United States v. Jackson

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.

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.

BACKGROUND

This matter is before the court on a motion to dismiss based on prosecutorial misconduct filed by defendant, Stacey Jackson. Specifically, Jackson, contends that the indictment should be dismissed because anonymous comments made by Salvador Perricone, the former Assistant United States Attorney Senior Litigation Counsel in the United States Attorney's Office for the Eastern District of Louisiana, in response to articles on the Times–Picayune's online forum Nola.com violated grand jury secrecy requirements, amounted to prosecutorial misconduct, and prove selective prosecution based on race.

On June 6, 2013, the Grand Jury in the United States District Court for the Eastern District of Louisiana returned a four-count indictment against Jackson. Count 1 of the indictment charges that from January 2005 through August 2008, Jackson, Trellis Smith, Earl Myers and others conspired to commit bribery in violation of 18 U.S.C. § 666(a)(1)(B) and theft of public money in violation of 18 U.S.C. § 641 ; all in violation of 18 U.S.C. § 371. Count 1 outlines a scheme in which Jackson, the former executive director of the New Orleans Affordable Homeownership agency (“NOAH”), would overpay Smith and Myers for work that they performed under contracts with NOAH, and then she would receive a portion of the overpayment from Smith and Myers as a “kickback” in exchange for continuing to give them work as NOAH contractors. Counts 2 and 3 charge Jackson with a specific act of bribery in violation of § 666(a)(1)(B) and stealing public money in violation of 18 U.S.C. § 641, respectively, in connection with her former employment at NOAH. Count 4 charges her with obstructing justice by providing false documentation to a federal Grand Jury in violation of 18 U.S.C. § 1503(a).

On August 8, 2008, almost five years prior to the filing of the indictment, the Times–Picayune published an article on Nola.com titled “N.O. Council Members Get Subpoenas for NOAH Records.” The first paragraph of the article states that the New Orleans City Council's attorney 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. On August 9, 2008, Perricone, under the moniker “campstblue” posted the following comment in response to that article:

well, man—you know, man. I didn't know anything about dis stuff, man, you hear what I'm saying, man. You know, man, like you always looking for something negative to write about, man. How's dis going to help the racovery, man, you hear what I'm saying, man. We just trying to make it back, man. Didn't you hear what I said man, dis is a choclate city, man and we do things the choclate way, man—you hear what I'm saying, man?

TRANSLATION: It's our turn to steal. We got the power. You can't do anything to us.

God Bless the U.S. Attorneys office!!!!!!!!!

From August 2008, until the indictment was filed on June 6, 2013, the Times–Picayune published many articles about Jackson and NOAH on Nola.com, and hundreds of comments were posted by anonymous bloggers in response. The above-referenced comment by “campstblue” is the only one about Jackson known to have been posted by an Assistant United States Attorney, or other government law enforcement official.¹ Jackson argues that the “campstblue” comment, along with others anonymously posted by Perricone under various monikers in response to articles about political corruption in and around New Orleans, prove that the case against her should be dismissed for grand jury leaks, prosecutorial misconduct and selective prosecution based on race. Jackson points to the following specific comments anonymously made by Perricone.

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...