kurt mix call for recussal

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) No. 2:12-cr-00171-SRD-SS ) KURT E. MIX, ) ) Defendant. ) ____________________________________)

DEFENDANT’S MOTION FOR RECUSAL

Before this Court, through undersigned counsel, comes Defendant’s Motion for Recusal.

For the reasons set forth in Defendant’s accompanying Memorandum of Law, Defendant

respectfully requests that his motion be granted.

Respectfully submitted,

Case 2:12-cr-00171-SRD-SS Document 720 Filed 01/22/14 of 2

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Dated: January 22, 2014 By: /s/ Joan McPhee Joan McPhee Aaron M. Katz Ropes & Gray LLP Prudential Tower, 800 Boylston Street Boston, MA 02199-3600 (617) 951-7000 Michael G. McGovern Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036-8704 (212) 596-9000 Walter F. Becker, Jr. (LA. Bar No. 1685) Charles D. Marshall, III (LA. Bar No. 27564) Chaffe McCall, LLP 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163-2300 (504) 585-7000 Counsel for Defendant Kurt Mix

Case 2:12-cr-00171-SRD-SS Document 720 Filed 01/22/14 of 2


UNITED STATES OF AMERICA,

v.

KURT E. MIX,

Defendant.

) ) ) ) ) ) ) ) ) )

No. 2:12-cr-00171-SRD-SS

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR RECUSAL

Defendant Kurt Mix has moved this Court to recuse itself pursuant to 28 U.S.C. § 455

and the Due Process Clause of the United States Constitution.1 This memorandum is offered in

support of that motion. For purposes of this motion, the Honorable Stanwood R. Duval, Jr. shall

be referred to as “the Court,” and the law clerk assigned to Mr. Mix’s case shall be referred to as

“Law Clerk.”

INTRODUCTION

Last Friday, as a result of an unsolicited disclosure of information by an unrelated third

party, Mr. Mix and his defense counsel learned that, on April 19, 2013, the Court and Law Clerk

both became plaintiffs in the civil oil-spill lawsuit against BP (“MDL 2179”), joined into and

adopted the allegations made in “Master Complaint 879,” and demanded both compensatory and

punitive damages against BP. The attorneys who are personally representing the Court and Law

Clerk with respect to their lawsuits against BP are family members of the Court. Those family

1 Because the applicable statutory recusal standards demand recusal even in circumstances that the Due Process Clause might not, this memorandum will focus exclusively on the statutory recusal question. However, so that there is no question should any recusal issue present itself on appeal, Mr. Mix’s underlying motion makes clear that recusal is being sought on both statutory and constitutional grounds.

Case 2:12-cr-00171-SRD-SS Document 720-1 Filed 01/22/14 Page 1 of 24

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members also represent, as plaintiffs in MDL 2179, several companies that are owned and/or

controlled by an individual whom the Court has in the past described as a close personal friend.

The defense learned all of this information on Friday.

Master Complaint 879 — the complaint against BP in which the Court and Law Clerk are

joined as plaintiffs — is replete with allegations that, during the Macondo response effort, BP,

through its executives, managers, and engineers (including Kurt Mix), made material

misrepresentations and misled the public and the United States Government regarding the rate at

which the oil was flowing from the Macondo Well and regarding Top Kill. These fraud

allegations are made not only in support of Master Complaint 879’s prayer for compensatory

damages, but also in support of its prayer for punitive damages against BP. Over the past several

months, in seeking to prove up Master Complaint 879’s fraud allegations and punitive damages

claim, the Plaintiffs’ Steering Committee and Plaintiffs’ Liaison Counsel (“PSC/PLC”) has

submitted in MDL 2179 numerous court pleadings, evidence, and arguments that are directly

adverse to Mr. Mix and, in fact, repeatedly refer by name to Mr. Mix and individuals with whom

Mr. Mix directly worked during the Macondo response effort, including individuals who served

as witnesses in Mr. Mix’s criminal case. The inflammatory fraud allegations advanced by these

materials align with and expand upon the disputed theories of motive and intent that the

prosecution has been advancing in Mr. Mix’s obstruction of justice case since late 2012. The

PSC/PLC is advancing these fraud allegations, and submitting pleadings and evidence in support

of such allegations, on behalf of all of the plaintiffs/claimants who have joined into Master

Complaint 879, including the Court and Law Clerk. The defense notes that, of the 15 lawyers

appointed to the PSC/PLC, one is an individual whom the Court has in the past described as a

close personal friend. This, too, is information that the defense learned last Friday.


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At the outset, it is critical to clarify what Mr. Mix’s motion does not require the Court to

resolve. First, Mr. Mix’s motion does not require this Court to resolve whether the jury’s verdict

is invalidated due to the fact that the Court presided over Mr. Mix’s case, including trial itself,

despite the Court’s and Law Clerk’s undisclosed involvement as plaintiffs/claimants in Master

Complaint 879. If necessary, that question will be decided in the first instance by another district

judge (should the Court grant the recusal motion) or the Fifth Circuit Court of Appeals (should

the Court deny the recusal motion).

Second, Mr. Mix’s motion does not require the Court to determine whether the factual

disclosure that it made to the parties on May 31, 2012 — namely, that the Court owns a fishing

camp adjacent to the beach on Grand Isle and, due to the oil spill, was entitled to seek

compensation from BP but could not do so through the Settlement Trust — was, at the time,

somehow inadequate. Mr. Mix’s motion does not suppose that, on May 31, 2012, the Court and

Law Clerk already had decided to join MDL 2179 and Master Complaint 879 and to demand

compensatory and punitive damages against BP and yet failed to disclose this fact. Indeed, the

conclusion most naturally drawn from the Court’s May 31, 2012 disclosure is that the Court had

no plans to file any sort of lawsuit against BP, let alone file a lawsuit seeking punitive damages

and adopting allegations that BP and its employees (including Kurt Mix) willfully and wantonly

misled the public and the United States Government regarding flow rate and Top Kill.

Third, Mr. Mix’s motion does not require the Court to address questions of statutory

waiver. Under 28 U.S.C. § 455(e), a party cannot “waive” recusal absent a prior “full disclosure

on the record of the basis for disqualification.” Mr. Mix’s motion is not premised on the Court’s

mere ownership of property that may have sustained unspecified, compensable injury as a result

of the oil spill, which is the disclosure that the Court made on May 31, 2012. Mr. Mix’s motion


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is based on the fact that, nearly a year later and without any disclosure, the Court and Law Clerk

did file lawsuits against BP and did join Master Complaint 879, adopting the inflammatory (and

hotly disputed) fraud allegations that have an unmistakable nexus to the obstruction of justice

prosecution of Mr. Mix. Thus, § 455(e) is plainly inapplicable. Moreover, there can be no

question that Mr. Mix’s instant recusal motion is timely. See United States v. Sanford, 157 F.3d

987, 988 (5th Cir. 1998) (holding that a party seeking recusal under 28 U.S.C. § 455 “must do so

at the earliest moment after knowledge of the facts demonstrating the basis” for the recusal).

The only question that Mr. Mix’s recusal motion presents is whether, under the facts now

presented and considering the current procedural status of Mr. Mix’s case, one or more of

§ 455’s recusal provisions is triggered. If the answer is “yes,” the Court must recuse itself. For

the reasons explained below, the answer clearly is “yes.”

RELEVANT FACTS

In a letter sent to the Court on Tuesday evening, the defense apprised the Court of the

basic facts that underlie Mr. Mix’s recusal motion. Shortly after the delivery of that letter, the

Court held a teleconference at which these basic facts were further discussed. The Court then

directed defense counsel to file the instant motion. To ensure that the relevant facts are included

in the formal record, this memorandum will set forth the basic facts that warrant recusal.

1. On December 15, 2010, the PSC/PLC filed a civil complaint against BP and other

defendants in the Eastern District of Louisiana seeking compensatory and punitive damages for

economic injuries suffered by private individuals and businesses as a result of the Macondo oil

spill. This complaint is commonly referred to as “Master Complaint 879” and/or the “B1

Pleading.” The matter was docketed under MDL 2179 and assigned to Judge Barbier. Master

Complaint 879 is replete with allegations that BP and its employees were engaged in an effort to


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willfully conceal flow rate information from the public and the United States Government during

the Macondo response effort, all to the detriment of the efforts to stop the flow of oil as quickly

as possible. For this reason and others, Master Complaint 879 seeks punitive damages against

BP to the maximum extent allowed by law. See, e.g., Plaintiffs’ Complaint, 2:10-md-2179, Dkt.

879, at ¶¶ 433-435, 440-444, 448, 634, 636-637, 640-643, 651-653, 668, 682, 685-690.

2. On January 12, 2011, Judge Barbier entered “Pre-Trial Order No. 24” in MDL 2179.

In the first paragraph of the Order, which is available on the Eastern District of Louisiana’s

dedicated “Oil Spill” website, Judge Barbier stated: “Any Short-Form Joinder filed in CA 10-

8888 . . . shall be deemed to be a simultaneous filing of an answer and claim in CA 10-2771 (the

Limitation Action), and an intervention into one or more of the Master Complaints (Rec. Docs.

879 and/or 881) in MDL 2179.” See http://www.laed.uscourts.gov/OilSpill/Orders/PTO24.pdf.

3. Over the next 18 months, the PSC/PLC conducted a substantial amount of discovery

and filed a substantial number of pleadings in MDL 2179 in an effort to substantiate the claims

made in Master Complaint 879. This included not only discovery of documents associated with

Kurt Mix and individuals with whom Mr. Mix directly worked during the Macondo response

effort, but also depositions of individuals with whom Mr. Mix directly worked, including

Jonathan Sprague, Dr. Ole Rygg, and employees of Wild Well Control. Many, and perhaps all,

of these depositions were conducted jointly with the Department of Justice.

4. On May 2, 2012, Mr. Mix was indicted on two counts of obstruction of justice for his

deletion from his iPhone of text message strings involving Jonathan Sprague and Wilson Arabie.

5. Mr. Mix’s case was originally assigned to Judge Milazzo. Without any involvement

of the parties, Judge Milazzo recused herself from the case pursuant to 28 U.S.C. § 455(a) and


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§ 455(b). See Order, Dkt. #27 (May 15, 2012). The case was shortly thereafter re-allotted to the

Court.

6. During a May 31, 2012 teleconference, the Court disclosed the following: “The

undersigned owns a camp adjacent to the beach in Grand Isle. As a result of the Macondo oil

spill, the undersigned is entitled to seek compensation from BP; however, such compensation

cannot be sought through the Deepwater Horizon Court Supervised Settlement Program.”

Minute Entry, Dkt. #46, at 1 (May 31, 2012).

7. On October 9, 2012, the prosecution filed a brief with this Court in which it argued

that, at the time of the charged text message deletions, Mr. Mix had personal criminal exposure

relating to his work on the Macondo response effort. According to the prosecution: “At the time

the defendant destroyed the charged texts, there was a criminal investigation into, among other

things, whether BP and its employees were intentionally understating the amount of oil flowing

from the well and making inaccurate public statements about the relief efforts. The defendant, as

an engineer with access to relevant internal data on these points, [had] retained a criminal

defense attorney in connection with the criminal investigation.” Gov’t Resp. Mem., Dkt. #103,

at 5 (Oct. 9, 2012).

8. Over the next several months, the prosecution began to make increasingly pointed

allegations that Mr. Mix was involved in a large-scale effort by BP to conceal flow rate

information from the public and the United States Government during the Macondo response

effort. For example, at a motions hearing held on January 14, 2013, the prosecution argued:

“Nothing was shar[ed], Your Honor. Nobody [at BP] was sharing [flow rate information with

the public or United States Government]. . . . They go to this meeting [the KWOP meeting].

Now, Kurt Mix has in his pocket all of these estimates that they are running that show how high


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it [the flow rate] is. What do they do? What the evidence is going to show is that Mr. Mix sat at

the meeting . . . [and] Mr. Mix’s doesn’t say, ‘By the way, we’ve run a lot of estimates, and it’s

more than 15. We think it’s more than 15.’ None of that is shared. So then, they go into Top

Kill. Had [Mr. Mix shared information during the KWOP meeting], they may not have ever

tried Top Kill . . . . So now [Kurt Mix] sat through a meeting [the KWOP meeting] where [he

hasn’t] shared what [he] know[s], which is that the flow rate is too high for [Top Kill] to work.

Now [he] go[es] in and it’s beginning, and everybody [from the United States Government] is in

the room. They are watching it, the secretaries [of various Executive Branch departments] and

all and so forth, and you text your boss and you say, ‘The flow rate is too high. The orifice is too

big. It’s not going to work.’ Well, then [Mr. Mix] delete[s] that. . . . We haven’t identified a

single document, not a single document that shows contemporaneously [Mr. Mix] was showing

[to the United States Government] that flow rate was too high for Top Kill to work. Then it gets

worse, Your Honor. After this happens, what does BP say? . . . [T]hey then go and they have

these after meetings and they are going to talk and say, ‘Hey, that flow rate was too high. That’s

why it didn’t work.’ No, they came up with a different explanation. Kurt Mix helped do that.

He helped prepare a different explanation, and they said it was some structural integrity in the

well. Again, completely contradicting what [his text message to Mr. Sprague] meant.” See

Hearing Trans., pp. 21-28 (January 14, 2013).

9. On January 18, 2013, the Court and Law Clerk each presented damages claims to BP.

The defense’s understanding is that such “presentation” was a prerequisite to filing a lawsuit

against BP in MDL 2179.

10. Over the next several months, the prosecution continued to argue — in court

pleadings, correspondence to the defense, and during conferences with the Court (including an


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April 1, 2013 teleconference during which the lead prosecutor used the term “cover up”) — that

Kurt Mix was involved in a large-scale cover-up of flow rate information during the Macondo

response and that this proved his motive and intent to obstruct a grand jury investigation in the

Eastern District of Louisiana. For example, in a March 31, 2013 letter to the defense that the

defense thereafter provided to the Court, the prosecution asserted that it would prove at trial that

Kurt Mix “[m]isled government and quasi-governmental personnel regarding the flow rate of oil

coming from the Macondo well, the likelihood of success of the Top Kill procedure, and the

reason why Top Kill failed.” See Letter, Dkt. #257-2 (Apr. 10, 2013).

11. On April 19, 2013, the Court and Law Clerk, represented by a family member

practicing at the Court’s former law firm, each filed Short-Form Joinders via ECF in CA 10-

8888. See Dkt. #132066 & 132076 (April 19, 2013). The Short-Form Joinders sought

compensatory and punitive damages against BP pursuant to the “Bundle B1.” The punitive

damages claim was made by checking a box entitled “Other” and then writing the words

“Punitive Damages” on a line adjacent to the box. The following words also appear in bold-

faced type at the top of the form: “By submitting this document, I . . . intervene into, join and

otherwise adopt the Master Complaint [Rec. Doc. 879] for private economic losses (‘B1

Bundle’) filed in MDL No. 2179 (10 md 2179) . . . .” Id. The top of the form also referred back

to the Order at Rec. Doc. 982 in MDL 2179, which is the “Pre-Trial Order No. 24” referenced

above. Id. Pursuant to other pre-trial orders in MDL 2179, the PSC/PLC would be responsible

for litigating the compensatory and punitive damages claims filed by the Court and Law Clerk.

12. Between April 20, 2013 and September 17, 2013, the Court heard argument on and

ruled on over a dozen motions in limine. These motions related to critical evidentiary issues

(including the admissibility of expert engineering testimony proffered by the defense), and many


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related directly to the allegations that Mr. Mix was engaged in and/or knew about efforts to

defraud and mislead the public and the United States Government regarding flow rate.

13. On September 9, 2013, the prosecution submitted to the Court a memorandum

reiterating its intention to prove at trial that, during the Macondo response effort, Mr. Mix was

involved in a scheme to mislead the United States Government regarding flow rate and Top Kill.

See Gov’t Reply Mem., Dkt. #472 (Sept. 9, 2013). The prosecution specifically argued that such

conduct on Mr. Mix’s part provided him the motive and intent to obstruct a grand jury

proceeding in the Eastern District of Louisiana. Id. at 1 (“[T]he government will show that the

defendant misled the government about flow rate at the May 17, 2010 Kill the Well on Paper . . .

meeting and elsewhere during that timeframe. . . . [Such evidence] is relevant and admissible to

prove intent and motive.”).

14. On September 18, 2013, in advance of the impending “Phase Two” of the MDL 2179

bench trial, the PSC/PLC filed a pre-trial brief that provided a general roadmap to the fraud

allegations that it would seek to prove during trial. The Table of Contents of the brief made clear

the thrust of the PSC’s/PLC’s allegations. The heading for Section II of the brief was: “BP’s

Fraud, and Its Consequences.” The heading for Section II.A of the brief was: “BP

Misrepresented and Concealed the Flow Rate From Government Source Control Decision-

Makers.” The heading for Section II.A.3 was: “May 13-17: BP Fails to Disclose Its Concerns

About the 5,000 BOPD Estimate to Government Scientists.” Section II.A.5 was entitled: “BP

Intentionally Withheld Flow Rate Information.” Section II.B was entitled: “BP’s Fraud Delayed

the Capping of the Well.” Section II.B.1 bore the heading: “BP’s Misrepresentations About the

Flow Rate Misled Decisionmakers About the Top Kill’s Likelihood of Success.” Section II.B.2

was entitled: “After the Top Kill Failed, BP Misrepresented the Reasons for the Top Kill’s Lack


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of Success, Which Further Delayed the Capping of the Well.” Section II.B.3 was entitled: “But

for BP’s Fraud, the Well Could Have Been Capped Weeks Earlier.” See Pre-Trial Brief, 2:10-

md-2179, Dkt. #11411 (Sept. 18, 2013). On page 15 of the brief, Kurt Mix was identified by

name twice, and his May 26, 2010 text message to Mr. Sprague was singled out as proof that BP

defrauded the United States Government regarding flow rate and Top Kill. Mr. Mix and his

work were implicitly referenced several other times. An individual who would become a witness

in Mr. Mix’s case, Dr. Ole Rygg, was also singled out in the brief. The first 18 pages of the brief

were dedicated to arguing “BP’s cover-up of the flow rate . . . .” Id. at 1.

15. Between September 30 and October 18, 2013, Phase Two of the bench trial in MDL

2179 was conducted. The first four days of evidence were dedicated solely to the PSC’s/PLC’s

allegations that BP and its executives, managers, and employees (including Kurt Mix) were

engaged in a willful effort to mislead the public and the United States Government regarding

flow rate and Top Kill. Mr. Mix was referenced by name many times during the trial, and his

May 26, 2010 text message to Mr. Sprague was even made into a trial demonstrative as critical

proof that BP lied about flow rate and Top Kill. Significant attention was paid to Dr. Rygg’s and

Mr. Mix’s flow rate modeling work, and the KWOP meeting was also presented as an event of

special importance to the PSC’s/PLC’s fraud allegations.

16. The PSC’s/PLC’s fraud allegations garnered significant press coverage in New

Orleans and nationwide adverse to BP and, by extension, Mr. Mix. For example, a September

27, 2013 article on NOLA.com ran under the headline: “BP oil trial’s second phase, starting

Monday, will play key role in deciding massive fines.” The article summarized the PSC’s/PLC’s

argument that “BP’s alleged lies [about flow rate] resulted in federal officials agreeing with BP’s

plan to use a failed strategy to stop the spill called ‘Top Kill.’. . . [I]f BP hadn’t misled the


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government, the capping stack would have been used first, and the flow of oil would have been

shut off as early as May.” See http://www.nola.com/news/gulf-oil-

spill/index.ssf/2013/09/mondays_second_phase_of_bp_tri.html. In another article available on

the Internet, the link between the fraud allegations and punitive damages was discussed. See

Paul Barrett, “All Against BP as Spill Trial Turns to ‘Coverup’,” BUSINESSWEEK (Sept. 25,

2013) (“The spicier part of Phase 2 will address whether BP . . . determined to conceal the extent

of the damage. The significance of Barbier’s view of these matters is that the plaintiffs and

states are hoping that damning findings about BP will increase the chances of the judge imposing

stiff punitive damages on top the company’s other liabilities.”).

17. On October 10, 2013, while Phase Two of the MDL 2179 bench trial was proceeding

and after the PSC/PLC had completed the presentation of evidence regarding its fraud

allegations, the Court denied three motions to dismiss that Mr. Mix had filed on August 26,

2013.

18. On or about November 1, 2013, the Clerk of the Court sent questionnaires to the

prospective jurors assigned to the venire for Mr. Mix’s criminal trial. Question #27 of the

questionnaire specifically asked whether the prospective juror, a member of their family, or

someone they knew had filed a claim for damages against BP in relation to the oil spill. Four

prospective jurors provided answers that, on their face, unambiguously indicated that they

personally had filed such a claim against BP. On November 18, 2013 the defense moved to

strike all four for cause. Several other jurors indicated that family members or friends had filed

claims. At trial, the defense exercised peremptory challenges on several jurors falling into that

category. None of the jurors chosen to sit on Mr. Mix’s case answered “yes” to Question #27.


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19. The jury was sworn in Mr. Mix’s case on December 3, 2013. The prosecution rested

on December 11, 2013. Oral argument on Mr. Mix’s Rule 29 motion was held on December 12,

2013. The defense’s case-in-chief began and ended on December 13, 2013. Closing arguments

occurred on December 16, 2013. The jury returned its verdict on December 18, 2013.

20. During trial, at least six prosecution witnesses were called to testify about issues

relating to flow rate and Top Kill: FBI Agent Kelly Bryson, William Burch, William Kirton, Dr.

Kate Baker, Dr. James Redmond, and Dr. Curtt Ammerman. The latter three were called by the

prosecution specifically to substantiate the prosecution’s accusatory claims regarding the KWOP

meeting, which the prosecution had specifically highlighted during its opening statement as a

“possible” motive for Mr. Mix to obstruct justice. See Tr. 490:6 – 492:2. In fact, the prosecution

suggested during Dr. Ammerman’s testimony that, had the BP engineers not concealed

information and lied to Dr. Ammerman and his colleagues during meetings that took place

between May 13 and May 17, 2010 (including the KWOP meeting), the President of the United

States would not have approved Top Kill. There was no doubt that the alleged cover-up

regarding flow rate and Top Kill became a central focus of Mr. Mix’s trial. During closing

arguments, the prosecution led with the following: “Flow rate. As you learned from Agent Kelly

Bryson during this trial, flow rate was absolutely crucial to the criminal investigation of [the]

Grand Jury into the Macondo response. As you had also heard, Kurt Mix made the choice to

delete his flow rate text messages . . . . Kurt Mix certainly knew why deleting those materials

would be so serious. . . . Remember who Kurt Mix was. As Bill Burch told you, that [sic] Kurt

Mix was BP’s lead internal person modeling flow rates.” Tr. 2585:16 – 2586:21.

21. On December 20, 2013, the PSC/PLC submitted in MDL a post-trial brief and nearly

200 pages of proposed findings of fact. See 2:10-md-2179, Dkt. #12038, #12039, and #12043.


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Collectively, dozens of pages and over 200 paragraphs of these pleadings are dedicated to the

allegations that BP, through its executives, managers, and engineers (including Kurt Mix),

willfully deceived the public and the United States Government regarding flow rate and Top

Kill. In fact, many of the PSC’s/PLC’s proposed findings of fact relate specifically to Kurt Mix

as an individual, including accusatory proposed findings of fact regarding the KWOP meeting

that align precisely with the prosecution’s theory of criminality and that Mr. Mix vigorously

disputed at his trial. See, e.g., Proposed Findings of Fact, Dkt. #12043, at ¶¶ 365-366 (KWOP

meeting), ¶¶ 392-399 (Mr. Mix’s text message to Mr. Sprague).

22. On January 2, 2013 and January 9, 2013, Mr. Mix submitted post-trial motions

seeking a new trial pursuant to Federal Rule of Criminal Procedure 33. On January 9, 2013, Mr.

Mix also submitted an additional motion for a judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29. As a result, there are now four dispositive post-trial motions pending

before the Court (a pair of Rule 33 motions, and a pair of Rule 29 motions).

23. Should the Court deny all of Mr. Mix’s post-trial motions, sentencing is scheduled to

occur at the end of March 2013.

24. On Friday, January 17, 2014, Mr. Mix’s defense counsel, counsel for the

Government, and the Court all received from BP’s local counsel a copy of correspondence from

an individual named Kevin LeMaire. Mr. LeMaire is not associated with Mr. Mix or his defense

counsel, and neither Mr. Mix nor defense counsel has ever spoken to Mr. LeMaire. The

information that Mr. LeMaire provided to BP’s local counsel — and that BP’s local counsel then

promptly forwarded to Mr. Mix’s defense counsel — caused Mr. Mix and his defense counsel to

learn about the Court’s and Law Clerk’s involvement as plaintiffs in MDL 2179 and Master

Complaint 879. The information also caused Mr. Mix and his defense counsel to learn that the


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Court’s family members represent other plaintiffs and claimants in MDL 2179 and Master

Complaint 879, including business entities owned and/or controlled by an individual that the

Court previously has described as a close personal friend. The information also caused Mr. Mix

and his defense counsel to learn that the one of the 15 members of the PSC/PLC is an attorney

that the Court previously has described as a close personal friend. The attorneys on the

PSC/PLC will be receiving the largest share of whatever attorneys’ fees are awarded in MDL

2179, and such fees will almost certainly be tied to the amount of punitive damages (if any)

awarded to the plaintiffs/claimants.

APPLICABLE LAW AND ARGUMENT

Under 28 U.S.C. § 455(a), a district judge “shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” Moreover, under 28 U.S.C. § 455(b)(4),

a district judge “shall also disqualify himself . . . [where] [h]e knows that he . . . or his spouse . . .

has a financial interest in the subject matter in controversy . . . .” In addition to statutory

disqualification, the Constitution requires disqualification when “the probability of actual bias on

the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 872, 883 (2009) (describing this as an “objective” test that

“[does] not require proof of actual bias”). In this case, however, there is no need to address

whether recusal is required under the Constitution. This is because the federal statutory recusal

provisions provide a less demanding standard than does the Due Process Clause. Thus, although

Mr. Mix’s motion invokes his constitutional rights, there is no need for this memorandum to

dwell on the constitutional test.

With respect to statutory recusal, § 455(b)(4) is arguably implicated, while § 455(a)

undeniably applies. As to § 455(b)(4), the Court and Law Clerk each have a “financial interest”


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in the allegations that BP willfully deceived the public and the United States Government

regarding flow rate and Top Kill during the Macondo response effort: the success of the Court’s

and Law Clerk’s punitive damages claims in MDL 2179 largely depend upon the success of such

fraud allegations. The question under § 455(b)(4) is thus two-fold. First, do such fraud

allegations constitute “the subject matter in controversy” in Mr. Mix’s trial? See 28 U.S.C. §

455(b)(4). Second, “could” the outcome of Mr. Mix’s trial “substantially affect[ ]” the Court’s

and Law Clerk’s punitive damages claims? If the answer to either question is “yes,” then recusal

is mandated under § 455(b)(4).

The case law that might assist in answering these § 455(b)(4) questions is not well

developed. However, the defense submits that, under the circumstances, the allegations that BP

and its employees were engaged in a scheme to willfully deceive the public and the United States

Government about flow rate does constitute “the subject matter in controversy” in Mr. Mix

case’s within the meaning of § 455(b)(4). Moreover, the outcome of Mr. Mix’s trial could

substantially affect the success of the PSC’s/PLC’s fraud allegations and, by extension, the

Court’s and Law Clerk’s punitive damages claims against BP. The indictment of Mr. Mix

essentially rendered him unavailable as an exculpatory defense witness to BP in MDL 2179

(because he would have invoked his Fifth Amendment right not to testify), which assisted the

PSC/PLC in its attempt (i) to characterize Mr. Mix’s text message to Mr. Sprague as smoking

gun evidence of BP’s fraud, and (ii) to claim that flow rate information was withheld and not

shared with government officials and scientists during the response effort. Had Mr. Mix been

available to testify, he could have explained that the message to Mr. Sprague was no smoking

gun, but rather a logical and obvious observation; he also could have explained that he

personally, together with others at BP, had repeatedly shared flow rate modeling information


16

with United States government officials and scientists during the response effort. If Mr. Mix

were to be convicted, it would substantially damage his ability to serve as a credible BP defense

witness in the future (for example, if Judge Barbier allowed the Phase Two evidence to be re-

opened on BP’s motion), because his conviction would be grounds for impeachment under

Federal Rule of Evidence 609. All of this benefits the PSC’s/PLC’s efforts to obtain punitive

damages for the plaintiffs and claimants in MDL 2179.

The Court need not grapple with these concededly difficult § 455(b)(4) questions,

however, because § 455(a) is clearly triggered by the facts at hand.2 Under § 455(a), recusal is

required whenever a reasonable person might question the judge’s ability to be impartial. “‘If the

question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of

recusal.’” Patterson v. Mobil Oil Corp., 335 F.3d 476, 484-85 (5th Cir. 2003) (collecting cases

and holding that the district judge should have recused himself where a partner in the judge’s

former law firm represented Mobil in a similar lawsuit while the judge was still a partner at the

firm).

It is well established that proof of actual bias is not required under § 455(a). See Geyh

Decl. at ¶ 4; United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (“In applying § 455(a), the

judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the

issue.”). Moreover, because “[s]cienter is not an element of a violation of § 455(a),” a district

judge’s “lack of knowledge of a disqualifying circumstance may bear on the question of [post-

judgment] remedy, but it does not eliminate the risk that ‘his impartiality might reasonably be

questioned’ by other persons.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 859

2 Given the short time that defense counsel had to brief this issue, counsel sought the opinion of Professor Charles G. Geyh, an expert on judicial disqualification. Professor Geyh’s declaration (“Geyh Decl.”) is attached hereto as Exhibit A.


17

(1988). As the Supreme Court held in Liljeberg, “advancement of the purpose[s]” of § 455(a)

“does not depend upon whether or not the judge actually knew of facts creating an appearance of

impropriety, so long as the public might reasonably believe that he or she knew.” Id. at 859-60.

In affirming the decision of the Fifth Circuit, the Supreme Court in Liljeberg quoted favorably

from then-Chief Judge Clark’s opinion below: “‘The goal of section 455(a) is to avoid even the

appearance of partiality. . . . Under section 455(a), therefore, recusal is required even when a

judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable

person, knowing all the circumstances, would expect that the judge would have actual

knowledge.” Id. at 860-61 (“The judge’s forgetfulness . . . is not the sort of objectively

ascertainable fact that can avoid the appearance of partiality.”). And a reasonable observer

would expect a plaintiff to have knowledge of his counsel’s actions and arguments, given the

legal principle that the attorney is the agent of the client, and the attorney’s acts in litigation are

chargeable to and binding on the client. See Succession of Czarnowski, 158 La. 1093, 105 So.

76, 77 (La. 1925); Brumfield v. Brumfield, 178 So.2d 379, 384 (La. App. 1st Cir.), writ refused,

248 La. 435, 179 So.2d 274 (1965); see also Link v. Wabash R. Co., 370 U.S. 626, 634 (1962)

(“Any other notion would be wholly inconsistent with our system of representative litigation, in

which each party is deemed bound by the acts of his lawyer-agent and is considered to have

‘notice of all facts, notice of which can be charged upon the attorney.’”) (quoting Smith v. Ayer,

101 U.S. 320, 326 (1880)); see also Geyh Decl. at ¶ 11.

Accordingly, under well-established Supreme Court precedent, it is irrelevant whether the

Court or Law Clerk in fact appreciated that, in filing their oil-spill lawsuits against BP seeking

compensatory and punitive damages, they were expressly joining into a Master Complaint and

fraud allegations that are directly adverse to Mr. Mix and that dramatically align with the


18

prosecution’s core theories of motive and intent in Mr. Mix’s case. In Liljeberg, the grounds for

the district judge’s recusal were his position on the board of trustees of Loyola University. After

the district judge entered a judgment in favor of the defendant, the plaintiff in the action learned

that the district judge was on the board of trustees of Loyola University, that Loyola was

negotiating the purchase of commercial real estate from the defendant, and that the “success and

benefit to Loyola of these negotiations turned, in large part, on [the defendant] prevailing in the

litigation before [the district judge].” Liljeberg, 486 U.S. at 850. Based on these revelations, the

plaintiff moved to vacate the judgment on the basis of a § 455(a) violation. The Supreme Court

held that the recusal statute had been violated and that the judgment should be vacated. The

Supreme Court credited the district judge’s explanation that, “while the case was actually being

tried . . . [he] did not have actual knowledge of Loyola’s interest in the dispute . . . .” Id. at 864

(“When a busy federal judge concentrates his or her full attention on a pending case, personal

concerns are easily forgotten.”). Nevertheless, the Supreme Court held that objective “facts

create precisely the kind of appearance of impropriety that § 455(a) was intended to prevent.”

Id. at 867.

The objective facts regarding (1) the Court’s and Law Clerk’s involvement in MDL 2179

and Master Complaint 879, and (2) the dramatic and unmistakable linkages between the evidence

and arguments the PSC/PLC has been advancing in support of Master Complaint 879’s fraud

allegations and the motive and intent arguments the prosecution has been advancing against Mr.

Mix for over a year suffice to mandate recusal.

As an initial matter, the Court’s and Law Clerk’s mere acts of seeking punitive damages

against BP with respect to the oil spill would, in and of themselves, have triggered § 455(a). By

seeking punitive damages against BP, the Court and Law Clerk were expressing their desire to


19

punish BP for allegedly reprehensible conduct — after all, punitive damages are meant to punish

the defendant, not to make an injured plaintiff whole. If, during jury voir dire, a prospective

juror had expressed a desire to punish BP for reprehensible conduct during the oil spill, the Court

clearly would have excluded him for cause. This is because, under the circumstances of Mr.

Mix’s case, such feelings toward BP expose Mr. Mix to a risk of prejudice and jeopardize his

right to impartiality. And, here, the Court is not merely one of twelve jurors. Rather, the Court

is, absent recusal, slated to resolve Mr. Mix’s post-trial motions (two of which will be reviewed

under an abuse of discretion standard on appeal) and, if the Court denies the post-trial motions,

to sentence Mr. Mix. Regardless of the Court’s own subjective belief that it is acting without

bias, a reasonable observer, aware of all of the circumstances, might reasonably question whether

the Court’s desire to punish BP in the civil litigation will (1) impact its assessment of Mr. Mix’s

post-trial motions (i.e., that the Court may reject the post-trial motions in part out of a desire to

punish the man the prosecution described as BP’s “go-to guy” on flow rate), and (2) impact its

sentencing decision, a decision over which the Court would have almost unbridled discretion

under the advisory Guidelines. A reasonable observer might also wonder whether the Court, in

ruling on Mr. Mix’s post-trial motions and (if such motions are denied) sentencing Mr. Mix, is

punishing Mr. Mix for seeking to destroy a text message that, according to the PSC’s/PLC’s

pleadings, critically supports the punitive damages claims that the Court and Law Clerk have

pending in MDL 2179. (Indeed, a reasonable observer might question the Court’s and Law

Clerk’s ability to be impartial given their adoption of the PSC’s/PLC’s position that the text

message was a “smoking gun” in the first place. After all, the defense in this case has taken the

directly contrary position regarding the text message, arguing that the text message expressed an

unremarkable inference based on the information he and Dr. Rygg had shared with the


20

government scientists at the KWOP meeting, not evidence of an underlying fraud. That was, in

fact, one of the defense's chief arguments at trial and an argument that informs the defense’s

Rule 29 and Rule 33 motions.) A reasonable observer might also wonder whether Mr. Mix, if

sentencing comes to pass, would feel pressure to cooperate with and assist the PSC’s/PLC’s

fraud allegations in order to curry favor with the Court and Law Clerk.

The fact that the Court and Law Clerk in fact joined into Master Complaint 879 — and

are therefore advocating in favor of, through the PSC/PLC, the exact fraud allegations that the

prosecution has been advancing since October 2012 in its effort to convict Mr. Mix — heightens

the § 455(a) problem to an extreme level. The defense has been unable to identify any case that

looks remotely like this: namely, one where the district judge and his lead law clerk are active

litigants in a highly-publicized civil case worth billions of dollars that is unfolding in the

courtroom literally next door and, through their legal representatives in that civil case, are

actually advocating in favor of the very same arguments that the prosecutors have been making

for over a year against the criminal defendant over whose case the district judge is presiding and

on whose case the law clerk is working. The § 455(a) problem becomes even more extreme once

the following additional circumstances are considered: (1) the Court and Law Clerk are

represented by family members; (2) the Court’s family members are also representing in the

same case business entities owned and/or controlled by an individual who the Court has

described as a close personal friend; (3) one of the members of the PSC/PLC is an individual

who the Court has described as a close personal friend.

The Fifth Circuit has aptly recognized that, with respect to § 455(a), each “case is

extremely fact intensive and fact bound, and must be judged on its unique facts and

circumstances more than by comparison to situations considered in prior jurisprudence.” United


21

States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995). The Macondo oil spill was a unique event,

and the prosecution of Mr. Mix was unique as well; even more unique is the unmistakable

overlap between the PSC’s/PLC’s fraud allegations in MDL 2179 and the prosecution’s motive

and intent theories against Mr. Mix; the fact that the Court and Law Clerk were active litigants in

MDL 2179, being constructively represented by the PSC/PLC, at the very same time that the

case against Mr. Mix was unfolding in the courtroom next door means that this is a fact pattern

that will almost certainly never be duplicated.

Nevertheless, comparing this fact pattern to others in which mandatory recusal has been

found is instructive, because it demonstrates how clear the requirement of recusal is in this case.

In Jordan, the Fifth Circuit held that the district judge should have recused herself because there

was a history of personal disputes between the defendant and a “good friend” of the judge and

her husband. See Jordan, 49 F.3d at 152-59.

In Hathcock v. Navistar International Transportation Corp., 53 F.3d 36, 41 (4th Cir.

1995), the district judge was held to be disqualified under § 455(a) because of general remarks

(not specific to the defendant or to the case at bar) that he made at a torts seminar that

“reflect[ed] a predisposition against [the defendant] and other product liability defendants.”

In Bradshaw v. McCotter, 796 F.2d 100 (5th Cir. 1986), which was a habeas corpus

appeal from a state court, the Fifth Circuit held that recusal of a court of appeals judge was

required under constitutional principles because his name had appeared on a legal brief that the

prosecutor had filed in the trial court prior to the judge ascending to the bench. The Fifth Circuit

held it immaterial that the judge had not actually participated in the defendant’s prosecution and

that his name had been “placed on the state’s brief as a matter of courtesy by the prosecuting

attorney.” Id. at 101. The Fifth Circuit held that “the appearance of [the judge’s] name on the


22

prosecuting attorney’s brief undermined a fundamental aspect of our criminal justice system: a

judge’s neutrality.” Id.

And in Republic of Panama v. The American Tobacco Co. Inc., 217 F.3d 343, 346-47

(5th Cir. 2000), the Fifth Circuit held that the district judge should have recused himself under

§ 455(a) because, almost ten years earlier while in private practice, in an unrelated case, the

judge’s name had appeared on a motion for leave to file an amicus brief that contained general

legal arguments about tobacco companies and cigarettes (e.g., that tobacco companies should be

subject to products liability because cigarettes are unreasonably dangerous in their design). The

Fifth Circuit held that this warranted recusal even though (1) the judge’s name did not appear on

the amicus brief itself, (2) the judge did not participate in researching or writing the amicus brief,

and (3) the judge’s name had appeared on the procedural motion for leave to file as a formality.

Id. Although the Supreme Court later issued an opinion in a companion case that effectively

abrogated the Fifth Circuit’s ruling, the Supreme Court resolved the case on the grounds that

objective evidence conclusively showed that a third party had placed the judge’s name on the

motion for leave by mistake and without the judge’s knowledge — a circumstance not present

here.3 See Sao Paulo v. Am. Tobacco Co. Inc., 535 U.S. 229, 233 (2002) (“The Fifth Circuit

reached the conclusion that recusal was required because it considered what a reasonable person

would believe without knowing . . . that the judge’s name was added mistakenly and without his

knowledge to a pro forma motion to file an amicus brief in a separate controversy.”).

These cases show that a judge who volunteers public statements related to an ongoing

case undermines the appearance of judicial neutrality. See also In re Boston’s Children First,

3 The motion was submitted by the Louisiana Trial Lawyers Association (LTLA), and erroneously listed Judge Barbier as the association’s president, a position from which he had retired about six months earlier. Id.


23

244 F.3d 164 (1st Cir. 2001) (mandating recusal where judge explained her class certification

decision to a local newspaper while the case was ongoing); Cooley, 1 F.3d at 995 (10th Cir.

1993) (recusal required where judge appeared on television to comment on violations of a

preliminary injunction that he had issued). The risk is particularly acute “in newsworthy cases

where tensions may be high.” Boston’s Children First, 244 F.3d at 170. These principles bear

directly on the situation at hand: By joining Master Complaint 879, the Court and Law Clerk

chose, in effect, to speak publicly about facts implicated in the case before the Court. See In re

Pich, No. 99-21386, 2000 Bankr. LEXIS 2212, at *5 (Bankr. D. Idaho Feb. 24, 2000) (“As a

general proposition, a party speaks through his counsel until that counsel is relieved of his

obligation of representation."). As in the cases cited, the Court’s appearance of impartiality —

regardless of the Court’s intentions — is thereby compromised. See Geyh Decl. at ¶ 8.

Because of the uniqueness of the circumstances presented, it is impossible to find any

case “on all fours” with this one. But this simply confirms that recusal under § 455(a) is required

here. Mr. Mix and the public should not be left to wonder whether the trial judge who is

reviewing and will be ruling upon Mr. Mix’s post-trial motions and who, if such motions are

denied, will be sentencing Mr. Mix had, in his role as a plaintiff in MDL 2179, already chosen up

sides in factual disputes that the prosecution made central to Mr. Mix’s case and had, in seeking

punitive damages against BP, already made up his mind that he would punish Mr. Mix if he got

the chance. Even if the Court is not actually biased against Mr. Mix or the arguments he

advanced at trial (or biased in favor of the arguments the prosecution advanced at trial), the mere

fact that a reasonable observer might question the Court’s impartiality suffices to trigger

§ 455(a).


CONCLUSION

For the reasons stated above, Mr. Mix’s motion for recusal should be granted.




EXHIBIT A




NOTICE OF HEARING

Now into Court, through undersigned counsel, comes Defendant Kurt Mix, who hereby

provides notice that this matter will be brought on for hearing on February 13, 2014 at 1:30 p.m.

before the Honorable Stanwood R. Duval, Jr.


2






ORDER IT IS HEREBY ORDERED that Defendant’s Motion for Recusal is hereby GRANTED.

New Orleans, Louisiana, this _____ day of _________, 2014.

_____________________________________ Stanwood R. Duval, Jr., U.S. District Judge


CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of January, 2014, a copy of the foregoing motion

has been filed with the United States District Court for the Eastern District of Louisiana by electronic case filing/case management. All counsel of record are being served this filing by either the court’s electronic filing system or by telefaxing and/or placing a copy of same in the United States mail, properly addressed and with adequate postage affixed thereon. _ _/s/ Joan McPhee ___


kurt mix call for recussal

Documents

united states district

recusal defendant kurt

defendants motion

law clerk

memorandum of law

srdss kurt

support of motion

srdss defendants memorandum