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Fifth Circuit Overturns Criminal Conviction Based on Prosecutor’s Misconduct

Prosecutorial misconduct led the Fifth Circuit to overturn a criminal conviction in the recent decision of United States of America v. Thaddeus Beaulieu.  The Beaulieu case involved a charge of criminal contempt arising from Beaulieu’s refusal to testify in court against individuals involved in car jackings and bank robberies.  After Beaulieu asserted a Fifth Amendment right against testimony, the prosecutor in that matter, Assist. U.S. Atty. Michael McMahon, granted Beaulieu immunity from prosecution under 18 U.S.C. §§6002-6003, which served to compel testimony over a Fifth Amendment claim of privilege against self-incrimination.  Yet, when called again by McMahon to testify, Beaulieu again refused.  Beaulieu was then charged with criminal contempt.

The same Assistant U.S. Attorney, McMahon, was appointed to prosecute Beaulieu’s contempt case.  The defense objected to that appointment because of McMahon’s communications with Beaulieu in the underlying matter, but the district court denied the motion to disqualify.  At trial, Beaulieu admitted he violated a reasonably specific court order but claimed he did not do so “willfully” and, thus, could not be convicted of contempt.  However, following a half-day trial, Beaulieu was found guilty of criminal contempt by the jury.

Beaulieu appealed, based on McMahon’s alleged prosecutorial misconduct.  To prevail, Beaulieu had to show: (1) the prosecutor made an improper remark; and (2) there was prejudice. United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004).  The Government conceded McMahon made numerous “improper remarks” throughout the trial, including expressing his personal opinion on the merits of the case and the credibility of the witnesses; making arguments at closing based on evidence not presented at trial; and telling the jury to convict Beaulieu not based on the facts and law but out of respect for a chief judge of federal district court.

Prosecutorial misconduct alone does not warrant the vacatur of a conviction; a prejudicial effect must also be shown.  Darden v. Wainwright, 477 U.S. 168, 181 (1986).  To prove such prejudice, courts can consider “(1) the magnitude of the prejudicial effect of the statements, (2) the efficacy of any cautionary instructions, and (3) the strength of the evidence of defendant’s guilt.” United States v. Mendoza, 522 F.3d 482, 492 (5th Cir. 2008).  The Fifth Circuit described the magnitude of McMahon’s improper remarks as “overwhelming” and noted a lack of cautionary instructions.

Because Beaulieu had received a specific order to testify and obviously violated that order, Beaulieu’s trial defense had turned on whether Beaulieu willfully violated that order.  “Willful” means a “gross deviation from what a reasonable person would do.”  United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam).

According to the Fifth Circuit, it was impossible to separate McMahon’s misconduct from the other evidence against Beaulieu, and in fact his mere presence as the prosecutor in Beaulieu’s case was problematic.  In the underlying car jacking/bank robbery case, McMahon had threatened to prosecute Beaulieu for perjury if Beaulieu’s trial testimony deviated at all from the FBI’s summary of an interview previously conducted with him.  The evidence at the contempt trial showed that Beaulieu disagreed with the summary in two respects, and would have had to testify inconsistently with the summary in those two respects.  Given these facts, the Fifth Circuit held that Beaulieu’s refusal to testify after McMahon’s threat was an “understandable and good-faith effort to avoid perjury, not a willful violation of a court order.”  A failure or refusal to attend and testify made in good-faith does not constitute criminal contempt.

The Fifth Circuit concluded by reminding prosecutors of the unique role they play in the court system: “Regardless of the circumstances, a prosecutor must always adhere to the highest ethical standards of the legal profession.  The integrity of our criminal-justice system depends on it.  The Government’s conduct fell short of those standards.”  Accordingly, the Fifth Circuit vacated Beaulieu’s conviction for criminal contempt.