United States v. Mix

• Citation: 791 F.3d 603
• Decision Date: 30 June 2015
• Docket Number: No. 14–30837.,14–30837.
• Parties: UNITED STATES of America, Plaintiff–Appellant v. Kurt MIX, also known as Kurt E. Mix, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

791 F.3d 603

UNITED STATES of America, Plaintiff–Appellant

v.Kurt MIX, also known as Kurt E. Mix, Defendant–Appellee.

No. 14–30837.

United States Court of Appeals, Fifth Circuit.

June 30, 2015.

Vijay Shanker (argued), Jennifer Lynn Saulino, Assistant Chief Attorney, U.S. Department of Justice, Washington, DC, for Plaintiff–Appellant.

Douglas Harry Hallward–Driemeier, Esq. (argued), Jonathan Ference–Burke, Ropes & Gray, L.L.P., Washington, DC, Walter Francis Becker, Jr., Esq., Chaffe McCall, L.L.P., New Orleans, LA, for Defendant–Appellee.

John Patrick Elwood, Esq., Joshua Stephen Johnson, Vinson & Elkins, L.L.P., Washington, DC, Bryan U. Gividen, Vinson & Elkins, L.L.P., Dallas, TX, for Amicus Curiae.

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

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

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 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, 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 Allen¹ 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 admitted that she told the other jurors that she overheard something, but she denied revealing what she had overheard.

Several other jurors testified that, during the deadlock, Juror 1 told them that she overheard information in the elevator, and this information gave her comfort in voting guilty. The jurors prevented her from telling them what she overheard. While Juror 1 denied saying that the information gave her comfort in voting guilty, the district court concluded that she had in fact said so. The government does not challenge this factual finding on appeal.

The government opposed Mix's motion for a new trial. It argued that the extrinsic information overheard by Juror 1 was cumulative and that any problem was cured by the extensive jury instructions directing the jury to disregard extrinsic evidence.

E. The District Court's Order

The district court ordered a new trial based on the extrinsic influence on the jury. It reasoned that Juror 1 had clearly been troubled by the information. Further, it found that other jurors were likely influenced by Juror 1's statement that she overheard extrinsic evidence that gave her comfort in voting guilty. Finally, it noted that the jurors' failure to report the extrinsic evidence undermined its confidence in their ability to follow other instructions (such as the instruction to disregard extrinsic evidence).

Standard of Review

“We review only for abuse of discretion a court's handling of complaints of outside influence on the jury.” United States v. Smith, 354 F.3d 390, 394 (5th Cir.2003). We review a district court's grant of a new trial under Federal Rule of Criminal Procedure 33 using the same abuse-of-discretion standard. United States v. Piazza, 647 F.3d 559, 564 (5th Cir.2011).

Discussion

The introduction of extraneous prejudicial information into the jury room violates a defendant's Sixth Amendment right to an impartial jury and his Sixth Amendment right to confrontation. E.g., Parker v. Gladden, 385 U.S. 363, 364–66, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (per curiam). Even one juror's prejudice is sufficient to warrant a new trial. See id. at 366, 87 S.Ct. 468 (“[P]etitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”).

The government argues that the district court abused its discretion because the extrinsic evidence was not prejudicial. We disagree. The district court did not abuse its discretion when it found that the jury was prejudiced in two separate ways. First, Juror 1 was prejudiced by hearing that other BP employees were being prosecuted. Second, the rest of the jury was prejudiced by the foreperson's enigmatic statement that she heard outside information that gave her comfort in voting guilty.

To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice. United States v. Sylvester, 143 F.3d 923, 934 (5th Cir.1998). The government then bears the burden of proving the lack of prejudice. Id. The government can do so by showing there is “no reasonable...