“Intentionally deleting text messages and voice mails to keep them out of the hands of a federal grand jury investigation is a federal crime.” Jennifer Saulino, Justice Department prosecutor
A former BP engineer deliberately deleted text messages that would have helped the U.S. Justice Department’s investigation into the 2010 Gulf of Mexico oil spill, an FBI agent involved in the prosecution of companies responsible for the disaster testified Wednesday in federal court in New Orleans.
Special Agent Kelly Bryson was the first witness to take the stand in the obstruction-of-justice trial of Kurt Mix, 52.
Mix was indicted in May 2012, accused of getting rid of a string of text messages and voice mails months after the April 20, 2010, Deepwater Horizon explosion — which killed 11 men and caused the worst environmental disaster in American history — despite receiving several notices from BP to preserve his communications.
Mix faces two counts of obstruction of justice — carrying a potential prison sentence of up to 20 years on each count — for deleting 200 messages that he exchanged with a BP supervisor, Jonathan Sprague, and another 100 messages with a BP contractor named Wilson Arabie. Mix also is accused of deleting three voice mails.
Bryson said she would have liked to present the contents of the messages to the grand jury considering criminal charges in the wake of the disaster.
“He had information that, through our investigation, we thought would help,” Bryson told Justice Department prosecutor Jennifer Saulino.
All but 17 of the deleted text messages were later recovered by forensic experts.
During cross-examination, defense attorney Walter Becker pressed Bryson about whether she did, in fact, present the recovered messages when she testified before a grand jury in early May 2012. “Isn’t it a fact that you again did not read the deleted text messages to that federal grand jury?” Becker asked.
“I don’t think I did,” Bryson said.
U.S. District Judge Stanwood Duval Jr., who is presiding over the case, then sought to halt the line of questioning. The grand jury proceedings “are irrelevant at this point,” he told both sides.
“The 5th Circuit can look at that, if necessary,” he added, referring to the 5th U.S. Circuit Court of Appeals.
Prosecutors did read many of the deleted messages in open court Wednesday. Some dealt with the rate at which oil was flowing into the Gulf from the runaway well, but many others sounded mundane: Mix discussing lunch plans, for instance, or talking about having to fix his broken pool. Many were exchanges about getting together to meet.
Bryson did not say the messages would have changed the course of her probe into the oil well blowout. But she noted that many of the unrecovered messages were sent as response crews were preparing to undertake a method of halting the flow of oil from the well called a “top kill,” which meant pumping heavy drilling mud into the well.
At the end of the first day of that effort, Mix sent a message that cast doubt on the procedure’s potential. “Too much flow rate — over 15,000 and too large an orifice,” he said.
Duval told the jurors to weigh the evidence carefully. “You may not, however, give undue importance to the 17 unrecovered text messages,” he told them. “Look at them in the context of this entire case.”
Ultimately, the top kill failed, in large part because more than 15,000 barrels a day of oil were flowing from the well, despite lower public estimates being made at the time by BP.
Bryson testified Wednesday that the recovered text messages showed Mix had found that BP’s public estimates were not accurate.
“They were now trying a procedure that we were particularly interested in, because of our investigation of what flow rate was actually known to BP at that time,” Byson said. “Some of the information we had is that Mr. Mix and others had” information that the actual flow rate was too much for the top kill operation to work, she said.
A May 26 text message confirmed as much, saying the flow rate was too high for the procedure. “Tired. Going home and getting ready for round three tomorrow,” Mix wrote.
Becker, during cross-examination, contended that Mix had saved “thousands of emails in a folder” on his laptop, which was turned over to investigators. Many of those dealt with well-control simulation results for the days after the explosion, which included flow rates higher than BP’s public disclosures. Many of the documents that Mix turned over to BP included information that he is accused of trying to hide from prosecutors, defense lawyers contend.
Prosecutors contend that regardless of what his text messages said, Mix shouldn’t have deleted them, and therefore should go to jail. “Intentionally deleting text messages and voice mails to keep them out of the hands of a federal grand jury investigation is a federal crime,” Saulino said during opening arguments Tuesday.
Defense lawyers replied that Mix made every effort to back up and preserve his other documents related to the disaster, and that he had no reason to try to hide information from a grand jury.
The trial is expected to last three weeks.
BP pleaded guilty to criminal charges related to the disaster earlier this year, admitting to 11 counts of felony manslaughter, obstruction of Congress and a series of environmental crimes. It agreed to pay a $4 billion fine.
More than three years after the blowout, however, just four of its employees have been charged. Three of them are low-level workers.