffin, 589 F.2d 200, 206 (5th Cir.

1979) (internal quotation marks omitted) (interpreting § 1503). Our strictly

textual interpretation is therefore further reinforced by our recognition that

§ 1505 and the analogous 18 U.S.C. § 1503 “have been given a broad and all-

inclusive meaning.” United States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985)

(internal quotation marks omitted). “[T]his does not mean the statutes are to

be given a sweep beyond the meaning of their language. Criminal statutes are

to be strictly construed,” id., but our plain reading of § 1505 is consistent with

“the well-established rule that the omnibus clauses of federal obstruction

statutes should be broadly construed.” United States v. Mitchell, 877 F.2d 294,

298 (4th Cir. 1989); Rice v. United States, 356 F.2d 709, 714–15 (8th Cir. 1966)

(interpreting § 1505 and noting that “[t]he Court is not unmindful of the

doctrine that a criminal statute should be strictly construed. There is, however,

a corollary to that principle, namely, that even a criminal statute should not

be interpreted so narrowly as to defeat the purpose and intent of the legislative

body that enacted it.” (internal quotation marks omitted)); see also Loughrin,

2014 WL 2807180, at *4 (“And indeed, imposing that requirement would

prevent § 1344(2) from applying to a host of cases falling within its clear

terms.”). In sum, our construction of § 1505 coincides with the statute’s purpose

to deter and punish obstructions of congressional inquiries.

Notwithstanding these authorities, Rainey rejects any consideration of

purpose as an impermissible tool of statutory construction of criminal statutes.

To be clear, a statute’s purpose may not override its plain language, but the

Supreme Court has recognized that, even in a criminal case, a statute’s

purpose may be a “consideration [that] strongly support[s]” a textual

interpretation:

17

Case: 13-30770 Document: 00512679902 Page: 18 Date Filed: 06/27/2014

No. 13-30770

[T]he statute as a whole reflects an intent to authorize federal

prosecutions as a significant deterrent to a type of criminal activity

that was a matter of national concern. Because that purpose is

better served by construing the statute to cover both the

conditional and the unconditional species of wrongful intent, the

entire statute is consistent with a normal interpretation of the

specific language that Congress chose.

Holloway, 526 U.S. at 9. Equally here, although unnecessary to our textual

conclusion, the statute as a whole reflects an intent to deter obstruction of

congressional investigations—a purpose consistent with interpreting

subcommittee investigations as covered. See United States v. Cisneros, 26 F.

Supp. 2d 24, 38–39 (D.D.C. 1998) (“The statutory purpose of § 1505 is to

prevent any endeavor, whether successful or not, which is made for the purpose

of corruptly influencing, obstructing or impeding an agency proceeding or

congressional inquiry.” (internal quotation marks omitted)).

4.

In light of the above analysis, and because “we do not believe that there

remains a grievous ambiguity or uncertainty in the statutory provision before

us,” and do not need to “simply guess what the statute means,” we conclude

that the district court erroneously invoked the rule of lenity. Barber v. Thomas,

560 U.S. 474, 488 (2010) (internal quotation marks omitted); see also id. (“[T]he

rule of lenity only applies if, after considering text, structure, history, and

purpose, there remains a ‘grievous ambiguity or uncertainty in the statute,’

such that the Court must simply ‘guess as to what Congress intended.’”

(internal citations omitted)); United States v. Pruett, 681 F.3d 232, 240 n.4 (5th

Cir. 2012) (per curiam) (“We find no ‘grievous ambiguity’ in the ‘access’

requirement sufficient to apply the rule of lenity.”).

Rainey urges that the “grievous ambiguity” and “no more than a guess”

language is “plainly . . . not intended to be taken literally,” notwithstanding

18

Case: 13-30770 Document: 00512679902 Page: 19 Date Filed: 06/27/2014

No. 13-30770

the previously mentioned authorities and the Supreme Court’s recent

reiteration of the standard in Maracich v. Spears:

In this framework, there is no work for the rule of lenity to do. This

Court has held that “the rule of lenity only applies if, after

considering text, structure, history, and purpose, there remains a

grievous ambiguity or uncertainty in the statute such that the

Court must simply guess as to what Congress intended.”

133 S. Ct. 2191, 2209 (2013) (quoting Barber, 560 U.S. at 488–89)).

Nonetheless, even under the articulation of the rule of lenity most favorable to

Rainey, we find that § 1505’s “text, structure, and history . . . establish that

the Government’s position is unambiguously correct.” United States v.

Granderson, 511 U.S. 39, 54 (1994).

5.

Nor does our conclusion leave § 1505 without boundaries. A successful

prosecution under § 1505 must arise from the obstruction of “the due and

proper exercise of the power of inquiry under which any inquiry or investigation

is being had.” § 1505 (emphasis added). The Fourth Circuit has analyzed this

separate limitation on government prosecutions under § 1505:

The question of whether a given congressional investigation is a

“due and proper exercise of the power of inquiry” for purposes of

§ 1505 can not be answered by a myopic focus on formality. Rather,

it is properly answered by a careful examination of all the

surrounding circumstances. If it is apparent that the investigation

is a legitimate exercise of investigative authority by a

congressional committee in an area within the committee’s

purview, it should be protected by § 1505. While formal

authorization is certainly a factor that weighs heavily in this

determination, its presence or absence is not dispositive. To give

§ 1505 the protective force it was intended, corrupt endeavors to

influence congressional investigations must be proscribed even

when they occur prior to formal committee authorization.

19

Case: 13-30770 Document: 00512679902 Page: 20 Date Filed: 06/27/2014

No. 13-30770

Mitchell, 877 F.2d at 300–01. 6 With this discernment in mind, we observe that

unauthorized frolics by a House entity might lose protection regardless of its

committee status because there would be no “due and proper exercise of the

power of inquiry” to obstruct. § 1505. Indeed, Rainey invoked this statutory

restraint below in a motion to dismiss count one, but the district court denied

this motion without prejudice. In sum, § 1505 is powerful, but not without

internal restraints. See Loughrin, 2014 WL 2807180, at *7 (“But in claiming

that we must therefore recognize an invisible element, Loughrin fails to take

account of a significant textual limitation on § 1344(2)’s reach.”).

IV.

As an alternative ground for dismissing count one, the district court held

that the Government failed properly to allege an essential element of § 1505

prosecutions, specifically, that Rainey knew of the pending congressional

investigation that he allegedly obstructed. The Government agrees that it

must prove that Rainey knew of the congressional proceeding that he is

charged with obstructing. We review the sufficiency of the indictment de novo.

United States v. Pratt, 728 F.3d 463, 477 (5th Cir. 2013). “To pass

constitutional muster, an indictment must “allege[] every element of the crime

charged and in such a way as to enable the accused to prepare his defense and

to allow the accused to invoke the double jeopardy clause in any subsequent

proceeding.” Id.

The district court held that “implication of facts supporting an essential

element of the crime charged does not pass muster under the Fifth

6 One court has even deemed this a jurisdictional limitation: “Section 1505 contains a

jurisdictional element. The obstruction must occur during the due and proper exercise by

Congress of its power of inquiry.” United States v. North, 708 F. Supp. 385, 386 (D.D.C. 1988);

see also Cisneros, 26 F. Supp. 2d at 38 (“To charge an offense under § 1505 for obstruction of

justice, an indictment must allege the defendant obstructed a congressional inquiry or

government proceeding that was a ‘due and proper’ administration of the law.”).

20

Case: 13-30770 Document: 00512679902 Page: 21 Date Filed: 06/27/2014

No. 13-30770

Amendment,” but our cases have clarified that “[w]e are not concerned with

whether the indictment could have been better framed, or whether it invokes

a particular ‘ritual of words,’” and that “an exact recitation of an element of the

charged crime is not required, provided the indictment as a whole ‘fairly

imports’ the element.” United States v. Harms, 442 F.3d 367, 372 (5th Cir.

2006). The district court relied heavily on Walker v. United States, 342 F.2d 22,

26–27 (5th Cir. 1965), for the proposition that an element may not be implied

in an indictment. In United States v. Romero, however, we explained:

In Walker, the indictment was unclear, if not misleading, as to the

object of the fraudulent activity. Count II of the indictment here

was clear and complete, and permits of no misapprehension as to

the elements of the offense charged. It is this, not the use of some

talismanic phrase, that Walker requires.

495 F.2d 1356, 1359 (5th Cir. 1974). Subsequent cases have embraced Romero’s

and Harms’s less formalistic analysis of indictments, recognizing that “[t]he

validity of an indictment is governed by practical, not technical

considerations.” United States v. Ramos, 537 F.3d 439, 459 (5th Cir. 2008); see,

e.g., United States v. Franco, 632 F.3d 880, 884 (5th Cir. 2011) (per curiam)

(“Generally, an indictment that closely tracks the language under which it is

brought is sufficient to give a defendant notice of the crimes with which he is

charged.”); United States v. Henry, 288 F.3d 657, 662 (5th Cir. 2002) (“While it

is true that the allegations may not necessarily encompass a finding of

knowledge, we have determined that a knowledge requirement may be

inferred.”); United States v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989) ( “[T]he

law does not compel a ritual of words, and a recitation of the exact scienter

(‘knowing’) is not required where the pleading fairly imports knowledge.”

(internal quotation marks omitted); United States v. Arteaga-Limones, 529

F.2d 1183, 1199 (5th Cir. 1976) (“But the elements need not be alleged in terms,

and a pleading is good if it fairly imports knowledge or intent.”); United States

21

Case: 13-30770 Document: 00512679902 Page: 22 Date Filed: 06/27/2014

No. 13-30770

v. Lester, 541 F.2d 499, 501–02 (5th Cir. 1976) (“The indictment, for all

practical purposes, traced the exact language of the statute. . . . The term

convert implies, by its very legal nature, some kind of willful purpose and

wrongful intent in the taking of property that does not belong to the converter.”

(internal citations omitted)).

This indictment does not “exact[ly] recit[e]” that Rainey knew a

congressional investigation was pending, but “the indictment as a whole ‘fairly

imports’ the element.” Harms, 442 F.3d at 372. The indictment tracks the

language of the statute and additionally provides the following factual

allegations that “permit[] of no misapprehension as to the elements of the

offense charged.” Romero, 495 F.2d at 1395.

• “Following the Deepwater Horizon blowout, the Subcommittee

commenced an inquiry and investigation of the blowout and oil

spill, including the amount of oil flowing from the well. Congress’s

inquiry and investigation included, among other things, requests

for information from BP.”

• “On or about May 4, 2010, in response to a Congressional request

for a briefing of members and staff of Congress, defendant

RAINEY falsely informed the Subcommittee that 5,000 BOPD

was the most accurate flow-rate estimate.”

• “On or about May 14, 2010, the then-Chairman of the

Subcommittee (“the Subcommittee Chairman”) sent a letter to BP

accusing it of understating the amount of oil leaking from the well.

. . . The letter further stated that Congress was concerned that an

‘underestimation of the flow may be impeding the ability to solve

the leak and handle management of the disaster. The

Subcommittee requested answers to fifteen questions relating to

flow rate . . . .”

• “On or about May 21, 2010, defendant RAINEY began working on

a response to the May 14 Congressional request. . . . Defendant

RAINEY also prepared false and misleading responses to the

Congressional request, and provided false and misleading

information to others working on the BP Response.”

22

Case: 13-30770 Document: 00512679902 Page: 23 Date Filed: 06/27/2014

No. 13-30770

• “On or about May 24, 2010, BP submitted to the Subcommittee

the BP Response, which appended the false and misleading

Rainey Memo and its attachments, which were selected by

defendant RAINEY.”

That Rainey knew of the pending congressional investigation is imported by

these allegations; he spoke with members of the Subcommittee and personally

manufactured BP’s response to the congressional requests. As a whole, these

allegations “fairly import” the knowledge element. See Harms, 442 F.3d at 372.

We decline to require the technical use of “some talismanic phrase” in light of

the allegations importing that Rainey knew of the investigation. Romero, 495

F.2d at 1359.

V.

Section 1505 criminalizes the “[o]bstruction of proceedings before

departments, agencies, and committees.” Because the indictment adequately

alleges that Rainey obstructed an investigation by a “committee of either

House,” § 1505, and also that Rainey knew of the investigation, we VACATE

and REMAND for proceedings consistent with this opinion.

23