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.
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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.
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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
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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
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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.

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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).

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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–
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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
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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).
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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).
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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
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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

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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.
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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.

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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

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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

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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:

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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

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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.

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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.”).
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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

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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.”
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• “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.

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