                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                                F I L E D
                             REVISED JANUARY 4, 2005
                                                                               December 15, 2004
                   IN THE UNITED STATES COURT OF APPEALS                     Charles R. Fulbruge III
                                                                                     Clerk
                               FOR THE FIFTH CIRCUIT



                                      No. 03-31061



      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                          versus

      MICHAEL O’KEEFE, SR., GARY BENNETT;
      JOHN O’BRIEN,

                                                       Defendants-Appellants.




                   Appeals from the United States District Court for
                          the Eastern District of Louisiana
                             (USDC No. 95-CR-106-1-S)
          _________________________________________________________


Before REAVLEY, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*




      *
        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not be published and is not precedent except under the limited circumstances set forth in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.
       The order denying the motions for new trial is affirmed. We essentially agree with

the Order and Reasons of the district court, and appellants do not persuade us that the

district court abused its discretion in denying the motions. We make the following

additional observations.

       O’Keefe’s argument to this court that Moore gave “false testimony to the jury that

he had ‘no deal’ with the Government,” O’Keefe’s opening brief at 9, and that in a post-

trial civil deposition Moore “for the first time admitted that, through his attorney, he did

obtain a ‘deal with the government,’” id. at 28, is highly misleading and a

mischaracterization of the record. Moore testified at the criminal trial at length about his

plea agreement. We previously noted in the second appeal to this court that “Moore

admitted he stole money from his trust account with O’Keefe’s blessing, and had pleaded

guilty to such and was testifying pursuant to a plea agreement.” O’Keefe II, at 27. The

plea agreement itself was admitted into evidence.

       O’Keefe argues that Moore revealed after the criminal trial that he had an

agreement with the State of Louisiana “for forbearance for state prosecution for theft.”

O’Keefe brief at 14. Moore testified at the criminal trial that he had pleaded guilty to

both state and federal charges and was testifying pursuant to a federal plea bargain.

O’Keefe does not persuade us that the federal government was aware of the particulars of

his agreement with state authorities or that these particulars would have been considered

material to the federal criminal jury. Accordingly, he has not shown a Brady or Napue

violation or other grounds for a new trial based on the state charges.

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       Regarding the three interview records produced at the hearing on the motion for

new trial, appellants make several arguments. We assume without deciding that these

documents should have been turned over to the defense under the Jencks Act or for some

other reason. Insofar as these documents reveal a plan by O’Keefe to fool the auditors

with a fake check, this information strikes us as highly inculpatory of O’Keefe and

appellants do not persuade us that such information, if revealed to the jury, would have

assisted their defense.

       Insofar as appellants argue that the documents reveal that Moore was somehow

persuaded to change his initial position with the federal authorities and turn on O’Keefe,

we agree with the district court that the documents do not support this theory.

       O’Keefe also argues that the documents reveal that O’Keefe had tape-recorded a

conversation with Moore immediately after going to the federal authorities rather than

immediately before going to the authorities as he testified at trial. The government

contends that this argument is a new one and should be reviewed for plain error only. We

agree. Moreover, even if the argument had been raised below O’Keefe does not persuade

us that the alleged one-day discrepancy in the date Moore first tape-recorded a

conversation with O’Keefe is so material as to merit a new trial. The evidence presented

to the jury was clear that Moore was a cooperating witness who was testifying pursuant

to a plea bargain, whether the first recording was made immediately before or after

Moore first met with federal authorities. The defense would have been able to argue that

Moore was trying to “set up” O’Keefe either way.

                                             3
       Appellants make references to a missing 302 report Agent Phillips wrote of the

initial interview with Moore. They cite Phillips’ testimony that she would normally

prepare a 302 and could not explain why the 302 for the initial meeting was missing.

Appellants have not demonstrated a Brady violation or any other reversible error with

regards to this alleged missing interview memo. They do not prove that this 302 ever

existed, that it contained exculpatory information, that it was suppressed, or that it was

material.

       O’Keefe alleges as another Brady violation that the government failed to disclose a

state interview report of an interview with Gene Broussard, deputy receiver for the

Louisiana Department of Insurance. The report indicates that Moore told Broussard, “If

I’m going down, I’m going to take other people with me.” The district court found that

this document was available from the state to defendants upon request. This finding was

based on testimony from a state official and is not clearly erroneous. “Brady does not

require the government to conduct a defendant’s investigation or to assist in the

presentation of the defense’s case.” United States v. Aubin, 87 F.3d 141, 148 (5th Cir.

1996) (internal quotation marks omitted). Further, appellants do not persuade us that the

statement was material in the context of the lengthy criminal trial during which Moore

was subjected to extensive cross-examination. The jury was well aware that Moore had

recorded conversations, was otherwise cooperating with the government, and was

testifying against the defendants in hopes of a reduced sentence. He testified that

pursuant to the plea agreement the government had limited his criminal exposure to a

                                              4
single felony and that if he gave truthful testimony the government might file a motion for

a reduced sentence.

       Bennett makes several arguments based on alleged newly discovered evidence in

the form of deposition and hearing testimony of L.D. Barringer, and a 302 report of an

interview with Barringer. Bennett argues that based on this evidence Barringer denies

that he ever attended a meeting about which Moore testified at trial. At trial, Moore

testified that based on a meeting with Barringer and others he believed the money that

was held in his trust account belonged to BCI or Associated Auditors rather than

PNRRG. Bennett does not persuade us that Barringer’s testimony contradicting Moore’s

testimony at trial is material. In order to merit a new trial, the defendant must prove that

(1) the evidence is newly discovered and was unknown to him at the time of trial, (2) the

failure to discover the evidence was not due to his lack of diligence, (3) the evidence is

not merely cumulative, but is material, and (4) the evidence would probably produce an

acquittal. See United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir. 1995).

       Whether or not the money Moore held in his trust account belonged to BCI or

PNRRG was not central to government’s case. Bennett’s argument is similar to a motion

for new trial we reviewed in O’Keefe II. In this earlier motion, O’Keefe claimed “that at

trial Moore testified that money in the trust account was BCI’s money, while in the later

civil proceeding he claimed that the funds belonged to the PNRRG estate. . . . This

evidence, even if newly discovered, does not change the fundamental facts that Moore

admitted he stole money from his trust account with O’Keefe’s blessing, and had pleaded

                                              5
guilty to such and was testifying pursuant to a plea agreement. The district court did not

abuse its discretion in denying a new trial.” O’Keefe II, at 27. We also stated that as to

the earlier motion “O’Keefe does not explain convincingly why it matter whether the

funds were held in trust for BCI or PNRRG.” Id. We think the same analysis applies to

the present appeal.

       Bennett also cites other testimony from Barringer’s post-trial civil deposition

which is allegedly inconsistent with the government’s theory of the case in the criminal

trial. However, Bennett does not persuade us that the district court erred in finding that

“Barringer was available to the defendants at trial, and it is not probable that the

introduction of the testimony from Barringer’s civil deposition would produce an

acquittal.” At the new trial hearing, Barringer was shown the side agreements with AIC

which he had not seen at his deposition. The AIC side agreement was a key component

of the overall scheme by defendants to personally enrich themselves, as we discussed in

O’Keefe II. Id. at 7-8.

       All other pending motions to this appeal as dismissed as moot.

       AFFIRMED.




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