United States v. Jackson, Criminal Action No. 13–131.

22 F.Supp.3d 636

UNITED STATES of America

v.Stacey JACKSON.

Criminal Action No. 13–131.

United States District Court, E.D. Louisiana.

Signed May 23, 2014

Motion denied. Daniel Patrick Friel, Fred Patrick Harper, Jr., Sharan E. Lieberman, U.S. Attorney's Office, New Orleans, LA, for United States of America.

Edward J. Castaing, Jr., Crull, Castaing & Lilly, New Orleans, LA, for Stacey Jackson.

ORDER AND REASONS

MARY ANN VIAL LEMMON, District Judge.

IT IS HEREBY ORDERED that Stacey Jackson's Motion to Dismiss based on Prosecutorial Misconduct (Doc. # 110) is DENIED.

Jackson also filed an ex parte motion for issuance of a subpoena duces tecum to the Times–Picayune seeking information that would identify “kefir,” another blogger that posted a comment in response to an article about her. (Doc. # 140) The court denied the motion, finding that the “kefir” comment did not have sufficient similarities to those known to have been made by a prosecutor, “aircheck” or “jammer1954” and an investigation conducted by the United States Department of Justice's Office of Professional Responsibility (“OPR report”) found that “no employees of the United States Attorney, other than Jan Mann, the former First Assistant United States Attorney, and Perricone, were involved in prosecutorial misconduct.” (Doc. # 156).

On May 23, 2009, under the moniker “legacyusa,” Perricone posted:

Harvey, I agree with Campst [one of Perricone's own blog names], you are an idiot!!!!

Remember right after Katrina when Eddie Jordan was MIA who stepped in and functioned as the DA's office. THE UNITED STATES ATTORNEY'S OFFICE. Letten and his crew went after street hoods aggressively and to this day, still do. Blacks have done more damage to their own people than whites have could ever imagine. But, yet blacks won't blame their own for their own problems—it's easier to blame the white man.

Blacks kill blacks with greater frequency than whites kill whites or whites kill blacks. But still the white man gets the blame.

Blacks steal from blacks more.

Blacks sell drugs to blacks more.

Blacks deny blacks a good education. The Orleans School board is a great example of how black adults victimize their own children. Now whites are stepping in to see that young blacks get educated.

Blacks have run this city for over 30 years. Enough said.

On November 28, 2009, Perricone, using the name “legacyusa,” commented:

I hope you don't think DeFillo is one of those honest officers.... that entire 5th floor needs to go. Hope the next mayor cleans house on the day he or she is sworn in. I wonder if New Orleans will ever recover from the Nagin Administration. Boy were we fooled.

On February 17, 2010, Perricone, as “legacyusa,” commented:

His entire 8 years has been one corrupt morass. Either by neglect or active pursuit of personal financial growth, Nagin's administration has been an abortion. Police corruption, garbage contracts, computer and crime camera's—where's the growth? Oh, I forgot—800K to Zulu. Now thats progress, isn't it. His statement several years ago about New Orleans being a Chocolate city is the epitome of corruption—corrupt in the sense that he purposefully announced, to satiate a few partisans, that whites are not welcomed in New Orleans and that he would do everything to present the turning back of the clock. There are various forms of corruption and Nagin has made Marc Morial look eligible for Sainthood. He can't leave soon enough.

On March 26, 2010, Perricone, posting as “legacyusa,” commented:

He stepped down before he stepped up. I am now beginning to believe that the Nagin administration has exceeded the Marc Morial administration in denying the citizens of New Orleans of their right to honest government, for profit. How much more are we going to tolerate this? .... It's time to break the cycle or admit that we are deliberately and happily ignorant.

Also on March 26, 2010, Perricone, using the name “legacyusa,” posted:

Nagin vetoes a anti-corruption ordinance!!!! That should be his legacy. Nothing more—nothing less.

On July 25, 2011, under the moniker “dramatis personae,” Perricone commented on the testimony of the former New Orleans Police Superintendent in a federal criminal civil rights case:

He can't remember which deputy chief he instructed to conduct investigations of police shootings? ? ? ? Thank God he's not chief anymore. Looks like he's reached his capacity for competence at Southern [University].

On January 18, 2012, Perricone, as “Henry L. Mencken1951,” posted in response to an article about Aaron Broussard, the former Jefferson Parish President who hired Robert Jenkins, an African American attorney, to defend him in a federal corruption prosecution:

What is the former president of white suburbia doing with a black Tulane and Broad lawyer? Now there's a story that should be explored.

Jackson argues that these comments “show a pattern of governmental conduct, system and intent to violate the law” and are “racial attacks” that incite the community and influence potential jurors against African American defendants, or white defendants with African American attorneys. Further, she argues that as “an African American female who served from 1998 to June 27, 2008, as Executive Director of NOAH, a city agency, in which former Mayor Ray Nagin owned the stock—”, “[s]he is the object and victim of these blogs and racial attacks.” Jackson argues that the only remedy is dismissal of the indictment because she cannot get a fair trial. She states that the above-quoted blogs are the basis for this motion to dismiss based on prosecutorial misconduct, grand jury leaks, and the following constitutional violations:

(i) claims of Government violation of grand jury secrecy rules, Rule 6(e)(2), Federal Rules of Criminal Procedure;

(ii) prosecutorial misconduct and unethical conduct;

(iii) violations of federal regulations;

(iv) creating a media carnival atmosphere and public pressure on others being investigated, as a tool to rein in other subjects of the grand jury;

(v) racial targeting and profiling;

(vi) attempting unlawfully to influence public opinion, and potential and actual jurors;

(vii) unlawful Government public expression of personal opinions about Ms. Jackson's guilt, and publicly stating, in effect, that she must have committed the crimes being investigated, because of the color of her skin, and that she and other African Americans routinely commit crimes and have the right to do so, because of the color of their skins;

(viii) making comments to appeal to the conscience of the community to convict African Americans, including Ms. Jackson, who he says has been committing crimes with impunity; and, otherwise convict [ ] Ms. Jackson for reasons other than the evidence presented at a fair trial with due process of law, which she can no longer have due to these Government misdeeds.

In a prior Order and Reasons (Doc. # 33) in this case, the United States Magistrate Judge synthesized Jackson's “eight defenses” into “four (4) possible legal defenses, three of which might support a motion to dismiss the indictment:” (1) violations of the grand jury secrecy requirements of Rule 6(e) of the Federal Rules of Criminal Procedure; (2) prosecutorial misconduct undermining due process fairness principles in the accusatory process through violation of federal regulations and ethical rules applicable to prosecutors; (3) selective prosecution based upon defendant's race; and, (4) a broader argument of violation of defendant's due process rights by combination of all of the above. Thus, this court will analyze these arguments in evaluating Jackson's motion to dismiss.

ANALYSIS

1. Violations of the grand jury secrecy requirements

Rule 6(e)(2)(B)(vi) of the Federal Rules of Criminal Procedure provides that a government attorney must not disclose matters occurring before a grand jury, unless certain exceptions apply.² Jackson argues that Perricone's anonymous online comments violated the grand jury secrecy rule.

As stated above, the only comment attributable to Perricone posted under an article about Jackson on Nola.com was made on August 8, 2008, in response to the article “N.O. Council Members Get Subpoenas for NOAH Records.” This comment does not reveal any Grand Jury information. Further, the article specifically states in the first paragraph that the New Orleans City Council's attorney, not the United States Attorney's Office, reported that three members of the City Council received federal Grand Jury subpoenas seeking documents related to NOAH, and he expected the other four members would also be served. In addition, “the OPR report cites no evidence that might support either a conclusion or defendant's argument that any grand jury leak or other violation of Fed. R.Crim. P. 6(e) occurred or is evident in Nola.com postings attributable to Perricone or [Jan] Mann.” (Doc. # 156). Therefore, Jackson's motion to dismiss the indictment for violations of grand jury secrecy is DENIED.

2. Prosecutorial misconduct undermining due process fairness principles in the accusatory process through violation of federal regulations and ethical rules applicable to prosecutors

Jackson argues that Perricone's anonymous comments about her in particular, and the Nagin administration and African American city officials in general, improperly prejudiced the Grand Jury against her. She argues that her right to due process guaranteed by the Fifth Amendment of the Constitution of the United States was violated by the impact on the Grand Jury proceedings which the postings created.

“[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendant[ ].” Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988). However, an indictment may be dismissed “for prosecutorial misconduct which is flagrant to the point that there is some significant...