Federal Criminal Lawyer Blog

Earlier today, the Department of Justice issued a press release announcing that it reached an agreement with BP Oil in which BP agreed to plead guilty to a number of federal criminal violations. More specifically, according to the press release, BP has agreed to enter guilty pleas to violations of various federal criminal statutes involving the Clean Water Act, the Migratory Bird Treaty Act, Obstruction of Congress, and a number of even more obscure federal criminal laws pertaining to the Seaman's Manslaughter Act. In addition to agreeing to plead guilty to these federal criminal offenses, BP also agreed to pay $4.5 billion, including $1.3 billion in criminal fines. At a press conference announcing the resolution of these federal criminal charges, Attorney General Eric Holder stated that "[t]his marks the largest single criminal fine and the largest total criminal resolution in the history of the United States."

I grew up in the Northern District of Florida and the impact that the oil spill had on the people and the environment in that area is something that hits close to home for me. My family was down on the Gulf Coast the summer that the spill occurred and we observed firsthand how the people, the economy, and the environment were unquestionably impacted in negative ways that most of us never envisioned. In addition, I still have many close friends that live in Pensacola and one of our special friends (and a fellow federal criminal defense lawyer) lives on the beach over in Alabama. For these and other reasons, although I am not particularly familiar with the "evidence" against BP, I was pleased to hear of today's criminal settlement with the company.

Sometimes, however, it feels like the Department of Justice goes too far. And, again, although I am not familiar with the evidence, I could not help feeling that way today when I read that in addition to the settlement of the criminal matters against BP, the Department indicted three former BP employees for alleged violations of federal criminal statutes. Back when the spill occurred, it was not difficult to predict that the Government would ultimately indict individuals in federal court. And today, the Government made that prediction a reality.

One of the former employees that got indicted today was BP's former vice-president of exploration for the Gulf of Mexico. In the indictment unsealed against him, the Government alleged that he obstructed justice and provided false statements in connection with the Government's investigation of the BP spill.

In addition to this higher ranking former BP employee, however, the Government unsealed indictments against two rig workers. According to those indictments, these two workers acted negligently in their supervision of key safety tests, and failed to phone engineers onshore to alert them of problems in the drilling operation. Not surprisingly, the indictments against these low level rig workers were signed by Lanny Breuer, the Assistant Attorney General, and five members of the "Deep Water Horizon Task Force." From what I have observed, when the Government devotes resources like this to a matter, indictments will inevitably follow.

The attorneys for one of these rig workers expressed what I perceive to be as the feeling of many concerning these relatively low level workers. According to this federal criminal attorney, the Government was making "scapegoats" out of the two rig workers." This attorney also pointed out that his client "was not an executive or high-level BP official. He was a dedicated rig worker who mourns his fallen co-workers every day." In the view of this attorney, "No one should take any satisfaction in this indictment of an innocent man. This is not justice."

It will be interesting to watch this case unfold. It certainly seems destined for a trial in federal court. We intend to follow it and post developments here.

I am looking down from my office here in Atlanta at the U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court that handles cases from Georgia, Florida and Alabama. Yesterday, that court issued a huge decision in which they decided that Congress violated the Constitution by enacting a law that allows for prosecuting international drug dealers in U.S. courts. It's kind of complicated, and even after this case there still can be similar prosecutions using different laws, but the case is nevertheless worth looking at. The case is U.S. v. Bellaizac-Hurtado.

United States surveillance detected a vessel sailing in international waters near Panama with no flag or lights. They informed the Panamanian navy, which went after the boat, eventually capturing its crew and the boatload of drugs inside the vessel. Eventually, the crew were brought to Florida and prosecuted in federal court. The defense lawyers wisely argued that a U.S. court did not have jurisdiction, and in yesterday's decision, the Court of Appeals agreed and threw out their convictions.

As we all know, the Constitution is the beginning point for all laws enacted by Congress. Under the Constitution, Congress has the power “define and punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10. Using the Maritime Drug Law Enforcement Act (MDLA), prosecutors got an indictment against the sailors alleging they had the intent to distribute five kilograms or more of cocaine, and actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B).

Prosecutors argued that the MDLA, as applied to the defendants, was a constitutional exercise of the power granted to Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” In rejecting this claim, the Court of Appeals first discussed how the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, the court explained that drug trafficking is not a violation of customary international law and, as a result, fell outside of the power of Congress under the Offences Clause. As a result, the Panel took the highly unusual step of deciding that a federal law (the MDLA) was unconstitutional.

There still are other federal laws that prosecutors can use when trying to haul an international criminal into a court sitting in the U.S. However, this decision is important for a variety of reasons, not the least of which is that it shows that lawyers need to try each and every avenue available in trying to assist their clients.