Petition for Writ of Certiorari — Louis Age, III, Petitioner v. United States
Supreme Court briefAug 28, 2025
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Case: 22-30656
Document: 298-1
Page: 1
Date Filed: 04/25/2025
United
Gnited States
States Court
Court of
of Appeals
Appeals
for
for the
the Fifth
Fifth Circuit
Circuit
____________
United
United States
States Court
Court of
of Appeals
Appeals
Fifth
Fifth Circuit
Circuit
No.
No. 22-30656
22-30656
____________
FILED
FILED
April 25,
April
25, 2025
2025
Lyle
Lyle W.
W. Cayce
Cayce
Clerk
Clerk
United
UNITED States
STATES of
OF America,
AMERICA,
Plaintiff—Appellee,
Plaintiff—Appellee,
versus
versus
Louis
Jr.; Stanton
LouIs Age,
AGE, JR.;
STANTON Guillory;
GUILLORY; Louis
LoutIs Age,
AGE, III;
III; Ronald
RONALD
Wilson,
Jr.,
WILSON, JR.,
Defendants—Appellants.
Defendants—
Appellants.
______________________________
Appeals
Appeals from
from the
the United
United States
States District
District Court
Court
for
for the
the Eastern
Eastern District
District of
of Louisiana
Louisiana
USDC
USDC No.
No. 2:16-CR-32-2
2:16-CR-32-2
______________________________
Before
Circuit Judges.
Before Higginbotham,
HIGGINBOTHAM, Stewart,
STEWART, and
and Haynes,
HAYNES, Circuit
Judges.” *
Patrick
PATRICK E.
E. Higginbotham,
HIGGINBOTHAM, Circuit
Circuit Judge:
Judge:
Defendants
Defendants Louis
Louis Age
Age Jr.,
Jr., Louis
Louis Age
Age III,
III, Stanton
Stanton Guillory,
Guillory, and
and Ronald
Ronald
Wilson
were convicted
Wilson were
convicted and
and each
each sentenced
sentenced to
to terms
terms of
of life
life imprisonment
imprisonment for
for
their
their involvement
involvement in
in the
the murder-for-hire
murder-for-hire of
of Milton
Milton Womack,
Womack, aa federal
federal
witness in
witness
in aa healthcare
healthcare fraud
fraud case.
case. Defendants
Defendants collectively
collectively raise
raise ten
ten issues
issues on
on
appeal.
we AFFIRM.
appeal. Finding
Finding no
no error
error of
of the
the district
district court,
court, we
AFFIRM.
_____________________
*
Judge Haynes
judgment only.
"Judge
Haynes concurs
concurs in
in the
the judgment
only.
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 1a
Case: 22-30656
Document: 298-1
Page: 2
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
I.
I.
A.
A.
The
began with
The history
history of
of this
this case
case began
with an
an earlier
earlier healthcare
healthcare fraud
fraud case
case in
in
the
jury charged
the Middle
Middle District
District of
of Louisiana.
Louisiana. In
In August
August 2011,
2011, aa federal
federal grand
grand jury
charged
Louis
Jr. (“Age
Jr.”), Ayanna
Louis Age
Age Jr.
(“Age Jr.”),
Ayanna Age
Age (“Ayanna”),
(“‘Ayanna”’), Milton
Milton Womack,
Womack, and
and
others
with conspiracy
others with
conspiracy to
to commit
commit healthcare
healthcare fraud,
fraud, conspiracy
conspiracy to
to receive
receive and
and
pay
pay healthcare
healthcare kickbacks,
kickbacks, and
and making
making false
false statements
statements to
to receive
receive payments
payments
from
from Medicare.
Medicare.
Age
Jr. owned
Age Jr.
owned South
South Louisiana
Louisiana Home
Home Healthcare
Healthcare Agency
Agency (“South
(“South
Louisiana”).
Louisiana”). His
His daughter,
daughter, Ayanna,
Ayanna, helped
helped him
him run
run the
the business.
business. Though
Though
Age
Jr.’s son,
work for
Age Jr.’s
son, Louis
Louis Age
Age III
III (“Age
(“Age III”),
III”), did
did not
not work
for the
the company,
company, he
he
was on
was
on the
the payroll.
payroll. South
South Louisiana
Louisiana paid
paid illegal
illegal kickbacks
kickbacks for
for patient
patient referrals,
referrals,
and
and Womack
Womack was
was aa recruiter
recruiter who
who received
received illegal
illegal kickbacks.
kickbacks. And
And in
in aa separate
separate
venture, Womack
burned down
venture,
Womack and
and Age
Age III
III burned
down aa New
New Orleans
Orleans school
school owned
owned by
by
Age
Jr. as
Age Jr.
as part
part of
of an
an insurance
insurance fraud
fraud scheme.
scheme.
1.
1.
As
As Womack
Womack knew
knew about
about the
the healthcare
healthcare fraud
fraud at
at South
South Louisiana
Louisiana and
and
the
burning of
Jr. became
the burning
of the
the New
New Orleans
Orleans school,
school, Age
Age Jr.
became concerned
concerned about
about
Womack’s
Jr. hired
Womack’s inclusion
inclusion in
in the
the healthcare
healthcare fraud
fraud indictment.
indictment. So
So Age
Age Jr.
hired
Hilliard
Hilliard Fazande
Fazande to
to represent
represent Womack
Womack in
in the
the healthcare
healthcare fraud
fraud case.
case. Through
Through
Fazande,
Jr. gave
Fazande, Age
Age Jr.
gave Womack
Womack cash
cash payments
payments to
to “be
“‘be quiet
quiet and
and to
to cooperate
cooperate
with
Jr.].” Then
with Fazande
Fazande and
and [Age
[Age Jr.].”.
Then in
in December
December 2011
2011 and
and again
again in
in March
March
2012,
because “he
2012, Womack
Womack contacted
contacted defense
defense attorney
attorney Michael
Michael Fiser
Fiser because
“he was
was
not
not comfortable
comfortable with
with his
his present
present attorney
attorney Mr.
Mr. Fazande”
Fazande” and
and wanted
wanted his
his
1
“own
“own lawyer.”
lawyer.” Following
Following aa Garcia
Garcia’ hearing,
hearing, the
the court
court appointed
appointed Fiser
Fiser to
to
_____________________
1
grounds by
' United
United States
States v.
v. Garcia,
Garcia, 517
517 F.2d
F.2d 272
272 (5th
(5th Cir.
Cir. 1975),
1975), abrogated
abrogated on
on other
other grounds
by
Flanagan v.
with
Flanagan
v. United
United States,
States, 465
465 U.S.
U.S. 259,
259, 263
263 (1984).
(1984). If
Ifaa defendant
defendant chooses
chooses to
to proceed
proceed with
2
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 2a
Case: 22-30656
Document: 298-1
Page: 3
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
replace
with Fiser
replace Fazande
Fazande as
as Womack’s
Womack’s attorney.
attorney. Womack
Womack met
met with
Fiser and
and told
told
him
wanted to
him that
that he
he wanted
to speak
speak to
to the
the Prosecution.
Prosecution. Soon
Soon thereafter,
thereafter, Fiser
Fiser
negotiated
negotiated aa plea
plea agreement
agreement for
for Womack.
Womack. The
The district
district court
court set
set aa
rearraignment
rearraignment date,
date, with
with an
an electronic
electronic notification
notification sent
sent to
to all
all parties
parties
involved—including
Jr.—scheduling Womack’s
involved—including Age
Age Jr.—scheduling
Womack’s rearraignment
rearraignment for
for the
the
following
following week.
week.
As
became clear
Jr. that
As it
it became
clear to
to Age
Age Jr.
that Womack
Womack might
might indeed
indeed become
become aa
government
witness in
government witness
in the
the healthcare
healthcare fraud
fraud case,
case, he
he decided
decided at
at aa meeting
meeting
with Ayanna
Johnson, to
with
Ayanna and
and her
her then-husband,
then-husband, Kendrick
Kendrick Johnson,
to kill
kill Womack.
Womack.
Johnson, Age
Johnson,
Age III,
III, and
and Wilson,
Wilson, aa friend
friend of
of Age
Age III,
III, set
set out
out to
to find
find Womack’s
Womack’s
whereabouts in
while Age
whereabouts
in New
New Orleans,
Orleans, while
Age III
III searched
searched for
for aa hired
hired gun.
gun.
In
July 2012,
In July
2012, at
at aa repass
repass gathering
gathering in
in New
New Orleans,
Orleans, Age
Age III,
III, Wilson,
Wilson,
and
and members
members of
of the
the Young
Young Mafia
Mafia Fellaz
Fellaz (“YMF”)
(“Y MF”) gang
gang Stanton
Stanton Guillory,
Guillory,
Raheem
Jackson and
Raheem Jackson
and Brian
Brian Marigny
Marigny were
were present.
present. The
The YMF
YMF members
members knew
knew
Age
Age III
III and
and Wilson
Wilson through
through aa New
New Orleans
Orleans “chop
“chop shop”
shop” that
that sold
sold stolen
stolen car
car
parts
parts and
and facilitated
facilitated insurance
insurance fraud
fraud by
by intentionally
intentionally wrecking
wrecking cars
cars and
and filing
filing
insurance
was overheard
insurance claims.
claims. At
At the
the repass,
repass, Age
Age III
III was
overheard telling
telling Wilson
Wilson that
that
“he
was
“he got
got to
to kill
kill some
some n*gg*
n*gg* he
he about
about to
to get
get ready
ready to
to go
go to
to court.”
court.” Age
Age III
III was
also
also seen
seen conversing
conversing with
with Guillory.
Guillory. Following
Following that
that conversation,
conversation, Guillory
Guillory
told
Jackson that
told Jackson
that Age
Age III
III would
would pay
pay Guillory
Guillory $5,000
$5,000 to
to murder
murder Womack.
Womack.
Guillory
Guillory did
did not
not have
have his
his own
own cell
cell phone,
phone, so
so he
he added
added Age
Age III’s
III’s number
number to
to
both Jackson’s
Jackson’s and
both
and Marigny’s
Marigny’s phones.
phones.
Guillory,
Jackson, and
began searching
Guillory, Jackson,
and Marigny
Marigny then
then began
searching for
for Womack
Womack in
in
the
the Gentilly
Gentilly neighborhood
neighborhood of
of New
New Orleans,
Orleans, as
as Age
Age III
III had
had told
told them
them Womack
Womack
_____________________
representation
representation by
by counsel
counsel who
who has
has a a conflict
conflict of
of interest,
interest, aa district
district court
court must
must conduct
conduct aa
“Garcia”
waiver by
by the
“Garcia” hearing
hearing to
to ensure
ensure aa valid
valid waiver
the defendant
defendant of
of his
his Sixth
Sixth Amendment
Amendment right.
right.
Garcia,
517
F.2d
at
278.
Garcia, 517 F.2d at 278.
3
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 3a
Case: 22-30656
Document: 298-1
Page: 4
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
was staying
July 27,
was
staying there
there at
at Conteryl
Conteryl Nicholas’s—his
Nicholas’s—his girlfriend—house.
girlfriend —house. On
On July
27,
2012,
2012, after
after spotting
spotting Womack,
Womack, Guillory
Guillory and
and the
the other
other YMF
YMF members
members shot
shot
and
Jackson
and killed
killed him.
him. Guillory
Guillory used
used aa Glock
Glock Model
Model 23
23 firearm
firearm that
that he
he and
and Jackson
had
had stolen,
stolen, and
and aa red
red Chevrolet
Chevrolet Monte
Monte Carlo
Carlo that
that they
they had
had carjacked,
carjacked, to
to
commit
commit the
the murder.
murder.
Age
Age III,
III, however,
however, failed
failed to
to pay
pay Guillory
Guillory the
the full
full $5,000.
$5,000. In
In the
the days
days
after
after the
the murder,
murder, Guillory
Guillory called
called Age
Age III
III multiple
multiple times
times aa day
day for
for the
the
remainder
remainder of
of the
the money.
money. On
On August
August 1,
1, 2012,
2012, Guillory
Guillory was
was arrested
arrested after
after aa
high-speed
high-speed chase
chase in
in the
the same
same red
red Monte
Monte Carlo
Carlo used
used to
to murder
murder Womack.
Womack.
2.
2.
At
At around
around the
the time
time that
that Womack
Womack was
was murdered,
murdered, Ayanna
Ayanna retained
retained
bankruptcy
bankruptcy attorney
attorney Sharry
Sharry Sandler
Sandler to
to represent
represent her
her in
in the
the healthcare
healthcare fraud
fraud
case.
case. During
During meetings
meetings involving
involving Sandler,
Sandler, Ayanna,
Ayanna, and
and other
other members
members of
of the
the
defense
was pressured
defense team—including
team—including Fazande—Ayanna
Fazande—Ayanna was
pressured to
to lie.
lie. Sandler
Sandler
recommended
recommended that
that Ayanna
Ayanna plead
plead guilty,
guilty, Ayanna
Ayanna complied,
complied, and
and she
she began
began
cooperating
cooperating with
with the
the Prosecution
Prosecution in
in the
the healthcare
healthcare fraud
fraud case.
case.
Age
Jr. learned
Age Jr.
learned of
of Ayanna’s
Ayanna’s plea
plea and
and cooperation
cooperation with
with the
the
Prosecution,
with her.
Prosecution, and
and became
became “extremely
“extremely upset”
upset” with
her. Age
Age III
III told
told Ayanna
Ayanna
that
Johnson told
that she
she was
was “dead”
“dead” to
to the
the family,
family, and
and Johnson
told her
her that
that she
she could
could not
not
come
back to
Jr. sued
come back
to the
the family
family house.
house. And
And Age
Age Jr.
sued Ayanna
Ayanna to
to take
take back
back rental
rental
properties
properties that
that he
he had
had given
given to
to her,
her, and
and unsuccessfully
unsuccessfully tried
tried to
to initiate
initiate aa
criminal
criminal case
case against
against her
her for
for embezzlement.
embezzlement.
4
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 4a
Case: 22-30656
Document: 298-1
Page: 5
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Ayanna
Jr. in
Jr.
Ayanna testified
testified against
against Age
Age Jr.
in the
the healthcare
healthcare fraud
fraud case.
case.”2 Age
Age Jr.
3
was convicted,
was
convicted, and
and this
this Court
Court affirmed
affirmed his
his 2015
2015 convictions.
convictions.*
B.
B.
In
jury in
In August
August 2017,
2017, aa federal
federal grand
grand jury
in the
the Eastern
Eastern District
District of
of
Louisiana
Jr., Age
Louisiana returned
returned an
an 11-count
11l-count indictment
indictment charging
charging Age
Age Jr.,
Age III,
III,
Guillory,
Guillory, and
and Wilson
Wilson with
with multiple
multiple counts
counts of
of obstructing
obstructing justice
justice in
in the
the
healthcare
healthcare fraud
fraud case,
case, including
including the
the murder
murder of
of Womack.
Womack.‘ 4 In
In April
April 2022,
2022, aa
jury
jury convicted
convicted the
the Defendants
Defendants on
on all
all counts,
counts, but
but acquitted
acquitted Age
Age III
III of
of
conspiracy
conspiracy to
to retaliate
retaliate against
against Ayanna.
Ayanna.
The
The district
district court
court sentenced
sentenced each
each defendant
defendant to
to at
at least
least one
one term
term of
of life
life
imprisonment.
imprisonment. In
In October
October 2022,
2022, the
the Defendants
Defendants timely
timely appealed
appealed their
their
convictions
convictions and
and sentences,
sentences, raising
raising ten
ten issues.
issues. None
None persuade.
persuade.
II.
II.
We
We turn
turn first
first to
to the
the sufficiency
sufficiency of
of the
the evidence
evidence supporting
supporting the
the
convictions.
convictions.>° 5
_____________________
2
were two
? Because
Because the
the first
first trial
trial resulted
resulted in
in aa mistrial,
mistrial, there
there were
two trials
trials in
in that
that case.
case.
Ayanna
both.
Ayanna testified
testified in
in both.
3
Age, 614
3 United
United States
States v.
v. Age,
614 F.
F. App’x
App’x 141,
141, 146
146 (5th
(5th Cir.
Cir. 2015)
2015) (unpub.).
(unpub.).
4
Johnson. He
* The
The indictment
indictment also
also charged
charged Johnson.
He pleaded
pleaded guilty
guilty in
in February
February 2022,
2022, and
and
is
is not
not aa party
party in
in this
this appeal.
appeal.
5
Jr. and
briefs. Though
> Age
Age Jr.
and Wilson
Wilson do
do not
not raise
raise sufficiency
sufficiency challenges
challenges in
in their
their briefs.
Though the
the
ED. R.
PP. P.
defendants
defendants have
have adopted
adopted each
each other’s
other’s arguments
arguments under
under F
FED.
R. A
APP.
P. 28(i),
28(i), sufficiency
sufficiency
of
of the
the evidence
evidence challenges
challenges are
are fact-specific
fact-specific and
and thus
thus cannot
cannot be
be adopted.
adopted. See
See United
United States
States
v.
Jr.’s and
vy. Solis,
Solis, 299
299 F.3d
F.3d 420,
420, 444
444 n.70
n.70 (5th
(5th Cir.
Cir. 2002).
2002). Age
Age Jr.’s
and Wilson’s
Wilson’s failures
failures to
to brief
brief
sufficiency
waived the
sufficiency of
of the
the evidence
evidence means
means that
that they
they have
have waived
the issue.
issue. See
See also,
also, United
United States
States v.
v.
Beaumont,
972
F.2d
553,
563
(5th
Cir.
1992)
(“Failure
of
an
appellant
to
properly
argue
or
Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) (“Failure of an appellant to properly argue or
present
present issues
issues in
in an
an appellate
appellate brief
brief renders
renders those
those issues
issues abandoned.”).
abandoned.”’). Because
Because Age
Age III
III and
and
Guillory
Guillory challenge
challenge multiple
multiple convictions,
convictions, we
we address
address the
the counts
counts in
in groups
groups based
based on
on the
the
relevant
underlying
conduct.
relevant underlying conduct.
5
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 5a
Case: 22-30656
Document: 298-1
Page: 6
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
A.
A.
This
This Court
Court reviews
reviews preserved
preserved challenges
challenges to
to the
the sufficiency
sufficiency of
of the
the
evidence
evidence de
de novo,
novo,°6 reviewing
reviewing “the
“the record
record to
to determine
determine whether,
whether, considering
considering
the
the evidence
evidence and
and all
all reasonable
reasonable inferences
inferences in
in the
the light
light most
most favorable
favorable to
to the
the
prosecution,
prosecution, any
any rational
rational trier
trier of
of fact
fact could
could have
have found
found the
the essential
essential elements
elements
of
jury retains
of the
the crime
crime beyond
beyond aa reasonable
reasonable doubt.”
doubt.”’ 7 “The
“The jury
retains the
the sole
sole
authority
authority to
to weigh
weigh any
any conflicting
conflicting evidence
evidence and
and to
to evaluate
evaluate the
the credibility
credibility of
of
8
the
And where
where Defendants
the witnesses.”
witnesses.”
°And
Defendants fail
fail to
to preserve
preserve their
their sufficiency
sufficiency of
of
the
the evidence
evidence challenges,
challenges, this
this Court
Court reviews
reviews for
for plain
plain error,
error, that
that is
is “only
“only if
if
there
there is
is aa ‘manifest
‘manifest miscarriage
miscarriage of
of justice[,]’”
justice[,]’”° 9 which
which “exists
“exists only
only if
if the
the
record
record is
is devoid
devoid of
of evidence
evidence pointing
pointing to
to guilt,
guilt, or
or .. .. .. because
because the
the evidence
evidence on
on
aa key
would be
key element
element of
of the
the offense
offense is
is so
so tenuous
tenuous that
that aa conviction
conviction would
be
shocking.”
shocking.” 10
!°
B.
B.
A
juror could
beyond aa reasonable
A rational
rational juror
could find
find beyond
reasonable doubt
doubt that
that Age
Age III
III
joined aa conspiracy
joined
conspiracy to
to commit
commit murder-for-hire
murder-for-hire (Count
(Count 1)
1) and
and committed
committed
_____________________
° United
United States
States v.
v. Gibson,
Gibson, 875
875 F.3d
F.3d 179,
179, 185
185 (5th
(5th Cir.
Cir. 2017).
2017).
6
7
banc)
” United
United States
States v.
v. Vargas-Ocampo,
Vargas-Ocampo, 747
747 F.3d
F.3d 299,
299, 303
303 (5th
(5th Cir.
Cir. 2014)
2014) (en
(en banc)
(citation
omitted).
(citation omitted).
8
8 Gibson,
Gibson, 875
875 F.3d
F.3d at
at 185
185 (cleaned
(cleaned up).
up).
9
Delgado, 672
banc) (quoting
° United
United States
States v.
v. Delgado,
672 F.3d
F.3d 320,
320, 331
331 (5th
(5th Cir.
Cir. 2012)
2012) (en
(en banc)
(quoting
United
Pierre, 958
United States
States v.
v. Pierre,
958 F.2d
F.2d 1304,
1304, 1311
1311 (5th
(5th Cir.
Cir. 1992)
1992) (en
(en banc))
banc)) (emphasis
(emphasis in
in original).
original).
ED. R.
RIM. P.
See
See also, F
FED.
R. C
CRIM.
P. 52(b).
52(b).
10
McDowell, 498
1° United
United States
States v.
v. McDowell,
498 F.3d
F.3d 308,
308, 312
312 (5th
(5th Cir.
Cir. 2007)
2007) (cleaned
(cleaned up).
up).
6
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 6a
Case: 22-30656
Document: 298-1
Page: 7
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
murder-for-hire
murder-for-hire (Count
(Count 2).
2)."'11 As
As Age
Age III
III did
did not
not challenge
challenge these
these counts
counts at
at trial,
trial,
this
this Court
Court applies
applies plain-error
plain-error review.
review.
1.
1.
To
To prove
prove aa conspiracy
conspiracy to
to commit
commit murder-for-hire,
murder-for-hire, the
the prosecution
prosecution
must
must demonstrate:
demonstrate: (1)
(1) an
an agreement
agreement by
by two
two or
or more
more persons
persons to
to commit
commit
murder-for-hire;
voluntary participation
murder-for-hire; (2)
(2) the
the defendant’s
defendant’s knowing
knowing and
and voluntary
participation in
in
the
the agreement;
agreement; and
and (3)
(3) an
an overt
overt act
act committed
committed by
by any
any one
one of
of the
the conspirators
conspirators
in
in furtherance
furtherance of
of the
the conspiratorial
conspiratorial objective.
objective.’12 And
And for
for the
the substantive
substantive
offense
offense of
of murder-for-hire,
murder-for-hire, the
the Prosecution
Prosecution must
must show
show that
that the
the defendant
defendant
has:
has: (1)
(1) used
used or
or caused
caused another
another person
person to
to use
use any
any facility
facility of
of interstate
interstate
commerce;
commerce; (2)
(2) “with
“with intent
intent that
that aa murder
murder be
be committed
committed in
in violation
violation of
of the
the
laws
laws of
of any
any State
State or
or the
the United
United States”;
States”; (3)
(3) “as
“as consideration
consideration for
for the
the receipt
receipt
13
of
. . . anything
of...
anything of
of pecuniary
pecuniary value[.]”
value[.]” ¥
To
To prove
prove the
the murder-for-hire
murder-for-hire conspiracy,
conspiracy, the
the Prosecution
Prosecution presented
presented
multiple
Jackson testified
multiple witnesses.
witnesses. Jackson
testified that
that in
in mid-July
mid-July 2012,
2012, Age
Age III
III and
and
Guillory
Guillory negotiated
negotiated the
the hit
hit on
on Womack.
Womack. Marigny
Marigny testified
testified that
that Age
Age III
III and
and
Guillory—following
Guillory—following their
their initial
initial conversation
conversation about
about the
the murder—spoke
murder—spoke on
on
the
the phone
phone multiple
multiple times
times aa day
day to
to coordinate
coordinate the
the murder-for-hire,
murder-for-hire, that
that Age
Age
III
III and
and Wilson
Wilson showed
showed Guillory
Guillory and
and the
the other
other YMF
YMF members
members Nicholas’
Nicholas’
house
house on
on Verbena
Verbena Street
Street where
where Womack
Womack often
often stayed
stayed “a
‘“‘a day
day or
or two”
two” before
before
the
the murder,
murder, and
and that
that Age
Age III
III provided
provided aa description
description of
of Womack
Womack to
to Guillory.
Guillory.
_____________________
11
with conspiracy
™ Count
Count One
One charged
charged Age
Age III
III and
and Guillory
Guillory with
conspiracy to
to commit
commit murder-formurder-forhire
hire in
in violation
violation of
of 18
18 U.S.C.
U.S.C. §§ 1958.
1958. Count
Count Two
Two charged
charged Age
Age III
III and
and Guillory
Guillory with
with the
the
substantive
offense
of
murder-for-hire
in
violation
of
18
U.S.C.
§§
1958,
2.
substantive offense of murder-for-hire in violation of 18 U.S.C. §§ 1958, 2.
12
” United
United States
States v.
v. Walker,
Walker, 596
596 F.
F. App’x
App’x 302,
302, 309-10
309-10 (5th
(5th Cir.
Cir. 2015)
2015) (unpub.).
(unpub.). See
See
also
18
U.S.C.
§
1958.
also 18 U.S.C. § 1958.
13
8 Walker,
Walker, 596
596 F.
F. App’x
App’x at
at 309.
309.
7
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 7a
Case: 22-30656
Document: 298-1
Page: 8
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Turning
Jackson and
Turning to
to the
the substantive
substantive offense,
offense, both
both Jackson
and Marigny
Marigny
testified
testified that
that they
they saw
saw Guillory
Guillory use
use the
the stolen
stolen Glock
Glock to
to murder
murder Womack.
Womack.
Jackson added
Jackson
added that
that Guillory
Guillory and
and the
the YMF
YMF members
members were
were compensated
compensated with
with
money
benefits by
by Age
money and
and other
other benefits
Age III
III and
and Wilson
Wilson while
while they
they were
were searching
searching
for
for Womack;
Womack; that
that after
after the
the murder,
murder, Age
Age III
III paid
paid Guillory,
Guillory, albeit
albeit less
less than
than he
he
had
had originally
originally promised;
promised; and
and that
that Guillory
Guillory attempted
attempted to
to call
call Age
Age III
III “every
“every
day
day all
all day”
day” to
to get
get the
the rest
rest of
of the
the money.
money. The
The Prosecution
Prosecution corroborated
corroborated this
this
evidence
jail cell
between Buddy
evidence with
with aa recorded
recorded jail
cell phone
phone conversation
conversation between
Buddy
Lewis—a
Lewis—a YMF
YMF gang
gang member—and
member—and Guillory,
Guillory, in
in which
which Lewis
Lewis told
told Guillory
Guillory
that
that Age
Age III
III owed
owed Guillory
Guillory money
money for
for the
the hit.
hit.414
2.
2.
In
In sum,
sum, viewed
viewed in
in the
the light
light most
most favorable
favorable to
to the
the verdict,
verdict, the
the trial
trial
evidence
beyond aa reasonable
evidence was
was adequate
adequate to
to prove
prove beyond
reasonable doubt
doubt that
that Age
Age III
III
knowingly
knowingly and
and voluntarily
voluntarily entered
entered into
into aa conspiracy
conspiracy to
to achieve
achieve the
the unlawful
unlawful
purpose
purpose of
of murdering
murdering Womack.
Womack. Multiple
Multiple witnesses
witnesses testified
testified to
to that
that effect,
effect,
and
and the
the Prosecution
Prosecution provided
provided circumstantial
circumstantial evidence
evidence to
to corroborate
corroborate their
their
testimony.
testimony. There
There was
was no
no error.
error.
C.
C.
We
We turn
turn next
next to
to Age
Age III
III and
and Guillory’s
Guillory’s challenges
challenges to
to their
their convictions
convictions
for
with aa federal
for conspiracy
conspiracy to
to tamper
tamper with
federal witness
witness (Count
(Count Three),
Three),15 and
and the
the
_____________________
14
During
jail cell
During the
the recorded
recorded jail
cell telephone
telephone conversation,
conversation, Lewis
Lewis told
told Guillory:
Guillory: “Big
“Big
Lou
Lou got
got to
to pay
pay for
for that,
that, man.
man. Big
Big Lou
Lou come
come and
and pay
pay for
for that.
that. II got
got his
his number”.
number”. At
At trial,
trial,
Lewis
Lewis testified
testified that
that in
in this
this phone
phone call,
call, he
he was
was referring
referring to
to the
the “money
“money Big
Big Lou
Lou owes
owes Nan
Nan
.....
. . . [f]or
[flor the
the murder.”
murder.”
15
with aa
* Count
Count Three
Three charged
charged Age
Age III
III and
and Guillory
Guillory with
with conspiracy
conspiracy to
to tamper
tamper with
federal
federal witness
witness through
through Womack’s
Womack’s murder
murder in
in violation
violation of
of 18
18 U.S.C.
U.S.C. §§
§§ 1512(a)(1)(A),
1512(a)(1)(A),
1512(a)(3)(A)
1512(a)(3)(A) and
and 1512(k).
1512(k). The
The elements
elements of
of aa §§ 1512(k)
1512(k) conspiracy
conspiracy include:
include: “(1)
“(1) an
an
agreement
between
the
defendant
and
at
least
one
other
person
to
pursue
the
object
of
the
agreement between the defendant and at least one other person to pursue the object of the
conspiracy,
conspiracy, (2)
(2) the
the defendant’s
defendant’s knowledge
knowledge of
of the
the unlawful
unlawful purpose
purpose of
of the
the agreement,
agreement, and
and
8
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 8a
Case: 22-30656
Document: 298-1
Page: 9
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
substantive
substantive offense
offense of
of federal
federal witness
witness tampering
tampering (Count
(Count Four).
Four).!°16 Age
Age III
III also
also
challenges
challenges his
his conviction
conviction for
for the
the substantive
substantive offense
offense of
of witness
witness tampering
tampering
through
through Womack’s
Womack’s murder
murder to
to prevent
prevent his
his testimony
testimony related
related to
to the
the arson
arson of
of aa
New
jury
New Orleans
Orleans school
school (Count
(Count Five).
Five). We
We find
find that
that the
the Prosecution
Prosecution gave
gave the
the jury
sufficient
beyond aa reasonable
sufficient evidence
evidence to
to conclude
conclude beyond
reasonable doubt
doubt that
that Age
Age III
III and
and
Guillory
Guillory unlawfully
unlawfully conspired
conspired to
to and
and committed
committed witness
witness tampering.
tampering.
1.
1.
The
The substantive
substantive offense
offense of
of witness
witness tampering
tampering criminalizes
criminalizes the
the act
act of
of
killing
killing or
or attempting
attempting to
to kill
kill another
another person,
person, with
with the
the intent
intent to
to “prevent
“prevent the
the
attendance
attendance or
or testimony
testimony of
of any
any person
person in
in an
an official
official proceeding[,]”
proceeding[,|”!”17 or
or to
to
“prevent
by any
“prevent the
the communication
communication by
any person
person to
to aa law
law enforcement
enforcement officer
officer or
or
judge of
judge
of the
the United
United States
States of
of information
information relating
relating to
to the
the commission
commission or
or
18
possible
possible commission
commission of
of aa Federal
Federal offense[.]”
offense[.]” '®
The
The Prosecution
Prosecution relied
relied on
on direct
direct trial
trial testimony
testimony to
to establish
establish aa murdermurderfor-hire
for-hire conspiracy
conspiracy among
among Age
Age III,
III, Guillory,
Guillory, and
and others
others to
to prevent
prevent Womack’s
Womack’s
testimony
testimony in
in the
the healthcare
healthcare fraud
fraud case
case and
and the
the arson-related
arson-related insurance
insurance fraud
fraud
scheme.
scheme. Ayanna
Ayanna testified
testified that
that Age
Age III
III assisted
assisted Womack
Womack with
with the
the arson
arson of
of the
the
school,
Jr. had
school, and
and that
that Age
Age Jr.
had voiced
voiced concerns
concerns about
about Womack
Womack regarding
regarding “the
“the
arson
just the
arson and
and not
not just
the recruiting
recruiting of
of the
the patients[.]”Ayanna
patients|.]” Ayanna also
also stated
stated that
that
after
Jr. learned
after Age
Age Jr.
learned of
of Womack’s
Womack’s decision
decision to
to plead
plead in
in the
the healthcare
healthcare fraud
fraud
_____________________
(3)
by one
(3) that
that an
an overt
overt act
act was
was taken
taken by
one of
of the
the conspirators
conspirators toward
toward carrying
carrying out
out the
the object
object of
of
the
the conspiracy.”
conspiracy.” United
United States
States v.
v. Said,
Said, No.
No. 21-10588,
21-10588, 2023
2023 WL
WL 167213,
167213, at
at *3,
*3, *3
*3 n.17
n.17 (5th
(5th
Cir.
Jan. 12,
Cir. Jan.
12, 2023)
2023) (unpub.).
(unpub.).
16
‘6 Count
Count Four
Four charged
charged Age
Age III
III and
and Guillory
Guillory with
with the
the substantive
substantive offense
offense of
of witness
witness
tampering
through
Womack’s
murder
to
prevent
Womack’s
testimony
in
the
healthcare
tampering through Womack’s murder to prevent Womack’s testimony in the healthcare
fraud
fraud trial,
trial, in
in violation
violation of
of 18
18 U.S.C.
U.S.C. §§
§§ 1512(a)(1)(A),
1512(a)(1)(A), 1512(a)(3)(A),
1512(a)(3)(A), and
and 2.
2.
17
71818 U.S.C.
U.S.C. §§ 1512(a)(1)(A).
1512(a)(1)(A).
18
Id. at
18 Td.
at §§ 1512(a)(1)(C).
1512(a)(1)(C).
9
Age,
Age, III
Ill Cert
Cert Petition
Petition Appendix
Appendix 9a
Case: 22-30656
Document: 298-1
Page: 10
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
case,
case, the
the decision
decision was
was made
made to
to kill
kill Womack,
Womack, and
and that
that soon
soon thereafter,
thereafter,
Johnson and
Johnson
and Age
Age III
III set
set out
out to
to find
find Womack.
Womack.
Jackson provided
Jackson
provided testimony
testimony of
of Guillory’s
Guillory’s involvement
involvement in
in both
both the
the
conspiracy
conspiracy and
and the
the substantive
substantive offense
offense of
of witness
witness tampering.
tampering. He
He testified
testified that
that
following
following Age
Age III
III and
and Guillory’s
Guillory’s conversation
conversation at
at the
the repass
repass gathering,
gathering,
Guillory
Jackson that
Guillory told
told Jackson
that Age
Age III
III wanted
wanted him
him “to
“to kill
kill somebody
somebody for
for him.”
him.”
Lewis’
Lewis’ testimony
testimony provided
provided additional
additional support
support for
for Guillory’s
Guillory’s knowledge
knowledge that
that
Womack
Womack was
was aa federal
federal witness:
witness: he
he stated
stated that
that when
when Guillory
Guillory told
told Lewis
Lewis that
that
“he
“‘he was
was going
going to
to take
take the
the hit”
hit” for
for Age
Age III,
III, Lewis
Lewis cautioned
cautioned him
him against
against killing
killing
aa federal
witness, but
but Guillory
federal witness,
Guillory brushed
brushed Lewis’
Lewis’ concerns
concerns off.
off.
2.
2.
As
As Guillory
Guillory preserved
preserved his
his challenges
challenges to
to Counts
Counts Three
Three and
and Four,
Four, we
we
review
review his
his claims
claims de
de novo
novo and
and find
find sufficient
sufficient evidence
evidence in
in the
the record
record to
to support
support
the
jury’s verdict.
the jury’s
verdict.’19 Testimony
Testimony from
from the
the YMF
YMF members
members establish
establish that
that
Guillory
witness and
Guillory knew
knew Womack
Womack was
was aa federal
federal witness
and plotted
plotted to
to kill
kill Womack
Womack to
to
prevent
prevent his
his testimony
testimony in
in the
the healthcare
healthcare fraud
fraud trial.
trial.
We
We review
review Age
Age III’s
III’s claims
claims as
as to
to Counts
Counts Three,
Three, Four
Four and
and Five
Five for
for
plain
plain error
error as
as he
he failed
failed to
to preserve
preserve the
the claims
claims at
at trial.
trial. Age
Age III
III raises
raises two
two
arguments
arguments to
to support
support his
his challenge.
challenge. Neither
Neither is
is convincing.
convincing. First,
First, Age
Age III
III
argues
jury
argues that
that his
his conviction
conviction under
under Count
Count Three
Three is
is invalid
invalid because
because the
the jury
verdict
verdict failed
failed to
to specify
specify the
the basis
basis for
for their
their conviction.
conviction. The
The Prosecution’s
Prosecution’s
indictment
indictment charged
charged defendants
defendants with
with conspiring
conspiring to
to kill
kill Womack
Womack under
under two
two
theories
theories of
of guilt:
guilt: (1)
(1) to
to prevent
prevent Womack
Womack from
from testifying
testifying in
in the
the healthcare
healthcare
fraud
fraud trial,
trial, and
and (2)
(2) to
to prevent
prevent Womack
Womack from
from providing
providing information
information related
related to
to
_____________________
19
19 Gibson,
Gibson, 875
875 F.3d
F.3d at
at 185.
185.
10
10
Age,
Appendix 10a
Age, III
Ill Cert
Cert Petition
Petition Appendix
10a
Case: 22-30656
Document: 298-1
Page: 11
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
the
jury should
the arson
arson to
to law
law enforcement
enforcement officials.
officials. Age
Age III
III argues
argues that
that the
the jury
should
have
have been
been asked
asked to
to make
make clear
clear its
its theory
theory of
of guilt.
guilt.
This
jury verdict
This Court,
Court, however,
however, has
has upheld
upheld the
the use
use of
of similar
similar jury
verdict forms
forms
in
jury was
in cases
cases where
where the
the jury
was given
given sufficient
sufficient instructions
instructions to
to guard
guard against
against aa
non-unanimous
verdict. 20 The
non-unanimous verdict.2°
The unanimity
unanimity jury
jury instructions
instructions here
here did
did not
not
meaningfully
meaningfully differ
differ from
from the
the instructions
instructions this
this Court
Court has
has approved
approved and
and are
are
21
sufficient.
sufficient.”!
Second,
Second, Age
Age III
III argues
argues that
that the
the Prosecution
Prosecution did
did not
not establish
establish that
that
Womack
by aa trove
Womack died.
died. But
But this
this claim
claim is
is undermined
undermined by
trove of
of evidence
evidence presented
presented
by
Jackson and
by the
the Prosecution
Prosecution at
at trial,
trial, including
including eyewitness
eyewitness testimony
testimony from
from Jackson
and
Marigny,
Marigny, and
and testimony
testimony from
from the
the Prosecution’s
Prosecution’s lead
lead homicide
homicide detective
detective that
that
he
he attended
attended Womack’s
Womack’s autopsy
autopsy and
and observed
observed that
that Womack
Womack had
had suffered
suffered
gunshot
gunshot wounds
wounds to
to the
the head
head and
and shoulders.
shoulders.
Under
Under aa plain-error
plain-error standard
standard of
of review,
review, the
the evidence
evidence supporting
supporting Age
Age
III’s
III’s convictions
convictions for
for Counts
Counts Three,
Three, Four,
Four, and
and Five
Five were
were sufficient.
sufficient.
_____________________
20
Mauskar, 557
20 See,
See, e.g.,
e.g., United
United States
States v.
v. Mauskar,
557 F.3d
F.3d 219,
219, 226-27
226-27 (5th
(5th Cir.
Cir. 2009).
2009).
21
21 Compare
Compare the
the district
district court’s
court’s unanimity
unanimity instructions
instructions (“You
(“You will
will note
note that
that the
the
indictment
charges
the
defendants
with
conspiring
to
kill
Womack
with
two
different
indictment charges the defendants with conspiring to kill Womack with two different
intentions.
intentions. The
The Government
Government does
does not
not have
have to
to prove
prove both
both of
of these
these for
for you
you to
to return
return aa guilty
guilty
verdict on
beyond aa reasonable
verdict
on this
this count.
count. Proof
Proof beyond
reasonable doubt
doubt on
on one
one is
is enough.
enough. But
But in
in order
order to
to
return
a
guilty
verdict,
all
of
you
must
agree
that
the
same
one
has
been
proved.
All
of
you
return a guilty verdict, all of you must agree that the same one has been proved. All of you
must
be in
beyond aa reasonable
must be
in agreement
agreement that
that the
the Government
Government proved
proved beyond
reasonable doubt
doubt that
that the
the
defendants
defendants conspired
conspired to
to kill
kill Womack
Womack with
with an
an intent
intent to
to prevent
prevent Womack
Womack from
from attending
attending or
or
testifying
in
the
healthcare
fraud
trial
in
the
Middle
District
of
Louisiana,
or
all
of
you
must
testifying in the healthcare fraud trial in the Middle District of Louisiana, or all of you must
agree
beyond aa reasonable
agree that
that the
the Government
Government proved
proved beyond
reasonable doubt
doubt that
that the
the defendants
defendants
conspired
conspired to
to kill
kill Womack
Womack to
to prevent
prevent Womack
Womack from
from communicating
communicating to
to law
law enforcement
enforcement
about
Mauskar, 557
about the
the use
use of
of fire
fire to
to commit
commit mail
mail fraud.”),
fraud.”), with
with Mauskar,
557 F.3d
F.3d at
at 226-27.
226-27.
11
11
Age,
Appendix 11a
Age, III
Ill Cert
Cert Petition
Petition Appendix
11a
Case: 22-30656
Document: 298-1
Page: 12
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
D.
D.
Age
Age III
III and
and Guillory
Guillory also
also challenge
challenge their
their convictions
convictions for
for conspiracy
conspiracy to
to
commit
commit witness
witness retaliation
retaliation (Count
(Count Six)
Six) and
and for
for the
the substantive
substantive offense
offense of
of
witness
witness retaliation
retaliation (Count
(Count Seven).
Seven).”222
1.
1.
A
A defendant
defendant is
is guilty
guilty of
of retaliating
retaliating against
against aa witness
witness if
if he
he “kills
“kills or
or
attempts
attempts to
to kill
kill another
another person
person with
with intent
intent to
to retaliate
retaliate against
against any
any person
person for
for
.. .. .. providing
providing to
to aa law
law enforcement
enforcement officer
officer any
any information
information relating
relating to
to the
the
commission
commission or
or possible
possible commission
commission of
of aa Federal
Federal offense[.]”
offense[.]”23
7° A
A defendant
defendant
who
who conspires
conspires to
to commit
commit the
the offense
offense of
of retaliation
retaliation “shall
“shall be
be subject
subject to
to the
the
same
same penalties
penalties as
as those
those prescribed
prescribed for
for the
the offense
offense the
the commission
commission of
of which
which
was
was the
the object
object of
of the
the conspiracy.”
conspiracy.”?*24 And,
And, “under
“under 18
18 U.S.C.
U.S.C. §§ 1513,
1513, the
the
Government
Government need
need not
not establish
establish an
an intent
intent to
to carry
carry out
out the
the threat;
threat; the
the only
only
intent
intent required
required is
is an
an intent
intent to
to retaliate.”
retaliate.” 25
7
Here,
brought evidence
Here, to
to establish
establish context,
context, the
the Prosecution
Prosecution brought
evidence of
of tense
tense
conversations
between Womack
Jr. regarding
conversations between
Womack and
and Age
Age Jr.
regarding the
the healthcare
healthcare fraud
fraud
case.
case. Fiser
Fiser testified
testified that
that following
following Womack’s
Womack’s Garcia
Garcia hearing,
hearing, Womack
Womack told
told
_____________________
22
?? Count
Count Six
Six charged
charged Age
Age III
III and
and Guillory
Guillory with
with the
the conspiracy
conspiracy to
to retaliate
retaliate against
against
Womack
Womack for
for providing
providing information
information to
to aa law
law enforcement
enforcement officer,
officer, in
in violation
violation of
of 18
18 U.S.C.
U.S.C.
§§
1513(a)(1)(B),
1513(a)(2)(A),
and
1513(f).
Count
Seven
charged
Age
III
and
Guillory
§§ 1513(a)(1)(B), 1513(a)(2)(A), and 1513(f). Count Seven charged Age III and Guillory
with substantive
with
substantive retaliation
retaliation against
against Womack,
Womack, in
in violation
violation of
of 18
18 U.S.C.
U.S.C. §§
§§ 1513(a)(1)(B),
1513(a)(1)(B),
1513(a)(2)(A),
1513(a)(2)(A), and
and 2.
2.
23
31818 U.S.C.
U.S.C. §§ 1513(a)(1)(B).
1513(a)(1)(B).
24
Id. at
4 Td.
at §§ 1513(f).
1513(f).
25
Maggitt, 784
5 United
United States
States v.
v. Maggitt,
784 F.2d
F.2d 590,
590, 593-94
593-94 (5th
(5th Cir.
Cir. 1986)
1986) (citation
(citation omitted).
omitted).
12
12
Age,
Appendix 12a
Age, III
Ill Cert
Cert Petition
Petition Appendix
12a
Case: 22-30656
Document: 298-1
Page: 13
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Fiser
Jr. Both
Fiser that
that he
he had
had aa “very
“very heated
heated exchange”
exchange” with
with Age
Age Jr.
Both Nicholas
Nicholas and
and
Ayanna
Ayanna testified
testified that
that they
they overheard
overheard phone
phone conversations
conversations between
between Womack
Womack
and
Jr., including
Jr. that
and Age
Age Jr.,
including Womack
Womack telling
telling Age
Age Jr.
that he
he was
was not
not going
going to
to take
take aa
“f’ing
James Gray,
Jr.’s attorney
“fing charge.”
charge.” Fiser
Fiser and
and James
Gray, Age
Age Jr.’s
attorney in
in the
the healthcare
healthcare
fraud
was murdered
just two
fraud case,
case, also
also testified
testified that
that Womack
Womack was
murdered just
two days
days after
after an
an
electronic
electronic notification
notification for
for his
his rearraignment
rearraignment was
was sent
sent to
to all
all parties
parties in
in the
the
healthcare
healthcare fraud
fraud case.
case.
As
As for
for Age
Age III
III and
and Guillory’s
Guillory’s involvement,
involvement, the
the Prosecution
Prosecution relied
relied on
on
its
its evidence
evidence for
for Counts
Counts Three,
Three, Four,
Four, and
and Five
Five as
as proof
proof that
that Age
Age III
III hired
hired
Guillory
Guillory to
to kill
kill Womack
Womack because
because Womack
Womack agreed
agreed to
to cooperate
cooperate in
in the
the
healthcare
healthcare fraud
fraud case.
case.
2.
2.
As
As to
to Guillory’s
Guillory’s preserved
preserved claims
claims under
under Counts
Counts Six
Six and
and Seven,
Seven, we
we are
are
persuaded
persuaded that
that there
there was
was sufficient
sufficient evidence
evidence in
in the
the record
record to
to support
support the
the
jury’s verdict.
jury’s
verdict. That
That Womack
Womack was
was aa federal
federal witness
witness and
and was
was allegedly
allegedly
murdered
murdered because
because of
of his
his decision
decision to
to cooperate
cooperate in
in the
the healthcare
healthcare fraud
fraud case
case is
is
sufficient
sufficient evidence
evidence of
of retaliation;
retaliation; aa reasonable
reasonable juror
juror could
could find
find that
that Guillory
Guillory
conspired
conspired to
to retaliate—and
retaliate—and did
did retaliate—against
retaliate—against Womack.
Womack.
We
We also
also find
find no
no plain
plain error
error in
in Age
Age III’s
III’s convictions.
convictions.”°26 The
The Prosecution
Prosecution
provided
provided sufficient
sufficient evidence
evidence to
to prove
prove that
that Age
Age III
III hired
hired and
and paid
paid Guillory
Guillory to
to
kill
was aa part
kill Womack,
Womack, and
and thus
thus that
that Age
Age III
III was
part of
of the
the conspiracy
conspiracy and
and
substantive
substantive offense
offense of
of witness
witness retaliation
retaliation against
against Womack.
Womack.
_____________________
26
we
6 Age
Age III
III failed
failed to
to preserve
preserve his
his claims
claims as
as to
to Counts
Counts Six
Six and
and Seven
Seven at
at trial,
trial, and
and we
review
them
for
plain
error.
Delgado,
672
F.3d
at
328.
review them for plain error. Delgado, 672 F.3d at 328.
13
13
Age,
Appendix 13a
Age, III
Ill Cert
Cert Petition
Petition Appendix
13a
Case: 22-30656
Document: 298-1
Page: 14
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
E.
E.
Age
Age III
III challenges
challenges his
his conviction
conviction for
for witness
witness tampering
tampering of
of Womack
Womack
27
and
and Ayanna
Ayanna (Count
(Count Eight).
Ejight).2”7 Count
Count Eight
Eight targets
targets obstructive
obstructive conduct
conduct
unrelated
unrelated to
to Womack’s
Womack’s murder,
murder, including
including cash
cash payments
payments and
and other
other benefits
benefits
given
given to
to Womack
Womack to
to prevent
prevent him
him from
from testifying
testifying in
in the
the healthcare
healthcare fraud
fraud case,
case,
as
as well
well as
as intimidating
intimidating Ayanna.
Ayanna.
1.
1.
Turning
Turning first
first to
to Ayanna,
Ayanna, the
the Prosecution
Prosecution presented
presented evidence—via
evidence—via
Ayanna’s
Jr.’s attempts
Ayanna’s own
own testimony—of
testimony—of Age
Age Jr.’s
attempts to
to threaten
threaten and
and intimidate
intimidate
her
when he
her when
he discovered
discovered that
that she
she had
had agreed
agreed to
to cooperate
cooperate against
against him
him in
in the
the
healthcare
Jr.’s forcing
healthcare fraud
fraud trial.
trial. Such
Such obstructive
obstructive conduct
conduct included
included Age
Age Jr.’s
forcing
Ayanna
Ayanna and
and her
her daughters
daughters out
out of
of the
the Age
Age family
family home
home in
in Slidell,
Slidell, Louisiana;
Louisiana;
Age
Jr.’s lawsuit
back rental
Age Jr.’s
lawsuit against
against Ayanna
Ayanna to
to take
take back
rental properties
properties that
that he
he had
had
previously
Jr.’s attempt
previously purchased
purchased in
in her
her name;
name; and
and Age
Age Jr.’s
attempt to
to initiate
initiate aa criminal
criminal
case
case against
against her
her for
for embezzlement.
embezzlement. Ayanna
Ayanna also
also testified
testified as
as to
to Age
Age III’s
III’s
participation,
participation, stating
stating that
that after
after she
she pleaded
pleaded guilty
guilty in
in the
the healthcare
healthcare fraud
fraud
case,
case, Age
Age III
III told
told her
her that
that she
she was
was “dead”
“dead” to
to the
the family
family and
and that
that she
she was
was
“nothing
without [her]
“nothing without
[her] daddy.”
daddy.” Ayanna
Ayanna further
further testified
testified that
that Age
Age III
III helped
helped
Age
Jr. in
by delivering
Age Jr.
in taking
taking back
back the
the rental
rental properties
properties by
delivering documents
documents that—if
that—if
signed—would
Jr.
signed—would return
return custody
custody of
of the
the rental
rental properties
properties to
to Age
Age Jr.
As
Jr.’s
As to
to Womack,
Womack, the
the Prosecution
Prosecution provided
provided evidence
evidence of
of Age
Age Jr.’s
payments
payments to
to Womack
Womack through
through Fazande
Fazande “to
“to keep
keep him
him .. .. .. quiet.”
quiet.””» Ayanna
Ayanna
testified
testified that
that Age
Age III
III received
received payments
payments from
from South
South Louisiana,
Louisiana, which
which were
were at
at
_____________________
27
7 Count
Count Eight
Eight charged
charged Age
Age III
III with
with conspiracy
conspiracy to
to commit
commit witness
witness tampering
tampering as
as to
to
Womack
and
Ayanna,
in
violation
of
18
U.S.C.
§§
1512(b)(1),
1512(b)(3),
and
1512(k).
Womack and Ayanna, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(3), and 1512(k).
14
14
Age,
Appendix 14a
Age, III
Ill Cert
Cert Petition
Petition Appendix
14a
Case: 22-30656
Document: 298-1
Page: 15
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
issue
issue in
in the
the healthcare
healthcare fraud
fraud case,
case, and
and that
that Age
Age III
III had
had assisted
assisted Womack
Womack in
in
burning
burning the
the school.
school.
2.
2.
We
jury’s
We review
review Age
Age III’s
III’s claims
claims as
as to
to Ayanna
Ayanna de
de novo
novo and
and affirm
affirm the
the jury’s
verdict. 28 Age
verdict.78
Age III
III argues
argues that
that “[m]erely
“[mJerely telling
telling someone
someone that
that they
they are
are no
no
longer
your life
longer in
in your
life .. .. .. is
is not
not evidence
evidence of
of retaliation[.]”
retaliation[.]” We
We disagree.
disagree. Given
Given
the
the context
context of
of Ayanna’s
Ayanna’s “[a]lmost
“[a]lmost inseparable[,]”
inseparable[,|” “[e]xtremely
“[e]xtremely close”
close”
relationship
juror could
relationship with
with her
her father,
father, aa rational
rational juror
could infer
infer that
that Age
Age III’s
III’s
statement
statement was
was aa threat
threat with
with the
the intent
intent to
to influence
influence Ayanna’s
Ayanna’s decision
decision to
to
cooperate
cooperate with
with the
the Prosecution.
Prosecution.”?29 And
And Age
Age III’s
III’s assertion
assertion that
that there
there was
was no
no
specific
specific testimony
testimony of
of his
his knowledge
knowledge of
of the
the housing
housing lawsuits
lawsuits or
or criminal
criminal
charges
by her
charges against
against Ayanna
Ayanna is
is belied
belied by
her testimony
testimony that
that Age
Age III
III hand-delivered
hand-delivered
documents
documents related
related to
to the
the custody
custody of
of the
the rental
rental properties.
properties.
Reviewing
Reviewing Age
Age III’s
III’s claims
claims regarding
regarding Womack
Womack for
for plain
plain error,
error,*°30 we
we are
are
not
jury’s verdict
not persuaded
persuaded that
that the
the jury’s
verdict was
was aa “manifest
“manifest miscarriage
miscarriage of
of
justice.” 31 Given
justice.”*!
Given the
the evidence
evidence supporting
supporting Age
Age III’s
III’s involvement
involvement in
in
Womack’s
Womack’s murder
murder and
and the
the circumstantial
circumstantial evidence
evidence establishing
establishing the
the threat
threat
that
juror
that Womack’s
Womack’s cooperation
cooperation would
would have
have posed
posed to
to Age
Age III,
III, aa rational
rational juror
could
Jr.’s payments
could have
have concluded
concluded that
that Age
Age III
III knew
knew and
and approved
approved of
of Age
Age Jr.’s
payments
to
to Womack
Womack through
through Fazande.
Fazande.
Age
Age III
III next
next challenges
challenges his
his conviction
conviction under
under Count
Count Eight,
Eight, arguing
arguing that
that
the
jury agreed
the verdict
verdict form
form failed
failed to
to identify
identify the
the specific
specific intention
intention the
the jury
agreed upon.
upon.
_____________________
28
28 Age
Age III
III preserved
preserved his
his Count
Count Eight
Eight claims
claims related
related to
to Ayanna
Ayanna at
at trial.
trial.
29
Maggitt, 784
9 See
See Maggitt,
784 F.2d
F.2d at
at 594.
594.
30
3° As
As Age
Age III
III did
did not
not preserve
preserve his
his Count
Count Eight
Eight claims
claims related
related to
to Womack
Womack at
at trial,
trial,
we
review
for
plain
error.
Delgado,
672
F.3d
at
328.
we review for plain error. Delgado, 672 F.3d at 328.
31
Id. at
31 [d.
at 331
331 (emphasis
(emphasis in
in original)
original) (cleaned
(cleaned up).
up).
15
15
Age,
Appendix 15a
Age, III
Ill Cert
Cert Petition
Petition Appendix
15a
Case: 22-30656
Document: 298-1
Page: 16
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Again,
Again, this
this claim
claim is
is meritless:
meritless: this
this Court
Court has
has approved
approved the
the use
use of
of identical
identical
32
unanimity
unanimity instructions
instructions in
in other
other cases,
cases, finding
finding them
them sufficient.
sufficient.*?
F.
F,
Age
Age III
III next
next challenges
challenges his
his conviction
conviction for
for making
making false
false statements
statements to
to
the
the FBI,
FBI, in
in violation
violation of
of 18
18 U.S.C.
U.S.C. §
§ 1001
1001 (Count
(Count Eleven).
Eleven). As
As Age
Age III
III did
did not
not
preserve
preserve this
this claim
claim at
at trial,
trial, we
we apply
apply aa plain
plain error
error standard
standard of
of review
review and
and find
find
none.
none.*?33
1.
1.
“To
“To sustain
sustain aa conviction
conviction under
under §§ 1001,
1001, the
the government
government must
must prove
prove
that
was false
that [the
[the defendant]
defendant] (1)
(1) made
made aa statement
statement (2)
(2) that
that was
false (3)
(3) and
and material
material
(4)
(4) knowingly
knowingly and
and willfully
willfully and
and (5)
(5) that
that falls
falls within
within agency
agency jurisdiction.”
jurisdiction.”34
*4
“Statements
“Statements are
are material
material within
within the
the meaning
meaning of
of §§ 1001
1001 when
when they
they have
have the
the
natural
natural tendency
tendency or
or capacity
capacity to
to deceive,
deceive, affect,
affect, or
or influence
influence the
the federal
federal
35
agency.”
agency.”°> “The
“The standard
standard is
is not
not whether
whether the
the false
false statement
statement actually
actually
influenced
influenced ..... . or
or .. .. .. probably
probably influenced
influenced [a
[a government]
government] decision;
decision; the
the
standard
was capable
standard is
is whether
whether the
the misrepresentation
misrepresentation was
capable of
of influencing
influencing the
the
agency
agency decision.”
decision.” 36
*°
The
The Prosecution
Prosecution relied
relied on
on testimony
testimony from
from FBI
FBI case
case agent
agent Chuck
Chuck
Williams,
Williams, who
who interviewed
interviewed Age
Age III
III and
and testified
testified that
that Age
Age III
III told
told him
him that
that he
he
did
did not
not recall
recall his
his own
own cell
cell phone
phone number;
number; recognize
recognize his
his grandfather’s
grandfather’s name;
name;
_____________________
32
Mauskar, 557
32 See
See Mauskar,
557 F.3d
F.3d at
at 226-27.
226-27.
33
Delgado, 672
33 Delgado,
672 F.3d
F.3d at
at 328.
328.
34
Ricard, 922
* United
United States
States v.
v. Ricard,
922 F.3d
F.3d 639,
639, 651
651 (5th
(5th Cir.
Cir. 2019)
2019) (cleaned
(cleaned up).
up).
35
% United
United States
States v.
v. Sidhu,
Sidhu, 130
130 F.3d
F.3d 644,
644, 650
650 (5th
(5th Cir.
Cir. 1997)
1997) (cleaned
(cleaned up).
up).
36
Richardson, 676
36 United
United States
States v.
v. Richardson,
676 F.3d
F.3d 491,
491, 505
505 (5th
(5th Cir.
Cir. 2012)
2012) (emphasis
(emphasis in
in
original)
(cleaned
up).
original) (cleaned up).
16
16
Age,
Appendix 16a
Age, III
Ill Cert
Cert Petition
Petition Appendix
16a
Case: 22-30656
Document: 298-1
Page: 17
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
nor
billing records
nor explain
explain why
why the
the listing
listing of
of his
his home
home address
address was
was on
on the
the billing
records of
of
his
his cell
cell phone
phone number.
number.
2.
2.
As
As with
with Counts
Counts Three
Three and
and Eight,
Eight, Age
Age III
III argues
argues that
that his
his conviction
conviction for
for
Count
Count Eleven
Eleven should
should be
be vacated
vacated because
because “the
“the verdict
verdict form
form did
did not
not make
make any
any
additional
jury agreed
additional findings
findings as
as to
to which
which statement
statement the
the jury
agreed upon[.]”
upon[.]” Age
Age III’s
III’s
challenge
jury
challenge here
here is
is unconvincing.
unconvincing. This
This Court
Court has
has upheld
upheld the
the use
use of
of similar
similar jury
verdict
verdict forms.
forms.*”37 And
And he
he has
has failed
failed to
to identify
identify any
any evidence
evidence of
of confusion
confusion or
or
disagreement
jury regarding
disagreement within
within the
the jury
regarding Count
Count Eleven.
Eleven.*838
He
He also
also argues
argues that
that “the
“the [G]overnment
[GJovernment has
has not
not shown
shown that
that the
the
statements
was
statements [he]
[he] allegedly
allegedly gave
gave were
were material”
material” as
as law
law enforcement
enforcement was
already
already aware
aware of
of the
the information.
information. The
The standard
standard for
for materiality,
materiality, however,
however, is
is
broad: the
broad:
the false
false statements
statements need
need not
not have
have influenced
influenced aa government
government decision;
decision;
they
were, as
they need
need only
only be
be capable
capable of
of doing
doing so.
so.*?39 Here
Here they
they were,
as they
they had
had the
the
ability
ability to
to deceive
deceive the
the Government.
Government.
G.
G.
Age
Age III
III and
and Guillory
Guillory raise—and
raise—and we
we reject—a
reject—a final
final challenge
challenge to
to their
their
various convictions,
various
convictions, arguing
arguing that
that the
the Prosecution
Prosecution relied
relied primarily
primarily on
on
uncredible
whose testimony
uncredible witnesses
witnesses whose
testimony was
was “not
“not adequate
adequate and
and sufficient
sufficient to
to
support”
support” their
their convictions.
convictions. And,
And, though
though Age
Age III
III acknowledges
acknowledges that
that aa coco-
_____________________
37
37 See
See United
United States
States v.
v. Creech,
Creech, 408
408 F.3d
F.3d 264,
264, 268
268 (5th
(5th Cir.
Cir. 2005).
2005).
38
38 See
See United
United States
States v.
v. Tucker,
Tucker, 345
345 F.3d
F.3d 320,
320, 336-37
336-37 (5th
(5th Cir.
Cir. 2003)
2003) (finding
(finding no
no plain
plain
error
error where
where appellant
appellant “does
“does not
not corroborate
corroborate his
his claim
claim of
of prejudicial
prejudicial error
error with
with aa modicum
modicum
of
of evidence
evidence tending
tending to
to show
show that
that the
the jury
jury was
was confused
confused or
or possessed
possessed any
any difficulty
difficulty reaching
reaching
aa unanimous
verdict.”).
unanimous verdict.”).
39
Richardson, 676
3° See
See Richardson,
676 F.3d
F.3d at
at 505.
505.
17
17
Age,
Appendix 17a
Age, III
Ill Cert
Cert Petition
Petition Appendix
17a
Case: 22-30656
Document: 298-1
Page: 18
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
conspirator’s
conspirator’s uncorroborated
uncorroborated testimony
testimony may
may sustain
sustain aa conviction,
conviction, he
he argues
argues
that
that the
the testimony
testimony at
at issue
issue is
is “incredible.”
“incredible.”
“[A]
be sustained
“TA] guilty
guilty verdict
verdict may
may be
sustained if
if supported
supported only
only by
by the
the
uncorroborated
uncorroborated testimony
testimony of
of aa co-conspirator
co-conspirator .. .. .. unless
unless the
the testimony
testimony is
is
incredible
incredible or
or insubstantial
insubstantial on
on its
its face.”
face.”4°40 “Testimony
“Testimony is
is incredible
incredible as
as aa
matter
matter of
of law
law only
only if
if it
it relates
relates to
to facts
facts that
that the
the witness
witness could
could not
not possibly
possibly have
have
observed
which could
observed or
or to
to events
events which
could not
not have
have occurred
occurred under
under the
the laws
laws of
of
41
nature.”
nature.”*! The
The witness
witness testimony
testimony here
here does
does not
not reach
reach the
the threshold
threshold of
of
“incredible”:
“incredible”: each
each of
of the
the witnesses
witnesses had
had firsthand
firsthand knowledge
knowledge of
of Age
Age III
III and
and
Guillory’s
Guillory’s involvement
involvement in
in the
the conspiracy
conspiracy and
and murder-for-hire
murder-for-hire offense.
offense.*?42 And
And
“the
jury decides
“the jury
decides credibility
credibility of
of witnesses,
witnesses, not
not the
the appellate
appellate court.”
court.”43
4? The
The
district
district court
court provided
provided special
special jury
jury instructions
instructions on
on witness
witness credibility,
credibility,
instructing
jury to
with “greater
instructing the
the jury
to weigh
weigh the
the testimony
testimony heard
heard with
“greater care
care and
and
caution
jury nevertheless
caution than
than the
the testimony
testimony of
of ordinary
ordinary witnesses.”
witnesses.” The
The jury
nevertheless
convicted
convicted Age
Age III
III and
and Guillory
Guillory on
on these
these counts.
counts.
Age
Age III
III also
also argues
argues that
that the
the Prosecution
Prosecution failed
failed to
to prove
prove that
that he
he was
was part
part
of
Jr.’s actions
of any
any conspiracy.
conspiracy. He
He asserts
asserts that
that his
his “association”
“association” with
with Age
Age Jr.’s
actions
were due
were
due to
to family
family connections,
connections, and
and that
that the
the Prosecution
Prosecution failed
failed to
to prove
prove that
that
Age
volition. This
Age III
III acted
acted on
on his
his own
own volition.
This argument
argument also
also fails.
fails. The
The evidence
evidence
presented
presented by
by the
the Prosecution—including
Prosecution—including witness
witness testimony
testimony and
and
corroborating
corroborating circumstantial
circumstantial evidence—shows
evidence—shows that
that Age
Age III
III played
played an
an active
active
role
role in
in Womack’s
Womack’s murder-for-hire
murder-for-hire and
and witness
witness tampering
tampering of
of Ayanna.
Ayanna.
_____________________
40
Bermea, 30
*° United
United States
States v.
v. Bermea,
30 F.3d
F.3d 1539,
1539, 1552
1552 (5th
(5th Cir.
Cir. 1994)
1994) (citations
(citations omitted).
omitted).
41
Id. (citations
“! Td.
(citations omitted).
omitted).
Id.
” Td.
42
43
Kieffer, 991
‘8 United
United States
States v.
v. Kieffer,
991 F.3d
F.3d 630,
630, 634
634 (5th
(5th Cir.
Cir. 2021).
2021).
18
18
Age,
Appendix 18a
Age, III
Ill Cert
Cert Petition
Petition Appendix
18a
Case: 22-30656
Document: 298-1
Page: 19
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
III.
IIT.
Defendants
Defendants also
also challenge
challenge the
the admission
admission of
of certain
certain evidence
evidence at
at trial,
trial,
asserting
asserting errors
errors that
that require
require aa new
new trial.
trial. We
We disagree.
disagree.44
*4
A.
A.
We
We note
note that:
that: “[e]vidence
“[e]vidence of
of crimes,
crimes, wrongs,
wrongs, and
and other
other bad
bad acts
acts is
is
generally
generally admissible
admissible if
if intrinsic
intrinsic to
to the
the crimes
crimes charged.
charged. Evidence
Evidence is
is considered
considered
intrinsic
intrinsic if
if it
it is
is an
an uncharged
uncharged offense
offense which
which arose
arose out
out of
of the
the same
same transaction
transaction
or
or series
series of
of transactions
transactions as
as the
the charged
charged offense,
offense, if
if it
it was
was inextricably
inextricably
intertwined
intertwined with
with the
the evidence
evidence regarding
regarding the
the charged
charged offense,
offense, or
or if
if it
it is
is
necessary
necessary to
to complete
complete the
the story
story of
of the
the crime
crime of
of the
the trial.”
trial.”45
4 And,
And, “where
“where aa
conspiracy
conspiracy is
is charged,
charged, acts
acts that
that are
are not
not alleged
alleged in
in the
the indictment
indictment may
may be
be
admissible
admissible as
as part
part of
of the
the Government’s
Government’s proof[,]”
proof] ,|” 46
4° such
such as
as “evidence
“evidence of
of acts
acts
committed
committed pursuant
pursuant to
to aa conspiracy
conspiracy and
and offered
offered to
to prove
prove the
the defendant’s
defendant’s
membership
membership or
or participation
participation in
in the
the conspiracy[.]”
conspiracy|.|” 4”47
Under
ED. R.
VID. 404(b),
Under F
FED.
R. E
EVID.
404(b), “evidence
“evidence of
of aa crime,
crime, wrong,
wrong, or
or other
other
act
act is
is not
not admissible
admissible to
to prove
prove aa person’s
person’s character;
character; however,
however, such
such evidence
evidence
may
be admissible
may be
admissible for
for another
another purpose,
purpose, such
such as
as proving
proving motive,
motive, opportunity,
opportunity,
_____________________
44
“4 Defendants
Defendants also
also argue
argue that
that this
this Court
Court should
should reconsider
reconsider its
its jurisprudence
jurisprudence on
on
intrinsic
join sister
intrinsic evidence,
evidence, and
and join
sister circuits
circuits such
such as
as the
the D.C.
D.C. Circuit,
Circuit, Third
Third Circuit,
Circuit, and
and the
the
Seventh
Seventh Circuit
Circuit in
in “abandoning
“abandoning or
or restricting”
restricting” the
the definition
definition of
of “intrinsic
“intrinsic evidence”.
evidence”.
Because
jurisprudence on
Because we
we find
find that
that this
this Court’s
Court’s jurisprudence
on intrinsic
intrinsic and
and extrinsic
extrinsic evidence
evidence is
is clear
clear
in
we decline
in deciding
deciding the
the outcome
outcome here,
here, we
decline to
to consider
consider this
this argument.
argument.
45
* United
United States
States v.
v. Gurrola,
Gurrola, 898
898 F.3d
F.3d 524,
524, 536
536 (5th
(5th Cir.
Cir. 2018)
2018) (cleaned
(cleaned up).
up).
46
“© United
United States
States v.
v. Watkins,
Watkins, 591
591 F.3d
F.3d 780,
780, 785
785 (5th
(5th Cir.
Cir. 2009).
2009).
47
Abrego, 141
“” United
United States
States v.
v. Garcia
Garcia Abrego,
141 F.3d
F.3d 142,
142, 175
175 (5th
(5th Cir.
Cir. 1998)
1998) (cleaned
(cleaned up).
up).
19
19
Age,
Appendix 19a
Age, III
Ill Cert
Cert Petition
Petition Appendix
19a
Case: 22-30656
Document: 298-1
Page: 20
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
intent,
intent, preparation,
preparation, plan,
plan, knowledge,
knowledge, identity,
identity, absence
absence of
of mistake,
mistake, or
or lack
lack of
of
accident.”
accident.” 48
48
This
This Court
Court applies
applies aa two-step
two-step test
test to
to determine
determine admissibility
admissibility under
under
Rule
Rule 404(b):
404(b): “First,
“First, it
it must
must be
be determined
determined that
that the
the extrinsic
extrinsic offense
offense evidence
evidence
is
is relevant
relevant to
to an
an issue
issue other
other than
than the
the defendant’s
defendant’s character.
character. Second,
Second, the
the
evidence
evidence must
must possess
possess probative
probative value
value that
that is
is not
not substantially
substantially outweighed
outweighed
by
by its
its undue
undue prejudice
prejudice and
and must
must meet
meet the
the other
other requirements
requirements of
of [R]ule
[R]ule
403.”
403.”4949 At
At this
this second
second step,
step, this
this Court
Court considers
considers four
four factors:
factors: “(1)
“(1) the
the
government’s
between the
government’s need
need for
for the
the extrinsic
extrinsic evidence,
evidence, (2)
(2) the
the similarity
similarity between
the
extrinsic
extrinsic and
and charged
charged offenses,
offenses, (3)
(3) the
the amount
amount of
of time
time separating
separating the
the two
two
offenses,
offenses, and
and (4)
(4) the
the court’s
court’s limiting
limiting instructions.”
instructions.”°°50 Error
Error under
under this
this
standard
standard is
is not
not reversible
reversible if
if it
it “would
“would not
not have
have substantially
substantially influenced
influenced the
the
jury’s verdict[.]”
jury’s
verdict[.]”*51
B.
B.
The
The Defendants
Defendants challenge
challenge the
the admission
admission of
of evidence
evidence regarding
regarding
criminal
criminal activity
activity committed
committed by
by Guillory
Guillory and
and other
other YMF
YMF members
members at
at times
times
proximate
proximate to
to the
the time
time of
of Womack’s
Womack’s murder.
murder. These
These acts
acts include:
include:
•e Guillory’s
with aa rival
Guillory’s participation
participation in
in aa May
May 2012
2012 drive-by
drive-by shootout
shootout with
rival
gang,
gang, which
which resulted
resulted in
in the
the murders
murders of
of Shawanna
Shawanna Pierce
Pierce and
and five-yearfive-yearold
old Brianna
Brianna Allen;
Allen;
•e Guillory’s
June 2012
Guillory’s participation
participation as
as aa gang
gang member
member in
in aa June
2012 murder
murder of
of
rival
Jonathan “Kruger”
rival gang
gang member
member Jonathan
“Kruger” Lewis;
Lewis;
•e Guillory’s
Guillory’s participation
participation in
in an
an armed
armed robbery
robbery with
with the
the gun
gun that
that he
he later
later
used
used against
against Womack;
Womack;
_____________________
48
‘8 United
United States
States v.
v. Juarez,
Juarez, 866
866 F.3d
F.3d 622,
622, 626-27
626-27 (5th
(5th Cir.
Cir. 2017)
2017) (cleaned
(cleaned up).
up).
49
Beechum, 582
” United
United States
States v.
v. Beechum,
582 F.2d
F.2d 898,
898, 911
911 (5th
(5th Cir.
Cir. 1978)
1978) (citation
(citation omitted).
omitted).
50
°° United
United States
States v.
v. Smith,
Smith, 804
804 F.3d
F.3d 724,
724, 736
736 (5th
(5th Cir.
Cir. 2015)
2015) (cleaned
(cleaned up).
up).
51
Flores, 640
>! United
United States
States v.
v. Flores,
640 F.3d
F.3d 638,
638, 643
643 (5th
(5th Cir.
Cir. 2011).
2011).
20
20
Age,
Appendix 20a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 21
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
•e Guillory’s
Guillory’s armed
armed carjacking
carjacking of
of the
the red
red Chevrolet
Chevrolet Monte
Monte Carlo
Carlo that
that he
he
drove
drove the
the night
night of
of Womack’s
Womack’s murder;
murder;
•e Guillory’s
July 2012
Guillory’s participation
participation in
in aa July
2012 shootout
shootout wherein
wherein he
he fired
fired the
the
same
same gun
gun he
he used
used to
to kill
kill Womack;
Womack;
•e Guillory’s
Guillory’s participation
participation in
in the
the shooting
shooting of
of aa rival
rival gang
gang member
member that
that
occurred
occurred sometime
sometime after
after but
but close
close in
in time
time to
to Womack’s
Womack’s murder,
murder,
wherein he
wherein
he used
used the
the same
same gun;
gun; and
and
•e The
The YMF’s
YMF’s general
general acts
acts of
of violence.
violence.
1.
1.
Defendants
Defendants specifically
specifically argue
argue that
that the
the district
district court
court erred
erred in
in admitting
admitting
evidence
June 2012
evidence regarding
regarding the
the May
May 2012
2012 and
and June
2012 murders
murders as
as the
the Prosecution
Prosecution
failed
bore on
failed to
to prove
prove that
that the
the evidence
evidence bore
on why
why Guillory
Guillory was
was hired
hired for
for
Womack’s
Womack’s murder.
murder. Defendants
Defendants assert
assert that
that there
there was
was no
no evidence
evidence presented
presented
to
because of
to suggest
suggest that
that Guillory’s
Guillory’s co-defendants
co-defendants hired
hired him
him because
of the
the murders.
murders.
Without
Without deciding
deciding whether
whether the
the evidence
evidence regarding
regarding Guillory’s
Guillory’s
participation
June 2012
participation in
in the
the May
May 2012
2012 murders
murders and
and the
the June
2012 murder
murder were
were
intrinsic
was harmless.
intrinsic or
or extrinsic,
extrinsic, we
we are
are persuaded
persuaded that
that any
any error
error here
here was
harmless. The
The
evidence
without the
evidence presented
presented at
at trial,
trial, as
as we
we have
have recounted—even
recounted—even without
the
evidence
June 2012
evidence of
of Guillory’s
Guillory’s May
May and
and June
2012 murders—was
murders—was sufficient
sufficient to
to
convict
convict the
the Defendants
Defendants of
of all
all applicable
applicable counts.
counts. 52
>? In
In other
other words,
words, the
the
admitted
admitted evidence
evidence “would
“would not
not have
have substantially
substantially influenced
influenced the
the jury’s
jury’s
verdict[.]”
verdict[.]” 53
>
2.
2.
Defendants
Defendants also
also challenge
challenge the
the district
district court’s
court’s admission
admission of
of evidence
evidence
relating
relating to
to Guillory’s
Guillory’s other
other gang-related
gang-related criminal
criminal activity,
activity, arguing
arguing that
that such
such
_____________________
52
supra II.
° See
See supra
Il.
53
Flores, 640
°3 Flores,
640 F.3d
F.3d at
at 643.
643.
21
21
Age,
Appendix 21a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 22
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
evidence
evidence should
should have
have been
been characterized
characterized as
as extrinsic
extrinsic evidence,
evidence, and
and the
the
district
district court
court erred
erred in
in deciding
deciding otherwise.
otherwise.*454 We
We find
find no
no error.
error.
The
The evidence
evidence of
of Guillory’s
Guillory’s other
other criminal
criminal activity
activity establishes
establishes his
his
involvement
involvement and
and role
role in
in the
the murder-for-hire
murder-for-hire conspiracy.
conspiracy. The
The evidence
evidence at
at
issue
issue provides
provides necessary
necessary context
context in
in Guillory’s
Guillory’s obtaining
obtaining the
the Glock
Glock Model
Model 23
23
and
and red
red Chevrolet
Chevrolet Monte
Monte Carlo
Carlo he
he would
would use
use to
to kill
kill Womack,
Womack, and
and his
his
continued
continued control
control over
over the
the gun
gun and
and the
the car
car after
after Womack’s
Womack’s murder.
murder.>55
Furthermore,
violence explained
Furthermore, evidence
evidence of
of the
the YMF’s
YMF’s general
general acts
acts of
of gang
gang violence
explained
why
why Age
Age III
III and
and Wilson
Wilson first
first approached
approached the
the YMF
Y MF for
for help
help with
with Womack’s
Womack’s
murder.
murder. This
This evidence
evidence served
served to
to “complete
“complete the
the story
story of
of the
the crime
crime of
of the
the
trial,”
trial,” and
and was
was properly
properly admitted
admitted as
as intrinsic
intrinsic evidence.
evidence.*56
C.
C.
Next,
Next, three
three Defendants
Defendants challenge
challenge the
the district
district court’s
court’s admission
admission of
of
evidence
by the
evidence regarding
regarding the
the fraudulent
fraudulent schemes
schemes committed
committed by
the Age
Age family,
family,
including:
including:
•e Fraudulent
Fraudulent insurance
insurance claims
claims the
the Age
Age family
family filed
filed in
in 2005
2005 after
after
Womack
Womack and
and Age
Age III
III burned
burned the
the New
New Orleans
Orleans school;
school; and
and
•e The
The Medicare
Medicare fraud
fraud at
at South
South Louisiana.
Louisiana.*%”57
_____________________
54
June 2012
** Guillory’s
Guillory’s appellate
appellate briefs
briefs focus
focus exclusively
exclusively on
on the
the May
May 2012
2012 and
and June
2012
murders.
murders.
55
been classified
* Indeed,
Indeed, though
though Wilson
Wilson maintains
maintains that
that the
the evidence
evidence should
should have
have been
classified
as
as extrinsic,
extrinsic, Wilson
Wilson acknowledges
acknowledges that
that it
it “had
“had some
some relevance
relevance to
to this
this prosecution.”
prosecution.”
56
°° Gurrola,
Gurrola, 898
898 F.3d
F.3d at
at 536.
536.
57
brief, nor
brief.
*” Guillory
Guillory does
does not
not raise
raise this
this in
in his
his appellate
appellate brief,
nor in
in his
his reply
reply brief.
22
22
Age,
Appendix 22a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 23
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Defendants
were not
Defendants argue
argue that
that evidence
evidence related
related to
to the
the fraud
fraud schemes
schemes were
not
intrinsic
was no
intrinsic to
to the
the case
case at
at hand
hand because
because “there
“there was
no immediate
immediate context
context of
of time
time
and
and place.”
place.” 58
°* We
We find
find to
to the
the contrary.
contrary.
The
The district
district court
court correctly
correctly admitted
admitted the
the arson-related
arson-related insurance
insurance
fraud
fraud evidence
evidence as
as intrinsic
intrinsic to
to the
the charged
charged offenses.
offenses. In
In admitting
admitting the
the evidence,
evidence,
the
both the
the district
district court
court explained
explained that
that the
the “purpose
“purpose of
of both
the conspiracy
conspiracy directed
directed
toward
toward Womack
Womack and
and the
the one
one directed
directed toward
toward Ayanna
Ayanna was
was to
to prevent
prevent their
their
adverse
adverse testimony
testimony regarding
regarding the
the Defendants’
Defendants’ past
past criminal
criminal acts,
acts, including
including
[the]
[the] arson.”
arson.” We
We agree:
agree: the
the evidence
evidence proving
proving that
that Womack
Womack and
and Age
Age III
III
burned
burned down
down the
the school
school at
at Age
AgeJr.’s
Jr.’s instructions
instructions provides
provides additional
additional context,
context,
establishing
establishing groundwork
groundwork for
for the
the conspiracy
conspiracy created.
created.*59
We
We also
also find
find that
that the
the district
district court
court correctly
correctly characterized
characterized the
the
Medicare
Medicare fraud
fraud evidence
evidence as
as intrinsic;
intrinsic; it
it was
was aa necessary
necessary preliminary
preliminary to
to
60
understand
understand the
the current
current conspiracy
conspiracy charges.
charges. As
As the
the district
district court
court observed:
observed:
“Evidence
with the
“Evidence of
of this
this fraud
fraud is
is inextricably
inextricably intertwined
intertwined with
the
charged
conspiracies
for,
without
the
fraud,
there
would
be
charged conspiracies for, without the fraud, there would be no
no
Medicare
fraud
prosecution,
no
fear
on
Defendants’
part
that
Medicare fraud prosecution, no fear on Defendants’ part that
their
their fraud
fraud or
or their
their prior
prior criminal
criminal acts
acts could
could be
be revealed
revealed in
in
witness
witness testimony,
testimony, and
and thus
thus no
no reason
reason to
to silence
silence cooperators
cooperators
Ayanna
Ayanna and
and Womack.”
Womack.”
_____________________
58
Jr. asserts
%8 Age
Age Jr.
asserts that
that such
such evidence
evidence must
must satisfy
satisfy Rule
Rule 404(b)
404(b) and
and “be
“be subject
subject to
to
.. ... . an
anti-propensity
instruction.”
But
because
we
find
that
the
district
court
properly
an anti-propensity instruction.” But because we find that the district court properly
admitted
admitted the
the evidence
evidence as
as intrinsic,
intrinsic, we
we decline
decline to
to address
address this
this argument.
argument.
59
*° Wilson
Wilson argues
argues that
that as
as to
to the
the arson-related
arson-related insurance
insurance fraud,
fraud, there
there was
was no
no evidence
evidence
presented
presented to
to suggest
suggest that
that he
he knew
knew or
or participated
participated in
in the
the fraud.
fraud. We
We find,
find, however,
however, that
that even
even
if
were no
if there
there were
no direct
direct evidence
evidence presented,
presented, his
his participation
participation in
in the
the conspiracy
conspiracy to
to murder
murder
Womack
juror to
Womack is
is enough
enough for
for aa reasonable
reasonable juror
to find
find that
that that
that he
he knew
knew of
of the
the fraud.
fraud.
60
6° See
See Gurrola,
Gurrola, 898
898 F.3d
F.3d at
at 536.
536.
23
23
Age,
Appendix 23a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 24
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Age
Jr. asserts
Age Jr.
asserts aa distinct
distinct claim
claim of
of error
error related
related to
to the
the Medicare
Medicare fraud
fraud
evidence,
by the
evidence, alleging
alleging that
that he
he was
was prejudiced
prejudiced by
the district
district court’s
court’s decision
decision to
to
allow
Jr. had
allow the
the Prosecution
Prosecution to
to elicit
elicit testimony
testimony that
that Age
Age Jr.
had been
been convicted
convicted of
of
the
the fraud
fraud during
during its
its cross-examination
cross-examination of
of Gray.
Gray. Though
Though the
the district
district court
court
initially
Jr.’s Medicare
initially excluded
excluded evidence
evidence of
of Age
Age Jr.’s
Medicare fraud
fraud conviction,
conviction, it
it allowed
allowed
the
bring it
the Prosecution
Prosecution to
to bring
it up
up during
during cross-examination
cross-examination on
on finding
finding that
that
Defendants
Jr. now
Defendants had
had “opened
“opened the
the door”
door” to
to the
the evidence.
evidence. Age
Age Jr.
now argues
argues that
that
the
the district
district court’s
court’s finding
finding was
was arbitrary
arbitrary and
and unfair.
unfair.
We
We disagree.
disagree. “It
“It is
is well-settled
well-settled in
in this
this Circuit
Circuit that
that aa defendant
defendant may
may
not
by evidence
not complain
complain on
on appeal
appeal he
he was
was prejudiced
prejudiced by
evidence relating
relating to
to aa subject
subject
which he
by defense
which
he opened
opened up
up at
at trial.”
trial.”°!61 Statements
Statements elicited
elicited by
defense counsel
counsel
“open[]
jury. 62
“open[] the
the door”
door” if
if they
they convey
convey an
an erroneous
erroneous impression
impression on
on the
the jury.
Gray’s
Jr.’s innocence
Gray’s testimony—though
testimony—though not
not explicit—suggested
explicit—suggested Age
Age Jr.’s
innocence in
in
the
the Medicare
Medicare fraud
fraud case.
case. The
The district
district court
court was
was correct
correct to
to allow
allow the
the
Prosecution
Jr.’s criminal
Prosecution to
to ask
ask about
about Age
Age Jr.’s
criminal conviction
conviction and
and to
to clarify
clarify any
any
63
erroneous
Jr.’s innocence
erroneous impression
impression of
of Age
Age Jr.’s
innocence in
in the
the Medicare
Medicare fraud
fraud case.
case.®
D.
D.
Age
Age III
III and
and Wilson
Wilson raise
raise additional
additional challenges
challenges to
to the
the district
district court’s
court’s
admission
admission of
of evidence
evidence related
related to:
to:
_____________________
Kiekow, 872
°! United
United States
States v.
v. Kiekow,
872 F.3d
F.3d 236,
236, 252
252 (5th
(5th Cir.
Cir. 2017)
2017) (cleaned
(cleaned up).
up).
61
Plato, 593
° United
United States
States v.
v. Plato,
593 F.
F. App’x
App’x 364,
364, 374-75
374-75 (5th
(5th Cir.
Cir. 2015)
2015) (per
(per curiam).
curiam).
62
63
°3 Wilson
Wilson also
also asserts
asserts that
that the
the district
district court
court erred
erred in
in admitting
admitting immeasurably
immeasurably
prejudicial
prejudicial evidence
evidence as
as intrinsic
intrinsic against
against him
him without
without limiting
limiting instructions.
instructions. Specifically,
Specifically,
Wilson
bad acts
Wilson argues
argues that
that of
of the
the aforementioned
aforementioned evidence—such
evidence—such as
as Guillory’s
Guillory’s bad
acts and
and the
the
Age
family’s
various
acts
of
frauds—many
of
them
did
not
involve
Wilson.
But
Age family’s various acts of frauds—many of them did not involve Wilson. But as
as
discussed,
discussed, much
much of
of this
this evidence
evidence was
was correctly
correctly admitted
admitted as
as intrinsic
intrinsic and
and therefore
therefore did
did not
not
require
jury instructions.
require limiting
limiting jury
instructions. To
To the
the extent
extent that
that there
there was
was error,
error, any
any such
such error
error was
was
harmless.
harmless.
24
24
Age,
Appendix 24a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 25
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
•e The
The staged
staged automobile
automobile collisions
collisions resulting
resulting in
in fraudulent
fraudulent insurance
insurance
claims
claims that
that Age
Age III
III and
and Wilson
Wilson participated
participated in
in with
with others
others from
from the
the
chop
chop shop;
shop; and
and
•e Wilson’s
Wilson’s drug-dealing,
drug-dealing, as
as described
described in
in the
the testimony
testimony of
of jailhouse
jailhouse ininformant
formant Michael
Michael Crawford.
Crawford.
Age
Age III
III argues
argues that
that the
the district
district court
court erred
erred in
in admitting
admitting evidence
evidence of
of
staged
staged automobile
automobile collisions
collisions as
as it
it was
was not
not necessary
necessary to
to prove
prove Guillory’s
Guillory’s hire
hire
for
for Womack’s
Womack’s murder.
murder. We
We disagree.
disagree.
This
This Court
Court has
has found
found evidence
evidence to
to be
be intrinsic
intrinsic when
when “it
“it provide[s]
provide[s]
background
jury to
background information
information necessary
necessary for
for aa jury
to understand
understand the
the structure
structure of
of
.. ... . the
between [co-defendants],
the conspiratorial
conspiratorial relationship
relationship between
[co-defendants], and
and how
how the
the
conspiracy
Jackson and
conspiracy came
came about.”
about.”64 Here,
Here, testimony
testimony from
from Jackson
and Lewis
Lewis
established
between the
established that
that the
the chop
chop shop
shop served
served as
as aa connection
connection between
the YMF,
Y MF,
Age
Age III,
III, and
and Wilson.
Wilson. This
This evidence
evidence is
is intrinsic
intrinsic because
because it
it casts
casts light
light on
on the
the
relationship
relationship of
of Age
Age III,
III, Wilson,
Wilson, and
and the
the YMF
YMF gang,
gang, and
and how
how they
they came
came to
to
know
know each
each other
other through
through the
the staged
staged accidents
accidents and
and insurance
insurance claims—origins
claims— origins
of
of the
the co-Defendants.
co-Defendants.
Wilson
Wilson similarly
similarly argues
argues that
that the
the district
district court
court erroneously
erroneously admitted
admitted
evidence
evidence related
related to
to his
his prior
prior drug-dealing.
drug-dealing. He
He asserts
asserts that
that Crawford’s
Crawford’s
testimony
testimony was
was not
not aa “necessary
“necessary predicate”
predicate” of
of the
the conspiracies
conspiracies charged
charged
because
because there
there was
was no
no evidence
evidence to
to suggest
suggest that
that the
the drug
drug dealing
dealing involved
involved other
other
Defendants
Defendants or
or had
had temporal
temporal connectivity
connectivity to
to the
the charges
charges at
at hand.
hand. Though
Though this
this
may
be true,
may be
true, we
we ultimately
ultimately find
find that
that the
the admission
admission of
of the
the evidence
evidence was
was in
in any
any
_____________________
64
King, 684
6 United
United States
States v.
v. King,
684 F.
F. App'x
App'x 451,
451, 456
456 (5th
(5th Cir.
Cir. 2017)
2017) (per
(per curiam).
curiam). See
See also
also
United
States
v.
Rice,
607
F.3d
133,
141
(5th
Cir.
2010).
United States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010).
25
25
Age,
Appendix 25a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 26
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
event
was sufficient
event harmless,
harmless, as
as the
the remaining
remaining evidence
evidence presented
presented at
at trial
trial was
sufficient to
to
65
convict
convict him
him of
of all
all applicable
applicable counts.
counts.°
IV.
IV.
The
The district
district court
court also
also properly
properly admitted
admitted evidence
evidence of
of historical
historical cell
cell
site
site location
location information
information (“CSLI”)
(“CSLI”) over
over Defendants’
Defendants’ Fourth
Fourth Amendment
Amendment
objections.
objections.
A.
A.
The
The Fourth
Fourth Amendment
Amendment “protects
“protects against
against government
government intrusion
intrusion into
into
areas
where people
areas where
people have
have reasonable
reasonable expectations
expectations of
of privacy[,]”
privacy[,]” and
and requires
requires
the
the prosecution
prosecution to
to obtain
obtain aa warrant
warrant supported
supported by
by probable
probable cause
cause when
when it
it
“seeks
“seeks to
to intrude
intrude upon
upon .. .. .. private
private spheres.”
spheres.”°66 Though
Though the
the “Fourth
“Fourth
Amendment
Amendment contains
contains no
no provision
provision expressly
expressly precluding
precluding the
the use
use of
of evidence
evidence
obtained
obtained in
in violation
violation of
of its
its commands[,]”
commands|,|” courts
courts have
have created
created the
the
exclusionary
judicially created
exclusionary rule,
rule, “a
“a judicially
created remedy
remedy that
that precludes
precludes the
the use
use of
of
evidence
evidence obtained
obtained from
from unconstitutional
unconstitutional search
search or
or seizure[.]”
seizure[.]” 67
©”
“An
“An exception
exception to
to the
the exclusionary
exclusionary rule
rule exists
exists where
where government
government
investigators
belief that
investigators acted
acted with
with an
an objectively
objectively reasonable
reasonable good-faith
good-faith belief
that their
their
conduct
conduct was
was lawful.”
lawful.”68
®* Courts
Courts have
have applied
applied the
the good-faith
good-faith exception
exception “to
“to
evidence
evidence obtained
obtained from
from warrantless
warrantless searches
searches later
later held
held to
to be
be
unconstitutional.”
unconstitutional.”69
°° Furthermore,
Furthermore, the
the Supreme
Supreme Court
Court has
has held
held that
that the
the
_____________________
65
Rice, 607
6 See
See Rice,
607 F.3d
F.3d at
at 140-41.
140-41.
Beverly, 943
°° United
United States
States v.
v. Beverly,
943 F.3d
F.3d 225,
225, 232
232 (5th
(5th Cir.
Cir. 2019)
2019) (citations
(citations omitted).
omitted).
66
67
Id. (citation
°7 Td.
(citation omitted).
omitted).
68
Id. (citations
°8 Jd.
(citations omitted).
omitted).
69
Id. at
% Td.
at 233
233 (emphasis
(emphasis in
in original).
original).
26
26
Age,
Appendix 26a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 27
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
good-faith
by
good-faith exception
exception applies
applies “where
“where aa warrantless
warrantless search
search is
is authorized
authorized by
70
statute
statute or
or binding
binding precedent
precedent later
later ruled
ruled unconstitutional[.]”
unconstitutional|[.|” 7°
B.
B.
“On
“On appeal
appeal of
of aa motion
motion to
to suppress,
suppress, legal
legal conclusions
conclusions are
are reviewed
reviewed de
de
71
novo
novo while
while factual
factual findings
findings are
are reviewed
reviewed for
for clear
clear error[,]”
error[,]”’! subject
subject to
to
harmless
harmless error.
error.’”72 The
The party
party seeking
seeking suppression
suppression “has
“has the
the burden
burden of
of proving,
proving,
by aa preponderance
by
preponderance of
of evidence,
evidence, that
that the
the evidence
evidence in
in question
question was
was obtained
obtained
in
in violation
violation of
of his
his Fourth
Fourth Amendment
Amendment rights.”
rights.” 73
7”? “Evidence
“Evidence is
is viewed
viewed in
in the
the
light
light most
most favorable
favorable to
to the
the prevailing
prevailing party.”
party.” 74
”
C.
C.
Defendants
Defendants argue
argue that
that the
the district
district court
court erred
erred when
when it
it denied
denied their
their
motions
motions to
to suppress
suppress evidence
evidence of
of CSLI—such
CSLI—such as
as such
such as
as the
the location
location of
of the
the
YMF
Y MF members’
members’ phones
phones at
at around
around the
the time
time of
of Womack’s
Womack’s murder—which
murder—which
the
the Prosecution
Prosecution used
used to
to corroborate
corroborate witness
witness testimony.
testimony. Their
Their focus
focus is
is upon
upon
the
the timeline
timeline of
of the
the Prosecution’s
Prosecution’s 18
18 U.S.C.
U.S.C. §§ 2703(d)
2703(d) applications
applications in
in this
this case
case
and
and the
the evolution
evolution of
of the
the constitutionality
constitutionality of
of warrantless
warrantless compelled
compelled
production
production under
under the
the Stored
Stored Communications
Communications Act:
Act:
•e In
In October
October 2010,
2010, aa magistrate
magistrate judge
judge in
in the
the Southern
Southern District
District of
of Texas
Texas
75
held
be unconstitutional.
held §§ 2703(d)
2703(d) orders
orders to
to be
unconstitutional.”
_____________________
70
Id.
7 Td.
71
Id. at
” Td.
at 231.
231.
72
” United
United States
States v.
v. Garcia,
Garcia, 99
99 F.4th
F 4th 253,
253, 266-67
266-67 (5th
(5th Cir.
Cir. 2024).
2024).
73
Id. at
73 Td.
at 267
267 (quotations
(quotations and
and citation
citation omitted).
omitted).
74
Beverly, 943
™ Beverly,
943 F.3d
F.3d 225
225 at
at 231
231 (quotations
(quotations and
and citation
citation omitted).
omitted).
75
In re
for Hist.
Hist. Cell
Data, 747
> In
re U.S.
U.S. for
Cell Site
Site Data,
747 F.
F. Supp.
Supp. 2d
2d 827
827 (S.D.
(S.D. Tex.
Tex. 2010),
2010),
vacated,
724
F.3d
600
(5th
Cir.
2013).
vacated, 724 F.3d 600 (5th Cir. 2013).
27
27
Age,
Appendix 27a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 28
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
•e In
judge in
In November
November 2011,
2011, aa district
district judge
in the
the Southern
Southern District
District of
of Texas
Texas
affirmed
judge’s order.
affirmed the
the magistrate
magistrate judge’s
order.
•e In
In December
December 2011,
2011, the
the Prosecution
Prosecution filed
filed its
its notice
notice of
of appeal
appeal to
to the
the
Fifth
Fifth Circuit.
Circuit.
•e In
In August
August 2012,
2012, the
the Prosecution
Prosecution began
began its
its §§ 2703(d)
2703(d) applications
applications in
in
this
this case.
case.
•e In
July 2013,
InJuly
2013, the
the Fifth
Fifth Circuit
Circuit held
held that
that §§ 2703(d)
2703(d) was
was constitutional
constitutional
even
even as
as applied
applied to
to the
the warrantless
warrantless compelled
compelled disclosure
disclosure of
of historical
historical
76
CSLI.
CSLI.”
•e In
June 2018,
InJune
2018, the
the Supreme
Supreme Court
Court overturned
overturned the
the Fifth
Fifth Circuit’s
Circuit’s thenthen77
which held,
existing
with Carpenter
existing precedent
precedent with
Carpenter v.
v. United
United States,
States,” which
held, in
in relrelevant
evant part,
part, that
that compelled
compelled production
production ordered
ordered pursuant
pursuant to
to §§ 2703(d)
2703(d)
violated
the
Fourth
Amendment
by
allowing
the
Government
violated the Fourth Amendment by allowing the Government to
to obob78
tain
CSLI
without
a
warrant
supported
by
probable
cause.
tain CSLI without a warrant supported by probable cause.”
The
The district
district court—over
court—over Defendants’
Defendants’ objections—admitted
objections—admitted the
the
evidence
because it
evidence because
it found
found that
that the
the good-faith
good-faith exception
exception applied
applied to
to CSLI
CSLI
obtained
obtained in
in this
this case
case pursuant
pursuant to
to §§ 2703(d)
2703(d) orders
orders that
that were
were sought
sought after
after aa
lower
lower court
court in
in aa different
different district
district within
within the
the Fifth
Fifth Circuit
Circuit had
had found
found §
§ 2703
2703
orders
but before
before the
orders to
to be
be unconstitutional,
unconstitutional, but
the Fifth
Fifth Circuit’s
Circuit’s then-binding
then-binding
precedent
July 2013.
precedent in
in July
2013. We
We agree.
agree.
Under
Illinois v.
Krull, reliance
Under Illinois
v. Krull,
reliance on
on aa statute
statute is
is objectively
objectively reasonable
reasonable
“unless
“unless [the]
[the] statute
statute is
is clearly
clearly unconstitutional[.]”
unconstitutional[.]”7?79 At
At the
the time
time of
of the
the
Prosecution’s
Prosecution’s §§ 2703(d)
2703(d) applications,
applications, the
the absence
absence of
of binding
binding precedent
precedent and
and
the
the “uneven
“uneven split
split of
of authority
authority among
among district
district courts
courts nationwide
nationwide favoring
favoring
constitutionality”
did
not
meet
the
threshold
of
“clearly
constitutionality”
did
not
meet
the
threshold
of
“clearly
_____________________
76
In re U.S.
for Hist.
Data, 724
© Inre
U.S. for
Hist. Cell
Cell Site
Site Data,
724 F.3d
F.3d 600
600 (5th
(5th Cir.
Cir. 2013).
2013).
585 U.S.
77585
U.S. 296
296 (2018).
(2018).
77
78
Id. at
8 Td.
at 316.
316.
79 480
480 U.S.
U.S. 340,
340, 349
349 (1987).
(1987).
79
28
28
Age,
Appendix 28a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 29
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
unconstitutional[.]”
unconstitutional[.]”®°80 Moreover,
Moreover, the
the decisions
decisions of
of aa federal
federal district
district court
court are
are
not
not controlling
controlling law
law for
for aa different
different federal
federal district
district court,
court,*'81 and
and do
do not
not render
render aa
statute
statute “clearly
“clearly unconstitutional.”
unconstitutional.” 82
°
Defendants
Defendants raise
raise two
two additional
additional arguments
arguments that
that are
are inapposite.
inapposite. First,
First,
they
bore
they assert
assert that
that the
the district
district court
court erred
erred in
in holding
holding that
that the
the Defendants
Defendants bore
the
the burden
burden of
of proof
proof on
on this
this issue.
issue. Though
Though Defendants
Defendants are
are correct
correct in
in asserting
asserting
that
bears the
that the
the Prosecution
Prosecution bears
the burden
burden of
of establishing
establishing objective
objective good
good faith,
faith, this
this
burden is
burden
is distinct
distinct from
from the
the Defendants’
Defendants’ separate
separate burden
burden of
of proving
proving that
that their
their
Fourth Amendment
Amendment rights
been violated.
Fourth
rights have
have been
violated.**83 The
The district
district court
court correctly
correctly
held
burden.
held that
that Defendants,
Defendants, not
not the
the Prosecution,
Prosecution, bear
bear this
this burden.
Second,
Second, Defendants
Defendants argue
argue that
that collateral
collateral estoppel
estoppel prevented
prevented the
the
Prosecution’s
Prosecution’s reliance
reliance on
on the
the §§ 2703(d)
2703(d) orders.
orders. But
But it
it is
is well
well established
established that
that
“nonmutual
“nonmutual offensive
offensive collateral
collateral estoppel
estoppel is
is not
not to
to be
be extended
extended to
to the
the United
United
States”
because “the
States” because
“the Government
Government is
is not
not in
in aa position
position identical
identical to
to that
that of
of aa
private
breadth of
private litigant”
litigant” in
in “geographic
“geographic breadth
of government
government litigation
litigation and
and also
also …
...
[in]
[in] the
the nature
nature of
of the
the issues
issues the
the government
government litigates.”
litigates.” 84
*4 Collateral
Collateral estoppel
estoppel
does
does not
not apply
apply here.
here.
_____________________
80
Id.
8° Td.
81
Am. Elec.
Elec. Power
Power Co.
81 See,
See, e.g.,
e.g., Am.
Co. v.
v. Connecticut,
Connecticut, 564
564 U.S.
U.S. 410,
410, 428
428 (2011).
(2011).
82
Krull, 480
®° Krull,
480 U.S.
U.S. at
at 349.
349. This
This reasoning
reasoning also
also undermines
undermines Defendants’
Defendants’ related
related
argument
that
the
Prosecution
acted
in
bad
faith
in
failing
to
disclose
adverse
rulings
argument that the Prosecution acted in bad faith in failing to disclose adverse rulings in
in its
its
§2703(d)
because the
§2703(d) applications:
applications: because
the decision
decision in
in the
the Southern
Southern District
District of
of Texas
Texas did
did not
not
constitute
constitute legal
legal authority
authority in
in the
the Eastern
Eastern District
District of
of Louisiana,
Louisiana, the
the Prosecution
Prosecution did
did not
not have
have
aa duty
to
disclose
such
authority
to
the
magistrate
judges.
See
La.
Prof’l.
Conduct
duty to disclose such authority to the magistrate judges. See La. PROF’L. CONDUCT
R.
R. 3.3(a)(2).
3.3(a)(2).
83
Maggitt, 778
Beverly, 943
83 See
See Maggitt,
778 F.2d
F.2d at
at 1034;
1034; Beverly,
943 F.3d
F.3d at
at 231.
231.
84
Mendoza, 464
84 United
United States
States v.
v. Mendoza,
464 U.S.
U.S. 154,
154, 158-59
158-59 (1984).
(1984).
29
29
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Age, III
Ill Cert
Cert Petition
Petition Appendix
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Document: 298-1
Page: 30
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
V.
V.
Defendants
Defendants further
further assert
assert that
that the
the district
district court
court abused
abused its
its discretion
discretion
in
ED. R.
VID. 902(11)
in admitting
admitting phone
phone records
records under
under F
FED.
R. E
EVID.
902(11) and
and the
the
Confrontation
Confrontation Clause.
Clause. Neither
Neither argument
argument prevails.
prevails.
A.
A.
Rule
Rule 902
902 characterizes
characterizes certain
certain categories
categories of
of evidence
evidence as
as “self“selfauthenticating”,
authenticating”, or
or evidence
evidence that
that “require
“require no
no extrinsic
extrinsic evidence
evidence of
of
authenticity
authenticity in
in order
order to
to be
be admitted[.]”
admitted[.]”*°85 This
This includes
includes certified
certified domestic
domestic
records
records of
of aa regularly
regularly conducted
conducted activity,
activity, defined
defined as:
as: “[t]he
“‘[t]he original
original or
or aa copy
copy
of
of aa domestic
domestic record
record that
that meets
meets the
the requirements
requirements of
of [the
[the business
business records
records
exception
exception under
under Rule
Rule 803(6)(A)-(C).]”
803(6)(A)-(C).]|” 86
°°
The
The Confrontation
Confrontation Clause
Clause of
of the
the Sixth
Sixth Amendment
Amendment “prohibits
“prohibits
admitting
admitting out-of-court
out-of-court statements
statements as
as evidence
evidence against
against defendants
defendants in
in aa
criminal
criminal case
case unless
unless they
they can
can cross-examine
cross-examine the
the declarant.
declarant. But
But that
that
prohibition
prohibition applies
applies only
only if
if the
the statements
statements are
are testimonial.”
testimonial.” 87
®”
B.
B.
This
This Court
Court assesses
assesses the
the “admission
“admission of
of evidence
evidence pursuant
pursuant to
to Rule
Rule
902(11)
902(11) under
under an
an abuse
abuse of
of discretion
discretion standard[,]”
standard[,|”*®88 subject
subject to
to harmless
harmless
error.
error.®?89 “[R]eversible
“[R]eversible error
error occurs
occurs only
only when
when the
the admission
admission of
of evidence
evidence
_____________________
85
ED. R.
VID. 902.
8 F
FED.
R. E
EVID.
902.
86
Id. at
86 Td.
at 902(11).
902(11).
87
Ayelotan, 917
8” United
United States
States v.
v. Ayelotan,
917 F.3d
F.3d 394,
394, 403
403 (5th
(5th Cir.
Cir. 2019),
2019), as
as revised
revised (Mar.
(Mar. 4,
4,
2019)
2019) (quotations
(quotations and
and citations
citations omitted).
omitted).
88
88 United
United States
States v.
v. Olguin,
Olguin, 643
643 F.3d
F.3d 384,
384, 390
390 (5th
(5th Cir.
Cir. 2011).
2011).
Id.
° Td.
89
30
30
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Cert Petition
Petition Appendix
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Document: 298-1
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No.
No. 22-30656
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substantially
substantially affects
affects the
the rights
rights of
of aa party.”
party.”°°90 This
This Court
Court reviews
reviews challenges
challenges
91
based
based on
on the
the Confrontation
Confrontation Clause
Clause de
de novo.
novo.*!
C.
C.
The
The district
district court
court properly
properly admitted
admitted the
the phone
phone records
records under
under Rule
Rule
902(11).
902(11). The
The phone
phone records
records at
at issue
issue included
included affidavits
affidavits stating
stating that
that Sprint,
Sprint, TTMobile,
Mobile, and
and Charter
Charter created
created and
and maintained
maintained the
the relevant
relevant phone
phone data
data as
as part
part
of
business activity.
of the
the ordinary
ordinary course
course of
of aa regularly
regularly conducted
conducted business
activity. These
These
affidavits,
affidavits, from
from records
records custodians
custodians and
and tracking
tracking the
the relevant
relevant language
language nearly
nearly
word for
word
for word,
word, satisfy
satisfy Rule
Rule 803(6)’s
803(6)’s requirements
requirements for
for admission.
admission.%”92
Furthermore,
Furthermore, as
as Defendants
Defendants concede,
concede, the
the Prosecution
Prosecution followed
followed proper
proper
procedures
procedures to
to admit
admit the
the phone
phone records.
records.”93 Finally,
Finally, Defendants’
Defendants’ argument
argument that
that
the
the Prosecution
Prosecution was
was required
required to
to provide
provide additional
additional evidence
evidence to
to authenticate
authenticate
the
the phone
phone records
records lacks
lacks merit:
merit: under
under this
this Court’s
Court’s caselaw,
caselaw, valid
valid Rule
Rule 902(11)
902(11)
certificates
certificates are
are sufficient
sufficient for
for admissibility.
admissibility.”94
The
The admission
admission of
of the
the phone
phone records
records also
also does
does not
not violate
violate the
the
Confrontation
because
Confrontation Clause.
Clause. The
The phone
phone records
records here
here are
are not
not testimonial
testimonial because
they
they were
were created
created in
in the
the ordinary
ordinary course
course of
of business,
business, not
not “for
“for the
the purpose
purpose of
of
establishing
establishing or
or proving
proving some
some fact
fact at
at trial[.]”
trial[.]”°>95 And
And Defendants’
Defendants’ argument
argument
that
violate the
that the
the certificates
certificates themselves
themselves violate
the Confrontation
Confrontation Clause
Clause is
is
_____________________
90
Id. (cleaned
°° Td.
(cleaned up).
up).
91
Id. at
9! Td.
at 391.
391.
92
2 “[C]ertificates
“TClertificates from
from aa records
records custodian
custodian that
that track
track the
the language
language of
of Rule
Rule 803(6)
803(6)
nearly
word
for
word
render
the
records
self-authenticating.”
Ayelotan,
917
F.3d
nearly word for word render the records self-authenticating.” Ayelotan, 917 F.3d at
at 402
402
(cleaned
(cleaned up).
up).
93
*3 In
In aa pretrial
pretrial notice,
notice, the
the Prosecution
Prosecution specified
specified the
the records
records it
it was
was seeking
seeking to
to admit
admit
under
under Rule
Rule 902(11),
902(11), allowing
allowing defendants
defendants the
the opportunity
opportunity to
to challenge
challenge their
their admission.
admission.
94
4 See
See United
United States
States v.
v. Towns,
Towns, 718
718 F.3d
F.3d 404,
404, 410
410 (5th
(5th Cir.
Cir. 2013).
2013).
95
Melendez-Diaz v.
Massachusetts, 557
°° Melendez-Diaz
v. Massachusetts,
557 U.S.
U.S. 305,
305, 324
324 (2009).
(2009).
31
31
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Cert Petition
Petition Appendix
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Document: 298-1
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No.
No. 22-30656
22-30656
unconvincing.
unconvincing. As
As the
the Supreme
Supreme Court
Court has
has made
made clear,
clear, there
there is
is aa distinction
distinction
between
between aa document
document “created
“created for
for the
the sole
sole purpose
purpose of
of providing
providing evidence
evidence
against
against aa defendant”
defendant” and
and aa document
document created
created to
to “authenticate
“authenticate or
or provide
provide aa
copy
copy of
of an
an otherwise
otherwise admissible
admissible record[.]”
record|.]” °°96 While
While the
the former
former is
is testimonial
testimonial
and
and subject
subject to
to confrontation,
confrontation, the
the latter—applicable
latter—applicable here—is
here—is not.
not.
VI.
VI.
Defendants
Defendants argue
argue that
that the
the district
district court
court abused
abused its
its discretion
discretion when
when it
it
admitted
admitted Womack’s
Womack’s statements
statements under
under the
the forfeiture-by-wrongdoing
forfeiture-by-wrongdoing
exception
exception because
because of
of its
its use
use of
of the
the “preponderance
“preponderance of
of the
the evidence”
evidence”
standard.
standard. This
This argument
argument fails.
fails.
A.
A.
Prior
Prior to
to trial,
trial, the
the Prosecution
Prosecution filed
filed aa motion
motion in
im limine
limine to
to admit
admit
ED. R.
VID. 804(b)(6).
Womack’s
Womack’s statements
statements under
under F
FED.
R. E
EVID.
804(b)(6). Following
Following an
an
evidentiary
evidentiary hearing,
hearing, the
the district
district court
court ruled
ruled that
that by
by the
the forfeiture
forfeiture by
by
wrongdoing exception
wrongdoing
exception to
to hearsay
hearsay found
found in
in the
the Federal
Federal Rules
Rules of
of Evidence
Evidence “all
“all
of
of Womack’s
Womack’s statements
statements on
on any
any topic
topic can
can be
be introduced,”
introduced,” subject
subject to
to Rule
Rule
403
403 and
and 608
608 objections.
objections. At
At trial,
trial, the
the Prosecution
Prosecution elicited
elicited testimony
testimony from
from
97
witnesses
witnesses regarding
regarding things
things Womack
Womack had
had said
said to
to them.
them.” Defendants
Defendants
challenge
challenge the
the admission
admission of
of Womack’s
Womack’s hearsay
hearsay statements
statements under
under the
the
forfeiture
forfeiture by
by wrongdoing
wrongdoing exception.
exception.
_____________________
Id. at
°° Td.
at 322-23
322-23 (emphasis
(emphasis in
in original).
original).
96
97
7 Milton
Milton Womack’s
Womack’s attorney
attorney testified
testified that
that Womack
Womack told
told him,
him, “I’ve
“I’ve just
just been
been
living
with, and
living under
under this
this for
for so
so long.
long. I’m
I’m afraid.
afraid. I’m
I’m tired.
tired. II want
want to
to get
get this
this over
over with,
and II want
want
some
some closure.”
closure.”
32
32
Age,
Appendix 32a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 33
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
B.
B.
We
We review
review evidentiary
evidentiary rulings
rulings “for
“for abuse
abuse of
of discretion,
discretion, subject
subject to
to the
the
98
harmless
harmless error
error standard.”
standard.” * “A
“A trial
trial court
court abuses
abuses its
its discretion
discretion when
when its
its
ruling
ruling is
is based
based on
on an
an erroneous
erroneous view
view of
of the
the law
law or
or aa clearly
clearly erroneous
erroneous
99
assessment
assessment of
of the
the evidence.”
evidence.” *? Objections
Objections based
based in
in the
the Confrontation
Confrontation Clause
Clause
100
are
are reviewed
reviewed de
de novo,
novo, subject
subject to
to harmless
harmless error.
error.1°°
C.
C.
The
The Confrontation
Confrontation Clause
Clause states
states that:
that: “In
“In all
all criminal
criminal prosecutions,
prosecutions,
the
be confronted
the accused
accused shall
shall enjoy
enjoy the
the right
right .. .. .. to
to be
confronted with
with witnesses
witnesses against
against
him.”
him.” 101
1°! “The
“The Amendment
Amendment contemplates
contemplates that
that aa witness
witness who
who makes
makes
testimonial
testimonial statements
statements admitted
admitted against
against aa defendant
defendant will
will ordinarily
ordinarily be
be
present
present at
at trial
trial for
for cross-examination,
cross-examination, and
and that
that if
if the
the witness
witness is
is unavailable,
unavailable,
his
his prior
prior testimony
testimony will
will be
be introduced
introduced only
only if
if the
the defendant
defendant had
had aa prior
prior
opportunity
opportunity to
to cross-examine
cross-examine him.”
him.” 102
1°? The
The Confrontation
Confrontation Clause’s
Clause’s goal—
goal—
reliable
reliable evidence
evidence that
that passes
passes through
through the
the crucible
crucible of
of cross-examination—is
cross-examination—is
“a
“ta procedural
procedural rather
rather than
than aa substantive
substantive guarantee.”
guarantee.” 103
1°
Two
Two exceptions
exceptions exist
exist to
to this
this constitutional
constitutional guarantee;
guarantee; one
one is
is at
at issue
issue
104
in
in this
this case.
case.°* The
The doctrine
doctrine of
of forfeiture
forfeiture by
by wrongdoing,
wrongdoing, allows
allows “the
“the
introduction
introduction of
of statements
statements of
of aa witness
witness who
who was
was ‘detained’
‘detained’ or
or ‘kept
‘kept away’
away’ by
by
_____________________
98
Hankton, 51
°8 United
United States
States v.
v. Hankton,
51 F.4th
F 4th 578,
578, 598
598 (5th
(5th Cir.
Cir. 2022)
2022) (quoting
(quoting Gurrola,
Gurrola, 898
898
F.3d
F.3d at
at 533
533 (5th
(5th Cir.
Cir. 2018)).
2018)). Here,
Here, this
this issue
issue was
was preserved
preserved on
on appeal,
appeal, and
and so
so the
the plain
plain error
error
standard
standard does
does not
not apply.
apply. United
United States
States v.
v. Valas,
Valas, 822
822 F.3d
F.3d 228,
228, 240
240 (5th
(5th Cir.
Cir. 2016).
2016).
99
Hankton, 51
Hankton,
51 F.4th
F.4th at
at 598
598 (quoting
(quoting United
United States
States v.
v. Yanez
Yanez Sosa,
Sosa, 513
513 F.3d
F.3d 194,
194, 200
200
(5th
Cir.
2008)
(internal
quotation
marks
omitted)).
(5th Cir. 2008) (internal quotation marks omitted)).
100
Acosta, 475
100 United
United States
States v.
v. Acosta,
475 F.3d
F.3d 677,
677, 680
680 (5th
(5th Cir.
Cir. 2007).
2007).
101
U.S. C
ONST. amend.
101'U.S.
CONST.
amend. VI.
VI.
102
102 Giles
Giles v.
v. California,
California, 554
554 U.S.
U.S. 353,
353, 358
358 (2008).
(2008).
103
103 Crawford
Crawford v.
v. Washington,
Washington, 541
541 U.S.
U.S. 36,
36, 61
61 (2004).
(2004).
104
104 Giles,
Giles, 554
554 U.S.
U.S. at
at 358-59.
358-59.
33
33
Age,
Appendix 33a
Age, III
Ill Cert
Cert Petition
Petition Appendix
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Document: 298-1
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Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
the
when the
the ‘means
‘means or
or procurement’
procurement’ of
of the
the defendant[,]”
defendant[,|” and
and applies
applies “only
“only when
the
defendant
defendant engaged
engaged in
in conduct
conduct designed
designed to
to prevent
prevent the
the witness
witness from
from
testifying.”
testifying.”105
1° The
The High
High Court
Court has
has emphasized
emphasized that,
that, “[W]hen
“[W]hen defendants
defendants
seek
judicial process
seek to
to undermine
undermine the
the judicial
process by
by procuring
procuring or
or coercing
coercing silence
silence from
from
witnesses and
victims, the
witnesses
and victims,
the Sixth
Sixth Amendment
Amendment does
does not
not require
require courts
courts to
to
106
who obtains
witness by
acquiesce.”
acquiesce.”°° Instead,
Instead, “one
“one who
obtains the
the absence
absence of
of aa witness
by
wrongdoing forfeits
wrongdoing
forfeits the
the constitutional
constitutional right
right to
to confrontation.”
confrontation.” 107
1°”
The
The party
party seeking
seeking to
to admit
admit the
the statement
statement under
under Rule
Rule 804(b)(6)
804(b)(6) must
must
demonstrate
demonstrate that
that Defendants
Defendants “engaged
“engaged or
or acquiesced
acquiesced in
in wrongdoing
wrongdoing that
that
was
was intended
intended to,
to, and
and did,
did, procure
procure the
the unavailability
unavailability of
of the
the declarant
declarant as
as aa
108
be admissible,
witness.”
witness.” !°° For
For Womack’s
Womack’s statements
statements to
to be
admissible, Defendants
Defendants must
must be
be
found
found to
to have
have “ha[d]
“ha[d] in
in mind
mind the
the particular
particular purpose
purpose of
of making
making the
the witness
witness
109
unavailable.”
unavailable.” 1°? The
The High
High Court
Court has
has reiterated
reiterated that
that “the
“the rule
rule of
of forfeiture
forfeiture by
by
wrongdoing
wrongdoing .. .. .. extinguishes
extinguishes confrontation
confrontation claims
claims on
on essentially
essentially equitable
equitable
110
witness by
by wrongdoing
wrongdoing
grounds.”
grounds.” !!° Thus,
Thus, “one
“‘one who
who obtains
obtains the
the absence
absence of
of aa witness
forfeits
forfeits the
the constitutional
constitutional right
right to
to confrontation.”
confrontation.” 111
The
The Supreme
Supreme Court
Court expressly
expressly did
did not
not take
take aa position
position on
on “the
“the
standards
standards necessary
necessary to
to demonstrate
demonstrate such
such forfeiture,
forfeiture, but
but federal
federal courts
courts using
using
[Rule]
[Rule] 804(b)(6),
804(b)(6), which
which codified
codified the
the forfeiture
forfeiture doctrine,
doctrine, have
have generally
generally held
held
112
the
the Prosecution
Prosecution to
to the
the preponderance-of-the-evidence
preponderance-of-the-evidence standard.”
standard.”"* Before
Before
were amended,
the
the Federal
Federal Rules
Rules of
of Evidence
Evidence were
amended, the
the standard
standard in
in the
the Fifth
Fifth
_____________________
105
Id. at
105 Td.
at 359
359 (citations
(citations omitted).
omitted).
106
Davis v.
106 Davis
v. Washington,
Washington, 547
547 U.S.
U.S. 813,
813, 833
833 (2006).
(2006).
107
107 Td.
Id.
108
108 Giles,
Giles, 554
554 U.S.
U.S. at
at 367
367 (quoting
(quoting the
the Federal
Federal Rules
Rules of
of Evidence).
Evidence).
109
Id. (citation
109 Td.
(citation omitted).
omitted).
110
Davis, 547
"© Davis,
547 U.S.
U.S. at
at 833
833 (citing
(citing Crawford,
Crawford, 541
541 U.S.
U.S. at
at 62
62 (citation
(citation omitted)).
omitted)).
111
111 Ta.
Id.
112
112 Id.
Id.
34
34
Age,
Appendix 34a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 35
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Circuit
by wrongdoing
wrongdoing analyses
Circuit for
for forfeiture
forfeiture by
analyses was
was clear
clear and
and convincing
convincing
113
evidence.
evidence.
Noting
Noting the
the ambiguity
ambiguity as
as to
to which
which standard
standard should
should apply,
apply, the
the district
district
court
court concluded
concluded that
that the
the Prosecution
Prosecution met
met their
their burden
burden under
under both
both standards.
standards.
The
The district
district court
court considered
considered the
the numerous
numerous witnesses
witnesses interviewed,
interviewed, the
the
pending
pending healthcare
healthcare case,
case, the
the timing
timing of
of the
the killing
killing with
with respect
respect to
to Womack’s
Womack’s
guilty
guilty plea,
plea, cellphone
cellphone records,
records, the
the Garcia
Garcia hearing
hearing specifics,
specifics, and
and ballistics
ballistics and
and
forensic
forensic evidence
evidence recounted
recounted by
by Special
Special Agent
Agent Williams.
Williams. The
The district
district court
court
was
was thorough
thorough in
in its
its investigation
investigation of
of the
the factual
factual landscape
landscape and
and inerrant
inerrant in
in its
its
conclusions.
conclusions. It
It did
did not
not abuse
abuse its
its discretion.
discretion.
VII.
VII.
Defendants
Defendants challenge
challenge the
the admission
admission of
of Michael
Michael Fiser’s
Fiser’s testimony
testimony
regarding
regarding attorney-client
attorney-client communications
communications with
with Womack.
Womack. Though
Though attorneyattorneyclient
client privilege
privilege survives
survives death,
death, we
we find
find that
that Defendants
Defendants lack
lack the
the requisite
requisite
closeness
closeness for
for third-party
third-party standing.
standing.
A.
A.
Fiser
July 6,
July
Fiser represented
represented Womack
Womack from
from July
6, 2012
2012 until
until his
his death
death on
on July
27,
with Fiser
July 11,
27, 2012.
2012. Womack
Womack met
met with
Fiser on
on July
11, 2012
2012 and
and the
the pair
pair met
met with
with
investigators
with investigators
investigators the
the next
next day.
day. Fiser
Fiser and
and Womack
Womack met
met with
investigators one
one
more
July 19.
July 25,
more time,
time, on
on July
19. By
By July
25, the
the Prosecution
Prosecution and
and Womack
Womack had
had aa plea
plea
agreement
agreement and
and announced
announced Womack’s
Womack’s intention
intention to
to testify
testify for
for the
the Prosecution.
Prosecution.
Two
Two days
days later,
later, Womack
Womack was
was murdered.
murdered.
Following
jury
Following Womacks’
Womacks’ death,
death, the
the Prosecution
Prosecution opened
opened aa grand
grand jury
investigation
investigation into
into Womack’s
Womack’s death
death and
and approached
approached Fiser
Fiser for
for information.
information.
_____________________
113
"3 See
See United
United States
States v.
v. Thevis,
Thevis, 665
665 F.2d
F.2d 616,
616, 631
631 (5th
(5th Cir.
Cir. 1982).
1982). One
One of
of our
our sister
sister
circuits—when
presented
with
the
question
of
which
standard
to
apply
post-amendment—
circuits—when presented with the question of which standard to apply post-amendment—
found
found that
that the
the Federal
Federal Rules
Rules of
of Evidence
Evidence had
had abrogated
abrogated Thevis.
Thevis. See
See United
United States
States v.
v.
Zlatogur, 271
Zlatogur,
271 F.3d
F.3d 1025,
1025, 1028
1028 (11th
(11th Cir.
Cir. 2001),
2001), cert.
cert. denied,
denied, 535
535 U.S.
U.S. 946
946 (2002).
(2002). The
The
Eleventh
Id.
Eleventh Circuit
Circuit adopts
adopts pre-creation
pre-creation Fifth
Fifth Circuit
Circuit caselaw
caselaw as
as their
their own
own precedent.
precedent. Jd.
35
35
Age,
Appendix 35a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 36
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Fiser
Fiser raised
raised concerns
concerns about
about attorney-client
attorney-client privilege,
privilege, and
and the
the Prosecution
Prosecution
filed
filed aa motion
motion to
to compel
compel Fiser
Fiser to
to disclose
disclose his
his communications
communications with
with Womack.
Womack.
In
January 2013,
Judge James
James J.J. Brady
In January
2013, Judge
Brady heard
heard the
the motion
motion in
7 camera,
camera, and
and at
at the
the
114
Judge Brady
hearing
hearing Fiser
Fiser asserted
asserted the
the privilege
privilege on
on Womack’s
Womack’s behalf.
behalf."4 Judge
Brady
ordered
ordered that
that Fiser
Fiser was
was relieved
relieved of
of his
his attorney-client
attorney-client privilege
privilege and
and was
was
115
allowed
allowed to
to share
share information
information with
with the
the Prosecution.
Prosecution.!»
Defendants
Defendants challenge
challenge the
the admission
admission of
of Fiser’s
Fiser’s testimony
testimony concerning
concerning
communications
communications Fiser
Fiser had
had with
with Womack,
Womack, asserting
asserting attorney-client
attorney-client privilege.
privilege.
They
They filed
filed aa pretrial
pretrial motion
motion in
2” limine,
/zmine, and
and later
later aa reply,
reply, seeking
seeking to
to exclude
exclude the
the
testimony
testimony by
by Fiser
Fiser that
that contained
contained attorney-client
attorney-client communications.
communications. The
The
district
judge in
district judge
in this
this criminal
criminal case—Judge
case—Judge Barry
Barry W.
W. Ashe—denied
Ashe—denied the
the
contested
contested motion
motion in
7m limine
limine and
and ruled
ruled that
that “any
“any communications
communications Womack
Womack
had
had with
with Fiser
Fiser in
in the
the presence
presence of
of aa third
third party,
party, including
including the
the Prosecution,
Prosecution, are
are
not
not privileged.”
privileged.” The
The district
district court
court also
also determined
determined that
that Fiser—not
Fiser—not
Defendants—possesses
Defendants—possesses the
the right
right to
to assert
assert the
the privilege.
privilege.
Later,
Later, in
in September
September 2022,
2022, when
when the
the district
district court
court responded
responded to
to Age
Age
Jr.’s motion
Jr.’s
motion for
for aa new
new trial,
trial, the
the court
court denied
denied the
the motion
motion because
because Fiser’s
Fiser’s
testimony
testimony did
did not
not implicate
implicate legal
legal advice
advice and
and the
the testimony
testimony was
was made
made in
in the
the
presence
presence of
of third
third parties,
parties, thus
thus rendering
rendering the
the communication
communication unprivileged.
unprivileged.
Even
were privileged
Even if
if there
there were
privileged statements
statements elicited
elicited at
at trial,
trial, the
the district
district court
court
distinguished
Berlin v.
distinguished the
the Supreme
Supreme Court’s
Court’s decision
decision in
in Swidler
Swidler &
& Berlin
v. United
United
116
States
States on
on two
two separate
separate grounds.
grounds."
_____________________
114
supra I(A)(1),
"4 See
See supra
1(A)(1), which
which details
details Fiser’s
Fiser’s appointment
appointment as
as counsel.
counsel.
115
"5 The
The Prosecution
Prosecution noted
noted that
that the
the grand
grand jury
jury docket
docket was
was under
under seal
seal in
in the
the Middle
Middle
District
of
Louisiana,
and
that
Judge
Brady
had
passed
away.
On
March
14,
2022,
however,
District of Louisiana, and that Judge Brady had passed away. On March 14, 2022, however,
Fiser
Fiser filed
filed aa motion
motion to
to unseal,
unseal, and
and the
the Chief
Chief Judge
Judge of
of the
the district
district granted
granted request
request for
for copies
copies
of
be provided
Judge Ashe
of the
the records
records be
provided to
to Judge
Ashe for
for in
7 camera
camera inspection.
inspection.
116
N6 524
524 U.S.
U.S. 399
399 (1998).
(1998). In
In Swidler,
Swidler, the
the Court
Court held
held that
that the
the attorney-client
attorney-client privilege
privilege
survives
survives death
death but
but noted
noted an
an exception
exception for
for posthumous
posthumous disclosure
disclosure that
that “furthers
“furthers the
the client’s
client’s
intent”—namely,
the
testamentary
exception.
Id.
at
405-06.
It
also
cited
a
great
intent” —namely, the testamentary exception. Jd. at 405-06. It also cited a great deal
deal of
of
older
older caselaw
caselaw to
to establish
establish this
this well-worn
well-worn exception
exception as
as stretching
stretching back
back far
far in
in time,
time, and
and in
in
36
36
Age,
Appendix 36a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 37
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
B.
B.
The
The district
district court’s
court’s decision
decision to
to admit
admit Fiser’s
Fiser’s testimony
testimony at
at trial
trial is
is
117
reviewed
reviewed for
for abuse
abuse of
of discretion
discretion subject
subject to
to harmless
harmless error
error review.
review.!” The
The issue
issue
is
whether Defendants
is whether
Defendants possess
possess the
the requisite
requisite third-party
third-party standing
standing to
to assert
assert
Womack’s
Womack’s attorney-client
attorney-client privilege.
privilege. Defendants
Defendants assert
assert that
that the
the district
district court
court
should
should have
have allowed
allowed them
them to
to raise
raise Womack’s
Womack’s attorney-client
attorney-client privilege
privilege
regarding
regarding statements
statements expressing
expressing fear
fear of
of Defendants,
Defendants, statements
statements made
made to
to
third
third parties,
parties, and
and statements
statements Womack
Womack intended
intended to
to disclose
disclose to
to law
law
enforcement.
enforcement.
“The
“The question
question of
of standing
standing is
is whether
whether the
the litigant
litigant is
is entitled
entitled to
to have
have
the
the court
court decide
decide the
the merits
merits of
of the
the dispute
dispute or
or of
of particular
particular issues.”
issues.” 118
"® The
The
Supreme
Supreme Court
Court has
has recognized
recognized limits
limits apart
apart from
from the
the “minimum
“minimum
constitutional
when the
constitutional mandate”
mandate” and
and that
that “even
“even when
the plaintiff
plaintiff has
has alleged
alleged injury
injury
sufficient
sufficient to
to meet
meet the
the ‘case
‘case or
or controversy’
controversy’ requirement,
requirement, .. .. .. the
the plaintiff
plaintiff
generally
generally must
must assert
assert his
his own
own legal
legal rights
rights and
and interests,
interests, and
and cannot
cannot rest
rest his
his
claim
claim on
on the
the legal
legal rights
rights or
or interests
interests of
of third
third parties.”
parties.” 119
"”
_____________________
caselaw.
Patten, 165
caselaw. See,
See, e.g.,
e.g., Glover
Glover v.
v. Patten,
165 U.S.
U.S. 394,
394, 406-408
406-408 (1897)
(1897) (holding
(holding that
that testamentary
testamentary
disclosure
was
allowed
because
privilege
could
be
waived
to
fulfill
client
intent).
disclosure was allowed because privilege could be waived to fulfill client intent).
117
Mendoza"7 Yanez
Yanez Sosa,
Sosa, 513
513 F.3d
F.3d 194,
194, 201
201 (5th
(5th Cir.
Cir. 2008).
2008). See
See also,
also, United
United States
States v.
v. MendozaMedina,
346
F.3d
121,
127
(5th
Cir.
2003)
(“Unless
there
is
a
reasonable
possibility
Medina, 346 F.3d 121, 127 (5th Cir. 2003) (“Unless there is a reasonable possibility that
that the
the
improperly
improperly admitted
admitted evidence
evidence contributed
contributed to
to the
the conviction,
conviction, reversal
reversal is
is not
not required.”)
required.”’)
(citation
(citation omitted).
omitted).
118
"8 Warth
Warth v.
v. Seldin,
Seldin, 422
422 U.S.
U.S. 490,
490, 499
499 (1975).
(1975).
119
Id. at
9 Td.
at 499-500.
499-500. “Without
“Without such
such limitations—closely
limitations —closely related
related to
to Art.
Art. III
III concerns
concerns
but
judicial self-governance—the
but essentially
essentially matters
matters of
of judicial
self-governance—the courts
courts would
would be
be called
called upon
upon to
to
decide
abstract
questions
of
wide
public
significance
even
though
.
.
.
judicial
intervention
decide abstract questions of wide public significance even though . . . judicial intervention
may
Id. at
Med. Servs.,
may be
be unnecessary
unnecessary to
to protect
protect individual
individual rights.”
rights.” Jd.
at 500.
500. See
See also,
also, June
June Med.
Servs.,
L.L.C. v.
Russo, 591
J., dissenting)
L.L.C.
v. Russo,
591 U.S.
U.S. 299,
299, 363
363 (2020)
(2020) (Thomas,
(Thomas,J.,
dissenting) (collecting
(collecting prior
prior caselaw
caselaw
on
on third-party
third-party standing).
standing).
37
37
Age,
Appendix 37a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 38
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
Third-party
Third-party standing
standing allows
allows aa court
court to
to hear
hear disputes
disputes where
where third
third
parties
parties assert—and
assert—and thereby
thereby vindicate—the
vindicate—the legal
legal rights
rights of
of others.
others. The
The High
High
Court
Court noted
noted that
that third-party
third-party standing
standing exists
exists when
when three
three criteria
criteria are
are satisfied:
satisfied:
(1)
(1) an
an “injury
“injury in
in fact”
fact” which
which begets
begets aa “sufficiently
“sufficiently concrete
concrete interest”
interest” in
in the
the
outcome,
outcome, (2)
(2) aa close
close relation
relation to
to the
the third
third party,
party, and
and (3)
(3) some
some hindrance
hindrance to
to the
the
120 We find that,
third
third party’s
party’s ability
ability to
to protect
protect his
his or
or her
her own
own interests.
interests.’2°
We find that,
irrespective
irrespective of
of an
an injury
injury in
in fact,
fact, Defendants
Defendants do
do not
not possess
possess aa close
close relation
relation to
to
121
Womack
Womack sufficient
sufficient to
to assert
assert his
his attorney-client
attorney-client privilege.
privilege.1”!
The
The High
High Court
Court has
has noted
noted that
that the
the close
close relation
relation prong
prong is
is seen
seen through
through
the
the lens
lens of
of whether
whether the
the enjoyment
enjoyment of
of the
the right
right “is
“is inextricably
inextricably bound
bound up
up with
with
the
the activity
activity the
the litigant
litigant wishes
wishes to
to pursue[,]”
pursue[,]” and
and the
the “relationship
“relationship .. .. ..
between
be such
between the
the litigant
litigant and
and the
the third
third party
party may
may be
such that
that the
the former
former is
is fully,
fully,
122 But,
or
or very
very nearly,
nearly, as
as effective
effective aa proponent
proponent of
of the
the right
right as
as the
the latter.”
latter.”
?? But,
Womack
Womack was
was meeting
meeting with
with the
the Prosecution
Prosecution and
and had
had agreed
agreed to
to testify
testify against
against
Defendants—whose
Defendants—whose best
best interests
interests were
were served
served by
by not
not having
having him
him testify
testify
123
against
against them
them in
in aa federal
federal criminal
criminal trial.
trial.”
Defendants
Defendants both
both procured
procured his
his absence
absence and
and have
have attempted
attempted to
to
“vindicate”
yet also
“vindicate” his
his rights,
rights, yet
also have
have aa keen
keen interest
interest in
in suppressing
suppressing any
any
testimony
testimony from
from Womack.
Womack. Defendants
Defendants do
do not
not have
have aa relationship
relationship such
such that
that
_____________________
120
Powers v.
120 Powers
v. Ohio,
Ohio, 499
499 U.S.
U.S. 400,
400, 412-15
412-15 (1991).
(1991).
121
Powers for
1 Defendants
Defendants cite
cite Powers
for the
the contention
contention that
that “there
“there exists
exists some
some hindrance
hindrance to
to
the
Id. at
the third
third party’s
party’s ability
ability to
to protect
protect his
his or
or her
her own
own interests.”
interests.” Jd.
at 410-11.
410-11. To
To be
be clear,
clear, the
the
hindrance
hindrance is
is that
that Womack—after
Womack—after he
he expressed
expressed the
the clear
clear intent
intent of
of pleading
pleading and
and testifying
testifying
and
and met
met with
with investigators—was
investigators—was murdered.
murdered. His
His unlawful
unlawful execution
execution prevented
prevented him
him from
from
testifying
testifying against
against certain
certain Defendants
Defendants and
and from
from asserting
asserting his
his own
own attorney-client
attorney-client privilege.
privilege.
Death
Death is
is the
the insuperable
insuperable obstacle
obstacle here.
here.
122
122 Singleton
Singleton v.
v. Wulff,
Wulff, 428
428 U.S.
U.S. 106,
106, 114-15
114-15 (1976).
(1976).
123
Rakas v.
Illinois, 439
123 See
See also
also Rakas
v. Illinois,
439 U.S.
U.S. 128
128 (1978)
(1978) (affirming
(affirming that
that Fourth
Fourth Amendment
Amendment
rights
are
personal
rights).
rights are personal rights).
38
38
Age,
Appendix 38a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 39
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
they
they are
are able
able to
to be
be an
an effective
effective proponent,
proponent, as
as their
their goals
goals are
are diametrically
diametrically
opposed:
opposed: Womack
Womack was
was in
in the
the process
process of
of testifying
testifying against
against Defendants.
Defendants. It
It was
was
in
jurors’ ears.
in their
their best
best interest
interest that
that his
his testimony
testimony never
never reached
reached the
the jurors’
ears.
This
Fortna held
This Court
Court in
in United
United States
States v.
v. Fortna
held that
that co-defendants
co-defendants in
in aa case
case
where one
where
one defendant’s
defendant’s attorney-client
attorney-client privilege
privilege was
was violated
violated by
by the
the
124 Similar to
Prosecution
join the
Prosecution did
did not
vot have
have standing
standing to
to join
the motion
motion to
to quash.
quash.!?4
Similar to
Fourth
Fourth Amendment
Amendment rights,
rights, “Fifth
“Fifth and
and Sixth
Sixth Amendment
Amendment rights
rights .. .. .. are
are
personal
personal in
in nature
nature and
and cannot
cannot be
be asserted
asserted vicariously.”
vicariously.”125
7° Defendants
Defendants have
have
no
no standing
standing to
to assert
assert Womack’s
Womack’s privilege.
privilege. Their
Their argument
argument fails.
fails.
VIII.
Vill.
Defendants
jailhouse
Defendants raise
raise aa multitude
multitude of
of complaints
complaints concerning
concerning the
the jailhouse
informant
with—and
informant Michael
Michael Crawford’s
Crawford’s adverse
adverse testimony.
testimony. We
We deal
deal with—and
dismiss—each
dismiss—each issue
issue in
in turn.
turn.
A.
A.
Defendants
Defendants argue
argue that
that the
the district
district court
court erred
erred when
when it
it allowed
allowed
Crawford
Crawford to
to testify
testify at
at trial
trial about
about statements
statements Wilson
Wilson made
made to
to him
him while
while they
they
were
both incarcerated
Massiah v.
were both
incarcerated under
under Massiah
»v. United
United States,
States, arguing
arguing that
that Crawford
Crawford
was
was aa government
government agent
agent and
and deliberately
deliberately elicited
elicited incriminating
incriminating information
information
126
from
from Wilson.
Wilson.'*°
_____________________
124
24 796
796 F.2d
F.2d 724,
724, 732-33
732-33 (5th
(5th Cir.
Cir. 1986).
1986). This
This case
case was
was cited
cited by
by the
the Eighth
Eighth Circuit
Circuit
for
for the
the same
same rationale:
rationale: “In
“In general,
general, the
the attorney-client
attorney-client privilege
privilege is
is personal
personal and
and cannot
cannot be
be
asserted
by
anyone
other
than
the
client.”
United
States
v.
Hatcher,
323
F.3d
666,
674
n.2
asserted by anyone other than the client.” United States v. Hatcher, 323 F.3d 666, 674 n.2
(8th
(8th Cir.
Cir. 2003).
2003).
125
Fortna, 796
125 Fortna,
796 F.2d
F.2d at
at 733.
733.
26 377
377 U.S.
U.S. 201
201 (1964).
(1964).
126
39
39
Age,
Appendix 39a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 40
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
1.
1.
Prior
Prior to
to trial,
trial, Defendants
Defendants filed
filed three
three motions
motions challenging
challenging the
the
admissibility
admissibility of
of Michael
Michael Crawford’s
Crawford’s testimony:
testimony: one
one alleging
alleging that
that he
he was
was aa
Massiah informant,
Massiah
informant, one
one asserting
asserting that
that out-of-court
out-of-court statements
statements by
by Wilson
Wilson
violated the
violated
the other
other three
three Defendants’
Defendants’ Confrontation
Confrontation Clause
Clause rights,
rights, and
and one
one
arguing
arguing that
that Crawford’s
Crawford’s recounting
recounting of
of Wilson’s
Wilson’s statements
statements did
did not
not meet
meet any
any
hearsay
hearsay exceptions.
exceptions. The
The district
district court
court held
held aa two-day
two-day evidentiary
evidentiary hearing
hearing and
and
127
ruled
was admissible
ruled that
that Crawford’s
Crawford’s testimony
testimony was
admissible at
at trial.
trial.!?”
At
At the
the hearing,
hearing, Crawford
Crawford testified
testified that
that he
he was
was friends
friends with
with Wilson
Wilson and
and
that
because they
that they
they would
would talk
talk every
every night
night because
they were
were incarcerated
incarcerated in
in the
the same
same
128 At some point, Crawford soured on Wilson and decided
part
part of
of the
the prison.
prison.!?8
At some point, Crawford soured on Wilson and decided
to
to approach
approach the
the Prosecution
Prosecution with
with details
details he
he had
had learned
learned from
from Wilson.
Wilson.
Crawford
with the
Crawford had
had cooperated
cooperated previously
previously with
the federal
federal government
government and
and had
had
129 On January 14, 2020, Crawford
received
received sentence
sentence reductions
reductions for
for doing
doing so.
so.!”?
On January 14, 2020, Crawford
urged
urged his
his sister
sister to
to reach
reach out
out to
to the
the lead
lead prosecutor
prosecutor in
in this
this case,
case, and
and to
to tell
tell her
her
that
with the
that he
he had
had information
information on
on Wilson.
Wilson. When
When he
he met
met with
the case
case agent
agent and
and the
the
AUSA,
AUSA, Crawford
Crawford was
was admonished
admonished by
by both
both not
not to
to ask
ask Wilson
Wilson any
any questions.
questions.
About
between
About one
one week
week later,
later, Crawford
Crawford met
met with
with them
them aa second
second time,
time, and
and between
_____________________
7 Special
Special Agent
Agent Williams
Williams and
and Crawford
Crawford both
both testified
testified at
at the
the hearing.
hearing.
127
128
8 The
The conversations
conversations range
range from
from gambling
gambling and
and sport,
sport, to
to rap,
rap, as
as well
well as
as life
life outside
outside
the
prison’s
walls—including
past
criminal
activity.
the prison’s walls—including past criminal activity.
129
June 2018
129 He
He met
met with
with an
an Assistant
Assistant United
United States
States Attorney
Attorney (“AUSA”)
(“A USA”) in
in June
2018 from
from
the
Eastern
District
of
Louisiana,
whom
he
contacted
through
his
attorney
in
the
hopes
the Eastern District of Louisiana, whom he contacted through his attorney in the hopes of
of
providing
providing information
information on
on another
another inmate.
inmate. He
He also
also had
had aa meeting
meeting with
with another
another AUSA
AUSA
concerning
concerning another
another inmate,
inmate, whom
whom he
he also
also wanted
wanted to
to provide
provide information
information to
to the
the
Government
on.
Government on.
40
40
Age,
Appendix 40a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 41
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
the
the two
two meetings
meetings continued
continued talking
talking to
to Wilson.
Wilson. Crawford
Crawford testified
testified that
that he
he
130
never
never specifically
specifically asked
asked Wilson
Wilson questions.
questions.'%°
2.
2.
We
We review
review legal
legal determinations
determinations de
de novo
novo and
and factual
factual findings
findings for
for clear
clear
131
error,
Massiah is
error,*! while
while aa claim
claim grounded
grounded in
in Massiah
is subject
subject to
to harmless
harmless error
error
132 The “burden of establishing harmlessness beyond a reasonable
analysis.
analysis.“*
The “burden of establishing harmlessness beyond a reasonable
133
doubt”
doubt” lies
lies with
with the
the Prosecution.
Prosecution.
!*"
3.
3.
The
The Sixth
Sixth Amendment’s
Amendment’s guarantee
guarantee of
of counsel
counsel is
is found
found to
to apply
apply in
in all
all
criminal
all
criminal prosecutions—including
prosecutions—including
all “critical
“critical stages
stages of
of criminal
criminal
proceedings”—which
proceedings” —which covers
covers post-indictment
post-indictment interrogations
interrogations by
by government
government
134
agents.
Massiah established
agents.'*4 Massiah
established that
that cooperating
cooperating government
government informants
informants can
can
be
be considered
considered “[g]overnment
“[g]overnment agents.”
agents.”135> While
While the
the Supreme
Supreme Court
Court has
has
applied
Massiah to
jailhouse informant
applied Massiah
to aa paid
paid jailhouse
informant who
who deliberately
deliberately elicited
elicited
Massiah
incriminating
incriminating statements
statements from
from the
the defendant,
defendant,'**136 it
it has
has rejected
rejected aa Massiah
claim
jailhouse informant
claim when
when a a jailhouse
informant listened
listened to
to conversation
conversation and
and reported
reported on
on
what
without making
what was
was said
said without
making efforts
efforts to
to stimulate
stimulate conversations
conversations about
about the
the
137
crimes
crimes in
in question.
question.1°”
_____________________
130
80 Crawford
Crawford also
also testified
testified that
that the
the information
information came
came out
out “in
“in conversation[,]”
conversation[,]” and
and
that
just told
that Wilson
Wilson just
told him
him things.
things.
131
13! Creel
Creel v.
v. Johnson,
Johnson, 162
162 F.3d
F.3d 385,
385, 392
392 (5th
(5th Cir.
Cir. 1998).
1998).
132
Davis, 916
182 Thompson
Thompson v.
v. Davis,
916 F.3d
F.3d 444,
444, 454
454 (5th
(5th Cir.
Cir. 2019).
2019).
133
183 United
United States
States v.
v. Carrillo,
Carrillo, 660
660 F.3d
F.3d 914,
914, 926-27
926-27 (5th
(5th Cir.
Cir. 2011)
2011) (citation
(citation omitted).
omitted).
134
Pleitez, 876
84 United
United States
States v.
v. Pleitez,
876 F.3d
F.3d 150,
150, 157
157 (5th
(5th Cir.
Cir. 2017).
2017).
135
Massiah, 377
135 Massiah,
377 U.S.
U.S. at
at 206.
206.
136
Henry, 447
136 United
United States
States v.
v. Henry,
447 U.S.
U.S. 264,
264, 270-75
270-75 (1980).
(1980).
137
Kuhlmann v.
87 Kuhlmann
v. Wilson,
Wilson, 477
477 U.S.
U.S. 436,
436, 456
456 (1986).
(1986).
41
41
Age,
Appendix 41a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 42
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
To
Massiah violation
To establish
establish aa Massiah
violation aa defendant
defendant must
must show:
show: “(1)
“(1) aa Sixth
Sixth
Amendment
Amendment right
right to
to counsel
counsel has
has attached;
attached; (2)
(2) an
an individual
individual seeking
seeking the
the
information
information was
was aa government
government agent
agent acting
acting without
without the
the defendant’s
defendant’s counsel
counsel
being
being present;
present; and
and (3)
(3) that
that the
the agent
agent deliberately
deliberately elicited
elicited incriminating
incriminating
statements
statements from
from the
the defendant.”
defendant.”138
%% Specific
Specific to
to jailhouse
jailhouse informants,
informants, the
the
defendant
defendant must
must show:
show: “the
“the informant:
informant: (1)
(1) was
was promised,
promised, reasonably
reasonably led
led to
to
believe
benefit in
believe [that
[that he
he would
would receive],
receive], or
or actually
actually received
received aa benefit
in exchange
exchange for
for
soliciting
soliciting information
information from
from the
the defendant,
defendant, and
and (2)
(2) acted
acted pursuant
pursuant to
to
instruction
instruction from
from the
the State,
State, or
or otherwise
otherwise submitted
submitted to
to the
the State’s
State’s control.”
control.” 139
Acting
Acting “in
“in the
the hopes
hopes of”
of” receiving
receiving aa benefit
benefit is
is insufficient
insufficient to
to establish
establish
aa Massiah
Massiah violation;
violation; affirmative
affirmative enticement
enticement from
from the
the Government,
Government, however,
however,
140 Timing is critical for determining whether
does
does establish
establish such
such aa violation.
violation.!*°
Timing is critical for determining whether
the
the Government
Government is
is controlling
controlling and
and steering
steering the
the conversation.
conversation.'*141 “The
“The Sixth
Sixth
Amendment
Amendment is
is not
not violated
violated whenever—by
whenever—by luck
luck or
or happenstance—the
happenstance—the State
State
obtains
obtains incriminating
incriminating statements
statements from
from the
the accused
accused after
after the
the right
right to
to counsel
counsel
be an
has
has attached.”
attached.”142
!*? Crucially,
Crucially, “an
“an informant
informant cannot
cannot be
an agent
agent of
of the
the State
State
143
without the
without
the State’s
State’s knowledge
knowledge or
or consent.”
consent.” !*
_____________________
138
88 Thompson,
Thompson, 941
941 F.3d
F.3d at
at 816
816 (5th
(5th Cir.
Cir. 2019).
2019).
139
139 Ta.
Id.
140
Bates, 850
1% United
United States
States v.
v. Bates,
850 F.3d
F.3d 807
807 (5th
(5th Cir.
Cir. 2017).
2017).
141
Fields, 761
Fields, the
141 See,
See, e.g.,
e.g., United
United States
States v.
v. Fields,
761 F.3d
F.3d 443,
443, 478
478 (5th
(5th Cir.
Cir. 2014).
2014). In
In Fields,
the
informant
informant in
in question
question pumped
pumped as
as much
much information
information out
out of
of the
the target
target as
as he
he could
could to
to pass
pass
that
Id. The
that information
information on
on to
to the
the State.
State. Jd.
The fact
fact that
that Fields
Fields had
had been
been aa government
government informant
informant
previously
Massiah. Id.
Id. See
previously did
did not
not tilt
tilt the
the scales
scales of
of the
the Court’s
Court’s analysis
analysis under
under Massiah.
See also,
also, United
United
States
States v.
v. Cutno,
Cutno, 431
431 Fed.
Fed. App’x.
App’x. 275,
275, 280
280 (5th
(5th Cir.
Cir. 2011)
2011) (emphasizing
(emphasizing the
the district
district court’s
court’s
finding
finding of
of no
no evidence
evidence related
related to
to the
the informant
informant “acting
“acting at
at the
the Government’s
Government’s behest
behest at
at the
the
time”
time” of
of the
the confession).
confession).
142
Maine v.
Moulton, 474
1 Maine
v. Moulton,
474 U.S.
U.S. 159,
159, 176
176 (1985).
(1985).
143
Karl Rove
Rove &
3 Thompson,
Thompson, 941
941 F.3d
F.3d at
at 816.
816. The
The Court
Court in
in Thompson
Thompson cites
cites to
to Karl
& Co.
Co. v.
v.
Thornburgh,
39
F.3d
1273,
1296
(5th
Cir.
1994)
(“As
in
the
formation
of
any
contract,
Thornburgh, 39 F.3d 1273, 1296 (5th Cir. 1994) (“As in the formation of any contract,
consent
consent of
of both
both parties
parties is
is necessary
necessary to
to establish
establish an
an agency
agency relationship.”).
relationship.” ). In
In Thompson,
Thompson, the
the
42
42
Age,
Appendix 42a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 43
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
When
When Crawford
Crawford first
first met
met with
with the
the special
special agent
agent and
and AUSA
AUSA inin this
this
case,
been friends
year, and
case, Crawford
Crawford had
had been
friends with
with Wilson
Wilson for
for well
well over
over aa year,
and
volunteered
volunteered information
information concerning
concerning Wilson’s
Wilson’s involvement
involvement in
in the
the murdermurderfor-hire
for-hire plot.
plot. Crawford
Crawford testified
testified that,
that, prior
prior to
to this
this meeting,
meeting, no
no one
one from
from the
the
Prosecution
Prosecution had
had reached
reached out
out to
to him
him about
about Wilson
Wilson or
or any
any of
of the
the particulars
particulars of
of
this
this case.
case. The
The second
second time
time Crawford
Crawford met
met with
with the
the Prosecution
Prosecution for
for this
this case—
case—
aa week
but had
week later—he
later—he testified
testified that
that he
he “didn’t
“didn’t deliberately
deliberately get
get it[,]”
it[,]” but
had new
new
information,
information, such
such as
as Wilson’s
Wilson’s son’s
son’s name.
name.
Defendants
Defendants cite
cite to
to Crawford
Crawford on
on cross-examination,
cross-examination, particularly
particularly his
his
statements
statements that
that after
after his
his sentencing,
sentencing, his
his lawyer
lawyer told
told him
him that
that the
the Prosecution
Prosecution
had
had said
said that
that they
they would
would always
always be
be amenable
amenable to
to information,
information, and
and that
that
144 But evidence of previous
Crawford
back to
Crawford could
could always
always come
come back
to them.
them.'**
But evidence of previous
cooperation,
cooperation, as
as well
well as
as the
the hope
hope of
of aa future
future benefit,
benefit, is
is not
not enough
enough to
to qualify
qualify
145 Defendants cite to two
Crawford
Crawford as
as aa long-running
long-running government
government agent.
agent.'**
Defendants cite to two
sister-circuit
sister-circuit decisions
decisions to
to support
support their
their contention
contention that
that Crawford
Crawford was
was an
an
146
agent,
agent, despite
despite the
the lack
lack of
of any
any kind
kind of
of formal
formal agreement
agreement or
or active
active direction.
direction.1*°
_____________________
contact
contact with
with the
the Government
Government occurred
occurred after
after the
the information
information had
had been
been solicited.
solicited. 941
941 F.3d
F.3d
at
at 817.
817.
144
Conditional
Conditional language,
language, such
such as
as could—and
could—and not
not should
should or
or must—imply
must—imply aa choice
choice
rather
rather than
than an
an inexorable
inexorable command
command for
for Crawford.
Crawford.
145
145 See
See Thompson,
Thompson, 941
941 F.3d
F.3d at
at 817.
817.
146
146 See
See United
United State
State v.
v. York,
York, 933
933 F.2d
F.2d 1343,
1343, 1356-57
1356-57 (7th
(7th Cir.
Cir. 1991)
1991) (holding
(holding that
that aa
“prearrangement”
“prearrangement” makes
makes the
the person
person in
in question
question aa government
government agent);
agent); United
United States
States v.
v.
Sampol,
636
F.2d
621,
638
(D.C.
Cir.
1980).
The
lack
of
Fifth
Circuit
caselaw,
as
well
as
the
Sampol, 636 F.2d 621, 638 (D.C. Cir. 1980). The lack of Fifth Circuit caselaw, as well as the
presence
presence of
of the
the Thompson
Thompson two-prong
two-prong standard,
standard, rebuts
rebuts these
these cases.
cases. Previous
Previous work
work as
as an
an
informant,
well as
informant, as
as well
as the
the fact
fact that
that Crawford—not
Crawford—not the
the Prosecution—selected
Prosecution—selected Wilson
Wilson as
as
someone
to
testify
against
cuts
against
Defendants’
case.
The
simple
fact
that
Crawford
someone to testify against cuts against Defendants’ case. The simple fact that Crawford
had
was acting
had testimony
testimony the
the Prosecution
Prosecution wanted
wanted to
to use
use does
does not
not mean
mean that
that Crawford
Crawford was
acting as
as
an
an agent.
agent. The
The absence
absence of
of aa continuous,
continuous, established,
established, and
and consistent
consistent quid
quid pro
pro quo
quo type
type of
of
relationship
was “prearranged”
relationship corrodes
corrodes the
the conclusion
conclusion that
that it
it was
“prearranged” that
that he
he would
would automatically
automatically
inform
on
anyone
and
everyone.
In
fact,
informing
in
prison
poses
its
own
set
inform on anyone and everyone. In fact, informing in prison poses its own set of
of dangers
dangers
and
and drawbacks,
drawbacks, something
something Defendants
Defendants do
do not
not acknowledge.
acknowledge. Citing
Citing the
the relationship
relationship as
as
43
43
Age,
Appendix 43a
Age, III
Ill Cert
Cert Petition
Petition Appendix
Case: 22-30656
Document: 298-1
Page: 44
Date Filed: 04/25/2025
No.
No. 22-30656
22-30656
In
In addition,
addition, no
no affirmative
affirmative language
language was
was used
used in
in any
any of
of the
the communications
communications
with the
with
the Prosecution
Prosecution following
following and
and during
during his
his sentencing
sentencing that
that would
would qualify
qualify
as
as “affirmative
“affirmative enticement”—simply
enticement” —simply stating
stating Crawford
Crawford knew
knew he
he could
could
inform
inform on
on people,
people, and
and leaving
leaving the
the door
door open
open to
to future
future instances,
instances, is
is not
not
affirmative
but rather
affirmative enticement,
enticement, but
rather “hopes”
“hopes” of
of leniency.
leniency. We
We find
find that
that
147
Crawford
was not
Crawford was
not acting
acting pursuant
pursuant to
to State
State action
action or
or under
under State
State control.
control.1*”
Under
be promised,
Under Thompson,
Thompson, Crawford
Crawford would
would have
have to
to (a)
(a) be
promised, (b)
(b) be
be
reasonably
reasonably led
led to
to believe
believe that
that he
he would
would receive,
receive, or
or (c)
(c) actually
actually receive
receive aa
benefit in
benefit
in exchange
exchange for
for soliciting
soliciting information
information from
from the
the defendant
defendant (here,
(here,
148 First, there was no promise of a benefit from either the sentencing
Wilson).
Wilson).1**
First, there was no promise of a benefit from either the sentencing
judge
judge or
or the
the AUSA.
AUSA."?149 Second,
Second, he
he could
could not
not have
have been
been “reasonably
“reasonably led
led to
to
believe”
believe” he
he would
would receive
receive leniency
leniency when
when in
in multiple
multiple instances
instances past
past leniency
leniency
was
was denied
denied or
or much
much less
less than
than desired.
desired. The
The possibility
possibility of
of aa sentence
sentence reduction
reduction
was
was present,
present, but
but those
those well-acquainted
well-acquainted with
with the
the prison
prison system
system know
know of
of the
the
_____________________
“symbiotic”
“symbiotic” under
under other
other Circuit’s
Circuit’s precedent
precedent does
does not
not defeat
defeat the
the presence
presence of
of adverse
adverse and
and
controlling
controlling caselaw
caselaw from
from this
this Court.
Court.
147
‘7 The
The plea
plea agreement
agreement that
that Crawford
Crawford signed
signed with
with the
the Government
Government included
included
portions
breaking
portions about
about Crawford
Crawford “immediately
“immediately advis[ing]”
advis[ing]” the
the Government
Government of
of someone
someone breaking
the
before
the law,
law, submitting
submitting to
to Government
Government interviews
interviews whenever
whenever requested,
requested, and
and appearing
appearing before
any
grand
juries
or
juries
to
testify.
While
violation
of
the
plea
agreement
could
result
any grand juries or juries to testify. While violation of the plea agreement could result in
in
adverse
past
adverse consequences,
consequences, no
no part
part of
of this
this agreement
agreement states
states that
that Crawford
Crawford had
had to
to inform
inform of
of past
law-breaking—which
what is
law-breaking—which is
is precisely
precisely what
is at
at issue
issue in
in this
this appeal.
appeal. Submitting
Submitting to
to interviews
interviews
and
and testifying
testifying does
does not
not establish
establish aa per
per se
se principal-agent
principal-agent relationship,
relationship, and
and telling
telling the
the
Government
of
current
lawbreaking
does
not
implicate
informing
on
fellow
inmates
for
past
Government of current lawbreaking does not implicate informing on fellow inmates for past
transgressions.
benefits
transgressions. In
In addition,
addition, the
the plea
plea agreement
agreement does
does not
not establish
establish an
an exchange
exchange of
of benefits
between the
between
the Government
Government and
and Crawford
Crawford for
for agreeing
agreeing to
to this.
this.
148
“8 Thompson,
Thompson, 941
941 F.3d
F.3d at
at 816
816 (5th
(5th Cir.
Cir. 2019).
2019).
149
Defendants
judge
Defendants cite
cite t
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