United States v. Brown

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________

No. 01-30173
_____________________________________

UNITED STATES of America,

Plaintiff-Appellee,

v.

James Harvey BROWN,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court
For the Middle District of Louisiana

__________________________________________________

August 23, 2002

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

James Harvey Brown appeals his convictions for making false

statements to the FBI in violation of 18 U.S.C. § 1001 on

numerous grounds. Because we conclude that any error that the

district court may have committed was harmless under the

circumstances, we affirm Brown’s convictions.

I.

This appeal arises out of a federal prosecution of former

Louisiana Governor Edwin Edwards, Louisiana Insurance
Commissioner James Harvey “Jim” Brown (“Brown”), and attorney

Ronald Weems for allegedly engaging in a scheme of public

corruption. The government charged that the three defendants

committed federal crimes in connection with a ‘sham settlement’

that derailed a $27 million lawsuit threatened by the State of

Louisiana against David Disiere, president of Cascade Insurance

Company (“Cascade”), a failed automobile insurance carrier.1 The

indictment charged numerous counts of conspiracy, mail and wire

fraud, insurance fraud, witness tampering, and making false

statements.2

The FBI became aware of Brown’s involvement in the Cascade

matter from conversations recorded through electronic

surveillance of Edwards’ home and office. The FBI recorded

various conversations between Brown and Edwards about Cascade and

Disiere. As a result, in May 1997, FBI agents Harry Burton and

David Lyons interviewed Brown to ascertain his knowledge of and

involvement in the Cascade matter. Brown’s attorney, Bradley

Myers, was also present at the interview. The interview was not

1
See United States v. Brown, 218 F.3d 415, 418 (5th Cir.
2000).
2
The Cascade trial at issue in this appeal was the second
of three federal prosecutions involving former Governor Edwards.
In the first trial, Edwards and several other defendants were
convicted of charges based on bribery to obtain a riverboat
gambling license. In the third trial, also involving bribery
allegations, the jury convicted Cecil Brown on seven out of nine
counts. Edwards was an unindicted co-conspirator in that case and
testified as a witness for Brown. See United States v. Brown, 250
F.3d 907, 910 (5th Cir. 2001).

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recorded, but Burton took notes by hand. Burton claims that,

during the interview, Brown denied discussing the Cascade matter

with Edwards and denied having knowledge of any “settlement

issues” involving Cascade. The interview took place on a Friday.

The following Monday, Burton, using his notes, prepared a 302

report, recording the substance of his interview with Brown. The

parties agree that all FBI procedures were followed in preparing

the report. Both Agents Burton and Lyons initialed the report,

indicating their belief that the 302 was an accurate record of

the interview.

This case was originally assigned to Judge Polozola,

District Judge for the Middle District of Louisiana. In March

2000, Judge Polozola issued an order denying Brown’s discovery

request for production of Agent Burton’s hand-written notes of

his interview of Brown. However, in July 2000, all the judges in

the Middle District recused themselves, and the case was promptly

assigned to Judge Clement, then a district judge for the Eastern

District of Louisiana. Judge Clement issued several pre-trial

orders in which: (1) agreeing with Judge Polozola, she denied

production of Burton’s notes; (2) she ordered an anonymous jury;

and (3) she admitted evidence procured from electronic

surveillance of Edwards’ home and office. With respect to Agent

Burton’s hand-written notes, Judge Clement reviewed the notes in

camera and determined that the 302 report already disclosed to

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the defense accurately reflected the information contained in the

notes. Accordingly, the court denied the defense’s request for

production of the notes.

Trial began in September 2000. At trial, Burton testified

about his interview of Brown during his investigation into the

Cascade settlement. Burton used his 302 to refresh his memory,

but the 302 was not admitted into evidence. The defense had

access to the 302, but in accordance with the district court’s

pre-trial order, not Burton’s hand-written notes.

Edwards and Weems were acquitted of all charges. Brown was

acquitted on most counts, but was found guilty on seven counts of

making false statements to Agent Burton in violation of 18 U.S.C.

§ 1001. In January 2001, the district court issued a 58-page

ruling on Brown’s pending post-trial motions, acquitting him of

two of the false statement convictions but upholding the others,

and again denying Brown’s request to compel production of Agent

Burton’s notes. Brown was sentenced to six months’ imprisonment

on each count to be served concurrently.3

Brown now appeals on several grounds: (1) that the district

court erred in not compelling the production of Burton’s hand-

written notes; (2) that the district court abused its discretion

in limiting cross-examination of Burton regarding the notes and

3
Brown also was sentenced to two years of supervised
release on each count to be served concurrently after imprisonment
and fined $10,000 for each count, for a total fine of $50,000.

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in issuing an instruction concerning the absence of the notes;

(3) that the district court abused its discretion in excluding

the testimony of C.J. Blache, a witness the defense hoped would

call into question Burton’s ability to produce accurate 302

reports; (4) that the evidence was insufficient to support the

conviction on Count 51; (5) that the district court abused its

discretion in ordering an anonymous jury; and finally (6) that

the district court erred in admitting evidence procured from

electronic surveillance of Edwards’ home and office. We discuss

each of Brown’s arguments in turn below.

II.

Brown first argues that the district court erred in refusing

to order the government to disclose Burton’s handwritten

interview notes. Brown contends that he was entitled to the

notes as a matter of law under Federal Rules of Criminal

Procedure 16(a)(1)(A) and (a)(1)(C) and the Jencks Act, 18 U.S.C.

§ 3500. Brown also asserts that nondisclosure of the notes

denied him the right to a fair trial in violation of Brady v.

Maryland,4 because alleged discrepancies between Burton’s notes

and the 302 were material to Brown’s defense theory that Burton

had manufactured the false statement charges against Brown. For

these reasons, Brown argues that he is entitled to a new trial.

We address each of these issues below.

4
373 U.S. 83 (1963).

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 A.

Brown first contends that he was entitled to Agent Burton’s

interview notes as a matter of law under Federal Rule of Criminal

Procedure 16(a)(1)(A). We review the district court’s

interpretation of Rule 16(a)(1) de novo, but its decision to

withhold the notes only for abuse of discretion.5

Rule 16(a)(1)(A) provides, in relevant part:

Upon request of a defendant the government must disclose to
the defendant and make available for inspection, copying, or
photographing: any relevant written or recorded statements
made by the defendant, or copies thereof, within the
possession, custody, or control of the government, the
existence which is known, or by the exercise of due
diligence may become known, to the attorney for the
government; that portion of any written record containing
the substance of any relevant oral statement made by the
defendant whether before or after arrest in response to
interrogation by any person then known to the defendant to
be a government agent . . . .6

The Seventh Circuit considered a case similar to the one at

hand in United States v. Muhammad.7 In that case, the defendant,

Muhammad, was convicted of obstruction of justice and bribery.8

Muhammad was serving as a juror in an unrelated case when he

offered to sway fellow jurors to rule in favor of a party in the

5
See United States v. Ross, 511 F.2d 757, 762 (5th Cir.
1975).
6
Fed. R. Crim. P. 16(a)(1)(A) (emphasis added).
7
120 F.3d 688, 699 (7th Cir. 1997).
8
Id. at 692.

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case in exchange for money.9 In an interview with two FBI

agents, Muhammad allegedly confessed that he committed the

crime.10 At trial, one of the agents testified that he witnessed

Muhammad’s confession during the interview, using the 302 report

prepared by the other agent to refresh her recollection.11 The

government disclosed the 302, but not the handwritten interview

notes used to prepare the 302. The defendant sought disclosure

of the notes.12 The district court reviewed the agent’s notes,

found that the 302 report was a faithful summary of the notes,

and refused to order disclosure.13

The Seventh Circuit affirmed.14 The court held that a

criminal defendant “is not entitled to an agent’s notes if the

agent’s report contains all that was in the original notes.”15

The court noted that the district court found no inconsistencies

between the 302 and the interview notes and that the defendant

had access to the 302 for use in cross-examination.16 The

9
Id. at 691-92.
10
Id. at 692.
11
Id. at 698.
12
Id.
13
Id. at 699.
14
Id.
15
Id.
16
Id.

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Seventh Circuit has since stressed that Rule 16(a)(1)(A) does not

require disclosure of an agent’s notes even where there are

“minor discrepancies” between the notes and the disclosed 302.17

We agree. Rule 16(a)(1)(A) does not grant a criminal

defendant a right to preparatory interview notes where the

content of those notes have been accurately captured in a type-

written report, such as a 302, that has been disclosed to the

defendant. The government satisfies its obligation under the

Rule when it discloses a 302 report that contains all of the

information contained in the interview notes. We therefore

reject Brown’s contention that Rule 16(a)(1)(A) entitles a

criminal defendant to preparatory interview notes in every

case.18

17
United States v. Coe, 220 F.3d 573, 583 (7th Cir. 2000)
(holding that the district court did not abuse its discretion in
refusing to order the disclosure of handwritten interview notes
where the government had disclosed a type-written report that
accurately summarized the notes).
18
Brown also asserts that the 1991 amendment to Rule
16(a)(1)(A) bolsters his position that he is entitled to Burton’s
notes as a matter of law. We disagree. The 1991 Amendment to Rule
16(a)(1)(A) broadened the scope of the Rule by requiring disclosure
to criminal defendants of statements “without regard to whether the
prosecution intends to use the statement at trial.” Fed. R. Crim.
P. 16 advisory committee’s note. In contrast, the pre-1991 Rule
required disclosure of records only of those statements “which the
government intend[ed] to offer in evidence at the trial.” Fed. R.
Crim. P. 16(a)(1)(A) (1991). The purpose of the 1991 amendment,
therefore, was merely to require full disclosure of every statement
of the defendant, regardless of whether the government intended to
use the statement at trial. It follows that Brown’s assertion that
the 1991 amendment significantly changed the types of records that
must be disclosed is incorrect.

-8-
 Moreover, as we discuss in detail in Part II.D. of this

opinion, in this case, Burton’s notes are substantially identical

to the 302 report that was disclosed to Brown with respect to all

counts of which Brown was convicted, with the possible exception

of Count 50.19 For the reasons given in that section of the

opinion, however, even assuming that the difference between the

notes and the 302 with respect to Count 50 is significant, we

conclude that any error that the district court may have

committed in that regard was harmless in light of Brown’s own

trial testimony.20

B.

Brown next argues that he was entitled to disclosure of the

notes as a matter of law under Federal Rule of Criminal Procedure

16(a)(1)(C). This court reviews a district court’s order not to

disclose material under Rule 16(a)(1)(C) for abuse of

discretion.21 Rule 16(a)(1)(C) requires production of documents

19
We engage in a detailed comparison of Agent Burton’s
notes and the 302 in Part II.D. of this opinion, in which we
address Brown’s claims under Brady v. Maryland, 373 U.S. 83 (1963).
20
See United States v. Kimbrough, 69 F.3d 723, 731 (5th
Cir. 1995) (holding that “any prejudice or technical violation of
Rule 16 is insufficient to comprise a deprivation of [the
defendant’s] constitutional rights” and therefore, upholding his
conviction); United States v. Manetta, 551 F.2d 1352, 1356 (5th
Cir. 1977) (holding that violation of Rule 16 in that case was not
harmless error).
21
See United States v. Luffred, 911 F.2d 1011, 1015 (5th
Cir. 1990).

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that are “material to the preparation of the defense.”22

We reject Brown’s assertion that Rule 16(a)(1)(C) requires

production of preparatory interview notes in every case.

Preparatory notes are not always, as Brown argues, material to

the defense. Rather, we hold that the government fulfills the

requirements of Rule 16(a)(1)(C) when it discloses to the

defendant a 302 report that accurately reflects the contents of

the interviewer’s rough notes. In such cases, the notes are not

“material” to the defense. Therefore, Rule 16(a)(1)(C) does not,

as Brown maintains, entitle him to production of the notes

without regard to the accuracy of the 302 that the government

disclosed to the defense.

As explained in Part II.D. of this opinion, Burton’s notes

are completely consistent with the 302 that was disclosed to

Brown in all respects, except possibly Count 50. For the same

reasons given in that section of the opinion, we hold that any

error the district court may have committed in this respect was

harmless.23

C.

Brown also argues that he was entitled to disclosure of

22
See id. (holding that the district court did not abuse
its discretion in refusing to order production of government files
under Rule 16(a)(1)(C)).
23
See Kimbrough, 69 F.3d at 731.

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Burton’s notes as a matter of law under the Jencks Act.24 This

court reviews the district court’s determination that the notes

do not constitute a “statement” requiring disclosure under the

Jencks Act for clear error.25

The Jencks Act requires the government “to produce any

statement (as hereinafter defined) of the witness in the

possession of the United States which relates to the subject

matter as to which the witness has testified.”26 A “statement”

includes “a written statement made by said witness and signed or

otherwise adopted or approved by him.”27 The Act entitles a

criminal defendant to “relevant and competent reports and

statements in the possession of the Government touching the

events and activities as to which a Government witness has

testified at the trial.”28 Brown argues that the notes are a

“statement” of Burton, a testifying witness, and therefore, he is

entitled to them under the Jencks Act.

In United States v. Martin,29 the defendant, Martin, was

24
18 U.S.C. § 3500 (2002).
25
See United States v. Martinez, 87 F.3d 731, 734 (5th Cir.
1996).
26
18 U.S.C. § 3500(b).
27
18 U.S.C. § 3500(e)(1).
28
Goldberg v. United States, 425 U.S. 94, 104 (1976)
(quoting S. Rep. No. 981, 85th Cong. 3 (1957)) (internal quotation
marks omitted).
29
565 F.2d 362, 363 (5th Cir. 1978).

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convicted of interstate transportation of a stolen motor vehicle.

An FBI agent testified that Martin confessed during an interview

that he knew the vehicle was stolen and made other incriminating

statements.30 The defendant, however, denied that he made any of

these statements.31 After the agent testified, the government

gave the defense copies of 302 reports that summarized the

agent’s description of the interview, but did not disclose the

agent’s rough interview notes because the agent had destroyed

them according to then-accepted FBI procedures.32 The defense

argued that destruction of the agent’s notes violated the Jencks

Act and entitled him to a new trial.33

This court held that there was no Jencks Act violation.34

We stated that “[n]othing in the Jencks Act requires that notes

made in the course of an investigation be preserved after the

notes have served their purpose of assisting in the preparation

of interview reports.”35

30
Id.
31
Id.
32
Id.
33
Id.
34
Id. at 363-64.
35
Id. (quoting United States v. Pacheco, 489 F.2d 554, 566
(5th Cir. 1974)) (internal quotation marks omitted); See also
United States v. Ramirez, 954 F.2d 1035, 1038-39 (5th Cir. 1992)
(holding that agent’s rough notes were not statements under the
Jencks Act where notes were scattered and all the information
contained in them was available to the defendant in other forms).

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 Although this reasoning likely extends to the present case,

we need not decide this issue because we conclude that even if

the district court violated the Jencks Act in this case, such

error was harmless.36 As we discuss in detail in Part II.D. of

this opinion, Burton’s notes are identical to the 302 in all key

respects, with the possible exception of Count 50. As explained

in that section, however, any discrepancy between the notes and

the 302 in that regard is completely irrelevant in light of

Brown’s trial testimony. Thus, we reject Brown’s argument on

this issue.

D.

Finally, Brown argues that nondisclosure of the notes

violated his due process rights under Brady v. Maryland.37 Under

Brady, the government’s failure to disclose evidence to the

defense violates the defendant’s due process rights where the

evidence is (1) favorable to the defense; and (2) material to

guilt or punishment.38 Materiality is present if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

36
See United States v. Ramirez, 174 F.3d 584, 587 (5th Cir.
1999) (“Even when a violation [of the Jencks Act] is found, the
failure to produce prior statements is subject to a harmless error
analysis.”); United States v. Sink, 586 F.2d 1041, 1050-51 (5th
Cir. 1978).
37
373 U.S. 83, 87 (1963).
38
Id.; see also East v. Johnson, 123 F.3d 235, 237 (5th
Cir. 1997).

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different.39 A “reasonable probability” exists when suppression

of the evidence “undermines confidence in the outcome of the

trial.”40 “The question is not whether the defendant would more

likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence.”41

Brown maintains that he did not receive a fair trial because

production of Burton’s notes was essential to his defense theory

that Burton manufactured the false statement charges against him.

Brown asserts that post-trial release of the notes reveals

significant discrepancies between Burton’s notes and the 302.

Pointing out these discrepancies to the jury, he contends, would

have greatly bolstered his defense.

After conducting in camera review of Burton’s notes, the

district court compared the notes to the 302 in painstaking

detail in its January 2001 order on Brown’s post-trial motions.42

The district court found that “the rough notes and the 302

contain no discrepancies that would have aided Mr. Brown’s

39
See United States v. Bagley, 473 U.S. 667, 682 (1985).
40
Id. at 678.
41
Kyles v. Whitley, 514 U.S. 419, 434 (1994).
42
R. at 2459-64.

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defense.”43 The court further found that the defense was able to

attack successfully on cross-examination “Burton’s ability to

write things down correctly in his notes or to copy things

correctly from his notes to his 302.”44

After a complete review of the record, we agree. With the

possible exception of Count 50, Burton’s notes are nearly

identical to the 302 to which Brown had access with respect to

every one of Brown’s false statement convictions. We set out in

some detail below our reasons for the above conclusion by

comparing Burton’s notes to the 302 with respect to each of

Brown’s five false statement convictions, turning first to Counts

48, 51, 54, and 55, and reserving discussion of Count 50 for

last.

COUNT 48:

• The Indictment Charges:

BROWN falsely stated he had never had any specific
discussions with RONALD R. WEEMS, an attorney for Disiere,
concerning settlement issues associated with Cascade
Insurance Company when in truth and in fact BROWN well knew
that he had conversations with WEEMS concerning settlement
issues involving the Cascade Insurance Company.45

• The 302 States:

To a direct question, BROWN indicated a knowledge that
RON WEEMS was associated with the CASCADE INSURANCE COMPANY
as its Attorney of Record. He advised, however, he never

43
R. at 2459.
44
R. at 2456 (emphasis in original).
45
Ind. at 46.

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had any specific discussions with RON WEEMS concerning
settlement issues associated with CASCADE.

WEEMS would come to the department on a number of
occasions, usually to meet with KIP WALL, and on occasion
would peek in and say hello to BROWN. BROWN however had no
specific discussion with WEEMS concerning the efforts of
CASCADE INSURANCE COMPANY to settle the matter, nor did
BROWN he [sic] reach any agreement with WEEMS on the
settlement of the matter, as he had nothing to do with the
negotiations and settlement of the issues against CASCADE
INSURANCE COMPANY.46

. . . .

To a direct question, BROWN indicated that he never had
any specific conversation with RON WEEMES [sic] with regard
to the CASCADE matter and more particularly, never discussed
with WEEMES [sic] anything concerning specific negotiations
to settle the matter.

WEEMS would come by his office on occasion and they
would discuss a number of things, to include other clients
and other matters, and there was never any specific
discussions of what it would take to resolve the litigation
against DAVID DISIERE.

JOE CAGE on occasion came with RON WEEMS to the
department. BROWN did not recall any “one, two, three, . .
. concerning what it would take to settle the case.”47

• Burton’s Notes State:

Weems – come to see he and Kip Wall.
Peek in and say hello.48

. . . .

Weems – Did he talk with him – “specific
negotiations” –
Would come by – discuss lots of things
– other clients, other matters,

46
Burton’s Form 302 at 4-5.
47
Burton’s Form 302 at 7.
48
Burton’s Interview Notes at 2.

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 No specific discussion
No specific negotiations

Cage with Weems – Don’t recall any
one, two three . . . concerning what it
would take to settle the case.49

COUNT 51:

• The Indictment Charges:

BROWN falsely stated that he met with EDWARDS at
EDWARDS’ office but the conversations only related to
political matters and he, BROWN, was delivering an
“innocuous” form to EDWARDS when in truth and in fact BROWN
well knew that he met with EDWARDS at EDWARDS’ office to
discuss more than political matters. In fact, BROWN
specifically discussed strategical issues involving David
Disiere and the Cascade Estate.50

• The 302 States:

To a specific question, BROWN indicated that he has met
with EDWIN EDWARDS before, at EDWARDS’ office.

He specifically indicated that on one occasion, EDWARDS
asked him to bring a “form” by for EDWARDS. BROWN was going
to his wife’s restaurant and it was close to EDWARDS’
office, so he indicated to EDWARDS he would bring the form
by and visit with him.

To a direct question, BROWN indicated that the form had
nothing to do with CASCADE INSURANCE COMPANY, or any actions
involving DAVID DISIERE.

His conversation with EDWARDS in the office related to
political matters and what was going on in State Government
and it had nothing to do with CASCADE INSURANCE COMPANY or
DAVID DISIERE.

He didn’t even recall what the form was but
characterized it as “somewhat innocuous.”51

49
Burton’s Interview Notes at 6-7.
50
Ind. at 46.
51
Burton’s Form 302 at 8.

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• Burton’s Notes State:

E/E – asked for a form – was going out
to his wife’s restaurant –
Leadership challenge – but nothing
to do with this matter

Form – ? – “somewhat innocuous.”52

COUNT 54:

• The Indictment Charges:

BROWN falsely stated he had “no conversation with
anyone about an amount of settlement” concerning the Cascade
Insurance Company matter when in truth and in fact BROWN
well knew he had conversations with several people about
what it would take to settle the Cascade Insurance matter.53

• The 302 States:

BROWN “had no conversations with anyone about an amount
of settlement” concerning the CASCADE INSURANCE COMPANY
matter.

BROWN didn’t know when the settlement was made and
didn’t know how much the case was settled for.54

• Burton’s Notes State:

No conversation with anyone about any
amount of settlement.
Didn’t know then and doesn’t know
now the settlement amount.55

COUNT 55:
• The Indictment Charges:

BROWN falsely stated that he had never discussed
specifics of a settlement regarding Cascade Insurance

52
Burton’s Interview Notes at 7.
53
Ind. at 46.
54
Burton’s Form 302 at 9.
55
Burton’s Interview Notes at 8.

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 Company with Judge Sanders when in truth and in fact BROWN
well knew that he had discussed specifics of a settlement
regarding Cascade Insurance Company with Judge Sanders.56

• The 302 States:

BROWN never discussed with Judge SANDERS the specifics
of the settlement regarding CASCADE INSURANCE COMPANY.57

. . . .

Again, BROWN indicated that he had contact with SANDERS
from time to time; however, he never met with or discussed
with SANDERS the matter of DAVID DISIERE.58

• Burton’s Notes State:

Never discussed with Sanders the
specifics of the settlement.59

. . . .

Never met with Sanders re Disiere60

Based on this comparison, we are satisfied that Burton’s

notes do not constitute Brady material with respect to Counts 48,

51, 54, and 55. The notes are neither (1) favorable to the

defense; nor (2) material to Brown’s guilt or punishment as to

those counts.61 The 302 report to which Brown had access during

56
Ind. at 46.
57
Burton’s Form 302 at 9.
58
Burton’s Form 302 at 10.
59
Burton’s Interview Notes at 9.
60
Burton’s Interview Notes at 9.
61
See United States v. Martin, 565 F.2d 362, 364 (5th Cir.
1978) (holding that an FBI agent’s rough notes of an interview of
the defendant were not Brady material because there was no
independent showing that they contained evidence that was material

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the trial is almost identical to Burton’s rough interview notes.

If anything, disclosure of the notes would have supported the

accuracy of the 302 and corroborated Agent Burton’s testimony.

Moreover, we are not persuaded that Brown could have used the

notes in preparation of his defense any more effectively than the

virtually identical 302. Finally, given that Burton’s notes are

fully consistent with the 302, nondisclosure of the notes

certainly did not “undermine confidence in the outcome at trial.”

For these reasons, we conclude that Brown was not denied due

process under Brady with respect to Counts 48, 51, 54, and 55,

and therefore reject his Brady arguments with respect to those

counts.

We now compare Burton’s notes to the 302 as to the more

problematic Count 50.

COUNT 50

• The Indictment Charges:

BROWN falsely stated that although he knew EDWARDS was
representing Disiere in some way, he never had any
discussions with EDWARDS concerning settlement issues or
what it would take to settle the matter between the Estate
of Cascade Insurance Company and David Disiere when in truth
and in fact BROWN well knew he had discussions with EDWARDS
concerning settlement issues involving the Cascade Estate
and David Disiere.62

• The 302 States:

BROWN believed that EDWIN EDWARDS was linked to the

to the defendant’s guilt or innocence).
62
Ind. at 46.

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settlement issues in some way.

BROWN recalled receiving a telephone call from EDWIN
EDWARDS, who indicated that he had been hired by DISIERE to
try and resolve the outstanding issues of CASCADE, and had
been placed on what BROWN recalled was a $10,000 retainer.

He characterized EDWIN EDWARDS as an “advisor to
CASCADE and DISIERE,” but did not know EDWARD’s [sic]
specific role in the settlement process.

His conversation with EDWIN EDWARDS was a request for
BROWN to provide EDWARDS with some background information
concerning CASCADE, the suit against CASCADE, and the
outstanding litigation.63

. . . .

With regard to EDWIN EDWARDS’ part in the litigation,
no one ever told him why they hired EDWIN EDWARDS, but it
was his recollection that EDWARDS indicated to him that he
had been hired to try and resolve the matter.64

. . . .

EDWIN EDWARDS called BROWN on several occasions.
Again, the initial call concerning CASCADE INSURANCE COMPANY
was to inform him of the fact that he had been hired to help
resolve the matter and EDWARDS merely wanted some background
information concerning CASCADE INSURANCE COMPANY and DAVID
DISIERE. EDWARDS may have asked him for information
concerning the lawsuit that was filed by WEEMS against Judge
SANDERS; however, there was never any discussion with
EDWARDS concerning settlement issues or what it would take
to settle the matter.

BROWN indicated that any decision with regard to
settlement was that of Judge SANDERS, and BROWN would have
no authority, and the judge would make the final decision
regarding any litigation or settlement in the matter.65

. . . .

63
Burton’s Form 302 at 6-7.
64
Burton’s Form 302 at 7.
65
Burton’s Form 302 at 7-8 (emphasis added).

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 With regard to EDWIN EDWARDS, BROWN believed that
EDWARDS was paid a $10,000 retainer fee “to bring this thing
to and [sic] end,” however BROWN didn’t specifically know
what role EDWIN EDWARDS had in bringing it to an end.

BROWN indicated that we would have to ask ED GONZALES
about that, as he was the center of the suit and the
settlement and BROWN didn’t know whether GONZALES was a
friend of EDWARDS.66

• Burton’s Notes State:

Edwin Edwards
[line drawn to connect]
In some way connected – or when he came
in, but advisor to Cascade + Disiere
Don’t know his role67

. . . .

They never told him why they hired him

Was aware of Edwards being a part of the
team hired to try to resolve this matter68

. . . .

Edwin Edwards – called Brown on several
occasions–
–Wanted Background – re case –
–More on lawsuit – confrontation with
Weems – also

Decision that Judge would make –
He would have no authority + Judge
would make the final decision.69

. . . .

E/E 10,000.00 retainer fee to bring this thing

66
Burton’s Form 302 at 11.
67
Burton’s Interview Notes at 5.
68
Burton’s Interview Notes at 6.
69
Burton’s Interview Notes at 7.

-22-
 to an end.

Don’t know what role E/E had in
bringing it to an end –
Have to ask Gonzales – He was in the
center of the lawsuit and the settlement
Don’t know if he is a friend of Edwards70

Count 50 charges Brown with falsely stating to Burton that

“he never had any discussions with EDWARDS concerning settlement

issues or what it would take to settle the [Cascade] matter.”71

Similarly, the 302 states that Brown stated that “there was never

any discussion with EDWARDS concerning settlement issues or what

it would take to settle the matter.”72 However, there is no

corresponding statement to that effect in the notes.

Nevertheless, even if this discrepancy is sufficient to

entitle Brown to the notes under Brady, which we do not decide,

we hold that any error the district court may have committed in

refusing to compel production of the notes as to Count 50 was

harmless. Brady is based partly on a defendant’s need to know

any exculpatory evidence, and holds that suppression of requested

information favorable to an accused violates due process.73

However, Brady “is limited by the harmless error rule, and does

70
Burton’s Interview Notes at 11 (emphasis in original).
71
Ind. at 46.
72
Burton’s Form 302 at 8.
73
See Brady v. Maryland, 373 U.S. 83, 87-88 (1963); see
also United States v. Garcia, 917 F.2d 1370, 1375 (5th Cir. 1990);
United States v. Cochran, 697 F.2d 600, 607 (5th Cir. 1983).

-23-
not compel reversal when the defense was able to adequately

prepare his case.”74

As to Count 50, Brown attempts to persuade this court that a

swearing match took place at trial between Agent Burton and

himself as to whether Brown actually made the statement at issue.

Our review of the record indicates otherwise. On direct

examination, defense counsel asked Brown, “[D]id you talk to

Edwin Edwards about the settlement issues?”75 Brown responded,

“I never did because I didn’t know the settlement issues.”76

Brown then explained that he understood Burton’s question to be

whether Brown had talked with Edwards about the final settlement

that was ultimately reached in the Cascade matter.77 Brown’s

defense was not that he never made this statement to Agent

Burton, but that his negative answer to Burton’s question, viewed

in this light, was true. The jury heard this testimony and

rejected it. The notes do not make Brown’s alleged

interpretation of Burton’s question any more probable.

Therefore, we hold that any error the district court may have

committed in refusing to order production of the notes as to

Count 50 was harmless.

74
Garcia, 917 F.2d at 1375; see also Cochran, 697 F.2d at
607.
75
R. at 2550.
76
Id.
77
Id.

-24-
 III.

Brown next argues that the district court violated his

rights under the Confrontation Clause of the Sixth Amendment by

refusing to allow the defense to question Agent Burton about the

contents of his notes and by offering jury instructions as to why

the notes were not before the jury. Limitations on the scope and

extent of cross-examination are reviewed for abuse of

discretion.78

As discussed above, Agent Burton testified at trial about

his interview of Brown. Burton used his 302 to refresh his

memory, but the 302 was not admitted into evidence. On cross-

examination, Brown’s attorney extensively questioned Burton about

his procedures for recording interviews, including his note-

taking procedures and preparation of 302 reports.

Defense counsel then asked Burton where his notes were,

knowing they were with the court.79 The government objected, and

the district court again sustained the objection. A side-bar

followed, at which defense counsel informed the court that he

wanted it to instruct the jury that he did not have the notes

because the court had ruled that the defense was not entitled to

them.80 Brown’s counsel explained that he thought that “the jury

78
See United States v. Sudderth, 681 F.2d 990, 996 (5th
Cir. 1982).
79
R. at 1604-05.
80
R. at 1606-08.

-25-
ought to understand I don’t have the notes and can’t show them to

[Agent Burton].”81 Accordingly, the district court instructed

the jury:

Ladies and Gentlemen, before trial, we had a pretrial motion
in limine as to whether handwritten notes that are recorded
contemporaneously with the F.B.I. interview are something
that needs to go to the defense lawyers, and the law in this
circuit is they do not because what they get is the finished
product, the typed product. In some cases the Court is
asked to determine whether the typed, finished product is
accurate based on the handwritten notes, and that procedure
was followed before this trial. The notes were never made
available to defense counsel, so he cannot present them to
you or use them to cross-examine this witness with. He
asked me to explain that procedure to you.82

Brown’s counsel moved for a mistrial on the ground that, by so

instructing the jury, the district court had vouched for the

accuracy of the 302.83 The district court rejected the motion

for a mistrial.84 Brown’s counsel then requested that the court

give a curative instruction.85 As a result, the court instructed

the jury that:

[A]s to whether the 302 is accurate or whether I have
reviewed anything, my determination of anything is totally
irrelevant. I did not intend to tell you that [the 302] was
accurate because that is not within my province. You need
to determine the credibility of the witness . . . To the
extent that I told you anything contradictory to your job,

81
R. at 1606.
82
R. at 1609-10.
83
R. at 1621-22.
84
R. at 1624.
85
R. at 1624-25.

-26-
 please ignore that.86

Later in the cross-examination, defense counsel asked Burton

whether his handwritten notes contained specific statements that

Burton attributed to Brown in the 302. The government objected,

and the court upheld the objection, instructing counsel to

“[s]tick to the 302.”87

Brown contends that both the district court’s refusal to

allow the defense to examine Burton on the contents of his notes

and the district court’s instruction violated Brown’s rights

under the Confrontation Clause of the Sixth Amendment. Brown

maintains that the district court, by vouching for the accuracy

of the 302, went beyond instructing the jury, as he requested it

to do, that Brown did not have access to the notes. Brown also

argues that the court’s curative instruction was inadequate to

remove the “taint” of its earlier instruction.

The Sixth Amendment of the United States Constitution

guarantees criminal defendants “the right . . . to be confronted

with the witnesses against him.” This right is intended “to

secure for the opponent the opportunity of cross-examination.”88

Based on our review of the record, we are satisfied that the

district court’s limitation of Burton’s testimony and its

86
R. at 1625.
87
R. at 1651-52.
88
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (emphasis
omitted from original) (internal quotations omitted).

-27-
instruction as to the whereabouts of the notes did not violate

Brown’s Sixth Amendment rights. First, the district court

allowed Brown substantial leeway in questioning Burton on his

note-taking procedures and report preparation. As the district

court pointed out in its January 2001 post-trial order, Brown was

able to impeach Burton’s ability to record interviews accurately

by disparaging Burton’s command over articles (such as “an”

versus “the”) and his ability to write things down and copy

things correctly.89 In addition, we conclude that the district

court’s instruction accurately described the disclosure process,

as Brown requested, and did not improperly vouch for the accuracy

of the 302. Even assuming, arguendo, that the instruction stated

more than simply where the notes were, but also whether they

supported the 302, the court’s curative instruction adequately

cured any defect in the original instruction. For these reasons,

we hold that the district court did not abuse its discretion in

limiting Burton’s testimony or in instructing the jury on the

whereabouts of Burton’s notes.

IV.

Brown next asserts that the district court abused its

discretion by excluding the testimony of C.J. Blache, a witness

that the defense hoped would impeach Agent Burton’s ability to

produce accurate 302 reports. We review the district court’s

89
R. at 2456-58.

-28-
exclusion of evidence under an abuse of discretion standard.90

The defense argues that Blache would have testified that

another FBI agent, Karen Gardner, prepared a 302 report in an

earlier prosecution that had a number of errors in it. Agent

Gardner prepared the report from her notes, and Agent Burton

signed it. The defense maintains that Blache’s testimony would

have supported its theory that Burton does not prepare accurate

302 reports.

As an initial matter, we briefly address the government’s

position that Brown did not properly preserve this issue for

appeal because he did not present the district court with a

written proffer of Blache’s testimony. Federal Rule of Evidence

103(a)-(a)(2) provides that:

[e]rror may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected, and . . . [i]n case the ruling is one excluding
evidence, the substance of the evidence was made known to
the court by offer or was apparent from the context within
which questions were asked.91

An oral proffer may be sufficient to preserve an error for

appellate review.92

Based on our review of the record, we find that the defense

counsel provided the court with an adequate oral description of

90
See Carson v. Polley, 689 F.2d 562, 572 (5th Cir. 1982).
91
Fed. R. Evid. 103(a)-(a)(2).
92
See United States v. Gonzalez, 700 F.2d 196, 201 (5th
Cir. 1983).

-29-
Blache’s testimony. The district court definitively excluded the

testimony before counsel stated he would submit a written

proffer.93 As the Advisory Committee Notes to Rule 103 make

clear, “[w]hen the ruling is definitive, a renewed objection or

offer of proof at the time the evidence is to be offered is more

a formalism than a necessity.” Accordingly, this issue is

properly before us on appeal.

Turning to the merits, Blache’s testimony would have tended

to establish that Gardner prepared an inaccurate 302 in an

earlier, related case. Agent Burton did not author the report,

and his notes were not used in its preparation. Burton, a back-

up agent for purposes of that interview, signed the report after

Gardner prepared it from her notes. The district court did not

abuse its discretion in excluding Blache’s testimony as

irrelevant to the issue of how carefully Burton takes notes and

then uses those notes to prepare 302 reports.

V.

Brown next maintains that the government produced

insufficient evidence to support his conviction for making a

false statement under Count 51 of the indictment. Specifically,

Brown argues that the prosecution failed to establish that his

statement, even assuming it was false, was material to any

decision of the FBI. In reviewing the sufficiency of the

93
R. at 33-34.

-30-
evidence, this court must determine “whether a reasonable trier

of fact could find that the evidence establishes guilt beyond a

reasonable doubt.”94

As the Supreme Court explained in United States v. Gaudin,95

“‘materiality’ is an element of the offense that the Government

must prove.” To be “material,” the statement must have “a

natural tendency to influence, or [be] capable of influencing,

the decision of the decision-making body to which it was

addressed.”96 A conviction under 18 U.S.C. § 1001 must be

reversed if the evidence does not support a finding of

materiality beyond a reasonable doubt, even if it does establish

the falsity of the statement made.97

Count 51 of the indictment charges that “BROWN falsely

stated that he met with EDWARDS at EDWARDS’ office but the

conversations only related to political matters . . . . In fact,

BROWN specifically discussed strategical issues involving David

Disiere and the Cascade Estate.”98 Brown argues that this Count

charges him with lying about talking with Edwards about Cascade

in Edwards’ office only and that there was insufficient proof at

94
United States v. Davis, 752 F.2d 963, 968 (5th Cir. 1985)
(internal quotations omitted).
95
515 U.S. 506, 509 (1995).
96
Id. (internal citation omitted).
97
See id. at 511.
98
Ind. at 46.

-31-
trial to establish why the location of this conversation was

material to the FBI’s investigation.

The district court rejected Brown’s interpretation of Count

51 in its January 2001 post-trial order. The court explained

that:

the Court cannot accept Mr. Brown’s contention that the
focus of Agent Burton’s question was not whether Mr. Brown
had that particular long and involved conversation regarding
Cascade but rather whether “such a conversation took place
in Edwards’ office. In light of the tape recording and
Burton’s and Brown’s testimony, the jury readily could have
found that Mr. Brown attempted to distance himself from this
particular conversation, which reflected a detailed,
personal knowledge of, and involvement in, the Cascade
matter. . . . [T]here was sufficient evidence for the jury
to conclude that Brown had intentionally lied in order to
‘influence . . . the . . . decision[s] of Agent Burton by
distancing himself from this particular conversation, which,
by its detail, could have given investigators reason to
believe that he was a significant actor in a series of
events under criminal investigation.99

We agree with the district court that the jury was entitled

to conclude that the focus of Agent Burton’s question was not on

the location of Brown and Edwards but on whether a particular

conversation, identified by its time and location, took place.

Once the jury viewed the question in this light, the falsity of

the answer was obviously material to the investigation for the

reasons that the district court explained. Therefore, we hold

that there is sufficient evidence to support Brown’s conviction

on Count 51.

VI.

99
R. at 2468-69 (emphasis in original).

-32-
 Brown also contends that the district court abused its

discretion in ordering an anonymous jury. We review the district

court’s decision to empanel an anonymous jury for abuse of

discretion.100

This circuit first addressed the issue of anonymous jury

empanelment in United States v. Krout.101 In Krout, this court

held that an anonymous jury is constitutional “when there is

strong reason to believe the jury needs protection and the

district court takes reasonable precautions to minimize any

prejudicial effects on the defendant and to ensure that his

fundamental rights are protected.”102 This court then identified

several factors that may justify use of an anonymous jury:

(1)the defendants’ involvement in organized crime; (2) the
defendants’ participation in a group with the capacity to
harm jurors; (3) the defendants’ past attempts to interfere
with the judicial process or witnesses; (4) the potential
that, if convicted, the defendants will suffer a lengthy
incarceration and substantial monetary penalties; and, (5)
extensive publicity that could enhance the possibility that
jurors’ names would become public and expose them to
intimidation and harassment.103

None of these factors is dispositive; rather, the decision to

empanel an anonymous jury should be made on the totality of the

100
See United States v. Salvatore, 110 F.3d 1131, 1143 (5th
Cir. 1997).
101
66 F.3d 1420, 1426-28 (5th Cir. 1995).
102
Id. at 1427 (quoting United States v. Wong, 40 F.3d 1347,
1376 (2d Cir. 1994) (internal quotation marks omitted).
103
Id.

-33-
circumstances.104

In this case, the district court ordered an anonymous jury

in its August 10, 2000 order. The district court found that

three of the five Krout factors were present in this case.105

First, the court found that “several individuals in the case at

bar have already proven their ability to corrupt the legal

system.”106 The court noted that two co-conspirators indicted

with Brown plead guilty to witness tampering in connection with

the Cascade lawsuit.107 These facts, among others, the court

explained, raise concern that the defendants would attempt to

interfere with the judicial process or witnesses.108 Second, the

court observed that the defendants, if convicted, faced lengthy

sentences and massive fines.109 Finally, the court explained the

“enormous local and national publicity surrounding the case”

against a former state governor and the then-current Insurance

Commissioner militated in favor of ordering an anonymous jury.110

The court therefore ordered that the names, addresses, and places

104
See United States v. Branch, 91 F.3d 699, 724 (5th Cir.
1996).
105
R. at 1759-63.
106
R. at 1761.
107
R. at 1760-61.
108
R. at 1760-61.
109
R. at 1760.
110
R. at 1760.

-34-
of employment of the jurors be withheld. The court provided the

defendants with substantial information about the jurors “through

an extensive voir dire and an exhaustive 42-page juror

questionnaire.”111

In light of the unique circumstances of this case, the

district court reasonably concluded that three of the Krout

factors discussed above were present in this case.112

Furthermore, the court’s efforts to provide the defendants with

sufficient information on the jurors through extensive juror

questionnaires and voir dire adequately protected the defendants’

rights and permitted them to select a jury intelligently.

111
R. at 1762.
112
The district court’s reasoning with respect to the
presence of the fifth Krout factor is consistent with this court’s
decision in United States v. Brown. 218 F.3d 415, 429 (5th Cir.
2000). In that opinion, this court upheld the constitutionality of
the gag order that the district court placed on the parties and
lawyers in this case. Id. A panel of this court reasoned that:
[t]he enormous local and national publicity surrounding the
cases, the presence of three related trials, which created a
heightened and somewhat unique danger of tainting any one of
the three juries, as well as the parties’ self-proclaimed
willingness to use the press for their full advantage,
justified the district court’s conclusion that there was at
least a ‘substantial likelihood’ that allowing further extra-
judicial statements by the parties would materially prejudice
the court’s ability to conduct a fair trial.
Id.
In another ruling by this court in the present case, United
States v. Brown, 250 F.3d 907, 922 (5th Cir. 2000), this court
struck down as unconstitutional a portion of the district court’s
August 9, 2000 order forbidding the press to research independently
the identity of the jurors in this trial. However, the substantive
merits of the anonymous jury order were not at issue in that case.
Id.

-35-
Therefore, we conclude that the district court did not abuse its

discretion in ordering an anonymous jury.

VII.

Finally, Brown argues that the wiretap evidence obtained

from Edwards’ home and office was unlawful. The evidence upon

which the government relied at trial to prove the falsity of

Brown’s statements consisted primarily of taped conversations

between Brown and Edwards that were obtained through electronic

surveillance of Edwards’ home and office. Judge John Parker

authorized this surveillance in October and December 1996,

respectively.

At trial, the defendants jointly moved to suppress the

fruits of the surveillance on the grounds that (1) there was no

probable cause to support the warrants under Title III; and (2)

the government failed to minimize interceptions as required by 18

U.S.C. § 2515. In September 2000, the district court denied the

motion, basing its decision in part upon an earlier ruling by

Judge Polozola. Brown now raises on appeal the same objections

to the admissibility of the tapes.

A.

Brown’s first argument is that insufficient evidence was

presented in the warrant affidavit submitted to Judge Parker to

support the issuance of the warrants to wiretap Edwards’ home and

office. Brown asserts that the affidavits submitted to Judge

-36-
Parker were based on information provided by an informant that

the government knew to be untrustworthy and on conjectural

interpretations of taped conversations. Brown maintains that, at

the very least, he was entitled to a hearing to assess the basis

of these warrants under Franks v. Delaware.113

Two panels of this court have recently resolved this issue

in United States v. Brown114 and United States v. Edwards.115 In

those cases, this court upheld the same warrants at issue here.

In accordance with Edwards and Brown, we hold that there was

probable cause to sustain the issuance of the warrants.

B.

Brown next contends that the government violated its

statutory obligation under 18 U.S.C. § 2515 to minimize unrelated

interceptions. This issue is unique to the present appeal. This

court reviews the district court’s determination of the

reasonableness of minimization efforts for clear error.116

A brief overview of the FBI’s investigation of Edwin Edwards

is necessary to evaluate Brown’s minimization claims. The

government sought permission to tap Edwards’ phones based on

113
438 U.S. 154, 171-72 (1978).
114
No. 01-30771, 2002 U.S. App. LEXIS 14188, at *4-28 (5th
Cir. Aug. 9, 2002).
115
__ F.3d __ (5th Cir. August 23, 2002).
116
See United States v. Wilson, 77 F.3d 105, 112 (5th Cir.
1996).

-37-
allegations of bribery. One allegation was that Edwards was

receiving pay-offs from Texas businessmen who wanted to build and

operate a juvenile detention facility in Jena, Louisiana. The

named interceptees in connection with this alleged scheme were

Edwards, Cecil Brown, Kenneth Pitre, and Richard Stalder (then

Secretary of Louisiana’s Department of Corrections). Another

allegation was that Edwards had received bribes from other Texas

businessmen who sought approval to develop waste disposal sites

in Louisiana. Edwards, Cecil Brown, and Guy Thompson, an owner

of a Texas business under investigation, were named as

interceptees. A few days after the government initiated its

electronic surveillance of Edwards’ home telephone, the

government intercepted the first of several calls related to the

Cascade matter.117

Federal law “requir[es] electronic surveillance to ‘be

conducted in such a way as to minimize the interception of

communications not otherwise subject to interception.’”118 The

government’s efforts to minimize interception of non-pertinent

117
The government began electronic surveillance of Edwards’
home telephone on October 18, 1996. The government intercepted the
first Cascade-related calls on October 21, 1996. On December 17,
1996, Judge Parker granted the government’s application for
extension of the October 1996 warrant order to authorize
interception of Cascade-related conversations. The extension
application specifically named Brown as an interceptee. R. at
2139.
118
United States v. Bankston, 182 F.3d 296, 307 (5th Cir.
1999) (quoting 18 U.S.C. § 2518(5)), rev’d on other grounds, 531
U.S. 12 (2000).

-38-
conversations “must be ‘objectively reasonable’ in light of the

circumstances confronting the interceptor.”119 This court has set

forth a three-part test to determine whether the government’s

minimization efforts meet this standard: “(1) the nature and

scope of the criminal enterprise under investigation; (2) the

Government’s reasonable inferences of the character of a

conversation from the parties to it; and (3) the extent of

judicial supervision.”120

Although 18 U.S.C. § 2515 requires minimization, it does not

“require[] government agents to avoid intercepting all

nonrelevant conversations when conducting a wiretap

investigation.”121 On the contrary, the practical necessities of

conducting a wiretap may, in some circumstances, inevitably lead

to the interception of some conversations outside the scope of

the wiretap order:

[T]he only feasible approach to minimization is the gradual
development, during the execution of a particular wiretap
order, of categories of calls which most likely will not
produce information relevant to the investigation. . . .
Until such categories become reasonably apparent, however,
interception of all calls will be justified under the
wiretap authorization.122

119
Id.
120
Id. (citing United States v. Hyde, 574 F.2d 856, 869 (5th
Cir. 1978)) (internal quotation marks omitted).
121
Id. (internal citations omitted).
122
United States v. Hyde, 574 F.2d 856, 870 (5th Cir. 1978)
(quoting United States v. Scott, 516 F.2d 751, 754-55 (D.C. Cir.
1975)).

-39-
Accordingly, the government may reasonably intercept more calls

during the initial phase of an investigation, when the precise

scope of and participants in the criminal scheme have not yet

been identified.123 This consideration is especially strong where

the criminal enterprise under investigation is a large and

sophisticated conspiracy, and the purpose of the intercept order

is to learn the identities of conspirators and define the reach

of the conspiracy.124

The district court rejected Brown’s motion to suppress the

wiretap evidence in its September 29, 2000 order. The court

found that it was “reasonable to believe that the Government had

yet to gather a complete picture of the Jena Prison and Evergreen

Waste Disposal schemes at the time of the Edwards’ home

wiretap.”125 It further reasoned that “there was probable cause

to believe that a wiretap on Edwards’ phone would reveal the

presence of additional, previously unknown conspirators to and

dimensions of the scheme.”126 The district court also noted that

123
See United States v. Kahn, 415 U.S. 143 (1974) (approving
an order authorizing interception of pertinent conversations
between a named target and “others as yet unknown”); Hyde, 574 F.2d
at 862, 869-70 (“One of the objects of wiretapping is to ascertain
the full extent of participation in criminal activity, and we need
not limit retrospectively the pool of potential defendants.”).
124
See Hyde, 574 F.2d at 869 (“Large and sophisticated
conspiracies may justify more electronic surveillance than a single
criminal act.”).
125
R. at 2142.
126
R. at 2142.

-40-
Judge Parker received ten-day reports, updating the information

received from the intercepted calls.127

Based on our review of the record, we conclude that the

district court did not clearly err in finding that the government

did not have a “complete picture” of the participants in or scope

of the prison and waste disposal conspiracies it was

investigating when it intercepted the Cascade-related phone

calls. The government’s October 1996 wiretap application

indicates that the government believed that it still had much to

learn about the alleged schemes. The government requested

wiretap authorization in order to intercept communications “that

reveal the manner in which Edwards, [Cecil] Brown, Stalder,

Pitre, Thompson, and other persons yet unknown and unidentified,

participate in the specified offenses, and that reveal the

identities of their co-conspirators, their places of operation,

and the nature of the conspiracy involved therein . . . .”128 The

summaries of the Confidential Witness tapes and the Cecil Brown

wiretap in the Affidavit show that these sources offered the

government only a snapshot of the dimensions of and participants

in the prison and waste disposal schemes.129 Contrary to Brown’s

position, the fact that the intercepted Cascade-related calls

127
R. at 2140.
128
Application Oct. 1, 1996, at 5.
129
See R. at 2142.

-41-
involved the state Insurance Commissioner does not facially make

their interception objectively unreasonable. On the contrary,

the FBI’s investigation targeted some of Louisiana’s top public

officials to determine their involvement in a broad scheme of

public corruption whose parameters were not then fully defined.

In addition, the record reveals that the government

minimized interception of numerous conversations. The Daily

Intercept Reports show that, as the surveillance progressed, the

government minimized a greater percentage of calls, in keeping

with the approach approved in United States v. Hyde.130 Moreover,

many of the intercepted calls about which Brown complains were

short, making minimization difficult.131

Finally, as the district court noted, Judge Parker received

reports on the investigation every ten days, in which he was

informed that the government was intercepting communications

involving Brown, Sanders, and Weems, among others.132 In fact,

the very first of these reports listed Brown and Judge Sanders as

people whose calls the government had intercepted.133 In light of

130
574 F.2d 856, 870 (5th Cir. 1978); see R. at 2140. This
fact alone is not determinative, however. See Scott v. United
States, 436 U.S. 128, 140 (1978) (explaining that the use of
percentages may provide assistance in determining whether the
government’s minimization was reasonable, but that “blind reliance”
on statistics is not a “sure guide to a correct answer”).
131
See R. at 2140.
132
See R. at 2139-40.
133
See R. at 728, 2139.

-42-
these factors, the district court did not clearly err in finding

that the government’s interception of the Cascade-related calls

was objectively reasonable. Therefore, we affirm the district

court’s denial of Brown’s motion to suppress the fruits of the

wiretap.

VIII.

For the reasons stated above, Brown’s convictions on all

counts are hereby AFFIRMED.

AFFIRMED.

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