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not be published and is not precedent except under the limited circumstances set forth in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.
2
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
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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
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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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