United States v. Brown ( 2002 )

REVISED AUGUST 22, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30771
_______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
CECIL BROWN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans Division
_________________________________________________________________
July 15, 2002
Before KING, Chief Judge, JONES and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Cecil Brown was convicted of extorting money for himself
and former Governor Edwin Edwards from businesses seeking to obtain
state contracts and licenses in Louisiana. Brown argues on appeal
that (1) he was entitled to an evidentiary hearing on his motion to
suppress evidence obtained through electronic surveillance because
the Government used a false or misleading affidavit to procure the
initial wiretap order; and (2) the superseding indictment should
have been dismissed because the Government, in violation of the
Fifth Amendment’s Due Process Clause, engaged in a vindictive
prosecution. Having reviewed the record, we hold that the district
court did not err in denying Brown’s motion to suppress evidence or
his motion to dismiss the indictment. The judgment of conviction
is AFFIRMED.
I. INTRODUCTION
The jury found that, from 1992 to 1997, Cecil Brown acted
as a “front man” for Governor Edwin Edwards in a scheme to extort
money from companies that needed to obtain state approval to
conduct business in Louisiana. Brown would meet with businessmen
and offer to use his influence with the governor to obtain
favorable treatment for their business ventures. The illegal
payoffs, which Brown and Edwards would split, typically were
disguised as consulting fees paid to Brown’s company, Louisiana
Consultants.
The indictment focused on four commercial ventures: the
Coushatta Indian Tribe’s request to operate a casino, a bid on a
municipal waste contract, an unsuccessful attempt to bring a
professional basketball team to New Orleans, and a plan for a
privately funded and operated juvenile detention facility in Jena,
Louisiana. The Jena prison project involved a Texas company,
Viewpoint Development Corporation, whose president was Fred
Hofheinz, the former mayor of Houston, Texas.1 Viewpoint’s
principal negotiator with Louisiana officials was Patrick Graham,
1
Hofheinz pled guilty in November 2000 to misprision of extortion and
was a witness for the Government at Cecil Brown’s trial.
2
who began cooperating with the FBI after he was indicted on
unrelated criminal charges in early 1996.
The jury convicted Cecil Brown on seven counts of
extortion, wire fraud, and interstate travel fraud, in violation of
18 U.S.C. §§ 1962, 1951, 1343, and 2314. Brown was acquitted,
though, on one count of racketeering and one count of interstate
travel fraud. He was sentenced to 51 months’ imprisonment, to be
served consecutively to the 66-month sentence imposed in a related
extortion case involving riverboat casino licenses. See United
States v. Edwin Edwards, et al., No. CR-98-165-B-M2 (M.D. La.).
Cecil Brown raises two issues on appeal. First, Brown
contends that the Government’s case against him rests on an
unlawfully obtained wiretap application. He contends that the
Assistant United States Attorney who requested the initial wiretap
order misled the district court as to (1) the trustworthiness of
Patrick Graham, the Government’s cooperating witness, and (2) the
content of consensually-taped conversations between Graham and
Brown. Brown thus asserts that the evidence obtained via the
wiretap should have been suppressed and, at a minimum, he was
entitled to an evidentiary hearing on his motion to suppress
evidence.
Second, Brown contends that the Government vindictively
added the racketeering count and additional allegations of illegal
conduct after the district court granted Brown’s motion to dismiss
the original indictment because of a Speedy Trial Act violation.
3
Brown argues that the Government’s decision to increase the number
and severity of charges denied him due process of law and,
consequently, that the superseding indictment should have been
dismissed.
The district court considered Brown’s arguments and
denied his motions to suppress the evidence obtained from the
wiretap and to dismiss the superseding indictment. Finding no
error, we affirm the judgment.
II. THE WIRETAP ORDER
A. The Franks Standard
Cecil Brown contends that the FBI agent’s affidavit
supporting the Government’s application for a wiretap order was
insufficient to establish probable cause. According to Brown, the
affidavit contained “a series of misrepresentations and material
omissions” designed to give a false impression of both the
reliability of the Government’s confidential informant and the
quantum of evidence the Government already had gathered. Brown
argues that the district court erred in denying his request for an
evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154,
98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and also in failing to
suppress the evidence gathered through electronic surveillance.
With respect to Franks hearings, we have held that a
defendant is entitled to an evidentiary hearing on a motion to
suppress evidence if he shows that (1) allegations in a supporting
4
affidavit were deliberate falsehoods or made with a reckless
disregard for the truth, and (2) the remaining portion of the
affidavit is not sufficient to support a finding of probable cause.
United States v. Dickey, 102 F.3d 157, 161-62 (5th Cir.
1996)(citing Franks, 438 U.S. at 171, 98 S.Ct. at 2684); see also
United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir. 1991).
The second prong of the test, however, is often determinative:
“Even if the defendant makes a showing of deliberate falsity or
reckless disregard for the truth by law enforcement officers, he is
not entitled to a hearing if, when material that is the subject of
the alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a
finding of probable cause.” Dickey 102 F.3d at 161-62; United
States v. Privette, 947 F.2d 1259, 1261 (5th Cir. 1991).
The district court concluded that Brown was not entitled
to a Franks hearing and denied Brown’s motion to suppress evidence
gathered through electronic surveillance. The wiretap order at
issue here led to three separate prosecutions, and the defendants
in each case raised nearly identical motions to suppress. District
Judge Frank Polozola set out at length his reasons for denying the
motion in the riverboat license extortion case, in which Cecil
Brown was a codefendant. See United States v. Edwin Edwards, et
al., 124 F. Supp. 2d 387, 393-400 (M.D. La. 2000). Then, in a case
involving criminal tax violations by an Edwards associate, District
Judge Carl Barbier independently reviewed the record and adopted
5
Judge Polozola’s findings when denying Martin’s motion to suppress.
See United States v. Andrew Martin, 169 F. Supp. 2d 558, 566-67 (E.D.
La. 2001)(criminal tax violations). And in this case, then-
District Judge Edith Brown Clement reviewed the materials and
adopted Judge Polozola’s findings as her own.
This court reviews the denial of a Franks hearing de
novo. Dickey, 102 F.3d at 62.
Brown’s allegations of false or misleading statements may
be grouped under two headings. First, he says that the Government
relied heavily on a cooperating witness, Patrick Graham, whom the
Government knew was completely untrustworthy. Second, Brown
contends that the Government misrepresented what was actually said
during consensually recorded conversations between Graham and
Brown.
B. Patrick Graham’s Reliability
The Government’s application for a wiretap order was
supported by the affidavit of FBI agent Freddy Cleveland. Agent
Cleveland stated that the facts and circumstances showing probable
cause were developed through a “cooperating witness” (or “CW”), who
was later identified as Patrick Graham. In his affidavit, which
was dated June 26, 1996, Agent Cleveland began his discussion with
the following statement:
The CW has provided information to Special Agents of the
FBI since April 30, 1996. Since his cooperation with the
FBI, he has never been known to provide false or
misleading information. The CW has made numerous
consensual telephone and body recordings with CECIL
6
BROWN, which have verified portions of the information
set forth in this affidavit. A review of the various
records pertaining to the CW reveals that on March 20,
1996, a District Court Grand Jury in Harris County, Texas
indicted the CW for one (1) count of Money Laundering and
one (1) count of Theft by Sting. This matter is pending
and is scheduled for trial on July 29, 1996. The CW is
also the target of a federal tax and corruption
investigation in the Houston, Texas area, currently being
handled by the FBI and the IRS in conjunction with the
United States Attorney’s Office.
In spite of the agent’s disclosure of the pending criminal charges
and investigation, and the Government’s corroboration of much of
what Graham had told them, Brown contends that the Government
deliberately misled the district judge (Judge Donald Walter) as to
Patrick Graham’s trustworthiness.
Brown argues that the Government did not believe that
Graham was even minimally trustworthy. Brown’s primary argument on
this point is based on a statement made in different court
proceedings by the same Assistant U.S. Attorney who had applied for
the wiretap order. In a bankruptcy proceeding in Texas in
September 1996 -- which involved Patrick Graham’s brother’s wife --
the AUSA told the court that “the Grahams” are not credible: “[T]he
things that we’re not able to independently corroborate, we believe
are lies. And that’s the way it has to be when you deal with the
Grahams.” As Brown admits, the AUSA made this statement nearly
three months after he had obtained the wiretap order. Even if we
assume that the later statement accurately reflects the
Government’s view of Patrick Graham’s credibility as of June 1996,
we do not believe that Agent Cleveland’s affidavit falsely implied
7
that Patrick Graham was trustworthy. As noted above, the affidavit
recites the various charges brought against Graham (although Brown
complains that the “sterile recitation” of pending charges did not
adequately reveal the extent of Graham’s criminal nature). And
immediately after stating that Graham had not been known to provide
false or misleading information, Agent Cleveland emphasized that
the FBI had made “numerous consensual telephone and body
recordings” that corroborated significant aspects of Graham’s
story.
In sum, the affidavit provided to Judge Walter contains
enough information with respect to Graham’s reliability for the
judge to make a proper ruling on the question of probable cause.
Brown has failed to show that the allegations in Agent Cleveland’s
supporting affidavit were made “with a reckless disregard for the
truth” and for the purpose of bolstering Patrick Graham’s
credibility. Brown thus does not meet the standard set forth in
the first prong of the Franks test.
Moreover, even if we assume arguendo that Patrick Graham
could not be trusted, and we set to one side all the allegations
that are not independently corroborated, the affidavit still
contains enough evidence to establish probable cause to believe
that a crime was being committed.
Patrick Graham’s narrative, reduced to its essentials,
may be summarized as follows: In mid-1992, Graham and several of
8
his business partners began lobbying for the right to develop a
juvenile detention center in Jena, Louisiana. To secure political
support for the project, Graham arranged a meeting with Cecil
Brown, a friend of Governor Edwards. After several false starts,
Graham thought he had obtained financing for the Jena project.
Graham asserted that Governor Edwards agreed to pressure Richard
Stalder, the director of the Louisiana Department of Corrections,
to enter into a “cooperative endeavor agreement” with Graham. In
return, Graham agreed to pay Edwards and Brown $2.5 million.
Graham claims that he made a $245,000 cash payment in 1994. Then,
Graham and Brown (in FBI Agent Cleveland’s words) signed “a
contract for services, dated December 1, 1994, to account for
[$600,000 in cash] given to BROWN. A copy of the contract has been
provided to FBI agents by the CW.” FBI agents also obtained a copy
of the agreements between Graham and the Louisiana Department of
Corrections. The date when the state officials approved the
project corresponds to Graham’s account of when Edwards was
lobbying on his behalf.
In late 1995, Graham and his partners agreed to sell
their interest in the Jena prison project to a Houston attorney
(Douglas Bech) for $4.8 million, including $1.3 million owed to
unnamed “creditors”. Graham asserts that the $1.3 million
represented the remainder of the money owed to Brown and Edwards.
Graham expected that the sale would be finalized in the summer of
9
1996. FBI agents obtained a copy of Viewpoint Development’s
contract with Bech and confirmed the numbers Graham had given them.
By early 1996, Graham had been indicted for two criminal
offenses and was under investigation by the FBI. Graham began
cooperating with the FBI on April 30, 1996, and with Graham’s
consent, the FBI began taping telephone and in-person conversations
between Graham and Brown.
During the May 8th conversation, Brown and Graham talked
about the remaining money that Graham’s partners owed. Graham and
Brown tried to negotiate the exact amount. Graham said, “Now what
I have given you all so far totals up to by the time you figure the
tax, you know, it was cash. By the time you figure the tax, it’s
like a million dollars. So you offset. That leaves a balance of
1.5.” Brown responded, “All right.” A little later in that
conversation, Brown said that unless he received $1.7 million
during the closing, they would have “problems.” The parties failed
to reach a definite agreement, but Brown suggested that Graham “put
to paper everything that was paid to date.”
From May 9 to May 13, 1996, FBI agents recorded (again
with Graham’s consent) three telephone conversations, the essence
of which was that Graham and Brown would meet in person to “go over
the figures.” On May 29, Graham and Brown met at a crawfish boil
at Brown’s house. At the FBI’s direction, Graham prepared a memo
regarding the two payments -- $245,000 and $600,000 in cash --
already made to Brown. The FBI also recorded the conversation,
10
which included references to the memo. Brown suggested that he
would talk to “our friend” (whom the Government believes was Edwin
Edwards), and a court-authorized “pen register” revealed a
telephone call from Brown’s residence to Edwards’s residence on May
30th.
On June 7, FBI agents again recorded a telephone
conversation between Brown and Graham. Brown said that he had
discussed the specific numbers with their “friend” the day after
the crawfish boil. Brown then demanded more money and suggested
that the Department of Corrections might hold up the Jena project.
Graham and Brown agreed to meet again. At this point, the
Government prepared to request a wiretap for the telephones in
Brown’s house and business.
Having reviewed the information contained in the
affidavit, we will focus on the allegations that are either
undisputed or corroborated. It is undisputed that Graham and his
partners were seeking state approval to proceed with the Jena
prison project. The memorandum that Graham prepared and Brown
tacitly approved indicated that Graham had already made two
payments totaling $845,000 to Cecil Brown in December 1994.
(Graham and Brown later suggested that these cash payments were
equivalent to more than $1 million before taxes.) Shortly after
the $600,000 payment was made, state officials entered into a
cooperative endeavor agreement with Graham and his partners. More
than a year later, when Venture Development was selling its
11
interest in the project, the purchase price included a $1.3 million
payment for unnamed creditors. On the recorded conversations,
Graham and Brown emphasized that they wanted to keep “Edwin” or
“our friend” happy because he still had the ability to put the
project on hold. Graham and Brown also discussed the money that
had been paid thus far and how much more was owed. Brown told
Graham that he had to consult with “him,” and a pen register
indicated that a call was placed from Brown’s residence to
Edwards’s residence the following day. Brown then suggested that
the Jena project would be in trouble if Graham and his partners
could not pay more money.
To be sure, there are many allegations in the affidavit
that are not independently confirmed. Graham told the FBI that he
had met with Edwin Edwards several times personally, that Edwards
had set the $2.5 million price, and that he saw Brown leave the
$245,000 and $600,000 cash payments in Edwards’s office in the
Governor’s Mansion. These allegations are reported in FBI Agent
Cleveland’s affidavit, but they are not corroborated. Even if we
assume that Graham cannot be believed, and we exclude all
allegations that are not corroborated, the affidavit still contains
sufficient information to establish probable cause to believe that
a crime had been committed or was being committed. In our view,
12
the recorded conversations independently corroborate the salient
aspects of Patrick Graham’s story.2
C. The Recorded Conversations
In a similar vein, Brown contends that FBI Agent
Cleveland’s interpretation of the taped conversations was made with
reckless disregard for the truth. Specifically, Brown argues that
the Government assumed that Graham and Brown were referring to
Edwin Edwards even when they did not call him by name. Brown
contends that the Government used “very selective excerpts” from
the recorded conversations to suggest that Edwards (and not Brown)
was receiving most of the money. Thus, in Brown’s view, if the
Government had provided an accurate rendition of the recorded
conversations (that is, one that did not rely on Graham’s
background information), a district judge likely would have
interpreted the recorded conversations as a discussion of a
legitimate consulting arrangement instead of a scheme to extort
money. Brown’s argument is without merit.
The best way to address this issue is to recount in
greater detail the recorded conversations. The first conversation
takes place on May 8, 1996, as Patrick Graham and Cecil Brown are
2
Brown also asserts, with little elaboration, that the district court
could not adequately assess Patrick Graham’s reliability because the Government
failed to disclose “the many benefits” Graham would receive from his cooperation.
The Government had agreed, for example, not to use any of the volunteered
information against Graham and to inform the sentencing judges in the other cases
about Graham’s assistance. Brown’s argument is without merit. Not only are
these benefits unremarkable, but the consensually recorded conversations
corroborated Graham’s story.
13
driving through Louisiana. Brown says that he needs money and
wants assurances that he will receive half of the agreed-upon price
($2.5 million plus another $1 million for a related deal) when
Graham and his partners sell their interest in the Jena prison
project. Graham tries to assure Brown that the deal will be closed
soon. Graham then emphasizes “one thing”:
PG: I want EDWIN to be comfortable, okay? I can’t
afford anything to go wrong on this deal. All
right? So, we’ve got to get him, whatever that
portion is covered first. . . . I’m not gonna drag
you out more than 90 days on yours. Okay?
CB: Yeah.
PG: I just don’t . . . ah, you know, you never have
told me what the . . . the . . . the sharing ratio
is.
CB: He doesn’t get any. I get it all. I want half
right away.
PG: Okay. Hey, say whatever you want to . . . .
CB: Uh huh.
PG: . . . but I mean [don’t?] be cavalier about this
CECIL.
CB: Okay.
PG: But if . . .
CB: Nothing’s gonna go wrong with this deal. I just
want half of my money right away to cover some
obligations I have.
PG: I understand. I understand.
CB: Okay.
PG: And I need to get your obligations. I need to be
assured. . . .
CB: And then I want. . . .
PG: . . . that your obligations are covered.
CB: Right.
PG: That’s what I want.
CB: And then I want a little bit. . . . I want a little
bit of my other half. . .
PG: I understand.
CB: . . . also at closing. And I’m not talking about
much there.
Before proceeding further, we should emphasize that (as Brown
correctly points out) Agent Cleveland’s affidavit omitted Brown’s
14
statement that Edwards “doesn’t get any” of the money. It would
have been preferable, of course, to bring this fact to Judge
Walter’s attention. However, we agree with Judge Polozola’s
conclusion that Brown’s denial of Edwin Edwards’s “‘take’ of the
proceeds of this transaction in one particular excerpt does not
negate the additional information in the record regarding potential
criminal payoffs.” Edwards, 124 F. Supp. 2d at 400. In fact, the
context of this excerpt suggests that Brown’s denial cannot be
taken at face value: After stating that he gets “all” the money,
Brown immediately says that all of the first payment will go to
cover “obligations.” Graham, who had just said he wanted to be
sure that Edwin Edwards got his portion, then rephrased his
concern: “I need to be assured . . . that your obligations are
covered.” The more plausible reading of this particular passage is
that Edwards would be receiving -- through Cecil Brown -- most, if
not all, of the initial payment of $1.7 million. This
interpretation is made even stronger by remarks made later in that
same conversation.
Brown and Graham then make their first attempt to clarify
how much money was owed. Brown tells Graham that eventually they
need to “put a pencil to paper.” Patrick Graham’s position was
that the total money owed was $3.5 million; that he had already
paid the equivalent of $1 million to $1.2 million in cash; that
$1.7 million would be paid to Brown when the deal in Texas went
through; and that Graham’s partners in Texas wanted him to re-
15
negotiate the remaining money owed. Brown’s primary concern,
however, was getting the $1.7 million as soon as possible.
PG: I know you’re always broke and I need to know your
. . . your share . . . but what I need to know is
what is it that we have to come [up] with to
satisfy our friend to make sure that . . . the
worst that can happen CECIL, is a project go bad
even after you get funded and everybody gets . . .
we can’t be cavalier and say . . .
CB: Unh-unh. Unh-unh.
PG: This is great. He’s out of office. There’s . . .
there’s no risk anymore. I’m telling you. . . .
CB: If . . . if I don’t get 1.7 at closing . . . if . .
. if my company, LOUISIANA CONSULTANTS, doesn’t get
1.7 at closing. . .
PG: Um hum.
CB: . . . ah
PG: Then we’ve got a problem.
CB: We’ve got problems, okay.
There can be little doubt that “our friend” in this context means
Edwin Edwards. Not only was Edwards the sole topic of conversation
up that point, but the reference to being “out of office”
reinforces the point: Edwards’s term as governor had ended in
January 1996, four months before this conversation. Patrick Graham
repeated this point moments later: “I know he’s out of office now
[. . .], but we don’t want anything to go wrong.”
In addition to the unmistakable references to Edwards,
this passage is also important because it confirms that the $1.7
million would be paid to Louisiana Consultants. As noted above,
Cecil Brown was doing business as Louisiana Consultants, so that
any payment to the company was essentially a payment to Brown
personally.
16
The conversation then returns to Brown’s need for money
at closing. Brown says, “if I were you,”
CB: I would be prepared at closing to pay me 1.7, and .
. . and I . . . and I need a few dollars. I need a
. . .
PG: Okay. So what you’re saying is, the 1.7 is not
gonna satisfy you. We need something over that to
get you happy.
CB: Please.
Graham warns Brown not to take any of the $1.7 million payment for
his own use. According to Graham, the other partners in Viewpoint
Development needed to be reassured that the payment at closing
would not go directly to Brown. In the end, Graham agrees to
deliver some money in addition to the $1.7 million at closing on
one condition:
PG: [. . .] as long as we can make the agreement CECIL
that you’re not gonna take from his ah, and create
a problem for this thing. I will . . . I will go
back and tell my partners that, okay, we need to
come up with half of it to cover ah, all our
obligations so that ah, ah . . . let me tell you.
He’s got the ultimate hammer. CECIL, he’s got the
ultimate hammer. All he’s got to do is make phone
calls and stop the legislature . . .
CB: Huh. Huh.
PG: . . . from funding this thing, and that’s Texas all
over. That’s the problems I had in Texas. You
don’t need it and I don’t need it. I mean, you’ll
have everybody investigating everything. (Pause)
CB: I need 1.7 at closing for LOUISIANA CONSULTANTS.
And can you let me have ah . . .
PG: What?
CB: A couple of hundred thousand?
PG: Okay.
It is clear that the $1.7 million is earmarked for someone other
than Cecil Brown and that this unnamed person has the power to
squelch the Jena prison project by pressuring state legislators.
17
Just a few seconds later, Brown confirms his
understanding of the new arrangement.
CB: The 1.7 I believe, we . . . we do that at closing.
That’s cut and dry. Am I correct?
PG: Okay. And . . . and that you can’t touch. That’s
not yours. That goes to obligations. We’ve got to
come up with another hundred thousand to . . . to
make . . . that you can keep to take care of what
you get.
CB: [. . .] Hell yeah. I can do that.
Patrick Graham again warns Brown not to keep the $1.7 million.
Graham then says that his partners are afraid that Brown will keep
some of the money. But, Graham tells Brown, “you and I know
different. Ah, ah, you know, we talked about it before. I think
the bastard rapes and pillages you, but that’s, you know, that’s
your relationship. I don’t get into it.”
Brown became rather angry at this point. Raising his
voice, he says
CB: [. . .] At closing make sure that I have ah, 1.7
paid to LOUISIANA CONSULTANTS plus a hundred
thousand dollars to get me out of a crack.
PG: Okay.
CB: And then after that every 30 days ah, it . . . it
don’t have to be a hundred thousand dollars every
30 days. I just want to make sure that I get my
money.
PG: Please assure me CECIL that you’re not gonna step
on that and keep it. It just concerns the shit out
of me.
CB: Don’t let it. I know what I’m doing. You think I
would . . . I would take a chance at queering this
deal where it is now? How long have we waited?
How long have we worked?
PG: Now CECIL, I’m telling you. I’m . . . I’m telling
you. I just want him happy. Okay? I want your
assurance that you’ll do what it takes to get him
happy. Okay?
18
After a short pause, Graham asked Brown if he had briefed “him” on
the status of the project. Brown replies that “he” knows about the
details, and Graham immediately changes the subject and asks if
“he” had fun in Colorado. The two men then talk briefly about
Governor and Mrs. Edwards’s recent ski trip to Colorado.
Graham then returned to the topic of how much money had
already been paid. Graham reminded Brown that he had already
delivered “two large bundles of . . . of green money.” The “before
tax equivalent” of the cash payments, Graham explained, was
anywhere from $1 million to $1.2 million, “depending on how you do
your tax math.” When the $1.7 million due at closing was factored
in, that left a balance of $600,000 to $800,000. Brown and Graham
quibbled for a while over how much had been paid and how to
calculate the balance. Graham demanded, “Give me credit for what
I’ve already paid.” Brown said he wanted to know the exact
balance: “That’s the number I need to know.”
CB: Because I want to know what I’m getting.
PG: I understand, because that remains with you. I am
appreciative of that and I’m sensitive to it.
CB: And if you need some of that . . .
PG: I want you . . .
CB: . . . some of that that’s coming to me, that’s
fine, because you got me here in the first place.
PG: No. No.
CB: But do not flirt with that other motherf***er. Do
not.
Brown reiterated that he needed to know “the second number” (i.e.,
the $600,000 to $800,000 balance) soon, and that he did not want to
negotiate that number downward.
19
Graham then told Brown to “let me know how your
discussions go tomorrow.” It is not obvious who Brown was
scheduled to meet with, but Graham warned Brown, “Don’t piss him
off.” Brown called Graham back on May 9th to say that he “had a
discussion with him . . . . [and] got some directions what I need
to do. . . . I’m directin’ to get ah all of my money.” The two
men agreed to sit down and talk more about the balance owed.
At a May 29th crawfish boil, Graham wrote on a sheet of
notebook paper what he and his partners were proposing. Graham
calculated that they had already paid in cash the equivalent of
$1.2 million. Graham wrote that they would pay the “1.7 due at
closing, plus $100,000.” Because a side deal had fallen through,
Graham and his partners were not willing to pay the full $3.5
million they had previously agreed upon. Brown was not pleased
with this offer, but Graham insisted that he “sit down with the man
and go over it and I want you to come back and tell me, PAT, that’s
okay, or no, we gotta negotiate some more.”
About a week later, Graham called Brown and said, “I know
you didn’t have time to uh, uh, to discuss anything with our friend
about those numbers.” Brown said that he had spoken to him “the
very next day” after the crawfish boil. (As noted above, a court-
ordered pen register indicated that a call had been placed from
Brown’s residence to Edwards’s residence the evening after the
party.) Brown accused Graham of “trying to pay me a hundred
thousand when I feel you owe me a million.”
20
Graham said that he understood that Brown was not happy
about receiving only $100,000, but he emphasized,
PG: I just want uh, uh, certain parties, we need our
friend to be happy on the front side, that’s all,
um, my goal is. I could make you happy.
CB: I’m sure he’s happy.
PG: Okay.
CB: You know he ought to be.
PG: I understand. (Laughter)
CB: I’m not happy.
Brown said that he had “ask[ed] him to do something about it.”
CB: Have you not gotten a call yet?
PG: No.
CB: Okay, you will.
PG: Alright, is he gonna call me?
CB: No, uh, probably Stalder [the secretary of the
Louisiana Department of Corrections].
There is no indication whether Graham received a telephone call,
but the import of this threat is clear: The Louisiana Department of
Corrections could delay the Jena prison project; and if Graham and
his partners wanted their sale to proceed as planned, they should
consider increasing the money paid directly to Brown.
In their final conversation before the Government’s
decision to seek a wiretap order, Brown and Graham again failed to
reach an agreement. Graham says, “We’re gonna make him happy.
Okay?” Brown counters that “He, ah my lawyer says I’m stupid” for
trusting Graham and his partners. Graham became angry:
PG: I wish you’d throw right back at that son of a
bitch that he’s gone to the bank hundreds of
thousands of [. . .] dollars on me.
CB: I’m worried about Cecil. I ain’t worried about
him.
PG: Okay.
21
CB: Oh, he’s gone to the bank a million times[. . . .]
But that don’t help me.
Graham tries to assure Brown that they can work something out to
get him more money up front. But in the end, Graham returns to his
main theme:
PG: [A]ll I want is I don’t want it to blow up and all
I want to do is keep him happy because you and I we
can get him happy, then you and I can make some
money in the long run. Okay?
CB: Have you, ah, ah, my lawyer has met with ah I’m
surprised you didn’t get a call yet. But maybe you
will or maybe he tried and maybe they talked again.
Graham ended this conversation, as he often did, by telling Brown
not to worry and to trust him.
Having reviewed these recorded conversations, we conclude
that the Government reasonably believed that the $1.7 million paid
by Viewpoint Development was going to Edwin Edwards and that
Edwards (at Brown’s request) was willing to use his influence to
increase the share paid directly to Brown. In other words, when
FBI Agent Cleveland deduced that “our friend” and “him” referred to
Edwin Edwards, those allegations were not made with reckless
disregard for the truth. We agree with the three district judges
who have considered this issue before and hold that the allegations
in the affidavit, which accurately summarized the recorded
conversations, support a finding of probable cause. Therefore,
Cecil Brown was not entitled to a Franks hearing on his motion to
suppress the evidence.
III. VINDICTIVE PROSECUTION
22
The second issue on appeal is whether the district court
erred in not dismissing the superseding indictment on the grounds
that the Government was engaged in a vindictive prosecution in
violation of the Fifth Amendment’s Due Process Clause. As noted
above, Brown contends that the Government vindictively added a
racketeering count and an additional allegation of illegal conduct
after the district court granted Brown’s motion to dismiss the
original indictment because of a Speedy Trial Act violation.
Addressing this issue requires a more detailed review of
the procedural history of the case. A grand jury for the Middle
District of Louisiana returned the original indictment against
Cecil Brown in November 1999. A year later, for reasons not
germane to this appeal, the Fifth Circuit reassigned the case to
the Eastern District of Louisiana. The district court, with the
approval of both parties, continued the trial until February 2001
in order to allow defense counsel additional time for preparation.
In December 2000, Cecil Brown moved to dismiss the
original indictment, citing violations of the Speedy Trial Act.
The district court conducted a conference by telephone on December
20, 2000. According to Brown’s attorney, the Assistant U.S.
Attorney threatened that if Brown prevailed on the Speedy Trial Act
motion, the government would seek a new indictment.
In January 2001, the district court granted Brown’s
motion to dismiss the original indictment. United States v. Brown,
2001 WL 13337 (E.D. La.). As he had indicated before, the AUSA
23
quickly obtained a new indictment that included allegations of
extortion involving the Coushatta Indian Tribe as well as a new
count for violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO) and a notice of forfeiture under RICO.
Shortly before the case went to trial in March 2001,
Cecil Brown moved to dismiss the superseding indictment on the
grounds that the Government’s decision to bring additional charges
amounted to prosecutorial vindictiveness in violation of Brown’s
rights guaranteed by the Due Process Clause of the Fifth Amendment.
See Blackledge v. Perry, 417 U.S. 21, 25-27, 94 S. Ct. 2098, 2101-
02, 40 L. Ed. 2d 628 (1974). The district court denied Brown’s
motion to dismiss the superseding indictment.
We review the district court’s factual findings
concerning prosecutorial vindictiveness for clear error and its
legal determinations de novo. United States v. Johnson, 91 F.3d
695, 698 (5th Cir. 1996).
“If the defendant challenges as vindictive a
prosecutorial decision to increase the number or severity of
charges following a successful appeal, the court must examine the
prosecutor’s actions in the context of the entire proceedings.”
United States v. Krezdorn, 718 F.2d 1360, 1364 (5th Cir. 1983) (en
banc). And, as Judge DeMoss succinctly put it, “if there is any
indication that the prosecutor had a legitimate reason . . . for
increasing the charges, then no presumption of vindictiveness is
24
created.” United States v. Aggarwal, 17 F.3d 737, 744 (5th Cir.
1994)(citing Krezdorn, 718 F.2d at 1364).
The context of the entire proceedings includes the timing
of the prosecutor’s decision. Johnson, 91 F.3d at 698. While the
general standard articulated in Krezdorn makes no distinction
between pre-trial and post-trial decisions, the Supreme Court has
observed that “a change in the charging decision made after an
initial trial is completed is much more likely to be improperly
motivated than is a pretrial decision.” United States v. Goodwin,
457 U.S. 368, 381-82, 102 S. Ct. 2485, 2492-93, 73 L. Ed. 2d 74
(1982). Many of our cases, including Krezdorn, have involved new
indictments following a successful appeal by defendants. The
reason is apparent: By the time a case has been tried, the
Government has discovered and assessed all the relevant information
and has reached a decision about the extent to which the defendant
should be prosecuted. A pre-trial change in the indictment (e.g.,
following the rejection of a plea agreement) is less likely to be
deemed vindictive: “In the course of preparing a case for trial,
the prosecutor may uncover additional information that suggests a
basis for further prosecution or he simply may come to realize that
information possessed by the State has a broader significance.”
Goodwin, 457 U.S. at 381-82, 102 S.Ct. at 2492-93.
Krezdorn suggests that we employ a burden-shifting
framework for evaluating prosecutorial vindictiveness claims.
“Absent a presumption of vindictiveness . . . , the defendant must
25
prove that the prosecutor’s conduct was actually vindictive.”
Johnson, 91 F.3d at 698.
Applying these principles, the district court found no
indication that the prosecutor was acting vindictively.
First, as the district court pointed out, one should not
read too much into the fact that 13 months passed between the time
of the original indictment and the time when the RICO charge and
Coushatta allegations were added. The court found that the
Government originally indicted Cecil Brown to avoid potential
problems with the statute of limitations and that the Government
allowed the case to lie dormant until it had first tried the
related cases involving Governor Edwards and Insurance Commissioner
Jim Brown. When viewed in the light of these facts, “the apparent
dilatoriness in the change of the original charge evaporates.” The
fact that the indictment could have been amended earlier to include
a RICO count and allegations of fraud involving the Coushatta
Indian Tribe’s casino deal is not probative.
Second, the district court found that the Government had
already decided to seek a new indictment before Brown moved to
dismiss on Speedy Trial Act grounds. The AUSA filed a statement
explaining why he thought there was a potential defect in the
travel fraud counts in the original indictment. Moreover, the
Government wanted to seek a forfeiture and to bring in evidence of
the Coushatta Tribe casino deal. The Government believed that the
RICO count would address these problems, and the district court
26
accepted this explanation as true. The prosecutor’s explanation is
further supported by the fact that the Government had filed a
motion to admit (under Fed. R. Evid. 404(b)) evidence of the
allegations involving the Coushatta Tribe before Brown filed his
motion to dismiss for Speedy Trial Act violations.
Third, the district court reasoned that Brown’s assertion
of his rights under the Speedy Trial Act was not consequential
enough to provoke a vindictive response. The district court
informed the parties that, if she found a violation of the Speedy
Trial Act, she would dismiss the indictment without prejudice
because of the unusual circumstances of the case. As the dismissal
was without prejudice, and the prosecutors could not have been
inconvenienced by Brown’s motion (which was pending for less than
a month), the district court thought it “extremely unlikely that
the prosecutor would feel the need to ‘punish a pesky defendant for
exercising his legal rights’” (citing Goodwin, 457 U.S. at 384, 102
S.Ct. at 2494).
Finally, the district court rejected Brown’s argument
that the AUSA’s statements during the telephone conference
constitute direct proof of actual vindictiveness. During this
conference, the AUSA indicated that he would seek additional
charges if the motion to dismiss the original indictment were
granted. And, of course, when the original indictment was
dismissed, the Government carried through on its promise. However,
in her order denying the motion to dismiss, the district court
27
emphasized that she was on the line during the discussions and that
“the Court did not perceive the prosecutor’s statements as a
threat.” The district court found that “the prosecutor was merely
giving Brown fair warning that, if forced to reindict, he would
cure perceived deficiencies in the original indictment that he
might not have been allowed to correct had trial proceeded as
scheduled.”
Brown has failed to show why the district court’s factual
findings in this matter are clearly erroneous. Brown insists that
the AUSA explicitly tied his decision to seek a harsher indictment
to Brown’s assertion of his rights under the Speedy Trial Act.
Also, Brown argues that the AUSA knew about the Coushatta
transactions as early as July 1996, and there was no reason for not
including them in the indictment. Even if we accept Brown’s
assertion on this point, it is not disputed that the Government had
planned to introduce the Coushatta allegations at trial and that
the Government had filed a Rule 404(b) motion before Brown filed
his motion to dismiss.
In sum, the district court did not err in concluding that
no presumption of vindictiveness arises in this case. The
Government’s decision to add the new charges and allegations was
motivated a non-vindictive purpose, namely, to strengthen the
Government’s case.
IV. CONCLUSION
28
For the foregoing reasons, the judgment is AFFIRMED.
29
KING, Chief Judge, specially concurring:
With one small exception, I concur fully in Judge Jones’s
excellent opinion for the panel. The exception relates to whether
the Government effectively misrepresented Patrick Graham’s
credibility to the district judge when the agent said, in his
affidavit, that “[s]ince his cooperation with the FBI, he has never
been known to provide false or misleading information.” The agent
provided information (about pending indictments and a pending
federal tax and corruption investigation of Graham) to the district
judge that would put the judge on notice that Graham was
potentially untrustworthy. Nevertheless, on the basis of Brown’s
offer of proof, the district judge may not have been fully advised
(as he should have been) of what may have been the Government’s
well-founded conviction that Graham was, in fact, untrustworthy.
But, as Judge Jones has clearly established, even if we assume
arguendo that the Government was not truthful or sufficiently
forthcoming on the matter of Graham’s lack of trustworthiness and
we set aside all the allegations that are not independently
corroborated, the affidavit still contains enough evidence to
establish probable cause to believe that a crime was being
committed.
30
DENNIS, Circuit Judge, concurring in the judgment and in Parts I,
III, and IV of the court’s opinion, and specially concurring in
Part II:
In my judgment, Brown satisfied the first prong of the Franks
v. Delaware3 test by showing that information was omitted from the
warrant affidavit with intentional or reckless disregard for the
truth. I concur in the judgment of the court, however. When the
material that was intentionally or recklessly omitted is added, and
Patrick Graham’s uncorroborated statements are set aside, there
remains sufficient content in the reconstructed affidavit to
support a finding of probable cause for belief that Brown had
committed, was committing, or was about to commit violations of the
Hobbs Act. Consequently, Brown was not entitled to a Franks
hearing.
In Franks, the Supreme Court held “that, where the defendant
makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if
the allegedly false statement is necessary to the finding of
3
438 U.S. 154 (1978).
-31-
probable cause, the Fourth Amendment requires that a hearing be
held at the defendant's request.”4 In summarizing its opinion, the
Court repeated its holding with “some embellishment”:
There is, of course, a presumption of validity with
respect to the affidavit supporting the search warrant.
To mandate an evidentiary hearing, the challenger’s
attack must be more than conclusory and must be supported
by more than a mere desire to cross-examine. There must
be allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be
accompanied by an offer of proof. They should point out
specifically the portion of the warrant affidavit that is
claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are
insufficient. The deliberate falsity or reckless
disregard whose impeachment is permitted today is only
that of the affiant, not of any nongovernmental
informant. Finally, if these requirements are met, and
if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there
4
Id. at 155–56.
-32-
remains sufficient content in the warrant affidavit to
support a finding of probable cause, no hearing is
required. On the other hand, if the remaining content is
insufficient, the defendant is entitled, under the Fourth
and Fourteenth Amendments, to his hearing. Whether he
will prevail at that hearing is, of course, another
issue.5
In this circuit, “[o]missions or misrepresentations can
constitute improper government behavior.”6 “By reporting less than
the total story, an affiant can manipulate the inferences a
magistrate will draw. To allow a magistrate to be misled in such
a manner could denude the probable cause requirement of all real
meaning.”7 We therefore apply Franks to instances of omission.8
To warrant a Franks hearing, the exclusion of the information must
reflect intentional or reckless misconduct by the affiant, and the
omitted facts must be material.9 “Clear proof of deliberate or
5
Id. at 171–72.
6
United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995)
(citing United States v. Stanert, 762 F.2d 775, 781 (9th Cir.
1985)).
7
Stanert, 762 F.2d at 781.
8
United States v. Bankston, 182 F.3d 296, 305 (5th Cir. 1999),
rev’d in part on other grounds, Cleveland v. United States, 531
U.S. 12 (2000).
9
See Tomblin, 46 F.3d at 1377.
-33-
reckless omission is not required. . . . At this stage, all that
is required is that the defendant make a substantial showing that
the affiant intentionally or recklessly omitted facts required to
prevent technically true statements in the affidavit from being
misleading.”10
Furthermore, we have agreed with and adopted the holding of
several other circuits “that a deliberate or reckless misstatement
or omission by a governmental official who is not the affiant may
nevertheless form the basis of a Franks claim.”11 Indeed, the
Supreme Court noted in Franks that “police [can]not insulate one
officer’s deliberate misstatements merely by relaying it through an
officer-affiant personally ignorant of its falsity.”12 Accordingly,
a defendant is entitled to a Franks hearing upon making a
substantial preliminary showing that a governmental official
deliberately or recklessly caused facts that preclude a finding of
10
Stanert, 762 F.2d at 781. See Franks, 438 U.S. at 171.
11
Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997) (citing
United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995); United
States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (“A deliberate
or reckless omission by a government official who is not the
affiant can be the basis for a Franks suppression. The Fourth
Amendment places restrictions and qualifications on the actions of
the government generally, not merely on affiants.”); United States
v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988); United States v.
Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984)), abrogated on other
grounds by Kalina v. Fletcher, 522 U.S. 118 (1997).
12
Franks, 438 U.S. at 164 n.6.
-34-
probable cause to be omitted from a warrant affidavit, even if the
governmental official at fault is not the affiant.
In challenging the presumption of validity afforded the
affidavit supporting the wiretap order, Brown alleged, in his
motion to suppress, that the affidavit of FBI Special Agent Freddy
N. Cleveland was “materially misleading.” In particular, Brown
contended that the government intentionally misled Judge Walter as
to the trustworthiness of its cooperating witness, Patrick Graham,
and misrepresented the content of the consensually recorded
conversations between Graham and Brown. In support of those
allegations, Brown submitted to the district court an offer of
proof consisting of ten volumes of exhibits. The exhibits
included: (1) a transcript of testimony given by former Assistant
United States Attorney (“AUSA”) Steven J. Irwin before a federal
bankruptcy court in Houston, Texas, on September 16, 1996;13 (2)
transcripts of deposition testimony given by Irwin and James B.
Letten in November 2000;14 (3) various news articles recounting
13
Irwin appeared before the bankruptcy court in support of the
government’s ex parte motion to stay proceedings in a case that
involved Michael Graham’s wife. Michael Graham, who reached a deal
with the government at the same time as his brother Patrick, was
scheduled to testify in that case. In requesting the stay, the
government apparently argued that the bankruptcy proceedings (and
Michael Graham’s testimony therein) could jeopardize its undercover
operations in Louisiana.
14
Letten, who was the First Assistant United States Attorney
at the time of his deposition, is currently the Acting United
States Attorney for the Eastern District of Louisiana. Letten and
Irwin were deposed on different dates in November 2000 by a
-35-
Graham’s criminal history; and (4) the full transcripts of the
consensually recorded conversations.
In his June 26, 1996 affidavit, Cleveland indicated that his
cooperating witness was credible: “[Patrick Graham] has provided
information to Special Agents of the FBI since April 30, 1996.
Since his cooperation with the FBI, he has never been known to
provide false or misleading information.”15 Brown’s offer of proof
demonstrates, however, that the government knew, as early as April
1996, that Graham was thoroughly dishonest and had a reputation in
Texas for engaging in fraudulent and deceptive practices. The
offer of proof also indicates that the affidavit purposefully
understated the seriousness of the criminal matters that were
pending against Graham in Texas and the magnitude of Graham’s
incentive to provide false information about Brown and Edwin
Edwards in order to curry favor with federal prosecutors in both
Louisiana and Texas. Thus, Cleveland’s affidavit reported “less
defendant in a federal criminal case entitled United States v.
James Anthum Collins and Yank Barry, No. 98-18 (S.D. Tex.). The
defendants in that case were the former Executive Director of the
Texas Department of Criminal Justice (Collins) and the president of
VitaPro Foods, Inc. (Barry). VitaPro sold a high-protein soy
product that was used as a meat substitute in penal institutions.
The government alleged that Barry paid Collins at least $20,000 to
gain approval for a five-year multimillion-dollar contract with the
Department of Criminal Justice. Patrick Graham, who solicited
business for VitaPro in Louisiana, informed the federal government
that the Texas VitaPro deal was a bribe scheme and served as the
government’s key witness at trial.
15
Def.’s Mot. Suppress Ex. 5-B, Cleveland Aff. ¶ 15.
-36-
than the total story” to Judge Walter.16 By omitting information
concerning Graham’s character and vouching for his trustworthiness,
the government created a false impression of Graham’s reliability,
which likely misled the issuing judge.
In his November 2000 deposition, Irwin, the AUSA who applied
for the wiretap order, was asked whether he was aware, in April
1996, that Patrick and Michael Graham were swindlers and “con men”
who lacked credibility. Irwin responded, “We knew what we were
buying when we bought into them.”17 He explained that the Grahams
initially approached him through their attorney Charles Blau.18
After preliminary discussions with Blau, Irwin ran a Lexis/Nexis
search and “reams and reams and reams of material came out about
Patrick Graham and Michael Graham and the various schemes that they
were involved in.”19 The search certainly would have uncovered the
widely reported details of Patrick Graham’s January 1996 arrest for
accepting a $150,000 down payment on a $750,000 total fee for
arranging the escape of a convicted wife-murderer from a maximum-
16
United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).
17
Def.’s Mot. Suppress Ex. 27 at 42.
18
Blau approached Irwin at a gambling corruption seminar held
at the Grand Hotel in Gulfport, Mississippi, on April 19–20, 1996.
Irwin was a panelist at the seminar.
19
Def.’s Mot. Suppress Ex. 27 at 14.
-37-
security prison in Texas.20 Irwin concluded, from the “reams of
material” available to the government, that if the Grahams said,
“‘It’s raining outside,’ somebody better go outside and come back
wet.”21
As his deposition makes clear, Irwin reached this conclusion
on the Grahams’ trustworthiness prior to April 30, 1996, the date
that Patrick Graham began cooperating with the government. Irwin’s
September 1996 testimony before the bankruptcy court is fully
consistent with this early-held opinion of Graham’s bad character:
“I’m not defending the Grahams as good people; they’re not. . . .
They’re as bad as they come. . . . [T]he things that we’re not able
to independently corroborate, we believe are lies. And that’s the
way it has to be when you deal with the Grahams.”22 In sum, Irwin’s
20
Newspaper articles reporting the January 4, 1996 arrest were
available in the Lexis/Nexis database shortly thereafter. See,
e.g., Christy Hoppe, Prison Developer Accused of Seeking Money to
Help Dallas Killer Escape, DALLAS MORNING NEWS, Jan. 6, 1996, at 1A,
available at LEXIS, News, Dallas Morning News File (load date: Jan.
8, 1996). Although Irwin confirmed in his deposition that he knew
about the foiled jailbreak plan in April 1996, the wiretap
application did not provide Judge Walter with the details of this
disturbing crime. Rather, the government advised only that Graham
had been indicted by the Grand Jury in Harris County, Texas, for
one count of money laundering and one count of theft by sting.
21
Def.’s Mot. Suppress Ex. 27 at 47. Shortly after the Grahams
began cooperating with federal authorities in Louisiana, AUSAs for
the Southern District of Texas warned Irwin to “[b]e careful,
because you’re reaching into a bad box of snakes.” Id. at 41.
22
Def.’s Mot. Suppress Ex. 2, 9/16/96 Hr’g Tr. at 30. Although
the bankruptcy-court testimony was given nearly three months after
the issuance of the wiretap order, Irwin’s November 2000 deposition
establishes that the testimony concerning the Grahams’ credibility
-38-
testimony at his deposition and in the bankruptcy-court establishes
that, beginning shortly after his first knowledge of Patrick
Graham, Irwin and other federal officials continuously viewed
Graham as an unreliable person whose information was worthless in
the absence of independent corroboration.
Soon after becoming an informant, Graham proved that the
government’s distrust of him was justified. In his deposition,
Letten characterized the government’s deal with the Grahams, which
was never reduced to writing, as an “informal cooperation agreement
with use/derivative use immunity” covering only offenses committed
in Louisiana.23 The Grahams, however, wanted multistate
transactional immunity, and, even though they did not receive it,
they represented to others that they had.24 In a May 23, 1996
letter to Charles Blau, AUSA Peter G. Strasser complained that the
Grahams had recently told attorney Dan Cogdell, who was
representing Patrick Graham in the Texas jailbreak prosecution,
was not based on fresh information but reflected, instead,
conclusions that Irwin reached during his April 1996 background
research on the Grahams.
23
Def.’s Mot. Suppress Ex. 28 at 85. Use immunity—also termed
use/derivative-use immunity—is “[i]mmunity from the use of the
compelled testimony (or any information derived from that
testimony) in a future prosecution against the witness.” BLACK’S LAW
DICTIONARY 754 (7th ed. 1999).
24
Transactional immunity is “[i]mmunity from prosecution for
any event or transaction described in the compelled testimony.
This is the broadest form of immunity.” BLACK’S LAW DICTIONARY 754
(7th ed. 1999).
-39-
that they had “‘immunity for (their) actions in Louisiana and
Texas,’” a representation that was, in Strasser’s words, “simply
wrong.”25 Thus, less than one month after Patrick Graham began
cooperating, he was already misrepresenting his “deal” in an effort
to broaden the scope of the immunity conferred on him by the
government.26
By virtue of his role in the investigation, Cleveland must
have known that Graham had provided false or misleading information
about his cooperation/immunity agreement; in fact, Strasser sent
Cleveland a copy of his letter to Blau. Yet, in his June 26, 1996
affidavit, Cleveland declared that Patrick Graham “has never been
known to provide false or misleading information” since he began
cooperating with the government. Because Cleveland may have meant
that Graham had not been known to provide false or misleading
information to the government (Cleveland stated, in the preceding
sentence, that Graham “ha[d] provided information to Special Agents
of the FBI since April 30, 1996"), that declaration may not qualify
25
AUSA Strasser was Irwin’s immediate supervisor and had
participated in the initial meetings with Blau and the Grahams.
The letter appears in Brown’s offer of proof as an exhibit to the
November 2000 deposition of James B. Letten. See Def.’s Mot.
Suppress Ex. 29, Def.’s Ex. 106.
26
In his November 2000 deposition, Irwin acknowledged the
government’s initial concern that the Grahams would later
mischaracterize the deal: “[D]id I think the Grahams for one minute
would come back , try to—to say the deal was something other than
what it was? Absolutely.” Def.’s Mot. Suppress Ex. 27 at 43.
-40-
as a deliberate falsehood, but it is certainly misleading.
Cleveland knew that Graham was unreliable and that his mendacious
conduct continued even after April 30. In assuring the magistrate
that Graham had been truthful with the government for a two-month
period, Cleveland suppressed that knowledge and created the false
impression that Graham was, in fact, reliable.
As Brown’s counsel argues, if the government had disclosed its
knowledge concerning the dishonesty and bad character of Graham,
the district court may have refused to sign the wiretap order or
“requir[ed] the applicant to furnish additional testimony or
documentary evidence in support of the application.”27 After all,
“it is the magistrate who must determine independently whether
there is probable cause . . . .”28 “He may question the affiant,
or summon other persons to give testimony at the warrant
proceeding.”29 Much of the information contained in the affidavit,
particularly the allegations concerning the genesis of the
extortion scheme, was based on the uncorroborated statements of
Graham. If the issuing judge gave credence to those statements, he
did so in reliance on the false impression that Graham was
reliable. Thus, to prevent the affidavit from being misleading,
Cleveland should have advised the issuing judge that Patrick Graham
27
18 U.S.C. § 2518(2).
28
Franks v. Delaware, 438 U.S. 154, 165 (1978).
29
Id. at 166.
-41-
was untrustworthy and that the government did not believe his
uncorroborated statements. The omission of this information from
the affidavit reflects intentional misconduct or, at the very
least, a “reckless disregard for the truth.”30
Brown also alleges that Cleveland misrepresented the content
of the consensually recorded conversations. There is a substantial
showing to this effect with respect to one important segment of the
May 8, 1996 conversation between Graham and Brown. In paragraph 30
of the affidavit, Cleveland recites the following from that
conversation:
GRAHAM: . . . Ah, I want EDWIN to be comfortable,
okay? I can’t afford anything to go wrong
with this deal. All right? So we’ve got to
get him, whatever that portion is covered
first. . .
BROWN: Yeah.31
This recitation, a product of the government’s calculated editing,
presents the excerpt as an acknowledgment by Brown that Edwin
Edwards would receive a portion of the payment that Brown was
seeking from Graham and his partners. In the actual conversation,
however, Brown conveyed a much different message. As indicated by
the ellipsis mark, Cleveland omitted the statement and question
immediately preceding Brown’s affirmative response:
30
Id. at 155.
31
Def.’s Mot. Suppress Ex. 5-B, Cleveland Aff. ¶ 30.
-42-
GRAHAM: . . . Ah, I want EDWIN to be comfortable,
okay? I can’t afford anything to go wrong on
this deal. All right? So we’ve got to get
him, whatever that portion is covered first.
All I want to do is drag you out and I’m not
gonna drag you out more than 90 days on yours.
Okay?
BROWN: Yeah.32
Thus, it appears more likely that Brown was responding to the
latter question pertaining to a delay in his payment rather than
Graham’s first question regarding his (Graham’s) desire to make
“EDWIN” comfortable. More importantly, Cleveland did not inform
Judge Walter as to the very next words spoken by Brown, which
contain a flat denial that any money was going to Edwards:
GRAHAM: I just don’t . . . ah, you know, you never
have told me what the . . . the . . . the
sharing ratio is.
BROWN: He doesn’t get any. I get it all. I want
half right away.33
During the remainder of their conversation that day, Graham
made several other attempts to secure Brown’s acknowledgment that
Edwards would be receiving a share of the extortion proceeds. In
my opinion, Brown’s subsequent inconsistent and ambiguous responses
failed to provide an adequate basis for reaching such a conclusion
as a matter of probable cause, as opposed to a mere suspicion.
Although analyzing the recorded conversations to determine
32
Def.’s Mot. Suppress Ex. 7, 5/8/96 Tr. at 3.
33
Id.
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Edwards’s probable role is ultimately unnecessary to a disposition
of Brown’s appeal, I conclude that the Cleveland affidavit omitted
the facts of Brown’s flat denial of the existence of an Edwards
portion and Graham’s other unsuccessful efforts with reckless
disregard for the truth and for the omissions’ tendency to mislead
the magistrate. By burying this information and offering, in
corroboration of Graham’s story, an excerpt that was misleadingly
edited and taken out of context, the government tried to make the
probable cause determination appear uncomplicated. The government
should have afforded Judge Walter the opportunity to interpret and
weigh Brown’s denial and his ambiguous statements within the
context of the entire conversation rather than misrepresenting a
single excerpt in order to compel the court to decide in its favor.
For the foregoing reasons, I conclude that Brown satisfied the
first prong of the Franks test by making a substantial preliminary
showing that the government intentionally or recklessly omitted
facts from the warrant affidavit, causing the information actually
reported to be misleading.
Turning to the second prong of Franks, Brown is not
constitutionally entitled to a hearing unless he shows that the
omissions are material.34 “Identifying intentional omissions and
misstatements is not enough . . . .”35 Our inquiry, then, is
34
United States v. Meling, 47 F.3d 1546, 1554 (9th Cir. 1995).
35
Id.
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whether the reconstructed affidavit establishes probable cause to
believe that Brown had committed or was committing a crime.36 We
reconstruct the Cleveland affidavit by supplying the omissions and
setting aside all of Graham’s allegations that are not
independently corroborated.37 Because there remains sufficient
content in the corrected affidavit to support a finding of probable
cause, the district court’s judgment must be affirmed.
The Hobbs Act makes it a crime for anyone to obstruct, or
attempt to obstruct, commerce by extortion.38 “The term ‘extortion’
means the obtaining of [(or attempting to obtain)] property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear . . . .”39 “Extortion by
wrongful use of fear includes fear of economic harm.”40 The
excerpts from and summaries of the consensually recorded
36
United States v. Bankston, 182 F.3d 296, 305–06 (5th Cir.
1999), rev’d in part on other grounds, Cleveland v. United States,
531 U.S. 12 (2000). See also United States v. Stanert, 762 F.2d
775, 782 (9th Cir. 1985) (“Standing alone, [a defendant’s]
substantial preliminary showing that the affidavit contained
reckless or deliberate falsities and omissions is insufficient to
warrant a Franks hearing. A defendant challenging an affidavit
must also show that the affidavit purged of those falsities and
supplemented by the omissions would not be sufficient to support a
finding of probable cause.”).
37
See Bankston, 182 F.3d at 305; Stanert, 762 F.2d at 782.
38
See 18 U.S.C. § 1951(a).
39
Id. § 1951(b)(2).
40
United States v. Tomblin, 46 F.3d 1369, 1384 (5th Cir. 1995).
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conversations that would appear in the corrected affidavit provide
independent corroboration for the following aspects of Graham’s
story: (1) Cecil Brown was attempting to obtain property (money)
from Graham and his associates with their consent;41 (2) Brown
threatened Graham and his associates with economic loss; and (3)
Graham’s group took the threats seriously, and it was reasonable
for them to do so, because of Brown’s close relationship with Edwin
Edwards. For example, in a June 7, 1996 conversation, which is
recounted in the affidavit, Brown warned Graham that he should be
receiving a call from the Secretary of the Louisiana Department of
Corrections. I agree with Judge Jones that “the import of this
threat is clear: The Louisiana Department of Corrections could
delay the Jena prison project; and if Graham and his partners
wanted their sale to proceed as planned, they should consider
increasing the money paid directly to Brown.”42 Moreover, the
reconstructed affidavit, taken as a whole, would supply reasonable
grounds for believing that Graham and his group feared that Brown
would make good on his threats to delay the project if he did not
41
Graham was a Texas citizen representing a Texas corporation,
Viewpoint Development Corporation, that had an interest in a
private prison project in Louisiana; thus, the “effect on
interstate commerce” element of the Hobbs Act was undoubtedly
satisfied. See United States v. Villafranca, 260 F.3d 374, 377
(5th Cir. 2001) (stating that “the Hobbs Act’s required effect on
interstate commerce is identical with the requirements of federal
jurisdiction under the Commerce Clause”).
42
Op. at 21–22.
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receive a satisfactory amount of money. Put differently, the
content remaining in the affidavit would establish probable cause
to believe that Brown had committed, was committing, or was about
to commit a Hobbs Act violation. Because a valid wiretap order
could issue on the basis of the reconstructed affidavit, “no
hearing is required” under Franks.43
In conclusion, Brown’s offer of proof convinces me that the
government knew Patrick Graham was untrustworthy at the time it
applied for the wiretap order. It is also evident that the
government carefully crafted its application, omitting its
assessment of Graham’s credibility as well as key facts concerning
his misdeeds, in an effort to prevent Judge Walter from reaching a
similar view on the issue of Graham’s trustworthiness.
Furthermore, through intentional or reckless omission, the
Cleveland affidavit misrepresented the corroborative strength of at
least one excerpt from the recorded conversations. Such conduct
falls short of the ethical standards that the government should
observe when it seeks authorization to intrude so profoundly on the
privacy of its citizens. But these findings are of no benefit to
Brown under the Franks standard because he failed to show that the
reconstructed affidavit is not sufficient to support a finding of
probable cause. Perhaps identifying false statements and
deliberate or reckless omissions by an affiant that tend to mislead
43
Franks v. Delaware, 438 U.S. 154, 172 (1978).
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an issuing judge should be enough to entitle a criminal defendant
to an evidentiary hearing on a motion to suppress, but the Supreme
Court has determined otherwise. Under the rigid test established
in Franks, the district court properly denied Brown’s request.
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