Saturday, January 14, 2017

U.S. District Judge Thelton Henderson to Sentence Pacific Gas and Electric Company, January 23, 2017 (USA v. Pacific Gas and Electric Company, Criminal Case California Northern District Court, Case No. 3:14-cr-00175)

ABSTRACT: RE: USA v. Pacific Gas and Electric Company
Criminal Case California Northern District Court, Case No. 3:14-cr-00175 
District Judge Thelton e. Henderson, presiding
U.S. District Judge Thelton Henderson is scheduled to sentence Pacific Gas and Electric Company on January 23, 2017, at 2:30 P.M., Courtroom G, 15th Floor, San Francisco, for criminal pipeline safety violations stemming from a fatal pipeline explosion in San Bruno on September 9, 2010, which “killed eight people, injured 66 others and destroyed or damaged dozens of houses.”   In August 2016, the jury convicted PG&E of six felony counts, including “one count of obstructing a National Transportation Safety Board probe of the San Bruno explosion and five counts of violating a federal pipeline safety law’s requirements for identifying, evaluating, recording and prioritizing risks in its high-pressure natural gas transmission lines,” according to reporting by Julia Cheever, Bay City News (maximum possible fine $500,000 per conviction, or a total of $3 million). HIGHLIGHTS OF UNITED STATES’ SENTENCING MEMORANDUM and HIGHLIGHTS OF DEFENDANT’S SENTENCING MEMORANDUM are presented; UNITED STATES’ SENTENCING MEMORANDUM and DEFENDANT’S SENTENCING MEMORANDUM document copies are embedded.
UNITED STATES’ SENTENCING MEMORANDUM
Case No. CR 14-00175 THE
UNITED STATES OF AMERICA, Plaintiff, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

HIGHLIGHTS OF UNITED STATES’ SENTENCING MEMORANDUM
Offense Conduct
The Presentence Report (PSR) accurately summarizes the proof at trial regarding PG&E’s offense conduct.
Count One
The evidence proved that PG&E intentionally and corruptly endeavored to obstruct, influence, or impede the NTSB’s investigation.
Counts Two and Five Through Eight
PG&E was also convicted on Counts Two and Five through Eight, which charged knowing and willful violations of Minimum Federal Safety Standard regulations for natural gas pipelines, in violation of the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60123(a).
Relevant Conduct
In addition to the offenses of conviction, the evidence at trial demonstrated a larger pattern of obstructive conduct by PG&E, as well as other violations of the pipeline safety regulations.
  1. Obstruction
  2. Other Pipeline Safety Violations
The evidence also showed, by at least a preponderance of the evidence and notwithstanding the jury’s acquittal on Counts 3-4 and 9-12, that PG&E failed to maintain leak repair records and to retain strength test pressure records (STPRs), as required under 49 C.F.R. §§ 192.709(a) and 192.517(a).
SENTENCING GUIDELINES CALCULATION
The government concurs with the sentencing guidelines calculation set forth in the revised PSR.
CONCLUSION
PG&E violated the sacred trust placed in it by every person living in or merely passing through Northern California to follow minimum standards of safety in operating its natural gas pipelines – pipes that transport highly explosive material under the public’s homes, freeways, and businesses. Its deliberate and repeated choices not to do so were motivated by the desire to maximize profits instead of safety – in other words, greed. The San Bruno explosion was not an “accident”; it was a matter of time. And PG&E’s efforts to corruptly mislead the federal investigation of the explosion highlight its status as a bad corporate citizen.
PG&E’s crimes compel a serious sentence that will alter its culture for good. Only through the comprehensive probationary scheme laid out in the PSR, as modified in the government’s proposal and together with the maximum fine allowed by statute, will the sentence reflect the seriousness of PG&E’s crimes, promote respect for the law, justly punish PG&E, and protect the public from further crimes by PG&E, and adequately deter future such crimes.
Finally, the United States anticipates that several victims of PG&E’s crimes, including representatives from San Bruno and the NTSB, may seek to be heard at sentencing regarding the impacts of PG&E’s crimes. The government will make every effort to advise the Court of the number of individuals who wish to speak prior to commencement of the sentencing proceedings.
DEFENDANT’S SENTENCING MEMORANDUM
CASE NO. CR-14-00175-THE
UNITED STATES OF AMERICA v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

HIGLIGHTS OF DEFENDANT’S SENTENCING MEMORANDUM
AN APPROPRIATE SENTENCE
PG&E is prepared to submit the maximum statutory fine ($3,000,000). In addition, as further noted below, PG&E is not opposed to the imposition of a properly scoped monitorship and is working with the Government on a joint proposal which, if agreement is reached, will be submitted to the Court ahead of sentencing.
Governing Legal Standards
Congress requires that in assessing a “just” punishment, district courts “shall impose a sentence sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). The Court, then, has the power and the duty to impose a sentence that reflects balance and due proportion.
The Court Should Decline to Impose Additional Probation Conditions As
Recommended by the Probation Office
Probation conditions that functionally increase the punishment above the statutory maximum are unconstitutional.
Consistent with those principles, PG&E objects in particular to the following aspects of the Probation Office’s recommendations.
  1. The Analysis Underlying the PSR Recommendations Is Flawed
In its revised presentence report (“PSR”), the Probation Office has recommended several probationary requirements that are based on faulty conclusions or a misunderstanding of the law. And the conditions recommended by the Probation Office appear to stem largely from the report’s incorrect conclusion that the conduct underlying the regulatory violations found by the jury caused the explosion in San Bruno. PSR at 43. The government did not allege and the jury did not find that the regulatory violations charged in this case caused the tragic accident in San Bruno. As the Court repeatedly instructed, “there is no allegation in this case and there has been no evidence in this case that any alleged regulatory violation caused the San Bruno explosion. Such evidence had no place in this criminal prosecution because this case is not about the cause of the San Bruno explosion[.]”
ADDITIONAL OBJECTIONS TO THE PSR
PG&E respectfully submits that the PSR has incorrectly applied Guidelines provisions, and this part of the report’s analysis must be rejected.
The guidelines and policy statements in Chapter Eight of the Guidelines apply in this case. U.S.S.G. § 8A1.1. With respect to the fine, Section 8C2.1 directs the Court to apply either the specific provisions set forth in Sections 8C2.2 through 8C2.9 for certain enumerated offenses, or to apply Section 8C2.10, which directs the Court to determine the fine according to 18 U.S.C. §§ 3553 and 3572. PG&E agrees with PSR’s conclusion that Section 8C2.10 applies to all of the counts of conviction in this case. PSR at ¶ 138.
Note: “PSR” Presentence Report

REFERENCE:
Prosecutors urge strict probation conditions on PG&E, Julia Cheever Bay City News, January 10, 2017

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