U.S. v. Ryan
U.S. v. Ryan
2022 WL 1538404 (E.D. La. 2022)
March 7, 2022
Fallon, Eldon E., United States District Judge
Summary
The Defendant Robert Calloway filed a motion to compel the production of certain PowerPoint slides, but the Court denied the motion and ordered that the government need not produce the slides as they were protected by the attorney-work product doctrine.
UNITED STATES OF AMERICA
v.
ASHTON J. RYAN JR. WILLIAM J. BURNELL ROBERT CALLOWAY FRANK J. ADOLPH FRED V. BEEBE
v.
ASHTON J. RYAN JR. WILLIAM J. BURNELL ROBERT CALLOWAY FRANK J. ADOLPH FRED V. BEEBE
CRIMINAL ACTION NO. 20-65
United States District Court, E.D. Louisiana
Filed March 07, 2022
Counsel
Matthew Richard Payne, Sharan E. Lieberman, Jeffrey Ryan McLaren, K. Paige O'Hale, Kevin G. Boitmann, Nicholas Dupuy Moses, Rachal Cox Cassagne, Assistant U.S. Attorneys, DOJ-USAO, New Orleans, LA, for United States of America.Edward J. Castaing, Jr., Peter E. Castaing, Crull, Castaing & Lilly, New Orleans, LA, Deborah A. Pearce, Deborah Pearce, New Orleans, LA, for Ashton J. Ryan, Jr.
Brian J. Capitelli, Ralph Capitelli, Tyffani A. Lauve, Capitelli & Wicker, New Orleans, LA, for William J. Burnell.
Michael William Magner, Alexander Breckinridge, Edward H. Bergin, Thomas C. Wicker, IV, Avery Bryce Pardee, Michael Joseph O'Brien, Jones Walker LLP, New Orleans, LA, Michelle S. Stratton, Smyser Kaplan and Veselka, LLP, Houston, TX, Daniel J. Martin, Pro Hac Vice, Jones Walker LLP, Birmingham, AL, for Robert B. Calloway.
David Ichiro Courcelle, Scott C. Stansbury, Law Office of David I. Courcelle, LLC, Metairie, LA, for Frank J. Adolph.
Sara A. Johnson, Sara A. Johnson, Attorney at Law, New Orleans, LA, Ethan Atticus Balogh, Pro Hac Vice, Balogh & Co., APC, San Francisco, CA, for Fred V. Beebe.
Fallon, Eldon E., United States District Judge
ORDER AND REASONS
*1 Before the Court is Defendant Robert Calloway's motion to compel production of certain PowerPoint slides entitled “Where NMTC Funds Went” that the government showed to and questioned a potential witness, Dorothy Jacobs, about in March 13, 2020. R. Doc. 511. The government did not file an opposition but previously opposed a similar motion by Calloway. R. Doc. 178. The Court ordered in camera production of the slides. R. Doc. 383. The government complied with this order and sent the Court a cover memorandum regarding the slides. Upon review of the documents and considering the parties' arguments and the applicable law, the Court now issues this Order and Reasons.
I. BACKGROUND
This case arises from fraudulent bank activity at First NBC Bank (“the Bank”), the failure of which cost the FDIC's deposit insurance fund approximately $996.9 million. On August 5, 2021, a 49-count Superseding Indictment was entered charging Defendants with conspiracy to commit bank fraud, bank fraud, and false entries in bank records. R. Doc. 318. In relevant part, the Second Superseding Indictment alleges that Bank Officers and borrowers participated in a scheme to defraud the Bank and enrich themselves by lying on loan documents about borrowers' creditworthiness, the purposes of the loans, and the method of repayment. Id. at 7.
Defendant Ashton J. Ryan, Jr. was a founder of the Bank and acted as its President, Chief Executive Officer, and Chairman of the Board from approximately May 2006 to December 2016. Id. at 2. Defendant William J. Burnell was the Bank's Chief Credit Officer. Id. at 3. Defendant Robert B. Calloway was the Bank's Executive Vice President and served as a commercial relationship manager with a specialization in tax credit. Id. Defendant Fred V. Beebe was the Bank's Senior Vice President and a commercial relationship manager. Id. Defendant Frank Adolph was a borrower at the Bank individually and through related entities, and by the time the Bank closed, Adolph and his related entities allegedly owed the Bank approximately $6.1 million. Id. at 5.
II. PRESENT MOTION
Defendant Robert Calloway moves for an order compelling the government to produce PowerPoint slides its office produced that bear the title “Where NMTC Funds Went.” R. Doc. 511. The government showed the 6 slides to Dorothy Jacobs, a former assistant to and Chief Operating Officer of a business run by Bank borrower Gary Gibbs, during an interview with the government. Calloway is only charged with respect to the lending relationship with Gibbs.
Calloway argues that the slides are material to his defense. During her interview, Jacobs told the government that Gibbs falsified and concealed his and his company's financials at Defendant Ashton Ryan's direction, including through Gibbs's use of New Market Tax Credits (NMTCs). R. Doc. 511-1 at 1. Because the government showed the slides it made regarding Gibb's fraud regarding NMTCs to Jacobs during her interview and questioned her about them, Calloway argues that they are needed to support his defense that he lacked the requisite criminal intent: the slides will buttress his contention that he “was unaware of Gibb's fraud and that Gibb's financial falsifications were made at Ryan's direction without Mr. Calloway's knowledge or involvement.” Id. at 2.
*2 In a cover letter to the Court, the government points out that the Court earlier addressed a motion by Calloway to compel the same slides Calloway seeks in this motion. R. Doc. 559-1. That prior order stated in pertinent part: “Mr. Calloway takes the position that the government's presentation to [potential witnesses] constitutes Giglio material. The Court therefore DEFERS ruling on this request until such time as the government makes its Giglio production prior to trial.” R. Doc. 311 at 7.
III. APPLICABLE LAW
The government's discovery obligations in a criminal case stem from two sources. First, Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure requires the government to, upon the defendant's request, provide or allow the defendant access to documents and objects in the government's possession. Second, the Due Process Clause of the Fifth Amendment, as interpreted by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 (1963), and its progeny, require the prosecution to disclose evidence favorable to an accused person when such evidence is material to guilty of punishment. This includes exculpatory evidence and evidence that impeaches a government witness. See U.S. v. Bagley, 473 667, 676 (1985) (quoting Brady, 373 U.S. at 87).
Federal Rule of Criminal Procedure 16(a)(2) prohibits “the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2). “The Advisory Committee Notes to Rule 16(a)(2) state ‘that the phrase ‘reports, memoranda, or other internal government documents made by an attorney for the government’ was meant to incorporate the ‘work product’ language of Hickman v. Taylor, 329 U.S. 495 (1947), into the rule to ensure that government attorneys' litigation preparations are protected from discovery.’ ” United States v. Mix, No. 12-171, 2013 WL 3874900, at *1 (E.D. La. July 25, 2013) (quoting United States v. Mann, 61 F.3d 326, 331 (5th Cir. 1995)).
This Rules-based immunity from disclosure, however, is not absolute. It can be overcome, for example, by constitutional commands, like Brady. See United States v. Armstrong, 517 U.S. 456, 475 (1996) (Breyer, J., concurring) (“Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus, the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady.” (quoting 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 254.2 (2d ed. 1982)); United States v. Edwards, 777 F. Supp. 2d 985, 995 (E.D.N.C. 2011) (“Several courts, including the Supreme Court, have assumed that Brady requires disclosure despite work product protections. This is because Brady is a constitutional right that overrides the statutorily created work-product privilege.”); United States v. Gupta, 848 F. Supp. 2d 491, 496 (S.D.N.Y. 2012).
IV. DISCUSSION
In this case, the government has already produced the documents underlying preindictment presentations that the government made to various potential witnesses, including Jacobs. In other words, Calloway already has the documents upon which the PowerPoint slides were based. He also has the memorandum drafted by the government that summarizes its March 2020 interview with Jacobs. Moreover, the slides Calloway seeks were prepared by the United States Attorney's Office in the course of its investigation resulting in this prosecution. They are thus protected from disclosure to Defendants by the attorney-work product doctrine, as incorporated by Federal Rule of Criminal Procedure 16(a)(2), so long as that privilege is not overcome. See Edwards, 777 F. Supp. 2d at 995. The question, then, is whether the slides themselves constitute Brady or Giglio material and therefore defeat the slides' immunity from disclosure.
*3 It is significant in this case that the PowerPoint slides were made by the United States Attorney's Office in advance of its interview with Jacobs. The slides are therefore not based on Jacobs's own testimony. Calloway provides no argument as to how these slides could be used to impeach Jacobs's testimony—or any other witnesses, such as Gibbs, for that matter. Nor does the Court find that these slides constitute Brady or Giglio material, especially in light of the fact that Calloway already possesses all of the documents that the government used to formulate the slides. Accordingly, the Court will deny Calloway's motion to compel.
V. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Calloway's motion to compel, R. Doc. 511, is DENIED and that the government need not produce the slides regarding “Where the NMTC Funds Went.”
New Orleans, Louisiana, this 7th day of March, 2022.