Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 1 of 14

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-00171-SRD-SS

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO ADMIT UNDER FEDERAL RULE OF EVIDENCE 801(d)(2) THE DEPARTMENT OF JUSTICES EXCULPATORY FACTUAL ASSERTIONS CONFIRMING THAT DEFENDANT KURT MIX PERSONALLY PRESERVED AND PRODUCED THE SMOKING GUN DOCUMENTS THAT THE GOVERNMENT USED IN CHARGING BP PLC WITH MAKING FALSE STATEMENTS REGARDING FLOW RATE Just days ago, on November 15, 2012, the Department of Justice (DOJ) filed against BP plc a criminal information (the BP Information) charging BP with, among other things, making false statements about the rate at which oil was flowing or likely flowing from the Macondo Well. Critically relevant to the pending charges against Defendant Kurt Mix, the Assistant Attorney General of the United States on behalf of DOJ and its Deepwater Horizon Task Force made numerous factual assertions in the BP Information that are directly exculpatory of Kurt Mix, and indeed exonerate him. Thus, in a development both belated and dramatic, the Government has now affirmed what the defense has been saying since the day the Government wrongly and precipitously decided to bring this case: Kurt Mix is the last person who deserves to be sitting in federal court on obstruction of justice charges in connection with the Macondo Incident.

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 2 of 14

Specifically, the BP Information includes critical factual assertions that confirm that, far from endeavoring to obstruct justice, and further to all the other indicia of his good faith and cooperative conduct, Kurt Mix expertly generated, carefully preserved, and then, by way of BPs third-party vendor, directly produced to DOJ the veritable smoking gun evidence that DOJ used to charge BP and one of its senior executives with making inaccurate statements to Congress about the rate at which oil was flowing or likely flowing from the Macondo Well. Accordingly, the BP Information is irreconcilable with the charges in this case that Kurt Mix endeavored to obstruct the Governments criminal investigation into whether BP executives had provided the public with false and misleading flow rate estimates.1 This is so for one very simple reason: If Kurt Mix had been endeavoring to obstruct that criminal investigation (that is, had he really been acting corruptly), common sense dictates that he would have destroyed or otherwise tried to conceal the smoking gun evidence against BP, as opposed to personally walking in all of that smoking gun evidence to BPs third-party vendor for delivery to DOJ.2 The BP Information is thus fatal to the Governments ability to prove beyond a reasonable doubt the obstruction of justice charges that it precipitously brought against Kurt Mix. Indeed, the Governments filing of the BP Information begs the question of whether the Government will
1

Although the Indictment against Mix does not specify the subject matter of the grand jury investigation that Mix allegedly sought to obstruct, the Governments criminal complaint and its post-Indictment filings in this case make clear that Mix is alleged to have endeavored to obstruct an investigation into whether BP had misrepresented the rate at which oil was flowing or likely flowing from the Macondo Well. According to the prosecutions proffered chronology, eleven full days elapsed between Defendant Kurt Mixs receipt of an e-mail notifying him that BPs vendor would be collecting [his] documents . . . and all active electronic data and the first of the two charged text message deletions. Indictment, 9 (September 22, 2010 collection notification) and 11 (October 4, 2010 text message deletion). Thus, it is not as if Mix did not have plenty of time to think about what materials he might need or want to destroy if he hoped to be successful in obstructing a criminal investigation into whether BP executives had been intentionally misrepresenting the rate at which oil was flowing from the Macondo Well. 2

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 3 of 14

now own up to its egregious mistake in charging Kurt Mix, acknowledge in this case (and not just the parallel case against BP) that Kurt Mix is the individual who generated and trumpeted the truth, and bring to a close this demonstrably unjust and misguided prosecution. The BP Information also raises troubling questions about the Governments conduct at the recent hearing held before this Court on November 8, 2012. At that hearing, the Government represented by the same prosecution team that was, as we now know, then putting the finishing touches on the BP Information that it would file the following week3 failed to disclose to this Court that, among the documents that Kurt Mix had preserved, organized, and delivered to BPs third-party vendor for production to DOJ were documents that DOJ already had identified as the smoking guns in its criminal investigation into whether BP executives had misled the public and Congress regarding flow rate. Instead, the Government told this Court that Kurt Mixs preservation and production of documents relating to flow rate and Top Kill was irrelevant and had no remote probative value to whether he acted with the requisite corrupt intent when, allegedly, he deleted two stray and substantively inconsequential text message strings from his iPhone. See November 8, 2010 Hearing Transcript, at 96:21-23. In light of the foregoing, and for the additional reasons explained below, the defense hereby requests that the Court deem admissible against the Government under Federal Rule of Evidence 801(d)(2) the exculpatory (indeed, exonerating) representations that the Government made in the BP Information.4

The DOJ attorneys who have entered appearances in this case are Derek Cohen, Richard Pickens, Edward Kang, and Scott Cullen. All four of these attorneys are listed in the signature block of the BP Information. In addition, and in response to the suggestion this Court made at the November 8th hearing, the defense will be filing shortly a proposed protocol by which it may educate the jury that, contemporaneous with Mixs alleged deletions from his iPhone of a pair of isolated text message 3

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 4 of 14

FACTUAL BACKGROUND The BP Information charges, inter alia, that between at least May 4, 2010 and May 24, 2010, BPs top executives unlawfully misrepresented the rate at which oil was flowing from the Macondo Well. See generally BP Information, No. 2:2012-cr-00292, Dkt. #1, at 27-49, 7677. Specifically, DOJ asserts in the BP Information that BP executives consistently maintained in statements to the public and to Congress that a flow rate of 5,000 barrels of oil per day (BOPD) was the best guess estimate while, at the same time, knowingly concealing internal BP information suggesting that the flow rate was considerably higher. Id. at 34. As evidence of BPs misrepresentations, DOJ asserts in the BP Information that, no later than April 22, 2010, BP and its affiliated companies had numerous expert teams assessing . . . flow rate using sophisticated methodologies and that those teams were generating flow rate estimates that were much higher than the 5,000 BOPD figure that BP executives were publicly asserting Id. at 35. More particularly, DOJ asserts that BP subsurface engineers, including Kurt Mix, . . . estimated various release scenarios with potential flow rates ranging from 64,000 to 146,000 BOPD . . . . Id. at 36. According to DOJ, these documents collectively contradicted the 5,000 BOPD estimate that BP executives preferred, id. at 42(d), and, moreover, by no later than May 4, 2010, indicat[ed] that the actual flow not a hypothetical worst case scenario assuming . . . non-existent condition[s] was much higher than [the] 5,000 BOPD figure that BP executives were providing publicly and to Congress, id.

strings, Mix handed over to BPs third-party vendor, for delivery to DOJ, the electronic and hard-copy records he personally preserved and organized that not only (i) fully replicated any substantive content in the allegedly deleted text messages, but also (ii) included the very flow rate calculations and other documents later used by the Government to charge BP with making material misrepresentations to the American public and to Congress regarding flow rate. 4

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 5 of 14

at 46. Thus, DOJ asserts, BP executives chose to conceal from the public and from Congress, inter alia, the flow rate estimates that Mix and his subsurface engineering colleagues had rendered. Id. In addition, DOJ asserts that BP executives allegedly omitted Mixs and the other subsurface engineers estimates from the companys May 17, 2010 written statement to Congress, all in violation of 18 U.S.C. 1505. Id. at 49(h), 76-77 (formal charging paragraphs). As the Government well knows, the subsurface engineers documents described or otherwise referred to in paragraphs 36, 42(d), 46, and 49(h) of the BP Information documents that, according to DOJ, prove BP executives were misleading the American public and Congress when they trumpeted a flow rate estimate of 5,000 BOPD are documents that Kurt Mix created (either individually or as part of a small engineering team), preserved, and then handed over to BPs third-party vendor for production to DOJ.5 In other words, DOJ now concedes that Kurt Mix created, preserved, and caused to be produced to DOJ the very documents that were the lynchpin for DOJs criminal charges against BP and one of its senior executives. In short, the Governments charges against Kurt Mix simply cannot withstand scrutiny; the story the Government initially jumped to tell has now been exposed as fallacious by the very investigative work the Government was obliged but failed to complete before precipitously deciding to charge Kurt Mix.6

For the Courts benefit, the defense sets forth in section III of this memorandum several examples of documents preserved and produced by Mix that appear to be among the critical documents described or otherwise referred to in paragraphs 36, 42(d), 46, and 49(h) of the BP Information. See infra at 10-13. The defense has also attached as exhibits to this filing those illustrative documents. The defense will be filing shortly a proposed protocol for admitting these and other similar documents into evidence at trial.

To be sure, even before the Government filed the BP Information, the criminal allegations against Kurt Mix could not be squared with the fact that Mix consistently and openly shared with 5

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 6 of 14

ARGUMENT The factual assertions that the Government makes in the BP Information confirm that the Governments prosecution of Kurt Mix is unfounded and that, whether through voluntary dismissal, a directed verdict, or a jurys acquittal, Kurt Mix should be exonerated of the obstruction of justice charges against him. Among the documents that the Government identifies in the BP Information as conclusive proof that BP was misleading the public and Congress regarding the Macondo Wells flow rate are the very documents that Mix created, preserved, and then handed over to BPs third-party vendor for delivery to DOJ. In light of this, it is impossible to understand how the Government can continue to claim that Mix sought to obstruct its criminal investigation into whether BP had engaged in such misrepresentations. The admissions that the Department of Justice makes in the BP Information also call into question whether the prosecution team in this case had any good-faith basis for its in limine motion for an order categorically precluding the defense from informing the jury at trial that Mix preserved and caused to be produced to DOJ thousands of Macondo-related records, including documents that essentially replicate the allegedly deleted text messages and, in addition, the smoking gun flow rate documents that the BP Information expressly identifies. More to the point, it appears that the Government filed its oddly timed in limine motion in the hope that, before the BP Information became public, it could secure from this Court an order preventing the jury from learning critical information that lays bare the gaping hole in the Governments case

his BP colleagues, BPs outside counsel, government employees and agents, and DOJ (by way of BPs third-party vendor) the information in his possession regarding flow rate. The BP Information has altered this case in a more fundamental way, however, because it constitutes an admission on the part of DOJ admissible against the Government at trial under Federal Rule of Evidence 801(d)(2) that Kurt Mixs conduct with respect to the Governments criminal investigation into whether BP executives had provided false and misleading flow rate estimates was the very opposite of what one would have expected had Mix actually been seeking to corruptly obstruct that investigation. 6

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 7 of 14

against Mix.7 Even worse, the Government sought this in limine ruling in a vacuum, before the Court was able to see the nature and character of the evidence that might be excluded. The Governments attempt to get the Court to blindly exclude this Brady evidence as legally irrelevant has been exposed by the recently filed BP Information as conduct both improper and indefensible.8 The Government cannot elide the exculpatory statements it made, nor the factual positions it staked out, in the BP Information they are all admissible against the Government under Federal Rule of Evidence 801(d)(2). Furthermore, it is now even more clear that the Government has no colorable basis to deny the defenses right to educate the jury that Kurt Mix preserved and caused to be produced to DOJ the very documents that, had he actually been trying to obstruct a criminal investigation into whether BP had been misleading the public and

It is troubling, to say the least, that the prosecution team was willing to represent to the Court at the November 8 hearing that none of the thousands of Macondo-related records that Mix preserved and handed over to BPs vendor have any relevance to this case when they were surely aware, as signatories to the BP Information, of the factual assertions DOJ would be making in the BP Information filed in the same federal courthouse just one week later. The defense will be filing shortly another supplemental statement in support of its prior Brady motion, which, for reasons that the defense will explain in that supplemental statement, has been further bolstered by the BP Informations revelations. Remarkably, in a brief filed this morning, the Government argues that the BP Information actually undermines the defenses prior Brady motion. See Dkt. #143, at 8 n.6. Essentially, the Governments position is that none of the circumstances surrounding Mixs alleged deletion of the SUPERVISOR and CONTRACTOR strings has any bearing on whether Mix acted with a corrupt intent. See id. at 7 (asserting that whether flow rate information was being shared with the grand jury is the only salient issue in this case (emphasis in original)). As much as it might want to, however, the Government cannot escape its burden on the critical element of intent, and the defense cannot be precluded, as a matter of both fundamental fairness and black letter law, from introducing evidence that undermines the Governments case on the element of intent. 7
8

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 8 of 14

Congress about the issue of flow rate, common sense dictates he would have sought to destroy and conceal.9 I. The Fact That Kurt Mix Preserved and Produced the Smoking Gun Evidence Against BP Not Only Is Relevant, But Also Completely Guts the Governments Case Against Mix. It is perhaps theoretically possible that Kurt Mix corruptly sought to obstruct the Governments criminal investigation against BP by destroying two inconsequential text message strings while, at essentially the exact same time, handing over to BPs third-party vendor for ultimate production to DOJ the smoking gun documents against BP in other words, that Mix really did try to obstruct justice but, by his own hand, was an astonishing failure. But the question presented in this case is not whether it is theoretically possible that defendant Mix committed obstruction of justice. The question is whether Mix is guilty of obstruction of justice beyond a reasonable doubt. Given the Governments recent admissions in the BP Information, it is inconceivable that either of the two obstruction counts against Mix could survive a Rule 29 motion. From the outset of this case, the Government repeatedly has conceded that the pending charges are supported by nothing more than a tenuous chain of timing-related circumstantial inferences. Now, however, the Government has publicly acknowledged that Mix was responsible for producing to DOJ the conclusive, documentary evidence of BPs guilt for which federal
9

Although actual success might not be an element of the offense with which Mix is charged, inherent in the Governments essential allegation that Mix corruptly endeavored to obstruct justice is the notion that Mix must at least have been trying to succeed in his alleged endeavor to obstruct justice. Because Kurt Mixs production to DOJ via BPs vendor of documents highly inculpatory of BP on the flow rate issue is logically inconsistent with the idea that he was trying to obstruct the Government criminal investigation of BP on that issue, Mixs cooperative conduct in this regard necessarily and directly disproves the charges against him. That is why the various hypotheticals that Government counsel posed at the November 8th motions hearing are so manifestly inapposite. See November 8, 2012 Hearing Transcript, at 98:2-12 (illogically comparing the facts of Mixs case to schemes involving false Medicare billings and check kiting). 8

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 9 of 14

prosecutors had been searching. There is simply no way that, on this type of record, a rational jury could find beyond a reasonable doubt that Kurt Mix acted with the requisite corrupt intent when, allegedly, he deleted from his iPhone the two text message strings at issue. This is because between the two competing explanations for the charged text message deletions Mix having made an utterly incompetent attempt to obstruct justice (the criminal explanation that the Government would apparently seek to advance at trial) versus Mix having deleted the text messages either inadvertently or without the requisite corrupt intent to obstruct justice (the innocent explanation) the innocent explanation is by far the more plausible one. Indeed, the innocent explanation is the only plausible one. See, e.g., United States v. Sultan, 115 F.3d 321, 329 (5th Cir. 1997) (holding that stacking assumption upon inference and inference upon mere inference is wholly insufficient . . . to sustain a conviction beyond a reasonable doubt); United States v. Menesses, 962 F.2d 420, 426 (5th Cir. 1992) (holding that a rational jury cannot convict where the evidence gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged). II. The Statements That the Government Made, and the Positions That the Government Took, in the Criminal Information Against BP Are Admissible Against the Government at Trial Under Federal Rule of Evidence 801(d)(2) Federal Rule of Evidence 801(d)(2) provides that an opposing partys statement is admissible as non-hearsay if the statement is one the party manifested that it adopted or believed to be true or was made by the partys agent or employee on a matter within the scope of that relationship . . . . The statements made by the Government in the BP Information plainly qualify for admission under this rule: the statements were drafted by the Governments prosecution team, attested to by the Assistant Attorney General on behalf of both DOJ and its Deepwater Horizon Task Force, and are completely inconsistent with the theory of criminality upon which that very same prosecution team has premised its case against Kurt Mix. See, e.g., 9

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 10 of 14

United States v. Morgan, 581 F.2d 933, 937 n.10 (D.C. Cir. 1978) (Bazelon, J.) (holding that the Federal Rules [of Evidence] clearly contemplate that the federal government is a partyopponent of the defendant in criminal cases). The Department of Justice is not allowed to hermetically seal parallel litigations so that it can take inconsistent positions in each depending on the strategic necessities . . . . United States v. Kattar, 840 F.2d 118, 127 (1st Cir. 1998). In Kattar, the First Circuit held that certain exculpatory factual assertions that DOJ had made in court filings in two prior litigations not involving Mr. Kattar constituted statements in which DOJ had manifested its belief and, under Federal Rule of Evidence 801(d)(2)(B), were thus admissible against the government in its criminal prosecution of Mr. Kattar. Id. at 130-31 (holding that DOJs prior factual assertions were certainly material to the defense, inasmuch as they undercut certain essential factual allegations against Mr. Kattar). Similarly, in United States v. GAF Corporation, the Second Circuit held that the factual assertions that the government made in a bill of particulars in a prior prosecution against GAF Corporation were admissible against the government in its subsequent prosecution of GAF Corporation because they were inconsistent with the governments theory of criminality in the subsequent prosecution. GAF Corp., 928 F.2d 1253, 1260-61 (2d Cir. 1991). The court explained that, unlike an indictment, which is signed by the foreman of the grand jury, a bill of particulars is prepared, reviewed, and presented by an agent of the United States, is signed by the Assistant United States Attorney [trying the case], and is prepared . . . from the governments review of the evidence. Id. at 1261 (calling unavailing the governments suggestion that the [prior-filed] bill [was] not an admission for purposes of Federal Rule of Evidence 801(d)(2)). The same is true of a criminal information. Thus, GAFs reasoning applies

10

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 11 of 14

with equal, if not greater, force with respect to a criminal information especially the BP Information, given the fact that it is signed by DOJs second-ranking attorney and includes in the signature block all four prosecutors who have entered appearances in this case (Messrs. Cohen, Pickens, Kang, and Cullen). Accordingly, this Court should allow the defense to admit into evidence, pursuant to Federal Rule of Evidence 801(d)(2), the Governments admissions in the BP Information that documents Kurt Mix preserved and caused to be produced to DOJ constituted proof sufficient to charge BP with unlawfully providing misleading flow rate estimates to the American public and to Congress. III. The Smoking Gun Documents Described and/or Referred to in Paragraphs 36, 42(d), 46, and 49 of the BP Information are Documents That Kurt Mix Preserved and Produced to DOJ Via BPs Third-Party Vendor. For the benefit of the Court in deciding this motion, the defense has attached as exhibits several examples of the dozens (and perhaps hundreds) of documents preserved and produced by Mix contemporaneous to the charged text message deletions that DOJ plainly identifies in the BP Information as critical smoking gun evidence that BP executives made false statements about flow rate to the public and to Congress starting no later than May 4, 2010. As these documents make clear, Mixs cooperative and good-faith production of his Macondo-related electronic and hard-copy documents to BPs third-party vendor and, through that vendor, to DOJ, is not only relevant evidence, but proof that fatally undermines the Governments case against Mix. The defense intends to move these documents (and others like them) into evidence at trial, pursuant to the proposed protocol that the defense will be filing shortly with the Court: April 22, 2010 E-mail From Kurt Mix to Two BP Well Control Specialists and SUPERVISOR (Exhibit A) In this e-mail, Mix attached the first set of well control simulation results that he performed using specialized software (OLGA). Mix reported flow rates of between 64,000 BOPD and 138,300 BOPD. This e11

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 12 of 14

mail is documentary evidence that supports the critical factual assertions that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. April 23, 2010 Entry from Kurt Mixs Logbook (Exhibit B) In this logbook entry, Mix wrote on April 23, 2010 that the worst case discharge [is] 162,000 bb/day liquid rate. Mix reiterated his high flow rate estimates in two other logbook entries made shortly thereafter. These logbook entries are documentary evidence that supports the critical factual assertions that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. April 25, 2010 E-mail from Kurt Mix to a BP Employee (Exhibit C) In this email, with the subject line Flow modeling summary, Mix included a PowerPoint presentation, showing that, based on OLGA modeling, flow rate ranged between 64,000 BOPD and 146,000 BOPD. This e-mail is documentary evidence that supports the critical factual assertions that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. April 29, 2010 E-mail from Kurt Mix to SUPERVISOR (Exhibit D) In this e-mail, with the subject line Fwd: 042910 Dept. of Interior Well Control Modeling Presentation, Mix included a PowerPoint presentation showing potential flow rates of up to 257,000 BOPD. This e-mail is documentary evidence that supports the critical factual assertions that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. May 7, 2010 E-mail from Kurt Mix to Numerous BP Employees, Including SUPERVISOR (Exhibit E) In this e-mail, with the subject line Top Kill Data and Approach, Mix included a PowerPoint presentation showing potential flow rates of up to 110,000 BOPD and indicating that a flow rate would be below 23,600 BOPD only under conditions highly unlikely to exist. This e-mail is documentary evidence that supports the critical factual assertions that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. May 10, 2010 E-mail from a BP Contractor to Kurt Mix and SUPERVISOR (Exhibit F) In this e-mail, a BP contractor included an attachment that modeled flow rate under various scenarios. According to the model, the lower bound of the potential flow rate range was 37,000 BOPD. May 10, 2010 E-mail from a BP Contractor to Kurt Mix, SUPERVISOR, and Another BP Contractor (Exhibit G) In this e-mail, a BP contractor stated that, based on the video being taken at the sea floor, he did some rough estimations and could not rule[ ] out that the flow out at seabed is in the order of 40 000 BOPD. May 16, 2010 E-mail from a BP Engineer to Kurt Mix Flow Rate Model (Exhibit H) In this e-mail, a BP engineer on Mixs relief well team included a flow rate modeling document, previously sent via e-mail to several other BP employees and contractors, that showed the top flow rate as being 146,000 BOPD and the lowest rate being 69,500 BOPD and stated that the planning team [had] been advised that the investigation of the events associated with the incident clearly points to the higher likelihood of annular flow (i.e., that the oil was not merely flowing up through the drill pipe). This modeling document is documentary evidence that 12

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 13 of 14

supports the critical factual allegations that DOJ made in Paragraphs 36, 42(d), 46, and 49(h) of the BP Information. May 20, 2010 E-mail from a BP Contractor to Numerous BP Employees, Including Kurt Mix (Exhibit I) In this e-mail, a BP contractor stated that the engineering team responsible for staunching the flow of oil from the Macondo Well assumed that flow path [was] unrestricted annular flow from the reservoir to the choke with a maximum flow potential [of] 69,500 bbl/d to the seafloor.

Finally, although it is not described or otherwise referred to in the BP Information, and does not appear in any way inculpatory of BP or any of its employees, the defense draws the Courts attention to a preserved and produced text message exchange between Mix and another BP drilling contractor that occurred late in the day on May 28, 2010, the third and final day of the Top Kill effort. This text message exchange directly refutes the Governments representations to this Court that none of the documents that Mix preserved and produced are identical to the deleted text messages at issue in the Indictment. See November 8, 2012 Hearing Transcript, at 98:13 99:5. The pertinent portion of the preserved and produced text message exchange reads as follows:

SENT SENT

05/28/10 05/28/10

4:56PMCST 6:33PMCST

Wearespankingitbutmudvolumesareanissue. We'redone:BP0,Macondo3

By comparison, the pertinent portion of the allegedly deleted text message exchange with CONTRACTOR, upon which the Government apparently is resting Count Two, reads as follows:

RECEIVED SENT

05/28/10 05/28/10

5:57PMCST 5:58PMCST

ustillatit? Yep,buttakinganotherspanking

13

Case 2:12-cr-00171-SRD-SS Document 144-1 Filed 11/29/12 Page 14 of 14

The defense submits that the preserved and produced text message exchange is essentially identical to the deleted taking another spanking text message exchange that apparently is what underpins Count Two: both exchanges involve BP contractors of similar status, discuss the same issue (Top Kills lack of success), and occur at virtually the exact same time of day on May 28, 2010. CONCLUSION For the reasons stated above, Defendants motion should be GRANTED. Respectfully submitted,

Dated: November 29, 2012

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

14