27 August 2013 22:19 [Source: ICIS news]
HOUSTON (ICIS)--Attorneys for former BP engineer Kurt Mix are asking a federal judge to dismiss pending indictments against him for allegedly deleting voicemails and text messages following the April 2010 Deepwater Horizon oil spill, according to court documents obtained by ICIS on Tuesday.
Mix’s attorneys filed a motion in federal court on Monday, saying a federal grand jury has now issued three different indictments against Mix, each one charging him on two counts of felony obstruction of justice.
The attorneys claimed that all three indictments are “facially insufficient” because they do not allege that the accusations made against Mix had “nexus” – relationship in time, causation or logic – with any official proceeding.
The accusations include Mix’s alleged deletion of the text messages with a supervisor and outside contractor, as well as his alleged deletion of three voicemails left on his phone.
According to court documents, Mix was a senior member of the BP team that developed and executed strategies for stopping the flow of oil from the Macondo well after the blowout.
In May 2012, he was indicted on two counts of obstruction of justice, to which he pleaded not guilty.
The first charge accused Mix of deleting text messages with a supervisor, a drilling engineering manager for BP. The second charge accused Mix of deleting text messages with an outside contractor who was working with Mix on the spill response.
In March, a superseding indictment re-alleged the first count and broadened the second count to include deleted voicemails made from the supervisor and the contractor.
Kurt requested to waive his appearance at his arraignment and pleaded not guilty to all counts.
In June, a judge issued an opinion, upholding the defence’s claims that because forensic experts have only been able to recover some of the deleted voice messages, there is no way to determine when they were sent or if they were relevant to Mix’s charges.
Additionally, some of the voice messages were automatically deleted by wireless carrier AT&T when Mix failed to back-up his data before upgrading his iPhone operating system.
As a result, a second superseding indictment removed language referring to at least nine voicemails that Mix allegedly deleted on 20 August 2011, as well as about 350 voicemails that he allegedly deleted between 20 April 2010 and 20 August 2011.
Separately on Monday, Mix’s attorneys filed a renewed motion to dismiss the second count of the pending indictments as “legally insufficient”.
In October 2012, Mix moved to dismiss the second count of the original indictment on the ground that “no reasonable jury could fine beyond a reasonable doubt that Mix’s action bore a nexus to a grand jury investigation into the Macondo incident”.
A judge denied to the motion but agreed that proof of nexus was an essential element of the offence of obstruction of justice.
In Monday’s filing, Mix’s attorneys claimed that prosecutors focused on a single text message between Mix and the supervisor in Count 1, instead of providing plausible factual basis that the text messages with the contractor in Count 2 had “natural and probable effect of interfering with the due administration of justice”.
“At best, Count 2 is based on a foundation of pure speculation; the government has charged a felony count and has tried in vain to find a theory for it,” the motion said, adding that prosecutors should not be allowed to proceed to trial on a charge that it cannot possibly sustain.
Mix’s trial is scheduled to begin on 2 December.
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