OK folks have we thought about this enough? We have a federal subpoena out to the folks at NOLA Media Group asking for all the skinny on 11 internet commenters. One of the post Katrina NOLA police murder cases involving civilians is in danger of getting verdicts set aside. And the former Goatherder in Chief has asked for an evidentiary hearing. Days later Federal prosecutors contested Broussard’s motion arguing his guilty plea precluded such a line of inquiry. And then I started getting emails from observers with criminal defense experience and those off blog comments were enlightening. I’ll preface the rest of this post by saying I know very little about the practice of criminal law in the Federal Court system beyond the fact it is hard for a defendant to win at trial.
With that said there are some important points that were made and the first regards the Team Horn subpoena to NOLA Media Group for information on those 11 commenters. I’ll let a knowledgeable reader explain:
As part of their law enforcement mission the Feds can issue a subpoena to ensure that the law is being observed. They don’t need even a suspicion that the law may have been violated to issue a subpoena. That the newspaper is (1) objecting, (2) asking the Feds to disclose the basis for the subpoena, and (3) questioning whether the DOJ has authority to request the information under the Inspector General Act is curious and raises issues. For example, if the DOJ indulges the newspaper’s opposition and does not respond by saying, “Make the return on the subpoena or we’ll seek a contempt citation against your publisher.” it will indicate a lack of resolve and perhaps a political approach by the DOJ in the investigation.
Insofar as the merits are concerned, the paper can’t object, because it is not any of the commenters who have that right instead. The newspaper has no standing to act to ensure the DOJ is complying with law. That’s a right that belongs to the commenters and there’s no 1st Amendment issue involved. If there were it would have been asserted already. Furthermore, federal law enforcement need not give a basis for issuing the subpoena. They can issue a subpoena to check whether the law is being observed even without a suspicion of criminal activity. They need not give the basis to the newspaper. Asking for the basis for the subpoena is like asking for information so the paper can expand on the story. Thus, not only are the merits entirely in favor of the DOJ, the paper insulted the DOJ.
The newspaper is defending itself, not the commenters.
This raises interesting questions and lots have been raised of late regarding that Federal subpoena to NOLA including by Jason Berry over at AZ. The rumor mill is in overdrive as to any connection between the subpoena and Fred Heebe’s various defamation lawsuits against former members of the US Attorney’s office. Until something else comes out I’m sticking with my theory that Heebe did not need an insider beyond his own legal team to divine Perricone and Mann were posting to NOLA.com.
Finally back to the Federal prosecutor’s reply to Broussard’s motion for an evidentiary hearing. As I understand it “Article III” Judges (IE Federal Court judges) alone have the power to dismiss a case due to prosecutorial misconduct regardless of the guilt or innocence of the defendant. If my general understanding is correct and I think it is, then the Team USA reply to Broussard’s request for an evidentiary hearing missed the point. Again a reader/legal observer explains:
The relief sought was an evidentiary hearing, not to vacate a conviction. My guess is that Broussard is trying to delay giving the Government the proffer he must to get a 5-K letter. His full explanation of his involvement with Heebe/Ward/River Birch will prove a racketeering enterprise by association in fact, and that means Heebe is facing a RICO count and forfeiture of the Heebe/Ward empire. Simply put, Broussard is to Heebe what Bob Guidry was to EWE, and we know what Guidry did to avoid forfeiting his wealth. His testimony was devastating.
I do not necessarily agree with the Broussard-Bobby Guidry anology but on matters involving the former Goatherder in Chief I think I am on safe ground opining that the Feds will rue the day they depend on that man for anything in a court room. While I have no specific knowledge of where Broussard is in the system since cutting his plea deal any delay in giving his proffer or his continued cooperation would be significant. First thing though is to understand the concept of a proffer in the context of a federal prosecution and the term dragon “Queen for a day”.
Just what is a proffer and what are the perils of entering into a proffer agreement (also known as a proffer letter) with the federal government? Proffer or “queen for a day” letters are written agreements between federal prosecutors and individuals under criminal investigation which permit these individuals to tell the government about their knowledge of crimes, with the supposed assurance that their words will not be used against them in any later proceedings. (The individuals can either be witnesses, subjects or targets of a federal investigation, although it is subjects and targets who provide most proffers.)
If you enter into one of these agreements, you will proffer information orally in a proffer or queen for a day “session” attended by you, your attorney, the Assistant U.S. Attorney (“AUSA”) and one or more federal agents. (In recent times, regulatory attorneys have been attending proffer sessions, when the government is engaged in parallel civil and criminal investigations.) You should think of a proffer session as a sneak preview in which you show the federal authorities what you can bring to the table if they cut a deal with you.
Since a deal has been cut in USA v Broussard one would think a proffer has been executed. That said one has to think there is currently no cooperation between Teams Broussard and USA given the latest motions that were filed in his criminal case. To the extent Slabbed legal analysts all see Broussard as one part of an overall legal pincer movement against Fred Heebe with disgraced former New Orleans Mayor Ray Nagin forming another, any hiccups in the plan have got to be maddening to the prosecution. But Team BrousStar is playing with fire as I continue with Solomon Wisenberg’s take on the proffer:
Why are proffers so risky, since your words are not supposed to be used against you at a subsequent trial? To begin with, unlike immunity or plea agreements, proffer agreements do not prevent the government from making derivative use of your statements. In other words, although the government cannot use your actual proffer session statements against you in its case-in-chief, it can use the information that you provide to follow up leads and conduct further investigations. If those leads and further investigations capture new evidence, such evidence can be used to indict and convict you. Even if the prosecutor is not able to develop new information from your proffer, he will gain a tactical advantage from seeing (at the proffer session) how you fare under the pressure of tough questioning, how you present yourself as a witness and, most importantly, what your theory of the case is. This will better prepare him to build his evidence against you and to cross-examine you at trial, should you choose to testify, and will thus boost his self-confidence. Moreover, if, like many suspects, you implicate yourself in criminal activity during the proffer session, the prosecutor will feel better about prosecuting you, because he will “know” in his heart of hearts that you are guilty. (If the AUSA believes that you lied during your proffer session, he can indict you under Section 1001 of the federal criminal code for false statements to the government. As a practical matter, this is almost never done.)
This is significant because people that know Aaron Broussard well, some dating back to his college days, indicate to Slabbed the man is simply incapable of telling the truth. My inspection of his personal files and the contents of his desk on 10 at the Yenni Building last Summer strongly indicated the man views himself as a “Thespian” and he was part of a political-social group that literally traveled across the land numerous times a year to places like the Aspen Film Festival and Broadway in pursuit of his acting passion. Beyond Chereen Gegenheimer, BrousStar’s acting travel mates consisted of a whose who of the Jefferson Parish business world, names that I will not name at this point.
In other words, the political persona Broussard exuded and personal traits like always borrowing money from his friends because he never had any money are all an act as BrousStar literally used the world as his stage. As an old college friend of Broussard’s once told Slabbed, to Aaron “life was one big con”. His peddling “investments” in entities owned by his shadow law partner Danny Abel such as Cerro Coyote SA and Trout Point Lodge, well chronicled here on Slabbed, are prime examples of that.
At this point in Broussard’s life, these anti social behavior patterns are well entrenched thus my prediction above concerning Team Fed ruing the day they depend on the guy in a court room. That said I would caution everyone in the media, especially the new media that now is the most dangerous time for BrousStar is a desperate man. Ignatius Reilley senses the same thing IMHO so I’ll let him explain:
Why else would a comment be left on one of these sites that would link to a new blog that has undertaken the project to put into the public realm issues that occur a life time ago. For that link go to Slabbed.org or click here and read muspench comment.
Something is afoot but alas I’ll let far smarter souls than I put the pieces together.
Yes I could post the link directly but would prefer not to drive site traffic directly for my own reasons. Remember, nothing in this sorted story is happening without a reason and yes Jason if they are not behind the curtains they are above them pulling the puppet strings
The stakes have never been higher in fact. Stay tuned.