USA v. Harris et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
VERSUS NO. 24-105
RYAN J. HARRIS, ET AL. SECTION: D (1)
This Order applies to
Jason F. Giles and The
King Firm, LLC
ORDER AND REASONS
Before the Court is Defendants’, The King Firm and Jason Giles, Motion to
Dismiss Count 8 (Corruptly Influence . . . By Secretly Recording) and Count 9
(Corruptly Persuade) of the Third Superseding Indictment Which Are
Unconstitutionally Vague as Charged or, in the Alternative, Motion to Strike the
Term: (1) “By Secretly Recording Hickman” Count 8, (2) “Secretly Recording Labeaud”
(Count 1(D) Paragraph 16) and (3) “Without Hickman’s Knowledge” Count 1(D)
Paragraph 20.1 The Government opposes the Motion,2 and Giles and the King Firm
have filed a Reply.3
After careful consideration of the parties’ memoranda and the applicable law,
the Court DENIES the Motion to Dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND4
This case involves several defendants who are charged with various crimes
1 R. Doc. 582.
2 R. Doc. 634.
3 R. Doc. 669.
4 In the interest of judicial economy, and because the factual background of this case was extensively
detailed in several prior Orders and Reasons issued by this Court (See R. Docs. 357, 481, 489, 641, &
647), the Court will limit its recitation of the factual and procedural background to matters relevant
to the instant Motion.
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stemming from a years-long scheme to stage fake automobile collisions in the New
Orleans metropolitan area and file fraudulent insurance claims and fraudulent
lawsuits based on the staged collisions.5 That scheme allegedly involved “slammers”
who drove automobiles and intentionally collided with 18-wheeler tractor-trailers
and other commercial vehicles in order to stage collisions. Jason F. Giles and The
King Firm, LLC (collectively, “Defendants”) are charged in the Third Superseding
Indictment with conspiracy to commit mail and wire fraud (Count 1), mail fraud
(Count 2), obstruction of justice (Count 8), and witness tampering (Count 9).6
Pertinent to the instant Motion, the Government alleges in Count 1 that Damian
Labeaud and Roderick Hickman staged automobile collisions for Defendants between
2011 and 2017, that Defendants knew the collisions were staged, and that Defendants
paid Labeaud and Hickman for bringing them staged collisions.7 In Counts 8 and 9,
the Government alleges that Defendants secretly recorded Hickman and
manipulated him into falsely stating that the collisions he and Labeaud staged were
legitimate, and did so to obstruct or impede the grand jury’s investigation into the
staged collision scheme.8
In the instant Motion, Defendants contend that they seek to strike Counts 8
and 9 of the Third Superseding Indictment as unconstitutionally vague as charged
or, alternatively, to strike certain language from Counts 1, 8, and 9 as surplus under
5 R. Docs. 1, 78, 256, & 517.
6 R. Doc. 517 at pp. 1–18 & 21–22.
7 Id. at pp. 7–10.
8 Id. at pp. 21–22.
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Fed. R. Crim. P. 7(d).9 Defendants assert that the Supreme Court narrowed the scope
of the obstruction of justice statute in Fischer v. United States, and that the decision
“focused on 18 USC §1503(c)” and 18 U.S.C. § 1512(C)(2).10 Relying on Fischer,
Defendants assert that they are challenging the language in the Third Superseding
Indictment under the First Amendment because recording a government witness
without the witness’ consent is not a “corrupt” act.11 Defendants point out that it is
not unlawful under Louisiana or federal law to record someone without their
consent.12 Defendants assert that, at a minimum, the Court should strike the
prejudicial words “secretly recording” from Count 8 and Count 1(D), Paragraphs 16
and 20 of the Third Superseding Indictment.13
Defendants also move to strike as surplus the second sentence of Count 1(D),
Paragraph 16, which states that Defendants “secretly recorded Labeaud’s
manipulated statement without Labeaud’s knowledge.”14 Defendants claim that this
language is prejudicial and misleading because it suggests that secretly recording
someone is an illegal act.15 Defendants point out that the Government refers to its
own “secret recordings” of cooperating witnesses in a neutral or positive way.16
Finally, Defendants seem to invoke the affirmative defense set forth in 18 U.S.C. §
1512(E), claiming that the recordings show that Giles encouraged Labeaud and
9 R. Doc. 582.
10 R. Doc. 582-1 at pp. 2–3 (citing Fischer, 603 U.S. 480, 144 S.Ct. 2176, 219 L.Ed.2d 911 (2024)). The
Court notes that 18 U.S.C. § 1503(c) does not exist.
11 R. Doc. 582-1 at p. 3.
12 R. Doc. 582 at p. 2; R. Doc. 582-1 at pp. 3–4 (citing 18 U.S.C. §§ 2510 & 2511; La. R.S. 15:1303(C)).
13 R. Doc. 582-1 at p. 3.
14 Id. at p. 4 (quoting R. Doc. 517 at pp. 10–11) (citation modified).
15 R. Doc. 582-1 at p. 4.
16 Id. at p. 5.
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Hickman to tell the truth and, as such, Giles engaged in lawful conduct intended to
encourage them to speak truthfully.17
The Government opposes the Motion, pointing out that Defendants cite a non-
existent statute, 18 U.S.C. § 1503(c), and a Supreme Court case involving crimes not
charged in this case, Fischer, to support their arguments.18 The Government asserts
that the Fifth Circuit Pattern Instructions set forth the elements for both obstruction
of justice and witness tampering, and that Defendants’ conduct as alleged in the
Third Superseding Indictment satisfy the elements of both crimes.19 The
Government claims that when the Defendants recorded Labeaud’s statement, the
Defendants knew that insurance defense attorneys suspected that certain collisions
were staged and had begun investigating them.20 The Government also claims that
when Defendants secretly recorded Hickman, Labeaud had already been charged and
pleaded guilty, and Defendants knew that Hickman had just been charged and was
represented by counsel, but recorded his statements without his attorney present and
then did not provide such recorded statements to the Government for over three
years.21 The Government asserts that courts, including the Fifth Circuit, have
affirmed convictions under 18 U.S.C. §§ 1503(a) and 1512(b)(1) for conduct similar to
the Defendants’ conduct.22 The Government further asserts that the phrase “secretly
recorded” is not improper surplusage because it is not irrelevant, inflammatory, and
17 Id. at pp. 7–9.
18 R. Doc. 634 at p. 24.
19 Id. at pp. 24–26 (citing Fifth Circuit Pattern Jury Instructions (Criminal), §§ 2.63(A) & 2.64 (2024)).
20 R. Doc. 634 at p. 26.
21 Id.
22 Id. (citing United States v. Jena, 478 Fed.Appx. 99, 101–02 (5th Cir. 2012); United States v. Edlind,
887 F.3d 166, 172–77 (4th Cir. 2018); United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005).
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prejudicial, and instead is important context for establishing that Defendants knew
what they were doing was wrong.23 The Government contends that the Court can
give a limiting instruction to cure any risk of jury confusion regarding whether
Defendants can be convicted for secretly recording their clients.24 As to their
affirmative defense argument, the Government asserts that whether Defendants
were sincere when they told Labeaud and Hickman to be truthful or did so “with a
wink and a nod” is a question for the jury and Defendants have the burden of
establishing it at trial.25
In response, Defendants maintain that the word “secretly” should be stricken
from the Third Superseding Indictment to avoid prejudice, and that a jury instruction
will not cure such prejudice.26 Defendants also maintain that federal and state law
do not prohibit secretly recorded someone who becomes a Government witness.27
Defendants then seem to suggest that they were represented by prior counsel
between 2017 and 2020 when the recordings were made, and assert that, “[t]o the
extent that prior counsel were involved in the ‘prior recordings,’ the Defendants
would have a reasonable basis to believe such conduct of recordingthe [sic]
conversations was legal.”28 Defendants then conclude by asserting that,
[u]ndersigned counsel filed for the deletion of the word ‘secretly’ to avoid issues of
prior counsel’s approval of such recordings provided to the Government in 2020.”29
23 R. Doc. 634 at p. 27 (citing Empire Bulkers, 583 F. Supp. 3d at 760).
24 R. Doc. 634 at p. 27 (citing United States v. Reed, 908 F.3d 102, 115, n.42 (5th Cir. 2018)).
25 R .Doc. 634 at p. 27 (citing Edlind, 87 F.3d at 175–76; 18 U.S.C. § 1512(e)).
26 R. Doc. 669 at pp. 2–3.
27 Id. at p. 2.
28 Id. at p. 3.
29 Id.
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II. LEGAL STANDARD
A. Motion to Dismiss Indictment
Federal Rule of Criminal Procedure 7(c) requires an indictment to contain “a
plain, concise and definite written statement of the essential facts constituting the
offense charged,” and to state for each count, “the official or customary citation of the
statute, rule, regulation or other provision of law which the defendant is alleged to
have violated.”30 As explained by the Fifth Circuit, “[u]nder the Sixth Amendment,
an indictment must ‘(1) enumerate each prima facie element of the charged offense;
(2) inform the defendant of the charges filed against him; and (3) provide the
defendant with a double jeopardy defense against future prosecutions.’”31 According
to the Fifth Circuit, “an indictment is sufficient if it ‘contains the elements of the
offense charged and fairly informs the defendant of the charge against which he must
defend.’”32 “It is not necessary for an indictment to go further and to allege in detail
the factual proof that will be relied upon to support the charges.”33 “Generally, an
indictment which follows the language of the statute under which it is brought is
sufficient to give a defendant notice of the crime of which he is charged.”34
Rule 12(b) of the Federal Rules of Criminal Procedure permits a defendant to
raise by a pretrial motion, “[a]ny defense, objection, or request that the court can
30 Fed. R. Crim. P. 7(c)(1).
31 United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000) (quoting United States v.
Gaytan, 74 F.3d 545, 551 (5th Cir. 1996)).
32 United States v. Lawrence, 727 F.3d 386, 397 (5th Cir. 2013) (quoting Unites States v. Fuller, 974
F.2d 1474, 1480 (5th Cir. 1992)).
33 United States v. Crippen, 579 F.2d 340, 342 (5th Cir. 1978).
34 United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (quoting United States v Ramirez, 233 F.3d
318, 323 (5th Cir. 2000), overruled on other grounds by United States v Longoria, 298 F.3d 367 (5th
Cir. 2002)) (citation modified)); See United States v. Massey, 849 F.3d 262, 264 (5th Cir. 2017) (same).
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determine without a trial on the merits.”35 In the instant Motion, Defendants seek
dismissal of Counts 8 and 9 of the Third Superseding Indictment as
“unconstitutionally vague as charged.”36 Although not addressed by the parties,
Defendants fail to specify which provision of Fed. R. Crim. P. 12(b) forms the basis of
their request for dismissal.37 In fact, there is no mention of Rule 12(b) at all in
Defendants’ Motion or Reply brief.38 While not a model of clarity, Defendants seem
to assert that Counts 8 and 9 of the Third Superseding Indictment should be
dismissed because they charge Defendants with “corruptly influenc[ing]” the grand
jury investigation into the staged collision scheme “by secretly recording Roderick
Hickman” and “corruptly persuad[ing] and engag[ing] in misleading conduct” with
the intent to influence, delay, and prevent Hickman’s testimony in the grand jury’s
investigation.39 As such, the Court construes the instant Motion as seeking dismissal
under Rule 12(b)(3)(B)(ii) for lack of specificity and Rule 12(b)(3)(B)(v) for failure to
state an offense.
According to the Fifth Circuit, “[t]he propriety of granting a motion to dismiss
an indictment . . . by pretrial motion is by-and-large contingent upon whether the
infirmity in the prosecution is essentially one of law or involves determinations of
fact . . . . If a question of law is involved, then consideration of the motion is generally
35 Fed. R. Crim. P. 12(b)(1).
36 R. Doc. 582 at p. 2.
37 See, generally, R. Docs. 582, 582-1, & 669.
38 See R. Docs. 582 & 582-1.
39 R. Doc. 582-1 at pp. 2–4.
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proper.”40 When considering a motion to dismiss the indictment for failure to state
an offense, a court is required to “take the allegations of the indictment as true and
to determine whether an offense has been stated.”41 Additionally, “[a] court must
deny a motion to dismiss if the motion relies on disputed facts.”42
B. Motion to Strike Surplusage
Federal Rule of Criminal Procedure 7(d) provides that, “[u]pon the defendant’s
motion, the court may strike surplusage from the indictment or information.” “The
mere fact that information in an indictment does not constitute an element of the
charged offense does not require that it be stricken.”43 Instead, “[s]urplusage in an
indictment may generally be disregarded where the charge is not materially
broadened and the accused is not misled.”44 The Fifth Circuit has held that, “[f]or
language to be struck from an indictment, it must be irrelevant, inflammatory, and
prejudicial.”45 According to the Fifth Circuit, “[t]he inclusion of clearly unnecessary
language in an indictment that could serve only to inflame the jury, confuse the
issues, and blur the elements necessary for conviction under the separate counts
40 United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (quoting United States v. Flores, 404
F.3d 320, 324 (5th Cir. 2005), abrogated on other grounds as recognized by United States v. Garcia,
707 Fed.Appx. 231 (5th Cir. 2017)).
41 United States v. USPlabs, LLC, 338 F. Supp. 3d 547, 557 (N.D. Tex. 2018) (quoting United States v.
Kay, 359 F.3d 738, 742 (5th Cir. 2004)) (citation modified).
42 USPlabs, LLC, 338 F. Supp. 3d at 557 (citing United States v. Covington, 395 U.S. 57, 60, 89 S.Ct.
1559, 23 L.Ed.2d 94 (1969) (holding that a court can resolve a pretrial motion to dismiss the indictment
only when “trial of the facts surrounding the commission of the alleged offense would be of no
assistance in determining the validity of the defense”)).
43 United States v. Solomon, 273 F.3d 1108 (5th Cir. 2001) (citing United States v. Scarpa, 913 F.2d
993, 1013 (2d Cir. 1990)).
44 United States v. Trice, 823 F.2d 80, 89 n.8 (5th Cir. 1987).
45 United States v. Graves, 5 F.3d 1546, 1550 (5th Cir. 1993) (citing United States v. Bullock, 451 F.2d
884, 888 (5th Cir. 1971).
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involved surely can be prejudicial.”46 The Fifth Circuit has made clear, however that,
“[w]here information in an indictment is sufficiently relevant to the charged offense,
the court should not strike it, no matter how prejudicial it may be.”47 Further, “[t]his
standard is ‘exacting’ and strict, and as a result, the motion is rarely granted.”48
III. ANALYSIS
A. Constitutional Challenges to the Third Superseding Indictment
The heading of Defendants’ Motion to Dismiss provides, in pertinent part,
“Defendants’, The King Firm and Jason Giles, Motion to Dismiss Count 8 (Corruptly
Influence . . . By Secretly Recording) and Count 9 (Corruptly Persuade) of the Third
Superseding Indictment Which Are Unconstitutionally Vague As Charged.”49
According to the Motion, Defendants “move to dismiss Counts 8 and 9 of the Third
Superseding Indictment as unconstitutionally vague as charged (i.e., ‘corruptly
influence . . . by secretly recording Hickman . . .)’ . . . .”50 The Memorandum in Support,
however, is silent as to an “unconstitutionally vague as charged” challenge to the
Third Superseding Indictment.51 Nor do Defendants assert that the charging
statutes in Counts 8 and 9, 18 U.S.C. §§ 1503(a) or 1512(b)(1), are unconstitutionally
vague. Defendants raise no arguments to support this challenge, nor do they provide
46 Bullock, 451 F.2d at 888.
47 Solomon, 273 F.3d 1108 (citing Scarpa, 913 F.2d at 1013).
48 United States v. Edwards, 72 F. Supp. 2d 664, 667 (M.D. La. 1999) (citing Bullock, 451 F.2d at 888;
United States v. Johnson, Crim. A. No. 98-276, 1999 WL 551332 (E.D. La. June 10, 1999) (Sear, J.);
United States v. Oakar, 111 F.3d 146, 157 (D.C. Cir. 1997)). See also 1 Charles A. Wright, Federal
Practice and Procedure, § 127 at p. 639 (3d ed. 1999).
49 R. Doc. 582 at p. 1.
50 Id. at p. 2 (emphasis in original). See Id. at p. 3 (“WHEREFORE, Defendants move to dismiss Counts
8 and 9 as unconstitutionally vague or, in the alternative, to strike the highly prejudicial language
form the Indictment . . . .”).
51 See, generally, R. Doc. 582-1.
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any legal support for same. Thus, any purported challenge to the Third Superseding
Indictment as “unconstitutionally vague as charged” is denied.
The Court likewise points out that Defendants, relying upon one sentence in
Justice Barrett’s dissenting opinion in Fischer v. United States, assert that they “filed
the instant First Amendment challenge to the above language in the Indictment. It
is submitted that the Congress did not intend that the mere act of recording a
government witness, without the witness’s consent, was a corrupt action.”52
Defendants further assert that, “[u]nder both Federal and Louisiana state law, a
defendant can engage in lawful recording of a government witness, and that act
cannot be considered ‘corruptly influencing’ the witness.”53 Defendants claim that,
“the decision focused on 18 USC § 1503(c) of the statute,” and that Chief Justice
Roberts expressed concerns about the term “corruptly influencing” as it applies to
lobbyists and/or protesters who, by nature, seek to “influence.”54
As the Government correctly pointed out in its Opposition brief, 18 U.S.C. §
1503(c) is a nonexistent statute.55 Notably, Defendants failed to address this error in
their Reply brief.56 More importantly, however, Defendants failed to address in their
Reply brief the fact that Fischer concerned 18 U.S.C. § 1512(c)(2), an entirely different
provision of the witness tampering statute than the one with which Defendants have
been charged in Count 9 of the Third Superseding Indictment. The Government
52 R. Doc. 582-1 at p. 3 (citing Fischer, 603 U.S. 480, 144 S.Ct. 2176, 219 L.Ed.2d 911 (2024)) (emphasis
in original).
53 R. Doc. 582-1 at p. 3.
54 Id. at p. 2.
55 R. Doc. 634 at p. 24.
56 See R. Doc. 669.
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correctly pointed this out in its Opposition brief, advising that Defendants are
charged in Counts 8 and 9 with violations of 18 U.S.C. §§ 1503(a) and 1512(b)(1),
respectively.57 While Defendants assert that Fischer “narrowed the scope of the
obstruction of justice statute,” which purportedly supports their request to strike
Count 8,58 Defendants misstate the holding in Fischer and seem to confuse the crimes
charged in Counts 8 and Count 9 of the Third Superseding Indictment. The Court
first points out that Fischer narrowed the scope of 18 U.S.C. § 1512(c)(2), a catchall
provision of the witness tampering statute, and not the statute at issue in this case.59
Further, as pointed out by the Government, Fischer is “a January 6th case involving
different statutes and wildly different facts.”60 The Court further points out that
Count 8 charges Defendants with obstruction of justice in violation of 18 U.S.C. §
1503(a), and Count 9 charges Defendants with witness tampering in violation of 18
U.S.C. § 1512(b)(1).61 To be clear, Fischer does not address the scope of § 1512(b)(1),
the statute under which the Defendants are charged, or the statutory language
“corruptly persuades” contained therein, which Defendants seem to be challenging in
their Motion.62
In their brief in support, Defendants state, “[a]ccordingly, the Defendants filed
the instant First Amendment challenge to the above language in the Indictment.”63
Defendants cite part of one sentence and one other sentence from Justice Barrett’s
57 R. Doc. 634 at p. 24.
58 R. Doc. 582-1 at pp. 2–3 (emphasis added).
59 See 18 U.S.C. § 1512(c)(2).
60 R. Doc. 634 at p. 24.
61 R. Doc. 517 at p. 21.
62 See 18 U.S.C. § 1512(b)(1).
63 R. Doc. 582-1 at p. 3.
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dissenting opinion in Fischer to support that passing, “First Amendment challenge.”64
Defendants’ reliance upon Fischer is inapposite. Defendants fail to include the
context of Justice Barrett’s dissenting opinion, in which she states the following:
The Court concludes with an appeal to consequences: Construing [18
U.S.C. § 1512] (c)(2) broadly would “expose activists and lobbyists alike
to decades in prison.” Ante, at 2189. This fear is overstated.
To begin with, the Court ignores that [18 U.S.C. § 1512] (c)(2) requires
proof that a defendant acted “corruptly.” The meaning of this term is
unsettled, but all of its possible definitions limit the scope of liability.
On one proposed interpretation, a defendant acts corruptly by “using
unlawful means, or acting with an unlawful purpose, or both.” On
another, a defendant acts “corruptly” if he “acts with an intent to procure
an unlawful benefit either for himself or for some other person.” Under
either, the “corruptly” element should screen out innocent activists and
lobbyists who engage in lawful activity. And if not, those defendants
can bring as-applied First Amendment challenges.65
It is clear from the text that Justice Barrett is suggesting that lobbyists and “innocent
activists,” such as protesters, can bring a First Amendment challenge if they are
charged with violating 18 U.S.C. § 1512(c)(2) for their speech. Defendants fail to
explain how that may apply in this case, or how their alleged actions of secretly
recording someone else’s statements fall into the same category as “innocent activists
and lobbyists.” Defendants assert no other arguments in support of their purported
“First Amendment challenge” to the Third Superseding Indictment.66 Finding no
other support for their position, the Court denies the Motion to the extent Defendants
64 R. Doc. 582-1 at p. 3 (citing Fischer, 603 U.S. at 519, 144 S.Ct. 2176) (Barrett, J.)).
65 603 U.S. at 518–19, 144 S.Ct. 2176 (citation modified).
66 See, generally, R. Docs. 582 & 582-1.
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assert a “First Amendment challenge” to Counts 8 or 9 of the Third Superseding
Indictment.67
B. Motion to Dismiss Count 8: Obstruction of Justice, in Violation of
18 U.S.C. § 1503(a)
Defendants are charged in Count 8 of the Third Superseding Indictment with
obstruction of justice, in violation of 18 U.S.C. §§ 1503(a) and 2.68 Section 1503(a)
provides, in pertinent part, that, “[w]hoever . . . corruptly . . . influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due administration of
justice, shall be punished as provided in subsection (b).” According to the Fifth
Circuit, the Government must establish three essential elements to prove a violation
of § 1503: “(1) that a judicial proceeding was pending; (2) that the defendant had
knowledge of the judicial proceeding; and (3) that the defendant acted corruptly with
the specific intent to influence, obstruct, or impede that judicial proceeding in its due
administration of justice.”69 The Fifth Circuit has held that, “[t]he last element also
requires a nexus between the act and any possible obstruction.”70 The Fifth Circuit
has also clarified that, “[t]he Government need not establish that the conduct . . .
actually affected the judicial proceeding, but only that the conduct could have.”71
67 The Court feels compelled to remind Defendants that, “Judges are not like pigs, hunting for truffles
buried in [the record].” Gross v. Town of Cicero, Ill., 619 F.3d 697, 702 (7th Cir. 2010) (quoting United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)) (citation modified).
68 R. Doc. 517 at p. 21.
69 United States v. Richardson, 676 F.3d 491, 502 (5th Cir. 2012) (citing United States v. De La Rosa,
171 F.3d 215, 220–21 (5th Cir. 1999)). See Zastrow v. Houston Auto Imports Greenway Ltd., 789 F.3d
553, 559 n.4 (5th Cir. 2015) (same).
70 United States v. Jena, 478 Fed.Appx. 99, 100 (5th Cir. 2012) (citing United States v. Aguilar, 515
U.S. 593, 599, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995)).
71 Jena, 478 Fed.Appx. at 102.
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In Count 8 of the Third Superseding Indictment, the Government alleges the
following:
On or about October 19, 2020, in the Eastern District of Louisiana, the
defendants, JASON F. GILES and THE KING FIRM, LLC, did
corruptly influence, obstruct, and impede, and did endeavor to influence,
obstruct and impede, the due administration of justice in the Grand
Jury’s investigation into the staged collision scheme by secretly
recording Roderick Hickman and manipulating him into falsely stating
that the collisions Hickman and Labeaud staged were legitimate, in
violation of Title 18 United States Code, Sections 1503(a) and 2.72
In Count 1 of the Third Superseding Indictment, the Government alleges that
Labeaud and Hickman staged collisions for Defendants between 2011 and 2017, that
Defendants knew the collisions were staged, and that Defendants paid Hickman and
Labeaud for bringing them staged collisions.73 The Government alleges that in or
around 2019, Defendants “became aware of the federal criminal investigation into
the staged collision scheme.”74 The Government also alleges that at the time of
secretly recording Hickman’s manipulated statement, Defendants “were aware that
Hickman was a defendant in a federal criminal case involving the staged collision
scheme,” that Defendants “were also aware that Hickman was represented by a
criminal defense attorney,” and that Defendants “elicited statements from Hickman
about the collisions he and Labeaud staged without Hickman’s criminal defense
attorney present.”75
72 R. Doc. 517 at p. 21.
73 Id. at pp. 7–10.
74 Id. at p. 11, ¶ 17.
75 Id. at ¶ 20.
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Taking the allegations of the Third Superseding Indictment as true, as the
Court is required to do,76 the Court finds that Count 8 sufficiently states an offense
under 18 U.S.C. § 1503(a) because it sets forth all three elements of the offense. The
Government has alleged that there was a pending federal investigation into the
staged collision scheme, that Defendants were aware of the investigation at the time
they recorded Hickman’s statement, and that Defendants acted corruptly with the
specific intent to influence the investigation by secretly recording Hickman and
manipulating him into falsely stating that the collisions he and Labeaud staged were
legitimate. While Defendants challenge the “secretly recorded” language in Count 8,
Defendants ignore the fact that Count 8 alleges that they manipulated Hickman into
falsely stating that the collisions he and Labeaud staged were legitimate.77 The Court
finds that Count 8 tracks the language of § 1503(a), and that all of the required
elements are included in the statutory language. According to the Fifth Circuit, “[a]s
long as the statutory language of the charged offense unambiguously sets out all the
necessary elements, an indictment setting forth the offense in the words of the statute
itself is generally sufficient.”78 The Court finds that Count 8 of the Third Superseding
Indictment contains the essential element of obstruction of justice under 18 U.S.C. §
1503(a) and fairly informs Defendants of the charge against them so that Defendants
can defend against the charge. Accordingly, to the extent Defendants seek to dismiss
76 United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United States v. Hogue, 132 F.3d
1087, 1089 (5th Cir. 1998)).
77 R. Doc. 517 at p. 21.
78 United States v. Hagemann, 950 F.2d 175, 183 (5th Cir. 1991).
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Count 8 of the Third Superseding Indictment, whether under Fed. R. Crim. P.
12(b)(3)(B)(iii) and/or 12(b)(3)(B)(v), the Motion is denied.
C. Motion to Dismiss Count 9: Witness Tampering, in Violation of 18
U.S.C. § 1512(b)(1)
Defendants are charged in Count 9 of the Third Superseding Indictment with
witness tampering, in violation of 18 U.S.C. § 1512(b)(1). Section 1512(b)(1) provides,
in pertinent part that, “[w]hoever knowingly uses intimidation, threatens, or
corruptly persuades another person, or attempts to do so, or engages in misleading
conduct toward another person, with intent to influence, delay, or prevent the
testimony of any person in an official proceeding” shall be fined or imprisoned not
more than 20 years, or both. According to the Fifth Circuit, the Government must
establish three essential elements to prove a violation of § 1512(b)(1): (1) that the
defendant corruptly persuaded or attempted to persuade another person; (2) that the
defendant acted knowingly and with intent to dishonestly influence, delay, or prevent
a witness’ testimony with respect to an official proceeding; and (3) that the defendant
knew or foresaw that the official proceeding was pending or was likely to be
instituted.79
The term “corruptly persuades” is defined in 18 U.S.C. § 1515(a)(6) as “acting
with an improper purpose, personally or by influencing another, including making a
false or misleading statement, or withholding, concealing, altering, or destroying a
document or other information.” Section 1515(a) defines “official proceeding” to
include, among other things, a proceeding before a judge or court of the United States,
79 Fifth Circuit Pattern Instructions (Criminal), § 2.64 (2024).
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a United States magistrate judge, or a federal grand jury.80 Section 1515(a) further
defines “misleading conduct” to include knowingly making a false statement,
intentionally omitting information from a statement and thereby causing a portion of
the statement to be misleading or intentionally concealing a material fact and
creating a false impression by such statement, with intent to mislead, knowingly
submitting or inviting reliance on a writing or recording that is false, forged, altered,
or otherwise lacking in authenticity, or knowingly using a trick, scheme, or device
with intent to mislead.81 The Fifth Circuit has held that, “[t]o be convicted under §
1512, a defendant must be able to foresee an official proceeding when he tampers
with a witness, but there is no requirement that the defendant foresee the nature of
the authority initiating that proceeding, as the text of § 1512 makes plain . . . .”82
In Count 9 of the Third Superseding Indictment, the Government alleges the
following:
On or about October 19, 2020, in the Eastern District of Louisiana, the
defendants, JASON F. GILES and THE KING FIRM, LLC, did
knowingly corruptly persuade and engage in misleading conduct
toward, and attempt to corruptly persuade and engage in misleading
conduct toward, Roderick Hickman with the intent to influence, delay,
and prevent Hickman’s testimony in an official proceeding, to wit, the
80 18 U.S.C. § 1515(a)(1).
81 18 U.S.C. § 1515(a)(3).
82 United States v. Vargas, 4 F.4th 616, 626 (5th Cir. 2021) (citation modified).
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Grand Jury’s investigation into the staged collision scheme, in violation
of Title 18, United States Code, Sections 1512(b)(1) and 2.83
Taking the allegations of the Third Superseding Indictment as true, as the
Court is required to do,84 the Court finds that Count 9 sufficiently states an offense
under 18 U.S.C. § 1512(b)(1) because it sets forth all three elements of the offense.
The Government has alleged that Defendants corruptly persuaded and engaged in
misleading conduct by secretly recording Hickman and manipulating him into falsely
stating that the collisions he and Labeaud staged were legitimate, and did so with
the intent to influence, delay, or prevent Hickman’s testimony in the grand jury’s
investigation into the staged collision scheme. The Court therefore finds that Count
9 tracks the language of 18 U.S.C. § 1512(b)(1), and all of the required elements are
included in the statutory language. Accordingly, Count 9 of the Third Superseding
Indictment contains the essential element of witness tampering under § 1512(b)(1)
and fairly informs Defendants of the charge against them so that Defendants can
defend against the charge. To the extent Defendants seek to dismiss Count 9 of the
Third Superseding Indictment whether under Fed. R. Crim. P. 12(b)(3)(B)(iii) and/or
12(b)(3)(B)(v), the Motion is denied.
D. Alternative Motion to Strike Surplus Language in Counts 1, 8, and
9 of the Third Superseding Indictment
Defendants assert in their Motion that if the Court does not dismiss Counts 8
and 9, it should strike “the highly prejudicial language” from Counts 1, 8, and 9 of
83 R. Doc. 517 at pp. 21–22.
84 United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United States v. Hogue, 132 F.3d
1087, 1089 (5th Cir. 1998)).
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the Third Superseding Indictment.85 Defendants ask the Court to strike the word
“secretly” from Counts 8, 9, and 1(D), Paragraphs 16 and 20, and to strike “without
Hickman’s knowledge” and “without Hickman’s criminal defense attorney present”
from Count 1(D), Paragraph 20.86 The Government claims that this language is not
improper surplusage because Defendants’ “sneakiness is important context for
establishing that they knew what they were doing was wrong, particularly for their
recording of Hickman without his counsel present.”87
The Court finds that the foregoing language could potentially be confusing to
the jury since, as Defendants point out and the Government does not contest, it is not
illegal under Louisiana or federal law to record a conversation without the other
person’s consent.88 Nonetheless, to be stricken, the alleged surplusage must be
irrelevant, inflammatory, and prejudicial.89 While the contested language may be
potentially confusing, the Court does not find that the language is irrelevant,
inflammatory and prejudicial. Instead, the Court finds that it may be relevant as
helpful context for the crimes charged in Counts 8 and 9 of the Third Superseding
Indictment. As pointed out by the Government, the Government contends that
“Giles, an experienced trial attorney, secretly recorded two of his clients and
manipulated them into making statements that were both false and favorable to Giles
and The King Firm” when Giles and The King Firm knew that staged collisions were
85 R. Doc. 582 at pp. 2 & 3.
86 Id.
87 R. Doc. 634 at p. 27.
88 See La. R.S. 15:1303(C)(4); 18 U.S.C. § 2511(2)(d).
89 United States v. Graves, 5 F.3d 1546, 1550 (5th Cir. 1993) (citing United States v. Bullock, 451 F.2d
884, 888 (5th Cir. 1971).
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being investigated, knew that Labeaud had already been charged and pleaded guilty,
and further knew that Hickman had been charged and was represented by counsel.90
The Government also contends that Giles made multiple false statements on the
recordings.91 As the Fifth Circuit has pointed out in similar cases, “intent ‘will almost
always have to be established by circumstantial evidence.’”92 Further, and
importantly, the jury will be given instructions that will make clear to them what
Defendants are actually charged with and the elements of each charge that must be
proven by the Government. This cures any potential prejudice from any alleged
surplusage. As such, the Court finds that Defendants have failed to satisfy the
“exacting” and strict standard required to strike information from the Third
Superseding Indictment, and denies their request to strike such language from
Counts 1, 8, and 9.
E. Affirmative Defense Under 18 U.S.C. § 1512(e)
Although somewhat ambiguous, Defendants seem to assert that they have an
affirmative defense to witness tampering charged in Count 9 of the Third
Superseding Indictment, namely that Giles’ actions in recording Hickman’s
statement was lawful conduct intended to encourage Hickman to testify truthfully
pursuant to 18 U.S.C. § 1512(e).93 In their Reply brief, Defendants seem to suggest
that their prior counsel “were involved in the ‘prior recordings’” and that Defendants,
90 R. Doc. 634 at p. 26.
91 Id. at p. 27.
92 United States v. Jena, 478 Fed.Appx. 99, 101–02 (5th Cir. 2012) (quoting United States v. Sandlin,
589 F.3d 749, 755 (5th Cir. 2009)).
93 R. Doc. 582-1 at pp. 7–9.
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therefore “would have a reasonable basis to believe such conduct of recording the
conversations was legal.”94 The Government asserts that it “strains credulity” that
Defendants were encouraging Labeaud and Hickman to be truthful when Giles made
multiple false statements on the recordings.95 The Government further asserts that
whether Defendants were sincere when they told Hickman and Labeaud to be
truthful is a question for the jury, and that Defendants have the burden of
establishing it at trial.96
Title 18 U.S.C. § 1512(e) provides an affirmative defense for obstruction of
justice, stating that, “[i]t is an affirmative defense, as to which the defendant has the
burden of proof by a preponderance of the evidence, that the conduct consisted solely
of lawful conduct and that the defendant’s sole intention was to encourage, induce, or
cause the other person to testify truthfully.” The affirmative defense set forth in §
1512(e) is one that Defendants must prove at trial by a preponderance of the evidence.
As such, it is not a basis for dismissing Count 9 of the Third Superseding Indictment.
The Supreme Court has instructed that, “where Congress has enacted an affirmative
defense in the proviso of a statute, the settled rule in this jurisdiction is that an
indictment or other pleading . . . need not negative the matter of an exception made
by a proviso or other distinct clause . . . and that it is incumbent on one who relies on
such an exception to set it up and establish it.”97 Stated another way, “[i]t has never
94 R. Doc. 669 at p. 3.
95 R. Doc. 634 at p. 27.
96 Id.
97 Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (quoting McKelvey v.
United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922)) (citation modified).
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been thought that an indictment, in order to be sufficient, need anticipate affirmative
defenses.”98 Accordingly, any challenge to the Third Superseding Indictment based
upon the affirmative defense set forth in 18 U.S.C. § 1512(e) fails as a matter of law.99
IV. CONCLUSION
For the reasons set forth above, the Defendants’, The King Firm and Jason
Giles, Motion to Dismiss Count 8 (Corruptly Influence . . . By Secretly Recording) and
Count 9 (Corruptly Persuade) of the Third Superseding Indictment Which Are
Unconstitutionally Vague as Charged or, in the Alternative, Motion to Strike the
Term: (1) “By Secretly Recording Hickman” Count 8, (2) “Secretly Recording Labeaud”
(Count 1(D) Paragraph 16) and (3) “Without Hickman’s Knowledge” Count 1(D)
Paragraph 20100 is DENIED.
New Orleans, Louisiana, February 26, 2026.
______________________________
WENDY B. VITTER
United States District Judge
98 United States v. Sisson, 399 U.S. 267, 288, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970) (citing United States
v. Fargas, 267 F. Supp. 452, 455 (S.D.N.Y. 1967)).
99 See United States v. Crinel, Crim. A. No. 15-61, 2015 WL 3755896, at *3 (E.D. La. June 16, 2015)
(Morgan, J.) (denying motion to dismiss indictment as facially deficient because it fails to negate the
applicability of the safe-harbor provision in the anti-kickback statute, which is an affirmative defense,
and concluding that the Government has no obligation to anticipate and rule out every affirmative
defense in the indictment).
100 R. Doc. 582.
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