A former BP Plc (BP/) engineer charged in the first criminal case arising from the 2010 Gulf of Mexico oil spill said U.S. prosecutors withheld evidence that might clear him and urged a judge to sanction them.
The U.S. charged Kurt Mix with two counts of obstruction of justice last year, alleging he deleted from his mobile phone text-message strings related to the company’s effort to estimate the size of the spill. Mix, who has pleaded not guilty, is facing a June 10 federal trial.
Prosecutors failed to turn over evidence requested by the defense, so-called Brady material, that Mix might use to dispute government allegations, his lawyers said in court papers. They asked U.S. District Judge Stanwood Duval at a hearing yesterday in New Orleans to sanction the government, suggesting in court filings a range of actions including rejection of certain evidence or arguments, or complete dismissal of the indictment.
“The facts make it abundantly clear that these prosecutors have violated Brady,” court orders and ethics rules, Joan McPhee, an attorney for Mix, told Duval yesterday. “They have done so by knowingly and intentionally suppressing evidence in their direct personal possession” that contradicts their obstruction charges against Mix, McPhee said.
The U.S. hasn’t suppressed evidence, prosecutor Derek Cohen told Duval yesterday.
“At best we have an honest disagreement” with defense attorneys, Cohen said. “We’re prepared to turn everything over.”
Duval said he would take the defense motion for sanctions “under advisement,” while ordering the government to provide the defense with Federal Bureau of Investigation interviews of witnesses and 400 civil depositions.
Duval asked McPhee what remedies she would like for Mix, “other than hanging and pillorying” the prosecutors.
McPhee said she would be happy to “craft an order.”
Duval said there was no time and declined to issue any immediate orders.
“‘‘Right now, your client is going to trial,’’ the judge said.
The blowout and explosion on the Deepwater Horizon drilling rig in April 2010 killed 11 workers and started millions of barrels of crude leaking into the Gulf. It also set off hundreds of lawsuits against BP, its partners and contractors on the project.
A nonjury trial on fault for the incident ended last month before a separate judge in federal court in New Orleans. U.S. District Judge Carl Barbier, who is overseeing litigation stemming from the blowout, has said that he may not issue a judgment on fault and gross negligence before a scheduled second phase of the trial set for Sept. 16. That phase will concern the size of the spill and the efforts to contain it.
Mix worked on BP efforts to estimate the amount of oil leaking from the Macondo well. The two counts of the indictment concern text messages between him and a contractor and another string with his supervisor. Mix’s prosecution was the first criminal case to arise from the 2010 spill.
Since his arrest in April 2012, BP and Transocean Ltd. (RIG) have pleaded guilty to criminal charges over the spill.
BP agreed to plead guilty to 14 criminal counts including 11 for felony manslaughter related to the deaths that occurred when the Deepwater Horizon drilling rig exploded and sank. The company also pleaded guilty to 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.
The obstruction count involves BP’s communications on flow-rate estimates to a congressional subcommittee, according to the Justice Department. The company has also agreed to pay an additional $525 million to resolve claims by the Securities and Exchange Commission that London-based BP underestimated the size of the spill to bolster stock prices.
Transocean, the Vernier, Switzerland-based owner and operator of the rig, pleaded guilty in January to one misdemeanor violation of the U.S. Clean Water Act.
Two BP well-site managers were charged with involuntary manslaughter. David Rainey, the company’s former vice president of exploration for the Gulf of Mexico, was charged with obstruction of Congress and false statements related to the size of the spill.
The U.S. claims Rainey cherry-picked information from flow-rate reports to make the oil spill seem less catastrophic than it was. Rainey and the other defendants have pleaded not guilty. Rainey’s trial is set for October and the well-site managers, Robert Kaluza and Donald Vidrine, face trial in 2014.
Mix ‘‘should never have been indicted in the first place,” his lawyers have 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 the May 9 filing.
The government has broadened its claims that Mix destroyed evidence by alleging that he helped others at BP mislead the federal government about the flow rate and the likely success of “Top Kill,” a method used by the company in a failed attempt to cap the well after it exploded, the lawyers said. The U.S has contended that Top Kill couldn’t have worked because the flow rate was too high.
Mix’s lawyers asked the government to disclose any information that might indicate that it was impossible to know as of May 2010, when the defendant attended a meeting on the spill, that Top Kill would fail.
“The government is sitting on evidence that contradicts its allegation that Kurt Mix knew what the flow rate was,” McPhee said yesterday.
The defense has “uncovered” two pieces of evidence in the government’s possession that would undercut prosecutor allegations that Mix didn’t cooperate with government efforts to determine the oil spill flow rate and obstructed justice, McPhee said at the hearing.
Mix’s modeling, which showed potential flow rates of 64,000 to 110,000 barrels a day, was turned over to the U.S. Coast Guard in the first couple of days following the explosion, she said. “It’s clearly exculpatory,” she said of the models.
She said the second piece of evidence regards the government interpretation of “a data-free zone” involving Operation “Top Kill.”
McPhee said the government has depicted the data-free zone as a secret meeting of BP engineers and officials on May 17, 2010, discussing flow rates different than those presented to the public. A scientist interviewed by the FBI in January told Mix’s attorneys that the data-free zone was 5,000 feet below the Gulf and didn’t refer to failing to disclose information about the flow rate, McPhee said.
The government’s search for Brady material by Mix’s name simply failed to turn up his estimate for the Coast Guard, Cohen told the judge.
“We would have produced it, if we caught his name -- we didn’t catch his name,” he said.
Cohen said that Mix and other BP employees at the May 17 meeting withheld critical information from the government about flow rates of the roiling oil spill and the effectiveness of Top Kill.
“He was part of team of people that was not telling the government the truth,” Cohen told the judge.
Cohen said the prosecution has witnesses that will testify that the May 17 meeting was a “data free zone.”
The U.S. case isn’t charging Mix with being part of “an amorphous company-wide” cover-up, Cohen said. The allegations are limited to claims that Mix obstructed justice by deleting voice-mails and e-mails, he said.
Prosecutors will turn over 400 depositions to the defense, he said.
“I don’t want to be set up to fail,” he said.
The case is U.S. v. Mix, 12-cr-00171, U.S. District Court, Eastern District of Louisiana (New Orleans).
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