AU 243 (Rev. 10/07) 10. Case Document 250 Filed 02/25/14 Page 1 of 14 Page 1 Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion Under 28 U.S.C. 2255) Instructions To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief. You must file the form in the United States district court that entered the judgment that you are challenging. If you Want. to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that. entered that judgment. Make sure the form is typed or neatly written. You must tell the truth and sign the form, If you make a false statement of a material fact, _you may be prosecuted for perjury. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or argum.ents, you must submit them in a separate memorandum. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in formo; pauperis (as .a poor person)'. To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution Where you are confined showing the amount of money that the institution is holding for you. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address: Clerk, United States District Court for Address City, State Zip Code CAUTION: You must include in this motion g1_1_l_ the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from Pivesenting additionalgrounds at a later date. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel. Case Document 250 Filed 02/25/14 Page 2 of 14 Page 2 MOTION UNDER 28 U.S.C. 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY United States District Court District (under which you were convicted): Aaron F. Brcussard Docket or Case No.: 11~299--ss Place of Confinement: Tallahassee FCI Prisoner No.: 32234--034 UNITED STATES OF AMERICA Movant linclude name under which you were convicted) v. Aaron F. Broussard 2. 6. MOTION Name and location of court that entered the judgment of conviction you are challenging: United States District Court for the Eastern District of Louisiana, Section HH Criminal docket or case number (if you Date of the judgment of conviction (if you know): September 25, 2012 Date of sentencing: February 25' -2013 Length of sentence:45 months Nature of crime (all counts): Conspiracy to commit wire fraud and theft concerning programs receiving federal funds; Wire fraud What was your plea? (Check one) (1) Not guilty 6) (2) Guilty (R) (3) Nolo contenders (no contest) 6) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and What did you plead not guilty to? Guilty: Count 1: Conspiracy to commit wire fraud and theft concerning programs receiving federal funds; Count 27: Wire fraud. Dismissed: Counts 2-26, 28-33: Wire fraud; Counts 34-38: Theft concerning programs receiving federal funds If you Went to trial, What kind of trial did you have? (Check one) Jury 6) Judge only (R) 8. Did you appeal from the judgment of conviction? Yes Case Document 250 Filed 02/25/14 Page 3 of 14 Page 3 7. Did you testify at a pretrial hearing, trial, or post-trial hearingyou did appeal, answer the following: Name of court: Docket or case number (if you know): (0) Result: Date of result (if you know): Citation to the case (if you know): Grounds raised: Did you file a petition for certiorari in the United States Supreme Court? Yes No CI If "Yes," answer the following: (1) Docket or case number (if you know): (2) Result: (3) Date of result (if you know)-: (4) Citation to the case (if you know): (5) Grounds raised: 10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications concerning this judgment of conviction in any courtyour answer to Question 10 was "Yes," give the following information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): Case Document 250 Filed 02/25/14 Page 4 of 14 Page 4 (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes No CI (7) Result: (8) Date of result (if you know): (13) If you filed any second motion, petition, -or.app1ication, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes No CI (7) Result: (8) Date of result (if you know): Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application? I (1) First petition: Yes CI No (2) Second petition: Yes CI No Cl . .--.- .. Case Document 250 Filed 02/25/14 Page 5 of 14 Page 5 If you did not appeal from the action on any motion, petition, or application, explain briefly why you did not: 12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. GROUND ONE: Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Ineffective Assistance of Counsel. See attached memorandum. Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes Cl No (2) If you did not raise this issue in your direct appeal, explain why: N.o direct appeal. Post--Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes CI No (2) If your answer to Question is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition Was filed: . Case Document 250 Filed 02/25/14 Page 6 of 14 Page 6 Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? Yes No CI (4) Did you appeal from the denial of your motion, petition, or application? Yes No (5) If your answer to Question is "Yes," did you raise this issue in the appeal? Yes No Cl (6) If your answer to Question is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question or Question is explain why you did not appeal or raise this issue: All conviction appeal rights waived in plea agreement. This is the first post-conviction proceeding. GROUND TWO: Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Case Document 250 Filed 02/25/14 Page 7 of 14 Page 7 Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes. CI No Cl (2) If you did not raise this issue in your direct appeal, explain why: Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or applicationyour answer to Question is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? Yes CI No CI (4) Did you appeal from the denial of your motion, petition, or applicationyour answer to Question is "Yes," did you raise this issue in the appealyour answer to Question (4) is "Yes," state: Name and location of the court Where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): - Case Document 250 Filed 02/25/14 Page 8 of 14 Page 8 (7) If your answer to Question or Question is explain why you did not appeal or raise this issue: GROUND THREE: Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes CI No (2) If you did not raise this issue in your direct appeal, explain why: Post-Co11victio_n Proceedings: (1.) Did you raise this issue in any post-conviction motion, petition, or application? Yes No El (2) If your answer to Question is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Case Document 250 Filed 02/25/14 Page 9 of 14 Page 9 Result (attach 'a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? Yes El No El (4) Did you appeal from the denial of your motion, petition, or application? Yes El No (5) If your answer to Question is "Yes," did you raise this issue in the appeal? Yes No Cl (6) If your answer to Question is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the -court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question or Question is explain why you did not appeal or raise this issue: GROUND FOUR: Supporting facts -(Do not argue or "cite law. Just state the specific facts that support your claim.): Case Document 250 Filed 02/25/14 Page 10 of 14 Page 10 Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain Why: Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes Cl No (2) If your answer to Question is "Yes," state: "Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your rnoti.on, petition, or application? Yes Cl No (4) Did you appeal from the denial of your motion, petition, or application? Yes No El (5) If your answer to Question is "Yes," did you raise this issue in the appeal? Yes No (6) If your answer to Question. is "Yes," state: Name and location of the court where the appeal. was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): - - 13. Case Document 250 Filed 02/25/14 Page 11 of 14 Page 1 1 (7) If your answer to Question or Question is explain why you did not appeal or raise this issue: Is there any ground in this motion that you have previously presented in some federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them: Ineffective Assistance of Counsel. This ground did not become apparent until after conviction. See attached. - 14. 15. Do you have any motion, petition, .or appeal pending (filed and not decided yet) in any court for the judgment you are challenging? Yes El No If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are 'challenging: At preliminary hearing: No preliminary hearing. At arraignment and plea: Robert' Jenkins, 631 St. Charles Avenue, New Orleans, LA 70130 At trial: N0 trial. At sentencing: Flobertdenkins, 631 St. Charles Avenue, New Orleans, LA70130 - - - 16. 17'. Case Document 250 Filed 02/25/14 Page 12 of 14 Page 12 On appeal: No appeal. In any post--conViction proceeding: is is the first and only proceeding. Pro bone counsel are Athur A. Lemann, 1100 Poydras St, 'Ste. 3250, New Orleans, LA 70163; Emily Ratner, 316 S. Dorgenoie, New Orleans, LA 70119. On appeal from any ruling against you in a post--conviction proceeding: Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes CI No Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes CI No If so, give name and location of court that imposed the other sentence you will serve in the future: Give the date the other sentence was imposed: Give the length of the other sentence: (cl) Have you filed, or do you plan to file, any motion, petition, or application that challenges the judgment or sentence to be served in the future? Yes No . . . ..-- -- . .. Case Document 250 Filed 02/25/14 Page 13 of 14 Page 13 18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one--year statute of limitations as contained in 28 U.S.C-. 2255 does not bar your motion.* The Antiterrorism and Effective Death Penalty Act of 1996 as contained in 28 U.S.C. 2255, paragraph 6, provides in part that: A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the l.atest of -- (1) the date on which the judgment of conviction became final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws' of the United States is removed, if the movant was prevented from making such a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on "collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Case Document 250 Filed 02/25/14 Page 14 of 14 Page 1 4 Therefore, movant asks that the Court grant the following relief: or any other relief to which Inovant may be entitled. I Signature 0 Attorney (if any) I declare (or certify, Verify, or state) under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. 2255 was placed in the prison mailing system on (month, date, year). Executed (signed) on (date). Signature of Movant If the person signing i.s not movant, state relationship to movant and explain Why movant is not signing this motion. Case Document 250-1 Filed 02/25/14 Page 1 of 29 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA CR. NO. 11-299 VERSUS SECTION I AARON F. BROUSSARD MEMORANDUM IN SUPPORT OF MOTION TO VACATE AND SET ASIDE SENTENCE MAY IT PLEASE THE COURT: INTRODUCTION Mr. Aaron Broussard returns to this Honorable Court as the Eastern District of Louisiana continues -- in the words of Judge Kurt D. Engelhardt -- on a "legal odyssey unlike any other," replete With unpreced-ented instances of prosecutorial misconduct and remarkable results in some of the highest profile criminal prosecutions in the District, including the granting of government motions to dismiss indictments with prejudice, -a new trial for five defendants, and extraordinarily lenient sentences in multiple cases. VVhen Mr. Broussard pled guilty before this Cou.rt on September 25, 2012, this District's "legal odyssey" had barely begun -- and by the time of his sentencing on February 25, 2013, that odyssey had led to the toppling of the local U.S. Attorney's Office and the imminent appointment of .a new U.S. Attorney. As this Court noted in response to the resignation of the former U.S. Attorney prior to Mr. Broussard.'s sentencing, "[t]11ere is a new sheriff in town." Rec. Doc. 218, 2. However, unbeknownst to this Court at the time of Mr. Broussard's sentencing, the old sheriff had left a ghost town full of dead bodies in his wake. As investigations by the local U.S. Attorney's Office, the Office of Professional Responsibility of the Department of Justice, a11d Case Document 250-1 Filed 02/25/14 Page 2 of 29 Section of the local U.S. District Court circled the wagons and communicated their findings in secretive smoke signals, defense attorneys across the land were each relegated to the position of Lone Ranger, on the hunt for truth and justice in case after case. Several of these attorneys ultimately succeeded, tracking the. smoke until they found fire and assembling the results referenced above and described in detail below. However, this Honorable Court was deprived of the revelations ultimately unearthed throughout this District. Without a map and with the cavalry trailing months behind, Mr. Broussa1'd's counsel had fired his last rounds blindly into the night. Mr. Broussard's counsel failed to conjure the old sheriff's ghosts from their shallow graves, and in the end, his client became one of the last victims of the old sheriff' reign. Mr. Broussard's Lo11e Ranger was unable to appraise this Court of the true nature and landscape of the Eastern District's Wild West. The old sheriff's posse had removed the sign posts on their way out of town, and the secrets known to the local U.S. Attorney's Office, the Department of Justice, and Section of the local U.S. District Court were harder to come by than a coo-1 drink of water in the Mojave. But Mr. Broussard is no longer in the Wild West. The old sheriff's legacy, the government agencies that concealed his ghosts, and Mr. Broussard's trusty but faltering Ranger are subject to the judicial scrutiny required by the United States Constitution. The highest Court in the land has recognized "that 'the right to counsel is the right to the effective assistance of counsel,'" and that effective assistance entails "keep[in_g] the defendant informed of important developments in the course of the "prosecution." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting 12. Richardson, 397 U.S.. 759, 771, n. 14 (1970); Smcicland, 466 U.S. at 688 (citing Powell 12. Alabama, 287 U.S. 45, 68-69 (1932)). That Court has made clear that Case Document 250-1 Filed 02/25/14 Page 3 of 29 "Government violates the right to effective assistance when it interferes -in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Strickland, 466 U.S. at 686. Mr. Broussard now arrives in this Court with the respectful request that the Court apply the Sixth Amendment to his case, and find that Mr. Broussard's counsel offered him ineffective assistance, due in large part to the insurmountable interference that the old sheriff along with his U.S. Attorney's Office, the Department of Justice, and Section of this Court have caused to the defense attorney's provision of counsel in this case, rendering Mr. Broussard's conviction and sentence unconstitutional. REESTABLISHING THE CONSTITUTION. AND SPECIFICALLY THE SIXTH AMENDMENT. IN THE WILD WEST OF THE EASTERN DISTRICT In Mr. Broussard's case, the government prevented Mr. Broussard's counsel fiom l-earning "important information" about the "relevant circumstances" surrounding his prosecution. The U.S. Attorney's Office, the Department of Justice along with its Office of "Professional Responsibility, and Section of the US. District Court for the Eastern District of Louisiana interfered with defense counsel's provision of effective assistance at multiple stages of this case, including defense counsel's advocacy for an Alford plea, counsel's advice that Mr. Broussard plead guilty, and the evidence defense counsel presented to this court at the time of sentencing. The Sixth Amendment entitles all criminal defendants to the assistance of counsel for their defense. In Srricidand v. Washington, the Supreme Court articulated a two--part test for ineffective assistance of counsel, explaining that to succeed on such a claim, a defendant 1nu.st show: Case Document 250-1 Filed 02/25/14 Page 4 of 29 1. [C]ounsel's performance was deficient. This requi.res showing that counsel made errors so serious that cou.nsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment; 2. eficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 68-7. The defendant must show both prongs of this test to establish that "a breakdown in the adversary process renders the result unreliable." Id. The Court noted in Stricidand that the test for ineffective assistance does not adhere to specific -guidelines, as strict rules for effectiveness "would interfere with the constitutionally protected independence. of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 689 (citing United States v. Decoster, 624 F.2d 196, 208 (D.C. Cir. 1976)). In accordance with this principle, the Stricidand Court noted that "[j]udicial scrutiny of eounsel's performance must be highly deferential," and a defendant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy." Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91 (1955)). While the Court's deference to counsel"s perforrnance a.nd the presumption of trial strategy create significant burdens for a defendant to meet, the Strickland Court does outline certain actions that effective counsel must take. Included in those actions is the requirement that defense -counsel "keep the defendant informed of important developments in the course of the prosecution." Id. at 688 (citing Powell v. Alabama, 287 U.S. 45, 68-69 (1932)). The Fifth Circuit has recognized that "providing counsel to assist a defendant i11 deciding whether to plead guilty is '[o]ne of the most precious applications of the Sixth United States v. Rivas-Lopez, 678 F.3d 353, 356 (5th Cir. 2012) (quoting United States v. G-rammas, 376 F.3d 433, 436 (5th Cir. 2004)) (alteration in original). The Fifth Circuit has .--.. -I Case Document 250-1 Filed 02/25/14 Page 5 of 29 further recognized that constitutionally effective assistance requires that "a defendant be aware of the relevant circumstances and the likely consequences of his decision so that he can make an intelligent choice" "[w]hen considering whether to plead guilty or proceed to trial." Id. at 356-57 (citing Teague Scott, 60 F.3d 1167, 1170 (5th Cir. 1995)). While the Striekio-mi standard must be flexibly applied to the unique facts of each case, both the Supreme Court and the Fifth Circuit agree that providing a defendant with important information about his -case is a critical function of effective assistance of counsel. Strickland, 466 U.S. at 688; Rivas--Lopez, 678 F.3d at 356-57. The Strickland Court specifically noted that "Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Strickland, 466 U.S. at 686 (citing Geders v. Uriited States, 425 U.S. 80' (1976); Herring v. New York, 422 U.S. 853 (1975); Brooks 12. Tennessee, 406 U.S. 605 (1972); Ferguson v. Georgia (1961)). The Circuit recognized the severity of government interference with assistance of counsel in United States v. Gutierrez, stating that "various kinds of state interference with counsel's assistance" are "legally presumed to result in prejudice." No. 11-40331, 12, filed December 6, 2013 (5th Cir) (quoting Stricldcirici, 466 U.S. at 692~93). The local U.S. Attorncy's Office, the Office of Professional Responsibility, and Section of the Eastern District exercised the type of government interference that violates the Sixth Amendment throughout Mr. Broussard's case. Without the "important information" that has subsequently been revealed by testimony of members of the U.S. Attorney's Office and critical developments in the sealed prosecutorial misconduct inquiry in Bowen, commonly known as the "Danziger case," defense counsel was unable to effectively advocate for Mr. Broussa1'd's relief from the egregious but concealed misconduct in his case; defense counsel could not adequately Case Document 250-1 Filed 02/25/14 Page 6 of 29 advise Mr. Broussard of the "relevant circumstances" of his plea; and counsel could not effectively advocate for him throughout his plea negotiations, the guilty plea he entered, and at his sentencing. OLD REIGN -- OR, IN MR. WORDS, Aaron Broussard was ind.icted on December 2, 2011, along with several others, on charges of wire fraud, conspiracy to commit wire fraud, and theft concerning programs receiving federal funds. Rec. Doc. 1. The indictment was signed, inter alia, by Jim Letten, the former US. Attorney; Jan Mann, the former First Assistant U.S. Attorney; and her husband, former AUSA Jim Mann. A grand jury subsequently returned a superseding indictment on February 3, 2012,_ containing additional -counts of these same charges, and also containing the signatures of these same prosecutors. Rec.. Doc. 53. One month later, on March 12, Sal Perricone, a senior litigator in Mr. Letten's posse and the best friend of the Manns, was outed as the anonymous online commenter "Henry L. Mencken 1951" on the news website nola.com. The following month, on April 20, Letten's office was recused in United States v. Fazzio" and the Department of Justice took over the prosecution of that case. The next month, May 10, 2012, counsel for Mr. Broussard filed a Motion to Recuse and for Order Directing the Government to Show Cause Why it Should Not be Held in Contempt for Violating Rule 6(e) of the Federal Rules of Criminal Procedure. Rec. Doc. 82. In the Memorandum in Support of that Motion, Mr. Broussard's counsel outlined a number of alarming developments related. to the public revelation of scathing online comments about several cases within the Eastern District made anonymously by Mr. Perricone, a/kfa Mencken, as well as possible leaks of grand jury information in violation of Federal Rule of Criminal Procedure The memorandum included specific online comments disparaging Mr. Broussard, as well as his attorney. See, Perricone'-s ano11y1nou.s Nola.co1n Case No. 11457 ., - Case Document 250-1 Filed 02/25/14 Page 7 of 29 comment, "What is the former president of white suburbia doing with a black Tulane and Broad lawyer?"; catalogs of Sal Perricone's anonymous comments under the aliases "Henry L. Menc1>1nonth term of imprisonment, in light of "[t]he govern1nent's still--unexplained d.ecision to dismiss the Fazzio prosecutioii, results in a perversity of Defendant's Sentencing Memorandum in Support of a Downward Variance, Rec. Doc. 27, 4 (ED. La. May 24, 2013). Mr, Ton's judge may have agreed -- Mr. Ton received a sentence of three years' probation. '0 Order, United States v. Fazzio, er ct}, Case No. 11-157, Rec. Dec. 294 La. March 12, 2013). Although prosecutoiial misconduct did not constitute the grounds for the government's motion, the history of this prosecution, which included the resignation or retirement of the U.S. Attorney, his First Assistant, and two Assistant U.S. Attorneys during rc1narka.ble revelations of inisconduct, cannot be ignored. See, e. Gordon Russell and Manuel Torres, "River Birch probe's abrupt ending has observers speculating about Justice report," Nolacom, March 8, 2013, avaitable at Order and Reasons, United States v. Bowen, et at, Case No. 10-204, Rec. Doc. 1157 (ED. La. September 17, 2013). 18 1 Case Document 250-1 Filed 02/25/14 Page 19 of 29 The "positive ruling from every judge" on which Ms. Mann relied in declining to encourage Mr. Letten to inform OPR (and on which Mr. Letten may have relied in apparently failing to inform OPR about the misconduct) certainly included this court's denial of Mr. Broussard's Motion for Sanctions following Ms. Mann's submission of her report in this case. In other words, Ms. Mann appears to have believed that so long as no judge ever caught her, Mr. Letten, and the local US. Attorney's Office in their lies and misrepresentations, no broader disclosure to the Department of Justice, the judiciary, the public, or counsel for -affected criminal defendants was necessary. This withholding of relevant information in order to conceal misconduct and effectively refute allegations of misconduct, which has subsequently led to extraordinary relief in multiple cases, clearly undermined the effectiveness of Mr._ Broussard's counsel. The Supreme Court has recognized that "there ca11 be no restrictions upon the function of counsel in defending a prosecution in accord with the traditions of the adversary process that has been constitutionalized in the Sixth a11d Fourteenth. Amendments." Herring v. New York, 422 US. 853, 857 (1975). Yet Ms. lvlann herself has admitted that she and Mr. Letten appear to have established a practice of undermining that adversary factfinding process at every opportunity, so long as no defense attorney or judge learned of their unethical activities and deliberate stonewalling. Because of the atmosphere this stonewalling created throughout the Eastern District, and specifically because of the "positive ruling" the local US. Attorney's Office had obtained in this ca.se -on Mr". Broussard's motion for contempt sanctions, which came less than one month before Mr. Brou.ssard entered. his guilty plea and which expressly relied upon the govern1nent's misrepresentations in furtherance of that stonewalling, Mr. Broussard's counsel was led to 19 Case Document 250-1 Filed 02/25/14 Page 20 of 29 believe that Mr. Broussard could not obtain further relief related to the government's misconduct, and that it was in his client's_ best interest to plead guilty. Based on this coercive atmosphere deliberately created by the local U.S. Attorney's Office throughout the Eastern District and specifically in this case, Mr. Broussard's counsel was unethically "restricted" by that Office from engaging in the "adversary factfinding process" in the manner required by the Sixth Amendment, rendering Mr. Broussard's plea involuntary. Herring v. New York, 422 U.S. at 857 (1975). B. Mr. Broussard's Sentencing The government's interference with defense counsel's provision of effective assistance of counsel in Mr. Broussard's case is nowhere more visible than in his sentencing. By the time of Mr. Brou.ssard's sentencing on February '25, 2013, the sealing orders of Jud.ge Engelhardt in Bowen had combined with the actions and stonewalling of the local U.S. Attorney's Office to prevent defense counsel from using all available tools and information to advocate for a more lenient sentence. None of the extraordinary remedies mentioned in the preceding section had yet come down anywhere in the Eastern District." At the time that Mr. Broussard was sentenced, no court in the Eastern District had provided any jud.icial relief for the misconduct that resulted. in the total collapse of Mr. Letten's office. Judge Engelhardt had ordered that the Department of Justice convene a new inquiry into prosecutorial misconduct in that case, and had strongly encouraged the DOJ to commission a third party to investigate the allegations. The DOJ chose to keep the investigation in-house, appointing Atlanta--based federal prosecutor John Horn to fulfill the judge's order. Judge Engelhardt set a deadline of December 26 for Mr. report, but Mr. Horn requested. an extension of 30 days. Bowen, Rec. Doc. 107-0, 49 (E.D. La. Nov. 26, 2012). 011 March 11, 2013, '2 See supra, notes 9-11. .20 - Case Document 250-1 Filed 02/25/14 Page 21 of 29 just two weeks after Mr. Broussard pled guilty, the indictments were dismissed with prejudice on tl1e government's motion in United States v. Fazzio, et at. Case No. 11-157, Rec. Doc. 294. The government cited "evidentiary concerns" and "the interests of justice" in its Motion to Dismiss the Indictment (Rec. Doc. 293), which led to widespread speculation that the unfolding misconduct issues may have played a significant role. But it was still publicly unknown whether Mr. Horn had generated a report or what the findings of that report might be." OPR had also refused to publicly release any findings it had made into its own misconduct investigations." The public, and thus Mr. Broussard and his counsel, could not have known that within sealed filings and hearings, Judge Engelhardt and the defendants in Bowen were being led "on a legal -odyssey unlike any other," which ultimately revealed widespread misconduct affecting a broad number of defendants across the Eastern District. Judge Engelhardt had placed all Bowen counsel under 1nultipl.e seal orders, and relevant events went entirely undocketed, completely hidden fiom public view." By the end of August, 2013, the Times--Pz'cayune and the Associated Press had moved. to intervene in the case, insisting that the public had a constitutional right to the sealed 'information, but Judge declined to u11seal the requested documents. It was not until September 17, 2013, upon the filing of the judge's Order and Reasons, that the public would begin to learn of the misconduct that had led the judge to grant a new trial in one of the most significant federal prosecutions in the Eastern District in decades. '3 See, Gordon Russell and Manuel Torres, "River Birch probe's abrupt ending has observers speculating about Justice report," March 8, 2013, Nolacom, available at ("Horn's report was due to Engelhardt an. 25, but it's not clear whether it was completed. It's not mentioned in the court file, and Horn has declined to answer questions, as has Engelhardt.'') 14 See, Gordon Russell, "Justice Department declines to make public its investigation of US. attorney's office, for now," April 11, 2013, Nola.com, at nola.com/cr.i mef index. ssf/ 20 1 3 I 04/ stic e_department_declines_to.htm1 (OPR indicated to Nola. com that was "denying the news organization's [Freedom of Information Act] request for the OPR investigation under a federal law that allows suc-h reports to be kept under wraps when disclosing them 'could reasonably be expected to- interfere with enforcement '5 Memorandum in Support of Motion for Access to Future Proceedings and to Sealed and Un--Docketed Information by the Timcs--Picayune, Bowen, Rec. Doc. 1126-3, 3 (E.D. La. A11g. 6 2013). 21 Case Document 250-1 Filed 02/25/14 Page 22 of 29 Among the revelations contained within the judge's Order were Mr. Letten's knowledge, likely beginning in March of 2012 (and prior to Mr. Broussard's guilty plea in the instant case) of Ms. Mann's anonymous commenting; the necessity of multiple Horn Reports because of the government's failure to adequately explain the extent of prosecutorial misconduct in that case;16 and the overall lack of candor that appeared to pervade the government's actions. Judge Engelhardt conclud.ed that he had not unearthed the full extent of misconduct by the time he granted the new trial, but was certain that further inquiry would not change his mind. Since the September, 2013 granting of a new trial to the Bowen defendants, a significant number of defendants the Eastern District have sought some form of relief for the widespread misconduct's effect 011 their cases." These defendants are rooting their claims in what is now publicly known, which is at least enough for their counsel to discern what, specifically, exists but is not publicly known. Defense counsel are now able to request certain transcripts, reports, or other documents whose very existence has only been revealed by Judge Engelhardt's orders, and the magistrates and judges in their cases can review the requests, and if in their View access to the documents may be warranted, they can examine the documents -in camera to determine whether they support the defendants' claims. Judge Engelhardt recently released the sealed 16 Order and Reasons, Bowen, Rec. Dec. 1137 (ED. La. Sept. 17, 2013) ("the Court expressed a concern that the two previous Horn Reports seemed to not only contain appropriate factual information, but also verbiage that either was anodyne in nature, or expressed advo-cation in the form of arguably debatable mitigating Id. at 23; "On April 22, 2013, the Court specifically inquired: 'My concern, when I ask you about who all might have reviewed the report before you submit it to me, is whether anyone is adding to the report after you do your fact~ finding; is anyone adding to the report, before it comes to me, in the nature of advocacy?" Id. at n. 27.). '7 See, Motion to Compel Discovery, United States v; Jackson, Case No. 13-131, Rec. Doc. 17 (E.D. La. Sept. 20, 2013); Motion for Sanctions for Rule 6(e) Violation and Motion to Dismiss, United States v. Hanicton, Case N.o. 12-001, Rec. Doc. 425, filed Nov. 8, 2013 and Gregory McRae's Motion to Intervene to Obtain Sealed Material, Bowen, Rec. Doc. 1250 (ED. La. Jan. .23, 2014); Mova11tRenee Gill Pratt's Motion to Intervene to Obtain Access to Sealed Material, Bowen, Rec. Doc. 1255 (ED. La. Jan. 24, 2014). 22 4. . Case Document 250-1 Filed 02/25/14 Page 23 of 29 documents to the magistrates and district judges in two cases, in the event those judges determined the documents were significant to those proceedings.18 While review of these sealed documents is increasingly becoming a practice in the Eastern District, Mr. Broussard was unable to perforate Judge Engelhardt's sealing order prior to Mr. Broussa;rd's sentencing, which preceded Judge Enge1hardt's revelatory Order and Reasons by eight months. In fact, by February 25, 2013, the date of Mr. Broussard's sentencing, the sealing orders had been so effective that defense counsel could not even know what kinds of documents had been generated that he might be able to request in preparation for sentencing. As a result, none of the evidence of prosecutorial misconduct that would be laid bare in the months to follow was presented to this Court at sentencing. As the Supreme Court recognized in Stricicland, "Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." 466 U.S. at 686. In Mr. Broussard's case, no fewer than three government entities -- the local U.S-. Attorney's Office, Judge Engelhardt's Section of the U.S. District Court of the Eastern District of Louisiana, and the Department of ustice.'s Office of Professional Responsibility withheld critical information that defense counsel required in order to make "independent decisions about how to conduct the defense." The Supreme Court recognized in Kyfes v. Whitley that "the suppression by the prosecution of evidence favorable to an accused upon request violates d.ue process where the evidence is material either to guilt or to punishme-m', irrespective of the good faith or bad faith of the prosecution." 514 US. 419, 433 (1995) (quoting Brady v. Maryicmd, 373 U.S. 83, 87 (1963) (emphasis added). The Court further noted. that an "individual prosecutor l1as a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, 18 Order and Reasons, Bowen, Rec. Doc. 1263 (ED. La. Feb. 3 2014). 23 J. Case Document 250-1 Filed 02/25/14 Page 24 of 29 including the police." Kyles, 514 U.S. at 437 (citing Brady, 373 U.S. at 87). In the Supreme Court's view, "the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." Kyies, 514 U.S. at 438. In Mr. Broussard's case, all three of these government entities The U.S. Attorney's Office, Section of the U.-S. District Court for the Eastern District of Louisiana, and OPR -- participated in the government's suppression of favorable evidence through actions that rendered defense cou.nsel ineffective, as he was not even aware of what specific favorable evidence he should request. The local U.S. Attorney's Office, Judge Engelhardt, and OPR have cited various reasons for concealing their findings and conclusions, including interference with ongoing investigations as well as privileges and confidentialities. However, regardless of the reasons behind the decisions of these bodies, which certainly may have been reached in good faith, their suppression of this evidence from public view and thus from the view of Mr. Broussard and his counsel constitutes a serious violation of his Sixth Amendment right to effective assistance of counsel as well as his constitutional right to due process. THE CONTINUED EXT-IUMATION OF THE OLD DEAD BODIES The evidence contained within the Horn Reports, withheld from defense counsel's knowledge prior to Mr. Broussard's sentencing by effect of Judge Engelhardt's seal orders, OPR's refusal to make public itsown investigations, and the U.S. Attorney's Office's continued stonewalling, led to a markedly different sentencing result i11 United States v. Mouton, less than a week before Judge En-gelhardt granted a new trial in Boweralg In Mouton, the defendant had pled guilty to receiving illegal payoffs by an agency or pro_gra1n receiving federal funds, for which he'd originally been targeted because of his alleged involvement in a conspiracy with Dominick 19 Sentencing Transcript, Case No. 11-048, Rec. Doc. 61 (ED. La. Sept. 12, 2013) 24 .. .. 3 Case Document 250-1 Filed 02/25/14 Page 25 of 29 Fazzio. As referenced above, six months before the sentencing (but after Mr. Broussard was sentenced), the judge in Fazzio, er al had dismissed the indictments against Fazzio and Titus with prejudice, at the government's request. Mr. Mouton's judge was now sentencing a man who had pled guilty to conspiring with people whose indictments had entirely evaporated. By this point, almost a year after the revelations of Judge Engelhardt's order of renewed investigation, the dismissed indictments, and the unwillingness of OPR to make public its own findings related to the prosecutorial misconduct, it was clear to defense attorneys in the Eastern District that something contained within the sealed materials might directly affect their clients. Mr. Mouton's lawyers recognized as much, and specifically requested various materials, including whatever findings Mr. Horn a11d OPR had made." Mr. Mouton's counsel recounted for the court the multiple times they had attempted to obtain these materials from the government, and that they were rebuffed each time. R-ec. Docs-. 34-1, 8 34-2. Mr. Mouton's judge took the defendant's motion to compel discovery under advisement, and stated at his sentenein that The Court is deeply troubled and is compelled to note the Department of Justice's failure to show its investigative reports to the United States Probation Office for the Eastern District of Louisiana in order to aid that office and this Court in preparation of a presentence investigation report required by law to assist this Court in sentencing this defendant and fashioning an appropriate and fair sentence under the circumstances in this ca.se. Rec. Doc. 61, 26:11-18 (E.D. La., filed Sept. 12, 2013'). Mr. Mouton faced a maximum sentence of 60 months. Id. at 25: 12-13. The government had requested a downward departure of six to 12 months, recommending a sentence of at least 48 months. Id. at 4:10-12. However, 11oting the "very strong environment of proseeutorial misconduct" that confronted the court, -and stating that the court was "deeply troubled by what to any reasonable person might be potential un_yielding 2" Mouton, Rec. Doc. 34 (E.D. La. April 29, 2013). 25 Case Document 250-1 Filed 02/25/14 Page 26 of 29 government abuse," Mr. Mouton's judge ultimately sentenced hin1 to home detention for six months and three years ofprobation. Id. at 28:11-12, 26:8~10; 29:8-9; 30:17-18. Mr. Mouton was 11ot the only defendant sentenced after Mr. Broussard who received extraordinary leniency at sentencing due in some part to the government's prosecutorial misconduct. In October of 2012, Hendrilcus Ton had pled guilty to one count of conspiring to defraud the United States by failing to collect, -account for, and pay over employment tax and one count of willful failure to collect, account for, and pay over employment tax. United States 12. Ton, Case No. 12-272, Rec. Doc. 27, 2 (E.D. La. May 24, 2013). Based on the offense level to whicl1 Mr. Ton and the government stipulated as part of Mr. Ton's plea agreement, Mr. Ton faced a sentencing guidelines range of 37-46 months in prison. Id. The government ultimately recommended a lower offense level due to the defendant's assistance, reducing Mr. Ton's proposed prison term to a range of 24-30 months, and endorsing 24 months as an appropriate prison sentence. Id. The government's recommendation of :a downward departure was due in large part to Mr. Ton's continued cooperation however, remarlcably, the government had previously moved to dismiss with prejudice the indictment against Domick Fazzio, the person against whom the government had wanted Mr. Ton to cooperate. As defense counsel for Mr. Ton and then--nominee for U.S. Attorney for the Eastern District of Louisiana explained to the court, govern1nent's still--unexplained decision to dismiss the Faazio prosecution, when combined with this recommendation, results in a perversity of Id. at 4. It appears that the court may have agreed: Mr. Ton was only sentenced to three years of probation on each count, to be served concurrently. This Court also showed significant leniency to Mr. Broussard during his sentencing, sentencing him to 46 months in prison when the U.S. Probation Office had calculated a 26 Case Document 250-1 Filed 02/25/14 Page 27 of 29 sentencing range of 78 to 97 months, and this Court had calculated the sentencin range as 46 to 57 months. This Court has previously expressed its discomfort with the federalism issues arising from this federal prosecution of Mr. Broussard for activities during his tenure in elected state office. If defense counsel had been able to bring the OPR report and Horn Reports to this Court's attention, he would have demonstrated a remarkable level of government misconduct and obfuscation that infected this case, further supporting this Court's federalism--based concerns. However, the concealing by the local U.S. Attorney's Office, OPR, and Section of the Eastern District impeded defense counsel from making this crucial showing. As of this filing, evidence of a concerted effort by the leadership of Letten's office and the local office of the FBI to prejudice the due process rights of defendants by contaminating public opinio11 and potential jurors (both grand and petite) by leaking secret grand jury information and through anonymous blogging of racial epithets and other derogatory comments continues to grow. In United States v. Hankton, er al, the government has acknowledged a meeting between two FBI agents and three reporters shortly before the handing up of -a massive indictment involving, inter aka, five death-eligible defendants, which appears to violate Federal Rule of Procedure prohibition 011 leaks of matters occurring before the grand. jury. Case No. 12-001, Rec. Dec. 477, 477-30 (E.D. La. Jan. 15, 2014). Tellingly, the meeting between the FBI agents and the reporters occurred on October 10, 2012, the very day that Mr. Perricone was testifying behind closed doors in Bowen that he had 'long believed that the FBI was responsible for leaking matters occurring before the grand jury. Case No. 10-204, Rec. Dec. 1137, 100, (E.D. La. Sept. 17, 2013). In a remarkable change, former U.S. Attorney Jim Letten, whose reign lasted beyond the handing up of the indictment, has not submitted any affidavit, let alone one similar to 27 Case Document 250-1 Filed 02/25/14 Page 28 of 29 those he submitted in Bowen and Broussard, categorically denying any leaks by the government. The Hankton court is currently preparing for an evidentiary hearing on the 6(e) violations alleged by multiple defendants in that case, and one of the defendants, Andre Hankton, has submitted a memorandum cataloging nearly 20 cases with credible allegations of government leaks. Case No. 12-001, Rec. Doc. 504-2. Similarly, the defendant in Um'ted States 12. Jackson has raised significant allegations of prosecutorial misconduct in the form of additional online commenters who have not yet been exposed as government actors. Case No. 13-131. The magistrate in that case, who has been able to review the Horn Reports at the urging of defense counsel and who is now sensitive -- as is the rest of the Eastern District judiciary to the widespread misconduct that has affected so many crimina.l cases, has ordered that all information related to those commenters be submitted in camera for his review. It is highly likely that these commenters will be revealed to be members of the government. Rec. Doc-. 47 (ED. La. Feb.. 14 2014). CONCLUSION: AFTER THE EXI-IUMATION. A RESURRECTION The pattern and practice of prosecutorial misconduct that is now plainly evident throughout the Eastern District has been slow to surface because of the stonewalling and misrepresentations made by the highest members of the local U.S. Attorney's Office. It is entirely possible that the proceedings in and Jackson will reveal further misconduct related to Mr. Broussard's case, which he will explore at an evidentiary hearing and in additional pleadings if they are required. However, at this stage it is clear that the government, through the local U.S. Attorney's office, the Office of Professional Responsibility, and Section of the U.S. District Court for the Eastern District have so completely interfered with defense counsel i11 this case as to render him ineffective. Prior to Mr. Broussard's plea, and particularly prior to his 28 Case Document 250-1 Filed 02/25/14 Page 29 of 29 sentencing, the judges of the Eastern District had limited information about the "troubling" air of prosecutorial misconduct infecting their cases. However, in the face of overwhelming evidence of rnisconduct, multiple judges throughout the District are now responding accordingly. Unfortunately, and unconstitutionally, it was not until after Mr. Broussard's sentencing that these judges began to air these serious revelations in the public eye, a11d provide meaningful relief. This Court now has the opportunity to bring the proceedings in United States v. Broussard in line with the U.S. Constitution and specifically tl1e Sixth Amendment, by vacating Mr. Broussard's conviction, or, in the alternative, by vacating his sentence, and resentencing him in a way that considers the full extent of prosecutorial misconduct that has infected this case. Former defense counsel for Mr. Brouss-ard was unable to make a constitutionally adequate showing of the relevant circumstances affecting his client's prosecution. However, in this new era, and with continuing developments throughout the District, Mr. Broussard's present counsel is prepared to nlake the showing necessary to enforce Mr. Broussard's constitutional rights. Respectfully tbmitted, J. Artliilr A. l,emann Ill #8296 1100 Poydras Street, Suite 3250 New Orleans, Louisiana 70163 (504) 522-8104 Emily Faye Ratner #35289 316 S. Dorgenois Street New Orleans, Louisiana 70119 (504) 822-4455 mse1nilyfaye@gmail.com 29 Case Document 250-2 Filed 02/25/14 Page 1 of 6 STATE OF LOUISIANA PARISH OF ORLEANS AFFIDAVIT BEFORE ME, the undersigned duly commissioned and qualified Notary Public, personally came and appeared: ROBERT CHARLES JENKINS who, after being duly sworn, made the following declaration under penalty of perjury, and declared: I represented Mr. Aaron F. Broussard in United States v. Broussard, Case No. 11-299, in the Eastern District of Louisiana. Over the course of that representation I filed multiple motions related to the misconduct that I suspected in the local U.S. Attorney's Office at that time. A great deal -of information related to that misconduct has since become publicly available, but the government withheld this information from me throughout my client's prosecution and sentencir-1g..The government's withholding of this highly relevant information directly interfered with my ability to advise Mr. Broussard of important information related to his prosecution and the relevant circumstances surrounding his guilty plea, and to make independent decisions about hovv to conduct Mr. Broussard's defense. This withholding of important information rendered my assistance as Mr. Broussard's counsel ineffective and thus unconstitutional under the Sixth Amendment. Alforci Plea At some point after it was publicly revealed that Assistant U.S. Attorney Salvador Perricone had been anonymously commenting on Nola.-com, I asked Assistant U.S. Attorney Klebba whether the government would consider accepting an Alford plea in this case. Mr. Klebba said that the government would not accept an Alford plea. I subsequently asked Judge Case Document 250-2 Filed 02/25/14 Page 2 of 6 Head whether he would consider accepting an Alford plea. The judge said that he would not accept an Afford plea without the government"'s consent. Had I known that then-First Assistant U.S. Attorney Jan Mann had participated in the same kinds of misconduct as Mr. Perricone, that she was hiding her misconduct from multiple judges, and that U.S. Attorney Jim Letten now appears to have known about Ms. Mann's misconduct, I would have pushed the government to reconsider its position on an Alford plea. And I certainly would have informed Judge Head of these facts. Because of the lack of information available to me about Ms. Ma.nn's and Mr. Letten's activities and knowledge, I was unable to paint a full picture of the misconduct that plagued the government's case. The government's obstructi.on substantially inhibited my ability to advocate for a resolution in which Mr. Broussard would not have to admit guilt. Motion for Sanctions for Violating Rule 60:) Prior to Mr. Broussard's guilty plea, I filed a Motion to Recuse andifor Order Directing the Government to Show Cause Why it Should Not be Held in Contempt for Violating Rule 6(e) of the Federal Rules of Criminal Procedure. Rec. Doc. 82. The Motion included specific allegations about leaks of grand jury information to the media. Judge Head concluded that we had established a prima facie case of leaking in two of the news articles we submitted. However, the judge. also found that the government's evidence -- a report by Jan Mann summarizing the misconduct investigation she conducted on behalf of the local Attorney's Office and an affidavit from then-U.S. Attorney Jim Letten denying any leaking by the -government -- sufficiently rebutted our prima facie case for 6(e) violations. Had I known at that time what has since been revealed about Ms. Mann's misconduct and Mr. Letten's knowledge of her misconduct even as he chose her to investigate identical .. .. .. Case Document 250-2 Filed 02/25/14 Page 3 of 6 misconduct by Mr. Perricone, I would have argued to Judge Head that Ms. Mann's report and Mr. Letten"'s affidavit were entirely unreliable, and thus could not rebut our prima facie showing of 6(e) violations. I believe it is highly likely that if I had had the information necessary to make this showing, Judge Head would have granted our request for an evidentiary hearing to elicit the full extent of Rule 6(e) violations and related misconduct in Mr. Broussard's case. I remain fully confident that the government was involved in leaking information to the press in violation of Rule However, without the information that Ms. Mann and Mr. Letten were actively concealing at that time, I was unable to overcome the rebuttal evidence offered by the government. Agreeing to Enter Into the Guilty Plea After Judge Head denied our Motion for Recusal and for the Government to Show Cause Why it Should Not be Held in Contempt for Violating Rule 6(e) on July 26, 2012, and based on the" information available to me -about the relevant circumstances surrounding Mr. Broussard's case, Ilbelieved that Mr. Broussard would not be able to obtain relief based on any additional allegations related to the misconduct that I was certain permeated the case. Based on that belief, I advised Mr. Broussard that in my opinion as his legal counsel, it was in his best interest to enter a guilty plea. Mr. Broussard ultimately decided to enter a guilty plea, consistent with my advice, on September 25, 2012. If the government had not concealed from me Ms. Mar1n's misconduct as we.ll as Mr. Letten's knowledge of that misconduct, I would not have advised Mr. Broussard to enter a guilty plea at that time. December 3, 2012 Telephone Conference Case Document 250-2 Filed 02/25/14 Page 4 of 6 After Mr. Broussard entered his guilty plea, Ms. Mann was revealed to have participated in unethical anonymous commenting online. On or before December 3, 2012, I received a call from someone in Judge Head's chambers asking whether I was aware that U.S. Attorney Jim Letten had sent an ex parte letter to the judge. I stated that I was not. Judge Head then convened a telephone conference between the parties, which included Mr. Letten, myself, and the other lawyers involved in the case. During the call, Judge Head read Mr. Letten's entire letter, dated November 20, 2012, into the record. He then asked Mr. Letten why he would send a judge an ex parte communication. It was clear to me that in the judge's view, such a communication by the local U.S. Attorney was entirely inappropriate. At the time of that telephone conference, neither Judge Head nor I were aware that Mr. Letten had already known about Ms. Mann's unethical conduct for months. Motion to Withdraw the Guilty Plea On behalf of Mr. Broussard_, I filed a Motion for an Evidentiary Hearing to Determine the Extent of the Government's Prosecutorial Misconduct on December 17, 2012. Rec. Doc. 205. Had I known at that time that Mr. Letten had known about Ms. Ma;nn's unethical conduct since at least March of 2012 -and still placed her in charge of the office's misconduct investigation, I would have filed a motion to withdraw Mr. Broussard's guilty plea. I believe that We would have made a strong case for a withdrawal of the guilty plea in light of our earlier motions related to prosecutorial misconduct as Well as the government's filings related to those motions, which now would have been revealed to contain material misrepresentations, including in Ms. Mann's report, in Mr. Letten'S affidavit, and in Mr. Letten's November 20, 2012 ex parte letter to Judge Head. Mr. Bron-ssard's Sentencing Case Document 250-2 Filed 02/25/14 Page 5 of 6 By the time of Mr. Broussard's sentencing on February 25, 2013, Ms. Mann had stated under oath in an Office of Professional Responsibility (OPR) interview that she had informed Mr. Letten of her own anonymous online commenting in March of 2012 -- before Mr. Broussard's guilty plea, before Mr. Broussard's motions related to prosecutorial misconduct, before Ms. Mann drafied a report to Judge Head detailing her investigation into misconduct, before Mr. Letten filed an affidavit denying his off1ce's- involvement in any leaking in this case, and before Mr. Letten's ex parte letter to Judge Head. The status of OPR's misconduct investigation was not publicly known at the time of Mr. Broussard's sentencing. Similarly, the status of Mr. John Horn's misconduct investigation as ordered in United States v. Bowen, Case No. 10-204, was alsonot publicly known. Had I been aware of Ms. Mann' s. sworn statement to OPR and the multiple reports generated by Mr. Horn, I would have requested these documents for consideration by the United States Probation Office in compiling Broussard's presentence investigation report. If the government to turn over these documents, I would have filed a motion to compel the production of these documents so that Judge Head could appropriately weigh the levels of misconduct in this case, and whether that misconduct should be taken into consideration in determining the appropriate sentence for Mr. Broussard, as other judges have subsequently done in this District. However, because I did not know about the existence of these documents, I could not bring them to the attention of the U.S. Probation Office and Judge Head. Case Document 250-2 Filed 02/25/14 Page 6 of 6 RT CHARLES JXENKINS SW0 0 AND SUBSCRIBED BEFORE ME this day 1' February, 2014 I .- - -I-. -. . -x ub Case Document 250-3 Filed 02/25/14 Page 1 of 1 Case 2:11-cr-00299-HH-FHS Document 250-4 Filed 02/25/14 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * * VERSUS * * AARON F. BROUSSARD * ************************************* CR. NO. 11-299 SECTION “HH” ORDER Considering the foregoing motion, IT IS HEREBY ORDERED that the CONVICTION be VACATED, or that the SENTENCE be VACATED. This __ day of _____________, 2014 ______________________________________ UNITED STATES DISTRICT JUDGE HEAD Case 2:11-cr-00299-HH-FHS Document 250-5 Filed 02/25/14 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * * VERSUS * * AARON F. BROUSSARD * ************************************* CR. NO. 11-299 SECTION “HH” NOTICE OF HEARING Please take notice that Mr. Broussard’s Motion to Vacate his Sentence will be heard by the Honorable Judge Hayden Head on __________________ at 9:00 am. Respectfully submitted, _s/ Arthur A. Lemann__________ Arthur A. Lemann III #8296 1100 Poydras Street, Suite 3250 New Orleans, Louisiana 70163 (504) 522-8104 notguiltyz@aol.com Emily Faye Ratner 316 S. Dorgenois Street New Orleans, Louisiana 70119 (504) 822-4455 msemilyfaye@gmail.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document has been filed with the Clerk of Court using the CM/ECF System which will send a notice of electronic filing to all counsel of record on February 25, 2014. 1 Case 2:11-cr-00299-HH-FHS Document 250-5 Filed 02/25/14 Page 2 of 2 _________________________ 2