Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
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`UNITED STATES OF AMERICA CRIMINAL ACTION
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`VERSUS NO. 12-171
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`KURT E. MIX SECTION “K”(1)
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`ORDER AND OPINION
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`Before the Court is the “Motion in Limine to Introduce Evidence of Defendant’s Awareness
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`that Law Enforcement Officials Sought to Interview Him” filed on behalf of the United States (Doc.
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`89). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons
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`assigned, DENIES the motion.
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`Background
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`The general background of this case is set forth in detail in the Order and Opinion granting
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`in part defendant’s “Motion for an Order Requiring the Government to Produce Exculpatory
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`Material Pursuant to Brady v. Maryland” (Doc. 155), and therefore will not be restated herein.
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`However, the following additional facts are relevant in connection with this motion:
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`On August 8, 2011, a federal prosecutor contacted Joan
`McPhee, counsel for defendant Kurt Mix, via email, to
`schedule an interview with Mr. Mix.
`On August 10, 2011, Ms. McPhee, via email, advised the
`federal prosecutor that Mr. Mix was on vacation until the
`following week, and that upon his return she would check
`with Mr. Mix and get back to the prosecutor with proposed
`dates for the interview.
`On August 15, 2011 and August 16, 2011, Ms. McPhee called
`Mr. Mix and spoke with him.
`On August 17, 2011, a third party vendor hired by BP, plc
`(“BP”) contracted Mr. Mix to schedule a time to collect
`electronic data from him concerning the Macondo Well
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 2 of 8
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`incident. Mr. Mix advised the vendor that he would be
`available on August 22, 2011.
`On or about August 19, 2011, Mr. Mix deleted a text message
`string from his phone that contained numerous texts between
`himself and a BP contractor.
`On August 22, 2012, the BP vendor collected Mr. Mix’s
`phone and created a forensic image of the device.
`On August 23, 2011 Joan McPhee met with Mr. Mix.
`On July 11, 2012, counsel for the United States sent Ms.
`McPhee a letter seeking a stipulation that “as of August 15,
`2011, the defendant was aware that federal law enforcement
`wished to interview him in connection with its criminal
`investigation into the Deepwater Horizon incident.”
`On August 22, 2012, the defendant declined to enter into that
`stipulation.
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`The United States then filed this motion seeking to introduce:
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`(1) testimony from Joan McPhee, Esq. that she communicated the
`government’s request for an interview to the defendant; (2)
`correspondence between Ms. McPhee and the government about the
`interview request; and (3) phone records reflecting at least two calls
`between Ms. McPhee and
`the defendant
`that were made
`contemporaneous with the government’s request for an interview.
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`Doc. 89-1, p. 1. In response to the Government’s motion, Mr. Mix filed a “Motion for Ex Parte
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`Submission and for a Permanent Sealing Order With Respect to the Declaration of Joan McPhee in
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`Support of Defendant’s Opposition to the Government’s Motion in Limine” (Doc. 107). After
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`reviewing the motions of both the Government and the defendant, as well as Ms. McPhee’s
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`declaration filed in connection with defendant’s motion, the Court issued an order on October 30,
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`2012, stating, in pertinent part:
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`[I]n the context of attempting to balance the interests of the parties,
`the Court thinks that resolution of the matters presented in the
`motions may be aided by entry of a stipulation/declaration different
`than that previously offered by the Government to the defense as well
`as that executed by Joan McPhee and filed under seal by the defense.
`Therefore, the Court asked its law clerk to contact counsel for
`defendant to explore whether the defense would be willing to offer
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 3 of 8
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`such a stipulation/declaration.
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`Doc. 137, p. 1.
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`Thereafter, defendant filed a “Statement Regarding the Court’s Order of October 30, 2012,
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`to which he attached a “Supplemental Declaration of Joan McPhee.” Doc. 139, 139-1. Ms.
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`McPhee’s Supplemental Declaration states, among other things, that:
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`“This supplemental declaration is consistent with my
`declaration of October 9, 2012, which was manually filed
`under seal ex parte to maintain the confidentiality of
`information protected by the attorney-client privilege and
`attorney work product doctrine.”
`“I am aware that Defendant Kurt Mix’s cell phone records
`indicate that I communicated with him via telephone on
`August 15 and August 16, 2011. I have no recollection of
`informing Mr. Mix during either of those phone calls that
`Government counsel had advised me that they wanted to
`interview Mr. Mix.”
`“My contemporaneous records do not indicate that I informed
`Mr. Mix during either the August 15 or 16, 2011phone call of
`the Government’s interview request. Those records do,
`however, reflect that, on the August 15, 2011 phone call, I
`made arrangements with Mr. Mix to meet with him in person
`for the first time in Houston in August 23-24. My
`contemporaneous records further document that, during our
`in-person meeting on August 23, 2011, Mr. Mix formally
`engaged me and Ropes & Gray as his counsel and I informed
`Mr. Mix of the Government’s interview request.
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`Doc. 139-1. p. 1-2. Because the supplemental stipulation/declaration was not amenable to the
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`United States, the Court must now rule on the Government’s motion.
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`Law and Analysis
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`Count II of the indictment, based on Mr. Mix’s alleged deletion from his iPhone of all texts
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`in a string of text messages with an outside contractor of BP, charges Mr. Mix with obstruction of
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`justice in violation of 18 U.S.C. §1512(c)(1). Title 18 U.S.C. §1512(c)(1) provides in pertinent part
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 4 of 8
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`that:
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`Whoever corruptly –
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`(1) alters, destroys, mutilates, or conceals a record, document, or
`other object, or attempts to do so, with the intent to impair the
`object’s integrity or availability for use in an official proceeding . . .
`shall be fined under this title or imprisoned for not more than 20
`years or both.
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`To establish a violation of §1512(c)(1), the Government must prove beyond a reasonable doubt
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`“some ‘nexus’ between the obstruction and the official proceeding.” United States v. Bennett, 664
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`F.2d 997, 1013 (5th Cir. 2011). Thus, an essential element of the “nexus” analysis is the defendant’s
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`intent.
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`The Government asserts that the evidence it seeks to admit is circumstantial evidence
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`relevant to and probative of defendant’s intent at the time of the deletion of the text messages which
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`form the basis for Count II and whether defendant “believed his actions were like to affect a
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`foreseeable grand jury proceeding.” Doc. 89-1, p. 5-6. “Relevant evidence is admissible unless” the
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`United States Constitution, a federal statute, the Federal Rules of Evidence, or “other rules
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`prescribed by the Supreme Court” provide otherwise. Fed.R. Evid. 402. Evidence is relevant if: “(a)
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`it has any tendency to make a fact more or less probable than it would be without the evidence; and
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`(b) the fact is of consequence in determining the action.” Fed.R. Evid. 401. Defendant does not
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`contend that the evidence sought to be admitted by the government is not relevant. Rather,
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`defendant urges that it is inadmissible under Rule 403 of the Federal Rules of Evidence which
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`permits relevant evidence to be excluded “if its probative value is substantially outweighed by the
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`danger of unfair prejudice.”
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`There being no dispute that the evidence is relevant, the Court’s analysis begins with
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 5 of 8
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`determining whether a communication concerning the Government’s desire to interview Mr. Mix
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`is protected under the attorney-client privilege. Defendant does not urge with any degree of rigor
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`that the evidence sought to be admitted falls within the sphere of attorney-client privilege, and
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`indeed, the Court finds that it does not. The attorney-client privilege “shields communications from
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`the lawyer to the client only to the extent that these are based on, or may disclose, confidential
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`information provided by the client or contain advice or opinons of the attorney.” United States v.
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`Neal, 27 F.3d, 1035, 1048 (5th Cir. 1994), quoting Wells v. Rushing, 735 F.2d 376, 379 n.2 (5th Cir.
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`1985). A communication by counsel to a client restricted to the communication of the fact that
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`prosecutors want to interview the client is not based on, nor does it disclose any confidential
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`information provided by the client or contain any advice or opinions of the attorney. Therefore, the
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`attorney-client privilege does not apply to the Government’s request to know whether Ms. McPhee
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`advised Mr. Mix during her telephone conversation with him on August 15 or August 16, 2011, that
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`federal prosecutors wished to interview him.
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`The Court now turns to analyzing whether the evidence sought to be introduced by the
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`United States is inadmissible under Rule 403 because the probative value of the evidence sought to
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`be admitted is “substantially outweighed by the danger of unfair prejudice.” The Court begins by
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`examining the admissibility of the testimonial evidence the Government seeks to elicit from Ms.
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`McPhee. Based on the “Supplemental Declaration of Joan McPhee” (Doc. 139-1), the Court finds
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`that the evidence that Ms. McPhee could provide concerning whether she informed Mr. Mix during
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`a telephone conversation on August 15 or 16, 2011 that federal prosecutors wanted to interview him
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`is equivocal at best. The equivocal nature of that evidence significantly reduces its probative value.
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`The probative evidence is further lessened because the Government has available to it another
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 6 of 8
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`source of evidence regarding whether Mr. Mix acted “corruptly” with respect to the deletion of the
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`contractor text message string on August 19, 2011. An appropriate representative of the BP vendor
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`tasked with collecting information from Mr. Mix’s iPhone, can provide information regarding
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`whether Mr. Mix knew that the vendor was collecting data from Mr. Mix’s phone to be provided
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`to the Government in connection with a federal investigation into the Macondo Well incident.
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`Having concluded that the testimonial evidence sought from Ms. McPhee has limited
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`probative value, the Court must now determine examine whether the limited probative value of that
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`testimonial evidence is substantially outweighed by the danger unfair prejudice resulting from the
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`introduction of the evidence. There can be little doubt that adding “witness for the Government”
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`to Ms. McPhee’s role in this matter would potentially substantially prejudice Mr. Mix. “The
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`proscription against an attorney serving as both an advocate and a witness in the same litigation is
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`a long-standing ethical rule.” F.D.I.C. v. U.S. Fire Insurance Co., 50 F.3d 1304, 1311 (5th Cir.
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`1995). Although “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate
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`for each criminal defendant rather than to ensure that a defendant will inexorably be represented by
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`the lawyer whom he prefers,” the Sixth Amendment comprehends “the right to select and be
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`represented by one’s preferred attorney.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct.
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`1692, 1697. 100 L.Ed.2d 140 (1988). While the issue of disqualification of Ms. McPhee as Mr.
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`Mix’s counsel is not currently before the Court, the Government has acknowledged the possibility
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`of disqualification, and it is reasonable to assume that if Ms. McPhee’s testimonial evidence is
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`admissible that the issue of Ms. McPhee’s disqualification will move to the forefront of this matter.
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`The possibility of disqualification of Ms. McPhee, less than two months before trial, and after she
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`has represented defendant for more than one year, and the adverse impact that would have on
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`defendant’s Sixth Amendment right to counsel creates a danger of unfair prejudice which would
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`substantially outweigh the limited probative value of the testimony the Government seeks from Ms.
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`McPhee.
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`The Court further finds that the probative value of the documentary evidence sought to be
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`introduced by the Government is substantially outweighed by the danger of unfair prejudice.
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`Specifically, the Government seeks to introduce an August 8, 2011, email from Derek Cohen to Ms.
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`McPhee stating that the Government would like to interview Mr. Mix and asking for some dates for
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`the interview, and Ms. McPhee’s August 10, 2011 response email to Mr. Cohen stating that Mr. Mix
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`was out of town until the following week and that upon his return she would check with him for
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`available dates. Doc. 89-1, Ex. A. The Government also wants to introduce the phone records from
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`Mr. Mix’s telephone that reflect that “at least two calls between Ms. McPhee and the defendant
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`were made contemporaneous with the government’s request for an interview.” Doc. 89-1, Ex. B,
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`Doc. 89-1, p. 1. The probative value of those documents is at most minimal. The documents do not
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`establish that Ms. McPhee told Mr. Mix that federal prosecutors wanted to interview him.
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`Moreover, introducing those documents into evidence would inevitably result in speculation
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`concerning the content of those two telephone conversations Mr. Mix had with his counsel, and the
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`jury would have no context for those conversations. Jury speculation regarding why federal
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`prosecutors wanted to interview Mr. Mix and speculation concerning the content of Ms. McPhee’s
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`conversations with her client creates a danger of unfair prejudice which substantially outweighs the
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`minimal probative value of the evidence. This is especially true because any attempt by the defense
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`to reduce such speculation by providing context for the documentary evidence would impair Mr.
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`Mix’s Sixth Amendment right to counsel. Because the probative value of the documentary evidence
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`Case 2:12-cr-00171-SRD-SS Document 171 Filed 01/07/13 Page 8 of 8
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`sought to be introduced by the Government is substantially outweighed by the danger of unfair
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`prejudice, the Court denies the Government’s motion in limine. Accordingly,
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`IT IS ORDERED that the “Motion in Limine to Introduce Evidence of Defendant’s
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`Awareness that Law Enforcement Officials Sought to Interview Him” filed on behalf of the United
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`States (Doc. 89) is DENIED.
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`New Orleans, this 7th day of January, 2013.
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` STANWOOD R. DUVAL, JR.
` UNITED STATES DISTRICT JUDGE
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