Tools of the Trade: BP Case Shows Advantage of Pretrial Motions

by Saul Ewing Arnstein & Lehr LLP

In Brief

  • A recent defense victory related to the BP oil spill exemplifies the smart use of a pre-trial motion in limine.
  • Trial counsel should use motions in limine to exclude irrelevant and inflammatory facts.

Defense counsel in white collar cases often face a seeming uphill battle against prosecutors, whistleblowers and other colleagues-turned-government-witnesses. When fighting the war of a criminal prosecution, counsel should strive to win the motion in limine battle. Motions in limine provide an opportunity before trial to limit the government’s ability to introduce irrelevant and unfairly prejudicial evidence. A successful motion also serves to focus the court on the essential elements of the crimes charged and no more. A well-timed strategic motion in limine may also generate positive momentum for the defense in advance of trial.

Defense counsel in the closely watched prosecution of United States v. Kurt E. Mix has employed this tactic to the defendant’s clear advantage. Mix is the first BP engineer whom the government has charged with obstruction of justice in the wake of the infamous 2010 oil leak in the Gulf of Mexico. The allegations stem principally from Mix’s deletion of information from his cell phone before his electronic files were to be turned over to BP’s attorneys. Counsel for Mix has used a motion in limine to successfully bar the government from even mentioning during trial:

  • the 11 deaths resulting from the explosion
  • the size of the spill
  • any potential pre-spill misconduct by BP
  • BP’s guilty plea to criminal charges

The District Court for the Eastern District of Louisiana also ordered that references to the 11 deaths and the size of the spill be stricken from the superseding indictment. See U.S. v. Mix, No. 2:12-cr-00171-SRD-SS, Docket No. 362, at p.2-3 (E.D. La., May 7, 2013).

According to the ruling, the District Court relied on Federal Rule of Evidence 401, which defines “relevant evidence,” to support its conclusion that BP’s pre-spill conduct and guilty plea were both irrelevant and “of no consequence in determining the criminal charges against Mr. Mix” where Mr. Mix’s allegedly criminal conduct occurred “entirely after the explosion.” Evidence Rule 403, which bars the admission of relevant evidence where unfair prejudice outweighs the probative value of the evidence, rendered references to the 11 deaths and the size of the oil spill inadmissible. In contrast, and applying the same Rule 403 balancing test, the District Court found that references to the flow-rate of the oil spill during the response process admissible. The District Court concluded in its ruling that evidence of flow-rate would provide “context for attempting to discern Mr. Mix’s motive and intent” and that the prejudice did not outweigh the probative value of such evidence. Nonetheless, the District Court sided with the defense to the extent that it limited such references “to those made by individuals involved in the response effort who have sufficient expertise to discuss the rate. . .” where flow rate was a bone of contention, according to the ruling.

We should not underestimate the importance of this tactical victory for the defense. The successful motion in limine has left the government with a far more “plain vanilla” obstruction of justice case without troublesome details which would have appealed to the jury’s emotions. Instead, the jury will hear evidence tailored to the elements of the crimes charged. White collar cases often encompass extraneous facts and consequences that cause the conduct at issue to feel inherently punishable to a jury. The Mix case exemplifies such a situation – the act of deleting text messages and emails from the defendant’s cell phone did not cause the spill and the deaths that resulted from the explosion. The defendant’s successful motion in limine will free Mr. Mix from the burden of defending the actions of BP that led to the massive spill and the deaths of 11 men. White collar defense attorneys should consider using the same pre-trial tactic when defending against discrete criminal allegations which are part of a larger web of prejudicial events.

Postscript: At the time of publication, the United States had filed a Second Superseding Indictment. No new counts are alleged, but the superseding indictment adds the allegation that Mr. Mix admitted to deleting some text messages and voicemails. The superseding indictment also reduced the number of text messages that Mr. Mix allegedly deleted.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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