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United States v. Mix

United States Court of Appeals, Fifth Circuit

June 30, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellant
KURT MIX, also known as Kurt E. Mix, Defendant - Appellee

Page 604

Appeal from the United States District Court for the Eastern District of Louisiana.

For UNITED STATES OF AMERICA, Plaintiff - Appellant: Vijay Shanker, U.S. Department of Justice, Criminal Division, Washington, DC; Jennifer Lynn Saulino, Assistant Chief Attorney, U.S. Department of Justice, Criminal Division Fraud Section, Washington, DC.

For KURT MIX, also known as Kurt E. Mix, Defendant - Appellee: Douglas Harry Hallward-Driemeier, Esq., Jonathan Ference-Burke, Ropes & Gray, L.L.P., Washington, DC; Walter Francis Becker, Jr., Esq., Chaffe McCall, L.L.P., New Orleans, LA.

For NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amicus Curiae: John Patrick Elwood, Esq., Joshua Stephen Johnson, Vinson & Elkins, L.L.P., Washington, DC; Bryan U. Gividen, Vinson & Elkins, L.L.P., Dallas, TX.

Before CLEMENT, PRADO, and ELROD, Circuit Judges.


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Kurt Mix was a BP engineer involved in calculating the amount of oil spilling out of the Macondo well, the site of the Deepwater Horizon accident. He was prosecuted for deleting text

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messages and emails related to these calculations. He was acquitted of one count, but he was convicted of obstruction of justice for deleting a text message exchange between himself and his boss.

After the verdict was rendered, Mix's counsel discovered that the jury had been exposed to extrinsic evidence. The district court conducted a voir dire of the jurors, and it became clear that the jury foreperson, Juror 1, overheard in a courthouse elevator that other BP employees were being prosecuted. During a deadlock in deliberations, Juror 1 told the rest of the jury that she had overheard something that increased her confidence in voting guilty. Other members of the jury prevented her from revealing what she had overheard.

The district court ordered a new trial based on the jury's exposure to extrinsic evidence. The government appeals the grant of a new trial. We AFFIRM.

Facts and Proceedings

A. The Underlying Facts

Kurt Mix was an engineer for BP. After the Deepwater Horizon accident on April 10, 2010, he was assigned to produce flow rate models to estimate how much oil was leaving the accident site each day. The public estimate was that the well was discharging 1,000 barrels of oil per day (BOPD). But Mix's early estimates approached or exceeded 100,000 BOPD. Eventually, the Coast Guard increased the public estimate to 5,000 BOPD. Mix allegedly thought that BP wanted his estimates to match this 5,000 BOPD figure. But, even though he allegedly tried to adjust his models to reach this figure, his estimates were generally much higher. One of the consultants Mix was working with repeatedly told Mix that he thought that the actual discharge was well above 5,000 BOPD.

Meanwhile, BP, working with the government, developed a plan to try to stop the oil spill. It designated this plan " Top Kill." The idea was to pump mud into the well faster than oil was coming out, thereby sealing the well. BP held a meeting with government scientists on May 17, 2010 to discuss the plan. At the meeting, which Mix attended, scientists opined that the plan would not work if the actual flow rate was greater than 15,000 BOPD. The government alleges that Mix did not disclose that his models showed a much higher flow rate. Mix contends that his estimates were disclosed at this meeting. Ultimately, BP attempted Top Kill between May 26 and 28. Mix was involved in this attempt, but it did not work.

Both before and after BP attempted Top Kill, it issued a number of legal hold orders to Mix, advising him that he was obligated to keep any documents or information (including text messages) related to the Deepwater Horizon accident and the subsequent oil spill. BP also informed Mix about what he should do if he received a grand jury subpoena. After Mix received these notices, sometime between October 4 and 5, 2010, he deleted a text message string that he and his supervisor, John Sprague, had exchanged. Mix deleted about 331 messages. Some of these messages had been exchanged while he helped plan and carry out Top Kill. The government eventually recovered all but about 17 of the text messages. Some of the recovered messages pertained to Top Kill and flow rate estimates.

B. The Trial

The government alleged that Mix deleted these text messages to hide his contemporaneous thoughts about Top Kill and the flow rate so as to subvert the future grand jury proceeding that would convene to investigate the Deepwater Horizon accident. While Mix did not destroy other documents or information related to the estimated flow rate, the government alleged that he was candid with only a few people,

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including Sprague, who was both his supervisor and close friend. So, deleting his texts to Sprague would hide Mix's actual thoughts about the flow rate. In contrast, Mix alleged that he deleted these messages without any nefarious intent. He argued that he was just trying to delete a candid photograph that Sprague had taken of Mix and had texted to him, but Mix unthinkingly deleted the entire text string instead. Mix pointed out that there was no evidence that he asked Sprague to delete the text message exchange from his own phone, so Mix could not have been trying to hide the messages. The district court precluded the government from directly mentioning that Sprague had also deleted the text messages from his phone, but the government implied as much by telling the jury that some but not all of the texts were recovered from Sprague's phone.

C. The Deliberations

The jury deliberated for two partial days and one full day. During the full day (the second day of deliberations), the jury became deadlocked. The district court gave a modified Allen [1] charge near the end of that day. After two more hours of deliberations, the jury convicted Mix of obstructing justice by deleting the texts between himself and Sprague.

D. The Hearing on Extrinsic Influences

Mix's counsel immediately contacted the jurors without leave of court, allegedly to obtain feedback about the defense's failed trial strategy. The contacted jurors revealed that, during the deadlock, the jury foreperson announced that she had overheard extrinsic information in the courthouse elevator, and this information gave her comfort in voting guilty. Mix's counsel eventually filed a motion for a new trial based upon this extrinsic influence on the jury.[2]

In response to this motion for a new trial, the district court held a hearing to determine the nature of the extrinsic influence. Juror 1 testified that, about two days before the jury began deliberating, she heard an unknown man on the courthouse elevator saying that Mix " was not the only person who was being prosecuted" and that " [t]here were going to be other trials" of BP employees. She also testified that she did not remember the district court's instruction to notify it about hearing extrinsic information. She ...

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