This post examines an opinion a federal district court judge
recently issued in a prosecution that arose from the 2010 BP oil spill
in the Gulf of Mexico. U.S. v. Mix, 2013 WL 2100264 (U.S.District Court for the Eastern District of Louisiana 2013); U.S. v. Mix, Indictment, 2012 WL 214982. The defendant is Kurt Mix who, at the time,
was “a Drilling Engineer for BP plc (`BP’), a multinational oil and gas company
headquartered in London, England.” U.S. v. Mix, Indictment, supra ¶ 1.
If you have forgotten, it was on April 20, 2010 that the Deepwater
Horizon drilling rig, “leased by BP, was completing work on the
Macondo well in the Gulf of Mexico” when it “experienced an uncontrolled blowout of gas
and oil, which quickly led to two massive explosions resulting in the deaths of
eleven men and the largest oil spill in United States history.” U.S. v. Mix, Indictment, supra ¶ 2. That brings us to
what happened next:
3. Following the Macondo well
explosions, Defendant KURT MIX worked on a number of efforts by BP to stop the
flow of oil. As part of his work, MIX generated and had access to BP internal
data regarding the amount of oil flowing from the Macondo well after the
explosions. The amount of oil flowing was relevant to various efforts to stop
the flow and . . . to assessing the damage caused by the flow, including
potential . . . civil and criminal fines and restitution.
4. From at least in or about April 2010
through in or about July 2010, . . . MIX used a cellular telephone and/or an
iPhone to exchange electronic text messages with other BP employees and
contractors with whom he was working on flow-rate assessments and efforts to
stop the flow of oil. . . . MIX exchanged text messages with, among others,
BP's then-Drilling Engineering Manager for the Gulf of Mexico (`SUPERVISOR’)
and an outside contractor with whom MIX was working on the spill response
(`CONTRACTOR’).
5. On or about April 22, 2010, BP
issued to . . . MIX a Legal Hold Notice directing him to retain all records
relevant to the Macondo well incident, including text messaging. The . . . Legal
Hold Notice also stated that `[w]ithholding, concealing, altering, falsifying
or destroying anything subject to this Legal Hold Order may subject individuals
or BP to prosecution or other severe consequences.’
6. In or about and between late April
2010 and June 2010, . . . BP sent MIX
approximately five additional Legal Hold Notices, including one dated on or
about May 5, 2010, which stated on the cover, in bold and underlined type, that
instant messages and text messages needed to be preserved.
7. On or about June 1, 2010, the United
States Attorney General publicly announced in New Orleans, Louisiana, that the
Department of Justice (`DOJ’) was conducting civil and criminal investigations
of the oil spill.
8. In or about August 2010, the United
States Securities and Exchange Commission, in coordination with DOJ, issued a
subpoena to BP for flow-rate related documents from April 20, 2010 to August 9,
2010. Both DOJ criminal prosecutors and SEC attorneys were in frequent
communication with BP regarding this and subsequent flow-rate related document
and witness requests.
9. On or about September 22, 2010, MIX
received an email from an outside vendor retained by BP's lawyers (`VENDOR’).
The email notified MIX that VENDOR would be collecting documents and also
requested to schedule a time with MIX to collect “all active electronic data.”
10. On or about September 27, 2010, met
with VENDOR, who retrieved some of MIX's relevant hardcopy documents.
11. On or about Monday, October 4,
2010, MIX deleted from his iPhone all texts with SUPERVISOR.
12. On or about Tuesday, October 5,
2010, VENDOR attempted to collect MIX's electronic documents remotely.
13. On or about August 8, 2011, DOJ
contacted MIX's criminal defense attorney to schedule a time to question MIX.
14. On or about August 17, 2011, MIX
was contacted by VENDOR to schedule another document collection meeting and was
informed of `possible collections (Laptop & PDA) for you.’
15. On or about Friday, August 19,
2011, MIX deleted from his iPhone all texts with CONTRACTOR.
16. On or about Monday, August 22,
2011, VENDOR collected MIX's iPhone and imaged it.
U.S. v. Mix,
Indictment, supra ¶¶
3-16.
The indictment charges Mix with two counts of obstruction of justice in violation of 18 U.S. Code § 1512(c), which makes it a federal crime
to “corruptly” alter, destroy, mutilate or conceals a record, document, or
other object “with the intent to impair [its] integrity or availability for use
in an official proceeding”. U.S. v. Mix, Indictment, supra ¶¶ 17-20. The first
alleges that “on or about October 4, 2010”, he “did corruptly alter, destroy,
mutilate, and conceal . . . electronic data contained within an electronic
device, to wit: an iPhone containing text messages with SUPERVISOR . . . with
the intent to impair its integrity and availability for use in . . . a federal
grand jury proceeding.” U.S. v. Mix,
Indictment, supra ¶ 18.
The second count alleges that “on or about August 19, 2011,”
Mix “did corruptly alter, destroy, mutilate, and conceal . . . electronic data
contained within an electronic device, to wit: an iPhone containing text
messages with CONTRACTOR . . . with the intent to impair its integrity and
availability for use a federal grand jury proceeding.” U.S. v.
Mix, Indictment, supra ¶ 20.
In this opinion, the judge is ruling on the “Motion in Limine to Preclude the Government from Improperly Relying Upon the BP Litigation
Hold Notices” Mix filed in this case. U.S. v. Mix, supra. He sought an order that would, at trial, bar
the prosecution from `“arguing or suggesting that mere non-compliance with the
Hold Notices constitutes a violation of the obstruction of justice statute’”
and to “`exclude . . . those portion of the Hold Notices that purport to
describe the legal scope of the employee's document preservation obligations
and the potential consequences of failing to satisfy those obligations.’” U.S. v. Mix, supra.
Mix also asked that the judge, “if requested to do so, to `caution
the jury that any evidence Mix may have failed to comply with his company's
internal Hold Notices does not prove Mix deleted text messages with the
“corrupt” intent to impair a grand jury investigation.’” U.S. v. Mix, supra.
The prosecution claimed the Hold Orders “are admissible as
are [Mix’s] violations of the orders to establish 1) [his] mental state, i.e.,
that he acted with corrupt intent in deleting the text messages and voice
mails, 2) to provide the context and circumstances of Mix's deletions; 3) to
establish the foreseeability of a grand jury proceeding, an element of 18
U.S.C. § 15212.” U.S. v. Mix, supra.
The judge began his opinion by noting that “[i]t is It is
axiomatic that whether. Mix violated one or more of the Hold Orders is not
determinative of the issue of whether he obstructed justice as charged”. U.S. v. Mix, supra. He noted therefore, that the issue before him
was “whether the Hold Orders are relevant evidence with respect to the any
issue in this case, and, if so, whether the Hold Orders are admissible pursuant
to Rule 403 of the Federal Rules of Evidence.” U.S. v. Mix, supra.
As to the first issue, the judge explained that “relevant evidence” is evident which “`has a tendency to make a fact more or less
probable than it would be without the evidence’” and which is a “`fact of
consequence in determining the action.’” U.S. v. Mix, supra (quoting Rule 401 of the Federal Rules of
Evidence). He also noted that the prosecution argued that the fact Mix violated
the Hold Orders was relevant to the issue of
foreseeability of a grand jury
investigation as well as to Mix's motive and state of mind. To establish
obstruction of justice under 18 U.S. Code 1512(c)(1), the United States
must prove [Mix] committed one of the prohibited acts `with the intent to
impair the object's integrity or availability for use in an official
proceeding’. Therefore, the foreseeability of an official proceeding, e.g,
grand jury, is an element of the offense.
Although the Hold Orders make no
specific reference to a grand jury inquiry, they do advise the recipient that
there is `a pending or anticipated legal matter’ and taking certain actions,
including destroying, materials covered by the Hold Order `may subject
individuals or BP to prosecution or other severe consequences.’ . . . The
possibility of a grand jury proceeding is certainly within the scope of
`prosecution.’ Based on that quoted language, the Hold Orders have a tendency
to make the foreseeability of an `official proceeding more probable. Therefore,
the evidence is relevant.
U.S. v. Mix, supra.
The judge also found that the evidence is relevant to Mix’s
“motive and state of mind”:
Evidence that a recipient of the Hold
Order disregarded that notice is a fact that has a tendency to make it more
likely that defendant acted with corrupt intent in deleting the text messages
and voicemails. Additionally, knowledge of the Hold Order had a tendency to
make it less likely that defendant deleted the data due to ignorance or
accident. Evidence of a breach of the Hold Orders constitutes relevant evidence
under Rule 401 of the Federal Rules of Evidence.
U.S. v. Mix, supra.
He then explained that “without conceding that he violated
the Hold Orders,” Mix
urges that even if [they] are
probative, there is a substantial danger [they] will mislead the jury
concerning the government's burden of proof and therefore . . . should be
excluded . . . under Rule 403 of the Federal Rules of Evidence, [which] permits
a court to `exclude relevant evidence if its probative value is substantially
outweighed by a danger’ of, among other things `unfair prejudice.’ `Unfair
prejudice “speaks to the capacity of . . . concededly relevant evidence to lure
the factfinder into declaring guilty on a ground different from proof of
specific to the offense charged.”’ U.S. v. Perez–Solis, 709
F.3d 453 (U.S. Court of Appeals for the 5th Circuit 2013) (quoting Old Chief v. U.S., 519 U.S. 172 (1997)).
U.S. v. Mix, supra.
Mix argued that the prosecution “`the Government cannot be
permitted to use Mix's alleged non-compliance with the Hold Notices as a
shortcut to proving Mix acted with the “corrupt” intent to obstruct a grand
jury investigation’” and that the United States must be precluded “`from
placing undue focus or emphasis on the Hold Notices.’” U.S. v. Mix, supra. After
reiterating that the Hold Orders are relevant evidence, the judge explained
that the judge’s giving a
limiting instruction [at trial] setting
out the limited purpose for which the Hold Orders are being admitted into
evidence, given contemporaneously with the admission of the Hold Notices into
evidence, and at the close of trial, will effectively reduce the possibility of
any confusion as to the purpose of the evidence and the United State's burden
of proof and will reduce the focus on the Hold Orders beyond their limited
purpose.
U.S. v. Mix, supra.
Finally, Mix alternatively argued that “even if the Hold
Orders are admissible, they should be redacted to excise any language
purporting to define the legal obligations of the recipient of the notice.” U.S. v. Mix, supra. Specifically, he argued that these portions
of the Hold Notices should be removed:
1) `[w]ithholding, concealing, altering, falsifying or destroying anything
subject to this Legal Hold Order may subject individuals or BP to prosecution
or other severe consequences’; 2) `[a]pplicable law requires that all BP
employees comply with its duty to preserve all information potentially relevant
to this incident’; and 3) `[f]ailure to do so could result in extreme penalties
against BP.’
U.S. v. Mix, supra.
The judge found that the
specific reference to prosecution is
not overly broad given that this case involves a criminal prosecution.
Additionally, . . . the challenged provisions are the very portions of the
statements that are significant in establishing the relevance of the evidence.
U.S. v. Mix, supra.
He held, therefore, that the Hold Orders
are relevant to the foreseeability of
grand jury proceedings and to defendant's motive and intent, and are therefore
admissible and the probative value of the evidence is not [Mix’s] motion to the
extent it seeks to `preclude the Government from arguing or suggesting that
mere non-compliance with the Hold Notices constitutes a violation of the
federal obstruction of justice’ statute and to the extent the Court will give a
limiting instruction concerning the limited purpose for which the Hold Orders
are being admitted into evidence.
U.S. v. Mix, supra. He therefore denied Mix’s motion in limine “to
the extent that it seeks a redaction of the Hold Orders.” U.S. v. Mix, supra.
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