Petition for Writ of Certiorari — Louis Age, Jr. and Ronald Wilson, Petitioners v. United States

Supreme Court briefAug 28, 2025

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No. ________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________

LOUIS AGE JR. & RONALD WILSON,

Petitioners,

UNITED STATES OF AMERICA, Respondent.

__________________________________________________

ON WRIT OF CERTIORARI TO THE

FIFTH CIRCUIT COURT OF APPEALS

__________________________________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CHRISTOPHER J. MURELL*

MURELL LAW FIRM

2831 St. Claude Ave.

New Orleans, Louisiana 70117

Tel: (504) 717-1297

Fax: (504) 233-6691

Email: chris@murell.law

Counsel for Ronald Wilson, Jr.

RICHARD BOURKE

Louisiana Capital Assistance Center

636 Baronne Street

New Orleans, LA 70113

Telephone: (504) 558-9867

Facsimile: (504) 558-0378

Email: rbourke@thejusticecenter.org

Counsel for Louis Age, Jr.

* Counsel of Record

APPENDIX A

United States v. Age

United States Court of Appeals for the Fifth Circuit

April 25, 2025, Filed

No. 22-30656

Reporter

136 F.4th 193 *; 2025 U.S. App. LEXIS 9947 **; 2025 LX 26715; 2025 WL 1201973

UNITED STATES OF AMERICA, Plaintiff—Appellee, versus LOUIS AGE, JR.; STANTON GUILLORY;

LOUIS AGE, III; RONALD WILSON, JR., Defendants—Appellants.

Subsequent History: Rehearing denied by, En banc, Rehearing denied by United States v. Age, 2025

U.S. App. LEXIS 13264 (May 30, 2025)

Prior History: [**1] Appeals from the United States District Court for the Eastern District of Louisiana.

USDC No. 2:16-CR-32-2.

United States v. Age, 2022 U.S. Dist. LEXIS 163631, 2022 WL 4132500 (E.D. La., Sept. 12, 2022)

Counsel: For United States of America, Plaintiff - Appellee: Jeffrey Ryan McLaren, Assistant U.S.

Attorney, U.S. Attorney's Office, Washington, DC; Kevin G. Boitmann, Assistant U.S. Attorney, David Earl

Haller, Assistant U.S. Attorney, U.S. Attorney's Office, New Orleans, LA.

For Louis Age, Jr., Defendant - Appellant: Richard John Bourke, Louisiana Capital Assistance Center,

New Orleans, LA.

For Stanton Guillory, also known as: Na Na Guillory, Defendant - Appellant: Kerry P. Cuccia, Attorney,

New Orleans, LA; Alysson Leigh Mills, New Orleans, LA.

For Louis Age, III, also known as: Big Lou Age:, Defendant - Appellant Autumn Alycia Town, Law Office

of Autumn Town, New Orleans, LA.

For Ronald Wilson, Jr., also known as: Tank Wilson, Defendant - Appellant: Christopher James Murell,

Murell Law Firm, New Orleans, LA.

Judges: Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.*

Opinion by: PATRICK E. HIGGINBOTHAM

Opinion

[*211] PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendants Louis Age Jr., Louis Age III, Stanton Guillory, and Ronald Wilson were convicted and each

sentenced to terms of life imprisonment for their involvement in [**2] the murder-for-hire of Milton

* Judge Haynes concurs in the judgment only.

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136 F.4th 193, *211; 2025 U.S. App. LEXIS 9947, **2

Womack, a federal witness in a healthcare fraud case. Defendants collectively raise ten issues on

appeal. Finding no error of the district court, we AFFIRM.

The history of this case began with an earlier healthcare fraud case in the Middle District of Louisiana. In

August 2011, a federal grand jury charged Louis Age Jr. ("Age Jr."), Ayanna Age ("Ayanna"), Milton

Womack, and others with conspiracy to commit healthcare fraud, conspiracy to receive and pay

healthcare kickbacks, and making false statements to receive payments from Medicare.

Age Jr. owned South Louisiana Home Healthcare Agency ("South Louisiana"). His daughter, Ayanna,

helped him run the business. Though Age Jr.'s son, Louis Age III ("Age III"), did not work for the

company, he was on the payroll. South Louisiana paid illegal kickbacks for patient referrals, and Womack

was a recruiter who received illegal kickbacks. And in a separate venture, Womack and Age III burned

down a New Orleans school owned by Age Jr. as part of an insurance fraud scheme.

As Womack knew about the healthcare fraud at South Louisiana and the burning of the New Orleans

school, Age Jr. became concerned about Womack's [**3] inclusion in the healthcare fraud indictment. So

Age Jr. hired Hilliard Fazande to represent Womack in the healthcare fraud case. Through Fazande, Age

Jr. gave Womack cash payments to "be quiet and to cooperate with Fazande and [Age Jr.]." Then in

December 2011 and again in March 2012, Womack contacted defense attorney Michael Fiser because

"he was not comfortable with his present attorney Mr. Fazande" and wanted his "own lawyer." Following

a Garcia1 hearing, the court appointed Fiser to replace Fazande as Womack's attorney. Womack met

with Fiser and told him that he wanted to speak to the Prosecution. Soon thereafter, Fiser negotiated a

plea agreement for Womack. The district court set a rearraignment date, with an electronic notification

sent to all parties involved—including Age Jr.— [*212] scheduling Womack's rearraignment for the

following week.

As it became clear to Age Jr. that Womack might indeed become a government witness in the healthcare

fraud case, he decided at a meeting with Ayanna and her then-husband, Kendrick Johnson, to kill

Womack. Johnson, Age III, and Wilson, a friend of Age III, set out to find Womack's whereabouts in New

Orleans, while [**4] Age III searched for a hired gun.

In July 2012, at a repass gathering in New Orleans, Age III, Wilson, and members of the Young Mafia

Fellaz ("YMF") gang Stanton Guillory, Raheem Jackson and Brian Marigny were present. The YMF

members knew Age III and Wilson through a New Orleans "chop shop" that sold stolen car parts and

facilitated insurance fraud by intentionally wrecking cars and filing insurance claims. At the repass, Age

III was overheard telling Wilson that "he got to kill some n*gg* he about to get ready to go to court." Age

1 United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259,

263, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). If a defendant chooses to proceed with representation by counsel who has a

conflict of interest, a district court must conduct a "Garcia" hearing to ensure a valid waiver by the defendant of his Sixth

Amendment right. Garcia, 517 F.2d at 278.

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136 F.4th 193, *212; 2025 U.S. App. LEXIS 9947, **4

III was also seen conversing with Guillory. Following that conversation, Guillory told Jackson that Age III

would pay Guillory $5,000 to murder Womack. Guillory did not have his own cell phone, so he added Age

III's number to both Jackson's and Marigny's phones.

Guillory, Jackson, and Marigny then began searching for Womack in the Gentilly neighborhood of New

Orleans, as Age III had told them Womack was staying there at Conteryl Nicholas's—his girlfriend—

house. On July 27, 2012, after spotting Womack, Guillory and the other YMF members shot and killed

him. Guillory used a Glock Model 23 firearm that he and Jackson had stolen, and a red Chevrolet Monte

Carlo [**5] that they had carjacked, to commit the murder.

Age III, however, failed to pay Guillory the full $5,000. In the days after the murder, Guillory called Age III

multiple times a day for the remainder of the money. On August 1, 2012, Guillory was arrested after a

high-speed chase in the same red Monte Carlo used to murder Womack.

At around the time that Womack was murdered, Ayanna retained bankruptcy attorney Sharry Sandler to

represent her in the healthcare fraud case. During meetings involving Sandler, Ayanna, and other

members of the defense team—including Fazande—Ayanna was pressured to lie. Sandler

recommended that Ayanna plead guilty, Ayanna complied, and she began cooperating with the

Prosecution in the healthcare fraud case.

Age Jr. learned of Ayanna's plea and cooperation with the Prosecution, and became "extremely upset"

with her. Age III told Ayanna that she was "dead" to the family, and Johnson told her that she could not

come back to the family house. And Age Jr. sued Ayanna to take back rental properties that he had given

to her, and unsuccessfully tried to initiate a criminal case against her for embezzlement.

Ayanna testified against Age Jr. in the healthcare fraud case. [**6] 2 Age Jr. was convicted, and this

Court affirmed his 2015 convictions.3

In August 2017, a federal grand jury in the Eastern District of Louisiana returned an 11-count indictment

charging Age Jr., [*213] Age III, Guillory, and Wilson with multiple counts of obstructing justice in the

healthcare fraud case, including the murder of Womack.4 In April 2022, a jury convicted the Defendants

on all counts, but acquitted Age III of conspiracy to retaliate against Ayanna.

The district court sentenced each defendant to at least one term of life imprisonment. In October 2022,

the Defendants timely appealed their convictions and sentences, raising ten issues. None persuade.

II.

We turn first to the sufficiency of the evidence supporting the convictions.5

2 Because the first trial resulted in a mistrial, there were two trials in that case. Ayanna testified in both.

3 United States v. Age, 614 F. App'x 141, 146 (5th Cir. 2015) (unpub.).

4 The indictment also charged Johnson. He pleaded guilty in February 2022, and is not a party in this appeal.

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This Court reviews preserved challenges to the sufficiency of the evidence de novo,6 reviewing "the

record to determine whether, considering the evidence and all reasonable inferences in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt."7 "The jury retains the sole authority to weigh any conflicting evidence

and to evaluate the credibility of the [**7] witnesses."8 And where Defendants fail to preserve their

sufficiency of the evidence challenges, this Court reviews for plain error, that is "only if there is a

'manifest miscarriage of justice[,]'"9 which "exists only if the record is devoid of evidence pointing to guilt,

or . . . because the evidence on a key element of the offense is so tenuous that a conviction would be

shocking."10

A rational juror could find beyond a reasonable doubt that Age III joined a conspiracy to commit murderfor-hire (Count 1) and committed murder-for-hire (Count 2).11 As Age III did not challenge these counts at

trial, this Court applies plain-error review.

To prove a conspiracy to commit murder-for-hire, the prosecution must [*214] demonstrate: (1) an

agreement by two or more persons to commit murder-for-hire; (2) the defendant's knowing and voluntary

participation in the agreement; and (3) an overt act committed by any one of the conspirators in

furtherance of the conspiratorial objective.12 And for the substantive offense of murder-for-hire, the

Prosecution must show that the defendant has: (1) used or caused another person to use any facility of

5 Age

Jr. and Wilson do not raise sufficiency challenges in their briefs. Though the defendants have adopted each other's

arguments under FED. R. APP. P. 28(i), sufficiency of the evidence challenges are fact-specific and thus cannot be adopted. See

United States v. Solis, 299 F.3d 420, 444 n.70 (5th Cir. 2002). Age Jr.'s and Wilson's failures to brief sufficiency of the evidence

means that they have waived the issue. See also, United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) ("Failure of an

appellant to properly argue or present issues in an appellate brief renders those issues abandoned."). Because Age III and

Guillory challenge multiple convictions, we address the counts in groups based on the relevant underlying conduct.

6 United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017).

7 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc) (citation omitted).

8 Gibson, 875 F.3d at 185 (cleaned up).

9 United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quoting United States v. Pierre, 958 F.2d 1304, 1311

(5th Cir. 1992) (en banc)) (emphasis in original). See also, Fed. R. Crim. P. 52(b).

10 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (cleaned up).

11 Count One charged Age III and Guillory with conspiracy to commit murder-for-hire in violation of 18 U.S.C. § 1958. Count Two

charged Age III and Guillory with the substantive offense of murder-for-hire in violation of 18 U.S.C. §§ 1958, 2.

12 United States v. Walker, 596 F. App'x 302, 309-10 (5th Cir. 2015) (unpub.). See also 18 U.S.C. § 1958.

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136 F.4th 193, *214; 2025 U.S. App. LEXIS 9947, **7

interstate commerce; (2) "with intent that a murder be committed [**8] in violation of the laws of any

State or the United States"; (3) "as consideration for the receipt of . . . anything of pecuniary value[.]"13

To prove the murder-for-hire conspiracy, the Prosecution presented multiple witnesses. Jackson testified

that in mid-July 2012, Age III and Guillory negotiated the hit on Womack. Marigny testified that Age III

and Guillory—following their initial conversation about the murder—spoke on the phone multiple times a

day to coordinate the murder-for-hire, that Age III and Wilson showed Guillory and the other YMF

members Nicholas' house on Verbena Street where Womack often stayed "a day or two" before the

murder, and that Age III provided a description of Womack to Guillory.

Turning to the substantive offense, both Jackson and Marigny testified that they saw Guillory use the

stolen Glock to murder Womack. Jackson added that Guillory and the YMF members were compensated

with money and other benefits by Age III and Wilson while they were searching for Womack; that after

the murder, Age III paid Guillory, albeit less than he had originally promised; and that Guillory attempted

to call Age III "every day all day" to get the rest of the money. The Prosecution [**9] corroborated this

evidence with a recorded jail cell phone conversation between Buddy Lewis—a YMF gang member—and

Guillory, in which Lewis told Guillory that Age III owed Guillory money for the hit.14

In sum, viewed in the light most favorable to the verdict, the trial evidence was adequate to prove beyond

a reasonable doubt that Age III knowingly and voluntarily entered into a conspiracy to achieve the

unlawful purpose of murdering Womack. Multiple witnesses testified to that effect, and the Prosecution

provided circumstantial evidence to corroborate their testimony. There was no error.

We turn next to Age III and Guillory's challenges to their convictions for conspiracy to tamper with a

federal witness (Count Three),15 and the substantive [*215] offense of federal witness tampering (Count

Four).16 Age III also challenges his conviction for the substantive offense of witness tampering through

Womack's murder to prevent his testimony related to the arson of a New Orleans school (Count Five).

We find that the Prosecution gave the jury sufficient evidence to conclude beyond a reasonable doubt

that Age III and Guillory unlawfully conspired to and committed witness tampering.

13 Walker, 596 F. App'x at 309.

14 During the recorded jail cell telephone conversation, Lewis told Guillory: "Big Lou got to pay for that, man. Big Lou come and

pay for that. I got his number". At trial, Lewis testified that in this phone call, he was referring to the "money Big Lou owes Nan

.... [f]or the murder."

15 Count Three charged Age III and Guillory with conspiracy to tamper with a federal witness through Womack's murder in

violation of 18 U.S.C. §§ 1512(a)(1)(A), 1512(a)(3)(A) and 1512(k). The elements of a § 1512(k) conspiracy include: "(1) an

agreement between the defendant and at least one other person to pursue the object of the conspiracy, (2) the defendant's

knowledge of the unlawful purpose of the agreement, and (3) that an overt act was taken by one of the conspirators toward

carrying out the object of the conspiracy." United States v. Said, No. 21-10588, 2023 U.S. App. LEXIS 781, 2023 WL 167213, at

*3, *3 n.17 (5th Cir. Jan. 12, 2023) (unpub.).

16 Count Four charged Age III and Guillory with the substantive offense of witness tampering through Womack's murder to

prevent Womack's testimony in the healthcare fraud trial, in violation of 18 U.S.C. §§ 1512(a)(1)(A), 1512(a)(3)(A), and 2.

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136 F.4th 193, *215; 2025 U.S. App. LEXIS 9947, **9

The substantive offense [**10] of witness tampering criminalizes the act of killing or attempting to kill

another person, with the intent to "prevent the attendance or testimony of any person in an official

proceeding[,]"17 or to "prevent the communication by any person to a law enforcement officer or judge of

the United States of information relating to the commission or possible commission of a Federal

offense[.]"18

The Prosecution relied on direct trial testimony to establish a murder-for-hire conspiracy among Age III,

Guillory, and others to prevent Womack's testimony in the healthcare fraud case and the arson-related

insurance fraud scheme. Ayanna testified that Age III assisted Womack with the arson of the school, and

that Age Jr. had voiced concerns about Womack regarding "the arson and not just the recruiting of the

patients[.]"Ayanna also stated that after Age Jr. learned of Womack's decision to plead in the healthcare

fraud case, the decision was made to kill Womack, and that soon thereafter, Johnson and Age III set out

to find Womack.

Jackson provided testimony of Guillory's involvement in both the conspiracy and the substantive offense

of witness tampering. He testified that following Age III and Guillory's [**11] conversation at the repass

gathering, Guillory told Jackson that Age III wanted him "to kill somebody for him." Lewis' testimony

provided additional support for Guillory's knowledge that Womack was a federal witness: he stated that

when Guillory told Lewis that "he was going to take the hit" for Age III, Lewis cautioned him against killing

a federal witness, but Guillory brushed Lewis' concerns off.

As Guillory preserved his challenges to Counts Three and Four, we review his claims de novo and find

sufficient evidence in the record to support the jury's verdict.19 Testimony from the YMF members

establish that Guillory knew Womack was a federal witness and plotted to kill Womack to prevent his

testimony in the healthcare fraud trial.

We review Age III's claims as to Counts Three, Four and Five for plain error as he failed to preserve the

claims at trial. Age III raises two arguments to support his challenge. Neither is convincing. First, Age III

argues that his conviction under Count Three is invalid because the jury verdict failed to specify the basis

for their conviction. The Prosecution's indictment charged defendants with conspiring [*216] to kill

Womack under two theories of guilt: (1) [**12] to prevent Womack from testifying in the healthcare fraud

trial, and (2) to prevent Womack from providing information related to the arson to law enforcement

officials. Age III argues that the jury should have been asked to make clear its theory of guilt.

This Court, however, has upheld the use of similar jury verdict forms in cases where the jury was given

sufficient instructions to guard against a non-unanimous verdict.20 The unanimity jury instructions here

did not meaningfully differ from the instructions this Court has approved and are sufficient.21

17 18 U.S.C. § 1512(a)(1)(A).

18 Id. at § 1512(a)(1)(C).

19 Gibson, 875 F.3d at 185.

20 See, e.g., United States v. Mauskar, 557 F.3d 219, 226-27 (5th Cir. 2009).

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136 F.4th 193, *216; 2025 U.S. App. LEXIS 9947, **12

Second, Age III argues that the Prosecution did not establish that Womack died. But this claim is

undermined by a trove of evidence presented by the Prosecution at trial, including eyewitness testimony

from Jackson and Marigny, and testimony from the Prosecution's lead homicide detective that he

attended Womack's autopsy and observed that Womack had suffered gunshot wounds to the head and

shoulders.

Under a plain-error standard of review, the evidence supporting Age III's convictions for Counts Three,

Four, and Five were sufficient.

Age III and Guillory also challenge their convictions for conspiracy to commit witness [**13] retaliation

(Count Six) and for the substantive offense of witness retaliation (Count Seven).22

A defendant is guilty of retaliating against a witness if he "kills or attempts to kill another person with

intent to retaliate against any person for . . . providing to a law enforcement officer any information

relating to the commission or possible commission of a Federal offense[.]"23 A defendant who conspires

to commit the offense of retaliation "shall be subject to the same penalties as those prescribed for the

offense the commission of which was the object of the conspiracy."24 And, "under 18 U.S.C. § 1513, the

Government need not establish an intent to carry out the threat; the only intent required is an intent to

retaliate."25

[*217] Here, to establish context, the Prosecution brought evidence of tense conversations between

Womack and Age Jr. regarding the healthcare fraud case. Fiser testified that following Womack's Garcia

hearing, Womack told Fiser that he had a "very heated exchange" with Age Jr. Both Nicholas and

Ayanna testified that they overheard phone conversations between Womack and Age Jr., including

Womack telling Age Jr. that he was not going to take a "f'ing charge." Fiser and James Gray, Age [**14]

Jr.'s attorney in the healthcare fraud case, also testified that Womack was murdered just two days after

an electronic notification for his rearraignment was sent to all parties in the healthcare fraud case.

21 Compare the district court's unanimity instructions ("You will note that the indictment charges the defendants with conspiring to

kill Womack with two different intentions. The Government does not have to prove both of these for you to return a guilty verdict

on this count. Proof beyond a reasonable doubt on one is enough. But in order to return a guilty verdict, all of you must agree

that the same one has been proved. All of you must be in agreement that the Government proved beyond a reasonable doubt

that the defendants conspired to kill Womack with an intent to prevent Womack from attending or testifying in the healthcare

fraud trial in the Middle District of Louisiana, or all of you must agree that the Government proved beyond a reasonable doubt

that the defendants conspired to kill Womack to prevent Womack from communicating to law enforcement about the use of fire

to commit mail fraud."), with Mauskar, 557 F.3d at 226-27.

22 Count Six charged Age III and Guillory with the conspiracy to retaliate against Womack for providing information to a law

enforcement officer, in violation of 18 U.S.C. §§ 1513(a)(1)(B), 1513(a)(2)(A), and 1513(f). Count Seven charged Age III and

Guillory with substantive retaliation against Womack, in violation of 18 U.S.C. §§ 1513(a)(1)(B), 1513(a)(2)(A), and 2.

23 18 U.S.C. § 1513(a)(1)(B).

24 Id. at § 1513(f).

25 United States v. Maggitt, 784 F.2d 590, 593-94 (5th Cir. 1986) (citation omitted).

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As for Age III and Guillory's involvement, the Prosecution relied on its evidence for Counts Three, Four,

and Five as proof that Age III hired Guillory to kill Womack because Womack agreed to cooperate in the

healthcare fraud case.

As to Guillory's preserved claims under Counts Six and Seven, we are persuaded that there was

sufficient evidence in the record to support the jury's verdict. That Womack was a federal witness and

was allegedly murdered because of his decision to cooperate in the healthcare fraud case is sufficient

evidence of retaliation; a reasonable juror could find that Guillory conspired to retaliate—and did

retaliate—against Womack.

We also find no plain error in Age III's convictions.26 The Prosecution provided sufficient evidence to

prove that Age III hired and paid Guillory to kill Womack, and thus that Age III was a part of the

conspiracy and substantive offense of witness retaliation against Womack.

Age III challenges his conviction for witness tampering of [**15] Womack and Ayanna (Count Eight).27

Count Eight targets obstructive conduct unrelated to Womack's murder, including cash payments and

other benefits given to Womack to prevent him from testifying in the healthcare fraud case, as well as

intimidating Ayanna.

Turning first to Ayanna, the Prosecution presented evidence—via Ayanna's own testimony—of Age Jr.'s

attempts to threaten and intimidate her when he discovered that she had agreed to cooperate against

him in the healthcare fraud trial. Such obstructive conduct included Age Jr.'s forcing Ayanna and her

daughters out of the Age family home in Slidell, Louisiana; Age Jr.'s lawsuit against Ayanna to take back

rental properties that he had previously purchased in her name; and Age Jr.'s attempt to initiate a

criminal case against her for embezzlement. Ayanna also testified as to Age III's participation, stating that

after she pleaded guilty in the healthcare fraud case, Age III told her that she was "dead" to the family

and that she was "nothing without [her] daddy." Ayanna further testified that Age III helped Age Jr. in

taking back the rental properties by delivering documents that—if signed—would return custody of the

rental properties [**16] to Age Jr.

As to Womack, the Prosecution provided evidence of Age Jr.'s payments to Womack through Fazande

"to keep him . . . quiet." [*218] Ayanna testified that Age III received payments from South Louisiana,

which were at issue in the healthcare fraud case, and that Age III had assisted Womack in burning the

school.

26 Age III failed to preserve his claims as to Counts Six and Seven at trial, and we review them for plain error. Delgado, 672 F.3d

at 328.

27 Count Eight charged Age III with conspiracy to commit witness tampering as to Womack and Ayanna, in violation of 18 U.S.C.

§§ 1512(b)(1), 1512(b)(3), and 1512(k).

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We review Age III's claims as to Ayanna de novo and affirm the jury's verdict.28 Age III argues that

"[m]erely telling someone that they are no longer in your life . . . is not evidence of retaliation[.]" We

disagree. Given the context of Ayanna's "[a]lmost inseparable[,]" "[e]xtremely close" relationship with her

father, a rational juror could infer that Age III's statement was a threat with the intent to influence

Ayanna's decision to cooperate with the Prosecution.29 And Age III's assertion that there was no specific

testimony of his knowledge of the housing lawsuits or criminal charges against Ayanna is belied by her

testimony that Age III hand-delivered documents related to the custody of the rental properties.

Reviewing Age III's claims regarding Womack for plain error,30 we are not persuaded that the jury's

verdict was a "manifest miscarriage of justice."31 Given the evidence [**17] supporting Age III's

involvement in Womack's murder and the circumstantial evidence establishing the threat that Womack's

cooperation would have posed to Age III, a rational juror could have concluded that Age III knew and

approved of Age Jr.'s payments to Womack through Fazande.

Age III next challenges his conviction under Count Eight, arguing that the verdict form failed to identify

the specific intention the jury agreed upon. Again, this claim is meritless: this Court has approved the use

of identical unanimity instructions in other cases, finding them sufficient.32

Age III next challenges his conviction for making false statements to the FBI, in violation of 18 U.S.C. §

1001 (Count Eleven). As Age III did not preserve this claim at trial, we apply a plain error standard of

review and find none.33

"To sustain a conviction under § 1001, the government must prove that [the defendant] (1) made a

statement (2) that was false (3) and material (4) knowingly and willfully and (5) that falls within agency

jurisdiction."34 "Statements are material within the meaning of § 1001 when they have the natural

tendency or capacity to deceive, affect, or influence the federal agency."35 "The standard is not whether

28 Age III preserved his Count Eight claims related to Ayanna at trial.

29 See Maggitt, 784 F.2d at 594.

30 As Age III did not preserve his Count Eight claims related to Womack at trial, we review for plain error. Delgado, 672 F.3d at

328.

31 Id. at 331 (emphasis in original) (cleaned up).

32 See Mauskar, 557 F.3d at 226-27.

33 Delgado, 672 F.3d at 328.

34 United States v. Ricard, 922 F.3d 639, 651 (5th Cir. 2019) (cleaned up).

35 United States v. Sidhu, 130 F.3d 644, 650 (5th Cir. 1997) (cleaned up).

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the false statement [**18] actually influenced . . . or . . . probably influenced [a government] decision; the

standard is whether the misrepresentation was capable of influencing the agency decision."36

[*219] The Prosecution relied on testimony from FBI case agent Chuck Williams, who interviewed Age

III and testified that Age III told him that he did not recall his own cell phone number; recognize his

grandfather's name; nor explain why the listing of his home address was on the billing records of his cell

phone number.

As with Counts Three and Eight, Age III argues that his conviction for Count Eleven should be vacated

because "the verdict form did not make any additional findings as to which statement the jury agreed

upon[.]" Age III's challenge here is unconvincing. This Court has upheld the use of similar jury verdict

forms.37 And he has failed to identify any evidence of confusion or disagreement within the jury regarding

Count Eleven.38

He also argues that "the [G]overnment has not shown that the statements [he] allegedly gave were

material" as law enforcement was already aware of the information. The standard for materiality,

however, is broad: the false statements need not have influenced a government decision; [**19] they

need only be capable of doing so.39 Here they were, as they had the ability to deceive the Government.

Age III and Guillory raise—and we reject—a final challenge to their various convictions, arguing that the

Prosecution relied primarily on uncredible witnesses whose testimony was "not adequate and sufficient

to support" their convictions. And, though Age III acknowledges that a co-conspirator's uncorroborated

testimony may sustain a conviction, he argues that the testimony at issue is "incredible."

"[A] guilty verdict may be sustained if supported only by the uncorroborated testimony of a co-conspirator

. . . unless the testimony is incredible or insubstantial on its face."40 "Testimony is incredible as a matter

of law only if it relates to facts that the witness could not possibly have observed or to events which could

not have occurred under the laws of nature."41 The witness testimony here does not reach the threshold

of "incredible": each of the witnesses had firsthand knowledge of Age III and Guillory's involvement in the

conspiracy and murder-for-hire offense.42 And "the jury decides credibility of witnesses, not the appellate

36 United States v. Richardson, 676 F.3d 491, 505 (5th Cir. 2012) (emphasis in original) (cleaned up).

37 See United States v. Creech, 408 F.3d 264, 268 (5th Cir. 2005).

38 See

United States v. Tucker, 345 F.3d 320, 336-37 (5th Cir. 2003) (finding no plain error where appellant "does not

corroborate his claim of prejudicial error with a modicum of evidence tending to show that the jury was confused or possessed

any difficulty reaching a unanimous verdict.").

39 See Richardson, 676 F.3d at 505.

40 United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994) (citations omitted).

41 Id. (citations omitted).

42 Id.

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court."43 The district court provided special jury [**20] instructions on witness credibility, instructing the

jury to weigh the testimony heard with "greater care and caution than the testimony of ordinary

witnesses." The jury nevertheless convicted Age III and Guillory on these counts.

Age III also argues that the Prosecution failed to prove that he was part of any conspiracy. He asserts

that his "association" with Age Jr.'s actions were due to family connections, and that the Prosecution

[*220] failed to prove that Age III acted on his own volition. This argument also fails. The evidence

presented by the Prosecution—including witness testimony and corroborating circumstantial evidence—

shows that Age III played an active role in Womack's murder-for-hire and witness tampering of Ayanna.

III.

Defendants also challenge the admission of certain evidence at trial, asserting errors that require a new

trial. We disagree.44

We note that: "[e]vidence of crimes, wrongs, and other bad acts is generally admissible if intrinsic to the

crimes charged. Evidence is considered intrinsic if it is an uncharged offense which arose out of the

same transaction or series of transactions as the charged offense, if it was inextricably intertwined with

the evidence regarding [**21] the charged offense, or if it is necessary to complete the story of the crime

of the trial."45 And, "where a conspiracy is charged, acts that are not alleged in the indictment may be

admissible as part of the Government's proof[,]"46 such as "evidence of acts committed pursuant to a

conspiracy and offered to prove the defendant's membership or participation in the conspiracy[.]"47

Under Fed. R. Evid. 404(b), "evidence of a crime, wrong, or other act is not admissible to prove a

person's character; however, such evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident."48

This Court applies a two-step test to determine admissibility under Rule 404(b): "First, it must be

determined that the extrinsic offense evidence is relevant to an issue other than the defendant's

character. Second, the evidence must possess probative value that is not substantially outweighed by its

undue prejudice and must meet the other requirements of [R]ule 403."49 At this second step, this Court

43 United States v. Kieffer, 991 F.3d 630, 634 (5th Cir. 2021).

44 Defendants also argue that this Court should reconsider its jurisprudence on intrinsic evidence, and join sister circuits such as

the D.C. Circuit, Third Circuit, and the Seventh Circuit in "abandoning or restricting" the definition of "intrinsic evidence".

Because we find that this Court's jurisprudence on intrinsic and extrinsic evidence is clear in deciding the outcome here, we

decline to consider this argument.

45 United States v. Gurrola, 898 F.3d 524, 536 (5th Cir. 2018) (cleaned up).

46 United States v. Watkins, 591 F.3d 780, 785 (5th Cir. 2009).

47 United States v. Garcia Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (cleaned up).

48 United States v. Juarez, 866 F.3d 622, 626-27 (5th Cir. 2017) (cleaned up).

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considers four factors: "(1) the government's need for the extrinsic evidence, (2) the similarity between

the extrinsic and charged offenses, (3) the amount [**22] of time separating the two offenses, and (4) the

court's limiting instructions."50 Error under this standard is not reversible if it "would not have substantially

influenced the jury's verdict[.]"51

The Defendants challenge the admission of evidence regarding criminal activity [*221] committed by

Guillory and other YMF members at times proximate to the time of Womack's murder. These acts

include:

• Guillory's participation in a May 2012 drive-by shootout with a rival gang, which resulted in the

murders of Shawanna Pierce and five-year-old Brianna Allen;

• Guillory's participation as a gang member in a June 2012 murder of rival gang member Jonathan

"Kruger" Lewis;

• Guillory's participation in an armed robbery with the gun that he later used against Womack;

• Guillory's armed carjacking of the red Chevrolet Monte Carlo that he drove the night of Womack's

murder;

• Guillory's participation in a July 2012 shootout wherein he fired the same gun he used to kill

Womack;

• Guillory's participation in the shooting of a rival gang member that occurred sometime after but

close in time to Womack's murder, wherein he used the same gun; and

• The YMF's general acts of violence.

Defendants specifically argue that [**23] the district court erred in admitting evidence regarding the May

2012 and June 2012 murders as the Prosecution failed to prove that the evidence bore on why Guillory

was hired for Womack's murder. Defendants assert that there was no evidence presented to suggest that

Guillory's co-defendants hired him because of the murders.

Without deciding whether the evidence regarding Guillory's participation in the May 2012 murders and

the June 2012 murder were intrinsic or extrinsic, we are persuaded that any error here was harmless.

The evidence presented at trial, as we have recounted—even without the evidence of Guillory's May and

June 2012 murders—was sufficient to convict the Defendants of all applicable counts.52 In other words,

the admitted evidence "would not have substantially influenced the jury's verdict[.]"53

49 United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (citation omitted).

50 United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (cleaned up).

51 United States v. Flores, 640 F.3d 638, 643 (5th Cir. 2011).

52 See supra II.

53 Flores, 640 F.3d at 643.

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Defendants also challenge the district court's admission of evidence relating to Guillory's other gangrelated criminal activity, arguing that such evidence should have been characterized as extrinsic

evidence, and the district court erred in deciding otherwise.54 We find no error.

The evidence of Guillory's other criminal activity establishes his involvement and role in the [**24]

murder-for-hire conspiracy. The evidence at issue provides necessary context in Guillory's obtaining the

Glock Model 23 and red Chevrolet Monte Carlo he would use to kill Womack, and his continued control

over the gun and the car after Womack's murder.55 Furthermore, evidence of the YMF's general acts of

gang violence explained why Age III and Wilson first approached the YMF for help with Womack's

murder. This evidence served to "complete the story of the crime of the trial," and was properly admitted

as intrinsic evidence.56

[*222] C.

Next, three Defendants challenge the district court's admission of evidence regarding the fraudulent

schemes committed by the Age family, including:

• Fraudulent insurance claims the Age family filed in 2005 after Womack and Age III burned the New

Orleans school; and

• The Medicare fraud at South Louisiana.57

Defendants argue that evidence related to the fraud schemes were not intrinsic to the case at hand

because "there was no immediate context of time and place."58 We find to the contrary.

The district court correctly admitted the arson-related insurance fraud evidence as intrinsic to the charged

offenses. In admitting the evidence, the district court explained that the [**25] "purpose of both the

conspiracy directed toward Womack and the one directed toward Ayanna was to prevent their adverse

testimony regarding the Defendants' past criminal acts, including [the] arson." We agree: the evidence

proving that Womack and Age III burned down the school at Age Jr.'s instructions provides additional

context, establishing groundwork for the conspiracy created.59

We also find that the district court correctly characterized the Medicare fraud evidence as intrinsic; it was

a necessary preliminary to understand the current conspiracy charges.60 As the district court observed:

"Evidence of this fraud is inextricably intertwined with the charged conspiracies for, without the fraud,

there would be no Medicare fraud prosecution, no fear on Defendants' part that their fraud or their

54 Guillory's appellate briefs focus exclusively on the May 2012 and June 2012 murders.

55 Indeed, though Wilson maintains that the evidence should have been classified as extrinsic, Wilson acknowledges that it "had

some relevance to this prosecution."

56 Gurrola, 898 F.3d at 536.

57 Guillory does not raise this in his appellate brief, nor in his reply brief.

58 Age Jr. asserts that such evidence must satisfy Rule 404(b) and "be subject to . . . an anti-propensity instruction." But because

we find that the district court properly admitted the evidence as intrinsic, we decline to address this argument.

59 Wilson argues that as to the arson-related insurance fraud, there was no evidence presented to suggest that he knew or

participated in the fraud. We find, however, that even if there were no direct evidence presented, his participation in the

conspiracy to murder Womack is enough for a reasonable juror to find that that he knew of the fraud.

60 See Gurrola, 898 F.3d at 536.

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prior criminal acts could be revealed in witness testimony, and thus no reason to silence cooperators

Ayanna and Womack."

Age Jr. asserts a distinct claim of error related to the Medicare fraud evidence, alleging that he was

prejudiced by the district court's decision to allow the Prosecution to elicit testimony that Age Jr. had

been convicted of the fraud during its cross-examination of Gray. [**26] Though the district court initially

excluded evidence of Age Jr.'s Medicare fraud conviction, it allowed the Prosecution to bring it up during

cross-examination on finding that Defendants had "opened the door" to the evidence. Age Jr. now argues

that the district court's finding was arbitrary and unfair.

We disagree. "It is well-settled in this Circuit that a defendant may not complain on appeal he was

prejudiced by evidence relating to a subject which he opened up at trial."61 Statements elicited by

defense counsel "open[] the door" if they convey an erroneous impression on [*223] the jury.62 Gray's

testimony—though not explicit—suggested Age Jr.'s innocence in the Medicare fraud case. The district

court was correct to allow the Prosecution to ask about Age Jr.'s criminal conviction and to clarify any

erroneous impression of Age Jr.'s innocence in the Medicare fraud case.63

Age III and Wilson raise additional challenges to the district court's admission of evidence related to:

• The staged automobile collisions resulting in fraudulent insurance claims that Age III and Wilson

participated in with others from the chop shop; and

• Wilson's drug-dealing, as described in the testimony of jailhouse in-formant [**27] Michael

Crawford.

Age III argues that the district court erred in admitting evidence of staged automobile collisions as it was

not necessary to prove Guillory's hire for Womack's murder. We disagree.

This Court has found evidence to be intrinsic when "it provide[s] background information necessary for a

jury to understand the structure of . . . the conspiratorial relationship between [co-defendants], and how

the conspiracy came about."64 Here, testimony from Jackson and Lewis established that the chop shop

served as a connection between the YMF, Age III, and Wilson. This evidence is intrinsic because it casts

light on the relationship of Age III, Wilson, and the YMF gang, and how they came to know each other

through the staged accidents and insurance claims—origins of the co-Defendants.

Wilson similarly argues that the district court erroneously admitted evidence related to his prior drugdealing. He asserts that Crawford's testimony was not a "necessary predicate" of the conspiracies

61 United States v. Kiekow, 872 F.3d 236, 252 (5th Cir. 2017) (cleaned up).

62 United States v. Plato, 593 F. App'x 364, 374-75 (5th Cir. 2015) (per curiam).

63 Wilson also asserts that the district court erred in admitting immeasurably prejudicial evidence as intrinsic against him without

limiting instructions. Specifically, Wilson argues that of the aforementioned evidence—such as Guillory's bad acts and the Age

family's various acts of frauds—many of them did not involve Wilson. But as discussed, much of this evidence was correctly

admitted as intrinsic and therefore did not require limiting jury instructions. To the extent that there was error, any such error was

harmless.

64 United States v. King, 684 F. App'x 451, 456 (5th Cir. 2017) (per curiam). See also United States v. Rice, 607 F.3d 133, 141

(5th Cir. 2010).

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charged because there was no evidence to suggest that the drug dealing involved other Defendants or

had temporal connectivity to the charges at hand. Though this may be true, we ultimately find that [**28]

the admission of the evidence was in any event harmless, as the remaining evidence presented at trial

was sufficient to convict him of all applicable counts.65

IV.

The district court also properly admitted evidence of historical cell site location information ("CSLI") over

Defendants' Fourth Amendment objections.

The Fourth Amendment "protects against government intrusion into areas where people have reasonable

expectations of privacy[,]" and requires the prosecution to obtain a warrant supported by probable cause

when it "seeks to intrude [*224] upon . . . private spheres."66 Though the "Fourth Amendment contains

no provision expressly precluding the use of evidence obtained in violation of its commands[,]" courts

have created the exclusionary rule, "a judicially created remedy that precludes the use of evidence

obtained from unconstitutional search or seizure[.]"67

"An exception to the exclusionary rule exists where government investigators acted with an objectively

reasonable good-faith belief that their conduct was lawful."68 Courts have applied the good-faith

exception "to evidence obtained from warrantless searches later held to be unconstitutional."69

Furthermore, the Supreme Court has held that the good-faith exception applies "where [**29] a

warrantless search is authorized by statute or binding precedent later ruled unconstitutional[.]"70

"On appeal of a motion to suppress, legal conclusions are reviewed de novo while factual findings are

reviewed for clear error[,]"71 subject to harmless error.72 The party seeking suppression "has the burden

of proving, by a preponderance of evidence, that the evidence in question was obtained in violation of his

Fourth Amendment rights."73 "Evidence is viewed in the light most favorable to the prevailing party."74

65 See Rice, 607 F.3d at 140-41.

66 United States v. Beverly, 943 F.3d 225, 232 (5th Cir. 2019) (citations omitted).

67 Id. (citation omitted).

68 Id. (citations omitted).

69 Id. at 233 (emphasis in original).

70 Id.

71 Id. at 231.

72 United States v. Garcia, 99 F.4th 253, 266-67 (5th Cir. 2024).

73 Id. at 267 (quotations and citation omitted).

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Defendants argue that the district court erred when it denied their motions to suppress evidence of

CSLI—such as such as the location of the YMF members' phones at around the time of Womack's

murder—which the Prosecution used to corroborate witness testimony. Their focus is upon the timeline

of the Prosecution's 18 U.S.C. § 2703(d) applications in this case and the evolution of the

constitutionality of warrantless compelled production under the Stored Communications Act:

• In October 2010, a magistrate judge in the Southern District of Texas held § 2703(d) orders to be

unconstitutional.75

• In November 2011, a district judge in the Southern District of Texas affirmed the magistrate judge's

order.

• In December 2011, the Prosecution filed its [**30] notice of appeal to the Fifth Circuit.

• In August 2012, the Prosecution began its § 2703(d) applications in this case.

• In July 2013, the Fifth Circuit held that § 2703(d) was constitutional even as applied to the

warrantless compelled disclosure of historical CSLI.76

[*225] • In June 2018, the Supreme Court overturned the Fifth Circuit's then-existing precedent with

Carpenter v. United States,77 which held, in relevant part, that compelled production ordered

pursuant to § 2703(d) violated the Fourth Amendment by allowing the Government to obtain CSLI

without a warrant supported by probable cause.78

The district court—over Defendants' objections—admitted the evidence because it found that the goodfaith exception applied to CSLI obtained in this case pursuant to § 2703(d) orders that were sought after

a lower court in a different district within the Fifth Circuit had found § 2703 orders to be unconstitutional,

but before the Fifth Circuit's then-binding precedent in July 2013. We agree.

Under Illinois v. Krull, reliance on a statute is objectively reasonable "unless [the] statute is clearly

unconstitutional[.]"79 At the time of the Prosecution's § 2703(d) applications, the absence of binding

precedent and the "uneven split of authority among district courts [**31] nationwide favoring

constitutionality" did not meet the threshold of "clearly unconstitutional[.]"80 Moreover, the decisions of a

74 Beverly, 943 F.3d 225 at 231 (quotations and citation omitted).

75 In re U.S. for Hist. Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013).

76 In re U.S. for Hist. Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

77 585 U.S. 296, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).

78 Id. at 316.

79 480 U.S. 340, 349, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

80 Id.

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federal district court are not controlling law for a different federal district court,81 and do not render a

statute "clearly unconstitutional."82

Defendants raise two additional arguments that are inapposite. First, they assert that the district court

erred in holding that the Defendants bore the burden of proof on this issue. Though Defendants are

correct in asserting that the Prosecution bears the burden of establishing objective good faith, this burden

is distinct from the Defendants' separate burden of proving that their Fourth Amendment rights have

been violated.83 The district court correctly held that Defendants, not the Prosecution, bear this burden.

Second, Defendants argue that collateral estoppel prevented the Prosecution's reliance on the § 2703(d)

orders. But it is well established that "nonmutual offensive collateral estoppel is not to be extended to the

United States" because "the Government is not in a position identical to that of a private litigant" in

"geographic breadth of government litigation and also ... [in] the nature of the issues the

government [**32] litigates."84 Collateral estoppel does not apply here.

Defendants further assert that the district court abused its discretion in admitting phone records under

Fed. R. Evid. 902(11) [*226] and the Confrontation Clause. Neither argument prevails.

Rule 902 characterizes certain categories of evidence as "self-authenticating", or evidence that "require

no extrinsic evidence of authenticity in order to be admitted[.]"85 This includes certified domestic records

of a regularly conducted activity, defined as: "[t]he original or a copy of a domestic record that meets the

requirements of [the business records exception under Rule 803(6)(A)-(C).]"86

The Confrontation Clause of the Sixth Amendment "prohibits admitting out-of-court statements as

evidence against defendants in a criminal case unless they can cross-examine the declarant. But that

prohibition applies only if the statements are testimonial."87

81 See, e.g., Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011).

82 Krull, 480 U.S. at 349. This reasoning also undermines Defendants' related argument that the Prosecution acted in bad faith in

failing to disclose adverse rulings in its §2703(d) applications: because the decision in the Southern District of Texas did not

constitute legal authority in the Eastern District of Louisiana, the Prosecution did not have a duty to disclose such authority to the

magistrate judges. See LA. PROF'L. CONDUCT R. 3.3(a)(2).

83 See Maggitt, 778 F.2d at 1034; Beverly, 943 F.3d at 231.

84 United States v. Mendoza, 464 U.S. 154, 158-59, 104 S. Ct. 568, 78 L. Ed. 2d 379 (1984).

85 Fed. R. Evid. 902.

86 Id. at 902(11).

87 United States v. Ayelotan, 917 F.3d 394, 403 (5th Cir. 2019), as revised (Mar. 4, 2019) (quotations and citations omitted).

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This Court assesses the "admission of evidence pursuant to Rule 902(11) under an abuse of discretion

standard[,]"88 subject to harmless error.89 "[R]eversible error occurs only when the admission of evidence

substantially affects the rights of a party."90 This Court reviews challenges based on the Confrontation

Clause de novo.91

The district court properly admitted the phone records under Rule 902(11). The phone records at issue

included affidavits [**33] stating that Sprint, T-Mobile, and Charter created and maintained the relevant

phone data as part of the ordinary course of a regularly conducted business activity. These affidavits,

from records custodians and tracking the relevant language nearly word for word, satisfy Rule 803(6)'s

requirements for admission.92 Furthermore, as Defendants concede, the Prosecution followed proper

procedures to admit the phone records.93 Finally, Defendants' argument that the Prosecution was

required to provide additional evidence to authenticate the phone records lacks merit: under this Court's

caselaw, valid Rule 902(11) certificates are sufficient for admissibility.94

The admission of the phone records also does not violate the Confrontation Clause. The phone records

here are not testimonial because they were created in the ordinary course of business, not "for the

purpose of establishing or proving some fact at trial[.]"95 And Defendants' [*227] argument that the

certificates themselves violate the Confrontation Clause is unconvincing. As the Supreme Court has

made clear, there is a distinction between a document "created for the sole purpose of providing

evidence against a defendant" and a document created to "authenticate or provide a copy of an

otherwise admissible [**34] record[.]"96 While the former is testimonial and subject to confrontation, the

latter—applicable here—is not.

VI.

Defendants argue that the district court abused its discretion when it admitted Womack's statements

under the forfeiture-by-wrongdoing exception because of its use of the "preponderance of the evidence"

standard. This argument fails.

88 United States v. Olguin, 643 F.3d 384, 390 (5th Cir. 2011).

89 Id.

90 Id. (cleaned up).

91 Id. at 391.

92 "[C]ertificates from a records custodian that track the language of Rule 803(6) nearly word for word render the records self-

authenticating." Ayelotan, 917 F.3d at 402 (cleaned up).

93 In a pretrial notice, the Prosecution specified the records it was seeking to admit under Rule 902(11), allowing defendants the

opportunity to challenge their admission.

94 See United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013).

95 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

96 Id. at 322-23 (emphasis in original).

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Prior to trial, the Prosecution filed a motion in limine to admit Womack's statements under Fed. R. Evid.

804(b)(6). Following an evidentiary hearing, the district court ruled that by the forfeiture by wrongdoing

exception to hearsay found in the Federal Rules of Evidence "all of Womack's statements on any topic

can be introduced," subject to Rule 403 and 608 objections. At trial, the Prosecution elicited testimony

from witnesses regarding things Womack had said to them.97 Defendants challenge the admission of

Womack's hearsay statements under the forfeiture by wrongdoing exception.

We review evidentiary rulings "for abuse of discretion, subject to the harmless error standard."98 "A trial

court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly

erroneous assessment of the evidence."99 Objections based in the Confrontation Clause are reviewed de

novo, subject to [**35] harmless error.100

The Confrontation Clause states that: "In all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with witnesses against him."101 "The Amendment contemplates that a witness who

makes testimonial statements admitted against a defendant will ordinarily be present at trial for crossexamination, and that if the witness is unavailable, his prior testimony will be introduced only if the

defendant had a prior opportunity to cross-examine him."102 The Confrontation Clause's goal—reliable

evidence that passes through the crucible of cross-examination—is "a procedural rather than a

substantive [*228] guarantee."103

Two exceptions exist to this constitutional guarantee; one is at issue in this case.104 The doctrine of

forfeiture by wrongdoing, allows "the introduction of statements of a witness who was 'detained' or 'kept

away' by the 'means or procurement' of the defendant[,]" and applies "only when the defendant engaged

97 Milton Womack's attorney testified that Womack told him, "I've just been living under this for so long. I'm afraid. I'm tired. I want

to get this over with, and I want some closure."

98 United States v. Hankton, 51 F.4th 578, 598 (5th Cir. 2022) (quoting Gurrola, 898 F.3d at 533 (5th Cir. 2018)). Here, this issue

was preserved on appeal, and so the plain error standard does not apply. United States v. Valas, 822 F.3d 228, 240 (5th Cir.

2016).

99 Hankton, 51 F.4th at 598 (quoting United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (internal quotation marks

omitted)).

100 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).

101 U.S. Const. amend. VI.

102 Giles v. California, 554 U.S. 353, 358, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).

103 Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

104 Giles, 554 U.S. at 358-59.

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in conduct designed to prevent the witness from testifying."105 The High Court has emphasized that,

"[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from

witnesses and victims, the Sixth Amendment does not require courts to acquiesce."106 Instead, "one who

obtains the [**36] absence of a witness by wrongdoing forfeits the constitutional right to

confrontation."107

The party seeking to admit the statement under Rule 804(b)(6) must demonstrate that Defendants

"engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the

declarant as a witness."108 For Womack's statements to be admissible, Defendants must be found to

have "ha[d] in mind the particular purpose of making the witness unavailable."109 The High Court has

reiterated that "the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially

equitable grounds."110 Thus, "one who obtains the absence of a witness by wrongdoing forfeits the

constitutional right to confrontation."111

The Supreme Court expressly did not take a position on "the standards necessary to demonstrate such

forfeiture, but federal courts using [Rule] 804(b)(6), which codified the forfeiture doctrine, have generally

held the Prosecution to the preponderance-of-the-evidence standard."112 Before the Federal Rules of

Evidence were amended, the standard in the Fifth Circuit for forfeiture by wrongdoing analyses was clear

and convincing evidence.113

Noting the ambiguity as to which [**37] standard should apply, the district court concluded that the

Prosecution met their burden under both standards. The district court considered the numerous

witnesses interviewed, the pending healthcare case, the timing of the killing with respect to Womack's

guilty plea, cellphone records, the Garcia hearing specifics, and ballistics and forensic evidence

recounted by Special Agent Williams. The district court was thorough in its investigation of the factual

[*229] landscape and inerrant in its conclusions. It did not abuse its discretion.

VII.

105 Id. at 359 (citations omitted).

106 Davis v. Washington, 547 U.S. 813, 833, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

107 Id.

108 Giles, 554 U.S. at 367 (quoting the Federal Rules of Evidence).

109 Id. (citation omitted).

110 Davis, 547 U.S. at 833 (citing Crawford, 541 U.S. at 62 (citation omitted)).

111 Id.

112 Id.

113 See United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982). One of our sister circuits—when presented with the question

of which standard to apply post-amendment—found that the Federal Rules of Evidence had abrogated Thevis. See United

States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001), cert. denied, 535 U.S. 946, 122 S. Ct. 1338, 152 L. Ed. 2d 242 (2002).

The Eleventh Circuit adopts pre-creation Fifth Circuit caselaw as their own precedent. Id.

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Defendants challenge the admission of Michael Fiser's testimony regarding attorney-client

communications with Womack. Though attorney-client privilege survives death, we find that Defendants

lack the requisite closeness for third-party standing.

Fiser represented Womack from July 6, 2012 until his death on July 27, 2012. Womack met with Fiser on

July 11, 2012 and the pair met with investigators the next day. Fiser and Womack met with investigators

one more time, on July 19. By July 25, the Prosecution and Womack had a plea agreement and

announced Womack's intention to testify for the Prosecution. Two days later, Womack was murdered.

Following Womacks' [**38] death, the Prosecution opened a grand jury investigation into Womack's

death and approached Fiser for information. Fiser raised concerns about attorney-client privilege, and the

Prosecution filed a motion to compel Fiser to disclose his communications with Womack. In January

2013, Judge James J. Brady heard the motion in camera, and at the hearing Fiser asserted the privilege

on Womack's behalf.114 Judge Brady ordered that Fiser was relieved of his attorney-client privilege and

was allowed to share information with the Prosecution.115

Defendants challenge the admission of Fiser's testimony concerning communications Fiser had with

Womack, asserting attorney-client privilege. They filed a pretrial motion in limine, and later a reply,

seeking to exclude the testimony by Fiser that contained attorney-client communications. The district

judge in this criminal case—Judge Barry W. Ashe—denied the contested motion in limine and ruled that

"any communications Womack had with Fiser in the presence of a third party, including the Prosecution,

are not privileged." The district court also determined that Fiser—not Defendants—possesses the right to

assert the privilege.

Later, in September [**39] 2022, when the district court responded to Age Jr.'s motion for a new trial, the

court denied the motion because Fiser's testimony did not implicate legal advice and the testimony was

made in the presence of third parties, thus rendering the communication unprivileged. Even if there were

privileged statements elicited at trial, the district court distinguished the Supreme Court's decision in

Swidler & Berlin v. United States on two separate grounds.116

114 See supra I(A)(1), which details Fiser's appointment as counsel.

115 The Prosecution noted that the grand jury docket was under seal in the Middle District of Louisiana, and that Judge Brady had

passed away. On March 14, 2022, however, Fiser filed a motion to unseal, and the Chief Judge of the district granted request for

copies of the records be provided to Judge Ashe for in camera inspection.

116 524 U.S. 399, 118 S. Ct. 2081, 141 L. Ed. 2d 379 (1998). In Swidler, the Court held that the attorney-client privilege survives

death but noted an exception for posthumous disclosure that "furthers the client's intent"—namely, the testamentary exception.

Id. at 405-06. It also cited a great deal of older caselaw to establish this well-worn exception as stretching back far in time, and in

caselaw. See, e.g., Glover v. Patten, 165 U.S. 394, 406-408, 17 S. Ct. 411, 41 L. Ed. 760 (1897) (holding that testamentary

disclosure was allowed because privilege could be waived to fulfill client intent).

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The district court's decision to admit Fiser's testimony at trial is reviewed [*230] for abuse of discretion

subject to harmless error review.117 The issue is whether Defendants possess the requisite third-party

standing to assert Womack's attorney-client privilege. Defendants assert that the district court should

have allowed them to raise Womack's attorney-client privilege regarding statements expressing fear of

Defendants, statements made to third parties, and statements Womack intended to disclose to law

enforcement.

"The question of standing is whether the litigant is entitled to have the court decide the merits of the

dispute or of particular issues."118 The Supreme Court has recognized limits apart from the

"minimum [**40] constitutional mandate" and that "even when the plaintiff has alleged injury sufficient to

meet the 'case or controversy' requirement, . . . the plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim on the legal rights or interests of third parties."119

Third-party standing allows a court to hear disputes where third parties assert—and thereby vindicate—

the legal rights of others. The High Court noted that third-party standing exists when three criteria are

satisfied: (1) an "injury in fact" which begets a "sufficiently concrete interest" in the outcome, (2) a close

relation to the third party, and (3) some hindrance to the third party's ability to protect his or her own

interests.120 We find that, irrespective of an injury in fact, Defendants do not possess a close relation to

Womack sufficient to assert his attorney-client privilege.121

The High Court has noted that the close relation prong is seen through the lens of whether the enjoyment

of the right "is inextricably bound up with the activity the litigant wishes to pursue[,]" and the "relationship

. . . between the litigant and the third party may be such that the former [**41] is fully, or very nearly, as

effective a proponent of the right as the latter."122 But, Womack was meeting with the Prosecution and

had agreed to testify against Defendants—whose best interests were served by not having him testify

against them in a federal criminal trial.123

[*231] Defendants both procured his absence and have attempted to "vindicate" his rights, yet also have

a keen interest in suppressing any testimony from Womack. Defendants do not have a relationship such

117 United States, 513 F.3d 194, 201 (5th Cir. 2008). See also, United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir.

2003) ("Unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is

not required.") (citation omitted).

118 Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

119 Id.

at 499-500. "Without such limitations—closely related to Art. III concerns but essentially matters of judicial selfgovernance—the courts would be called upon to decide abstract questions of wide public significance even though . . . judicial

intervention may be unnecessary to protect individual rights." Id. at 500. See also, June Med. Servs., L.L.C. v. Russo, 591 U.S.

299, 363, 140 S. Ct. 2103, 207 L. Ed. 2d 566 (2020) (Thomas, J., dissenting) (collecting prior caselaw on third-party standing).

120 Powers v. Ohio, 499 U.S. 400, 412-15, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

121 Defendants cite Powers for the contention that "there exists some hindrance to the third party's ability to protect his or her

own interests." Id. at 410-11. To be clear, the hindrance is that Womack—after he expressed the clear intent of pleading and

testifying and met with investigators—was murdered. His unlawful execution prevented him from testifying against certain

Defendants and from asserting his own attorney-client privilege. Death is the insuperable obstacle here.

122 Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976).

123 See also Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (affirming that Fourth Amendment rights are

personal rights).

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that they are able to be an effective proponent, as their goals are diametrically opposed: Womack was in

the process of testifying against Defendants. It was in their best interest that his testimony never reached

the jurors' ears.

This Court in United States v. Fortna held that co-defendants in a case where one defendant's attorneyclient privilege was violated by the Prosecution did not have standing to join the motion to quash.124

Similar to Fourth Amendment rights, "Fifth and Sixth Amendment rights . . . are personal in nature and

cannot be asserted vicariously."125 Defendants have no standing to assert Womack's privilege. Their

argument fails.

VIII.

Defendants raise a multitude of complaints concerning the jailhouse informant Michael Crawford's

adverse [**42] testimony. We deal with—and dismiss—each issue in turn.

Defendants argue that the district court erred when it allowed Crawford to testify at trial about statements

Wilson made to him while they were both incarcerated under Massiah v. United States, arguing that

Crawford was a government agent and deliberately elicited incriminating information from Wilson.126

Prior to trial, Defendants filed three motions challenging the admissibility of Michael Crawford's

testimony: one alleging that he was a Massiah informant, one asserting that out-of-court statements by

Wilson violated the other three Defendants' Confrontation Clause rights, and one arguing that Crawford's

recounting of Wilson's statements did not meet any hearsay exceptions. The district court held a two-day

evidentiary hearing and ruled that Crawford's testimony was admissible at trial.127

At the hearing, Crawford testified that he was friends with Wilson and that they would talk every night

because they were incarcerated in the same part of the prison.128 At some point, Crawford soured on

Wilson and decided to approach the Prosecution with details he had learned from Wilson. Crawford had

cooperated previously with the federal government and had received [**43] sentence reductions for

doing so.129 On January 14, 2020, Crawford urged [*232] his sister to reach out to the lead prosecutor

124 796 F.2d 724, 732-33 (5th Cir. 1986). This case was cited by the Eighth Circuit for the same rationale: "In general, the

attorney-client privilege is personal and cannot be asserted by anyone other than the client." United States v. Hatcher, 323 F.3d

666, 674 n.2 (8th Cir. 2003).

125 Fortna, 796 F.2d at 733.

126 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).

127 Special Agent Williams and Crawford both testified at the hearing.

128 The conversations range from gambling and sport, to rap, as well as life outside the prison's walls—including past criminal

activity.

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in this case, and to tell her that he had information on Wilson. When he met with the case agent and the

AUSA, Crawford was admonished by both not to ask Wilson any questions. About one week later,

Crawford met with them a second time, and between the two meetings continued talking to Wilson.

Crawford testified that he never specifically asked Wilson questions.130

We review legal determinations de novo and factual findings for clear error,131 while a claim grounded in

Massiah is subject to harmless error analysis.132 The "burden of establishing harmlessness beyond a

reasonable doubt" lies with the Prosecution.133

The Sixth Amendment's guarantee of counsel is found to apply in all criminal prosecutions—including all

"critical stages of criminal proceedings"—which covers post-indictment interrogations by government

agents.134 Massiah established that cooperating government informants can be considered

"[g]overnment agents."135 While the Supreme Court has applied Massiah to a paid jailhouse informant

who deliberately elicited incriminating statements from the defendant,136 it has rejected a Massiah

claim [**44] when a jailhouse informant listened to conversation and reported on what was said without

making efforts to stimulate conversations about the crimes in question.137

To establish a Massiah violation a defendant must show: "(1) a Sixth Amendment right to counsel has

attached; (2) an individual seeking the information was a government agent acting without the

defendant's counsel being present; and (3) that the agent deliberately elicited incriminating statements

from the defendant."138 Specific to jailhouse informants, the defendant must show: "the informant: (1)

was promised, reasonably led to believe [that he would receive], or actually received a benefit in

129 He met with an Assistant United States Attorney ("AUSA") in June 2018 from the Eastern District of Louisiana, whom he

contacted through his attorney in the hopes of providing information on another inmate. He also had a meeting with another

AUSA concerning another inmate, whom he also wanted to provide information to the Government on.

130 Crawford also testified that the information came out "in conversation[,]" and that Wilson just told him things.

131 Creel v. Johnson, 162 F.3d 385, 392 (5th Cir. 1998).

132 Thompson v. Davis, 916 F.3d 444, 454 (5th Cir. 2019).

133 United States v. Carrillo, 660 F.3d 914, 926-27 (5th Cir. 2011) (citation omitted).

134 United States v. Pleitez, 876 F.3d 150, 157 (5th Cir. 2017).

135 Massiah, 377 U.S. at 206.

136 United States v. Henry, 447 U.S. 264, 270-75, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).

137 Kuhlmann v. Wilson, 477 U.S. 436, 456, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986).

138 Thompson, 941 F.3d at 816 (5th Cir. 2019).

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exchange for soliciting information from the defendant, and (2) acted pursuant to instruction from the

State, or otherwise submitted to the State's control."139

Acting "in the hopes of" receiving a benefit is insufficient to establish a Massiah violation; affirmative

enticement from the Government, however, does establish such a violation.140 Timing is critical for

determining whether the Government is controlling and steering the conversation.141 [*233] "The Sixth

Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating

statements from the accused [**45] after the right to counsel has attached."142 Crucially, "an informant

cannot be an agent of the State without the State's knowledge or consent."143

When Crawford first met with the special agent and AUSA in this case, Crawford had been friends with

Wilson for well over a year, and volunteered information concerning Wilson's involvement in the murderfor-hire plot. Crawford testified that, prior to this meeting, no one from the Prosecution had reached out to

him about Wilson or any of the particulars of this case. The second time Crawford met with the

Prosecution for this case—a week later—he testified that he "didn't deliberately get it[,]" but had new

information, such as Wilson's son's name.

Defendants cite to Crawford on cross-examination, particularly his statements that after his sentencing,

his lawyer told him that the Prosecution had said that they would always be amenable to information, and

that Crawford could always come back to them.144 But evidence of previous cooperation, as well as the

hope of a future benefit, is not enough to qualify Crawford as a long-running government agent.145

Defendants cite to two sister-circuit decisions [**46] to support their contention that Crawford was an

agent, despite the lack of any kind of formal agreement or active direction.146 In addition, no affirmative

139 Id.

140 United States v. Bates, 850 F.3d 807 (5th Cir. 2017).

141 See, e.g., United States v. Fields, 761 F.3d 443, 478 (5th Cir. 2014). In Fields, the informant in question pumped as much

information out of the target as he could to pass that information on to the State. Id. The fact that Fields had been a government

informant previously did not tilt the scales of the Court's analysis under Massiah. Id. See also, United States v. Cutno, 431 Fed.

App'x. 275, 280 (5th Cir. 2011) (emphasizing the district court's finding of no evidence related to the informant "acting at the

Government's behest at the time" of the confession).

142 Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).

143 Thompson, 941 F.3d at 816. The Court in Thompson cites to Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1296 (5th Cir.

1994) ("As in the formation of any contract, consent of both parties is necessary to establish an agency relationship."). In

Thompson, the contact with the Government occurred after the information had been solicited. 941 F.3d at 817.

144 Conditional

language, such as could—and not should or must—imply a choice rather than an inexorable command for

Crawford.

145 See Thompson, 941 F.3d at 817.

146 See United State v. York, 933 F.2d 1343, 1356-57 (7th Cir. 1991) (holding that a "prearrangement" makes the person in

question a government agent); United States v. Sampol, 636 F.2d 621, 638, 204 U.S. App. D.C. 349 (D.C. Cir. 1980). The lack

of Fifth Circuit caselaw, as well as the presence of the Thompson two-prong standard, rebuts these cases. Previous work as an

informant, as well as the fact that Crawford—not the Prosecution—selected Wilson as someone to testify against cuts against

Defendants' case. The simple fact that Crawford had testimony the Prosecution wanted to use does not mean that Crawford was

acting as an agent. The absence of a continuous, established, and consistent quid pro quo type of relationship corrodes the

conclusion that it was "prearranged" that he would automatically inform on anyone and everyone. In fact, informing in prison

poses its own set of dangers and drawbacks, something Defendants do not acknowledge. Citing the relationship as "symbiotic"

under other Circuit's precedent does not defeat the presence of adverse and controlling caselaw from this Court.

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language was used in any of the communications with the Prosecution following and during his

sentencing that would qualify as "affirmative enticement"—simply stating Crawford knew he could inform

on people, and leaving the door open to future [*234] instances, is not affirmative enticement, but rather

"hopes" of leniency. We find that Crawford was not acting pursuant to State action or under State

control.147

Under Thompson, Crawford would have to (a) be promised, (b) be reasonably led to believe that he

would receive, or (c) actually receive a benefit in exchange for soliciting information from the defendant

(here, Wilson).148 First, there was no promise of a benefit from either the sentencing judge or the

AUSA.149 Second, he could not have been "reasonably led to believe" he would receive leniency when in

multiple instances past leniency was denied or much less than desired. The possibility of a sentence

reduction was present, but those well-acquainted with the prison system know of the risks and rewards of

becoming an informant. [**47] Finally, there was no material benefit exchanged between the Prosecution

and Crawford. In fact, there was no instruction—and only admonishments—from the Prosecution not to

elicit statements from Wilson. For the previous two years, Crawford and Wilson lived together, and "had a

friendship[.]" The district court found that the details concerning the murder-for-hire plan accumulated

over the course of Crawford's interactions with Wilson without the deployment of pointed questions, and

that Crawford "asked only the kinds of questions persons typically pose in the course of ongoing, normal

conversation."

We find no clear error. The voluminous transcript of the evidentiary hearing reveals a slow-growing

relationship between two men who lived in close quarters for a long period of time. Defendants did not

procure any evidence to the contrary: that they were not friends and did not live, gamble, and play cards

together.

In addition, Defendants argue that Crawford engaged in the deliberate solicitation of statements from

Wilson and cite to Crawford's admission that he asked questions in the normal course of conversation.150

But the informant in a given case is not required to remain in stony silence [**48] to avoid the "deliberate

eliciting" of information; no case in the Fifth Circuit commands absolute silence from an informant.151

[*235] Supreme Court precedent on this issue stems from "action, beyond merely listening, that was

designed deliberately to elicit incriminating remarks."152 Crawford was not a government agent while his

147 The plea agreement that Crawford signed with the Government included portions about Crawford "immediately advis[ing]" the

Government of someone breaking the law, submitting to Government interviews whenever requested, and appearing before any

grand juries or juries to testify. While violation of the plea agreement could result in adverse consequences, no part of this

agreement states that Crawford had to inform of past law-breaking—which is precisely what is at issue in this appeal. Submitting

to interviews and testifying does not establish a per se principal-agent relationship, and telling the Government of current

lawbreaking does not implicate informing on fellow inmates for past transgressions. In addition, the plea agreement does not

establish an exchange of benefits between the Government and Crawford for agreeing to this.

148 Thompson, 941 F.3d at 816 (5th Cir. 2019).

149 Defendants cite to Crawford's testimony where he said the trial judge "promised" him a reduction if the Government filed for

one. This, taken from Crawford's call to a friend, appears to paraphrase what the judge said. The belief that Crawford was

guaranteed a reduction is equally inapplicable. In fact, he had tried to inform on three other inmates and had been disappointed

when the Government had not given him what he wanted, or anything at all.

150 The district court had previously found that the questions Crawford asked in prison were the "kinds of questions persons

typically pose in the course of an ongoing, normal conversation." This all, however, was before he spoke with the AUSA and

case agent in the case on appeal, and so the information gathering does not automatically qualify as a Massiah violation.

151 McDonald v. Blackburn, 806 F.2d 613, 618-22 (5th Cir. 1986) (ruling that the informant asking a question in the course of

conversation was not automatically beyond mere listening).

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friendship with Wilson was secure, and there is no evidence that Crawford even "elicited as much

information as he could . . . so that he could then pass that information to the [G]overnment."153

While the Sixth Amendment right to counsel attached in this situation, we conclude that Crawford was not

acting as a government agent prior to his initial meeting with the Prosecution. After this meeting,

Crawford did not deliberately elicit incriminating statements. Thus, under de novo review of the law, and

plain error review of factual findings, we affirm the district court.154

Defendants object to the district court's finding under the Confrontation Clause—namely, that Crawford's

testimony is testimonial, and therefore their constitutional rights were violated. Defendants argue that the

district court erred as a matter of law when it determined that the statements were non-testimonial and

assert [**49] that the district court erred by not focusing on the primary purpose test to determine

whether the statement was testimonial or not. We review violations of the Confrontation Clause de novo,

subject to a harmless error analysis.155

The Confrontation Clause "forbids the introduction of out-of-court 'testimonial' statements unless the

witness is unavailable and the defendant has had a chance to cross-examine the witness previously."156

The Clause "applies to witnesses against the accused—in other words, those who bear testimony."157

Testimony, "in turn, is typically a solemn declaration or affirmation made for the purpose of establishing

or proving some fact."158 And, "[a]n accuser who makes a formal statement to government officers bears

testimony in a sense that a person who makes a casual remark to an acquaintance does not."159

152 Kuhlmann, 477 U.S. at 459.

153 Fields, 761 F.3d at 478. As noted, the informant's actions in Fields did not trigger a Massiah violation. Id.

154 Because of the multi-pronged failure on behalf of the Defendants' analysis, we decline to perform the harmless-error analysis.

Given the sheer enormity of evidence presented at trial, however, any error would be harmless.

155 United States v. Noria, 945 F.3d 847, 853 (5th Cir. 2019). See also United States v. Polidore, 690 F.3d 705, 710 (5th Cir.

2012).

156 Samia v. United States, 599 U.S. 635, 643, 143 S. Ct. 2004, 216 L. Ed. 2d 597 (2023). Only testimonial statements implicate

the Confrontation Clause. See Brown v. Epps, 686 F.3d 281, 286 (5th Cir. 2012) ("[A] statement that is not testimonial cannot

violate the Confrontation Clause."). See also Noria, 945 F.3d at 851 ("Importantly, only testimonial statements cause the

declarant to be a 'witness' within the meaning of the Confrontation Clause." (quotation marks omitted and emphasis in original.));

Crawford, 541 U.S. at 51 (2004) ("[N]ot all hearsay implicates the Sixth Amendment's core concerns.").

157 Crawford, 541 U.S. at 51.

158 Id. (citation and internal quotation marks omitted).

159 Id.

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[*236] The Supreme Court has developed a "primary purpose test" to determine whether a statement is

testimonial in nature.160 Statements are testimonial when they have "the primary purpose of establishing

or proving past events potentially relevant to later criminal prosecution."161 A court should also "look to all

of the relevant circumstances."162 The primary purpose test is a necessary, [**50] but not always

sufficient, condition to the exclusion of out-of-court statements under the Confrontation Clause.163 The

Confrontation Clause applies to persons other than law enforcement officers, and to private citizens such

as Crawford.164 To satisfy Clark, we examine "all relevant circumstances" concerning the situation

between Crawford and Wilson "objectively[,]" including "the circumstances in which the encounter occurs

and the statements and actions of the parties."165

The circumstances here are as follows: Wilson lived in close quarters with Crawford, and over time they

developed a friendship independent of any Prosecution contact or direction. Wilson did not intend to

incriminate himself in the upcoming trial, and over time told his friend Crawford about everything major in

his life: family, sports, gambling, crimes, and their cases. Crawford had turned against multiple other

inmates while incarcerated, taking information and handing it to the Government in other cases. There

were two incidents that made Crawford dislike Wilson, with Crawford's sentencing hearing sandwiched

between them. Furthermore, the bulk of the information that Crawford [**51] surrendered to the

Prosecution [*237] was given at the first meeting, long after the relationship had been established.

Special Agent Williams testified that inmates in the penal system understand that information "would or

could" lead to sentence reductions. We find that Defendants' assertion that the knowledge of sentence

reduction recommendations is special and unique to prior informants, is unfounded in objective

circumstances. What appears to have happened here is that an individual—who has a history of

informing on even close friends—decided to bring forward information that he learned by virtue of living in

160 Noria, 945 F.3d at 851-52.

161 Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (internal alterations and

quotation marks omitted) (quoting Davis v. Washington, 547 U.S. at 813, 822 (2006)). See also Ohio v. Clark, 576 U.S. 237,

245-46, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015).

162 Michigan v. Bryant, 562 U.S. 344, 369, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011).

163 Clark,

576 U.S. at 246. In fact, the Court recognized that the Clause does "not prohibit the introduction of out-of-court

statements that would have been admissible in a criminal case at the time of the founding." Id. (citing to Giles, 554 U.S. at 35859 and Crawford, 541 U.S. at 56 n.6).

164 See V(A) for why Crawford was not a government agent. Defendants assert that because United States v. Vasquez, a Fifth

Circuit case from 2014, predates Ohio v. Clark, the Fifth Circuit did not establish precedent that survives Clark. They argue that,

because the case in question concerned a Bruton challenge being analyzed on plain error due to novelty on appeal, that

Vasquez could not possibly establish circuit precedent on the case. Vasquez is persuasive and clearly states the law—and the

accord of our sister circuits on this issue. This Court in Vasquez, however, noted that the appellant asserted a Confrontation

Clause claim, and cites to seven other circuit courts for the shared observation that the Supreme Court "described 'statements

from one prisoner to another' as 'clearly nontestimonial' for the purposes of the Crawford analysis...." 766 F.3d 373, 378-79 (5th

Cir. 2014). An unpublished Fifth Circuit opinion post-Clark confirms this logic, citing this caselaw. United States v. Rentfrow, No.

23-60054, 2024 U.S. App. LEXIS 4004, 2024 WL 707392, at *5 (5th Cir. Feb. 21, 2024) (reasoning that one defendant

"recapping the attack" while in prison to another inmate did not qualify as testimonial under the primary purpose test).

165 Bryant, 562 U.S. at 359. Bryant also cites to Davis, and how the Court in that decision used the word "objective" "no fewer

than eight times" when describing the analysis, as well as the definitions for testimonial and nontestimonial statements. Id. at

360. That analysis also includes "statements and actions of both the declarant and interrogator[.]" Id. at 367.

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close quarters with Wilson and, as such, the objective circumstances of his actions at the time the

information was gathered would imply that the statements are nontestimonial.

All Defendants except Wilson object to Crawford's testimony as containing inadmissible hearsay.

Crawford testified in court before the jury on the tenth day of trial—April 18, 2022. Defendants cite their

objection to hearsay concerning conversations Crawford had with Wilson on April 25, 2022—on the

fourteenth day of trial. In the pretrial order addressing the admissibility of Crawford's testimony, the

district [**52] court ruled that hearsay objections had to be made "as they arise at trial."166

The Prosecution argues that because Defendants raised no objection during Crawford's trial testimony—

but instead objected one week later—the objection was not preserved. Three full days of trial proceeded

after Crawford's testimony and before Defense counsel's alleged objection.167 Defendants deny a lack of

preservation and cite no supporting caselaw. There were several hearsay objections to Crawford's

testimony during his cross and direct examination. None, however, are an objection to the conversation

at issue that Crawford had with Wilson where Crawford testified to Wilson saying that "they needed to

whap old boy [Womack]."

Properly preserved hearsay objections are reviewed for abuse of discretion, subject to a harmless error

analysis.168 Otherwise, plain error review applies on appeal.169

Under Fed. R. Evid. 103(b), "[o]nce the court rules definitively on the record—either before or at trial—a

party need not renew an objection or offer of proof to [*238] preserve a claim of error for appeal." This

Court has further held that when a district court grants a party's pretrial evidentiary objection,

contemporaneous objections to contravening evidence are still required to avoid plain error review on

appeal.170

166 The district judge reiterated this at trial the morning of Mr. Crawford's testimony, ruling that, "[j]ust like any defense witness,

we will handle the objections to the testimony on a question-by-question basis."

167

"Mr. Bourke: The other was, and I've spoken to the Government, we both feel like you ruled on Defense Motion 725 which was

the hearsay exception for Michael Crawford, the statements against penal interest. But I can't find it anywhere in my notes, and I

just wanted to make sure - my understanding is that you denied the motion once we got to trial. I just, you know.

The Court: Yes, yes. I think preliminarily and then based upon the way the testimony came in, the Court denied that motion.

Mr. [**53] Bourke: That was my understanding. I just wanted to, you know. I've got a job to do."

168 Yanez Sosa, 513 F.3d at 199-201 (holding that "an abuse of discretion in admitting or excluding evidence is subject to

harmless error review."). In addition, "[a] trial court abuses its discretion when its ruling is based on an erroneous view of the law

or a clearly erroneous statement of the evidence." United States v. Ragsdale, 426 F.3d 765, 775 (5th Cir. 2005) (citation

omitted).

169 United States v. Avants, 367 F.3d 433, 443 (5th Cir. 2004).

170 United

States v. Lara, 23 F.4th 459, 475 (5th Cir. 2022) (adopting the reasoning of the Tenth Circuit and the Advisory

Committee note to the 2000 Amendment to the Rules). Prior to the amendment of the Rules, parties had to make

contemporaneous objections at trial even if they had made pretrial objections. Id. at 473-74. Black's Law Dictionary defines

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Here, the district court ruled on the hearsay issues at stake on this appeal, that "any such objections will

be addressed as they arise at trial." The district court did not grant or deny the motion in limine, but

instead held that hearsay objections needed to arise at trial—and not be dealt with beforehand. Under

Fifth Circuit precedent, "[e]videntiary objections must be specific."171 They must also be "timely" under

Fed. R. Evid. 103(a)(1)(A).172 Furthermore, objections must be lodged whenever the offending testimony

is proffered.173 Defendants [**54] failed to object to any of this alleged hearsay during direct or crossexamination.

The standard of "contemporaneous" objections at trial applies when there is a contravention of a preexisting motion in limine and in the absence of a definitive ruling.174 Here, the days-later catch-all

objection put forth by Defendants does not pass muster. The record speaks for itself; Defendants

objected throughout Crawford's direct examination, but none of the objections concerned this hearsay

issue. We review the inclusion of Crawford's relevant testimony for plain error.175

The rule against hearsay "bars the admission of any 'statement, other than one made by the declarant

while testifying [*239] at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.'"176 An admission by a party-opponent admitted against a defendant and his co-conspirators is

not hearsay.177

"contemporaneous" as "living, occurring, or existing at the same time". Contemporaneous, BLACK'S LAW DICTIONARY (11th ed.

2019).

171 United

States v. Avants, 367 F.3d 433, 445-46 (5th Cir. 2004) (ruling that the lack of any objection violated specificity

requirement of Fed. R. Evid. 103). See also, United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998) ("[A] trial . . . judge

must be fully apprised of the grounds of an objection.").

172 "Timely" is defined as being "within a specified deadline; in good time; seasonable". Timely, BLACK'S LAW DICTIONARY (11th ed.

2019). See also Contemporaneous-objection Rule, BLACK'S LAW DICTIONARY (7th ed. 1999) ("The doctrine that a proper objection

to the admission of evidence must be made at trial for the issue of admissibility to be considered on appeal.").

173 See C.P. Ints., Inc. v. Cal. Pools, Inc., 238 F.3d 690, 696-97 (5th Cir. 2001) (reasoning that failing to object to four out of six

instances of testimony on direct examination failed the requirements of Rule 103). See also Bailey v. Southern Pac. Transp. Co.,

613 F.2d 1385, 1389 (5th Cir. 1980) (holding that failing to object to the challenged evidence on four out of five occasions on

which it was offered meant the issue was waived for appeal purposes).

174 Lara, 23 F.4th at 473-74. In addition, under Fed. R. Evid. 103(d), the court "[t]o the extent practicable . . . must conduct a jury

trial so that inadmissible evidence is not suggested to the jury by any means."

175 See also Puckett v. United States, 556 U.S. 129, 134, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009) ("If a litigant believes that an

error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails

to do so in a timely manner, his claim for relief from the error is forfeited."); Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct.

660, 88 L. Ed. 834 (1944) ("No procedural principle is more familiar to this Court than that a . . . right may be forfeited in criminal

as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.").

176 Noria, 945 F.3d at 852.

177 See

Fed. R. Evid. 801(d)(2)(A) and (E). See also United States v. Thompson, 130 F.3d 676, 683 n.3 (5th Cir. 1997)

("Hearsay problems are not a concern if the jury believes that the defendant was one of the participants in the conversation; any

statements he made would be admissible as a statement of a party opponent."); United States v. Chaney, 299 F. App'x 447, 452

(5th Cir. 2008) ("A statement is not hearsay if it is offered against a party and is the party's own statement.").

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Defendants implicitly acknowledge the party-opponent rule and object to Crawford's testimony as failing

the Fed. R. Evid. 804(b)(3)(B) prong of statements against interest.178 Such statements are excepted

from hearsay because [**55] they are "so contrary to the declarant's proprietary or pecuniary interest

...."179 Because the declarant is not testifying,180 and the out-of-court statement cannot be tested in the

crucible of cross-examination, courts have emphasized that the statements "must be corroborated by

circumstances clearly indicating [their] trustworthiness."181

This Court has held that, "the term trustworthiness has two distinct elements. In order for a declaration

against penal interest to be trustworthy evidence, the statement must actually have been made by the

declarant, and it must afford a basis for believing the truth of the matter asserted."182 The statements

must "bear adequate 'indicia of reliability,' such that 'adversarial testing would be expected to add little, if

anything, to the statements' reliability.'"183 The "totality of the evidence" at trial in corroborating the

statement is a key way to examine this entire situation.184

[*240] Defendants hammer at the untrustworthy character of Crawford and cite to his past criminal

history and limited instances of informing on other inmates as evidence of his lack of credibility.185 The

Prosecution argues that Crawford, who was friends with Wilson, learned Wilson's [**56] side of the story

through long months of living together in close quarters.

178 In pertinent part, Rule 804 holds that a statement qualifies if it "is supported by corroborating circumstances that clearly

indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability."

179 Fed. R. Evid. 804(b)(3)(A).

180 See United States v. Young Bros. Inc., 728 F.2d 682, 690 (5th Cir. 1984) ("[I]t is clear that a witness who is unavailable

because he has invoked the Fifth Amendment privilege against self-incrimination and was therefore unavailable under the terms

of Fed. R. Evid. 804(a)(1)").

181 United

States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012) (citation omitted). Ebron distinguishes that the declarant's

statement was made to "a fellow inmate", and that "a statement made outside a custodial context does not provide the same set

of incentives that create the risk of unreliable statement." The Court ultimately ruled that, given the uncertainty in the law—

namely, the issue of non-self-inculpatory statements within a broader narrative of self-inculpatory statements—the district court

did not abuse its discretion. Id. at 134.

182 United States v. Bagley, 537 F.2d 162, 167 (5th Cir. 1976). This opinion explains how all the defense witnesses were prison

inmates and how the Government attacked the credibility of every witness to show fabrication and contradiction. Id. at 167-68.

The Court ruled that, "the trial judge reasonably could have concluded that the trustworthiness of the statement was not clearly

indicated, and the judgment will be affirmed." Id. at 168.

183 United States v. Piper, 912 F.3d 847, 856-57 (5th Cir. 2019) (citing Lilly v. Virginia, 527 U.S. 116, 125-25, 119 S. Ct. 1887,

144 L. Ed. 2d 117 (1999)). In Piper, the Court examined the entirety of the record and concluded that it was "not clear or

obvious" that the statements were admissible. Id. at 857. Thus, under our precedent, to swing against the district court ruling, an

edge case does not invalidate the testimony.

184 See United States v. Robinson, 635 F.2d 363, 364 (5th Cir. 1981).

185 They also note a number of slight inconsistencies between the Massiah hearing testimony, recorded phone calls from jail, and

Crawford's trial testimony. This includes his effort to gain a reduction in his sentence. Any inconsistencies are details in a larger

narrative where the main facts and vast majority of testimony from Crawford align with the entirety of the record. This includes

who was caught with the murder weapon, the lack of immediate funds for the hit, and more.

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This Court has also noted that one important consideration is whether criminal liability is being foisted

onto others.186 Here, Crawford's statements implicate Wilson as the one who "orchestrated" the

murder.187 The trial record substantiates Crawford's testimony, from Jackson, Marigny, and Lewis'

testimonies about Wilson and the other Defendants involvement to Ayanna's testimony about her

brother's involvement in the conspiracy. We see no error, much less plain error, on these facts—it is not

clear or obvious that Crawford's testimony was inadmissible.188

Defendants also object to strictures the district court imposed on the cross-examination of Crawford as

violating their Sixth Amendment right of confrontation. In particular, Defendants challenge three distinct

rulings regarding the exclusion of: (i) 1994 and 1995 state court convictions for a sex offense and an

armed robbery offense under Fed. R. Evid. 609, (ii) extrinsic evidence of prior inconsistent statements of

jail calls between Crawford and his attorney under Fed. R. Evid. 613, and (iii) evidence concerning

whether another inmate and YMF member provided information to Crawford.

Confrontation Clause violations are reviewed [**57] de novo, subject to a harmless error analysis.189

Non-constitutional issues, however, are reviewed for abuse of discretion when errors arise on the

limitation of a defendant's cross-examination.190

The Supreme Court in Davis v. Alaska underscored "that the exposure of a witness' motivation in

testifying is a proper and important function of the constitutionally protected rights of

cross-examination."191 The cross-examination right gains even stronger salience when "the [*241]

witness is critical to the prosecution's case."192

"While the scope of cross-examination is within the discretion of the trial judge, this discretionary

authority to limit cross-examination comes into play only after there has been permitted as a matter of

right sufficient cross-examination to satisfy the Sixth Amendment."193 The district courts wield "wide

186 Piper, 912 F.3d at 857.

187 Crawford also testified that Wilson showed Guillory and Age III where Nicholas' house was in the Gentilly neighborhood of

New Orleans. The "totality of the evidence" at trial in corroborating the statement is a key to examining this situation.

188 Defendants also assert that Crawford perjured himself at trial—with no citation. We reject this argument.

189 See United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006). See also Delaware v. Van Arsdall, 475 U.S. 673, 679,

106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (delineating the various factors necessary for harmless error analysis).

190 See United States v. El-Mezain, 664 F.3d 467, 491 (5th Cir. 2011).

191 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (internal quotation marks and citations omitted).

192 United States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996).

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latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness' safety, or interrogation that is repetitive or marginally relevant."194 The Confrontation

Clause is "generally satisfied when the defendant has been permitted to expose to the jury facts from

which jurors, [**58] as the sole triers of fact and credibility, could appropriately draw inferences relating

to the reliability of witnesses."195 The "relevant inquiry is whether the jury had sufficient information to

appraise the bias and motive of the witness."196

"[W]hether the exclusion of evidence is of a constitutional dimension depends on the [district] court's

reason for the exclusion and the effect of the exclusion."197 This Court has noted that, "[t]his

determination typically includes an inquiry into the admissibility of the evidence under the Federal Rules

of Evidence."198 For Confrontation Clause violations, the "defendant need not establish that the jury

would have reached a different result."199 Instead, the threshold question is whether, "[a] reasonable jury

might have received a significantly different impression of [the witness'] credibility had [defense] counsel

been permitted to pursue his proposed line of cross-examination."200

In the Fifth Circuit, the right to cross-examine witnesses is "especially important" when the individuals

"may have substantial reason to cooperate with the government."201 While there is a "presumption in

favor of free cross-examination, placing restrictions on its scope [**59] is within the sound discretion of

the trial court."202 Furthermore, "cross-examination [*242] into any motivation or incentive a witness may

have for falsifying his testimony must be permitted."203 The admissibility of bias evidence is still subject to

Fed. R. Evid. 403.204

193 United States v. Elliott, 571 F.2d 880, 908 (5th Cir. 1978). It is well established that "discretionary authority comes about only

after sufficient cross-examination has been granted to satisfy the Sixth Amendment." United States v. Landerman, 109 F.3d

1053, 1061 (5th Cir. 1997). We also reiterate that, "the Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware

v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam). See also, Bigby v. Dretke, 402 F.3d 551, 573

(5th Cir. 2005) ("[T]he Confrontation Clause does not guarantee defendants cross-examination to whatever extent they desire.").

194 Van Arsdall, 475 U.S. at 679.

195 United States v. Skelton, 514 F.3d 433 (5th Cir. 2008) (internal citations omitted).

196 United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993).

197 Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005).

198 Skelton, 514 F.3d at 440.

199 Id. The analysis centers "on the particular witness." Id.

200 Van Arsdall, 475 U.S. at 679-80.

201 United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976).

202 Id.

203 United States v. Bratton, 875 F.2d 439, 443 (5th Cir. 1989) (citations omitted and emphasis in original).

204 This Rule reads in its entirety: "The court may exclude relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence."

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The convictions at issue are a 1994 state court conviction for carnal knowledge of a juvenile and three

1994 and 1995 state court convictions for armed robberies.205 Defendants explain that it was possible for

the State of Louisiana to pursue duplicative charges against Crawford for past criminal acts for which he

was serving federal time. At trial, however, defense counsel admitted that they had no indication that

Crawford would be charged under Louisiana's laws. And the district court ruled that there was no

indication that the state of Louisiana would charge Crawford or that there was any implication in his

informant deal with the federal government that implicated the staying of any state charges.

Crawford's testimony at trial—on both direct and cross-examination—included the following: that he was

convicted in 2005 for conspiracy to possess with intent to distribute five kilograms or more of cocaine;

that he served a reduced sentence for that [**60] charge for 78 months; that he was serving a conviction

on three counts of distribution and possession with intent to distribute heroin; that he was sentenced to

105 months and not 151-188 months; that he was a career offender; and that his sentence was reduced

for informing on other inmates.

Under the dual sovereignty doctrine, prosecution is allowed for the same criminal conduct in federal and

state court.206 Here, under Louisiana law, the statute of limitations had not run on the 2018 heroin

charges, and with a state conviction Crawford would have been eligible for life without parole.

Defendants argue that the case at hand is similar to others presented to the Fifth Circuit over the course

of years.207 None are applicable.

In Croucher, the witness had a "lengthy history of both state and federal theft and burglary arrests, none

of which, however, had resulted in conviction."208 The witness admitted that he had been cooperating

with both federal and state authorities as a [*243] result of dismissals.209 While the witness testified that

his "debt" had been worked off, this Court noted that his past actions were still liable under the statute of

limitations, and law enforcement officials who he had been [**61] actively working with could indict or

reindict him.210 The district court—by allowing inquiry on only convictions involving moral turpitude and

by disallowing inquiry for arrests occurring after the alleged conspiracy—left the jury "without any

205 Under Fed. R. Evid. 609(b)(1), if more than ten years have elapsed since a witness' conviction or release form confinement—

whichever is later—the evidence of said conviction is admissible only if "its probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect ...." The Prosecution did not seek to exclude Crawford's 2006 federal

conviction for conspiracy with intent to distribute five kilograms or more of cocaine, even though this was older than ten years as

well.

206 See

Gamble v. United States, 587 U.S. 678, 707-710, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019) (documenting and

reaffirming the history of dual sovereignty and subsequent prosecutions).

207 See United States v. Croucher, 532 F.2d 1042 (5th Cir. 1976); Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981); Carrillo v.

Perkins, 723 F.2d 1165 (5th Cir. 1984); United States v. Cooks, 52 F.3d 101 (5th Cir. 1995); United States v. Landerman, 109

F.3d 1053; Beaudine v. United States, 368 F.2d 417 (5th Cir. 1966).

208 532 F.2d at 1044.

209 Id.

210 Id. at 1044-45. The Court also noted that he was charged for theft and burglary, and then the charges were dropped, after

1972. These two dates were prior to the termination of the alleged conspiracy in the case for which he was an informant, but

before the corresponding indictment and trial.

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evidence that [the witness] was very vulnerable to pressures by the prosecution at the time he gave his

testimony."211

Defendants argue that Crawford received favorable treatments in arrests, just as in Croucher. But

Crawford's arrests were not subject to the special treatment seen in Croucher, nor was the state of

Louisiana a party to his informant activities. Crawford was in federal jail on federal charges—and had

only been informing to receive federal leniency. While the state of Louisiana could charge him for the

same drug crimes, Defendants offered no evidence of such intent.

In Greene, the witness in question was the "chief" or "star" witness for the prosecution, and the district

court granted a motion in limine that this Court described as a "complete bar" to exploratory inquiry into

bias or motive.212 Defendants emphasize Greene for the simple fact that no indictment or charge was

pending against the witness.213 This misses the mark; Greene focused on the complete bar of any [**62]

cross-examination not concerning the criminal activity at hand. By contrast, Crawford expounded on

many aspects of prison life and much of his criminal past—in addition to the criminal conspiracy at issue

on the stand.

In Carrillo, the witness in question was vulnerable to prosecution on unadjudicated criminal offenses

related to stolen firearms at the time of giving testimony at trial.214 This Court ruled that the defendant's

Sixth Amendment rights were violated because exploration could have revealed the witness' vulnerability

to prosecution that would push him to compromise his credibility and to assist the State.215 Defendants

note that in Carrillo, the witness admitted he had committed a felony, denied a deal of working with the

authorities, and knew charges could still be filed against him—just like Crawford. What Defendants fail to

acknowledge, however, is that it was the same sovereign at issue in Carillo, that the charges were

completely unadjudicated, and that the statute of limitations had not run. Crawford had no contact with

Louisiana, was not cooperating in the present case with Louisiana, and no contrary evidence was

presented.

In Cooks, the witness was cooperating with both state and federal [**63] authorities, and [*244] the

district court limited cross-examination to cover prior arrests and drug use and excluded information

concerning a Louisiana arrest or future stiff penalties of conviction on either Texas or Louisiana

charges.216 Prior to cooperating with the Government, the witness was arrested in Texas for state drug

offenses, and agreed to cooperate with state and federal authorities.217 This Court ruled that the district

211 Id.

212 634 F.2d at 275.

213 The

scope of cross-examination stretched in and around the time of the testimony relevant to Defendants and did not

resemble the "complete bar" present in Greene. Nor was Crawford the Prosecution's star witness in the weekslong trial. That

award may go to Ayanna, who testified against her brother and father.

214 723 F.2d at 1167.

215 Id. at 1169-70. In Carillo, it was a state charge that was unadjudicated, and a state criminal trial. Thus, the same sovereign

was at play in both situations.

216 52 F.3d at 103-04.

217 Id. at 102. The district court noted that in Texas, he would receive a possible 99-year sentence on the drug charges; in

Louisiana, this would have been his third charge that would carry a possible 40-year sentence. Id. at 104.

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court's limitation violated Cooks' Sixth Amendment rights, and that there was "obvious pressure" on the

witness for his testimony to be valuable.218

Defendants contend that this is similar to Crawford because he could be prosecuted by Louisiana for

drug charges and as a result could face severe penalties, inversely implying that the benefit of

cooperating with the federal authorities would mean that Crawford would not face a "functional—if not

actual—life sentence." This is a stretch, as no cooperation between Louisiana and the Prosecution of the

kind present in Cooks was ever evinced at trial or before. And there was no unadjudicated conduct, as in

Cooks, that had not been charged by any sovereign in Crawford's case.

In Landerman, the witness had a pending state charge that carried a potential [**64] life sentence when

he entered into a plea agreement with the federal government.219 The witness testified outside of the

presence of the jury that, to his knowledge, no part of his deal would implicate his pending state charge—

leading this Court to conclude that the defendants' Sixth Amendment rights were violated.220 Here,

Defendants do not show or allege that there was any pending state charge, much less cooperation

between state and federal authorities or promises of leniency.

Finally, in Beaudine, this Court noted that the witness was being cross-examined on the specifics of each

felony in question "to test memory which, in many, many details, was hazy at best."221 Here, the purpose

of presenting Crawford's prior state convictions was decidedly not to test his memory. Rather, it was to

show bias, and the possibility of a Louisiana prosecution that would carry a heavy sentence.

Crawford's situation differs from these cases as there were no pending charges in Louisiana and no

evidence of any cooperation by the Prosecution with Louisiana authorities. We find that Defendants'

Sixth Amendment protections were not violated, and that the district court's discretion allowed this

restriction.222 The distant and unproven specter of state [**65] charges does not implicate the Sixth

Amendment [*245] under our precedent. We see no abuse of discretion by the district court.223

At trial, the district court excluded recordings of jailhouse telephone calls between Crawford and his

attorney—but allowed transcripts of the calls to be read into evidence.224 During Crawford's cross-

218 Id.

219 109 F.3d at 1061-62.

220 Id. at 1062-64.

221 368 F.2d at 421-22.

222 The Government cites to Fed. R. Evid. 609(b) as creating a presumption against admission of a conviction older than ten

years. Under Skelton, "[t]his determination typically includes an inquiry into the admissibility of the evidence under the Federal

Rules of Evidence." 514 F.3d at 440. Under Fed. R. Evid. 609(b)(1), evidence of prior convictions is only admissible beyond ten

years if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." In the

present case, the evidence was cumulative that Crawford was a career offender, and Defendants were given wide latitude into

the motivations of Crawford in testifying—namely, a hefty reduction.

223 As reflected by trial transcripts and Government motions, the Prosecution viewed the carnal knowledge charge from 1994 as

prejudicial and inflammatory to the jury. Given the stricture of Rule 609(b)(1), we also find that the district court did not abuse its

discretion.

224 For context, the calls from prisoners are recorded, and each prisoner is assigned a unique seven-digit PIN that they use to

dial outside numbers. This identifies who is (supposed) to be calling from the prison. Call transcripts and recordings were

available to Defendants through the natural course of discovery proceedings.

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examination, defense counsel used these calls to impeach Crawford with prior inconsistent statements

under Fed. R. Evid. 613.

Defense counsel cross-examined Crawford on statements he made in telephone calls—and compared

them to his testimony on direct examination. Defendants then moved to enter the recordings into

evidence. The district court excluded the calls because defense counsel had not established an

inconsistency, and the calls would have been cumulative of Crawford's testimony.

Defendants argue that Crawford took the "time-honored strategy" of testifying to not remembering the

answer to a question asked. They argue that the district court misunderstood the state of current caselaw

as it pertains to Rule 613.225 Defendants also contend that acknowledging a statement—as opposed to

hearing the "abject desperation" in Crawford's voice—violated the attorney's ability to "constitutionally

confront" Crawford.226

Under our precedent, proof of a prior inconsistent statement is admissible to impeach a witness and

proof may be elicited "by extrinsic evidence only if the witness on cross-examination denies having made

the statement."227 A witness' failure to remember does not constitute a denial.228 Critically, "whether a

claim of forgetfulness about a prior statement is genuine or feigned, and therefore consistent or

inconsistent" is "a fact-specific inquiry" for the district court to conduct.229

At trial, Crawford never denied making a statement. Instead, he proffered variations on a theme of the

fact that he did not remember phone calls from two years ago. As evidenced by the trial transcript,

Crawford never denied making a statement, but rather testified that he had no memory of [*246] these

specific phone calls. We see no abuse of discretion in the district court's ruling that the transcripts—and

not the recordings—were proper tools of impeachment.230

iii.

Defendants object to the district court's ruling on hearsay and relevance grounds pertaining to

Defendants' desire to cross-examine Crawford about statements made to him by Tyrone Scott, a

member of the YMF.

225 Defendants cite United [**66]

States v. Sisto for the proposition that a witness' denial of a statement or failure to remember

on cross-examination opens the door for the statements to be proven by another witness. 534 F.2d 616, 622 (5th Cir. 1976). In

Sisto, there is no recording on hand—it was all live witnesses and non-documentary evidence. In the present case, there is an

objective recording.

226 This is an assertion without a single citation of secondary or primary authority.

227 United States v. Devine, 934 F.2d 1325, 1345 (5th Cir. 1991) (citing Sisto, 534 F.2d at 616). See also United States v. Leslie,

759 F.2d 366, 379-80 (5th Cir. 1985); United States v. Hale, 685 F.3d 522, 539 (5th Cir. 2012).

228 Devine, 934 F.2d at 1345. See also, United States v. Balliviero, 708 F.2d 934, 939-40 (5th Cir. 1983) (holding that "[s]ince

there is no denial that the statement was made, there is clearly no rationale for the introduction of a prior 'inconsistent'

statement.").

229 United States v. Meza, 701 F.3d 411, 427 (5th Cir. 2012).

230 We also find that the district court was correct in its estimation that—under Fed. R. Evid. 403—playing the calls would have

been cumulative given that Crawford "readily adopted" statements in later phone calls that included similar content.

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During the Massiah [**67] hearing and testimony conducted months prior to trial, defense counsel crossexamined Crawford on other inmates he served time with while at Nelson Coleman Correctional Facility.

The Prosecution objected, and defense counsel explained that they wanted to elicit information about

Scott. The Prosecution noted their prior agreement not to call Scott as a witness and told the district court

that if the information was admitted, they would call Scott to the stand. Following the Prosecution's

objections, the district court ruled that Massiah hearings do not have the same evidentiary rule strictures

as trial, and thus statements from Crawford about what he heard from someone else other than Wilson

were disallowed.

Even with this ruling from the district court, defense counsel could have asked Crawford other questions

concerning Scott.231 The district court did not impose a blanket ban on the topic of Scott, but only on

statements he made to Crawford—not facts about him or his life that Crawford might have known. We

find that the district court did not abuse its discretion and did not violate Defendants' Sixth Amendment

rights.

IX.

Age III challenges the district court's denial of his motions to sever his [**68] trial from his father's. We

find no error.

Age III in his motion to sever argued that admitting a statement from his father against him would violate

his Sixth Amendment Confrontation Clause rights.232 The substance of the statement, alleged to be

given to federal agents, was that, he, Age Jr., paid Age III to arrange Womack's murder. We review the

decision to deny a request to sever a joint trial under the "exceedingly deferential abuse of discretion

standard."233

Under Fed. R. Crim P. 14(a), a district court may "order separate trials of counts, sever the defendants'

trials, or provide any other relief justice requires." When a defendant argues that "the district court

committed reversible error in denying his request to sever . . . [the defendant] faces a doubly high

burden."234 [*247] "'Severance is an exception' justified 'only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or prevent the jury from making a

231 Defense counsel pursued this line of questioning at the Massiah hearing but declined to do so at trial.

232 His father had the right not to testify at the joint trial under the Fifth Amendment, meaning Age III would not be able to cross-

examine him on this statement.

233 United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018).

234 Id. In addition, the Court went on to note that our precedent, "does not reflect a liberal attitude toward severance." Id. (internal

quotation marks and citation omitted).

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reliable judgment about guilt or innocence.'"235 "Particularly in conspiracy cases,"236 federal courts

"prefer joint[] trials of defendants who are properly charged in joint indictments."237

To overcome this "heavy presumption,"238 "a defendant must show that the joint trial prejudiced [**69]

him to such an extent that the district court could not provide adequate protection; and the prejudice

outweighed the government's interest in economy of judicial administration."239 There must be "specific

compelling prejudice"240 and not merely "generic allegations of prejudice."241

Age III argues that his situation overcomes the high hurdle of severability. The Prosecution responds that

Age III may not have been indicted for the Medicare fraud case, but Ayanna's testimony put him squarely

in the thick of the family business. The Prosecution's theory was that Age III and Wilson sought out a

violent hit man to kill Womack to silence his testimony of multiple instances of criminal conduct, from

Medicare fraud to school arson and insurance fraud. Age III points to the evidence of violence concerning

Guillory and the similarity of his and his father's names as prejudicing him. But Age III does not explain

how a separate trial would benefit him. This is apparent when his father would still be referred to as part

of the conspiracy and Guillory and YMF-affiliated witnesses could still be called to testify, just as they

were at trial.

The jury was instructed to apply evidence separately to each defendant. [**70] When it acquitted Age III

of retaliation under Count Nine, the jury understood and applied their instructions. We "presume" that

juries "follow the instructions given to them by the district court[,]"242 and the acquittal of the retaliation

charge is strong evidence that the jury understood and applied the law to the facts of this case.243

Here, four co-defendants are charged of being part of the same conspiracy, and of committing criminal

acts in tandem at the same time. Given the facts, this is not a case fit for severance. We find no abuse of

discretion by the district court.

235 United States v. Daniel, 933 F.3d 370, 380 (5th Cir. 2019) (quoting Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933,

122 L. Ed. 2d 317 (1993)).

236 United States v. Musqiz, 45 F.3d 927, 931 (5th Cir. 1995).

237 United States v. Daniels, 281 F.3d 168, 177 (5th Cir. 2002) (noting the preference of federal courts for joint trials "[t]o promote

judicial economy and the interests of justice ....").

238 Ledezma-Cepeda, 894 F.3d at 690.

239 United States v. Snarr, 704 F.3d 368, 396 (5th Cir. 2013).

240 United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2013) (internal quotation marks and citation omitted).

241 Ledezma-Cepeda, 894 F.3d at 690.

242 United States v. Owens, 683 F.3d 93, 100 (5th Cir. 2012).

243 Id. See also, United States v. Stalnaker, 571 F.3d 428, 435 (5th Cir. 2009) (noting that this behavior "suggests that the jury

did not blindly convict on spillover evidence but instead gave each defendant and each count separate consideration.").

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Age Jr. challenges the district court's jury instructions for Count 9, charging [*248] conspiracy to

retaliate against Ayanna, as erroneous.244 We find no error in the jury instructions.

District court jury instructions are reviewed for abuse of discretion, "considering whether the instruction,

taken as a whole, is a correct statement of the law and whether it clearly instructs the jurors as to the

principles of law applicable to the factual issues confronting them."245 This is subject to harmless error

review.246 In addition, the trial court is given "substantial latitude in describing the law to the

jurors." [**71] 247

A district court reversibly errs when it refuses to give a defendant's instruction "where (1) the requested

instruction is substantially correct; (2) the requested issue is not substantially covered in the charge; and

(3) the instruction concerns an important point in the trial so that the failure to give it seriously impaired

the defendant's ability to effectively present a given defense."248

Count Nine charges the conspiracy to retaliate against a witness for aiding law enforcement in the prior

Medicare fraud case. Age Jr. argues that the jury should have been given a but-for causation instruction,

reading as follows:

"Intent of retaliating" has its natural meaning and refers to an action performed with the intention of

returning like for like or getting revenge. An action is taken with the intent of retaliating if it would not

have been taken, but for the intention to retaliate.249

Age Jr. asserts that but-for instructions are required for statutes using the phrases "because of," "results

from," and "by reason of."250 He argues that because 18 U.S.C. § 1513(f) criminalizes otherwise lawful

activity, the statute implies that criminal or retaliatory intent's mere presence is not dispositive of guilt; the

alternative [**72] would "criminalize [] thought."

The Prosecution notes that the finalized jury instruction reflected the Merriam-Webster's definition of

"retaliation," which is, "to return like for like" and "to get revenge."251 In United States v. Maggitt, two

244 See supra I(A)(2) and II(E)(2).

245 United States v. Aldawsari, 740 F.3d 1015, 1019 (5th Cir. 2014) (emphasis added and quotation marks omitted).

246 Id.

247 Daniel, 933 F.3d at 379 (citing United States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011) (internal quotation marks and

citation omitted)).

248 Ortiz-Mendez, 634 F.3d at 839.

249 The proposed portion of the instructions are in italics.

250 Burrage v. United States, 571 U.S. 204, 213-215, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014).

251 Black's Law Dictionary also defines "retaliation" as "the act of doing someone harm in return for actual or perceived injuries or

wrongs" and "an instance of reprisal, requital, or revenge." Retaliation, BLACK'S LAW DICTIONARY (12th ed. 2024).

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defendants were charged with witness tampering and witness retaliation under federal law.252 "Generally,

the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying

the act, even when a particular mental attitude is a crucial element of the [*249] offense."253 In addition,

under 18 U.S.C. § 1513, "the Government need not establish an intent to carry out the threat; the only

intent required is an intent to retaliate."254 The Maggitt court noted that the jury could have concluded that

the defendant lacked or possessed the requisite intent.255

Given the complete lack of caselaw support for but-for causation instructions with respect to witness

retaliation, we see no abuse of discretion. Under the district court's jury instructions, the jurors were able

to make inferences about the "natural probable consequences of an act" and did so at trial.256

XI.

In their final attempt to overturn their convictions, Defendants [**73] allege violations of three discrete

bodies of law: the Jury Selection and Service Act of 1968 ("JSSA")257, the fair cross-section guarantee of

the Sixth Amendment, and the due-process protections of the Fifth Amendment. Each claim implicates

an attached legal standard and overall standard of review, addressed infra in turn.

Defendants' claims stem from the district court's denial of their motion to dismiss the indictment. They

allege that the district court abused its discretion by declining to quash the grand jury indictment and

failing to conduct an evidentiary hearing on their claims. To unpack the complex claims at play in this

issue, we divide the factual and legal landscape and resolve this thorny issue discretely.258

To begin, Defendants moved to access documents pertaining to the grand jury that had returned their

indictment.259 The district court entered an order in favor of the defendants, granting access to a wide

swath of information with names and addresses redacted.260 The Clerk of Court for the Eastern District of

252 784 F.2d 590, 592-93 (5th Cir. 1986). Maggitt deals directly with the statute at hand—unlike Burrage, which dealt specifically

with a Controlled Substances Act statutory provision. Id.

253 Maggitt, 784 F.2d at 593.

254 Id. at 593-94 (referencing United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985)).

255 Id. at 594.

256 See id. at 593.

257 This

can be found at 28 U.S.C. §§ 1861-1878. See also, Walter Pettus Gewin, The Jury Selection and Service Act:

Implementation in the Fifth Circuit Court of Appeals, 20 MERCER L. REV. 349 (1969).

258 "[D]ivide each of the difficulties . . . into as many parts as possible and as [i]s required in order to better resolve them." RENE

DESCARTES, DISCOURSE ON METHOD AND MEDITATIONS ON FIRST PHILOSOPHY 11 (Donald A. Cass trans., Hackett Publ'g Co. 4th ed.

1998) (1637).

259 More about what a master and qualified wheel, as well as the exact nature of the reports requested by Age Jr. and the other

defendants will follow in XI(B).

260 In addition to names and addresses, the district court ordered that dates of birth, occupations, juror identification numbers,

and voting status information be redacted.

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Louisiana ("EDLA") in turn produced a multitude of documents that were entered into the record.

Defendants moved to quash [**74] the indictment, alleging violations of the JSSA and the Sixth

Amendment's fair cross-section guarantee.261 Defendants also sought a full evidentiary hearing to prove

the merit of their claims.

In an unforeseen twist, the Clerk of Court and her deputies retained counsel and sought to intervene in

the dispute or [*250] to appear as amicus curiae in the case, an effort opposed by both the Prosecution

and Defendants. The district court denied the Clerk's motion but permitted the Clerk to submit an expert

report in conjunction with any accompanying statistical analysis. The district court also ordered the

production of additional panel and venire data in machine-readable format.262

Upon receipt of the Clerk's expert report, Age Jr. filed a supplemental motion to quash the indictment,

laying out his claims against the administration of the JSSA in EDLA. Defendants, with data in hand, filed

a supplemental motion to quash and expanded on prior analysis with an additional expert report.263 The

Prosecution responded with its own expert report and disputed the findings and conclusions of

Defendants' reports; Defendants replied.264 The district court stated that only factual information from

Defendant, Clerk, and Prosecution experts [**75] would be used. On June 2, 2021, the district court

ruled that a prima facie case had not been established, and denied Age Jr.'s motion to quash. A later trio

of motions filed by Age Jr. were also denied by the district court.265

Under the JSSA, each United States district court must create and instantiate a written plan "for [the]

random selection of grand and petit jurors that shall be designed to achieve the objectives of sections

1861 and 1862 of this title ....."266 A plan becomes operational once it has been approved by members of

the judicial council of the circuit in question, and the Chief Judge of the district (or their assigned

delegate).267 Here, the district in question is EDLA.

Under the Jury Selection Plan in place, the basic structure remains unchanged. The Clerk, who is

charged with the overall supervision of the plan, is directed to use voter registration lists as the sole

261 Defense counsel supplemented their initial motion and analysis with another motion that alleged persons of lower economic

status were also systematically excluded from the qualified lists, jury pools, and venires in EDLA.

262 This order was produced in response to a later motion by Age Jr. for machine-readable data, additional panels, and records

produced from the review of EDLA jury selection processes by the Administrative Office of the United States Courts. The district

court did not grant, however, the request from Age Jr. that the Clerk's office release the Jury Management Report or related

working documents, reasoning that, "they are the internal, non-publicly available deliberative process and work product of that

office and the Court finds that they are not reasonably required for movant's fair-cross-section challenge."

263 One of the defense attorneys for Age Jr., Julia Chung, also submitted a sworn declaration and a few pages of statistical

analysis on AO-12 forms received from judicial districts around the country.

264 Defendants also moved for subpoenas to obtain the AO-12s from 41 district courts around the country that had not responded

to their requests. This motion was deemed moot by the district court later.

265 These motions asked the district court to summon individuals who failed to return juror qualification forms, to expand jury-

selection records to include names and addresses, and to stay the proceedings due to systematic exclusion.

266 28 U.S.C. § 1863. In relevant part, § 1862 forbids exclusion from jury duty on the basis of "race, color, religion, sex, national

origin, or economic status." Meanwhile, § 1861 declares the policy of the JSSA that all litigants have the right to juries "selected

at random from a fair cross section of the community in the district or division wherein the court convenes."

267 Id.

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source from which to draw names. Periodic reports on the operation of the Jury Selection Plan are

drafted by the Clerk whenever the Master Wheel is refilled or the Jury Selection Plan is amended. To

obtain the voter registration list, the Jury Administrator [*251] in the Clerk's office reaches out to the

Louisiana Secretary of [**76] State and requests an alphabetized voter registration list for the 13

parishes encompassed within EDLA.268 Using this file, the Jury Administrator determines how many

names are needed for the Master Wheel.269

From there, the Clerk's Office uses an automated jury management system software to establish a

"quotient"—the total number of names in the voter registration list divided by the number of names

needed, rounded up to the nearest integer.270 Once the quotient is calculated, the jury software is used

to generate a random number from which the selection will begin on the source list. Names are then

selected at the interval of the quotient, until the Master Wheel is completely filled. Every two years or so

the Clerk's Office supplements the Master Wheel using the aforementioned methods.

Using the Master Wheel, the Clerk's Office then determines how many jurors the District needs based on

the number and types of trials, and uses a computer program to extract the required number of potential

jurors at random.271 The Clerk's Office then sends juror qualification forms out to the chosen individuals,

with instructions to sign and return the form through the mail—duly signed and sworn—or to fill out [**77]

the form using the Court's website.272 If the form contains an ambiguity, omission, or error, the Clerk's

Office will return the form with instructions to add or correct, with an additional ten days to do so. In

addition to the strictures of the plan, the Clerk's Office in EDLA also re-sends a second juror qualification

form with stronger language and instructions to fill out the form.

Once received by the Clerk's Office, each form is reviewed to determine whether exemptions or excuses

are triggered.273 If an excuse or exemption is not applicable, any selected individual is expressly qualified

to serve on a federal jury unless he or she meets one or more of the disqualifiers.274 The Jury Selection

Plan dictates that at least 300 names must be on the "qualified" wheel, although the Clerk [*252]

maintained that around 2,000 qualified jurors are on the wheel at any given time.

As jury panels and pools are created over time, names are withdrawn from the qualified wheel and the

qualified wheel is replenished continually. When requested by the district court, the Clerk's Office will

268 Although the briefs do not note this, and it does not appear elsewhere in the record, the role of Jury Administrator is separate

from the Clerk of Court and is a member of the Clerk's office.

269 For the period encompassing the criminal trial that is on appeal, the Jury Administrator determined that 60,000 names would

be needed for the next four years. In addition, the names drawn from each parish are required to be "substantially in the same

proportion" to the number of names on the voter registration lists. In essence, each parish must be represented "substantially in

the same proportion" as they are in the voter registration list sent from the Secretary of State.

270 According to the Clerk's letter, the calculation and documentation of the quotient is witnessed by members of the Clerk's

Office.

271 The program uses a National Institute of Standards and Technology random algorithm.

272 Chosen individuals have ten days to do either one.

273 Excuses range from being a full-time student to having served on a federal jury panel within the past two years. Exemptions

include being a member of the Armed Forces of the United States, being a public officer in state or local government "actively

engaged in the performance of official duties[,]" and more.

274 Qualifications include the following: citizenship in the United States; being at least 18 years of age; residence in EDLA for at

least one year; ability to read, write, or understand English to fill out the juror form; ability to speak English; capability of

rendering satisfactory jury service; and no pending charges or convictions in state or federal court of crimes punishable by more

than one year (unless civil rights have been restored).

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begin summoning jurors from the qualified wheel using the jury management software to randomly select

individuals in the wheel. [**78] Although procedures differ slightly for grand and petit jury pools and

panels, the jury management software or the manual jury wheel (only for grand jury panels) is there at

every interval, randomizing the process of choosing individuals.

In essence, a potential juror must not be excused, exempt, or disqualified—and must respond to the

appropriate summons—as well as not be excused or excluded while in court on the day in question.

There have been two notable changes to EDLA's jury selection plans from January 10, 2013 to May 17,

2021: (1) the master jury wheel is refilled every two years (as opposed to four years previously) and (2)

voter registration lists are supplemented with lists of licensed drivers and state identification cards.275

The latter was changed by the district court not because voter registration lists do not "represent a fair

cross-section of the community in the district[,]" but rather plainly to "foster the statutory policy of 28

U.S.C. §§ 1861 and 1862...."276

We review challenges to the denial of an evidentiary hearing for abuse of discretion subject to harmless

error.277 An evidentiary hearing is required under our precedent when "the defendant alleges sufficient

facts which, if proven, [**79] would justify relief."278 Furthermore, we review constitutional claims de

novo.279

Under both the Sixth Amendment of the U.S. Constitution and the JSSA, litigants are "entitled to have

their grand and petit juries drawn from a fair cross-section of the community in the district or division

where the court convenes."280

In Duren v. Missouri, the Supreme Court held that a defendant's Sixth Amendment right to a petit jury

selected from a fair cross-section of the community was violated when jury wheels, pools of names,

panels, or venires from which juries are chosen "systematically exclude distinctive groups in the

275 See E.D. La. Plan for Random Selection of Grand and Petit Jurors Pursuant to the Jury Selection and Service Act of 1968,

effective May 18, 2021 ("Jury Selection Plan III").

276 Jury Selection Plan III at 3.

277 See United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003) (citing United States v. Linetsky, 533 F.2d 192, 203 (5th Cir.

1976)).

278 Powell, 354 F.3d at 362 (citing United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984)). Mergist stands for the proposition

that the error—even if present—if deemed harmless, renders the abuse of discretion moot.

279 United States v. Wills, 40 F.4th 330, 335 (5th Cir. 2022).

280 United States v. Garcia, 121 F.3d 704, 1997 WL 450169, at *3 (5th Cir. 1997) (citing United States v. McKinney, 53 F.3d

664, 670-71 (5th Cir. 1995)).

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community and thereby fail to be reasonably representative thereof."281 Duren established a three-prong

test, which is the prima facie threshold [*253] for a violation of the fair cross-section requirement.282

A defendant "must show (1) that the group alleged to be excluded is a 'distinctive' group in the

community; (2) that the representation of this group in venires from which juries are selected is not fair

and reasonable in relation to the number of such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the group in the jury-selection process."283

If the defendant succeeds in making this prima [**80] facie showing, then the Prosecution has the

burden of "justify[ing] this infringement by showing attainment of a fair cross section to be incompatible

with a significant state interest."284 In addition, "a jury list drawn objectively, mechanically, and at random

from the entire voting list of a [district] is entitled to the presumption that it is drawn from a source which

is a fairly representative cross-section of the inhabitants of that jurisdiction."285 To rebut this presumption,

the defendant must prove that "the product of such a procedure is, in fact, constitutionally defective."286

Intent to discriminate does not inhabit any part of the fair cross-section analysis.287 Defendants argue

that their Sixth Amendment fair cross-section guarantee is violated.

Defendants claim there are two distinctive groups under Duren for purposes of this analysis: African

Americans and people of lower economic status. Defendants are correct that the former is

"unquestionably a distinctive group in the community for Sixth Amendment purposes[,]"288 a conclusion

that the district court also agreed with.

The district court reasoned, however, that "persons of lower economic status[,]" which Defendants

defined as households with an income [**81] of under $50,000 per year, do not satisfy the first prong of

Duren. The district court noted that no other court had recognized this group for a fair cross-section

challenge; that neither Administrative Office of the U.S. Courts nor the Clerk of Court had collected any

data on this potential demographic; that the $50,000 dividing line was arbitrary and uninformative of

actual economic status; and that race was used as a proxy for income by Defendants' experts.

281 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979) (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42

L. Ed. 2d 690 (1975)).

282 Id. at 364.

283 Id.

284 Id. at 368.

285 Thompson v. Sheppard, 490 F.2d 830, 833 (5th Cir. 1974).

286 Id.

287 Duren, 439 U.S. at 368 n.26. This is very different from an equal protection claim for discrimination, which requires a showing

of purposeful or intentional discrimination. See Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977).

288 McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir. 1999) (quotation marks omitted).

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We agree with the district court. The lack of data, supporting caselaw, and lack of discernible principle for

a $50,000 cutoff for poverty in this judicial district means that the first prong of Duren was not met for this

alleged group by Defendants.289

[*254] 2.

The second prong of Duren focuses on "whether the representation of African Americans in the

challenged venire was fair and reasonable in relation to the numbers of African Americans in the

community."290 The community in question for this analysis is the jury-eligible population in EDLA.291

Defendants claim that the absolute disparity of 11.84%—along with other statistical data—satisfies

Duren's second prong.

United States v. Maskeny established the absolute disparity [**82] test in the Fifth Circuit for distinctive

groups that are under 10% of the population.292 Here, the court forms documented the population of

African American citizens in EDLA as 31.1%. This is the only test used by the court to determine

underrepresentation in this scenario.293 Defendants spend many pages of their briefs and expert reports

on other statistical methods and cite to Berghuis v. Smith for the proposition that the High Court has

refused to select absolute disparity as the sole method of analysis.294 What they fail to include, however,

is that "neither Duren nor any other decision of this Court specifies the method or test courts must use to

measure the representation of distinctive groups in jury pools."295 Again, the proper test in the Fifth

Circuit for distinctive groups that are not a "less-than-10%-minority" is absolute disparity.296

The district court took note of the string of Fifth Circuit cases since Duren that have mapped out the

contours of Duren's second prong. Post-Maskeny, this Court held that absolute disparities below 10% did

not make a prima facie showing of underrepresentation,297 and in 2005, this Court found that an absolute

disparity of 11.22% for an over-10% [**83] group did not satisfy the second prong of Duren because the

disparity was not proven to be "more statistically significant than the 11% disparity which [the court] found

289 The $50,000 number seems to be derived from a U.S. Department of Housing and Urban Development dataset that a four-

person family with $48,000 in yearly income in the New Orleans area in 2016 would qualify as a low-income household. There

very well could have been a colorable claim, at least under the JSSA statutory standard—but, the data and logic Defendants

advanced are inadequate to support this claim.

290 United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001).

291 Id. See also, Garcia, 121 F.3d 704, 1997 WL 450169, at *3 ("The distinctive group consists of the pool of individuals in that

division who are eligible to serve as jurors and not the group's total population in the community."); United States v. Fike, 82

F.3d 1315, 1321 (5th Cir. 1996); United States v. Yanez, 136 F.3d 1329, 1998 WL 44544, at *1 (5th Cir. 1998) (holding that

the gross voting age population in the relevant division was "not the proper base" and that the "jury-eligible population" should

be used instead). See supra note 274 for delineation of what juror qualifications are in federal court.

292 609 F.2d 183, 189-90 (5th Cir. 1980). See also, United States v. Butler, 615 F.2d 685, 686 (5th Cir. 1980)

293 Mosley v. Dretke, 370 F.3d at 479 n.5.

294 559 U.S. 314, 329-30, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010).

295 Berghuis, 559 U.S. at 329.

296 Maskeny, 609 F.2d at 189-90.

297 United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1126-27 (5th Cir. 1981) (en banc).

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insufficient to sustain a claim of racial discrimination in Thompson v. Sheppard ....."298 Here, the district

court adopted Defendants' datum of 11.84% disparity, but concluded that it was not statistically

significant.299

[*255] In one regard, the able district court arguably misstated the law, albeit in favor of Defendants.300

The Supreme Court in Berghuis noted that, "[a]bsolute disparity is determined by subtracting the

percentage of African-Americans in the jury pool . . . from the percentage of African-Americans in the

local, jury-eligible population."301 The district court noted that 31.1% (the population number used by

Defendants for African Americans) was for individuals that were over 18 years of age, and not the juryeligible population. The district court was correct to observe that this number would be adjusted

downwards because not all individuals over 18 are eligible for jury service, but all people eligible for jury

service are over 18. We agree with the district court that this number was skewed higher [**84] than it

should be for what must be an accurate analysis.

In addition, the district court—despite relying on the March 31, 2017 sample with the lowest possible

yield of African Americans on the qualified wheel—noted that even at this high-water mark early in the

qualification form collection process, the number still met precedential muster. Notwithstanding

Defendants' imperfect statistics, Duren's second prong was not satisfied. We affirm the district court on

this finding.

Defendants argue that Duren's third prong was also satisfied. In Duren, the High Court explained that a

jury-selection process "systematically excludes" jury-eligible individuals if the underrepresentation is

"inherent in the particular jury process utilized."302 Under our caselaw, the nature of the selection process

and the length of time of the discrepancy must be considered—and the second prong is independent of

the third prong.303

298 United States v. Quiroz, 137 F. App'x 667, 670 (5th Cir. 2005).

299 One thing the district court noted is that the 11.84% exists as both a high-water mark and an inhabitant of the liminal space

between discrimination and Sixth Amendment fair-cross-section challenges. In Woodfox v. Cain, this Court observed that the

Supreme Court had found 14.7%, 18%, 19.7%, and 23% to satisfy Duren's second prong for grand jury discrimination cases.

772 F.3d 358, 375 (5th Cir. 2014). In Mosley, the Fifth Circuit found a prima facie discrimination showing with a 13.5% absolute

disparity.

300 Later in the order, however, the district court noted that the jury-eligible population was proper. Either way, the bulk of the

analysis done by the district court uses the numbers Defendants proffer—which is a raw proportion of people over 18 years old

derived from census data.

301 Berghuis, 559 U.S. at 323 (internal quotation marks omitted). See also, Garcia, 121 F.3d 704, 1997 WL 450169, at *3 n.9

("Absolute disparity measures the difference between the percentage of a distinctive group in a certain population and the

percentage of that group in a subset of that population."). Garcia goes on to specify that in the jury selection context, this means

subtracting the percentage of a group on the jury wheel from the percentage of persons within that group who are eligible to

serve as jurors. Id.

302 439 U.S. at 366.

303 See Paredes v. Quarterman, 574 F.3d 281, 290 (5th Cir. 2009). See also United States v. Weaver, 267 F.3d 231, 241 (3d Cir.

2001).

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The data present in the expert reports, acknowledged by the district court, point to a differential rate of

return for juror qualification forms with respect to different distinctive groups in EDLA. We find a recent

D.C. Circuit opinion's reasoning persuasive. [**85] In United States v. Smith, our sister court succinctly

states the nearly identical challenges concerning differential response rates and the subsequent call for

increased enforcement from the Clerk's Office.304 In short, "[defendant] allege[d] that Black residents

respond to jury summonses at lower rates than other groups. Even if that is so, the resulting

underrepresentation is not 'due to [Black residents'] systematic exclusion in the jury selection

process.'"305 The D.C. Circuit reasoned [*256] that the underrepresentation was "instead due to the

independent choices of potential jurors—here, choices about whether to respond to a jury summons."306

This "autonomous choice[]" is not inherent in the j

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