Filed: Aug. 31, 2020
Latest Update: Sep. 01, 2020
Summary: Case: 19-30609 Document: 00515546445 Page: 1 Date Filed: 08/31/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 31, 2020 No. 19-30609 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Thaddeus Beaulieu, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:18-CR-108-1 Before Wiener, Engelhardt, and Oldham, Circuit Judges. Andrew S. Oldham, Circuit
Summary: Case: 19-30609 Document: 00515546445 Page: 1 Date Filed: 08/31/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 31, 2020 No. 19-30609 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Thaddeus Beaulieu, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:18-CR-108-1 Before Wiener, Engelhardt, and Oldham, Circuit Judges. Andrew S. Oldham, Circuit ..
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Case: 19-30609 Document: 00515546445 Page: 1 Date Filed: 08/31/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 31, 2020
No. 19-30609 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Thaddeus Beaulieu,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CR-108-1
Before Wiener, Engelhardt, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
The United States prosecuted and convicted Thaddeus Beaulieu for
felony criminal contempt. The Government concedes that it committed
prosecutorial misconduct but asks us to affirm Beaulieu’s conviction anyway.
We refuse and instead vacate the judgment.
I.
A.
In an interview with the FBI, Beaulieu identified various individuals
involved in carjackings and bank robberies. One of the criminals was
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Beaulieu’s cousin and the other was his lifelong friend. Based on that
interview, the Government decided to call Beaulieu to testify against the
criminals.
On April 25, 2018, Assistant United States Attorney (“AUSA”)
Michael McMahon called Beaulieu to the stand. But Beaulieu refused to
testify and instead invoked his Fifth Amendment privilege against self-
incrimination. The district court appointed Cynthia Cimino as Beaulieu’s
defense counsel under the Criminal Justice Act.
The following day, April 26, the Department of Justice granted
Beaulieu immunity from prosecution under 18 U.S.C. §§ 6002–6003. The
Supreme Court has held that the “use and derivative use” immunity
afforded by these provisions “is coextensive with the scope of the privilege
against self-incrimination and is therefore sufficient to compel testimony
over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453
(1972). Nevertheless, when AUSA McMahon called Beaulieu to the witness
stand again, Beaulieu still refused to testify:
The Court: All right. Are we ready to proceed?
The Witness: No.
The Court: He said “no.”
The Witness: I’m not testifying.
The Court: All right.
The Witness: I can’t state—I can’t speak what really
happened. It’s not going to happen.
After Beaulieu conferred with counsel, the following exchange
occurred:
The Court: Mr. Beaulieu, to be clear, is it your intention not
to testify today?
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The Witness: Yes, ma’am.
The Court: All right. Are you aware that you can be held in
contempt of court, civilly and/or criminally, and you could be
subjected to jail time due to your refusal to testify?
The Witness: Yes, ma’am.
The Court: Have you had an opportunity to discuss
your . . . intention not to testify with your attorney?
The Witness: Yes, ma’am.
The Court: Ms. Cimino, have you had an opportunity to
consult and advise your client on the consequences of his
decision?
Ms. Cimino: I have spoken with my client about that, yes,
ma’am.
The Court: I think I covered this earlier, but you are aware,
Mr. Beaulieu, that the government has provided you immunity
for your testimony?
The Witness: Yes.
The Court: And it’s still your intention not to testify?
The Witness: Yes.
The Court: All right. You’re aware that the Court is
ordering you to testify?
The Witness: Yes.
The Court: And you still maintain your position that you
are not going to testify?
The Witness: Yes.
The Court: All right. So the Court is going to—I’m going
to appoint a prosecutor to prosecute this matter. I’m setting a
hearing for May 15th at 10:00 a.m. . . . on Mr. Beaulieu’s
contempt allegation . . . .
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B.
The district court appointed AUSA McMahon to prosecute
Beaulieu’s contempt case. The Government sought a punishment of five
years of imprisonment, which meant that Beaulieu was entitled to a trial by
jury. See Bloom v. Illinois, 391 U.S. 194, 211 (1968). Beaulieu was appointed
new defense counsel after Cimino withdrew on the ground that she could be
called as a witness at trial.
Beaulieu’s new defense counsel filed a pretrial motion seeking to
disqualify AUSA McMahon from prosecuting the case on the ground that he
was a material witness for the defense. Attached to that motion was an
affidavit from Cimino describing AUSA McMahon’s interactions with
Beaulieu. Cimino averred that on April 25, 2018, the U.S. Attorney’s Office
offered Beaulieu “a letter which granted him complete immunity to testify at
trial, without any exceptions”; subsequently, she said, the Government
“took back the original complete immunity letter and provided a second
letter of immunity on April 25,” which “contained certain exceptions.”
Cimino claimed that after providing Beaulieu with the second letter, “AUSA
Michael McMahon stated that Mr. Beaulieu would be prosecuted to the full
extent of the law if his trial testimony differed in any way from an FBI agent’s
302 memorandum related to a prior interview of Mr. Beaulieu.” 1 Explaining
Beaulieu’s decision not to testify, Cimino stated: “Due to the exceptions in
the second April 25 letter, Mr. Beaulieu invoked his 5th Amendment right
and refused to testify.” The district court denied the motion to disqualify
AUSA McMahon.
1
“The term ‘302’ refers to an FBI form bearing that number, which serves as an
official interview memorandum.” United States v. Davis, --- F.3d ---, 2020 WL 4915627, at
*6 (5th Cir. Aug. 21, 2020) (quotation omitted).
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Beaulieu’s defense counsel also filed a pretrial motion to compel the
Government to produce the “original complete immunity letter” referenced
in Cimino’s affidavit. The Government responded with an affidavit from
AUSA Patrice Harris Sullivan. AUSA Sullivan explained that only two
immunity letters existed: (1) an informal immunity letter signed by AUSA
McMahon, dated April 25, 2018; and (2) a formal immunity letter from the
Department of Justice granting Beaulieu immunity pursuant to 18 U.S.C.
§§ 6002–6003, dated April 26, 2018. The district court ordered AUSA
McMahon to search for and produce all letters offering any type of immunity
to Beaulieu on April 25, 2018, and certify his compliance with the order in
writing. AUSA McMahon certified that the April 25 and April 26 letters
described by AUSA Sullivan were the only immunity letters that existed.
The defense also filed a pretrial motion seeking to recuse the district
judge under 28 U.S.C. § 455(a). The motion argued that the judge could not
impartially preside over the case, citing comments she made at the show-
cause hearing. The district judge denied that motion too.
C.
At Beaulieu’s contempt trial, the Government had the burden of
showing: (1) that Beaulieu received a reasonably specific court order; (2) he
violated the order; and (3) he did so willfully. See United States v. Allen, 587
F.3d 246, 255 (5th Cir. 2009) (per curiam). The Government’s sole witness
was FBI Agent Steven Rayes. He testified about his interview with Beaulieu,
which he documented in his 302 memorandum. The Government also
introduced into evidence excerpts from the transcript of the trial in which
Beaulieu refused to testify.
Beaulieu did not dispute that he violated a reasonably specific court
order. Instead, his defense focused on the third element of the Government’s
burden: willfulness. Cimino was the defense’s sole witness at trial. She gave
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testimony that differed from the account she gave in her affidavit. At no point
in her testimony did she claim that Beaulieu was shown two immunity letters
on April 25, one “complete” and one more limited. Instead, she testified that
there was one letter dated April 25, signed by AUSA McMahon, and one
letter dated April 26, from the Department of Justice.
Cimino testified on direct examination that after Beaulieu received the
informal immunity letter on April 25, he was uncomfortable testifying
because the letter contained a carveout stating that the “United States may
use any statements made in your testimony in a prosecution of you for making
a false statement or declaration (18 U.S.C. §§ 1001, 1623), obstruction of
justice (18 U.S.C. §[§] 1503, et seq.), or perjury (18 U.S.C. § 1621).” Cimino
further testified that after reviewing a copy of Agent Rayes’s 302
memorandum, Beaulieu disputed the accuracy of three facts contained in it:
“the kind of vehicle in Paragraph 3 of the report,” “a quote that Agent Rayes
put in Paragraph 4,” and a statement about a phone call in paragraph 5 that
“Thaddeus was adamant he never received.”
Cimino testified that she asked AUSA McMahon “what would he do
if Thaddeus testified a little bit differently from what the agent wrote in the
302,” and AUSA McMahon responded that “he would prosecute him to the
full extent of the law.” Cimino testified that she told Beaulieu what AUSA
McMahon had said, and Beaulieu was “afraid” that if he told the truth on
the witness stand, AUSA McMahon would prosecute him for deviating from
the 302 memorandum. Finally, Cimino testified that even after the
Department of Justice provided a formal immunity letter on April 26, she and
Beaulieu still had the same concerns because 18 U.S.C. § 6002 contains
carveouts for “perjury” and “giving a false statement.” She testified that she
talked to AUSA McMahon again, and AUSA McMahon reiterated that he
would prosecute Beaulieu “to the full extent of the law should he testify with
any difference from what was in the agent’s 302.”
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AUSA McMahon then used his cross-examination of Cimino to
advance his own—that is AUSA McMahon’s—version of events. AUSA
McMahon asked whether he had “repeatedly” told Cimino that the only
testimony he wanted from Beaulieu was an identification of the defendants.
Cimino answered that this was “not my recollection of what the conversation
was,” to which AUSA McMahon responded, “Of course not.” Cimino
further explained, “When I asked you specifically if he testified any
differently at all from what was in the agent’s 302, you unequivocally told me
that you would prosecute him to the full extent of the law, and that is what I
communicated to my client.” AUSA McMahon disputed Cimino’s
testimony, asking, “I never said any discrepancy, did I?” Cimino answered,
“Yes, you did,” to which AUSA McMahon responded argumentatively,
“Do you think I’m as dumb as I look? You don’t think I know the law of
perjury?” Cimino later reiterated that “when I asked you what happens if he
testifies a little bit differently in a minor way from what the agent wrote in the
302, . . . you told me ‘I will prosecute him to the fullest extent of the law.’”
Again taking the opportunity to testify as a fact witness, AUSA McMahon
responded argumentatively: “I am telling you that’s not true.”
During closing arguments, AUSA McMahon made numerous
statements that the Government now concedes amounted to “prosecutorial
misconduct.” First, the Government admits that AUSA McMahon made
arguments based on facts not in evidence, claiming that: (1) Beaulieu refused
to testify because he feared being called a “rat,” even though no evidence
was introduced to establish that motive; and (2) AUSA McMahon never said
he would prosecute Beaulieu, even though no witness contradicted Cimino’s
account of the events. Second, the Government admits that AUSA
McMahon made inappropriate statements encouraging the jury to consider
how the district judge might react to its verdict. Specifically, he argued that
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doing anything other than finding Beaulieu guilty would disrespect the judge
and the court.
The jury found Beaulieu guilty of criminal contempt. Beaulieu timely
appealed.
II.
We begin with Beaulieu’s argument that Chief Judge Nannette
Jolivette Brown should have recused under 28 U.S.C. § 455(a). The denial of
a motion to recuse under § 455(a) is reviewed for abuse of discretion. See
Allen, 587 F.3d at 251.
Section 455(a) disqualifies a judge from a proceeding in which her
impartiality might reasonably be questioned. Beaulieu’s brief raises only a
perfunctory, conclusory argument regarding § 455(a), with no citations to the
record. We therefore hold the argument is forfeited on appeal. See Cantú v.
Moody, 933 F.3d 414, 419 (5th Cir. 2019), cert. denied, No. 19-1033,
2020 WL
3146702 (U.S. June 15, 2020).
Beaulieu raises a separate recusal argument under Federal Rule of
Criminal Procedure 42(a)(3). That rule states: “If the criminal contempt
involves disrespect toward or criticism of a judge, that judge is disqualified
from presiding at the contempt trial or hearing unless the defendant
consents.” Our review is for plain error. See Fed. R. Crim. P. 52(b). 2
2
Beaulieu says that he did not forfeit this argument in the district court and,
therefore, the abuse of discretion standard applies because: (1) defense counsel stated in a
motion for a continuance that he needed time to investigate the possibility that Rule 42
required recusal; and (2) Beaulieu’s recusal motion contained a sentence and footnote
stating that he was also moving for recusal under the Due Process Clause of the U.S.
Constitution. Neither of those arguments presented the district court with an “opportunity
to consider and resolve” whether Rule 42 required recusal. Puckett v. United States, 556
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We find none. Rule 42(a)(3) does not apply to this case because the
particular conduct that led to Beaulieu’s contempt charge was his refusal to
testify, rather than an instance of “disrespect toward or criticism of” Chief
Judge Brown. Fed. R. Crim. P. 42(a)(3). True, at the show-cause hearing,
the district court expressed “concern . . . that Mr. Beaulieu thinks this is a
light [matter], that Mr. Beaulieu is mocking the Court, [and] that he thinks
he can come in here and manipulate the Court.” It’s also true that, in its post-
trial analysis of Beaulieu’s objections to the Pre-Sentence Report, the district
court wrote: “Beaulieu displayed disrespect toward the judicial process and
exhibited a cavalier demeanor regarding the gravity of the offense.” But these
statements do not change the fact that the United States prosecuted Beaulieu
for refusing to testify after receiving immunity under 18 U.S.C. §§ 6002–
6003, rather than showing “disrespect toward or criticism of a judge.” Fed.
R. Crim. P. 42(a)(3). Because Rule 42(a)(3) does not apply, Beaulieu has
failed to show an error.
III.
Beaulieu argues that his conviction should be vacated because AUSA
McMahon made numerous inappropriate remarks at trial. To prevail on such
a claim, Beaulieu must make two showings. First, he must show that “the
prosecutor made an improper remark.” United States v. Fields, 483 F.3d 313,
358 (5th Cir. 2007) (quoting United States v. Insaulgarat,
378 F.3d 456, 461
(5th Cir. 2004)). And second, he must show prejudice. See
ibid. We hold
Beaulieu made both showings.
U.S. 129, 134 (2009). Beaulieu therefore forfeited the argument in the district court, and
our review is for plain error.
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A.
The Government concedes that AUSA McMahon made numerous
improper remarks. And that concession is well-taken. “The line separating
acceptable from improper advocacy is not easily drawn; there is often a gray
zone.” United States v. Young, 470 U.S. 1, 7 (1985). But there is no gray zone
here. AUSA McMahon repeatedly expressed his “personal opinion on the
merits of the case [and] the credibility of the witnesses.” United States v.
Bennett,
874 F.3d 236, 251 (5th Cir. 2017) (quoting United States v. Boyd,
773
F.3d 637, 645 (5th Cir. 2014)). He repeatedly made arguments at closing
based on “evidence not presented at trial.”
Id. at 254; see also United States
v. Delgado,
672 F.3d 320, 336 (5th Cir. 2012) (en banc). And he closed by
telling the jury that it must convict Beaulieu not because of the facts and
law—but because to rule otherwise would “disrespect or dishonor a chief
federal district court judge.” See
Young, 470 U.S. at 18. These are textbook
examples of prosecutorial misconduct.
B.
Even so, “[w]e do not lightly make the decision to overturn a criminal
conviction on the basis of a prosecutor’s remarks alone.” United States v.
Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001). Even if a defendant shows
that the prosecutor’s remarks “were undesirable or even universally
condemned,” that alone is not sufficient to warrant the vacatur of a
conviction. Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quotation
omitted). The defendant must also show that the inappropriate comments
“so infected the trial with unfairness as to make the resulting conviction a
denial of due process.”
Ibid. (quotation omitted).
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, 492 (5th Cir. 2008) (quotation omitted). In
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answering that question, we 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 defendant’s guilt.” Ibid.
(quotation omitted).
The Government concedes the first element. And again, this
concession is wise. The magnitude of AUSA McMahon’s misconduct,
within the specific context of this trial, was overwhelming. From the
beginning of the opening statement to the end of the closing argument, the
trial lasted from 12:07 p.m. to 4:27 p.m., including a 77-minute lunch break.
The jury heard from only two witnesses and received only four exhibits. The
prosecution’s initial closing argument and rebuttal each lasted less than 10
minutes. AUSA McMahon’s inappropriate remarks touched almost every
part of these proceedings. And the district judge did little to intervene or offer
cautionary instructions. Therefore, Beaulieu easily satisfies the first two parts
of the prejudice inquiry.
That leaves only the third part of the prejudice showing: the strength
of the evidence of Beaulieu’s guilt. See Mendoza, 522 F.3d at 492. Beaulieu
obviously received a specific order to testify, and he obviously violated that
order. So there is strong evidence of the first two elements of criminal
contempt. See
Allen, 587 F.3d at 255. The crux of the dispute at trial,
however, was the third element—whether Beaulieu willfully violated the
order to testify. And on that element, it’s impossible to separate AUSA
McMahon’s misconduct from the other evidence against Beaulieu. In fact,
we cannot separate AUSA McMahon’s existence as the Government’s
prosecutor from the other evidence against Beaulieu. See Model Rules
of Pro. Conduct r. 3.7(a) (Am. Bar Ass’n 2020) (generally
prohibiting a lawyer from “act[ing] as advocate at a trial in which the lawyer
is likely to be a necessary witness”). After all, if AUSA McMahon did in fact
threaten to prosecute Beaulieu for correcting factual errors in the 302
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memorandum, then the jury could reasonably determine that Beaulieu’s
refusal to testify in response to that threat was an understandable and good-
faith effort to avoid perjury, not a willful violation of a court order. See Fed.
Power Comm’n v. Metro. Edison Co., 304 U.S. 375, 387 (1938) (requirement in
a criminal contempt statute that the “fail[ure] or refus[al] to attend and
testify . . . be ‘willful’ fully protects one whose refusal is made in good
faith”);
Allen, 587 F.3d at 255 (at a minimum, willful “means ‘a gross
deviation from what a reasonable person would do’” (citation omitted)). And
the Government’s only evidence in that regard was the testimony of AUSA
McMahon—which he offered (inappropriately) in the form of prosecutorial
“argument” from the Government’s counsel table. Cf. Young v. United
States ex rel. Vuitton et Fils S.A.,
481 U.S. 787, 805 (1987). We therefore hold
that Beaulieu has shown a constitutional error, and he is entitled to relief
under any standard of review. 3
3
The Government says we must apply plain-error review. See Fed. R. Crim. P.
52(b). It’s true that we must determine whether Beaulieu preserved below each allegation
of prosecutorial misconduct, and we must review the preserved allegations for abuse of
discretion and the unpreserved ones for plain error. See, e.g., Bennett, 874 F.3d at 247.
Beaulieu repeatedly objected to AUSA McMahon’s role as witness-cum-prosecutor. And
Beaulieu preserved his objections in both pre-trial motions and in mid-trial objections. As
to the preserved objections, Beaulieu has shown an abuse of discretion. Beaulieu failed to
object, however, to at least some portions of AUSA McMahon’s improper closing
“argument.” As to whatever objections Beaulieu forfeited, he is entitled to relief under
plain-error review. See United States v. Sanchez-Hernandez,
931 F.3d 408, 410 (5th Cir.
2019). We’ve already held the Government committed an error. The Government does not
dispute that the error is plain and obvious. And we’ve held that it affected Beaulieu’s
substantial rights—that is, he was prejudiced by AUSA McMahon’s misconduct. With
those holdings in place, “the government concedes that this Court should exercise its
discretion to remedy the error, vacate the conviction, and remand for further proceedings.”
Red Br. 35.
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* * *
“The prosecutor occupies a distinctive position in the criminal justice
system: he is the hammer that sparks fire on the anvil of justice.” United
States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990). He represents not
“an ordinary party to a controversy,” but a “sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all.” Berger
v. United States,
295 U.S. 78, 88 (1935). His duty is not to “win a case,” but
to ensure “that justice shall be done.”
Ibid. While he may “strike hard
blows,” he “is not at liberty to strike foul ones.”
Ibid. “It is as much his duty
to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.”
Ibid.
The proceeding below was obviously contentious, with numerous
accusations of dishonesty and bad faith. Regardless of the circumstances, a
prosecutor must always adhere to the highest ethical standards of the legal
profession. The integrity of our criminal-justice system depends on it.
Because the Government’s conduct in this case fell short of those standards,
Beaulieu’s conviction is hereby VACATED.
13
