Fed appeals court in New Orleans slams ex-prosecutor for misconduct, vacates contempt conviction

Fed appeals court in New Orleans slams ex-prosecutor for misconduct, vacates contempt conviction

With his bald pate, a closet full of three-piece suits and a host of high-profile convictions to his name, Michael McMahon cut a brash figure as a federal prosecutor in New Orleans in a career lasting more than three decades – until he retired in December amid a clash with U.S. Attorney Peter Strasser.

But a stunning federal appeals court ruling this week found that McMahon committed “textbook examples of prosecutorial misconduct” in one of his final cases: the trial of a witness who had taken the stand but refused to testify over what he knew about a string of armed bank robberies and carjackings in the city.

McMahon rejected the court’s conclusions on Tuesday.

The witness, Thaddeus Beaulieu, had invoked the Fifth Amendment in the high-profile criminal case against Dwayne “Butta” Winans and Bryson Tuesno, exercising his right against self-incrimination. The next day, the Justice Department granted him immunity.

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But McMahon had allegedly threatened to prosecute Beaulieu for perjury if he refused to testify in a way that exactly matched what the FBI said he told agents previously. Beaulieu again took the witness stand, and again he refused to testify.

“I can’t state — I can’t speak what really happened. It’s not going to happen,” he said.

U.S. District Chief Judge Nannette Jolivette Brown then ordered up the contempt charge against Beaulieu, a jury convicted him after a trial in February 2019 that wrapped up in three hours, and Brown sentenced him to two years in federal prison.

A three-judge panel of the U.S. Fifth Circuit Court of Appeals on Monday threw out Beaulieu’s conviction. The panel also slammed Brown for letting McMahon run roughshod during the trial.

“The magnitude of (prosecutor) McMahon’s misconduct, within the specific context of this trial, was overwhelming,” the appeals court panel found, noting that Strasser’s office had conceded prosecutorial misconduct on McMahon’s part in the case.

“From the beginning of the opening statement to the end of the closing argument … McMahon’s inappropriate remarks touched almost every part of these proceedings. And the district judge did little to intervene or offer cautionary instructions,” the court found.

The panel consisted of Circuit Judges Andrew Oldham, Jacques Wiener, and Kurt Engelhardt, the latter a former district judge in New Orleans who uncorked a scathing critique of federal prosecutors in overturning the convictions of five police officers in the Danziger Bridge shooting case. Engelhardt and Oldham were nominated to the bench by President Donald Trump, while Wiener was nominated by President George H.W. Bush.

Strasser declined to comment on the case, saying he was personally recused from it, because a former law partner had represented Beaulieu.

A spokesman for the office confirmed Strasser’s recusal.

“We respect the decision of the 5th Circuit and are reviewing the opinion at this time,” said the spokesman, Shane Jones.

McMahon on Tuesday noted that he had gotten crosswise with Strasser in other ways and dismissed the office’s concession to his alleged misconduct as retaliation — regardless of Strasser’s purported status on the sidelines.

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He called the accusations that he committed prosecutorial misconduct “almost Kafkaesque, crazy s–t,” and said it “smacks of their breaking it off against me.”

The admission by Strasser’s office was contained in a court brief filed in February, after McMahon’s departure.

“What do you have to lose? I’m gone,” he added. “Prosecutors don’t like to concede prosecutorial misconduct. That’s a serious thing that would have to come from Strasser … because he hates my guts.”

He said Beaulieu’s attorney lied about the alleged threat in the first place, leading to a charade of an appeal.

“What I told him is that if he committed perjury, then he would be prosecuted. Absolutely. But I never said ‘if he deviates one bit,’ because I know perjury has to be a material deviation,” he said. “I never said that. I’ll sign an affidavit in blood to that effect.”

Federal Public Defender Claude Kelly declined to comment on the ruling. The appeal that Kelly and assistant Celia Rhoads filed in Beaulieu’s case accused McMahon of additional misconduct that the appeals court did not address.

They also argued that Brown, the judge, failed to intervene.

“This culminated in a wild contempt trial, in which one of the two witnesses to the central factual disputes served as both the prosecutor and testified to his version of events from counsel’s table,” they argued in Beaulieu’s appeal brief.

McMahon in December became the latest senior prosecutor in the New Orleans U.S. Attorney’s office to retire under controversy, in the wake of comments he made last year to The Times-Picayune | New Orleans Advocate that he admitted were in violation of office policy.

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In that interview, McMahon said Strasser had personally assigned him the job of leading a grand jury investigation into the 2005 death of Joey Georgusis, the 23-year-old son of Joe Georgusis, a wealthy former client of Strasser from Strasser’s time in private practice.

McMahon’s remarks ran counter to Strasser’s contention that he had recused himself entirely and had no involvement in any matter related to Joey Georgusis’ untimely death. They also violated office rules about speaking to the press.

After he left, McMahon said he’d been subject to increased supervision under Strasser, who referred McMahon to an office in Washington, D.C., that metes out discipline to Justice Department employees.

“I think I was unfairly treated, given my track record, in that Strasser imposed conditions on me that were humiliating and I wouldn’t abide by, so it was time to go,” McMahon said shortly after he retired.

Strasser declined to discuss McMahon’s retirement at the time, referring only to an office-wide email that he sent out, with best wishes for McMahon on a “remarkable” and “storied” career.

The appeals court decision on Monday said McMahon shouldn’t have been allowed to prosecute the contempt case against Beaulieu at all.

The three-judge panel found Beaulieu had a plausible reason to waver: An alleged threat from McMahon to follow the FBI’s account, one that Beaulieu claimed was false on multiple parts.

Beaulieu’s attorney as a witness, Cynthia Cimino, said McMahon “stated that Mr. Beaulieu would be prosecuted to the full extent of the law if his trial testimony differed in any way from an FBI agent’s 302 memorandum related to a prior interview of Mr. Beaulieu,” Cimino claimed.

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In testimony, Cimino said she asked McMahon what he would do if Beaulieu “testified a little bit differently” from the FBI account and that he responded that “he would prosecute him to the full extent of the law.”

Beaulieu’s decision to again remain silent on the witness stand was built on fear, she said.

It was McMahon who cross-examined Cimino during Beaulieu’s trial on the criminal contempt of court charge, where the appeals court found that the prosecutor went over the line.

“When I asked you specifically if he testified any differently at all from what was in the agent’s 302, you unequivocally told me that you would prosecute him to the full extent of the law, and that is what I communicated to my client,” Cimino told him.

“I never said any discrepancy, did I?” McMahon responded.

“Yes, you did,” she said.

“Do you think I’m as dumb as I look?” McMahon answered. “You don’t think I know the law of perjury?

In his opinion, Oldham chided McMahon for an inappropriate attempt to appeal to jurors by urging them to convict Beaulieu because not doing so would “disrespect or dishonor a chief federal district court judge.”

The appeals court found it “impossible to separate AUSA McMahon’s misconduct from the other evidence against Beaulieu. In fact, we cannot separate AUSA McMahon’s existence as the Government’s prosecutor from the other evidence against Beaulieu.”

The court found that “if AUSA McMahon did in fact threaten to prosecute Beaulieu for correcting factual errors in the 302 memorandum, then the jury could reasonably determine that Beaulieu’s refusal to testify in response to that threat was an understandable and good-faith effort to avoid perjury, not a willful violation of a court order.”

Published at Tue, 01 Sep 2020 15:42:00 +0000

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