memorandum in support of motion to compel discovery...

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA * CRIMINAL ACTION

VERSUS * NO. 13-131

STACEY JACKSON * SECTION “S”(2)

* * *

MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY

MAY IT PLEASE THE COURT:

Defendant, Stacey Jackson, submits this Memorandum in Support

of her Motion to Compel Discovery, as follows.

Defendant is charged in this four-count Indictment, with

crimes of conspiracy, program fraud, theft, and obstruction of

justice, returned and filed on June 6, 2013, on the very last day

of the five-year statute of limitations, for Counts 1 to 3. Long

before this filing, and commencing at least on August 9, 2008,

government agent Sal Perricone, a supervisory Assistant United

States Attorney, Eastern District of Louisiana, made a public

statement about the grand jury investigation that ultimately led to

this Indictment, necessarily leaked grand jury information in his

unlawful disclosure, and made outrageous, unconstitutional racial

slurs about the investigation of Ms. Jackson, and the whole African

American community, along with attacks on the administration of

Mayor Ray Nagin, of which Ms. Jackson and NOAH were a part. All

information regarding his and others’ prosecutorial misconduct and

Case 2:13-cr-00131-MVL-JCW Document 17-1 Filed 09/20/13 of 23

violations in the United States Attorney’s Office must be produced

to the defense, for the following reasons.

On August 8, 2008, three reports by the Times Picayune, on

Nola.com, and repeated in the print edition, reported on grand jury

subpoenas served on members of the New Orleans City Council for New

Orleans Affordable Homeowner Corp. (NOAH), documents, where

defendant had been employed and for which she served as Executive

Director, from 1998 until June 27, 2008. The Nola.com reports and

Mr. Perricone’s blog are attached. It was apparent from these

media reports, and others, that Ms. Jackson and her agency and

employer, NOAH, were being investigated by a federal Grand Jury.

In direct response to these media reports, Assistant United States

Attorney, Sal Perricone, under the blog name “campstblue,”

published the following on August 9, 2008:

well, man-you know, man. I didn’t knowanything about dis stuff, man, you hear whatI’m saying, man. You know, man, like youalways looking for something negative to writeabout, man. How’s dis going to help theracovery, man, you hear what I’m saying, man. We just trying to make it back, man. Didn’tyou hear what I said man, dis is a chocolatecity, man and we do things the choclate way,man–-you hear what I’m saying, man?

TRANSLATION: It’s our turn to steal. We gotthe power. You can’t do anything to us.

God Bless the US Attorneys office!!!!!!!!!

Ms. Jackson is an African American. She had no idea that this

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blog, and many others, were published by an agent of the United

States Attorney’s Office that was investigating her and her agency,

NOAH. Ms. Jackson, herself, was also served with grand jury

subpoenas, dated August 25, 2010, and September 15, 2008, requiring

appearance at the grand jury and/or production of documents. The

blogger, AUSA Perricone, was fully aware of the existence of the

grand jury investigation of Ms. Jackson and NOAH, the grand jury

subpoena, the media blitz, and the community reaction. Mr.

Perricone was a veteran of the Federal Bureau of Investigation,

having served as a Special Agent for many years, prior to becoming

an AUSA, and reaching a high supervisory level in the United States

Attorney’s Office, at the time that he made the blogs.

The above statement speaks for itself as to its blatant

violation of all rules of governmental and attorney decency and

integrity, and constitutes unconstitutionally prejudicial racial

attacks, prosecutorial misconduct, and leaks of a grand jury

investigation, and other violations. Apparently, AUSA Perricone

was not satisfied with this one racial slur and blog. He was quite

prolific in this area. The blogs quoted in the Motion to Compel

Discovery are just a few.

Ms. Jackson incorporates herein the facts, history, findings,

conclusions and legal authorities, in the Order and Reasons,

November 26, 2012 (Doc. 1070), and Order and Reasons, September 17,

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2013 (Doc. 1137), U.S. v. Bowen, et al, No. 10-204. The Order and

Reasons, September 17, 2013, Doc. 1137, is hereinafter referred to

as Bowen.

The Government was not forthcoming with its secret blogs. It

was the efforts and resources of Mr. Fred Heebe and his team of

attorneys that led to some of these discoveries, and progressed

with the investigation in U.S. v. Bowen, supra. Once the evidence

of misconduct, or at least some of it, was uncovered, resignations

occurred, the investigation of Mr. Heebe and River Birch was ended,

the Indictment in U.S. v. Fazzio, USDC, EDLA, No. 11-157, was

dismissed, and a new trial was ordered in U.S. v. Bowen, supra.

In order to discover similar evidence about blogs directed at

Ms. Jackson, and similar governmental violations against her

starting in August of 2008, Ms. Jackson’s undersigned counsel,

prior to her indictment, made multiple demands on the Government

for all information regarding blogging and leaking of grand jury

information, as it pertained to her and others. The requests were

denied.

After Ms. Jackson’s indictment, and pursuant to the Scheduling

Order, and Local Rule 12, undersigned counsel again requested this

information. More particularly, by letter, dated July 12, 2013,

defense counsel repeated the pre-indictment demands for the

information, to no avail, and then made the following formal

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discovery request:

It is apparent that there are multiple Governmentinvestigations regarding such blogging, including theinvestigation and report by Assistant United StatesAttorney John A. Horn, as ordered by Judge Engelhardt. Accordingly, please provide the following:

A. All materials and findings related to theinvestigation of Salvadore Perricone and any otherAUSAs involved in the River Birch investigation bythe Justice Department’s Office of ProfessionalResponsibility (“OPR”);

B. All materials related to the filings by Jan Mann,related to USDJ Englehardt’s order to disclose allpublic postings by, or similar to, those made byPerricone. See United States v. Bowen, et al.,2:10-cr-00204-KDE-SS (E.D.La.), Doc. No. 1070, at 7[Filed 11/26/12] (“The government’s June 27, 2012‘Report of Inquiry’ was supervised, compiled,written and submitted by First AUSA Jan Mann.”);

C. All materials and findings related to theinvestigation and report ordered by USDJEnglehardt, and assigned to special prosecutor JohnA. Horn, after the public disclosure that Jan Mannhad herself engaged in improper public discussionssimilar to Perricone and had misrepresented thetruth in argument to the court.

Undersigned counsel did not know at that time that there was more

than one report by AUSA Horn.

Counsel for the Government responded, as follows:

Government Letter, dated August 20, 2013

However, the government declines to provide anydocuments, materials, or other things related to orassociated with your discovery request as expressed inparagraph (2) of your letter July 12, 2013. As Iindicated on the telephone, nothing expressed, orpresumed to have been expressed, online by any former

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employee of the United States Attorney’s Office isrelevant to the current prosecution, or the defense ofthe prosecution, of your client, Stacey Jackson. Therefore, the government will not produce, and should beunder no obligation to produce, said materials, if theyexist, in fulfillment of its obligations pursuant to theFederal Rules of Criminal Procedure.

Government Letter, dated September 11, 2013

(2) As noted in the government’s August 20, 2013 letterto defense counsel, the government objects to theproduction of any materials or information sought in thisrequest. As written in that letter, ‘the governmentdeclines to provide any documents, materials, or otherthings related to or associated with your discoveryrequest as expressed in paragraph (2) of your letterdated July 12, 2013. As I indicated on the telephone,nothing expressed, or presumed to have been expressed,online by any former employee of the United StatesAttorney’s Office is relevant to the current prosecution,or the defense of the prosecution, of your client, StaceyJackson. Therefore, the government will not produce, andshould be under no obligation to produce, said materials,if they exist, in fulfillment of its obligations pursuantto the Federal Rules of Criminal Procedure.

In all respects, Local Rule 12, has been satisfied.

The documents demanded herein are necessary for Ms. Jackson to

prepare her defense, and the claims that she intends to bring, to

wit:

(i) claims of Government violation of grand jury secrecy

rules, Rule 6(e)(ii), Federal Rules of Criminal

Procedure;

(ii) prosecutorial misconduct and unethical conduct;

(iii) violation of federal regulations;

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(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 for

which she was 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 evidence presented at a fair trial with due

process of law, which she can no longer have due to these

Government misdeeds.

The above requested discovery will also show a pattern of

similar governmental misconduct, system and intent to violate the

law and procedure, under the provisions of Rule 404(b), Federal

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Rules of Evidence. Other claims and defenses will be based on this

discovery. The blogging spree, also involving grand jury leaks,

was so prevalent that it is inescapable that high-ranking agents of

the government, Mr. Perricone, and others, engaged in a pattern of

conduct, demonstrating a peculiar unique system and intent to leak

grand jury investigations, and attack citizens that were being

investigated by federal grand juries.

In Mr. Perricone’s racial blog and attack, he attempts to

somehow remind the community that it must not allow the African

American community to get away with its penchant for public

corruption, and that only the U.S. Attorney (“God Bless the U.S.

Attorney’s Office”) can and will do something about it. It was

obviously a culture of defamation, racial attack, and disregard for

the rights of citizens being investigated.

Again, Mr. Perricone tried to gain advantage, and win

community sentiment over to the side of the Government, in all

investigations of corruption. Just as he said in the above August

9, 2005 blog, that the community only has the U.S. Attorney’s

office to save it from corruption, particularly as committed by

blacks, he blogged on December 3, 2010, and on August 9, 2011, as

follows:

This case, no matter how it turns out, hasrevealed the NOPD to be a collection of self-centered, self-interested, self-promoting,

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insular, arrogant, overweening, prevaricating,libidinous fools and that the entire agencyshould be re-engineered from the bottom up. This case has ripped the veil of respectibiltyaway from the police department. The facts,as reported here–and if they are correct–showsa group of people who, when not having sexwith each other, or beating, burning andabusing the citizens. Thank God for theFeds–can you imagine New Orleans without aFederal presence? (Emphasis added.) (Bowen,Pgs. 53, 68.)

*****

The entire weft of the NOPD’s culture was ontrial in this horrid episode. The DOJassembled a great team which had institutionalsupport beyond the TP’s comprehension. We canonly imagine what this city would be likewithout the DOJ. Some NOPD officers, I wouldassert, are musing the same thing. (Emphasisadded.) (Bowen, Pg. 85.)

So, this city would be lawless, because of corrupt black

criminals, without the U.S. Government. Since Ms. Jackson is

black, and was an employee of NOAH, we can thank the U.S.

government for pronouncing her guilty without a trial and due

process of law.

One obvious aftermath is that the name and character of

“Stacey Jackson,” played prominently as an underworld criminal in

the popular HBO series, “Treme.”

Mr. Perricone went beyond this direct racial blog, and cast

aspersion on former Mayor Ray Nagin, and his entire administration,

blogging that the corruption in Mayor Nagin’s administration

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exceeded the corruption in Mayor Morial’s administration. If the

above “Chocolate City” blog were not enough wrongdoing by Mr.

Perricone, his public blog about Mayor Nagin’s entire

administration directly impacts, effects and victimizes Ms.

Jackson, because she was the Executive Director of NOAH, a city

agency, under the Nagin administration, and also an African

American.

The only way Ms. Jackson can prepare for and present these

defenses is to have the very evidence that was causing these

defenses to be necessary in the first place - the plenary reports

by government investigators, including AUSA Horn, as ordered by and

rendered to Judge Englehardt (Bowen, Pg. 12). She does not have

access to the extensive investigation, including statements,

emails, interviews and other evidence discovered by Mr. Horn and

government investigators, which will bolster and support her

defenses. The Government can offer no excuse or reason whatsoever

as to why these reports should not be provided to the defense, or

even made public.

The Honorable Martin Feldman, in the sentencing of the

defendant in U.S. v. Mouton, supra, inquired of Government counsel

as to why these reports where not discoverable. Government counsel

could only respond, “I do not know why he [Mr. Horn] did not turn

over that report. I personally do not have a copy.” (Transcript

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of Sentencing, Pgs. 7, 20.) It was revealed that the Government

refused Mr. Mouton’s probation officer’s request for a copy of the

Horn investigative report (Bowen, Pg. 8). “Your Honor, quite

frankly, I don’t know why that decision was made. I wasn’t

involved with it.” (Bowen, Pg. 20.)

Judge Feldman repeated his inquiry as to why the Government

simply did not produce Mr. Horn’s report.

Where we are is we have a request for downwarddeparture by the government from five years to four yearsfor egregious conduct by this defendant, who has admittedthat he took bribes in connection with an investigationthat has been terminated by the government undercircumstances in which the government has not shared withthe Probatin Office or this Court the results of aninvestigation that has been ordered by one of mycolleagues regarding the at least serious potential forgovernment abuse and misconduct. Is that where we are/ Is that a fair statement?

(Bowen, Pg. 8.)

Judge Feldman again asked:

Why would you not just turn over the papers?

MR. LICHTER: Your Honor, quite frankly, Idon’t know why that decision was made. Iwasn’t involved with it.

THE COURT: I know. I understand.

MR. LICHTER: No, I appreciate that. Withrespect to this case, if we are talking aboutmisconduct that occurred in a Katrina shootingcase or related to an entirely separatematter, I’m not sure if that would be relevantto Mr. Mouton’s sentencing.

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THE COURT: Well, we don’t know because all weknow is that the broad scope of the storiesabout prosecutorial misconduct aren’t limitedto a case.

MR. LICHTER: Right.

THE COURT: They are focused on a governmentoffice charged with the duty of upholding theConstitution when they charge and prosecutepeople and with an overarching concern thatthe Department of Justice, which oversees thelocal U.S. Attorney’s Office, somehow wascomplicit in those stories. That’s thedifference.

I appreciate your position. I’m prepared toproceed to the sentencing hearing. Thank youvery much.

Unlike Mr. Mouton, who moved for production post-guilty plea,

thereby, arguably, waiving his rights to relief based on the

Government’s prosecutorial misconduct, Ms. Jackson has not pleaded

guilty, is now engaged in pretrial discovery and motions, and is

set for trial on January 13, 2014. She did not waive any of her

rights. She is asserting all of them, including the right to

prepare for a fair trial and due process of law, free of

governmental racial prejudice, incitement of community outrage, and

other governmental acts that influence the community and potential

jurors, and a conviction with a tainted jury pool.

Authorities

First and foremost, the above-requested discovery of the blogs

and Government investigation reports fall squarely within discovery

provided in Rule 16(a)(1)(E)(i). Ms. Jackson must have this

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information in order to prepare the above defenses, fully and

completely, well in advance of trial. “Whether rooted directly in

the Due Process Clause of the Fourteenth Amendment or in the

Compulsory Process or Confrontation Clauses of the Sixth Amendment,

the Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’ Crane v. Kentucky, 106

S.Ct. 2142 [1986] (quoting California v. Trombetta, 467 U.S. 479,

485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); citations omitted).”

Holmes v. South Carolina, 126 S.Ct. 1727, 1731 (2006).

The requested discovery is also favorable to the defense, and

will show additional violations by government agents, if only tacit

approval of the leaks and blogs that are known at the present time.

The Government’s obligations under Brady v. Maryland, 373 U.S. 83

(1963), and its progeny, are well known. “The prosecution’s

affirmative duty to disclose evidence favorable to a defendant can

trace its origins to early 20th-century strictures against

misrepresent...” Kyles v. Whitley, 115 S.Ct. 1555 (1995).

These rules have also been encapsulated in the Louisiana Rules

of Professional Conduct, Rule 3.8, “Special Duties of Prosecutor,”

which are binding on government attorneys. The Government should

also be reminded of the Department of Justice’s expanded policy for

providing exculpatory information to the defense.

In addition, Department policy provides forbroader disclosures of exculpatory andimpeachment information than Brady and Giglio

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require. See USAM §9-5.001. Prosecutors inevery district and component must comply withlegal requirements and with Department policy. Moreover, there are times when providingdiscovery broader than that provided for evenby current Department policy serves theinterests of justice. Providing broad andearly discovery often promotes the truth-seeking mission of the Department and fostersa speedy resolution of a case.

The United States Department of Justice, Memorandum for Heads ofDepartment Litigating Components Handling Criminal Matters, AllUnited States Attorneys, January 4, 2010.

It is completely contrary to these rules and policies for the

Government to refuse to provide the above requested discovery.

“‘[F]air play-which is the essence of due process.’ Galvan v.

Press, 74 S.Ct. 737, 742 (1954). Such fair play includes ‘the

deep-rooted feeling that the police must obey the law while

enforcing the law; that in the end life and liberty can be as much

endangered from illegal methods used to convict those thought to be

criminals as from the actual criminals themselves.’ Spano v. New

York, 79 S.Ct. 1202,1206 (1959) (emphasis added). This deep-rooted

feeling extends even deeper where prosecutors are concerned, given

that they are officers of the court bound to special Rules of

Professional Conduct. See, e.g., La. Rules of Professional

Conduct, Rule 3.8 (Special Responsibilities of a Prosecutor).”

(Bowen, Page 33.)

These rules were violated when Sal Perricone, and perhaps

others, leaked the grand jury investigation and made the racial

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blogs, to gain an advantage.

The favorable evidence in the requested discovery will prove

violations of the Rule 6(e) secrecy requirement. The mere fact

that there is a grand jury investigation, as disclosed by a

government agent, such as Mr. Perricone, is a violation of the

grand jury secrecy rules. The above blog was such a violation.

The rules mandating grand jury secrecy are well established

and prohibit anyone connected to the Government from disclosing any

matter that occurs before the grand jury. The grand jury process

is inherently – and necessarily – secretive. Federal Rules of

Criminal Procedure, Rule 6(e), prohibits the disclosure of matters

pending before the grand jury. As the Supreme Court explained in

Douglas Oil Co. of Cal. v. Petrol Stops Nw., 99 S.Ct. 1667, 1673,

n.9 (1979). “Since the 17 century, grand jury proceedings haveth

been closed to the public, and records of such proceedings have

been kept from the public eye.” The Court has consistently

recognized that, “the proper functioning of our grand jury system

depends upon the secrecy of the grand jury proceedings.” Id. at

1672.

A violation of Rule 6(e) deals a blow to the foundation of the

grand jury system, which “depends upon the secrecy of grand jury

proceedings.” Douglas Oil Co., supra, at Page 218. “Courts must

not tolerate violations of Rule 6(e) by anyone.” Finn v. Shiller,

72 F.3d at 1189 (emphasis added). Further, parties aggrieved by

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violations of the rules, “may notify the court of a violation of

the rule or may petition the court to investigate an alleged

violation.” Id. at 1188. Rule 6(e)(7) allows this Court to punish

a knowing violation of Rule 6 as a contempt of court. Ms. Jackson

cannot take these steps without the evidence contained in the

requested discovery.

When improper prosecutorial statements in the media are

connected to leaks of secret grand jury information, Federal Rule

of Criminal Procedure 6 is implicated. Rule 6(e)(2)(B) of the

Federal Rules of Criminal Procedure provides that “an attorney for

the government...must not disclose a matter occurring before the

grand jury.” Federal Rules of Criminal Procedure 6(e)(2)(B). Both

the Fifth Circuit and the Supreme Court have emphasized the

importance of maintaining secrecy in grand jury proceedings.

United States v. Lance, 610 F.2d 202, 213 (5 Cir. 1980) (Citingth

Douglas Oil Co v. Petrol, supra; United States v. Proctor & Gamble

Co., 78 S.Ct. 983 (1958)).

In United States v. Lance, supra, the Fifth Circuit held that

a party who establishes a prima facie violation of the grand jury

secrecy rule is entitled to an evidentiary hearing before the

district court. See Lance, supra at 220-221. There, the Fifth

Circuit established the following test to determine whether a party

is entitled to relief from a Rule 6 violation based upon news media

reports: first, it must be clear that the article clearly

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“disclose[d} information about ‘matters occurring before the grand

jury.’” Lance, supra, at 216. Second, it must be apparent that the

source of the information divulged was one listed in Rule

6(e)(2)(B), such as a government attorney. The article need not

specify that a government attorney was, in fact, the source of the

information when the nature of the information supplied was of the

sort that implicates the government attorneys. Id. at 218. Third,

the Court should assume that the article’s statements are accurate.

Id. At 219. Fourth, the Court must consider the relief requested

by the defendants. Id. Finally, the Court must take into account

the evidence presented by the Government that contradicts the

defendant’s allegations. Id. At 219-20. The Lance court

determined that this test was satisfied when the defendant

presented un-rebutted evidence that the prosecution leaked secret

grand jury information to the media. As a result, the court

remanded for an evidentiary hearing to establish whether contempt

sanctions should issue.

The above-requested discovery will obviously show the source

of the leak, AUSA Sal Perricone, and perhaps others, and satisfying

these requirements.

Production of the above-requested discovery will provide some

evidence of the extent of the racial blogs, unlawful influence of

the grand jury, and breach of the secrecy rules. Without it, Ms.

Jackson may never know the true extent of other false and

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defamatory online attacks by Mr. Perricone, and possibly others in

the U.S. Attorney’s Office, who have yet to be unmasked. But,

collectively, these attacks, performed by the highest ranking

members of the same U.S. Attorney’s Office that launched an

investigation of Ms. Jackson, presented its version of facts before

a grand jury, indicted her, and ultimately sought to conceal its

wrongdoing from the Court and public, illustrate an obvious,

deliberate, and years long conspiracy to scheme and employ by all

means possible to destroy the public image of Mr. Jackson, as both

an African American woman and official in the Nagin administration.

The methods of the Government in this case amount to a violation of

her rights to due process, the presumption of innocence, and the

right to a fair trial.

The reports may also show how long they had been doing this,

possibly under different blog names, and will lead to more

prosecutorial misconduct affecting Ms. Jackson’s case.

Pervasive racial blogs and remarks, within the United States

Attorney’s Office, will show and bolster that this grand jury

indictment was racially motivated. This is relevant, because the

decision to prosecute may not be deliberately based upon an

unjustifiable standard, such as race, religion or other arbitrary

classification, Bordenkircher v. Hayes, 98 S.Ct. 668 (1978); U.S.

v. Goodwin, 102 S.Ct. 2488 (1982).

It was also proven and documented in U.S. v. Bowen, supra,

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that blogs by Mr. Perricone and others clearly violated federal

regulations, 28 C.F.R. 50.2, pertaining to release of information

to the news media by personnel of the Department of Justice, such

as Mr. Perricone. He and anyone else in DOJ who blogged completely

violated these regulations.

“Due process requires that the accused receive a trial by an

impartial jury free from outside influences.” Sheppard v. Maxwell,

86 S.Ct. 1507, 1522(1966). Stated differently, “the right to jury

trial guarantees to a criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors. The failure to accord an accused

a fair trial violates even the minimal standards of due process.”

Irvin v. Dowd, 81 S.Ct. 1639, 1642 (1961). The Supreme Court has

long held that media coverage can so bias a jury, that a new trial

is required. See, e.g., Rideau v. State of La., 88 S.Ct. 1417

(1963). As stated by the court, “if publicity during the

proceedings threatens the fairness of the trial, a new trial should

be ordered.” Sheppard, supra, at 1522. Indeed, “when the

defendant proffers evidence of pervasive community prejudice in the

form of highly inflammatory publicity or intensive media coverage,

prejudice is presumed and there is no further duty to establish

actual bias.” United States v. Capo, 595 F.2d 1086, 1090 (5 Cir.th

1979).

Improper use of the media by persons close to the judicial

process has the greatest potential to inflame the public and

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prejudice the rights of the accused. In Sheppard, supra, the

Supreme Court stated that neither prosecutors, counsel for defense,

the accused, witnesses, court staff, nor law enforcement officers

should be permitted to frustrate the trial court’s function and

that collaboration between counsel and the press as to information

effecting the fairness of a criminal trial is not only subject to

regulation, but is highly censurable and worthy of disciplinary

measures. Sheppard, supra. Of these parties, the prosecution’s

improper use of the media is subject to special scrutiny. “To have

the prosecutor himself feed the press with evidence that no self-

restrained press ought to publish in anticipation of a trial is to

make the State itself through the prosecutor, who wields its power,

a conscious participant in trial by newspaper, instead of by those

methods which centuries of experience have shown to be

indispensable to the fair administration of justice.” Stroble v.

State of Cal., 72 S.Ct. 599, 609 (1952) (Frankfurther, J.,

Dissenting).

It was also found in Bowen, supra, that the advantage sought

by the Government, through its media blitz and blogs, was the

creation of a propaganda campaign, and “carnival circus”

atmosphere, thereby using the press as a tool to rein in other

subjects of the grand jury and get them to cooperate and plead

guilty. (Bowen, Pages 65, 115, 116, 124.)

The Court in Bowen also recognized that the judicial system,

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and the public, may never know the full extent of the blogs, and

the numerosity of bloggers. (Bowen, supra, at 118.) AUSA Jan Mann

admitted that there were others, besides Mr. Perricone and herself.

(Bowen, Pgs. 95, 119.) It was even determined that the “Taint

Team” leader, Karla Dobinski, DOJ, was blogging. (Bowen, Pgs. 56,

64, 110.) We cannot depend on Mr. Perricone’s testimony as to the

extensiveness of his activities, as he was found to be incredible.

(Bowen, supra, Pgs. 54-56.)

Judge Engelhardt found in Bowen, supra (Doc. 1137), that the

Government blogs and misconduct so infected the integrity of the

entire system that, regrettably, he had no choice but to reverse

the convictions and grant a new trial, even if actual prejudice

could not be proven, as prejudice need not be proven (Bowen, Pgs.

44, 114). “The cumulative effect of a plethora of government

misdeeds,” as here, and the “totality of circumstances,”

“considered together,” caused the extraordinary sanction of a new

trial (Bowen, Pgs. 44-49). The facts “show this misconduct has

metastasized” (Bowen, Pg. 121), to the extent that Government

authority has “left a fractured public trust” (Bowen, Pgs. 121,

124).

If this is the tragic state of affairs for the Bowen case,

supra, wherein those defendants did not plead guilty and waive

rights, it is even more so in the present case, where Ms. Jackson,

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was attacked for the color of her skin, the fact that she worked in

the Nagin administration, and that the public must clean it up, not

let African American public officials, such as Ms. Jackson, get

away with the same crimes that Mr. Perricone claims they have been

skating from for many years. The damage has been done, it is up to

the defense of this case to obtain discovery and prove its

defenses. It is actually up to the Government, as officers of the

court, and in the interest of justice, members of the Department of

Justice, to go out of its way, and bend over backwards to provide

the very evidence of its own misdeeds. And, it is up to the Court

to see to it that discovery of this highly relevant evidence is

turned over to the defense.

As Justice Sutherland memorably stated in Berger v. U.S.:

The United States Attorney is therepresentative not of an ordinary party to acontroversy, but of a sovereignty whoseobligation to govern impartially is ascompelling as its obligation to govern at all;and whose interest, therefore, in a criminalprosecution is not that it shall win a case,but that justice shall be done. As such, heis in a peculiar and very definite sense theservant of the law, the twofold aim of whichis that guilt shall not escape or innocencesuffer. He may prosecute with earnestness andvigor - indeed, he should do so. But, whilehe may strike hard blows, he is not at libertyto strike foul ones. It is as much his dutyto refrain from improper methods calculated toproduce a wrongful conviction as it is to useevery legitimate means to bring about a justone.

Berger v. United States, 55 S.Ct. 629, 633 (1935).

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Respectfully submitted,

CRULL, CASTAING & LILLYPan American Life Center601 Poydras Street, Suite 2323New Orleans, LA 70130Telephone: (504) 581-7700Facsimile: (504) 581-5523

BY: /s/ Edward J. Castaing, Jr. Edward J. Castaing, Jr. #[email protected]

Counsel for Stacey Jackson

CERTIFICATE OF SERVICE

I hereby certify that on September 20, 2013, I electronicallyfiled the foregoing with the Clerk of Court by using the CM/ECFsystem which will send a notice of electronic filing to all knowncounsel of record.

/s/ Edward J. Castaing, Jr. Attorney

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mailto:[email protected]

mailto:[email protected]

memorandum in support of motion to compel discovery...

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