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United States v. Black Elk Energy Offshore Operations, LLC

United States District Court, E.D. Louisiana

January 31, 2018


         SECTION: “H” (4)



         Before the Court are Defendant Don Moss's Motion to Sever (Doc. 316); Defendant Curtis Dantin's Motion to Sever (Doc. 319); Defendant Grand Isle Shipyards Inc.'s Motion to Sever (Doc. 312); and Defendant Christopher Srubar's Motion to Sever (Doc. 317). For the following reasons, the Motions are GRANTED IN PART.


         The charges in the Third Superseding Indictment (“Indictment”) arise out of a welding accident and explosion that occurred on an offshore oil platform called West Delta Block 32 Platform E (the “Platform”) on November 16, 2012. According to the Indictment, Black Elk Energy Offshore Operations, LLC (“BEE”) owned and operated the Platform, located eight nautical miles off the coast of Louisiana. At some point prior to November 2012, BEE ceased oil production on the Platform in order to initiate repairs and other construction projects. One project involved adding a divert valve to the Lease Automatic Custody Transfer (“LACT”) unit.

         BEE contracted with an engineering firm, represented on the Platform by Defendant Don Moss, to design plans for some of the construction projects. The construction was to be physically completed by crews from Defendant Grand Isle Shipyards, Inc. (“GIS”), supervised on the Platform by Defendant Curtis Dantin. BEE also contracted with Defendant Wood Group PSN, Inc. (“Wood Group”) to supply manpower for the Platform. Wood Group's operators, including the Person-In-Charge (“PIC”) Defendant Christopher Srubar, were to support the construction efforts through crane operations and the issuance of necessary permits.

         The construction projects required hot work, including welding, grinding, and other activities that may produce a spark. BEE had written policies for performing hot work on an oil platform, which GIS and Wood Group were required to follow. Specifically, the policies provided that before conducting hot work, a hot work permit must be issued. Before a hot work permit could be issued, the location of the hot work must be inspected for potential flammable or combustible materials and a calibrated gas detector must be used to ensure that no explosive atmosphere was present. These policies also required that a firewatch be designated to monitor the hot work while it was being performed.

         On the days leading up to the explosion, Srubar issued hot work permits for construction work on the Platform. The Indictment alleges that beginning on November 10, however, Srubar delegated this duty to another Wood Group operator. On Srubar's instruction, this inexperienced operator issued hot work permits on November 10 through 16 by copying the one that Srubar had created on November 9. Neither Srubar nor the operator conducted a pre-work inspection or designated a firewatch on these days.

         During construction, it was discovered that the prefabricated piping needed to complete the upgrade of the LACT unit was missing. In order to save time, a BEE manager decided that the piping should be rebuilt instead. This required the construction crews to weld near the LACT unit. The Indictment alleges that Moss and Dantin knew that welding on the sump line piping would be required to complete the LACT system upgrade. However, no inspection was performed in the LACT area prior to the welding that occurred on November 16, the day of the explosion. On that date, the Wood Group operator copied the previous day's hot work permit, which did not mention the LACT area. No gas detector was used and no firewatch was designated. In addition, neither the piping nor the tanks in the LACT area were rendered inert prior to the start of construction in the area.

         On November 16, Dantin was watching as the crew began to cut the sump line piping leading to the wet oil tank in the LACT area. After the sump line piping was cut, liquid spilled from the piping. Dantin and the crew decided that the liquid was water and continued cutting and welding in the area. Dantin left the area thereafter and returned to his office. At approximately 9:00 a.m., as the workers attempted to weld the cut piping, hydrocarbon vapors escaped from the wet oil tank and were ignited. The ignition set off a series of explosions, spilling oil into the Gulf of Mexico, killing three workers, and injuring others.

         Counts 1 through 3 of the Indictment charge GIS with involuntary manslaughter for the deaths caused by the explosion. Count 4 charges Srubar, Moss, Dantin, and GIS with violations of the Clean Water Act.

         Each Defendant has filed a Motion to Sever the trial of the charges against him from the other defendants under various theories. This Court will address their arguments in turn.


         Defendants Moss, Dantin, and Srubar (the “Individual Defendants”) argue that trial of the charges against them should be severed from trial of the involuntary manslaughter charges against GIS because of prejudice and misjoinder. Each Defendant argues that his trial should be severed from each of the other defendants because of antagonistic defenses and confrontation clause concerns. This Court will consider each argument in turn.

         a. Prejudice under Federal Rule of Criminal Procedure 14(a)

         Defendants Moss, Dantin, and Srubar aver that a severance from GIS is warranted under Federal Rule of Criminal Procedure 14(a) based on the potential “spillover effect” of combining the manslaughter counts against GIS with the Clean Water Act violations against the Individual Defendants. They argue that joinder with GIS is improper because of the prejudicial evidence necessarily associated with the manslaughter charges against it. Rule 14 gives the district court discretion to grant a severance “[i]f the joinder of offenses or defendants . . . appears to prejudice a defendant or the government.” The Individual Defendants point out that evidence regarding the deaths caused by the explosion would be inadmissible in a trial regarding only their negligence in causing an oil spill. They argue that the evidence of the involuntary manslaughter charges will be too emotional for the jurors to ignore in deciding their guilt on a technical Clean Water Act violation.

         Defendants have not, however, pointed out a risk so significant as to warrant a severance. “It is well settled that defendants are not entitled to severance merely because they might have a better chance of acquittal in separate trials.”[1] Indeed, “the mere presence of a spillover effect does not ordinarily warrant severance.”[2] Defendants must show a “specific and compelling prejudice” against which this court cannot afford protection.[3] Defendants rely heavily on the court's analysis in United States v. McRae in their argument for a Rule 14 severance.[4] McRae involved the shooting death of Henry Glover by defendant police officer David Warren and the subsequent burning of Glover's body by his police officer co-defendants, without Warren's involvement or knowledge.[5] The Fifth Circuit granted Warren a new trial under Rule 14, holding that the evidence of the burning of Glover's body and subsequent cover-up, which did not apply to Warren, were prejudicial to the trial of the charges against him.[6]

         In support of its holding, the Fifth Circuit cited to United States v. Erwin, in which it reversed a conviction for perjury that was “only peripherally related to a drug and racketeering conspiracy” with which it was tried.[7] In Erwin, the Fifth Circuit found that very little of the “mountainous evidence” of kidnappings, beatings, and killings was usable against or applied directly to the defendant.[8] The McRae court also relied on United States v. Cortinas, in which the Fifth Circuit allowed the severance of two members of a conspiracy who left the conspiracy before many of the more violent and inflammatory incidents occurred.[9]

         Here, the acts of the Individual Defendants that give rise to the Clean Water Act charges are not easily separable from the acts which give rise to the involuntary manslaughter charges. Indeed, Dantin admits that it is only because of the allegations against him that GIS is charged with involuntary manslaughter.[10] The deaths underlying the involuntary manslaughter charges occurred simultaneously with the oil spill underlying the Clean Water Act charges, both caused by the same explosion. That said, the facts of this case are easily distinguishable from the cases cited by the Individual Defendants. Here, unlike in McRae and Cortinas, the involuntary manslaughter charges do not arise out of the subsequent actions of a co-defendant with ...

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