IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30770

UNITED STATES OF AMERICA,

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 congressionalsubcommittee 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.

United States Court of Appeals

Fifth Circuit

FILED

June 27, 2014

Lyle W. Cayce

Clerk

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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 “massbalance” 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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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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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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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 interpretation3 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 clerkstenographers, 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 

4 Rainey also argues that a plain reading of the word “committee” renders “or any joint 

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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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 allinclusive 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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[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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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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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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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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