Beware Of 'Guilt By Silence' – Failing To Speak Up May Evidence Obstruction

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...