including overt act requirement as element of murder-for-hire conspiracy
How later courts described this case
- including overt act requirement as element of murder-for-hire conspiracy
Written by the judges who cited it.
The opinion
Case: 22-30656 Document: 298-1 Page: 1 Date Filed: 04/25/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-30656 FILED
____________ April 25, 2025
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald
Wilson, Jr.,
Defendants—Appellants.
______________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CR-32-2
______________________________
Before Higginbotham, Stewart, and Haynes, Circuit Judges. *
Patrick E. Higginbotham, Circuit Judge:
Defendants Louis Age Jr., Louis Age III, Stanton Guillory, and Ronald
Wilson were convicted and each sentenced to terms of life imprisonment for
their involvement in the murder-for-hire of Milton Womack, a federal
witness in a healthcare fraud case. Defendants collectively raise ten issues on
appeal. Finding no error of the district court, we AFFIRM.
_____________________
*
Judge Haynes concurs in the judgment only.
Case: 22-30656 Document: 298-1 Page: 2 Date Filed: 04/25/2025
No. 22-30656
I.
A.
The history of this case began with an earlier healthcare fraud case in
the Middle District of Louisiana. In August 2011, a federal grand jury charged
Louis Age Jr. (“Age Jr.”), Ayanna Age (“Ayanna”), Milton Womack, and
others with conspiracy to commit healthcare fraud, conspiracy to receive and
pay healthcare kickbacks, and making false statements to receive payments
from Medicare.
Age Jr. owned South Louisiana Home Healthcare Agency (“South
Louisiana”). His daughter, Ayanna, helped him run the business. Though
Age Jr.’s son, Louis Age III (“Age III”), did not work for the company, he
was on the payroll. South Louisiana paid illegal kickbacks for patient referrals,
and Womack was a recruiter who received illegal kickbacks. And in a separate
venture, Womack and Age III burned down a New Orleans school owned by
Age Jr. as part of an insurance fraud scheme.
1.
As Womack knew about the healthcare fraud at South Louisiana and
the burning of the New Orleans school, Age Jr. became concerned about
Womack’s inclusion in the healthcare fraud indictment. So Age Jr. hired
Hilliard Fazande to represent Womack in the healthcare fraud case. Through
Fazande, Age Jr. gave Womack cash payments to “be quiet and to cooperate
with Fazande and [Age Jr.].” Then in December 2011 and again in March
2012, Womack contacted defense attorney Michael Fiser because “he was
not comfortable with his present attorney Mr. Fazande” and wanted his
“own lawyer.” Following a Garcia 1 hearing, the court appointed Fiser to
_____________________
1
United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), abrogated on other grounds by
Flanagan v. United States, 465 U.S. 259, 263 (1984). If a defendant chooses to proceed with
2
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replace Fazande as Womack’s attorney. Womack met with Fiser and told
him that he wanted to speak to the Prosecution. Soon thereafter, Fiser
negotiated a plea agreement for Womack. The district court set a
rearraignment date, with an electronic notification sent to all parties
involved—including Age Jr.—scheduling Womack’s rearraignment for the
following week.
As it became clear to Age Jr. that Womack might indeed become a
government witness in the healthcare fraud case, he decided at a meeting
with Ayanna and her then-husband, Kendrick Johnson, to kill Womack.
Johnson, Age III, and Wilson, a friend of Age III, set out to find Womack’s
whereabouts in New Orleans, while Age III searched for a hired gun.
In July 2012, at a repass gathering in New Orleans, Age III, Wilson,
and members of the Young Mafia Fellaz (“YMF”) gang Stanton Guillory,
Raheem Jackson and Brian Marigny were present. The YMF members knew
Age III and Wilson through a New Orleans “chop shop” that sold stolen car
parts and facilitated insurance fraud by intentionally wrecking cars and filing
insurance claims. At the repass, Age III was overheard telling Wilson that
“he got to kill some n*gg* he about to get ready to go to court.” Age III was
also seen conversing with Guillory. Following that conversation, Guillory
told Jackson that Age III would pay Guillory $5,000 to murder Womack.
Guillory did not have his own cell phone, so he added Age III’s number to
both Jackson’s and Marigny’s phones.
Guillory, Jackson, and Marigny then began searching for Womack in
the Gentilly neighborhood of New Orleans, as Age III had told them Womack
_____________________
representation by counsel who has a conflict of interest, a district court must conduct a
“Garcia” hearing to ensure a valid waiver by the defendant of his Sixth Amendment right.
Garcia, 517 F.2d at 278.
3
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No. 22-30656
was staying there at Conteryl Nicholas’s—his girlfriend—house. On July 27,
2012, after spotting Womack, Guillory and the other YMF members shot
and killed him. Guillory used a Glock Model 23 firearm that he and Jackson
had stolen, and a red Chevrolet Monte Carlo that they had carjacked, to
commit the murder.
Age III, however, failed to pay Guillory the full $5,000. In the days
after the murder, Guillory called Age III multiple times a day for the
remainder of the money. On August 1, 2012, Guillory was arrested after a
high-speed chase in the same red Monte Carlo used to murder Womack.
2.
At around the time that Womack was murdered, Ayanna retained
bankruptcy attorney Sharry Sandler to represent her in the healthcare fraud
case. During meetings involving Sandler, Ayanna, and other members of the
defense team—including Fazande—Ayanna was pressured to lie. Sandler
recommended that Ayanna plead guilty, Ayanna complied, and she began
cooperating with the Prosecution in the healthcare fraud case.
Age Jr. learned of Ayanna’s plea and cooperation with the
Prosecution, and became “extremely upset” with her. Age III told Ayanna
that she was “dead” to the family, and Johnson told her that she could not
come back to the family house. And Age Jr. sued Ayanna to take back rental
properties that he had given to her, and unsuccessfully tried to initiate a
criminal case against her for embezzlement.
4
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No. 22-30656
Ayanna testified against Age Jr. in the healthcare fraud case. 2 Age Jr.
was convicted, and this Court affirmed his 2015 convictions. 3
B.
In August 2017, a federal grand jury in the Eastern District of
Louisiana returned an 11-count indictment charging Age Jr., Age III,
Guillory, and Wilson with multiple counts of obstructing justice in the
healthcare fraud case, including the murder of Womack. 4 In April 2022, a
jury convicted the Defendants on all counts, but acquitted Age III of
conspiracy to retaliate against Ayanna.
The district court sentenced each defendant to at least one term of life
imprisonment. In October 2022, the Defendants timely appealed their
convictions and sentences, raising ten issues. None persuade.
II.
We turn first to the sufficiency of the evidence supporting the
convictions. 5
_____________________
2
Because the first trial resulted in a mistrial, there were two trials in that case.
Ayanna testified in both.
3
United States v. Age, 614 F. App’x 141, 146 (5th Cir. 2015) (unpub.).
4
The indictment also charged Johnson. He pleaded guilty in February 2022, and
is not a party in this appeal.
5
Age Jr. and Wilson do not raise sufficiency challenges in their briefs. Though the
defendants have adopted each other’s arguments under FED. R. APP. P. 28(i), sufficiency
of the evidence challenges are fact-specific and thus cannot be adopted. See United States
v. Solis, 299 F.3d 420, 444 n.70 (5th Cir. 2002). Age Jr.’s and Wilson’s failures to brief
sufficiency of the evidence means that they have waived the issue. See also, United States v.
Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) (“Failure of an appellant to properly argue or
present issues in an appellate brief renders those issues abandoned.”). Because Age III and
Guillory challenge multiple convictions, we address the counts in groups based on the
relevant underlying conduct.
5
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A.
This Court reviews preserved challenges to the sufficiency of the
evidence de novo, 6 reviewing “the record to determine whether, considering
the evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” 7 “The jury retains the sole
authority to weigh any conflicting evidence and to evaluate the credibility of
the witnesses.” 8And where Defendants fail to preserve their sufficiency of
the evidence challenges, this Court reviews for plain error, that is “only if
there is a ‘manifest miscarriage of justice[,]’” 9 which “exists only if the
record is devoid of evidence pointing to guilt, or . . . because the evidence on
a key element of the offense is so tenuous that a conviction would be
shocking.” 10
B.
A rational juror could find beyond a reasonable doubt that Age III
joined a conspiracy to commit murder-for-hire (Count 1) and committed
_____________________
6
United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017).
7
United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc)
(citation omitted).
8
Gibson, 875 F.3d at 185 (cleaned up).
9
United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quoting
United States v. Pierre, 958 F.2d 1304, 1311 (5th Cir. 1992) (en banc)) (emphasis in original).
See also, FED. R. CRIM. P. 52(b).
10
United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (cleaned up).
6
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No. 22-30656
murder-for-hire (Count 2). 11 As Age III did not challenge these counts at trial,
this Court applies plain-error review.
1.
To prove a conspiracy to commit murder-for-hire, the prosecution
must demonstrate: (1) an agreement by two or more persons to commit
murder-for-hire; (2) the defendant’s knowing and voluntary participation in
the agreement; and (3) an overt act committed by any one of the conspirators
in furtherance of the conspiratorial objective. 12 And for the substantive
offense of murder-for-hire, the Prosecution must show that the defendant
has: (1) used or caused another person to use any facility of interstate
commerce; (2) “with intent that a murder be committed in violation of the
laws of any State or the United States”; (3) “as consideration for the receipt
of . . . anything of pecuniary value[.]” 13
To prove the murder-for-hire conspiracy, the Prosecution presented
multiple witnesses. Jackson testified that in mid-July 2012, Age III and
Guillory negotiated the hit on Womack. Marigny testified that Age III and
Guillory—following their initial conversation about the murder—spoke on
the phone multiple times a day to coordinate the murder-for-hire, that Age
III and Wilson showed Guillory and the other YMF members Nicholas’
house on Verbena Street where Womack often stayed “a day or two” before
the murder, and that Age III provided a description of Womack to Guillory.
_____________________
11
Count One charged Age III and Guillory with conspiracy to commit murder-for-
hire in violation of 18 U.S.C. § 1958. Count Two charged Age III and Guillory with the
substantive offense of murder-for-hire in violation of 18 U.S.C. §§ 1958, 2.
12
United States v. Walker, 596 F. App’x 302, 309-10 (5th Cir. 2015) (unpub.). See
also 18 U.S.C. § 1958.
13
Walker, 596 F. App’x at 309.
7
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No. 22-30656
Turning to the substantive offense, both Jackson and Marigny
testified that they saw Guillory use the stolen Glock to murder Womack.
Jackson added that Guillory and the YMF members were compensated with
money and other benefits by Age III and Wilson while they were searching
for Womack; that after the murder, Age III paid Guillory, albeit less than he
had originally promised; and that Guillory attempted to call Age III “every
day all day” to get the rest of the money. The Prosecution corroborated this
evidence with a recorded jail cell phone conversation between Buddy
Lewis—a YMF gang member—and Guillory, in which Lewis told Guillory
that Age III owed Guillory money for the hit. 14
2.
In sum, viewed in the light most favorable to the verdict, the trial
evidence was adequate to prove beyond a reasonable doubt that Age III
knowingly and voluntarily entered into a conspiracy to achieve the unlawful
purpose of murdering Womack. Multiple witnesses testified to that effect,
and the Prosecution provided circumstantial evidence to corroborate their
testimony. There was no error.
C.
We turn next to Age III and Guillory’s challenges to their convictions
for conspiracy to tamper with a federal witness (Count Three), 15 and the
_____________________
14
During the recorded jail cell telephone conversation, Lewis told Guillory: “Big
Lou got to pay for that, man. Big Lou come and pay for that. I got his number”. At trial,
Lewis testified that in this phone call, he was referring to the “money Big Lou owes Nan
. . . . [f]or the murder.”
15
Count Three charged Age III and Guillory with conspiracy to tamper with a
federal witness through Womack’s murder in violation of 18 U.S.C. §§ 1512(a)(1)(A),
1512(a)(3)(A) and 1512(k). The elements of a § 1512(k) conspiracy include: “(1) an
agreement between the defendant and at least one other person to pursue the object of the
conspiracy, (2) the defendant’s knowledge of the unlawful purpose of the agreement, and
8
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No. 22-30656
substantive offense of federal witness tampering (Count Four). 16 Age III also
challenges his conviction for the substantive offense of witness tampering
through Womack’s murder to prevent his testimony related to the arson of a
New Orleans school (Count Five). We find that the Prosecution gave the jury
sufficient evidence to conclude beyond a reasonable doubt that Age III and
Guillory unlawfully conspired to and committed witness tampering.
1.
The substantive offense of witness tampering criminalizes the act of
killing or attempting to kill another person, with the intent to “prevent the
attendance or testimony of any person in an official proceeding[,]” 17 or to
“prevent the communication by any person to a law enforcement officer or
judge of the United States of information relating to the commission or
possible commission of a Federal offense[.]” 18
The Prosecution relied on direct trial testimony to establish a murder-
for-hire conspiracy among Age III, Guillory, and others to prevent Womack’s
testimony in the healthcare fraud case and the arson-related insurance fraud
scheme. Ayanna testified that Age III assisted Womack with the arson of the
school, and that Age Jr. had voiced concerns about Womack regarding “the
arson and not just the recruiting of the patients[.]”Ayanna also stated that
after Age Jr. learned of Womack’s decision to plead in the healthcare fraud
_____________________
(3) that an overt act was taken by one of the conspirators toward carrying out the object of
the conspiracy.” United States v. Said, No. 21-10588, 2023 WL 167213, at *3, *3 n.17 (5th
Cir. Jan. 12, 2023) (unpub.).
16
Count Four charged Age III and Guillory with the substantive offense of witness
tampering through Womack’s murder to prevent Womack’s testimony in the healthcare
fraud trial, in violation of 18 U.S.C. §§ 1512(a)(1)(A), 1512(a)(3)(A), and 2.
17
18 U.S.C. § 1512(a)(1)(A).
18
Id. at § 1512(a)(1)(C).
9
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case, the decision was made to kill Womack, and that soon thereafter,
Johnson and Age III set out to find Womack.
Jackson provided testimony of Guillory’s involvement in both the
conspiracy and the substantive offense of witness tampering. He testified that
following Age III and Guillory’s conversation at the repass gathering,
Guillory told Jackson that Age III wanted him “to kill somebody for him.”
Lewis’ testimony provided additional support for Guillory’s knowledge that
Womack was a federal witness: he stated that when Guillory told Lewis that
“he was going to take the hit” for Age III, Lewis cautioned him against killing
a federal witness, but Guillory brushed Lewis’ concerns off.
2.
As Guillory preserved his challenges to Counts Three and Four, we
review his claims de novo and find sufficient evidence in the record to support
the jury’s verdict. 19 Testimony from the YMF members establish that
Guillory knew Womack was a federal witness and plotted to kill Womack to
prevent his testimony in the healthcare fraud trial.
We review Age III’s claims as to Counts Three, Four and Five for
plain error as he failed to preserve the claims at trial. Age III raises two
arguments to support his challenge. Neither is convincing. First, Age III
argues that his conviction under Count Three is invalid because the jury
verdict failed to specify the basis for their conviction. The Prosecution’s
indictment charged defendants with conspiring to kill Womack under two
theories of guilt: (1) to prevent Womack from testifying in the healthcare
fraud trial, and (2) to prevent Womack from providing information related to
_____________________
19
Gibson, 875 F.3d at 185.
10
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the arson to law enforcement officials. Age III argues that the jury should
have been asked to make clear its theory of guilt.
This Court, however, has upheld the use of similar jury verdict forms
in cases where the jury was given sufficient instructions to guard against a
non-unanimous verdict. 20 The unanimity jury instructions here did not
meaningfully differ from the instructions this Court has approved and are
sufficient. 21
Second, Age III argues that the Prosecution did not establish that
Womack died. But this claim is undermined by a trove of evidence presented
by the Prosecution at trial, including eyewitness testimony from Jackson and
Marigny, and testimony from the Prosecution’s lead homicide detective that
he attended Womack’s autopsy and observed that Womack had suffered
gunshot wounds to the head and shoulders.
Under a plain-error standard of review, the evidence supporting Age
III’s convictions for Counts Three, Four, and Five were sufficient.
_____________________
20
See, e.g., United States v. Mauskar, 557 F.3d 219, 226-27 (5th Cir. 2009).
21
Compare the district court’s unanimity instructions (“You will note that the
indictment charges the defendants with conspiring to kill Womack with two different
intentions. The Government does not have to prove both of these for you to return a guilty
verdict on this count. Proof beyond a reasonable doubt on one is enough. But in order to
return a guilty verdict, all of you must agree that the same one has been proved. All of you
must be in agreement that the Government proved beyond a reasonable doubt that the
defendants conspired to kill Womack with an intent to prevent Womack from attending or
testifying in the healthcare fraud trial in the Middle District of Louisiana, or all of you must
agree that the Government proved beyond a reasonable doubt that the defendants
conspired to kill Womack to prevent Womack from communicating to law enforcement
about the use of fire to commit mail fraud.”), with Mauskar, 557 F.3d at 226-27.
11
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D.
Age III and Guillory also challenge their convictions for conspiracy to
commit witness retaliation (Count Six) and for the substantive offense of
witness retaliation (Count Seven). 22
1.
A defendant is guilty of retaliating against a witness if he “kills or
attempts to kill another person with intent to retaliate against any person for
. . . providing to a law enforcement officer any information relating to the
commission or possible commission of a Federal offense[.]” 23 A defendant
who conspires to commit the offense of retaliation “shall be subject to the
same penalties as those prescribed for the offense the commission of which
was the object of the conspiracy.” 24 And, “under 18 U.S.C. § 1513, the
Government need not establish an intent to carry out the threat; the only
intent required is an intent to retaliate.” 25
Here, to establish context, the Prosecution brought evidence of tense
conversations between Womack and Age Jr. regarding the healthcare fraud
case. Fiser testified that following Womack’s Garcia hearing, Womack told
_____________________
22
Count Six charged Age III and Guillory with the conspiracy to retaliate against
Womack for providing information to a law enforcement officer, in violation of 18 U.S.C.
§§ 1513(a)(1)(B), 1513(a)(2)(A), and 1513(f). Count Seven charged Age III and Guillory
with substantive retaliation against Womack, in violation of 18 U.S.C. §§ 1513(a)(1)(B),
1513(a)(2)(A), and 2.
23
18 U.S.C. § 1513(a)(1)(B).
24
Id. at § 1513(f).
25
United States v. Maggitt, 784 F.2d 590, 593-94 (5th Cir. 1986) (citation omitted).
12
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No. 22-30656
Fiser that he had a “very heated exchange” with Age Jr. Both Nicholas and
Ayanna testified that they overheard phone conversations between Womack
and Age Jr., including Womack telling Age Jr. that he was not going to take a
“f’ing charge.” Fiser and James Gray, Age Jr.’s attorney in the healthcare
fraud case, also testified that Womack was murdered just two days after an
electronic notification for his rearraignment was sent to all parties in the
healthcare fraud case.
As for Age III and Guillory’s involvement, the Prosecution relied on
its evidence for Counts Three, Four, and Five as proof that Age III hired
Guillory to kill Womack because Womack agreed to cooperate in the
healthcare fraud case.
2.
As to Guillory’s preserved claims under Counts Six and Seven, we are
persuaded that there was sufficient evidence in the record to support the
jury’s verdict. That Womack was a federal witness and was allegedly
murdered because of his decision to cooperate in the healthcare fraud case is
sufficient evidence of retaliation; a reasonable juror could find that Guillory
conspired to retaliate—and did retaliate—against Womack.
We also find no plain error in Age III’s convictions. 26 The Prosecution
provided sufficient evidence to prove that Age III hired and paid Guillory to
kill Womack, and thus that Age III was a part of the conspiracy and
substantive offense of witness retaliation against Womack.
_____________________
26
Age III failed to preserve his claims as to Counts Six and Seven at trial, and we
review them for plain error. Delgado, 672 F.3d at 328.
13
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E.
Age III challenges his conviction for witness tampering of Womack
and Ayanna (Count Eight). 27 Count Eight targets obstructive conduct
unrelated to Womack’s murder, including cash payments and other benefits
given to Womack to prevent him from testifying in the healthcare fraud case,
as well as intimidating Ayanna.
1.
Turning first to Ayanna, the Prosecution presented evidence—via
Ayanna’s own testimony—of Age Jr.’s attempts to threaten and intimidate
her when he discovered that she had agreed to cooperate against him in the
healthcare fraud trial. Such obstructive conduct included Age Jr.’s forcing
Ayanna and her daughters out of the Age family home in Slidell, Louisiana;
Age Jr.’s lawsuit against Ayanna to take back rental properties that he had
previously purchased in her name; and Age Jr.’s attempt to initiate a criminal
case against her for embezzlement. Ayanna also testified as to Age III’s
participation, stating that after she pleaded guilty in the healthcare fraud
case, Age III told her that she was “dead” to the family and that she was
“nothing without [her] daddy.” Ayanna further testified that Age III helped
Age Jr. in taking back the rental properties by delivering documents that—if
signed—would return custody of the rental properties to Age Jr.
As to Womack, the Prosecution provided evidence of Age Jr.’s
payments to Womack through Fazande “to keep him . . . quiet.” Ayanna
testified that Age III received payments from South Louisiana, which were at
_____________________
27
Count Eight charged Age III with conspiracy to commit witness tampering as to
Womack and Ayanna, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(3), and 1512(k).
14
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No. 22-30656
issue in the healthcare fraud case, and that Age III had assisted Womack in
burning the school.
2.
We review Age III’s claims as to Ayanna de novo and affirm the jury’s
verdict. 28 Age III argues that “[m]erely telling someone that they are no
longer in your life . . . is not evidence of retaliation[.]” We disagree. Given
the context of Ayanna’s “[a]lmost inseparable[,]” “[e]xtremely close”
relationship with her father, a rational juror could infer that Age III’s
statement was a threat with the intent to influence Ayanna’s decision to
cooperate with the Prosecution. 29 And Age III’s assertion that there was no
specific testimony of his knowledge of the housing lawsuits or criminal
charges against Ayanna is belied by her testimony that Age III hand-delivered
documents related to the custody of the rental properties.
Reviewing Age III’s claims regarding Womack for plain error, 30 we are
not persuaded that the jury’s verdict was a “manifest miscarriage of
justice.” 31 Given the evidence supporting Age III’s involvement in
Womack’s murder and the circumstantial evidence establishing the threat
that Womack’s cooperation would have posed to Age III, a rational juror
could have concluded that Age III knew and approved of Age Jr.’s payments
to Womack through Fazande.
Age III next challenges his conviction under Count Eight, arguing that
the verdict form failed to identify the specific intention the jury agreed upon.
_____________________
28
Age III preserved his Count Eight claims related to Ayanna at trial.
29
See Maggitt, 784 F.2d at 594.
30
As Age III did not preserve his Count Eight claims related to Womack at trial,
we review for plain error. Delgado, 672 F.3d at 328.
31
Id. at 331 (emphasis in original) (cleaned up).
15
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Again, this claim is meritless: this Court has approved the use of identical
unanimity instructions in other cases, finding them sufficient. 32
F.
Age III next challenges his conviction for making false statements to
the FBI, in violation of 18 U.S.C. § 1001 (Count Eleven). As Age III did not
preserve this claim at trial, we apply a plain error standard of review and find
none. 33
1.
“To sustain a conviction under § 1001, the government must prove
that [the defendant] (1) made a statement (2) that was false (3) and material
(4) knowingly and willfully and (5) that falls within agency jurisdiction.” 34
“Statements are material within the meaning of § 1001 when they have the
natural tendency or capacity to deceive, affect, or influence the federal
agency.” 35 “The standard is not whether the false statement actually
influenced . . . or . . . probably influenced [a government] decision; the
standard is whether the misrepresentation was capable of influencing the
agency decision.” 36
The Prosecution relied on testimony from FBI case agent Chuck
Williams, who interviewed Age III and testified that Age III told him that he
did not recall his own cell phone number; recognize his grandfather’s name;
_____________________
32
See Mauskar, 557 F.3d at 226-27.
33
Delgado, 672 F.3d at 328.
34
United States v. Ricard, 922 F.3d 639, 651 (5th Cir. 2019) (cleaned up).
35
United States v. Sidhu, 130 F.3d 644, 650 (5th Cir. 1997) (cleaned up).
36
United States v. Richardson, 676 F.3d 491, 505 (5th Cir. 2012) (emphasis in
original) (cleaned up).
16
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nor explain why the listing of his home address was on the billing records of
his cell phone number.
2.
As with Counts Three and Eight, Age III argues that his conviction for
Count Eleven should be vacated because “the verdict form did not make any
additional findings as to which statement the jury agreed upon[.]” Age III’s
challenge here is unconvincing. This Court has upheld the use of similar jury
verdict forms. 37 And he has failed to identify any evidence of confusion or
disagreement within the jury regarding Count Eleven. 38
He also argues that “the [G]overnment has not shown that the
statements [he] allegedly gave were material” as law enforcement was
already aware of the information. The standard for materiality, however, is
broad: the false statements need not have influenced a government decision;
they need only be capable of doing so. 39 Here they were, as they had the
ability to deceive the Government.
G.
Age III and Guillory raise—and we reject—a final challenge to their
various convictions, arguing that the Prosecution relied primarily on
uncredible witnesses whose testimony was “not adequate and sufficient to
support” their convictions. And, though Age III acknowledges that a co-
_____________________
37
See United States v. Creech, 408 F.3d 264, 268 (5th Cir. 2005).
38
See United States v. Tucker, 345 F.3d 320, 336-37 (5th Cir. 2003) (finding no plain
error where appellant “does not corroborate his claim of prejudicial error with a modicum
of evidence tending to show that the jury was confused or possessed any difficulty reaching
a unanimous verdict.”).
39
See Richardson, 676 F.3d at 505.
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conspirator’s uncorroborated testimony may sustain a conviction, he argues
that the testimony at issue is “incredible.”
“[A] guilty verdict may be sustained if supported only by the
uncorroborated testimony of a co-conspirator . . . unless the testimony is
incredible or insubstantial on its face.” 40 “Testimony is incredible as a
matter of law only if it relates to facts that the witness could not possibly have
observed or to events which could not have occurred under the laws of
nature.” 41 The witness testimony here does not reach the threshold of
“incredible”: each of the witnesses had firsthand knowledge of Age III and
Guillory’s involvement in the conspiracy and murder-for-hire offense. 42 And
“the jury decides credibility of witnesses, not the appellate court.” 43 The
district court provided special jury instructions on witness credibility,
instructing the jury to weigh the testimony heard with “greater care and
caution than the testimony of ordinary witnesses.” The jury nevertheless
convicted Age III and Guillory on these counts.
Age III also argues that the Prosecution failed to prove that he was part
of any conspiracy. He asserts that his “association” with Age Jr.’s actions
were due to family connections, and that the Prosecution failed to prove that
Age III acted on his own volition. This argument also fails. The evidence
presented by the Prosecution—including witness testimony and
corroborating circumstantial evidence—shows that Age III played an active
role in Womack’s murder-for-hire and witness tampering of Ayanna.
_____________________
40
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994) (citations omitted).
41
Id. (citations omitted).
42
Id.
43
United States v. Kieffer, 991 F.3d 630, 634 (5th Cir. 2021).
18
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III.
Defendants also challenge the admission of certain evidence at trial,
asserting errors that require a new trial. We disagree. 44
A.
We note that: “[e]vidence of crimes, wrongs, and other bad acts is
generally admissible if intrinsic to the crimes charged. Evidence is considered
intrinsic if it is an uncharged offense which arose out of the same transaction
or series of transactions as the charged offense, if it was inextricably
intertwined with the evidence regarding the charged offense, or if it is
necessary to complete the story of the crime of the trial.” 45 And, “where a
conspiracy is charged, acts that are not alleged in the indictment may be
admissible as part of the Government’s proof[,]” 46 such as “evidence of acts
committed pursuant to a conspiracy and offered to prove the defendant’s
membership or participation in the conspiracy[.]” 47
Under FED. R. EVID. 404(b), “evidence of a crime, wrong, or other
act is not admissible to prove a person’s character; however, such evidence
may be admissible for another purpose, such as proving motive, opportunity,
_____________________
44
Defendants also argue that this Court should reconsider its jurisprudence on
intrinsic evidence, and join sister circuits such as the D.C. Circuit, Third Circuit, and the
Seventh Circuit in “abandoning or restricting” the definition of “intrinsic evidence”.
Because we find that this Court’s jurisprudence on intrinsic and extrinsic evidence is clear
in deciding the outcome here, we decline to consider this argument.
45
United States v. Gurrola, 898 F.3d 524, 536 (5th Cir. 2018) (cleaned up).
46
United States v. Watkins, 591 F.3d 780, 785 (5th Cir. 2009).
47
United States v. Garcia Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (cleaned up).
19
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intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” 48
This Court applies a two-step test to determine admissibility under
Rule 404(b): “First, it must be determined that the extrinsic offense evidence
is relevant to an issue other than the defendant’s character. Second, the
evidence must possess probative value that is not substantially outweighed
by its undue prejudice and must meet the other requirements of [R]ule
403.” 49 At this second step, this Court considers four factors: “(1) the
government’s need for the extrinsic evidence, (2) the similarity between the
extrinsic and charged offenses, (3) the amount of time separating the two
offenses, and (4) the court’s limiting instructions.” 50 Error under this
standard is not reversible if it “would not have substantially influenced the
jury’s verdict[.]” 51
B.
The Defendants challenge the admission of evidence regarding
criminal activity committed by Guillory and other YMF members at times
proximate to the time of Womack’s murder. These acts include:
• Guillory’s participation in a May 2012 drive-by shootout with a rival
gang, which resulted in the murders of Shawanna Pierce and five-year-
old Brianna Allen;
• Guillory’s participation as a gang member in a June 2012 murder of
rival gang member Jonathan “Kruger” Lewis;
• Guillory’s participation in an armed robbery with the gun that he later
used against Womack;
_____________________
48
United States v. Juarez, 866 F.3d 622, 626-27 (5th Cir. 2017) (cleaned up).
49
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (citation omitted).
50
United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (cleaned up).
51
United States v. Flores, 640 F.3d 638, 643 (5th Cir. 2011).
20
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• Guillory’s armed carjacking of the red Chevrolet Monte Carlo that he
drove the night of Womack’s murder;
• Guillory’s participation in a July 2012 shootout wherein he fired the
same gun he used to kill Womack;
• Guillory’s participation in the shooting of a rival gang member that
occurred sometime after but close in time to Womack’s murder,
wherein he used the same gun; and
• The YMF’s general acts of violence.
1.
Defendants specifically argue that the district court erred in admitting
evidence regarding the May 2012 and June 2012 murders as the Prosecution
failed to prove that the evidence bore on why Guillory was hired for
Womack’s murder. Defendants assert that there was no evidence presented
to suggest that Guillory’s co-defendants hired him because of the murders.
Without deciding whether the evidence regarding Guillory’s
participation in the May 2012 murders and the June 2012 murder were
intrinsic or extrinsic, we are persuaded that any error here was harmless. The
evidence presented at trial, as we have recounted—even without the
evidence of Guillory’s May and June 2012 murders—was sufficient to
convict the Defendants of all applicable counts. 52 In other words, the
admitted evidence “would not have substantially influenced the jury’s
verdict[.]” 53
2.
Defendants also challenge the district court’s admission of evidence
relating to Guillory’s other gang-related criminal activity, arguing that such
_____________________
52
See supra II.
53
Flores, 640 F.3d at 643.
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evidence should have been characterized as extrinsic evidence, and the
district court erred in deciding otherwise. 54 We find no error.
The evidence of Guillory’s other criminal activity establishes his
involvement and role in the murder-for-hire conspiracy. The evidence at
issue provides necessary context in Guillory’s obtaining the Glock Model 23
and red Chevrolet Monte Carlo he would use to kill Womack, and his
continued control over the gun and the car after Womack’s murder. 55
Furthermore, evidence of the YMF’s general acts of gang violence explained
why Age III and Wilson first approached the YMF for help with Womack’s
murder. This evidence served to “complete the story of the crime of the
trial,” and was properly admitted as intrinsic evidence. 56
C.
Next, three Defendants challenge the district court’s admission of
evidence regarding the fraudulent schemes committed by the Age family,
including:
• Fraudulent insurance claims the Age family filed in 2005 after
Womack and Age III burned the New Orleans school; and
• The Medicare fraud at South Louisiana. 57
_____________________
54
Guillory’s appellate briefs focus exclusively on the May 2012 and June 2012
murders.
55
Indeed, though Wilson maintains that the evidence should have been classified
as extrinsic, Wilson acknowledges that it “had some relevance to this prosecution.”
56
Gurrola, 898 F.3d at 536.
57
Guillory does not raise this in his appellate brief, nor in his reply brief.
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Defendants argue that evidence related to the fraud schemes were not
intrinsic to the case at hand because “there was no immediate context of time
and place.” 58 We find to the contrary.
The district court correctly admitted the arson-related insurance
fraud evidence as intrinsic to the charged offenses. In admitting the evidence,
the district court explained that the “purpose of both the conspiracy directed
toward Womack and the one directed toward Ayanna was to prevent their
adverse testimony regarding the Defendants’ past criminal acts, including
[the] arson.” We agree: the evidence proving that Womack and Age III
burned down the school at Age Jr.’s instructions provides additional context,
establishing groundwork for the conspiracy created. 59
We also find that the district court correctly characterized the
Medicare fraud evidence as intrinsic; it was a necessary preliminary to
understand the current conspiracy charges. 60 As the district court observed:
“Evidence of this fraud is inextricably intertwined with the
charged conspiracies for, without the fraud, there would be no
Medicare fraud prosecution, no fear on Defendants’ part that
their fraud or their prior criminal acts could be revealed in
witness testimony, and thus no reason to silence cooperators
Ayanna and Womack.”
_____________________
58
Age Jr. asserts that such evidence must satisfy Rule 404(b) and “be subject to
. . . an anti-propensity instruction.” But because we find that the district court properly
admitted the evidence as intrinsic, we decline to address this argument.
59
Wilson argues that as to the arson-related insurance fraud, there was no evidence
presented to suggest that he knew or participated in the fraud. We find, however, that even
if there were no direct evidence presented, his participation in the conspiracy to murder
Womack is enough for a reasonable juror to find that that he knew of the fraud.
60
See Gurrola, 898 F.3d at 536.
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Age Jr. asserts a distinct claim of error related to the Medicare fraud
evidence, alleging that he was prejudiced by the district court’s decision to
allow the Prosecution to elicit testimony that Age Jr. had been convicted of
the fraud during its cross-examination of Gray. Though the district court
initially excluded evidence of Age Jr.’s Medicare fraud conviction, it allowed
the Prosecution to bring it up during cross-examination on finding that
Defendants had “opened the door” to the evidence. Age Jr. now argues that
the district court’s finding was arbitrary and unfair.
We disagree. “It is well-settled in this Circuit that a defendant may
not complain on appeal he was prejudiced by evidence relating to a subject
which he opened up at trial.” 61 Statements elicited by defense counsel
“open[] the door” if they convey an erroneous impression on the jury. 62
Gray’s testimony—though not explicit—suggested Age Jr.’s innocence in
the Medicare fraud case. The district court was correct to allow the
Prosecution to ask about Age Jr.’s criminal conviction and to clarify any
erroneous impression of Age Jr.’s innocence in the Medicare fraud case. 63
D.
Age III and Wilson raise additional challenges to the district court’s
admission of evidence related to:
_____________________
61
United States v. Kiekow, 872 F.3d 236, 252 (5th Cir. 2017) (cleaned up).
62
United States v. Plato, 593 F. App’x 364, 374-75 (5th Cir. 2015) (per curiam).
63
Wilson also asserts that the district court erred in admitting immeasurably
prejudicial evidence as intrinsic against him without limiting instructions. Specifically,
Wilson argues that of the aforementioned evidence—such as Guillory’s bad acts and the
Age family’s various acts of frauds—many of them did not involve Wilson. But as
discussed, much of this evidence was correctly admitted as intrinsic and therefore did not
require limiting jury instructions. To the extent that there was error, any such error was
harmless.
24
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• The staged automobile collisions resulting in fraudulent insurance
claims that Age III and Wilson participated in with others from the
chop shop; and
• Wilson’s drug-dealing, as described in the testimony of jailhouse in-
formant Michael Crawford.
Age III argues that the district court erred in admitting evidence of
staged automobile collisions as it was not necessary to prove Guillory’s hire
for Womack’s murder. We disagree.
This Court has found evidence to be intrinsic when “it provide[s]
background information necessary for a jury to understand the structure of
. . . the conspiratorial relationship between [co-defendants], and how the
conspiracy came about.” 64 Here, testimony from Jackson and Lewis
established that the chop shop served as a connection between the YMF,
Age III, and Wilson. This evidence is intrinsic because it casts light on the
relationship of Age III, Wilson, and the YMF gang, and how they came to
know each other through the staged accidents and insurance claims—origins
of the co-Defendants.
Wilson similarly argues that the district court erroneously admitted
evidence related to his prior drug-dealing. He asserts that Crawford’s
testimony was not a “necessary predicate” of the conspiracies charged
because there was no evidence to suggest that the drug dealing involved other
Defendants or had temporal connectivity to the charges at hand. Though this
may be true, we ultimately find that the admission of the evidence was in any
_____________________
64
United States v. King, 684 F. App'x 451, 456 (5th Cir. 2017) (per curiam). See also
United States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010).
25
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event harmless, as the remaining evidence presented at trial was sufficient to
convict him of all applicable counts. 65
IV.
The district court also properly admitted evidence of historical cell
site location information (“CSLI”) over Defendants’ Fourth Amendment
objections.
A.
The Fourth Amendment “protects against government intrusion into
areas where people have reasonable expectations of privacy[,]” and requires
the prosecution to obtain a warrant supported by probable cause when it
“seeks to intrude upon . . . private spheres.” 66 Though the “Fourth
Amendment contains no provision expressly precluding the use of evidence
obtained in violation of its commands[,]” courts have created the
exclusionary rule, “a judicially created remedy that precludes the use of
evidence obtained from unconstitutional search or seizure[.]” 67
“An exception to the exclusionary rule exists where government
investigators acted with an objectively reasonable good-faith belief that their
conduct was lawful.” 68 Courts have applied the good-faith exception “to
evidence obtained from warrantless searches later held to be
unconstitutional.” 69 Furthermore, the Supreme Court has held that the
_____________________
65
See Rice, 607 F.3d at 140-41.
66
United States v. Beverly, 943 F.3d 225, 232 (5th Cir. 2019) (citations omitted).
67
Id. (citation omitted).
68
Id. (citations omitted).
69
Id. at 233 (emphasis in original).
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good-faith exception applies “where a warrantless search is authorized by
statute or binding precedent later ruled unconstitutional[.]” 70
B.
“On appeal of a motion to suppress, legal conclusions are reviewed de
novo while factual findings are reviewed for clear error[,]” 71 subject to
harmless error. 72 The party seeking suppression “has the burden of proving,
by a preponderance of evidence, that the evidence in question was obtained
in violation of his Fourth Amendment rights.” 73 “Evidence is viewed in the
light most favorable to the prevailing party.” 74
C.
Defendants argue that the district court erred when it denied their
motions to suppress evidence of CSLI—such as such as the location of the
YMF members’ phones at around the time of Womack’s murder—which
the Prosecution used to corroborate witness testimony. Their focus is upon
the timeline of the Prosecution’s 18 U.S.C. § 2703(d) applications in this case
and the evolution of the constitutionality of warrantless compelled
production under the Stored Communications Act:
• In October 2010, a magistrate judge in the Southern District of Texas
held § 2703(d) orders to be unconstitutional. 75
_____________________
70
Id.
71
Id. at 231.
72
United States v. Garcia, 99 F.4th 253, 266-67 (5th Cir. 2024).
73
Id. at 267 (quotations and citation omitted).
74
Beverly, 943 F.3d 225 at 231 (quotations and citation omitted).
75
In re U.S. for Hist. Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010),
vacated, 724 F.3d 600 (5th Cir. 2013).
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• In November 2011, a district judge in the Southern District of Texas
affirmed the magistrate judge’s order.
• In December 2011, the Prosecution filed its notice of appeal to the
Fifth Circuit.
• In August 2012, the Prosecution began its § 2703(d) applications in
this case.
• In July 2013, the Fifth Circuit held that § 2703(d) was constitutional
even as applied to the warrantless compelled disclosure of historical
CSLI. 76
• In June 2018, the Supreme Court overturned the Fifth Circuit’s then-
existing precedent with Carpenter v. United States, 77 which held, in rel-
evant part, that compelled production ordered pursuant to § 2703(d)
violated the Fourth Amendment by allowing the Government to ob-
tain CSLI without a warrant supported by probable cause. 78
The district court—over Defendants’ objections—admitted the
evidence because it found that the good-faith exception applied to CSLI
obtained in this case pursuant to § 2703(d) orders that were sought after a
lower court in a different district within the Fifth Circuit had found § 2703
orders to be unconstitutional, but before the Fifth Circuit’s then-binding
precedent in July 2013. We agree.
Under Illinois v. Krull, reliance on a statute is objectively reasonable
“unless [the] statute is clearly unconstitutional[.]” 79 At the time of the
Prosecution’s § 2703(d) applications, the absence of binding precedent and
the “uneven split of authority among district courts nationwide favoring
constitutionality” did not meet the threshold of “clearly
_____________________
76
In re U.S. for Hist. Cell Site Data, 724 F.3d 600 (5th Cir. 2013).
77
585 U.S. 296 (2018).
78
Id. at 316.
79
480 U.S. 340, 349 (1987).
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unconstitutional[.]” 80 Moreover, the decisions of a federal district court are
not controlling law for a different federal district court, 81 and do not render a
statute “clearly unconstitutional.” 82
Defendants raise two additional arguments that are inapposite. First,
they assert that the district court erred in holding that the Defendants bore
the burden of proof on this issue. Though Defendants are correct in asserting
that the Prosecution bears the burden of establishing objective good faith, this
burden is distinct from the Defendants’ separate burden of proving that their
Fourth Amendment rights have been violated. 83 The district court correctly
held that Defendants, not the Prosecution, bear this burden.
Second, Defendants argue that collateral estoppel prevented the
Prosecution’s reliance on the § 2703(d) orders. But it is well established that
“nonmutual offensive collateral estoppel is not to be extended to the United
States” because “the Government is not in a position identical to that of a
private litigant” in “geographic breadth of government litigation and also …
[in] the nature of the issues the government litigates.” 84 Collateral estoppel
does not apply here.
_____________________
80
Id.
81
See, e.g., Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011).
82
Krull, 480 U.S. at 349. This reasoning also undermines Defendants’ related
argument that the Prosecution acted in bad faith in failing to disclose adverse rulings in its
§2703(d) applications: because the decision in the Southern District of Texas did not
constitute legal authority in the Eastern District of Louisiana, the Prosecution did not have
a duty to disclose such authority to the magistrate judges. See La. Prof’l. Conduct
R. 3.3(a)(2).
83
See Maggitt, 778 F.2d at 1034; Beverly, 943 F.3d at 231.
84
United States v. Mendoza, 464 U.S. 154, 158-59 (1984).
29
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V.
Defendants further assert that the district court abused its discretion
in admitting phone records under FED. R. EVID. 902(11) and the
Confrontation Clause. Neither argument prevails.
A.
Rule 902 characterizes certain categories of evidence as “self-
authenticating”, or evidence that “require no extrinsic evidence of
authenticity in order to be admitted[.]” 85 This includes certified domestic
records of a regularly conducted activity, defined as: “[t]he original or a copy
of a domestic record that meets the requirements of [the business records
exception under Rule 803(6)(A)-(C).]” 86
The Confrontation Clause of the Sixth Amendment “prohibits
admitting out-of-court statements as evidence against defendants in a
criminal case unless they can cross-examine the declarant. But that
prohibition applies only if the statements are testimonial.” 87
B.
This Court assesses the “admission of evidence pursuant to Rule
902(11) under an abuse of discretion standard[,]” 88 subject to harmless
error. 89 “[R]eversible error occurs only when the admission of evidence
_____________________
85
FED. R. EVID. 902.
86
Id. at 902(11).
87
United States v. Ayelotan, 917 F.3d 394, 403 (5th Cir. 2019), as revised (Mar. 4,
2019) (quotations and citations omitted).
88
United States v. Olguin, 643 F.3d 384, 390 (5th Cir. 2011).
89
Id.
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substantially affects the rights of a party.” 90 This Court reviews challenges
based on the Confrontation Clause de novo. 91
C.
The district court properly admitted the phone records under Rule
902(11). The phone records at issue included affidavits stating that Sprint, T-
Mobile, and Charter created and maintained the relevant phone data as part
of the ordinary course of a regularly conducted business activity. These
affidavits, from records custodians and tracking the relevant language nearly
word for word, satisfy Rule 803(6)’s requirements for admission. 92
Furthermore, as Defendants concede, the Prosecution followed proper
procedures to admit the phone records. 93 Finally, Defendants’ argument that
the Prosecution was required to provide additional evidence to authenticate
the phone records lacks merit: under this Court’s caselaw, valid Rule 902(11)
certificates are sufficient for admissibility. 94
The admission of the phone records also does not violate the
Confrontation Clause. The phone records here are not testimonial because
they were created in the ordinary course of business, not “for the purpose of
establishing or proving some fact at trial[.]” 95 And Defendants’ argument
that the certificates themselves violate the Confrontation Clause is
_____________________
90
Id. (cleaned up).
91
Id. at 391.
92
“[C]ertificates from a records custodian that track the language of Rule 803(6)
nearly word for word render the records self-authenticating.” Ayelotan, 917 F.3d at 402
(cleaned up).
93
In a pretrial notice, the Prosecution specified the records it was seeking to admit
under Rule 902(11), allowing defendants the opportunity to challenge their admission.
94
See United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013).
95
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
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unconvincing. As the Supreme Court has made clear, there is a distinction
between a document “created for the sole purpose of providing evidence
against a defendant” and a document created to “authenticate or provide a
copy of an otherwise admissible record[.]” 96 While the former is testimonial
and subject to confrontation, the latter—applicable here—is not.
VI.
Defendants argue that the district court abused its discretion when it
admitted Womack’s statements under the forfeiture-by-wrongdoing
exception because of its use of the “preponderance of the evidence”
standard. This argument fails.
A.
Prior to trial, the Prosecution filed a motion in limine to admit
Womack’s statements under FED. R. EVID. 804(b)(6). Following an
evidentiary hearing, the district court ruled that by the forfeiture by
wrongdoing exception to hearsay found in the Federal Rules of Evidence “all
of Womack’s statements on any topic can be introduced,” subject to Rule
403 and 608 objections. At trial, the Prosecution elicited testimony from
witnesses regarding things Womack had said to them. 97 Defendants
challenge the admission of Womack’s hearsay statements under the
forfeiture by wrongdoing exception.
_____________________
96
Id. at 322-23 (emphasis in original).
97
Milton Womack’s attorney testified that Womack told him, “I’ve just been
living under this for so long. I’m afraid. I’m tired. I want to get this over with, and I want
some closure.”
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B.
We review evidentiary rulings “for abuse of discretion, subject to the
harmless error standard.” 98 “A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” 99 Objections based in the Confrontation Clause
are reviewed de novo, subject to harmless error. 100
C.
The Confrontation Clause states that: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with witnesses against
him.” 101 “The Amendment contemplates that a witness who makes
testimonial statements admitted against a defendant will ordinarily be
present at trial for cross-examination, and that if the witness is unavailable,
his prior testimony will be introduced only if the defendant had a prior
opportunity to cross-examine him.” 102 The Confrontation Clause’s goal—
reliable evidence that passes through the crucible of cross-examination—is
“a procedural rather than a substantive guarantee.” 103
Two exceptions exist to this constitutional guarantee; one is at issue
in this case. 104 The doctrine of forfeiture by wrongdoing, allows “the
introduction of statements of a witness who was ‘detained’ or ‘kept away’ by
_____________________
98
United States v. Hankton, 51 F.4th 578, 598 (5th Cir. 2022) (quoting Gurrola, 898
F.3d at 533 (5th Cir. 2018)). Here, this issue was preserved on appeal, and so the plain error
standard does not apply. United States v. Valas, 822 F.3d 228, 240 (5th Cir. 2016).
99
Hankton, 51 F.4th at 598 (quoting United States v. Yanez Sosa, 513 F.3d 194, 200
(5th Cir. 2008) (internal quotation marks omitted)).
100
United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).
101
U.S. CONST. amend. VI.
102
Giles v. California, 554 U.S. 353, 358 (2008).
103
Crawford v. Washington, 541 U.S. 36, 61 (2004).
104
Giles, 554 U.S. at 358-59.
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the ‘means or procurement’ of the defendant[,]” and applies “only when the
defendant engaged in conduct designed to prevent the witness from
testifying.” 105 The High Court has emphasized that, “[W]hen defendants
seek to undermine the judicial process by procuring or coercing silence from
witnesses and victims, the Sixth Amendment does not require courts to
acquiesce.” 106 Instead, “one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation.” 107
The party seeking to admit the statement under Rule 804(b)(6) must
demonstrate that Defendants “engaged or acquiesced in wrongdoing that
was intended to, and did, procure the unavailability of the declarant as a
witness.” 108 For Womack’s statements to be admissible, Defendants must be
found to have “ha[d] in mind the particular purpose of making the witness
unavailable.” 109 The High Court has reiterated that “the rule of forfeiture by
wrongdoing . . . extinguishes confrontation claims on essentially equitable
grounds.” 110 Thus, “one who obtains the absence of a witness by wrongdoing
forfeits the constitutional right to confrontation.” 111
The Supreme Court expressly did not take a position on “the
standards necessary to demonstrate such forfeiture, but federal courts using
[Rule] 804(b)(6), which codified the forfeiture doctrine, have generally held
the Prosecution to the preponderance-of-the-evidence standard.” 112 Before
the Federal Rules of Evidence were amended, the standard in the Fifth
_____________________
105
Id. at 359 (citations omitted).
106
Davis v. Washington, 547 U.S. 813, 833 (2006).
107
Id.
108
Giles, 554 U.S. at 367 (quoting the Federal Rules of Evidence).
109
Id. (citation omitted).
110
Davis, 547 U.S. at 833 (citing Crawford, 541 U.S. at 62 (citation omitted)).
111
Id.
112
Id.
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Circuit for forfeiture by wrongdoing analyses was clear and convincing
evidence. 113
Noting the ambiguity as to which standard should apply, the district
court concluded that the Prosecution met their burden under both standards.
The district court considered the numerous witnesses interviewed, the
pending healthcare case, the timing of the killing with respect to Womack’s
guilty plea, cellphone records, the Garcia hearing specifics, and ballistics and
forensic evidence recounted by Special Agent Williams. The district court
was thorough in its investigation of the factual landscape and inerrant in its
conclusions. It did not abuse its discretion.
VII.
Defendants challenge the admission of Michael Fiser’s testimony
regarding attorney-client communications with Womack. Though attorney-
client privilege survives death, we find that Defendants lack the requisite
closeness for third-party standing.
A.
Fiser represented Womack from July 6, 2012 until his death on July
27, 2012. Womack met with Fiser on July 11, 2012 and the pair met with
investigators the next day. Fiser and Womack met with investigators one
more time, on July 19. By July 25, the Prosecution and Womack had a plea
agreement and announced Womack’s intention to testify for the Prosecution.
Two days later, Womack was murdered.
Following Womacks’ death, the Prosecution opened a grand jury
investigation into Womack’s death and approached Fiser for information.
_____________________
113
See United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982). One of our sister
circuits—when presented with the question of which standard to apply post-amendment—
found that the Federal Rules of Evidence had abrogated Thevis. See United States v.
Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001), cert. denied, 535 U.S. 946 (2002). The
Eleventh Circuit adopts pre-creation Fifth Circuit caselaw as their own precedent. Id.
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Fiser raised concerns about attorney-client privilege, and the Prosecution
filed a motion to compel Fiser to disclose his communications with Womack.
In January 2013, Judge James J. Brady heard the motion in camera, and at the
hearing Fiser asserted the privilege on Womack’s behalf. 114 Judge Brady
ordered that Fiser was relieved of his attorney-client privilege and was
allowed to share information with the Prosecution. 115
Defendants challenge the admission of Fiser’s testimony concerning
communications Fiser had with Womack, asserting attorney-client privilege.
They filed a pretrial motion in limine, and later a reply, seeking to exclude the
testimony by Fiser that contained attorney-client communications. The
district judge in this criminal case—Judge Barry W. Ashe—denied the
contested motion in limine and ruled that “any communications Womack
had with Fiser in the presence of a third party, including the Prosecution, are
not privileged.” The district court also determined that Fiser—not
Defendants—possesses the right to assert the privilege.
Later, in September 2022, when the district court responded to Age
Jr.’s motion for a new trial, the court denied the motion because Fiser’s
testimony did not implicate legal advice and the testimony was made in the
presence of third parties, thus rendering the communication unprivileged.
Even if there were privileged statements elicited at trial, the district court
distinguished the Supreme Court’s decision in Swidler & Berlin v. United
States on two separate grounds. 116
_____________________
114
See supra I(A)(1), which details Fiser’s appointment as counsel.
115
The Prosecution noted that the grand jury docket was under seal in the Middle
District of Louisiana, and that Judge Brady had passed away. On March 14, 2022, however,
Fiser filed a motion to unseal, and the Chief Judge of the district granted request for copies
of the records be provided to Judge Ashe for in camera inspection.
116
524 U.S. 399 (1998). In Swidler, the Court held that the attorney-client privilege
survives death but noted an exception for posthumous disclosure that “furthers the client’s
intent”—namely, the testamentary exception. Id. at 405-06. It also cited a great deal of
older caselaw to establish this well-worn exception as stretching back far in time, and in
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B.
The district court’s decision to admit Fiser’s testimony at trial is
reviewed for abuse of discretion subject to harmless error review. 117 The issue
is whether Defendants possess the requisite third-party standing to assert
Womack’s attorney-client privilege. Defendants assert that the district court
should have allowed them to raise Womack’s attorney-client privilege
regarding statements expressing fear of Defendants, statements made to
third parties, and statements Womack intended to disclose to law
enforcement.
“The question of standing is whether the litigant is entitled to have
the court decide the merits of the dispute or of particular issues.” 118 The
Supreme Court has recognized limits apart from the “minimum
constitutional mandate” and that “even when the plaintiff has alleged injury
sufficient to meet the ‘case or controversy’ requirement, . . . the plaintiff
generally must assert his own legal rights and interests, and cannot rest his
claim on the legal rights or interests of third parties.” 119
_____________________
caselaw. See, e.g., Glover v. Patten, 165 U.S. 394, 406-408 (1897) (holding that testamentary
disclosure was allowed because privilege could be waived to fulfill client intent).
117
Yanez Sosa, 513 F.3d 194, 201 (5th Cir. 2008). See also, United States v. Mendoza-
Medina, 346 F.3d 121, 127 (5th Cir. 2003) (“Unless there is a reasonable possibility that the
improperly admitted evidence contributed to the conviction, reversal is not required.”)
(citation omitted).
118
Warth v. Seldin, 422 U.S. 490, 499 (1975).
119
Id. at 499-500. “Without such limitations—closely related to Art. III concerns
but essentially matters of judicial self-governance—the courts would be called upon to
decide abstract questions of wide public significance even though . . . judicial intervention
may be unnecessary to protect individual rights.” Id. at 500. See also, June Med. Servs.,
L.L.C. v. Russo, 591 U.S. 299, 363 (2020) (Thomas, J., dissenting) (collecting prior caselaw
on third-party standing).
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Third-party standing allows a court to hear disputes where third
parties assert—and thereby vindicate—the legal rights of others. The High
Court noted that third-party standing exists when three criteria are satisfied:
(1) an “injury in fact” which begets a “sufficiently concrete interest” in the
outcome, (2) a close relation to the third party, and (3) some hindrance to the
third party’s ability to protect his or her own interests. 120 We find that,
irrespective of an injury in fact, Defendants do not possess a close relation to
Womack sufficient to assert his attorney-client privilege. 121
The High Court has noted that the close relation prong is seen through
the lens of whether the enjoyment of the right “is inextricably bound up with
the activity the litigant wishes to pursue[,]” and the “relationship . . .
between the litigant and the third party may be such that the former is fully,
or very nearly, as effective a proponent of the right as the latter.” 122 But,
Womack was meeting with the Prosecution and had agreed to testify against
Defendants—whose best interests were served by not having him testify
against them in a federal criminal trial. 123
Defendants both procured his absence and have attempted to
“vindicate” his rights, yet also have a keen interest in suppressing any
testimony from Womack. Defendants do not have a relationship such that
_____________________
120
Powers v. Ohio, 499 U.S. 400, 412-15 (1991).
121
Defendants cite Powers for the contention that “there exists some hindrance to
the third party’s ability to protect his or her own interests.” Id. at 410-11. To be clear, the
hindrance is that Womack—after he expressed the clear intent of pleading and testifying
and met with investigators—was murdered. His unlawful execution prevented him from
testifying against certain Defendants and from asserting his own attorney-client privilege.
Death is the insuperable obstacle here.
122
Singleton v. Wulff, 428 U.S. 106, 114-15 (1976).
123
See also Rakas v. Illinois, 439 U.S. 128 (1978) (affirming that Fourth Amendment
rights are personal rights).
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they are able to be an effective proponent, as their goals are diametrically
opposed: Womack was in the process of testifying against Defendants. It was
in their best interest that his testimony never reached the jurors’ ears.
This Court in United States v. Fortna held that co-defendants in a case
where one defendant’s attorney-client privilege was violated by the
Prosecution did not have standing to join the motion to quash. 124 Similar to
Fourth Amendment rights, “Fifth and Sixth Amendment rights . . . are
personal in nature and cannot be asserted vicariously.” 125 Defendants have
no standing to assert Womack’s privilege. Their argument fails.
VIII.
Defendants raise a multitude of complaints concerning the jailhouse
informant Michael Crawford’s adverse testimony. We deal with—and
dismiss—each issue in turn.
A.
Defendants argue that the district court erred when it allowed
Crawford to testify at trial about statements Wilson made to him while they
were both incarcerated under Massiah v. United States, arguing that Crawford
was a government agent and deliberately elicited incriminating information
from Wilson. 126
_____________________
124
796 F.2d 724, 732-33 (5th Cir. 1986). This case was cited by the Eighth Circuit
for the same rationale: “In general, the attorney-client privilege is personal and cannot be
asserted by anyone other than the client.” United States v. Hatcher, 323 F.3d 666, 674 n.2
(8th Cir. 2003).
125
Fortna, 796 F.2d at 733.
126
377 U.S. 201 (1964).
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1.
Prior to trial, Defendants filed three motions challenging the
admissibility of Michael Crawford’s testimony: one alleging that he was a
Massiah informant, one asserting that out-of-court statements by Wilson
violated the other three Defendants’ Confrontation Clause rights, and one
arguing that Crawford’s recounting of Wilson’s statements did not meet any
hearsay exceptions. The district court held a two-day evidentiary hearing and
ruled that Crawford’s testimony was admissible at trial. 127
At the hearing, Crawford testified that he was friends with Wilson and
that they would talk every night because they were incarcerated in the same
part of the prison. 128 At some point, Crawford soured on Wilson and decided
to approach the Prosecution with details he had learned from Wilson.
Crawford had cooperated previously with the federal government and had
received sentence reductions for doing so. 129 On January 14, 2020, Crawford
urged his sister to reach out to the lead prosecutor in this case, and to tell her
that he had information on Wilson. When he met with the case agent and the
AUSA, Crawford was admonished by both not to ask Wilson any questions.
About one week later, Crawford met with them a second time, and between
_____________________
127
Special Agent Williams and Crawford both testified at the hearing.
128
The conversations range from gambling and sport, to rap, as well as life outside
the prison’s walls—including past criminal activity.
129
He met with an Assistant United States Attorney (“AUSA”) in June 2018 from
the Eastern District of Louisiana, whom he contacted through his attorney in the hopes of
providing information on another inmate. He also had a meeting with another AUSA
concerning another inmate, whom he also wanted to provide information to the
Government on.
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the two meetings continued talking to Wilson. Crawford testified that he
never specifically asked Wilson questions. 130
2.
We review legal determinations de novo and factual findings for clear
error, 131 while a claim grounded in Massiah is subject to harmless error
analysis. 132 The “burden of establishing harmlessness beyond a reasonable
doubt” lies with the Prosecution. 133
3.
The Sixth Amendment’s guarantee of counsel is found to apply in all
criminal prosecutions—including all “critical stages of criminal
proceedings”—which covers post-indictment interrogations by government
agents. 134 Massiah established that cooperating government informants can
be considered “[g]overnment agents.” 135 While the Supreme Court has
applied Massiah to a paid jailhouse informant who deliberately elicited
incriminating statements from the defendant, 136 it has rejected a Massiah
claim when a jailhouse informant listened to conversation and reported on
what was said without making efforts to stimulate conversations about the
crimes in question. 137
_____________________
130
Crawford also testified that the information came out “in conversation[,]” and
that Wilson just told him things.
131
Creel v. Johnson, 162 F.3d 385, 392 (5th Cir. 1998).
132
Thompson v. Davis, 916 F.3d 444, 454 (5th Cir. 2019).
133
United States v. Carrillo, 660 F.3d 914, 926-27 (5th Cir. 2011) (citation omitted).
134
United States v. Pleitez, 876 F.3d 150, 157 (5th Cir. 2017).
135
Massiah, 377 U.S. at 206.
136
United States v. Henry, 447 U.S. 264, 270-75 (1980).
137
Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986).
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To establish a Massiah violation a defendant must show: “(1) a Sixth
Amendment right to counsel has attached; (2) an individual seeking the
information was a government agent acting without the defendant’s counsel
being present; and (3) that the agent deliberately elicited incriminating
statements from the defendant.” 138 Specific to jailhouse informants, the
defendant must show: “the informant: (1) was promised, reasonably led to
believe [that he would receive], or actually received a benefit in exchange for
soliciting information from the defendant, and (2) acted pursuant to
instruction from the State, or otherwise submitted to the State’s control.” 139
Acting “in the hopes of” receiving a benefit is insufficient to establish
a Massiah violation; affirmative enticement from the Government, however,
does establish such a violation. 140 Timing is critical for determining whether
the Government is controlling and steering the conversation. 141 “The Sixth
Amendment is not violated whenever—by luck or happenstance—the State
obtains incriminating statements from the accused after the right to counsel
has attached.” 142 Crucially, “an informant cannot be an agent of the State
without the State’s knowledge or consent.” 143
_____________________
138
Thompson, 941 F.3d at 816 (5th Cir. 2019).
139
Id.
140
United States v. Bates, 850 F.3d 807 (5th Cir. 2017).
141
See, e.g., United States v. Fields, 761 F.3d 443, 478 (5th Cir. 2014). In Fields, the
informant in question pumped as much information out of the target as he could to pass
that information on to the State. Id. The fact that Fields had been a government informant
previously did not tilt the scales of the Court’s analysis under Massiah. Id. See also, United
States v. Cutno, 431 Fed. App’x. 275, 280 (5th Cir. 2011) (emphasizing the district court’s
finding of no evidence related to the informant “acting at the Government’s behest at the
time” of the confession).
142
Maine v. Moulton, 474 U.S. 159, 176 (1985).
143
Thompson, 941 F.3d at 816. The Court in Thompson cites to Karl Rove & Co. v.
Thornburgh, 39 F.3d 1273, 1296 (5th Cir. 1994) (“As in the formation of any contract,
consent of both parties is necessary to establish an agency relationship.”). In Thompson, the
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When Crawford first met with the special agent and AUSA in this
case, Crawford had been friends with Wilson for well over a year, and
volunteered information concerning Wilson’s involvement in the murder-
for-hire plot. Crawford testified that, prior to this meeting, no one from the
Prosecution had reached out to him about Wilson or any of the particulars of
this case. The second time Crawford met with the Prosecution for this case—
a week later—he testified that he “didn’t deliberately get it[,]” but had new
information, such as Wilson’s son’s name.
Defendants cite to Crawford on cross-examination, particularly his
statements that after his sentencing, his lawyer told him that the Prosecution
had said that they would always be amenable to information, and that
Crawford could always come back to them. 144 But evidence of previous
cooperation, as well as the hope of a future benefit, is not enough to qualify
Crawford as a long-running government agent. 145 Defendants cite to two
sister-circuit decisions to support their contention that Crawford was an
agent, despite the lack of any kind of formal agreement or active direction. 146
_____________________
contact with the Government occurred after the information had been solicited. 941 F.3d
at 817.
144
Conditional language, such as could—and not should or must—imply a choice
rather than an inexorable command for Crawford.
145
See Thompson, 941 F.3d at 817.
146
See United State v. York, 933 F.2d 1343, 1356-57 (7th Cir. 1991) (holding that a
“prearrangement” makes the person in question a government agent); United States v.
Sampol, 636 F.2d 621, 638 (D.C. Cir. 1980). The lack of Fifth Circuit caselaw, as well as the
presence of the Thompson two-prong standard, rebuts these cases. Previous work as an
informant, as well as the fact that Crawford—not the Prosecution—selected Wilson as
someone to testify against cuts against Defendants’ case. The simple fact that Crawford
had testimony the Prosecution wanted to use does not mean that Crawford was acting as
an agent. The absence of a continuous, established, and consistent quid pro quo type of
relationship corrodes the conclusion that it was “prearranged” that he would automatically
inform on anyone and everyone. In fact, informing in prison poses its own set of dangers
and drawbacks, something Defendants do not acknowledge. Citing the relationship as
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In addition, no affirmative language was used in any of the communications
with the Prosecution following and during his sentencing that would qualify
as “affirmative enticement”—simply stating Crawford knew he could
inform on people, and leaving the door open to future instances, is not
affirmative enticement, but rather “hopes” of leniency. We find that
Crawford was not acting pursuant to State action or under State control. 147
Under Thompson, Crawford would have to (a) be promised, (b) be
reasonably led to believe that he would receive, or (c) actually receive a
benefit in exchange for soliciting information from the defendant (here,
Wilson). 148 First, there was no promise of a benefit from either the sentencing
judge or the AUSA. 149 Second, he could not have been “reasonably led to
believe” he would receive leniency when in multiple instances past leniency
was denied or much less than desired. The possibility of a sentence reduction
was present, but those well-acquainted with the prison system know of the
_____________________
“symbiotic” under other Circuit’s precedent does not defeat the presence of adverse and
controlling caselaw from this Court.
147
The plea agreement that Crawford signed with the Government included
portions about Crawford “immediately advis[ing]” the Government of someone breaking
the law, submitting to Government interviews whenever requested, and appearing before
any grand juries or juries to testify. While violation of the plea agreement could result in
adverse consequences, no part of this agreement states that Crawford had to inform of past
law-breaking—which is precisely what is at issue in this appeal. Submitting to interviews
and testifying does not establish a per se principal-agent relationship, and telling the
Government of current lawbreaking does not implicate informing on fellow inmates for past
transgressions. In addition, the plea agreement does not establish an exchange of benefits
between the Government and Crawford for agreeing to this.
148
Thompson, 941 F.3d at 816 (5th Cir. 2019).
149
Defendants cite to Crawford’s testimony where he said the trial judge
“promised” him a reduction if the Government filed for one. This, taken from Crawford’s
call to a friend, appears to paraphrase what the judge said. The belief that Crawford was
guaranteed a reduction is equally inapplicable. In fact, he had tried to inform on three other
inmates and had been disappointed when the Government had not given him what he
wanted, or anything at all.
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risks and rewards of becoming an informant. Finally, there was no material
benefit exchanged between the Prosecution and Crawford. In fact, there was
no instruction—and only admonishments—from the Prosecution not to
elicit statements from Wilson. For the previous two years, Crawford and
Wilson lived together, and “had a friendship[.]” The district court found
that the details concerning the murder-for-hire plan accumulated over the
course of Crawford’s interactions with Wilson without the deployment of
pointed questions, and that Crawford “asked only the kinds of questions
persons typically pose in the course of ongoing, normal conversation.”
We find no clear error. The voluminous transcript of the evidentiary
hearing reveals a slow-growing relationship between two men who lived in
close quarters for a long period of time. Defendants did not procure any
evidence to the contrary: that they were not friends and did not live, gamble,
and play cards together.
In addition, Defendants argue that Crawford engaged in the deliberate
solicitation of statements from Wilson and cite to Crawford’s admission that
he asked questions in the normal course of conversation. 150 But the informant
in a given case is not required to remain in stony silence to avoid the
“deliberate eliciting” of information; no case in the Fifth Circuit commands
absolute silence from an informant. 151 Supreme Court precedent on this issue
stems from “action, beyond merely listening, that was designed deliberately
to elicit incriminating remarks.” 152 Crawford was not a government agent
_____________________
150
The district court had previously found that the questions Crawford asked in
prison were the “kinds of questions persons typically pose in the course of an ongoing,
normal conversation.” This all, however, was before he spoke with the AUSA and case
agent in the case on appeal, and so the information gathering does not automatically qualify
as a Massiah violation.
151
McDonald v. Blackburn, 806 F.2d 613, 618-22 (5th Cir. 1986) (ruling that the
informant asking a question in the course of conversation was not automatically beyond
mere listening).
152
Kuhlmann, 477 U.S. at 459.
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while his friendship with Wilson was secure, and there is no evidence that
Crawford even “elicited as much information as he could . . . so that he could
then pass that information to the [G]overnment.” 153
While the Sixth Amendment right to counsel attached in this
situation, we conclude that Crawford was not acting as a government agent
prior to his initial meeting with the Prosecution. After this meeting, Crawford
did not deliberately elicit incriminating statements. Thus, under de novo
review of the law, and plain error review of factual findings, we affirm the
district court. 154
B.
Defendants object to the district court’s finding under the
Confrontation Clause—namely, that Crawford’s testimony is testimonial,
and therefore their constitutional rights were violated. Defendants argue that
the district court erred as a matter of law when it determined that the
statements were non-testimonial and assert that the district court erred by
not focusing on the primary purpose test to determine whether the statement
was testimonial or not. We review violations of the Confrontation Clause de
novo, subject to a harmless error analysis. 155
1.
The Confrontation Clause “forbids the introduction of out-of-court
‘testimonial’ statements unless the witness is unavailable and the defendant
_____________________
153
Fields, 761 F.3d at 478. As noted, the informant’s actions in Fields did not trigger
a Massiah violation. Id.
154
Because of the multi-pronged failure on behalf of the Defendants’ analysis, we
decline to perform the harmless-error analysis. Given the sheer enormity of evidence
presented at trial, however, any error would be harmless.
155
United States v. Noria, 945 F.3d 847, 853 (5th Cir. 2019). See also United States
v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012).
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has had a chance to cross-examine the witness previously.” 156 The Clause
“applies to witnesses against the accused—in other words, those who bear
testimony.” 157 Testimony, “in turn, is typically a solemn declaration or
affirmation made for the purpose of establishing or proving some fact.” 158
And, “[a]n accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.” 159
The Supreme Court has developed a “primary purpose test” to
determine whether a statement is testimonial in nature. 160 Statements are
testimonial when they have “the primary purpose of establishing or proving
past events potentially relevant to later criminal prosecution.” 161 A court
should also “look to all of the relevant circumstances.” 162 The primary
purpose test is a necessary, but not always sufficient, condition to the
exclusion of out-of-court statements under the Confrontation Clause. 163 The
_____________________
156
Samia v. United States, 599 U.S. 2004, 2012 (2023). Only testimonial statements
implicate the Confrontation Clause. See Brown v. Epps, 686 F.3d 281, 286 (5th Cir. 2012)
(“[A] statement that is not testimonial cannot violate the Confrontation Clause.”). See also
Noria, 945 F.3d at 851 (“Importantly, only testimonial statements cause the declarant to be
a ‘witness’ within the meaning of the Confrontation Clause.” (quotation marks omitted
and emphasis in original.)); Crawford, 541 U.S. at 51 (2004) (“[N]ot all hearsay implicates
the Sixth Amendment’s core concerns.”).
157
Crawford, 541 U.S. at 51.
158
Id. (citation and internal quotation marks omitted).
159
Id.
160
Noria, 945 F.3d at 851-52.
161
Bullcoming v. New Mexico, 546 U.S. 647, 659 n.6 (2011) (internal alterations and
quotation marks omitted) (quoting Davis v. Washington, 547 U.S. at 813, 822 (2006)). See
also Ohio v. Clark, 576 U.S. 237, 245-46 (2015).
162
Michigan v. Bryant, 562 U.S. 344, 369 (2011).
163
Clark, 576 U.S. at 246. In fact, the Court recognized that the Clause does “not
prohibit the introduction of out-of-court statements that would have been admissible in a
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Confrontation Clause applies to persons other than law enforcement officers,
and to private citizens such as Crawford. 164 To satisfy Clark, we examine “all
relevant circumstances” concerning the situation between Crawford and
Wilson “objectively[,]” including “the circumstances in which the
encounter occurs and the statements and actions of the parties.” 165
The circumstances here are as follows: Wilson lived in close quarters
with Crawford, and over time they developed a friendship independent of any
Prosecution contact or direction. Wilson did not intend to incriminate
himself in the upcoming trial, and over time told his friend Crawford about
everything major in his life: family, sports, gambling, crimes, and their cases.
Crawford had turned against multiple other inmates while incarcerated,
taking information and handing it to the Government in other cases. There
were two incidents that made Crawford dislike Wilson, with Crawford’s
_____________________
criminal case at the time of the founding.” Id. (citing to Giles, 554 U.S. at 358-59 and
Crawford, 541 U.S. at 56 n.6).
164
See V(A) for why Crawford was not a government agent. Defendants assert that
because United States v. Vasquez, a Fifth Circuit case from 2014, predates Ohio v. Clark,
the Fifth Circuit did not establish precedent that survives Clark. They argue that, because
the case in question concerned a Bruton challenge being analyzed on plain error due to
novelty on appeal, that Vasquez could not possibly establish circuit precedent on the case.
Vasquez is persuasive and clearly states the law—and the accord of our sister circuits on
this issue. This Court in Vasquez, however, noted that the appellant asserted a
Confrontation Clause claim, and cites to seven other circuit courts for the shared
observation that the Supreme Court “described ‘statements from one prisoner to another’
as ‘clearly nontestimonial’ for the purposes of the Crawford analysis. . . .” 766 F.3d 373,
378-79 (5th Cir. 2014). An unpublished Fifth Circuit opinion post-Clark confirms this logic,
citing this caselaw. United States v. Rentfrow, No. 23-60054, 2024 WL 707392, at *5 (5th
Cir. Feb. 21, 2024) (reasoning that one defendant “recapping the attack” while in prison
to another inmate did not qualify as testimonial under the primary purpose test).
165
Bryant, 562 U.S. at 359. Bryant also cites to Davis, and how the Court in that
decision used the word “objective” “no fewer than eight times” when describing the
analysis, as well as the definitions for testimonial and nontestimonial statements. Id. at 360.
That analysis also includes “statements and actions of both the declarant and
interrogator[.]” Id. at 367.
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sentencing hearing sandwiched between them. Furthermore, the bulk of the
information that Crawford surrendered to the Prosecution was given at the
first meeting, long after the relationship had been established.
Special Agent Williams testified that inmates in the penal system
understand that information “would or could” lead to sentence reductions.
We find that Defendants’ assertion that the knowledge of sentence reduction
recommendations is special and unique to prior informants, is unfounded in
objective circumstances. What appears to have happened here is that an
individual—who has a history of informing on even close friends—decided
to bring forward information that he learned by virtue of living in close
quarters with Wilson and, as such, the objective circumstances of his actions
at the time the information was gathered would imply that the statements are
nontestimonial.
C.
All Defendants except Wilson object to Crawford’s testimony as
containing inadmissible hearsay. Crawford testified in court before the jury
on the tenth day of trial—April 18, 2022. Defendants cite their objection to
hearsay concerning conversations Crawford had with Wilson on April 25,
2022—on the fourteenth day of trial. In the pretrial order addressing the
admissibility of Crawford’s testimony, the district court ruled that hearsay
objections had to be made “as they arise at trial.” 166
The Prosecution argues that because Defendants raised no objection
during Crawford’s trial testimony—but instead objected one week later—the
objection was not preserved. Three full days of trial proceeded after
_____________________
166
The district judge reiterated this at trial the morning of Mr. Crawford’s
testimony, ruling that, “[j]ust like any defense witness, we will handle the objections to the
testimony on a question-by-question basis.”
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Crawford’s testimony and before Defense counsel’s alleged objection. 167
Defendants deny a lack of preservation and cite no supporting caselaw. There
were several hearsay objections to Crawford’s testimony during his cross and
direct examination. None, however, are an objection to the conversation at
issue that Crawford had with Wilson where Crawford testified to Wilson
saying that “they needed to whap old boy [Womack].”
1.
Properly preserved hearsay objections are reviewed for abuse of
discretion, subject to a harmless error analysis. 168 Otherwise, plain error
review applies on appeal. 169
Under FED. R. EVID. 103(b), “[o]nce the court rules definitively on
the record—either before or at trial—a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.” This Court has further
held that when a district court grants a party’s pretrial evidentiary objection,
_____________________
167 “Mr. Bourke: The other was, and I’ve spoken to the Government, we
both feel like you ruled on Defense Motion 725 which was the hearsay
exception for Michael Crawford, the statements against penal interest. But
I can’t find it anywhere in my notes, and I just wanted to make sure – my
understanding is that you denied the motion once we got to trial. I just, you
know.
The Court: Yes, yes. I think preliminarily and then based upon the way the
testimony came in, the Court denied that motion.
Mr. Bourke: That was my understanding. I just wanted to, you know. I’ve
got a job to do.”
168
Yanez Sosa, 513 F.3d at 199-201 (holding that “an abuse of discretion in
admitting or excluding evidence is subject to harmless error review.”). In addition, “[a]
trial court abuses its discretion when its ruling is based on an erroneous view of the law or
a clearly erroneous statement of the evidence.” United States v. Ragsdale, 426 F.3d 765, 775
(5th Cir. 2005) (citation omitted).
169
United States v. Avants, 367 F.3d 433, 443 (5th Cir. 2004).
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contemporaneous objections to contravening evidence are still required to
avoid plain error review on appeal. 170
Here, the district court ruled on the hearsay issues at stake on this
appeal, that “any such objections will be addressed as they arise at trial.” The
district court did not grant or deny the motion in limine, but instead held that
hearsay objections needed to arise at trial—and not be dealt with beforehand.
Under Fifth Circuit precedent, “[e]videntiary objections must be
specific.” 171 They must also be “timely” under Fed. R. Evid.
103(a)(1)(A). 172 Furthermore, objections must be lodged whenever the
offending testimony is proffered. 173 Defendants failed to object to any of this
alleged hearsay during direct or cross-examination.
The standard of “contemporaneous” objections at trial applies when
there is a contravention of a pre-existing motion in limine and in the absence
_____________________
170
United States v. Lara, 23 F.4th 459, 475 (5th Cir. 2022) (adopting the reasoning
of the Tenth Circuit and the Advisory Committee note to the 2000 Amendment to the
Rules). Prior to the amendment of the Rules, parties had to make contemporaneous
objections at trial even if they had made pretrial objections. Id. at 473-74. Black’s Law
Dictionary defines “contemporaneous” as “living, occurring, or existing at the same
time”. Contemporaneous, BLACK’S LAW DICTIONARY (11th ed. 2019).
171
United States v. Avants, 367 F.3d 433, 445-46 (5th Cir. 2004) (ruling that the lack
of any objection violated specificity requirement of FED. R. EVID. 103). See also, United
States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998) (“[A] trial . . . judge must be fully
apprised of the grounds of an objection.”).
172
“Timely” is defined as being “within a specified deadline; in good time;
seasonable”. Timely, BLACK’S LAW DICTIONARY (11th ed. 2019). See also
Contemporaneous-objection Rule, BLACK’S LAW DICTIONARY (7th ed. 1999) (“The
doctrine that a proper objection to the admission of evidence must be made at trial for the
issue of admissibility to be considered on appeal.”).
173
See C.P. Ints., Inc. v. Cal. Pools, Inc., 238 F.3d 690, 696-97 (5th Cir. 2001)
(reasoning that failing to object to four out of six instances of testimony on direct
examination failed the requirements of Rule 103). See also Bailey v. Southern Pac. Transp.
Co., 613 F.2d 1385, 1389 (5th Cir. 1980) (holding that failing to object to the challenged
evidence on four out of five occasions on which it was offered meant the issue was waived
for appeal purposes).
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of a definitive ruling. 174 Here, the days-later catch-all objection put forth by
Defendants does not pass muster. The record speaks for itself; Defendants
objected throughout Crawford’s direct examination, but none of the
objections concerned this hearsay issue. We review the inclusion of
Crawford’s relevant testimony for plain error. 175
2.
The rule against hearsay “bars the admission of any ‘statement, other
than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.’” 176 An admission by a
party-opponent admitted against a defendant and his co-conspirators is not
hearsay. 177
Defendants implicitly acknowledge the party-opponent rule and
object to Crawford’s testimony as failing the FED. R. EVID. 804(b)(3)(B)
_____________________
174
Lara, 23 F.4th at 473-74. In addition, under FED. R. EVID. 103(d), the court “[t]o
the extent practicable . . . must conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means.”
175
See also Puckett v. United States, 556 U.S. 129, 134 (2009) (“If a litigant believes
that an error has occurred (to his detriment) during a federal judicial proceeding, he must
object in order to preserve the issue. If he fails to do so in a timely manner, his claim for
relief from the error is forfeited.”); Yakus v. United States, 321 U.S. 414, 444 (1944) (“No
procedural principle is more familiar to this Court than that a . . . right may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it.”).
176
Noria, 945 F.3d at 852.
177
See FED. R. EVID. 801(d)(2)(A) and (E). See also United States v. Thompson,
130 F.3d 676, 683 n.3 (5th Cir. 1997) (“Hearsay problems are not a concern if the jury
believes that the defendant was one of the participants in the conversation; any statements
he made would be admissible as a statement of a party opponent.”); United States v.
Chaney, 299 F. App’x 447, 452 (5th Cir. 2008) (“A statement is not hearsay if it is offered
against a party and is the party’s own statement.”).
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prong of statements against interest. 178 Such statements are excepted from
hearsay because they are “so contrary to the declarant’s proprietary or
pecuniary interest . . . .” 179 Because the declarant is not testifying, 180 and the
out-of-court statement cannot be tested in the crucible of cross-examination,
courts have emphasized that the statements “must be corroborated by
circumstances clearly indicating [their] trustworthiness.” 181
This Court has held that, “the term trustworthiness has two distinct
elements. In order for a declaration against penal interest to be trustworthy
evidence, the statement must actually have been made by the declarant, and
it must afford a basis for believing the truth of the matter asserted.” 182 The
statements must “bear adequate ‘indicia of reliability,’ such that ‘adversarial
testing would be expected to add little, if anything, to the statements’
_____________________
178
In pertinent part, Rule 804 holds that a statement qualifies if it “is supported by
corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to criminal liability.”
179
FED. R. EVID. 804(b)(3)(A).
180
See United States v. Young Bros. Inc., 728 F.2d 682, 690 (5th Cir. 1984) (“[I]t is
clear that a witness who is unavailable because he has invoked the Fifth Amendment
privilege against self-incrimination and was therefore unavailable under the terms of FED.
R. EVID. 804(a)(1)”).
181
United States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012) (citation omitted). Ebron
distinguishes that the declarant’s statement was made to “a fellow inmate”, and that “a
statement made outside a custodial context does not provide the same set of incentives that
create the risk of unreliable statement.” The Court ultimately ruled that, given the
uncertainty in the law—namely, the issue of non-self-inculpatory statements within a
broader narrative of self-inculpatory statements—the district court did not abuse its
discretion. Id. at 134.
182
United States v. Bagley, 537 F.2d 162, 167 (5th Cir. 1976). This opinion explains
how all the defense witnesses were prison inmates and how the Government attacked the
credibility of every witness to show fabrication and contradiction. Id. at 167-68. The Court
ruled that, “the trial judge reasonably could have concluded that the trustworthiness of the
statement was not clearly indicated, and the judgment will be affirmed.” Id. at 168.
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reliability.’” 183 The “totality of the evidence” at trial in corroborating the
statement is a key way to examine this entire situation. 184
Defendants hammer at the untrustworthy character of Crawford and
cite to his past criminal history and limited instances of informing on other
inmates as evidence of his lack of credibility. 185 The Prosecution argues that
Crawford, who was friends with Wilson, learned Wilson’s side of the story
through long months of living together in close quarters.
This Court has also noted that one important consideration is whether
criminal liability is being foisted onto others. 186 Here, Crawford’s statements
implicate Wilson as the one who “orchestrated” the murder. 187 The trial
record substantiates Crawford’s testimony, from Jackson, Marigny, and
Lewis’ testimonies about Wilson and the other Defendants involvement to
Ayanna’s testimony about her brother’s involvement in the conspiracy. We
_____________________
183
United States v. Piper, 912 F.3d 847, 856-57 (5th Cir. 2019) (citing Lilly v.
Virginia, 527 U.S. 116, 125-25 (1999)). In Piper, the Court examined the entirety of the
record and concluded that it was “not clear or obvious” that the statements were
admissible. Id. at 857. Thus, under our precedent, to swing against the district court ruling,
an edge case does not invalidate the testimony.
184
See United States v. Robinson, 635 F.2d 363, 364 (5th Cir. 1981).
185
They also note a number of slight inconsistencies between the Massiah hearing
testimony, recorded phone calls from jail, and Crawford’s trial testimony. This includes
his effort to gain a reduction in his sentence. Any inconsistencies are details in a larger
narrative where the main facts and vast majority of testimony from Crawford align with the
entirety of the record. This includes who was caught with the murder weapon, the lack of
immediate funds for the hit, and more.
186
Piper, 912 F.3d at 857.
187
Crawford also testified that Wilson showed Guillory and Age III where
Nicholas’ house was in the Gentilly neighborhood of New Orleans. The “totality of the
evidence” at trial in corroborating the statement is a key to examining this situation.
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see no error, much less plain error, on these facts—it is not clear or obvious
that Crawford’s testimony was inadmissible. 188
D.
Defendants also object to strictures the district court imposed on the
cross-examination of Crawford as violating their Sixth Amendment right of
confrontation. In particular, Defendants challenge three distinct rulings
regarding the exclusion of: (i) 1994 and 1995 state court convictions for a sex
offense and an armed robbery offense under FED. R. EVID. 609, (ii)
extrinsic evidence of prior inconsistent statements of jail calls between
Crawford and his attorney under FED. R. EVID. 613, and (iii) evidence
concerning whether another inmate and YMF member provided
information to Crawford.
1.
Confrontation Clause violations are reviewed de novo, subject to a
harmless error analysis. 189 Non-constitutional issues, however, are reviewed
for abuse of discretion when errors arise on the limitation of a defendant’s
cross-examination. 190
2.
The Supreme Court in Davis v. Alaska underscored “that the
exposure of a witness’ motivation in testifying is a proper and important
function of the constitutionally protected rights of cross-examination.” 191
_____________________
188
Defendants also assert that Crawford perjured himself at trial—with no citation.
We reject this argument.
189
See United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006). See also
Delaware v. VanArsdall, 475 U.S. 673, 679 (1986) (delineating the various factors necessary
for harmless error analysis).
190
See United States v. El-Mezain, 664 F.3d 467, 491 (5th Cir. 2011).
191
415 U.S. 308, 315 (1974) (internal quotation marks and citations omitted).
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The cross-examination right gains even stronger salience when “the witness
is critical to the prosecution’s case.” 192
“While the scope of cross-examination is within the discretion of the
trial judge, this discretionary authority to limit cross-examination comes into
play only after there has been permitted as a matter of right sufficient cross-
examination to satisfy the Sixth Amendment.” 193 The district courts wield
“wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or marginally relevant.” 194 The
Confrontation Clause is “generally satisfied when the defendant has been
permitted to expose to the jury facts from which jurors, as the sole triers of
fact and credibility, could appropriately draw inferences relating to the
reliability of witnesses.” 195 The “relevant inquiry is whether the jury had
sufficient information to appraise the bias and motive of the witness.” 196
“[W]hether the exclusion of evidence is of a constitutional dimension
depends on the [district] court’s reason for the exclusion and the effect of the
_____________________
192
United States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996).
193
United States v. Elliott, 571 F.2d 880, 908 (5th Cir. 1978). It is well established
that “discretionary authority comes about only after sufficient cross-examination has been
granted to satisfy the Sixth Amendment.” United States v. Landerman, 109 F.3d 1053, 1061
(5th Cir. 1997). We also reiterate that, “the Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam). See also, Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir. 2005) (“[T]he
Confrontation Clause does not guarantee defendants cross-examination to whatever extent
they desire.”).
194
VanArsdall, 475 U.S. at 679.
195
United States v. Skelton, 514 F.3d 433 (5th Cir. 2008) (internal citations omitted).
196
United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993).
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exclusion.” 197 This Court has noted that, “[t]his determination typically
includes an inquiry into the admissibility of the evidence under the Federal
Rules of Evidence.” 198 For Confrontation Clause violations, the “defendant
need not establish that the jury would have reached a different result.” 199
Instead, the threshold question is whether, “[a] reasonable jury might have
received a significantly different impression of [the witness’] credibility had
[defense] counsel been permitted to pursue his proposed line of cross-
examination.” 200
In the Fifth Circuit, the right to cross-examine witnesses is “especially
important” when the individuals “may have substantial reason to cooperate
with the government.” 201 While there is a “presumption in favor of free
cross-examination, placing restrictions on its scope is within the sound
discretion of the trial court.” 202 Furthermore, “cross-examination into any
motivation or incentive a witness may have for falsifying his testimony must
be permitted.” 203 The admissibility of bias evidence is still subject to FED.
R. EVID. 403. 204
_____________________
197
Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005).
198
Skelton, 514 F.3d at 440.
199
Id. The analysis centers “on the particular witness.” Id.
200
VanArsdall, 475 U.S. at 679-80.
201
United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976).
202
Id.
203
United States v. Bratton, 875 F.2d 439, 443 (5th Cir. 1989) (citations omitted and
emphasis in original).
204
This Rule reads in its entirety: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
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i.
The convictions at issue are a 1994 state court conviction for carnal
knowledge of a juvenile and three 1994 and 1995 state court convictions for
armed robberies. 205 Defendants explain that it was possible for the State of
Louisiana to pursue duplicative charges against Crawford for past criminal
acts for which he was serving federal time. At trial, however, defense counsel
admitted that they had no indication that Crawford would be charged under
Louisiana’s laws. And the district court ruled that there was no indication
that the state of Louisiana would charge Crawford or that there was any
implication in his informant deal with the federal government that implicated
the staying of any state charges.
Crawford’s testimony at trial—on both direct and cross-
examination—included the following: that he was convicted in 2005 for
conspiracy to possess with intent to distribute five kilograms or more of
cocaine; that he served a reduced sentence for that charge for 78 months; that
he was serving a conviction on three counts of distribution and possession
with intent to distribute heroin; that he was sentenced to 105 months and not
151-188 months; that he was a career offender; and that his sentence was
reduced for informing on other inmates.
Under the dual sovereignty doctrine, prosecution is allowed for the
same criminal conduct in federal and state court. 206 Here, under Louisiana
law, the statute of limitations had not run on the 2018 heroin charges, and
with a state conviction Crawford would have been eligible for life without
_____________________
205
Under FED. R. EVID. 609(b)(1), if more than ten years have elapsed since a
witness’ conviction or release form confinement—whichever is later—the evidence of said
conviction is admissible only if “its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect . . . .” The Prosecution did not
seek to exclude Crawford’s 2006 federal conviction for conspiracy with intent to distribute
five kilograms or more of cocaine, even though this was older than ten years as well.
206
See Gamble v. United States, 587 U.S. 678, 707-710 (2019) (documenting and
reaffirming the history of dual sovereignty and subsequent prosecutions).
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parole. Defendants argue that the case at hand is similar to others presented
to the Fifth Circuit over the course of years. 207 None are applicable.
In Croucher, the witness had a “lengthy history of both state and
federal theft and burglary arrests, none of which, however, had resulted in
conviction.” 208 The witness admitted that he had been cooperating with both
federal and state authorities as a result of dismissals. 209 While the witness
testified that his “debt” had been worked off, this Court noted that his past
actions were still liable under the statute of limitations, and law enforcement
officials who he had been actively working with could indict or reindict
him. 210 The district court—by allowing inquiry on only convictions involving
moral turpitude and by disallowing inquiry for arrests occurring after the
alleged conspiracy—left the jury “without any evidence that [the witness]
was very vulnerable to pressures by the prosecution at the time he gave his
testimony.” 211
Defendants argue that Crawford received favorable treatments in
arrests, just as in Croucher. But Crawford’s arrests were not subject to the
special treatment seen in Croucher, nor was the state of Louisiana a party to
his informant activities. Crawford was in federal jail on federal charges—and
had only been informing to receive federal leniency. While the state of
_____________________
207
See United States v. Croucher, 532 F.2d 1042 (5th Cir. 1976); Greene v.
Wainwright, 634 F.2d 272 (5th Cir. 1981); Carrillo v. Perkins, 732 F.2d 1165 (5th Cir. 1984);
United States v. Cooks, 52 F.3d 101 (5th Cir. 1995); United States v. Landerman, 109 F.3d
1053; Beaudine v. United States, 368 F.2d 417 (5th Cir. 1966).
208
532 F.2d at 1044.
209
Id.
210
Id. at 1044-45. The Court also noted that he was charged for theft and burglary,
and then the charges were dropped, after 1972. These two dates were prior to the
termination of the alleged conspiracy in the case for which he was an informant, but before
the corresponding indictment and trial.
211
Id.
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Louisiana could charge him for the same drug crimes, Defendants offered no
evidence of such intent.
In Greene, the witness in question was the “chief” or “star” witness
for the prosecution, and the district court granted a motion in limine that this
Court described as a “complete bar” to exploratory inquiry into bias or
motive. 212 Defendants emphasize Greene for the simple fact that no
indictment or charge was pending against the witness. 213 This misses the
mark; Greene focused on the complete bar of any cross-examination not
concerning the criminal activity at hand. By contrast, Crawford expounded
on many aspects of prison life and much of his criminal past—in addition to
the criminal conspiracy at issue on the stand.
In Carrillo, the witness in question was vulnerable to prosecution on
unadjudicated criminal offenses related to stolen firearms at the time of
giving testimony at trial. 214 This Court ruled that the defendant’s Sixth
Amendment rights were violated because exploration could have revealed
the witness’ vulnerability to prosecution that would push him to compromise
his credibility and to assist the State. 215 Defendants note that in Carrillo, the
witness admitted he had committed a felony, denied a deal of working with
the authorities, and knew charges could still be filed against him—just like
Crawford. What Defendants fail to acknowledge, however, is that it was the
same sovereign at issue in Carillo, that the charges were completely
unadjudicated, and that the statute of limitations had not run. Crawford had
_____________________
212
634 F.2d at 275.
213
The scope of cross-examination stretched in and around the time of the
testimony relevant to Defendants and did not resemble the “complete bar” present in
Greene. Nor was Crawford the Prosecution’s star witness in the weekslong trial. That award
may go to Ayanna, who testified against her brother and father.
214
723 F.2d at 1167.
215
Id. at 1169-70. In Carillo, it was a state charge that was unadjudicated, and a state
criminal trial. Thus, the same sovereign was at play in both situations.
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no contact with Louisiana, was not cooperating in the present case with
Louisiana, and no contrary evidence was presented.
In Cooks, the witness was cooperating with both state and federal
authorities, and the district court limited cross-examination to cover prior
arrests and drug use and excluded information concerning a Louisiana arrest
or future stiff penalties of conviction on either Texas or Louisiana charges. 216
Prior to cooperating with the Government, the witness was arrested in Texas
for state drug offenses, and agreed to cooperate with state and federal
authorities. 217 This Court ruled that the district court’s limitation violated
Cooks’ Sixth Amendment rights, and that there was “obvious pressure” on
the witness for his testimony to be valuable. 218
Defendants contend that this is similar to Crawford because he could
be prosecuted by Louisiana for drug charges and as a result could face severe
penalties, inversely implying that the benefit of cooperating with the federal
authorities would mean that Crawford would not face a “functional—if not
actual—life sentence.” This is a stretch, as no cooperation between
Louisiana and the Prosecution of the kind present in Cooks was ever evinced
at trial or before. And there was no unadjudicated conduct, as in Cooks, that
had not been charged by any sovereign in Crawford’s case.
In Landerman, the witness had a pending state charge that carried a
potential life sentence when he entered into a plea agreement with the federal
government. 219 The witness testified outside of the presence of the jury that,
to his knowledge, no part of his deal would implicate his pending state
_____________________
216
52 F.3d at 103-04.
217
Id. at 102. The district court noted that in Texas, he would receive a possible 99-
year sentence on the drug charges; in Louisiana, this would have been his third charge that
would carry a possible 40-year sentence. Id. at 104.
218
Id.
219
109 F.3d at 1061-62.
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charge—leading this Court to conclude that the defendants’ Sixth
Amendment rights were violated. 220 Here, Defendants do not show or allege
that there was any pending state charge, much less cooperation between state
and federal authorities or promises of leniency.
Finally, in Beaudine, this Court noted that the witness was being cross-
examined on the specifics of each felony in question “to test memory which,
in many, many details, was hazy at best.” 221 Here, the purpose of presenting
Crawford’s prior state convictions was decidedly not to test his memory.
Rather, it was to show bias, and the possibility of a Louisiana prosecution that
would carry a heavy sentence.
Crawford’s situation differs from these cases as there were no pending
charges in Louisiana and no evidence of any cooperation by the Prosecution
with Louisiana authorities. We find that Defendants’ Sixth Amendment
protections were not violated, and that the district court’s discretion allowed
this restriction. 222 The distant and unproven specter of state charges does not
implicate the Sixth Amendment under our precedent. We see no abuse of
discretion by the district court. 223
_____________________
220
Id. at 1062-64.
221
368 F.2d at 421-22.
222
The Government cites to FED. R. EVID. 609(b) as creating a presumption
against admission of a conviction older than ten years. Under Skelton, “[t]his determination
typically includes an inquiry into the admissibility of the evidence under the Federal Rules
of Evidence.” 514 F.3d at 440. Under FED. R. EVID. 609(b)(1), evidence of prior
convictions is only admissible beyond ten years if “its probative value, supported by
specific facts and circumstances, substantially outweighs its prejudicial effect.” In the
present case, the evidence was cumulative that Crawford was a career offender, and
Defendants were given wide latitude into the motivations of Crawford in testifying—
namely, a hefty reduction.
223
As reflected by trial transcripts and Government motions, the Prosecution
viewed the carnal knowledge charge from 1994 as prejudicial and inflammatory to the jury.
Given the stricture of Rule 609(b)(1), we also find that the district court did not abuse its
discretion.
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ii.
At trial, the district court excluded recordings of jailhouse telephone
calls between Crawford and his attorney—but allowed transcripts of the calls
to be read into evidence. 224 During Crawford’s cross-examination, defense
counsel used these calls to impeach Crawford with prior inconsistent
statements under FED. R. EVID. 613.
Defense counsel cross-examined Crawford on statements he made in
telephone calls—and compared them to his testimony on direct examination.
Defendants then moved to enter the recordings into evidence. The district
court excluded the calls because defense counsel had not established an
inconsistency, and the calls would have been cumulative of Crawford’s
testimony.
Defendants argue that Crawford took the “time-honored strategy” of
testifying to not remembering the answer to a question asked. They argue
that the district court misunderstood the state of current caselaw as it
pertains to Rule 613. 225 Defendants also contend that acknowledging a
statement—as opposed to hearing the “abject desperation” in Crawford’s
voice—violated the attorney’s ability to “constitutionally confront”
Crawford. 226
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224
For context, the calls from prisoners are recorded, and each prisoner is assigned
a unique seven-digit PIN that they use to dial outside numbers. This identifies who is
(supposed) to be calling from the prison. Call transcripts and recordings were available to
Defendants through the natural course of discovery proceedings.
225
Defendants cite United States v. Sisto for the proposition that a witness’ denial
of a statement or failure to remember on cross-examination opens the door for the
statements to be proven by another witness. 534 F.2d 616, 622 (5th Cir. 1976). In Sisto,
there is no recording on hand—it was all live witnesses and non-documentary evidence. In
the present case, there is an objective recording.
226
This is an assertion without a single citation of secondary or primary authority.
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Under our precedent, proof of a prior inconsistent statement is
admissible to impeach a witness and proof may be elicited “by extrinsic
evidence only if the witness on cross-examination denies having made the
statement.” 227 A witness’ failure to remember does not constitute a denial.228
Critically, “whether a claim of forgetfulness about a prior statement is
genuine or feigned, and therefore consistent or inconsistent” is “a fact-
specific inquiry” for the district court to conduct. 229
At trial, Crawford never denied making a statement. Instead, he
proffered variations on a theme of the fact that he did not remember phone
calls from two years ago. As evidenced by the trial transcript, Crawford never
denied making a statement, but rather testified that he had no memory of
these specific phone calls. We see no abuse of discretion in the district court’s
ruling that the transcripts—and not the recordings—were proper tools of
impeachment. 230
iii.
Defendants object to the district court’s ruling on hearsay and
relevance grounds pertaining to Defendants’ desire to cross-examine
Crawford about statements made to him by Tyrone Scott, a member of the
YMF.
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227
United States v. Devine, 934 F.2d 1325, 1345 (5th Cir. 1991) (citing Sisto, 534
F.2d at 616). See also United States v. Leslie, 759 F.2d 366, 379-80 (5th Cir. 1985); United
States v. Hale, 685 F.3d 522, 539 (5th Cir. 2012).
228
Devine, 934 F.2d at 1345. See also, United States v. Balliviero, 708 F.2d 934, 939-
40 (5th Cir. 1983) (holding that “[s]ince there is no denial that the statement was made,
there is clearly no rationale for the introduction of a prior ‘inconsistent’ statement.”).
229
United States v. Meza, 701 F.3d 411, 427 (5th Cir. 2012).
230
We also find that the district court was correct in its estimation that—under
FED. R. EVID. 403—playing the calls would have been cumulative given that Crawford
“readily adopted” statements in later phone calls that included similar content.
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During the Massiah hearing and testimony conducted months prior to
trial, defense counsel cross-examined Crawford on other inmates he served
time with while at Nelson Coleman Correctional Facility. The Prosecution
objected, and defense counsel explained that they wanted to elicit
information about Scott. The Prosecution noted their prior agreement not to
call Scott as a witness and told the district court that if the information was
admitted, they would call Scott to the stand. Following the Prosecution’s
objections, the district court ruled that Massiah hearings do not have the same
evidentiary rule strictures as trial, and thus statements from Crawford about
what he heard from someone else other than Wilson were disallowed.
Even with this ruling from the district court, defense counsel could
have asked Crawford other questions concerning Scott. 231 The district court
did not impose a blanket ban on the topic of Scott, but only on statements he
made to Crawford—not facts about him or his life that Crawford might have
known. We find that the district court did not abuse its discretion and did not
violate Defendants’ Sixth Amendment rights.
IX.
Age III challenges the district court’s denial of his motions to sever
his trial from his father’s. We find no error.
A.
Age III in his motion to sever argued that admitting a statement from
his father against him would violate his Sixth Amendment Confrontation
Clause rights. 232 The substance of the statement, alleged to be given to
federal agents, was that, he, Age Jr., paid Age III to arrange Womack’s
_____________________
231
Defense counsel pursued this line of questioning at the Massiah hearing but
declined to do so at trial.
232
His father had the right not to testify at the joint trial under the Fifth
Amendment, meaning Age III would not be able to cross-examine him on this statement.
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murder. We review the decision to deny a request to sever a joint trial under
the “exceedingly deferential abuse of discretion standard.” 233
B.
Under FED. R. CRIM P. 14(a), a district court may “order separate
trials of counts, sever the defendants’ trials, or provide any other relief justice
requires.” When a defendant argues that “the district court committed
reversible error in denying his request to sever . . . [the defendant] faces a
doubly high burden.” 234 “‘Severance is an exception’ justified ‘only if there
is a serious risk that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.’” 235 “Particularly in conspiracy cases,” 236 federal courts
“prefer joint[] trials of defendants who are properly charged in joint
indictments.” 237
To overcome this “heavy presumption,” 238 “a defendant must show
that the joint trial prejudiced him to such an extent that the district court
could not provide adequate protection; and the prejudice outweighed the
government’s interest in economy of judicial administration.” 239 There must
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233
United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018).
234
Id. In addition, the Court went on to note that our precedent, “does not reflect
a liberal attitude toward severance.” Id. (internal quotation marks and citation omitted).
235
United States v. Daniel, 933 F.3d 370, 380 (5th Cir. 2019) (quoting Zafiro v.
United States, 506 U.S. 534, 539 (1993)).
236
United States v. Musqiz, 45 F.3d 927, 931 (5th Cir. 1995).
237
United States v. Daniels, 281 F.3d 168, 177 (5th Cir. 2002) (noting the preference
of federal courts for joint trials “[t]o promote judicial economy and the interests of justice
. . . .”).
238
Ledezma-Cepeda, 894 F.3d at 690.
239
United States v. Snarr, 704 F.3d 368, 396 (5th Cir. 2013).
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be “specific compelling prejudice” 240 and not merely “generic allegations of
prejudice.” 241
Age III argues that his situation overcomes the high hurdle of
severability. The Prosecution responds that Age III may not have been
indicted for the Medicare fraud case, but Ayanna’s testimony put him
squarely in the thick of the family business. The Prosecution’s theory was
that Age III and Wilson sought out a violent hit man to kill Womack to silence
his testimony of multiple instances of criminal conduct, from Medicare fraud
to school arson and insurance fraud. Age III points to the evidence of violence
concerning Guillory and the similarity of his and his father’s names as
prejudicing him. But Age III does not explain how a separate trial would
benefit him. This is apparent when his father would still be referred to as part
of the conspiracy and Guillory and YMF-affiliated witnesses could still be
called to testify, just as they were at trial.
The jury was instructed to apply evidence separately to each
defendant. When it acquitted Age III of retaliation under Count Nine, the
jury understood and applied their instructions. We “presume” that juries
“follow the instructions given to them by the district court[,]” 242 and the
acquittal of the retaliation charge is strong evidence that the jury understood
and applied the law to the facts of this case. 243
Here, four co-defendants are charged of being part of the same
conspiracy, and of committing criminal acts in tandem at the same time.
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240
United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2013) (internal quotation
marks and citation omitted).
241
Ledezma-Cepeda, 894 F.3d at 690.
242
United States v. Owens, 683 F.3d 93, 100 (5th Cir. 2012).
243
Id. See also, United States v. Stalnaker, 571 F.3d 428, 435 (5th Cir. 2009) (noting
that this behavior “suggests that the jury did not blindly convict on spillover evidence but
instead gave each defendant and each count separate consideration.”).
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Given the facts, this is not a case fit for severance. We find no abuse of
discretion by the district court.
X.
Age Jr. challenges the district court’s jury instructions for Count 9,
charging conspiracy to retaliate against Ayanna, as erroneous. 244 We find no
error in the jury instructions.
A.
District court jury instructions are reviewed for abuse of discretion,
“considering whether the instruction, taken as a whole, is a correct statement
of the law and whether it clearly instructs the jurors as to the principles of law
applicable to the factual issues confronting them.” 245 This is subject to
harmless error review. 246 In addition, the trial court is given “substantial
latitude in describing the law to the jurors.” 247
A district court reversibly errs when it refuses to give a defendant’s
instruction “where (1) the requested instruction is substantially correct; (2)
the requested issue is not substantially covered in the charge; and (3) the
instruction concerns an important point in the trial so that the failure to give
it seriously impaired the defendant’s ability to effectively present a given
defense.” 248
_____________________
244
See supra I(A)(2) and II(E)(2).
245
United States v. Aldawsari, 740 F.3d 1015, 1019 (5th Cir. 2014) (emphasis added
and quotation marks omitted).
246
Id.
247
Daniel, 933 F.3d at 329 (citing United States v. Ortiz-Mendez, 634 F.3d 837, 839
(5th Cir. 2011) (internal quotation marks and citation omitted)).
248
Ortiz-Mendez, 634 F.3d at 839.
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B.
Count Nine charges the conspiracy to retaliate against a witness for
aiding law enforcement in the prior Medicare fraud case. Age Jr. argues that
the jury should have been given a but-for causation instruction, reading as
follows:
“Intent of retaliating” has its natural meaning and refers to an
action performed with the intention of returning like for like or
getting revenge. An action is taken with the intent of retaliating if
it would not have been taken, but for the intention to retaliate. 249
Age Jr. asserts that but-for instructions are required for statutes using the
phrases “because of,” “results from,” and “by reason of.” 250 He argues that
because 18 U.S.C. § 1513(f) criminalizes otherwise lawful activity, the statute
implies that criminal or retaliatory intent’s mere presence is not dispositive
of guilt; the alternative would “criminalize [] thought.”
The Prosecution notes that the finalized jury instruction reflected the
Merriam-Webster’s definition of “retaliation,” which is, “to return like for
like” and “to get revenge.” 251 In United States v. Maggitt, two defendants
were charged with witness tampering and witness retaliation under federal
law. 252 “Generally, the natural probable consequences of an act may
satisfactorily evidence the state of mind accompanying the act, even when a
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249
The proposed portion of the instructions are in italics.
250
Burrage v. United States, 571 U.S. 204, 213-215 (2014).
251
Black’s Law Dictionary also defines “retaliation” as “the act of doing someone
harm in return for actual or perceived injuries or wrongs” and “an instance of reprisal,
requital, or revenge.” Retaliation, BLACK’S LAW DICTIONARY (12th ed. 2024).
252
784 F.2d 590, 592-93 (5th Cir. 1986). Maggitt deals directly with the statute at
hand—unlike Burrage, which dealt specifically with a Controlled Substances Act statutory
provision. Id.
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particular mental attitude is a crucial element of the offense.” 253 In addition,
under 18 U.S.C. § 1513, “the Government need not establish an intent to
carry out the threat; the only intent required is an intent to retaliate.” 254 The
Maggitt court noted that the jury could have concluded that the defendant
lacked or possessed the requisite intent. 255
Given the complete lack of caselaw support for but-for causation
instructions with respect to witness retaliation, we see no abuse of discretion.
Under the district court’s jury instructions, the jurors were able to make
inferences about the “natural probable consequences of an act” and did so at
trial.256
XI.
In their final attempt to overturn their convictions, Defendants allege
violations of three discrete bodies of law: the Jury Selection and Service Act
of 1968 (“JSSA”) 257, the fair cross-section guarantee of the Sixth
Amendment, and the due-process protections of the Fifth Amendment. Each
claim implicates an attached legal standard and overall standard of review,
addressed infra in turn.
Defendants’ claims stem from the district court’s denial of their
motion to dismiss the indictment. They allege that the district court abused
its discretion by declining to quash the grand jury indictment and failing to
conduct an evidentiary hearing on their claims. To unpack the complex
_____________________
253
Maggitt, 784 F.2d at 593.
254
Id. at 593-94 (referencing United States v. Velasquez, 772 F.2d 1348 (7th Cir.
1985)).
255
Id. at 594.
256
See id. at 593.
257
This can be found at 28 U.S.C. §§ 1861-1878. See also, Walter Pettus Gewin,
The Jury Selection and Service Act: Implementation in the Fifth Circuit Court of Appeals, 20
MERCER L. REV. 349 (1969).
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claims at play in this issue, we divide the factual and legal landscape and
resolve this thorny issue discretely. 258
A.
To begin, Defendants moved to access documents pertaining to the
grand jury that had returned their indictment. 259 The district court entered
an order in favor of the defendants, granting access to a wide swath of
information with names and addresses redacted. 260 The Clerk of Court for
the Eastern District of Louisiana (“EDLA”) in turn produced a multitude
of documents that were entered into the record. Defendants moved to quash
the indictment, alleging violations of the JSSA and the Sixth Amendment’s
fair cross-section guarantee. 261 Defendants also sought a full evidentiary
hearing to prove the merit of their claims.
In an unforeseen twist, the Clerk of Court and her deputies retained
counsel and sought to intervene in the dispute or to appear as amicus curiae
in the case, an effort opposed by both the Prosecution and Defendants. The
district court denied the Clerk’s motion but permitted the Clerk to submit an
expert report in conjunction with any accompanying statistical analysis. The
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258
“[D]ivide each of the difficulties . . . into as many parts as possible and as [i]s
required in order to better resolve them.” RENE DESCARTES, DISCOURSE ON METHOD
AND MEDITATIONS ON FIRST PHILOSOPHY 11 (Donald A. Cass trans., Hackett Publ’g Co.
4th ed. 1998) (1637).
259
More about what a master and qualified wheel, as well as the exact nature of the
reports requested by Age Jr. and the other defendants will follow in XI(B).
260
In addition to names and addresses, the district court ordered that dates of birth,
occupations, juror identification numbers, and voting status information be redacted.
261
Defense counsel supplemented their initial motion and analysis with another
motion that alleged persons of lower economic status were also systematically excluded
from the qualified lists, jury pools, and venires in EDLA.
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district court also ordered the production of additional panel and venire data
in machine-readable format. 262
Upon receipt of the Clerk’s expert report, Age Jr. filed a supplemental
motion to quash the indictment, laying out his claims against the
administration of the JSSA in EDLA. Defendants, with data in hand, filed
a supplemental motion to quash and expanded on prior analysis with an
additional expert report. 263 The Prosecution responded with its own expert
report and disputed the findings and conclusions of Defendants’ reports;
Defendants replied. 264 The district court stated that only factual information
from Defendant, Clerk, and Prosecution experts would be used. On June 2,
2021, the district court ruled that a prima facie case had not been established,
and denied Age Jr.’s motion to quash. A later trio of motions filed by Age Jr.
were also denied by the district court. 265
_____________________
262
This order was produced in response to a later motion by Age Jr. for machine-
readable data, additional panels, and records produced from the review of EDLA jury
selection processes by the Administrative Office of the United States Courts. The district
court did not grant, however, the request from Age Jr. that the Clerk’s office release the
Jury Management Report or related working documents, reasoning that, “they are the
internal, non-publicly available deliberative process and work product of that office and the
Court finds that they are not reasonably required for movant’s fair
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