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Case 3:14-cr-00175-TEH Document 861 Filed 08/01/16 Page 1 of 5

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LATHAM & WATKINS LLP


Steven M. Bauer (Bar No. 135067)
steven.bauer@lw.com
Margaret A. Tough (Bar No. 218056)
margaret.tough@lw.com
Robert E. Sims (Bar No. 116680)
bob.sims@lw.com
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: +1.415.391.0600
Facsimile: +1.415.395.8095
LATHAM & WATKINS LLP
Melissa Arbus Sherry (pro hac vice)
melissa.sherry@lw.com
555 11th Street, NW, Suite 1000
Washington, DC 20004-1304
Telephone: +1.202.637.2200
Facsimile: +1.202.637.2201
CLARENCE DYER & COHEN LLP
Kate Dyer (Bar No. 171891)
kdyer@clarencedyer.com
899 Ellis Street
San Francisco, California 94109-7807
Telephone: +1.415.749.1800
Facsimile: +1.415.749.1694
Attorneys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA


v.
PACIFIC GAS AND ELECTRIC
COMPANY,

CASE NO. CR-14-00175-TEH


DEFENDANTS BRIEF REGARDING THE
UNCONSTITUTIONALITY OF
EMPANELING A SECOND JURY TO TRY
THE ALTERNATIVE FINES ACT
ALLEGATIONS

Defendant.
Judge:

Hon. Thelton E. Henderson

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ATTORNEYS AT LAW
SAN FRANCISCO

DEF.S BRIEF REGARDING


UNCONSTITUTIONALITY OF A SECOND JURY
CASE NO. CR-14-00175-TEH

Case 3:14-cr-00175-TEH Document 861 Filed 08/01/16 Page 2 of 5

I.

INTRODUCTION
Three days into jury deliberations, the government suggested for the first time that it

might like to dismiss the current jury after it returns a verdict, and try the remaining portion of its

case to a new jury. The United States Constitution does not leave that path open. In particular,

under the Double Jeopardy Clause, the defendant has a right to have [its] trial completed by a

particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978). And more generally, it

would violate basic notions of due process to allow the government to choose to try the

remainder of its case to a new jury.

II.

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DISCUSSION
A.

The Defendant Has A Right To Have All Charges Against It Determined By


The Empaneled Jury

There are few if any rules of criminal procedure clearer than the rule that jeopardy

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attaches when the jury is empaneled and sworn. Martinez v. Illinois, 134 S. Ct. 2070, 2074

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(2014) (citation and internal quotation marks omitted). And as the Supreme Court has explained,

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[t]he reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the

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need to protect the interest of an accused in retaining a chosen jury. Crist v. Bretz, 437 U.S. 28,

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35 (1978). That interest is a longstanding one, reflecting the Anglo-American justice systems

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strong tradition that once banded together a jury should not be discharged until it had completed

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its solemn task of announcing a verdict. Id. at 36.

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Because jeopardy attaches as soon as a jury is empaneled, and before any witness testifies

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or the jury is charged, the jeopardy to which the defendant is subject cannot be made to turn on

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what evidence is presented at trial or what instructions the jury receives. Instead, courts look to

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the indictment to determine the scope of the jeopardy that has attached. See, e.g., United States

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v. Podde, 105 F.3d 813, 816 (2d Cir. 1997) (It is undisputed that jeopardy attaches to the entire

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indictment as soon as a jury is empaneled.); United States v. Ayers, 924 F.2d 1468, 1483 (9th

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Cir. 1991) (noting that one of the purposes of a bill of particulars is to enable [the defendant] to

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plead his acquittal or conviction in bar of another prosecution for the same offense when the

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indictment itself is too vague, and indefinite for such purposes).

ATTORNEYS AT LAW
SAN FRANCISCO

DEF.S BRIEF REGARDING


UNCONSTITUTIONALITY OF A SECOND JURY
CASE NO. CR-14-00175-TEH

Case 3:14-cr-00175-TEH Document 861 Filed 08/01/16 Page 3 of 5

Here, the superseding indictment to which jeopardy has attached charges PG&E with

violations of 18 U.S.C. 1505 and 49 U.S.C. 60123, and alleges that [w]ith respect to the

charges in this Superseding Indictment, for the purposes of determining the maximum alternative

fine, pursuant to [18 U.S.C. 3571(d), the defendant . . . derived gross gains of approximately

$281 million. Dkt. 22 at 23 76. After Apprendi v. New Jersey, 530 U.S. 466, 478 (2000), and

Southern Union Co. v. United States, it is now crystal clear there is no constitutionally

significant difference between a fact that is an element of the offense and one that is a

sentencing factor. 132 S. Ct. 2344, 2356 (2012). If the truth (or falsity) of a fact affects the

maximum possible punishment, it must be treated as an element of a crime and subject to all the

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Bill of Rights protections for criminal fact-findingtrial by jury, proof beyond a reasonable

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doubt, andcritical hereDouble Jeopardy. For constitutional purposes, AFA allegations

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charge a distinct crime with elements in addition to the underlying Pipeline Safety Act charges.

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The PSA charges are essentially a lesser included offensejust as larceny is a lesser included

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offense of robbery.

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Under this superseding indictment, therefore, once the jury was empaneled PG&E was

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charged with the crime of knowingly and willfully violating the Pipeline Safety Act and reaping

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gains in a particular, charged, amount. The crime for which PG&E was placed in jeopardy

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therefore includes the Alternative Fines Act allegations about total gains, no less than the

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allegations about record-keeping or integrity management.

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If the Court allows an Alternative Fines Act phase to proceed, it cannot relieve the

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present jury of its responsibility to decide those allegations. If the government had suggested,

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mid-trial, that Count One should be bifurcated and tried to a different jury later this year because

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the case on the Pipeline Safety Act issues was taking much longer than it expected, the answer

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would have been that PG&E has already been placed in jeopardy of that crime and cannot be put

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in that position again, for any reason. That same straightforward principle means that this jury

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cannot be released, and a new jury convened, to decide the final AFA-related facts that will

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determine the maximum possible punishment exposure on the PSA counts.

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ATTORNEYS AT LAW
SAN FRANCISCO

DEF.S BRIEF REGARDING


UNCONSTITUTIONALITY OF A SECOND JURY
CASE NO. CR-14-00175-TEH

Case 3:14-cr-00175-TEH Document 861 Filed 08/01/16 Page 4 of 5

B.

The Government Cannot Try A Criminal Defendant On A Greater Offense


After Having Obtained A Conviction On A Lesser-Included Offense

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The Supreme Court has held that the Double Jeopardy Clause bars the government from

trying a defendant on enhanced charges, where the defendant has previously been convicted of a

lesser-included offense. So, for example, if a careless failure to slow is always a necessary

element of manslaughter by automobile, then the two offenses are the same under Blockburger

and [a] trial on the latter charge would constitute double jeopardy. Illinois v. Vitale, 447 U.S.

410, 419-20 (1980); see also Harris v. Oklahoma, 433 U.S. 682 (1977).

The governments proposal to try its Alternative Fines Act allegations to second jury

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would accomplish precisely that effect here. Empaneling a second jury to consider whether

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PG&E committed criminal violations of 49 U.S.C. 60123(a) that resulted in gains would be

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trying PG&E for a greater offense that encompasses within it all of the elements of the Pipeline

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Safety Act violations that the present jury will indisputably decide, plus the additional element of

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gains. To allow the government to proceed in this fashion would be like allowing it to try a

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lesser offence like larceny, obtain a conviction, and then re-try the defendant for robbery, before

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a new jury. Precluding such tactics was one of the original core reasons for the Double Jeopardy

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Clause. See Brown v. Ohio, 432 U.S. 161, 168-69 (1977) (describing a case in which a

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conviction for arson barred a subsequent felony-murder indictment based on the death of a man

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killed in the fire, and holding that the Fifth Amendment forbids successive prosecution and

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cumulative punishment for a greater and lesser included offense).

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A defendants interest . . . in retaining a chosen jury, Crist, 437 U.S. at 35, thus bars the

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divvying up of elements between separate juries. That is true whether the division is to assign

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the elements in (for example) Count 2 to this jury and the additional element of gain to a

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subsequent jury, or to assign each of the three elements of Count 2 to separate juries and the gain

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element to a fourth jurythe government cannot break its case into individual elements and

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attempt to prove them in isolation.

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The government has suggested otherwise by invoking the practice in forfeiture

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proceedings. 8/1/16 Tr. at 4480:20-23. This comparison is inapt because there is no

ATTORNEYS AT LAW
SAN FRANCISCO

DEF.S BRIEF REGARDING


UNCONSTITUTIONALITY OF A SECOND JURY
CASE NO. CR-14-00175-TEH

Case 3:14-cr-00175-TEH Document 861 Filed 08/01/16 Page 5 of 5

constitutional right to a jury verdict on forfeitability in a criminal forfeiture proceeding.

United States v. Phillips, 704 F.3d 754, 769 (9th Cir. 2012) (quoting Libretti v. United States,

516 U.S. 29, 49 (1995)). Indeed, forfeitability does not fall within the Sixth Amendments

constitutional protection, Libretti, 516 U.S. at 49, because forfeiture is not a fine, Phillips,

704 F.3d at 770. The Court has already recognized the need to protect PG&Es Sixth

Amendment rights with respect to the Alternative Fines Act allegations. Dkt. 275 at 2; Dkt. 201

at 3. Whether or not a new jury is appropriate in a forfeiture proceeding, therefore, is irrelevant

to whether a new jury is permissible for the imposition of a criminal fine under the Alternative

Fines Act. 1

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III.

CONCLUSION

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The Court may not empanel a new jury to consider the gains element of the charges

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brought in the indictment. Instead, if the jury returns a guilty verdict on any of the charged

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Counts, the Court should discharge the jury and proceed to sentencing without an unduly

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complicated Alternative Fines Act proceeding.

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Dated: August 1, 2016

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Respectfully submitted,
By

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/s/
Steven M. Bauer
Margaret A. Tough
Robert E. Sims
LATHAM & WATKINS LLP
Kate Dyer
CLARENCE, DYER & COHEN LLP
Attorneys for Defendant
Pacific Gas and Electric Company

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ATTORNEYS AT LAW
SAN FRANCISCO

The Supreme Court has identified a number of other purposes served by the requirement that
a single jury resolve all charges against a defendant once the jury is empaneled. Even if the
first trial is not completed, a second prosecution may be grossly unfair because [i]t increases
the financial . . . burden on the accused, prolongs the period in which he is stigmatized by an
unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant
may be convicted. Washington, 434 U.S. at 503-04. This last danger, the Court noted, flows in
part from the tendency by which subtle changes in the [prosecutions] testimony, initially
favorable to the defendant, may occur during the course of successive prosecutions. Id. at 504
n.14.
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DEF.S BRIEF REGARDING


UNCONSTITUTIONALITY OF A SECOND JURY
CASE NO. CR-14-00175-TEH