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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                      No. 18-30084                       FILED
                                                                     May 22, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ROBERT RICKS, also known as Ra-B Ricks,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CR-11-1


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       A jury found Robert Ricks guilty of several drug and gun crimes. He asks
this court to overturn that verdict and quash his indictment because of alleged
procedural errors. Finding no reversible error, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-30084
                          FACTS AND PROCEEDINGS

      In February 2015, the New Orleans Police Department (NOPD) received
a tip that someone named “Robbie” was dealing drugs out of a house at 1201
Belleville Street. Robert Ricks lived there with his girlfriend Mandi Malbroue
(Mandi) in a house owned by Mandi’s parents.
      NOPD officers conducted surveillance of the house. Officer Chantell
Long observed from a car. She saw Ricks engage in multiple hand-to-hand drug
transactions and relayed that to nearby teams, who stopped the individuals
immediately thereafter, discovering them to be in possession of heroin.
      As they approached the house to execute a warrant four days later,
officers observed Ricks completing another drug deal. In Ricks’s and Mandi’s
bedroom, officers discovered heroin, crack cocaine, powder cocaine, marijuana,
a digital scale bearing drug residue, drug paraphernalia, $3,641 in cash, and a
loaded handgun.
      Ricks and Mandi were arrested on state gun and drug charges. Mandi
pleaded guilty to the drug charges but not to the gun charge. Ricks was
charged, federally, with conspiracy to possess heroin and cocaine with the
intent to distribute, possession of heroin and cocaine with the intent to
distribute, possession of a firearm in connection with a drug-trafficking
offense, and being a felon in possession of a firearm.
      Prior to trial, Ricks moved to quash the indictment, alleging that federal
agents had met with Mandi on two occasions and that, on both occasions, she
admitted to owning the gun and the drugs. According to Ricks, the agents
responded by threatening Mandi with federal charges if she testified in his
defense. Ricks asserted that these threats would interfere with his ability to
call a witness and violate his rights under the Fifth and Sixth Amendments,



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                                  No. 18-30084
“[i]f the government does not cure its interference . . . by granting Mandi
immunity.”
      The Government denied that Mandi had been threatened, arguing that
agents had only cautioned her that, if she knowingly provided false testimony,
she would risk prosecution for perjury. The Government then offered her
statutory immunity, allowing her to testify without fear of prosecution on the
drug and gun charges.
      The district court entered an order giving Mandi immunity. The order
stated that no information derived from her testimony could be used against
her in any criminal case “except in a prosecution for perjury, [or] giving a false
statement.” The court denied Ricks’s motion to quash as moot—presumably
because of the immunity deal.
      Four days before trial, Ricks learned that Officer Long had been
diagnosed with a brain tumor that affected her vision. Ricks moved for a
continuance to investigate, urging that the evidence was potentially
exculpatory, but the Government opposed the motion, asserting that the
officer’s medical condition did not constitute exculpatory information and was
irrelevant as the condition did not appear until months after the surveillance
at issue. The Government noted that Officer Long’s testimony would be
corroborated by significant evidence, including the testimony of other officers
working surveillance with her and individuals who met with Ricks shortly
before their arrests. The district court denied the continuance.
      At trial, Officer Long testified about the surveillance, as well as about
her medical condition. She denied having had any issues in February 2015 and
identified Ricks as the individual she observed dealing drugs. Defense counsel
questioned her about her condition and the onset of her symptoms.
      Individuals    Officer   Long   observed    engaging    in   hand-to-hand
transactions testified at trial, admitting that they had been arrested for drug
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                                 No. 18-30084
possession on February 15, 2015, and that they had met with Ricks
immediately prior to their arrests. Other officers working with Officer Long
corroborated her testimony. Additionally, one of them testified that he had also
participated in executing the search warrant and that the drugs were hidden
among men’s clothing and behind a shoe rack containing men’s shoes. The
powder cocaine was located near an identification card bearing Ricks’s name,
and the card was covered in powder, indicating that it had been used to cut the
drugs. The officer also stated that the gun was found hidden in a man’s sock in
a drawer alongside some containers for men’s watches. Ricks identified himself
as the owner of the cash found on the scene.
      An individual named James Chapman testified that he had been
regularly using crack cocaine, which he bought from Ricks. Chapman saw
Ricks selling drugs to others, introduced him to other dealers, and sometimes
drove him to drug deals. A neighbor testified that he had seen Ricks dealing
drugs on numerous occasions; he explained that Ricks and Mandi worked
together.
      Cellphones seized during the search showed that, in the five days
between the surveillance and search, Ricks had made or received more than
500 phone calls, most of which lasted less than one minute and many of which
occurred after midnight. Several contacts listed in Ricks’s phone contained the
notation “sm” or “smk,” apparently meaning “smack,” slang for heroin. Ricks’s
phone also had listed as a contact “Apple,” who was known to be a narcotics
trafficker, as well as other contacts also known to be traffickers. Text messages




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                                     No. 18-30084
from Ricks’s phone revealed exchanges setting up drug deals and texts from
Mandi referencing those deals and warning Ricks about police activity.
      Bureau of Alcohol, Tobacco, and Firearms Agent Anthony Calagna
testified 1 that, in January 2015, he began conducting video surveillance on the
1200 block of Belleville Street related to another investigation, and that the
video surveillance had captured Ricks conducting what appeared to be hand-
to-hand drug transactions. He became involved in Ricks’s case after Ricks and
Mandi were arrested, and he interviewed Mandi. Mandi told agents that the
drugs and gun were hers, and she pleaded guilty to drug charges in state court,
but the agents believed that Ricks and Mandi jointly owned the drugs and that
Mandi was not being truthful. Additionally, at least in part because Mandi did
not plead guilty to the gun charge, the agents suspected that the gun was not
hers. Mandi was not charged federally.
      Agent Calagna explained that, when he questioned Mandi, Mandi
repeated that both the drugs and gun were hers. He specifically testified as
follows:
      Q: Did you ask [Mandi] about the drugs and gun found during the
      search outside of the grand jury?
      A: I did.
      Q: What did she say?
      A: She said that the guns and the drugs were hers.
      Q: Did she say – did she deny that they were [Ricks’s]?
      A: No, she did not – well, initially, she did.
      Q: Okay. What did you tell her?
      A: We explained to her that we knew what she was doing. We
      knew that she was taking – attempting to take the charges for
      [Ricks]. We explained to her that if she was put into the grand
      jury and sworn under oath, that she’d be committing perjury in a
      federal grand jury.



      1The district court had ordered that each side sequester its witnesses, so Mandi was
presumably not present to hear this testimony.
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                                 No. 18-30084
      Q: Why did you believe that giving that testimony to the grand jury
      would be perjury?
      A: Because based on the evidence we knew, the fact that she didn’t
      plead to the gun in Orleans Parish, and that we believed that
      Robert Ricks was also in control of those narcotics and the firearm.
      Q: What happened after you told her that lying in the grand jury
      would be – could be a crime?
      A: She broke down. She was crying. She told us that she just
      couldn’t do it. She couldn’t testify against [Ricks], that he’s the
      father of her child, but that she would cooperate on any other
      individuals in the 1200 block of Belleville and testify against them.
      Q: Did you threaten that you would seek to charge her in the
      federal drug case if she didn’t change her story and say that the
      drugs were [Ricks]’s?
      A: No, sir.
      Q: Did you try to coerce her into saying that the drugs were
      [Ricks’s]?
      A: No, sir.
      Q: Did you coerce her into saying that the gun was [Ricks’s]?
      A: No, sir.
      Q: Was she called to testify before the grand jury?
      A: She was not.
      Q: Why not?
      A: Because we knew that putting her in the grand jury knowing
      that she was lying was going to make her available to potential
      perjury charges, which we weren’t going to do to her.
      Ricks renewed his motion to quash, urging that this testimony amounted
to a threat to prosecute Mandi for perjury, rendering the immunity grant null.
The district court denied the motion.
      Agent Calagna went on to say that he had listened to phone calls
recorded at the Orleans Parish prison, including one between two individuals
known as “Butter” and “Apple,” in which Butter directed Apple to collect money
from Ricks.
      Defense counsel asked Agent Calagna whether he had also reviewed any
of Ricks’s prison phone calls, and Agent Calagna responded that he had.
Counsel then stated that the Government had not provided copies of Ricks’s

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                                  No. 18-30084
prison phone calls, argued that the calls likely showed that Ricks had denied
any involvement in drug trafficking, and claimed that the records constituted
exculpatory Brady material.
      The Government responded that it had no discovery obligation relating
to Ricks’s prison calls both because Ricks’s phone calls were irrelevant and
because they were not in the Government’s custody or control. The call records
were maintained in the parish prison facility, not the federal Bureau of
Prisons, and although agents could log onto the parish prison system to review
the calls, the Government claimed it did not have custody over the records. The
Government further noted that Ricks was a participant in his own calls. The
district court overruled the objection, concluding that there was no discovery
violation.
      Despite the order granting Mandi immunity, Ricks did not call her as a
witness, instead asking Agent Calagna whether the drugs belonged to her and
her previous boyfriend, “Pig.” During closing argument, defense counsel raised
the issue of Officer Long’s impaired vision and asserted that the Government’s
failure to produce Ricks’s calls indicated that they contained no incriminating
evidence.
      The jury found Ricks guilty on all counts.
                            STANDARD OF REVIEW
      The existence of substantial interference with the right to call a witness
and to present a defense is a “factual question” that is reviewed for clear error.
United States v. Thompson, 130 F.3d 676, 686–87 (5th Cir. 1997); see also
United States v. Skilling, 554 F.3d 529, 567 (5th Cir. 2009), aff’d in part and
vacated on other grounds by Skilling v. United States, 561 U.S. 358 (2010). “A
factual finding is clearly erroneous only if, based on the entirety of the
evidence, the reviewing court is left with the definite and firm conviction that
a mistake has been made.” United States v. Cordova-Soto, 804 F.3d 714, 718
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                                  No. 18-30084
(5th Cir. 2015). Any such violation is subject to harmless-error analysis, and
this court “will not reverse unless the . . . conduct was sufficiently egregious in
nature and degree so as to deprive [the defendant] of a fair trial.” Skilling, 554
F.3d at 567 (second alteration in original) (internal quotation marks omitted).
      A district court’s denial of a continuance is reviewed for an abuse of
discretion. United States v. Porter, 907 F.3d 374, 383 (5th Cir. 2018); United
States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009); United States v. Walters,
351 F.3d 159, 170 (5th Cir. 2003). “[T]he movant must show that the denial
resulted in specific and compelling or serious prejudice.” United States v.
Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation marks omitted).
This court will uphold the district court’s decision, even if it was harsh, if it
was not arbitrary or unreasonable. Stalnaker, 571 F.3d at 439.
      This court reviews “alleged discovery errors for abuse of discretion and
will order a new trial only where a defendant demonstrates prejudice to his
substantial rights.” United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009);
see also United States v. Doucette, 979 F.2d 1042, 1044–45 (5th Cir. 1992).
                                  DISCUSSION
      Ricks argues that, when it threatened Mandi, the Government interfered
with his constitutional rights to call witnesses and to present a defense. He
says that Mandi’s testimony would have been material and exculpatory and
that he could not establish his innocence without it. He relies on Agent
Calagna’s testimony establishing that Mandi was willing to testify that the
drugs and gun were hers and urges that Agent Calagna’s threat,
communicated in open court, to prosecute her for perjury if she testified for the
defense, amounted to misconduct. Although Ricks admits the grant of
immunity cured the initial alleged “threats” in conversations with




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                                       No. 18-30084
investigating officers, he argues that Agent Calagna’s threat during his trial
undid the cure. 2
       A criminal defendant has a right under the Sixth Amendment to “present
witnesses to establish his defense without fear of retaliation against the
witness by the government.” United States v. Dupre, 117 F.3d 810, 823 (5th
Cir. 1997). Moreover, “the Fifth Amendment protects the defendant from
improper governmental interference with his defense.” United States v.
Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). So “[s]ubstantial government
interference with a defense witness’ free and unhampered choice to testify
violates [the] due process rights of the defendant.” United States v. Anderson,
755 F.3d 782, 792 (5th Cir. 2014) (internal quotation marks omitted).
       To prevail on a claim of substantial interference, “the defendant must
show a causal connection between the governmental action and the witness’
decision not to testify.” Id. (internal quotation marks omitted). Showing a mere
correlation between the Government’s action and the witness’s decision not to
testify will not suffice. United States v. Girod, 646 F.3d 304, 312 (5th Cir. 2011).
       Ricks acknowledges that the Government offered Mandi immunity. But,
in his brief, he contends that Agent Calagna’s testimony to the effect that
Mandi risked perjury if she testified that the gun and drugs were hers
constituted an open-court threat that intimidated her.


       2 At oral argument, counsel suggested that the alleged open court threat was not
actually reversible error but rather that the agent’s previous communications with Mandi
amounted to threats and that the immunity waiver did not cure those threats. Counsel
offered no evidence that Ricks made this argument to the district court and did not brief it in
this court. Indeed, the argument in Ricks’s brief—rather than the new one presented at oral
argument—is consistent with the objection counsel lodged at trial. Accordingly, this new
argument has been forfeited. See Rosedale Missionary Baptist Church v. New Orleans City,
641 F.3d 86, 89 (5th Cir. 2011) (preserving an argument on appeal requires that the argument
“be raised to such a degree that the district court has an opportunity to rule on it” (internal
quotation marks omitted)); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)
(per curiam) (reciting the longstanding “rule in this circuit that any issues not briefed on
appeal are waived”).
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                                    No. 18-30084
      Ricks has provided no evidence showing that Agent Calagna’s testimony
was the reason that Mandi did not testify. 3 See Anderson, 755 F.3d at 792; see
also Thompson, 130 F.3d at 687 (“The defendant bears the burden of showing
that testimony would have been different but for the government’s actions.”).
      When Agent Calagna testified, Mandi had not been called. And at the
start of trial, the district court had ordered the witnesses sequestered. So
Mandi was presumably not present to hear the alleged threat on which Ricks
bases his interference claim. Ricks does not offer any theory as to how Mandi
heard Agent Calagna’s testimony or how it affected her. Indeed, at oral
argument, counsel admitted that Mandi could not have heard Calagna’s
testimony.
      It was not clearly erroneous for the district court to conclude that an
alleged threat, which was admittedly not heard by the person allegedly being
threatened, did not amount to substantial interference.
      But there is an independent problem. Our caselaw holds that a
constitutional violation, under Webb v. Texas, 409 U.S. 95 (1972), requires (1)
a threat of certain prosecution (2) directed specifically at the witness. See, e.g.,
United States v. Jackson, 453 F.3d 302, 306 n.8 (5th Cir. 2006); United States
v. Gloria, 494 F.2d 477, 484–85 (5th Cir. 1974); United States v. Miller, 491
F.2d 638, 648 n.17 (5th Cir. 1974). Even assuming Mandi was made privy to
Calagna’s testimony—indeed, even assuming she was in the room—neither of
those prerequisites would be met here. An investigator talked about (not to) a
potential witness and about possible (not certain) prosecution.



      3  The causation evidence on which Ricks relies—an affidavit executed by a private
investigator for the defense—was submitted as part of the pretrial motion to quash before
Mandi was granted immunity and is irrelevant to the argument briefed on appeal. In other
words, Ricks needed to introduce some evidence showing that Agent Calagna’s testimony and
interview statements had scared Mandi out of testifying despite the subsequent grant of
immunity.
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                                  No. 18-30084
      Ricks next contends that the district court erred in denying his pretrial
motion for a continuance following the Government’s late disclosure that
Officer Long had been diagnosed with a condition affecting her vision. He
complains that the Government disclosed that there were numerous other
young black men being investigated for street-level drug dealing in the same
area and that the denial of the continuance forced him to proceed to trial
without time to investigate whether Officer Long’s medical condition impacted
her ability to identify Ricks. Ricks argues that the denial limited his ability to
cross-examine Officer Long.
      Ricks’s general complaints about an inability to investigate Officer
Long’s condition do not demonstrate that he suffered specific or compelling
prejudice. Because his briefs do not point to any specific or compelling
prejudice, he has forfeited any such argument. See United States v. Scroggins,
599 F.3d 433, 446–47 (5th Cir. 2010); Fed. R. App. P. 28(a)(8)(A). Ricks also
does not rebut the Government’s argument that Ricks’s charges were
unrelated to Officer Long’s identification because he was not charged with the
distributions observed during the surveillance.
      Even had he briefed the argument and responded to the Government,
the evidence corroborating Officer Long’s testimony is utterly overwhelming.
Individuals to whom Officer Long observed Ricks sell drugs were stopped
shortly thereafter with drugs and admitted to meeting with Ricks immediately
prior to their being stopped. Others described witnessing Ricks engaged in the
sale of illegal drugs. And Ricks’s bedroom was filled with drugs, cash, a gun,
and drug paraphernalia. Consequently, Ricks cannot show that the denial of
his motion for a continuance was an abuse of discretion because it could not
have amounted to anything more than harmless error—which cannot logically
have caused prejudice.


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                                     No. 18-30084
      Finally, Ricks urges that the Government violated Federal Rule of
Criminal Procedure 16 by failing to provide him tapes of his prison phone calls,
and that the district court erred in concluding that the tapes were not
discoverable. He claims that he was prejudiced as a result and that reversal is
warranted because, without access to those calls, his ability to cross-examine
Agent Calagna was improperly limited.
       Ricks cannot demonstrate that the district court abused its discretion
under Rule 16 because he fails even to assert that the records were “relevant”
to any issue at trial. 4 Indeed, at oral argument, counsel conceded that Ricks
never mentioned the calls to counsel—suggesting that there was nothing
relevant on them since he, as a participant, must have been aware of their
contents.
      Moreover, even if the failure to disclose the records amounted to error,
Ricks cannot show that the error was sufficiently prejudicial to warrant
reversal because, as the district court found, Ricks was already aware of the
substance of his own prison phone calls and could have easily subpoenaed the
records himself. See United States v. Ellender, 947 F.2d 748, 756–57 (5th Cir.
1991) (rejecting the claim that the prosecutor violated the district court’s
discovery order and Brady by failing to produce the defendant’s prison records
because, with reasonable diligence, he could have obtained the material
himself); see also Doucette, 979 F.2d at 1045 (applying the same “reasonable
diligence” standard to claims under Rule 16).
       Additionally, any claim of resulting prejudice fails given the
“overwhelming” trial evidence demonstrating Ricks’s guilt. See United States
v. Cochran, 697 F.2d 600, 606–07 (5th Cir. 1983) (finding no reversible error



      4  For that reason, we need not resolve the contested question of whether the records
were in the Government’s possession, custody, or control.
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                                       No. 18-30084
resulting from the Government’s failure to produce during discovery copies of
tape-recorded conversations between the defendant and others given the
independent “overwhelming” evidence of the defendant’s guilt); see also Garcia,
567 F.3d at 735 (determining that the sufficiency of the evidence to support the
defendant’s conviction defeated his ability to demonstrate the requisite
prejudice resulting from an alleged Rule 16 violation).
       The district court’s discovery ruling does not amount to reversible error.
                                       CONCLUSION
       For the foregoing reasons, we AFFIRM. 5




       5  Most of the dissent is devoted to second-guessing the jury by asking factual
questions. Were the athletic socks in the dresser men’s socks or women’s socks? Did Ricks or
his girlfriend wear men’s watches? In a text exchange between Ricks and his girlfriend, does
“them people” refer to police officers? Was Tory Cargo, Ricks’s next-door neighbor, a credible
witness? It is the jury’s job—not ours—to grapple with these factual questions. The dissent
has less to say about the legal questions. And even there, the dissent does (or redoes) defense
counsel’s job. The dissent admits Mandi could not have heard Agent Calagna’s “threat” in the
courtroom. So, it points to Calagna’s earlier conversations with Mandi and argues, “Ricks
does not admit that the grant of immunity cured any [earlier] threats.” Ricks’s own counsel
recognized this immunity-is-no-cure claim was raised for the first time at our oral argument.
Oral Argument at 24:04-24:30 (“I think that in the briefing I was looking at this a little
differently than I should have.”). More fundamentally, the dissent never grapples with the
fact that Ricks conditioned his motion to quash on “the government . . . cur[ing] its
interference . . . by granting Mandi immunity.” The government did so. Once we admit that,
the only explanation left is the dissent thinks that, to effectively cure any constitutional
violation, a grant of immunity must immunize a witness from prosecution for perjury. Not
so. See United States v. Apfelbaum, 445 U.S. 115, 126 (1980).
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                                  No. 18-30084
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Because I would conclude that the government substantially interfered
with Robert Ricks’ ability to call witnesses and present a defense, which
constitutes clear error, and that the trial court abused its discretion in denying
a continuance and in not requiring the government to permit access to Ricks’
telephone calls reviewed by authorities, I would vacate and remand.
Therefore, I respectfully dissent.
      Robert Ricks appeals his conviction for conspiracy to possess with the
intent to distribute cocaine and heroin, possession with the intent to distribute
cocaine and heroin, possession of a firearm in connection with a drug-
trafficking offense and being a felon in possession of a firearm.        He was
sentenced to 300 months imprisonment.
      The majority gives a summary of the facts.            However, a detailed
discussion of the facts is necessary to understand just how crucial any errors
were to Ricks’ conviction.    The majority attempts to dismiss any detailed
discussion of the facts presented at trial as second-guessing the jury. Perhaps
that explains how the majority repeatedly reached the unsupported and
erroneous conclusion that the evidence against Ricks was “utterly
overwhelming.” The government’s failure to introduce absolutely any evidence
connecting Ricks to any gun or to the actual drugs found in the Malbroue
residence establishes that the government’s interference with Ricks’ ability to
call a defense witness, the denial of Ricks’ request for a reasonable amount of
time to investigate the debilitating vision problems of the only eyewitness to
any alleged hand-to-hand transaction during relevant time period, and the
denial of Ricks’ access to jail calls reviewed by the government were anything
but harmless.
      In February 2015, the New Orleans Police Department (NOPD) received
an anonymous tip that someone named “Robbie” was dealing drugs out of a
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                                 No. 18-30084
residence located in the 1200 block of Belleville Street in the Algiers
neighborhood. This area was known as a “hot block” with a lot of foot and
vehicle traffic and numerous individuals involved in criminal activity,
including dealing drugs. Mandi Malbroue’s (Malbroue) parents, Carolyn and
Troy Malbroue, owned a house at 1201 Belleville Street. During the time
period in question, Robert Ricks, also known as “Ra-B,” was living with
Malbroue, their minor child, and her parents at that residence. Also living
around the same block was a probationer with prior drug convictions named
Robie Turner, who was under investigation during the same time period and
who had also absconded at the time of Ricks’ trial, according to his probation
officer.
       During the evening of February 15, 2015, Officer Chantell Long
conducted surveillance from a car parked a block or so away. Among the
numerous people and cars, Long observed a person she identified as Ricks
engage in what she suspected were two or possibly three hand-to-hand drug
transactions. One of the suspected transactions involved a female who walked
up around 6 p.m. and briefly sat in a red, Dodge Challenger parked on the
street with a male who Long believed was Ricks.            A second suspected
transaction involved a male passenger exiting a pickup truck and briefly
meeting with a male Long identified as Ricks on the front porch at 1201
Belleville. A third suspected transaction involved the male Long identified as
Ricks briefly entering a maroon Jeep on the street. Long radioed nearby
officers who stopped the individuals from the first and second transactions.
Those nearby officers did not witness any of the suspected transactions.
Additionally, the Jeep was not stopped and there was no confirmation that any
of its occupants were actually involved in any drug transaction.
       Nearby officers conducted a pedestrian stop of the female, Nicole Feloss
Hill, approximately three or four blocks away.       During a search, officers
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                                       No. 18-30084
recovered one yellow, rectangular pill later identified as Xanax that Hill said
she bought from someone else on the street - not from Ricks. Officers also
stopped the pickup truck. Passenger Kendall Syvle was in possession of heroin
and a syringe. Syvle, who will be discussed in more detail later, did not know
the name of the person who sold him the heroin.
       Just a few days later, on February 19, 2015, officers served a search
warrant in the pre-dawn hours on the Malbroue residence. Officers said that,
as they approached the house to execute a warrant at 5:45 a.m., they saw a
black male complete what they believed was a hand-to-hand transaction.
However, Ricks was inside the house in his pajamas and not wearing shoes
when officers arrived. A drug dog failed to alert to any drugs in the house. In
Ricks’ and Malbroue’s shared bedroom, officers discovered heroin, crack
cocaine, powder cocaine, marijuana, a digital scale, drug paraphernalia, cash
and a loaded gun. 1
       The gun was found inside a sock in a plastic set of drawers in the shared
bedroom. The exhibit photo shows a black, low cut, athletic sock of the variety
that typically comes in both men’s and women’s styles. Authorities also found
an empty, black, plastic box for a firearm. Authorities said there were “a couple
of containers for men’s watches in the drawer.” Yet, the government offered
no evidence to connect Ricks to any watch containers, the sock or the gun. 2
       Men’s clothing was not kept in the plastic set of drawers containing the
gun or in the wooden dresser, where officers located the cocaine base. Officers




       1   Interestingly, authorities did not recover any Xanax, the type of drug Hill had one
pill of in her possession that she maintained she bought from someone on the street and not
from Ricks.
         2 The majority erroneously assumes that the presence of watch boxes in a drawer

means that either Malbroue or Ricks was wearing men’s watches. Yet the government
offered no evidence of the existence of any actual watches and failed to connect any watches
or any boxes to either Ricks or Malbroue.
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                                    No. 18-30084
testified that the dresser drawers contained “junk” like “chargers and, like,
broken electronics type stuff.” Additionally, officers described the contents of
the dresser as “ambiguous,” indicating it was impossible to tell whether the
items belonged to a male or female.            Further, Ricks’ clothes were on a
bookshelf, along with pieces of his mail and his ID. Those items are how
authorities tied Ricks to powder cocaine found on the bookshelf.
      In any event, Ricks and Malbroue were arrested on state gun and drug
charges. 3 Malbroue’s parents received citations for being in possession of
marijuana. At the time, Malbroue also had pending state court gun and drug
charges stemming from her arrest on June 1, 2014, while living on Iberville
Street with a previous boyfriend, Isiah Theophile, also known as “Pig.” The
majority states that Ricks identified himself as the owner of the cash found on
the scene. But the majority fails to mention that Malbroue also identified
herself as the owner of that same cash, which was later used to pay her state
court fines.
* Witness Interference
      Beginning in 2013, federal authorities were involved in an investigation,
known as “Hot Block,” of a group of individuals involved in violent crimes in
the area of the 1200 block of Belleville Street in the Algiers neighborhood of
New Orleans. Ricks was not part of this investigation, which involved the
placement of a pole camera in the 1100 block of Belleville in December of 2014
because of activity involving firearms. Not only did the investigation and
camera have nothing to do with Ricks, but all potentially relevant video was
destroyed.




      3  Malbroue ultimately pleaded guilty to the state drug charges. Meanwhile, Ricks
received federal charges.

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                                 No. 18-30084
      Despite the fact that any alleged video was destroyed and not available
for review, the district court allowed Special Agent Anthony Calagna with the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to testify about it,
over objection. Specifically, Calagna was allowed to say what he read about
Ricks in a police report in which he was in no way involved and to say that he
believed he had previously seen Ricks on video engaged in hand-to-hand drug
transactions. Calagna admitted that he made no effort to identify the person
he claims he saw on video and failed to save or download the video in any way.
Further, Calagna admitted that he could not say he definitely recognized Ricks
on the video, but said, again, that he believed it was him because other details
matched up with a police report he read at some point. Once authorities
decided to pursue federal charges against Ricks, Calagna became involved in
his case.
      Without the presence of her counsel, Calagna also called Malbroue in for
at least two interviews after she and Ricks were arrested but before Ricks’
federal indictment. Calagna said officials did not believe it necessary to go
through Malbroue’s counsel because “we weren’t going to address any of her
participation or current court proceedings in regards to that case.” During the
first interview at the ATF office, Malbroue was asked about Ricks and,
according to Calagna, said: “She told us that the drugs found during the NOPD
search warrant were not Robert’s and neither was the gun.” However, Calagna
chose not to believe her. Likely because accepting her statement as true would
address her participation and would mean Calagna improperly interrogated
her without the presence of counsel. Following the first meeting, Malbroue
accepted a state plea deal, pleading guilty to only possession of narcotics.
      The second interview occurred outside the grand jury room at the federal
courthouse while Malbroue was in state custody.            Again, Calagna asked
Malbroue about the drugs and gun found during the search. Again, Malbroue
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                                       No. 18-30084
said the gun and drugs were hers and denied they belonged to Ricks. Again,
Calagna chose not to believe her.             At that point, Calagna conveyed the
following threat to Malbroue: “We explained to her that we knew what she was
doing. We knew that she was taking – attempting to take the charges for
Robert. We explained to her that if she was put into the grand jury and sworn
under oath, that she’d be committing perjury in a federal grand jury.” Calagna
claimed he believed it would be perjury because Malbroue accepted a plea deal
that did not include the gun charge and because he believed Ricks was also in
control of those narcotics and the firearm. After conveying the threat of perjury
if Malbroue did not implicate Ricks, Calagna said: “She broke down. She was
crying. She told us that she just couldn’t do it. She couldn’t testify against
Robert, that he’s the father of her child, but that she would cooperate on any
other individuals in the 1200 block of Belleville and would testify against
them.”     Importantly, Malbroue never told Calagna that the drugs or gun
belonged to Ricks. Instead, Malbroue consistently maintained the drugs and
gun belonged to her. Specifically, Malbroue said she told the agents she “knew
they had found the gun in her drawer in a sock.” 4 Further, Malbroue “said that
she told them that she had the gun because, during the period she was selling
drugs out of her house on Iberville, there was an incident where someone
locked a car door, so she couldn’t get out, put a gun to her head, and stole her
purse. She said she acquired the gun so she would be able to protect herself if
something like that ever happened again.” To prevent Malbroue from telling
the grand jury the gun and drugs belonged to her, authorities then decided not
to call her to testify. Instead, Calagna was allowed to tell his version of the
conversation with Malbroue to the grand jury and his belief that she was lying
and would perjure herself.


      4   Malbroue was interviewed by a private investigator who provided an affidavit.
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                                       No. 18-30084
      Prior to trial, Ricks unsuccessfully attempted to quash the indictment on
the basis that federal agents had met with Malbroue on those two occasions
and that on both occasions she admitted owning the gun and drugs. Malbroue
repeatedly told the agents that the gun and drugs were hers, that the gun was
in her drawer, and that she had bought the gun to protect herself after being
robbed. Malbroue also repeatedly denied to agents that the drugs and gun
belonged to Ricks.
      In response to Ricks’ motion to quash, the U.S. Attorney moved for an
order compelling Malbroue’s testimony and granting her immunity. It was
granted on the first day of trial. However, the order entered granted immunity,
“except in a prosecution for perjury, giving a false statement, or failing to
comply with this Order.” As stated above, when Calagna met with Malbroue
without the presence of her counsel, he told her that she would be facing
charges if she testified the gun and drugs were hers, as she had consistently
maintained, because she had accepted a plea deal in state court that did not
include the gun charge. Calagna repeated this same threat at trial. Malbroue
said Calagna also told her that authorities would press charges against her
and she was “going to go down for this too” if she testified on Ricks’ behalf.
      Ricks again moved to quash, asserting that Calagna’s testimony
basically rendered Malbroue’s immunity ineffective. 5 The district court denied
Ricks’ motion. Malbroue was present at the courthouse and prepared to testify
on Ricks’ behalf at trial. However, after Calagna’s testimony, Malbroue left
the courthouse and did not testify.
      At Rick’s trial, Hill testified that she had become friends with Ricks when
he worked at a barber shop on Washington Avenue and she went to see him to
try to borrow some money to buy a Mardi Gras outfit. Hill denied that she


      5   The majority ignores the fact that Ricks re-asserted his motion to quash.
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                                          No. 18-30084
purchased or received any drugs from Ricks. She also said there were more
than 10 people hanging out on Belleville when she went to see Ricks because
it is a hot block.
          Syvle testified that he bought different drugs from different individuals
on the corner of Belleville, but he didn’t know the names of any of the dealers
on the corner. He said one person was called “R.” 6 Syvle also testified that he
had been high and awake for two or three days at the time of the transaction
and had “dealt with maybe 100 guys” that weekend. Syvle also repeatedly
testified that officers told him they had him on video buying drugs from an
individual they said was Ricks or “Ra-B.” Interestingly, during the portion of
redirect when Ra-B was referenced, the prosecutor is who first mentioned the
name “Ra-B” and the record does not reflect that the name was spelled for the
record at that time, yet the transcript shows the unique spelling of “Ra-B” and
not “Robbie” or “Robie.” More importantly, though, no such video ever existed.
The only video was from the later stop of the vehicle and arrest of Syvle.
          After reference to the video, Ricks’ counsel said: “We would ask for any
such film. None has been produced to us in discovery, Judge, and we don’t
believe there is any such film.” The court then called counsel to the bench and
chastised Ricks’ lawyer for even asking for the video that Syvle testified about
repeatedly, saying: “I don’t know whether there is or isn’t, but you shouldn’t do
that in front of the jury. You can raise that with me separately.” Ricks’ counsel
replied: “But, Judge, I think it is highly misleading for the witness --” At that
point, the court inquired into the existence of any film and the government
admitted it had no such film. The court then told the government to call their
next witness.



          6   The government failed to introduce any evidence indicating Ricks was ever known
as “R.”
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                                     No. 18-30084
      Another witness, James Chapman, who suffered a head injury in 1996
that affects his memory, also testified. Chapman said that he had previously
bought marijuana and crack on “the hot block” from numerous individuals
including a female named “Dew,” a male named “T.O.,” who was arrested in
Chapman’s car, Ra-B, and others. Chapman said he met Ra-B through Ra-B’s
drug-dealer neighbor, Danita, and that Chapman hung out on Danita’s front
porch and purchased his drugs at Danita’s. Chapman also testified that Ra-B
never sold drugs from the Malbroue residence at 1201 Belleville Street and he
never saw Ra-B with a gun and never heard him reference a “gun.” Chapman
said he heard Ra-B say “the thing” before and thought maybe that meant a
gun. Chapman also said that he acted as an intermediary for a few sales to
other drug dealers for Ra-B. Chapman said that he had an ongoing, paid-
informant relationship with “Tony,” Special Agent Anthony Calagna with the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that started
before he ever met Ricks and continued after he met Ricks. 7               However,
Chapman said authorities never asked him to make a controlled buy from
Ricks. Further, authorities never even asked Chapman anything about Ricks
until after Ricks was arrested. But Chapman had stopped associating with
Ricks and hanging around that area by that time. During cross-examination,
Chapman was unable to explain why he spelled his name “C-h-a-p-i-m-a-n”
before the grand jury or why there was no record of any phone contact between
himself and Ricks during the time period he says he was dealing with Ricks.
      Calagna testified extensively regarding information found on cellular
telephones belonging to Ricks and Malbroue. Much of his testimony involved
him interpreting what he believed various messages meant. For example,
Calagna testified that Malbroue sent Ricks a text messages stating: “Be careful


      7   Chapman said the ATF paid him more than $4,000.
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                                  No. 18-30084
because them people riding around.” Calagna said, based on his training and
experience, “them people” refers to the police. However, the very next text
Calagna testified about was a message Mandi sent Ricks saying, “The police
just came up the one way.” It makes no sense why Malbroue would use “them
people” as code for the police in one text but refer to the police as “the police”
in another text. Also, it would seem “them people” Malbroue was warning
Ricks to be careful of could also be the numerous violent offenders federal
officials were investigating on the block. Additionally, Calagna testified to
numerous texts on Malbroue’s phone indicating that she was selling narcotics
independent of Ricks. There were also numerous messages between Malbroue
and her ex-boyfriend, Isiah Theophile, also known as “Pig.” Malbroue and
Theophile previously had been arrested together for drug and gun violations.
      Notably, Calagna did not write any investigative reports or witness
reports on Ricks’ case. Instead, Calagna relied solely on the previous reports
done by NOPD and whatever testimony was provided to the grand jury.
Although, as we know, Malbroue was ultimately not called to testify in front of
the grand jury. Instead, Calagna just remembered what she said. Calagna
apparently did make some outlines of notes on some witnesses, but those were
not turned over to the defense. Calagna also testified that he never considered
Robbie to be anyone other than Ra-B, despite the fact that neither Ricks nor
1201 Belleview were part of his prior investigations. However, 1209 Belleville,
which was Danita’s house two doors down, was referred to by Calagna in his
grand jury presentation as “Crack Dealing Headquarters and Cook House.”
During his testimony, Calagna also identified various hot block drug dealers
of similar size and description to Ra-B that were included in his grand jury
presentation. Another individual, Sidney Frazier, was identified by Calagna
as one of the leaders of the gang Swu Woo. Calagna said, “Swu Woo it’s derived
from the Blood Gang. Hot Block is derived from Swu Woo.” When asked
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                                 No. 18-30084
whether he was aware that Robie Turner was also a member of Swu Woo,
Calagna said he was not aware.
      The majority mentions a neighbor who testified that he saw Ricks
dealing drugs on numerous occasions and that Ricks and Malbroue worked
together. That neighbor was Tory Cargo. The ATF paid Cargo $600 for his
testimony before the grand jury. Calagna testified that Cargo was having
financial difficulties supporting his seven children. Cargo testified at Ricks’
trial that, while on parole for a prior conviction, he was motivated to contact
the ATF and offer testimony against Ricks “because of the things that I’ve been
through on Belleville, and the way that my kids can’t, you know, really go
outside, you know, due to the things that go on around Belleville.” Yet one of
Cargo’s numerous prior convictions involved him pleading guilty to having his
daughter in the backseat while engaged in a drug deal in Jefferson Parish.
Cargo was also arrested for possession with intent to distribute crack
approximately one month after his grand jury testimony. Cargo was in custody
and in a work release program for that offense when he testified at Ricks’ trial.
Because Cargo missed work, he also planned to receive additional payment for
his testimony at trial.
      Cargo testified that he got out of jail in January of 2015 and was staying
at 1236 Belleville. Cargo said he would leave early in the morning to go job
hunting and would not return to Belleville until “about 10 in the evening – 10
that morning.” But whenever he returned from his long hours of job hunting,
Cargo would visit his girlfriend, Jamie, who lived at 1213 Belleville. Cargo
said Jamie lived two doors down from the Malbroue house with her sister,
Cassie Picquet, who was both a drug user and a drug dealer. Cargo testified
that Picquet sold crack and used heroin, which she bought from Ricks. Cargo
said that when Ricks was not home, Picquet bought drugs from Mandi. Cargo


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                                 No. 18-30084
said that he knew about this because he overheard Picquet’s phone
conversations.
      Cargo told Calagna during interviews that he had never seen Ricks with
a gun. Cargo also testified before the grand jury that he had never seen Ricks
with a gun. At trial, Cargo changed his story and said that he saw a bulge in
Ricks’ shirt. Specifically, Cargo said: “Well, I seen a bulge in his shirt. You
know how – you know how somebody, you know, has something up under their
shirt and you know it’s a gun? You know the difference between a phone, a
knife, and a gun.”
      Cargo’s girlfriend lived next door to 1209 Belleville, which was Danita’s
house. Cargo referred to Danita’s house as a “trap house,” a “place where all
the drug dealers hang at” to “sell their crack and stuff like that.” Cargo said
that at different times when he was hanging out at Danita’s “trap house,” he
saw Ra-B there too. When asked what Ra-B was doing at the trap house, Cargo
said, “[w]ell, basically, you know, probably hanging out sometime or, you know,
talking to the fellas who were on the – the other fellas who were over there,
you know.” Cargo also testified to what he believed was Ra-B asking Danita
to cook some crack, “[s]o he was like, ‘Teedie [Danita’s nickname], I need you
for to, you know, cook this up for me.” Cargo did not explain how he knew
“this” meant crack. Cargo also said he heard Ra-B talk about money, “[h]e was
like, ‘All, you know, all blue faces, you know, you all get your money up.” Cargo
said, “blue faces” meant 100-dollar bills and Ra-B was “really talking to the
hustlers that’s on the block” who were “having conversations and stuff like
that.” Cargo also testified that he saw a photo of Ra-B with cash in his hand.
Cargo also said that all of the guys on the block were users and dealers except
for him.   Despite Cargo’s various drug arrests, having previously been
sentenced to drug court, constant association with drug dealers and users, and
his penchant for trap houses, he claimed he never touched the stuff.
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                                      No. 18-30084
       As the majority states, Ricks has a Sixth Amendment right to “present
witnesses to establish his defense without fear of retaliation against the
witness by the government.” United States v. Dupre, 117 F.3d 810, 823 (5th
Cir. 1997). “Substantial governmental interference with a defense witness'
choice to testify may violate the due process rights of the defendant.” Id.
(Internal marks omitted). “[S]o long as the investigation of witnesses is not
prompted by the possibility of the witnesses testifying, and so long as the
government does not harass or threaten them, the defendant's rights are not
violated.” United States v. Whittington, 783 F2d 1210, 1219 (5th Cir. 1986); see
also United States v. Fricke, 684 F.2d 1126, 1130 (5th Cir. 1982). Additionally,
“the Fifth Amendment protects the defendant from improper governmental
interference with his defense.” United States v. Bieganowski, 313 F.3d 264,
291 (5th Cir. 2002).
       Ricks asserts that the government interfered with his constitutional
rights to call witnesses and present a defense when it threatened Malbroue
because her testimony would have been material and exculpatory.                        The
majority seemingly disregards this argument on the basis that there is no
indication Malbroue was present in the courtroom during Calagna’s
testimony. 8 Regardless of whether Malbroue heard Calagna’s testimony, there
is no dispute that his testimony corroborated Malbroue’s statements about
their meetings without the presence of her counsel and her fear that, if she
testified to what she consistently maintained was truthful, authorities would
pursue additional charges against her. Further, as Malbroue was represented
by counsel, one would presume that her counsel had some inkling of what was
going on at that point and that Malbroue had received a copy of the “immunity”


       8The majority erroneously interprets this as some concession that there is no way
Malbroue could possibly have known about Calagna’s reassertion of the threat at trial. It is
no such thing.
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                                  No. 18-30084
order setting out exceptions for the very charges authorities had consistently
threatened.
      The majority asserts that Ricks “admits the grant of immunity cured the
initial alleged ‘threats’ in conversations with officers” but then says he argued
“that Agent Calagna’s threat during trial undid the cure.” However, Ricks does
not admit that the grant of immunity cured any threats. Ricks states that the
government offered the immunity motion as a remedy for the error. He does
not say the offered remedy cured any error. In fact, the grant of immunity
containing exceptions for the very threats asserted by Calagna was not a cure.
Moreover, I disagree with the majority’s attempt to couch this as a new issue
not previously raised. Ricks has consistently asserted the entire time that
Calagna made the same threat three different times – twice while interviewing
Malbroue without the presence of counsel and once at trial. Ricks has also
asserted the entire time that these threats were not cured by anything and
constituted interference with his ability to call a witness and present a defense.
Ricks objected and moved to quash two different times. There is nothing
inconsistent between the arguments at trial, the arguments in his brief and
his oral arguments on this matter, which the district court has already had an
opportunity to rule on. Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 89 (5th Cir. 2011).
      The majority also states that Ricks has provided no evidence showing
that Agent Calagna’s testimony was the reason that Mandi did not testify.”
Thus, the majority concludes that Ricks is unable to show a causal connection
between the governmental action and Malbroue’s decision not to testify. See
United States v. Anderson, 755 F.3d 782, 792 (5th Cir. 2014). However, Ricks
has provided evidence that Malbroue said she wanted to be able to testify on
Ricks’ behalf but was afraid to testify because of Calagna’s threats.         The
majority dismisses this affidavit because it was submitted as part of the pre-
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                                 No. 18-30084
trial motion to quash and claims it is somehow irrelevant to the argument
briefed on appeal. But the affidavit is relevant to the argument briefed on
appeal.   Despite the government and the majority’s repeated attempts to
somehow sever and cure the first two threats, it is impossible to do so. Notably,
Malbroue also said that “Robert had turned his life around and was not selling
drugs in February 2015. Instead, he was making money as a barber, putting
his drawing talents to use there as he cut designs into hair.” Additionally,
Malbroue said the drugs in the house actually belonged to her previous
boyfriend, Pig, for whom she was holding them and to whom she had planned
to return them.
      The government does not dispute that Calagna told Malbroue she would
be prosecuted for perjury if she testified on Ricks’ behalf.       Instead, the
government argues that it “immunized Malbroue so that the defense could call
her as a witness.” But Malbroue was not immunized from anything. Not only
did the immunity order contain exceptions for the very charges Calagna
repeatedly threatened, but Calagna repeated the threat during trial. Despite
both the majority’s and the district court’s characterizations, this is not about
Malbroue seeking a license to perjure herself. This is about the government
threatening her repeatedly by telling her that she would be prosecuted for
additional charges if she testified on Ricks’ behalf because it believed she was
lying, not that it had proof that she actually was lying, and because the fact
that she had benefited from a plea agreement that did not include the gun
charge would make her guilty of perjury. From the evidence presented at trial,
it is clear that the government did not have overwhelming evidence of Ricks’
guilt. Moreover, it would be highly improper for the government to use a plea
deal as a threat for future prosecution. No defendant would insist that the
government, or in this case the state, allow him or her to plead to additional
charges. The fact that the state and federal government deals or beliefs did
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                                 No. 18-30084
not align is not the fault of Malbroue or Ricks and should not interfere with his
constitutional right to call witnesses without interference and present a
defense.
      At bottom, Ricks and Malbroue were arrested for drugs and a gun, which
was found in Malbroue’s dresser in a house owned by her parents. Authorities
offered Malbroue a deal wherein she only had to plead guilty to state drug
charges. Then federal authorities went after Ricks for both the drugs and the
gun, despite Malbroue repeatedly telling them the gun and drugs were hers.
At trial, they claimed to give Malbroue immunity to testify on Ricks’ behalf but
threatened her that if she testified to what she had maintained the entire time
– that the gun and drugs were hers, they would prosecute her federally. They
reduced her to tears at one point because she believed she would lose her child.
Officials also met with Malbroue without the presence of her lawyer and told
her they did not want to know anything about her involvement, they just
wanted her to implicate Ricks.
      Authorities did not make any buys from Ricks. Authorities had two
people they claim they saw purchase drugs from Ricks. However, one of those
people, Hill, who knew Ricks from his cutting hair, consistently maintained
she had not bought any drugs from Ricks, was not in possession of any of the
types of narcotics discovered in the Malbroue residence and said she had
stopped to see Ricks on the day in question to borrow money. It is unclear how
Hill’s testimony was even relevant to this case since Ricks was not charged
with distribution and her testimony could not in any way connect Ricks to
possession of any of the drugs or the gun found in the Malbroue residence. The
other person had been high for two or three days, did not know the name of the
person he bought drugs from, and had dealt with about 100 different people
that weekend.     Authorities also paid various other witnesses to testify
regarding Ricks’ prior narcotics activity. However, none of those witnesses
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                                 No. 18-30084
testified as to Ricks’ possession of any drugs inside the Malbroue residence.
Further, at least one key government witness explicitly contradicted the
government’s case by stating that Ricks never sold drugs from the Malbroue
residence – testimony that was consistent with Malbroue’s statement.
      Authorities did not attempt to obtain fingerprints or DNA evidence from
the aluminum or plastic the drugs were encased in, the gun or anything else.
They did not have any DNA or prints to connect Ricks to the drugs or the gun.
They also had no witnesses to connect Ricks to the gun. However, what they
did have was Malbroue telling them the drugs and gun were hers and why she
obtained a gun. Malbroue had previously been arrested with crack cocaine,
heroin and an AK-47 with Pig in June of 2014. It is unclear whether Malbroue
pleaded guilty to the gun charge in that case, but she pleaded guilty to the
narcotics. Officers took no notes regarding the surveillance. Officers also had
no evidence that the drugs did not belong to Malbroue and Pig. Malbroue and
Pig were still in contact, as evidenced by phone records and Malbroue’s
statements regarding her plans to return the drugs to Pig. Malbroue wanted
to testify on Ricks’ behalf but feared she would be prosecuted based on
Calagna’s repeated threats.
      For all of these reasons, I conclude that the government substantially
interfered with Ricks’ right to call Malbroue as a witness and present a
defense. Further, this constitutes clear error.
* Continuance
      Just before trial, the government disclosed that Officer Long, who had
conducted the surveillance, had been diagnosed with a brain tumor affecting
her vision just two months after the surveillance and had brain surgery shortly
thereafter. Further, the government disclosed that there had been numerous
other young black men investigated for similar drug dealing in the same area
at the same time. Ricks asked for and was denied a continuance for additional
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                                No. 18-30084
time to investigate Long’s medical condition and the effect it had on any
identification.
      The majority concludes that Ricks is unable to demonstrate prejudice, in
part, because Ricks’ “charges were unrelated to Officer Long’s identification
because he was not charged with the distributions observed during the
surveillance” conducted by Long. I disagree. Other than drugs being found in
a room shared by Malbroue and Ricks in the Malbroue residence, the
government’s strongest evidence connecting Ricks to any drugs during the time
period in question was Long’s testimony that she believed she saw Ricks
engaged in hand-to-hand drug transactions in the street. Of the individuals
stopped following Long’s observations, one admitted meeting with Ricks and
attempting to borrow money, but denied she had purchased any drugs and, in
fact, was not in possession of any drugs of the type found in the Malbroue
residence. The other individual, who had been high and awake for two or three
days and had dealt with approximately 100 dealers that weekend, did not know
the name of the person he had met with and said it was “a little black dude.”
Upon additional questioning, this witness said he did not recall a name, but
eventually said one of the guys who worked the corner was named “R.” The
witness also testified that he only knew this person by “R” and did not know
any other name until authorities told him they had him on video purchasing
drugs from Ra-B. Again, no such video ever existed. Also, the government has
presented no evidence that Ricks ever went by “R.”
      Beyond that evidence, the only other testimony was that of paid
informants and drug dealers/users who claimed they had purchased drugs
from Ricks at some point in the past unrelated to this investigation. These
same witnesses were unable to explain discrepancies in their testimony.
Additionally, as stated previously, authorities did not attempt to obtain
fingerprints or DNA from any packets of drugs, the gun, or any other items.
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                                 No. 18-30084
Thus, Long’s testimony was crucial and formed the basis for the entire case.
Further, the positions of the government and the majority on this would beg
the question of why all of this evidence was allowed to be introduced when
Ricks was not even charged with distribution and it was supposedly so
unnecessary to his conviction for possession that it would not matter if it was
wrong.
      As the majority states, this court reviews a district court’s denial of a
continuance for an abuse of discretion. United States v. Porter, 907 F.3d 428,
439 (5th Cir. 2009).     In determining whether a district court abused its
discretion, this court looks to the totality of the circumstances. United States
v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009).           The totality of the
circumstances includes:
            (a) the amount of time available;
            (b) the defendant's role in shortening the time needed;
            (c) the likelihood of prejudice from denial;
            (d) the availability of discovery from the prosecution;
            (e) the complexity of the case;
            (f) the adequacy of the defense actually provided at trial;
            and (g) the experience of the attorney with the accused.

Stalnaker, 571 F.3d at 439.
      Here, the government did not disclose this information until just a few
days before trial. Ricks had no role in shortening the time needed. The
likelihood of prejudice from an erroneous identification was significant. While
Ricks was able to cross-examine Long on her medical issue, he did not have
time to do additional discovery or independent investigation regarding the
likelihood of whether she was having vision problems at that time, whether
her vision problems had affected other NOPD cases, or whether the fact that
the surveillance occurred at night could have exacerbated any problems,
among other things. Long’s brain tumor was so serious that she was still

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                                 No. 18-30084
suffering from vision problems and on disability at the time of trial. When all
of this is combined with the facts that Malbroue consistently stated that the
drugs and guns were hers, that multiple other people, including many who
looked similar to Ricks and some who also had the same or similar names, were
selling drugs in the same area at the same time, and the lack of “utterly
overwhelming” evidence in this case, I conclude that the district court abused
its discretion in refusing to grant a continuance.
* Jail calls
      Over objection, Calagna also testified about some of the hundreds of jail
telephone calls he listened to as part of his investigation. Some of these phone
calls involved Armand Matthews, also known as “Butter.”             Specifically,
Calagna testified about a phone call from Butter to an individual named
Sterling Adams, also known as “Apple.” A recording of the phone call was
played before the jury and the government interpreted it as Butter telling
Apple, “Go around Belleville tell that boy Ra-B I said give you the 500.”
However, the caller does not spell Ra-B and there’s no indication he’s not
saying Robbie or Robie. Additionally, the government referenced other calls
where they believed the name could only be Ra-B.
      On cross-examination, Ricks’ counsel asked Calagna whether he had also
reviewed any of Ricks’ jail telephone calls, and Calagna said that he had.
Ricks’ counsel then stated that he had “never been provided any jail calls.”
Counsel further argued that “this is basic fundamental Rule 16 discovery. If
there are statements from Mr. Ricks, I'm entitled to receive those. If they're
inculpatory, I certainly need to know them; if they're exculpatory, I certainly
need to know them, but I've not been provided anything of that sort.” Ricks’
counsel also argued, “[a]nd I don't know, I haven't heard them, but I suspect
what he probably said was he didn't have anything to do with these drugs, and


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                                 No. 18-30084
if that's the case, that's certainly Brady evidence that the government would
have had to turn over.”
      The government responded that, although authorities were able to log in
and listen to the jail calls and had possession of any that were favorable to the
government, they did not have possession of any other jail calls. The district
court then overruled Ricks’ objection and concluded there was no discovery
violation. The court also said that the defense could have subpoenaed Ricks’
calls and made the statement that “[t]he government isn’t using them, and
doesn’t have them.”
      The majority states that Ricks cannot demonstrate an abuse of discretion
on the part of the district court under Rule 16 because he fails to assert that
the records were “relevant” to any issue at trial. The majority then states that,
for that reason, it need not resolve the issue of whether the records were in the
Government’s possession, custody or control. However, I disagree.
      While there is certainly an argument that the defense could not possibly
have known whether the calls were relevant without having reviewed the calls,
there is also an argument that any calls that were relevant for purposes of
government review were also relevant to the defense. Moreover, the defense
could not show the error was sufficiently prejudicial to warrant reversal
without having reviewed the calls. The majority’s attempt to substitute Ricks’
knowledge of any of his own calls for the professional judgment of his counsel
in determining relevancy or prejudice is improper. Additionally, Ricks did not
know Calagna had also reviewed Ricks’ jail calls until he was asked at trial.
      Regarding recorded statements, Rule 16 of the Federal Rules of Criminal
Procedure provides in relevant part that:
            Upon a defendant's request, the government must disclose
      to the defendant, and make available for inspection, copying, or
      photographing, all of the following:

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                                 No. 18-30084
           (i) any relevant written or recorded statement by the
      defendant if:
           • the statement is within the government's possession,
           custody, or control; and
           • the attorney for the government knows--or through due
           diligence could know--that the statement exists.

Fed. R. Crim. P. Rule 16(a)(1)(B)(i).
      Here, the government knew the statements existed and had been
reviewed. Any argument that the statements were not within the possession,
custody, or control is disingenuous.     While the telephone system may be
maintained by the parish, the government admitted at trial that it had the
capability to log in, review any and all calls it deemed relevant, obtain
recordings of those calls, and introduce them as evidence at trial. Clearly this
puts the statements within the control of the government. Rule 16 requires
possession, custody, or control.    (Emphasis added).      Further, despite the
district court’s statement to the contrary, there is no requirement in this
subsection that the government actually be using all of the recordings at trial.
      The majority also concludes that “any claim of resulting prejudice fails
given the ‘overwhelming’ trial evidence demonstrating Ricks’ guilt.” However,
as stated previously, there is far from any “overwhelming” evidence of guilt
here. Thus, I would conclude that the district court abused its discretion in not
requiring the government to permit access to the recordings of Ricks’ calls.
                                CONCLUSION
      Because I would conclude that the government substantially interfered
with Ricks’ ability to call witnesses and present a defense, which constitutes
clear error, and that the trial court abused its discretion in denying a
continuance and in not requiring the government to permit access to Ricks’
telephone calls Calagna had reviewed, I would vacate and remand. Therefore,
I respectfully dissent.

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