Introduction:

On August 20, 2013, in an obstruction of justice case filed against former BP engineer, Kurt E. Mix, Judge Duval of the United States District Court for the Eastern District of Louisiana issued an order allowing the government to introduce evidence that the defendant "sat passively" in a meeting as his superiors made allegedly false statements to government officials.1 While defendant‟s silence is not charged as an independent violation, Judge Duval‟s ruling sounds a cautionary note that failing to "speak up" may constitute admissible evidence in support of subsequent criminal actions, even if such silence does not support an independent charge.

Background:

The government charged the defendant with obstruction of justice based on his alleged deletion of information regarding the Macondo oil well blow out from his mobile phone. One critical element in proving such charge is the defendant‟s "state of mind" at the time the alleged deletions took place. In deciding a routine evidentiary issue, Judge Duval considered two general categories of evidence that the government seeks to introduce to establish the defendant‟s state of mind: First, allegedly false statements made by BP to the public regarding the flow rate of the Macondo well and the chances that a procedure know as "top kill" would terminate the flow rate and, second, allegedly false statements made by BP personnel to government officials regarding the same in a May 17, 2010 meeting known as the "kill-the-well-on-paper" ("KWOP") meeting.2

Order and Opinion:

As Judge Duval explained, the threshold issue in determining the admissibility of the two categories of "other act" evidence is whether such evidence is intrinsic or extrinsic to the actions underlying the obstruction of justice charges (i.e., the deletion of information from the defendant‟s mobile phone). Other act evidence is intrinsic when evidence of the other act and the charged crime are either "inexplicably intertwined" or part of a "single criminal episode," or when the other acts are "necessary preliminaries" to the charged crime.3 Such evidence does not implicate Rule 404(b) of the Federal Rules of Evidence,4 which provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person‟s character in order to show that on a particular occasion the person acted in accordance with the character."5 However, Rule 404(b) also provides that "evidence may be admissible for another purpose, such as proving motive, opportunity, [or] intent."6

Regarding the second category of evidence, Judge Duval found that allegedly false statements made by BP during the KWOP meeting constitute intrinsic evidence.7 Importantly, such evidence includes "evidence that the defendant sat „passively‟ in…[the KWOP] meeting although he had personal knowledge of data about flow rate and Top Kill that was inconsistent with the representations made by others at BP."8 Judge Duval explained that the defendant‟s "passive adoption" of the allegedly false statements in the KWOP meeting is relevant to his state of mind at the time he allegedly deleted information from his mobile phone. Judge Duval also explained that such statements are "inextricably intertwined" with the deletion and are integral to "complete the story of the crime."9 Judge Duval, therefore, denied the defendant‟s motion to the extent it sought to exclude any allegedly false statements made by BP during the KWOP meeting, including the fact that the defendant remained silent as his superiors at BP made statements at the KWOP meeting.

Conclusion:

Failing to "speak up" regarding the allegedly false statements of superiors in meetings with government officials may not support an independent obstruction of justice charge. However, as Judge Duval‟s ruling illustrates, the simple act of remaining silent in such meetings may constitute admissible evidence in support of subsequent criminal charges. By shifting the burden from "not lying" to "making sure no one else lies," Judge Duval‟s ruling raises several questions. Will decisions not to self-incriminate be used as evidence in subsequent obstruction of justice, perjury, and false statement charges? What statements can be made without creating incriminating evidence? Do junior employees who disagree with the statements of their superiors have an obligation to speak up? If so, where does one draw the line? Certainly, the questions raised by this ruling incentivize employees (and their employers) to exercise caution in meetings with the government, not only about what is said, but also about what is not said and who attends such meetings.