Pipeline company slams prosecution, judge in bid for acquittal or retrial

An oil company convicted in September of one felony and eight misdemeanors related to its handling of a 140,000-gallon oil spill on a beach in Santa Barbara County has filed a motion to acquit or retry three of the nine convictions, including the felony.

Plains All American Pipeline LP, represented by lead counsel Gary Lincenberg of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC and co-lead Luis Li of Munger, Tolles & Olson LLP, seeks in Monday's motion post-trial relief based on prosecutorial misconduct, inaccurate jury instructions and insufficiency of the evidence.

According to the motion, "The prosecutors misrepresented evidence, made false statements about facts not in evidence, falsely suggested conspiratorial agreements between Plains and the federal government, and openly defied the court's evidentiary rulings."

The motion also slams Santa Barbara County Superior Court Judge James Herman, accusing him of not providing a sufficient remedy for the prosecutorial violations.

"In each instance, the prosecutors' gamble that they could violate their ethical obligations without provoking a remedy that would adequately 'un-ring the bell' of their false statements paid off, because the court did not punish the prosecutors for their misconduct," defense counsel wrote in the motion.

The state attorney general's office and the Santa Barbara County district attorney's office, which jointly prosecuted Plains, were accused of misconduct in Monday's motion as well as in a motion for a mistrial, filed in early July.

Li

The motions came after the prosecution suggested to the jury the company's CEO, Greg Armstrong, conspired with federal regulatory agencies to deny the prosecution access to witnesses. People v Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

Deputy Attorney General Brett Morris asked Armstrong in front of the jury on July 9, "Have you worked out any agreements with the EPA officials or USDOJ regarding the May 2015 oil spill?" among other questions relating to lobbyists and clandestine agreements.

According to the July motion, during a sidebar, Morris said the purpose of his question was to ascertain whether Plains conspired with federal agencies to obstruct the state prosecution, and he did not know whether that happened but had seen federal employees talking to defense counsel in the court hallways.

Morris later told the court federal agencies and the U.S. Department of Justice specifically stood in the prosecution's way by inhibiting his ability to use federal employees as witnesses during the trial. He said he was aware of conversations between defense counsel and the DOJ and the Pipeline and Hazardous Materials Safety Administration about which witnesses should be used.

Plains responded to Morris' statements in the July motion, supported by a November letter to the prosecutor from the hazardous materials agency noting federal regulations limit whether non-federal parties may call federal employees to testify.

According to the filing, the DOJ also explained in a series of emails it was denying the prosecution's request for federal employee testimony partly because the prosecution was misrepresenting aspects of the trial in the courtroom.

According to the motion, the DOJ asked the prosecution for an explanation as to "why the prosecution team continued to inaccurately represent to the court, Plains, and ultimately the public that PHMSA employees are part of the criminal trial -- it is not."

The federal agency also said the law required it to judiciously use the time of its employees to handle federal cases and said the U.S. government is working on its own possible civil and criminal cases against Plains and on possible collaboration with other civil lawsuits and possible settlements.

Defense counsel claims Morris' statements baselessly insinuated Plains had an agreement with federal agencies and that the prosecution was trying to make the jury draw an inference from his questions for which he had no proof.

After hearing Morris' explanation for his question, the judge said, "At this point, Mr. Morris you have no information except some sort of suspicion that something's going on."

Herman

However, Herman ultimately denied defense counsel's motion to dismiss and Plains was eventually convicted on nine of 15 charges.

In the new motion for acquittal or retrial, defense counsel calls Herman's remedy of a neutral reminder to the jury to not treat counsel's questions as evidence, "beyond ineffective."

Seeing that federal witnesses could not be called to testify, a 2013 hazardous material agency audit of the pipeline that would later burst was not allowed into evidence. Neither were any of the agency's post-spill reports.

According to the motion, Deputy District Attorney Kevin Weichbrod misrepresented to the jury, while examining Plains' western director of environmental and regulatory compliance officer, Nigabi Giuchi, that in the audit and post-spill reports, the federal auditors advised Plains of multiple improprieties in its integrity management program. Gicuchi told the court there were no such improprieties.

After being asked by defense counsel about juror deliberations relating to Gicuchi's testimony regarding the federal audit, juror Gary Birch wrote in a declaration, "Although the judge sustained objections to Mr. Weichbrod's questions, jurors referenced these statements by Mr. Weichbrod to suggest that there must be something from [the federal agency] negative to Plains that was not presented at trial; the jurors used this to discount the testimony of Mr. Gicuchi."

Birch also wrote that he did not agree with the decision to convict Plains on the sole felony charge, which stated "that defendant knowingly engaged in or caused, or reasonably should have known that he or she was engaging in or causing, the discharge or spill of oil into the waters of the state."

The juror wrote the language of the instructions was confusing as to whether the proof requirement was "should have" or "could have" known their actions or omission of action would result in the discharge of oil. He added that the confusion arose after the jury argued about the interpretation of the phrase, "reasonably could not have known," which appears in the instructions.

He wrote that he argued at length that the evidence did not show Plains should have known that its actions would cause a discharge, while other jurors argued that under the language of the instructions Plains was guilty of the felony because it "could have known" its actions could cause a discharge.