Fifth Circuit Reverses Conviction Based on Prejudicial Prosecutorial Misconduct
During an interview with FBI Agent Steven Rayes, Beaulieu identified various individuals in carjackings and bank robberies. Rayes memorialized the interview in an FBI form bearing the number 302 (“302”). Assistant U.S. Attorney Michael McMahon called Beaulieu to testify against two of the men he had named. Beaulieu refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The U.S. District Court for the Eastern District of Louisiana appointed Cynthia Cimino as counsel for Beaulieu. The following day, the Department of Justice (“DOJ”) granted Beaulieu immunity from prosecution under 18 U.S.C. §§ 6002-6003. Beaulieu still refused to testify, and he was charged with felony criminal contempt. The district court appointed McMahon to prosecute the charge. Cimino withdrew as counsel, and new counsel was appointed.
Cimino was called as a witness by the defense. She testified that two letters had been provided that offered Beaulieu immunity. In a letter dated April 25, 2018, the prosecutor stated he would not use any statements Beaulieu made in his testimony against him in a prosecution for making a false statement, obstruction of justice, or perjury. Cimino further testified that a letter from the DOJ on the following day formally granted immunity under § 6002, but that section permits prosecution for perjury and for giving a false statement. Cimino also testified that McMahon had stated, regarding the offer of immunity, he would prosecute Beaulieu to the fullest extent of the law if Beaulieu testified in any way differently from what was written in the 302. Cimino additionally testified that Beaulieu told her that three of the statements written by Rayes in the 302 were not accurate; consequently, if Beaulieu testified in agreement with the 302 he opened himself to prosecution for perjury and making a false statemen. But if he testified truthfully in contradiction of the 302, he would be prosecuted by McMahon.
During Cimino’s cross examination, McMahon argued with Cimino, denying that he had told her he would prosecute Beaulieu if he testified differently from the 302. And during closing, McMahon made two arguments not supported by any facts in evidence: (1) he told the jury that Beaulieu had refused to testify because he feared being labeled as a “rat” and (2) that he (McMahon) had never told Cimino he would prosecute Beaulieu. McMahon also argued that the jury should convict because failure to do so would disrespect the judge and the court.
The jury convicted Beaulieu, and he appealed. He argued, inter alia, that his conviction should be vacated based on prosecutorial misconduct.
The Fifth Circuit observed that in order for Beaulieu to prevail he had to show (1) the prosecutor made an improper remark and (2) that he was prejudiced thereby. United States v. Fields, 483 F.3d 313 (5th Cir. 2007). McMahon’s arguing with Cimino and contradicting her with his statements (using his role as prosecutor to be a witness); his arguments based on evidence not presented at trial; and his urging the jury to convict, not based on the evidence, but because a failure to convict would disrespect the judge, were all textbook examples of prosecutorial misconduct. United States v. Young, 470 U.S. 1 (1985).
As to prejudice, the “determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” United States v. Mendoza, 522 F.3d 482 (5th Cir. 2008). In answering that question, courts may consider (1) the magnitude of the prejudicial effect of the statements, (2) the efficacy of any cautionary instructions, and (3) the strength of the evidence of the defendant’s guilt. Id.
The Government conceded Beaulieu easily satisfied the first two prongs, and the Court concurred. The Court also reasoned Beaulieu proved the third prong.
To convict, the Government had to show Beaulieu (1) received a specific court order, (2) he violated the order, and (3) did so willfully. United States v. Allen, 587 F.3d 255 (5th Cir. 2009). Evidence that Beaulieu willfully violated the order to testify was lacking. That is, if McMahon did in fact threaten to prosecute Beaulieu if he corrected errors in the 302, then the jury could determine that his refusal to testify was to avoid committing perjury and not a willful violation of a court order. Fed. Power Comm’n v. Metro. Edison Co., 304 U.S. 375 (1938). The Government’s only evidence disputing McMahon’s threatened prosecution came from McMahon himself — which he offered inappropriately. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987).
The Court concluded Beaulieu was prejudiced.
Related legal case
United States v. Beaulieu
|Cite||2020 U.S. App. LEXIS 27749 (5th Cir. 2020)|
|Level||Court of Appeals|