A Louisiana federal judge has refused to bar prosecutors from arguing at a former BP engineer’s upcoming obstruction trial that he sat idly at a government meeting while knowing his bosses were lying about the Deepwater Horizon response effort. U.S. District Judge Stanwood R. Duval Jr. ruled last month that prosecutors in the criminal case could point to a meeting two months after the offshore rig disaster — dubbed the “Kill the Well on Paper,” or KWOP, meeting — at which Kurt E. Mix allegedly sat “passively” while other BP executives misled federal agencies about the rate of oil escaping from the well and the chances that a response plan known as “Top Kill” would succeed.
The court’s order stated that the executives’ statements in that meeting are “intrinsic” to charges that Mix later deleted text messages and voicemails from his iPhone in an effort to thwart government investigators, rendering the statements admissible under federal rules of evidence, according to the order. Judge Duval said:
Defendant’s alleged passive adoption of the allegedly misleading or false statements made by others at BP during the KWOP meeting is relevant as his action or during the KWOP meeting is relevant to his state of mind at the time of the deletions. Thus, the statements and representations made by others at BP concerning flow rate and Top Kill at the KWOP meeting are ‘inextricably intertwined’ with the deletion of the text message strings which form the basis for the obstruction of justice charges.
Judge Duval also ruled that prosecutors can’t use false public statements the energy giant made following the incident, agreeing with Mix that the company’s admittedly false claims regarding the severity of the spill were not admissible as evidence. A former drilling and completion projects engineer for BP, Mix was the first individual charged in the government’s investigation of the April 2010 explosion that touched off the catastrophic oil spill.
Mix was involved in efforts to stop the leak, including the so-called Top Kill project, a failed effort by BP to pump heavy mud into the blown-out wellhead to stop the oil flow. Mix received numerous notices that he was required to retain all information related to the efforts, including electronic communications, according to the government. He was charged with deleting text messages in the aftermath of the blast and later hit with a superseding indictment alleging he also scrubbed 350 voicemails. Facing a December trial date, Mix petitioned Judge Duval in April to exclude evidence regarding the supposed misconduct of others at BP, arguing that prosecutors were attempting to leverage a criminal settlement with the corporate entity to prove Mix’s guilt by association.
Judge Duval granted the motion in part, prohibiting prosecutors from pointing to false statements BP made to Congress and the media concerning the oil flow rate and the Top Kill project before Mix’s alleged deletions. Judge Duval said:
Such public statements made by others far in advance of the defendant’s alleged criminal activity are not inextricably intertwined with defendant’s alleged obstruction of justice. Nor are the challenged public statements made by other BP personnel and the alleged deletions from defendant’s iPhone part of a ‘single criminal episode.’
Even if the statements were relevant to the context in which Mix acted, their probative value was outweighed by the likely prejudice to Mix, according to the order. Judge Duval said further:
The scope of such evidence is potentially broad, and admission of such evidence is likely to result in bias against BP. There is a real possibility that prejudice arising against BP could overshadow the alleged acts of defendant and taint him with unfair prejudice.
But Judge Duval allowed prosecutors to reference the KWOP meeting and Mix’s participation in it, which prosecutors said would show an “adoptive admission” by Mix of misleading information presented by other BP employees. Because “corrupt intent” is a necessary element of an obstruction-of-justice prosecution, facts relative to Mix’s motive and intent are relevant, and evidence surrounding those adoptive admissions is fair game, the judge ruled. The case is U.S. v. Mix in the U.S. District Court for the Eastern District of Louisiana.
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