United States v. Mix, CRIMINAL ACTION NO. 12-171

• Decision Date: 10 October 2013
• Docket Number: CRIMINAL ACTION NO. 12-171
• Parties: UNITED STATES OF AMERICA v. KURT E. MIX
• Court: U.S. District Court — Eastern District of Louisiana

UNITED STATES OF AMERICA v. KURT E. MIX

CRIMINAL ACTION NO. 12-171

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "K"(1)

DATED: October 10, 2013

ORDER AND REASONS

Before the Court are three motions:

1) Defendant's Motion to Dismiss the Pending Indictments for Facial Insufficiency (Doc. 449);

2) Defendant's Motion to Dismiss Count Two of the Pending Indictments as Legally Insufficient (Doc. 450); and

3) Defendant's Motion to Dismiss the Pending Indictments Due to Constitutional Defects in the Grand Jury Proceedings (Doc. 456).

The Court will take these motions up seriatim; however, the Court will provide a brief overview of its relevant previous rulings.

I. BACKGROUND

The facts and circumstances of this case have been set forth in detail before and will not be repeated here. The most salient rulings with regard to the above-listed motions are: (1) the oral ruling on Defendant's Motion to Dismiss Count Two of the Indictment rendered on November 8, 2012 (Doc. No. 512) and the Court's Order and Opinion with respect to defendant's "Motion in Limine to Preclude References to Unrecovered Voicemails, and for an order Compelling Disclosure of Grand Jury Transcripts." (Doc. No. 470). The Court incorporates by reference the analyses found in these two rulings; however, it will highlight what it deems relevant in the context of the motions before it now.

A. Relevant Rulings with Respect to November 8, 2012 Denial of Motion to Dismiss Count Two of Original Indictment

The initial indictment in this matter was handed down by a grand jury on May 2, 2012, charging Kurt Mix ("Mix") with two counts of obstruction of justice for violating 18 U.S.C. § 1512(c)(1) which provides in pertinent part that:

Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding . . . shall be fined under this title or imprisoned for not more than 20 years or both.

18 U.S.C. § 1512(c)(1). In the initial indictment, Count One was based on Mix's alleged October 4, 2010 deletion from his iPhone of all texts in a string of texts with BP's then-Drilling Engineering Manager for the Gulf of Mexico ("Supervisor"). Count 2 was based on Mix's alleged August 19, 2011 deletion from his iPhone of all texts in a string of texts with an outside contractor ("Contractor").

With respect to the initial indictment, Mix filed the aforementioned Motion to Dismiss Count Two of the Indictment. (Doc. 96). Defendant contended, inter alia¹, that theGovernment's position that the defendant could be convicted of obstruction even where the allegedly withheld material had no possible consequence to the asserted grand jury was wrong. Defendant argued that to establish the requisite nexus for a conviction of obstruction of justice, the government must prove that the natural and probable effect of the defendant's alleged act was interference with the "due determination of justice." (Doc. 512, Transcript at 120.)

In its oral reasons for denying the motion, the Court first noted that materiality is not an element of the crime of obstruction of justice pursuant to 18 U.S.C. § 1512(c)(1). Id. at 121. The Court also held that the nexus required to be proven for obstruction "requires only that the deletion bears some relation in time, causation or logic to the judicial proceeding." Id. at 121.

In reaching that determination, this Court commented on United States v. Aguilar, 115 S.Ct. 2357, 2361 (1995), and stated:

the Supreme Court examined the scope of the intent requirement under the Omnibus Clause of 18 U.S.C. §1503 which, prohibits "corruptly . . . influenc[ing], obstruct[ing], or imped[ing] or endeavor[ing] to influence, obstruct, or impede, the due administration of justice." The Supreme Court approved a "nexus" requirement previously adopted by a number of Courts of Appeals. Id. at 2362. In surveying prior decisions of the Courts of Appeals, the Supreme Court noted that:

Some courts have phrased the showing as a "nexus" requirement-that the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the "natural and probable effect" of interfering with the due administration of justice. But . . . if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding he lacks the requisite intent to obstruct.

Id. (internal quotations and citations omitted). (Doc. 512, Transcript at 122-23).

This Court then commented on Arthur Andersen, LLP v. United States, 125 S.Ct. 2129, 2136 (2005), noting that the Supreme Court held that the nexus requirement of a relationship in time, causation, or logic with the judicial proceedings also applies in cases involving alleged violations of 18 U.S.C. §1512 which statute is at issue here. "The government must [] prove beyond a reasonable doubt some "nexus" between the obstruction and the official proceeding." United States v. Bennett, 664 F.3d 997, 1013 (5^th Cir. 2011) (examining 18 U.S.C. §1512(c)(2), rev'd on other grounds 133 S.Ct. 71 (2012). (Doc. 512, Transcript at 123). As stated in United States v. Matthews, 505 F.3d 698 (7^th Cir. 2007):

before a defendant may be convicted of obstruction under § 1512(c)(1), he must believe that his acts will be likely to affect a pending or foreseeable proceeding. See Arthur Andersen, 544 U.S. at 707, 125 S. Ct. 2129; United States v. Kaplan, 490 F.3d 110, 125 (2d Cir. 2007) ("[A] 'knowingly . . . corrupt persuader' must believe that his actions are likely to affect a particular, exiting or foreseeable official proceeding.")

Mathews, 505 F.3d at 708.

Thus, this Court held that an essential element of the "nexus" analysis is the defendant's intent. "Determining a criminal defendant's intent is a question of fact that the jury must resolve under the totality of the circumstances and after evaluating all of the evidence." United States v. Merkt, 764 F.2d 266, 272 (5^th Cir. 1985). See also United States v. Jones, 217 Fed. Appx. 333 (5^th Cir. 2007 ("Intent is a fact question for the jury and is often inferred from circumstantial evidence.").

In denying Mix's first Motion to Dismiss, the Court determined that given the lack of a materiality element, the test is not whether the deletion of the email actually had an effect on the proceedings of the grand jury, but rather whether Mix thought that deleting the informationcould have an effect upon the grand jury proceedings. The Court noted that at the time Mix deleted the email string he knew the following:

• There had been a public announcement that the government was investigating the Macondo well incident;

• Mix had received a corporate hold notice with respect to documents (including texts) related to the Macondo well incident;

• A BP vendor had collected hard copy documents from him related to the Macondo

well incident; and

• A BP vendor had schedule another meeting to collect additional data from Mix.

Thus, considering the totality of these circumstances, this Court found that a jury could infer that Mix deleted the text message string to and from Contractor with the intent to deprive a judicial proceeding of the messages and he could have know that it was foreseeable that by doing so he would "impair the object's . . . availability for use in an official proceeding." 18 U.S.C. §1512(c)(1). The Court reiterated, "[t]he statute does not require an actual adverse effect on a grand jury proceeding only that the act "have a relationship in time, causation or logic with the judicial proceeding" and that the act have the "natural and probable effect" of interfering with the due administration of justice." (Doc. 512, Transcript at 124).

B. Relevant Rulings in Order and Opinion (Doc. 470) Concerning Defendant's "Motion in Limine to Preclude References to Unrecovered Voicemails, and for an order Compelling Disclosure of Grand Jury Transcripts."

A Superseding Indictment (Rec. Doc. 215) was handed down on March 20, 2013; it broadened the scope of the obstruction indictment against Mix by referencing in Count 2 hundreds of voicemails received over a period of time all of which had been allegedly deleted from defendant's iPhone on or about August 20, 2011. In response, defendant filed a "Motion in Limine to Preclude References to Unrecovered Voicemails, and for an order Compelling Disclosure of Grand Jury Transcripts."

In its June 6, 2013, ruling, this Court found that only four deleted, unrecovered voicemails were relevant. They included the Contractor voicemails of June 17, 2011 and August 18, 2011 which had been deleted between April 13, 2011 and August 22, 2011. The Court also found that a voicemail left by the Supervisor on August 20, 2911 and deleted the same day was likewise relevant. Finally a voicemail that came from a telephone call that went through the BP's general switchboard was relevant. Because of the timing of the deletions and the surrounding facts, when considered together, the Court found these allegations to be sufficient to give rise to a reasonable inference that would have a tendency to make a fact more or less probable than it would be without the evidence, e.g., whether a nexus exists between the deletion of the voicemails and a foreseeable grand jury proceeding or whether Mr. Mix acted with corrupt intent in deleting the voicemails. (Doc. 470 at 5-6 of 13).

In addition, defendant sought to compel the United States to disclose the transcripts of the grand jury proceedings based on Mix's contention that "it is difficult to see how a grand jury that was appropriately apprised of the evidence and correctly instructed as to the elements ofobstruction of justice could have found probable cause to believe that Kurt Mix deleted any voicemails from his iPhone with the 'corrupt' intent to obstruct a federal criminal investigation into the Macondo well incident." Doc. 258, p. 11. Thus, defendant was...