Opinion

United States v. Age

  • 136 F.4th 193
Court
Court of Appeals for the Fifth Circuit
Filed
Apr 25, 2025
Status
Published
Nature of suit
Direct Criminal
Cited by
5 cases
Authority
More cited than 48.8%

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.

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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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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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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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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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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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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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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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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).

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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).

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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.

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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).

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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).

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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

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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

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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

_____________________

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.

_____________________

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

_____________________

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

_____________________

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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