Ls STATE eF 45TH JUDIUIAL nIsTsieT VS. DOCKET 4551 PARISH DF LAFAYETTE p) BRIAN L. PDPE STATE OF LOUISIANA MGTIDN FDR JUDGMENT 0F ACQUITTAL NDW threugh undersigned ceunsel, comes the Defendant, BRIAN L. POPE, pursuant te Article 321 ef the Leuisiana Cede ef Criminal Precedure+ and fer his Metien fer Judgment ef AcquittaL respectfully as feile-ws. asp PROCEDURAL Marsh a] Pepe cenducted a press cenference en lL'chteher El] 15 at the ?ffice ef the Marshal fer the City Geurt ef Lafayette, addressing first the ef then Sheriff Mike Neustrem te net heel: and precess illegal aliens arrested fer misdemeanor el?l?ences.1 He alse referred the news media and the pepulace to an audiefvidee recerding ef Henduran news interview ef Sheriff Marl: Gal-her, when an Assistant District Atterney, stating that illegal aliens need net fear depertatien when they filed lawsuits.E At the time ef the press cenference Marlt Gerber was a candidate fer Sheri ff and was sub seq tientl}r elected as Sheriff ef Lafayette Parish- Never du ring the press cenferenee did Marshal Pepe urge veters te vete fer er against any candidate. Cenimeneing e11 lEllcteher 8+ El] 15, representatives ef The Independent Weekly, LLG filed requests fer iuf rmatien frem the Office ef the Marshal under the previsiens ef the Leuisiana Public Law 51.53. 4471-4 1} relating tn the aferes aid press I1n September at Enid, the Lafayette Parish Sheriff?s llillffice sent a letter te Immigraticn and I{Clusteiris Enfercement netif?ying the federal agency th at LPED wnuld net detain beeketl effenders bewend their sentenee witheut judicial signature er prebable cause. 2 sine-weft he_latea Uarticte_ I f?E?h 'F?h 332-0 1 E3341 1 ml State el [sails-Lana Brian L. Pepe; DH: Motion for Judghrenr ?fz'l ageing! Page 1 at 33 conference. So be equently The Independent initiated civil litigation in the 15th Judicial District lCourt seeking production of specified documents {Docket No. (3?21] During the Louisiana Public Records Law litigation, representatives of The Ind ependent made additional such requests of the Marshal's office and were allowed to amend their petition to add them to the civil litigation. Ultimately, the Marshal was found to be in contempt for failing to produce certain records. Appeals were conducted on behalf of the Marshal. ("in August EDIE. a grand jury in Lafayette Parish Louisiana returned an indictment {Docket Number soiec Flt-153112160} against Marshal Pope charging him with 2 counts of perjury on December 28, 2t] 15 during a civil deposition in violation of R. S. 14:123. and 3 counts of "use of public funds to urge an elector to vote for or against a candidate andfor appropriated public funds to a candidate or political organization" on September 23. 21315. October T. 2015. and between November 1t], 2t] 15 and June 2. EDIE. all in violation of LA RE- 1811465- Subsequently Pope was indicted in the above captioned matter by another grand jury in Lafayette Parish for two counts of Perjury in violation of LA RB. 14:123 and five counts of Malfeasauce in Office in violation of La Ft- S. 14:134 on November 3d, sold. The original indictment was dismissed by the State at defense instigation. Trial commenced on September 24, so1s and continued through Dctober ii, 2913 at the Lafayette Parish Courthouse, Lafayette, Louisiana. The defense had so bpocnaed lCharles Middleton. Marshal Pope's attorney duringtbe responses to the Public Records Law requests by The Independent and the ensuing enforcement civil litigation. Because he had been indicted for perjury+ his attorney sought to quash the subpoena and ultimately he did not testify at trial. Several employees of the Office of Marshal for the City Court of Lafayette were called as State witnesses. The jury returned a verdict form, which was read by the clerk aloud: State of Louisiana v. Brian L- Pope; DIN: Morton far Judas-heat? 91.4 squirts! Page 2 of 33 Genet 1: Guilty as charged Genet 2: Net Guilty Genet 3: Net Guilty Gaunt 4: Net Guilty Genet 5: lLiruilty as charged Gaunt ti: {milty as charged Genet Guilty? as charged HETALIATIDN FUR EXERCISE 0F FIRST WENDMENT RIGHTS During the trial testim eny was elicited by the State that made it clear that this presceu tien was initiated by a request and snhmissien ef frern the aferesaid Leuisiana Public Law civil enfe ree ment by Mr. Gary McGeft'in, representing The Independent Weekly LLB. a new defunct printed and enline lecal news eutlet- The aferesaid civil litigatien and this presecutien heth clearly arise frem the aforesaid news eenfcrence held by Marshal Brian Pepe en Deteher The conference related in the pelicies at then Sheriff Mike that restricted the Office at the Marshal cf the City Eeurt ef Lafayette and ether lamr enfereement agencies freei arresting and hacking illegal aliens intc the Lafayette Parish Ce rrectienal Center en misdemeaner charges. The Marshal alsc referred in a Honduran news pasted en YeuTuhe in Which then candidate fer Sheriff, Mark Garhen teld news media in Ilenduras that illegal aliens ceuld file lawsuits witheut fear cf depertatien. During the trial testimeny was elicited that The Independent did net eensider illegal immigration to he an apprepriate er substantial isSue. Hence, it appears that this pres eeutien and the civil litigaticn that preceded it beth can stituted retaliatien fer Marshal Pepe?s exercise ef his freedcm cf expressien under the First Amendment is the United States State of Imuisiana v- Brian L. Pepe; DH: lB?GR?i??d?? Matias far Judgment dial squirts! Page 3 cf 33 1 - The evidence euntaincd in the is insufficient as a matter cf law tn the verdict cf findingthe Defendant guilty of the offense of Perjury {Count 1). In the State?s Bill cf Particulars filed un April 201?, it specified relating te this charge: ?As tn Count 1: The defendant ccmmitted perjury while under oath on December 28, 2015 at a depusitiun [which was provided in the defendant} held in the Parish of Lafayette, by denying that he had the distribution cf email via third party mass distribution service. when in fact he had an thcrized such dist rihu tien in vinlaticn cf the previsiuns cf 131-3- is: 123-? There is no evidence centained in the reccrd that the Defendant committed perjury while under cath en December 28, 2015 at a sworn depcsiticn held in the Parish ct LafayetteT by denying that he had autherized the distributicn cf email via third party mass distribution service. in violations of the provisions of FLS. ?3:123- The transcript of the deposition of Marshal Pope at issue (introduced at trial as State Exhibit 13?3} re?ects that Mr- McGoffin had departed the purpose of the Leuisiana Public Records Law civil enfcreement aeticn and was asking ahuut asserted email messages he received [rein the Lafayette City-Parish Ccnselidated government: All right. This is from Joe ?Bastille at the chadlegernrg campaign einaii address addressed te ycu, hpcpe@lafayettegcv.net en This we uld have been the day hefnre your notices went cut ycur 'i?th press conference- Dc- recall Jee sending you an email with the draft quete fer the that you were going to make cf lShad Leger? a To endorse Chad Leger? Uh?huh. A Yeah- We tallied sheet the enderseinent. But I didn't him that day. That wasn?t my question- Myquestien was, take the time tc read this, all the time yuu need. But it says. ?Hey. Brian, here's a draft qucte fer the endorsement. We can discuss and revised at year ccnyenience. ne.? A Uh?hu h- State of Lnuisiana. Brian Pope; I'll-N: 59:155 Me ?an far Judge: lens of Awe?f?f Page of 33 Eli-r De you remember an email I rem him working en the en ete that they were going to use in their campaign literature heeause of your endorsement? 1t'eah. We were going i had teld them I would endorse Chad Leger. Ckay. And .Iee wrete the test fer your endorsement? We talked about it. That was what I approved. That?s what I been knowing Chad Leger for that long, yes. My question is, was this the first draft of that endorsement quote or did you send him a first draft? Ne- He wrote it up fer the. Ckay- And then you leeked at it and said. leeks geed. er Yeah. I mean. it steed behind what I knew about Chad. Yes, sir. Dkay. All right. New let?s ge to the next page. see. And this is [rein Jee Castiile te hpepeeiilafayettegevnet . It's that same day at 2:15 and the attachment is a draft of the immigration release- And it?s a question te you, "Please let me knew what yeu think. Jee.? De yeu reeall receiving that from him? This - is this all together? YEE1 sir. That?s the attachment. New fee] free to leek at whatever yell want to- [Pepe Deposition. page line 4 page 55. line 25] The deposition transcript (State Exhibit 13?3} diseleses that Marshal Pepe did all in'lend er desire to invite to the immigration press eenferenee all the people that Castille had en his list. This was eerreherated during the trial by the personnel from the Marshal?s effiee who testified eeneerning Marshal Pepe's sheets and surprise at the peeple whe appeared fer the press eenterehee. CFC P?b?b?h Ckay. We?ve talked before about Campaigner and we see at the hettetn ef Page 318. Campaigner delivered by Campaigner? Yes. sir. And at the tep here it says. ?Brian Pope. Lafayette City Marshal at hpepe@" I'm sorry. at "hpepet?ilafayettelagev Uh?huh. That's yeur eity marshal email address, eorreet? Yes, sir- That means it's offieial business? Uh?huh. And so how did this get sent out with your email address en the tee? Like I saidT I don?t know. I guess. they used my email address to send it out. Who are they? I don't know. At the hearing with Judge Edwards you said that there were no advisories- "I?hat everything was done by telephone. Would it he fair to say that yeu did not authorize this? As far I mean I didn't send I did n't email it out through my email. State of Leulsiana v. Brian L- Pepe; DN: Matron fer Judgment ?ti-IA muf?e} Page 5- ef 33 Okay. Now you said earlier that Page 614. the draft of this. may have been done by someone in your of fine. Yes, sir. I'm assuming it it was prepared by someone in your of?oe. you intended hisenditout Yea sir. Okay. And so when this I didn't I didn?t email it from my office. You indieated earlier. a earlier eonversation that or earlier testimony that only phone oalls'were made. There were no emails1 eorreet? Yeah. ldidn?t email the math outlets. No. I didn?t- ?Okay. Did you email anyone? No, sir. Okay. So you prepared a press conferenee advisory, Page 614. with the intention that it would not be sent to anyone?' I mean that was handed out when they got there. All right. This was dated okay. So this is an advisory to tell them that there's going to he a press eont?erenee on Ootober the We ealled them - at ltli?itl am. And you had a separate press release that you gave them. But you also waited until Detoher to give them this advisory? Like i said. we ealled the main outlets to come. Now I have a whole stack of documents from that have your name at the top. Brian Pope. Lafayette City Marshall at bpopet?latayettelagov. And it's Page 618 through 642. And it's a mix of advisories and the release. And you can see at the bottom, this went to Ms. Diekerson at lus.org. That would he the Lafayette Utilities Systems. Do you know her? No, sir. We ran a search of all the things I sent out. ?Okay. Do you know Clark No, sir. at Do you know Philippe Gustin at Le Centre for the - I mean, I know he works across the street from me. Okay- But I don't know him. You didn?t intend to send him this email even though it?s got your name at the top? No, sir. Okay. Same thing for Terry Haval at LL13- You did not intend to send it to him even though your name and email address are at top? No. Do you know Dave Domingu Yeah- HE- aeross Did you intend to send him this email that?s got your address on it?Jl No. sir. anuso me. Like I staid.r they had people show up that I don't know who they were. Okay. Some of them were just regular people-" Elle Die Dili- Die .Cl ill-D DP loses-ease ['Fope Deposition+ page 63, line I9 - page lift?"r line State of Louisiana v. Brian L. Pope; DIN: Motion for Judgnront' did :1?uner Page 6 of 33 It is elear front the transcript of Marshal Pope?s deposition that he did not understand what the Campaigner software used by Joe Castille did and he didn't realize he was triggering an email bombardment to people he would never have invited to the immigration press eonferenee when he clicked a button on the Bastille email. It is also clear that during the deposition that he did not have a good recollection of the events leading up to the press eonferenee. It is also clear he had no opportunity prior to the deposition to carefully review the email messages provided by the laiayette lility-Parish Consolidated Government to Mr. McGoffin. Errors and misunderstandings are not the basis [era perjury charge, which requires mens rea. Further. the testimony at trial on September E?i? of Hillary Joseph Bastille. a government witness, sets out in pertinent part: That?s okay. All right. You testified eariier that you had some software or a program you used that would send not press releases and press advisories; is that right? A You actually can send out anything. The press releases that you might use something like PR news ?Tire. because they have media outlets- Right. a This is something where you can put any current email and send anything out. It could he an invitation to a birthday party. But that's what I use for press releases and updates for supporters, all that sort of thing. 12! So, did you use any software program in order to send out the press release and press advisory? a ?x'es, sir. I use the campaigner to send out both the press advisoiy, I guess the day before the press conference. And then the press release after the press conferenee. Okay. Tel! me, how does that work? Do you think you sent it from your email address? A No. sir. 1 asked ?in the software you can't send it from an email address that you don't eontt?ol. If you're going to send it from someone else?s email add ress. you have to get permission. And. so, it didn't go from me or any of my email addresses; it went from Marshal Pope's email farms-imam. - Dkay. And. so. did you talk to Marshal Pepe about sending this press advisory out?l State v. Brian L- Pepe; DH: Marx's-n for Judgman: old muf?er! Page of 33 A No. I think at one point we just had a brief conversation where I told him I needed his email address and that Iwould need his permission to send it out. Ultay. And did you explain to him that you were going to send out this advisory? Yeah. I think I said my email software, but I did tell him I was going to send it out and I needed his permission-? [Trial Transcript Excerpt Hilary Joseph lElastille, page 1 1 line 32 through page 1 3, line is] Glearly, Mr. Bastille had a subscription to the Campaigner sofas-rare that he used to generate the email press conference advisory, which was not a mass distribution via third-party obese:- 11 So I think you explained earlier tltat you had that software with the ?ycr and you had his email address to offer, right? Yes, they would have to approve it. Dkay. Can you identify this? It looks like an email from the software to confirm an email. Okaysent to, at the top? It says sent to bpope@la.gov. Is this the email that would have gotten sent from Campaigner so that person could authorize the email? That's my assumption," [Trial 'l?ranseript Excerpt Hilary Joseph Castillo, page 13, lines 21 through 32] A A Do you mmember exactly when you were authorized or asked Campaigner to send the advisory out? Sometime hetero they got sent out, I mean, if you showed me the thing again, that would probably tell me, 1it'es. Is this the date and time?I ?i?es, Deteher [i at 3:31." [Trial Transcript Excerpt Hilary Joseph Bastille, page 14, lines 5 through {1 A. [ll-tay. And just to be clear, this email that you have to click in order for you to be able to use the email address, would you have sent out this press advisory until this email was elicited? I could not have sent out that press advisory from that email address Without permission. Dkay. And did Marshal Pope authorise you to use Campaigner to send out the press advisory? Well, he gave me permission to send out the advisory, so I don't recall mentioning?am paigher or really explain i ngthe process of it, other than I needed him to click on it. You knew what I'm saying? To send it out? 1fee, send it out. State of Louisiana v. Brian L. Pepe, rm: Motion for Judgment Page 8 of 33 But did he know that you were goingto send it out using software at was going to send it out to a hunch of a I would suppose." [Trial Transcript Excerpt Hilary Joseph lBastille. page 14. line 13 through page 15. line 11] Hence. the email from Castille conveying the press conference advisory to Marshal Fe pe had at the bottom. following the wording of the advisory. a button that. by its presence alone. the Marshal was invited to ?click". Okay. So. I want to be clear out this ?ahout hear this press release got sent out. Did the Marshal ever request that you send it out? i don?t have a specific recollection of a conversation. but l'm sure he did. I mean. I wouldn't have if he didn?t." [Trial Transcript Excerpt Hilary Joseph Castillo page 15 lines 16 through 21] My question is: Did Marshal Pope request that you send this advisory hy email?l A. Yes. I guess- Well, didn't you say that in the Grand Jury? A. May 1 see that? l'm sorry. Yes. He requested it and I sent him the verification. Okay. So now that you?ve looked at your testimony, I want to make sure I get the sequence of events right. So. Marshal asked you to send out the press advisory. Did the Marshal ask you to do a press release and press advisory? A He asked me to do a press release. I actually did the press advisory because I understood that before you do a press release. you do an advisory first. So. yes. he asked me to do a press release. ?kay. fair enough. And did the Marshal ask you to send that advisory and reach out by email?l A Yes- Ll And did you. in fact, prompt him in a request to use his government email address it) send that out? A ?r'es- It} And did you get authorisation to use that government email address to send it out?. A. Yes. I'm not exactly sure what that means. I'm not a lawyer. But i got Campaigner dot something back and. so. suddenly i could send the email. Before I couldn't and then I could. So I guess that meant that he had clicked on something and done what he was supposed to do. [Trial Transcript Excerpt Hilary Joseph Bastille. page 16 line through page 1? line Bastille was not at all clear he had explained to Marshal Pope how the Campaigner software worked. Bastille could not send the advisory under the State of Imulslana v. Brian L. Pope; DIN: Mo New for Jul ?gment of Acquf??f Page 9? oi 33 Marshal?s email unless the Marshal lClicked the button on the em ail. He assumed he had been given a knowing consent without having explained how the software worked. Because of the implied threat of perjury charges, Bastille was much more circumspect on redirect examination. Subsequently the transcript disclosed more of Mr. Cast?lc's testimony on direct examination: Just to elat'ify. earlier I asked you whether or net you explained to Marshal Pepe the process by which yen would be able to send out these emails. Do you remember explaining that to him? A I think I told him that it need ed to be authorised. his email address needed to be authorised- don't know how I worded it. And. so. do you think it would help if you could leek at your testimony from the Grand Jury? a lies. I?m going to direct you to line a Okay. Does that refresh your memory about whether you explained the process? A Yes. I told him I needed his email address and a telephone number for who was going to he on the press release and then I was going to send it out with the email software and I needed him to tell me the email I put into the software and the software will send the email to whoever owns that email account. {1 Se that refreshed your memory? A Yes. Be. A So that's what I explained. ISatay. Just to make sure I'm clear. Did you explain to Marsha] Pepe the process by which you mote the extended emails ent using your email software? A Yes." [TriaI Transcript Excerpt l'Iilary Joseph Bastille. page 19. line 25 through page 2G, line 20] During cross examination by Mr. McLindon of Mr. Bastille, it became more apparent that Bastille had net clearly advised the Marshal what his clicking on the button on the Campaigner email would do: ?kay. In the fall of was immigration a legitimate public concern? A In the fall of 2015- I keep saying that, 2-315. State- ef Imutsiana Brian L. Pepe; DN: [59455 Motion for Judgment efAequf?af Page of as JCJ Elli-GP- Dis Elli esese Well. Mr- Trump had entered the presidential raee in the summer and immigration became a lar? issue. And then on Faceheek we discovered that we had been nominated a. sanctuary city- Iii-rid. so. it hecamc an issue in the campaign. So this immigration issue wasn't just some hocus poeus thing. this is a legitimate issue. Well. there was a local publication that thought it was not a legitimate issue and there was controversy that surrounded that. But I certainly thought it was a legitimate public pol-icy issue. Now. you could look at whatever is easier for you. Mr. Bastille. If you want to look in my binder. It's already been identi?ed. It?s Tab 14 in my binder. You have that? Yes. This has been introduced into evidence. 'l?his is an email from you to Brian Pepe. right? Yes. sir. This has been introduced into evidence- This is an entail [mm you to Brian Pope. right? 1lt'es. sir- Aod in the subject line it says. "Draft "For Leger endorsement." right?I YES. Had then you say. "Hey. Brian. Here's a drai't for endorsement. We can discuss at your convenience." Yes. sir. And then below that is the endorsement. Yes- Now. that didn?t go public until a week or two later; is that right?? Yes- The aetual endorsement didn't come out until much later. I honestly can't remember. Ukay- That seems logical- We would have done it a little eleser to the election- J?tnd when you talked to Mr- Pope. 1 think you already said it. it was clear he wanted to keep -it was clear he was going to endorse Chad. right? Yes. No question. No. air- He had supported him. Yes. sir- Eut you. as a consultant. you wanted the public endorsement. right? Yes. sir. And also. depending on the campaign timing. you take a look at. that earlier or later in the campaign. But when you first talked to Marsha] Pope. he made clear that was an immigration endorsement of Ghad??I No. he didn't ever say that. but I do recall that when he called me about the press release. he didtft talk about the endorsement or the campaign: he talked about those two issues- Thank yet:- So he didn't talk about that. He didn't use those words. Right- i understand. Thank you. So. again. looking at the endorsement. I mean. there's no question. Anybody who would read would know what that's State of Imuisiana v. Brian L. Pop-e; UN: Marion fer tar-.4 muf?ed Page I 1 as Die Dis- is El habit?: is- ahont, right? ?ight. I mean. it says it in the subject line- And then you tell them what it is. Right. Okay. Now let's go to the third exhibit 15. Again. it's already in evidence. That's an email from you to Mr. Pope, right? TEE. The subject line says "Draft of immigration release. Yes, sir. And you say, ?Please let me know what you think." Yes. sir- And then attached to it is the immigration release, right? Yes, sir. It?s pretty clear what that is- Mr. Pope could see that pretty clear in the subject line and reading it what that is. That's the draft of the immigration release. Yes, sir. All right. Let's go to the next one, Tab 15. You start this one kind of from the bottom. Not all the way to the bottom. You see ?ctober B, 2015, at 12:09 P.M. Let me find ittoo. but what I'm looking at is October ti at 1:311]. Go down a little farther, about halfway down. 0h, I see it- Dkay, yes. Uetober at 127139. That's an email from you? 1lies. To Marshal Pope. Yes, sir- "Hey. Brian. Please see media advisory and statement attached- please note I changed the letter a little and added something to the bottom calling for Garber to apologise." High t? Yes, sir. And then he responds, "Looks good." Yes, sir- Pretty clear what that is- Yes. Anybody who got that would know what that is. Yes, sir- All right. Now, let?s go to You see that?? 1il?es, sir- That's the Campaigner email that we talked about earlier. Okay- Now, in your telephone conversation with Marshal Pope, can you say with certainty that you used the word "Campaigner? with him? I can't. And I kind of doubt I did- And I think I would have said "email software,? probably. Ukay. I think. You probably never said ?Campaigner." I couldn?t tell you. And I don't know if it would have stood out in my mind if I had. I don't know. Now. the next one, this is not something coming from you, but this is actually comi cg front a computer. It?s coming from the email software service. Eitate of Brian L. Pope; LIN: Marian for Judginea: acquittal Page 12 of Dis-5P5 ewes-eaves ii" DIP-4D is Gilli-D DP New, let me ask yen this. In yenr line ef werk, de you ever use third party venders'? I'm net sure. Me. I might use a mail house in mail things- might use seine videe er semething like that. Be that wenld he a third party vender, help yen with a videe. help yeu with the mailing, any number eI third party venders? Right. Okay. When yen werked with when yen we re in eenversatiens and disenssiens with Marshal Pepe in this email, did yen use any third party venders fer additienal help??I With me and him talking? Did you use any third party vendors? Well, l'm net real sure what yen mean. Wei-l- yen stated an example. Well, we didn't enpy ether peeple, if that?s yeur questien. Yen didn't talk to any ether peeple, just y'all twe? Eight. New, let's ge te this email again. Is this the email that Brian Pepe wenld have had te eliek en? I have never seen this hut it leeks like the type ef email that Campaigner sends ent fer eenfirmatien- I mean, this is like Gary MeGeffin used is talk te him. De yen knew why Gary MeGeffin*s name is en tep ef that? I guess he previded it in us. I don?t knew_ I have ne idea. I de?'t knew either. Yen den't knew why? He, sir. In faet, yeu raised an interesting pnint. 1i'lr'hen was the first time yet] saw this? I den't remember. I think they shewed it te me at the Grand Jury meeting. Okay- Fin, yeu?re a year er twe after it was sent ent- ?I'eah. Semetime in 2016. maybe in the spring- And the reasen yen kind ef didn't it is heeanse this dnesn?t eeme frem .Iee Bastille; this eemes frem seme seftware pregram- Yes. It's an antemated kind ef -there are several ef them. Cine is called ?Mail Ghamp," and, yen knew, there are different kinds. It eemes frem the serviee te wheever is. the ewner ef the email address te make sure that nnautherised emails are net sent nut withent permissien. New, is there anywhere en this email that th ere?s the wel'd ?im migratien"? Ne. llew abent press release?. Me. How aheut press eenferen ee? Ne. Gerber? Ne. Leger? Me- In faet. am I eerreet that the werd -eamp aign" er "Campaigner." appears ten times en this deenment? 1it"en ean eennt them if yen want- I enly eennt seven- Wreng hut elese eneugh. State e! Ieulsiaea v. Brian L. Pepe; DN: 16?41311?1554155 Marian fer Jaimie-Ht nix-inquires} Page 13 of 33 Die DEP- Ell-i- are Dit- 3*an El its at: ?fes, sir. And yell testified earlier that yen den't really remember using the werd 'Uainpaigner? tall-ting te Mr. Pepe en the telephene. 'feu can?t be sure yen ever used that weI?d. My guess is that I wenld have just said 11email seftware-" Ukay. apparently semehedy elieked en this. And wheever eiieked en it. it then went bank in this software IDampaigner, and then Campaigner was able te send ent a last email that leeked like it eame frem Brian Pepe; is that right? That's hew it werks. Dicey. New, is there any deen ment that either I haven't shewe yen er Mr. Haney hasn't shewn yen? Is there a deenment eut there that actually says that? Pm serry? Is there anemail er deenment between yen and Mr. Pepe that says: This is geing te blast eat an email te a large greup ef peeple? Are yen aware ef any sueh deenment?iI Ne, sir. The thing that get blasted eut te this grenp was the press eenferenee adviser-y. Yes, sir. end is there anywhere either en this deeument er the press eenl?erenee advisery that has a list er the peeple te whem it was sent? Ne, sir. Dkay. Yen knew, semetimes yen see a letter er deenment and in the bettem left eerner it has 1313? er whatever and it lists a hunch ef peeple. Is there any such deenment like that that wenld let Mr- Pepe er anyhedy knew in where this email was geing? I can?t say nneqniveeally there isn?t but I?m net aware ef anything like that. Yen den't have ene, de yen?I Ne, sir. Ne. I mean, I knew it's been a while, but I knew whe was in my email list, but I have an idea abent any deeument like that- Se yeu have an email list, right? Yes, sir. That yen ereated. 1res, sir. Did yen shew that te Brian Pepe? ND, SIP. Did yen tell him whe was en the list?E'I Ne, sir. Did he give yen any names and say: Put this en the list? We. sir. Okay. Yen did ask Marshal Pepe wenld you tie an endersement fer Chad Leger. right? I wenld guess the Chief asked him that, but. I mean. I knew that he was planning te end erse the Chief. By the way, when yen and Brian Pepe were having emails and phene ealls at least in this twe er three day peried, did yen ever eall Chad Leger and tell him abeut that? He, sir- Did yen ever ask Brian Pepe in de a TV eemmereial fer Chad Leger? I wenld guess the Chief prebahly wenld have asked him that. State e! Leuisi-ana v. Brian L. Pepe; DN: Marlee fer Judgment a! A ega?w Page 1-1 e133 But, in fact. he didn't do a TV commercial. did he? No, air. He didn?t. New; I know I?ve asked you; but this Campaigner software sends out these emails to somebody who needs to click on it. Could you click on it on a Bmartphone?? Could you use a Smartphone to to click on it? a If you have your email on your phone and you got on email. you could click on it on your phone. GPD ['l?rial Transcript Excerpt Hilary Joseph ISastiile page 23 line 14 through page 31 line is] rl?he jury's instructions at trial read: Count 1: Thus, in order to convict the defendant of perjury, you must find: that the defendant testified in civil deposition which was taken on December 23, 21115 in Lafayette Parish; and that the defendant?s testimony that he had no ingest-Pledge of the use of a third party mass distribution of emails was false; and that the testimony was given under oath or equivalent affirmation; and I that the defendant knew the statement was false when he made it; and that the testimony related to a matter material to the issue [the Public Records Law or question in controversy. RELATE NIATTER MATERIAL TU THE ISSUE DR QUESTIDN IN LaltB. 14:123 provides in pertinent part that: Perjury is the intentional making of a false written or oral statement in, or for use in, ajudieial proceeding, or any proceeding before a board or official, wherein such board or official is authorized to take testimony. In order to constitute perjury the false statement must he made under sanction of an oath or an equivalent affirmation; and must relate to matter material to the issue or question in controversy. It is a necessary element of the offense that the aeeused knew the statement to be false; but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false. State of Louisiana v- Brian Pope; DIN: Mo: ion for Judgnrear A squirrel? Page If- of 33 During the trial, the State was reeuired te preve each essential element ef the erirne heyend a reasenahle deuht- Therefere, the State had the burden et' shewing that the defendant knewingly made a false statement under eath in a judieial preceeding and that the statement related te a matter material te the leave er question in eentreversy. There is very little Leuisiana jurisprudenee te aid in the interpretatien ef the perjury statute. The eeurt in State I). Marr?ere. +525 Se?d 2G3 [Lat-1m}. 5th Cir- 1938} leeked te federal cases interpreting 18 11.3.1]. 1623(a} which is similar he the Leuisiana perjury statute. In Ma?ere, the eenrt adepted the test feI' materiality as set nut in Uattert States a. 622 F.2d 153, 156 {5th The test fer materiality is a bread eue? whether the false testimeny was eapahle et? influencing the tribunal en the issue hetere it. Furtherme re, we have held that the statements need net he material te any particular issue but may be material te any preper matter ef inquiry.? {eitatieus emitted} LDUISIANA PUBLIC LAW The Leuisiana Supreme Ceurt explained Leuisiana public law as fellews: The legislature, hy enacting the "Pubiic Law" 44:1 et seq), seught te guarantee, in the mest expansive and unrestricted way pessihle, the right ef the public te inspect and repreduee these which the laws deem te be public. There was ne intent en the part DI the legislature te qualify, in any way, the right at See Laetitia Mereea, 013?1 15? TTQ EeEd I391, 694?95. The legislature has recegnized that it is essential te the eperatieu at a demeeratie gevern ment that the peeple he made aware et? all exceptiens, exemptiens, and limitatieus te the laws pertaining te pnhlic recerds- In erder te tester the peeple?s awareness, the legislature declared that all exceptiens, exemptions, and limitatieus tn the laws pertaining te public shah he presided ter in the Public Law er the Censtitutien ef Leuisiana. Id. Any exceptien, exemptien, and limitatien tn the laws pertaining te public records net presided fer in the Public Law er in the Censtitntien ef Le uisiana has an effect. re. Thus, te puhh'e see he denied enly when the Public Recerds Law er the ?eestitutien specifically and unequiveeally previde etherwise. See De?etee State, 624 Edge 89?. 91:12 cert. denied, 511'] 111?, 114 106?, 12? L.Ed.2d BEE 193d). State el' Leuisiana Brian L. Pepe; DH.- Me Herr fer Judgment ref A Page 16 ef 33 As with Article XII. Section 3, the Public Records Law should be construed liberally in layer of free and unrestricted access to public documents. Laetitia an. Moreen, 7"?9 So?d at Tri?e Hess-area Carmina-?utters to. Reason, 45D Se?d Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public?s right to see; to allow otherwise would be an improper and arbitrary restriction on the public?s constitutional rights. In re Matter Under Investigation, U?n1853 15 Sal-"id STE, Sapitat City Press East Baton Rouge Paris}; Scariest, QS-ISTS Sc?d see, 5611; Title Research Corporation a Haas-ea, 45o seen at 936. Shane 11:. For. of Jefferson, 14?2225, pp. S?il] (La- 1W1 S), So- 3d "334?35- La. RH. defines a public record as; All books, records, costings, accounts, letters and letter hooks, maps, drawings, photographs, cards, tapes, recordings, memeranda, and papers, and all copies, duplicates. photographs, including microfilm, or ether reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, beingin use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or perforated by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any puhlie body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are ?public records", except as otherwise provided in this Chapter or the Constitution of lentilsiana. In Shane, the Louisiana Supreme Gourt stated that "[c]learly 'electrouic mail,? or 'email.? falls within the definition of 'letters,? despite generally lacking a physical form and though usually stored in an electronic format. and, if used in the perform once of any work, duty, or function of a public body, under the an therity of state or local law, should be deemed a 'public record.m 14?2225, pp- 19-1 1 209 So. 3d at Documents that may otherwise be Public Records are exempted from inclusion if the Louisiana L?ronstitution provides an exemption- rI?he constitutional right of privacy in Louisiana arises from Article 1, Section 5 ol? the Louisiana State Constitution, which states, "every person shall be secure in his person, properly, State ol Louisiana 1r. Brian L, Pope; DH: 1 tin?{311459455 Marion for Judgment ofAc'qu?f?! Page of 33 communications, houses, papers+ and effects against unreasonable searches. seizures, or invasions of privacy." The ceurt has consistently held that the right to privacy in Louisiana can be described as the right tc he left alcue and to be free {rent unnecessary public scrutiny- De?atwo State, 624 EeEd {La 1993). [n the litigation process of the Shane case before the Louisiana Fifth Circuit Court of Appeal+ the court reversed the district court decision and granted granted Shane irij unctive relief .3 First, th Fifth Circuit cc usid cred the questio t] etwheth er the emails were public records. The Eire uit reasened that emails generated and received by an employee at a public employer's email address, and maintained on computer equipment owned and centrelled by the employer that were not used or prepared for the employer's use or performance of its business, did not fallwithin the definitiet] {it public rece under the state?s public records law.?I The Circuit in rther found there was no evidence that the individuals who generated or were recipients of the emails were actingcn behalf of the public employer and there were no pe ndinginvestig?atiens concerning the public employee's possible misconduct which might have justified seizure of emails. The Fifth Circuit concluded that the emails were purely private communications between private citizens concerning? private political activity, and the centent cf the emails has nothing to do with the business of JEDCC. The Fifth Circuit then considered whether Shane+ as a ecu-employee third party, was entitled to assert Louisiana state constitutional rights of privacy and asscciaticu. as a private citisen, relative to the emails. The Fifth Circuit concluded that Shane. as a private citizen. had a reasonable subjective expectation of privacy in his email cerre spend en ce with the JE DEC: employee, notwithstanding the fact that the emails were sent to a large number of individuals involved in political activity 33mm Parish ech?'crseu, 5 Cir- seen}, 15C Set-id 4C5- '1 Here the email messages at issue were not generated on computer equipment owned by a public employer or governmental unit, but on the cernpu ter of Hilary Bastille- State of Louisiana v. Brian L. Pepe; DIN: Marian far Judgnran: afAcqufrra! Page 13 el' 33 where the non?employee third party testified that be believed recipients of the emails involved in political activity would iteep the communication private1 and that if one attempt ed to obtain emails from the other members hey won't give it to you, they're private.?I The 5th Circuit further reasoned that because the right to privacyr extended equally to content of private email messages as it did to names of other correspondents, even with redaction of identities of all persons reasonably behaved to have been private citizens. a private citieen's constitutionally protected rights of privacy and of freedom of association outweighed need for disclosure under Public Records Law. The media-intervenors sought review of the appellate court decision tn the Louisiana Supreme Court, which granted a writ of certiorari." The Louisiana Supreme Court reversed the 5th Circuit Court of Appeal and reinstated the district court?s ruling. First, the Court reaffirmed the bread scope of the public records law: The legislature, by enacting the ?Public Records Law? sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public- There was no intent on the part of the legislature to qualify, in any way, the right of access. - - - [A]eeoss to public records can be denied only when the Public Records Lavir or the Constitution specifically and unequivocally provide otherwise.? ri?he Court held that the emails fell within the broad definition of public records because they ?were used in regular business, transactions, work, duties or functions? in that the emails were used in the audits of the agency's operations. There had not been any governmental audit of the of the Marshal for the City Court of Lafayette that converted email exchanges between the Marshal and Joe Castille, not relating to the operation of the Marshal's Cffice, into public records. SSMM Parish lei?2225 15'? So?d 1 Scene at 5 (internal citations omitted}- State of Louisiana v. Brian L. Pope; DH: Motion for JudngHi' (waf?e! Page 19 ct 33 The Court then considered whether Shane, as a third party+ could assert any exceptions to the public records laws, speeificalty the Louisiana state constitutional rights of privacy and association. The Uourt found that the content of the emails ?consisted of the discussion of private political matters which had nothing to do with nperatinns" and held that Shane, as a non?employee third party, could assert rights of privacy and ass-ociation in the emails. Therefore, the Court concluded, these ?rights must he halaneed against the right of the public to inspect the records-" The lCourt held that upon balancing the puhlic's right to inspect the emails against the private citizen?s constitutional rights of freedom of association and privacy. the latter may he adequately protected by redacting identifying information which should include the names, addresses, email addresses, phone numbers and places of employment of all private citizens1 before releasing the emails. information about JEDCIU employees, elected officials and candidates for public office were not required to he redacted. No such redaction was effected by the Lafayette {Jity Parish Ucnsolidated Government when it released email between Marshal Pope and Joe Bastille. rl"he right to privacy of government workers in the workplace was addressed by the 1.1.53. Supreme Court in O?Connor e. {Latoya massif In that case, the public employer search ed an em ployee?s off ice as part of a non?criminal investigation, which search included the em pinyee's desk: drawer and file cabinets. Although D'Eonnor is a plurality opinion, the justices unanimously affirmed the Fourth Amendment?s application to noneriminal investigations in the workplace of public employers- Further, the justices nnan imeu siy recognized the public employee's protected privacy interest in his desk and filing cabinet because he had exclusive use of them and stored personal items there. io?ssmm 1v- Chefs-pa, 48!] us. roe, 10? set. 1492, 94 L.Ed.2d 7914 user}. State of [innit-felons: v. Brian L- Pope; DH: Motion for Jul ent? of Awaited! Page 20 of 33 In a Leuisiana Pu hl ie Law enfereement civil suit, a requester may seek mandamus. injunctive relief, deelaratery relief, atterhey's fees. casts and damages.I3 The requester must sue in the parish where the custedian?s effiee is levitatedI and the eeurt must try the suit by preference using summary lire-sedure.Ell The eeurt reviews the eustedian's determinatien de nave, and the eustedian bears the burden to justify withhelding A requester whe prevails in such a suit ?shall he awarded reasenahle atterney's fees and ether casts nf litigatien;" where the request prevails only in part1 the eeurt has diseretien te award reasenable atterney's fees.? The Leuisiana Puhlie Law lets requesters actual damages caused by an arbitrary and denial nf er an unreasenahle er arbitrary failure te respeud timely.12 An untimely respense, if unreasonable er arbitrary, else may justify a diseretienary award ef eivil penalties up te $101] per day.'3 A reading ef the entire transcript ef Marshal Pepe?s depesitien makes elear that the enfercem ent aetien against Marshall Pepe had been carried by Mr. Me?ef?n far frem summary re and the questiens being asked were mere in the nature ?f a news investigatien rather than whether the email being seug?ht were puhLie or whether an eaelnptien applied. Besides, the fedepsadsnt had already ehtained the messages they sought [rem the Lafayette Dansniidated Gavernmeht. which Marshal Pepe had net had an eppertunity te examine prier tn the cemmencement of the depositien. Hence. the questiens being asked that evoked the its- as. steam}. ?La. as. 44:35:13}. ?Ls. as- nests}. ?La- as. 441351113}. ?Is. State ef Leuislana v. Brian L- Pepe; UN: BEECH-159455- M?tfdn fer Judgmanr MA equine} Page 2] el' 33 res pen se serving as the basis fer the perjury eharge were not material to a Louisiana Puhlie Law enforcement suit. The erime ef perjury eensists of a deliberate material falsifieatien under eath. the prevailing view in federal and state eon has been that awitness?s eerreetien or his effort to eorreet inaeeu rate testimony is admissible evidence prehative of the en nelu eien that initial inaeeuraeies or emissions were indeed net deliberate falsifieatiens. ?5 The range of proof which is admissible as material in a witness?s laelt of intent in testify falsely is extremely bread. ?5 A witness?s su hjeetive misunde rstanding will ?The federal general perjury statute. and the model upon which state eedes have been drafted. reads as follows: ?Whoever. having taken an oath before a eempetent trihnnaJ, effieer. or person. in may ease in whieh a law at the United States authorizes an oath to be administered, that he will testify. deelare. depese. er eertify truly, or that any written testimony. deelaratien. depositien. by him suhseribed. is true. willfully and eentrary in such eath states or subscribes any material matter which he does not helieve to he true. is guilty of perjury. and shall. except as otherwise expressly previded by law. be fined net more than $2.130!) er iInpriseneti not more than five years. or bath. This seetien is applicable whether the statement or subs eription is made within or the United States- 18 1621 Ml state statutes and the Mode! Penal Code follow this federal rule requiring that perjury be deliberate ie be eriminally euipable. See Ameriean Law Institute. MCI DEL. PENAL CODE 241.1 [Pl-epesed Dl'fieia] Draft. 1962]. I?Pi-test federal and state eeurts agree that evidenee ef recantatien at a prior false deelaratien is relevant to show that the initial falsehood was net perjurtous heeause it lacked the essential element of willfulness. It is also agreed that awitness's nen?respensive answer is not perjury if it results from a mistake. misunderstanding' er an inadvertent emission, that the determination of perjury requires evaluation of a witness's entire testimony and, eonsequently. that a witness's eerreetion of his false testimony may he considered when mat-Ling the overall evaluation- The solidarity ofjudiejal at this principle is emphasized by noting that eeurts whieh follow the eompleted erime rule and deny the reeantatieh defense after perjury has been committed, as well as these eeurts whieh do allow reeantatien. agree ?Fith the willfulness requirement. See. United States Eaten. IRE F.2d ETE. 284 {2d Cir}. cert- denied. 41 1 L13- 1382 {15?331}; United States a- Lessee. 45:] F.2d 1 196. 1198 11.2 [9th Cir- Bseaanstin 11. United States, 232 F-2d 1. 4 [5th Cir. 1956}; United. States ?it. Hess. 215 F-2d 51?. [-123 d: as {3d Cir. 1954}; Segment-r ?it. Hnitect States. F.2d ?irt. 581?33 [Sth Cir- 1935}; I?E?j?a ii- Hararam. 20-1 Cal. App- 2d 52. 19 Cal. Rptr. BEE. (Dist- Ct. App- 1962}; State it). .F'iasane, 11i3 I Conn. 455. 461. It. 3TB. STE (1935]; State in Erin-triage. 35d Mo. 33?. 352. 13st 314. 320 {1945}; Peseta-a swan, l?fl Mise- as, me, iss revs. ss. r1 (as. County et. een. seas. lsii'i; Kern United States, 161?] F- 61?, 519-213 (firth Cir. 1909]. Cf. HHTEES L?ntted. States, 186 F-2d are. are a n_s {10th en. 1951}. 'E'Cuurts will decide whether prior erreneeus testimony was given deliberately by eensidering subsequent use nteetiens In the eenteat of the total eireumstauees of the witness's testimony. For eiatan'qjli-i1 the New ?r'erk: Flu preme Ueurt dismissed an indietment for perjury when State of Louisiana v. Brian L. Pepe; DIN: Ma Hoe for Jo? agar-set at Aver rdtta! Page 22 at 33 be admissible evidence.? as will his cultural heritage cf lack of mental ccmpeteuce. 1? I?The with which a witness eerrects himself. his mctive fer during an. the kind magnitude cf inaccuracy and the witness's ewn explanatien fur the inaccuracy are also material tc absence cf pet?jiirieus intent. Same ceurts have indicated in dicta that any evidence ccmpetent to explain away the false testlmeny Will be admissible whenever it shews rcascns disasscciated from a. willful cr ccrrupt intentien te deceive. 1? Ccnsequently. there is general agreement that a witness may after his cf pricr false testimcny as prcbative evi dence that he had never intended to testify falsely.? Altheugh a charge at immateriality will net generally prevent cffered preel? frem being admitted in evidence. it may influence that evidence is subsequently weighed in reaching a judgment er in deciding what sentence sheuld be impcsed.21 the defendant the ccurt that his original testimeny that he had not signed a certain paper which he had in feet signed was falsely given hecsuee his "attenticn was not at first directed tn the particular paper" which he was asked in iden tify. Pctmie er. llIt lvi-ise. 92.102. 135- NTE- 35-. T1 The ccurt was persuaded by the fact that defendant himself as seen as a copy at the dceument was shown him. On the ether hand. the New ?i'crlt Ccurt of Appeals did not give the benefit at the doubt te a witness who "was nc novice en the stand." People Esaitgi, 2 435'. 444. 141 53B. 583.. 161 7'3 In that sees. because at the declarsnt?s experience as awitness, the ccurt interpreted the eerrecticn as as mere than a calculated effert te escape the dire ccnsequcnces cf admitted false swearing. an made cnly because the state had shewn the witness incontrovertible prenf of his perjury. Sec. cg. Rehearsals-c a. United States. 232 F.2d 1 {5th thr- Inst-1]- see. He. United?'tctes a Race. 2 15 F.2d :31? ten en. 1954}; Thresher Stare. 31 Bids. Crim- 95- 23'? P- 133 {1925}- Sec. Eng. State 1:.Fesairte. us Benn-455,1T? a. are [1935}. an The Supreme Ccurt cf lndiana a. trial cenrt's instructien that a witness's eel'rectien per se "rebutted the wilful and ccrrupt intent necessary te censtitute perjury" Henry Hawaii ten, Blackf- EU 5, 50'? {1345}. A California district ceurt held that prejudicial et?J?Dr had been cemmittcd by a lower eeurt in refusing to instruct that cf testimeuy ur atten'mt tn testimony by a. witness charged with perjury may be valuable te shew an intent to testify falsely. Under law "eerreetinn during the trial [is] evidence which may be considered cf some value in determining the question of fact an whether cr net the witness did or did net have wilful intent in testify falsely." People a. Bercrwe. 201 Cal. App. as 52. EU. 19 Cal. Hptr- {Dist- Ct. App. 1962}. In the extreme case. evidence cf a cerrectien has been an petent that the ccurt the perjury indictment- Rim? Henri-51:, 285 F. 974 {Ii-c. en. 1923}- 21 See, e.g..Pecp?e Entrance. Elli Cal- App. 2d 52. 19 Cal. Hptr. 8E6 (Dist- Ct. App- 1352}- Must ccurts have weighed evidence bearing en the intent ef witnesses accused of perjury simply by considering probable intent in the light at all evidence presented, but same ccurts State at Louisiana v- Brian L. Pepe; LIN: Marian few Jude-men: elf-Acquires! Page 23 hi 33 Under the comet-dual analysis of the deposition testimony of Brian Pope an absence of intent to deceive is estahlished, because when his deposition testimony is considered as a whole. the alleged perjury is modified or elaborated by subsequent remarlts so that the net effect of the entire testimony is to give a truthful picture of the facts sworn tn, thereby destroying the premise on which the perjury allegation rests- CUUNT 5 MALFEASANCE IN OFFICE The evidence contained in the record is insufficient as a matter of law to support the verdict of finding the mfendant guilty of the offense of Malfcasance in t'lffice {Count There is no evidence contained in the record that the Defendant committed malfeasance in office between November 11], sole and June 2, 21316 by intentionally using public funds for a political purpose to- vvith the payment of public funds for an attorney to prepare and draft a motion to unseal the divorce records of Mr- Mark Garher a candidate for sheriff. During the trial DPT Clause testified that Marshal Pope did not examine the hill sent to the Marshal's ?ffice hy Charles Middleton, who had been retained to and was representing the Marshal and his office in the Public Records Law civil litigation {The Iadepeadeat Weesty at. Lafayette City Mar-shat Brittaf?ope. Docket No. 2015?5?3?, Judicial District Court, Parish of Lafayette, State of Louisiana). Hence. Marshal Pope did not see the ?Redmond Motion? entry on the Middleton legal fees invoice. and assumed the entire invoice related to his Louisiana Public Records Law representation. Further, documents were introduced during the criminal trial that when Charles lt?ddleton was advised of a Public Records request relating to this part of his have relied almost exclusively on interpreting the meaning of the alleged perjurinus remark in the linguistic context of defendant's entire testimony- See Pengufe st. Giftette. 126 App. Div. E65. 1 1 I MES. 13:! {1906). Under the contextual analysis the witness tries to Prove absence of intent to deceive by showing that when the testimony is considered as a whole. the alleged perjury is modified or elaborated by subsequent remarks so that the net effect of the entire testimony is to give a truthful picture of the facts sworn tor thereby destroying the premise on which the perjury allegation rests. State of Louisiana v- Brian L. Pope; DN: Motion for Jo agile-en! of A Whites! Page 24 of 33 invoice, he advised the Marshal's it was erroneous hitting and sent a refund money order- Hence, there is no evidence of specific intent to violate a duty. There is no further evidence that Marshal Pope violated his lawful duty to not use public funds for political purposes to urge an elector to vote for or against a candidate or to be appropriated to a candidate or political organization in violation of LA RE. 1371465 and LA Const. Art 11 Section 4, his duty to not loan, pledge or donate to any person the funds, credit, property, or things of value of the State or any political Subdivision in violation Const. Art Section 14, his duty to not misappropriate, misapply, convert, misuse, or otherwise wron gfully take any funds, pro p-erty or other thing of value belonging to or under the custody or control of the public entity in which they held office or are employed in violation of LA RE- 42:1461. Thejury's instructions at trial read: Count 5 The Defendant: t1} Was a. public officer He had a duty: 1. To not use puhlic funds to urge a voter to vote for or against a candidate or organization, {andr?or} 2, To not unlawfully loan, pledge, or donate to or for any person or association except as allowed {auditor} 3. To not misapply, convert, misuse or otherwise wrongfully take any funds they control as the office holder. That he intentionally refused, failed or unlawfully performed these duties unlav?nlly, used, misapplied, misused and donated public money to hire a laid-Tar to draft a motion to nnseal the divorce records of Marl: Gather thereby seeking to urged voters to vote against Marl: Garher, a. candidate for sheriff as well as appropriated the resources of his office to Watch Dog Political Action Committee. Under this statute, the state must prove the existence of a law or statute imposing an affirmative duty on the defendant as a public officer and that the defendant intentionally refused or failed to perform that duty or intentionally performed that duty in an unlawful manner. State I). Davis, 93-0599 (La- 4ft 634 State of Louisiana v. Brian L. Pope; UN: Motion- for Jo of A equities! Page 25- of 33 Sean 1 16s, 1 1m. The duty must he one expressly imposed bylaw on the public officer because the officer is entitled to know exactly what conduct is expected of him in his official capacity and what conduct ?rill expose him to criminal charges- State Perez, 464 Elo.2d Tall {La. 1985}. Intent is likewise an essential element of the offense. As the Louisiana Supreme Court. explained: Louisiana HE. 14:134 does not criminalize all ethical violations auditor general of duty. The object of the malfeasance statute is to punish a breach of duty committed with the required culpable state of mind. To this end, the statute expressly limits its apphcation to instances in which a public officer or employee intentionally refuses or fails to perform or intentionally performs in an unlawful manner, any affirmative duty imposed by law upon him in his role as a public servant. The inclusion in the statute of a criminally culpable state of mind maltes it clear that it applies only where the statutorily required niens rea is proved beyond a reasonable doubt. Thus. there lnadverte nee or negligence, or even criminal negligence. wiil not support a violation of the malfeasance statute because the statute specifies the act or failure to act must be intentional. State Pettfto, p. 13 (La. 59 Solid 1245. 1254 {emphasis in ri gi al)- Citing Pititto, the Louisiana Supreme lBourt declared that in reference to malfeasance in office: Specific intent in this context is statutorily defined as ?that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to followr his act or failure to act.? Ila- 11.8- 14:1tlf1)- ?ts a state of mind+ specific intent need not he proved as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State it). (halides, 420 So.2d l. 123, 112? {La 1932}- State p. 26 (La. Bfl?fli?}. There is no evidence that Marshal Pope specifically intended to extend public funds for an improper purpose since he was not aware Middleton?s bill included anything other than his work on the Louisiana Public Records Law civil suit. State of Louisiana v- Brian I..- Pope; DN: Motion for Ju signs-en: of A minimal? Page 25 of 33 CDUNT IE IN The evidence contained in the record ls insufficient as a matter of taw to support the verdict of finding the Defendant guilty of the offense of malfeasance in foice [Gount There is no evidence in the record that the Defendant committed malfeasance in office on or about June 13, 2016 by intentionally and unlawfully using public funds to pay for an attern ey for his employees during questioningin a criminal matter in which they were not targets of an investigation. rFliers is no further evidence that the Defendant violated his lawful duty to net loan, pledge or donate to any person the funds, credit, property, or things of value of the State or any political subdivision in violation ctLa Eonst. Art Section 14,I?1ts duty to not misappropriate, tnisapply, convert, misuse, or otherwise wren gfully take any fundsI property (11' other thing of value belonging to or under the custody or control of the public entity in which they held office or are employed in Violation of LA 431461.. The employees (If the Marshal's foiee had been subpoenaed to app ear before a court reporter at the District Attorney?s foice without any indication they were only w?tnesses and without irnrn unity agreements. The jury's instructions at trial read: {Jo not 6: i The Defendant: Was a public officer He had a duty: 1. To net unlawfully lean, pledge, or donate to or for any person or association except as allowed [al?ll?or] 3. To not misapply, convert, misuse or otherwise wrongfully talte any funds they control as the office holder. I That he intentional refused, failed or unlawfully performed those duties unlawfully, used, misappijed, misused and donated public money to hire a lawyer to represent Marshal Employees who were not targets of any criminal investigation. State of Louisiana Brian L. Pope; DIN: Marlon for Judgment ofAmu??ra! Page of 33 [iced faith reliance en advice ef ceunsel is evidence that tends tc negate specific intent element of malfeasance in effiee is a specific intent defense this Henerahle Ceurt heard during the trial. As his farmer eeunsel . Kevin Steckstill. testified, the defendant paid these legal fees relating tn the representatien ef the empleyees ef the Mars hal's effice, cencern ed aheut why they were being? subpeenaed is the District Attemey's effiee, at the direetien ef his atterney. All ef them testified at trial ahent their anxiety and desire fer legal representatien. Okay. We have up here, it?s already been intredueed inte evidence. De yeu receg'nize this document? A Yes. {Jan yen tell the jury what that is? 1x'eu prehably haven't seen it in a leng time. A Yes. It leeks like an inveiee frem Mr. Jarrett. De yeu remember if Mr. Jarrett mailed er delivered this inveiee te yeu? A den?t recall if it was mailed er hand delivered in me. Okay. A But I weuld have ferwarded te Marshal Pepe fer payment. (1 Did yen recemmend Ed the Marshal er advise him that he sheuld pay this hilI?EI MR. Yeur Heller, I'm geing te ehject because I think we could he getting inte seme prehlems here. THE COURT: All right. Ask a different questien. Did yen advise Marshal Pepe te pay this legal hill? A i. think se. THE COURT: There?s an ehjeetiec based en we can side bar. THE RECORD) BACK ON THE REUDRD Hit em. {eentinuing?} Did yeu advise Marshal Pepe in pay that legal billpay it." [Trial Transcript Excerpt Kevin Steckstill, page es, lines 1 threugli 30] State of v. Brian Pepe; DH: Medea fer Judgement 01".4 agent?s! Page 25 ef 33 In United States 1?71 F. Supp. 2d 556 (D. Md. 2911]? a pharmaceutical company former Vice President and associate counsel was indicted for allegedly ?withholding documents from the 1-1-5. Food and Drug Administration during its inquiry into whether the company was promoting ?off?label" uses of one of its drugs. The indictment alleged that the counsel obstructed an investigation, falsified documents, concealed documents and made false statements. Counsel steadfastly claimed not only that she had done nothingwrong, but that some of her actions were based in part upon the advice of the company?s outside counsel - Id- at 553. In addition to asserting the advice?of?eounsel defense at trial which resulted in the dismissal of all charges, the defense 1wisely asserted pretrial that the indictment was improperly obtained because prosecutors misinstructed the grand jury on the effect of relying on the advice of counsel. fat. at 551.25 After an in?camera review of the grand jury transcript, the court agreed and dismissed the indictments 1Without prejudice, concluding that the government had misiustru cted the grand jury on the advice ?of ?counset defense-[6] Although this case demonstrates the nightmare created by overly aggressive theories of prosecution. it also serves as a reminder of the benefit of consulting counsel, and. where proper, asserting an advice-of?eounsel defense- in reaching its conclusion the District Court reviewed a Supreme Court?s analysis anem- Aratersen Lee a eat-tea States, set us- tacos)? [or 22 Subsequently. the government re-indieted the defendant and the case proceeded to trial- After the close of the government's evidence. the defendant moved for acquittal under Federal Rule of Criminal Procedure 29-. The court granted the motion and the defendant was acquitted- {fretted States is. Stevens, Judgment, No- (D. Md- May is, 201 13- The eeurt explained its decision to grant the motion for orally. a transcript of which is available at l?hi?stevenapdf. ?3 The District Court cited United States Mittei?. 55-5 F.2d 235. 23? {4th ll'lir- reli?nee defense . - . is designed to refute the government's proof that the defendant intended to commit the offense"), United States as. Potyterse'es, F-2d 1.350. 1353 [4th Cir- basis for the defense of action taken on the advice of counsel is that. in relying on counsel's advice. defendant lacked the requisite intent to violate the The Supreme Court unanimously overturned amunting firm A-rthur Andersen?s conviction of obstruction of justice in the fraudulent activities and subsequent collapse of Enron, State of Louisiana y. Brie-n L- Pope; Dill: Motion for Judgement efAeq-efrra! Page 2'9 of 3-3 determiningwhether a statute required peci?e intent. United States Stevens, supra at 561. The Supreme Court explained: statute] provides the mens rea and then a list of acts uses intimidation or physical force. threatens. er oorruptly persuades.? We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately fellew. if not to other elements deem the statutory chain." Id. Andersen, 544 at scares. IClearly Marshal Pope relied on the advise of can use] to pay these legal bills and should be acquitted fer lack of specific intent. NT - MFEASANUE IN r[?hle evidence contained in the record is insufficient as a matter of law to support the verdict of finding the Defendant guilty of the effense cf Maifeasance in Office [Genet There is no evidence contained in the record that the Defendant committed malfeasance in office on our aheut July 13, EDIE by intentionally using public meney for an attorney for services rendered in connection with his criminal cc ntempt hearing and su pervisery writ application. There is ne further evidence that the Defendant vinlated his lawful duty net loan, pledge or donate to any person the funds, credit, property, or things ef value of the State or any pelitical subdivision in violatien ef LA. Genet. Art Sectien 1-4, his duty in net misapprepriate, misapply, convert. misuse. or otherwise wong?fully take any funds, preperty or ether thing of value belonging to or under the custedy er control ef the public entity in which they hnid office er are empieyed in 1?'ieiatten cf LA RE. 42:1451. The jury?s instructiens at trial read: Count In The Defendant: on the basis that the jury instructiens did net preperly pertray the law Arthur Andersen was charged with breaking. As the ?nisher Andersen name had become [nl'mnnus and the firm had been obligated to cease audit activities. the business was unable to recover even after the conviction was overturned in its favor- Stale et' Louisiana v- Brian L- Pepe; DN: Marian for Judgment a! A equine! Page ill} of 31:1 Was a public officer He had a duty: 1. To not unlawfully lean, pledge, or donate to or for any person or association except as allowed {andfer} 3. To not misapply, convert. misuse or otherwise wrongfully take any funds they control as the office holder. That he intentional refused. failed or unlawfully performed these duties, unlawfully. used, misapplied. misused and de?ated public money to pay for a lawyer to represent him on his writ application to overturn Judge Edwards finding of criminal contempt of court. Du ringthe trial. Kevin Stochstill testified concerning his directions to Marshal Pepe that he pay the legal ices of Katherine Gnillet en the appeal in the Louisiana Public Records civil lawsuit. Eli-Di- Dr ?irt: a New. do you knew a lawyer ?amed Katherine lE'rnillet? ?i?es. I do. llow do yen know her? I we rited for her iath er. Thomas Gniihean. for years. I?ve known her over the years and she practices and were handled cases together as well. When you were Pepe in the public records lawsuit. did you ever ask her help to assist you in any legal work? 1it"es. Can you tell the jnry about that? After the contempt ?nding by Judge Edwards, which was. i think. on March 22. we had to do. basicallyr an appeal to the Third Gircuit Court of Appeal. i don't particularly like to write briefs and do the research. And, so. I asked that she get involved and do that. She is good at doing research and irriting briefs. so I asked that she get involved. Did she, in fact. write that writ application? ?res. she did. Dkay. Do you recognize that letter and the charges? Have yen seen this document before? it's been a while but I saw it at some point. yes. ?kay. Do you remember how that bill was do you know how Ms. Gnillot get paid? I remember having a conversation With her in lI'Jity lCourt one day. i as [ted her whether or not her hill had been paid. She said that it had not. And my recollection is that 1 took the hill to the Marshal's and had been given it to I can't remember her name. It?s not the receptionist. i think. it's the lady that handles accounting. Thank yen. And she was paid for her legal work? I don't remember if she was paid that day or she was paid later. [Trial Transcript Excerpt Kevin Stock-still. page 68, line 31 through page it}, line 1] Furthermore, during trial the evidence introduced by the State and elicited during cross?examination established that the appellate writ arose out of a civil State of Louisiana Brian L. Pope; UN: 159-155 Mr: Hon for Jo dgmaai? afA muf?e! Page 31 of 33 proceeding [The Independent LLU as Lafayette Gritty Marsh-11.! Matt Pallet Docket No- Division relating to Louisiana Public Records Law requests under the provisions of 44:1 et seq., a litigation clear];r relating to Brian Pope?s position as the duly elected Marshal of the City Court of Lafayette. Certainly, the funds used to pay legal fees for the defense of the civil suit were legitimate expenses of the Marshal's office. Similarly, legal fees relating to appeals as part of that defense logically should also the expenses born by the Marshal?s Uffice. To the cat that Brian Pope lacked the specific intent to violate the statute based on acticgon the advise of counsel. he should he acquitted of this charge as well. A conviction hased on insufficient evidence cannot stand, as it violates due process. See US. Const. amend. La- art. I. The Defendant moves this court to set aside the jury's verdict and grant his Motion for Acquittsj, or in the alternative, to review the responsive verdicts and enter a verdict to a. lesser and included offer: se. RESPECTFI 1LT If SUBMITTED - Bar Roll thber ters Papillion Thomas lButtons, LLU 35B Kaiiste Saleem Road, Suite 120 Bar Roll Number 197?03 Lafayette, LA 12345 Perkins Road, Bldg. S, Ste. 2132 Ph?ne: Baton Rouge, LA Fast: Phone: (225) 408?0362 Email: m?ag?onesg?gma?nom Fax: [225] Email: melindont??awhnnet CERTIFICATE OF SEHWCE I hereby earth'sr that a comr of the foregoing motion, and proposed orders, has been forwarded to the Honorable Judge David Smith, Box 51133. Growiey, La by depositing same in the United States Mail, postage prepaid and addressed, and to Alan Haney. [titles of the District Attorney, 15?? Judicial District Uou1?t,P D. Eon BBDB ?Lafayette LA. via hand delivery this {gage-d av of March, 21.119- State of Louisiana v. Brian L. Pope; DN: 164311453455 Motion for Judah: eat.? of Aegeh?itai" Page 32 of :13 STATE LOUISIANA 15TH JUDIUIAL VS. DOCKET HILL: PARISH OF LAFAYETTE BRIAN L. POPE LUUI SIANA Censidering the foregoing Metien?. IT IS ORDERED that the State at Leuisiana. threug?h the ?fties ef the District Atterney fer the Parish ef Lafayette, shew eause en the ?ag},r ef El] 19, at e'eleek Whj.ir the enurt net set aside the jury's verdiet and grant Defendant?s Metien fer Judgment eI er in the alternative, te re?ew the respensive vet-diets and enter a verdict tn a lesser and included nffense. SIGNED this day of ems, in Lafayette, Lafayette Parish, Leuisiana. HUN. DAHU DISTRICT JUDGE 15TH JUDICIAL DISTRICT COURT C- we? State at lmulslana Brian L- Pepe: DN: 154311459455 Ma than for Ju time! :31" A equ? eta! Page 33 of 33 1., a. . i. Lb?ffi-H . . iill?l llER 13 wall]: 51 Brett Gmyson LLC March 13, 2019 Honorable Louie . Ferret Lafayette Pariah Clerk of Court Lafayette Pariah Courthouse Building Poet ?ffiee Boat Lafayette, Louisiana Re: State of Louisiana Va. Brian L. Pope No. 291 59455 Dear Sir: In reference to the above captioned matter, please find enclosed herewith the following docu mentta) fer filing and recording with your office: 1. MUTIGN FDR JUDGMENT ACQUITTAL 2. UHDER BLGfemb Enoloaurefa} do: Honorable David Smith Mr. Alan Haney, ADA Mr. Brian L. Pope 350 Kaliate seldom Road. Suite 120 . Lafayette. LA roaoa-ozao . hlgroysoneaqmom EETJDE-TEJE t: Elan-muff bigrayaoneaq?gmeithnn'l