Deepwater Horizon in flames on April 21, 2010 after the explosion. U.S. Coast Guard Photo
By Margaret Cronin Fisk and Daniel Lawton
Dec. 2 (Bloomberg) — A former BP Plc engineer accused of destroying evidence sought by the U.S. for a probe of the 2010 Gulf of Mexico oil spill went on trial in the first criminal case arising from the disaster to go before a jury.
U.S. prosecutors charged Kurt Mix with two counts of obstruction of justice last year, alleging he deleted from his mobile phone text messages and voice mails related to the company’s effort to estimate the size of the spill. Mix has pleaded not guilty. Jury selection started today for his trial in federal court in New Orleans.
The blowout of BP’s deep-water Macondo well off the coast of Louisiana in April 2010 killed 11 people and set off the largest offshore oil spill in U.S. history. Prosecutors allege Mix destroyed material sought for a federal probe of the disaster. Mix denies any intentional destruction of evidence.
“The government has a solid case but it may be difficult to show he acted corruptly,” said David Uhlmann, professor at the University of Michigan Law School in Ann Arbor, and former head of the environmental crimes section of the U.S. Justice Department.
“Mix’s lawyer will argue that any destruction of evidence made no difference in the government’s investigation,” he said in a phone interview. “It may not be a valid legal argument, but it may affect how a jury views Mix’s conduct.”
The oil spill triggered a federal investigation of the incident and thousands of lawsuits against BP, as well as Transocean Ltd., owner of the Deepwater Horizon drilling rig that burned and sank, and Halliburton Co., which provided cement services for the well.
Mix, who was arrested in April 2012, was the first person indicted over the 2010 disaster. U.S. District Judge Stanwood Duval Jr. is presiding over the trial.
Two BP well-site managers, Robert Kaluza and Donald Vidrine, were charged in November 2012 with involuntary manslaughter for the 11 deaths on the well. David Rainey, the company’s former vice president of exploration for the Gulf of Mexico, was also charged that month with providing false statements related to the size of the spill.
All three have pleaded not guilty. Rainey’s trial is scheduled for March; Kaluza and Vidrine face trial in June.
BP agreed last year to pay $4 billion to resolve the federal criminal probe of its role in the spill.
The company pleaded guilty to 14 criminal counts including 11 for felony manslaughter, one misdemeanor count under the Clean Water Act, one misdemeanor count under the Migratory Bird Treaty Act and one felony count of obstruction of Congress for misrepresenting the size of the spill.
Transocean pleaded guilty in February to one misdemeanor count of violating the U.S. Clean Water Act and agreed to pay a $400 million criminal fine.
Halliburton agreed in July to plead guilty to a misdemeanor for failing after the explosion to preserve computer models examining the final cement job on the well. The company paid a statutory maximum fine of $200,000.
Mix was a senior BP engineer involved in leading efforts to cap the Macondo well as it gushed into the Gulf of Mexico, including a procedure called Top Kill, the U.S. said in court papers. Mix had access to internal BP data on the amount of oil flowing into the Gulf of Mexico from the well.
Mix knew that BP’s internal estimates of the flow rate were “well above” the numbers the company was citing publicly and the maximum 15,000 barrel-a-day limit for Top Kill to be successful, the U.S. said.
Mix didn’t disclose this at a meeting between government officials and BP engineers in May 2010 and subsequently erased references to it on his iPhone, prosecutors said.
Mix texted a supervisor on May 26, 2010, that the flow rate was too high for Top Kill to work, FBI Special Agent Barbara O’Donnell said in a sworn statement filed in the case.
“Too much flow rate — over 15,000 and too large an orifice,” Mix said, according to the U.S. Mix later deleted this text, O’Donnell said. The U.S. was able to recover most of the texts, including this one, using “forensic tools,” she said in an April 2012 filing.
“The defendant had both corrupt intent and a clear motive to delete his text messages with supervisor — which included a text message reflecting the defendant’s contemporaneous belief during Top Kill that Top Kill was failing because the flow rate was too high — because he did not want the government to discover what his true beliefs had been,” prosecutors said in court papers in September.
Mix “also lied” to BP’s document vendor and outside counsel about “relevant materials on his iPhone,” prosecutors said.
Mix “should never have been indicted in the first place,” his lawyers argued in court papers. The government is attempting to make Mix “a central and essential player in a BP cover-up of information from the federal government,” they said in a May 9 filing.
“These misguided charges over failure to retain text messages constitute startling government overreaching,” Joan McPhee, Mix’s lawyer, said in an e-mailed statement after he was arrested last year. “We have every confidence that Kurt will be exonerated at trial.”
The government’s claims that Mix had a motive to erase the messages are “demonstrably untrue” and “highly prejudicial,” his lawyers said in court papers Sept. 16.
“Mix is not charged with ‘misleading,’ ‘defrauding,’ or ‘lying to’ Cabinet-level officials, national laboratory scientists or document collection vendors,” McPhee and his others lawyers wrote. “Instead, Mix is charged with two counts of obstruction of justice, both of which rest on highly implausible speculation and inferences regarding motive, intent and nexus,” they said.
Mix’s lawyers contend he didn’t lie to the BP document collection vendor and didn’t erase material that the U.S. needed or hadn’t been able to otherwise acquire. They said he provided modeling days after the explosion to the U.S. Coast Guard that showed potential flow rates of 64,000 to 110,000 barrels a day.
“The case may boil down to whether the jury thinks that Mix acted with an improper purpose when he deleted the messages or just acted unwisely,” Uhlmann, the law professor, said.
“If the jury concludes that Mix just acted foolishly, or if they have a reasonable doubt about his motives, they would be required to find him not guilty.”
The case is U.S. v. Mix, 12-cr-00171, U.S. District Court, Eastern District of Louisiana (New Orleans).
Copyright 2013 Bloomberg.
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