UNITED STATES DISTRICT COURT EASTERN …media.nola.com/crime_impact/other/Aaron Broussard ineffective... · Case 2:11-cr-00299-HH-FHS Document 267-2 Filed 05/27/14 Page 1 of 33. 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA * CRIMINAL DOCKET NO. 11-299 v. * CIVIL DOCKET NO. 14-432 AARON F. BROUSSARD * SECTION: “HH” * * *

GOVERNMENT’S MEMORANDUM IN OPPOSITION TO, AND SEEKING DISMISSAL OF, MOVANT’S

MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255

NOW INTO COURT comes Respondent, the United States of America, appearing

through the undersigned Assistant United States Attorney for the Eastern District of Louisiana,

who respectfully files the instant memorandum opposing Movant Aaron F. Broussard’s motion

to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Because Broussard waived

all post-collateral challenges in his plea agreement except upon a showing that ineffective

assistance of counsel directly affected the validity of that waiver or the guilty plea, which is not

present here, the motion should be dismissed. Alternatively, the motion should be denied on the

merits because Broussard cannot show that his counsel provided deficient performance resulting

in any actual prejudice.

PERTINENT FACTS AND PROCEDURAL HISTORY

The grand jury indicted Broussard and others on payroll fraud charges and, eventually, 27

charges related to theft and bribery. Indictment (D.E. 1); Second Superseding Indictment (D.E.

117). Broussard retained attorney Robert Jenkins as trial counsel. See Minute Entry (D.E. 11).

While the case was proceeding, it was determined that former Assistant United States

Attorney Sal Perricone had posted various blogs on the nola.com website under various

Case 2:11-cr-00299-HH-FHS Document 267-2 Filed 05/27/14 Page 1 of 33

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pseudonyms. 1 The matter was referred to the United States Department of Justice’s Office of

Professional Responsibility (OPR) for investigation.

Broussard sought to recuse the United States Attorney’s Office for the Eastern District of

Louisiana (USAO) and sought sanctions based on alleged Rule 6(e) violations and Perricone’s

blogs. (D.E. 82). This Court ordered the USAO to file under seal details of an investigation

conducted by then-United States Attorney Jim Letten regarding Broussard’s claims. (D.E. 113).

The USAO did so in a letter signed by then-First Assistant United States Attorney Jan Mann.

(D.E. 204-1). The Court ultimately denied the recusal motion, finding that Perricone’s

involvement in Broussard’s case was insignificant, and that there was no evidence of other

AUSAs making similar comments. Order Denying Recusal (D.E. 115, p. 2).

The Court later denied Broussard’s request for sanctions. Mem. on Denial of Mot. for

Sanctions (D.E. 120). The Court found that Broussard had made a prima facie case of a Rule

6(e) violation, id. at 3-4, but found that the USAO was not responsible for any “leaks.” Id. at 5.

On September 25, 2012, Broussard entered a plea agreement and pleaded guilty to

Counts 1 (conspiracy) and 27 (bribery) of the second superseding indictment. Minute Entry of

Rearraignment (D.E. 196). Broussard, under oath, answered several specific questions from this

Court and admitted his criminal acts. See Rearraignment Trans. (D.E. 202). This Court found

that Broussard’s guilty plea was knowing and voluntary and had a factual basis. Id. at. 21. In

connection with the guilty plea, Broussard executed a written Plea Agreement with the

government in which the government agreed to dismiss the remaining 25 counts of indictment.

Plea Agreement (D.E. 198, p. 1). Broussard waived all appeal and collateral challenge rights

unless he could establish that ineffective assistance of counsel affected the validity of the waiver

1 This memorandum will refer to all pertinent allegations and findings of misconduct by former federal prosecutors connected to online commenting on the nola.com website as the “blogging matter.”


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or the guilty plea itself. Plea Agreement, pp. 2-3. The Court explained this waiver to Broussard,

and Broussard said that he understood. Id. at 20-21.

After the plea, it became known that Mann had also posted blogs on the nola.com

website. Letten informed the Court of this fact and that Mann had made at least one comment

relating to Broussard’s case. Letten Letter (D.E. 204). The Court later held a telephone

conference with all parties. Tel. Conf. Trans. (D.E. 203). After, the Court unsealed Letten’s

letter and Mann’s prior letter, and it allowed defense counsel to file any responses. Id. at 22.

Letten and Mann subsequently retired from the USAO. 11 days later, Broussard sought

an evidentiary hearing to determine the extent of prosecutorial misconduct. Mot. for Evid. Hrg.

(D.E. 205). The Court denied the motion. Order Denying Post-Plea Guilty Mot’s. (D.E. 218).

The Court noted that Broussard had not sought to withdraw his guilty plea or to dismiss the

indictment. Id. at 1-2. It also stated that Broussard essentially obtained the relief he had

previously sought: “Blogger Salvador Perricone has resigned and blogger Jan Mann has been

demoted. The former United States Attorney Jim Letten has resigned and been replaced. There is

a new sheriff in town.” Id. at 2. The Court also stated that Broussard’s plea waived all non-

jurisdictional defects, which included claims of governmental misconduct during the

investigation and improper motives for prosecution.” Id.

On February 25, 2013, the Court sentenced Broussard to 46 months imprisonment.

Judgment (D.E. 237, p. 2). The sentence was within the advisory guideline range. Broussard did

not appeal. On February 25, 2014, Broussard timely filed the instant § 2255 Motion.

LAW AND ARGUMENT

Broussard’s stated claim for relief is ineffective assistance of counsel. Broussard § 2255

Mot. (D.E. 250, p. 5). However, he does not claim that his attorney committed any errors but


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rather that the actions of the USAO, OPR, and United States District Judge Kurt Engelhardt

(Section N, Eastern District of Louisiana) kept only one piece of information relating to the

blogging matter (that Letten allegedly knew of Mann’s conduct) from Broussard’s trial counsel

Robert Jenkins. Broussard § 2255 Mem. (D.E. 250-1, p. 5).2 According to Broussard, this

concealed piece of information was necessary for trial counsel to properly advise on a guilty

plea, and, because it was concealed, trial counsel gave constitutionally deficient advice.

Broussard is not entitled to relief. First, although styled as an ineffective-assistance-of-

counsel (IAC) claim, the claim is actually one of prosecutorial misconduct in which he alleges

that the government failed to disclose one piece of information that allegedly may have helped

Broussard. Because it is not an IAC claim affecting Broussard’s guilty plea or the waiver of his

collateral rights, the claim is barred by the terms of his plea agreement, and it should be

dismissed. Moreover, the guilty plea waived any defects involving prosecutorial misconduct.

Even if Broussard alleged a proper IAC claim, he cannot establish prejudice. He fails to

allege and prove that, had he known of the additional one piece of information, he would have

not pleaded guilty, would have withdrawn his guilty plea, and insisted on going to trial. The

evidence against Broussard was overwhelming, and he received substantial benefits by pleading

guilty, including the dismissal of 25 counts. Thus, any claim that he would have desired a trial is

not reasonable. He has also failed to show how the one new alleged “fact” would have helped

him obtain relief via dismissal, acquittal, or leniency at sentencing. As a result, he cannot show

prejudice, and his § 2255 motion for relief should be denied.

2 Despite claiming a remarkable amount of evidence has emerged about prosecutorial misconduct by members of the USAO since Broussard pleaded guilty, Broussard cites only one new piece of information, which is that former United States Attorney Jim Letten “almost certainly knew that then-First Assistant U.S. Attorney [Jan] Mann had herself commented anonymously on Nola.com.” Broussard § 2255 Mem., p. 16. The sole basis for this new information comes from testimony that former FAUSA Mann gave in which she claimed to have advised Letten that she had posted. Id. at 16 n.6. As mentioned below, the OPR Report does not support that claim. Even if the claim were true, Broussard is nonetheless not entitled to relief because it did not prejudice his case, as argued below.


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I. Broussard is barred from seeking this relief.

When Broussard pleaded guilty, he executed a plea agreement where he “waive[d] and

[gave] up his right to challenge his sentence collaterally, including but not limited to any and all

rights which arise under Title 28, United States Code, Sections 2255 and 2241 . . . .” See Plea

Agreement, p. 3. He “retain[ed] the right to bring a post conviction challenge if he establishes

that ineffective assistance of counsel directly affected the validity of this waiver of appeal and

collateral challenge rights or the validity of the guilty plea itself.” Id.

An informed and voluntary waiver of post-conviction relief is effective to bar such relief.

United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). “The Sixth Amendment right to

effective assistance of counsel may also be waived, and thus need not be treated any differently.”

United States v. White, 307 F.3d 336, 343 (5th Cir. 2002) (citing Johnson v. Zerbst, 304 U.S. 458

(1938)). Further, “an ineffective assistance of counsel argument survives a waiver of appeal only

when the claimed assistance directly affected the validity of that waiver or the plea itself.” Id.

The questions to resolve are “whether the plea or waiver itself was knowing and voluntary, and

whether the issue challenged on appeal may properly be the subject of waiver. If the answer to

both questions is ‘yes,’ then the guilty plea sustains the conviction and sentence and the waiver

can be enforced.” Id. at 343-44.

In this matter, Broussard’s plea and waiver were knowing and voluntary. His claim,

although styled as IAC, is actually one of prosecutorial misconduct, which has been waived. As

a result, the waiver may be enforced, and Broussard’s motion should be dismissed.

A. Broussard knowingly and voluntarily waived post-conviction relief.

“A defendant may, as part of a valid plea agreement, waive his statutory right to appeal

his sentence on direct appeal and under 28 U.S.C. § 2255, if the waiver is knowing and

voluntary.” United States v. Brady, 211 F.3d 593, 2000 WL 329123, at *1 (5th Cir. Mar. 16,


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2000) (citing Wilkes, 20 F.3d 651; United States v. Melancon, 972 F.2d 566 (5th Cir.1992)).

“An appellate or collateral review waiver is knowing if the defendant knows that he has a right to

seek review and that he is giving up that right.” United States v. Cooley, 2012 WL 5348860, at

*2 (E.D. La. Oct. 29, 2012) (citing United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994)).

“The test for determining a guilty plea's validity is whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the defendant.”

Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir. 2000) (citing Hill v. Lockhart, 474 U.S. 52, 56

(1985)) (internal quotations omitted). Once such a plea is entered, the plea stands:

(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

Brady v. United States, 397 U.S. 742, 755 (1970) (citation omitted).

This Court’s colloquy with Broussard established a knowing and voluntary guilty plea

and waiver. The Court explained all of the trial rights Broussard had, including the presumption

of innocence, the right to remain silent, and the right to counsel. Rearraignment Trans. pp. 7-8.

It informed him of the consequences of a guilty plea and ensured that Broussard wished to plead

guilty:

The Court: If you plead guilty, as I’m told you intend to do, you will be giving up your right to the jury trial and the rights that go along with it. There will be no trial. I will find you guilty not because a jury tells me that you are guilty but because you tell me that you are guilty, and I will find you guilty and sentence you because you pled guilty. Do you understand?

Broussard: Yes, Your Honor.

The Court: Do you want to have a trial by jury or do you want to plead guilty?

Broussard: I’m going to plead guilty, Your Honor.


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The Court: Are you willing to give up your right of silence as you enter your plea of guilty?


Rearraignment Trans., p. 8. The Court found that Broussard understood and waived the rights

available to him. Id. at 9.

The Court also discussed the charges, elements of the two offenses, and their

corresponding penalties to which Broussard was pleading guilty. Id. at 10-17. Several times, the

Court asked Broussard if he understood and if the charges were accurate. Id.

The Court asked Broussard about whether the plea was voluntary:

The Court: Has anyone threatened or forced you to plead guilty?

Broussard: No, Your Honor.

The Court: Has anyone promised you leniency if you would plead guilty?

Broussard: No, Your Honor.

The Court: Who makes the decision for you to plead guilty?

Broussard: I make the decision, Your Honor.

The Court: Why are you pleading guilty?

Broussard: Because I am guilty, Your Honor.

Id. at 18. The Court then addressed Broussard’s knowledge and understanding of the plea

agreement:

The Court: Did you read [the written Plea Agreement] and discuss it with your attorney?

Broussard: You bet.

The Court: Do you understand it?

Broussard: Yes, sir.


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Rearraignment Trans., pp. 18-19. The Court also addressed the terms of the agreement,

including the waiver of appellate and collateral rights:

The Court: This is especially true because you are giving up your right to appeal your sentence and your conviction and the fine and the restitution that can be ordered unless I sentence you – I don’t see any exceptions for that waiver of right of appeal. You are also giving up your right to file a 2255 petition and other federal writs that would allow you to challenge your conviction or your sentence collaterally, that is, after they have become final, another request to the Court that the Court reconsider its decisions, but you’re giving up your right to make those appeals. Now, I see at paragraph 7 you are retaining your right to appeal a sentence in excess of the statutory maximum. Of course, I would hope that you retain such a right, but I would hope I would never commit such an error. You do have that right. If there is a circumstance under which you believe your attorneys have rendered ineffective assistance of counsel, you may still bring a postconviction challenge to your conviction and your sentence. Do you understand?


The Court: Based on ineffective assistance of counsel and no other exception. Do you understand that?


Id. at 19-21. The Court then found that the plea was voluntary. Id. at 21.

This record shows that Broussard read and understood the waiver clause in his Plea

Agreement. “[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has

read and understands his plea agreement, and that he raised no question regarding a waiver-of-

appeal provision, the defendant will be held to the bargain to which he agreed . . . .” United

States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994); see also United States v. Ramirez, 416 F.

App’x 450, 452-53 (5th Cir. Mar. 4, 2011) (quoting Portillo in holding that § 2255 petitioner’s

claims were barred by collateral-rights waiver provision in plea agreement where petitioner

signed addendum stating he read and understood entire agreement). Broussard’s waiver is

therefore enforceable.


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B. The waiver applies and bars Broussard’s claim, which, although styled as an IAC claim, is actually a claim of prosecutorial misconduct.

To obtain relief for a valid IAC claim, a petitioner must show: (1) that his counsel’s

performance was deficient; and (2) that the deficient performance so prejudiced his defense that

the result of the trial would have been different absent the deficient performance. Strickland v.

Washington, 466 U.S. 668, 687-89 (1984). To prove the first prong, he must show “that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687. To prove prejudice, he must show that

“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. In the context of a guilty plea, he must show “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 59.

Broussard does not make any of these claims. He does not allege that his attorney

committed any errors, and he never states that, had he known of the new information, he would

have not pleaded guilty, would have moved to withdraw his guilty plea, and would have insisted

on proceeding to trial.

The underlying actual claim in Broussard’s motion is misconduct. See Broussard § 2255

Mem., p. 3 (“the government prevented Mr. Broussard’s counsel from learning ‘important

information’ about the ‘relevant circumstances’ surrounding his prosecution”); id. (multiple

governmental components interfered with defense counsel’s provision of effective assistance);

id. at 13 (stating OPR has continued to obfuscate and misrepresent truth behind misconduct); id.

at 14 (Broussard and counsel were left entirely in the dark); id. at 15 (when contemplating plea,

none of this evidence was available to counsel); id. at 16 (lack of information known to

Broussard had been crafted by two senior members of USAO); id. at 17 (had members of the


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USAO not withheld their own activities, defense counsel would have been able to share

important information with Broussard and this Court); Broussard § 2255 Mem., p. 18 (at time

Broussard pleaded guilty, government had expertly concealed bulk of misconduct); id. at 21

(Broussard and counsel could not have known of the widespread misconduct that remained

sealed by Judge Engelhardt); id. at 23 (counsel was unable to perforate Judge Engelhardt’s

sealing order prior to Broussard’s sentencing); id. (“no fewer than three government entities . . .

withheld critical information that defense counsel required . . . .”). Rather than focus on trial

counsel’s errors, Broussard’s motion focuses entirely on governmental misconduct in failing to

disclose favorable evidence. This is a claim of prosecutorial misconduct and not ineffective

assistance. As such, Broussard’s claim is barred by the plea agreement’s terms.

This Court has held similarly in United States v. Hurtado-Paco, 2007 WL 1731114 (S.D.

Tex. June 13, 2007). In that § 2255 proceeding, similar to Broussard, Hurtado had pleaded

guilty and claimed that the prosecution failed to disclose favorable evidence. Id. at *1.3 He had

pleaded guilty pursuant to a plea agreement in which he waived the right to contest his

conviction or sentence by means of any post-conviction proceeding. Id. In reviewing the

rearraignment transcript, this Court determined that Hurtado’s waiver was knowing and

voluntary. Id. at *3. It then determined that Hurtado’s “claim that the government withheld

favorable evidence . . . fall[s] clearly within the scope of his waiver, and [is] thus barred.” Id. at

*4.

Broussard’s similar claim that the USAO concealed favorable information falls within the

scope of his collateral-rights waiver and is barred. As set forth above, Broussard knowingly and

voluntarily entered the waiver, which was made known to him in the written Plea Agreement and

3 Hurtado also claimed he was denied effective representation because his attorney pressured him to plead guilty. Unlike Broussard’s claim of ineffectiveness, Hurtado’s focused on the attorney’s own error.


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during his Rule 11 colloquy with the Court. As a result, Broussard should be held to the bargain

he made, and his motion should be dismissed.

C. The claim of misconduct itself is not cognizable.

Broussard’s actual claim of misconduct is likewise barred because he validly pleaded

guilty. “It is well-settled that ‘[w]hen a defendant enters a voluntary and unconditional guilty

plea, the plea has the effect of waiving all nonjurisdictional defects in the prior proceedings.’”

United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008) (quoting United States v.

Stevens, 487 F.3d 232, 238 (5th Cir. 2007)). “The plea waives claims of governmental

misconduct during the investigation and improper motives for prosecution.” United States v.

Cothran, 302 F.3d 279, 286 (5th Cir. 2002) (citing United States v. Owens, 996 F.2d 59, 60 (5th

Cir.1993)). This Court has already denied Broussard’s post-plea misconduct motions and stated

that “he has waived such alleged defects by pleading guilty to conspiracy and theft and by

admitting the criminal facts underlying these convictions.” Order Denying Post-Plea Guilty

Mot’s., p. 2. Thus, Broussard’s knowing and voluntary plea bars relief based on misconduct in

this § 2255 proceeding.

II. Broussard is not entitled to relief based on the merits of an IAC claim.

Even if this is a proper IAC claim, Broussard is still not entitled to relief. Because the

need for finality has “‘special force with respect to convictions based on guilty pleas,’”

Broussard’s guilty plea may be attacked on collateral review only in “‘strictly limited’”

circumstances. Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting United States v.

Timmreck, 441 U.S. 780, 784 (1979)). Such an “inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569

(1989).


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To prevail on an IAC claim, Broussard must demonstrate that his attorney’s performance

was both deficient and prejudicial. See Strickland , 466 U.S. at 687-89. He bears the burden of

demonstrating by a preponderance of the evidence that he was deprived of effective assistance.

Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983). He must satisfy both deficient

performance and prejudice. Strickland, 466 U.S. at 697. “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.” Id.

A. Trial counsel provided effective representation.

“A convicted defendant making a claim of ineffective assistance must identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable professional

judgment. The court must then determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690. Broussard has failed to identify any errors by trial counsel.

Broussard does not claim that his counsel acted improperly or committed any

unprofessional error. Indeed, the record in this matter shows that trial counsel provided adequate

representation, especially regarding blogging. Broussard gives several examples of trial

counsel’s advocacy in his supporting memorandum. See Broussard § 2255 Mem., pp. 6-9

(sought recusal of and sanctions for potential Rule 6(e) violations and established a prima facie

case); id. at 10 (attempted to negotiate an Alford plea); id. at 12 (sought evidentiary hearing to

determine extent of misconduct); id. at 13 (successfully argued for a guideline range less than

that calculated by the PSR). Broussard himself told the Court at his rearraignment that his trial

counsel had been a very good attorney, made himself available for conferences and

consultations, and followed Broussard’s instructions. Rearraignment Trans., p. 6. Thus, trial


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counsel did not unprofessionally err. Instead, he advocated for Broussard at multiple stages in

the proceedings.

Moreover, trial counsel cannot be held to be ineffective for failing to know things he

could not have known. “Clairvoyance is not a required attribute of effective representation.”

Rios-Delgado v. United States, 117 F. Supp. 2d 581, 588 (W.D. Tex. 2000) (citing Sharp v.

Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997)). Broussard has not established the first prong

under Strickland.

B. Broussard has not been prejudiced.

Even if trial counsel gave deficient performance, Broussard is not entitled to relief

because he was not prejudiced. Broussard is required to establish that, but for his attorney’s

deficient performance, there is a reasonable probability that the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. Broussard must show that the erroneous

performance “‘so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.’” Cullen v. Pinholster, 131 S. Ct. 1388,

1403 (2011) (quoting Strickland, 466 U.S. at 686). Surmounting Strickland’s high bar is never

an easy task. Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

In the context of the guilty plea, Broussard must “show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill, 474 U.S. at 59. This requirement for those seeking to “challenge

the validity of their guilty pleas on the ground of ineffective assistance of counsel will serve the

fundamental interest in the finality of guilty pleas . . . .” Id. at 58.

Here, Broussard has neither alleged nor proven prejudice. He has presented no evidence

suggesting that he would have won at trial, or that the one piece of new information would have


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assisted him in obtaining any relief. Instead, Broussard’s arguments that his trial counsel would

have improved his negotiating position and re-urged an Alford plea, as well as Broussard’s own

acts and admissions during and surrounding the proceedings, suggest that Broussard wanted to

resolve the matter by way of a guilty plea. As a result, he has not shown prejudice, and his

motion should be denied.

1. Broussard cannot establish that the new information was true.

Broussard cannot establish the truth of the information that he states was necessary to his

defense. While Broussard and his trial counsel state that counsel would have provided different

advice had he known that Letten allegedly knew of Mann’s conduct, they cannot establish that

Letten actually had that knowledge in the first place. Contrary to Broussard’s unsubstantiated

claim, the OPR Report does not support the allegation, as Judge Mary Ann Vial Lemmon and

Magistrate Judge Joseph Wilkinson reported after an in camera review:

The overall conclusion of the OPR Report is that prosecutorial misconduct of the kind committed by Perricone and Mann was confined to them and was neither sanctioned by the United States Attorney nor engaged in by others in the office. In summary, the OPR Report concludes that “[t]he evidence is insufficient to establish by a preponderance of the evidence that” the former United States Attorney or anyone else in his office “was aware contemporaneously” of the misconduct of Mann and Perricone, or even that Mann and Perricone were “aware contemporaneously” of each other’s posting activities. The OPR Report also concludes that there is “no evidence establishing” that anyone in the United States Attorney’s Office, apart from Mann and Perricone, engaged in misconduct of any kind. It concludes that while others in the office may have suspected that Perricone was posting, none actually knew that he was, and none “knew or suspected that Mann was posting comments online about” office matters.

Order and Reasons of Disc. Matters, United States v. Jackson, Crim. Dock. 13-131, D.E. 156, p.

6 (E.D. La. May 20, 2014). Thus, Broussard cannot show that Letten actually even knew about

Mann’s conduct.


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2. Broussard has not sufficiently alleged prejudice.

Additionally, Broussard, through his attorney, does not allege the prejudice standard

required in Hill, 474. U.S. at 59. He never states that he would have not pleaded guilty and

would have insisted in going to trial. At most, his trial counsel’s affidavit states that counsel

“would not have advised Mr. Broussard to enter a guilty plea at that time,” and that he “would

have made a strong case for withdrawal of the guilty plea . . . .” Jenkins Aff. (D.E. 250-2, pp. 3-

4) (emphasis added). Thus, Broussard’s motion on its face fatally does not properly allege the

correct prejudice standard.

3. Broussard has not established prejudice.

Even if Broussard adequately alleged prejudice, “this bare allegation is not sufficient to

establish prejudice.” Armstead v. Scott, 37 F.3d 202, 201 (5th Cir. 1994). “[I]t is not enough,

under Strickland, ‘that the errors had some conceivable effect on the outcome of the

proceeding.’” Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (quoting Strickland, 466

U.S. at 693). Instead, Broussard must “show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 59. “[T]o obtain relief on this type of claim [of erroneous advice to plead

guilty], a petitioner must convince the court that a decision to reject the plea bargain would have

been rational under the circumstances.” Padilla, 559 U.S. at 372. “The test is objective; it turns

on what a reasonable person in the defendant’s shoes would do.” United States v. Smith, 844

F.2d 203, 209 (5th Cir. 1988). Broussard has not made this showing.

Broussard’s claim that the government concealed needed information is similar to a claim

that a defendant’s counsel failed to discover potentially exculpatory evidence. In each instance,

the defendant does not have information he believes is necessary and helpful. In such cases,

determining whether the error prejudices a defendant by causing him to plead guilty “will depend


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on the likelihood that discovery of the evidence would have led counsel to change his

recommendation as to the plea. This assessment, in turn, will depend in large part on a

prediction whether the evidence likely would have changed the outcome of a trial.” Hill, 474

U.S. at 59. In the Fifth Circuit, relevant factors include the strength of the evidence, benefits

received under plea agreements relative to a defendant’s sentencing exposure should he have

gone to trial, and information made available during a plea colloquy. See United States v.

Hebert, 2014 WL 1329572, at *11 (E.D. La. Apr. 1, 2014) (collecting cases). Likewise, “where

the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense

to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the

affirmative defense likely would have succeeded at trial.” Hill, 474 U.S. at 59. “[T]hese

predictions of the outcome at a possible trial, where necessary, should be made objectively,

without regard for the “‘idiosyncrasies of the particular decisionmaker.’” Id. at 59-60 (citing

Strickland, 466 U.S. at 695).

Objectively, the new “fact” (that Letten supposedly knew of Mann’s conduct) does not

lead to a reasonable probability that Broussard would have insisted on going to trial. Indeed,

Broussard does not claim that he would have gone to trial. Based on the evidence against him,

Broussard had a low chance of winning at trial. Further, he would have faced much greater

exposure had he been found guilty at trial. Finally, Broussard has not explained how, and there

is no legal basis for believing, that revelation of one additional alleged “fact” would have

improved his bargaining position, helped him obtain relief short of trial or guilty plea, or affected

his sentence. As a result, Broussard fails to show prejudice, and his motion should be denied.


17

a. The strength of the evidence was overwhelming.

Whether Broussard is able to persuade the Court that he was prejudiced depends partly on

his chances for success at trial. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995). Here, the

evidence against Broussard was overwhelming. Had Broussard gone to trial, he would have

done so facing all 27 counts of the second superseding indictment that included payroll fraud and

bribery charges. See Second Superseding Indictment. At trial, three of Broussard’s co-

conspirators, which had pleaded guilty pursuant to plea agreement requiring their cooperation,

were prepared to testify that Broussard had created a “no-show” job for his wife. Additionally,

Bill Mack, who had pleaded guilty to bribing Broussard, was prepared to testify for the

government as to the bribery case against Broussard.

The government would have also sought to admit a large amount of documentary

evidence, which had been disclosed to Broussard, in presenting its case. The government

produced and was prepared to introduce thousands of pages of documents during its case-in-

chief. These included payroll records, internal Jefferson Parish reports and correspondence (such

as e-mails), and checks and other payment documents that would have corroborated the

testimony of Broussard’s four co-conspirators. See Govt. Mem. in Opp. to Mot. for Disc. (D.E.

78); Govt. Mot. for Recip. Disc. (D.E. 168). Similarly, the government produced tens of

thousands of additional records, all of which supported a showing that Broussard unlawfully

abused his office in numerous ways, including receiving bribes from Jefferson Parish contractors

and orchestrating a “no show” job for his wife. See id.

Additionally, Broussard’s chances at trial would have been no better had he withdrawn

his guilty plea. At such a trial, the government would have been able to use Broussard’s signed

Factual Basis as affirmative evidence of his guilt during its case-in-chief according to his Plea

Agreement. Broussard “waive[d] any limitations provide[d] by Rule 410 of the Federal Rules of


18

Evidence,” which allows the government to “use the substance of any proffer by the defendant

and the defendant’s signed factual basis for any purpose, including . . . during the United States’s

case-in-chief at trial as affirmative evidence of the defendant’s guilt of the crimes charged.” Plea

Agreement, pp. 3-4. Thus, the evidence would have included Broussard’s own sworn

statements admitting guilt, and it would have been substantial to convict him.4

The new information would not have changed this. That Letten might have known of

Mann’s conduct was not relevant to the charge and would not have been admissible evidence at

trial. Broussard offers no explanation of how this information would have been relevant or

improved his chances at trial. As a result of the relevant substantial physical, testimonial,

substantive, and corroborative evidence that would have been presented, Broussard cannot show

a reasonable probability that he would have insisted on proceeding to trial on 27 counts.

b. Broussard obtained substantial benefits in his plea agreement.

The probability of Broussard proceeding to trial is even more unreasonable considering

the favorable plea agreement that his trial counsel negotiated. Broussard pleaded guilty only to

two counts of a 27-count indictment. See Plea Agreement, p. 1. He faced a maximum exposure

of 15 years imprisonment. 18 U.S.C. §§ 371 and 666(a). Pursuant to the agreement, the

government dismissed the remaining 25 counts, see Plea Agreement, p. 1, including 17 wire-

fraud counts that each carried a potential maximum term of 20 years imprisonment. 18 U.S.C.

§ 1343. Because of his acceptance of responsibility and upon the Government’s motion (D.E.

226), the Court awarded Broussard a three-level reduction in his sentencing guidelines pursuant

to U.S.S.G. § 3E1.1(b). See Order (D.E. 232). These substantial benefits, which had the effect

of capping Broussard’s maximum prison exposure and reducing his guideline range, combined

4 The Court found that the evidence presented at the rearraignment, which included admissions to very specific questions of criminal acts, presented a sufficient factual basis for the guilty plea. Rearraignment Trans., pp. 32-33.


19

with the overwhelming evidence against him, defeat any claim of prejudice. He cannot show a

reasonable probability that he would have proceeded to trial under these circumstances. See,

e.g., United States v. Prewitt, 2010 WL 1416741, at *9 (E.D. La. Apr. 1, 2010) (“Court finds it

unlikely that, under the circumstances, i.e., the favorable, negotiated plea, the evidence the

government had against Prewitt, the possibility the Government might ask the Court to

downward depart in sentencing Prewitt, and the potential consequences of proceeding to trial,

Prewitt would have decided to proceed to trial but for the allegedly erroneous advice he

received.”); Smith, 844 F.2d at 209 (petitioner’s protest that he would have insisted on going to

trial was empty where all co-defendants pleaded guilty and agreed as part of plea bargains to

testify at trial, district court indicated it considered government’s evidence sufficient, and other

charges that each carried a possible fifteen-year sentence were dropped).

c. Broussard would not have obtained a better plea agreement or more advantageous bargaining position.

Broussard’s claim that concealment of the information prejudiced trial counsel from re-

urging an Alford plea has no merit. Both this Court and the government had already rejected the

possibility of an Alford plea, and there is no reasonable basis to believe that the government

would have reconsidered. “United States Attorneys may not consent to the plea known as an

Alford plea except in the most unusual of circumstances and only after recommendation for

doing so has been approved by the Assistant Attorney General responsible for the subject matter

or by the Associate Attorney General, the Deputy Attorney General, or the Attorney General.”

USAM 9-16.015 (internal citation and parenthetical omitted). “Such pleas are particularly

undesirable when entered as part of an agreement with the government.” USAM 9-27.440(B).

This is because “[i]nvolvement by attorneys for the government in the inducement of guilty pleas

by defendants protesting their innocence may create an appearance of prosecutorial


20

overreaching.” USAM 9-27.440(B). Instead of agreeing to Alford pleas, “it is preferable to have

a jury resolve the factual and legal dispute between the government and the defendant, rather

than have government attorneys encourage defendants to plead guilty under circumstances that

the public might regard and questionable or unfair.” Id.

The government would not have consented to an Alford plea. Thus, there is no reason to

believe an Alford plea would have been available. See United States v. Adair, 2008 WL

5082886, at *5 (E.D. La. Nov. 24, 2008) (“Moreover, the United States maintains that it was

unwilling to offer Adair a ‘deal’ other than a guilty plea and any effort by defense counsel to

negotiate a plea bargain would have been unsuccessful. Adair’s ineffectiveness claim based on

failure to negotiate is without merit.”).

Additionally, there is no reason to believe that disclosure of the new information would

have placed Broussard in a better bargaining position, see Broussard § 2255 Mem., pp. 3, 15

Jenkins Aff., p. 2, or that the government would have capitulated to any such negotiation in light

of the blogging matter. To the contrary, the government opposed Broussard’s several motions in

this matter. See Govt. Mem. in Opp. to Mot. for Recusal and Mot. to Disq. (D.E. 94); Govt.

Mem. in Opp. to Mot. to Dis. (D.E. 143); Govt. Mem. in Opp. to Mot. to Change Venue (D.E.

157); Govt. Mem. in Opp. to Mot. for Evid. Hrg. (D.E. 210). Likewise, Broussard’s speculative

references to a dismissal in United States v. Fazzio, and “notable leniency in sentencing” in

United States v. Mouton and United States v. Ton, see Broussard § 2255 Mem., p. 18, do not

support his claim, because the USAO has consistently opposed similar motions for relief based

on the blogging matter in several cases. See, e.g., Govt. Mem. in Opp. to Mot. to Dis., United

States v. Hankton et al, Crim. Dock. 12-001, D.E. 559 (E.D. La.); Govt. Mem. in Opp. to Mot.

for New Tr., United States v. McRae, Crim. Dock. 10-154, D.E. 969 (E.D. La. Jan. 15, 2014);


21

Govt. Mot. in Opp. to Mot. to Dis., United States v. Nagin, Crim. Dock. 13-011, D.E. 82 (E.D.

La. Oct. 16, 2013). The government will also oppose the recently filed motion for new trial,

which is based on the blogging matter, in United States v. Pratt, Crim. Dock. 08-140, D.E. 930

(E.D. La. May 22, 2014). Further, regarding two other matters referenced by Broussard, the

government is appealing Judge Engelhardt’s Order granting a new trial in United States v. Bowen

et al., Crim. Dock. 10-204 (E.D. La.), and Judge Mary Ann Vial Lemmon recently denied a

motion to dismiss an indictment based on claims of Rule 6(e) violations and racial selective

prosecution as a result of blogs attributed to Perricone. See Order Denying Mot. to Dis., United

States v. Jackson, Crim. Dock. 13-131, D.E. 158 (E.D. La. May 23, 2014).5 The government’s

oppositions in these cases contradict any suggestion that the new information would have

improved Broussard’s bargaining position.

Moreover, by arguing that knowledge of the new information would have allowed trial

counsel to reurge the Alford plea and improve his negotiating position, Broussard essentially

concedes that he did not want to go to trial but rather wanted to plead. Trial counsel’s affidavit

stated that he “would not have advised Mr. Broussard to enter a guilty plea at that time.” See

Jenkins’ Aff., p. 3 (emphasis added). Indeed, counsel was “advocat[ing] for a resolution in

which Mr. Broussard would not have to admit guilt.” Id. at 2 (emphasis added). Thus, the

pleadings show that Broussard was advocating for a plea agreement and not a trial. As a result,

Broussard has neither alleged nor shown a reasonable probability that he would not have pleaded

guilty and proceeded to trial as required under Hill, 474 U.S. at 59.

5 Additionally, Magistrate Judge Joseph Wilkinson along with Judge Lemmon have determined that they will not disclose the identities of other bloggers sought by defense counsel in that matter. See Order and Reasons of Disc. Matters, United States v. Jackson, Crim. Dock. 13-131. This negates Broussard’s speculative and unsupported prediction that “[i]t is highly likely that these commenters will be revealed to be members of the government.” Broussard § 2255 Mem., p. 28.


22

4. Broussard repeatedly professed his guilt.

Broussard’s own actions and statements announcing his guilt repudiate any probability

that he would have not pleaded guilty and insisted on going to trial. During his rearraignment,

Broussard, repeatedly and without equivocation, made sworn declarations of guilt and answered

very specific questions from the Court while acknowledging his criminal acts. See

Rearraignment Trans. pp. 8, 13-14, 18, 25-34. These “[s]olemn declarations in open court carry

a strong presumption of verity. The subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in the face of

the record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

In addition to those sworn statements, Broussard, while on video, told a tourist that he

was a crook. See WWL-TV Video posted September 25, 2012.6 Broussard has never sought to

withdraw his guilty plea, even after it was disclosed to him that Mann had blogged, and even

though he thereafter sought an evidentiary hearing to determine the extent of governmental

misconduct. See Broussard Mem. in Supp. of Mot. for Evid. Hrg. Broussard’s actions have

shown, not that he desired to proceed to trial, but rather that he is “a defendant who by his sworn

public admissions is guilty of the crimes charged and has been found so.” Order Denying

Broussard’s Post-Plea of Guilty Mot’s., p. 3.

Broussard continued to admit his guilt at sentencing, stating, “Your Honor, I accept full

responsibility for all the actions that I have pled guilty to. I am sincerely wrong and I apologize

for the wrongs that I have committed. I apologize for the people of Jefferson Parish that elected

me and trusted me in that position. I apologize for bringing dishonor to my position as well as to

6 http://www.wwltv.com/video/mobile/VIDEO-Broussard-to-tourist-Im-a-crook-171221431.html (last visited May 24, 2014).


http://www.wwltv.com/video/mobile/VIDEO-Broussard-to-tourist-Im-a-crook-171221431.html

23

the government that I served. And I will pay for that dishonor for the rest of my life.” Sent.

Trans. (attached as Exhibit “A.” pp. 18-19).

Finally, there is no statement from Broussard himself in the § 2255 motion or supporting

memorandum that he desires to withdraw his guilty plea and proceed to trial. There is no

supporting affidavit from him, and no sentiment expressed in the motion from either his current

or former counsel stating that he now seeks a trial. Instead, the entire motion, supporting

memorandum, and affidavit of prior counsel, none of which credit any statement from Broussard

himself, centers on the argument that prior counsel would have advised Broussard differently or

pushed for another resolution. These factors show it is unreasonable that Broussard would insist

on proceeding to trial.

5. The information is not relevant to Broussard’s 6(e) claims.

Although trial counsel believed that the USAO was leaking grand jury information, see

Jenkins Aff. p. 3, there is no reason to believe that the information, even if true, would have

established a Rule 6(e) violation, or that relief in the form of dismissing the indictment would

have been granted. Broussard does not give any legal basis for believing this could happen.

To the contrary, the case authority suggests that dismissal would not have been granted.

“[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury

proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia v. United States,

487 U.S. 250, 254 (1988). “The prejudicial inquiry must focus on whether any violations had an

effect on the grand jury’s decision to indict.” Id. at 263. “[W]hether the court is acting under its

supervisory authority or its duty to protect the constitutional rights of defendants, an indictment

may be dismissed only where the defendants’ case has been unfairly prejudiced.” United States

v. McKenzie, 678 F.2d 629, 631 (5th Cir. 1982). “When prosecutorial misconduct is the alleged

error, a dismissal of the indictment is appropriate only when the misconduct was prejudicial to


24

the defendant.” United States v. Agu, 245 F.3d 791, 2000 WL 1910161, at *1 (5th Cir. 2000)

(citing Bank of Nova Scotia, 487 U.S. at 255). “[E]ven in the case of the most ‘egregious

prosecutorial misconduct,’ the indictment may be dismissed only ‘upon a showing of actual

prejudice to the accused.’” McKenzie, 678 F.2d at 631 (citing United States v. Merlino, 595 F.2d

1016, 1018 (5th Cir. 1979)). “In other words, [the Court] will dismiss an indictment only when

prosecutorial misconduct amounts to overbearing the will of the grand jury so that the indictment

is, in effect, that of the prosecutor rather than the grand jury.” Id.

Further, in connection with remedies for Rule 6(e) violations, a court must consider the

relief requested. In re Grand Jury Investigation (Lance), 610 F.2d 202, 219 (5th Cir. 1980). “A

criminal defendant who seeks to obtain dismissal of an indictment . . . bears a heavy burden in

attempting to justify such relief.” Id. Other sanctions, if warranted, should be considered.7

Dismissal, which would interfere with the grand jury process, should not be granted without a

showing of actual prejudice when other sanctions may be available. Broussard does not show

how the information would have assisted him regarding this issue, either in proving a Rule 6(e)

violations and obtaining sanctions that would result in relief to his case. He has not established

prejudice, and his motion should be denied.

C. This is not a case where prejudice can be presumed.

While Broussard suggests that prejudice should be presumed in this matter, see Broussard

§ 2255 Mem., p. 5, the speculative blogging knowledge that is the subject of this motion does not

present the type of errors deserving that presumption. Thus, prejudice must be proven. 8

7 The availability of other sanctions is argued below. 8 Broussard mistakenly quotes from United States v. Gutierrez, 548 F. App’x 181 (5th Cir. Dec. 6, 2013), in stating the Fifth Circuit recognized that various kinds of interference with counsel’s assistance are legally presumed to result in prejudice. Broussard § 2255 Mem., p. 5. The quote is actually from Judge Dennis’ dissent, which quoted from Strickland. 548 F. App’x at 188 (Dennis, J., dissenting). The majority in Gutierrez affirmed the district court’s denial of § 2255 relief and held that Gutierrez did not show that his former attorney’s alleged conflict of interest adversely affected his trial counsel’s representation of him. Id. at 184.


25

“[O]nly when surrounding circumstances justify a presumption of ineffectiveness can a

Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.”

United States v. Cronic, 466 U.S. 648, 662 (1984). “There are, however, circumstances that are

so likely to prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.” Id. at 658. The Supreme Court previously mentioned three situations in which

prejudice would be presumed:

First and “[m]ost obvious” was the “complete denial of counsel.” A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at “a critical stage,” Cronic, 466 U.S. at 659, 662 a phrase we used . . . to denote a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused. Second, we posited that a similar presumption was warranted if “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” Cronic, supra, at 659. Finally, we said that in cases like Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected. Cronic, supra, at 659–662, 104 S.Ct. 2039.

Bell v. Cone, 535 U.S. 685, 695-96 (2002).

Thus, “[a]ctual or constructive denial of the assistance of counsel altogether is legally

presumed to result in prejudice. So are various kinds of state interference with counsel’s

assistance.” Strickland, 466 U.S. at 692. Certainly, “[s]ome constitutional violations . . . by their

very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they

can never be considered harmless. Sixth Amendment violations that pervade the entire

proceeding fall within this category.” Satterwhite v. Texas, 486 U.S. 249, 256 (1988).

Yet, such cases involving such denial of counsel are “quite different from a case in which

it is claimed that counsel’s performance was ineffective.” Penson v. Ohio, 488 U.S. 75, 88

(1988). In cases citing deficient performance, a petitioner must show that that counsel’s

performance was deficient and that he was prejudiced. Strickland, 466 U.S. at 687. The Fifth


26

Circuit previously described the differences between the two claims and whether prejudice is

may be presumed or must be proven:

When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; “ ‘bad lawyering, regardless of how bad, does not support the [per se] presumption’ of prejudice. . . .” The question is thus whether Jackson complains of counsel's “maladroit performance,” in which case Strickland prejudice must be shown, or nonperformance, in which case prejudice is presumed.

Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir. 1998) (internal citations omitted).

In this case, Broussard has alleged deficient performance by counsel and not the

constructive or actual denial of counsel. Prejudice should not be presumed, and Broussard

should be required to adequately allege and establish prejudice as defined by Strickland and Hill.

None of the three types of counsel issues mentioned in Bell, supra, is present in this

matter. Trial counsel was with Broussard at all critical stages of the proceedings. He subjected

the prosecution to adversarial testing by seeking discovery, recusal, dismissal, sanctions, and

evidentiary hearings relating to misconduct, and presented objections to the Court in advocating

for a lesser sentence.9 He likewise had sufficient time and conducted an adequate evaluation of

Broussard’s case and provided competent representation. Broussard did not forfeit any hearings

or proceedings.

Instead, similar to the petitioner in Jackson, Broussard’s “complaint is that of shoddy

representation – one essential error in the midst of otherwise adequate representation – rather

than total absence of counsel,” and, as a result, he “must demonstrate that the error complained 9 “[D]efense counsel must entirely fail to subject the prosecution’s case to meaningful adversarial testing for the Cronic exception to apply.” Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002) (emphasis in original) (citing Gochicoa v. Johnson, 238 F.3d 278, 285 (5th Cir. 2000) (holding that “[w]hen the defendant receives at least some meaningful assistance, he must prove prejudice in order to obtain relief for ineffective assistance of counsel”)). Broussard makes no claim that trial counsel committed any such entire failure.


27

of resulted in Strickland prejudice.” Jackson, 150 F.3d at 525 (citing Childress v. Johnson, 103

F.3d 1221, 1228-30 (5th Cir. 1997)). Thus, there is no basis for presuming prejudice even

assuming the information Broussard did not have, that Letten knew of Mann’s conduct, was true.

Herring v. New York, 422 U.S. 853 (1975), upon which Broussard relies and which

vacated a conviction without any discussion of prejudice, is not applicable. In Herring, the

defendant elected a judge-trial on charges of robbery and possession of a dangerous instrument.

422 U.S. at 854. At the conclusion of the case, defense counsel requested to argue, but the trial

court, citing a new state statute, chose not to hear any summations and thereafter found the

defendant guilty. Id. at 856. On review, the Supreme Court determined that “there can be no

justification for a statute that empowers a trial judge to deny absolutely the opportunity for any

closing summation at all.” Id. at 863. The Court reasoned that, because a criminal trial is

basically a fact-finding process, “no aspect of such advocacy could be more important than the

opportunity finally to marshal the evidence for each side before submission of the case to

judgment.” Id. The Court held, “In denying the appellant this right under the authority of its

statute, New York denied him the assistance of counsel that the Constitution guarantees.” Id. at

865.

Here, there was no absence of counsel. Broussard did not forfeit any adversarial

proceeding as the result of his counsel being unaware of anything. At most, the information

unknown to trial counsel that has been alleged to be a new fact, which has not been proven true;

has been contradicted by the OPR Report; is not related to any underlying fact of the indicted

criminal charges; and further would not have provided any relief for Broussard himself by way

of dismissal, acquittal, or leniency. Unlike those cases where prejudice has been presumed, the


28

adversarial process related to the facts and proceedings was not infected by any blogging,

misrepresentations, or other misconduct by the government.

Moreover, Broussard makes no attempt to argue why prejudice should be presumed in

matters involving opinionated anonymous blogs by Perricone and Mann as opposed to other

errors and misconduct that are subject to either harmless error analysis or a requirement that

prejudice or materiality be established before vacating a conviction. See, e.g., United States v.

Bagley, 473 U.S. 667, 678 (1985) (constitutional error occurs, and conviction must be reversed

only if undisclosed exculpatory evidence is material in sense that its suppression undermines

confidence in outcome of trial); Giglio v. United States, 405 U.S. 150, 154 (1972) (“A new trial

is required if ‘the false testimony could . . . in any reasonable likelihood have affected the

judgment of the jury . . . .’”); United States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993) (“To

obtain a reversal on the grounds that the government relied on perjured testimony, the following

must be shown: (1) the contested statements were actually false, (2) the statements were material,

and (3) the prosecution knew that they were false.”); United States v. McCann, 613 F.3d 486,

496 (5th Cir. 2010) (improper comments by prosecutor in closing argument affect defendant’s

substantial rights only when error affected outcome of district court proceedings); see also

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (“The harmless-error doctrine recognizes the

principle that the central purpose of a criminal trial is to decide the factual question of the

defendant's guilt or innocence, and promotes public respect for the criminal process by focusing

on the underlying fairness of the trial rather than on the virtually inevitable presence of

immaterial error.”). There is no reason to establish a presumption of prejudice here. “Reversal

for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial


29

process and bestirs the public to ridicule it.” Van Arsdall, 475 U.S. at 681 (citing R. Traynor,

The Riddle of Harmless Error 50 (1970)).

D. The relief sought is not an appropriate remedy for prosecutorial misconduct in this matter.

Vacating Broussard’s guilty plea conviction and sentence is not an proper response to

misconduct attributed to two former USAO members where the conduct falls short of

prejudicing Broussard and where other ways to address the misconduct are available. Broussard

does not explain why, and presents no legal precedent for stating that, the only way to “bring the

proceedings . . . in line with the U.S. Constitution and specifically the Sixth Amendment [is] by

vacating Mr. Broussard’s conviction, or, in the alternative, by vacating his sentence, and

resentencing him in a way that considers the full extent of prosecutorial misconduct that has

infected his case.” Broussard § 2255 Mem., p. 29. Other more appropriate sanctions, including

bar disciplinary proceedings, are available to deal with any misconduct. See Fed. R. Crim. P.

6(e)(7) (violations may be punished by contempt proceedings); In re Snyder, 472 U.S. 634, 643

(1985) (court is able to supervise and discipline attorneys practicing before it); Rule 8.1, E.D. La.

Rules of Lawyer Disciplinary Enforcement (District Court en banc may impose disbarment,

suspension, public reprimand, private admonition, monetary sanctions, restitution, probation, and

other appropriate sanctions); In re Crabson, 115 So.3d 452, 456 (La. 2013) (Louisiana Supreme

Court has original jurisdiction over bar disciplinary matters); Rule 8.5(a), La. Rules of

Professional Conduct (lawyer admitted to practice in Louisiana is subject to the disciplinary

authority of Louisiana regardless of where conduct occurs).

Assuming misconduct, these other remedies and methods to address misconduct are more

appropriate in a case such as this, where Broussard admitted his guilt freely and voluntarily and

where he has failed to show how one additional speculative piece of information, which itself has


30

not been proven true and has been discredited by the OPR Report, would have made a difference

in his case.

In light of this, this Court should not upset a valid conviction simply because the

blogging incident occurred and because Broussard seeks to explore the full extent of misconduct.

Without a showing of prejudice, Broussard’s guilty plea should remain unaffected. “A federal

judge is not authorized to punish the misconduct of a prosecutor by letting the defendant walk,

unless the misconduct not only violated the defendant’s rights but also prejudiced his defense,

and neither condition is satisfied here.” United States v. Van Engel, 15 F.3d 623, 631 (7th Cir.

1993), abrogation on other grounds recognized by United States v. Canoy, 38 F.3d 893, 902 (7th

Cir. 1994); see also, e.g., United States v. Poole, 735 F.3d 269, 278 (5th Cir. 2013) (“[A] new

trial is not a mechanism for punishing contempt, by a prosecutor or otherwise, but a way to avoid

injustice generally and to avoid a jury verdict for which one has compromised confidence

specifically.”); United States v. Stanford, 589 F.2d 285, 299 (7th Cir. 1978) (“The purpose of the

Sixth Amendment is to secure a fair trial for the accused. To dismiss the indictments here in the

absence of any showing of prejudice would not further this purpose, but rather would constitute a

‘punishment of society for misdeeds of a prosecutor.’”); United States v. Mouton, 2013 WL

3187265, at *4 (E.D. La. June 20, 2013) (Feldman, J.) (“Even if the Court granted Mouton

discovery, he has failed to suggest how (even assuming the suspected governmental misconduct),

he was prejudiced when, as this Court has underscored, he entered a knowing, voluntary, and

intelligent plea of guilty after a withering judicial inquiry in a public court proceeding while

under oath.”).

1. Sentencing of a defendant is not related to governmental misconduct.

Even if the collateral-rights waiver in the written Plea Agreement does not bar

consideration of whether ineffective assistance of counsel affected Broussard’s guilty plea and


31

waiver, it does bar consideration of Broussard’s request to vacate his sentence and impose a new

sentence that considers the extent of governmental misconduct. See United States v. White, 307

F.3d 336, 344 (5th Cir. 2002) (“White claims ineffective assistance of counsel, but he does not

claim that the waiver in his plea agreement was unknowing or involuntary. That plea required

White to forego his right to relief in appeals just like this one, and he knew that when he signed

it.”).

Moreover, Broussard’s claim for resentencing based on governmental misconduct should

be denied. Broussard does not assert any error in his sentence but only speculates that new

information could have resulted in a more lenient sentence. He gives no legal authority to

suggest that governmental misconduct, and specifically the unproven allegation that Letten knew

about Mann’s involvement, could, should, and would have been taken into consideration by this

Court in fashioning its sentence.

Misconduct in this matter should not entitle Broussard to resentencing. According to 18

U.S.C. § 3553(a), a sentence sufficient, but not greater than necessary, should be imposed to

comply with four considerations. “These four considerations – retribution, deterrence,

incapacitation, and rehabilitation – are the four purposes of sentencing generally, and a court

must fashion a sentence ‘to achieve the[se] purposes . . . to the extent that they are applicable’ in

a given case.” Tapia v. United States, 131 S. Ct. 2382, 2387 (2011) (citing 18 U.S.C. § 3551(a)).

Courts have previously held that misconduct is generally not appropriately considered in

fashioning a sentence. See United States v. Valencia-Lucena, 925 F.2d 506, 515 (1st Cir. 1991)

(“A sentencing departure is not warranted in response to conduct of the government or of an

independent third party.”); United States v. Gomez-Villa, 59 F.3d 1199, 1203 (11th Cir. 1995)

(departure based on governmental misconduct would be contrary to guidelines’ goal of deterring


32

criminal conduct and promoting respect for the law). Moreover, Broussard, his counsel, and this

Court were all aware of the allegations as to both Perricone and Mann at the time of sentencing

on February 25, 2013. Broussard has not shown how knowledge of one additional piece of

information would have resulted in a more favorable sentence for him.

Moreover, Broussard’s speculations as to the reasons behind sentences of defendants in

other cases are not based in substance. Although Broussard speculates as to why certain

sentences were given in other cases, he fails to support any of his claims with evidence.

2. Defense counsel’s desire to expose misconduct is not a reason to grant relief.

Finally, Broussard’s suggestion that only defense attorneys are able to hold the

government accountable for the misconduct is not accurate. As stated above, the Court, state bar

associations, and disciplinary counsel are well able to discipline the lawyers appearing before the

Courts. OPR has authority to investigate. Here, Perricone and Mann each permanently resigned,

not only from the USAO, but from the practice of law before the Judges of the Eastern District of

Louisiana. See Former federal prosecutors resign from practice in Eastern District.10 Thus, it is

not necessary or appropriate to vacate Broussard’s plea or sentence in order to expose or punish

misconduct in this matter.

10 http://www.nola.com/crime/index.ssf/2014/04/post_374.html (last visited May 27, 2014).


http://www.nola.com/crime/index.ssf/2014/04/post_374.html

33

CONCLUSION

For the foregoing reasons, the government requests that Aaron Broussard’s motion be

dismissed per the terms of his Plea Agreement. Alternatively, the government requests that the

motion be denied on the merits.

Respectfully submitted, /s/ Kevin G. Boitmann KEVIN G. BOITMANN Assistant United States Attorney La. Bar No. 26203 650 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Telephone: (504) 680-3109

CERTIFICATE OF SERVICE

I hereby certify that on May 27, 2014, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record.

/s/ Kevin G. Boitmann KEVIN G. BOITMANN Assistant United States Attorney


Documents

UNITED STATES DISTRICT COURT EASTERN …media.nola.com/crime_impact/other/Aaron Broussard ineffective... · Case 2:11-cr-00299-HH-FHS Document 267-2 Filed 05/27/14 Page 1 of 33. 2