Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 1 of 52 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 1 of 52 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA, v. KURT E. MIX, Defendant. ) ) ) ) ) ) ) ) ) ) No. 2:12-cr SRD-SS MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT S RULE 33 MOTION FOR A NEW TRIAL DUE TO DEFICIENT EVIDENCE AND VARIOUS TRIAL DEFECTS Joan McPhee Aaron M. Katz Ropes & Gray LLP Prudential Tower, 800 Boylston Street Boston, MA (617) Michael G. McGovern Ropes & Gray LLP 1211 Avenue of the Americas New York, NY (212) Walter F. Becker, Jr. (LA. Bar No. 1685) Charles D. Marshall, III (LA. Bar No ) Chaffe McCall, LLP 2300 Energy Centre 1100 Poydras Street New Orleans, LA (504) Counsel for Defendant Kurt Mix

2 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 2 of 52 LEGAL PROVISIONS INVOLVED [T]he court may vacate any judgment and grant a new trial if the interests of justice so require. Rule 33(a), Federal Rules of Criminal Procedure Setting aside a jury s guilty verdict in the interests of justice may be appropriate under circumstances where the evidence brought forth at trial may tangentially support a guilty verdict, but in actuality, preponderates sufficiently heavily against the verdict that a miscarriage of justice may have occurred. United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)) Rule 33 of the Federal Rules of Criminal Procedure, which governs new trial motions, authorizes the court to grant a new trial in the interests of justice. Such a standard requires the district court to balance the alleged errors against the record as a whole and evaluate the fairness of the trial. United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988) i

3 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 3 of 52 TABLE OF CONTENTS INTRODUCTION...1 RELEVANT FACTUAL AND PROCEDURAL BACKGROUND...3 I. Pre-Trial Motions to Dismiss Count Two (Arabie Text Message String)...3 II. Pre-Trial Motions Regarding the BP Legal Department s Hold Orders...6 III. Pre-Trial Motions Regarding the 17 Unrecovered Text Messages...7 IV. Request for a Bill of Particulars...11 V. Pre-Trial Motions on the Kinkos-Related Misconduct Issue...12 VI. Pre-Trial Discovery Issues...14 APPLICABLE LAW...17 I. Standard for Granting a Rule 33 Motion Due to Deficient Evidence...17 II. Standard for Granting a Rule 33 Motion Due to Trial Error...18 III. Standard for Granting a Rule 33 Motion Due to Brady Error...18 ARGUMENT...19 I. The Evidence Preponderates Heavily Against the Jury s Verdict...19 II. Numerous Trial Errors Individually and Cumulatively Affected Mr. Mix s Substantial Rights, Deprived Him of a Fair Trial, and Undermine the Integrity of and Any Confidence in the Jury s Verdict...20 A. The Prejudicial Retroactive Misjoinder of Count Two...20 B. The Government s Improper Reliance on the BP Legal Department s Hold Orders, in Violation of Fifth Circuit Law...25 C. The Improper Admission and References to the 17 Unrecovered Text Messages in the Sprague String...28 D. Prejudice Resulting from the Inconsistency Between the Government s Pre-Trial Representations and Proof at Trial Regarding the Text Messages in the Sprague String...30 E. The Kinkos-Related Misconduct Debacle, Which Created Spillover Prejudice on Count One That Was Not Cured by the Court s Instruction and Could Not Have Been Cured by Anything Short of a Mistrial...34 F. Clear Misstatements and Improper Statements During Closing Argument...36 G. Introduction of Evidence Regarding Statements and Meetings to Which Mr. Mix Had No Demonstrated Connection...39 ii

4 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 4 of 52 III. The Government s Suppression of Information Showing the Temporal Disconnect Between the Deletion of the Sprague String in Early October 2010 and the FBI s Investigation and the Ensuing Grand Jury Investigation Into Post-Spill Matters Is Brady Error That Requires a New Trial...41 CONCLUSION...45 iii

5 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 5 of 52 TABLE OF AUTHORITIES CASES Page(s) Arthur Andersen LLP v. United States, 544 U.S. 696 (2005)...16, 42 Brady v. Maryland, 373 U.S. 83 (1963)... passim Cole v. Young, 817 F.2d 412 (7th Cir. 1987)...5, 24, 25 Kyles v. Whitley, 514 U.S. 419 (1995)...19, 45 Scroggins v. United States, 543 U.S (2005)...17 United States v. Aldrich, 169 F.3d 526 (8th Cir. 1999)...23, 24 United States v. Baker, 544 F. Supp. 2d 522 (E.D. La. 2008)...17, 33, 34 United States v. Christo, 614 F.2d 486 (5th Cir. 1980)...6, 7, 8, 26 United States v. Cohen, 301 F.3d 152 (3d Cir. 2002)...44 United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985)...24 United States v. Edwards, 303 F.3d 606 (5th Cir. 2002)...20 United States v. Ermoian, No , 2013 U.S. App. LEXIS (9th Cir. Aug. 28, 2013)...16, 42 United States v. Foutz, 540 F.2d 733 (4th Cir. 1976)...24 United States v. Friske, 640 F.3d 1288 (11th Cir. 2011)...43 United States v. Jones, 16 F.3d 487 (2d Cir. 1994)...20, 21, 23 iv

6 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 6 of 52 United States v. Lazarenko, 564 F.3d 1026 (9th Cir. 2009)...20 United States v. Leslie, 759 F.2d 366 (5th Cir. 1985)...35 United States v. Lincoln, 630 F.2d 1313 (8th Cir. 1980)...1, 17 United States v. Littleton, 76 F.3d 614 (4th Cir. 1996)...44 United States v. Marchuca-Barrera, 261 F.3d 425 (5th Cir. 2001)...8, 29 United States v. McRae, 702 F.3d 806 (5th Cir. 2012)...42 United States v. O Keefe, 128 F.3d 885 (5th Cir. 1997)...17 United States v. Robertson, 110 F.3d 1113 (5th Cir. 1997)...1, 17, 18 United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)... passim United States v. Saks, 964 F.2d 1514 (5th Cir. 1992)...26 United States v. Schnitzer, 145 F.3d 721 (5th Cir. 1998)...27 United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004)...17 United States v. Simms, 508 F. Supp (W.D. La. 1980)...18 United States v. Smith, 331 U.S. 469 (1947)...17 United States v. Tarango, 396 F.3d 666 (5th Cir. 2005)...1, 17 United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008)...44 v

7 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 7 of 52 United States v. Vaghela, 169 F.3d 729 (11th Cir. 1999)...44 United States v. Valencia, 600 F.3d 389 (5th Cir. 2010)...1, 18 United States v. Wilson, 500 F.2d 715 (5th Cir. 1974)...38 STATUTES 18 U.S.C , U.S.C. 1512(c)(1)...16, 32 OTHER AUTHORITIES Associated Press, Ex-BP Engineer Conviction on 1 Obstruction Charge (Dec. 18, 2013)...9, 10 Federal Rule Criminal Procedure 8...5, 20, 21, 23 Federal Rule of Criminal Procedure 12(b)(2)...3, 5 Federal Rule of Criminal Procedure , 14, Federal Rule of Criminal Procedure passim Federal Rule of Criminal Procedure passim Federal Rule of Evidence 104(b)...40 Federal Rule of Evidence Federal Rule of Evidence Federal Rule of Evidence 404(b)...5, 21 Tom Fowler, Gulf Oil Spill Prosecutors Are Picking Up the Pace, THE HOUSTON CHRONICLE (April 21, 2011)...15 vi

8 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 8 of 52 INTRODUCTION For the reasons explained below, Defendant Kurt Mix respectfully moves the Court to enter an order, pursuant to Federal Rule of Criminal Procedure 33, vacating the jury s verdict on Count One and granting Mr. Mix a new trial in the interests of justice. 1 Mr. Mix s motion is based on three grounds: First, even were the evidence adduced at trial constitutionally sufficient to sustain the jury s verdict (which, for the reasons explained in Mr. Mix s Rule 29 motion, it was not), the evidence nevertheless preponderates sufficiently heavily against the verdict that a miscarriage of justice may have occurred. United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)); see also United States v. Robertson, 110 F.3d 1113, 1117 & 1120 n.11 (5th Cir. 1997) (holding that, on a motion for a new trial due to deficient evidence, the trial judge may weigh the evidence and may assess the credibility of the witnesses and, therefore, effectively sits as a thirteenth juror (internal quotation marks omitted)). Second, numerous substantive and procedural defects that occurred during the trial itself including the prejudicial retroactive misjoinder of Count Two, 2 evidentiary error, and statements by the prosecutors that substantially misstated the evidence or were otherwise improper individually and cumulatively undermine any confidence in the verdict and deprived Mr. Mix of a fair trial. See, e.g., United States v. Valencia, 600 F.3d 389, (5th Cir. 2010) 1 In a separately filed Rule 33 motion, Mr. Mix also requests relief under Rule 33 due to exposure of the jury to prejudicial extraneous information during trial and juror misconduct related to such exposure. Mr. Mix has also moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure The legal contours of the retroactive misjoinder doctrine, and its application to this case, are discussed in detail infra.

9 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 9 of 52 (recognizing that a cumulation of trial errors can deprive a defendant of a fair trial and that a court must evaluate the number and gravity of the errors in the context of the case as a whole ). Third, despite its obligations under Federal Rule of Criminal Procedure 16(a)(1)(C) and Brady v. Maryland, 373 U.S. 83 (1963), the Government failed to timely disclose to the defense information that was highly exculpatory on Count One: namely, information conclusively showing that (i) the underlying FBI criminal investigation into the specific issues to which the Government claimed Mr. Mix s text messages were relevant did not even begin until many months after the text message deletion at issue in Count One occurred; and (ii) the official proceeding that Mr. Mix allegedly obstructed an Eastern District of Louisiana grand jury investigation into the matters to which the Government claimed Mr. Mix s text messages were relevant did not get underway (if ever) until some time later still. 3 See, e.g., United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (setting forth three-prong test for granting a Rule 33 motion due to Brady error). 3 Prior to trial, the Government indirectly disclosed to the defense through production of a grand jury transcript that the grand jury that Mr. Mix allegedly endeavored to obstruct on October 4-5, 2010 was not even empaneled until December The Government adduced no evidence of when the grand jury, after being empaneled, actually began investigating anything, let alone when (if ever) it began investigating issues to which Mr. Mix s text messages with Mr. Sprague bore any relationship. The theory (as opposed to evidence) that the Government advanced at trial was that, on October 4-5, 2010, there was an active FBI investigation into issues to which Mr. Mix s text messages with Mr. Sprague could be important evidence, such that Mr. Mix knew on October 4-5, 2010 that deleting those messages would have the natural and probable effect of interfering with a future grand jury proceeding that he reasonably foresaw. Contradicting that theory, however, Agent Bryson disclosed at trial what the Government had refused to disclose before trial: namely, that the FBI did not even begin to investigate the postspill issues to which the Mix-Sprague messages related until after (and perhaps many, many months after) the deletion charged in Count One. As discussed in further detail infra, it is inexplicable and unconscionable that the Government refused to provide this basic and critical information to the defense prior to trial, such that the defense was left in the dark and, accordingly, unable to effectively cross examine the Government s case agent on the issue. 2

10 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 10 of 52 RELEVANT FACTUAL AND PROCEDURAL BACKGROUND A comprehensive summary of the evidence adduced at trial is provided in PART FOUR of Mr. Mix s post-verdict motion for a judgment of acquittal pursuant to Rule 29, which he has filed contemporaneously with this Rule 33 motion. Mr. Mix hereby incorporates that summary for purposes of the instant motion. With perhaps a few exceptions, the actual evidence adduced at trial relevant to Count One (including good character evidence adduced by the defense through various witnesses) was undisputed, although the Court was able to perceive directly that (1) certain witnesses concededly suffered from poor or inadequate recollection of events that occurred approximately three years ago, and (2) certain witnesses were more qualified than others, either by education and/or experience, to testify regarding technical engineering and scientific matters. Under wellestablished Fifth Circuit law, the Court can take such matters into account when assessing whether the weight of the evidence preponderates heavily against the jury s verdict. To the extent non-evidentiary portions of the trial record, such as statements made by Government counsel during witness examination and/or closing argument, are pertinent to the instant Rule 33 motion, those portions of the record will be specifically discussed infra. In addition to the trial record, certain parts of the procedural background of the case are highly relevant to the instant Rule 33 motion. The pre-trial procedural background matters that are important to the legal arguments advanced in this Rule 33 motion are accordingly summarized below. Notably, at the outset of trial, the Court stated that prior objections lodged in limine were preserved for the record and did not need to be re-urged contemporaneously. I. Pre-Trial Motions to Dismiss Count Two (Arabie Text Message String) On two separate occasions before trial, the defense moved to dismiss Count Two pursuant to Federal Rule of Criminal Procedure 12(b)(2), arguing that the undisputed facts 3

11 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 11 of 52 regarding the content of the Wilson Arabie text message string precluded the Government from proving the requisite elements of the offense. In its first such motion, the defense made the following plea: [P]re-trial dismissal will eliminate the risk that the Government s asserted evidence on Count Two will improperly influence the jury s consideration of Count One. That risk is very real here, where the Government may have charged Count Two, solely and improperly, to somehow bolster its tenuous circumstantial case on Count One. Def. Mem. of Law, Dkt. #96-1, at p. 9 (Oct. 2, 2012). In an effort to stave off dismissal, the Government assured the Court that the evidence of [Mr. Mix s] guilt for Count Two is compelling.... Gov t Opp., Dkt. #104, at 1 (Oct. 9, 2012). Government counsel also told the Court that the text messages in the Arabie string contained nuances and asked the Court for the chance to go put it before a jury and to do it with all... the evidence that I m entitled to do it with. Hearing Trans., 58:25, 59:21-23 (Nov. 8, 2012); see also id. at 59:6-7 (Government counsel telling the Court that one can envision a situation... where [ ] who someone had lunch with on a particular day could matter ). In a later filing on a related subject, the Government described Wilson Arabie as someone who played a key role in maintaining the sensitive flow rate and other information on which [Mr. Mix] worked. Gov t Opp., Dkt. #278, at 2 (April 24, 2013). The Government also described Mr. Arabie as one of the individuals who had access to the most accurate and highly sensitive internal BP data relating to the amount of oil flowing from the Macondo well into the Gulf of Mexico. Id. at 6. A year later, after pre-trial developments further exposed the legal insufficiency of Count Two, the defense filed a renewed motion to dismiss that count pursuant to 4

12 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 12 of 52 Federal Rule of Criminal Procedure 12(b)(2). The defense once again raised the prescient concern that the Government was exploiting Federal Rule of Criminal Procedure 8(a) s joinder rule, charging the Arabie string deletion as a criminal count in order to evade Federal Rule of Evidence 404(b), to create spillover prejudice on Count One, and to sow the seeds for a split verdict: At worst, the Government charged Count Two in the hopes that the timing of the alleged deletions could be painted as sufficiently suspicious that a jury might wrongly consider Count Two s mere presence in the case as evidence proving Count One or, alternatively, might reach a compromise verdict and convict on Count One despite a lack of evidence across the board.... Allowing Count Two to remain in the case... will create a serious risk of prejudice to Mix with respect to Count One. First, if Count Two remains in the case, the Government will be allowed to introduce evidence that is nominally relevant only to Count Two but that could have a spillover effect with respect to Count One.... Second, allowing the Government to proceed with Count Two creates a risk that the jury will reach an unwarranted but expedient compromise verdict, convicting on Count One and acquitting on Count Two despite insufficient evidence on both. See Cole v. Young, 817 F.2d 412, 418 (7th Cir. 1987) ( [T]he erroneous submission of a criminal charge can create an unacceptable risk of a compromise verdict. Even if one is acquitted of the erroneous charge, the error may result in a wrongful conviction on another charge. ) This risk would not be removed by a directed verdict on Count Two at the close of the Government s case: by creating a false perception that Mix engaged in some sort of pattern of criminal activity, deleting information from his iphone not once but twice, the mere inclusion of Count Two in the case helps the Government to artificially bolster Count One. Def. Mem. of Law, Dkt. #450-1, at (Aug. 26, 2013). As it did before, the Government sought to stave off dismissal by offering various assurances to the Court. The Government described Wilson Arabie as the person assigned to support [Mr. Mix s] work in the Macondo response and represented that Mr. Arabie had recently provided the government with additional details concerning the deleted voic and text messages related to the project books, and confirmed their relevance to the Macondo incident. Gov t Opp., Dkt. #486, at 9 n.5. The Government 5

13 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 13 of 52 also represented that the Arabie string contained information sought by the grand jury. Id. at 9. And the Government also represented that at least one text message in the Arabie string was related to the grand jury s investigation. Id. at 8. At trial, the Government failed to introduce any evidence that any of these things were true. II. Pre-Trial Motions Regarding the BP Legal Department s Hold Orders On April 10, 2013, the defense filed a motion in limine seeking to preclude the Government from improperly relying upon the BP Legal Department s hold orders. See Def. Mtn., Dkt. #255 (April 10, 2013). The defense raised the concern that the Government was planning to use the [hold orders] improperly to create what the Fifth Circuit has called an alternative standard of guilt. Def. Mem., Dkt. #255-1, at 2 (April 10, 2013) (quoting United States v. Christo, 614 F.2d 486, (5th Cir. 1980)). The defense stated that, if the Government were able to blur the critical distinction between [BP s] company policy and federal criminal law, it would create an intolerable risk of jury confusion and wrongful conviction. Id. The defense specifically pointed to pre-trial statements suggesting the Government s intention to argue to the jury that, if Mr. Mix intentionally violated the hold orders, then he must have been acting with corrupt intent. Id. at 4. Accordingly, the defense moved the Court to preclude the hold orders entirely. Id. at 7 ( The Court should avoid any risk of jury confusion by simply precluding the Government from making any reference to the Hold Notices. ). The defense also moved that, if the Court were prepared to allow the Government to offer the hold orders over the defense s objection, the Court would (1) ensure that the Government does not unduly focus on the Hold Notices at trial, (2) preclude the Government from making any arguments that could mislead the jury into conflating a violation of the Hold Notices with a violation of the obstruction of justice statute, 6

14 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 14 of 52 (3) provide an appropriate cautionary instruction to the jury, and (4) preclude the Government from referencing the admonition in the hold orders that failing to preserve material that may be relevant to an anticipated legal matter could subject individuals... to prosecution or other extreme penalties.... Id. at 8-9. Although the Court did provide a limiting instruction to the jury, both during trial and in its final jury charge, given the manner in which the Government improperly exploited the hold orders at trial, as discussed infra, the limiting instruction was insufficient to ensure Mr. Mix a fair trial. III. Pre-Trial Motions Regarding the 17 Unrecovered Text Messages On March 19, 2013, the defense filed a motion in limine asking the Court to preclude the Government from making any reference at trial to the 17 text messages in the Sprague string that the Government s forensic expert was not able to recover. Def. Mtn., Dkt. #214 (March 19, 2013). The defense filed its motion shortly after the Government had begun to argue that, although their contents are unknown, the jury could reasonably infer that the 17 unrecovered text messages in fact had contained incriminating information that would have inculpate[d] Mr. Mix. Def. Mem. of Law, Dkt. #214-1, at 2, 5-6 (March 19, 2013) (quoting a Government brief). The defense pointed out that the Government had no evidence from which a jury could reasonably infer (as opposed to impermissibly speculate) that the 17 unrecovered messages had anything to do with flow rate or anything else relevant to the grand jury s investigation into the Macondo incident. Id. at 7. The defense also raised the concern that the Government s intent was to ask the jury, through sheer imagination, to hypothesize that the 17 unrecovered text messages must have contained incriminating flow rate information, a tactic that would be 7

15 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 15 of 52 tantamount to allowing the jury to find the nexus and intent elements of obstruction of justice on the basis of unadorned speculation. Id. at 8. The Government responded to the defense s motion by promising the Court that there was powerful circumstantial evidence that the 17 unrecovered text messages in particular contained important information relating to the oil spill. Gov t Opp., Dkt. #278, at 14 (April 24, 2013); see also id. at 15 (arguing that the circumstantial evidence... strongly support[s] that there is nexus between the [17 unrecovered text messages] and the foreseeable grand jury proceeding ). The Government represented to the Court that, during the time period within which the 17 unrecovered text messages fell, [Mr. Mix] and [Mr. Sprague] were deeply involved in working on flow rate issues, including calculating flow rate estimates and discussing BP s sharing of flow rate information with government agencies. Id. The Government promised the Court that the evidence strongly supports that the unrecoverable text messages... likely concerned issues relating to flow rate, including the fact that [Mr. Mix s] and [Mr. Sprague s] own flow rate estimates were wildly inconsistent with the public announcements of BP. Id. at 16. The Government also promised the Court that, at trial, it would only argue those inferences and conclusions... grounded upon the evidence. Id. at 14 (quoting United States v. Marchuca-Barrera, 261 F.3d 425, 436 (5th Cir. 2001)). On the basis of these promises, the Court denied the defense s motion. 4 See Order, Dkt. #432, at 2 (July 18, 2013). 4 The Court also pointed to the fact that fourteen (14) out of seventeen (17) messages[] were sent within 24 hours of a recovered text message sent by [Mr. Mix] to [Mr. Sprague] addressing technical data. Order, Dkt. #432, at 2 (pointing to the text message that read, Mud to sw reduced press by 1500 psi psi trapped below would unseat the packoff. Is that what you wanted. ). At trial, the Government introduced no evidence that this text message had anything to do with flow rate, and the defense introduced conclusive documentary evidence that Mr. Mix had simply copied the words from an that Mr. Mix had received from an individual named Jay Leonard (an that Mr. Mix preserved on his BP laptop computer). See DX 34. 8

16 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 16 of 52 But the Government did not keep any of its promises at trial. The Government did not call Mr. Sprague to testify, and thus did not introduce any direct evidence of the messages content. 5 Nor did the Government introduce any circumstantial evidence from which the jury could reasonably infer that the messages had any relationship to anything the grand jury was ever investigating. The Government introduced no evidence that Mr. Mix specifically targeted these 17 unrecovered text messages for deletion. It is also undisputed that whether a deleted text message remains recoverable via forensic means is beyond the user s control and has nothing to do with the message s substantive content. The Government introduced no evidence that Mr. Mix and Mr. Sprague coordinated the deletion of these 17 unrecovered messages. The Government introduced no evidence that the 17 unrecovered text messages involved discussions of flow rate, let alone incriminating discussions of flow rate. The Government introduced no evidence that Mr. Mix and Mr. Sprague were working together on flow rate issues or flow rate calculations, either during April 26-30, 2010, or during any other time period. And Bill Burch, 5 As the Court knows, the defense was unable to call Mr. Sprague as a defense witness because, in 2011, Mr. Sprague had been threatened with a text message deletion indictment by the Deepwater Horizon Task Force. Although such an indictment would have been baseless, Mr. Sprague s counsel advised the defense prior to trial that Mr. Sprague was sufficiently concerned by this threat that he would invoke his Fifth Amendment privilege if called to testify. At the Rule 29 hearing that the Court held on December 12, 2013, defense counsel pointed out the obvious, which is that, if Sprague had any inculpatory information to provide, the Government would have immunized him and called him to the witness stand. See Trial Tr. 2317: In what can only be called an unjust irony, at least two jury members told the Associated Press that Mr. Sprague s absence from trial was what tipped them to vote guilty on Count One. See, e.g., Associated Press, Ex-BP Engineer Conviction on 1 Obstruction Charge (Dec. 18, 2013) ( It was the unknown, and Sprague was the other half of that unknown, added fellow juror Scott Galliano, 49. ). Based in part on such concerns, the defense had asked the Court to provide the jury with a missing witness instruction, but the Court declined. See Def. Proposed Jury Instructions, Dkt. #249, at 27 (April 10, 2013) (proposing missing witness instruction and advising the Court that many of the non-governmental witnesses who could offer exculpatory testimony on behalf of Mr. Mix have been rendered essentially unavailable to the defense... due to fear of being prosecuted by the Deepwater Horizon Task Force if they take the stand on Mr. Mix s behalf ). 9

17 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 17 of 52 the Government s chief percipient witness regarding Mr. Mix s work on the Macondo response effort, confirmed that Mr. Sprague wasn t involved in doing the flow rate modeling with [Burch] and Kurt [Mix] and Dr. Rygg[.] Trial Tr. 1048: Nevertheless, during closing argument, the Government did precisely what it promised the Court it would not do: it asked the jury to make inferences and draw conclusions that were not based on the evidence actually adduced at trial. Government counsel told the jury: The fact that Mr. Mix and Mr. Sprague were working on flow rate during this time is powerful circumstantial evidence that those 17 unrecovered texts dealt with flow rate.... [A]gain, circumstantial evidence that you can use to infer that the ones that weren t recovered dealt with flow rate. Trial Tr. 2605:2-4, Government counsel then urged the jury that it should consider Mr. Mix s deletions of these 17 text messages during this critical period of time when you re determining whether Kurt Mix acted with corrupt intent when he deleted the entire text message string with Jonathan Sprague. 6 Id. at 2605: Although the Court instructed the jury that it should not put undue weight on the 17 unrecovered text messages, the Court declined to provide the defense s proposed cautionary instruction specifically admonishing the jury that it was not allowed to speculate regarding the messages content. In turn, the Government urged the jury to speculate on the content of these text messages, by arguing improperly in closing that Kurt Mix and Jon Sprague were working on flow rate calculations together during this time in April 2010 an argument that was contrary to the evidence adduced at trial. 6 In light of the Government s closing argument, it is not surprising that at least one juror made statements to the Associated Press after trial suggesting that speculation about the 17 unrecovered text messages played a part in his vote. See, e.g., Associated Press, Ex-BP Engineer Conviction on 1 Obstruction Charge (Dec. 18, 2013) ( Sprague would have been the determining factor, said juror William Gunn, 48. There were missing texts, and we couldn t tell if they were relevant or not. ). 10

18 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 18 of 52 IV. Request for a Bill of Particulars On July 2, 2012, the defense filed a motion with the Magistrate Judge seeking a bill of particulars. See Def. Mtn., Dkt. #66 (July 2, 2012). The defense s motion requested that the Government be made to specify, inter alia, which of the over 200 deleted text messages with SUPERVISOR form the basis of Count One.... Def. Mem. of Law, Dkt. #66-1, at 1 (July 2, 2012). The defense pointed out that, [a]t best, the Government had put Mix on notice that Count One is based, at least in part, on his alleged deletion of the [10:25 p.m.,] May 26, 2010 text message that Mr. Mix sent to Mr. Sprague, while leaving Mr. Mix to guess... whether any other individual text message between SUPERVISOR and him is included within Count One s charge. Id. at 4. The defense argued that, without some specification, the defense could not know precisely which specific text messages [Mr. Mix] must be prepared to address at trial, unfairly compromising his ability to prepare his defense. Id. at 8. In response, the Government argued that Mr. Mix is in fact well aware of the straightforward obstruction charges he faces. Gov t Opp., Dkt. #72, at 1 (July 17, 2012). The Government argued that the Indictment makes clear that the defendant s obstruction involves, among other things, the deletion of flow rate information known to the defendant in connection with his work with [Mr. Sprague] and [Mr. Arabie] (and others) on efforts to stop the flow of oil into the Gulf of Mexico in the aftermath of the blowout and spill. Id. at 15. The Magistrate Judge summarily denied the defense s motion for a bill of particulars, and this Court affirmed the Magistrate s ruling from the bench on November 8, Over the course of the next year, the Government continued to point to one and only one text message in the Sprague string as having any substantive connection whatsoever to any of the issues that the grand jury began investigating at some unspecified point between December

19 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 19 of 52 (when it was empaneled) and May 2, 2012 (the date Mr. Mix was indicted): the text message that Mr. Mix sent to Mr. Sprague at 10:25 p.m. on May 26, At trial, however, the Government decided to have its first witness, Special Agent Kelly Bryson, testify that dozens of other text messages in the string were relevant to the criminal investigation that she led on behalf of the FBI, none of which had any relationship whatsoever to flow rate. V. Pre-Trial Motions on the Kinkos-Related Misconduct Issue On November 14, 2013, the defense filed a motion in limine to preclude the Government from insinuating at trial that Mr. Mix, either in concert with Mr. Arabie or otherwise, had engaged in misconduct by having Mr. Arabie make copies at Kinkos of a project book and big book for which Mr. Arabie was the custodian. See Def. Mtn., Dkt. #573 (Nov. 14, 2013). In response to the defense s motion, the Government conceded in open court that it did not have any evidence that Mr. Mix had engaged in any Kinkos-related misconduct. Hearing Trans., 69:7-11 (Nov. 19, 2013). The Court then issued an Order precluding the Government from insinuating at trial that Mr. Mix engaged in any Kinkos-related misconduct and pointed specifically to the Government s concession that it does not have any evidence about any misdeeds with respect to the project book.... Order, Dkt. #608, at 1 (Nov. 21, 2013). Though Mr. Arabie had been listed only on the defense s witness list, the Government called Mr. Arabie during its case-in-chief. During the Government s examination of Mr. Arabie, it became clear that the Government s purpose in calling Mr. Arabie was to insinuate, in direct contravention of the Court s order, that Mr. Mix had asked Mr. Arabie to make copies at Kinkos 7 Beginning in December 2012, the Government began to engage in speculation that the 17 unrecovered text messages may have contained information about flow rate. Putting aside the impropriety of the Government s speculation, this further endorsed the Court s presumption that, at trial, the Government would restrict its focus to text messages having some identifiable relationship to flow rate. 12

20 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 20 of 52 in order to conceal notes that he had handwritten in the margins of documents contained in another project book for which Mr. Mix was the custodian. Over the defense s repeated contemporaneous objections, Government counsel purposefully engaged in an extended line of questioning that improperly and prejudicially insinuated that Mr. Mix had engaged in the very misconduct for which the Government earlier had conceded there was no evidence. As a result of Government counsel s conduct, the defense filed a mistrial motion at 7:00 a.m. the following morning. See Def. Mem. of Law in Supp. of Mtn. for a Mistrial, Dkt. #667-1 (Dec. 10, 2013). The Court denied the defense s mistrial motion and declined the defense s request to advis[e] the jury of Government counsel s prior admission that the Government do[es] not have any evidence that Mr. Mix engaged in Kinkos-related misconduct.... Id. at 1. Instead, the Court provided the jury an alternative limiting instruction that suggested that Government counsel s line of questioning had been requested by the Court so that the Court could make a mid-trial relevance ruling. See Trial Tr. 2752:11-14 ( Certain testimony was adduced of Mr. Arabie, the point of which was for the Court to make an ultimate determination of relevance. ). Although the Court instructed the jury to absolutely disregard... any inference made by the government of wrongdoing as between Mr. Arabie and Mr. Mix with respect to [the project books], the instruction could not restore the status quo ante due to the incredibly poisonous nature of what had occurred. Although the jury acquitted Mr. Mix on Count Two, the Government s line of questioning clearly caused spillover prejudice by artificially bolstering Count One, disparaging the character of Mr. Mix generally, and further fertilizing the seeds of a compromise verdict that the Government had sown by charging Count Two in the first place. 13

21 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 21 of 52 VI. Pre-Trial Discovery Issues On May 26, 2012, pursuant to Brady and Federal Rule of Criminal Procedure 16, the defense made on Mr. Mix s behalf a formal discovery request to the prosecution team. Among the information that the defense requested was (1) all exculpatory information or impeaching material in the prosecution team s possession, custody, or control, and (2) all correspondence or other communications between the government (broadly defined to include any agency involved in the investigation of the Macondo incident) and any agent or employee of BP that related to the indictment against Mr. Mix or to any other Government investigation of the Macondo incident. The Government responded to the defense s discovery request by producing copies of Mr. Mix s hard copy documents, copies of the electronic documents preserved on Mr. Mix s BP laptop computer, forensic images of Mr. Mix s BP laptop computer and iphone, forensic images and itunes backups of Mr. Sprague s iphone, and a text message deletion report prepared by the Government s expert, Stroz Friedberg LLC. Over the next 10 months, the Government continued to produce additional documents on a piecemeal basis, though none that revealed when the grand jury and/or FBI began investigating the specific issues to which Mr. Mix s text messages with Mr. Sprague allegedly were relevant. On April 1, 2013, the defense made another written discovery request. Among other things, the defense s written request noted that, despite its prior discovery request, the Government had disclosed to the defense only [two] SEC subpoenas and [one] SEC informal inquiry letter[ ] received by BP. The defense requested that the Government immediately produce any and all subpoenas issued by the very grand jury that Kurt Mix allegedly endeavored to obstruct. In response to this request, the Government neither produced those grand jury subpoenas nor, to the extent such subpoenas simply did not exist, informed the 14

22 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 22 of 52 defense of this material fact. Nor did the Government disclose to the defense information regarding when the FBI and/or the grand jury actually began criminally investigating the specific issues to which the Government later claimed at trial Mr. Mix s text messages with Mr. Sprague were relevant. 8 The first time the Government provided any disclosure on this critical point was at trial, when FBI Agent Kelly Bryson testified in an elliptical and disjointed fashion that (1) the criminal investigation into pre-spill matters (i.e., the cause of the April 20, 2010 blowout and the failure of the Blow Out Preventer to cut off the oil flow) was distinct from the criminal investigation into post-spill matters (i.e., the constellation of issues that arose in the weeks and months after the April 20, 2010 blowout), (2) she was and still is the lead case agent on the Macondo matter, and (3) she did not begin working on the post-spill matters until some unspecified point after October See Trial Tr. 535:10, 544:17-18, 554:3-7, 688: To this very day, the defense does not know just how long after October 2010 the FBI s criminal investigation and, subsequently, the grand jury s investigation evolved from inquiries into the cause of the accident and the failure of the Blow Out Preventer, on the one hand, to inquiries into BP s public statements about flow rate and, in particular, the company s May 24, 2010 letter to Congressman Edward Markey regarding that issue. However, from newspaper articles written by investigative journalists such as Tom Fowler and John Rudolf, it appears this shift in investigatory focus did not occur until many months after October See Tom 8 Instead, the Government disclosed to the defense a video of Attorney General Eric Holder s June 1, 2010 press statement, which was televised on C-Span. The Attorney General generically announced that the Department of Justice had opened civil and criminal investigations into the oil spill. The Attorney General did not specify the issues being investigated, but he cited the Clean Water Act, the Migratory Bird Treaty Act, the Endangered Species Act, and the Oil Pollution Act as statutes that Department of Justice attorneys were reviewing. Notably, none of these environmental statutes entailed an inquiry into the post-spill matter of whether anyone at BP had misled the public with regard to flow rate. 15

23 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 23 of 52 Fowler, Gulf Oil Spill Prosecutors Are Picking Up the Pace, THE HOUSTON CHRONICLE (April 21, 2011) (writing that the Department of Justice s decision to replace Howard Stewart with John Buretta as the head of the Deepwater Horizon Task Force could signal greater focus on nonenvironmental elements of the investigation, including... whether BP officials deliberately understated the magnitude of the spill in an effort to limit the impact on its stock price ). In other words, whatever relevance Mr. Mix s text messages may have eventually had to Agent Bryson s criminal investigation or to any grand jury investigation in the Eastern District of Louisiana, such relevance did not exist at the time the Sprague string was deleted. The Government clearly was required to disclose this information to the defense under Brady, because it is factually and legally untenable for the Government to argue that, beyond a reasonable doubt, Mr. Mix acted with the specific corrupt intent, knowledge, and nexus required to make out a violation of 18 U.S.C. 1512(c)(1) when he deleted a text message string that, at the time of the deletion, did not bear upon any of the issues that were actually then being criminally investigated by federal authorities. See, e.g., United States v. Ermoian, No , 2013 U.S. App. LEXIS 17949, at *20-21 (9th Cir. Aug. 28, 2013) ( We do not think that the obstruction of justice statute was intended to reach so far back as to cover conduct that occurred even pre-criminal-investigation. Indeed, such a construction would be in tension with Supreme Court precedent requiring a nexus between the obstructive act and criminal proceedings in court. (citing Arthur Andersen LLP v. United States, 544 U.S. 696, 708 (2005))). It was not sufficient for the Government to leave the defense to self-help measures, such as performing Google searches for old newspaper articles that cannot replace the reliable, admissible information that is in the exclusive possession of the Department of Justice. Nor was it sufficient to finally reveal during Agent Bryson s direct testimony, and in an elliptical and 16

24 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 24 of 52 disjointed fashion, that the FBI s investigation into post-spill matters did not begin until after the Sprague string was deleted from Mr. Mix s iphone. See, e.g., United States v. O Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (holding that a disclosure is timely under Brady only if made early enough for the defendant to put the information to effective use at trial). APPLICABLE LAW Federal Rule of Criminal Procedure 33 provides the district court with the authority and the discretion to vacate a jury s guilty verdict and grant a new trial if the interest of justice so requires. Fed. R. Crim. P. 33(a). New trials... may be granted for error occurring at the trial or for reasons which were not part of the court s knowledge at the time of judgment. United States v. Smith, 331 U.S. 469, 475 (1947). But the existence of a specific legal error is not always required to grant a motion for [a] new trial in the interest of justice. United States v. Scroggins, 379 F.3d 233, 253 (5th Cir. 2004), rev d on other grounds by Scroggins v. United States, 543 U.S (2005) (remanding for resentencing in light of United States v. Booker). This is because [a] miscarriage of justice warranting a new trial in certain circumstances may occur even when there has been no specific legal error. Id. I. Standard for Granting a Rule 33 Motion Due to Deficient Evidence If the evidence adduced at trial preponderates sufficiently heavily against the verdict that a miscarriage of justice may have occurred, the court has an independent, stand-alone ground for vacating the jury s guilty verdict and granting the defendant a new trial. Tarango, 396 F.3d at 672 (quoting Lincoln, 630 F.2d at 1319). A Rule 33 motion based on the deficiency of the evidence is reviewed under a more lenient standard than a motion for judgment of acquittal, and the trial judge is vested with more latitude in evaluating the quality of the evidence, United States v. Baker, 544 F. Supp. 2d 522, 529 (E.D. La. 2008) (Duval, J.) (quoting Robertson, 110 F.3d at 1113). Indeed, the Fifth Circuit has stated that, in deciding such a new trial motion, 17

25 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 25 of 52 the district judge effectively sits as a thirteenth juror and may weigh the evidence and may assess the credibility of the witnesses. Robertson, 110 F.3d at 1117 & 1120 n.11. II. Standard for Granting a Rule 33 Motion Due to Trial Error In United States v. Simms, 508 F. Supp. 1188, 1203 (W.D. La. 1980), then-chief Judge Heebe, sitting by designation in the Western District, wrote eloquently on the standard for granting a new trial due to trial error: In addition to examining the evidence, the trial court... has equally broad powers to examine errors which may have been committed during the course of the trial. Where such a motion is presented based upon these grounds, the convicted defendant has the burden of showing that (1) some error was in fact committed and (2) such error was prejudicial to him.... The decisive factors for consideration are (1) the closeness of the case; (2) the centrality of the issue affected by the error; and (3) the steps taken to mitigate the effect of the error. The court must insure that not merely a just result was obtained in a trial, but that the result, whatever it be, was reached in a fair way. A district court may vacate the jury s verdict and grant a new trial if any identified errors, either individually or cumulatively, prejudiced the defendant. See, e.g., Valencia, 600 F.3d at 429 (holding that, on cumulative error review, a court must evaluate the number and gravity of the errors in the context of the case as a whole ); see also id. at 418 (defining a fair trial as one resulting in a verdict worthy of confidence ). III. Standard for Granting a Rule 33 Motion Due to Brady Error A district court must grant a new trial for Brady error if it finds that the government failed to timely disclose to the defense favorable evidence material to the assessment of the defendant s guilt or innocence. See United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002). [T]his standard does not require a defendant to establish that he would have been acquitted had the evidence been disclosed. Id. Rather, the court must simply be satisfied that the 18

26 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 26 of 52 suppression of the exculpatory evidence by the government undermines confidence in the outcome of the trial. Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). ARGUMENT Mr. Mix is entitled to a new trial, pursuant to Rule 33, for three independent reasons. First, the evidence preponderates so heavily against the verdict that Mr. Mix s conviction constitutes a miscarriage of justice. Second, numerous trial errors individually and cumulatively affected Mr. Mix s right to a fair trial. Third, by failing to timely disclose when the FBI s criminal investigation, and the grand jury investigation that ensued, shifted focus to post-spill matters to which Mr. Mix s text messages with Mr. Sprague were allegedly relevant information that was and is uniquely in the possession of the Department of Justice and plainly fell within the defense s pre-trial discovery requests the Government deprived the defense of exculpatory information and the ability to adequately and effectively cross-examine Agent Bryson. I. The Evidence Preponderates Heavily Against the Jury s Verdict Even were the evidence adduced at trial is constitutionally sufficient to sustain a conviction on Count One (which it was not), the evidence still preponderates so heavily against guilt that the Court should vacate the jury s verdict and grant Mr. Mix a new trial. Rather than duplicate his Rule 29 submissions, Mr. Mix respectfully incorporates those submissions herein. The defense specifically directs the Court s attention to PART ONE, PART FOUR, and PART FIVE of Mr. Mix s post-verdict Rule 29 memorandum. As Mr. Mix s Rule 29 motion makes clear, the evidence at trial did not come close to satisfying the elements for obstruction of justice, such that a conviction based on this record is not merely a miscarriage of justice, but a travesty that violates the most basic constitutional principles that undergird our system of criminal justice. 19

27 Case 2:12-cr SRD-SS Document Filed 01/09/14 Page 27 of 52 II. Numerous Trial Errors Individually and Cumulatively Affected Mr. Mix s Substantial Rights, Deprived Him of a Fair Trial, and Undermine the Integrity of and Any Confidence in the Jury s Verdict Mr. Mix s motion for a new trial should also be granted due to numerous errors that occurred during the trial itself. All of these errors must be assessed in light of the demonstrably weak case that the Government presented at trial. A. The Prejudicial Retroactive Misjoinder of Count Two The retroactive misjoinder of Count Two was an error that caused such significant prejudice to Mr. Mix that it facilitated an unreasonable conviction on Count One without a sufficient evidentiary basis. Under the retroactive misjoinder doctrine, a criminal count that initially appeared properly joined under Federal Rule of Criminal Procedure 8 can retroactively be deemed misjoined if events that occur during or subsequent to trial reveal that the joinder was, in fact, improper. See, e.g., United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994) ( Retroactive misjoinder arises where joinder of multiple counts was proper initially, but later developments... render the initial joinder improper. ). Courts have applied the retroactive misjoinder doctrine to single-defendant cases involving multiple criminal counts joined under Federal Rule of Criminal Procedure Rule 8(a). See, e.g., Jones, 16 F.3d at 492-3; see also United States v. Lazarenko, 564 F.3d 1026, (9th Cir. 2009) ( [T]he doctrine of prejudicial spillover or retroactive misjoinder may apply to a case where there is only one defendant. ); United States v. Edwards, 303 F.3d 606, 640 (5th Cir. 2002) (agreeing that a grant of a new trial might be appropriate in some cases of retroactive misjoinder ). In such cases, if the presence of the retroactively misjoined count prejudiced the defendant on the count of conviction, then the defendant s conviction must be vacated. Jones, 16 F.3d at 493 ( [T]here is an irresistible inference that Jones suffered compelling prejudice because of the improper submission of the unsupported felon in possession count. In short, the evidence that Jones is a felon was of the 20