U.S. v. Brown

• Citation: 298 F.3d 392
• Decision Date: 15 July 2002
• Docket Number: No. 01-30771.,01-30771.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil BROWN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 392

298 F.3d 392

UNITED STATES of America, Plaintiff-Appellee, v. Cecil BROWN, Defendant-Appellant.

No. 01-30771.

United States Court of Appeals, Fifth Circuit.

July 15, 2002.

COPYRIGHT MATERIAL OMITTED

Peter Guido Strasser, Asst. U.S. Atty. (argued), Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, Chief Judge, and EDITH H. 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 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. 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 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 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 162.

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 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...